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Discrimination, Retaliation, Wrongful Termination, and Unpaid Wages

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There is no requirement that employees of open-enrollment charter schools exhaust administrative remedies pursuant to the Texas Education Code before filing suit for breach of contract.

Posted in FMLA violations

“[D]espite there being instances, such as in Section 12.1056(d), where an open- enrollment charter school is treated in the same manner as a school district, nothing in the Texas Education Code or the common law dictates that open-enrollment charter schools and school districts are universally equivalent.” “Section 7.057(a)(2)(B) sets forth the process by which a… Continue Reading

Where an investigation revealed that there was overbilling for activities such as arriving late, leaving early, and breaks that were not permitted by the contract between the company and its customer, there is sufficient evidence that the acts occurred.

Posted in FMLA violations

“[The investigator] testified that a portion of the hours she found Dow to have been overbilled was in the form of employees arriving late, leaving early, and taking breaks. (Id. at pp. 113—15). [The investigator] stated that the contract between Axion and Dow did not permit Axion to bill Dow for its employees’ breaks. (Id.).… Continue Reading

When Plaintiff actions are consistent with the instruction of her manager, there is a question of fact as to whether the employer’s asserted reason for termination is “false or ‘unworthy of credence’” when the employer alleges those actions as the basis for termination.

Posted in FMLA violations

“[Plaintiff] testified that [manager] Young instructed her to refuse [the customer’s] attempted return, and that she was disciplined for doing just that. [Plaintiff] explained that [customer] requested her termination, and that [manager] Young responded “don’t you worry sir. I’m fixing to take care of her right now.” And according to [customer], his complaint to co-manager… Continue Reading

In claims seeking lost wages and compensatory damages, documents showing Plaintiff’s earnings while working for any previous employers are not relevant.

Posted in FMLA violations

Plaintiff’s earnings prior to her employment with Defendant are not relevant to this cause of action. Therefore, the temporal scope of the financial information relevant to Plaintiff’s case is limited to the time period during and after her employment with Defendant. Because Plaintiff was hired by Defendant in June of 2014, only Plaintiff’s earnings (and… Continue Reading

In a same-sex sexual harassment case, touching a co-worker in a sexual manner on three separate occasions, asking “when are you going to give me some,” and statements by the harasser that they would rather be with someone of the same sex, as opposed to someone of the opposite sex, creates a genuine issue of fact for the jury.

Posted in FMLA violations

These statements are clearly sexual in nature and are significantly less ambiguous than the “jealousy” remark that the court relied on in La Day. When the evidence is viewed in the light most favorable to Salinas, a reasonable jury could conclude that Castillo’s sexually charged comments and inappropriate touching of Salinas indicate legitimate sexual desire.… Continue Reading

Difference between age sixty and fifty-one is sufficient to be considered “substantially younger” for the purpose of establishing a prima facie case of age discrimination under the TCHRA and for a trial court to deny a plea to the jurisdiction.

Posted in FMLA violations

We conclude that Vallejo met his initial burden of establishing a prima facie case of age discrimination. The only evidence offered, TVC’s evidence, showed that Vallejo, age sixty, was replaced by someone who—although at fifty-one within the protected class—was “substantially younger.” See Agoh, 992 F.Supp.2d at 740. TVC did not present evidence negating these facts.… Continue Reading

Failure to retain other older employees, Plaintiff who was 66, another who was 60, and two other older employees, after “outsourcing,” while retaining younger employees bolsters an inference of pretext.

Posted in Age discrimination, Pretext

“Although this evidence on its own likely would not support an inference of pretext, a rational juror could conclude that [Defendant’s] failure to re-hire these employees on a full-time basis further weakens the credibility of [Defendant’s] proffered rationale for not hiring [Plaintiff], thus buttressing a reasonable inference that the failure to rehire [Plaintiff] was based… Continue Reading

Evidence that the hiring decisions were based on subjective considerations such as, “looking for…a candidate…to kind of complement [him]” or “felt that [the successful] applicant would be a good instruction leader for her teachers,” may be pretext for age discrimination.

Posted in Age discrimination, Pretext

“[W]e have recognized that subjective hiring criteria “ ‘provide opportunities for unlawful discrimination’ because the criteria itself may be pretext for age discrimination.” Id. at 11, citing Medina v. Ramsey Steel Co., 238 F.3d 674, 681 (5th Cir.2001) (quoting Lindsey v. Prive Corp., 987 F.2d 324, 327 (5th Cir.1993)).       Stennett v. Tupelo… Continue Reading

Evidence that hiring decisions were based on qualifications not found in the job posting is evidence of pretext.

Posted in Pretext

“This court has held that an employer’s reliance on “previously unmentioned” job requirements can raise a “genuine issue of material fact as to pretext.” Id. at 11, citing Moss v. BMC Software, Inc., 610 F.3d 917, 926 (5th Cir.2010). Plaintiff was able to point to evidence that the “proffered reason for hiring [an] Assistant Principal… Continue Reading

Where Plaintiff applies for seven positions and is never interviewed for five of them, a jury reasonably could determine that it was not a mere coincidence that Plaintiff was denied interviews.

Posted in Pretext

“Although…individual principals had the ultimate power to decide whom to interview, the record nevertheless supports a finding that the individual principals conferred in deciding not to interview [Plaintiff].” Id. at 10.   “Viewing the evidence in the light most favorable to [Plaintiff]…we conclude that a jury reasonably could determine that it was not a mere… Continue Reading

An employer’s failure to interview a candidate with exemplary qualifications, pertinent experience, and excellent performance reviews may be used to show pretext.

Posted in Pretext

“With regard to the assistant principal and administrative intern positions,…[Plaintiff] not only possessed two certifications in school…but also had worked in a supervisory administrative capacity…for many years. [Plaintiff’s] prior experience as an administrator was corroborated through the testimony…. Further, with regard to the “lead teacher” and “testing coordinator” positions, the evidence showed that [Plaintiff] had… Continue Reading

In a failure to hire case, three advanced degrees; four administrative and teaching certifications; thirty-eight years of educational experience overall; twenty years of experience within the school district; and experience directly pertinent to the position in comparison to other applicants is directly probative of pretext.

Posted in Failure to hire, Pretext

“A reasonable jury could consider the strength of [Plaintiff’s] qualifications vis-à-vis the successful younger applicants as undermining the credibility of [Defendant’s] proffered hiring rationale—i.e., that the younger successful applicants were selected because they were all better qualified than her. Indeed, evidence of a plaintiff’s superior qualifications is directly probative of pretext, Patterson, 491 U.S. at… Continue Reading

Plaintiff’s stronger qualifications can by itself create pretext in a failure to hire case. No “clearly better qualified” analysis required

Posted in Failure to hire, Pretext

“A reasonable jury could consider the strength of [Plaintiff’s] qualifications vis-à-vis the successful younger applicants as undermining the credibility of [Defendant’s] proffered hiring rationale—i.e., that the younger successful applicants were selected because they were all better qualified than her. Indeed, evidence of a plaintiff’s superior qualifications is directly probative of pretext, Patterson, 491 U.S. at… Continue Reading

A fact issue exists as to whether or not an applicant applied for the open position, when the decision maker fails to follow his own policy of going to back to review early applications after the position is formally posted.

Posted in Sex Discrimination

“McMullin learned of the vacancy from the officer previously holding the position. ‘The standard procedure for applying for an open position…was to send a letter of interest after learning of an available position. So, McMullin submitted her letter of interest on February 27, 2012. It was Colonel Berry’s policy to ignore letters like Lieutenant McMullin’s… Continue Reading

Plaintiff’s inconsistent statements when reporting the circumstances surrounding a job related personal injury does not preclude Plaintiff from asserting a claim of retaliatory termination, when there is evidence of impaired thought processes.

Posted in Retaliation

“[Plaintiff] claims his thought processes and memory were impaired following the accident because of the injuries he sustained in it. His testimony is corroborated by testimony from his wife and one co-worker. Because it is not disputed that [Plaintiff] sustained some injuries to his head, his claims are not intrinsically unbelievable. While the fact that… Continue Reading

A jury may reasonably conclude that Defendant failed to establish the Ellerth /Faragher defense when an employer has failed to exercise reasonable care to prevent and correct promptly any harassing behavior.

Posted in Hostile Work Environment

“[Defendant] argues…that it had an Equal Employment Opportunity policy, the jury could have believed…that the policy was not followed.  At trial, the jury heard evidence that in response to the EEOC’s request for information, [Defendant] produced affidavits stating that [Plaintiff] never complained….  The jury heard and saw evidence and testimony demonstrating that this was false. … Continue Reading

Countless instances of being called racial epithets by both supervisors and coworkers is sufficient evidence that the harassing conduct affected a term, condition, or privilege of employment and that Defendant’s conduct was sufficiently severe and pervasive to constituted a hostile work environment.

Posted in Race Discrimination

“In addition to [Plaintiff’s] supervisor’s name-calling and harassment, [Plaintiff’s] coworkers testified that they too frequently called him ‘güero.’  This racial harassment occurred for over a year, despite [Plaintiff’s] complaint to management.”   Rhines v. Salinas Const. Technologies, Ltd., 2014 WL 2872716, at *3 (5th Cir. June 25, 2014) (unpublished) (Davis, Barksdale, and Elrod, JJ.).… Continue Reading

An employee complaining of racial epithets and informing supervisors that they made him uncomfortable and requesting that these terms not be used to refer to him is evidence that (1) the employee was subject to unwelcome harassment and (2) that the harassment was based on a protected characteristic.

Posted in Race Discrimination

“[Plaintiff] testified that [Supervisor] repeatedly used racial epithets to refer to him, such as ‘güero,’ ‘mayate,’ and ‘ni – –er,’ even after [Plaintiff] requested not to be called those names.  Once, [Supervisor] told [Plaintiff]: ‘Get the f – – k away from me, I don’t want no mayate around while I’m eating.’  In addition, …[Plaintiff]… Continue Reading

Terminating Plaintiff’s contract after twenty-four years of employment in the absence of prior work related complaints is evidence of pretext.

Posted in Discrimination

“[T]he absence of any earlier criticism of [Plaintiff’s] work as Board attorney and the manner in which the Board selected [Plaintiff’s] replacement would suggest to a reasonable juror that the Board’s claimed reason for terminating [Plaintiff] was pretext.” Dulin v. Board of Comm’rs of Greenwood Leflore Hosp., 2014 WL 2595937, at *5 (5th Cir. June… Continue Reading

decisionmaker asserting influence over other members of the deciding board with regards to terminating the employment contract of a Caucasian male only in order to replace him with an African-American female is evidence of pretext.

Posted in Gender discrimination, Race Discrimination

“[Plaintiff] presented sufficient testimony about the positions and relationships between members of the Board….  Those relationships and positions were evidence that suggested the influence [members] with racial animus could exert on the Board such that the Board would be the “cat’s paw” of the actor with discriminatory intent.” Dulin v. Board of Comm’rs of Greenwood… Continue Reading

In making a prima facie case, a time lapse under four (4) months is sufficient to satisfy the causal connection requirement needed to survive Defendant’s motion for summary judgment.

Posted in EEOC

“The evidence shows that the [P]laintiff submitted a DOTD grievance form on May 24, 2011 regarding alleged improper conduct by [Supervisor] and then provided testimony to the EEOC on July 7, 2011 in connection with complaints filed by two subordinate employees…. Additionally, the evidence indicates that DOTD transferred the [P]laintiff to the Baton Rouge office… Continue Reading

Plaintiff may establish the employer’s concealed motives by showing the supervisor’s ability to take tangible employment action against Plaintiff.

Posted in Discrimination

“Although [Plaintiff] … is unaware of who actually made the decision to hire or fire her…, it undoubtedly was [Coworker]’s recommendation that [Plaintiff] be reprimanded for insubordination that initiated the termination process.  Moreover,…testimony indicates that [Coworker] was involved in [Plaintiff’s] hiring to some degree, and…testimony tends to indicate that [Coworker] may have input regarding the… Continue Reading