“[Defendant] contends that it twice offered [the employee] a reasonable accommodation in the form of clerical work, which offers she ignored or rejected. This first offer was undisputedly made, but made at a time when [she] was unable to return to work and on FMLA leave. [The employee] declined the offer on the advice of
Employment Discrimination
An application for benefits under a disability policy stating that the claimant is “totally disabled” does not preclude them from claiming they could perform their job with reasonable accommodation if they never represented otherwise on their application and the definition of “disability” in the policy is not incompatible with that fact.
By Austin Campbell on
Posted in Disability discrimination
“[The employee’s] claim that she was temporarily totally disabled for the purposes of private disability benefits is not inconsistent with the claim that she could work if provided an accommodation. . . . [Plaintiff argued that] the definition of ‘qualified individual’ in the ADA was not incompatible with the definition of ‘disabled’ within the…
A written job description put forth by the employer is not dispositive of job duties at summary judgment in the face of testimony that the job duties were not actually required.
By Austin Campbell on
Posted in Disability discrimination
“[Defendant] also contends that a written job description in this case establishes that the essential functions of [the employee’s] duties include lifting and pushing more than ten pounds. While written job descriptions warrant deference, ‘this deference is not absolute,’ and we must ask ‘whether the employer actually requires employees in the position to perform the…
A claimant’s own testimony about job duties may be self-serving, but that does not disqualify it as competent summary judgment.
By Austin Campbell on
Posted in Disability discrimination
“At oral argument, counsel for [Defendant] suggested we reject the [Plaintiff]’s evidence as self-serving. But this is summary judgment, and we may not weigh the evidence or make credibility determinations.” Equal Emp’t Opportunity Comm’n v. Vicksburg Healthcare, LLC, — F. App’x —, 2016 WL 5939424, at *3 (5th Cir. Oct. 12, 2016) (internal citations
An employee’s testimony that she could not remember ever performing a particular job duty, alongside other testimony that it was “virtually never required,” creates a genuine issue of material fact as to whether it was an essential function of the job.
By Austin Campbell on
Posted in Disability discrimination
“‘Fact-finders must determine whether a function is ‘essential’ on a case-by-case basis.’ [The employee] testified she couldn’t ‘remember having to lift more than 10 pounds’ as part of her duties, and her colleague . . . has provided a detailed affidavit that, if true, establishes that such exertions are virtually never required. While [Defendant]’s witnesses…
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.
By Kalandra N. Wheeler on
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…
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.
By Kalandra N. Wheeler on
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…
Alleging the underlying facts and the key players at issue is enough to sufficiently state a claim for violation of the Equal Protection Clause due to race-based termination and sexual harassment.
By Eric P. Dama on
Posted in Race Discrimination, Sexual Harassment
“In the complaint, the Plaintiffs allege that (a) they are members of a protected class; (b) they were subjected to intentional discriminatory treatment during their employment with SLU; (c) similarly situated white employees were treated differently; (d) they were terminated due to their race; (e) Gandolfo was subjected to unwelcome sexual harassment that was willfully…
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.
By Kalandra N. Wheeler on
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…
An employee may provide evidence to rebut an employer’s undue hardship defense or its evidence of a neutral policy.
By Nicole M. Conger on
Posted in Religion discrimination
“[T]he district court compared [Plaintiff] to similarly situated employees within the same protected class—i.e., those with religious observances. But, the proper comparators are ‘similarly situated employees outside the protected class.’” Davis v. Fort Bend County, 2014 WL 4209371 at *6 (5th Cir. 2014) (Prado, J.) (emphasis added) (citing McCoy v. City of Shreveport,…