Texas Bus Monitor Termination For Incontinence Is Discrimination

Texas Bus Monitor Termination For Incontinence Is Discrimination

Introduction

In Green v. Dallas County School District, a Texas jury found that a Dallas County School District (the “School District”) violated Texas disability discrimination laws when it fired a bus monitor who lost control of his bladder on a school bus.  The bus monitor, Paul Green, suffered a known disability – congestive heart failure – and had disclosed that he was taking a diuretic drug for his heart condition. The District said it did not fire the bus monitor “because of” his disability (congestive heart failure) but because of the health and safety violations that occurred. On appeal, the Court of Appeal agreed and reversed the jury verdict.  Green asked the Texas Supreme Court to consider whether the jury could have found he was fired because of a different “disability” – his urinary incontinence.

Case Discussion

Paul Green worked as a bus monitor on school buses transporting special needs children.  When he was hired, Green notified his supervisor that he had congestive heart failure and was taking a diuretic drug.  On August 30, 2011, after dropping off the only student on the bus, Green asked the driver to stop at a gas station so Green could use the bathroom.  The bus driver told him to wait until the next scheduled stop.  As a result, Green lost control of his bladder.  The bus driver then stopped, and Green finishing urinating into a water bottle, but his pants were wet.  When the bus picked up the next student, Green assisted the wheelchair-bound student but claimed he did not touch the student. The bus driver reported the incident, and Green was fired for “engaging in unprofessional conduct on a school bus” and “failing to protect the health and safety of the students … from exposure to bodily fluids.”

Texas state law provides that an employer “commits an unlawful employment practice” if it discharges an employee “because of … disability.” (Texas Labor Code § 21.051(1).)  Under Texas state law (and the ADA), “disability” is defined to include a physical impairment that “substantially limits at least one major life activity”.  Working is a major life activity.

At trial, the School District stipulated that Green is a person with a disability and that Green was qualified for his job.  The “disability” or disabilities that Green suffered was left for the jury to determine, however.  Other bus drivers testified at trial that Green had, on other occasions, told them that he took a medication that caused an urgent need to urinate, and they had accommodated him by making unscheduled stops at public restrooms and informing dispatch.  The jury also heard evidence that Green has congestive heart failure.

The jury was asked to decide whether “Green’s disability [was] a motivating factor in [the District’s] decision to terminate [his] employment;” and, if so, whether [the District] proved that it “would have made the same decision … even if it had not considered his disability or disabilities.” (Green v. Dallas Cnty. Sch. (2017, No. 16-0214) 60 Tex.Sup.Ct.J. 945 [2017 Tex.LEXIS 445, at *4-5].)

The jury found that Green’s disability was a motivating factor and that the District would not have terminated Green if it had not considered his disability(ies).  The jury awarded Green back pay and $125,000 in compensatory damages.

The School District appealed, arguing that Green had not proved that his urinary incontinence was caused by his disability – congestive heart failure.  The court of appeals agreed, reversed the jury’s decision, and issued a take-nothing judgment in favor of the District.

The appellate court’s decision was based on the assumption that Green’s only “disability” was congestive heart failure.  Based on that assumption, the appellate court reasonsed that even if the District had fired Green because of urinary incontinence, Green could not establish he was terminated because of his congestive heart failure unless he had provided evidence that his heart condition (or the medication he was taking for it) caused the incontinence. Because Green provided no evidence of “the reason for [his] incontinence,” the court of appeals concluded Green failed to establish that his disability (congestive heart failure) was a motivating factor in his termination. (2017 Tex.LEXIS 445, at *5-6).

Green took the matter to the Texas Supreme Court.  He argued that his urinary incontinence was “itself a disability,” as well as “a side effect of other disabilities and of Green’s medications.” (Id. at *6].)  The School District responded that Green did not present evidence that his urinary incontinence was “chronic” enough to qualify as a “disability” and that, regardless of any disabilities, it “had legitimate non-discriminatory reason” for termination because Green’s “acts and omissions after urinating on the school bus warranted the termination.” (Id. at 8.)

The Supreme Court disagreed, finding that ample evidence was admitted for the jury to have decided that the incontinence, itself, was a disability, and remanded the case to the appellate court to reconsider in light of this determination.

This case demonstrates that medication side effects may be “disabling”– even if those side effects are not “the” disability the employee had previously disclosed.

Takeaway For Employers

Employers have the right to maintain healthy, safe and efficient workplaces.  But, employers should pause (and consult legal counsel) before carrying out discipline or termination of an employee who has blamed misconduct on side effects of medication or a disability.  By engaging in an appropriate interactive process, the employer has the opportunity to evaluate whether it may be more prudent to use appropriate personnel procedures (e.g. use of leave, work modifications, etc.) to resolve the issue, before deciding whether to move forward with discipline/termination.  Not all claims that “my prescription made me do it” will fly, but a good-faith interactive process may be able to minimize the risk of disability discrimination claims.

Contributor:  Shauna N. Correia, Attorney at Law  |  Weintraub Tobin