Fifth Circuit Upholds Termination of Texas Firefighter

The Fifth Circuit Court of Appeals has upheld the termination of a Hunstville, Texas firefighter. Jason January claimed his termination in 2019 was disability discrimination and retaliation under the Americans with Disabilities Act, the Rehabilitation Act, and the Age Discrimination in Employment Act.

The case is one we covered when it was filed, and again when it was decided by the US District Court for the Southern District of Texas. The Fifth Circuit explained the complex facts as follows:

  • Almost a decade ago, Huntsville, Texas firefighter Jason January had gallbladder surgery. It did not go well, and ever since, January has needed medication and treatment for complications. And for years, both the City and its fire department accommodated him.
  • But in 2016, not long after his surgery, the City caught January asking a fellow employee for his leftover prescription painkillers. Because such a request violated city policy, Huntsville placed January on probation, and warned that future violations could lead to his termination.
  • Unrelatedly, in January 2018, January submitted—and then rescinded—a letter of resignation. The fire department accepted him back, but passed him over for open officer positions, and declined to reinstate him to a trainer position he’d previously held. January, incensed, met with City employees in November 2018. At that meeting, he accused the City of discriminating and retaliating against him on account of his age and disability in not selecting him as an officer and by removing him as a trainer. He also made clear that he was considering suing the City for discrimination. The City, with the help of outside counsel, began to investigate. After several months without resolution, January, in February 2019, told the City that he was going to complain to the EEOC.
  • Then, a month later, January went to Huntsville’s City Hall to make copies for his EEOC complaint. The parties tell different tales of how that visit went. Per the City, employees immediately suspected that January was somehow intoxicated. Employees reported that January slurred his words, was “partially incoherent,” and seemed unlike himself. Despite that, Brenda Poe, the city secretary, helped January make his copies. But according to her, that did not go well—January, she said, boxed her in and blocked the copy room exit, stating all the while that “when all of this comes out, they’re going to be sorry that they messed with me.” Poe, feeling threatened, escaped past him when she could and ran to hide in the women’s bathroom nearby.
  • January tells it differently. On the day in question, he claims he was suffering from sleep deprivation and hypoglycemia (which, he notes, he’d told the City months before could read as intoxication). And when he went to the copy room with Poe, he did not box her in, but rather stood patiently as he waited for his copies. Further still, his comment that Poe took as threatening was directed at the City with regards to his lawsuit, not to Poe in particular.
  • No matter the cause, January eventually went to the City Manager’s office with several City officials. While there, officials repeatedly asked to drug test January, which he declined to allow. Officials refused to let January drive himself home and finally let him go only when his wife eventually arrived.
  • The City placed January on administrative leave and investigated. Two weeks later, it fired him.
  • Director of Public Safety Kevin Lunsford, the decisionmaker, explained that January was fired because: 1) despite a drug test taken the next day showing no intoxication, there remained a “high probability” that January was impaired at City Hall; 2) January was insubordinate because he refused to leave City Hall when told to do so; 3) January’s lack of cooperation and intoxication harmed the City’s reputation; and 4) January was disrespectful in intimidating and scaring Poe. Given January’s past warning that any further violation could end his employment, the City terminated him. And, at roughly the same time, it informed January that the investigation into his discrimination complaint determined that it lacked merit.

The trial court granted summary judgment in favor of the city, prompting January to appeal to the Fifth Circuit. In a 2-1 decision, the three-judge panel upheld the trial court, ruling as follows (citations and quotation marks removed to facilitate reading):

  • January asserts claims of retaliation under the ADA, the Rehabilitation Act, and the ADEA. All three prohibit an employer from discriminating against any individual because such individual has opposed any act or practice made unlawful by the Acts or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Acts.
  • Since January admits only circumstantial evidence of retaliation, to succeed on his claims he must satisfy the burden-shifting McDonnell Douglas test.
  • First, he must make out a prima facie case by showing (1) engagement in protected activity, an adverse employment action, and (3) a causal connection between the two. If he does so, the City must come forward with a legitimate, non-discriminatory reason for the adverse action. Once it does, January must then show sufficient evidence that the proffered reason is a pretext for retaliation.
  • The parties contest only whether January established a causal connection between his acts and his termination, and whether he showed sufficient evidence that the City’s proffered legitimate reason for his firing was pretextual.
  • The court below first concluded that January did not establish a causal connection because he failed to show that Lunsford knew that he intended to file charges with the employment commissions when he was fired. That doomed January’s prima facie case.
  • But as January rightly argues, that was error: the short time between his protected acts and his firing is itself enough to show causation.
  • While generally, a causal link is established when the evidence demonstrates that the employer’s decision to terminate was based in part on knowledge of the employee’s protected activity it can also be established simply by showing close enough timing between the two events.
  • We’ve repeatedly held periods of a few months sufficient to satisfy causation in a prima facie case.
  • Here, a mere six weeks passed between January’s second protected activity (telling the City Manager he was going to file an EEOC complaint) and his firing. That gap does the trick. January successfully demonstrates a prima facie case of retaliation.
  • Moving on, January does not contest that the City produced legitimate, non-retaliatory justifications for his firing. So, he must then show the City’s reasons—several city policy violations in March 2019—were mere pretext. The district court found that he failed to do so because the record supported Director Lunsford’s explanation.
  • First, it explained that Lunsford concluded that there was a high probability that January was impaired after reference to another officer’s lengthy investigation report. That officer, noted the court, interviewed nine people, including January, and had over two decades’ familiarity with January.
  • Next, it explained that even if January believed he wasn’t being insubordinate, he nevertheless failed to point to any evidence that Lunsford said he was insubordinate only as pretext.
  • Then, it found that the record showed Poe (the city secretary) believed January was acting in a threatening manner towards her and so it was reasonable for Lunsford to act on that belief.
  • And finally, it said there was nothing wrong with the city issuing January an initial complaint, and then including additional policy violations after an investigation. At base, the City had merely warned January that additional policy violations would result in termination, and then acted consistently with that warning. January’s claim therefore failed.
  • To survive summary judgment now, January must show that his protected act was a “but for” cause of his termination.
  • Beyond this temporal proximity, January produces scant evidence of pretext and retaliation. But it is not per se required that he do so. Indeed, in an appropriate case, a factfinder may infer the ultimate fact of retaliation from the falsity of the employer’s explanation.
  • As for his alleged intoxication, January starts by pointing to an officer bodycam video of his visit to city hall. In this video, he claims he looks just fine, with normal speech, rational discussions, steady walking, and repeated denials that he’d taken medication.
  • What the video does show is that several officials told January that he seemed to be having an issue beyond a mere lack of sleep, and repeatedly requested that they be allowed to check him for signs of chemical influence. While January declined time and again and insisted he was fine, the video does little to dispel any impression that officials on the scene believed to the contrary.
  • January also overstates whether the video shows him looking just fine—thanks to the camera’s angle, we see only fleeting glimpses of him. Indeed, when he gets up to leave, he is shown for little more than six seconds. The video does not show him walking out or how he gets to his wife’s car. All told, the video does not cast doubt on Lunsford’s conclusions and provides no evidence that his conclusion was pretextual.
  • All told then, beyond temporal proximity, January produces no evidence that Lunsford’s reasoning concerning his intoxication was false (such that he was not actually intoxicated at the time) or pretextual (such that January’s protected activities were the real reason for his firing). We have said temporal proximity isn’t enough. Nothing January provides makes the inferential leap to retaliation a rational one.
  • Because he failed to rebut this proffered justification for his termination, summary judgment was proper.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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