In this disability-discrimination case, the trial court entered judgment on the jury’s verdict in favor of the employee. The court of appeals reversed, holding the employee offered no evidence he was terminated “because of’ his congestive heart failure. We conclude the court of appeals erred by treating the employee’s heart condition as his only disability. The evidence, viewed in light of the jury charge, supports a finding that the employee was terminated because of a different disability: urinary incontinence. We reverse the court of appeals’ judgment and remand to that court for further proceedings.
On August 30, 2011, after the bus dropped off the only student, Green asked Barcena to stop at a gas station so Green could use the.bathroom. Barcena agreed but then turned into a residential area instead of towards the gas station. Green repeated his request, ultimately begging Barcena to stop, but Barcena asked him to wait until the next scheduled stop. Green could not wait and involuntarily urinated in his pants. Green again asked Barcena to stop. When Barcena complied, Green concealed himself behind the bus doors and finished urinating' into an empty water bottle. Green’s pants were wet, but he had not wet the seat or elsewhere on the bus. At. the next scheduled stop, Green helped a wheelchair-bound student board the bus, secured the wheelchair’s straps, and later released the straps when the bus reached its destination. Green denied that he ever touched the student.
Barcena reported the incident to their supervisor, who notified DCS’s area director, Dennis Johnson. Green and Barce-na provided written statements about the incident to Johnson. On September 16, Johnson terminated Green’s employment. Johnson explained in, a termination letter that he fired Green because Green “engaged in unprofessional conduct while on a DCS school bus,” admitted to “urinating on [himself] and in a water bottle while onboard the school bus,” and “failed to protect the health and safety of the students boarding at [the] next scheduled stop from exposure to bodily fluids.” Green unsuccessfully appealed his termination through DCS’s grievance process. Green then initiated this lawsuit, alleging DCS terminated his employment because he was disabled.
During a six-day trial, the jury heard testimony about the termination process, the reasons for DCS’s decision, congestive heart failure, the drug Green was taking, and urinary incontinence. Green testified that, before his assignment to Barcena’s bus, other drivers accommodated his urinary issues by taking him to a public restroom and’ informing DCS dispatch about the unscheduled stops. DCS never disciplined the other drivers for this conduct. One of those drivers, Reverend Clyde Strickland, testified that Green said he took medication that sometimes caused an urgent need to urinate.
Under the Texas Labor Code, an employer “commits an unlawful employment practice” if it discharges an individual “because of ... disability.” Tex, Lab. Code § 21.051(1). At trial, the parties agreed that, to prevail on his disability-discrimination claim, Green must prove (1) he has a disability, (2) he was qualified for the 'job, and (3) he suffered an adverse employment decision because of his disability. See Davis v. City of Grapevine,
The parties also agreed—and the trial court instructed the jury—that Green sat
The court of appeals reversed and rendered a take-nothing judgment, concluding there was no evidence that DCS fired Green “because of’ his disability. The court reasoned that, even if the evidence established “that DCS terminated Green because he experienced incontinence while he was on the bus, there still must be some evidence that [Green’s] disability caused the incontinence.”
Green says the court of appeals erred because Green’s urinary incontinence was “itself a disability,” as well as “a side effect of other disabilities and of Green’s medications.” According to Green, the court erred in holding that “the disability at issue here is congestive heart failure,” id. at 451 n.l,
We agree with Green that the court of appeals erred by concluding that the only disability the jury could have found was Green’s heart condition. Under the Texas Labor Code, a disability includes any “physical impairment that substantially limits at least one major life activity.” Tex. Lab. Code § 21.002(6). A “major life activity” includes activities like “working,” but also “the operation of a major bodily function, including ... functions of the ... bladder.” Id. § 21.002(11-a). Green’s urinary incontinence would qualify as a disability if it substantially limited his bladder function or his ability to perform work-related functions. Green argues that his incontinence constitutes such a disability, and DCS terminated him “because of’ that disability.
DCS responds that Green waived any argument that his incontinence is a disability because that argument was “neither tried to the jury nor argued to the court of appeals.” We disagree, as the jury charge squarely presented the issue to the jury. The parties agreed—and the trial court instructed the jury—that Green had a disability, but they left it to the jury to decide what that disability was. Specifically, the charge explained that Green claimed that DCS “terminated his employment because of his disabilities, the side effects of his disabilities, and/or the side effects of the medications he takes to treat his disabilities.” It then explained that DCS “denies” Green’s claims and contends that Green’s “disabilities did not cause him to urinate on the school bus.” Finally, it explained that, regardless of any disabilities, DCS contends that it “had legitimate non-discriminatory reasons for its decisions and actions” because Green’s “acts and omissions after urinating on the school bus warranted the termination of his employment.”
As worded, the jury charge did not forbid the jury from finding that Green’s urinary incontinence was itself a disability. To the contrary, consistent with Green’s argument that he suffered from multiple disabilities, the charge referred to “disabilities” in the plural, leaving it to the jury to determine which of his conditions was a disability, and if so, whether DCS terminated him “because of’ that disability. Consistent with the charge, Green’s counsel argued in closing that the jury should conclude that Green was fired because of his incontinence—a medical condition—as opposed to any other proffered reason: “So if [DCS] contends that no medication and no medical condition caused Mr. Green to [] urinate on himself, why haven’t.they told you why they think he urinated on himself? I’ll tell you why, they can’t. Because they know a grown man does not urinate in public at work unless there’s a medical reason for it.”
Even if Green did not expressly “argue” that his incontinence was itself a “disability,” we do not agree that he waived that argument. First, before the court of appeals, Green argued that DCS was aware that he had a medical condition that caused him to urinate due to a “fluid pill” he was taking. He also stated several times that he was fired because of the “inconti
DCS next contends that Green cannot argue that his incontinence was itself a disability because he submitted no evidence that he suffered from- “disability-level chronic incontinence.” See Scavetta v. Dillon Cos.,
Finally, DCS argues that Green cannot show DCS terminated him “because of’ his incontinence because he provided no evidence that any DCS “deci-sionmaker” knew he suffered from that condition. DCS acknowledges Green’s testimony that at least three DCS bus drivers knew of his incontinence, but says their knowledge is irrelevant because they were not the “decisionmaker who terminated Green’s employment,” and they did not share their knowledge with any deci-sionmakers. Green, however, testified that Johnson, the relevant decisionmaker for DCS, knew Green had a medical condition that caused involuntary urination and that Green told Johnson he “was taking a fluid pill” that caused him, to lose bladder control. -Green also told his original supervisor he was taking a diuretic.
In any event, the trial court’s charge instructed the jury that, for-purposes of establishing that DCS “knew of his disability,” DCS could act “through its officers and employees,” not just through its “deci-sionmakers.” DCS did not object to this instruction, so we must measure the sufficiency of the evidence in light of the jury instruction. Romero v. KPH Consol., Inc.,
DCS conceded, and the jury was instructed, that Green was a qualified individual with a disability. The jury’s task
Accordingly, we grant the parties’ petitions for review, and without hearing oral argument, Tex. R. App. P. 59.1, we reverse the court of appeals’ judgment and remand to that court for consideration of issues it did not reach.
Notes
. In his brief, Green also argues in broader terms that the court of appeals erred by requiring him to prove "the cause of [his] disability” or "why he had a disability.” According to Green, the court erred because the law does not require a disability-discrimination plaintiff to prove what caused his disability. See Navarro v. Pfizer Corp.,