Labor & Employment Law Daily Wrap Up, DISABILITY—DISCRIMINATION—S.D. Tex.: Manager, allegedly harassed because of Tourette’s Syndrome, advances claims, (Feb 27, 2025)

By Todd Harrison, J.D.

His supervisor allegedly referred to him as “Twitchy” and “Skippy,” creating an environment where others felt empowered to make fun of his condition.

A former manager for a marine logistics company could move forward with his ADA and state-law claims alleging disability harassment and retaliation, ruled a federal district court in Texas. The employee’s supervisor allegedly made fun of the tics resulting from the employee’s Tourette’s Syndrome, treating him differently from other employees before eventually firing him for alleged performance issues. The employee adduced enough evidence to show that the alleged harassment was severe and pervasive, and a contentious conversation between the employee and his supervisor one day before he was terminated was sufficient to satisfy his prima facie case for retaliation (McMahan v. C-Innovation LLC, No. 4:23-cv-2565 (S.D. Tex. Feb. 25, 2025)).

Hired as a Subsea Health, Safety, and Environment Manager on June 21, 2019, the individual who filed this suit was later terminated on April 8, 2022, purportedly for “performance reasons.”

Jokes, comments. According to the employee, his supervisor approached him following a presentation he had given in November 2019, asking him why he was constantly twitching and moving around, but was able to remain still while giving a presentation. The employee explained that he had Tourette’s Syndrome, after which the supervisor’s behavior toward him changed.

Following this disclosure, the supervisor allegedly made jokes and comments about the employee’s disability and referred to the employee as “Twitchy” and “Skippy.” The employee also alleged that the supervisor began to treat him differently from other employees, avoiding him, ignoring meeting requests, yelling at him, and generally treating him with contempt and disrespect.

In addition, the employee alleged that the environment created by his supervisor left others feeling empowered to make fun of his disability.

Complaints. Sometime around September 2021, the employee relayed his account of the alleged harassment to the office’s Health, Safety, and Environment (HSE) manager.

On March 30, 2022, the employee’s wife, unbeknownst to him, submitted an anonymous complaint of the alleged harassment through the company’s ethics hotline, referring to the employee’s supervisor by his first name. The complaint was forwarded to the supervisor the next day, and he disavowed any knowledge of the situation.

Termination. A number of the supervisor’s team members returned from a long lunch on April 7, 2022, prompting the employee to remark, “Hey, you guys had a long lunch. You know, you all must have been out…Maybe I should do a breathalyzer on you guys.” The employee made it clear that he was kidding, but his supervisor was not amused, and shortly thereafter called the employee, telling him he had “made an inappropriate joke” and accused him of “calling the open talk hotline,” for which he could fire the employee.

In response, the employee stated that he never called the hotline, but he had talked to the office’s HSE manager regarding the alleged instances of harassment. The supervisor then stated, “Whatever, I don’t care. I got a file on you too.” The next day the supervisor terminated the employee for “performance reasons.”

Subsequently, the employee filed this lawsuit, asserting claims of disability harassment and retaliation in violation of the ADA and the Texas Commission on Human Rights Act.

Ripple effect. First, the court addressed the disability harassment claims. The employer conceded that the supervisor had made comments about the employee’s disability but took issue with whether the alleged was severe or pervasive enough to support a claim. In addition, the employer argued that the comments made by the supervisor were not actionable because they were intended to be “funny” and were meant as a joke.

Such an argument misses the mark, explained the court. The subjective intent of the harasser plays no role in the analysis at hand. Further, the fact that the supervisor intended the comments as a joke failed to address the ripple effect in the office of such jokes or the effect of the supervisor’s non-verbal treatment of the employee.

Frequency. Turning to the factors used to determine whether the alleged harassment was severe or pervasive enough to support a claim, the court first considered the frequency of the harassment. Here, the court found the alleged harassment faced by the employee had occurred frequently enough for this factor to weigh slightly in his favor.

A little over two years had passed between the employee’s disclosure of his disability and his termination. In that time, the employee alleged that he had faced numerous hostile comments and behavior, both from his supervisor and from another coworker. The numerous instances cited by the employee, if believed, would allow a reasonable jury to conclude that these were more than one-off comments, and that both the verbal and non-verbal instances of harassment were continued and repeated.

Severity. The same evidence would allow a reasonable jury to conclude that the harassment was severe, explained the court, noting that the comments specifically concerned the employee’s disability and that he could not avoid the supervisor’s alleged hostile conduct, given that it related to the employee’s day-to-day work. Moreover, the supervisor’s comments were made in an office full of people, potentially emboldening another coworker to comment on the employee’s disability.

“These adverse comments and unbecoming conduct, at the very least, raise fact issues as to the severity of the alleged harassment,” said the court, and a reasonable jury could conclude that this factor also weighed in the employee’s favor.

Work performance. Because the employee did not argue that he received any physical threats or humiliation, the third factor weighed against his claim. However, the fourth factor—whether the alleged hostile treatment interfered with his work performance—was a different story.

Based on the employee’s allegations that his supervisor avoided him, ignored his meeting requests, and yelled at him, a reasonable jury could conclude that the inability to converse and meet with his supervisor unreasonably interfered with his work performance. Because a reasonable jury could conclude that three out of four factors weighed in the employee’s favor, the employer’s motion for summary judgment on the harassment claims was denied.

Protected activities. Turning to the employee’s retaliation claims, he asserted two possible instances of protected activity: (1) his September 2021 complaint to the HSE manager; and (2) the fact that he informed his supervisor of his complaint and other instances of harassment during the phone call on the eve of his termination.

HSE complaint. With regard to the complaint to the HSE manager, the court found that the employee could not establish a causal connection between this conversation and his termination. There was nothing in the record to indicate that the HSE manager ever relayed the complaints to another party, much less anyone with decision-making authority over the employee. Further, a seven month gap between the complaint and the termination was too long to establish temporal proximity.

Phone conversation. As to the phone conversation between the employee and his supervisor, the court determined there was sufficient evidence of a causal connection between the conversation and termination to survive a motion for summary judgment. The call occurred one day before the employee was terminated, observed the court, which clearly satisfied the required showing of temporal proximity. Moreover, the supervisor commented that he had a file on the employee after the employee stated that he had experienced harassment and had previously complained to the HSE manager. The temporal proximity combined with the supervisor’s comments was sufficient to create a causal connection at this stage, said the court.

Pretext. According to the employer, the employee was terminated for poor work performance and inappropriate conduct. However, the employee was able to carry his burden of showing these stated reasons were pretextual, pointing to the supervisor’s comments that he could fire the employee for making a hotline complaint and that he had a file on the employee. Further, the employee testified that he did not have any work performance issues. Accordingly, the motion for summary judgment with regard to the retaliation claims was also denied.

The case is No. 4:23-cv-2565.

Judge: Hanen, A.

Attorneys: Dorian Vandenberg-Rodes (Shellist Lazarz Slobin) for Franklin McMahan. David Matthew Korn (Phelps Dunbar) for C-Innovation LLC.

Companies: C-Innovation LLC

Cases: Discrimination DisabilityDiscrimination Discharge Retaliation StateLawClaims TexasNews