U.S. 5th Circuit held reasonableness of an ADA accommodation request is normally a fact issue plus alleged discrimination is not enough for discriminatory firing claim under ADA


Jones v. Lubbock County Hosp. Dist., 19-11364, 2020 WL 6787549, at *1 (5th Cir. Nov. 18, 2020)

 This is an interlocutory appeal of a granting of summary judgment for the University Medical Center (“UMC”) and appealed by its former employee, Ricky Jones. The U.S. 5th Circuit affirmed in part, vacated in part, and remanded in part.

Jones, a respiratory therapis, has breathing problems and relies on supplemental oxygen. He requested UMC to accommodate his condition by letting him wear a portable oxygen device while working, but UMC denied the request. Subsequently, Jones took a few weeks of leave after working for a few days with his supplemental oxygen device, applied for, and was offered a secretarial position with UMC. Jones denied the offer after he returned from leave and felt he could without his device. Jones again requested the use of the device, was denied, then took a few weeks of leave. During that time, he sought other work around UMC but found no opening. After a third request was denied, he put in his two weeks’ notice and resignation. During the two weeks, Jones was fired for sending messages which violated UMC’s policy against gossip. Jones filed suit. UMC filed a motion for summary judgement which the trial court granted. Jones appealed.

The Fifth Circuit vacated the lower court’s ruling, stating that whether a proposed accommodation is reasonable is generally a fact issue and that Jones showed a triable fact issue in how he and UMC interpreted his request.  However, for Jones’ discrimination claim, the Fifth Circuit held that the evidence of UMC’s alleged failure to accommodate did not offer evidence to connect it to his being fired. UMC was able to show a legitimate reason for Jones’ firing which Jones failed to rebut.  As a result, the discrimination claim remained dismissed but the failure to accommodate claim was remanded.

If you would like to read this per curiam opinion click here. Panel consists of Judge Stewart, Justice Duncan, and Justice Wilson.

14th Court of Appeals holds 1) proof of causation necessary to maintain labor code disability discrimination & 2) plea was properly denied for breach of contract


Special contributing author Laura Mueller, City Attorney for Dripping Springs

Norris Rogers v. Houston Community College, 14-18-00591-CV (Tex. App.—Houston [14th Dist.], July 14, 2020) (mem. op.).

This case contains two claims: (1) disability discrimination under Texas Labor Code Section 21.105; and (2) breach of contract under Chapter 271 of the Texas Local Government Code. The Court of Appeals reversed-in-part and affirmed-in-part the trial court’s orders and reinstated the contract claim.

The plaintiff, and adjunct electrical instructor, argued he was terminated by the College because of a disability which prevented him from performing carpentry work or general construction work.  He also argued a unilateral employment contract was created for employment.   The College filed a no-evidence summary judgment on the disability claim and a plea to the jurisdiction on the contract claim. The trial court granted both and Rogers appealed.

To establish a prima facie case of discrimination based on disability, a plaintiff must show that the plaintiff suffered an adverse employment decision because of the disability.  Donaldson v. Tex. Dept. of Aging & Disability Srvs., 495 S.W.3d 421, 436 (Tex. App.––Houston [1st Dist.] 2016, pet. denied).  The plaintiff did not establish he was terminated because of his disabilities.  During this analysis, the Court also discussed how a lack of causation in a no-evidence summary judgment argument can be presented.   The Court affirmed the trial court’s order dismissing the disability claims against the College.

Next, to establish a contract, and waiver of immunity, under Chapter 271 of the Texas Local Government Code the plaintiff must prove that the contract: (1) is in writing, (2) states the essential terms of the contract, (3) provides for goods or services for the entity; and (4) was properly executed for the entity.  The plaintiff presented evidence that a unilateral contract existed.  The College stated that its policies and procedures would not allow this type of contract, but the Court held that the policies presented did not sufficiently negate the contract could exist.  Because there was sufficient evidence from a jurisdictional standpoint that the contract could exist, the Court overturned the trial court’s order granting the plea to the jurisdiction.

If you would like to read this opinion click here. Panel consists of Justices Wise, Zimmerer, and Spain.  Opinion by Justice Ken Wise.


Since City offered training for alternative employment position due to disability, City did not fail to make a reasonable accommodation says U.S. 5th Circuit.


Dillard v City of Austin, No. 15-50779 ( 5th Cir. September 16,2016)

This is a disability discrimination case where the U.S. Fifth Circuit affirmed the granting of summary judgment for the City employer.

After a car accident left Dillard with lingering injuries that prevented him from performing his former tasks as a manual laborer and field supervisor, the City offered, Dillard an administrative assistant position. Dillard testified that he was “stunned a little bit, because [he] didn’t know how to do no administrative work.” Despite expressing reservations about whether he could do the job, he accepted it.  Dillard did not meet the listed minimum qualification for an administrative assistant position with the City, as he did not have the minimum three years’ clerical or secretarial experience. In light of his lack of experience, Dillard was given on-the-job typing and computer training, and shadowed another administrative assistant. Dillard’s supervisor repeatedly told Dillard to complete more training, and showed him how to sign up for the City’s training programs, but he did not do so.  As a result of performance and behavior in the administrative position, the City eventually terminated Dillard.  Dillard filed a disability discrimination claim asserting the new job was not a “reasonable accommodation” as he was not skilled for that position. The trial court granted the City’s summary judgment motion and Dillard appealed.

The undisputed summary judgment evidence established Dillard was given multiple trainings and opportunities to learn the essential job skills. It did not appear he was incapable of learning, but that he “demonstrat[ed] no initiative, no desire to learn” in his new role. He was also found to be playing computer games at work, surfing the internet, coming in late, and not completing assignments.  Dillard offered no evidence the misconduct and poor performance were pretextual.  As a result, summary judgment was proper for his discrimination claim.  In relation to the failure to accommodate claim, ADA compliance requires an employer to engage in an interactive process with an employee to ascertain what changes could allow her to continue working. In other words, employer and employee must work together in good faith, back and forth, to find a reasonable accommodation. This should be an ongoing, reciprocal process.  Dillard contends that the City should have provided alternative placements and the failure to do so violated the City’s duty to work with him in good faith to find a reasonable accommodation. However, the court held “Dillard’s position neglects that the interactive process is a two-way street…” Once he accepted the position “…the ball was in his court: it was up to him to make an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him.”  Further, the undisputed evidence established Dillard committed misconduct.  An employee “unable to perform office tasks needs no special skill to avoid misusing company time, dishonesty, falling asleep, or absenteeism.”  As he did not attempt to fill his new role in good faith, Dillard cannot rely on the fact that he did not successfully adjust as a grounds for a failure to accommodate. Summary judgment was proper for the City on the failure to accommodate claim.

If you would like to read this opinion click here. The Panel includes Circuit Judge Southwick, Circuit Judge Costa, and District Judge Ozerden. Circuit Judge Costa delivered the opinion of the court. Attorney for the Appellant: Kell Asher Simon, Austin, TX. Attorney for the Appellee: Megan Mosby, Austin, TX.


Amarillo Court of Appeals holds 1) no race discrimination when employer hires from same protected class, 2) broken ankle is not ADA disability in this case, 3) age difference alone is not enough


Arnold Jordan v. Tarrant County Hospital District d/b/a JPs Health Network, 07-16-00034-CV (Tex. App—Amarillo, August 2, 2016)

This is an employment discrimination case where the Amarillo Court of Appeals affirmed the granting of the Hospital District’s summary judgment motion.

Jordan alleges Tarrant County Hospital District d/b/a JPS Health Network (“JPS”) failed to hire him for the position of Senior Psychiatric Tech because of age, race and disability. He brought claims only under federal law. The case was in state court in the Tarrant County District Court, but was transferred to the Amarillo Court of Appeals pursuant to the Texas Supreme Court’s docket equalization efforts under TEX. GOV’T CODE ANN. § 73.001 (West 2013).  The trial court in Tarrant County granted JPS’ motion for summary judgment and Jordan appealed.

As to race discrimination, Jordan asserts he established a prima facie case by showing the position he applied for remained open and JPS continued to seek applicants for some time. JPS contends that Jordan is required to show proof the position was filled by a person not in Jordan’s protected class.  The court held that while a prima facie case can be made when a position remains open, it cannot be said that an employer’s employment decisions were racially motivated when, as here, the employer eventually hired a qualified person from the same protected group of which plaintiff is a member. The trial court properly granted summary judgment as to race discrimination. With regards to the disability discrimination claim, Jordan suffered a broken ankle while working for JPS that “kept [him] off work” until December of 2011. However, due to Jordan’s exhaustion of personal and FMLA leave, JPS terminated him before his release to return to work. “While this evidence establishes that Jordan sustained an injury, it is not evidence of whether he is currently disabled within the meaning of the ADA.”  As to the age discrimination claim, the only evidence provided by Jordan is that JPS filled the position with a forty-five-year-old while he was fifty-nine at the time.  Jordan has to present some evidence to support his claim of age discrimination and this is not sufficient to establish a “but for” discriminatory motive. As a result, the trial court properly granted JPS’ summary judgment motion.

If you would like to read this opinion click here. The panel includes Justice Campbell, Justice Hancock and Justice Pirtle. Justice Hancock delivered the opinion of the court.  Attorney listed for Jordan is N. Sue Allen. The attorneys listed for JPS are Jerry D. Bullard, Cory Shane Hartsfield, Scott A. Cummings, and Neal w. Adams.

Employee’s failure-to-accommodate claims properly dismissed given employee refused to provide supporting medical documentation


Delaval v. PTech Drilling Tubulars, L.L.C. No. 15-20471 (5th Cir.- June 3rd 2016)

This is an Americans with Disabilities Act case where the 5th Circuit affirmed the granting of the employer’s summary judgment.

While not a government case, the standards utilized apply equally to governmental and non-governmental employers. Danny Delaval was a manual machinist for PTech. Delaval told his supervisor that his health was suffering and that he needed to undergo medical testing on a specific day. Delaval did not return to work for a week. When asked for supporting information from a doctor to justify the absence, Delaval did not produce any support. PTech fired Delaval for violating its attendance policy.  Delaval filed an ADA and age discrimination claims as well as a failure-to-accommodate claim. The trial court granted PTech’s summary judgment as to the both discrimination claims, then sua sponte dismissed the failure-to-accommodate claim.

In response to a motion for summary judgment, an employee must present “substantial evidence” that the employer’s legitimate, nondiscriminatory reason for termination is pretextual. Delaval does not contend he was treated differently than any other employee. Further, the dispute as to whether he was in contact with any supervisors during his week-long absence does not address that the reason for terminating him was pretextual. As a result, summary judgment was proper as to the discrimination claims. Next, the court held a trial court can sua sponte rule on an issue as long as harm does not result from a lack of notice. Delaval did not describe any additional evidence that should have been considered by the district court or explain why additional discovery was necessary. Accordingly, the district court’s failure to provide notice was harmless. On the merits of the failure-to-accommodate, time off, whether paid or unpaid, can be a reasonable accommodation, but an employer is not required to provide a disabled employee with indefinite leave. EEOC guidelines provide that “[a]n employer may require an employee to provide documentation . . . sufficient to substantiate” the limitation that allegedly requires an accommodation. “[T]he employer need not take the employee’s word for it that [he] . . . has an illness that may require special accommodation.” Where an employee refuses to provide such documentation, he causes a breakdown in the interactive process that can preclude an employer’s liability. In sum, PTech was acting lawfully in asking Delaval to turn over documentation corroborating his contention that he was undergoing medical testing during his week-long absence. His failure to do so is justification for the trial court dismissing his claim.

To read the opinion click here. Panel consists of Judges King, Southwick and Haynes. Judge Southwick wrote the opinion. Attorney for Appellant is David Charles Holmes, attorney for Appellee is Steven Franklin Griffith, Jr.

Former employee’s ADA claim dismissed as ADA requires employers to reasonably accommodate limitations, not disabilities.

Cynthia A. Smith v. City of Austin, 03-12-00295-CV (Tex. App. – Austin, September 30, 2014)

This is an employment dispute case under the ADA and  Texas Commission on Human Rights Act (“TCHRA”) in which the Austin Court of Appeals affirmed the trial court’s grant of summary judgment for the City of Austin.

Smith was an assistant payroll manager who was terminated after she failed three times within almost a year to timely submit the City’s federal income-tax liability to the IRS, resulting in the City incurring a large tax penalty (which was later abated).  She claims she suffered from a disability, major depression and anxiety disorder which instantaneously limits her concentration and, as a result of the City failing to make a reasonable accommodation, the errors occurred. The City filed a motion for summary judgment which the trial court granted arguing no evidence existed to establish The City had any knowledge she was disabled or regarded as disabled.

Smith timely and properly completed the IRS forms except these three times over a year period.  The court began by holding “[I]t is important to distinguish between an employer’s knowledge of an employee’s disability versus an employer’s knowledge of any limitations experienced by the employee as a result of that disability.” “[T]he ADA requires employers to reasonably accommodate limitations, not disabilities.” Smith made several vague references that her mental illness might affect her job performance, but nothing establishing her illness limited her ability to concentrate or what the limitations might be so that the City knew what to accommodate.  Furthermore, there is no evidence that any doctor placed any limitations on Smith’s work or identified any major life activities that are substantially limited by her mental illness.  And even though after her termination the City explained to the IRS the failure was due to her mental illness, such an explanation is no indication the City knew about it before hand.   The trial court properly granted summary judgment for the City.

If you would like to read this opinion click here. Panel: Justice Puryear, Justice Pemberton and Justice Field. Memorandum Opinion by Justice Puryear.  The attorney listed for the City of Austin is Ms. Chris Edwards. The attorney listed for Smith is Ms. Toni Hunter.

Texas Supreme Court holds firefighter who cannot fight fires is not “disabled”


CITY OF HOUSTON v. SHAYN A. PROLER, 12-1006, –S.W.3d — (Tex. June 6, 2014)

This is a disability discrimination case where the Court held that a firefighter who refuses to fight fires does not have a “disability” under either state or federal law.

Shayn Proler was a captain firefighter with the Houston fire department. At two fire locations, Proler became disoriented and had to be relieved. He was later diagnosed with “global transient amnesia” and reassigned to the fire academy. He contested the reassignment under the terms of a collective bargaining agreement and on administrative appeal won. The City appealed to district court. Proler counterclaimed for disability discrimination under state and federal law. The case went to trial and a jury found for Proler. The court of appeals reversed in part and affirmed in part, but essentially left the jury verdict alone. The City appealed, but essentially only the disability discrimination challenges remained for the Supreme Court.

The Court first held “[a]t the outset, we note that the law prohibiting disability discrimination does not protect every person who desires employment but lacks the skills required to adequately perform the particular job. Lacking the required mental, physical, or experiential skill set is not necessarily a disability. Were the law otherwise, any person who, for instance, wishes to be a ballerina or professional basketball player could routinely sue for disability discrimination if the Bolshoi or the San Antonio Spurs declined employment.”

Under a legal sufficiency challenge, the Court agreed with the City that no evidence existed of a disability. In determining disability, the issue is whether Proler was “unable to perform the variety of tasks central to most people’s daily lives,” not whether he was “unable to perform the tasks associated with [his] specific job.” “Again, if one considers the NBA, the capacity to play professional basketball is an ability; the rest of us do not suffer from a disability because we cannot play at that level. A job skill required for a specific job is not a disability if most people lack that skill.” The evidence solely indicated Proler was removed from a front-line firefighting position only because City decision-makers had received information that Proler had frozen at two fires, and he was therefore perceived to be unable to do his particular job as captain of a firefighting crew. Fighting fires is not a major life activity; it is a job requiring highly specialized skills, unique training, and a special disposition. A reluctance to charge into a burning building is not a mental impairment at all; it is the normal human response. Such a reluctance cannot be characterized as an “impairment,” much less an impairment that substantially limits a major life activity.  Essentially, the only evidence was that Proler could not perform his job, not that he could not perform a major life activity. All of Proler’s evidence that he was psychologically intact worked against him since being so meant he was not limited in any major life activity. The record shows that Proler was reassigned because the City perceived him as unable to perform his specific job as a captain of a firefighting crew, nothing more.

If you would like to read this opinion click here. Opinion by Justice Willett. Attorneys listed for the City of Houston are Mr. David M. Feldman, Ms. Judith Lee Ramsey, Mr. Donald J. Fleming, Mr. John B. Wallace, Mr. Timothy J. Higley, and Ms. Lynette Fons.  The attorney listed for Proler is Mr. David T. Lopez

Injured worker’s claims get partially revived by 4th Court of Appeals.


Jose Luis Pena v. County of Starr, 04-12-00462-CV (Tex. App. – San Antonio, December 18, 2013).

This is an appeal from the granting of a summary judgment in an employment case involving disability, discrimination, retaliation, and FMLA claims which the 4th Court of Appeals affirmed in part and reversed in part.

Pena was hired as an animal control officer by Starr County who was injured on the job. While undergoing treatment it was discovered he had a life-threatening condition and would miss additional work to undergo surgery. Complications arose, and while hospitalized the County terminated his position. At the time of termination he was 58 years old. Pena sued, however, the trial court granted the County’s summary judgment motion. Pena appealed.

As to the FMLA and ADA claims, the County argued Pena did not file a request for FMLA leave before his surgery.  However, the San Antonio Court of Appeals pointed out that that procedure is required for “foreseeable” leave. Pena was only supposed to be gone a week, but complications during the surgery kept him away from work much longer. Pena, through is daughter, informed the County as soon as he felt practical under the circumstances. Pena raised a fact issue as to the timeliness of the notice.  The court also analyzed the relation-back doctrine as to the statute of limitations defense under the FMLA and determined it applied.

As to the other claims, Pena did not point to any evidence he was replaced by a younger employee or that there is a connection to his age. His testimony established he believes he was terminated because of his injury and condition. So, summary judgment was proper for the age discrimination claims.  As far as the disability discrimination claims under Texas law are concerned, the court noted that while the County may have established the back injury was not a disability, the life-threatening cardio disease could have been.  The County did not address this issue, which makes summary judgment improper. Finally, the court agreed with the County that the trial court lacked subject matter jurisdiction for the Worker’s Comp. retaliation claim since sovereign immunity has not been waived for such claims.

If you would like to read this opinion click here.

Burden of establishing disability still remains after ADA amendments says 5th Circuit.


Neely v. PSEG Texas, Limited Partnership No. 12-51074 (5th Cir. November 6, 2013)

This is an ADA case where the 5th Circuit Court of Appeals affirmed a trial court order requiring a finding of disability before any causal link can be established.  Neely was a control-room operator who had several altercations with his supervisor and terminated. He was diagnosed with major depressive disorder and anxiety disorder which lead to his suit. The case went to a jury on discrimination, retaliation, and failure to provide reasonable accommodations under the ADA.  During trial, Neely objected to two jury interrogatories, both of which were predicate questions to the termination and failure-to-accommodate claims and asked whether Neely was “a qualified individual with a disability.” The jury answered “No” to both.  Neely appealed arguing the focus of the ADA amendments in 2008 was to simplify the analysis of disability and have the court focus on whether discrimination exists.

The 5th Circuit analyzed the amendments to the ADA and concluded that while Congress intended to simplify matters, the word “disability” was not removed from the statute and must be established before a causal link can be drawn. In other words, “though the ADAAA makes it easier to prove a disability, it does not absolve a party from proving one.”  While this may appear to be common sense, Neely’s arguments are not unlike those attempted by plaintiffs on a regular basis in such cases.  This case should be kept handy by any lawyer who routinely deals with employment and ADA matters.  Additionally, the court noted the 5th Circuit pattern jury charges have not been altered to accommodate the ADAAA changes, but the trial court did a good job of making the adjustment and the language should be reused.

If you would like to read this opinion click here.

ADA reasonable accommodation requirement not limited to essential job functions says 5th Circuit.

Feist v. State of Louisiana, No. 12-31065 (5th Cir. September 16, 2013).

This is a disability discrimination case under the ADA where the U.S. Court of Appeals for the Fifth Circuit reversed a trial court order granting the State of Louisiana’s (employer) summary judgment motion.

Feist was a former Louisiana assistant attorney general for the Louisiana Department of Justice (“LDOJ”) who alleged she was discriminated against by failing to provide her a free on-site parking accommodation (for osteoarthritis of the knee) and for terminating her after she filed a charge with the EEOC. The LDOJ filed a motion for summary judgment arguing Feist failed to establish how the parking accommodation limited her ability to perform an essential job function and did not have any evidence of a causal link between her EEOC complaint and her termination. After the trial court granted LDOJ’s MSJ, Feist appealed.

The court first held that a “reasonable accommodation” under the plain text of the ADA is not limited to only those tasks necessary for an essential job function. The trial court erred in requiring such a nexus, but the 5th Circuit expressed no opinion as to whether or not the request in this case was reasonable or not. However, Feist failed to establish a causal connection between her EEOC charge and her termination. MSJ evidence established several performance justifications for terminating her which were uncontested and Feist failed to establish a material fact they were pretextual.  As a result, the court reversed the MSJ as to the discrimination claims and affirmed as to the retaliation claim.

If you would like to read this opinion click here.

Simply entering into a drug treatment program does not protect employees under ADA says 5th Circuit.

Shirley v. Precision Castparts Corp. No. 12-20544 (5th Cir. August 12, 2013).

This is an ADA and FMLA case where a terminated employee alleges his drug addiction was a “disability” precluding his termination.

Brian Shirley was a twelve year press operator for Wyman-Gordon Forgings (“W-G”). After becoming addicted to Vicodin after several work related injuries Shirley was given the option of treatment under W-G’s drug-free policy. However, the policy clearly stated that an employee “who rejects treatment or who leaves a treatment program prior to being properly discharged will be terminated.” Shirley did not complete the program and was given a second chance to complete a detoxification and treatment program. He did not complete the second attempt at treatment.  He was then terminated and subsequently filed suit. W-G filed a motion for summary judgment which the trial court granted and Shirley appealed.

The U.S. Court of Appeals for the Fifth Circuit held that the ADA excluded from the definition of a “qualified employee” entitled to ADA protection any employee who is using illegal drugs. The court interpreted this to include the illegal or misuse of prescription drugs. The safe harbor provision of the ADA (which essentially says an individual undergoing treatment for the drug abuse can still be a “qualified” employee) is not applicable because Shirley did not complete the treatment. The exclusion applies to individuals “currently using” drugs, but this includes individuals who used drugs weeks or months before the decision is made, regardless of whether the employee was using at the time of the adverse employment decision. The safe harbor provision applies only to employees who have been drug free for a significant period of time. Merely entering into a program is not sufficient for protection. Therefore his ADA claims fail.  Shirley then argued that he should have been given more time for treatment under FMLA and was not given twelve weeks. However, Shirley was not terminated for taking leave but for failing the detox and treatment. .. twice. The Fifth Circuit rejected a “strict liability” standard adopted by other courts that employees have a right to reinstatement upon returning from leave and Shirley was not “otherwise entitled” to return from leave due to violations of the drug policy.  The court held  that “although denying an employee the reinstatement to which he is entitled generally violates the FMLA, denying reinstatement to an employee whose right to restored employment had already been extinguished—for legitimate reasons unrelated to his efforts to secure FMLA leave—does not violate the Act.” His FMLA claim must therefore fail.

The court seemed a little disturbed by the arguments made by Shirley and focused on the fact he did not complete the required treatment. In relation to Shirley’s arguments, the court used the phrases “strains credulity to the breaking point” and “[h]is logic is flawed beyond cavil.”  However, the court gave due consideration to the arguments and ultimately held summary judgment was proper for W-G.

If you would like to read this opinion click here.