The opinion
Opinion issued December 12, 2024
In The
Court of Appeals
For The
First District of Texas
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NO. 01-23-00391-CV
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HARRIS COUNTY, Appellant
V.
HASAN GOKAL, Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 2021-60942
DISSENTING OPINION
As directed by the State of Texas, Dr. Hasan Gokal tried to avoid wasting
expiring COVID-19 vaccine doses. For his efforts, Harris County fired him, charged
him with theft, and filed a complaint with the Texas Medical Board. A grand jury
and the Texas Medical Board cleared Dr. Gokal of wrongdoing. Dr. Gokal sued
Harris County for race and national origin discrimination. The trial court denied
Harris County’s plea to the jurisdiction and motion for summary judgment.
Dr. Gokal’s employment discrimination case comes down to whether Harris
County had a legitimate, nondiscriminatory reason for firing him for not wasting
life-saving vaccine doses when the vaccine was rolled out and instead giving them
to at-risk people offsite. The majority concludes that Dr. Gokal did not raise a fact
issue about whether the reason for his termination was a pretext for discrimination.
I disagree.
Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–805 (1973),
Harris County had the initial burden to proffer a nondiscriminatory reason for Dr.
Gokal’s termination. Harris County’s termination letter stated that Dr. Gokal “took
COVID vaccine home without permission” and “injected [his] friends and family.”
Harris County has thus met its burden to provide a nondiscriminatory reason for Dr.
Gokal’s termination.
The final step in the McDonnell Douglas analysis is to determine whether the
“proffered explanation is unworthy of credence.” Dabbasi v. Motiva Enters., L.L.C.,
107 F.4th 500, 507 (5th Cir. 2024). Dr. Gokal had the burden to show that either
(1) Harris County’s reason was just a pretext for race and national origin
discrimination; or (2) that discrimination was part of the termination decision, even
if the stated reason was correct. Goudeau v. Nat’l Oilwell Varco L.P., 793 F.3d 470,
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475 (5th Cir. 2015). “[A]ny evidence” that casts doubt on Harris County’s assertion
“is in play.” Lindsey v. Bio-Med. Applications of La., L.L.C., 9 F.4th 317, 325–26
(5th Cir. 2021). We view the evidence in the light most favorable to Dr. Gokal. Nall
v. BNSF Ry. Co., 917 F.3d 335, 346 (5th Cir. 2019); Little v. Tex. Dep’t of Crim.
Just., 177 S.W.3d 624, 629 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
The first half of Harris County’s reason, taking the vaccine home “without
permission,” quickly meets resistance in the evidence. After exhausting onsite
options for using the remaining doses, Dr. Gokal informed a senior analyst in the
Public Health Department that he “was going to find individuals to give the vaccine
to,” and the analyst responded, “OK, good.” While Dr. Gokal may not have had
explicit permission to take the vaccine home, “going to go find individuals” indicates
that he was going offsite somewhere. That the analyst did not limit where Dr. Gokal
could go with the open vaccine vial may not have given Dr. Gokal explicit
permission to go home with it, but it undermines “without permission.” During the
pre-vaccination days of the pandemic, people were not out and about, especially the
people who qualified for the earliest administration of the vaccine. For the medically
fragile population, travel was more difficult and riskier. And state guidance was not
to waste doses. Jennifer Shufford, the Infection Disease Medical Director of the
Department of State Health Services, told Dr. Gokal that “no doses of vaccine should
be wasted.” In another communication, the Department of State Health Services told
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public health officials to “provide vaccine to any additional available and willing
persons, regardless of their priority designation” if needed to avoid vaccine waste.
Dr. Gokal called Harris County to advise of his plans to leave the distribution
center to find vaccine recipients after the center closed. That call would have been
the moment for Harris County to advise him of a limit on offsite distribution or to
tell him to throw out the remaining 10 doses of the vaccine or to direct him to check
in for further instructions before the doses expired. That did not happen. Instead, the
senior analyst approved of Dr. Gokal going offsite. This casts doubt on Harris
County’s reason for termination.
The second half of the stated reason itself creates a fact issue as to the
motivation behind Dr. Gokal’s termination. The letter recited that Dr. Gokal
vaccinated his “friends and family,” which is not exactly what happened. Instead,
Dr. Gokal used his contacts on his drive home to locate vaccine recipients who were
medically at risk. He managed to find 10 people who qualified, including the sole
caregiver to a disabled child, and bedbound and elderly people. He vaccinated two
people who met him at his home, then two who met him at his mother’s home, and
then traveled to vaccinate five more. That left one dose that was about to expire.
When he ran out of people, he gave the last dose to his wife, who herself qualified
for the vaccine. Harris County told him during the termination meeting that he did
not equitably distribute the vaccine and instead gave it to “too many people with
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Indian-sounding names.” That distributing the vaccine to too many people with
“Indian-sounding names” was seen as inequitable and that all people with
“Indian-sounding names” were incorrectly assumed to be Dr. Gokal’s friends and
family casts doubt on the true reason for his termination.
Several factors create a genuine issue of material fact about whether Harris
County’s reason for firing Dr. Gokal—taking vaccines home without permission to
vaccinate friends and family—is “unworthy of credence.” See Metro. Transit Auth.
of Harris Cnty. v. Douglas, 651 S.W.3d 122, 135 (Tex. App.—Houston [14th Dist.]
2021, no pet.). These include (1) the State’s instructions not to waste vaccines; (2)
Dr. Gokal’s heroic attempts to comply with that directive after informing Harris
County that he would go find recipients for the remaining 10 doses; (3) the hostility
and skepticism directed at the vaccine recipients based on their race and national
origin, and (4) attribution of a personal relationship between them and Dr. Gokal
based on their race and national origin. A reasonable jury could conclude that
discrimination was at least a “motivating factor” in terminating Dr. Gokal. See id.
Thus, he has carried his summary judgment burden on his employment
discrimination claims. See Dunn v. Hunting Energy Servs., 288 F. Supp. 3d 749,
788–89 (S.D. Tex. 2017).
Because Dr. Gokal sustained his burden of demonstrating a genuine issue of
material fact about whether the reason Harris County terminated him was a pretext
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for racial and national origin discrimination, I would affirm the trial court’s
judgment. Because the majority reaches the opposite conclusion, I respectfully
dissent.
Sarah Beth Landau
Justice
Panel consists of Justices Goodman, Landau, and Hightower.
Justice Landau, dissenting.
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