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Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.
AFFIRMED. (January 9, 2020).
Judge HO concurred in part and dissented in part.
Brett Horvath was employed as a driver/pump operator by the City of Leander Fire Department. In 2016, the Fire Department began requiring TDAP vaccinations, to which Horvath objected on religious grounds. He was given a choice between two accommodations: transfer to a code enforcement job that did not require a vaccination, or wear a respirator mask during his shifts, keep a log of his temperature, and submit to additional medical testing. He did not accept either accommodation and was fired by Fire Chief Bill Gardner for insubordination. Horvath filed suit against Chief Gardner and the City, alleging discrimination and retaliation in violation of Title VII and the Texas Commission on Human Rights Act (“TCHRA”), and violations of 42 U.S.C. § 1983 premised on violations of his First Amendment Free Exercise rights. The District Court granted summary judgment to defendants on all claims. A divided panel of the Fifth Circuit affirms. The Court unanimously upholds summary judgment on Horvath’s claim of religious discrimination under Title VII and the TCHRA, and his Title VII and TCHRA retaliation claims. A panel majority upholds summary judgment on Horvath’s Free Exercise claim that the City and Gardner violated his right to practice his religion through a policy requiring him to wear a respirator mask in lieu of taking the TDAP vaccine. The dissent reasons that qualified immunity requires the Court to affirm the judgment as to the fire chief on Horvath’s Free Exercise claim. However, the dissent would vacate the judgment as to the Free Exercise claim against the city and remand to allow Horvath to proceed on that claim.
On Appeal from the United States District Court for the Western District of Texas (Robert L. Pitman).
Attorney for Appellant – Matthew Bradley Bachop, Austin, TX
Attorney for Appellee – Joanna Lippman Salinas, Austin, TX