HOUSTON – A Texas appeals court has upheld a lower court’s decision to throw out the disability discrimination, harassment and retaliation action of a man who claimed he was treated unfairly and later fired by his employer, for taking medical leaves of absence and bereavement leave.
On Aug. 15, Court of Appeals for the First District of Texas justices Terry Adams, Amparo Monique Guerra and April L. Farris unanimously upheld the 125th District Court of Harris County, Texas’s ruling, in Jonathan Johnson’s action versus Capstone Logistics, LLC.
Guerra wrote the Court’s opinion in this case.
“Johnson began working for Capstone in January 2018 as a shift supervisor. Johnson contends that while working on May 15, 2018, he began experiencing severe dizziness and a headache. He proceeded to the emergency room, where the physician advised him that his blood pressure was extremely high and that he was at risk for a stroke. After medication and monitoring, the physician released Johnson with instructions to follow up with his primary care physician. He advised Johnson not to return to work until his primary doctor made an assessment. That same day, Johnson advised his supervisor, Jeff Javorsky, of the physician’s instructions and requested time off. Johnson’s primary care physician referred him to a cardiologist, who he saw a few days later. Ultimately, Johnson’s cardiologist released him to return to work on May 24, 2018,” Guerra said.
“According to Johnson, when he returned to work, his coworkers advised him that during a pre-shift meeting, a shift supervisor, Brian Polone, stated that ‘he planned to do whatever he had to do to make Mr. Johnson’s blood pressure go up so high that he’d leave and not return.’ Johnson contends he reported this to Javorsky, who did nothing. When Johnson continued to experience dizziness and headaches, he returned to his primary doctor on June 7, 2018, who kept Johnson off work until he could see his cardiologist on June 11, 2018. Johnson alleges that after providing his June 7, 2018 doctor’s note to Javorsky, Javorsky ‘told Mr. Johnson that he needed to figure out how his shifts were going to be covered,’ that he ‘was tired of dealing with his issues,’ and ‘abruptly hung up on Mr. Johnson.”
Johnson returned to work on June 11, 2018. Two days later, he reported dizziness and headache to Javorsky “following a heated verbal confrontation with Mr. Johnson’s subordinate employee and shift lead, Kenneth Malveaux.”
According to Johnson, Malveaux began “yelling,” “cursing,” and “shouting” at him when he needed to leave a loud work area to speak with a client. However, Johnson completed his shift that day.”
“On June 14, 2018, Johnson experienced ‘extremely high’ blood pressure and continued to experience severe dizziness and headache. He reported these concerns to Javorsky and requested off work. The following day, Johnson notified Javorsky that he was feeling better and would report to work that day. According to Johnson, in response, Javorsky ‘told Mr. Johnson to stay home and that he was being suspended for his medical absences.’ Javorsky advised Johnson to call in to the office the following Monday. Johnson contends that he made complaints to Capstone’s human resources department concerning Javorsky’s comments on June 15, 2018. Specifically, Johnson alleges that he reported Javorsky’s ‘adverse comments and actions regarding his medical condition, disability, and age’ as well as ‘Javorsky’s complaints about [Johnson’s] request to accommodate his medical condition and his suspension for absences related to his medical condition.’ Johnson also reported the shift supervisor’s comments about his intent to increase Johnson’s blood pressure, his report of that comment to Javorsky and Javorsky’s inaction. Johnson outlined these complaints in an e-mail titled ‘Statement’ that he sent to human resources on June 15, 2018,” Guerra stated.
“On June 18, 2018, Johnson called Javorsky as instructed. According to Johnson, Javorsky advised Johnson that he had been terminated for missing too much work. Immediately thereafter, Johnson contacted human resources and spoke with Patricia Boyd, who confirmed Johnson was terminated for excessive actions. Johnson pointed out that his absences were due to his medical condition, which he had previously reported to his supervisor and human resources. Johnson also noted his prior complaints of ‘harassment, discrimination and retaliation’ from Javorsky, which he contended were the result of his request for accommodation for his medical condition. At that time, Johnson requested a transfer to another facility, but Boyd advised that she needed to investigate such an option. Johnson claims that Boyd compared attendance and medical records submitted by Javorsky with Johnson’s records. She reinstated his employment and requested that he provide further documentation from his medical provider. After doing so, Johnson applied for and received four weeks of leave pursuant to the Family and Medical Leave Act (FMLA). When Johnson returned to work on July 19, 2018, he followed up with Boyd regarding a possible transfer. Boyd instructed him to ask Javorsky, who denied the request.”
Johnson alleged that upon his return to work, Javorsky began excluding him from pre-shift meetings, which Johnson previously conducted as part of his duties as Shift Supervisor. Javorsky purportedly told Johnson not to attend these meetings and then directed Malveaux, Johnson’s subordinate, to conduct the meetings.
Johnson contended that he used bereavement leave, per company policy, from Aug. 1, 2018 to Aug. 3, 2018 following the death of his mother. On Aug. 22, 2018, Johnson left work early for a family emergency. On Aug. 23, 2018, Javorsky advised Johnson he was fired.
“Johnson filed the instant suit against Capstone on Nov. 1, 2019, asserting claims for harassment, discrimination and retaliation based on age and disability pursuant to the Texas Commission on Human Rights Act (TCHRA). Johnson further contended that Capstone harassed, discriminated, and retaliated against him for exercising his rights under the FMLA,” Guerra stated.
“Capstone filed an answer to Johnson’s suit on Dec. 6, 2019, asserting a general denial and raising various affirmative defenses. Capstone then filed a combined traditional and no-evidence summary judgment motion on Dec. 22, 2021 as to all of Johnson’s remaining causes of action. The trial court granted Capstone’s motion on Dec.27, 2022, and this appeal followed.”
On appeal, Johnson looked to overturn the no-evidence summary judgment dismissal of his case.
According to Guerra, Johnson “failed to demonstrate he was fired solely because of his disability.”
“Johnson identifies his disability as high blood pressure and contends that if uncontrolled, it impacts the major life activities of working, circulatory system function, and interacting with others. Johnson did not provide sufficient evidence to raise a fact question that his high blood pressure substantially limited a major life activity or otherwise impaired him in performing work-related functions. As to his allegation that his hypertension substantially limited the major life activities of ‘interacting with others’ or ‘circulatory system function,’ Johnson points to no specific evidence, nor does he explain how his hypertension impacted those activities. Because Capstone has argued that Johnson has no evidence to support a disability discrimination claim (specifically, the disability element of his prima facie case), Johnson bore the burden to come forth with specific evidence to support his claim,” Guerra said.
“To demonstrate that an alleged disability substantially limits the major life activity of working, an individual must show that he is ‘unable to perform the variety of tasks central to most people’s daily lives’ or that ‘his impairment ‘severely limits him in performing work-related functions in general.’ The Texas Supreme Court has confirmed that ‘the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.’ Johnson has failed to make such a showing; thus, the trial court correctly granted summary judgment in favor of Capstone as to Johnson’s disability discrimination claim.”
As to Johnson’s harassment claim, to Guerra, it fared no better.
“To succeed on a claim for disability-based harassment, otherwise referred to as hostile work environment claim, Johnson needed to demonstrate that (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the complained-of harassment was based on his disability; (4) the harassment at issue affected a term, condition, or privilege of employment; and (5) the employer knew or should have known about the harassment and failed to take prompt remedial action. As discussed above, we have already determined that Johnson does not have a disability within the meaning of the TCHRA. Thus, he cannot satisfy the first element of a disability-based harassment or hostile work environment claim – membership in a protected group. We overrule Johnson’s second issue,” Guerra said.
Lastly, Guerra found that Johnson’s retaliation claim was rightly dismissed.
“First, as to Johnson’s allegation that his request for time off to treat his high blood pressure is protected activity, even if such a request could constitute protected activity under the TCHRA, nothing about his requests indicates a concern about disability-based harassment or discrimination. Johnson merely advised Javorsky of his condition or symptoms and his inability to work as a result. For example, on June 14, 2018, Johnson sent a text message to Javorsky stating: ‘Jeff still not feeling good on medicine[.] feeling worse[.] double[d] up on my pills and now can’t get out of bed without help to go to the bathroom to throw up[.] room spinning[.] might have to go in to ER if symptoms continue[.]’ This type of request, standing alone, does not give Capstone the requisite notice of possible disability discrimination or harassment,” Guerra stated.
“We next consider whether Johnson’s June 15, 2018 statement to HR provided sufficient notice of discrimination to Capstone such that it constituted protected activity. We conclude that it does not. Though Johnson’s statement describes the blood pressure comment from Polone, the discussions with Javorsky, and the incident with Malveaux, nothing about these complaints suggests that Johnson intended to report discrimination or harassment based on his disability. As noted above, even in documenting the most serious event – the confrontation with Malveaux – Johnson does not specify anything Malveaux allegedly said to Johnson, only that Malveaux was ‘yelling,’ ‘cursing,’ and ‘shouting.’ Again, complaining of workplace conduct as ‘inappropriate,’ ‘offensive,’ ‘bullying,’ ‘harassment,’ ‘embarrassing,’ ‘rude,’ or ‘intimidating’ without more does not alert an employer that the plaintiff seeks to report actionable discrimination.”
Guerra then issued the Court’s conclusion.
“Because neither Johnson’s requests for leave nor his statement to HR contain a sufficient description to alert Capstone to any disability-based harassment or discrimination, we determine that he has failed to demonstrate a protected activity under the TCHRA. Johnson therefore cannot establish a prima facie case of retaliation. We overrule his third issue. We affirm the trial court’s grant of Capstone’s summary judgment,” Guerra said.
Court of Appeals for the First District of Texas case 01-23-00221-CV
125th District Court, Harris County, Texas case 2019-79901
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at: nick.malfitano@therecordinc.com