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Ministerial Exception is an affirmative defense, not 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)

A fact issue exists as to whether or not an applicant applied for the open position, when the decision maker fails to follow his own policy of going to back to review early applications after the position is formally posted.

Posted in Sex Discrimination

“McMullin learned of the vacancy from the officer previously holding the position. ‘The standard procedure for applying for an open position…was to send a letter of interest after learning of an available position. So, McMullin submitted her letter of interest on February 27, 2012. It was Colonel Berry’s policy to ignore letters like Lieutenant McMullin’s “until the position is posted.’ The position was posted on March 26, 2012. ‘Colonel Berry took no action initially with respect to Lieutenant McMullin’s application because the Director’s position had not yet been ‘posted,’ but [] for some reason, Colonel Berry continued to ignore Lieutenant McMullin’s application after the Position Open Notice was released despite his policy to ignore early arriving applications only ‘until the position is posted.’ ‘[T]hese facts and reasonable inferences could support the conclusion that Lieutenant McMullin applied for the Director’s position and was rejected.’ This is an issue for a factfinder to resolve.”

McMullin v. Mississippi Department of Safety, No. 14–60366, 2015 WL 1529108 (5th Cir. 2015)

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.).