“[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 insurance policy, and it further explained that ‘nothing in the [disability claim forms] indicate that [the employee] represented that she was unable to perform the essential functions of her job with or without an accommodation.’” Equal Emp’t Opportunity Comm’n v. Vicksburg Healthcare, LLC, — F. App’x —, 2016 WL 5939424, at *2 (5th Cir. Oct. 12, 2016) (internal citations omitted) (emphasis in original).

“[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 functions that the employer asserts are essential.’ [… C]onsistent with ordinary rules governing summary judgment, a written job description is not given dispositive weight in the face of contrary evidence.” 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 omitted).

“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 omitted).

“‘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 testified to the contrary, this conflict merely establishes an ‘actual controversy’ of fact rendering summary judgment improper.” 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 omitted).

“The Defendants also claims [sic] that the Plaintiff could not satisfy the third prong of the prima facie case [for FMLA retaliation] and could not establish a causal connection that her pregnancy caused her to get fired. The Defendants contend that there is no indication [Defendant] was aware that the Plaintiff was pregnant or wanted FMLA and therefore causation cannot exist. However, the [employee’s supervisor’s] declaration coupled with the fact that the Plaintiff was seven months pregnant during the instant controversy creates a genuine issue of material fact. A jury could conclude that [Defendant] was aware of Plaintiff’s pregnancy and desire to take FMLA and that Plaintiff’s one day absence from work was merely a pretextual reason for her termination.” 2016 WL 4720006, at *4

Thompson v. Beacon Behavioral Hosp., No. 15-5455, 2016 WL 4720006 (E.D. La. Sept. 8, 2016).

“[The] declarations and timesheets [produced by Plaintiff] establish that there were weeks in which [Defendant’s] employees worked more than forty hours, and [two employees] both state in their declarations that they were not paid an overtime rate for this work. . . . [N]othing in [another employee’s] declaration refutes Plaintiff’s claim that employees often worked over forty hours a week and were not paid time-and-a-half for those hours. [That employee] states only that she felt that her ‘pay was fair and acceptable’ and that it was her choice to work more than forty hours a week. . . . [That employee’s] declaration, then, does not in any way create a genuine dispute of fact as to whether [Defendant] failed to meet the overtime requirements of the FLSA.” 2016 WL 5122123, at *4

McDaniel v. Family Sleep Diagnostics, Inc., Civil Action No. 3:13-CV-4031-KS, 2016 WL 5122123 (N.D. Tex. Sept. 20, 2016).

“The only other argument Defendants make as to this issue is to point out that the evidence presented by Plaintiff only speaks to the overtime claims of [two other employees], and does not establish the claims of Plaintiff herself or the other employees she represents in the collective action. . . . Such a collective action ‘functions like a class action under Rule 23 in that it provides a judicial mechanism for the efficient resolution of the claims of multiple plaintiffs that involve common factual issues on the basis of representative proof.’ It is sufficient, then, that Plaintiff has put forward representative proof as to the liability of [Defendant] under the overtime violation claim.” 2016 WL 5122123, at *4 (citation omitted).

McDaniel v. Family Sleep Diagnostics, Inc., No. 3:13-CV-4031-KS, 2016 WL 5122123 (N.D. Tex. Sept. 20, 2016).

“Therefore, because Defendants have pointed only to her lack of evidence, to defeat summary judgment, Plaintiff must adduce evidence that goods or materials she or the collective plaintiffs she represents handled or worked on during their employment with [Defendant] moved in or were produced for interstate commerce. [Plaintiff] has put forward evidence to show that some of the equipment she and other employees used during their employment at [Defendant] included goods and materials, such as polysomnography equipment and nasal airflow sensors, that were manufactured outside of the state of Texas and moved in the stream of interstate commerce. Based on this evidence, the Court will deny Defendants’ Motion for Summary Judgment.” 2016 WL 5122123, at *3-4 (emphasis in original).

McDaniel v. Family Sleep Diagnostics, Inc., No. 3:13-CV-4031-KS, 2016 WL 5122123 (N.D. Tex. Sept. 20, 2016).

“[D]espite there being instances, such as in Section 12.1056(d), where an open- enrollment charter school is treated in the same manner as a school district, nothing in the Texas Education Code or the common law dictates that open-enrollment charter schools and school districts are universally equivalent.”

“Section 7.057(a)(2)(B) sets forth the process by which a person must appeal to the commissioner a grievance caused by a provision of a written employment contract between the school district and a school district employee. See id. § 7.057(a)(2)(B). But Section 7.057 makes no provision for the inclusion of open-enrollment charter schools, nor does any other section or rule suggest that they should be included under that rule as are school districts. See id.”

 

Azleway Charter School v. Hogue, No. 12-15-00257-CV, 2016 WL 2585963, (Tex. App. – Tyler May 4, 2016)

 

“[The investigator] testified that a portion of the hours she found Dow to have been overbilled was in the form of employees arriving late, leaving early, and taking breaks. (Id. at pp. 113—15). [The investigator] stated that the contract between Axion and Dow did not permit Axion to bill Dow for its employees’ breaks. (Id.). [The investigator] further testified, and Axion has admitted, that Ms. Miller improperly billed hours to Dow to compensate for her mileage.”

 

Richardson v. Axion Logistics, LLC, Civil Action No. 13-00302-BAJ-RLB, 2016 WL 2595105 (M.D. Louisiana, May 4, 2016)