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Plaintiffs need only allege facts that are within the reasonable scope of their EEOC investigation may later add more detailed facts in a lawsuit so long as they are within the reasonable scope of the investigation.

Posted in FMLA violations

“Plaintiff merely provides additional facts in her complaint that were not in her EEOC charge. In particular, she identifies the individuals mentioned in her charge who were allegedly promoted over her and who received higher wages for the same work. This is not an issue in which the Plaintiff is attempting to assert wholly new claims and the Court must determine whether the new allegations were reasonably expected to grow out of the EEOC charge.” Id. at 5 (internal citations omitted).

 

Carasha Isaac v. Wal-Mart Stores, Inc., 2016 WL 1660216 (E.D. LA April 27, 2016).

Judge: Karen Wells Roby

A Plaintiff need not allege each separate and distinct discriminatory act in an EEOC charge of discrimination in order to exhaust administrative remedies, but instead must only plead sufficient facts to inform the defendant of the possible claims that are intended to be pursued.

Posted in FMLA violations

“Plaintiff states during her employment she was paid less than her male counterparts with equal or less experience. She cites three examples: (1) an unidentified male employee, who worked at the vision center for a month longer than her, told her that he made two dollars more per hour; (2) an unidentified male employee made four dollars more per hour when he was in the manager training program; and (3) after she became a salaried employee a male employee named Chris, whose last name is unknown, was making six thousand more than her.” Carasha Isaac v. Wal-Mart Stores, Inc., 2016 WL 1660216, *4 (E.D. LA April 27, 2016). “Based on the above case law, the Plaintiff has sufficiently plead facts to inform the Defendant of the claims she intends to pursue.” Id.

 

Carasha Isaac v. Wal-Mart Stores, Inc., 2016 WL 1660216 (E.D. LA April 27, 2016).

Judge: Karen Wells Roby

 

If an employer’s motive behind an adverse employment action is to retaliate against actions it reasonable considered to be protected by the 1st Amendment, it does not matter if the employee actually engaged in the protected activity.

Posted in FMLA violations

“Heffernan’s supervisors demoted Heffernan from detective to patrol officer and assigned him to a “walking post.” In this way they punished Heffernan for what they thought was his “overt involvement” in Spagnola’s campaign.” Heffernan v. City of Paterson, New Jersey, et al., 2016 WL 1627953 *3 (2016). “In a word, it was the employer’s motive, and in particular the facts as the employer reasonably understood them, that mattered….Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander.” Id. at *5.

 

Heffernan v. City of Paterson, New Jersey, et al., 2016 WL 1627953 (2016).

Justice Breyer

 

: In FLSA Collective Action, potential defenses showing that plaintiffs are not similarly situated are only addressed at the decertification stage, not during the initial conditional certification inquiry.

Posted in FMLA violations

Defendant contends that even if there was a common illegal policy, the suit cannot proceed as a collective action because Defendant will assert defenses that require individualized analysis for each putative class member (Dkt. #22 at p. 12). Challenges in litigating the suit or a particular need to address each perspective member of the collective action as an individual will be addressed in the second stage. Stier v. Great Plains National Bank, No. 4:15-cv-519, 2016 WL 1572194 at *2 (E.D.Tex. April 19, 2016).

Stier v. Great Plains National Bank, No. 4:15-cv-519, 2016 WL 1572194 (E.D.Tex. April 19, 2016).

 

in FLSA Collective Action, Declarations from Plaintiff and other individuals detailing similar primary job duties and that they did not receive overtime pay is sufficient to conditionally certify class.

Posted in FMLA violations

Plaintiff offers testimony that he performed the duties of a mortgage loan officer working for Defendant . . . . Plaintiff provides declarations of other individuals who claim the same primary job duty. Further, Plaintiff asserts that the “same pay practice” is Defendant failing to pay loan officers compensation tied to actual hours worked, denying them overtime pay required under the FLSA. Plaintiff submits declarations identifying this “same pay practice.” The Court finds that Plaintiff has shown a sufficient factual nexus which binds the proposed class to a particular policy or practice. Stier v. Great Plains National Bank, No. 4:15-cv-519, 2016 WL 1572194 at *2 (E.D.Tex. April 19, 2016).

Stier v. Great Plains National Bank, No. 4:15-cv-519, 2016 WL 1572194 (E.D.Tex. April 19, 2016).

Testimony from Plaintiff that she was told the reason she was not selected for a promotion because the department’s executive was suspected of sexually harassing female employees serves as direct evidence of sex discrimination to defeat a motion for summary judgment.

Posted in FMLA violations

“The Magistrate Judge found that Plaintiff’s Title VII discrimination claim is supported by direct evidence, based upon her conversation with Mr. Nowzaradan, wherein he stated she was not promoted to the development department due to his concern that she would be sexually harassed there. While Defendants offered evidence to rebut this conclusion, it is not appropriate to make credibility determinations at the summary judgment stage. The Magistrate Judge’s determination that a genuine issue of material fact exists with regard to Plaintiff’s Title VII claim is not clearly erroneous. Accordingly, summary judgment is DENIED as to this issue.” 2016 WL 1441809, at *2.

 

Schutte v. Megalomedia, Inc., No. 1:24-CV-890-DAE, 2016 WL 1441809 (W.D. Tex. Apr. 12, 2016) (Ezra, J.).

The employer’s decision not to rehire Plaintiff shortly after she complained about being paid as an independent contractor and not an employee establishes a causal connection between the decision not to rehire Plaintiff and her protected activity under the FLSA.

Posted in FMLA violations

“While Plaintiff was employed by Defendants, she complained to her supervisors that she should be paid as an employee, rather than an independent contractor, because she was treated as an employee. (Id. ¶ 26.) Subsequently, Defendants offered to extend the contracts of every other coordinating producer besides Plaintiff who had worked on the fifth season of Shipping Wars, and ultimately rehired all but Plaintiff and one producer. (Id. ¶ 27.) . . . . The Magistrate Judge found that Plaintiff raised a genuine issue of material fact as to whether the non-discriminatory rationale proffered by Defendants was pretextual, because she pointed to inconsistent deposition testimony regarding the reasons for their failure to rehire Plaintiff. Further, Plaintiff had alleged a causal link between her happiness and her fair compensation. This determination is not clearly erroneous, and a genuine issue of material fact exists as to whether Plaintiff was not re-hired by Defendants in violation of 29 U.S.C. § 215(a)(3). Summary judgment should be DENIED as to this issue.” 2016 WL 1441809, at *1–2.

Schutte v. Megalomedia, Inc., No. 1:24-CV-890-DAE, 2016 WL 1441809 (W.D. Tex. Apr. 12, 2016) (Ezra, J.).

Inconsistent deposition testimony as to the reason Defendant did not rehire Plaintiff may be used to establish pretext.

Posted in FMLA violations

“The Magistrate Judge found that Plaintiff successfully made a prima facie case, and that Defendants articulated a non-discriminatory reason for their failure to extend Plaintiff’s contract by stating she was unhappy producing Shipping Wars, shifting the burden back to Plaintiff. (Dkt. # 52 at 5.) The Magistrate Judge found that Plaintiff raised a genuine issue of material fact as to whether the non-discriminatory rationale proffered by Defendants was pretextual, because she pointed to inconsistent deposition testimony regarding the reasons for their failure to rehire Plaintiff.” 2016 1441809, at *2.

Schutte v. Megalomedia, Inc., No. 1:24-CV-890-DAE, 2016 WL 1441809 (W.D. Tex. Apr. 12, 2016) (Ezra, J.).

Employees who merely utilize materials of commerce in their job can satisfy the first prong of the Enterprise Test under the FLSA.

Posted in FMLA violations

Plaintiffs allege that Rite–Way was an enterprise covered by the FLSA because (1) its employees handled materials such as “mops, brooms, towels, soap, chemicals, vacuum cleaners, and other cleaning materials, supplies, and equipment” that had moved in interstate commerce, and (2) its annual gross volume of sales exceeded $500,000.

Therefore, as held persuasively by the Eleventh Circuit, if an employer has employees “handling, selling, or otherwise working on … materials,” the employer would be subject to the FLSA if it satisfied the $500,000 sales volume requirement also.

 

Reyes v. Rite-Way Janitorial Service, Inc., WL 625064 (S.D. Tex.) February 16, 2016

 

Evidence of temporary employees being brought on in Defendant’s position can create an issue of fact as to whether an employee was replaced by someone outside the protected class.

Posted in FMLA violations

Plaintiff contends that she “was succeeded by one or more of three new male MEs and so was replaced by someone outside her protected class.” There is evidence that Defendant had “three temporary or agency MEs” but didn’t know if they were actually hired and was not sure of their race. Defendant argues that evidence this does not show that Plaintiff was replaced by a person outside the protected class. The Court finds that this uncertainty regarding whether or not Plaintiff was replaced by someone outside the protected class presents a genuine

 

Hardy v. Caterpillar Global Mining Equipment, WL 659150 (E.D. Tex.) February 18, 2016