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An employee may establish a prima facie cause of age discrimination by presenting evidence that her hours were gradually reduced while younger employees’ remained the same, she was discharged, and the younger employees were trained to move into her position.

“Hall presented evidence that younger employees were trained to move into positions that assumed the duties of the food prep position—a position that Hall presented evidence was being phased out of RDSL’s corporate structure. Hall further presented evidence that unlike her younger counterparts, she was not trained for this new position. This evidence is the type of circumstantial evidence from which a factfinder might reasonably conclude that RDSL intended to discriminate against Hall because of her age in reaching its decision to end her employment.”

Hall v. RDSL Enterprises, LLC, 2014 WL 656843 at *6 (Tex. App.—Fort Worth, no pet.  February 20, 2014) (Gardner, Meier, and Gabriel, JJ.).

A plaintiff may demonstrate that there is a reasonable basis for crediting the assertion that the aggrieved individuals are similarly situated for the purpose of conditional certification where one former employee files a Notice of Consent to opt in after the plaintiff files his motion for certification.

“The Court finds that [the employee] meets his burden to establish that he is similarly situated to other employees in the proposed class.  In his declaration, [the employee] states that he was required to work approximately seventy-three hours per week and was paid a flat rate of $145 per day.  He did not receive overtime compensation for the hours he worked in excess of forty per workweek.  In addition, [the employee] offers the names of two other sushi … who were employed by Defendants, worked in excess of forty hours per workweek, and were also paid a flat daily rate.  [The employee] also offers the declaration of … a manager at … which corroborates his statements…. Since [the employee] filed his motion for certification, one former employee … has filed Notice of Consent to opt in to the lawsuit….  This is sufficient evidence to provide a reasonable basis for crediting the assertion that aggrieved individuals are similarly situated to [the employee] and they wish to join the action.”

Chin Chiu Mak v. Osaka Japanese Restaurant, Inc., No. 4:12-CV-3409, 2014 WL 222537 at *3 (S.D. Tex. January 21, 2014) (Harmon, J.).

Statement in termination letter about not returning to work creates fact issue as to whether FMLA absence was a factor in termination.

RULE: Statement in termination letter about not returning to work creates fact issue as to whether FMLA absence was a factor in termination.

“Second, Ion argues that Ogborn’s statement in the termination letter, ‘[y]ou haven’t returned to work since your suspension,’ indicates that his FMLA-related absence was a reason for his termination. Chevron argues that this language is merely a factual statement, not a reason for Ion’s termination. The district court held that ‘a reasonable jury could conclude that this mention of Ion’s absence from work, in the litany of other complaints about his actions, showed that Chevron considered FMLA protected leave in terminating him.’ We agree with the district court. Drawing all reasonable inferences in favor of the nonmoving party, a reasonable jury could conclude that the inclusion of this statement in the same paragraph listing the reasons for Ion’s termination could indicate that his absence was also a reason for his termination.” Ion v. Chevron USA, Inc., 731 F.3d 379, 391-92 (5th Cir. 2013).

General claims of working over forty hours per workweek with no overtime pay are sufficient to defeat motion to dismiss FLSA action because Plaintiff is not required to state facts showing he is non-exempt.

“The Plaintiff’s assertions that he worked over forty hours in a work week and was not paid overtime or minimum wage are not legal conclusions, but rather factual allegations that if proven give rise to a plausible claim for relief.”

Holland v. Wright, No. 1:13-cv-16, 2013 WL 5290658 at *3 (E.D. Tex. September 19, 2013) (Davis, J.).

Trucks manufactured out-of-state that are used to transport patients purely within the state are “materials” under FLSA, which bestows FLSA coverage on the employer.

RULE:  Trucks manufactured out-of-state that are used to transport patients purely within the state are “materials” under FLSA, which bestows FLSA coverage on the employer.

“Accordingly, the vehicles used in the performance of transporting non-emergency patients to appointments in the course of Defendants’ business are “materials,” i.e., those vehicles are necessary for transporting those patients and they have a significant connection to the activity of transporting the patients. Defendants are therefore subject to FLSA coverage.”

White v. NTC Transp. Inc., No. 4:11cv007-SA-JMV, 2013 WL 5430512 at *6 (N.D. Miss. Sept. 27, 2013)