Discrimination, Retaliation, Wrongful Termination, and Unpaid Wages
Age discrimination
An employer’s failure to comply with the plain language of its own policy is enough to raise a genuine dispute of material fact as to the true reason for firing an employee.Failure to retain other older employees, Plaintiff who was 66, another who was 60, and two other older employees, after “outsourcing,” while retaining younger employees bolsters an inference of pretext.Evidence that the hiring decisions were based on subjective considerations such as, “looking for…a candidate…to kind of complement [him]” or “felt that [the successful] applicant would be a good instruction leader for her teachers,” may be pretext for age discrimination. Disability discrimination
COVID-19 is an important reminder why we fight for employee rightsParties’ conduct can show whether or not a reasonable accommodation offer was ever made.An application for benefits under a disability policy stating that the claimant is “totally disabled” does not preclude them from claiming they could perform their job with reasonable accommodation if they never represented otherwise on their application and the definition of “disability” in the policy is not incompatible with that fact. EEOC
A hostile work environment claim is within the scope of an EEOC charge that alleges supervisors repeatedly and continuously made comments regarding an employee’s age, even though the Complaint adds additional facts and supervisors not included the EEOC charge.An employee can demonstrate pretext by producing evidence that the employer’s stated reason for termination was based, in part, on allegations contained within an employee’s complaint that forms the basis of the employee’s protected activity.In making a prima facie case, a time lapse under four (4) months is sufficient to satisfy the causal connection requirement needed to survive Defendant’s motion for summary judgment. Employment Contracts
Dangers and Pitfalls of Blindly Signing an Employment ContractA jury trial waiver is unenforceable if an employee has disproportionate bargaining power compared to his employer, has no opportunity to negotiate the provision, is not represented by counsel, and has no business experience, even though the waiver is bolded, in all-caps, underlined, and appears just above where the employee signed. Failure to hire
An employer’s proffer of its own policy is not competent in itself as evidence the policy was followed.When pleading knowledge, it is enough to plead simply that the bad actor knew and this this precipitated the bad acts.A plaintiff’s own assertions about his official job duties can plausibly establish that his actions were outside the course and scope of his job duties. Fair Pay
Global statement that company did not fire any employee for complaining about wages is not a legitimate non-retaliatory reason.Demand for back pay for failure to comply with termination procedures is not a suit for money damages barred by sovereign immunity.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. FLSA violations
In a collective FLSA action, an employee's testimony that they worked overtime voluntarily and were satisfied with their pay does not create a genuine dispute of material fact when other employees were indisputably denied overtime wages.To win summary judgment on the issue of whether overtime requirements were violated, the plaintiff in a certified collective FLSA action only has to show that some employees have claims, not necessarily all employees or even themselves.Employees' use of goods and materials produced outside the state as part of their jobs creates a a genuine dispute of material fact whether their employer is an “enterprise engaged in interstate commerce” under the FLSA. FMLA violations
When the Silence is Broken, and the Secret is Out (Part 1)COVID-19 is an important reminder why we fight for employee rightsUndisputed allegations that an employee was subjected to intentional sabotage in the workplace, which included forcing the employee to operate a two person machine by herself and placing heavy materials she needed to work out of her reach, is enough to establish a prima facie case of retaliation. Gender discrimination
An employee can demonstrate pretext where other individuals that assisted with her complaint also experience an adverse employment action.decisionmaker asserting influence over other members of the deciding board with regards to terminating the employment contract of a Caucasian male only in order to replace him with an African-American female is evidence of pretext. Hostile Work Environment
To prove constructive discharge, Plaintiff must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment.regular pattern of frequent verbal ridicule or insults sustained over time can constitute severe or pervasive harassment sufficient to violate Title VII.A jury may reasonably conclude that Defendant failed to establish the Ellerth /Faragher defense when an employer has failed to exercise reasonable care to prevent and correct promptly any harassing behavior. Immunity/Affirmative Defense
Submission of online application by Plaintiff authorizing prior employers to provide full details of past employment does not waive a mutual non-disparagement provision of a settlement agreement.Defendant’s expressions of doubt that plaintiff could perform the job duties for a prospective employer were not protected by Tex. Lab. Code § 103, which makes employers immune from suit for describing the manner in which an employee performed her job duties for that employer.Ministerial Exception is an affirmative defense, not a jurisdictional bar. Imputing Improper Motive
An employer’s proffer of its own policy is not competent in itself as evidence the policy was followed.When pleading knowledge, it is enough to plead simply that the bad actor knew and this this precipitated the bad acts.Evidence that co-employee or manager misrepresented employment test results that may have been caused by employee’s disability shows disability animus that may be imputed to company to show pretext because employer relied on that misrepresentation to terminate plaintiff. Overtime claims
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.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.Denying the available chance of working overtime constitutes an adverse employment action. Pretext
An employer’s failure to comply with the plain language of its own policy is enough to raise a genuine dispute of material fact as to the true reason for firing an employee.Failure to retain other older employees, Plaintiff who was 66, another who was 60, and two other older employees, after “outsourcing,” while retaining younger employees bolsters an inference of pretext.Evidence that the hiring decisions were based on subjective considerations such as, “looking for…a candidate…to kind of complement [him]” or “felt that [the successful] applicant would be a good instruction leader for her teachers,” may be pretext for age discrimination. Race Discrimination
Alleging the underlying facts and the key players at issue is enough to sufficiently state a claim for violation of the Equal Protection Clause due to race-based termination and sexual harassment.An employer’s selective application of a facially neutral policy is evidence of pretext.Showing that white employee was denied raise, even though fully funded by federal grant, by new black sheriff who recently hired two new blacks employees is enough create fact issue regarding intentional discrimination. Religion discrimination
An employee may provide evidence to rebut an employer’s undue hardship defense or its evidence of a neutral policy.The availability of a volunteer to cover an employee’s shift precludes an employer from asserting an undue hardship as a result.An employee’s bona fide religious belief does not require an inquiry into the nature of the activity itself. Retaliation
What to do if You are the Victim of Discrimination at the WorkplaceFour references to an employee’s protected activity during a much longer meeting where multiple subjects were discussed is sufficient to create a fact issue as to causation.To establish the third element of a prima facie case for retaliation under Title VII, a plaintiff must ultimately present evidence that there is a causal link between the protected activity and the adverse employment action. Sexual Harassment
What to do if You are the Victim of Discrimination at the WorkplaceAlleging the underlying facts and the key players at issue is enough to sufficiently state a claim for violation of the Equal Protection Clause due to race-based termination and sexual harassment.Fact issue exists over whether Defendant’s decision to end assignment of Plaintiff employed by third party based on unlawful motive satisfies employment relationship requirement of Texas employment discrimination laws. Unpaid wages
Global statement that company did not fire any employee for complaining about wages is not a legitimate non-retaliatory reason.Demand for back pay for failure to comply with termination procedures is not a suit for money damages barred by sovereign immunity.Denying the available chance of working overtime constitutes an adverse employment action. Wrongful termination
Allegations that an employer’s billing practices violated a federal criminal statute prohibiting healthcare fraud are sufficient to state a claim under Sabine Pilot.Finding a male employee a job for his transfer but requiring a similarly situated female employee to undergo an interview process for her transfer, both required to transfer as part of disciplinary actions, constitutes prima-facie disparate treatment.Declining to terminate an employee engaging in the same behavior that led to the plaintiff’s termination raises a triable issue of fact as to disparate treatment.
