Monday, June 4, 2012

Global Transient Amnesia Leads to ADA Award

The Americans with Disability Act (ADA) can produce some strange results when matters are litigated, and a recent Texas case demonstrates that even if an employer thinks it is doing the right thing it still may be in violation of the law.

In City of Houston v. Proler, No. 14-10-00971-CV fire captain Shayn Proler had worked for the city fire department since the 1990s, rising to captain in 2002. In 2004 the department received information that Proler was "scared to go into fires" and was leaving his crew to suppress fires unsupervised.

As a consequence Proler was transferred to a position with the department's training academy. He had various administrative responsibilities in this post, but did not engage in fire suppression.

Proler alleged that a transfer of a non-injured firefighter to an academy position was seen as a disciplinary action by members of the department.

He remained in this position for over a year, during which time he asked to be transferred back to the suppression unit multiple times. The department eventually allowed Proler to join suppression Station 59.

During Proler's time with Station 59, District Chief John C. Seamans said he received "off the record" complaints from several firefighters alleging Proler was "afraid" to go into fires.

Then on March 26, 2006, Station 59 and other units responded to a building fire.

At the scene of the fire, Senior Captain Roosevelt Johnson said he gave Proler several orders, which Proler indicated he understood but failed to execute.

According to Johnson's later report to Seamans, Proler was "not functioning rationally" at the scene, left his uniform open despite repeated orders to dress properly, did not supervise or direct his firefighters, and stood in the center of a smoke-filled room as if "in shock."

Johnson said he thought there was possibly "something medically wrong" with Proler.

Medics at the scene of the fire extracted Proler from the building and determined his blood pressure was low. Doctors diagnosed him as having suffered an episode of global transient amnesia.

Proler was mumbling to himself, making "motions that were not sensible," and "fiddling" with equipment, Seamans said. Another firefighter at the scene told Johnson "that something was not right" with Proler, who was "very pale and appeared to be weak and wobbly."

Though Seamans requested an investigation and evaluation of Proler to determine if he had "some type of medical or psychiatric condition that precludes his safe behavior at fire or other emergency scenes," Proler's doctors released him to "full duty" on April 1, 2006. However Proler was assigned back to the fire academy post.

The fire department never required Proler to submit to a medical examination, but it sent a letter to Proler's doctor asking if Proler might suffer a recurrence of amnesia and whether he could safely perform his duties. Testimony at trial was that the doctor failed to clarify these issues so the department chose to keep Proler at the academy position.

Proler filed an administrative grievance which was then appealed to an independent hearing examiner who ordered the department to transfer Proler to a suppression station and pay certain lost compensation.

The city appealed the subsequent jury verdict that found the city had discriminated against Proler on the basis of a perceived disability, but awarded no damages. The trial judge granted injunctive relief, ordering the fire department not to discriminate against Proler, and awarded Proler his attorney fees.

The city appealed but a split 14th DCA upheld the award.

The majority opinion was written by Justice Charles W. Seymore and joined by Justice Martha Hill Jamison, finding the evidence was sufficient to support the jury conclusions.

Since "the average person in the general population does not suffer similar episodes," Seymore concluded, "the jury could have reasonably found that the city regarded Proler as significantly restricted relative to the condition, manner, or duration under which he was able to perform the major life activity of 'thinking' compared to the condition, manner, or duration under which the average person in the general population is able to 'think.'"

The dissent by Justice Kem Thompson Frost argued that "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."

We obviously don't know the underlying facts that motivate the case, but I know that if I was in a fire fighting situation with someone that was had a condition like Proler I'd be concerned.

Apparently there is more to the case than is published in the court's opinion as the attorney for Proler told WorkCompCentral that on remand to the trial court he will be asserting a claim on behalf of Proler that the fire department's decision to terminate him earlier this year violated the court's injunction not to discriminate against Proler.

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