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Discrimination, Retaliation, Wrongful Termination, and Unpaid Wages

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Alleging that an employee regularly worked over forty hours per workweek and was not paid time-and-a-half is sufficient to give rise to a plausible claim for relief under the FLSA.

Posted in FLSA violations

“Defendant suggests that Plaintiff’s complaint fails because he does not allege the total amount of unpaid wages that he deserves.  An FLSA plaintiff is not, however, required to plead the precise amount of unpaid wages to which he is allegedly entitled.”

Murphy v. Multi-Shot, LLC, 2014 WL 4471538, at *2 (S.D. Tex. Sep. 10, 2014) (Ellison, J.).

An employee may provide evidence to rebut an employer’s undue hardship defense or its evidence of a neutral policy.

Posted in Religion discrimination

“[T]he district court compared [Plaintiff] to similarly situated employees within the same protected class—i.e., those with religious observances.  But, the proper comparators are ‘similarly situated employees outside the protected class.’”  Davis v. Fort Bend County, 2014 WL 4209371 at *6 (5th Cir. 2014) (Prado, J.) (emphasis added) (citing McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam)).  The court found evidence of religious discrimination by Plaintiff’s testimony that “[Defendant] permitted another employee time off to attend a Fourth of July parade the weekend of the move.”

Davis v. Fort Bend County, — F.3d –, 2014 WL 4209371, at *6 (5th Cir. Aug. 26, 2014) (Prado, J.).

Rating an applicant as more qualified based on a false statement of education on the applicant’s resume casts doubt on the employer’s stated reason if the employer never asked about education during the interview.

Posted in Age discrimination

“While the district court cites cases for the propositions made by an applicant and has no duty to verify information, it is worth noting that Thomas was not even asked about his education during the interview.”

E.E.O.C. v. DynMcDermott Petroleum Ops. Co., 537 Fed. Appx. 437, 446(5th Cir. July 26, 2013) (Davis, Graves, and Higginson, JJ.).

An employer’s selective application of a facially neutral policy is evidence of pretext.

Posted in Race Discrimination

“A reasonable jury could conclude from [plaintiff’s supervisor’s] explanation, together with the summary judgment evidence that Plaintiff’s’ co-worker, Clark, also did not strictly follow TDCJ’s timesheet policy as written, that [employer’s] timesheet policy recognized a de facto exception for [public information officers].  If the de facto exception was selectively ignored in [plaintiff’s] case, a reasonable jury could also conclude that [plaintiff's] violation of [employer’s] timesheet policy was a pretext for [plaintiff’s] demotion.”

Lyons v. Texas Dept. of Criminal Justice, 2014 WL 4413259, at *2 (5th Cir. Sep. 9, 2014) (Davis, Dennis, and Costa, JJ.).

To prove constructive discharge, Plaintiff must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment.

Posted in Hostile Work Environment

“Plaintiff contends that DHS, through its discrimination and harassment, constructively discharged him. Plaintiff resigned in September 2008. Given that it has determined that a genuine dispute of material fact exists as to Plaintiff’s hostile work environment claim, and in light of other conduct by Defendant’s employees, the court concludes that a genuine dispute of material exists as to whether a reasonable person would feel compelled to resign because working conditions have become so intolerable.”

Vasquez v. Johnson, 2014 WL 2438380, at * 17 (N.D. Tex. May 30, 2014) (Lindsay, J.).

The availability of a volunteer to cover an employee’s shift precludes an employer from asserting an undue hardship as a result.

Posted in Religion discrimination

“[P]laintiff arranged for a substitute who voluntarily agreed to work [Plaintiff]’s shift that Sunday…. With a volunteer substitute available, [Defendant] would not have had to incur any cost requiring an employee to substitute for [Plaintiff], nor would [Defendant] necessarily be left short-handed.”  Davis v. Fort Bend County, 2014 WL 4209371 at *7 (5th Cir. 2014) (Prado, J.) (emphasis in original) (citing Antoine v. First Student, Inc., 713 F.3d 824, 839–40 (5th Cir. 2013).  The court found that the existence of a volunteer alone was sufficient evidence for the employer to make a reasonable accommodation: “Not only was [Plaintiff’s] ‘short period of absence’ minimal under Title VII, but [Plaintiff] … promised to report to work directly after the July 3rd event.”

Davis v. Fort Bend County, — F.3d –, 2014 WL 4209371, at *7 (5th Cir. Aug. 26, 2014) (Prado, J.).

In a failure to hire case, an applicant does not have to show that he or she is “clearly better qualified, but simply that the employer’s explanation for the employment decision is pretext.

Posted in Age discrimination, Disability discrimination

“As we have noted, while a showing that a plaintiff is clearly better qualified is one way of demonstrating that the employer’s explanation is a pretext, it is not the only way … the question is whether the assessment, even if incorrect, was the real reason for the action.”

E.E.O.C. v. DynMcDermott Petroleum Ops. Co., 537 Fed. Appx. 437, 446 (5th Cir. July 26, 2013) (Davis, Graves, and Higginson, JJ.) (citations omitted).

Showing that white employee was denied raise, even though fully funded by federal grant, by new black sheriff who recently hired two new blacks employees is enough create fact issue regarding intentional discrimination.

Posted in Race Discrimination

“Kelvin Williams, a black male, was elected sheriff.  James Moore, a black male, became warden.  Shortly thereafter, Williams promoted another black female, with no college degree or counseling certification, to be the director of the male alcohol and drug program at the facility at a salary of $40,000 per year.  He appointed Jean Fair, a black female, to be assistant director, with a $35,000 salary.  Plaintiff, who was forced to reapply for her position with the new sheriff, formally requested a raise but was declined despite the fact that the raise would be fully funded by federal monies and would cost Bolivar County nothing….  The court finds that the plaintiff has set forth genuine issues of material fact including, but not limited to, whether the defendant intentionally discriminated against her because of her race in failing to pay her comparably to similarly-situated black employees.”

Lyons v. Texas Dept. of Criminal Justice, 2014 WL 4413259, at *1 (5th Cir. Sep. 9, 2014) (Davis, Dennis, and Costa, JJ.).

regular pattern of frequent verbal ridicule or insults sustained over time can constitute severe or pervasive harassment sufficient to violate Title VII.

Posted in Hostile Work Environment

“In the interrogatories, Plaintiff states that Wood called him a “wetback”on five different occasions: (1) April 21, 2008; (2) May 29, 2008; (3) June 21, 2008; (4) July 10, 2008; and (5) August 8, 2008. Wood also told Plaintiff that “Salvadorans are liars” on July 8, 2008. Given the number of times these racial comments were made in a short, five-month period, the court determines that these actions amount to more than simple teasing, offhand comments, and isolated incidents, and that a genuine dispute of material fact is established as to Plaintiff’s hostile work environment claim.”

Vasquez v. Johnson, 2014 WL 2438380, at * 17 (N.D. Tex. May 30, 2014) (Lindsay, J.).

An employee’s bona fide religious belief does not require an inquiry into the nature of the activity itself.

Posted in Religion discrimination

“A showing of sincerity, however, does not require proof that the July 3rd church event was itself a true religious tenet, but only that [Plaintiff] sincerely believed it to be religious in her own scheme of things.”  Davis v. Fort Bend County, 2014 WL 4209371 at *4 (5th Cir. 2014) (Prado, J.) (citing Moussazadeh v. Texas Dep’t of Criminal Justice, 703 F.3d 781, 791 (5th Cir. 2012)).

Davis v. Fort Bend County, — F.3d –, 2014 WL 4209371, at *4 (5th Cir. Aug. 26, 2014) (Prado, J.).