CITY OF HOUSTON, Petitioner, v. Shayn A. PROLER, Respondent.
No. 12-1006.
Supreme Court of Texas.
June 6, 2014.
Rehearing Denied Aug. 20, 2014.
437 S.W.3d 529
Justice WILLETT delivered the opinion of the Court.
and each member of the Panel in this Arbitration hereby confirm that, as of the date below, they have each: (i) fully disclosed all conflicts of interest and potential conflicts of interest with respect to the designation of the members of the Panel in this Arbitration; and (ii) knowingly waived any and all conflicts of interest and/or potential conflicts of interest relating to the designation of the members of the Panel in this Arbitrаtion (emphasis added).
Thus, the parties waived conflicts and potential conflicts for what was fully disclosed. We express no opinion as to whether parties may contractually agree to forego the full disclosure requirement. Because the waiver clause was conditioned on a full disclosure that did not occur, Tenaska has not waived its partiality challenge.
As a final matter, we reiterate that our holding should not be read as indicating that Stern17 was actually biased. Reasonable people could debate whether Stern‘s relationship with Nixon Peabody was likely to affect his partiality in the arbitration. But such a debate is for the parties after a full disclosure—which did not occur here. See TUCO, 960 S.W.2d at 638.
III. Conclusion
We have long held that an arbitrator is evidently partial, and an award may be vacated, if the arbitrator fails to disclose facts which might, to an objеctive observer, create a reasonable impression of the arbitrator‘s partiality. Id. at 630. As we have observed, the most capable arbitrators often have ties to the business community. Id. at 639. Regardless of whether such ties demonstrate actual bias here, Stern‘s failure to disclose the extent of his relationship with LexSite and the two lawyers who represented Ponderosa in this arbitration might yield a reasonable impression of the arbitrator‘s partiality to an objective observer. Thus, Stern had a duty to disclose the additional information, and his failure to do so constitutes evident partiality. Accordingly, we reverse the court of appeals’ judgment and reinstate the trial court‘s order vacating the award and requiring a new arbitration.
David T. Lopez, David T. Lopez & Associates, Houston, TX, for Respondent.
Justice WILLETT delivered the opinion of the Court.
Does a firefighter who refuses to fight fires have a “disability” under either state or federal law? We answer no and therefore reverse the court of appeals’ judgment in part.
A. Background
Shayn Proler was a firefighter with the Houston fire department. He rose to the
In March 2006, Proler arrived at a house fire and was unable to put on his firefighting gear. He was unable to take orders and had difficulty walking. Someоne escorted him to a house next door and sat him down on a bucket. He went to a hospital and was diagnosed with “global transient amnesia.” Another captain on the scene reported that Proler did not appear to be aware of his surroundings and that he was either frightened or in the throes of an acute medical emergency. A letter from another officer to the assistant chief requested an investigation of Prolеr to address “this possibly dangerous situation.” Shortly thereafter, an assistant chief again assigned Proler to the training academy. The City requested a follow-up medical evaluation from one of Proler‘s doctors, Dr. Ferrendelli, who noted an episode of global transient amnesia but approved Proler‘s return to work.
Under the terms of a collective bargaining agreement, Proler filed an administrative grievance seeking reassignment to a fire suppression unit. On administrative appeal, a hearing examiner sided with Proler, who was reassigned to fire suppression. The City appealed this decision to the trial court, alleging jurisdiction under the Declaratory Judgments Act1 and
Proler counterclaimed for disability discrimination under federal and state law.
The trial court granted Proler‘s plea to the jurisdiction, concluding that it lacked jurisdiction over the City‘s administrative appеal. The disability claim proceeded to trial. The jury found that the City had discriminated against Proler in reassigning him to the training academy after the March 2006 incident but awarded no damages. The trial court rendered a judgment in favor of Proler that enjoined the City from further acts of discrimination and awarded Proler attorney fees of approximately $362,000, together with costs.
The court of appeals reversed the order granting Proler‘s plea to the jurisdiction insofar as the City (1) claimed the hearing examiner exceeded his jurisdiction by awarding overtime compensation, and (2) requested declaratory judgment relief on this issue.2 The court of appeals also reversed an award of attorney fees to Proler under the Declaratory Judgments Act, reasoning that this award may have been based on the trial court‘s conclusion that it lacked jurisdiction over the City‘s appeal of the hearing examiner‘s decision.3 The court of appeals, with one justice dissenting, affirmed the trial court‘s judgment awarding injunctive relief and attorney fees to Proler on his disability discrimination claim.4
B. Discussion
Proler does not challenge that portion of the court of appeals’ judgment (1) reversing the trial court‘s order dismissing the City‘s claim to the extent the City claimed the hearing examiner exceeded his jurisdiction by awarding overtime сompensation, and (2) reversing the trial court‘s
This leaves Proler‘s claims for disability discrimination. Proler sued under the federal Americans with Disabilities Act (ADA)6 and under
At the outset, we note that the law prohibiting disability discrimination does not protect every person who desires employment but lacks the skills required to adequately perform the particular job. Lacking the required mental, physical, or experiential skill set is not necessarily a disability. Were the law otherwise, any person who, for instance, wishes to be a ballerina or professional basketball player could routinely sue for disability discrimination if thе Bolshoi or the San Antonio Spurs declined employment. Under federal law, the applicant must be a “qualified individual,”8 meaning an individual who “can perform the essential functions of the employment position.”9 Texas law similarly extends to “a physical or mental condition that does not impair an individual‘s ability to reasonably perform a job.”10 While we might question whether Proler could reasonably perform the firefighter job, we do not pursuе this inquiry because the City does not make this argument here, and the jury was not asked to decide this question.
But the City does argue that Proler did not suffer from a “disability” and that he was not reassigned on account of a disability. We agree with the City that no evidence supports the jury findings on these issues. In reviewing the legal sufficiency of the evidence, the test “must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.”11 A challenge to legal sufficiency will be sustained if the evidence offered to establish a vital fact does not exceed a scintilla.12 Evidence does not exceed a scintilla if it is “so weak as to do no more than create a mere surmise or suspicion”13 or “so slight as to make any inference a guess.”14
Generally, state and federal law prohibit adverse personnel actions by an employer
There is no evidence from which a reasonable and fair-minded jury could conclude that Proler was disabled. The jury heard evidence of two incidents where Proler was allegedly unable to provide useful help to his firefighting team during actual fires at two residential buildings. Being unable to set aside the normal fear of entering a burning building is not a mental impairment that substantially limits a major life activity. In determining disability, the issue is whether Proler was “unable to perform the variety of tasks central to most people‘s daily lives,” not whether he was “unable to perform the tasks associated with [his] specific job.”18 Or as we have stated, the issue is not whether the plaintiff can perform his particular job, but whether his impairment “severely limit[s] him in performing work-related functions in general.”19 Again, if
Proler does not argue that he in fact suffered from a disability, but argues instead that he was perceived as suffering from a disability. The charge, consistent with federal and state law, defined a disability to include “being regarded” as having a disability.21 But there is no evidence from which a reasonable and fair-minded jury could find that the City perceived Proler to be suffering from a mental impairment that substantially limited a major life activity. The evidence was entirely to the contrary—indicating Proler was removed from a front-line firefighting рosition only because City decision-makers had received information that Proler had frozen at two fires, and he was therefore perceived to be unable to do his particular job as captain of a firefighting crew. Even Proler‘s mother agreed that the department acted properly in removing him from the scene of the second fire.
Fighting fires is not a major life activity; it is a job requiring highly specialized skills, unique training, and a special disposition. A district captain testified without contradiction that firefighting is one of the world‘s most dangerous jobs, that firefighters must perform in “IDLH” conditions—immediately dangerous to life and health—and that Houston firefighters had died in the line of duty “quite a lot in the last ten years.” He explained that all firefighters must learn to overcome an instinctive disinclination to go into a fire, stating that “everything ... in your person is screaming: Get out, get out, get out, go the othеr way.” A reluctance to charge into a burning building is not a mental impairment at all; it is the normal human response. Such a reluctance cannot be characterized as an “impairment,” much less an impairment that substantially limits a major life activity, if it does not limit “the ability of an individual to perform ... as compared to most people in the general population.”22
Proler testified that he suffered from depression for years. He tеstified he had been treated for depression before he started working for the fire department and may need treatment for the rest of his life. But there is no evidence that the City perceived Proler to suffer from an impairment that substantially limited his ability to perform a major life activity such as thinking or performing work-related functions in general. On this record, to find otherwise does not rise above the level of mere surmise or suspicion. In fact, the City reassigned him to another job that
Even assuming that Prоler‘s depression or other medical disorder interfered with a major life activity, the record yields no evidence that he was reassigned because of this condition and hence was discriminated against on account of a disability. There is no evidence that the City was aware of Proler‘s treatment by Dr. Raichman or other physicians for depression. Trevino, the official who reassigned Proler, testified that he had no knowledge of Proler‘s history of depression until trial preparation years after the reassignments. The record is clear that Proler was reassigned twice to the training academy because (1) he allegedly failed to perform his firefighting duties during a fire in 2004, and (2) he indisputably failed to perform his duties during a fire in 2006. The record is devoid of evidence that the City made those reassignments because it perceived Proler to be suffering from a psycholоgical impairment rendering him unable to perform a major life activity.
Instead, the record shows that Proler was reassigned because the City perceived him as unable to perform his specific job as a captain of a firefighting crew. As to the reassignment in 2004, Proler was asked “how did that come about,” and answered that the reassignment occurred in response to a specific allegation by another employeе “that I didn‘t go inside an apartment fire with the rest of the crew.” As to the March 2006 reassignment, Proler conceded that he had been unable to perform his duties at a house fire and that Trevino had reassigned him because of this specific incident. Trevino had received reports that Proler was not “aware of his surroundings or the environment,” that “[e]ither he was scared or there was an acute medical emergency that consumed him,” аnd that “[i]f Captain Proler has some type of medical or psychiatric condition that precludes his safe behavior at a fire, then he should be removed from emergency response.” A district chief had received several reports that Proler seemed to be afraid to enter the fire situation. Proler‘s own mother testified that his behavior at the second fire presented “a real danger” to her son “and to anybody
C. Conclusion
The court of appeals’ judgment remains in effect insofar as it (1) reversed the trial court оrder dismissing the City‘s claim to the extent the City claimed the hearing examiner exceeded his jurisdiction by awarding overtime compensation and requested declaratory relief relative to this claim, and (2) reversed the trial court‘s award of attorney fees to Proler related to the City‘s declaratory judgment action. We remand the case to the trial court for further proceedings on the City‘s claim. We reverse the court of аppeals’ judgment insofar as it affirmed the trial court‘s judgment granting injunctive relief and attorney fees on Proler‘s disability discrimination claims, and render a take-nothing judgment on those claims.
Justice BROWN did not participate in the decision.