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Texas jury award for school bus monitor fired after ‘wetting self’ reinstated; incontinence was disability

By Marjorie Johnson, J.D.

The Texas Supreme Court reinstated a jury verdict in favor of a school bus monitor who suffered from congestive heart failure and incontinence, and who was fired after he involuntarily urinated in his pants following a bus driver’s refusal to stop at a gas station so he could use the restroom. In tossing the jury verdict in his state-law disability bias claim, the court of appeals erred in ruling that he failed to prove his congestive heart failure caused his urinary incontinence; rather, the jury could have found his incontinence was itself a disability that caused his discharge (Green v. Dallas County Schools, May 12, 2017, per curiam).

The employee worked as a bus monitor for Dallas County Schools (DCS), transporting children with special needs. When he was hired, he told his supervisor he had congestive heart failure and was taking a diuretic drug that had urinary side effects. A few years later, he was assigned to a new bus driven by a different driver.

Fired after bus incident. On the day in issue, he asked the driver to stop at a gas station so that he could use the bathroom, but the driver turned into a residential area instead and told him to wait until the next scheduled stop. He couldn’t, and involuntarily urinated in his pants. When the driver finally stopped, he concealed himself and finished urinating into an empty water bottle. At the next scheduled stop, he helped a wheelchair-bound student board the bus.

The driver reported the incident to their supervisor, who notified the area director, who later terminated the employee. The termination letter stated that he was fired because he engaged in unprofessional conduct while on a school bus, admitted to urinating on himself and in a water bottle while onboard the bus, and failed to protect the health and safety of the students boarding.

Jury finds bias. At trial, the jury heard testimony about the termination process, the reasons for the firing decision, congestive heart failure, the drug the employee was taking, and urinary incontinence. The employee also testified that prior drivers had accommodated his urinary issues by taking him to a public restroom without discipline. Moreover, the parties agreed—and the trial court instructed the jury—that the employee satisfied his burden of showing he was disabled and suffered an adverse action.

Thus, the only issue for the jury was whether he was terminated “because of” his disability. The court therefore asked the jury whether his disability was a motivating factor in his termination and, if so, whether DCS proved that it would have made the same decision even if it hadn’t considered his disability or disabilities. The jury answered “yes” to the first question, “no” to the second question, and awarded him $41,292 in backpay and $125,000 in compensatory damages.

Appeals court tosses verdict. The court of appeals reversed, concluding there was no evidence the employee was fired “because of” his disability. It reasoned that even if DCS terminated him because he experienced incontinence while he was on the bus, he failed to present evidence that his disability caused the incontinence. In the court’s view, his only “disability” was congestive heart failure, and because he provided no evidence of “the reason for his incontinence,” he failed to establish that his disability was a motivating factor in his termination.

Congestive failure wasn’t only disability. However, the state high court found the appeals court erred by concluding that the only disability the jury could have found was the employee’s heart condition. The state’s anti-bias law specifically stated that a “major life activity” included “the operation of a major bodily function, including . . . functions of the . . . bladder.” Thus, his urinary incontinence would qualify as a disability if it substantially limited his bladder function or his ability to perform work-related functions, which he claimed it did.

Jury tasked with deciding. This issue was squarely presented to the jury as the parties agreed—and the trial court instructed the jury—that the employee had a disability, but they left it to the jury to decide what that disability was. Specifically, the charge explained that the employee claimed DCS “terminated his employment because of his disabilities, the side effects of his disabilities, and/or the side effects of the medications he takes to treat his disabilities.” It then explained that DCS contended that his “disabilities did not cause him to urinate on the school bus.” Finally, it explained that, regardless of any disabilities, DCS contended it “had legitimate nondiscriminatory reasons for its decisions and actions” since his “acts and omissions after urinating on the school bus warranted the termination…”

As worded, the jury charge did not forbid the jury from finding the employee’s urinary incontinence was itself a disability. To the contrary, the charge referred to “disabilities” in the plural, leaving it to the jury to determine which of his conditions was a disability, and if so, whether DCS terminated him “because of” that disability. Consistent with the charge, his counsel argued in closing that the jury should conclude he was fired because of his incontinence—a medical condition—as opposed to any other proffered reason.

Sufficient evidence of incontinence. The court also rejected DCS’s contention that he submitted no evidence that he suffered from “disability-level chronic incontinence” but rather only suffered from a “single episode of urinary incontinence.” He testified that he had suffered urinary accidents due to incontinence both before and after the incident that led to his termination and that while riding with several different drivers, he had on several occasions requested an unscheduled stop because he urgently had to urinate. This evidence, along with testimony from three physicians about urinary incontinence and its causes, supported a finding that his incontinence itself was a disability.