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Discrimination, Retaliation, Wrongful Termination, and Unpaid Wages

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Summary judgment is not properly granted if the nonmoving party has not yet had an opportunity to conduct discovery necessary to oppose the motion.

Posted in FMLA violations

In this case, Crawford moved for summary judgment on December 16, 2015—less than two months after the case was initiated. The Court has yet to issue a scheduling order or conduct an initial case management conference. Additionally, the parties have not yet begun discovery—on the issue presented in the motion or any other. (“The [parties] have yet to conduct any discovery.”). Granting summary judgment not just before discovery has been completed, but before it has even begun on this issue, would be premature.

 

George v. Go Frac, LLC (W.D. Tex 2016) WL 94146

An employee who was misled about the availability of a promotion need not show that he or she actually applied for the promotion to establish that element of a prima facie case of a failure to promote claim

Posted in FMLA violations

Under these alleged facts, Wade has established a prima facie case for purposes of summary judgment. The Court disagrees with Home Depot that, under these alleged circumstances, Wade was required to apply through Career Depot. Although Home Depot did have a formal application process and Wade failed to follow that process, viewing the evidence in the light most favorable to Wade, as the Court must, a jury could find that Lebeouf, an assistant manager, apparently involved in the interview process,4 purposely misled her after she had inquired about the position. Wade indeed “sought” the promotion, but Lebeouf’s actions, combined with the lack of notice in the break room, denied her the opportunity to apply and interview for the position.

 

Charmine Wade v. The Home Depot USA, Inc. AKA The Home Depot (W.D. La. 2016) WL 67793

Sexually explicit remarks, spanning two years, which had been reported to an employee’s immediate supervisor, raise a fact issue regarding whether the environment was objectively abusive and altered terms of employment.

Posted in FMLA violations

“[A] repeated pattern of behavior consisting of sexual comments, humiliating jokes, insults, ridicule, and intimidation. Clark claimed she was subjected to continuous repeated sexual jokes and obscene language, most of which were directed at her” and although “it could be argued that most of the acts complained of by Clark were not objectively severe,3 the repeated nature of the comments and jokes over an almost two-year period was most certainly pervasive.” Alamo Heights Ind. Sch. Dist. v. Clark, 2015 WL 6163252, *5 (Ct. of App. San Antonio, Oct. 21, 2015).

 

Alamo Heights Ind. Sch. Dist. v. Clark, 2015 WL 6163252, (Ct. of App. San Antonio, Oct. 21, 2015). (Judge Pozza)

 

A jury could find that the employer’s decision to terminate an employee after the employee’s refusal to write down bible verses on a daily company wide email establishes a failure to accommodate on religious grounds.

Posted in FMLA violations

“A reasonable juror could find that Defendant failed to accommodate Plaintiff’s request because Plaintiff was terminated thirty-two (32) hours after his refusal to include Bible quotes in the Morning Coffee[name of daily email].” Mindrup v. Goodman Networks, Inc., No. 4:14-CV-157, 2015 WL 5996362, at *8 (E.D. Tex. Oct. 14, 2015).  Based upon this finding, the Court held that the refusal to include bible verses in a daily company wide email “is sufficient to raise a genuine issue of material fact as to whether Defendant’s explanation is not the true reason for Plaintiff’s discharge, but rather pretext for religious discrimination.” Id. at *10.

 

Mindrup v.Goodman Networks, Inc., No. 4:14-CV-157, 2015 WL 5996362 (E.D. Tex. Oct. 14, 2015) (Mazzant, J.)

Allowing employee to pay reduced rent for housing increases the employee’s regular rate of pay for computing overtime.

Posted in FMLA violations

Thus, in certain situations, an employee’s wages may include “the reasonable cost, as determined by the Administrator, to the employer of furnishing such employee with board, lodging, or other facilities.”  29 U.S.C. § 203(m).  However, such reasonable cost of lodging can only be computed when determining the employee’s regular rate of pay, such as when assessing whether the employee’s regular rate comports with the FLSA’s minimum wage requirements; it is not to be considered payment for overtime wages.  Pineda v. JTCH Apartments, LLC, No. 3:13-cv-0588-B, 2015 WL 5052241 at *5 (N.D. Tex. Aug. 26, 2015)

 

Pineda v. JTCH Apartments, LLC, No. 3:13-cv-0588-B, 2015 WL 5052241 (N.D. Tex. Aug. 26, 2015) (Boyle)

A five-year employment contract with a government entity that promises a severance of the remaining wages owed if the contract is terminated by the entity for any reason other than death or disability is enforceable where the employee has performed his obligations under the contract.

Posted in FMLA violations

“The employment contract does not constitute a gratuitous payment of public funds to Morales. The contract clearly serves a legitimate public purpose—the employment of the District’s general manager. The benefit received in return by the District under the contract is the performance by Morales of the duties of general manager. The ‘severance’ required for early termination of the contract by the District was a term that was negotiated by the parties, presumably to achieve that end. ‘A political subdivision’s paying public money is not ‘gratuitous’ if the political subdivision receives return consideration.’” 2015 WL 5655802, at *3 (quoting Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers’ Compensation Comm’n, 74 S.W.3d 377, 383 (Tex. 2002)).

 

Morales v. Hidalgo Cnty. Irrigation Dist. No. 6, No. 13-14-00205-CV, 2015 WL 5655802 (Tex App.Corpus Christi Sept. 24, 2015) (Perkes, J.) (Benavides, Perkes, & Longoria).

Failure to retain other older employees, Plaintiff who was 66, another who was 60, and two other older employees, after “outsourcing,” while retaining younger employees bolsters an inference of pretext.

Posted in Age discrimination, Pretext

“Although this evidence on its own likely would not support an inference of pretext, a rational juror could conclude that [Defendant’s] failure to re-hire these employees on a full-time basis further weakens the credibility of [Defendant’s] proffered rationale for not hiring [Plaintiff], thus buttressing a reasonable inference that the failure to rehire [Plaintiff] was based on her age.” Id. at 12, See, e.g., Pratt v. City of Hous., 247 F.3d 601, 607 (5th Cir.2001) (reversing summary judgment in favor of employer because a genuine dispute of material fact existed as to pretext in light of multiple pieces of evidence presented by plaintiff, including “allegations that [supervisor] discriminated in favor of white applicants on other occasions”).

 

 

Stennett v. Tupelo Public School Dist., 2015 WL 4569205 (5th Cir. 2015)

Evidence that the hiring decisions were based on subjective considerations such as, “looking for…a candidate…to kind of complement [him]” or “felt that [the successful] applicant would be a good instruction leader for her teachers,” may be pretext for age discrimination.

Posted in Age discrimination, Pretext

“[W]e have recognized that subjective hiring criteria “ ‘provide opportunities for unlawful discrimination’ because the criteria itself may be pretext for age discrimination.” Id. at 11, citing Medina v. Ramsey Steel Co., 238 F.3d 674, 681 (5th Cir.2001) (quoting Lindsey v. Prive Corp., 987 F.2d 324, 327 (5th Cir.1993)).

 

 

 

Stennett v. Tupelo Public School Dist., 2015 WL 4569205 (5th Cir. 2015)

Evidence that hiring decisions were based on qualifications not found in the job posting is evidence of pretext.

Posted in Pretext

“This court has held that an employer’s reliance on “previously unmentioned” job requirements can raise a “genuine issue of material fact as to pretext.” Id. at 11, citing Moss v. BMC Software, Inc., 610 F.3d 917, 926 (5th Cir.2010). Plaintiff was able to point to evidence that the “proffered reason for hiring [an] Assistant Principal was…his background in “STEM” (i.e., science, technology, engineering, and math)…, but that such qualifications were nowhere listed in the job posting. Similarly,…the hiring decisions for other positions were purportedly based largely on qualifications nowhere listed in the job postings or preferences: Tupelo Middle School Assistant Principal (experience teaching history and language arts and with guidance counseling), Lawhon Administrative Intern (prior experience at the school where students leaving Lawhon would move next), High School Advancement Academy Lead Teacher (math teaching experience), Tupelo High School Testing Coordinator (ability to understand the accountability system and help teachers understand data), District Testing Coordinator (math certification, experience as assistant principal at high school, and assistance with high school testing).”

 

 

Stennett v. Tupelo Public School Dist., 2015 WL 4569205 (5th Cir. 2015)

Where Plaintiff applies for seven positions and is never interviewed for five of them, a jury reasonably could determine that it was not a mere coincidence that Plaintiff was denied interviews.

Posted in Pretext

“Although…individual principals had the ultimate power to decide whom to interview, the record nevertheless supports a finding that the individual principals conferred in deciding not to interview [Plaintiff].” Id. at 10.

 

“Viewing the evidence in the light most favorable to [Plaintiff]…we conclude that a jury reasonably could determine that it was not a mere coincidence that [Plaintiff] was denied interviews for the vast majority of these positions notwithstanding her exemplary qualifications, pertinent experience, and excellent performance reviews, particularly where some of the principals indisputably conferred in their decision-making process and where the superintendent [who gave final approval] was clearly aware of [Plaintiff’s] interest in the available positions.” Id. at 10.

Stennett v. Tupelo Public School Dist., 2015 WL 4569205 (5th Cir. 2015)