Fifth Circuit affirms judgement for County in ADA case

   The Fifth Circuit Court of Appeals has affirmed a summary judgment in favor of a Constable and the County in which a former deputy constable claimed his rights were violated under the American with Disabilities Act and First Amendment. 
   Before the Constable assumed office in January 2013, the deputy took medical leave for surgery and remained on leave after his FMLA leave expired. In January 2013 the deputy’s doctor stated he could not return to work for another six months. In April, 2013 the deputy was terminated because he had not returned to work and all of his FMLA time, sick time, and vacation time had been exhausted. In May he applied for and later received disability benefits under Social Security testifying that he had been permanently disabled as of April 16, 2013, the date he was fired.
   Just over a year later, he filed a lawsuit against the Constable and Harris County claiming disability discrimination in of the ADA and Section 1983 claims for free speech and due process violations under the First and Fourteenth Amendments of the U.S. Constitution. The Court of Appeals affirmed the district court’s finding that the deputy failed to provide evidence showing that he was qualified for the job at the time of his termination. The Court stated that the question was not whether the Deputy was qualified for his job prior to taking leave, but whether he was qualified at the time of his termination. The evidence showed that at the time of the termination the deputy had been on leave since November 7, 2012, he had exhausted all of his FMLA leave, and his doctor had stated that he was incapable of returning to work until around July 2013.  Accordingly, the Deputy was medically incapable of performing his duties as a deputy constable at the time of his termination and thus was not a qualified individual under the ADA.  
   The Court also affirmed the judgment as to the First Amendment claims because the deputy failed to provide evidence showing that he was terminated because of protected speech. The Case is Moss vs. Harris County Constable Precinct One. The Opinion can be viewed at http://www.harriscountytx.gov/cmpdocuments/caoimages/MossOpinion.pdf.