William Helfand Secures Significant Appellate Win on Behalf of Texas Municipality in Employment Discrimination Matter

Houston, Texas (August 22, 2023) – Houston and Salt Lake City Partner William (“Bill”) S. Helfand recently secured a significant appellate victory when the U.S. Court of Appeals for the Fifth Circuit affirmed the lower court’s grant of summary judgment in favor of Lewis Brisbois’ client in an employment discrimination matter.

Underlying Facts

As described in a Law360 article, the underlying case involved a plaintiff firefighter who worked for Lewis Brisbois’ client – a Texas municipality. The plaintiff claimed underwent gallbladder surgery almost a decade ago and has suffered from complications since that time. In 2016, the city discovered the plaintiff had asked a colleague for prescription painkillers, which violated Texas law and city policy. The City placed the plaintiff on probation and warned the plaintiff that the plaintiff could be fired for any future violations of the municipality’s policies. The plaintiff later alleged he then was passed over for promotions. In 2019, the plaintiff informed his people at the City he was going to file a charge with the U.S. Equal Employment Opportunity Commission based on disability and age discrimination after which the plaintiff went to city hall while off-duty – a violation of his probation – allegedly to obtain documents for his complaint. The City Secretary complained that she felt threatened by the plaintiff and the police responded to city hall, where the found the plaintiff in what they believed to be an impaired state. The plaintiff was offered the opportunity to take a urine drug-screen or horizontal eye gaze nystagmus test to determine whether, also in violation of his probation, the plaintiff was impaired by drugs or alcohol. The plaintiff refused. After an investigation of the incident, the Director of Emergency Services fired the plaintiff six weeks later.

Plaintiff’s Claims and Lower Court’s Grant of Summary Judgment

The plaintiff filed discrimination and retaliation claims, alleging that Lewis Brisbois’ client violated the Americans with Disabilities Act, the Rehabilitation Act, and the Age Discrimination in Employment Act by, among other things, firing him after he threatened to sue for discrimination. In response, the municipality contended it fired the plaintiff because he violated the terms of his agreed probation, including being intoxicated. The trial court granted the municipality’s motion for summary judgment after concluding the plaintiff could not present evidence to link his firing to any legally protected activity. The plaintiff appealed.

The Appeal

On appeal, a three-judge panel affirmed the municipality’s summary judgment win. Although the panel acknowledged the short time period between when the plaintiff told his employer that he was going to sue for discrimination and his firing was enough to suggest causation, the plaintiff failed to rebut the city's nondiscriminatory reason for firing him. Specifically, a city official had told the plaintiff he could be fired for violating the city policy, and the city later had reason to believe the plaintiff had done so by coming to the city hall off-duty, frightening the City Secretary, and being intoxicated. The investigative records showed the municipality interviewed nine people before the Director of Emergency Services decided to fire the plaintiff. Accordingly, the Fifth Circuit ultimately determined that the lower court properly granted summary judgment in favor of Lewis Brisbois’ client.

The plaintiff petitioned the Court of Appeals for rehearing, which was denied.

Mr. Helfand serves as vice-chair of Lewis Brisbois’ Labor & Employment Practice. His practice covers a wide range of litigation, arbitration, and dispute resolution. Based on his demonstrated problem-solving approach, both private and public entity clients of all types reach out to him to handle their most difficult legal problems.

Read the full Law360 article, titled, “5th Circ. Won't Revive Ex-Firefighter's Disability Bias Suit,” here.