The Texas Supreme Court June 6 overturned a $362,000 disability discrimination judgment for a Houston fire captain who was removed from firefighting duties because his fear of entering burning buildings made him a danger to himself and others.

Capt. Shayn Proler’s verdict couldn’t stand because no jury could reasonably have found that his fear of entering burning buildings constituted a disability under the Americans with Disabilities Act or the Texas Labor Code, the state’s top court held.

Proler didn’t argue that he was disabled, Justice Don R. Willett said, but rather that the city perceived him to be so.

However, “[a] job skill required for a specific job is not a disability if most people lack that skill,” the court wrote. It said being reluctant “to charge into a burning building is not a mental impairment at all; it is the normal human response,” which firefighters are required to overcome.

Two Incidents Cited

Proler joined the Houston Fire Department as a firefighter and was promoted to captain of a fire suppression crew. He was twice reassigned to the city’s fire training academy after he allegedly failed to enter residential properties that were on fire.

The first incident occurred in 2004 and was based on the disputed accusation of a fellow firefighter. Proler challenged his reassignment and was moved back to fire suppression, subject to periodic evaluations.

The second incident occurred two years later at a house fire, when Proler was unable to don his firefighting gear or take orders, and had trouble walking.

He was later diagnosed as having experienced global transient amnesia—a sudden, temporary episode of memory loss—and was approved to return to work. He appealed his transfer to the training academy, and an administrative hearing examiner reassigned him back to fire suppression.

Proler later sued under the ADA and Texas law. Willett noted that the events took place prior to the 2009 effective date of amendments to the ADA.

A jury found in Proler’s favor but awarded no damages. However, the trial court enjoined the city from further discriminating against Proler and awarded him roughly $362,000 in attorneys’ fees and costs. A state appeals court affirmed.

Ballerinas and Basketball Players Cited

Willett noted that the city didn’t argue Proler’s fear of entering burning buildings meant he was unable to perform the essential functions of his position. Instead, Willett said, the city argued that Proler didn’t show he was disabled for purposes of federal or state law.

Agreeing, Texas’s highest court found that an individual lacking the “mental, physical, or experiential skill set” required to perform a job isn’t necessarily disabled. It cited as examples ballerinas and professional basketball players.

“[T]he capacity to play professional basketball is an ability; the rest of us do not suffer from a disability because we cannot play at that level,” Willett wrote.

The trial evidence, he said, indicated that Proler was removed from the fire suppression crew because the city had received information that Proler “had frozen” in the line of duty at two fires, endangering himself and others, not because he was regarded as disabled.

Proler testified that he had been suffering from depression for years, but there was no proof the city perceived him as being substantially limited in the major life activities of thinking and working, the court found.

To the contrary, it said, the city moved him to the fire training academy, where he was required to think and work, and offered him a captain position in its communications department, which he turned down.

Accordingly, the court entered a judgment against Proler on his disability bias claims. It also remanded the case for further consideration of the city’s challenge to the hearing examiner’s decision to transfer Proler back to fire suppression duties.

Justices Nathan L. Hecht, Paul W. Green, Phil Johnson, Eva Guzman, Debra Lehrmann, Jeffrey S. Boyd and John P. Devine joined the opinion. Justice Jeff Brown didn’t participate in the decision.

David T. Lopez in Houston represented Proler. The city attorney’s office represented Houston.

Text of the opinion is available at http://www.bloomberglaw.com/public/document/CITY_OF_HOUSTON_PETITIONER_v_SHAYN_A_PROLER_RESPONDENT_No_121006_.

From BNA.com