ROBERT E. MOSS, Plaintiff - Appellant
HARRIS COUNTY CONSTABLE PRECINCT ONE; ALAN ROSEN, Constable, Harris County Constable Precinct One; HARRIS COUNTY, Defendants-Appellees
from the United States District Court for the Southern
District of Texas
HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
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.
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.
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
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.
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.
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.
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.
Standard of Review
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).