The University of Texas at El Paso v. Alfredo Herrera, No. 08-2049 (Tex. 2010)

 Important Decision- FMLA- No More FMLA Protection for State Employees for Personal Medical Leave.  Suit by an employee of UTEP, a State employee, under the federal Family & Medical Leave Act (FMLA), a federal law granting covered employees up to 12 weeks of unpaid leave to care for a serious medical condition of themselves or their immediate family.  The employee claimed that UTEP fired him for taking personal medical leave under the self-care provision of the FMLA.  UTEP filed a plea to the jurisdiction on the FMLA claim contending it was barred by sovereign immunity.  The FMLA has two main provisions which are (1) the self-care provision which allows the employee to take off up to 12 weeks for their own care and (2) the family-care provision which allows an employee to take off to care for their immediate family (including parents who are dependent upon them).  The trial court denied the plea and the court of appeals affirmed.  States are protected from private suits in their own courts and in the federal courts by the Eleventh Amendment unless Congress has validly abrogated that right by a statute or the State validly waives it.  Federal legislation can overcome the immunity provided Congress (1) unequivocally expresses its intent to do so, and (2) acts pursuant to a constitutional provision granting Congress the power to abrogate.  The Texas Supreme Court held that Congress unequivocally subjected States to FMLA claims.  However, the Court held that Congress did not have the authority to abrogate the State’s immunity for purposes of the self-care provision.  The United States Supreme Court in Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2203) ruled that the family-care provision was a valid exercise of  Congress’ power based on the right granted by the Equal Protection Clause of the U.S. Constitution because Congress identified a pattern of gender discrimination on the part of the States in that women were more likely to be off to care for family members than men.  Regarding the self-care provision,the Texas Supreme Court ruled that there is no evidence, either in the Congressional findings or elsewhere in the FMLA’s legislative record, that women took more personal medical leave than men.  Therefore, the Court ruled that there is no evidence in the record that Congress intended to remedy unconstitutional gender discrimination through the self-care provisions.  Based on this finding, the Court ruled that the FMLA self-care provision could not be used by State of Texas employees against the State of Texas.  The Court also held that the State of Texas has not validly waived its sovereign immunity to be sued under the FMLA for the self-care provisions.  Therefore, a State employee can be off for 12 week to take care of a family member but not themselves.  (So, the practical effect of this is that while the State may give an employee personal medical leave there is no guarantee that the employee will not be fired or retaliated against for taking the leave. Fortunately, this does not affect the self-care provisions for private employees and private employers.)

 In Re United Services Automobile Association, Relator, 307 S.W.3d 299 (Tex. 2010)

 Jurisdiction- Texas Commission on Human Rights Act- In this case, an employee sued its employer for discrimination in the County Court of Law in Bexar County and received a verdict in excess of the court’s jurisdictional limitation of $100,000.  Ultimately, the Texas Supreme Court reversed the judgment on the jurisdictional issue.  The employee then sued in District Court and the employer filed another plea to the jurisdiction on the issue of the suit in district court being filed after the two year limitation period.  The Court examined the issue of whether the filing periods were a matter of jurisdiction or a bar that only could be raised at the appropriate times and could be waived (a jurisdictional issue can’t be waived and can be later raised on appeal even if not raised during trial).  The Court overruled Schroeder v. Texas Iron Works, 813 S.W.2d 483 (Tex. 1991) to the extent it conflicts with this case on the jurisdictional issue holding that while the two year statute is mandatory it is not jurisdictional (probably the ruling also includes other exhaustion of remedies issues, such as filing the complaint within 180 days, as now not jurisdictional but mandatory, although not expressly stated as overruled by the Court but was the matter considered in Schroeder). The Court also allowed USAA to seek mandamus of the trial court’s failure to grant summary judgment and then ordered the writ of mandamus to grant the motion, if the trial court failed to voluntarily do so.  (This is another enlarging of the hole in the previously impenetrable wall protecting the trial court’s failure to grant a motion for summary judgment as not being subject to a pre-judgment appeal, which means that the Supreme Court is apparently signaling the party not being granted a motion for summary judgment  toAcome on down@ when they don’t get their way@).

 Larsen v. Santa Fe Independent School District, 296 S.W.3d 118 (Tex.App.– Houston 2009, pet. denied)

 Exhaustion of Administrative Remedies- Independent School Districts-  Another court of appeals has come down on the side of an employee claiming retaliation for filing a worker’s compensation claim not having to exhaust his administrative remedies through the school grievance process before the trial court has jurisdiction regarding the suit. The school district filed a plea to the jurisdiction based on the failure of the employee to exhaust his administrative remedies, which was denied.  However, the court did grant a motion for summary judgment against the employee ruling that he could not prove his case.  The court of appeals thoroughly examined the jurisdiction question and ruled that a worker’s compensation retaliation claim under Section 451 of the Texas Labor Code does not involve the school laws of the State; therefore, an employee does not need to first exhaust the school=s grievance proce­dure to exhaust his administrative remedies.  The court of appeals declined to follow two other court of appeals opinions that ruled there is an exhaustion requirement for worker’s compensation retaliation claims.  The Houston court stated that the two opinions that attributed an exhaustion requirement to Van Independent School District, 165 S.W.3d 351 (Tex.2005) and Wilmer-Hutchins ISD v. Sullivan, 51 S.W.3d 293 (Tex. 2001) were in error because the Supreme Court has stated that neither of these cases decided whether exhaustion is required.  Although, it looks good for the proposition that exhaustion of remedies is not required in a worker’s compensation retaliation suit against a school, no one can be sure until the Texas Supreme Court clearly rules on this matter.  For you “belt and suspenders guys”, you may want to go ahead and exhaust your administrative remedies if you can do so without a big waste of time.  Also, this case was decided before the USAA case discussed above was decided, which held that failure to exhaust administrative remedies is not a jurisdictional issue; however, it is possible it could still be a bar if raised by the school (as stated above it is unlikely that it would be a bar but it is still a concern until the Texas Supreme Court rules).

 University of Texas v. Poindexter, 306 S.W.3d 798 (Tex.App.– Austin 2009, no writ)

 Discrimination Charge with EEOC- This case involved a suit by a U.T. Black female professor claiming disparate treatment and disparate impact discrimination claims as well as a retaliation claim.  The defendant challenged in court the professor’s charge before the EEOC as being untimely and insufficient related to the disparate impact claim and the retaliation claim.  The court of appeals ruled that the charge was untimely and that the disparate impact claim and retaliation claims should be dismissed.  The majority opinion used technicalities to deny the professor’s claims despite case law that stresses that claimant’s are usually not represented by attorneys and every reasonable benefit of the doubt should be given the claimant.  The dissent pointed this out and thoroughly challenged the majority opinion’s ruling on these technicalities.  One point that should be noted, which can be a trap for the unwary regarding the drafting of a charge of a disparate impact claim, is that the wording of the charge (according to this case and based on a 5th Circuit opinion) must allege that the employer uses A a facially neutral policy that, in fact, has a disproportionately adverse effect on a protected class.  (Now there’s something that I’m sure every claimant, without a lawyer, and all those EEOC officers know about).  Disparate impact claims involve a claim that an employer’s policies or practices, which are facially neutral in their treatment of protected groups, in fact, have a disproportionately adverse effect on such protected group.