Ihegword v. Harris County Hosp. Dist., 555 Fed. Appx. 372 2014 (5th Cir. 2014)

Fair Labor Standards Act (FSLA)- In this FLSA action, the district court granted summary judgment in favor of the employer because the employee failed to raise a genuine issue of material fact that the employer permitted the employee to work overtime hours for which he was not paid, as an unsubstantiated and speculative estimate of uncompensated overtime did not constitute evidence sufficient to show the amount and extent of that work as a matter of just and reasonable inference.
The FLSA mandates that no employer shall employ any of his employees for a workweek longer than forty hours unless such employee receives compensation for his employment in excess hours over forty at a rate not less than one and one-half times the regular rate at which he is employed. An employer who knows that an employee is working overtime cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation. If the employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer’s failure to pay for the overtime hours is not a violation of 29 U.S.C.S. § 207
An employee bringing an action pursuant to the FLSA, based on unpaid overtime compensation, must first demonstrate that he has performed work for which he alleges he was not compensated. An employee has met his burden of proof if he proves that he has performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee even though the result may only be approximate.

Crane v. Gore Design Completion, LTD, 2014 U.S. Dist. LEXIS 72780 (US. District Ct. Western District, San Antonio Division)

Family & Medical Leave Act (FMLA)- An employee allegedly fired in violation of the FMLA , 29 U.S.C.S. § 2601 et seq., produced sufficient evidence to present a jury question as to whether the 15-day deadline in 29 C.F.R. § 825.305(b) for health care provider certification should be tolled, given her efforts to obtain certification from her provider and her communication with her supervisor regarding her difficulties. Also, her failure to ever submit the FMLA certification was reasonable because she was fired shortly after the 15-day deadline, and the failure to provide it did not cause her leave to be unprotected. Because the employer did not offer a legitimate or nonretaliatory reason for terminating the employee, she was not required to prove pretext regarding Defendants’ stated reason for termination in order to show retaliation. Equitable tolling of the 15-day compliance period for a health care provider’s certification of leave under 29 C.F.R. § 825.305(b) of the FMLA requires that it not be practicable for an employee to return certification within 15 days. Courts focusing on practicability have looked to unique circumstances causing impracticability. Employers must be mindful that employees must rely on the cooperation of their health care providers. Therefore, employees should not be penalized for delays over which they have no control. While the Department of Labor regulations state that if an employee never produces a health care provider’s certification of leave, the leave is not FMLA leave, this regulation does not require that an employee submit certification if that employee is fired before the deadline to submit certification expires. Termination during the mandatory 15-day compliance period could itself be deemed an FMLA violation. By implication, if the deadline is expanded because of equitable tolling, termination within the expanded deadline could likewise be an FMLA violation.

Tex. Dep’t of Family & Protective Servs. v. Howard, 429 S.W.3d 782 (Tex. App. Dallas 2014)

Disability Discrimination– In a disability discrimination claim under Tex. Lab. Code Ann. § 21.051(1), the employer, the Texas Department of Family and Protective Services (the Department) filed a plea to the jurisdiction based on governmental immunity. The trial court denied the plea. In its sole issue before the court of appeals, the Department contended the trial court erred in denying its plea to the jurisdiction because the employee did not create a fact issue on her prima facie disability claim. To establish a prima facie case of disability discrimination under Tex. Lab. Code ch. 21, a plaintiff must show (1) he has a disability, (2) he is qualified for the job, and (3) he suffered an adverse employment decision because of his disability.
“Disability” is broadly construed and includes an impairment that is episodic or in remission that substantially limits a major life activity when active. Tex. Lab. Code Ann § 21.0021(a)(1), (2). In chapter 21, “major life activity” includes, but is not limited to caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The term also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Tex. Lab. Code Ann § 21.002(11-a). An impairment “substantially limits” if the individual is unable to perform a major life activity that the average person in the general population can perform; or significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
The determination of whether an impairment substantially limits a major life activity is made without regard to the ameliorative effects of mitigating measures, including medication. Tex. Lab. Code Ann. § 21.0021(b)(1). Discrimination because of disability or on the basis of disability applies only to discrimination because of or on the basis of a physical or mental condition that does not impair an individual’s ability to reasonably perform a job. Tex. Lab. Code Ann. § 21.105
Tex. Lab. Code Ann § 21.128 provides that it is an unlawful employment practice for an employer to fail to make a reasonable workplace accommodation to a known physical or mental limitation of an otherwise qualified individual with a disability who is an employee , unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the business of the employer. The elements of a claim for an employer’s failure to accommodate a disability overlap the elements of a disability-discrimination claim. To prove failure to accommodate, the plaintiff must show (1) the plaintiff has a disability, (2) the employer had notice of the disability, (3) the plaintiff could perform the essential functions of the position with reasonable accommodations, and (4) the employer refused to make such accommodations.
The Department did not establish as a matter of law that the employee did not have a “disability” because the employee testified that she had muscle spasms that immobilized her, caused her to lie down, and prevented her from lifting anything, raising a genuine issue of material fact that she suffered a physical impairment substantially limiting the major life activities of walking, standing, lifting, and working. For purposes of the employee’s failure-to-accommodate claim under Tex. Lab. Code Ann. § 21.128, the employer conclusively disproved that the employee could perform the essential functions of the position of case aide with an accommodation allowing her to work part time doing office work because driving was 75 percent of her duties. The court of appeals concluded that the Department did not show the trial court erred by denying the Department’s plea to the jurisdiction concerning Howard’s claim for disability discrimination under section 21.051.

Rodriguez v. City of Poteet, 2014 Tex. App. LEXIS 2136 (Tex. App. San Antonio Feb. 26, 2014)

Disparate Treatment Discrimination– Rodriguez claimed that the City’s reason for terminating him was a pretext for retaliation and age discrimination because another employee violated the sexual harassment policy and received less severe disciplinary action. Rodriguez pointed to a November 2009 incident where Ramos verbally counseled Bermudez after one of Bermudez’s subordinates, William Gonzalez, complained about comments Bermudez made at the home of Gonzalez’s mother concerning Gonzalez’s wife. To establish disparate treatment, Rodriguez must demonstrate that he and Bermudez were “similarly situated” employees and that Bermudez was treated more favorably under “nearly identical circumstances.” Wheeler v. BL Dev. Corp., 415 F.3d 399, 406 (5th Cir. 2005) (quoting Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995)). Rodriguez and Bermudez must be similarly situated in “all material respects, including similar standards, supervisors, and conduct.” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005). Rodriguez and Bermudez are not “nearly identical” if they have “different responsibilities, supervisors, capabilities, work rule violations, or disciplinary records . . . .” AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 594 (Tex. 2008). Rodriguez and Bermudez are not “similarly situated” in several respects. First, Bermudez’s supervisor was Rodriguez at the time of Gonzalez’s complaint and Rodriguez’s supervisor was Matthews at the time of his termination. Additionally, different decision-makers were involved in the two incidents. The decision to only verbally counsel Bermudez and not pursue a formal investigation was made by Ramos. The decision to terminate Rodriguez was made by the city council and the decision to pursue a formal investigation was made by Matthews. Grimes v. Wal-Mart Stores Texas, L.L.C., 505 F. App’x 376, 379 (5th Cir. 2013) (plaintiff’s subordinate who was also a manager not a valid comparator); Crosby v. Computer Sci. Corp., 470 F. App’x 307, 309 (5th Cir. 2012) (plaintiff’s supervisor not a valid comparator); Amezquita v. Beneficial Texas, Inc., 264 F. App’x 379, 386 (5th Cir. 2008).
Also, the court stated that Rodriguez and Bermudez were not similarly situated because the disciplinary issues concerning the two employees were not of “comparable seriousness.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 261 (5th Cir. 2009). The complaint against Bermudez involved a single comment made by Bermudez outside of the workplace. Taking Rodriguez’s allegations as true, Rodriguez only offered evidence establishing the comment was vaguely “sexual” in nature. The court stated that the summary judgment evidence established the complaint against Rodriguez involved multiple complainants alleging a pattern of flagrant policy violations which the investigator ultimately determined to constitute a hostile work environment. The investigator recommended Rodriguez’s termination because of the legal liability his actions created for the City. Based on this record, the complaint against Rodriguez concerned conduct that was more serious than the conduct giving rise to the complaint against Bermudez.
Also, the court stated that Bermudez and Rodriguez were not similarly situated because they did not hold comparable positions. Rodriguez held the title of Director of Public Works and reported directly to the city administrator. Bermudez held the title of Wastewater Superintendent and reported directly to Rodriguez. Although, Bermudez supervised employees, his position was not a director-level position that answered directly to the city administrator. For these reasons, the record established that Rodriguez and Bermudez were not similarly situated.

Seabright Ins. Co. v. Lopez, 427 S.W.3d 442 (Tex. App. San Antonio 2014)

Worker’s Compensation Course & Scope of Employment– An employee was killed in a motor vehicle accident while traveling from employer-provided housing to his jobsite in a company truck. The trial court held that the employee suffered an injury occurring in the course and scope of his employment as a matter of law because it both originated in and furthered his employer’s business for purposes of Tex. Lab. Code Ann. § 401.011(12. The insurance company appealed.
The Texas Workers Compensation Act compensates employees who sustain a “compensable injury,” which means an injury that arises out of and in the course and scope of employment for which compensation is payable under subtitle A of the Workers’ Compensation Act. Tex. Lab. Code Ann. § 401.011(10) (2006). For an employee’s injury to be considered in the course and scope of employment, it must (1) relate to or originate in the employer’s business; and (2) occur in the furtherance of the employer’s business. Tex. Lab. Code Ann. § 401.011(12). These elements are applied liberally as the court liberally construes the provisions of the Workers’ Compensation Act to carry out the legislature’s evident purpose of compensating injured workers and their dependents. An injured employee must establish both elements to satisfy the course and scope requirement. An employee’s travel to and from work makes employment possible and thus furthers the employer’s business. However, travel to and from work does not ordinarily satisfy the first element of originating in or relating to the business of the employer as the risks to which employees are exposed while traveling to and from work are shared by society as a whole and do not arise as a result of the work of employers. There is no bright line rule for determining if employee travel originates in the employer’s business as each situation is dependent on the facts. No single fact is dispositive; rather, the court considers the nature of the employee’s job, the circumstances of the travel, and any other relevant facts. In sum, the court must determine whether the relationship between the travel and the employment is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer. The use of a company vehicle originates in the business of the employer only if the employee is required as a condition of employment to use the vehicle.
An employer’s provision of transportation is evidence that an employee’s trip originated in his employer’s business; however, it is insufficient in itself to establish origination. This is because only employer-provided transportation that amounts to a necessity from the employer’s perspective, and not just a gratuitous accommodation to the employee, is sufficient, without more, to prove that as a matter of law travel originated in the employer’s business. The mere gratuitous furnishing of transportation by the employer to the employee as an accommodation, and not as an integral part of the contract of employment, does not bring the employee, when injured in the course of traveling on the streets and highways, within the protection of the Texas Workmen’s Compensation Act.
The court of appeals affirmed the trial court and held that the employee was killed in the motor vehicle accident while traveling from employer-provided housing to his jobsite in a company truck thereby suffering an injury in the course and scope of his employment as a matter of law because it both originated in and furthered his employer’s business for purposes.