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Several truck drivers brought a state-court action against a staff leasing company and against their trucking companies that were leasing company’s clients

The drivers allege that the defendants’ failure to pay overtime wages to drivers constituted violation of Fair Labor Standards Act (FLSA). After removal to a federal district court, the court entered summary judgment in the defendants’ favor, and thus the drivers appealed.  The truck drivers operated commercial trucks to haul materials to and from mines and quarries.  They brought suit against Dillon Resources, Inc. Dillon is responsible primarily for the payment of wages and payroll taxes and retains the right to hire, fire, discipline, and reassign drivers. Dillon is compensated by clients such as the Sunset companies for recruiting and providing qualified drivers. Songer v. Dillon Res., Inc., 618 F.3d 467, 469 (5th Cir. 2010).

Dillon hired the Plaintiffs as truck drivers and assigned them to drive commercial trucks for Sunset Logistics and Sunset Ennis. Some drivers also transported aggregate (i.e., sand, gravel, and crushed rock materials used in construction) across state lines into other states, such as Oklahoma, and from other states into Texas. Truck drivers for Sunset Logistics and Sunset Ennis also transported construction materials for the Sunset companies’ customer, TXI, Inc. TXI owns and operates aggregate plants in Oklahoma and “ready-mix” concrete plants in Texas. TXI orders aggregate from its Oklahoma plants and ships them via rail from Oklahoma to the Dallas and Celina rail terminals. TXI hires third-party trucking companies, like the Sunset companies, to transport the aggregate from the rail terminals to its Texas ready-mix plants. Id. at 470.

As drivers, the Plaintiffs must meet Department of Transportation and Federal Motor Carrier Safety Regulations (FMCSR) requirements prior to assuming their driving duties. Plaintiffs must have a valid Class A commercial driver’s license and meet the driver qualification requirements of FMCSR Parts 382 and 391.  After being hired, the Plaintiffs must record their hours of service and complete driver vehicle inspection reports pursuant to the FMCSR. However, the drivers did not do this.  Thus, the Fifth Circuit affirmed the judgment of the district court.

Employee sued the Secretary of the Army claiming retaliation in violation of Title VII

Lloyd Thomas was the Acting Clinical Director of the Army Substance Abuse Program (ASAP) Clinic at the Darnall Army Community Hospital in Fort Hood, Texas. Thomas filed an EEO (Equal Employment Opportunity) complaint, alleging retaliation for his removal as Acting Clinical Director and for his non-selection for a subsequent Acting Clinical Director opening. Thomas worked as a Counseling Psychologist at the Fort Hood ASAP. Furthermore, Thomas has a master’s degree in Divinity, Family Studies, and Counseling Psychology. At all relevant times, Thomas was licensed by the state of Texas as a Licensed Professional Counselor, Licensed Chemical Dependency Counselor, Licensed Marriage and Family Therapist, and Licensed Master Social Worker (LMSW). Thomas v. Geren, 393 Fed. Appx. 182, 184 (5th Cir. 2010).

Although Thomas was licensed as an LMSW, Thomas did not have an advanced degree in social work and had acquired his license through grandfathering rather than by examination. Because Thomas had not passed Texas’s licensing examination, he was able to practice as a supervised employee, but would not have been permitted to open his own practice. In July 2002, Dr. Wanda Kuehr, the ASAP Manager with the U.S. Army Medical Command (MEDCOM), made a site visit to the Fort Hood ASAP Clinic.

Two days later, Kuehr met with Colonel Donald J. Kasperik, Hospital Commander. Kuehr told Kasperik that Thomas did not meet the degree and licensure requirements to be Acting Clinical Director. Kuehr recommended that Kasperik find a GS-13 Ph.D. licensed psychologist to be the Clinical Director of the Fort Hood ASAP.  In the meantime, Kuehr recommended that Kasperik replace Thomas with Cheryl Laws, a GS-11 Substance Abuse Counselor at the Fort Hood ASAP, because Laws was the only ASAP employee who met the heightened minimum requirements of an advanced license in social work or a license in psychology plus program management experience.  Id. at 185.

Seeking a second opinion, Kasperik asked Michael Sabolek, the Clinical Director of the ASAP at Redstone Arsenal, Alabama, to visit the Fort Hood ASAP. In August 2002, Sabolek filed his trip report, which stated that Thomas should be replaced by a properly licensed and qualified candidate as soon as possible. Thus, Thomas was removed from the Acting Clinical Director position in August 2002. Kasperik based his decision on Kuehr’s assertion that Thomas was not qualified for the Acting Clinical Director position because he was deficient in degree and license requirements; and Sabolek’s report, which according to Kasperik confirmed that Thomas “did not have the qualifications to be the clinical director.” Id. at 186.

In September 2002, Kasperik detailed Laws to serve as Acting Clinical Director of the Fort Hood ASAP for not more than 120 days. In March 2003, Kasperik selected Laws, in part because she was already essentially performing the relevant duties. She was temporarily promoted from GS-11 to GS-12 and served as Acting Clinical Director until April 2004. During this time, Thomas remained employed as a Counseling Psychologist at the Fort Hood ASAP.

Thomas sought review in the district court of two claims: his claim for retaliation for removal as Acting Clinical Director, and his claim for retaliation for non-selection for the subsequent Acting Clinical Director position. The Secretary cross-claimed, arguing that Thomas’s appeal required across-the-board de novo review, so that if the district court found for the Secretary as to Thomas’s retaliation claims, it should also return to the Secretary the attorney’s fees that the AJ had awarded to Thomas. The district court granted summary judgment in favor of the Secretary on Thomas’s claims but rejected the Secretary’s counterclaim for repayment of attorney’s fees. Thomas appealed, and the Secretary cross-claimed for repayment of attorney’s fees.

On appeal, the Fifth Circuit found that Thomas failed to demonstrate a genuine issue as to whether the Secretary’s non-discriminatory reason for removing him from the Acting Clinical Director position was pre-textual. Thus, the district court did not err in granting summary judgment in favor of the Secretary on Thomas’s claim for retaliation for removal from the Acting Clinical Director position. The Court of Appeals also found that Thomas failed to establish a prima facie case for retaliation for non-selection for the subsequent Acting Clinical Director opening; thus, the district court did not err in granting summary judgment in favor of the Secretary on Thomas’s claim for retaliation for non-selection. Consequently, the Fifth Circuit affirmed the lower courts holding.

Employee appeals a jury verdict dealing with a Title VII race discrimination claim and an Age Discrimination in Employment Act claim

Billy Ray Tratree, an African-American, worked for Amoco Pipeline Company starting in 1978, and continued working for BP when BP and Amoco merged in 1999. Beginning in 1995, he was a “Measurement Specialist,” and worked on a section of BP pipeline between Mexia and Texas City, Texas. In 2001, BP decided to eliminate one of the two positions on that section of pipeline, and Kelly Gleason, the district manager, chose to eliminate Tratree’s job instead of that of his coworker, Grayson Williams, who is a white male six years younger than Tratree and who was less senior than Tratree. Williams was classified as a “Field Specialist,” but performed approximately the same work as Tratree. Tratree v. BP N. Am. Pipelines, Inc., 390 Fed. Appx. 386, 389 (5th Cir. 2010).

When he was terminated, Tratree was 49 years old and was three months away from turning 50, when he would have been eligible to retire. Tratree’s Union (the Oil, Chemical, and Atomic Workers International, now “PACE”) has a collective bargaining agreement (CBA) with BP. The CBA includes a process called “bumping,” whereby a Union member whose job position has been eliminated has the right to take the position of a less senior employee if the terminated employee is qualified for the position, thus bumping the less senior employee out of his job. The employee who exercises his bumping rights retains his pay level, benefits, and seniority rights in the new position. The CBA states that employees may bump other employees in either new or old classifications.  Id. at 390.

However, BP presented evidence that according to its “bumping guidelines,” as understood by both BP and the Union, an employee with a position in the new classification system, such as Williams, could not be bumped by an employee classified under the old system, such as Tratree. When his position was eliminated, Tratree was sent a bumping sheet, which listed the less senior employees whose positions Tratree had the option to take. The bumping sheet did not include the option of bumping Williams. According to the CBA, Tratree had five business days to sign the sheet before he would be terminated. He refused to sign it and instead complained that his bumping options were incorrect because they did not include the option to bump Williams. As a result of his failure to sign the sheet, Tratree was let go on September 27, 2001.

Tratree then sued BP in November of 2002, alleging race discrimination and retaliation under Title VII and age discrimination and retaliation under the ADEA. The district court granted BP’s motion for summary judgment on the Title VII and the ADEA failure-to-promote claim. After Tratree presented his case on the ADEA discrimination and retaliation claims, the district court granted BP’s motion for judgment as a matter of law. Tratree appealed the district court’s orders of summary judgment and judgment as a matter of law, and this court reversed the grant of summary judgment on his race discrimination claims and reversed the judgment as a matter of law on the age discrimination claims, affirming the remaining judgments. On remand, the jury returned a verdict for BP on both claims.  Thus the Fifth Circuit affirmed the jury verdict and judgment in favor of BP.

Former employee brought action against former employer for breach of contract and wrongful discharge, among other claims

On March 26, 2008, Ivo Dworschak was employed in Singapore as a senior project manager for Transocean. As part of his duties, he participated in a meeting to discuss a particular project. According to the meeting notes taken by a Transocean employee, five Transocean employees and three representatives of a subcontractor, Sembawang Shipyard, attended the meeting. The discussion became acrimonious when a disagreement arose about the schedule for meeting project deadlines.

Several witnesses reported that Dworschak became upset and tore up documents. Jit Singh, an employee of SSPL, stood up to leave the meeting room. Sembawang Shipyard employee S.J. Chang asserts in his witness statement that Dworschak blocked Singh’s exit, grabbed him by the arm, and pushed him. Singh fell into a chair. Other people intervened and the meeting was terminated after Singh fell.

Dworschak’s accounts of the incident have varied. According to the deposition he gave in 2009, he was pleading with Singh not to leave the room, but Singh “lowered his head and he was pushing himself against” Dworschak. In an affidavit given months later, however, Dworschak explained that the meeting room was narrow and Singh had little room to maneuver when he decided to leave. Dworschak maintained Singh approached him while leaving, and Dworschak stood up and requested that Singh return to his seat to conclude the meeting. He explains:

“Since I was standing up, and my chair was squeezed against the wall, there was no room free for him to pass behind me…. We eventually became very close to each other, while he was trying to pass between me and the wall. Upon light contact he moved backwards and he tripped over a displaced chair on his back and sat down. I did not push Mr. Jit Singh….” Dworschak v. Transocean Offshore Deepwater Drilling, Inc., 14-10-00758-CV, 2011 WL 4357717 (Tex. App.–Hous. [14th Dist.] Sept. 20, 2011, no pet.)

The incident was reported to Dick Verhaagen, director of projects for the Asia–Pacific unit of Transocean. In an affidavit, Verhaagen testified that he then notified both Charles Keaton, director of projects, and Transocean’s human-resources department. He also requested witness statements from all meeting attendees. Verhaagen assertd he and Keeton decided Dworschak should leave Singapore and return to Houston immediately.

The affidavit indicated that “after reviewing the statements of witnesses to the altercation, meeting with Mr. [Dworschak] and hearing his admission to pushing the employee, Transocean terminated Mr. Dworschak … on April 18, 2008.”  Id. Dworschak argued the termination was pretextual. He assertd the true reason for his termination was that he discovered “certain billing and other irregularities” between a subcontractor and Verhaagen and he reported his concerns to Transocean’s legal department.

On September 24, 2008, Dworschak filed his original petition in the trial court asserting claims for (1) breach of contract; (2) wrongful discharge; (3) intentional infliction of emotional distress; (4) libel, slander and defamation; (5) business disparagement; and (6) age discrimination. Id. After discovery, Transocean filed both a traditional and a no-evidence motion for summary judgment on all of the claims listed above. The trial court granted the no-evidence motion for summary judgment, which Dworschak now appeals.

On appeal, the court found that Transocean’s no-evidence motion gave fair notice to Dworschak that it was challenging his failure to exhaust his administrative remedies before suing for age-discrimination in a civil action. Despite this notice, Dworschak attached no evidence and otherwise maked no attempt in his response to the summary-judgment motions to raise a fact issue on the question of exhaustion of remedies. Accordingly, the court of appeals found that trial court correctly granted summary judgment on Dworschak’s age-discrimination claim.

Former county deputy constable filed suit against county under Whistleblower Act

In this interlocutory appeal, appellant Dallas County, Texas, asserted a single issue challenging the trial court’s denial of its plea to the jurisdiction in a suit brought by appellee Roy Logan pursuant to the Texas Whistleblower Act.  Consequently, the court of appeals affirmed the trial court’s order.

Logan contended that while he was employed by Dallas County, he reported violations of law by the Dallas County Constable and other Dallas County supervisory personnel to the Dallas County Judge and investigators hired by the Dallas County Commissioners Court. According to Logan, as a result of his reporting of those illegal activities, he was reprimanded, suspended, and ultimately terminated in violation of the Whistleblower Act. Further, Logan contended in relevant part that to the extent Dallas County was immune from suit or liability respecting his whistleblower claims, such immunity had been waived pursuant to that act.

Dallas County filed a general denial answer and asserted affirmative defenses including, inter alia, immunity from suit and liability “under the doctrine of sovereign immunity.” Additionally, in a section of its answer titled “Plea to the Jurisdiction,” Dallas County contended its “sovereign/governmental immunity against suit has not been waived.” Dallas County v. Logan, 05-11-00480-CV, 2011 WL 5223131 (Tex. App.–Dallas Nov. 3, 2011, no. pet.).

Dallas County’s immunity was not waived because Roy Logan did not make a good faith report of a violation of law to an appropriate law enforcement authority as required by  of the Whistleblower Act. Danny Defenbaugh and his fellow investigators were not an appropriate law enforcement authority. Danny Defenbaugh and the other investigators who were in his employment were not part of a state or local governmental entity or of the federal government as they could not regulate nor enforce the laws that Logan alleged had been violated or investigate or prosecute a violation of criminal law.

In his response to Dallas County’s plea to the jurisdiction, Logan contended Dallas County disputed only one element of his whistleblower claim: whether Logan made his report to an appropriate law enforcement authority. Logan asserted Dallas County had not disputed that he “(1) was a public employee, (2) made good faith reports of violations of law by other public employees, and (3) suffered adverse employment actions in retaliation for his reports.”  Id. Logan argued he “made his reports to an appropriate law enforcement authority, as that term is defined by the Texas Whistleblower Act.” Id. He asserted Dallas County “ignores the fact that the investigators to whom Logan made his reports were working for the Dallas County Commissioners Court” when they received those reports and “ignores the reports Logan made to the Dallas County Judge.” Id.

Dallas County filed a reply in which it asserted in relevant part that Logan had failed to present any evidence “to support an allegation that an appropriate law enforcement authority could regulate under or enforce the law alleged to have been violated or investigate or prosecute a violation of criminal law.”Id. Additionally, Dallas County asserted numerous objections to the evidence in the exhibits attached to Logan’s response.

Following a hearing, the trial court overruled Dallas County’s objections to the evidence and denied Dallas County’s plea to the jurisdiction. On this sole issue, the court of appeals affirmed the trial court’s order.