It occurs often enough: a key employee, a CEO contracts a serious illness and takes extended leave. The CEO returns to work and then takes intermittent leave for a year or longer. Then the CEO is fired. This is what happened to Benjamin Reed, the CEO for the the Floresville Economic Development Corporation. Mr. Reed filed suit after he was fired. In the matter of Reed v. Floresville EDC, No. SA-24-CV-00701, 2026 WL 75342 (W.D. Tex. March 16, 2026), Judge Pulliam denied the employer’s motion for summary judgment.

In yet another case of poor employer timing, Mr. Reed tried to return to work from FMLA leave on Sept. 18, 2023. FEDC said no, he had stayed beyond his allowed leave. Reed said, no, not true. He said his FMLA paperwork was in order. Then three days later, Reed was summoned to a Board meeting of the FEDC and fired. We can view that as an excellent example of how not to fire an employee, especially one with very positive reviews and a prior raise. In any event, the employer moved for summary judgment on Reed’s ADA claim.

Inadmissible Evidence

In its motion, the employer relied on minutes from that Sept. 21 Board meeting as evidence of poor performance. Attached to those minutes were documents entitled “Credit Card Expense Observations,” “Internal Audit Observations,” and others. But, none of these documents were signed and none were authenticated. Lacking authentication means no witness testified these were accurate copies of the original documents, and no one testified that the original documents themselves were accurate copies. As such, they were not admissible in that form. That sort of evidence can still be used regarding a motion for summary judgment, but only if the proponent explains how they would be admissible at trial. Motions for summary judgment are intended to replicate, more or less, what would occur at trial. But, FEDC did not explain how such evidence would be admitted at trial. The plaintiff objected to the evidence, but apparently the employer still did not explain how those documents would be admitted at trial.

Indeed, the decision does not state this, but the Judge must have wondered if the CEO was abusing his company credit card, is that something the employer would object to? Would they simply caution him to do better? Pointing to a perceived performance issue is the beginning of the discussion, not the end.

Lacking evidence to support its position that Mr. Reed was fired for performance issues, of course, the employer lost its motion for summary judgment. It hurt the employer’s case that it also failed to follow its own handbook. Handbooks are not binding on the employer. But, they do serve as a standard. If other employees accused of malfeasance are investigated and allowed to respond to the allegations, then why was not the person with a disability not allowed to do so? That is classic disparate treatment. The same analysis applies when another employee is accused of the same violations, but is not fired. That would be another instance of disparate treatment. The employer apparently could not explain why some employees were treated in accordance with the company handbook, but not the employee with a disability.