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Vance v. Ball State University, U.S. Supreme Court, No. 11-556, Decided 6/24/13
Title VII- Definition of Supervisor– Supreme Court ruled that, under the federal Title VII discrimination statute, an employer can be held vicariously liable for an employee’s unlawful harassment only where that particular employee has been empowered with the authority “to take tangible employment actions against the victim.” The term “supervisor” is not defined in Title VII. Instead, it was adopted by the Supreme Court as a way to identify those individuals whose actions could give rise to vicarious employer liability in the two earlier decisions of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). As established in Ellerth and Faragher, the standard to determine the employer’s liability is different based on whether or not the alleged harasser held a “supervisor” position. First, where the alleged harasser is only the individual’s co-worker (and not a supervisor), the employer is liable only if it was negligent in failing to prevent the harassment from taking place. Conversely, where the alleged harasser is the individual’s supervisor, and the harassment results in an adverse tangible employment action, the employer will be strictly liable. However, if no tangible employment action is taken, the employer can avoid liability if it can demonstrate, as an affirmative defense, that (1) it exercised reasonable care to prevent and eliminate harassment, and (2) that the plaintiff unreasonably failed to take advantage of the preventive or remedial opportunities provided by the employer. The Supreme Court rejected guidance issued by the Equal Employment Opportunity Commission – and adopted by several other circuit courts -that links supervisor status, in part, to an employee’s ability to direct another’s daily tasks. Accordingly, according to the Majority decision, “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’”

University of Texas Southwest v. Nassar, U.S. Supreme Court, No. 12-484, Decided 6/24/13
Title VII Retaliation– In this case the Supreme Court held that Title VII retaliation claims must be proved according to traditional principles of “but-for” causation, not the lessened causation test stated in §2000e–2(m). An employee alleging status-based discrimination under §2000e–2 need not show “but-for” causation. The Court stated that it suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives for the decision. However, Title VII’s anti-retaliation provision appears in a different section from its status-based discrimination ban. And, like §623(a)(1), the Age Discrimination in Employment Act (ADEA) provision in Gross, §2000e–3(a) makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. The Court decided that given the lack of any meaningful textual difference between §2000e–3(a) and §623(a)(1), the proper conclusion is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.

EEOC v. Houston Funding II, LLC, 2013 U.S. App. LEXIS 10933; May 30, 2013
Pregnancy Discrimination– Plaintiff EEOC sued defendant employers alleging a former employee was unlawfully discharged because she was lactating and wanted to express milk at work. The U.S. District Court for the Southern District of Texas granted summary judgment to the employers, finding that, as a matter of law, discharging a female employee because she was lactating or expressing milk was not sex discrimination. The EEOC appealed to the 5th Circuit. The employee had regularly kept in touch while she was absent on maternity. When she called to say she had been released to return to work, and again mentioned she was lactating and asked if she could use a back room to pump milk, there was a long pause after which she was told her job had been filled. A later termination letter stated she was discharged due to job abandonment, effective 3 days before the phone call. The EEOC’s argument that the employee was discharged because she was lactating or expressing milk stated a cognizable sex discrimination claim under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, § 2000e(k). Lactation, the physiological process of secreting milk from mammary glands and directly caused by hormonal changes associated with pregnancy and childbirth, was a related medical condition of pregnancy for purposes of § 2000e(k). It is a physiological result of being pregnant and bearing a child. The EEOC had also proffered evidence showing that the stated reason for the discharge, job abandonment, was pretextual. There was thus triable evidence from which a factfinder could find a violation of Title VII.

El Paso County Juvenile Board v. Aguilar, 387 S.W.3d 795 (Tex.App.-El Paso 2012)
Immunity-Worker’s Comp Retaliation– Former employee of county juvenile board brought suit alleging termination for filing a worker’s compensation claim in violation of Sec. 451 Texas Labor Code. Board filed a plea to the jurisdiction alleging governmental immunity in the wake of the Texas Supreme Court’s decision in Travis Central Appraisal District v. Norman, 342 S.W.3d 54 (Tex.2011). Sovereign immunity protects the State, its agencies, and its officials fro lawsuits for damages. A political subdivision enjoys governmental immunity from suit to the extent it has not been abrogated by the Legislature. A cause of action under Section 451 Texas Labor Code cannot proceed against a governmental entity absent Legislative consent. The Political Subdivisions Law (PSL) did not waive immunity for political subdivisions according to the Texas Supreme Court in Norman. A county juvenile board is a political subdivision of the State according to the PSL. Therefore, the employee’s suit was dismissed for lack of jurisdiction.

El Paso County v. Kelley, 390 S.W.3d 426 (Tex.App.- El Paso 2012)
Exhaustion of remedies- Texas Commission on Human Rights Act– Former county employee filed a complaint with the Texas Workforce Commission-Civil Rights Division (Commission) alleging he was terminated in retaliation for reporting illegal discrimination. The complaint was filed within 180 days of the retaliation; however, the Commission dismissed his claim prior to the 180 day period from the date he filed the complaint. The employee did not request a right to sue and actually filed suit prior to the running of the 180 day period. The county filed a plea to the jurisdiction claiming that the suit was jurisdictionally barred because the employee failed to obtain a right to sue and filed a suit prior to the exhaustion of the 180 day period. The trial court denied the plea and the county appealed. The court of appeals held that the exhaustion of the 180 day period after filing the complaint, nor obtaining a right to sue, were jurisdictional. The court stated that the county could have filed a plea in abatement to abate the suit until the running of the 180 days but since they failed to do so, the time had expired and the suit was not barred jurisdictionally by either the 180 day limit or the failure to secure a right to sue letter.

Armendariz v. Redcats USA, L.P., 390 S.W.3d 463 (Tex.App.-El Paso 2012)
Worker’s Comp Retaliation– Employee brought suit for wrongful discharge against her former employer. The trial court granted the employer’s motion for summary judgment. The employee appealed. The employee was injured on the job and filed a worker’s compensation claim. The employee had a poor attendance record and the employer used a point system for attendance. Prior to the absence that the employer claims was the reason for termination, the employee had been on final notice for prior attendance issues. The court reviewed the standards for establishing a causal link between the claim and the termination. When circumstantial evidence is used there are five factors the court generally uses: (1) knowledge of the claim by those making the decision; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure of the employer to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. While an employee is not required to produce evidence on all five of the factors, the courts generally require an employee to establish at least a majority of them. The court examined the evidence related to the five factors and ruled that the employee fail to establish a majority of them.

Lotito v. Knife River Corporation-South, 391 S.W.3d 226 (Tex.App.- Waco 2012)
Promissory Estoppel- Employee sued his former employer alleging promissory estoppel as an independent cause of action that the employer promised to employ him in Texas for four years and then relocate him to California and employee him for an additional four years. The trial court granted a summary judgment in favor of the employer. The court of appeals held that despite having held that promissory estoppel was a viable cause of action in a bid construction case, it was not an available offensive cause of action in an employment case. The court stated that it has held that in the context of an employment case, promissory estoppel is a “shield, not a sword”. Judge Davis concurred with the result but disagreed on the holding that promissory estoppel could never be used a an offensive cause of action in an employment case citing other cases. Judge Davis stated that where there is no actual contract, promissory estoppel may be used to supply the injured party with a remedy which will enable the party to be compensated for his forseeable, definite and substantial reliance. However, in this case, the promise of eight years of employment would have been prevented from enforcement by the statute of frauds and therefore, the employee’s reliance was not reasonable and justified.

Echostar Satellite LLC v. Aguilar, 394 S.W3d 276 (Tex.App.-El Paso 2012)
Worker’s Comp Retaliation– Employee brought action against employer alleging that he had been discharged for filing a worker’s compensation claim. The case was tried to a jury and the employer appealed an adverse verdict. The court of appeals cited the five factors of circumstantial evidence quoted above in the Armendariz case. However, the court included two additional factors- temporal proximity of the claim to the date of termination and providing incentives to refrain from reporting injuries, as being further proof of a causal link. The employer alleged that it had a uniformly enforced absence policy and that this was the reason for discharge. The Texas Supreme Court has held that a uniformly enforced absence control policy is a defense to a wrongful discharge case. The evidence showed that when the employee’s leave was over, he did not show up for three consecutive days and did not call. The company had a policy that anyone having three no-call, no-shows was to be automatically terminated. However, the company failed to terminate the employee for three weeks after the three absences, with no explanation for why they did not terminate him for that length of time. The court held that the unexplained failure to enforce the policy in this manner justified the jury’s finding.