Family and Medical Leave Act and Retaliatory Discharge Claims

Pena v. County of Starr

The San Antonio Fourth Court of Appeals recently ruled on a case styled Pena v. County of Starr. The case involved an animal control officer named Jose Luis Pena. Pena was at work when he sprained his back, an injury which required ongoing medical treatment and rated him a 5% disability. After his injury, he was put on medium duty work. At an exam about six months later, doctors discovered that Pena had an abdominal aortic aneurysm and suffered from severe peripheral vascular disease, conditions that were unrelated to the back sprain but were life-threatening and required surgery. Initially doctors thought the surgery would require one week of missed work, but in fact Pena needed ninety days of recovery. As soon as the increased recovery period was ordered, Pena’s daughter hand-delivered a doctor’s letter to the County to give the County notice of the increased recovery time. Two months into the recovery period, Pena received a letter from the county that stated that he was fired.

Pena sued, lost, then appealed a summary judgment handed down on his claims of retaliatory discharge, discrimination, and violation of the Family Medical Leave Act (FMLA). The Court of Appeals reviewed Pena’s claims and reversed some of them.

Retaliatory Discharge Claim

Pena brought this claim under the Texas Workers’ Compensation Act. Section 451.001. This statute prohibits a person from discharging or discriminating against an employee who files a workers’ compensation claim in good faith. However, Section 451.001 only applies to private employers, and a retaliatory discharge claim may not be brought against the government without its consent. Therefore, the Court affirmed summary judgment on this claim.

Discrimination Claims

Pena claimed age and disability discrimination. He claims he was fired because he was 58 years old and disabled due to the back sprain and aortic aneurysm. On Pena’s age discrimination claims, the Court affirmed summary judgment. Pena had failed to allege any facts supporting his argument, such as being treated differently than a younger employee or being replaced by a younger employee. For the disability claim, the Court agreed that the back sprain did not qualify as a disability. If a physical impairment substantially impairs a major life activity, it is considered a disability. However, the County had failed to address Pena’s claim of disability due to abdominal aortic aneurysm. The Court reversed and remanded on the claim of disability discrimination based on the aortic aneurysm.

Family and Medical Leave Act

Pena alleged that the County committed violations of the FMLA when it fired him, because he was entitled to medical leave for his serious health condition. Although a foreseeable leave requires 30 days notice, when the need for leave is unforeseeable, notice requirements are shortened to “as soon as practicable under the facts and circumstances of the particular case.” [29 C.F.R. 825.303(a)]. Although Pena did not give notice to the County personally and did not mention that he was specifically invoking his FMLA rights, he did have his daughter hand-deliver a doctor’s letter to the County as soon as doctors knew that Pena would require additional recovery time. The Court found that the leave was unforeseeable and had asserted his rights under the FMLA. This was enough evidence for the Court to reverse and remand the case, defeating the summary judgment.


You need to be very specific when asserting claims of age discrimination, disability discrimination, retaliation, and FMLA violations. While employees don’t have to specifically invoke the protections of these laws to be protected by them, the ruling of a court will rely on the particular facts of each employee’s situation.