Texas Employment Lawyer

Texas Employment Lawyer

Discrimination, Retaliation, Wrongful Termination, and Unpaid Wages

Texas Toll Free (800) 313-4020
Dallas-Fort Worth Area (214) 528-6500
Austin (512) 271-5527

Category Archives: Disability discrimination

Subscribe to Disability discrimination RSS Feed

Parties’ conduct can show whether or not a reasonable accommodation offer was ever made.

Posted in Disability discrimination
“[Defendant] contends that it twice offered [the employee] a reasonable accommodation in the form of clerical work, which offers she ignored or rejected. This first offer was undisputedly made, but made at a time when [she] was unable to return to work and on FMLA leave. [The employee] declined the offer on the advice of… Continue Reading

An application for benefits under a disability policy stating that the claimant is “totally disabled” does not preclude them from claiming they could perform their job with reasonable accommodation if they never represented otherwise on their application and the definition of “disability” in the policy is not incompatible with that fact.

Posted in Disability discrimination
“[The employee’s] claim that she was temporarily totally disabled for the purposes of private disability benefits is not inconsistent with the claim that she could work if provided an accommodation. . . . [Plaintiff argued that] the definition of ‘qualified individual’ in the ADA was not incompatible with the definition of ‘disabled’ within the insurance policy,… Continue Reading

A written job description put forth by the employer is not dispositive of job duties at summary judgment in the face of testimony that the job duties were not actually required.

Posted in Disability discrimination
“[Defendant] also contends that a written job description in this case establishes that the essential functions of [the employee’s] duties include lifting and pushing more than ten pounds. While written job descriptions warrant deference, ‘this deference is not absolute,’ and we must ask ‘whether the employer actually requires employees in the position to perform the… Continue Reading

A claimant’s own testimony about job duties may be self-serving, but that does not disqualify it as competent summary judgment.

Posted in Disability discrimination
“At oral argument, counsel for [Defendant] suggested we reject the [Plaintiff]’s evidence as self-serving. But this is summary judgment, and we may not weigh the evidence or make credibility determinations.” Equal Emp’t Opportunity Comm’n v. Vicksburg Healthcare, LLC, — F. App’x —, 2016 WL 5939424, at *3 (5th Cir. Oct. 12, 2016) (internal citations omitted).… Continue Reading

An employee’s testimony that she could not remember ever performing a particular job duty, alongside other testimony that it was “virtually never required,” creates a genuine issue of material fact as to whether it was an essential function of the job.

Posted in Disability discrimination
“‘Fact-finders must determine whether a function is ‘essential’ on a case-by-case basis.’ [The employee] testified she couldn’t ‘remember having to lift more than 10 pounds’ as part of her duties, and her colleague . . . has provided a detailed affidavit that, if true, establishes that such exertions are virtually never required. While [Defendant]’s witnesses… Continue Reading

An employee is disabled under the Americans with Disabilities Act if she requires a cane to perform her job.

Posted in Disability discrimination
“In Plaintiff’s Third Amended and Restated Complaint, Plaintiff adds the allegation that she ‘required the cane to perform the tasks within the course and scope of employment at Defendant’s facility.’ Thus, unlike the complaint in Mora, Plaintiff is specifically alleging that she suffered from an impairment to a major life activity by requiring a cane… Continue Reading

In a failure to hire case, an applicant does not have to show that he or she is “clearly better qualified, but simply that the employer’s explanation for the employment decision is pretext.

Posted in Age discrimination, Disability discrimination
“As we have noted, while a showing that a plaintiff is clearly better qualified is one way of demonstrating that the employer’s explanation is a pretext, it is not the only way … the question is whether the assessment, even if incorrect, was the real reason for the action.” E.E.O.C. v. DynMcDermott Petroleum Ops. Co.,… Continue Reading

Assurances from another manager that decisionmaker will not be retaliated against by discriminating supervisor does not negate the influence of the discriminating supervisor.

Posted in Age discrimination, Disability discrimination
“After Lewis disagreed with Wood’s desire to Swafford, Wood repeatedly informed Lewis that he was violating federal law because Lewis was discriminating based on age and disability.  Also the record indicates that Hojem did not make any assurance to Wood regarding retaliation until weeks later—after Wood had already decided to interview Thomas, who he had… Continue Reading

Statement from decisonmaker’s direct supervisor that person should not be hired because of the person’s age and illness of that person’s spouse is direct evidence of age and disability discrimination.

Posted in Age discrimination, Disability discrimination
“[T]he remarks appear to meet the other requirements of direct evidence.” E.E.O.C. v. DynMcDermott Petroleum Ops. Co., 537 Fed. Appx. 437, 444 (5th Cir. July 26, 2013) (Davis, Graves, and Higginson, JJ.).… Continue Reading

Facts showing that discriminating manager was the decisionmaker’s direct supervisor, who was responsible for discipline of decision maker, performance reviews that determined the decisionmaker’s raise, and had power to change decisionmaker’s job duties allows that manager’s discriminatory animus to be imputed to the decisionmaker.

Posted in Age discrimination, Disability discrimination
“There is no dispute that Lewis was Wood’s direct supervisor and was responsible for Wood’s performance evaluations and implementation of disciplinary actions…. Woods pay and any raises were merit-based and dependent on performance reviews done by Lewis.  There is additional evidence … that Lewis had refused to communicate with Wood and had removed some of… Continue Reading

When establishing that a Plaintiff is “regarded as” disabled, a heart condition resulting in by-pass surgery is not “minor.”

Posted in Disability discrimination
“Thomas need only show that Hill terminated him because of his actual or a perceived physical impairment, regardless of whether the impairment limits a major life activity.  Hill’s arguments to the contrary are simply wrong.  Thomas cannot meet his burden, however, if the impairment is “transitory and minor.”  Given the facts in this case, the… Continue Reading

The stray remarks doctrine can only be applied after the court determines that the plaintiff has failed to produce substantial evidence of pretext.

Posted in Age discrimination, Disability discrimination
“Here, the district court applied the stray remarks doctrine before determining whether the plaintiff had failed to produce substantial evidence of pretext and then refused to consider those remarks in determining pretext.” E.E.O.C. v. DynMcDermott Petroleum Ops. Co., 537 Fed. Appx. 437, 443 (5th Cir. July 26, 2013) (Davis, Graves, and Higginson, JJ.).… Continue Reading

Pretext is established when costs are cited as a reason for termination, but employer hires other employer to do employees job duties.

Posted in Disability discrimination
“In the letter itself, Hill raised Thomas’ medical condition, the need for Thomas to seek a less stressful job, and Hill’s desire to reduce costs. Yet, before and after Thomas’ termination, Hill hired a total of three employees to perform Thomas’ job duties. Under these circumstances, Thomas has presented a genuine issue of material fact… Continue Reading

Pretext is established when the reason for termination is that Plaintiff never indicated if or when he would return if Plaintiff indicates he intended to return to work although at no certain date.

Posted in Disability discrimination
“Hill also offered at least some legitimate reasons for Thomas’ termination: that Thomas had not indicated if or when he would return and that he had in mind Thomas’ derogatory behavior towards him.  However, those reasons are offset by the contradictory evidence.  Thomas had indicated in his emails to Hill and others that he intended… Continue Reading

A supervisor’s comment to an employee not to die is evidence that the employee was regarded as disabled.

Posted in Disability discrimination
“Leissner’s alleged warning to McMann not to die in someone’s apartment, may enable a reasonable jury to find that Leissner regarded McMann as having an impairment, namely heart disease, which substantially limits him in the major life activity of working.” McMann v. Greystar Management Services, LP, CA No. 1:12-CV-909, 2013 WL 6243847 at *5 (W.D.… Continue Reading

Evidence of retaliation and hostile work environment in an ADA claim include failure to accommodate plaintiff for heavy lifting, placing plaintiff in a position requiring more physical exertion, and terminating plaintiff for inability to perform job tasks requiring more physical exertion.

Posted in Disability discrimination, Discrimination, Retaliation
“Requesting reasonable accommodations is generally a protected activity against retaliation under the ADA; however, first a plaintiff must have a good faith belief that he or she was disabled or perceived as disabled.” Williams v. Rocktenn, 2013 WL 5960671 at *14 (W.D. La. November 6, 2013) (Trimble, J.).  … Continue Reading

Prima facie causation exists when an employer terminates an employee because it believes that the employee’s disability prevents her from performing essential functions.

Posted in Disability discrimination, Discrimination, FMLA violations, Wrongful termination
“[Plaintiff] can establish the third prima facie element, that she was subjected to an adverse action based on her disability, because [employer] readily admits that [Plaintiff] was terminated because she was unable to return to work without lifting restrictions at the time her FMLA leave expired.” Molina, 840 F. Supp. 2d at 1004.… Continue Reading

A triable issue exists as to whether a disabled employee could perform his job with or without accommodation when the requested accommodation would eliminate, even temporarily, his physical limitation.

Posted in Disability discrimination, Discrimination, Employee breaks
“Here, there is no evidence that [Plaintiff] is physically limited by his prosthetic leg. His only need is to be able to readjust his prosthetic leg every so often so that it does not break his skin or fall off. Therefore, if Plaintiff were given the breaks he requested, the issues involved with his prosthesis… Continue Reading

A function that the job “may occasionally” require is not an essential function.

Posted in Disability discrimination, Discrimination, Wrongful termination
“[T]he job description states that the supervisor ‘may perform manual labor’ . . . . Just because . . . the supervisor sometimes ‘may perform’ such labor does not override the consideration that the ability to perform physical labor is not an essential or even mandatory component of the supervisor’s job. Therefore, [Plaintiff]’s inability to… Continue Reading

If a requirement listed as an essential function in a job description rarely or never occurs in practice, a triable issue exists as to whether it is an essential function.

Posted in Disability discrimination, Discrimination
A job description listed essential functions as including “frequent lifting and carrying up to 20 lbs., occasionally lifting and carrying 20-35 lbs., and occasionally lifting up to 40 lbs.,” as well as “occasionally . . . up to 200 pounds with the assistance of co-workers or Hoyer lift.” Molina, 840 F. Supp. 2d at 997.… Continue Reading

A jury could find a public employee qualified when she meets the state requirements for an essential function but not her office’s more stringent requirements.

Posted in Disability discrimination, Discrimination
“The City requires that the SRO position must be filled by a full-duty officer authorized to use a firearm. A General Order issued by the City of Royse requires officers to undergo firearms qualification twice each year. The State of Texas only requires officers to undergo firearms qualification once each year . . . .”… Continue Reading

Losing the ability to engage in a non-essential function due to disability does not render an employee unqualified, even if he voluntarily engaged in the activity before.

Posted in Disability discrimination, Discrimination, Wrongful termination
“[Plaintiff] stated that it was his custom as supervisor to perform manual labor alongside his employees. Further, as an example of the type of work the supervisor might perform, the job description states that the supervisor ‘may perform manual labor . . . . Just because [Plaintiff] routinely performed manual labor or that the supervisor… Continue Reading

A jury could find that an adult with an IQ score of 72, limited vocabulary, and who requires parental help with mundane tasks has an ADA-recognized disability.

Posted in Disability discrimination, Discrimination
“[Plaintiff] has presented sufficient evidence to establish a genuine issue of material fact on whether he is disabled under the ADA. . . . [H]is mother . . . states under oath that her son requires parental assistance to pay his bills, file for unemployment benefits, obtain health insurance and health care, complete job applications,… Continue Reading