Fifth Circuit adopts precedent of the Third and Eleventh Circuits in regards to customs under the FLSA

by dmhaynie on May 19, 2012 in FLSA, Overtime with No comments

Hourly employees of McWane, Inc.  filed a collective action against McWane under the Fair Labor Standards Act (FLSA) seeking compensation for time spent putting on and taking off gear before and after their scheduled shifts.  A district court granted summary judgment for employer so the employees then appealed to the U.S. Court of Appeals for the Fifth Circuit.  McWane operates plants that manufacture cast iron pipe and fittings.  The hourly employees at McWane’s plants wear protective gear while at work, including hard hats, steel-toed boots, safety glasses, and ear plugs.  This appeal involves hourly workers at ten McWane plants that operate under collective bargaining agreements (CBA).  Different CBAs govern each of the plants, and workers are employed subject to the terms of their respective CBA.  Three of the plants operate under CBAs that expressly exclude compensation for pre- and post-shift donning and doffing of protective gear; the other seven CBAs do not address pre- and post-shift time spent putting on and taking off protective gear.  Allen v. McWane, Inc., 593 F.3d 449, 451 (5th Cir. 2010).

The workers at the plants are paid by the hour, based on shift or line time.  Line time refers to the practice of measuring the shift as starting when the first item hits the processing line and ending as the last item leaves the processing line. None of McWane’s employees at these plants have ever received compensation for pre- and post-shift changing time. Union representatives and the employees attest that they were not aware that the pre- and post-shift changing time was potentially compensable under the FLSA.

The employees claimed that they did not knowingly agree to a practice of non-payment for changing time, and that those declarations require reversal of summary judgment.  They testified that those declarations demonstrated only that the employees and their union representatives were unaware of their legal rights under the FLSA-not that they were unaware that they were not being compensated for the time.  This is because when employees and union representatives are “aware of the facts surrounding compensation policies for changing clothes, a ‘practice’ exists under the CBA sufficient to invoke a FLSA defense.”  Id. at 453.  On the other hand, evidence of the employees and their union representatives’ ignorance of the fact of non-compensation could create a genuine issue of material fact; however, the employees did not offer any evidence to this regard.

In the end, the Fifth Circuit adopted the reasoning of the Third and Eleventh Circuits and held that negotiation is not necessary in order to find that a “custom or practice” exists under the FLSA.  Subsequently, the court stated affirmed the lower court’s reasoning.

Former postal carrier tried to bring a sexual harassment and retaliation claim, but did not timely file her allegations

by dmhaynie on May 17, 2012 in Hostile Work Environment, retaliation, Sexual Harassment with No comments

A former rural postal carrier for the United States Postal Service (USPS) filed a Title VII claim against the Postmaster General alleging hostile work environment, sexual harassment, and retaliatory termination.  A U.S. district court granted summary judgment in favor of USPS based on the employee’s failure to exhaust administrative remedies.  Marie Lynette Austin worked as a rural postal carrier for the USPS from 1995 until her termination in October 2006.  Austin alleges that on December 22, 2005, her co-worker sexually assaulted her, and shortly after that she stopped showing up for work.

In early January of 2006, Austin discussed the incident with two counselors at the USPS’s Employee Assistance Program, which resulted in an internal investigation through the Postal Inspection Service.  Austin, however, continued her unauthorized absence.  As a result, on January 11, 2006, the Postmaster sent Austin a letter directing her to report for an investigative interview on January 17 to discuss her absence.  Austin failed to respond to the letter and did not attend the interview, and as a result, the Supervisor of Customer Services, suspended Austin for seven days.  Austin v. Potter, 358 Fed. Appx. 602, 605 (5th Cir. 2010).

In January of 2006, Austin reported the alleged sexual assault to the local police department and met with a postal investigator regarding the internal investigation, however, she did not return to work.  In April of 2006, the Postmaster sent her another letter that directed her to submit evidence sufficient to justify her absence within fifteen days.  When Austin failed to do so, the Supervisor of Customer Services suspended Austin for fourteen days.  Then in July of that same year, Austin contacted an Equal Employment Opportunity (EEO) counselor at USPS to commence an agency action alleging sexual harassment.  After informing Austin that the EEO could not resolve the matter informally, an EEO Dispute Resolution Specialist told Austin that she had a right to file a formal EEO complaint.  Austin filed the complaint in September, but the EEO office dismissed it as untimely because Austin failed to initiate EEO contact within forty-five days of the incident.  Id. at 606.

Then in August the USPS issued Austin a Notice of Removal stating “you are hereby notified that you will be removed from the U.S. Postal Service, effective Friday, October 6, 2006.”  The notice cited her extensive absence without leave and her failure to report to an investigative interview as the reasons for her termination.  On March 1, 2007, 182 days after Austin received the notice, she contacted the EEO to commence a formal complaint alleging that the USPS terminated her in retaliation for reporting her alleged sexual assault.  Id. at 607.  Austin argued that she did not learn about her termination until March 1, 2007 because the USPS had allegedly sent her several different termination dates. The USPS’s EEO office issued its Final Agency Decision on March 24, 2008, which dismissed Austin’s complaint because she “received notification on August 31, 2006, that she was being terminated … effective October 6, 2006,” and had not initiated agency contact within forty-five days of her termination.  Id.

Finally, In June of 2008, Austin filed suit in district court, arguing that her termination resulted from retaliation and a hostile work environment.  The district court granted the USPS’s motion for summary judgment, holding that because Austin did not initiate agency contact until approximately six months after receiving written notice of her termination, the EEO correctly dismissed her agency complaint as untimely, and as a result, the court did not have subject matter jurisdiction to consider her retaliation claim. Then on appeal, the Fifth Circuit found that because Austin failed to initiate contact with an EEO officer within forty-five days, she failed to exhaust her administrative remedies, and therefore they affirmed the district court’s ruling in favor of USPS.

An applicant for a police position alleged the department was discriminating against him due to his age and race

by dmhaynie on May 15, 2012 in age discrimination, Race Discrimination with No comments

An applicant for an entry level police officer position at the Texarkana police department brought an action against the department alleging age discrimination under Age Discrimination in Employment Act (ADEA), and race discrimination under Title VII of the Civil Rights Act.  A U.S. district court granted the police department’s motion for summary judgment, and thus the job applicant appealed.  Allen Bishop, a forty-year-old African-American male, applied for an entry level police officer position in the Texarkana, Texas Police Department (TTPD.)

Bishop passed both the civil service examination and the physical fitness assessment. TTPD then asked Bishop to complete a personal history statement and submit certain documents to enable TTPD investigators to conduct a background investigation. Bishop provided an incomplete personal history statement and failed to submit his “Form DD-214,” which would have shown the circumstances surrounding his discharge from military service.  Bishop v. Texarkana Texas Police Dept., 370 Fed. Appx. 546, 548 (5th Cir. 2010).  On his personal history statement, Bishop stated that he served in the United States Army Reserves from January 1991 through January 1999 and was honorably discharged, but did not mention any other military service.

TTPD rules require former members of the military to have nothing less than an honorable discharge.  During an interview with a TTPD background investigator, Bishop said he was uncertain of his military discharge status because of an issue relating to denial of his request to transfer from one reserve unit to another.  Bishop stated he believed he had been placed on “inactive” status.  TTPD subsequently received the Army’s Form DD-214 showing that Bishop entered service in September 1991, separated in March 1992, and received an “uncharacterized” discharge.  Id. at 549.  TTPD also received another Form DD-214, learning for the first time that Bishop had been in the United States Navy for about a month and a half in 1986; the Navy described Bishop’s discharge status as an “entry level separation.”  TTPD then sent Bishop two letters explaining he was automatically disqualified from consideration due to his “uncharacterized” discharge from the Army Reserves.  Id. Bishop then filed a charge of discrimination with the EEOC and received a right to sue letter.

On appeal, the Bishop argued that TTPD refused to hire him because he received a discharge that was other than honorable, and that this criterion was impermissible.  However, the Fifth Circuit didn’t even look at this, because even if Bishop were to establish his prima facie case of discrimination, the TTPD has articulated a valid non-discriminatory reason for not hiring Bishop- he lied on his personal history statement.  Therefore, the Fifth Circuit found that Bishop failed to carry his burden of establishing a claim for either race or age discrimination, and thus affirmed the lower court’s decision in favor of the TTPD.

Veteran sues the VA after he did not get the cemetery representative position

by dmhaynie on May 13, 2012 in retaliation, Uncategorized with No comments

A veteran brought an action against the Department of Veterans Affairs (VA) and others for retaliation arising from the VA’s failure to hire him for the cemetery representative position.  A district court entered summary judgment in the VA’s favor because it found that the veteran failed to administratively exhaust most of his claims and that the claims that were properly before the court failed to present any issues of material facts.  Bowers v. Peake, 366 Fed. Appx. 562, 563. (5th Cir. 2010).  Thus the veteran appealed.  The veteran asserted a retaliation claim, alleging that he was not hired by the VA for a cemetery representative position on account of previous complaints he filed with the Equal Employment Opportunity Counsel.

However, the VA never filled this position that the veteran applied for, and thus, non-selection for a position that remains unfilled cannot support a retaliation claim because “the cancellation of an opening is a legitimate, non-discriminatory and non-retaliatory reason for not selecting a person for those positions.” Id. at 564.

Bowers also alleged that he was entitled to be hired for the cemetery representative position on account of his status as a retired Master Sergeant in the U.S. Army.  However, an agency is allowed to cancel vacancy announcements in any manner not inconsistent with law, and by doing so does not violate the preference rights of any veterans who applied for the position.  Thus, the court dismissed all of the veteran’s claims and found in favor of the VA.

Jamaican employees could not establish a prima facie case against their former employer on any of their claims

by dmhaynie on May 11, 2012 in Hostile Work Environment, Race Discrimination, retaliation, Uncategorized with No comments

Two black employees, who were also from Jamaica, brought an action against their employer, alleging a racially hostile work environment and race and national-origin discrimination in violation of 42 U.S.C. § 1981 and Texas law, interference and retaliation in violation of the Family and Medical Leave Act (FMLA), and discrimination based on gender and pregnancy in violation of Texas law and 42 U.S.C. § 1981.

Mediterranean Shipping Company (MSC) is a worldwide shipping line engaged in international container transport.  MSC hired Plaintiffs Ceceil Collins-Pearcy and Mark Pearcy, a married couple, to work in MSC’s Houston office in June of 2006.  The plaintiffs were authorized to work in the United States for one year at the time of their hire, under the optional practical training program, which allows certain international students to work in the United States for approximately one year after they have completed their studies.  Collins-Pearcy v. Mediterranean Shipping Co. (USA) Inc., 698 F. Supp. 2d 730, 736 (S.D. Tex. 2010).

The married couple worked here for almost a year, when MSC decided in February of 2007, not to sponsor the plaintiffs’ work-visa applications, which, if they would have, it would have provided the plaintiffs the legal status necessary to continue their employment at MSC.  MSC cited the plaintiffs’ poor attendance and work performance as the reason for not sponsoring their visas.  Id. at 738.  Then in March, Collins-Pearcy began a maternity leave that ran until May 21, 2007.  The Plaintiffs’ employment with MSC was then terminated in June of 2007, and the plaintiffs subsequently filed an employment discrimination suit against MSC.

MSC filled a motion for summary judgment on all claims, and the district court granted it.  The court found that MSC was entitled to summary judgment because the plaintiffs could not raise a genuine issue of material fact on any of their claims, and were unable to establish a prima facie case.  Consequently, since the plaintiffs could not produce enough evidence to support their claims, the court found in favor of MSC.

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