Green v. Dallas County Schools, 2017 Tex. LEXIS 445 (60 Tex. Sup. J. 945) (Tex. 2017)

Disability Discrimination

In this disability-discrimination case an employee (Green) of the school (DCS) suffered from heart failure and as a result of the drugs had urinary incontinence. Green was unable to control his bladder during a school bus run resulting in him wetting his pants. The school terminated him allegedly based on his urinary incontinence and Green sued. The trial court entered judgment on the jury’s verdict in favor of Green. The court of appeals reversed, holding Green offered no evidence he was terminated “because of” his congestive heart failure. The court of appeals concluded that Green’s heart condition was his only possible disability, and then required Green to prove that the heart condition caused the urinary incontinence for which DCS fired him. Because, in the court of appeals’ view, Green’s urinary incontinence was not itself a disability, Green was required to prove his heart condition caused his incontinence, but he did not have to prove what caused his heart condition. DCS argued that Green cannot show DCS terminated him “because of” his incontinence because he provided no evidence that any DCS “decisionmaker” knew he suffered from that condition. DCS acknowledged Green’s testimony that at least three DCS bus drivers knew of his incontinence, but claimed their knowledge is irrelevant because they were not the decisionmaker who terminated Green’s employment, and they did not share their knowledge with any decisionmakers. Green, however, testified that Johnson, the relevant decisionmaker for DCS, knew Green had a medical condition that caused involuntary urination and that Green told Johnson he “was taking a fluid pill” that caused him to lose bladder control. Green also told his original supervisor he was taking a diuretic. In any event, the trial court’s charge instructed the jury that, for purposes of establishing that DCS “knew of his disability,” DCS could act through its officers and employees, not just through its decisionmakers. The Supreme Court held that the court’s error was that it failed to recognize that Green’s urinary incontinence was itself a disability, not that it required Green to prove the cause of his disability. The evidence, viewed in light of the jury charge, supported a finding that the employee was terminated because of a different disability: urinary incontinence. The Supreme Court reversed the court of appeals’ judgment and remanded to that court for further proceedings.

Exxon Mobil Corp. v. Rincones, 2017 Tex. LEXIS 479 (Tex. 2017)

The Death of the Compelled Self-Publication Doctrine in Defamation Claims

When an employer received a report that employee failed an employment-related drug test, the employer ceased assigning the employee any work. Employee filed lawsuit against his employer, WHM Custom Services, Inc.; the owner of the refinery, Exxon Mobil; and the drug-testing administrator, DISA, Inc., asserting various claims against each of the three defendants, including defamation by invoking the “self-publication” doctrine. This doctrine had been recognized by several courts of appeal in order to satisfy the publication to a third-party element of a defamation claim. The Texas Supreme Court finally “laid this doctrine to rest” by refusing to recognize it as a valid satisfaction of the third-party publication element. In justifying the death of the doctrine, the Supreme Court left no room for doubt, as to which side of the tension between employee and employer rights, it stands. [“Additionally, we fear that accepting the compelled self-defamation doctrine would unacceptably impinge on the at-will employment doctrine.” “Recognizing compelled self-defamation could also stifle workplace communication by ‘chill[ing] honest evaluation and communication about employee performance, as employers strive to protect themselves from defamation claims by adopting policies of providing only ‘name, rank and serial number’ references.’… And we agree with our sister court in Massachusetts that ‘[t]he expenditure of time, resources, and money required to defend a claim of compelled self-defamation inevitably will induce self-censorship by employers.’… We have declined to recognize a claim against employers for negligent investigation of at-will employees’ alleged misconduct because, [b]y definition, the employment-at-will doctrine does not require an employer to be reasonable, or even careful, in making its termination decisions….By its nature, the claim would require employers to conduct investigations and make accurate findings before taking any action against an employee or risk being sued. We have already declined to recognize that duty.”]

El Paso County, Texas vs. Vasquez, 508 S.W.3d 626 (Tex.App.-El Paso 2016, pet. denied)

Disability Discrimination

Employee of County suffered from heart attack and was off duty. When she returned she was moved to another position. During her illness she also acquired tuberculosis, which the other employees learned about. Some of the employees threatened to leave their jobs if they had to work around her. The employee was eventually terminated. The employee filed a charge with the EEOC complaining of the disability discrimination but it did not mention any complaint of being “regarded as” disabled. The employee sued, after receiving her right to sue, alleging disability discrimination, retaliation and age discrimination. The County objected to her allegation of “regarded as” disability discrimination and the retaliation claim because they were not specifically mentioned in the EEOC charge. The employee claimed that she had filed an amended charge and it related back to the original charge, even though it was filed beyond the jurisdictional time of 300 days. The Court of Appeals held that the retaliation claim did not relate back to the original charge because it did not arise out of the facts stated in the original charge; however, the Court ruled that the “regarded as” claim was included in the original charge because the employee alleged disability discrimination. The definition of disability discrimination in Chapter 21 specifically defines a disability as being regarded as disabled, even if the words “regarded as” are not included in the charge. Likewise, even if a complainant only mentions “regarded as” in the charge, it will include a later actual disability claim.

Tooker v. Alief Indep. Sch. Dist., 2017 Tex. App. LEXIS 22 (Tex.App.-Houston 2017, no history)

Overtime Retaliation

An employee filed suit against her employer, an independent school district, asserting claims based on the employer’s alleged violations of the Texas Commission on Human Rights Act, the Fair Labor Standards Act, the Family and Medical Leave Act, and the Texas Whistleblower Act. The trial court granted the employer’s plea to the jurisdiction and summary judgment motions and dismissed all of the employee’s claims. The Court of Appeals reversed the trial court’s judgment as to a retaliation claim under the Fair Labor Standards Act and affirmed the remainder of the judgment dismissing the other claims. The Court of Appeals held that the employee’s retaliation claim under 29 U.S.C.S. § 215(a)(3) survived because the evidence raised a genuine fact issue as to whether the director’s overtime restriction memo to the employee, after she had filed an overtime suit, constituted an adverse employment action and the action occurred less than a month after the district failed to compensate the employee for all of the overtime she had worked.
Plummer v. University of Houston, (Fifth Circuit, no. 15-20350, June 23, 2017)

Title IX-Student Misconduct

After the University found that two former students violated the University’s sexual misconduct policy, the students filed suit alleging that they were denied constitutional due process and were discriminated against in violation of Title IX, 20 U.S.C. § 1681. The Fifth Circuit affirmed the district court’s grant of summary judgment to the University and the individual defendants, holding that the students did not meet their summary judgment burden to demonstrate a genuine factual dispute that the process surrounding their disciplinary cases was constitutionally defective. The court rejected the students’ allegations of selective enforcement and deliberate indifference. In this case, there was no sound basis for an inference of gender bias and the pleadings did not meet the high standard of misconduct for deliberate indifference.

Credeur vs. State of Louisiana, (Fifth Circuit, no. 16-30658, June 23, 2017)

Disability Discrimination-Reasonable Accommodation of Working from Home

Credeur was employed by the Office of Attorney General for the State of Louisiana (“DOJ”) as a litigation attorney. During the course of her employment, she developed serious health problems due to complications from a kidney transplant. On account of her illness, the DOJ granted her temporary
accommodations to work from home with the goal of eventually reintegrating her into the office. After several months of telecommuting, the DOJ denied Credeur’s continuing request to work from home, but provided an alternative accommodation with certain conditions. Credeur rejected this alternative
accommodation and renewed her request to work from home. The DOJ denied her request. Credeur sued the DOJ for failure to accommodate, harassment, and retaliation in violation of the American with Disabilities Act (“ADA”). Because she was unable to make a prima facie case, the district court granted a motion for summary judgment. On Credeur’s failure to accommodate claim, the district court found that Credeur was not a “qualified individual” within the meaning of the ADA because she could not perform an essential function of her job—regular attendance in the office. Alternatively, the district court held that “no reasonable juror could find that the DOJ failed to reasonably accommodate Credeur’s known limitations.” In looking at the 5th Circuit panel opinion, it is apparent that no matter what the employee argued about the reasonable accommodation of working from home, this panel was having none of it. Although, the panel credited what the employer said about working at the office, as being an essential function of the job; it refused to give any credit to what the employee said about whether working at the office was, in fact, an essential function. The length of time the employee was wanting to work from home, as a reasonable accommodation, seemed to be a “bridge too far” for this panel. Therefore, the district court’s grant of the MSJ was affirmed.

Perry vs. Merit Systems Protection Board, (U.S. Supreme Court, no. 16-399, June 23, 2017)

Federal Merit Systems Protection Board Appeal Procedure

Under the Civil Service Reform Act, the Merit Systems Protection Board (MSPB) has the power to review certain personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions are subject to judicial review exclusively in the Federal Circuit, 5 U.S.C. 7703(b)(1). If the employee invokes only federal anti-discrimination law, the proper forum is federal district court. An employee who complains of a serious adverse employment action and attributes the action, in whole or in part, to bias based on race, gender, age, or disability brings a “mixed case.” When the MSPB dismisses a mixed case on the merits or on procedural grounds, review authority lies in district court, not the Federal Circuit. Perry received notice that he would be terminated from his Census Bureau employment for spotty attendance. Perry agreed to early retirement. The settlement required Perry to dismiss discrimination claims he had filed separately with the EEOC. After retiring, Perry appealed to the MSPB, alleging discrimination based on race, age, and disability, and retaliation for his discrimination complaints. He claimed the settlement had been coerced. Presuming Perry’s retirement to be voluntary, an ALJ dismissed his case for lack of jurisdiction. The MSPB affirmed, stating that Perry could seek review in the Federal Circuit. Perry instead sought review in the D.C. Circuit, which transferred the case to the Federal Circuit. The Supreme Court reversed. The proper review forum when the MSPB dismisses a mixed case on jurisdictional grounds is district court. A non-frivolous claim that an agency action appealable to the MSPB violates an anti-discrimination statute listed in section 7702(a)(1) suffices to establish district court jurisdiction. Had Congress wanted to bifurcate judicial review, sending merits and procedural decisions to district court and jurisdictional dismissals to the Federal Circuit, it could have said so.

Okpere v. Nat’l Oilwell, 2017 Tex. App. LEXIS 2353 (Tex.App.-Houston 2017, no history)

Disability Discrimination-Regard As- Burden of Proof as to Temporary or Minor Conditions

In this appeal a discharged employee challenged the trial court’s dismissal of his disability-discrimination suit against his former employers. The trial court granted the employer’s summary judgment motion, implicitly granting judgment on the ground that the discharged employee based his claim solely on specific evidence that constitutes inadmissible hearsay. The Court of Appeals concluded the trial court correctly found the evidence to be inadmissible hearsay, but the trial court erred to the extent it granted summary judgment on this ground because the employee did not base his disability-discrimination claim solely on this evidence. The Court of Appeals held, regarding the employee’s claim that he had been “regarded as” having a disability, that the employee had the burden of proof in his prima facie case to prove that the perceived impairment was not minor and expected to last, or actually last less than six months, as opposed to it being an affirmative defense to be proved by employer.