“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).

“The Texas Labor Code’s ‘Election of Remedies’ provision states: ‘A person who has initiated an action in a court of competent jurisdiction . . . based on an act that would be an unlawful employment practice under this chapter may not file a complaint under this subchapter for the same grievance.’  The section ‘limits the ability to pursue multiple grievances in multiple forums over the same alleged conduct.’ Thus, ‘[i]n the realm of employment discrimination litigation—where federal, state, and local governments individually declare their opposition to unlawful discrimination—Section 21.211 merely means a plaintiff cannot file an administrative complaint [under the TCHRA] after having already (1) filed a lawsuit under a federal or local anti-discrimination measure covering the same conduct or (2) begun administrative proceedings with the EEOC or local enforcement entities based on the same conduct.’  But, as the TCHRA is not ‘the exclusive word on work-related discrimination and retaliation in Texas,’ ‘claimants are free to seek relief under parallel federal or local laws,’ and Section 21.211 ‘does not preclude a plaintiff from arguing in the alternative’ as permitted by Federal Rule of Civil Procedure 8.24.”

Castro v. Tex. Dept. of Crim Justice, No. 12-20584, 2013 WL  5229972 at *8 (5th Cir. Sept. 18, 2013) (Stewart, J.).

“Plaintiff’s immediate supervisor also acknowledged that Plaintiff had never received a written reprimand due to work related issues.  Indeed, Barajas’s deposition was taken, but he could not identify specific incidents where Huske was unprofessional.  About the only seed he could throw was that Huske was rude, but he could not identify any instance where she was in fact unprofessional.  Barajas testified that she was permanently laid off. He contends that she was laid off for her behavior.  And yet, he acknowledges that Huske had a pretty good work record for her twenty-nine years of work.”

Huske v. Tyson Foods, Inc., 4:12CV583, 2013 WL 5832248 at *6 (E.D. Tex. Oct. 29, 2013) (Bush, J.).

“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….  Livingston management often uses write-ups and notices to establish a record.  According to the record from the time that Plaintiff was hired until she was terminated, it is not clear whether there were any written notices for misconduct or deficient performance.”

Zeno v. Livingston Management, Inc., 2013 WL 4520532 at *2 (M.D. La. August 23, 2013) (Jackson, J.).

“In summation, Chevron has failed to meet its burden and establish as a matter of law that it would have fired Ion despite its retaliatory motive. Chevron’s evidence of Ion’s history of attendance and performance-related deficiencies is insufficient to establish that it would have fired Ion because Chevron chose to address those deficiencies with a suspension and a PIP/AIP, and Ogborn testified that Ion would have been reinstated had he come back to work. Chevron’s evidence that Ion was faking FMLA leave is also insufficient because of the doubts raised by Chevron’s failure to investigate and Melcher’s e-mail.  Finally, Chevron’s evidence that Ion had been abusive during the clinic incident is insufficient because it was not mentioned in Ion’s termination letter, the accounts of the clinic incident are vague and nondescript, and Chevron has failed to establish as a matter of law that its concerns about the clinic incident were not related to Ion’s refusal to sign the GO–153 form.”

Ion v. Chevron USA, Inc., 731 F.3d 379, 396 (5th Cir. September 26, 2013) (Guirola, Jr., J.).

“Without more conclusive documentary or other evidence, it is essentially Mr. Baldwin’s word against Mr. Obasogie’s, and the summary judgment mechanism cannot resolve such a basic credibility dispute.”

Obasogie v. Harris County Hospital District, CA No. 4:12-cv-3172, 2013 WL 69162446 at *7 (S.D. Tex. December 31, 2013) (Ellison, J.).

 

“The omission of the clinic incident from the termination letter calls into question whether Chevron truly relied on the clinic incident as a reason for terminating Ion.  Second, all accounts of the clinic incident offered by Chevron are vague and include no specific or objective description of Ion’s behavior. The accounts do not describe foul language, physical manifestations of anger, or any other description of Ion’s behavior outside of Ion asking questions about having to sign the GO–153 form.  The failure to bring forth any evidence about Ion’s actual behavior calls into doubt Chevron’s reasonable belief and good-faith reliance on the clinic employees’ report.

Ion v. Chevron USA, Inc., 731 F.3d 379, 395-96 (5th Cir. September 26, 2013) (Guirola, Jr., J.).

“The company document notes that Huske’s termination was involuntary and attributed to a permanent layoff.  There is absolutely no other reason given for her termination on the form.  In box 21, Tyson could have stated that she just couldn’t operate in the gray area, she didn’t smile enough, she was just too blunt, or she ‘ruffled too many feathers.’  Tyson could have also put this in the Comments section of the form, but that portion of the form is blank and no additional reason for her ‘separation’ is given.  The absence of additional reasons or information demonstrates the fact issue as to pretext here.”

Huske v. Tyson Foods, Inc., 4:12CV583, 2013 WL 5832248 at *7 (E.D. Tex. Oct. 29, 2013) (Bush, J.).

“Plaintiff has presented evidence that raises a genuine issue of material fact in support of her claim….  She has presented evidence that Davide Penninger, an IT Department Manager, believed Plaintiff could be best utilized as a member of the SAP team and, therefore, returned her to the team.  Penninger was precluded from doing so and reluctantly removed her from the SAP team.”

Nguyen v. Metropolitan Transit Authority of Harris County, 2013 WL 4506001 at *3 (S.D. Tex. August 22, 2013) (Atlas, J.).

“Chevron’s failure to conduct even the most cursory investigation, confront Ion about Peel’s statements, or seek a second opinion under the FMLA calls into doubt Chevron’s reasonable reliance and good faith on Peel’s statements, and, at the very least, creates a fact issue as to whether it would have terminated Ion despite its retaliatory motive.”

Ion v. Chevron USA, Inc., 731 F.3d 379, 395 (5th Cir. September 26, 2013) (Guirola, Jr., J.).