EMPLOYMENT LAW
SPRING
2020
Clark v. Champion Nat’l Sec., 947 F.3d 275 (5th Cir.
2020)
Americans with Disabilities Act-Accommodation by Reduction
of Discipline - “Qualified
Individual:” The Fifth Circuit affirmed the district court's grant of
Champion's motion for summary judgment on workplace-discrimination claims
brought by plaintiff, an employee, who alleged that he was fired because of a
diabetes-related condition. Champion claimed that plaintiff was sleeping at his
desk during work hours, an immediately terminable offense (it is important to
note for this opinion that it was an immediately terminable offense). Held: The
court held that the district court did not err in finding no direct evidence of
discrimination on the basis of disability. The court also agreed with the
district court that the evidence suggested that plaintiff could not perform the
essential functions of the job with or without an accommodation. The court also
held that plaintiff's disability-based claim failed because any harassment
plaintiff alleged was not severe or pervasive and did not create an abusive
working environment. Furthermore, plaintiff failed to show that the harassment
was based on his disability. The court held that the district court did not err
in finding no failure to accommodate plaintiff's disability and no failure to
engage in an interactive process. Even if plaintiff was a qualified individual,
his failure-to-accommodate claim failed because he failed to carry his burden
to show that he requested reasonable accommodations. The court further held
that plaintiff failed to show a prima facie case of retaliation. Finally, the
district court did not err by denying plaintiff's claims for damages.
Escribano v. Travis County, 947 F.3d 265 (5th
Cir. 2020)
Fair Labor Standards Act- Highly Compensated Employees -
Exemption: The
plaintiffs, six Travis County Sheriff's Office detectives, filed suit alleging
that they were entitled to overtime pay under the Fair Labor Standards Act
(FLSA). The county argued that plaintiffs were exempt as both executive and
highly-compensated employees. The district court granted judgment for
plaintiffs. Then the district court later ruled as a matter of law that
plaintiffs were paid a salary, vacated the jury's finding on the first
requirement of the exemptions, and granted plaintiffs' request for a new trial.
Plaintiffs sought reconsideration, contending that they had conditionally asked
for a new trial on the management issue, an element of the executive exemption
and first-responder exception, not on the office-work issue, which is part of
the highly-compensated-employee exemption. Plaintiffs then moved for reentry of
judgment in their favor. Because plaintiffs did not want a new trial, the
district court entered a final judgment. Held: Rejecting the parties' jurisdictional
challenges, the Fifth Circuit affirmed and held that it had appellate
jurisdiction. The court also held that plaintiffs' failure to challenge the
timeliness of the Rule 50(b) motion in the district court means that they have
forfeited that objection, and the district court had jurisdiction to decide the
motion for judgment as a matter of law. The court explained that a new trial
was needed to answer the additional questions about whether plaintiffs were
exempt and, by prevailing on a Rule 50(b) motion, the county did not somehow
lose its right to assert its defenses. On the merits, the court held that the
district court properly held as a matter of law that the county paid plaintiffs
on a salary basis. Although the ruling did not fully resolve whether plaintiffs
were entitled to overtime pay, the court stated that years of litigation never
answered that ultimate question.
Hobbs v. Petroplex Pipe and
Construction, Inc., 946
F.3d 824 (5th Cir. 2020)
Fair Labor Standards Act- Overtime- Employee or Independent
Contractor?: The
plaintiffs filed suit against their former employer, Petroplex,
alleging claims for overtime pay under the Fair Labor Standards Act. Plaintiffs
were former pipe welders for Petroplex and they
claimed that they worked more than forty hours per week for the company without
overtime pay. At issue on appeal was whether plaintiffs were considered
employees or independent contractors. Held: The Fifth Circuit affirmed
the district court's judgment in favor of plaintiffs, holding that plaintiffs
were employees instead of independent contractors. The court held that the
district court did not clearly err by determining that the control, investment,
opportunity for profit and loss, and permanency Silk factors all weighed in
favor of employee status.
Horvath v. City of Leander, 946
F.3d 787 (5th Cir. 2020)
Discrimination- Religious Grounds- First Amendment Claim-
Reasonable Accommodation: The plaintiff filed suit against the fire chief and the city
after he was terminated from his position as a driver/pump operator at the fire
department because he objected to having TDAP vaccinations based on religious
grounds. The plaintiff was given a choice between two accommodations: transfer
to a code enforcement job that did not require a vaccination, or wear a
respirator mask during his shifts, keep a log of his temperature, and submit to
additional medical testing. When plaintiff did not accept either accommodation,
he was fired by the fire chief for insubordination. Held: The Fifth
Circuit affirmed the district court's grant of summary judgment to defendants
on all of plaintiff's claims. In regard to plaintiff's claim of retaliation in
violation of Title VII and the Texas Commission on Human Rights Act (TCHRA),
the court held that the city provided a reasonable accommodation by offering to
transfer plaintiff to the code enforcement position in the department. In
regard to plaintiff's Title VII and TCHRA retaliation claims, the court held
that the city had a legitimate, non-discriminatory reason for plaintiff's
termination: plaintiff's defiance of a direct order by failing to select an
accommodation to the TDAP vaccine policy. In regard to plaintiff's 42 U.S.C.
1983 claims that defendants violated his First Amendment Free Exercise rights,
the court held that plaintiff's right to freely exercise his religious beliefs
was not burdened by the respirator requirement.
Isett v. Aetna Life Insurance Co., 947 F.3d 122 (2nd Cir. 2020)
Fair Labor Standards Act- Exemptions: The Second Circuit affirmed the
district court's award of summary judgment in favor of Aetna, plaintiff's
employer. Held: The court held that, when interpreting the scope of a
Fair Labor Standards Act (FLSA) exemption, courts must give the exemption a
fair reading and shall not construe it narrowly against the employer seeking to
assert the exemption. The court also held that the first prong of the
professional exemption's primary duty test requires courts to: (A) identify
what qualities or skills are characteristic of the work of the profession at
issue; and (B) determine if the employee's primary duty reflects those
qualities or skills; central to the profession of registered nursing is the
ability to act independently, or under limited supervision, on the basis of
collected clinical data; and the district court did not err in concluding that
plaintiff's job satisfied the first prong. In this case, plaintiff's primary
duty as an appeals nurse consultant—to conduct utilization review and approve insurance
coverage for medically necessary services under minimal supervision—reflects
the discretion and requires the judgment characteristic of other registered
nurses. Therefore, plaintiff's job as an appeals nurse consultant required the
use of advanced nursing knowledge. The court also held that, in cases where, as
here, the employer requires the possession of an advanced academic degree, the
third prong of the primary duty test for the professional exemption of the FLSA
requires courts to: (A) identify the job's primary duty which requires the use
of advanced knowledge; and (B) determine if that duty is consistent with the
employer's minimum academic qualifications. The court held that the district
court did not err in concluding that plaintiff's job satisfied the third prong.
Accordingly, the undisputed facts demonstrated that plaintiff was properly
classified as exempt under the FLSA's overtime-pay requirements.
Tawil v. Cook Children's Hosp. Sys., 582
S.W.3d 669 (Tex. App.—Fort Worth 2019)
Workers’ Compensation Retaliation- Prima Facie Evidence of
Retaliatory Intent—Temporal Proximity of Protected Conduct and Adverse: The
Texas Supreme Court has not stated a rule for determining whether a workers’
compensation retaliation plaintiff has presented enough circumstantial evidence
to shift a burden to the employer to articulate a non-retaliatory action. See Continental
Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444
(Tex. 1996) (describing types of circumstantial evidence, but not stating the
requirements for a prima facie case). Held: In this case, the Fort Worth court of appeals
offered the following rule: a plaintiff initially bears a “slight burden” to
establish a prima facie case. The plaintiff fulfills that burden by proving he
or she engaged in protected conduct “followed shortly” by an adverse employment action.
At this stage of analysis, the “proximity” in time between
the protected conduct and the alleged retaliatory act need not be particularly
close. In the Fort Worth court’s view, “ the temporal proximity needed to
establish the employee’s prima facie case does not need to meet the causal link
standard necessary [in the later stage of analysis] to establish that the
reason for termination offered by an employer is a pretext.” If the plaintiff
satisfies this “slight burden,” the employer must then present a
non-retaliatory reason for its action. The burden then returns to the plaintiff
to show that the employer’s reason is a pretext. To rebut the employer’s
reason, the employee “need not produce evidence on all the Continental
Coffee factors but must produce evidence to sustain the majority of
them.” Applying these rules the court found that the plaintiff had established
a prima facie case, but the plaintiff’s evidence was not sufficient to create
an issue of fact with respect to the employer’s reasons for discharge.
APC Home Health Services, Inc. v. Martinez, 2019 W.L. 6768319; Lexis 10803 (Tex. App.—El Paso Dec. 12, 2019)
Arbitration- Proof of Assent-Misleading Presentation of
Agreement-Unconscionability of Shortened Time Limit or Limits on
Discovery-Requirements for Arbitration of Personal Injury: The court held (1) an employee’s
lack of memory of signing an arbitration agreement was not sufficient to create
an issue of fact whether the signature on the document was the employee’s; (2)
the Texas statute requiring the signature of the employee’s attorney for
arbitration of a personal injury claim, Tex. Civ. Prac.
& Rem. Code § 171.002, was preempted by the Federal Arbitration Act;
(3) the parties’ contractual recitation that the their transaction involved
interstate commerce sufficed to prove that the FAA applied in the absence of
evidence that the transaction did not involve interstate commerce; (4) the
employer’s statement that papers it presented at hiring, including the
arbitration agreement, were “routine paperwork or documents” she needed to sign
to be able to work, was not a misleading and was not grounds for voiding the
agreement on grounds of procedural unconscionability; (5) a contractual
deadline shorter than the statute of limitations for the tort the plaintiff
asserted might be substantively unconscionable, depending on the circumstances,
and this issue was to be decided not the arbitrator but by the court, requiring
remand to the district court on this issue; (6) the agreement’s limit on
discovery was not substantively unconscionable in the absence of any showing by
the employee that she required more discovery.
Fratus v. City of Beaumont, 2019 Tex. App. W.L. 5076241; LEXIS 9013 (Tex. App.—Beaumont 2019)
Discrimination- Free Speech- Sovereign Immunity-Texas
Constitution: A
fire chief's action against a city alleging discrimination and retaliation
based on his speech and his status as a Hispanic was barred by sovereign
immunity. His claim for declaratory judgment was improper because it was based
on harms that had already occurred and for which the city retained immunity.
Because the chief asserted no claim against a city official, he had not pleaded
claims for equitable relief sufficient to defeat immunity. The chief's
criticism of his supervisor to his coworkers was not made outside the department
and was not a matter of public concern; therefore the speech was not protected
under Tex. Const. art. I, § 8. Even assuming he engaged in a protected
activity, he failed to plead an adverse employment action that would support a
Texas Commission on Human Rights Act claim; although he was terminated, he had
been reinstated.
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