“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
Being placed in an off-duty status without pay is an adverse employment action.
By Adam S. Greenfield on
Posted in FMLA violations, Leave
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…
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].
By Adam S. Greenfield on
Posted in FMLA violations, Leave
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…
In claims seeking lost wages and compensatory damages, documents showing Plaintiff’s earnings while working for any previous employers are not relevant.
By Eric P. Dama on
Posted in FMLA violations, Leave
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…
Employees who merely utilize materials of commerce in their job can satisfy the first prong of the Enterprise Test under the FLSA.
By Eric P. Dama on
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…
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.
By Eric P. Dama on
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…
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.
By Kalandra N. Wheeler on
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…
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.
By Kalandra N. Wheeler on
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…
Summary judgment is not properly granted if the nonmoving party has not yet had an opportunity to conduct discovery necessary to oppose the motion.
By Eric P. Dama on
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]…
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
By Eric P. Dama on
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…