“Plaintiff averred that the ridicule and name calling occurred on a daily basis. She stated Anderson, specifically, ridiculed her daily, calling her a ‘crybaby’ after she became upset about being ridiculed, assigned her more tasks than the other non-Hispanic employees, and made fun of her Spanish accent. These actions, coupled with Anderson’s alleged prohibition of
Employee Rights
Allegations of poor performance that arise only after an EEOC charge is filed constitutes pretext.
By JMANCHESTER on
Posted in EEOC
“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…. [E]ach of Defendant’s assertions that Plaintiff was not performing adequately in her position were only asserted after she filed her Equal Employment Opportunity Commission claim.”
Zeno v. Livingston Management, Inc…
Formal reprimands that lead to termination or directly affect an employee’s compensation and or benefits may constitute an ultimate employment decision, and therefore adverse action.
By CRANSOM on
Posted in Retaliation
“Denial of ‘administrative complaints and internal grievances,’ as well as informal criticisms, or changing an employee’s work schedule or hours are ‘merely administrative decisions’ that do not constitute an ‘ultimate employment decision’ as contemplated by Title VII.”
Williams v. Shred-It, 2013 WL 596110 at *4 (E.D. La. November 7, 2013) (Roby, J.).
When an employee successfully asserts an FLSA claim against an employer, courts may properly consider attorney’s fees in determining the amount in controversy.
By Nicole M. Conger on
Posted in FLSA violations
“As for the allegation that Defendants willfully violated the FLSA, that matter contains questions of fact, and at this pleading stage prior to discovery the motion to dismiss it is premature.”
Adkins v. United Airlines, Inc., 2014 WL 803460 at *2 (N.D. Tex. February 28, 2014) (Lynn, J.).
To defeat a motion to dismiss, an employee is not required to plead evidence of willfulness; rather an employee may simply state that the FLSA violation was willful.
By Carmen Artaza on
Posted in FLSA violations
“As for the allegation that Defendants willfully violated the FLSA, that matter contains questions of fact, and at this pleading stage prior to discovery the motion to dismiss it is premature.”
Craven v. Excel Staffing Service, Inc., H-12-2860, 2014 WL 345682 at *6-7 (S.D. Tex. January 30, 2014) (Harmon, J.) (internal citations omitted).
An employee may defeat a Twombly motion to dismiss by pleading that he is a nonexempt employee that worked in excess of forty hours per week and was not paid one and a half times his regular rate of pay for overtime hours worked.
By Carmen Artaza on
Posted in FLSA violations, Overtime claims
“Plaintiffs’ allegations that they were nonexempt, regularly worked more than forty hours per week, and were not paid time-and-a-half to be factual allegations and not legal conclusions.”
Rodriguez v. Gold & Silver Buyers, Inc., Civ. A. No. 4:12–CV–1831, 2013 WL 5372529 at *3 (S.D.Tex. Sept.24, 2013) (Harmon, J.).
Being removed from projects, relieved of managerial responsibility, and transferred to another department constitute adverse employment actions in a retaliation case.
By JMANCHESTER on
Posted in Retaliation
“Plaintiff has presented evidence that raises a genuine issue of material fact in support of her claim…. Plaintiff has presented evidence that after execution of the Settlement Agreement, all managerial responsibilities included in her job description were removed.”
Nguyen v. Metropolitan Transit Authority of Harris County, 2013 WL 4506001 at *3 (S.D. Tex. August…
Protected activity is taken against an entity, not a person, and therefore others in the corporation may retaliate if they have knowledge of the activity.
By JMANCHESTER on
Posted in Retaliation
“The 2008 EEOC Charge was against [Defendant], not [alleged harasser]. It was [Defendant], not [alleged harasser], who entered into the settlement agreement to increase Plaintiff’s annual gross compensation, to pay her a lump sum, to raise her grade classification, and to pay her attorney’s fees. Plaintiff has presented credible evidence that [Defendant]’s executives and managers…
There is a genuine issue of material fact as to whether sniffing and hovering over a woman, by two men, in a small, confined space creates a hostile work environment.
By CRANSOM on
Posted in Hostile Work Environment
“Relevant factors are ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”
Royal v. CCC & R Tres Arboles, 736 F.3d 396, 402 (5th Cir. November 21, 2013) (Jolly, J.).
A plaintiff may demonstrate that there is a reasonable basis for crediting the assertion that the aggrieved individuals are similarly situated for the purpose of conditional certification where one former employee files a Notice of Consent to opt in after the plaintiff files his motion for certification.
By Carmen Artaza on
Posted in FLSA violations, Overtime claims
“The Court finds that [the employee] meets his burden to establish that he is similarly situated to other employees in the proposed class. In his declaration, [the employee] states that he was required to work approximately seventy-three hours per week and was paid a flat rate of $145 per day. He did not receive overtime…