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An employer’s failure to keep hourly time records and require employees to clock in and out raises a fact issue for a jury on willfulness of the FLSA violation.

Posted in FMLA violations

“Solano alleged that from September 30, 2010, to May 20, 2012, Ali Baba improperly paid him a biweekly “salary” that failed to comply with the FLSA’s overtime requirements. It is true that the DOL letter and report, upon which Solano relies, indicate that Ali Baba claimed that it did not know that its practices violated… Continue Reading

A letter finding violations under the FLSA issued by the Department of Labor is admissible to support the plaintiff’s FLSA claims.

Posted in FMLA violations

“The DOL letter, accompanied by the DOL report, bears the seal of the DOL and the signature of a DOL officer and is, therefore, self-authenticating. DOL investigative reports, although hearsay, are generally admissible hearsay, because they are public records under Federal Rule of Evidence 803(8). Public records are presumed admissible, unless the party opposing their… Continue Reading

Being placed in an off-duty status without pay is an adverse employment action.

Posted in FMLA violations

In May 2004, Plaintiff became a letter carrier with the USPS. Plaintiff alleges that Defendant retaliated against him after he filed numerous grievances and EEO complaints. He argues that his disciplinary actions began around the same time and are separated from his protected activity by only a two-month period. Because of this, Plaintiff contends that… Continue Reading

The statutory duty not to retaliate against employees for reporting violations of law does not directly relate to treatment that was or should have been performed for a patient therefore does not fall within the definition of an HCLC [Health Care Liability Claim].

Posted in FMLA violations

This is an interlocutory appeal from an order denying Loyds of Dallas Enterprises, LLC’s motion to dismiss an alleged health care liability claim (HCLC) for failure to file an expert report. … Jennings alleges she was fired for reporting violations of the health and safety code consisting of failures by Loyds to make adequate medication… 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

Employees who merely utilize materials of commerce in their job can satisfy the first prong of the Enterprise Test under the FLSA.

Posted in FMLA violations

Plaintiffs allege that Rite–Way was an enterprise covered by the FLSA because (1) its employees handled materials such as “mops, brooms, towels, soap, chemicals, vacuum cleaners, and other cleaning materials, supplies, and equipment” that had moved in interstate commerce, and (2) its annual gross volume of sales exceeded $500,000.Therefore, as held persuasively by the Eleventh… Continue Reading

Evidence of temporary employees being brought on in Defendant’s position can create an issue of fact as to whether an employee was replaced by someone outside the protected class.

Posted in FMLA violations

Plaintiff contends that she “was succeeded by one or more of three new male MEs and so was replaced by someone outside her protected class.” There is evidence that Defendant had “three temporary or agency MEs” but didn’t know if they were actually hired and was not sure of their race. Defendant argues that evidence… 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

Summary judgment is not properly granted if the nonmoving party has not yet had an opportunity to conduct discovery necessary to oppose the motion.

Posted in FMLA violations

In this case, Crawford moved for summary judgment on December 16, 2015—less than two months after the case was initiated. The Court has yet to issue a scheduling order or conduct an initial case management conference. Additionally, the parties have not yet begun discovery—on the issue presented in the motion or any other. (“The [parties]… Continue Reading

An employee who was misled about the availability of a promotion need not show that he or she actually applied for the promotion to establish that element of a prima facie case of a failure to promote claim

Posted in FMLA violations

Under these alleged facts, Wade has established a prima facie case for purposes of summary judgment. The Court disagrees with Home Depot that, under these alleged circumstances, Wade was required to apply through Career Depot. Although Home Depot did have a formal application process and Wade failed to follow that process, viewing the evidence in… Continue Reading

Sexually explicit remarks, spanning two years, which had been reported to an employee’s immediate supervisor, raise a fact issue regarding whether the environment was objectively abusive and altered terms of employment.

Posted in FMLA violations

“[A] repeated pattern of behavior consisting of sexual comments, humiliating jokes, insults, ridicule, and intimidation. Clark claimed she was subjected to continuous repeated sexual jokes and obscene language, most of which were directed at her” and although “it could be argued that most of the acts complained of by Clark were not objectively severe,3 the… Continue Reading

A jury could find that the employer’s decision to terminate an employee after the employee’s refusal to write down bible verses on a daily company wide email establishes a failure to accommodate on religious grounds.

Posted in FMLA violations

“A reasonable juror could find that Defendant failed to accommodate Plaintiff’s request because Plaintiff was terminated thirty-two (32) hours after his refusal to include Bible quotes in the Morning Coffee[name of daily email].” Mindrup v. Goodman Networks, Inc., No. 4:14-CV-157, 2015 WL 5996362, at *8 (E.D. Tex. Oct. 14, 2015).  Based upon this finding, the… Continue Reading

Allowing employee to pay reduced rent for housing increases the employee’s regular rate of pay for computing overtime.

Posted in FMLA violations

Thus, in certain situations, an employee’s wages may include “the reasonable cost, as determined by the Administrator, to the employer of furnishing such employee with board, lodging, or other facilities.”  29 U.S.C. § 203(m).  However, such reasonable cost of lodging can only be computed when determining the employee’s regular rate of pay, such as when… Continue Reading

A five-year employment contract with a government entity that promises a severance of the remaining wages owed if the contract is terminated by the entity for any reason other than death or disability is enforceable where the employee has performed his obligations under the contract.

Posted in FMLA violations

“The employment contract does not constitute a gratuitous payment of public funds to Morales. The contract clearly serves a legitimate public purpose—the employment of the District’s general manager. The benefit received in return by the District under the contract is the performance by Morales of the duties of general manager. The ‘severance’ required for early… Continue Reading

Expert testimony that disability caused unusual test results that were basis for termination establishes the causal connection requirement for prima facie disability discrimination case.

Posted in FMLA violations

In view of these expert opinions that Brown’s hearing impairment caused his unusual results, and given the fact that these results undisputedly resulted (one way or the other) in his termination, the Court finds sufficient evidence of a causal nexus between Brown’s disability and termination. Brown v. Cooper Tire & Rubber Co., No. 1:13-cv-00176-SA-JMV, 2015… Continue Reading

Unless expressly addressed in the arbitration agreement, availability of collective arbitration is determined by arbitrator.

Posted in FMLA violations

While courts determine the validity of arbitration agreements, whether the contract forbids collective arbitration does not fall within the limited circumstances under which “courts assume that the parties intended courts, not arbitrators, to decide a particular arbitration-related matter,” because the question involves contract interpretation regarding the “kind of arbitration proceeding the parties agreed to.  … Continue Reading

Employer is not entitled to summary judgment when it provided an accommodation and subsequently limited or eliminated the accommodation.

Posted in FMLA violations

“Instead of giving [Plaintiff] light duty, [Defendant] provided the grocery department an additional thirty hours to allow [Plaintiff] to schedule employees to help him….  In spite of the additional hours, when sales were slower than anticipated, [Plaintiff] was instructed to cut hours…, resulting in the department being understaffed, leaving [Plaintiff] with no help and forcing… Continue Reading

Temporal proximity of three days between medical leave request and termination in conjunction with evidence that eliminated position could have been extended, specific mention of employee’s extended medical leave in termination recommendation doubt on legitimate reason.

Posted in FMLA violations

“After describing statements in an email exchange about terminating plaintiff and how hard on business a sales’ rep’s extended medical leave can be, the court concludes, ‘These statements, in conjunction with Lentin’s testimony [about how the job did not have to be eliminated] and the plain language of the November 19 confidential letter, suggest that… Continue Reading

Discussing termination with Plaintiff three days after request for FMLA-qualified leave creates causal connection.

Posted in FMLA violations

“[T]he court finds that Plaintiff has demonstrated a causal connection between her request for FMLA-qualified leave and her termination, which was discussed with her a mere three days after her FMLA-qualified leave request.” Hiltabrand v. Direct Energy, LP, 2013 WL 3480532 at *6 (S.D. Tex. July 10, 2013) (Lake, J.).… Continue Reading

The mention of employee’s surgery in an email exchange between supervisors recommending termination one day after employee notifies supervisor of impending surgery creates causal connection in FMLA case.

Posted in FMLA violations

“Plaintiff cites her email dated June 6, 2011, in which Plaintiff informed Coughlin-Rowley that she was scheduled for an eye surgery … Plaintiff also points to Coughlin-Rowley’s email exchange with Atkinson on June 7, 2011, wherein Coughlin-Rowley recommended that Plaintiff’s employment be terminated as of July 1, 2011 [specifically referencing] Plaintiff’s intention to undergo surgery… Continue Reading

When evaluating whether the adverse employment action was causally related to the FMLA protection, the court shall consider the temporal proximity between the FMLA leave and the termination.

Posted in FMLA violations

“In the case at bar, Plaintiff suffered injury on August 2, 2010. Shortly thereafter, Defendant was made aware that Plaintiff had suffered an injury to his arm and would be at least temporarily unavailable for work. Plaintiff provided and continued to provide all relevant medical paperwork to his employer. Plaintiff further informed Defendant that he would… Continue Reading

Plaintiff’s deposition testimony that a review of time records would reflect underreporting of time for FLSA claim creates a fact issue.

Posted in FMLA violations

“In addition to actually informing Mr. Perkins that he was working, but under-reporting his time, Plaintiff testified that a review of his time records would reflect that he was recording 15 minutes of travel time for a drive … of over 105 miles.” Arnett v. Sears, Roebuck and Co., 2013 WL 3324070 at *2 (W.D.… Continue Reading

The fact that an employer returned an employee to work after illness does not alone defeat a plaintiff’s claim.

Posted in FMLA violations

“Further, the question is not what Greystar thought when it returned McMann to work, but what it (and its managers) believed when, three months later, they forced McMann to resign.” McMann v. Greystar Management Services, LP, CA No. 1:12-CV-909, 2013 WL 6243847 at *5 (W.D. Tex. Dec. 2, 2013) (Austin, J.).… Continue Reading