Former Employee brought an age discrimination suit against his former employer after they allegedly fired him for sexual harassment

by dmhaynie on September 17, 2012 in age discrimination, Sexual Harassment with No comments

An employee brought an action against his employer under the Age Discrimination in Employment Act (ADEA) after he was terminated for non-compliance with the employer’s written sexual harassment policy.  A U.S. district court granted summary judgment in favor of the employer and thus the employee appealed.  Wayne Jackson was employed by Cal-Western Packaging Corporation in various managerial positions for eight years, until June of 2007.  In May of 2007, one of Jackson’s coworkers, emailed her supervisor, asserting that Jackson had engaged in behavior that made her “uncomfortable.”  Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 376 (5th Cir. 2010).  She recounted that Jackson had asked to see her “breasts” and had commented that her boyfriend must like “big boobs.”  Id. She stated that Jackson had “on many occasions” made inappropriate statements or comments in front of her and her female coworkers.

In addition to this, she told her supervisor that every time she saw Jackson he tried to touch her and that he had once cornered her and asked her to raise her blouse.  After the coworker made this allegation, the company started an internal investigation and thus interviewed several employees who corroborated the allegations.  Thus, the company terminated Jackson (who was 69) for his non-compliance with the company’s written sexual harassment policy, a copy of which Jackson had signed when he was hired in 1999.

Subsequently, Jackson brought suit against Cal-Western for age discrimination.  His claim primarily relied on a remark his boss allegedly made to another coworker in 2006 to the effect that Jackson was an “old, gray-haired fart” and that the coworker would be in charge when Jackson retired.  Cal-Western moved for summary judgment and the district court ruled that Jackson had alleged a prima facie case of discrimination and that Cal-Western had offered a legitimate, non-discriminatory reason for firing him, but that Jackson had failed to show that there was a fact issue as to whether Cal-Western’s reason for firing him was pretextual.

On appeal, the Fifth Circuit explained that comments are evidence of discrimination only if they are “1) related to the protected class of persons of which the plaintiff is a member; 2) proximate in time to the complained-of adverse employment decision; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.”  Id. at 378.  While the boss’s alleged comment meets the first and third criteria, Jackson provided no evidence that the comment was proximate in time to his firing or related to the employment decision at issue. Consequently, this comment alone, or in combination with Jackson’s uncorroborated denial of any sexual harassment, was insufficient to establish a genuine issue of material fact as to pretext.  The court found that there was substantial evidence that Jackson was fired for violation of Cal-Western’s sexual harassment policy, and thus affirmed the lower court’s decision.

 

Employees seeking to be certified as a class in an Overtime Dispute were not “similarly situated,” and thus were not allowed to file a Class Action

by dmhaynie on September 15, 2012 in FLSA, Overtime with No comments

Former employees of two affiliated companies that produced and sold eyewear and performed related services brought an action against their former employers, alleging that they did not receive overtime compensation, and that the companies were violating the Fair Labor Standards Act (FLSA).  The employees moved for conditional class certification, while the employers moved to strike portions of employees’ declarations.  The defendants in this case were Eyemasters of Texas, Ltd., Eye Care Centers of America, Inc., and Eyemasters, Inc.  A typical Eyemasters store employs a general manager, retail supervisor, lab supervisor, district technical manager, lab technicians, and various hourly employees. However, staffing varies from location to location.  “For example, one store may not generate enough sales to justify a retail supervisor.  Another may have a district technical manager it shares with other branches, but no lab supervisor. The employees each store requires depends on the store’s needs and past performance.”  Marshall v. Eyemasters of Texas, Ltd., 272 F.R.D. 447 (N.D. Tex. 2011).

The “Lead Plaintiffs” in this case are Steven Marshall, Long Tran, and Charles Johnson, who are all former employees of Eyemasters.  Both Marshall and Tran were general managers, while and Johnson was a lab supervisor.  The plaintiffs all alleged that they were not compensated for working more than forty hours per week.  Specifically, they alleged that “(1) Eyemasters is a covered employer under the FLSA, meaning it must abide by FLSA requirements; (2) Plaintiffs performed duties which would entitle them to overtime compensation under the FLSA; and (3) Plaintiffs did not receive overtime compensation.”  Id. The plaintiffs then went on to state that this practice was wide-spread within Eyemasters, and that there were other employees who were treated just as they were.  Therefore, the Plaintiffs are seeking an order from the district court forcing Eyemasters to disclose the names and contact information of other potential class members.

The court stated that at the notice stage in a FLSA action, in which the plaintiffs seek conditional class certification, the plaintiffs are required to show that they and potential class members were “similarly situated” in their job requirements and pay provisions.  Id. The court went on to find that the employees who the plaintiffs were trying to include in their class action were not “similarly situated.”  They held different position, had different responsibilities, and were performing different duties at different stores.

Consequently, the district court denied the motion for conditional class certification because the former employees were not similarly situated under the FLSA.  The court stated that an individual fact-finding was necessary for each of the named employees to determine if violations of the FLSA occurred by a failure to pay overtime.

 

Employees had enough evidence to raise a genuine issue of fact to defeat summary judgment concerning their sexual harassment and racial discrimination claims

by dmhaynie on September 13, 2012 in Hostile Work Environment with No comments

Between December 2007 and August 2008, a series of events led to the resignation of three female employees and the termination of another at the Tangipahoa Parish Animal Control Office (TPAC).  All of the four employees alleged racial and sexual discrimination by their black, male supervisor.  The employees’ claimed that he verbally harassed them and subjected them to a hostile work environment in violation of Title VII of the Civil Rights Act.

However, their employer alleged that the women resigned on their own free will in protest of a mass euthanasia that occurred at the TPAC.  Caballero v. Tangipahoa Parish Gov’t, CIV.A. 09-3012, 2011 WL 231984 (E.D. La. Jan. 21, 2011).  As for the employee that was terminated, the TPAC alleged that she was fired because she failed to perform the duties of her job, and she was mishandling drugs.  TPAC moved for summary judgment on these claims and this was the main issue before the district court.

The court found that because the employees had enough evidence to raise a genuine issue of fact as to the cause of their resignations, that summary judgment on these claims was not appropriate.  Additionally, the court denied the summary judgment motion that concerned the employee that was terminated as well.  The court found that there was enough evidence that raised a genuine issue of fact as to the cause of her termination and it was appropriate for a fact finder to decide.

Former Employee was not allowed to bring his Retaliation Claim because he did not file it timely

by dmhaynie on September 11, 2012 in Uncategorized with No comments

Michael Riddle, a former employee of DynCorp International, Inc., was fired in September of 2009, allegedly because he had expressed concerns to his superiors that DynCorp was wrongfully accepting unearned payments from the United States government.  Riddle brought an action in 2010 under a provision of the False Claims Act, which protects whistleblowers from retaliation.  A court found that same year that Riddle had not filed his claim timely and was barred by the statute of limitations.  Riddle v. DynCorp Intern. Inc., 3:10-CV-0546-L, 2011 WL 128572 (N.D. Tex. Jan. 14, 2011).  When Riddle brought his False Claims Act claim, the Dodd–Frank Act and its three–year limitations period applicable to retaliation claims did not exist, thus the court applied a ninety–day limitations period under the Texas Whistleblower Act (TWA).

Prior to deciding this, the court conducted a lengthy legal analysis and determined that the TWA’s ninety-day statute of limitations applied to Riddle’s claim.  Because Riddle admittedly filed his lawsuit more than ninety days after he learned of his injury, the court concluded that his claim was time-barred and that dismissal was appropriate. Riddle then asked the court to alter or amend its judgment, which dismissed his claim.

In his motion to alter or amend the court’s judgment, Riddle argued that the court should have applied the three-year limitations period of the Dodd–Frank Act instead of the ninety-day limitations period under the TWA.  Riddle stated that because the Dodd–Frank Act was in existence at the time that the court issued its earlier opinion, the court should have applied its three-year limitations period to his claim.  Id. The Dodd-Frank Act went into effect on July 22, 2010, approximately one month before the court entered its judgment.  However, the act was not in effect, at the time he originally filed his complaint against DynCorp.

Under the Court of Appeals for the Fifth Circuit’s precedent, courts are to “normally apply the statute of limitation that was in effect at the time of the filing of the suit.”  Id. The court thus followed this precedent and applied the TWA statute of limitations.  Consequently, the court here did not allow Riddle to amend his complaint and found that he was not allowed to bring his case due to the statute of limitations.

Fifth Circuit holds that Congress did not prohibit Private Employers from denying Employment to Persons based on their Bankruptcy Status

by dmhaynie on September 9, 2012 in Bankruptcy with No comments

Shani Burnett filed a complaint against Stewart Title, Inc., alleging that Stewart violated 11 U.S.C. § 525(b) when it refused to hire her on the basis of her earlier bankruptcy filing.  The bankruptcy court granted Stewart’s motion to dismiss for failure to state a claim, holding that § 525(b) does not create a cause of action against a private employer who discriminated in hiring on the basis of an applicant’s bankruptcy status.  The district court affirmed this ruling, and now the Court of Appeals for the Fifth Circuit is looking at this verdict on appeal.

 

The case arose, because back in September of 2006, Burnett filed a voluntary petition under Chapter 13 of the Bankruptcy Code.  In July of 2007, Burnett interviewed for prospective employment with Stewart Title, Inc., which made her an offer of employment contingent upon the results of a drug test and a background check.  During the background check, Stewart discovered Burnett’s bankruptcy and withdrew its offer of employment based on her bankruptcy status.

 

Burnett then filed suit against Stewart asserting that Stewart unlawfully discriminated against her due to her bankruptcy status.  However, the bankruptcy court decided that 11 U.S.C. § 525(b) does not prohibit private employers from engaging in discriminatory hiring on the basis of an applicant’s bankruptcy status, and therefore granted Stewart’s motion to dismiss.  In re Burnett, 635 F.3d 169, 172 (5th Cir. 2011)

 

 

On appeal, Burnett stated that the act of denying employment to a person is to “discriminate with respect to employment against” that person, such that it is barred by the plain language of § 525(b).  Id. at 173.  The court found though, that if § 525(b) were considered in isolation, Burnett’s position would probably have merit, however, when interpreting the meaning of a phrase in a statute, the statute must be read as a whole.

 

Therefore, the Fifth Circuit concluded that Congress did not prohibit private employers from denying employment to persons based on their bankruptcy status.  This decision was the same as the Third Circuit had found in 2010.  Id. at 174.  Consequently, the Court of Appeals for the Fifth Circuit held that the bankruptcy court and the district court properly held that 11 U.S.C. § 525(b) does not prohibit private employers from denying employment to applicants based on their bankruptcy status.

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