Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—5th Cir.: Correctional officer, fired for exhausting leave, prevailed on most Rehab Act claims, (Oct 15, 2025)

By Kathleen Kapusta, J.D.

A jury found in the employee’s favor and awarded her $1.8 million in damages, which the district court later reduced to $1 million.

Affirming in part and reversing in part a district court’s entry of final judgment, after a jury trial, in favor of a state correctional officer who sued her employer under the ADA and Rehab Act, the Fifth Circuit found her ADA claims should have been dismissed because they were made solely against the Executive Director of the Texas Department of Criminal Justice (TDCJ) in his official capacity. The appeals court also found sufficient evidence for a reasonable jury to find in the employee’s favor on her Rehab Act discrimination and retaliation claims. And while her failure-to-rehire discrimination claim failed as a matter of law, sufficient evidence supported her failure-to-rehire retaliation claim. The court remanded to assess the appropriate amount of damages that may be included as backpay and to determine whether attorney fees should be reduced. Judges Dennis and Ho, in separate opinions, concurred in the court’s judgment in part and dissented in part (Harmon v. Collier, No. 23-40342 (5th Cir. Oct. 14, 2025)).

LWOP. The employee, who had worked for the TDCJ for about 18 years at the time of her termination, suffered from diabetes, hypertension, and chronic lower-back pain. The TDCJ allows employees to take up to 180 days of leave without pay (LWOP) on a 12-month rolling basis and in August 2017, the employee, while on leave, was informed that when she returned to work, she would be placed on second shift, rather than returned to her first shift position. She filed an EEO complaint and was ultimately returned to the first shift.

In March 2018, again while on leave, the employee received a notice from an HR representative that she had 80 days of LWOP remaining. The HR rep later admitted that the 80-day figure was a mistake. The employee returned to work but took additional leave in May. She again received a notice from the same HR rep that she had 16 days of LWOP remaining.

Termination. On May 30, the HR rep left the employee a voicemail stating that she had to return to work the next day or she would be fired for exhausting her LWOP. When the employee heard the voicemail the next day, she went to her doctor who faxed a note to HR saying she needed an additional day but would return to work on June 4 “without restrictions.” Although the HR rep received the note, she did not forward it to anyone else and the employee was subsequently terminated for leave exhaustion.

Not rehired. The employee reapplied with the TDCJ in November 2019 and an HR employee recommended her rehire. The regional director, however, recommended against rehiring her even though he later admitted there was an ongoing correctional officer shortage. As a result, she was not rehired.

Lower court proceedings. The employee sued for discrimination and retaliation under the ADA and the Rehab Act and a jury returned a verdict in her favor on all counts, awarding her $800,000 for past mental anguish, anxiety, and emotional distress and $1 million for wages and benefits from May 31, 2018 to April 7, 2022. The district court denied the defendants’ renewed motion for judgment as a matter of law, withheld from final judgment the employee’s emotional distress damages because the Supreme Court held they were not recoverable under the Rehab Act, entered final judgment against the defendants for $1 million in damages, and awarded attorney fees and costs.

ADA monetary judgment. On appeal, the defendants first argument that the district court erred in entering judgment against the TDCJ executive director because the only relief granted was monetary and he was protected by sovereign immunity. Agreeing, the Fifth Circuit explained that once it became clear only monetary relief would be awarded, the ADA claims should have been dismissed because they were made solely against the executive director in his official capacity and the ADA does not waive sovereign immunity. Thus, the court concluded, the district court abused its discretion in denying the defendants’ motion to alter the judgment on this ground.

Termination and failure to accommodate. The defendants next argued that there was insufficient evidence to uphold the jury’s verdict because the employee was not a qualified individual with a disability. Although the employee asserted that attendance was not identified as an essential function of her position in the job description, the court noted that it was implied based on the activities described, such as providing custody and security, which could not be performed from home.

Carmona. The court next turned to its 2010 decision in Carmona v. Southwest Airlines Co., in which it found evidence presented at trial was sufficient to show a flight attendant who took intermittent leave several times a month was a qualified individual because the flight attendants’ schedules were extremely flexible. Finding Carmona for the most part indistinguishable from this case, the court noted that while attendance was a seemingly inherent requirement for both correctional officers and flight attendants, both employers granted extensive leave based on accrual and roll-over systems and both the employee here and the flight attendant in Carmona remained within the bounds of the policies for numerous years despite their disabilities.

“Thus, like in Carmona,” said the court, “a reasonable jury could conclude that, even though [the employee] disputedly exceeded the 180-day LWOP written policy, her attendance ‘would have been deemed adequate under the unwritten policy that was actually in effect.’” Accordingly, the court found sufficient evidence for a reasonable jury to determine she was otherwise qualified within the meaning of the Rehab Act.

Reasonable accommodation. The defendants also argued that the employee’s requested accommodation was not reasonable because it amounted to extended or indefinite leave and she never requested a reasonable accommodation in her May 31 doctor’s note. Here the court found that framing of the requested accommodation as one for extended or indefinite leave improperly assumed the jury’s role as factfinder as it assumed she exhausted her 180-day LWOP by the time of her May 31 doctor’s note. However, there was conflicting evidence at trial on this issue and the jury was entitled to credit the employee’s testimony suggesting she was within the 180-day limit on May 31.

Similarly, said the court, the defendants’ framing turned what was presented as an accommodation for one day into an accommodation for indefinite leave. Once again, the court noted conflicting testimony on this point and again found the jury was free to determine what the actual accommodation was.

Retaliatory or discriminatory animus. The defendants further argued that because of the absence of evidence of any motive to fire the employee, a jury could not find she was terminated in retaliation or solely because of her disability. Here the court noted that the HR rep did not inform her supervisors that the employee submitted the May 31 doctor’s note as an accommodation request and thus she was fired before she had any opportunity to engage in an interactive process after making an accommodation request, which is itself a Rehab Act violation.

The defendants also asserted that the LWOP policy was their “reasonable accommodation,” they were under no obligation to further accommodate her, and violating the LWOP policy was the nondiscriminatory reason for firing her. The court, however, noted that they were trying to “illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing [her].” Thus, said the court, because the employee “presented direct evidence of discriminatory discharge, albeit one intertwined with her failure-to-accommodate claim, no evidence of animus or motive was required.”

Regarding her retaliation claim, while the defendants argued that her filing of an EEO complaint preceded her termination by seven months and thus was too temporarily remote to establish causation, the court pointed out that the jury heard evidence of additional factors that would make the seven-month gap sufficient to conclude there was retaliation, including, among other things, HR failing to follow proper procedures in terminating the employee, in handling her prior grievances and complaint, and in sending her an ADA packet. Thus, there was sufficient evidence to find in the employee’s favor on her discrimination and retaliation claims.

Failure to rehire. In challenging the jury’s verdict on the employee’s failure to rehire claim, the defendants argued that the regional director did not have final approval over the employee’s rehire application and she did not show he possessed any leverage over the final decisionmaker that would suggest his recommendation was the cause of the denial. Further, TDCJ argued, the Rehab Act’s sole causation requirement for discrimination claims forecloses a cat’s paw theory of liability. The court, however, held that cat’s paw claims for retaliation may be brought under the Rehab Act and thus the employee’s failure-to-hire retaliation claim required a showing that the regional director’s animus was a but-for cause of TDJC’s failure to rehire her.

As for Rehab Act discrimination claims, which require sole causation, the court found that standard “is impossible to meet using cat’s paw reasoning, at least in the context here: the co-worker’s discriminatory animus can never be the sole cause of the adverse employment action because the adverse employment action is also necessarily caused by the titular decisionmaker’s independent choice to give decisive weight to the co-worker’s recommendation.” Accordingly, the court found the employee’s cat’s paw theory as applied to her failure-to-rehire discrimination claim failed as a matter of law.

Failure-to-rehire retaliation claim. Finding sufficient evidence, however, to support the jury’s verdict on her failure-to-rehire retaliation claim, the court noted that a reasonable jury could conclude the regional director harbored some retaliatory animus that led him to recommend against the employee’s rehire including his knowledge of a medical-related issue with her prior employment and evidence his recommendation was based on her protected activity. A reasonable jury, said the court, could also conclude that his recommendation not to rehire was a but-for cause of the decisionmaker’s ultimate decision.

Monetary award. As to the jury’s $1 million damages award, the court noted that the jury instructions and interrogatories clearly limited the backpay period to “May 31, 2018 to April 7, 2022.” Although the court found it unclear what the jury considered in awarding $1 million in backpay, it was presented with two amounts: $227,000 in salary and benefits derived from the employee’s evidence and testimony and $861,965.47 derived from her Employee Retirement System statement showing the projected lifetime annuity value of her pension. Thus, the court noted that at least some portion of the $861,965.47 in the ERS statement presented to the jury was her pension benefits and annuity interest that she admitted she would not be entitled to receive until her retirement date, which would have been in 2029 at the earliest.

Noting that it has held that benefits dependent on an employee’s staying with an employer require “a forward-looking determination from the point of his termination and thus a judgment call like the equitable decision to award front pay,” the court explained that absent proof the jury discounted her pension benefits to their present value in order to calculate her actual loss, the “benefits should have been treated as front pay.” And here, the employee presented no such proof.

Because the parties did not brief how Texas ERS benefits work or whether the employee would lose any ERS or related benefits due to her termination, the court remanded to the district court to assess the appropriate amount of ERS benefits that may be included as backpay, if any, and remit the jury’s $1 million accordingly.

Attorney fees. Finally, as to attorney fees, the court pointed out that in light of its ruling the executive director and the ADA claims should be dismissed, the employee was not the “prevailing party” with respect to him because there was no remaining judicially sanctioned relief on the claims against him. Thus, it reversed the district court’s grant of attorney fees against him. As to the attorney fees for the surviving Rehab Act claims against TDCJ, the court noted that a reduction of the jury’s damages award and dismissal of the ADA claims might make the current attorney fees award excessive. Accordingly, it left this issue to the district court on remand.

Partial dissents. In his partial concurrence and dissent, Judge Dennis dissented from the holding that the employee’s Rehab Act discrimination claim, based on failure to rehire, failed as a matter of law but concurred in the judgment in all other respects. Judge Ho also separately concurred in the judgment in part and dissented in part.

The case is No. 23-40342.

Judge: Southwick, L.

Attorneys: Clayton D. Craighead (Law Offices of Clayton D. Craighead) for Kimberly Harmon. Beth Ellen Klusmann, Office of the Texas Attorney General, for Bryan Collier and Texas Department of Criminal Justice.

MainStory: TopStory DisabilityDiscrimination Discrimination Discharge PublicEmployees RemediesDamages AttorneysFees Retaliation Procedure AlabamaNews MississippiNews TexasNews GCNNews