Affirmed in Part, Reversed and Remanded in Part, and Majority Opinion and
Concurring and Dissenting Opinion filed May 31, 2012.




                                         In The

                       Fourteenth Court of Appeals

                                 NO. 14-10-00971-CV


                           CITY OF HOUSTON, Appellant

                                           V.

                            SHAYN A. PROLER, Appellee


                       On Appeal from the 234th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2007-30944


 CONCURRING AND DISSENTING OPINION

      Applicable law imposes a demanding standard for reviewing the sufficiency of the
evidence supporting the jury’s finding that the City of Houston regarded its firefighter
Shayn A. Proler as having a physical or mental impairment that substantially limited a
major life activity.   Under this tough standard, the trial evidence would not allow
reasonable and fair-minded people to find that the City actually regarded Proler as having
a physical or mental impairment that substantially limited a major life activity.
Accordingly, this court should sustain the City’s first issue challenging the legal
sufficiency of the evidence, reverse the trial court’s judgment in favor of Proler on his
counterclaims, and render a take nothing judgment against Proler on these claims.

          Cases construing the pre-amendment Federal Act and Texas Act apply.

       In his counterclaims, Proler alleged that the City discriminated against him based
on a perceived disability. He asserted claims under the Americans with Disabilities Act
(“Federal Act”) and the Texas Commission on Human Rights Act (“Texas Act”). The
analysis of the claim under the Texas Act is the same as the analysis of the claim under
the Federal Act. See Tex. Lab. Code Ann. § 21.001(3) (West 2012); NME Hospitals, Inc.
v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999); Lottinger v. Shell Oil Co., 143 F. Supp. 2d
743, 752 (S.D. Tex. 2001).

       In 2002, the United States Supreme Court held that for a claimant to prove that an
impairment substantially limits a major life activity, the record must contain evidence
that the impairment has a “permanent or long term” impact on the major life activity. See
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198, 122 S. Ct. 681, 691, 151 L.
Ed. 2d 615 (2002). Courts generally have held that evidence of temporary, non-chronic
impairments does not satisfy this requirement. See, e.g., Pryor v. Trane Co., 138 F.3d
1024, 1026 (5th Cir. 1998) (quoting 29 C.F.R. § 1630, App., § 1630.2(j), for its statement
that “[t]emporary, non-chronic impairments of short duration, with little or no longer
term or permanent impact, are usually not disabilities”). But, following the United States
Supreme Court’s Toyota Motor decision, Congress passed the ADA Amendments Act of
2008, which became effective on January 1, 2009. See Pub. L. No. 110-325, § 8, 122
Stat. 3553, 3559 (2008). Under these amendments, Congress rejected the restrictive
approach established in Toyota Motor for analyzing whether the evidence raises a fact
issue as to substantial limitation of a major life activity. See id. at § 2(b)(5), 122 Stat. at
3554. Although in these amendments Congress left the Federal Act’s three-category
definition of “disability” intact, Congress made significant changes as to how these
categories are to be interpreted and applied. For example, Congress mandated that the
term “substantially limits,” found in 42 U.S.C. § 12102(1)(A), “shall be interpreted

                                              2
consistently with the findings and purposes of the [Amended Federal Act].” 42 U.S.C. §
12102(4)(B). Congress also mandated that “[t]he definition of disability” be construed
“in favor of broad coverage of individuals . . . to the maximum extent permitted by the
terms of this chapter.” 42 U.S.C. § 12102(4)(A). The amendments to the Federal Act
apply to conduct that occurred on or after       January 1, 2009.     See EEOC v. Agro
Distribution, LLC, 555 F.3d 462, 469 n. 8 (5th Cir. 2009). The Texas Legislature made
corresponding changes to the Texas Act that apply to conduct that occurred on or after
September 1, 2009. See Act of May 27, 2009, 81st Leg., R.S., ch. 337, 2009 Tex. Gen.
Laws 868, 870. The conduct at issue in this case occurred no later than 2007; therefore,
the 2009 amendments to the Federal Act and the Texas Act do not apply.

       Because this lawsuit is a pre-amendment case, the pre-amendment cases apply to
the analysis of the City’s first issue regarding the legal sufficiency of the evidence. See
Agro Distribution, LLC, 555 F.3d at 469 n. 8; Webb v. Houston Community College Sys.,
No. H-08-3779, 2010 WL 1727051, at *10 (S.D. Tex. Apr. 27, 2010). Thus, this court
must evaluate the jury’s findings in the context of pre-amendment case law.

The evidence is legally insufficient to support the jury’s finding that the City
regarded the firefighter as having a mental or physical impairment that
substantially limited a major life activity.


       Under its first issue, the City asserts that the evidence is legally insufficient to
support the jury’s finding that the City regarded Proler as having a mental or physical
impairment that substantially limited a major life activity. Given the jury charge, the jury
could have made this finding only if it made one or more of the following findings:

      1. Proler had a physical or mental impairment that did not substantially limit a
      major life activity but was perceived by the City as having such a limitation.

      2. Proler had a physical or mental impairment that substantially limited a major life
      activity only as a result of the attitudes of others toward the impairment.




                                             3
      3. Proler did not have an impairment at all, but was regarded by the City as having
      such a substantially limiting impairment.

       Considering the evidence in the light most favorable to the challenged finding,
indulging every reasonable inference that would support it, crediting favorable evidence
if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors
could not, the trial evidence would not enable reasonable and fair-minded people to make
the second finding. See City of Keller v. Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005).
To make either the first or third finding, the jury had to conclude that the City regarded
Proler as having a physical or mental impairment that substantially limited a major life
activity. The majority concludes that the evidence is legally and factually sufficient to
support a finding that the City regarded Proler as having a physical or mental impairment
that substantially limited the major life activity of thinking. Under a faithful application
of the pre-amendment cases, the evidence is legally insufficient to support this finding.
       The statutory terms in the Federal Act and the Texas Act need to be interpreted
strictly to create a demanding standard. Toyota Motor Mfg., Ky., Inc., 534 U.S. at 197,
122 S. Ct. at 691.      Therefore, this court must conduct a rigorous and carefully-
individualized inquiry into Proler’s disability claim. See Waldrip v. General Electric Co.,
325 F.3d 652, 654 (5th Cir. 2003). Whether the evidence would allow a reasonable jury
to find the existence of a disability is determined on a case-by-case basis based on
evidence that shows the effect of the impairment on the individual’s life.              See
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 119 S. Ct. 2162, 2169, 144 L. Ed. 2d 518
(1999). Whether an impairment is substantially limiting depends upon what the evidence
shows regarding the impairment’s nature and severity, its duration or expected duration,
and its permanent or expected permanent or long-term impact. See Dupre v. Charter
Behaviorial Health Sys. of Lafayette, Inc., 242 F.3d 610, 613 (5th Cir. 2001). The
requisite particularized inquiry centers on substantial limitation of major life activities,
not mere impairment. See Waldrip, 325 F.3d at 656. For example, courts have held that
alcoholism is not a disability, despite the effects of alcohol consumption on walking,


                                             4
talking, thinking, and sleeping, because these effects, though serious, are merely
temporary. See id. “Permanency, not frequency, is the touchstone of a substantially
limiting impairment.” Id.
       Proler testified that the March 26, 2006 incident of global transient amnesia was a
one-time event that has not recurred. The majority correctly concludes that the evidence
is legally and factually sufficient to support a finding that Proler did not actually have a
physical or mental impairment that substantially limited a major life activity. But, to
overrule the City’s first issue, this court also must conclude that, under the applicable
standard of review, the trial evidence would allow reasonable and fair-minded people to
find that the City actually regarded Proler as having a physical or mental impairment that
substantially limited the major life activity. See Waldrip, 325 F.3d at 656. Significantly,
evidence that would allow reasonable and fair-minded people to find that the City could
have regarded Proler as having a physical or mental impairment that substantially limited
a major life activity is not sufficient. See id. Proler had to prove that the City in fact
regarded him as having a particular impairment that substantially limited a particular
major life activity, such as thinking. See id. The record must contain evidence that the
City regarded the extent of the limitation caused by the perceived impairment to be
substantial. See Toyota Motor Mfg., Ky., Inc., 534 U.S. at 198, 122 S. Ct. at 691–92;
Waldrip, 325 F.3d at 656. Our record contains no such evidence.

       The majority relies upon evidence regarding the March 26, 2006 incident of global
transient amnesia. But, that incident was a one-time event. There is no evidence that
would enable reasonable and fair-minded people to find that Proler suffered from global
transient amnesia on any other occasion. The evidence regarding the one-time incident is
not legally sufficient to support a finding that Proler had a particular impairment that was
of a permanent nature or that substantially limited a particular major life activity, like
thinking. See Waldrip, 325 F.3d at 656 (holding that evidence of temporary effects of
pancreatitis did not amount to proof of an impairment that substantially limited a major
life activity); Burch v. Coca-Cola Co., 119 F.3d 305, 315–18 (5th Cir. 1997) (holding


                                             5
evidence was insufficient to raise a fact issue as to whether plaintiff’s alcoholism was an
impairment that substantially limited a major life activity); Foreman v. The Babcock &
Wilcox Co., (holding employee’s heart condition with surgically implanted pacemaker
did not substantially limit the major life activity of working); Robinson v. Global Marine
Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996) (holding asbestosis sufferer who
experienced episodic shortness of breath due to a reduced lung capacity was not
substantially limited in the major life activity of breathing); Sanders v. Arneson Prods.,
Inc., 91 F.3d 1351, 1353–54 (9th Cir. 1996) (noting that “[s]everal courts have held that a
temporary injury with minimal residual effects cannot be a basis for a sustainable claim
under the [Federal Act]” and finding that a psychological impairment lasting just under
four months did not qualify as a “disability” for purposes of the Federal Act); Oswalt v.
Sara Lee Corp., 74 F.3d 91, 92 (5th Cir. 1996) (holding that high blood pressure, alone,
without any evidence that it substantially affects one or more major life activities, is
insufficient to bring an employee within the protection of the Federal Act); Dutcher v.
Ingalls Shipbuilding, 53 F.3d 723, 726 & n.11 (5th Cir. 1995) (evidence of a partially
crippled arm insufficient to meet the standard of substantially limiting a major life
activity). In addition, even under the legal-sufficiency standard of review, this evidence
would not enable reasonable and fair-minded people to find that the City regarded Proler
as having a particular impairment that substantially limited a particular major life
activity. See Waldrip, 325 F.3d at 656–57.

       A fact issue does not emerge from Chief Trevino’s testimony that he made the
decision to send Proler to the fire academy in March 2006, based upon other occasions in
the past in which Proler was afraid to enter burning buildings to fight fires. There was no
evidence at trial that the perceived fear or lack of fortitude that Proler exhibited in prior
situations satisfied the exacting standards necessary to qualify as having a physical or
mental impairment that substantially limited the major life activity. See id. To the extent
that Chief Trevino based his decision on a perception that Proler lacked the courage, grit,
and fortitude necessary to work in a fire-suppression unit, that perception is not evidence


                                             6
that the City regarded Proler as having a particular impairment that substantially limited a
particular major life activity. See id. Chief Trevino, who made the decision to transfer
Proler, did not testify that this decision was based upon a belief or perception that Proler
had a particular impairment that substantially limited a particular major life activity.

       In his letter, Captain Johnson primarily describes some of the events that
transpired during the March 26, 2006 incident of global transient amnesia. Captain
Johnson also states that “[e]ither [Proler] was scared [expletive] or there was an acute
medical emergency that consumed him.” Johnson concluded his letter by stating, “I will
wait until after the medical test and evaluation to conclude my opinion on what I think
caused this behavior. In the mean-while we might not want to put [Proler] in this
situation again for safety reasons.” Though Captain Johnson’s letter indicates that Proler
either exhibited a lack of fortitude or had a medical emergency on March 26, 2006,
Captain Johnson did not indicate that Proler had a physical or mental impairment that
actually and substantially limited a major life activity. In fact, Captain Johnson’s letter
suggests, for safety reasons, Proler should not work on a fire-suppression unit while
Proler’s situation was being reviewed. Captain Johnson did not state that Proler should
be removed from a fire-suppression unit because of any physical or mental impairment
that actually and substantially limited a major life activity.

       Chief Seamans, in his letter, describes what happened during the March 26, 2006
incident of global transient amnesia but does not indicate or conclude that Proler had a
physical or mental impairment that substantially limited a major life activity. Chief
Seamans requested “a full investigation and evaluation of this possibly dangerous
situation;” he stated that, “[i]f [Proler] has some type of medical or psychiatric condition
that precludes his safe behavior at fire or other emergency scenes, then he should be
removed from emergency response work until such time as the situation is resolved.”
But, Chief Seamans did not conclude that Proler had such a condition, and Chief
Seamans went on to describe Proler’s history involving reports that Proler had a “fear of
firefighting,” which is not indicative of a physical or mental impairment that actually and

                                               7
substantially limits a major life activity. Chief Seamans did not make the decision to
transfer Proler, and he did not conclude in his letter that Proler had such an impairment.
Even presuming that Chief Seamans stated in his letter that Proler should be transferred if
he had such an impairment, this statement is not sufficient proof that Chief Trevino later
concluded that Proler had such an impairment and transferred Proler based upon this
conclusion.

       Chief Trevino testified that he transferred Proler until further notice so that Chief
Trevino could investigate the situation and determine “what difficulties [Proler] was . . .
dealing with.” According to Chief Trevino, he told Proler that he would be transferred to
the fire academy until further notice because Chief Trevino “needed to talk to some other
people . . . to see what we were going to do about it.” This testimony does not support
the jury’s verdict because it indicates that Proler was transferred while the City was
investigating the situation rather than because the City had determined that Proler had a
physical or mental impairment that substantially limited a major life activity.

       The doctor’s release of Proler to “full duty” beginning April 1, 2006, is not
evidence that the City had made such a determination. Moreover, testimony that a doctor
was asked to opine whether the global transient amnesia would recur and that the doctor
was not responsive to this inquiry is not sufficient to show that the City was operating
under the belief that Proler had a physical or mental impairment that substantially limited
a major life activity.

       Evidence that Proler was assigned to the fire academy because of a belief (correct
or incorrect) that he lacked the courage and fortitude to work safely and effectively in a
fire-suppression unit, is not evidence that supports a finding that the City regarded Proler
as having a physical or mental impairment that substantially limited a major life activity.
See Dupre, 242 F.3d at 616 (stating that evidence that an employer believed that the
employee is incapable of performing a particular job is not evidence that the employer
regards the employee as having a physical or mental impairment that substantially limited
a major life activity); Deas v. River West, L.P., 152 F.3d 471, 480 (5th Cir. 1998) (same).

                                             8
Likewise, evidence that Proler was assigned to work at the fire academy while an
investigation was being conducted is not evidence supporting such a finding.

       The City’s firefighters, emergency workers, and other first responders are charged
with the grave responsibility of protecting the public, and the public depends on them to
safeguard and defend the City’s inhabitants against fires and other dangers. For this
reason, it is critically important to the safety and welfare of the public and the City’s first-
responders that the Houston Fire Department be able to act decisively to transfer
firefighters away from fire-suppression units when there are valid reasons for doing so.
The record evidence shows that the Houston Fire Department had valid reasons for
transferring Proler away from the fire-suppression unit, where he had demonstrated a lack
of fortitude in fighting fires, to the fire academy, where his skills and experience could be
utilized without jeopardizing the safety of the public or his fellow firefighters. More
importantly, the record evidence is legally insufficient to support the jury’s finding that
the City’s actions in doing so violated either the Federal or the Texas Act.

       The law imposes a demanding standard for reviewing the sufficiency of the
evidence supporting the jury’s finding. See Toyota Motor Mfg., Ky., Inc., 534 U.S. at
198, 122 S. Ct. at 691–92; Waldrip, 325 F.3d at 656. Under the applicable standard of
review, the trial evidence would not allow reasonable and fair-minded people to find that
the City regarded Proler as having a physical or mental impairment that substantially
limited a major life activity. See Waldrip, 325 F.3d at 657 (holding evidence did not
raise a fact issue as to whether employer regarded employee as having a physical or
mental impairment that and substantially limited the major life activity); Dupre, 242 F.3d
at 615–16 (same as Waldrip); Deas, 152 F.3d at 480–82 (same as Waldrip); Kiser v.
Original, Inc., 32 S.W.3d 449, 453–54 (Tex. App.—Houston [14th Dist.] 2000, no pet.)
(same as Waldrip). Therefore, this court should sustain the City’s first issue challenging
the legal-sufficiency of the evidence, reverse the trial court’s judgment in its entirety, and
render judgment that Proler take nothing by his counterclaims. Because the court does



                                               9
not do so, I respectfully dissent.1




                                                /s/      Kem Thompson Frost
                                                         Justice


Panel consists of Justices Frost, Seymore, and Jamison. (Seymore, J., majority).




1
 I agree with the majority’s analysis and judgment regarding the trial court’s order dismissing the City’s
appeal and declaratory-judgment action for lack of jurisdiction.



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