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Tercero v. Texas Southmost College District No. 19-40740 Before KING, GRAVES, and OLDHAM, Circuit Judges. AFFIRMED in part; REVERSED in part; and REMANDED. (February 24, 2021). Dr. Lily Tercero brought procedural due-process and breach-of-contract claims against Texas Southmost College (“TSC”) relating to her termination. Tercero prevailed at trial. But the District Court subsequently vacated the jury’s verdict on her breach-of-contract claims, finding that TSC was entitled to 11th Amendment immunity. Further, the District Court reduced the damages award for Tercero’s procedural due-process claim from $12,500 to $1. Tercero appealed. In addition to deciding whether the reduction in the procedural due-process damages was warranted, the Fifth Circuit has to determine whether TSC, as an independent political subdivision, is immune from suit for breach of contract. The Court first clarifies that TSC never argued that it is entitled to sovereign immunity under the U.S. Constitution. Instead, it argued that it was entitled to governmental immunity under state law. It then holds that the state of Texas cannot limit the waiver of governmental immunity in a manner that prevents a Federal Court from hearing a state law claim over which it would otherwise have supplemental jurisdiction. It next finds that the Texas Legislature abrogated TSC’s governmental immunity such that Tercero could bring state law breach-of-contract claims against TSC. Thus, it reverses the District Court’s dismissal of Tercero’s breach-of-contract claims and reinstates the jury’s verdict. The Court declines to consider TSC’s alternative arguments regarding whether sufficient evidence supports Tercero’s breach-of-contract claims, opting instead to remand for the District Court to consider them in the first instance. The Court affirms the District Court grant of TSC’s Rule 50(b) motion for judgment as a matter of law on the due-process violation damages and its reduction of the jury’s award on the due-process violation to the nominal sum of $1. Much of the evidence cited by Tercero failed to connect the procedural due-process violation relating to the termination hearing to any of the injuries at issue. And as for Tercero’s testimony about events that preceded her termination hearing, she failed to challenge the District Court’s conclusion on summary judgment that the pre-hearing notice did not violate her due-process rights. Finally, the Court holds that the District Court abused its discretion in vacating Tercero’s attorneys’ fees award based on her breach-of-contract claims because it erroneously determined that TSC is entitled to Eleventh Amendment immunity on those claims. Finally, the Court reverses the District Court’s vacatur of the portion of the attorneys’ fees award based on the breach-of-contract claims and remands for the District Court to address TSC’s alternative arguments regarding those claims and to determine whether Tercero is entitled to attorneys’ fees and in what amount. On Appeal from the United States District Court for the Southern District of Texas (Fernando Rodriguez, Jr.). Attorney for Appellant – Don Cruse, Austin, TX Attorney for Appellee – Jonathan Griffin Brush, Houston, TX Weber v. BNSF Railway Company No. 20-10295 Before DENNIS, HIGGINSON, and WILLETT, Circuit Judges. AFFIRMED. (February 24, 2021). BNSF Railway Company terminated Jay Weber, a train dispatcher, after he violated company attendance guidelines. Weber, who is epileptic, sued, alleging that BNSF failed to provide reasonable accommodations for his disability. The District Court granted summary judgment in favor of BNSF Weber appealed. Apropos his first failure-to-accommodate claim, Weber argued that the District Court erred because it did not engage in a discussion of the merits of his request to be reassigned to the Assistant Chief Dispatcher (“ACD”) position. While the Fifth Circuit agrees that the District Court failed to address whether Weber was a qualified individual with respect to the ACD position, it affirms on the alternative basis that Weber presented no evidence that this position was available. Specifically, Weber presented no evidence that the ACD position was vacant or that he had the requisite qualifications for that position. Regarding his second failure-to-accommodate claim, Weber argued that the District Court erred when it found that he was not a qualified individual because he could not perform an essential function of his train dispatcher job—regular worksite attendance—with or without reasonable accommodations. Rejecting Weber’s claim that regular worksite attendance is not an essential job function, the Fifth Circuit holds that because Weber failed to show that he could perform the essential functions of his train dispatcher position, with or without reasonable accommodations, he was not a qualified individual with a disability, and summary judgment for BNSF on Weber’s second failure-to-accommodate claim was appropriate. On Appeal from the United States District Court for the Northern District of Texas (Reed Charles O’Connor). Attorney for Appellant – Gregory G. Paul, Pittsburgh, PA Attorney for Appellee – Micah Randall Prude, Dallas, TX


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