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Discrimination, Retaliation, Wrongful Termination, and Unpaid Wages

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An employee can demonstrate pretext where an employee’s direct supervisor’s testimony conflicts with the performance deficiencies alleged by the decision-maker or where the employee’s direct supervisor testifies that they would not have disciplined the employee for the misconduct alleged.

Posted in Discrimination

“[Direct Supervisor’s] testimony rebutted [employer’s] reason that [employee] improperly documented her hours on the time sheets. [Direct Supervisor’s] testimony also rebutted [employer’s] reason that [employee] taking patient files home constituted a privacy violation.” …  “As for [employer’s] allegation that [employee] failed to attend a particular conference and notify her supervisors, [direct-supervisor] testified [that employee] did advise him regarding her inability to attend. He further testified that he did not consider her absence at the conference a disciplinary problem. [Employer] also had pointed to [employee’s] failure to pass a written examination on the new operating procedures that had been implemented. [Direct Supervisor] testified that approximately four employees did not pass the initial examination; however, all the employees, including [employee], eventually passed the test.”

Hague v. Univ. of Tx. Health & Sci. Ctr. at San Antonio, 560 Fed. Appx. 328, 337–38 (5th. Cir. March 28, 2014) (Benavides, J.).

An employee can create a hostile work environment for their supervisor.

Posted in Hostile Work Environment

“The record shows that Plaintiff’s subordinate made an anonymous complaint against Plaintiff allowing other individuals to steal money and time from Defendant. The subordinate then filed a grievance against Plaintiff complaining that since she was hired for the position he had harassed her, wrote her up, investigated her and yelled at her in front of students. Eleven days later, Plaintiff was terminated. “Considering the evidence of record and the clear contempt that [the subordinate had for [Plaintiff] coupled with the inaction of the administration regarding [the subordinates] complaint of [Plaintiff]’s insubordination, the Court finds that there are questions of material fact of [Plaintiff]’s claim of hostile work environment.”

Prescott v. Board of Sup’rs of the Univ. of Louisiana System, 2014 WL 4825332, at *13 (E.D. La. Sep. 26, 2014) (Roby, J.).

Countless instances of being called racial epithets by both supervisors and coworkers is sufficient evidence that the harassing conduct affected a term, condition, or privilege of employment and that Defendant’s conduct was sufficiently severe and pervasive to constituted a hostile work environment.

Posted in Race Discrimination

“In addition to [Plaintiff’s] supervisor’s name-calling and harassment, [Plaintiff’s] coworkers testified that they too frequently called him ‘güero.’  This racial harassment occurred for over a year, despite [Plaintiff's] complaint to management.”


Rhines v. Salinas Const. Technologies, Ltd., 2014 WL 2872716, at *3 (5th Cir. June 25, 2014) (unpublished) (Davis, Barksdale, and Elrod, JJ.).

Testimony of an employer’s statements evincing retaliatory animus are regarded as direct evidence, and no further inference to determine retaliatory intent is required.

Posted in Retaliation

“The Court finds that [Supervisor]’s unambiguous statement that Plaintiff ‘didn’t do anything wrong, but [he] filed that Complaint,’ recalled by both Plaintiff and a co-worker, amounts to direct evidence of retaliation sufficient to defeat summary judgment. Had [Supervisor] said something more along the lines of, ‘I did not vote to promote you because you filed that Complaint,’ further analysis of whether [Supervisor]’s retaliatory animus infected the rest of the five-member committee would be warranted.But, because the statement was phrased as an omniscient recollection of what took place, it is enough to create a fact issue as to whether retaliatory animus was the but-for cause of [Employee]’s termination.”


Rao v. Texas Parks and Wildlife Dept., 2014 WL 1846102 at *3 (S.D. Tex. May 08, 2014) (Ellison, J.).

For the purposes of Title VII retaliation claims, employer removing employee of supervisory responsibilities may be viewed as an adverse employment action.

Posted in Discrimination

“It is undisputed that, prior to [Plaintiff]’s reassignment, he held the position of Branch Chief…, and that, in this position, he supervised a staff of approximately fifteen, consisting of attorneys, paralegals, and a secretary.  It is also undisputed that, after [Plaintiff]’s February 2006 reassignment to the position of staff attorney for the Superfund legal branch, he no longer supervised other EPA employees. The jury could reasonably have found that an involuntary reassignment resulting in the elimination of supervisory responsibilities could dissuade a reasonable worker from asserting a charge of discrimination, and that the involuntary reassignment was an adverse employment action.”

Benton v. U.S. E.P.A., 2014 WL 2862309, at *4 (N.D. Tex. June 24, 2014) (Fitzwater, J.).

Demand for back pay for failure to comply with termination procedures is not a suit for money damages barred by sovereign immunity.

Posted in Unpaid wages

“Where statutory or constitutional provisions create an entitlement to payment, suits seeking to require state officer to comply with the law are not barred by immunity merely because they compel the state to make those payments.  Tamayo claims that Chapter 614 created a statutory requirement that Tamayo continue his employment until Sheriff Lucio complied with the procedures to terminate him.”

Tamayo v. Lucio, 2013 WL 3770914 at *5-6 (Tex. App—Corpus Christi, July 18, 2013, no pet.) (Valdez, Benavides, and Perkes, JJ.).

Pretext is established when the reason for termination is that Plaintiff never indicated if or when he would return if Plaintiff indicates he intended to return to work although at no certain date.

Posted in Disability discrimination

“Hill also offered at least some legitimate reasons for Thomas’ termination: that Thomas had not indicated if or when he would return and that he had in mind Thomas’ derogatory behavior towards him.  However, those reasons are offset by the contradictory evidence.  Thomas had indicated in his emails to Hill and others that he intended to return to work.”

Thomas v. Hill, 2014 WL 3955656, at *7 (W.D. La. Aug. 13, 2014) (James, J.).

An employee can demonstrate pretext where an employer terminates a non-party employee that participated in the investigation and the testimony as to reasons given for the employee’s termination differ between the non-party employee and decisionmaker.

Posted in Discrimination

“[T]he evidence shows a conflict regarding [decision-maker’s] stated reasons for not renewing [non-party witness’s] contract. (‘A court may infer pretext where a defendant has provided inconsistent or conflicting explanations for its conduct.’).”  “According to [non-party witness’s] testimony, when [decision-maker] notified her that that her contract was not being renewed, he said “due to the budget cuts, we’re going to have to let you go.” However, during his deposition, [decision-maker] testified he did not renew [non-party witness’s] contract because he ‘needed a staff position of a higher category according to the HR for the school and that higher category would include a higher level of experience or education background.’”

Hague v. Univ. of Tx. Health & Sci. Ctr. at San Antonio, 560 Fed. Appx. 328, 336–37 (5th. Cir. March 28, 2014) (Benavides, J.).

A Plaintiff’s subjective beliefs about why they are terminated are not relevant in determining whether they make a valid Title VII claim; the court is guided by McDonnell Douglas.

Posted in Race Discrimination

“During deposition, Plaintiff answered ‘no’ when asked if he was terminated because of his race but later stated that he believed race was a motivating factor in his termination.”

Brooks, et al. v. Firestone Polymers, LLC, 2014 WL 4792653, at *27 (E.D. Tex. Sep. 24, 2014) (Crone, J.).

An employee complaining of racial epithets and informing supervisors that they made him uncomfortable and requesting that these terms not be used to refer to him is evidence that (1) the employee was subject to unwelcome harassment and (2) that the harassment was based on a protected characteristic.

Posted in Race Discrimination

“[Plaintiff] testified that [Supervisor] repeatedly used racial epithets to refer to him, such as ‘güero,’ ‘mayate,’ and ‘ni – –er,’ even after [Plaintiff] requested not to be called those names.  Once, [Supervisor] told [Plaintiff]: ‘Get the f – – k away from me, I don’t want no mayate around while I’m eating.’  In addition, …[Plaintiff] was given extra duties because of his race.  For example, …[Plaintiff] was required to unload a truck by himself while his coworkers looked on.  [Plaintiff’s] boss…stated to his coworkers, ‘Let the mayate unload the bricks by himself.’”

Rhines v. Salinas Const. Technologies, Ltd., 2014 WL 2872716, at *3 (5th Cir. June 25, 2014) (unpublished) (Davis, Barksdale, and Elrod, JJ.)