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Discrimination, Retaliation, Wrongful Termination, and Unpaid Wages

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An employer’s proffer of its own policy is not competent in itself as evidence the policy was followed.

Posted in Failure to hire, Imputing Improper Motive

“With regard to the letter, [Plaintiff]’s allegation is that he asked Chief Justice Jefferson to keep the letter confidential, not that Chief Justice Jefferson actually did so. In fact, [Defendant alleged that Chief Justice Jefferson did not answer the letter himself, establishing that the letter had not remained confidential. With regard to the disciplinary complaint, [Defendant] contends that Texas law requires the Commission on Judicial Conduct to keep such complaints confidential. But this misstates that law. . . . ‘[T]he commission may’— but is not required to—‘refuse to release the identity of a complainant” if such a request is made. Likewise, ‘the commission may’—but is not required to—‘keep the complainant’s identity confidential’ if the complainant so requests. At most, this establishes a process that the State Commission on Judicial Conduct is instructed to follow, not the process that it did follow. As with the letter, [Plaintiff] has not alleged that the State Commission on Judicial Conduct did, in fact, keep the complaint confidential.”
 Anderson, 2016 WL 6647759, at *4-*5 (footnotes omitted).

When pleading knowledge, it is enough to plead simply that the bad actor knew and this this precipitated the bad acts.

Posted in Failure to hire, Imputing Improper Motive

“[Plaintiff was not required to allege how [Defendant] knew of the letter and complaint, only that [Defendant] knew. Having done so, he has sufficiently pleaded that his letter and his disciplinary complaint precipitated [Defendant]’s allegedly untoward conduct.” Anderson, 2016 WL 6647759, at *5 (footnotes omitted).

A plaintiff’s own assertions about his official job duties can plausibly establish that his actions were outside the course and scope of his job duties.

Posted in Failure to hire

“In the context of Garcetti‘s clear instruction, [Plaintiff]’s letter and disciplinary complaint were not created pursuant to his official duties. It is useful to note that [Plaintiff]’s supervisor, Vela, did not ask him, much less require him, to send the letter or to file the disciplinary complaint. [Plaintiff] expressly alleged that he did so “on his own initiative.” He also alleged that he asked Chief Justice Jefferson to “keep the letter confidential” so that no one “at the Thirteenth Court” would know about it. If [Plaintiff], as Vela’s briefing attorney, had an official duty to send the letter or to file the complaint, then why he would have purposely concealed his doing so from her?” Anderson, 2016 WL 6647759, at *10—*11 (footnote omitted).

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 her doctor, and [Defendant] does not argue that this initial rejection matters. It instead argues that the offer remained open and that [the employee’s] failure to later accept constitutes a rejection of a reasonable accommodation. The proposition that the offer survived [the employee’s] rejection is legally dubious. In any event, as [Plaintiff] has shown, the conduct of the parties around the time of [the employee’s] termination is circumstantial evidence that there was no known offer to take a light-duty clerical position.” 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).

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, and it further explained that ‘nothing in the [disability claim forms] indicate that [the employee] represented that she was unable to perform the essential functions of her job with or without an accommodation.’” Equal Emp’t Opportunity Comm’n v. Vicksburg Healthcare, LLC, — F. App’x —, 2016 WL 5939424, at *2 (5th Cir. Oct. 12, 2016) (internal citations omitted) (emphasis in original).

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 functions that the employer asserts are essential.’ [… C]onsistent with ordinary rules governing summary judgment, a written job description is not given dispositive weight in the face of contrary evidence.” 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).

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).

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 testified to the contrary, this conflict merely establishes an ‘actual controversy’ of fact rendering summary judgment improper.” 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).


An employee being seven months into her pregnancy, coupled with her supervisor’s awareness of her pregnancy and consequent FMLA leave request, is enough to raise a genuine dispute of material fact whether she was terminated because of the leave request.

Posted in FMLA violations

“The Defendants also claims [sic] that the Plaintiff could not satisfy the third prong of the prima facie case [for FMLA retaliation] and could not establish a causal connection that her pregnancy caused her to get fired. The Defendants contend that there is no indication [Defendant] was aware that the Plaintiff was pregnant or wanted FMLA and therefore causation cannot exist. However, the [employee’s supervisor’s] declaration coupled with the fact that the Plaintiff was seven months pregnant during the instant controversy creates a genuine issue of material fact. A jury could conclude that [Defendant] was aware of Plaintiff’s pregnancy and desire to take FMLA and that Plaintiff’s one day absence from work was merely a pretextual reason for her termination.” 2016 WL 4720006, at *4

Thompson v. Beacon Behavioral Hosp., No. 15-5455, 2016 WL 4720006 (E.D. La. Sept. 8, 2016).

In a collective FLSA action, an employee’s testimony that they worked overtime voluntarily and were satisfied with their pay does not create a genuine dispute of material fact when other employees were indisputably denied overtime wages.

Posted in FLSA violations

“[The] declarations and timesheets [produced by Plaintiff] establish that there were weeks in which [Defendant’s] employees worked more than forty hours, and [two employees] both state in their declarations that they were not paid an overtime rate for this work. . . . [N]othing in [another employee’s] declaration refutes Plaintiff’s claim that employees often worked over forty hours a week and were not paid time-and-a-half for those hours. [That employee] states only that she felt that her ‘pay was fair and acceptable’ and that it was her choice to work more than forty hours a week. . . . [That employee’s] declaration, then, does not in any way create a genuine dispute of fact as to whether [Defendant] failed to meet the overtime requirements of the FLSA.” 2016 WL 5122123, at *4

McDaniel v. Family Sleep Diagnostics, Inc., Civil Action No. 3:13-CV-4031-KS, 2016 WL 5122123 (N.D. Tex. Sept. 20, 2016).