CITY OF HOUSTON v. PROLER

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Court of Appeals of Texas,Houston (14th Dist.).

CITY OF HOUSTON, Appellant, v. Shayn A. PROLER, Appellee.

No. 14–10–00971–CV.

Decided: May 31, 2012

Panel consists of Justices FROST, SEYMORE, and JAMISON. Timothy J. Higley, for City of Houston. David T. Lopez, for Shayn A. Proler.

MAJORITY OPINION

The City of Houston appealed to a district court an independent hearing examiner's award in favor of Shayn A. Proler. Proler filed a counterclaim against the City under the Americans with Disabilities Act (“ADA”) and the Texas Commission on Human Rights Act (“TCHRA”). The trial court dismissed for want of jurisdiction the City's claims and rendered judgment in favor of Proler, awarding him injunctive relief and attorney's fees.

On appeal, the City presents five issues: (1) the evidence is legally and factually insufficient to support the jury's finding that the City engaged in employment discrimination; (2) the trial court erred by refusing the City's proffered jury instructions; (3) the trial court erred by awarding Proler attorney's fees; (4) the trial court erred by granting Proler injunctive relief; and (5) the trial court erred by dismissing for want of jurisdiction the City's petition. We affirm in part and reverse and remand in part.

I. Background

In the early 1990s, Proler joined the Houston Fire Department (“HFD”). During 2002, he was promoted to captain and worked at a fire-suppression station where he supervised multiple firefighters.1 In 2004, Executive Assistant Chief Hector Trevino received a letter in which allegations were made that Proler was “scared to go into fires,” leaving his crew to suppress fires unsupervised. Chief Trevino transferred Proler to an HFD training academy. Proler had various administrative responsibilities at the academy but was not involved in fire suppression. According to Proler, members of HFD consider the transfer of a non-injured firefighter to the academy as a disciplinary action.

Proler remained stationed at the academy for more than a year. During this time, HFD denied Proler's requests for transfer to a suppression unit. Eventually, Chief Trevino agreed to transfer Proler if Proler could find a senior captain who would allow Proler to join his suppression unit and evaluate Proler for several months. Proler met with District Chief John C. Seamans and Senior Captain Roosevelt Johnson to discuss Proler's joining suppression station 59. Proler assured Chief Seamans and Captain Johnson that Proler's reputation for fear of firefighting was unfounded. Captain Johnson permitted Proler to join station 59.

During Proler's tenure at station 59, Captain Johnson completed three written evaluations regarding Proler. In each evaluation, Captain Johnson gave Proler an overall rating of “effective” or “strong.” However, during the same time, several unnamed firefighters made “off the record” complaints to Chief Seamans, alleging Proler was “either afraid of firefighting or that his ‘head goes out on him’ when faced with severe fire conditions.” Chief Seamans did not take action based on these complaints but decided to continue evaluating Proler's performance.

On March 26, 2006, station 59 and other units responded to a building fire. At the scene of the fire, Captain Johnson gave Proler several orders, including an order to protect an adjacent building. Proler failed to complete any of his assignments. Proler also did not comply with Captain Johnson's repeated orders to wear his uniform properly. At one point, Captain Johnson found Proler standing in a smoke-filled room. Proler was extracted and received medical attention. Medics determined Proler's blood pressure was low. Johnson and others suggested that Proler seek treatment at a hospital, but Proler refused. Eventually, Proler was ordered to seek treatment. Proler was diagnosed as having suffered an episode of global transient amnesia.

After the March 2006 fire, Captain Johnson sent a letter to Chief Seamans, expressing concerns regarding Proler's behavior during the incident. In turn, Chief Seamans sent a letter to Fire Chief Phil Boriskie and Chief Trevino elaborating on these concerns. In light of these letters, Chief Trevino transferred Proler to the academy. Thereafter, Proler requested a transfer to a fire suppression unit, which Chief Trevino denied.

Proler challenged the transfer denial through the administrative grievance process.2 After his step II grievance was unsuccessful, Proler appealed to an independent hearing examiner.3 During May 2007, the hearing examiner signed an order, directing HFD to transfer Proler to a suppression station and pay him certain lost compensation. Pursuant to the hearing examiner's award, the City transferred Proler to a suppression unit and paid him lost compensation.

The City appealed the hearing examiner's award to a district court, asserting that the court had jurisdiction under the Local Government Code and the Declaratory Judgments Act.4 In his counterclaim under the ADA and TCHRA, Proler alleged that the City discriminated against him based on perceived disability. Proler filed a plea to the jurisdiction, arguing that the trial court lacked jurisdiction over the City's appeal. The trial court granted the plea and dismissed the City's claims for want of jurisdiction.

Following trial on Proler's claim, the jury found that the City discriminated against Proler based on perceived disability. However, the jury awarded no damages. The trial court rendered judgment on the jury's verdict but also awarded Proler injunctive relief and attorney's fees.

II. Legal and Factual Sufficiency

In its first issue, the City contends the trial court erred by denying the City's motion for directed verdict or motion for judgment notwithstanding the verdict because the evidence is legally insufficient to support a finding that Proler was “disabled” as defined under the TCHRA and ADA. Appellant also challenges factual sufficiency of the evidence.

A. Standard of Review

We review a trial court's ruling on a motion for directed verdict or a motion for judgment notwithstanding the verdict under a legal-sufficiency standard. City of Keller v. Wilson, 168 S.W.3d 802, 823–24 (Tex.2005); Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 626 (Tex.App.-Houston [14th Dist.] 2009, pet. denied). A legal-sufficiency point must be sustained when (1) there is a complete absence of evidence regarding a vital fact, (2) rules of law or evidence preclude according weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Keller, 168 S.W.3d at 810. Under the legal-sufficiency standard, we must credit evidence that supports the judgment if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. Id. at 827. If the evidence falls within the zone of reasonable disagreement, we may not invade the fact-finding role of the jurors, who alone determine the credibility of witnesses, weight to give their testimony, and whether to accept or reject all or any part of that testimony. Id. at 822; Hartland v. Progressive Cnty. Mut. Ins. Co., 290 S.W.3d 318, 321–22 (Tex.App.-Houston [14th Dist.] 2009, no pet.). We must determine whether the evidence would allow reasonable and fair-minded persons to reach the verdict under review. Keller, 168 S.W.3d at 827.

When reviewing a challenge to factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Garza v. Slaughter, 331 S.W.3d 43, 45 (Tex.App.-Houston [14th Dist.] 2010, no pet.). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 616 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

B. Analysis

In the jury charge, the trial court submitted the following question and instructions regarding the alleged unlawful employment practice, which mostly track the Texas Pattern Jury Charge5 :

Was disability (as defined below) a motivating factor (as defined below) in the [City's] decision to transfer [Proler] to the training academy of [HFD] from March 28, 2006 until May 25, 2007?

A “motivating factor” in an employment decision is a reason for making the decision at the time it was made. There may be more than one motivating factor for an employment decision.

“Disability” means being regarded as having a mental or physical impairment that substantially limits at least one major life activity.

The term “mental or physical impairment” means any physiological disorder, condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory (including speech organs); cardiovascular; reproductive; digestive; genitourinary; hemic; lymphatic; skin; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

“Major life activities” means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, thinking 6 or working.

“Substantially limits” (as applied to “major life activities” other than “working”) means that an individual is unable to perform a major life activity that the average person in the general population can perform or that an individual is significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

“Substantially limits” (as applied to the “major life activity” of “working”) means that an individual is restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working

“Substantially limits” (as applied to the “major life activity” of “performing manual tasks”) means that an individual is prevented or severally restricted from doing activities that are of central importance to most people's daily lives.

“Being regarded as having such an impairment ” means an individual: (a) has a physical or mental impairment that does not substantially limit a major life activity but is perceived by the employer as having such a limitation; (b) has a physical or mental impairment that substantially limits a major life activity only as a result of the attitudes of others toward the impairment; or (c) does not have an impairment at all, but is regarded by the employer as having such a substantially limiting impairment.7

The City contends the evidence is legally and factually insufficient to support a finding the City regarded Proler as having an impairment that substantially limited a major life activity. We disagree. The following evidence supports a finding that the City regarded Proler as significantly restricted regarding the conditions under which he could “think” as compared to the conditions under which the average person is able to “think.”

• Proler provided the following testimony regarding his behavior during the March 2006 fire. While en route to the fire, Proler attempted to grab his equipment but his hand “didn't necessarily cooperate. I'd miss it. I'd miss by several inches․ And I knew something was clearly wrong at that time.” After arriving at the scene and receiving orders, “it was obvious to [Proler] something was unusual, because [he] was having difficulty walking and doing stuff that [he] would normally consider routine.” “Eventually somebody ․ grabbed [Proler] by [his] left arm and physically took [him] to the house next door, and sat [him] on a 5–gallon bucket that was turned upside down. And from ․ sitting on that 5–gallon bucket to talking here today, ․ everything has been normal.” 8

• Chief Trevino made the decision to transfer Proler to the academy in March 2006 and deny his requests for a transfer back to a suppression unit. According to Chief Trevino, he made these decisions based on letters written by Chief Seamans and Captain Johnson, in addition to Chief Trevino's past experience regarding Proler's reputation for being “scared to go into fires.”

• In his letter, Captain Johnson explained that during the March 2006 fire, Proler (1) left his uniform open despite repeated orders to dress properly, (2) responded he understood orders but failed to complete any assignments, (3) did not supervise or direct his firefighters, and (4) stood in the center of a smoke-filled room as if “in shock.” Captain Johnson noted that he realized Proler was “not functioning rationally” and “there could possibly be something medically wrong with him.” Captain Johnson also noted medics determined Proler had low blood pressure. Finally, Captain Johnson opined Proler “could not function at all” for one of two reasons: “Either he was scared ․ or there was an acute medical emergency that consumed him.”

• In his letter, Chief Seamans acknowledged receipt of Captain Johnson's letter and added the following information regarding Proler's behavior and condition during the March 2006 fire: (1) Proler seemed disoriented and could not follow or give orders; (2) Proler would nod in affirmation when given orders, but then murmur to himself and make “motions that were not sensible, such as fiddling with a redline nozzle that had been laid upon the ground for exposure protection”; (3) an HFD chief present at the time told Johnson “that something was not right” with Proler; (4) Proler was “very pale and appeared to be weak and wobbly”; (5) Proler had low blood pressure and possibly low blood sugar; and (6) Proler's diagnosis at the hospital might have been “slight stroke and/or other acute medical condition.” Chief Seamans requested a “full investigation and evaluation” and stated, “If [Proler] has some type of medical or psychiatric condition that precludes his safe behavior at fire or other emergency scenes, then he should be removed from emergency response work until such time as the situation is resolved.” Chief Seamans also detailed Proler's past and present reputation for having a fear of firefighting and disclosed that other firefighters have said Proler's “head goes out on him” when faced with severe fire-suppression conditions.

• Chief Trevino testified that based on the information contained in these letters, he had safety concerns because Proler had been unable to dress properly, respond to simple orders, or lead his firefighters. Chief Trevino interpreted Chief Seaman's request as asking “for [HFD] to get to the bottom of what happened out at the fire scene; what's at issue with Captain Proler.” Chief Trevino testified that he transferred Proler “until we could sort things out as far as what difficulties he was ․ dealing with.” According to Chief Trevino, he told Proler that he would be transferred until further notice because Chief Trevino “needed to talk to some other people ․ to see what we were going to do about it.”

• After Proler was evaluated at the scene of the March 2006 fire, he was brought by ambulance to a hospital where he remained for several days. Shortly thereafter, HFD received a document in which a doctor indicated that Proler had suffered an episode of global transient amnesia. The doctor released Proler to “full duty” beginning April 1, 2006.

• Chief Boriskie testified that HFD requested a medical evaluation of Proler and was informed he had suffered an episode of global transient amnesia. HFD sent a letter to James Ferrendelli, M.D., requesting clarification regarding whether Proler would suffer a recurrence of amnesia and whether he could safely perform the duties of an HFD captain. Enclosed with HFD's letter was a document detailing Proler's job description. Both Chief Boriskie and Chief Trevino testified that Dr. Ferrendelli failed to clarify these issues in his subsequent response.

• Following the March 2006 fire, Proler was not allowed to transfer from the academy for thirteen months, at which time HFD transferred him to a suppression unit pursuant to the hearing examiner's award. While Proler was stationed at the academy, HFD never required him to submit to a medical examination.

• According to Proler, at the time of trial, he had been working in a fire suppression unit for between one and two years and had not suffered any similar amnesia episodes during that time. Proler also testified that he is unaware of “any medical, physical or mental condition [he has]” that creates a safety issue for him or his firefighters.

Considering these facts in the light most favorable to the jury's verdict, we conclude the evidence is legally and factually sufficient to support the verdict. As noted above, the jury was charged that it could find the City regarded Proler as having a substantially limiting impairment if Proler “[1] does not have an impairment at all, [2] but is regarded by the employer as having such a substantially limiting impairment.”

Regarding the first part of this definition, Proler testified he had not suffered amnesia since being transferred to a suppression unit over one year before trial and does not have any medical condition that poses a safety concern to him or his firefighters. Additionally, the emergency-room doctor who treated Proler following the March 2006 fire released Proler to full-duty action beginning April 1, 2006. This evidence is legally sufficient to support the jury's finding Proler does not, in actuality, suffer from an impairment. Moreover, this evidence is not so contrary to the overwhelming weight of the evidence as to render the jury's finding clearly wrong and unjust. In sum, the jury could have reasonably found that Proler's episode of amnesia was an isolated incident—not a substantially limiting impairment.

We also conclude the evidence supports the jury's finding regarding the second part of the “regarded-as” definition—did the City regard Proler as having a substantially limiting impairment? During the March 2006 fire, Proler was unable to follow orders or dress properly, and he muttered, wobbled, and stood in a smoke-filled room, appearing to be in a state of “shock.” Captain Johnson opined that Proler was unaware of his surroundings and “could not function at all.” Proler also engaged in nonsensical actions, such as “fiddling” with a nozzle. Several individuals opined that something was medically wrong with Proler, and he was later diagnosed as having suffered global transient amnesia. In the past, other firefighters had complained that Proler's “head goes out on him” when he faces severe fire conditions. After receiving a medical report in which Proler was cleared to return to full-duty action, HFD asked Dr. Ferrendelli to clarify whether Proler would suffer amnesia in the future and whether he could continue to perform as an HFD captain. According to Chief Boriskie and Chief Trevino, Dr. Ferrendelli's response was unsatisfactory. However, instead of sending Proler to a doctor for further evaluation, HFD refused to transfer Proler from the academy for thirteen months, at which time HFD acquiesced to the hearing examiner's award and transferred Proler to a suppression unit.

When determining whether the employer regarded the plaintiff as disabled, we must consider the employer's state of mind at the time the alleged discrimination occurred; this determination is predicated on the specific facts of each case and usually must be proved by circumstantial evidence. See Ross v. Campbell Soup Co., 237 F.3d 701, 706 (6th Cir.2001). We conclude the evidence supports a finding the City regarded Proler as having a recurring physiological or mental impairment that caused him to suffer episodes during which his cognitive ability was diminished to the point he was unaware of his surroundings for at least several minutes. Axiomatically, the average person in the general population does not suffer similar episodes. Hence, the jury could have reasonably found that the City regarded Proler as significantly restricted relative to the condition, manner, or duration under which he was able to perform the major life activity of “thinking” compared to the condition, manner, or duration under which the average person in the general population is able to “think.” See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 309 (3d Cir.1999) (“Chronic, episodic conditions can easily limit how well a person performs an activity as compared to the rest of the population.”); see also Otting v. J.C. Penney Co., 223 F.3d 704, 710–11 (8th Cir.2000) (determining evidence that plaintiff suffered from thirty-second to two-minute long seizures two or three times a month during which she was unable to see, hear, speak, walk, or work (and would suffer after-effects for ten minutes to three days) sufficient to support finding plaintiff was disabled).9 Accordingly, we conclude the evidence is legally sufficient to support a finding that the City erroneously believed Proler was disabled as defined in the jury charge.10

We also conclude the evidence is factually sufficient to support the jury's verdict. Admittedly, the evidence supports a finding that the City transferred Proler because it believed he feared firefighting and was unfit to supervise a suppression unit, not because he was disabled. Nevertheless, as described above, there is also evidence supporting a finding that the City regarded Proler as having a recurring disability. In their letters, Captain Johnson and Chief Seamans explained that Proler may have been suffering from an acute medical condition. Chief Trevino testified that he retained Proler at the academy because Chief Trevino was unsure of the nature of Proler's condition. Further, in HFD's letter to Dr. Ferrendelli, HFD recognized Proler had been diagnosed as having suffered global transient amnesia and released to full-duty work, but inquired whether Proler would suffer a relapse and whether he could safely perform the functions of a fire-suppression captain. After receiving an unsatisfactory response from Dr. Ferrendelli, HFD did not conduct further medical inquiry into Proler's condition and refused to transfer him from the academy. Chief Trevino admitted he never received any information indicating that Proler was unable to discharge his duties as captain. This evidence supports a finding that the City regarded Proler as suffering from recurring episodes during which he was unable to “think.” This finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176.

Accordingly, we conclude the evidence is legally and factually sufficient to support the jury's verdict and overrule Proler's first issue.

III. Jury Charge

In its second issue, the City contends the trial court erred by refusing to submit the City's proffered instructions in the jury charge.

A. Standard of Review

A trial court's decision whether to submit a particular instruction in its charge is reviewed for abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006) (per curiam). When a trial court refuses to submit a requested instruction, the relevant question on appeal is whether the requested instruction was reasonably necessary to enable the jury to render a proper verdict. Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex.2000). The trial court has great latitude and considerable discretion to determine the necessary and proper jury instructions, and any error regarding a requested instruction will not be reversed unless it probably caused rendition of an improper judgment. Louisiana–Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex.1998).

B. Analysis

The City complains regarding the trial court's refusal to submit two instructions. First, the City offered the following expanded definition of “substantially limits” as applied to the major life activity of working; the italicized sentences are those added by the City:

“Substantially limits” (as applied to the major life activity[ ] of “working”) means that an individual is restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job choice. The impairment must substantially limit employment generally. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. A physical or mental impairment that affects the claimant's ability to engage in a narrow range of jobs only or a particular job alone does not “substantially limit” one or more major life activities.

(citations omitted, emphasis added).

Second, the City submitted the following instruction regarding “temporariness”:

Merely having an impairment does not make one disabled for purposes of the discrimination laws. In order to prevail, Proler must have shown that [HFD] treated him as if he had a substantially limiting impairment. To be considered a disability, the impairments [sic] impact must be permanent or long-term. Temporary, non-chronic impairments of short duration, with little or no permanent long-term impact are not disabilities.

(citations omitted).

We hold that the trial court did not err by refusing the City's requested definition for “substantially limits” as applied to “working.” The additional sentences merely reiterate the other sentences in instruction (which were submitted to the jury), namely, that an impairment substantially limits Proler's ability to work only if the impairment restricts his ability to perform a wide range of jobs. The trial court acted within its discretion by refusing this definition.11

Regarding the “temporariness” instruction, we agree that an impairment must generally be permanent or long-term, not merely temporary, to qualify as a disability under the ADA and TCHRA. See, e.g., Columbia Plaza Med. Ctr. of Fort Worth Subsidiary, L.P. v. Szurek, 101 S.W.3d 161, 166–68 (Tex.App.-Fort Worth 2003, pet. denied) (“An impairment simply cannot be a substantial limitation on a major life activity if it is expected to improve in a relatively short period of time.”); see also 29 C.F.R. pt. 1630, app. § 1630.2(j) (2010 version) (“[T]emporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities.”). We also recognize Proler testified his amnesia was an isolated occurrence and that, days after the incident, a physician cleared Proler for return to full-duty work. These facts strongly support a finding that Proler suffered a temporary impairment on the day of the fire. However, Proler's theory of liability was not whether he was actually disabled but whether the City regarded him as disabled. It is undisputed the City refused to transfer Proler from the academy for more than a year, at which time the City transferred Proler only because of the hearing examiner's order. These facts strongly support a finding that the City did not regard Proler's impairment as temporary, but permanent and recurring.12 Thus, we hold that the trial court's refusal to submit the instruction, even if erroneous, did not probably cause rendition of an improper judgment. The City's second issue is overruled.

IV. Injunctive Relief

We next address the City's fourth issue, in which the City contends the trial court erred by granting Proler's request for an injunction because no evidence supported such relief. The trial court awarded the following injunctive relief:

In accordance with the jury's verdict that the City acted with respect to [Proler] in violation of state and federal law proscribing employment discrimination on account of perceived disability, and evidence from which the court finds that Proler and individuals similarly situated should be protected from future unlawful conduct, it is

ORDERED that the City of Houston shall not in any manner further discriminate against [Proler] or retaliate against [Proler] because of his claims of discrimination, the presentation of the grievance related thereto, and the filing of his counterclaim.

ORDERED that the City of Houston shall not discriminate in its assignments of [Proler] because of any perceived physical or mental impairment without utilizing the proceedings required by Tex. Loc. Gov't Code § 143.1115(a).

Under section 21.258 of the Labor Code, “On finding that a respondent engaged in an unlawful employment practice as alleged in a complaint, a court may: (1) prohibit by injunction the respondent from engaging in an unlawful employment practice; and (2) order additional equitable relief as may be appropriate.” Tex. Lab.Code Ann. § 21.258(a) (West 2006). The injunctive relief afforded under this statute results in a permanent injunction because the statute requires a finding on the ultimate issue in an employment-discrimination case. San Antonio Water Sys. v. Odem, No. 04–07–00130–CV, 2007 WL 2376147, at *4 (Tex.App.-San Antonio Aug. 22, 2007, no pet.) (mem. op.). Generally, to establish entitlement to a permanent injunction, the requesting party must plead and prove the following: (1) a wrongful act; (2) imminent harm; (3) irreparable injury; and (4) no adequate remedy at law. Jordan v. Landry's Seafood Rest., Inc., 89 S.W.3d 737, 742 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). However, the parties disagree regarding whether Proler must satisfy the general permanent-injunction elements under section 21.258.

The City argues that the applicant for an injunction under section 21.258 must prove the general elements for a permanent injunction.13 The City relies on Town of Palm Valley v. Johnson, 87 S.W.3d 110 (Tex.2001) (per curiam). In Johnson, the court of appeals held that an injunction may be granted under section 65.011(1) of the Civil Practice and Remedies Code without demonstrating irreparable injury. Id. at 110. Under section 65.011(1), “A writ of injunction may be granted if ․ the applicant is entitled to the relief demanded and all or part of the relief requires the restraint of some act prejudicial to the applicant.” Id. (quoting Tex. Civ. Prac. & Rem.Code Ann. § 65.011(1)). In a per curiam opinion denying the appellant's petition for review, the Supreme Court of Texas concluded, “[T]he statute does not permit injunctive relief without the showing of irreparable harm otherwise required by equity. If it did, the statutory remedy would simply replace the equitable [right to injunctive relief], which requires the additional showing.” Id. at 111; see also Kendall Appraisal Dist. v. Cordillera Ranch, Ltd., No. 04–03–00150–CV, 2003 WL 21696901, at *2–3 (Tex.App.-San Antonio July 23, 2003, no pet.) (mem. op.) (recognizing Johnson court held applicant for injunction under section 65.011(1) must prove irreparable harm).

In contrast, Proler contends section 21.258 dispenses with the general equitable elements and provides the trial court discretion to grant injunctive relief upon a finding that an employer committed an unlawful employment practice. Proler argues that Johnson is inapplicable because it concerned the general injunction statute, whereas many courts have recognized an applicant need not prove the general equitable elements, such as imminent harm, irreparable injury, and inadequate remedy at law, when seeking injunctive relief provided by a specific statute. See, e.g., State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 804–05 (Tex.1979) (“The doctrine of balancing the equities has no application to this statutorily authorized injunctive relief.”); 8100 N. Freeway Ltd. v. City of Houston, 329 S.W.3d 858, 861 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (involving section 243.010 of Local Government Code, providing municipality or county may seek injunctive relief to prohibit violation of regulations pertaining to sexually oriented businesses); Marauder Corp. v. Beall, 301 S.W.3d 817, 820 (Tex.App.-Dallas 2009, no pet.) (involving Debt Collection Act, providing person may sue for injunctive relief to prevent violation of the act); Avila v. State, 252 S.W.3d 632, 648 (Tex.App.-Tyler 2008, no pet.) (involving section 17.47(a) of Business and Commerce Code, providing consumer-protection division may seek injunctive relief for DTPA violations); Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d 787, 795 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (involving provision of Business and Commerce Code, providing court may award injunctive relief for breach of covenant not to compete); Shields v. State, 27 S.W.3d 267, 273 (Tex.App.-Austin 2000, no pet.) (involving article 581–23 of the Securities Act, providing State may seek injunction against person committing securities-law violation); Gulf Holding Corp. v. Brazoria Cnty., 497 S.W.2d 614, 619 (Tex.Civ.App.-Houston [14th Dist.] 1973, writ ref'd n.r.e.) (involving former Open Beach Act, providing government employees shall seek injunction to remove certain obstruction from public beaches); McDonnell v. Campbell–Taggart Associated Bakeries, Inc., 376 S.W.2d 915, 920 (Tex.Civ.App.-Dallas 1964, no writ) (involving former article 1302–6.08 of the Civil Statutes, providing court may grant temporary injunction to prevent further transfer of allegedly fraudulently procured stock certificate); see also W. Wendell Hall et al., Hall's Standards of Review in Texas, 42 St. Mary's L.J. 3, 119 n. 711 (2010) (“Statutory bases of injunctive relief may or may not dispense with these common-law requirements.”). But see GADV, Inc. v. Beaumont Indep. Sch. Dist., No. 09–11–00483–CV, 2011 WL 6229786, at *1–4 (Tex.App.-Beaumont Dec. 15, 2011, no pet.) (mem. op.) (concluding applicability of general injunction elements turns on whether injunction statute is permissible or mandatory and holding applicant for injunction under Education Code must establish those elements); GATX Leasing Corp. v. DBM Drilling Corp., 657 S.W.2d 178, 180–81 (Tex.App.-San Antonio 1983, no writ) (concluding general equitable elements apply when statutory injunction is permissive). We agree with Proler.

Under section 21.258, upon a finding that an employer committed an unlawful employment practice, the trial court may issue an injunction prohibiting the employer from engaging in unlawful employment practices. Tex. Lab.Code Ann. § 21.258(a). Hence, the requirements for injunctive relief are defined by a specific statute, superseding the equitable requirements generally applicable to common-law injunctive relief. See MortgageBanc & Trust, Inc. v. State, 718 S.W.2d 865, 869 (Tex.App.-Austin 1986, no writ); see also Tex. Civ. Prac. & Rem.Code Ann. § 65.001 (West 2008) (“The principles governing courts of equity govern injunction proceedings if not in conflict with this chapter or other law.”). Additionally, the Johnson court's holding that injunctive relief under section 65.011(1) requires a showing of irreparable harm is distinguishable because the court considered the general injunction statute, not the separate injunctive-relief provision of a specific act, such as the TCHRA. See Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 235, 240–41 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (“[T]he default rule, created by chapter 65 and the rules of civil procedure, is that the rules of equity control the granting of temporary-injunctive relief unless a particular statute provides otherwise.”); Rutherford Oil Corp. v. Gen. Land Office of State of Tex., 776 S.W.2d 232, 236 n. 5 (Tex.App.-Austin 1989, no writ) (recognizing section 65.011 is general injunction statute); Injunction—Necessity of Inadequate Remedy at Law When Statute Authorizes Lnjunction, 14 Tex. L.Rev. 266, 267 (1936) ( “Article 4642 [predecessor to 65.011] is to be distinguished from statutes authorizing injunctions in specific instances, as in the case of gaming and disorderly houses[.] The law seems settled that in such cases injunctions may be issued regardless of adequate legal remedies.”).

Accordingly, Proler was not required to establish irreparable harm or that he had no adequate remedy at law when pursuing an injunction under section 21.258. This conclusion is consistent with legislative intent to reduce unlawful employment practices because an applicant may readily seek injunctive relief and discourage a violating employer from continuing such practices. See Tex. Lab.Code Ann. § 21.001(4) (West 2006) (listing as one of the purposes of TCHRA, to “secure for persons in this state, including persons with disabilities, freedom from discrimination in certain employment transactions, in order to protect their personal dignity”); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 72, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (“[T]hroughout its history, [the ADA] has provided for injunctions to bar like discrimination in the future, an important form of relief.” (citation omitted)).14 In fact, many statutes include specific injunctive-relief provisions to prevent further violations of the statute. See Bowen, 106 S.W.3d at 240–41 & nn. 11–12; see also Butnaru v. Ford Motor Co., 84 S.W.3d 198, 209–10 (Tex.2002) (concluding statutory violation does not permit injunctive relief without a showing of no adequate legal remedy unless statute itself contains an injunction provision).15

We conclude this section by addressing an argument the City appears to raise in its third issue regarding attorney's fees. The City contends that in addition to section 21.258, Proler sought injunctive relief pursuant to section 143.1115 of the Local Government Code. Section 143.1115 governs the procedure the City must apply when determining whether a firefighter is “sufficiently physically or mentally fit to continue the person's duties or assignment.” Tex. Loc. Gov't Code Ann. § 143.1115 (West 2008). As noted above, when granting injunctive relief, the trial court ordered the City to refrain from discriminating against Proler because of any perceived physical or mental impairment without utilizing the procedure required under section 143.1115(a). The evidence supports a finding that the City failed to comply with this procedure in determining Proler was physically and mentally unfit to continue in fire suppression, instead treating Proler as disabled without medical evidence establishing such disability. Accordingly, we hold that the trial court did not grant injunctive relief pursuant to section 143.1115, but properly referenced the section in its injunction based on section 21.258. Cf. Computek Computer & Office Supplies v. Walton, 156 S.W.3d 217, 220–21 (Tex.App.-Dallas 2005, no pet.) (explaining injunction should be broad enough to prevent repetition of wrong sought to be corrected but not so broad that defendant is enjoined from lawful activities). We overrule the City's fourth issue.

V. Appeal of Hearing Examiner's Award

In its fifth issue, the City contends the trial court erred by granting Proler's motion to dismiss the City's appeal of the hearing examiner's award.

A. Standard of Review

When the defendant files a plea to the jurisdiction challenging the plaintiff's pleadings, the trial court determines whether the plaintiff has alleged facts sufficient to demonstrate subject-matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). To make this determination, the court considers the pleader's intent and construes the pleadings liberally in favor of jurisdiction. Id. If the factual allegations of the pleadings neither affirmatively demonstrate that the trial court has jurisdiction nor affirmatively demonstrate incurable jurisdictional defects, the issue is one of pleading sufficiency and the plaintiff should be afforded an opportunity to amend. Id. at 226–27. If the pleadings affirmatively negate jurisdiction, the court should sustain the plea and dismiss the suit without allowing the plaintiff an opportunity to amend. Id. at 227. We review de novo the trial court's ruling on a plea to the jurisdiction. Tex. Natural Res. Conservation Comm'n v. IT–Davy, 74 S.W.3d 849, 855 (Tex.2002).

B. Analysis

As an initial matter, Proler argues the City is barred from challenging the trial court's ruling on Proler's plea to the jurisdiction. Specifically, Proler notes that, after the trial court granted Proler's plea, the City appealed the interlocutory order to our court. City of Houston v. Proler, 14–08–00110–CV, 2008 WL 2574360, at *1 (Tex.App.Houston [14th Dist.] June 26, 2008, no pet.) (mem. op.) (per curiam). After Proler filed a motion to dismiss for want of prosecution, the City voluntarily filed its own motion to dismiss, which our court granted. Id. Proler contends the City is barred from seeking appellate review of the trial court's order because our court already dismissed an interlocutory appeal of the order. We disagree.

Although we ultimately dismissed the City's prior interlocutory appeal based on the City's own motion, there was no authority whereby the City was permitted to file that appeal. Generally, a party may appeal only a final judgment. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.2001). However, a party may appeal an interlocutory order in which the trial court “grants or denies a plea to the jurisdiction by a governmental unit.' ” Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West Supp. 2011) (emphasis added). Under this provision, an interlocutory appeal is not available if the plea to the jurisdiction was not made by a governmental unit. Baylor Coll. of Med. v. Hernandez, 208 S.W.3d 4, 7–8 (Tex.App.-Houston [14th Dist.] 2006, pet. denied).

Here, the plea to the jurisdiction was made by Proler, not a governmental unit. Thus, the City did not have a right to interlocutory appeal and has not yet had an opportunity to seek review of the trial court's order granting Proler's plea. Thus, we will address the merits of City's fifth issue.

The City contends that it pleaded sufficient facts to establish the trial court's jurisdiction under section 143.1016(j). A hearing examiner's award is appealable to a district court only on grounds the examiner “was without jurisdiction or exceeded [his] jurisdiction or that the order was procured by fraud, collusion, or other unlawful means.” Tex. Loc. Gov't Code Ann. § 143.1016. A hearing examiner exceeds his jurisdiction when his acts are not authorized by the Fire Fighters and Police Officers Civil Service Act16 or are contrary to the Act, or invade the policy-setting realm protected by the nondelegation doctrine. City of Pasadena v. Smith, 292 S.W.3d 14, 21 (Tex.2009).

In its petition, the City alleged, “On May 9, 2007 the Hearing Examiner issued the award, and overturned the Fire Chief's decision not to transfer Proler. The Hearing Examiner awarded monetary relief to Proler in the form of overtime compensation when it was admitted or there was no evidence that he had ever worked any overtime.” Notably, the City also asserted, the Hearing Examiner “exceeded any jurisdiction he did have by making this particular ruling,” and “[The City] respectfully requests a declaration that the Third–Party Hearing Examiner exceeded his jurisdiction and abused his lawful authority when he granted Captain Proler's transfer, and overturned the Fire Chief's denial of transfer as well as allowing for the recovery of moneys for work that was never performed.”

On appeal, the City argues it properly pleaded that the hearing examiner exceeded his jurisdiction by awarding Proler overtime pay for hours he did not work. We agree. The City satisfied the jurisdictional requirements of section 143.1016(j), and affirmatively demonstrated the trial court's jurisdiction, by alleging that the hearing examiner exceeded his jurisdiction when he awarded unearned overtime compensation.17 The City does not challenge any other portion of the trial court's order granting Proler's plea. Thus, we reverse the trial court's order dismissing the City's appeal to the extent the City claims the hearing examiner exceeded his jurisdiction by awarding overtime compensation and requests declaratory relief relative to this issue.18 We affirm the remainder of the order. The City's fifth issue is sustained.

VI. Attorney's Fees

Finally, we address the City's third issue, in which it contends the trial court erred by awarding attorney's fees in an amount disproportionate to the jury's determination of $0.00 in actual damages. The trial court awarded fees as follows:

ORDERED that the City of Houston pay to [Proler] and his attorney, David T. López, as attorney's fees related to the City's declaratory judgment action, the sum of Sixty-seven Thousand, One Hundred and Sixty Dollars ($67,160.00): pay to [Proler] and his attorney David T. López, as attorney's fees related to Proler's claim of unlawful employment discrimination, the sum of $361,700.00/00 and the costs of this action in the sum of $17,182.34, all with interest thereon at the rate of Five Percent (5%) per annum from the date of the judgment.

We first address the trial court's award of attorney's fees relative to the City's declaratory-judgment action. As explained above, we have reversed the portion of the trial court's order dismissing the City's claim that the hearing examiner exceeded his jurisdiction by awarding Proler overtime compensation, including the City's request for declaratory relief. Because the trial court's award of attorney's fees relative to the City's declaratory-judgment action was likely predicated on erroneous dismissal of the action, we reverse the portion of the trial court's judgment awarding Proler attorney's fees relative to the City's declaratory-judgment action. See Young v. Qualls, 223 S.W.3d 312, 314–15 (Tex.2007) (per curiam).

We next address the trial court's award of attorney's fees relative to Proler's employment-discrimination claim. Under the TCHRA, the trial court may award the prevailing party attorney's fees as costs. Tex. Lab.Code Ann. § 21.259(a) (West 2006). In Southwestern Bell Mobile Systems, Inc. v. Franco, the Supreme Court of Texas considered whether the plaintiff could recover attorney's fees under section 21.259 when the jury awarded no damages on his retaliatory-discharge claim. 971 S.W.2d 52, 55 (Tex.1998). Importantly, the court held that attorney's fees were proper because the plaintiff was awarded equitable relief of reinstatement. Id. at 56.19 We conclude the trial court properly awarded attorney's fees to Proler under section 21.259 because (as we have already affirmed) he was awarded injunctive relief. See Tex. Health & Human Servs. Com'n v. Wolfe, No. 03–08–00413–CV, 2010 WL 2789777, at *9 (Tex.App.-Austin July 14, 2010, pet. denied) (mem. op.) (recognizing attorney's fees under section 21.259 may be based solely on prospective injunction).

Next, the City argues that the amount of fees awarded was unreasonable and disproportionate to Proler's relative success. We review a trial court's award of attorney's fees under section 21.259 for abuse of discretion. Wolfe, 2010 WL 2789777, at *2. Generally, in considering whether attorney's fees are reasonable, we are guided by the non-exhaustive factors listed by the supreme court in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997).

In his original memorandum in support of his request for attorney's fees, Proler did not suggest that the trial court should utilize any special method for determining the reasonable amount of attorney's fees. However, in his amended memorandum,20 Proler asserted, “The appropriate way for calculating attorney's fees in employment discrimination cases is the lodestar method.” (emphasis added). Proler then cited a case in which the lodestar method was used21 and presented argument regarding lodestar factors.

We cannot determine from the record what method the trial court utilized in determining the reasonable amount of attorney's fees. The City does not contend that the lodestar method was improper.22 Consequently, we will first review the trial court's award of fees using the lodestar method. We will consider reasonableness of the fees under the usual factors only if we determine the trial court abused its discretion in applying the lodestar method. See Emp'rs Cas. Co. v. Tex. Ass'n of Sch. Bds. Workers' Comp. Self Ins. Fund, 886 S.W.2d 470, 473 (Tex.App.-Austin 1994, writ dism'd w.o.j.) (recognizing appellate court may sustain judgment on any theory consistent with law and evidence when there are no findings of fact).

Under the lodestar method, a “lodestar amount” is calculated by multiplying the number of hours reasonably expended by an appropriate hourly rate in the community for such work. Heidtman v. Cnty. of El Paso, 171 F.3d 1038, 1043 (5th Cir.1999). The lodestar amount may be adjusted upwards or downwards to account for certain factors. Id.23 If some of the factors are accounted for in the lodestar amount, they should not be considered when making adjustments. Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir.1993).24

The City has not challenged the reasonableness of López's rate of $400.00 per hour. In fact, the City agrees that López is a board certified labor attorney, “well known in the employment law community.” Thus, the trial court could have properly determined that $400.00 per hour was a reasonable rate in this case.

In his affidavit regarding fees and invoices, López segregated his fees pertaining to the City's suit for declaratory relief from fees pertaining to Proler's employment-discrimination claim. López's invoices reflect that from March 2006 to March 2010, he provided 1,205.9 hours of legal services pertaining to the employment-discrimination claim. The City complains that the trial court awarded nearly $60,000.00 in fees for legal services provided before the City filed its claim for declaratory judgment on May 18, 2007; however, the City does not cite any authority supporting its contention that fees incurred before commencement of litigation are unrecoverable. The City also argues Proler filed excessive motions in an attempt to inflate his fees, including “the infamous refiling of a motion for summary judgment that did not allege or argue any new issues”; however, the City does specifically cite any unnecessary filings listed in López's invoices.

Additionally, the City argues that the amount of fees awarded is disproportionate to the relative success of Proler's employment-discrimination claim because the issues involved were simple, necessitated only two jury questions, and did not require expert testimony. The City further notes that Proler presented minimal evidence regarding damages, was awarded no damages, and ultimately received an injunction which he could have pursued early in the litigation.

In his “amended” memorandum, Proler admitted that the issues involved in the case were “not novel or unusual[.]” Proler asserted that the lodestar amount was $482,360.00: the product of 1,205.9 hours multiplied by López's $400.00 hourly rate. Proler also suggested that, if the trial court determined the lodestar amount should be reduced due to Proler's failure to recover monetary damages, the trial court should decrease the amount by 10% but no more than 25%. Assuming that the trial court accepted Proler's lodestar amount, the court apparently reduced the amount by 25% because it awarded $361,770.00 in fees, which is exactly a 25% reduction of $482,360.00.

The trial court could have reasonably disagreed with the City's contention that Proler should have sought injunctive relief early in the lawsuit and, thus, he must have extended the litigation in an effort to inflate fees. First, the trial court, as manager of this case's docket, was in a unique position to determine whether Proler purposefully extended the litigation over a four-year period and made unnecessary filings or whether (as Proler claims) the City's lack of cooperation necessitated increased costs. See Jarvis v. Rocanville Corp., 298 S.W.3d 305, 318 (Tex.App.-Dallas 2009, pet. denied) (“When a trial court sits as the trier of fact, the amount of a fee award generally rests in the sound discretion of the trial court, and its judgment will not be reversed on appeal absent a clear abuse of discretion.”).

Next, as noted above, prerequisite to injunctive relief under section 21.258 is a finding that the employer engaged in an unlawful employment practice. See Tex. Lab.Code Ann. § 21.258. Thus, in order to obtain injunctive relief, Proler was required to discover and present evidence establishing that the City had committed employment discrimination. Further, the record supports a finding that Proler's primary purpose in countersuing the City was to obtain an injunction preventing future discrimination; Proler presented little evidence regarding damages but testified that he greatly desired to remain in fire suppression. Accordingly, it was within the trial court's discretion to decrease the lodestar amount based on the lack of monetary damages but still award a substantial amount of fees for López's services in obtaining the requested injunctive relief. We overrule the City's third issue.

VII. Conclusion

In sum, we reverse those portions of the trial court's judgment (1) dismissing for want of jurisdiction the City's claim that the hearing examiner exceeded his jurisdiction by awarding overtime compensation and request for declaratory relief relative to this claim and (2) awarding Proler attorney's fees relative to the City's declaratory-judgment action. We remand this claim and request for declaratory relief for further proceedings consistent with this opinion. We affirm the remainder of the trial court's judgment.

Applicable law imposes a demanding standard for reviewing the sufficiency of the evidence supporting the jury's finding that the City of Houston regarded its firefighter Shayn A. Proler as having a physical or mental impairment that substantially limited a major life activity. Under this tough standard, the trial evidence would not allow reasonable and fair-minded people to find that the City actually regarded Proler as having a physical or mental impairment that substantially limited a major life activity. Accordingly, this court should sustain the City's first issue challenging the legal sufficiency of the evidence, reverse the trial court's judgment in favor of Proler on his counterclaims, and render a take nothing judgment against Proler on these claims.

Cases construing the pre-amendment Federal Act and Texas Act apply.

In his counterclaims, Proler alleged that the City discriminated against him based on a perceived disability. He asserted claims under the Americans with Disabilities Act (“Federal Act”) and the Texas Commission on Human Rights Act (“Texas Act”). The analysis of the claim under the Texas Act is the same as the analysis of the claim under the Federal Act. See Tex. Lab.Code Ann. § 21.001(3) (West 2012); NME Hospitals, Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex.1999); Lottinger v. Shell Oil Co., 143 F.Supp.2d 743, 752 (S.D.Tex.2001).

In 2002, the United States Supreme Court held that for a claimant to prove that an impairment substantially limits a major life activity, the record must contain evidence that the impairment has a “permanent or long term” impact on the major life activity. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 691, 151 L.Ed.2d 615 (2002). Courts generally have held that evidence of temporary, non-chronic impairments does not satisfy this requirement. See, e.g., Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir.1998) (quoting 29 C.F.R. § 1630, App., § 1630.2(j), for its statement that “[t]emporary, non-chronic impairments of short duration, with little or no longer term or permanent impact, are usually not disabilities”). But, following the United States Supreme Court's Toyota Motor decision, Congress passed the ADA Amendments Act of 2008, which became effective on January 1, 2009. See Pub.L. No. 110–325, § 8, 122 Stat. 3553, 3559 (2008). Under these amendments, Congress rejected the restrictive approach established in Toyota Motor for analyzing whether the evidence raises a fact issue as to substantial limitation of a major life activity. See id. at § 2(b)(5), 122 Stat. at 3554. Although in these amendments Congress left the Federal Act's three-category definition of “disability” intact, Congress made significant changes as to how these categories are to be interpreted and applied. For example, Congress mandated that the term “substantially limits,” found in 42 U.S.C. § 12102(1)(A), “shall be interpreted consistently with the findings and purposes of the [Amended Federal Act].” 42 U.S.C. § 12102(4)(B). Congress also mandated that “[t]he definition of disability” be construed “in favor of broad coverage of individuals ․ to the maximum extent permitted by the terms of this chapter.” 42 U.S.C. § 12102(4)(A). The amendments to the Federal Act apply to conduct that occurred on or after January 1, 2009. See EEOC v. Agro Distribution, LLC, 555 F.3d 462, 469 n. 8 (5th Cir.2009). The Texas Legislature made corresponding changes to the Texas Act that apply to conduct that occurred on or after September 1, 2009. See Act of May 27, 2009, 81st Leg., R.S., ch. 337, 2009 Tex. Gen. Laws 868, 870. The conduct at issue in this case occurred no later than 2007; therefore, the 2009 amendments to the Federal Act and the Texas Act do not apply.

Because this lawsuit is a pre-amendment case, the pre-amendment cases apply to the analysis of the City's first issue regarding the legal sufficiency of the evidence. See Agro Distribution, LLC, 555 F.3d at 469 n. 8; Webb v. Houston Community College Sys., No. H–08–3779, 2010 WL 1727051, at *10 (S.D.Tex. Apr. 27, 2010). Thus, this court must evaluate the jury's findings in the context of pre-amendment case law.

The evidence is legally insufficient to support the jury's finding that the City regarded the firefighter as having a mental or physical impairment that substantially limited a major life activity.

Under its first issue, the City asserts that the evidence is legally insufficient to support the jury's finding that the City regarded Proler as having a mental or physical impairment that substantially limited a major life activity. Given the jury charge, the jury could have made this finding only if it made one or more of the following findings:

1. Proler had a physical or mental impairment that did not substantially limit a major life activity but was perceived by the City as having such a limitation.

2. Proler had a physical or mental impairment that substantially limited a major life activity only as a result of the attitudes of others toward the impairment.

3. Proler did not have an impairment at all, but was regarded by the City as having such a substantially limiting impairment.

Considering the evidence in the light most favorable to the challenged finding, indulging every reasonable inference that would support it, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not, the trial evidence would not enable reasonable and fair-minded people to make the second finding. See City of Keller v. Wilson, 168 S.W.3d 802, 823, 827 (Tex.2005). To make either the first or third finding, the jury had to conclude that the City regarded Proler as having a physical or mental impairment that substantially limited a major life activity. The majority concludes that the evidence is legally and factually sufficient to support a finding that the City regarded Proler as having a physical or mental impairment that substantially limited the major life activity of thinking. Under a faithful application of the pre-amendment cases, the evidence is legally insufficient to support this finding.

The statutory terms in the Federal Act and the Texas Act need to be interpreted strictly to create a demanding standard. Toyota Motor Mfg., Ky., Inc., 534 U.S. at 197, 122 S.Ct. at 691. Therefore, this court must conduct a rigorous and carefully-individualized inquiry into Proler's disability claim. See Waldrip v. General Electric Co., 325 F.3d 652, 654 (5th Cir.2003). Whether the evidence would allow a reasonable jury to find the existence of a disability is determined on a case-by-case basis based on evidence that shows the effect of the impairment on the individual's life. See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 2169, 144 L.Ed.2d 518 (1999). Whether an impairment is substantially limiting depends upon what the evidence shows regarding the impairment's nature and severity, its duration or expected duration, and its permanent or expected permanent or long-term impact. See Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc., 242 F.3d 610, 613 (5th Cir.2001). The requisite particularized inquiry centers on substantial limitation of major life activities, not mere impairment. See Waldrip, 325 F.3d at 656. For example, courts have held that alcoholism is not a disability, despite the effects of alcohol consumption on walking, talking, thinking, and sleeping, because these effects, though serious, are merely temporary. See id. “Permanency, not frequency, is the touchstone of a substantially limiting impairment.” Id.

Proler testified that the March 26, 2006 incident of global transient amnesia was a one-time event that has not recurred. The majority correctly concludes that the evidence is legally and factually sufficient to support a finding that Proler did not actually have a physical or mental impairment that substantially limited a major life activity. But, to overrule the City's first issue, this court also must conclude that, under the applicable standard of review, the trial evidence would allow reasonable and fair-minded people to find that the City actually regarded Proler as having a physical or mental impairment that substantially limited the major life activity. See Waldrip, 325 F.3d at 656. Significantly, evidence that would allow reasonable and fair-minded people to find that the City could have regarded Proler as having a physical or mental impairment that substantially limited a major life activity is not sufficient. See id. Proler had to prove that the City in fact regarded him as having a particular impairment that substantially limited a particular major life activity, such as thinking. See id. The record must contain evidence that the City regarded the extent of the limitation caused by the perceived impairment to be substantial. See Toyota Motor Mfg., Ky., Inc., 534 U.S. at 198, 122 S.Ct. at 691–92; Waldrip, 325 F.3d at 656. Our record contains no such evidence.

The majority relies upon evidence regarding the March 26, 2006 incident of global transient amnesia. But, that incident was a one-time event. There is no evidence that would enable reasonable and fair-minded people to find that Proler suffered from global transient amnesia on any other occasion. The evidence regarding the one-time incident is not legally sufficient to support a finding that Proler had a particular impairment that was of a permanent nature or that substantially limited a particular major life activity, like thinking. See Waldrip, 325 F.3d at 656 (holding that evidence of temporary effects of pancreatitis did not amount to proof of an impairment that substantially limited a major life activity); Burch v. Coca–Cola Co., 119 F.3d 305, 315–18 (5th Cir.1997) (holding evidence was insufficient to raise a fact issue as to whether plaintiff's alcoholism was an impairment that substantially limited a major life activity); Foreman v. The Babcock & Wilcox Co., (holding employee's heart condition with surgically implanted pacemaker did not substantially limit the major life activity of working); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996) (holding asbestosis sufferer who experienced episodic shortness of breath due to a reduced lung capacity was not substantially limited in the major life activity of breathing); Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1353–54 (9th Cir.1996) (noting that “[s]everal courts have held that a temporary injury with minimal residual effects cannot be a basis for a sustainable claim under the [Federal Act]” and finding that a psychological impairment lasting just under four months did not qualify as a “disability” for purposes of the Federal Act); Oswalt v. Sara Lee Corp., 74 F.3d 91, 92 (5th Cir.1996) (holding that high blood pressure, alone, without any evidence that it substantially affects one or more major life activities, is insufficient to bring an employee within the protection of the Federal Act); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 & n. 11 (5th Cir.1995) (evidence of a partially crippled arm insufficient to meet the standard of substantially limiting a major life activity). In addition, even under the legal-sufficiency standard of review, this evidence would not enable reasonable and fair-minded people to find that the City regarded Proler as having a particular impairment that substantially limited a particular major life activity. See Waldrip, 325 F.3d at 656–57.

A fact issue does not emerge from Chief Trevino's testimony that he made the decision to send Proler to the fire academy in March 2006, based upon other occasions in the past in which Proler was afraid to enter burning buildings to fight fires. There was no evidence at trial that the perceived fear or lack of fortitude that Proler exhibited in prior situations satisfied the exacting standards necessary to qualify as having a physical or mental impairment that substantially limited the major life activity. See id. To the extent that Chief Trevino based his decision on a perception that Proler lacked the courage, grit, and fortitude necessary to work in a fire-suppression unit, that perception is not evidence that the City regarded Proler as having a particular impairment that substantially limited a particular major life activity. See id. Chief Trevino, who made the decision to transfer Proler, did not testify that this decision was based upon a belief or perception that Proler had a particular impairment that substantially limited a particular major life activity.

In his letter, Captain Johnson primarily describes some of the events that transpired during the March 26, 2006 incident of global transient amnesia. Captain Johnson also states that “[e]ither [Proler] was scared [expletive] or there was an acute medical emergency that consumed him.” Johnson concluded his letter by stating, “I will wait until after the medical test and evaluation to conclude my opinion on what I think caused this behavior. In the mean-while we might not want to put [Proler] in this situation again for safety reasons.” Though Captain Johnson's letter indicates that Proler either exhibited a lack of fortitude or had a medical emergency on March 26, 2006, Captain Johnson did not indicate that Proler had a physical or mental impairment that actually and substantially limited a major life activity. In fact, Captain Johnson's letter suggests, for safety reasons, Proler should not work on a fire-suppression unit while Proler's situation was being reviewed. Captain Johnson did not state that Proler should be removed from a fire-suppression unit because of any physical or mental impairment that actually and substantially limited a major life activity.

Chief Seamans, in his letter, describes what happened during the March 26, 2006 incident of global transient amnesia but does not indicate or conclude that Proler had a physical or mental impairment that substantially limited a major life activity. Chief Seamans requested “a full investigation and evaluation of this possibly dangerous situation;” he stated that, “[i]f [Proler] has some type of medical or psychiatric condition that precludes his safe behavior at fire or other emergency scenes, then he should be removed from emergency response work until such time as the situation is resolved.” But, Chief Seamans did not conclude that Proler had such a condition, and Chief Seamans went on to describe Proler's history involving reports that Proler had a “fear of firefighting,” which is not indicative of a physical or mental impairment that actually and substantially limits a major life activity. Chief Seamans did not make the decision to transfer Proler, and he did not conclude in his letter that Proler had such an impairment. Even presuming that Chief Seamans stated in his letter that Proler should be transferred if he had such an impairment, this statement is not sufficient proof that Chief Trevino later concluded that Proler had such an impairment and transferred Proler based upon this conclusion.

Chief Trevino testified that he transferred Proler until further notice so that Chief Trevino could investigate the situation and determine “what difficulties [Proler] was ․ dealing with.” According to Chief Trevino, he told Proler that he would be transferred to the fire academy until further notice because Chief Trevino “needed to talk to some other people ․ to see what we were going to do about it.” This testimony does not support the jury's verdict because it indicates that Proler was transferred while the City was investigating the situation rather than because the City had determined that Proler had a physical or mental impairment that substantially limited a major life activity.

The doctor's release of Proler to “full duty” beginning April 1, 2006, is not evidence that the City had made such a determination. Moreover, testimony that a doctor was asked to opine whether the global transient amnesia would recur and that the doctor was not responsive to this inquiry is not sufficient to show that the City was operating under the belief that Proler had a physical or mental impairment that substantially limited a major life activity.

Evidence that Proler was assigned to the fire academy because of a belief (correct or incorrect) that he lacked the courage and fortitude to work safely and effectively in a fire-suppression unit, is not evidence that supports a finding that the City regarded Proler as having a physical or mental impairment that substantially limited a major life activity. See Dupre, 242 F.3d at 616 (stating that evidence that an employer believed that the employee is incapable of performing a particular job is not evidence that the employer regards the employee as having a physical or mental impairment that substantially limited a major life activity); Deas v. River West, L.P., 152 F.3d 471, 480 (5th Cir.1998) (same). Likewise, evidence that Proler was assigned to work at the fire academy while an investigation was being conducted is not evidence supporting such a finding.

The City's firefighters, emergency workers, and other first responders are charged with the grave responsibility of protecting the public, and the public depends on them to safeguard and defend the City's inhabitants against fires and other dangers. For this reason, it is critically important to the safety and welfare of the public and the City's first-responders that the Houston Fire Department be able to act decisively to transfer firefighters away from fire-suppression units when there are valid reasons for doing so. The record evidence shows that the Houston Fire Department had valid reasons for transferring Proler away from the fire-suppression unit, where he had demonstrated a lack of fortitude in fighting fires, to the fire academy, where his skills and experience could be utilized without jeopardizing the safety of the public or his fellow firefighters. More importantly, the record evidence is legally insufficient to support the jury's finding that the City's actions in doing so violated either the Federal or the Texas Act.

The law imposes a demanding standard for reviewing the sufficiency of the evidence supporting the jury's finding. See Toyota Motor Mfg., Ky., Inc., 534 U.S. at 198, 122 S.Ct. at 691–92; Waldrip, 325 F.3d at 656. Under the applicable standard of review, the trial evidence would not allow reasonable and fair-minded people to find that the City regarded Proler as having a physical or mental impairment that substantially limited a major life activity. See Waldrip, 325 F.3d at 657 (holding evidence did not raise a fact issue as to whether employer regarded employee as having a physical or mental impairment that and substantially limited the major life activity); Dupre, 242 F.3d at 615–16 (same as Waldrip ); Deas, 152 F.3d at 480–82 (same as Waldrip ); Kiser v. Original, Inc., 32 S.W.3d 449, 453–54 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (same as Waldrip ). Therefore, this court should sustain the City's first issue challenging the legal-sufficiency of the evidence, reverse the trial court's judgment in its entirety, and render judgment that Proler take nothing by his counterclaims. Because the court does not do so, I respectfully dissent.1

CHARLES W. SEYMORE, Justice.

FROST, J., concurring and dissenting.