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Discrimination, Retaliation, Wrongful Termination, and Unpaid Wages

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An employee does not have to identify the specific instances of sexual harassment or retaliation in the charge of discrimination to exhaust administrative remedies.

Posted in Discrimination, Retaliation, Sexual Harassment

“Plaintiff provided notice to the TWC that Dr. Decherd was sexually harassing her and that she complained to her supervisor of the alleged conduct. Plaintiff was not required to specifically detail each and every instance of sexually harassing conduct allegedly engaged in by Dr. Decherd.” Sanders v. Christus Santa Rosa PASC, 13-CV-250, 2014 WL 201071… Continue Reading

Evidence that an employee’s version of events were not fully investigated and that investigation was one sided constitutes evidence of pretext.

Posted in Discrimination

“Plaintiff has presented evidence that when she attempted to explain her position to supervisors, they told her ‘they didn’t want to hear it.’ Plaintiff has presented evidence that, when she attempted to explain her positions, Hoffman called her ‘annoying.’  The investigation summary includes only Ms. Wade’s allegations and none of Plaintiff’s explanations.  These alleged short… Continue Reading

Fact issues regarding whether leave would be paid or unpaid after plaintiff engaged in protected activity sufficient to show but-for causation for retaliation.

Posted in Discrimination

“Drawing reasonable inferences in Plaintiff’s favor, however, Ross’s alleged action, coming on heels of Plaintiff’s complaints of discrimination, and culminating in her termination, is sufficient to raise an issue of material fact as to Plaintiff’s retaliation claim.  Said a different way, Plaintiff has offered sufficient evidence that but-for her report to Ross of the allegedly… Continue Reading

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.

Posted in Discrimination

“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… Continue Reading

Evidence of retaliation and hostile work environment in an ADA claim include failure to accommodate plaintiff for heavy lifting, placing plaintiff in a position requiring more physical exertion, and terminating plaintiff for inability to perform job tasks requiring more physical exertion.

Posted in Disability discrimination, Discrimination, Retaliation

“Requesting reasonable accommodations is generally a protected activity against retaliation under the ADA; however, first a plaintiff must have a good faith belief that he or she was disabled or perceived as disabled.” Williams v. Rocktenn, 2013 WL 5960671 at *14 (W.D. La. November 6, 2013) (Trimble, J.).  … Continue Reading

An employee may prove disparate treatment by showing that other employees were similarly situated for comparison purposes, and not “identically situated.”

Posted in Discrimination

“[An employee] sets forth the factors for similarly situated employees as follows: (1) they shared the same supervisor, (2) were subject to the same standards, and (3) engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.” Hoffman v. Baylor Health… Continue Reading

The lack of documentation of complaints at the time of the incident is evidence of pretext.

Posted in Discrimination

“The only two documented complaints against De La Cruz are dated February 8, the day she was demoted.  Although not incriminating evidence, the suspicious timing of these documents, taken with reasonable inferences in favor of De La Cruz’s claim that they were fabricated, could support a finding of discriminatory motive.” De La Cruz v. Coastal… Continue Reading

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.

Posted in Discrimination

“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. December… Continue Reading

Evidence of an insufficient investigation into a complaint creates a fact issue on whether prompt remedial action was taken.

Posted in Discrimination

“Indeed, the interviewed employees’ responses that the Spanish-speaking employees were trying to ‘cause trouble,’ and that they felt uncomfortable when the Hispanic employees spoke Spanish, might have suggested the need to investigate further.  However, there is no evidence that Defendant took additional steps after the cursory investigation to remedy the situation about which Plaintiff complained.… Continue Reading

In determining whether an employee’s rebuttal precludes summary judgment, courts look to see whether an employer’s reason for discrimination or termination was pretextual.

Posted in Discrimination, Retaliation

“Pretext may be shown ‘either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or unworthy of credence.” Hoffman v. Baylor Health Care System, 2014 WL 772672 at *2 (N.D. Tex. February 27, 2014) (Lindsay, J.) (quoting Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. March… Continue Reading

If an employee uses his supervisor’s personal truck for business- related purposes, a fact issue exists as to whether he is subject to “The Motor Carrier Act Exemption.”

Posted in Discrimination

“The question is whether the deposition testimony from [the supervisor] that some drivers used his personal truck for business-related purposes is sufficient to prevent summary judgment as to [the Plaintiff]’s claim … when [the supervisor] testified that he would occasionally ask some drivers to use his personal truck for business-related matters.  [The Plaintiff] testified in… Continue Reading

Plaintiff can establish pretext for defendants stated reason of saving money by showing other individuals where hired.

Posted in Discrimination

  “Plaintiff argues pretext based on the following points: (1) that defendant’s proffered reason is not supported by any documentation; (2) that Sheriff Little hired fourteen (14) new employees before plaintiff was discharged and hired fifteen (15) new employees after the alleged reduction in force due to budget constraints; and (3) that Sheriff Little explained… Continue Reading

A supervisor not being terminated for same conduct is evidence of pretext.

Posted in Discrimination

“Nonetheless, the summary judgment evidence also demonstrates that Defendant’s reasons for Plaintiff’s ‘separation’ from Tyson were inconsistent and create a fact issue as to their pretextual nature.  For example, although Defendant relies on the union campaign as a reason for termination, Huske’s immediate supervisor received a write up and reduction in his bonus as a… Continue Reading

Specific hostile environment acts are not time barred under continuing violation doctrine where there is evidence that same group of co-workers and supervisors perpetrated the alleged discriminatory acts continuously for more than a year before plaintiff’s charge of discrimination.

Posted in Discrimination

“Reviewing the evidence in the light most favorable to Plaintiff’s claims, there is evidence that throughout her tenure at LHS, the same group of co-workers and supervisor perpetrated the alleged discriminatory acts (i.e., name-calling, teasing, increasing work load, and prohibiting the use of Spanish). Thus, there is sufficient nexus between the national origin discrimination claims… Continue Reading

An employee may assert both federal and state law age discrimination claims in the same action.

Posted in Discrimination

“The Texas Labor Code’s ‘Election of Remedies’ provision states: ‘A person who has initiated an action in a court of competent jurisdiction . . . based on an act that would be an unlawful employment practice under this chapter may not file a complaint under this subchapter for the same grievance.’  The section ‘limits the… Continue Reading

Lack of prior discipline for over twenty-nine years and failure to cite specific incidents of unprofessionalism is evidence of pretext.

Posted in Discrimination

“Plaintiff’s immediate supervisor also acknowledged that Plaintiff had never received a written reprimand due to work related issues.  Indeed, Barajas’s deposition was taken, but he could not identify specific incidents where Huske was unprofessional.  About the only seed he could throw was that Huske was rude, but he could not identify any instance where she… Continue Reading

Evidence that an employer documents poor performance for other employees can show pretext that performance is not the reason for termination when the alleged poor performance is not documented for the employee.

Posted in Discrimination

“The Court finds that nearly all of Defendant’s arguments that Plaintiff was fired for performance related issues are not clearly supported by an employment records….  Livingston management often uses write-ups and notices to establish a record.  According to the record from the time that Plaintiff was hired until she was terminated, it is not clear… Continue Reading

Plaintiff’s sworn affidavit, even if contradicted by Defendant’s witness, creates a question of fact.

Posted in Discrimination

“Without more conclusive documentary or other evidence, it is essentially Mr. Baldwin’s word against Mr. Obasogie’s, and the summary judgment mechanism cannot resolve such a basic credibility dispute.” Obasogie v. Harris County Hospital District, CA No. 4:12-cv-3172, 2013 WL 69162446 at *7 (S.D. Tex. December 31, 2013) (Ellison, J.).  … Continue Reading

Lack of an additional supposed reason for separation on termination notice is evidence of pretext.

Posted in Discrimination

“The company document notes that Huske’s termination was involuntary and attributed to a permanent layoff.  There is absolutely no other reason given for her termination on the form.  In box 21, Tyson could have stated that she just couldn’t operate in the gray area, she didn’t smile enough, she was just too blunt, or she… Continue Reading

Evidence that a supervisor believed an employee would be a good fit on a project but was told by management that the employee wasn’t allowed on the project constitutes evidence of pretext.

Posted in Discrimination

“Plaintiff has presented evidence that raises a genuine issue of material fact in support of her claim….  She has presented evidence that Davide Penninger, an IT Department Manager, believed Plaintiff could be best utilized as a member of the SAP team and, therefore, returned her to the team.  Penninger was precluded from doing so and… Continue Reading

Once an employer has articulated legitimate, nondiscriminatory reason for an employment action at issue, the employee must present substantial evidence that the employer’s proffered reason is a pretext for discrimination.

Posted in Discrimination

“When it is alleged that bigoted remarks are laughed at by fellow employees and managers, even when those remarks are not directed at the plaintiff, it becomes more likely the plaintiff will show pretext.” Rideout v. Allstate Insurance Co., 2013 WL 6061330 at *6 (N.D. Miss. November 18, 2013) (Mills, J.).    … Continue Reading

An employee may rely on direct or circumstantial evidence to support an employment discrimination claim.

Posted in Discrimination

“So long as a plaintiff meets the ‘minimal’ initial burden of establishing a prima facie case of discrimination, she is entitled to a presumption of discrimination….  Although the precise elements of this showing will vary depending on the circumstances, the plaintiff’s burden at this stage of the case is not onerous.” Hall v. RDSL Enterprises,… Continue Reading