“In conducting this analysis, the court confines itself to the complaint and does not consider the defendants’ affidavit attached to the motion. In her complaint, Henderson asserts she was employed as a customer service representative by all three defendants…. She alleges that defendant entities employed more than fifteen employees…. Taking these assertions s true and
Employer’s reliance in plaintiff’s termination on an offense that does not normally result in termination is evidence of pretext.
“Leissner stated that McMann’s prior offenses and failure to secure the trash trailer would not justify his termination…. He also points to the deposition of Katya Watson, the regional property manager, who stated that McMann’s failure to secure the cart and prior offenses were not grounds for termination…. Accordingly, McMann has raised a genuine issue
The fact that an employer returned an employee to work after illness does not alone defeat a plaintiff’s claim.
“Further, the question is not what Greystar thought when it returned McMann to work, but what it (and its managers) believed when, three months later, they forced McMann to resign.”
McMann v. Greystar Management Services, LP, CA No. 1:12-CV-909, 2013 WL 6243847 at *5 (W.D. Tex. Dec. 2, 2013) (Austin, J.).
A supervisor’s comment to an employee not to die is evidence that the employee was regarded as disabled.
“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.
Employee’s testimony and a corroborating statement from another witness is enough to create a question of fact.
“McMann asserts that he resigned even though he did not want to because he felt compelled to do so…. Additionally, in a sworn statement, Gregg Williams states that Leissner told him the missing trash cart had been the reason for McMann’s termination…. The factual dispute[s] … are enough to demonstrate a genuine dispute of material
Employer giving employee the option of turning in two weeks notice or being immediately terminated is constructive discharge.
“McMann testified in his deposition that Watson told him that he had an option of turning in his two weeks notice or being terminated immediately…. The factual dispute[s] … are enough to demonstrate a genuine dispute of material fact.”
McMann v. Greystar Management Services, LP, CA No. 1:12-CV-909, 2013 WL 6243847 at *4 (W.D. Tex.
Threatening a witness to alter their version of the facts by implying their job is at risk is evidence of pretext in fabricating a reason to terminate the employee.
“Plaintiffs noted that during his second interview, Rick Mills asked Walsh such questions as, ‘How much do you value your job? Do you value your job over your friendship with Jody?… These actions by Tower can be reasonably perceived as pressuring Walsh into altering the truth to secure its desire to find no supporting evidence
When an employer re-interviews a witness who previously gave favorable testimony to the employee’s claim, this can be evidence of failure to investigate in good faith.
“Moreover, Plaintiffs offer evidence that may call into question whether Tower’s investigation was made in good faith. In Walsh’s first interview with Tower, he admitted that Koopman made statements that he interpreted as racially offensive…. The Tower interviewers doubted Walsh’s credibility and chose to interview him a second time.”
Smith v. Tower Automotive Operations USA
Where the bad actor is the only person to dispute the facts and deny any discriminatory language was used, this is insufficient to meet defendant’s burden for summary judgment.
“Thus, Koopman is the only person who definitely denies that the statements were ever made…. Viewing this evidence in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have present sufficient evidence to create a fact issue….”
Smith v. Tower Automotive Operations USA I, LLC, 2013 WL 6240247 at *8-9 (S.D. Miss.
Where three of six employees interviewed corroborate that something racially offensive was stated, this was sufficient evidence to create a summary judgment question.
“Plaintiffs presented evidence showing that at least three … out of the six employees present in the break room heard Koopman say something that could have been perceived as racially offensive… Viewing this evidence in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have presented sufficient evidence to create a fact issue….”