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Moss v. Harris County Constable Precinct One

United States Court of Appeals, Fifth Circuit

March 15, 2017

ROBERT E. MOSS, Plaintiff - Appellant
v.
HARRIS COUNTY CONSTABLE PRECINCT ONE; ALAN ROSEN, Constable, Harris County Constable Precinct One; HARRIS COUNTY, Defendants-Appellees

         Appeal from the United States District Court for the Southern District of Texas

          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. ...


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