City of Presidio sued by former employee, alleging disability discrimination

PRESIDIO – A former city employee is suing the City of Presidio, alleging that the city fired him in part due to his disability. Emilio Fernandez – who had worked for the Public Works Department for 10 years as a maintenance gardener – was let go after trying to take time off for work for his medical condition during the coronavirus pandemic, according to the complaint that was filed at the end of March in district court.

In April of last year as the pandemic swept through West Texas, Fernandez requested time off from work after he learned that a boyfriend of a city employee had contracted COVID. Fernandez has a weakened immune system from a kidney transplant procedure in June 2017 and wanted to avoid being exposed to the virus. According to the complaint, the request was denied.

The next day, Fernandez tried again to request time off, handing the Public Works director, Cesar Leyva, a letter asking for an accommodation due to his disability. “Mr. Leyva refused to read it stating he knew what it was about,” the complaint reads. Five days later, on April 13, Fernandez’s request to take time off work was eventually granted. Leyva did not respond to a request for comment.

Then a month later, the city administrator at the time, Joe Portillo, told Fernandez that he was being laid off, and that he should go on long-term disability. According to the complaint, Fernandez “indicated that he was not seeking disability and wanted to continue working.” Portillo did not respond to multiple requests for comment.

Fernandez also learned that the city had contacted his healthcare provider – without his knowledge or consent – in regards to his accommodation request, according to the complaint. Fernandez’s healthcare provider told the city that he should have limited human contact and practice social distancing.

“It’s very unusual for an employer to directly contact a health provider,” said John Wenke, the attorney representing Fernandez. “It certainly leaves the impression that they did not believe what Mr. Fernandez was telling them, and either wanted to double check or try to influence the healthcare provider, which under both accounts, I think is inappropriate.”

On May 26, Fernandez showed up for work after being informed that his time of leave had come to an end. “Shortly after, Leyva told [Fernandez] to call Portillo. Over the phone, without providing a reason Portillo tells [Fernandez] to go home, and that he will be contacted at a later time with an update,” the complaint said. Two days later Fernandez received a termination letter with no explanation as to why he was being fired.

“There’s a lot of people who took time off because of COVID – particularly individuals with underlying health conditions that are protected under the disability laws. To request a 30-day leave of absence is a very reasonable request and there shouldn’t be any negative reaction from any employer, particularly the city, in this case,” Wenke said.

Wenke is now arguing that Fernandez’s disability was a motivating factor leading to his termination. Wenke is fighting to get Fernandez his job back, as well as back pay and any other compensatory damages.

“Both of those accommodation requests were ignored,” Wenke said. “There was no … ‘interactive process’ where the employer sits down and discusses the accommodation request with the workers. To me, it’s a violation of law.”

The city denied all of the allegations made in the complaint and asserts that it’s immune from liability as a governmental entity. Charles Frigerio, the attorney representing the city in this matter, did not respond to multiple requests for comment.

Rod Ponton, the city attorney for Presidio, said that Frigerio was provided to the city by its insurance company. “Most lawsuits against the City of Presidio or other cities are handled by insurance policies the city has in place to defend itself against suits,” he said. Ponton, who has been representing Presidio going back to the early 2000s, couldn’t remember the last time the city has been sued for employment discrimination issues.

The lawsuit is still in its early stages and hasn’t entered the discovery process yet. “Hopefully there will be some documents produced by the city that will illuminate why he was terminated or if his job was eliminated,” Wenke said.

City Councilmember John Razo said that he heard that the city was having an issue with an employee, but didn’t know much more than that. “It’s never been brought up in a meeting,” Razo said. “To a certain degree, from the beginning of any [lawsuit] filing, we should know. I have a feeling they’re just waiting on details to tell us, but we should still know.”