HOUSTON - A boat pilot who had absolutely no luck at work didn't get any in court either as he tried to sue the company that fired him for briefly using his personal cell phone.
Unfortunately for David Tyson, his lawsuit against Kirby Inland Marina was doomed from the start. Houston federal judge Kenneth Hoyt on March 6 threw it out because his lawyer waited too long to serve Kirby Inland Marina with it.
Though he complied with pre-suit requirements for a discrimination claim, it took him an extra month to serve Kirby with the case.
"Given that Tyson and his counsel failed to timely serve Kirby within the statutory period required... and has failed to show conclusively he exercised due diligence under Texas law, Kirby's motion to dismiss should be granted," Hoyt wrote.
Tyson's troubles started with an on-the-job injury to his shoulder in 2022. His employer operates the nation's largest fleet of inland tank barges and towing vessels.
The injury resulted in a disability that caused him to miss several months of work. While he was off, a coworker made a claim of sexual harassment against Tyson.
Kirby determined the accusations were false but instead of punishing the accuser, it moved Tyson to a different vessel. This clearly demonstrated "Kirby's discriminatory and retaliatory animus toward Plaintiff," his lawsuit says.
That same coworker then began sexually harassing Tyson, he says, including an incident in the weight room during which Tyson was in his underwear and the man said, "Here big boy, want me to lift that weight for you?" his suit says.
His complaint was dismissed by an operations manager who allegedly suggested, "If I were you, I wouldn't want anything else added to your file. Take the move and go with it."
In 2023, his problems escalated when an anonymous lightboat driver told Kirby that Tyson had operated his vessel in a way that nearly caused a collision. But an investigation showed that driver had failed to follow proper protocol to alert Tyson of his location.
But the investigation also showed Kirby briefly picking up his cell phone while operating the vessel. Tyson said he was changing the podcast he was listening to, but Kirby didn't care. It fired him for violating the cell phone policy.
This termination was actually inspired by his disability, Tyson said. The company failed to follow its progressive disciplinary policy and didn't fire other captains who did the same thing, he claimed.
Tyson filed a claim with the Texas Commission of Human Rights, then received a 60-day notice of a right to sue in August 2024. He filed suit on Oct. 15 but Kirby wasn't served with it until Nov. 15.
Tyson and his lawyer, Mark Lazarz of Shellist Lazarz Slobin in Houston, said they had been waiting on a response from Kirby's former counsel about accepting service. The email also said if no response was received, they would proceed with direct service.
A stroke suffered by Tyson's mother shortly after the suit was filed also complicated matters.
"Tyson argues that he emailed Kirby's former counsel on Oct. 15, 2024, to inquire whether he would accept service and, after receiving no response, waited until Nov. 12, 2024, to follow up," Hoyt wrote.
"This delay of nearly a month, without additional efforts to serve Kirby, constitutes a lack of due diligence."