Moss v. Harris Cnty. Constable Precinct One

Decision Date15 March 2017
Docket NumberNo. 16-20113,16-20113
Citation851 F.3d 413
Parties Robert E. MOSS, Plaintiff–Appellant v. HARRIS COUNTY CONSTABLE PRECINCT ONE; Alan Rosen, Constable, Harris County Constable Precinct One; Harris County, Defendants–Appellees
CourtU.S. Court of Appeals — Fifth Circuit

Karen Greer Shropshire, Greer & Shropshire, L.L.P., Dallas, TX, for PlaintiffAppellant.

William S. Helfand, Charles Teilhard Jeremiah, Esq., Chamberlain, Hrdlicka, White, Williams & Aughtry, William S. Helfand, Lewis, Brisbois, Bisgaard & Smith, L.L.P., Charles Teilhard Jeremiah, Esq., Holland & Knight, L.L.P., Bobby Nick Turner, Assistant County Attorney, County Attorney's Office for the County of Harris, Houston, TX, for DefendantsAppellees.

Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Robert E. Moss appeals the district court's grant of summary judgment to Harris County on his discrimination and retaliation claims under the American with Disabilities Act ("ADA") and the Texas Labor Code ("TLC"), and on his First Amendment retaliation claim under 42 U.S.C. § 1983. For the reasons explained below, we AFFIRM.

I. Background

In this wrongful termination case, Moss sued his former employer, Harris County, after Constable Alan Rosen terminated Moss's employment while he was on leave recovering from back surgery. Moss claims that Rosen wrongfully terminated his employment for two unrelated reasons: (1) his disability and (2) his political speech. Prior to his termination in April 2013, Moss had worked as a deputy constable for Harris County Precinct One for sixteen years.

In 2012, Rosen was seeking elected office as Constable for Harris County Precinct One. In August 2012, at least one of Rosen's political opponents informed Moss of a potential chemical leak at a company in which Rosen had an ownership interest. Moss visited the site while off duty, took pictures of barrels that appeared to be leaking hazardous chemicals, and then, in accordance with his job duties, reported the potential chemical leak to the Precinct One Environmental Division. Later that same week, upon the request of his supervisor, Lieutenant Albert Lui, Moss discussed the pictures with the Houston Chronicle newspaper. He also told at least one co-worker that he was not supporting Rosen for constable, and told several co-workers about the potential chemical leak, a possible "cover up," and that Rosen had not completed all of his law enforcement classes.

At some point after the investigation into the potential chemical leak began, Rosen was made aware of the complaint against his company. Deputy Joe Danna, who was one of Rosen's political opponents, claims that, on October 29, 2012, during early voting, Rosen approached him about Moss. Rosen asked why Moss was so upset over "a little chemical spill" that had already been cleaned up, and claimed that Moss was "out of control" and Deputy Danna needed to do something about it. Similarly, according to Moss, a Rosen supporter called Moss and told him not to get involved in Rosen's election bid for constable. Moss understood the extent of his involvement in the constable's race to be the pictures he took evidencing the potential chemical leak.

While all of this was happening, Moss told a Precinct One human resources representative that he needed back surgery to treat a persistent back condition stemming from an earlier job. Moss believed he had sufficient Family and Medical Leave Act (FMLA) time and accrued leave benefits to remain on leave until June 1, 2013. He took leave under the FMLA on November 7, 2012, and remained on leave after his FMLA leave expired. In January 2013, Moss's doctor instructed him and his employer that Moss could not return to work for another six months. During his leave, Moss discussed with Lieutenant Lui the possibility of moving to a light duty position, but there is no evidence that Moss was ever offered a light duty job.

Rosen was eventually elected constable and took office on January 1, 2013. On March 25, 2013, Moss sent a letter to Constable Rosen requesting to retire effective May 31, 2013. In response, on April 16, 2013, Rosen terminated Moss by letter, claiming that Moss had "exhausted all of [his] FMLA comp time, sick time, vacation time and all other acquired time." Moss's termination was reported to the Texas Commission on Law Enforcement as a "general discharge" rather than an "honorable discharge," which Moss disputed but did not appeal. Moss was also denied retirement benefits following his termination.

On May 17, 2013, Moss applied for, and later received, disability benefits under Social Security, testifying he had been permanently disabled as of April 16, 2013, the date he was fired. Just over a year later, he filed this lawsuit against both Rosen, in his individual and official capacity, and Harris County. Moss's Second Amended Complaint alleged breach of contract, disability discrimination in violation of Title I, Title II, and Title V of the ADA, along with analogous TLC provisions, and Section 1983 claims for free speech and due process violations under the First and Fourteenth Amendments of the U.S. Constitution, as well as violations of the Contract Clause of the U.S. Constitution. Moss voluntarily dismissed his claims against Rosen in his individual capacity. Harris County moved for summary judgment, and the district court granted Harris County's motion in all respects. Moss appeals the adverse judgment on the disability discrimination claims under Title I, II, and V of the ADA, analogous TLC claims, and the Section 1983 free speech claim under the First Amendment.

II. Standard of Review

"This court ‘reviews de novo the district court's grant of summary judgment, applying the same standard as the district court.’ " Feist v. La., Dep't of Justice, Office of the Attorney Gen. , 730 F.3d 450, 452 (5th Cir. 2013) (quoting Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003) ). Summary judgment is appropriate if the moving party can show that "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The court also views "all facts and evidence in the light most favorable to the non-moving party." Juino v. Livingston Par. Fire Dist. No. 5 , 717 F.3d 431, 433 (5th Cir. 2013) (citation omitted). However, where the non-movant is the party who would have the burden of proof at trial, that party must point to evidence supporting its claim that raises a genuine issue of material fact. Tran Enters., LLC v. DHL Exp. (USA), Inc. , 627 F.3d 1004, 1010 (5th Cir. 2010).

III. Discussion
A. ADA and TLC Claims
i. Title I Discrimination and Failure-to-Accommodate Claims

Moss maintains that Harris County violated Title I of the ADA when it terminated him while he was on extended leave recovering from back surgery. We affirm the district court's dismissal of Moss's Title I claims because Moss failed to provide evidence showing that he was qualified for his job at the time of his termination.

"The ADA prohibits an employer from ‘discriminat[ing] against a qualified individual on the basis of disability,’ by, among other things, terminating an individual's employment." Delaval v. PTech Drilling Tubulars, L.L.C. , 824 F.3d 476, 479 (5th Cir. 2016) (alteration in original) (quoting 42 U.S.C. § 12112(a) ). "To establish a prima facie discrimination claim under the ADA, a plaintiff must prove: (1) that he has a disability; (2) that he was qualified for the job; [and] (3) that he was subject to an adverse employment decision on account of his disability." E.E.O.C. v. LHC Grp., Inc. , 773 F.3d 688, 697 (5th Cir. 2014) (alteration in original) (quoting Zenor v. El Paso Healthcare Sys., Ltd. , 176 F.3d 847, 853 (5th Cir. 1999) ).

The ADA also "requires an employer to make ‘reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability....’ " Delaval , 824 F.3d at 481 (quoting 42 U.S.C. § 12112(b)(5)(A) ). To prevail on a failure-to-accommodate claim, the plaintiff must show "(1) [he] is a ‘qualified individual with a disability;’ (2) the disability and its consequential limitations were ‘known’ by the covered employer; and (3) the employer failed to make ‘reasonable accommodations' for such known limitations." Feist , 730 F.3d at 452.

A plaintiff can establish that he is "qualified" by showing that "either (1) [he] could perform the essential functions of the job in spite of [his] disability," or "(2) that a reasonable accommodation of [his] disability would have enabled [him] to perform the essential functions of the job." LHC Grp. , 773 F.3d at 697 (quoting Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir.1996) ). "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." Delaval , 824 F.3d at 481. Furthermore, reassignment to a different job may be a reasonable accommodation, but "[t]he plaintiff bears the burden of proving that an available position exists that he was qualified for and could, with reasonable accommodations, perform." Jenkins v. Cleco Power, LLC , 487 F.3d 309, 315 (5th Cir. 2007) (citation omitted); see also Foreman v. Babcock & Wilcox Co. , 117 F.3d 800, 810 (5th Cir. 1997) ("For the accommodation of a reassignment to be reasonable, it is clear that a position must first exist and be vacant.").

Here, Moss failed to provide evidence showing that he was qualified for the job at the time of his termination. Moss argues that his sixteen years of honorable performance as a deputy constable show that he was qualified prior to his initial request for leave and that he remained qualified during his leave. We do not question whether Moss was qualified for his job prior to taking leave, instead the question is whether he was qualified at the time of his termination. See Amsel v. Tex. Water Dev. Bd. , 464 Fed.Appx. 395, 400 ...

To continue reading

Request your trial
90 cases
  • Lumar v. Monsanto Co., CIVIL ACTION NO. 17-13373
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • June 13, 2019
    ...of [his] disability would have enabled [him] to perform the essential functions of the job.’ " Moss v. Harris Cty. Constable Precinct One , 851 F.3d 413, 417 (5th Cir. 2017) (quoting EEOC v. LHC Group, Inc. , 773 F.3d 688, 697 (5th Cir. 2014) ). When a plaintiff asserts discrimination under......
  • Equal Emp't Opportunity Comm'n v. Steel Painters LLC
    • United States
    • U.S. District Court — Eastern District of Texas
    • January 14, 2020
    ...513, 157 L.Ed.2d 357 (2003) ; Patton v. Jacobs Eng'g Grp., Inc. , 874 F.3d 437, 442 (5th Cir. 2017) ; Moss v. Harris Cty. Constable Precinct One , 851 F.3d 413, 417 (5th Cir. 2017) ; Milton v. Tex. Dep't of Crim. Justice , 707 F.3d 570, 572 (5th Cir. 2013). "The ADA seeks to eliminate unwar......
  • Garcia v. City of Amarillo
    • United States
    • U.S. District Court — Northern District of Texas
    • July 22, 2020
    ...accommodation of his disability would have enabled him to perform the essential functions of the job." Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2020) (cleaned up) (quoting LHC Grp., 773 F.3d at 697). "Essential functions" are "fundamental" as opposed to "margi......
  • Sambrano v. United Airlines, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 17, 2022
    ... ... requirement is mandatory. See Fort Bend Cnty. v ... Davis , 139 S.Ct. 1843, 1852 (2019) ... , 261 F.3d 512, 522 ... (5th Cir. 2001); cf. Moss v. Harris Cnty. Constable ... Precinct One , 851 F.3d ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Disability discrimination
    • United States
    • James Publishing Practical Law Books Texas Employment Law. Volume 1 Part V. Discrimination in employment
    • May 5, 2018
    ...Myers v. Hose , 50 F.3d 278, 283 (4th Cir. 1995)) (alterations by Fifth Circuit); accord Moss v. Harris Cty. Constable Precinct One , 851 F.3d 413, 419 (5th Cir. 2017) (“Although taking leave that is limited in duration may be a reasonable accommodation to enable an employee to perform the ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT