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An employer is not entitled to the Ellerth/Faragher affirmative defense as a matter of law where other supervisors were aware of the conduct and failed to report it in accordance with employer’s policies and procedure or where the employee is not provided any assurances as to how “no contact” with the harasser will be enforced.

“Plaintiff testified that because she was provided no assurances about how no contact with [the harasser] was going to be enforced and [the harasser] was not disciplined in any manner, she had no choice but to accept the transfer.  A genuine issue of material fact exists as to whether the employer exercised reasonable care to correct promptly any sexually-harassing behavior.”

Sanders v. Christus Santa Rosa PASC, 13-CV-250, 2014 WL 201071 at *6 (W.D. Tex. January 17, 2014) (Rodriguez, J.).


Along with evidence of pretext, statements after termination that an employee would be fine because she was old enough to receive Social Security and was an old lady slow to make decisions constitutes evidence of age discrimination.

“[Employee] told Plaintiff that she would be okay financially because she was old enough to receive Social Security benefits … [and] that training Plaintiff was ‘not a priority’ and that she and [Employee] were ‘old ladies’ who were ‘slow to make decisions’ … [T]he statements are evidence that, combined with other evidence discussed above, raises a genuine issue of material fact.”

Bautista v. Quest Diagnostics Clinical Laboratories, Inc., 2013 WL 4647677 at *6 (S.D. Tex. August 30, 2013) (Atlas, J.).

Employer giving employee the option of turning in two weeks notice or being immediately terminated is constructive discharge.

“McMann testified in his deposition that Watson told him that he had an option of turning in his two weeks notice or being terminated immediately….  The factual dispute[s] … are enough to demonstrate a genuine dispute of material fact.”

McMann v. Greystar Management Services, LP, CA No. 1:12-CV-909, 2013 WL 6243847 at *4 (W.D. Tex. Dec. 2, 2013) (Austin, J.).

An employee may adequately identify and raise a disparate employment practice resulting in discrimination when two departments consolidate into one.

“Although the City’s complaints about the alleged shortcomings in [Plaintiff]’s analysis may go to the probative value of his testimony, based on the record as a whole we conclude that there is sufficient statistical evidence from which a jury could reasonably conclude that the Consolidation Agreement caused the disparate impact alleged.”

City of Austin v. Chandler, 2014 WL 524671 at *8 (Tex. App.—Austin, no pet.  February 7, 2014) (Field, Goodwin, and Puryear, JJ.).

Under the requisite totality of the circumstances, a material fact issue exists on whether the comments and actions of an employer were severe or pervasive.

“A fact issue exists as to whether conduct is severe or pervasive where an employee provides evidence that the harasser ‘sought her out, gave her hugs, invited her to drinks, took a photo of her and showed it to his subordinate, used her cell phone and added him to her Facebook ‘friends,’ and showed her a picture of a man performing oral sex on a woman and told her that he changed his mind about oral sex’ and where the harasser admits to showing the employee a video clip of a horse sodomizing a woman.”

Sanders v. Christus Santa Rosa PASC, 13-CV-250, 2014 WL 201071 at *4 (W.D. Tex. January 17, 2014) (Rodriguez, J.).