Robert Moss v. Harris Cty Constable Precinct, et a
851 F.3d 413
| 5th Cir. | 2017Background
- Moss, a 16‑year deputy constable, took FMLA leave beginning November 7, 2012 for back surgery and remained off work; his doctor said he could not return until about July 2013.
- While off duty in 2012 Moss reported a suspected chemical leak at a company in which elected Constable Rosen had an ownership interest and spoke to a supervisor and the Houston Chronicle about the matter; he also told co‑workers he did not support Rosen.
- Rosen was elected and, on April 16, 2013, terminated Moss by letter stating Moss had exhausted leave; Moss had previously sent a retirement letter effective May 31, 2013.
- Moss received Social Security disability benefits effective April 16, 2013, and sued Rosen (official and individual capacity) and Harris County alleging ADA (Titles I, II, V), analogous Texas Labor Code claims, and §1983 First Amendment retaliation. He later dismissed individual‑capacity claims against Rosen.
- The district court granted summary judgment for Harris County; the Fifth Circuit affirmed, finding (1) Moss was not a qualified individual under the ADA at termination, (2) Title II does not create employment‑discrimination claims, and (3) Moss failed to show causal link for a First Amendment retaliation claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Title I disability discrimination / failure to accommodate | Moss argues he was disabled but still qualified (limited leave through May 31, 2013) and could be accommodated (limited leave or light‑duty). | Harris County argues Moss was medically unable to perform essential job functions at termination and no reasonable accommodation existed or was shown available. | Affirmed: Moss was not a "qualified individual" at termination and failed to identify a reasonable accommodation or available light‑duty position. |
| Title V (ADA) retaliation | Moss contends retaliation claims need not show he was "qualified." | County contends retaliation under ADA requires the plaintiff be qualified, consistent with discrimination framework. | Affirmed: Plaintiff must show he was qualified; failure to do so defeats ADA retaliation claim. |
| Title II applicability | Moss argues Title II should apply when Title I does not reach an official‑capacity actor. | County argues Title II does not create an employment‑discrimination cause of action; Title I covers employment and Rosen (official capacity) is an agent of the County. | Affirmed: Title II does not provide an employment discrimination remedy; no narrow exception adopted. |
| §1983 First Amendment retaliation | Moss asserts he was fired for political speech opposing Rosen (talks with co‑workers). | County contends much of Moss’s speech was pursuant to his official duties (not protected) and there is no evidence Rosen knew of or retaliated for Moss’s political conversations. | Affirmed: Speech to supervisors/newspaper was pursuant to job (unprotected); no evidence of causal connection between protected political talk and termination. |
Key Cases Cited
- Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476 (5th Cir.) (employer not required to provide indefinite leave as reasonable accommodation)
- E.E.O.C. v. LHC Group, Inc., 773 F.3d 688 (5th Cir.) (elements of an ADA prima facie discrimination claim)
- Lane v. Franks, 134 S. Ct. 2369 (2014) (speech pursuant to official duties is not protected by the First Amendment)
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (public‑employee speech made pursuant to job duties is unprotected)
- Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016) (government employer may not discharge an employee for perceived political activity)
- Jenkins v. Cleco Power, LLC, 487 F.3d 309 (5th Cir.) (plaintiff must show an available vacant position for reassignment accommodation)