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Category Archives: Discrimination

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A hostile work environment claim is within the scope of an EEOC charge that alleges supervisors repeatedly and continuously made comments regarding an employee’s age, even though the Complaint adds additional facts and supervisors not included the EEOC charge.

Posted in Discrimination, EEOC
“A claim is considered exhausted if is within the scope of the EEOC complaint and reasonably expected to grow out of a charge of discrimination. In examining a Title VII or ADEA action, the Court’s inquiry is not…limited to the exact charge [of discrimination]. The Fifth Circuit has recognized that a Title VII plaintiff is… 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

In the prima facie analysis of the qualified prong, Defendant can use only objective requirements. “Pertinent experience” is not an objective requirement.

Posted in Discrimination
“An employer may establish job requirements, and rely on them in arguing that a prima facie case is not established because the employee is not ‘qualified.’  However, only objective requirements may be used in making this argument.” Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. Nov. 14, 2003) (citing Medina v. Ramsey Steel Co.,… 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

An employee can demonstrate pretext where an employee’s direct supervisor’s testimony conflicts with the performance deficiencies alleged by the decision-maker or where the employee’s direct supervisor testifies that they would not have disciplined the employee for the misconduct alleged.

Posted in Discrimination
“[Direct Supervisor’s] testimony rebutted [employer’s] reason that [employee] improperly documented her hours on the time sheets. [Direct Supervisor’s] testimony also rebutted [employer’s] reason that [employee] taking patient files home constituted a privacy violation.” …  “As for [employer’s] allegation that [employee] failed to attend a particular conference and notify her supervisors, [direct-supervisor] testified [that employee] did… Continue Reading

For the purposes of Title VII retaliation claims, employer removing employee of supervisory responsibilities may be viewed as an adverse employment action.

Posted in Discrimination
“It is undisputed that, prior to [Plaintiff]’s reassignment, he held the position of Branch Chief…, and that, in this position, he supervised a staff of approximately fifteen, consisting of attorneys, paralegals, and a secretary.  It is also undisputed that, after [Plaintiff]’s February 2006 reassignment to the position of staff attorney for the Superfund legal branch,… Continue Reading

An employee can demonstrate pretext where an employer terminates a non-party employee that participated in the investigation and the testimony as to reasons given for the employee’s termination differ between the non-party employee and decisionmaker.

Posted in Discrimination
“[T]he evidence shows a conflict regarding [decision-maker’s] stated reasons for not renewing [non-party witness’s] contract. (‘A court may infer pretext where a defendant has provided inconsistent or conflicting explanations for its conduct.’).”  “According to [non-party witness’s] testimony, when [decision-maker] notified her that that her contract was not being renewed, he said “due to the budget cuts,… 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

A subordinate employees discriminatory suggestion can be attributed to the decisionmaker if they have influence or leverage.

Posted in Discrimination
“When superintendent Pope informed the school board that an individual needs to be hired because a local organization “expressed concern about a lack of black workers the court held that “discriminatory animus of a manager can be imputed to the ultimate decisionmaker if the decisionmaker acted as a rubber stamp, or the cat’s paw, for… Continue Reading

In establishing a prima facie case regarding if a Plaintiff is “qualified” for the position, such qualifications should be construed broadly in favor of the Plaintiff.

Posted in Discrimination
“Pace’s argument to the district court and throughout the trial was that she had five years of “warehouse experience,” if that undefined term was construed broadly, and that “[s]he was the best qualified.”*5 …In light of the ambiguity in the phrase, the jury considered the employer’s argument that Pace did not have the requisite experience,… Continue Reading

When arguing pretext, an employee should emphasize that their employer refused to give a reason for termination, but subsequently manufactured a laundry list of reasons for their termination.

Posted in Discrimination
“We think it significant that, although [decision-maker] refused to give [employee] any reason when he notified her that her contract was not being renewed, during the instant litigation [decision-maker] was able to supply a laundry list of reasons.” Hague v. Univ. of Tx. Health & Sci. Ctr. at San Antonio, 560 Fed. Appx. 328, 335… Continue Reading

Reassignment from a DEA task force to the jail even without a decrease in pay is a sufficient adverse action to defeat motion to dismiss.

Posted in Discrimination
“This Court has previously held that transfers to jail duty, even without a decrease in pay, can be adverse employment decisions because jobs in the jail are not as interesting or prestigious as jobs in the law enforcement section.  We made that finding only after reviewing the evidence presented at trial, and thus we can… 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

Employer’s reliance in plaintiff’s termination on an offense that does not normally result in termination is evidence of pretext.

Posted in Discrimination
“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… Continue Reading

Company’s lack of disciplinary procedures and failure to inform an employee of subpar performance prior to termination for performance constitutes evidence of pretext.

Posted in Discrimination
“[Defendant] does not appear to have formal written procedures in place for handling disciplinary matters, and there is no indication that [Plaintiff] was in fact informed that her work was subpar prior to the termination of her employment….  The Court finds that there are contested issues of material fact regarding the reason for [Plaintiff]’s termination… Continue Reading

Employee’s testimony and a corroborating statement from another witness is enough to create a question of fact.

Posted in Discrimination
“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… Continue Reading

Same actor inference does not apply unless all individuals are the same for hiring and termination.

Posted in Discrimination
“[B]ecause there were a number of individuals involved in the decision to terminate Plaintiff’s employment, some of whom were not involved in the decision to hire her, the ‘same actor’ inference is inapplicable.” Bautista v. Quest Diagnostics Clinical Laboratories, Inc., 2013 WL 4647677 at *6 (S.D. Tex. August 30, 2013) (Atlas, J.).… Continue Reading

Employer giving employee the option of turning in two weeks notice or being immediately terminated is constructive discharge.

Posted in Discrimination
“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.… Continue Reading

An employee may adequately identify and raise a disparate employment practice resulting in discrimination when two departments consolidate into one.

Posted in Discrimination
“Although the City’s complaints about the alleged shortcomings in [Plaintiff]’s analysis may go to the probative value of his testimony, based on the record as a whole we conclude that there is sufficient statistical evidence from which a jury could reasonably conclude that the Consolidation Agreement caused the disparate impact alleged.” City of Austin v.… Continue Reading

Under the requisite totality of the circumstances, a material fact issue exists on whether the comments and actions of an employer were severe or pervasive.

Posted in Discrimination, Sexual Harassment
“A fact issue exists as to whether conduct is severe or pervasive where an employee provides evidence that the harasser ‘sought her out, gave her hugs, invited her to drinks, took a photo of her and showed it to his subordinate, used her cell phone and added him to her Facebook ‘friends,’ and showed her… Continue Reading

An employee expressing attitude that she didn’t do anything wrong is not a reason for termination when she can present evidence the alleged misconduct is false.

Posted in Discrimination
“[Defendant] asserts that Plaintiff ‘was unable and/or refused to recognize and acknowledge any wrong doing.’ Plaintiff has presented substantial evidence that Defendants’ allegations against her are false and that she committed no ‘wrong doing.’ Consequently, a refusal to acknowledge misconduct would be neither surprising nor a basis for termination.” Bautista v. Quest Diagnostics Clinical Laboratories,… Continue Reading

Evidence that an employee’s actions were because of a supervisor’s instructions constitutes evidence of pretext.

Posted in Discrimination
“Plaintiff has presented evidence that her supervisors, [names], suggested the discipline of having Wade recite the SOPs.  Plaintiff expressed her disagreement with the proposed disciplinary procedure but ultimately followed her supervisors’ instructions.” Bautista v. Quest Diagnostics Clinical Laboratories, Inc., 2013 WL 4647677 at *5 (S.D. Tex. August 30, 2013) (Atlas, J.).… Continue Reading

Employees in actions against an employer may demonstrate a sufficient showing that they were similarly situated to other employees even though the putative class includes members with disparate classifications and different job duties.

Posted in Discrimination
“In the instant case, the differences among employees in the putative class—job classifications, descriptions, and duties—are not materially relevant to plaintiffs’ allegations.” Behnken v. Luminant Min. Co., LLC, 2014 WL 585333 at *7 (N.D. Tex. February 14, 2014) (Fitzwater, J.).… Continue Reading