Defendant contends that even if there was a common illegal policy, the suit cannot proceed as a collective action because Defendant will assert defenses that require individualized analysis for each putative class member (Dkt. #22 at p. 12). Challenges in litigating the suit or a particular need to address each perspective member of the collective… Continue Reading
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in FLSA Collective Action, Declarations from Plaintiff and other individuals detailing similar primary job duties and that they did not receive overtime pay is sufficient to conditionally certify class.
Posted in FMLA violationsPlaintiff offers testimony that he performed the duties of a mortgage loan officer working for Defendant . . . . Plaintiff provides declarations of other individuals who claim the same primary job duty. Further, Plaintiff asserts that the “same pay practice” is Defendant failing to pay loan officers compensation tied to actual hours worked, denying… Continue Reading
Assertion of Faragher-Ellerth defense based in part on internal investigation waives work product and attorney-client privileges for all documents created as part of the internal investigation.
Posted in FMLA violationsEven if the attorney-client or work-product privileges were to apply, Herzing waived the privileges by asserting the Faragher-Ellerth defense. When a Title VII defendant affirmatively invokes a Faragher-Ellerth defense that is premised at least in part on an internal investigation, the defendant waives the attorney-client privilege and work- product doctrine for all documents created as… Continue Reading
Notes taken during investigation of sexual harassment complaint are not protected by work product doctrine if company has policy of investigating all complaints of sexual harassment.
Posted in FMLA violationsIt is clear that, pursuant to Herzing’s policy, the investigation would have been conducted regardless of whether litigation ensued. As a result, the investigation was conducted in the ordinary course of business. Accordingly, the work-product privilege does not apply to Baiocchi’s notes. Ambrose-Frazier v. Herzing Inc, No. 15-1324, 2016 WL 890406 at *4 (E.D. La.… Continue Reading
Evidence that employee had previously taken 21 weeks off for an injury without consequence creates fact issue over whether employee would have been fired for needing more than 12 weeks of FMLA leave.
Posted in FMLA violationsDefendant has presented no evidence that it would have immediately terminated Plaintiff once she expended all her FMLA leave. In fact, Plaintiff declared that she was injured in an automobile accident in 2010, that she missed approximately twenty-one weeks of work, and that Defendant granted her nine weeks of non-FMLA leave after she exhausted her… Continue Reading
Supervisor or management knowledge that employee intended to take medical leave is evidence that employer’s advanced notice policy was not violated.
Posted in FMLA violationsIn the Court’s opinion, the evidence cited above is sufficient to create a genuine dispute of material fact as to whether Plaintiff actually violated the advance notice policy, which only requires that an employee provide notice to her supervisor. The record contains evidence that Plaintiff’s immediate supervisors and the director of her department knew that… Continue Reading
Allowing employee to pay reduced rent for housing increases the employee’s regular rate of pay for computing overtime.
Posted in FMLA violationsThus, 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… Continue Reading
Evidence that co-employee or manager misrepresented employment test results that may have been caused by employee’s disability shows disability animus that may be imputed to company to show pretext because employer relied on that misrepresentation to terminate plaintiff.
Posted in Cat's paw, Imputing Improper Motive, PretextAs discussed above, Hauss allegedly misrepresented the erratic test results—which Dr. McKinnon and Audiologist Sanders attribute to Brown’s hearing disability—to the decisionmaker Goodson, thereby creating a factual issue as to whether Hauss exhibited disability-based animus. In turn, Goodson conducted a subsequent investigation into Brown’s conduct, including, among other things, consultation with Hauss. Goodson testified… Continue Reading
Expert testimony that disability caused unusual test results that were basis for termination establishes the causal connection requirement for prima facie disability discrimination case.
Posted in FMLA violationsIn view of these expert opinions that Brown’s hearing impairment caused his unusual results, and given the fact that these results undisputedly resulted (one way or the other) in his termination, the Court finds sufficient evidence of a causal nexus between Brown’s disability and termination. Brown v. Cooper Tire & Rubber Co., No. 1:13-cv-00176-SA-JMV, 2015… Continue Reading
Submission of online application by Plaintiff authorizing prior employers to provide full details of past employment does not waive a mutual non-disparagement provision of a settlement agreement.
Posted in Immunity/Affirmative DefenseAssuming Shannon authorized the Church to speak with the Seminary, the Church nevertheless was bound to communicate in accordance with the terms of its Agreement. We conclude that in signing the authorization, Shannon did not unequivocally manifest the intent not to assert any of her rights under the Agreement. In other words, Shannon did not… Continue Reading
Defendant’s expressions of doubt that plaintiff could perform the job duties for a prospective employer were not protected by Tex. Lab. Code § 103, which makes employers immune from suit for describing the manner in which an employee performed her job duties for that employer.
Posted in Immunity/Affirmative DefenseHere, the Church did not present evidence of any statements to the Seminary relating to Shannon’s violation of any policy of the Church or failure to perform her job as required by the Church. The Church did not establish that Steane’s statement expressing doubts about Shannon’s ability to solicit donations for the Seminary was related… Continue Reading
Ministerial Exception is an affirmative defense, not a jurisdictional bar.
Posted in Immunity/Affirmative DefenseThe Church moved only on the ministerial exception as a jurisdictional bar and did not move for summary judgment as to this affirmative defense. Accordingly, the trial court erred to the extent that it concluded it did not have subject matter jurisdiction over Shannon’s claims under the ministerial exception. We sustain Shannon’s fifth issue. Shannon… Continue Reading
Whether former employer disparaged plaintiff to prospective employer by stating (1) plaintiff not rehireable, (2) that it should be obvious there were issues with plaintiff because of settlement agreement, and (3) that plaintiff would not be able to perform job for prospective employer could be analyzed in purely secular terms and so did not implicate immunity under Ecclesiastical Exemption doctrine.
Posted in Immunity/Affirmative DefenseThe Church argues that it is immune from suit because “what is ‘disparaging’ involves subjective judgment through the eyes of the Church.” To the contrary, applying the plain meaning of the word “disparage,” a factfinder could determine whether the Church belittled Shannon or “reduce[d her] in esteem or rank” when, as alleged, (1) a Church… Continue Reading
Unless expressly addressed in the arbitration agreement, availability of collective arbitration is determined by arbitrator.
Posted in FMLA violationsWhile courts determine the validity of arbitration agreements, whether the contract forbids collective arbitration does not fall within the limited circumstances under which “courts assume that the parties intended courts, not arbitrators, to decide a particular arbitration-related matter,” because the question involves contract interpretation regarding the “kind of arbitration proceeding the parties agreed to. … Continue Reading
Rating an applicant as more qualified based on a false statement of education on the applicant’s resume casts doubt on the employer’s stated reason if the employer never asked about education during the interview.
Posted in Age discrimination“While the district court cites cases for the propositions made by an applicant and has no duty to verify information, it is worth noting that Thomas was not even asked about his education during the interview.” E.E.O.C. v. DynMcDermott Petroleum Ops. Co., 537 Fed. Appx. 437, 446(5th Cir. July 26, 2013) (Davis, Graves, and Higginson,… 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
Four references to an employee’s protected activity during a much longer meeting where multiple subjects were discussed is sufficient to create a fact issue as to causation.
Posted in Retaliation“While it is true that these statements are few in number, and that much of the meeting was spent discussing other subjects, their number does not strip the statements of their status as evidence. After a court draws the negative inference that Sheriff Cutler was negatively referencing Haverda’s letter to the editor, the amount of… Continue Reading
History of positive performance, failure to fire others for similar behavior without explanation, and failure to describe weak performance in demotion memo show demotion for performance issue may be pretext.
Posted in Discrimination“He also offered evidence of a history of positive performance reviews, as well as the testimony of Major Robinson … Haverda highlights that the demotion memorandum does not explain how his performance was weaker than that of the other Jail Command Staff members, and that Sheriff Cutler could not explain this distinction during his deposition. … 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
Employee’s admission that it would not have been unreasonable to fire him for performance, does not establish that employer would have taken adverse action absence protected activity.
Posted in Discrimination“The issue is not whether Haverda could have been demoted for the condition of the jail, but whether he would have been demoted if he had not engaged in protected activity.” Haverda v. Hays Co., 723 S.W.3d 586, 597 (5th Cir. July 17, 2013) (Martinez, J.).… 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
Qualified immunity defense has nothing to do with Plaintiff’s ability to prove essential elements of his or her 1983 retaliation claim.
Posted in Retaliation“The district court’s belief that Appellees had established beyond dispute that they did not demote Haverda because of his speech has nothing to do with the qualified immunity defense.” Haverda v. Hays Co., 723 S.W.3d 586, 599 (5th Cir. July 17, 2013) (Martinez, J.).… Continue Reading
In Section 1983 first amendment retaliation case, membership in a political association is considered speech protected by the first amendment.
Posted in Retaliation“The content—support for Kaelin’s opponent—and form—participation in a PAC—of the speech at issue clearly support the notion that it involved matters of public concern, as we have previously held that there can be no question that . . . associating with political organizations and campaigning for a political candidate related to a matter of public… Continue Reading