Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—N.D. Tex.: Recruiter, fired after prostate cancer treatment, failed to establish defamation, ADA discrimination, (Jan 27, 2025)

By Jason Albright, J.D.

The employer said it fired him for, among other things, swimming in his underwear at a company retreat.

KeyCity Capital LLC and its CEO are entitled to summary judgment against the defamation and ADA discrimination claims of a recruiter it discharged after he completed a seven-week radiation plan for prostate cancer, a federal district court in Texas found. The court was unpersuaded that statements made by the CEO relating to the recruiter swimming in his underwear at a company event and submitting excessive business expenses constituted defamation per se. The six-month gap between when he notified KeyCity of his cancer diagnosis and when he was terminated could not support a prima facie case under the temporal proximity test, and although he argued that he was fired based on the employer’s increasing health insurance premiums, he presented no competent evidence contradicting its assertion that management was unconcerned about the premiums (Besso v. KeyCity Capital LLC, No. 4:23-cv-00906-P (N.D. Tex. Jan. 24, 2025)).

Recruiter with prostate cancer. The plaintiff was hired by KeyCity as a recruiter in November 2021. In April 2022, he learned that his prostate cancer had returned, and that treatment would require a seven week radiation plan.

Treatment. He immediately notified KeyCity officers of his diagnosis and treatment plan. Then, by June 2022, he completed the treatment, and his cancer once again went into remission.

Health insurance premiums increasing. In late September and early October 2022, the recruiter assisted KeyCity in its health insurance renewal. During that process, he learned that KeyCity’s health insurance premiums would likely increase and believed that this was due, in part, to his expensive cancer treatments.

Discharge and asserted bases, including underwear incident. The recruiter was terminated on October 26, 2022, and KeyCity asserted various bases for his termination: submitting excessive business expenses; buying expensive food and drinks on KeyCity’s accounts; swimming in his underwear at a company retreat; and being ineffective at his job.

Lawsuit. The recruiter brought suit against KeyCity and its CEO, asserting claims for defamation and violations of the ADA. The defendants moved for summary judgment on both claims, and the recruiter, in his response, attached the declarations of two previously undisclosed witnesses. The defendants then moved to strike those declarations as well.

Motion to strike. Granting the motion to strike, the court found that, though the disputed declarations were undoubtedly important to the former employee’s case—as the only evidence to combat the defendants’ declaration that KeyCity was not concerned about the rising insurance premiums—they were also highly prejudicial to the defendants. Disclosure of the witnesses, the court found, should have occurred the moment the plaintiff’s counsel thought the evidence was relevant to the case, which was, at the very latest, before filing his response to the motion for summary judgment.

Defamation. Summary judgment against the defamation claim was also appropriate, according to the court. To constitute defamation per se, a statement must fall into one of four categories: “(1) imputation of a crime; (2) imputation of a loathsome disease; (3) injury to a person’s office, business, profession, or calling; or (4) imputation of sexual misconduct.”

Here, the recruiter asserted that he suffered damages in the form of injury to his office, business, profession, or calling, and imputation of sexual misconduct. Specifically, he alleged that statements made by the CEO relating to the recruiter swimming in his underwear at a company event and submitting excessive business expenses constituted defamation per se.

The court was unpersuaded, observing that the Texas Supreme Court has held that “[d]isparagement of a general character, equally discreditable to all persons, is not enough unless the particular quality disparages is of such a character that is peculiarly valuable in the plaintiff ’s business or profession.” The court noted that the plaintiff was a recruiter at KeyCity. And statements that he swam in his underwear and submitted excessive expenses are not specifically damaging to a recruiter. They are instead “equally disparaging to all individuals and therefore not defamation per se.”

No imputation of sexual misconduct. Nor did the statements fall into the category of the imputation of sexual misconduct. Examples of statements imputing sexual misconduct, said the court, include calling someone a “pervert” and “pedophile,” calling someone’s wife a “slut,” or alleging that someone sexually molested another individual. The CEO’s statement about the recruiter swimming in his underwear were simply incomparable to such examples. “There is nothing directly sexual about saying a man swam in his underwear,” said the court. “While it may be inferred that such an action is inappropriate, it does not necessarily suggest sexual misconduct.”

Because the CEO’s statements did not constitute defamation per se under any of the four possible categories, summary judgment against the defamation claim was thus appropriate.

ADA claim. As to his ADA discrimination claim, the recruiter asserted that a prima facie case was established through the “temporal proximity” test. He asserted that the CEO became aware of his cancer diagnosis on July 15, 2022, and the recruiter was then terminated on October 26, 2022. The CEO, however, was not the only—or first—KeyCity principal whom the recruiter notified. He notified KeyCity’s CFO and Senior VP of his cancer in April 2022, marking a six-month gap between when he notified the employer and when he was terminated. “Such a gap cannot sustain a finding of a prima facie case under the temporal proximity test,” the court observed.

Though the recruiter also argued that he was fired based on the employer’s increasing health insurance premiums, he presented no competent evidence contradicting its assertion that management was unconcerned about the premiums. In the absence of any fact issue, summary judgment against the ADA claim was thus appropriate as well.

The case is No. 4:23-cv-00906-P.

Judge: Pitman, M.

Attorneys: Jarrett L. Ellzey, Jr. (Ellzey & Associates) for Thom Besso. Stuart L. Cochran (Condon Tobin Sladek Thornton Nerenberg) for KeyCity Capital LLC.

Companies: KeyCity Capital LLC

Cases: DisabilityDiscrimination Discrimination Discharge StateLawClaims TortClaims Procedure TexasNews