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Plaintiff’s stronger qualifications can by itself create pretext in a failure to hire case. No “clearly better qualified” analysis required

Posted in Failure to hire, Pretext

“A reasonable jury could consider the strength of [Plaintiff’s] qualifications vis-à-vis the successful younger applicants as undermining the credibility of [Defendant’s] proffered hiring rationale—i.e., that the younger successful applicants were selected because they were all better qualified than her. Indeed, evidence of a plaintiff’s superior qualifications is directly probative of pretext, Patterson, 491 U.S. at 187, and [Plaintiff] need not establish that she was “clearly better qualified” in order for this court to consider her comparatively exemplary qualifications in tandem with the other evidence, outlined infra, supporting the inference that [Defendant’s] proffered hiring rationale is pretextual. Id. at *9.


“[E]vidence showed that, measured in terms of education and experience, [Plaintiff] was more qualified than each of the successful younger applicants, except one…. For example, [Defendant]…select[ed]…a substantially younger applicant with only an AA certification and twenty-three fewer years of teaching experience than [Plaintiff]. [Defendant] also selected a substantially younger candidate…who had only an AA certification and only half the years of overall teaching experience as [Plaintiff]. Similarly, [Defendant]…hired a substantially younger applicant with only an AA certification and ten years of teaching experience. Defendant also hir[ed] a substantially younger applicant with only an AA certification and seven years of overall experience.”


Stennett v. Tupelo Public School Dist., 2015 WL 4569205 (5th Cir. 2015)

Evidence that co-employee or manager misrepresented employment test results that may have been caused by employee’s disability shows disability animus that may be imputed to company to show pretext because employer relied on that misrepresentation to terminate plaintiff.

Posted in Cat's paw, Imputing Improper Motive, Pretext


As discussed above, Hauss allegedly misrepresented the erratic test results—which Dr. McKinnon and Audiologist Sanders attribute to Brown’s hearing disability—to the decisionmaker Goodson, thereby creating a factual issue as to whether Hauss exhibited disability-based animus. In turn, Goodson conducted a subsequent investigation into Brown’s conduct, including, among other things, consultation with Hauss. Goodson testified that he terminated Brown “purely based off what the T.K. Group told us about the hearing test that was taken” and that he never personally spoke to the T.K. Group employees, but relied on Hauss’ representation of her conversations with the technicians.

Brown v. Cooper Tire & Rubber Co., No. 1:13-cv-00176-SA-JMV, 2015 WL 4477564 at *4 (N.D. Miss. July 22, 2015)


Expert testimony that disability caused unusual test results that were basis for termination establishes the causal connection requirement for prima facie disability discrimination case.

Posted in FMLA violations

In view of these expert opinions that Brown’s hearing impairment caused his unusual results, and given the fact that these results undisputedly resulted (one way or the other) in his termination, the Court finds sufficient evidence of a causal nexus between Brown’s disability and termination.

Brown v. Cooper Tire & Rubber Co., No. 1:13-cv-00176-SA-JMV, 2015 WL 4477564 at *3 (N.D. Miss. July 22, 2015)

Submission of online application by Plaintiff authorizing prior employers to provide full details of past employment does not waive a mutual non-disparagement provision of a settlement agreement.

Posted in Immunity/Affirmative Defense

Assuming Shannon authorized the Church to speak with the Seminary, the Church nevertheless was bound to communicate in accordance with the terms of its Agreement. We conclude that in signing the authorization, Shannon did not unequivocally manifest the intent not to assert any of her rights under the Agreement. In other words, Shannon did not authorize the Church to disparage her.

Shannon v. Memorial Drive Presbyterian Church, U.S., — S.W.3d —, No. 14-14-00359-CV 2015 WL 4463919 at *9 (Tex. App.—Houston [14th Dist.] July 21, 2015).

Defendant’s expressions of doubt that plaintiff could perform the job duties for a prospective employer were not protected by Tex. Lab. Code § 103, which makes employers immune from suit for describing the manner in which an employee performed her job duties for that employer.

Posted in Immunity/Affirmative Defense

Here, the Church did not present evidence of any statements to the Seminary relating to Shannon’s violation of any policy of the Church or failure to perform her job as required by the Church. The Church did not establish that Steane’s statement expressing doubts about Shannon’s ability to solicit donations for the Seminary was related to the manner in which she performed her job at the Church. At most, one might infer that Shannon left the Church on unfavorable terms, but these statements provide no analysis of her attendance, attitudes, effort, knowledge, behavior, or skills as Elementary Ministries Director. Accordingly, the Church has not conclusively established its entitlement to summary judgment on the affirmative defense of immunity under chapter 103.

Shannon v. Memorial Drive Presbyterian Church, U.S., — S.W.3d —, No. 14-14-00359-CV 2015 WL 4463919 at *8 (Tex. App.—Houston [14th Dist.] July 21, 2015).


Ministerial Exception is an affirmative defense, not a jurisdictional bar.

Posted in Immunity/Affirmative Defense

The Church moved only on the ministerial exception as a jurisdictional bar and did not move for summary judgment as to this affirmative defense. Accordingly, the trial court erred to the extent that it concluded it did not have subject matter jurisdiction over Shannon’s claims under the ministerial exception. We sustain Shannon’s fifth issue.

Shannon v. Memorial Drive Presbyterian Church, U.S., — S.W.3d —, No. 14-14-00359-CV 2015 WL 4463919 at *6 (Tex. App.—Houston [14th Dist.] July 21, 2015).

Whether former employer disparaged plaintiff to prospective employer by stating (1) plaintiff not rehireable, (2) that it should be obvious there were issues with plaintiff because of settlement agreement, and (3) that plaintiff would not be able to perform job for prospective employer could be analyzed in purely secular terms and so did not implicate immunity under Ecclesiastical Exemption doctrine.

Posted in Immunity/Affirmative Defense


The Church argues that it is immune from suit because “what is ‘disparaging’ involves subjective judgment through the eyes of the Church.” To the contrary, applying the plain meaning of the word “disparage,” a factfinder could determine whether the Church belittled Shannon or “reduce[d her] in esteem or rank” when, as alleged, (1) a Church member initiated a conversation with the Seminary about Shannon’s references after Shannon already had been hired, (2) Winship, the Church’s head of human resources, told Gabbard, the representative from the Seminary, that she could not discuss the reasons Shannon left the Church but also “could not think of a circumstance under which the [C]hurch would rehire [Shannon] or that [Shannon] would want to come back,” and (3) Steane told Gabbard that “it should be obvious that there were issues, otherwise there would not be an agreement” and “it would be difficult for [Shannon] to carry out her duties as a fundraiser” anywhere in Houston. Although these facts may be disputed, they can be analyzed under a neutral definition in purely secular terms.

Shannon v. Memorial Drive Presbyterian Church, U.S., — S.W.3d —, No. 14-14-00359-CV 2015 WL 4463919 at *6 (Tex. App.—Houston [14th Dist.] July 21, 2015).

Unless expressly addressed in the arbitration agreement, availability of collective arbitration is determined by arbitrator.

Posted in FMLA violations

While courts determine the validity of arbitration agreements, whether the contract forbids collective arbitration does not fall within the limited circumstances under which “courts assume that the parties intended courts, not arbitrators, to decide a particular arbitration-related matter,” because the question involves contract interpretation regarding the “kind of arbitration proceeding the parties agreed to.


Robinson v. J&K Admin. Mgt. Servs., Inc, NO. 3:14-cv-00956-L, 2015 WL 1310213 at *4 (N.D.Tex. March 24, 2015)

An employer that works in several cities and countries and is in the shipping industry is an enterprise engaged in commerce under the FLSA.

Posted in FLSA violations

“‘Commerce’ means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.’ Plaintiff’s complaint alleges that Defendant itself has offices in four states and five countries. In addition, PetroMar’s business involves shipping in the oil and maritime industry, and its employees were sent to work on oil vessels. The Court can reasonably infer that this involves work ‘on goods or materials that have been moved in or produced for commerce by any person.’ Accordingly, the Court finds that Plaintiff has satisfied his pleading burden with respect to establishing that PetroMar is an ‘enterprise engaged in commerce.’”


Courtney v. PetroMar International, Inc., WL 3422445 (S.D. Tex. 2015)

Alleging the underlying facts and the key players at issue is enough to sufficiently state a claim for violation of the Equal Protection Clause due to race-based termination and sexual harassment.

Posted in Race Discrimination, Sexual Harassment

“In the complaint, the Plaintiffs allege that (a) they are members of a protected class; (b) they were subjected to intentional discriminatory treatment during their employment with SLU; (c) similarly situated white employees were treated differently; (d) they were terminated due to their race; (e) Gandolfo was subjected to unwelcome sexual harassment that was willfully disregarded by the supervisors at SLU; and (f) they both made grievances to supervisors and filed EEOC complaints, but were subsequently given low performance reviews, suspended without pay, and ultimately terminated. Unlike the summary judgment standard that requires an evidentiary pleading standard, the Plaintiffs only need to allege sufficient facts at this stage to give the Defendants fair notice of the claims and the grounds upon which they rests. Here, the Plaintiffs’ allegations set forth the underlying facts concerning the various instances of the alleged discrimination as well as the key players in the discriminatory acts. These allegations are enough to make out a cognizable claim and provide fair notice to the Defendants of their claims.”

Jones v. Board of Supervisors of the University of Louisiana System, WL 3409477 (E.D. La. 2015)