Tex. Dep’t of Family & Protective Servs. v. Parra, 2016 Tex. App. LEXIS 11743 (Tex.App.- El Paso 2016).

Worker’s Compensation Retaliation

Parra worked for a state agency and was injured on the job in a car wreck. She was subsequently terminated and she sued for worker’s compensation retaliation under sec. 451 Texas Labor Code. The case resulted in a jury trial and a verdict for Parra. The agency appealed to the El Paso Court of Appeals. First, the court had to deal with the continual effort of state agencies to claim that the Texas Legislature did not effectively waive sovereign/governmental immunity to suits under sec. 451. The court examined the history of the law, the Supreme Court decisions, the El Paso court’s prior opinion and finally held that the Legislature had effectively waived sovereign/governmental immunity as to the state and state agencies, even though the Texas Supreme Court had earlier ruled in Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57 (Tex. 2011) that the Legislature has not effectively waived sovereign/governmental immunity as to political subdivisions of the state. The court of appeals then found that there was sufficient evidence of retaliation to support the jury verdict. The court also upheld the damages awarded by the jury ruling that the only limitations on the verdict involving the state would be the amount limited by the Texas Tort Claims Act.

Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421 (Tex.App.- Houston 2016)

Disability Discrimination-Failure to Accommodate

The trial court properly granted summary judgment on a race discrimination claim under the Tex. Lab. Code Ann. § 21.051 because there was no evidence that the employer treated an African-American psychologist less favorably than similarly situated comparators or that he was singled out based on his race. There was very little evidence to show that the psychologist was terminated because of his disabilities. The psychologist conceded that some of his reports he submitted were late, incomplete, or incorrect. The court of appeals held that the trial court erred in granting summary judgment to the employer on the reasonable accommodation claim, as there was evidence that it did not continue to accommodate him despite several requests. Here, although DADS initially accommodated Donaldson by assigning someone to assist him, there is evidence, Donaldson’s testimony, that, if believed, shows that it did not continue to accommodate him once the helper was promoted despite several requests. Viewing the evidence in the light most favorable to Donaldson, the court concluded that he presented more than a scintilla of evidence raising a fact issue on this element of his reasonable accommodation claim. The evidence was insufficient to demonstrate a prima facie retaliation case.

Reid v. SSB Holdings, Inc., 2016 Tex. App. LEXIS 11484 (Tex.App.-Texarkana 2016)

Sexual Harassment-Exhaustion of Remedies-Jurisdiction

Employee filed complaint of sexual harassment under Texas Labor Code sec. 21 with the Texas Workforce Commission-Civil Rights Division (TWCCRD) but the complaint was never verified under oath as required by the code section. The statutory language under Tex. Lab. Code Ann. § 21.201(b), that a complaint must be made under oath, makes that provision mandatory under Tex. Gov’t Code Ann. § 311.016(3). The employer filed a plea to the jurisdiction claiming that the failure to verify the complaint prevented the court from having jurisdiction under Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991). The district court granted the plea to the jurisdiction and dismissed the case. The employee appealed. The court of appeals held that there is no language that indicates that the verification requirement is jurisdictional or provides that failure to verify the complaint should result in dismissal. Since the language of the statute does not clearly express a legislative intent that the failure to verify a complaint filed with the TWCCRD deprives the trial court of subject-matter jurisdiction, the purpose of the statute is not impaired by interpreting the verification requirement as non-jurisdictional, appellant’s failure to verify her complaint filed with the Commission did not deprive the trial court of subject-matter jurisdiction, and the trial court erred in granting appellee’s plea to the jurisdiction. The court examined the Texas Supreme Court cases and interpreted the recent federal and state cases to have ruled that Schroeder has been impliedly overruled to the extent of holding that the verifying of a complaint with the EEOC to be a jurisdictional requirement, even if it is mandatory. The difference is that if it is mandatory the requirement may be waived by Defendant, whereas a jurisdictional requirement cannot be waived.

Transam Trucking, Inc. v. Administrative Review Board, Dept. of Labor; Docket 15904, (10th Circuit Court of Appeals opn. date August 8, 2016)

Surface Transportation Assistance Act (“STAA”)

A truck driver (“Maddin”) was employed by TransAm Trucking (“TransAm”). Maddin was transporting cargo when the brakes on his trailer froze because of subzero temperatures. After reporting the problem to TransAm and waiting several hours for a repair truck to arrive, Maddin unhitched his truck from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer. Both an administrative law judge (“ALJ”) and the Department of Labor (“DOL”) Administrative Review Board (“ARB”), concluded Maddin was terminated in violation of the whistleblower provisions of the federal Surface Transportation Assistance Act (“STAA”). He was ordered reinstated with backpay. TransAm filed a Petition for Review with the 10th circuit court of the ARB’s Final Decision and Order. The court reviewed the final order of the ARB under the standards set out in the federal Administrative Procedure Act (“APA”). 49 U.S.C. § 31105(d); 5 U.S.C. § 706. Under those standards, the court affirmed the ARB’s decision because it was supported by substantial evidence, which is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” The complaint provision of the STAA prohibits an employer from discharging an employee because the employee “has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order.” 49 U.S.C. § 31105(a) (1)(A)(I). The ARB upheld the ALJ’s finding that Maddin engaged in protected activity under this provision when he notified TransAm about the frozen brakes, concluding the finding was supported by substantial evidence. 49 U.S.C. § 31105(a)(1)(B)(ii) makes it unlawful for an employer to discharge an employee who “refuses to operate a vehicle because . . . the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.” An employee seeking protection under this provision must also show that he “sought from the employer, and [was] unable to obtain, correction of the hazardous safety or security condition.” Because the refusal-to-operate provision can be interpreted to cover multiple uses of a vehicle while it is in the control of an employee, the ARB did not err in concluding that Maddin’s act of unhitching the trailer and driving off in the truck was a refusal to operate the tractor-trailer for purposes of the Act.

Kobold v. Good Samaritan Reg’l Med. Ctr., No. 13-35528 (9th Cir. 2016)

Labor Law-Preemption of State Law

In this case there was a collective bargaining agreement (“CBA”) between the union and the employer setting out a grievance and arbitration procedure to govern disputes arising under the agreement. A grievance was filed but did not provide full relief, prompting the employee to turn to the courts. The employee initially filed his cases in state court, but the case was removed to federal court on the basis of preemption under § 301 of the federal Labor Management Relations Act. The district court denied a motion to remand and held the state law claims preempted. A state law claim is preempted if it either involves a right conferred upon an employee solely by virtue of a CBA or is substantially dependent on analysis of a CBA. Under state law the employee contended that he was entitled to premium pay for certain shifts. The court held that issue was substantially dependent on an analysis of the terms of a CBA in order to determine which shifts qualified for premium pay. Accordingly, the state law claim was preempted by § 301. However, this resulted in a “gotcha”- the plaintiff could not pursue his claims under § 301 because he did not exhaust his remedies under the CBA and did not allege that his union breached its duty of fair representation.

Quicken Loans, Inc. v. NLRB, (Court of Appeals District of Columbia, Docket 14-1231; opn. date July 29, 2016)

NLRB- Employee Right to Organize

Quicken forbids its mortgage bankers to use or disclose a broad range of personnel information without Quicken’s prior written consent or to criticize publicly the company and its management. The National Labor Relations Board(NLRB) determined that such rules violate the National Labor Relations Act, 29 U.S.C. 151 et seq., because they unreasonably burden the employees’ ability to discuss legitimate employment matters, to protest employer practices, and to organize. The court denied Quicken’s petition for review and granted the Board’s cross-application for enforcement, concluding that there was nothing arbitrary or capricious about that decision and no abuse of discretion in the Board’s hearing process. In this case, the Board appropriately determined that employees would reasonably construe the sweeping prohibitions in Quicken’s Confidentiality and Non-Disparagement Rules as interfering with their rights to discuss and object to employment terms and conditions, and to coordinate efforts and organize to promote employee interests.