Important Case- Disability Discrimination- Prima Facie Proof Method
In an EEOC enforcement action, an employee, a nurse for a home-health company, who was fired shortly after she had an epileptic seizure, failed to establish that she was terminated from her position as a field nurse due to her disability, in violation of the ADA, because she was unable to drive after her seizure, and driving was an essential function of this position since more than 50% of the daily assignments of a field nurse required travel. However, disputed issues of material fact remained regarding whether the employee was promoted to a team leader, which did not require as much driving as a field nurse, and if so, whether the employer could reasonably have accommodated her disability, whether the employer engaged in the required interactive process to seek accommodation, and whether the employee was terminated on account of her disability. Also, the Court finally resolved a split of authority in the 5th circuit regarding the proper method of proof of a prima facie case in a disability claim. The 5th Circuit panels have used three different methods of prima facie proof. The Court rejected the more difficult methods for plaintiffs (proving replacement by a non-disabled person or treatment less favorably by a non-disabled person) and adopted the least difficult method for the plaintiff by following the Zenor v. El Paso Healthcare Systems, Ltd., 176 F.3d 847 (5th Cir. 1999). The Zenor prima facie proof method is that a plaintiff must prove: (1) that he has a disability; (2) that he was qualified for the job; and (3) he was subject to an adverse employment decision on account of his disability. The Zenor method of proof came from the earliest case on this issue, which in the Fifth Circuit becomes the controlling authority, absent a ruling from the Supreme Court or an en banc court. The Court also gave additional help to plaintiffs, faced with a motion for summary judgment, by reaffirming the rule that, even though a plaintiff fails to show that the reasons offered by the defendant were pretextual, if the plaintiff can present proof creating a fact issue by showing that an employment decision was based on a mixture of legitimate and illegitimate motives and that the illegitimate motive was a motivating factor in the decision, the case may survive summary judgment citing Machinchick v. PB Power, Inc., 398 F3d 355 (5th Cir. 2005). In this case, the Court held that because the evidence presented by plaintiff of pretext was also “reasonably consistent” with pretext, the district court was required “to draw all reasonable inferences in favor of” the plaintiff, therefore the district court erred in failing to do so. (a requirement that many courts fail to honor in the present rush to grant summary judgment in the federal system). This case is an extremely important case for employees and is a ray of hope in the Fifth Circuit. Affirmed in part and reversed in part.
A trial court had subject matter jurisdiction to hear an employee’s sexual harassment claim against her former state agency employer where the employee had alleged sufficient facts to raise a fact issue regarding whether the complained-of conduct altered the terms, conditions, or privileges of her employment and created an abusive working environment because the evidence was undisputed she personally perceived her work environment to be hostile due to her supervisor’s conduct, and a reasonable person could have found the work environment to be hostile or abusive. The employee failed to meet her burden to allege facts that affirmatively demonstrated the trial court’s jurisdiction to hear her race and national origin discrimination claim because she failed to show she was treated less favorably than other similarly situated employees outside of the protected classes. Order affirmed in part and reversed in part.
Smith v. Carter Blood Care, 2014 Tex. App. LEXIS 3408, 1 (Tex. App. Fort Worth Mar. 27, 2014)
Sexual Harassment-Remedial Action Defense
The trial court did not err in finding that the alleged sexual harasser was not the employee’s supervisor because the harasser did not have the authority to hire, fire, or promote anyone. Although there was some evidence of sexually harassing behavior and some evidence that the employee told a number of co-workers about the behavior, it could not be concluded that her evidence raised a genuine issue of material fact that the harassing conduct was so pervasive that the employer knew or should have known about the harassment before she reported it. The employee’s summary judgment evidence failed to raise a genuine issue of material fact that the employer failed to take prompt remedial action once it learned of the alleged harassment; the employer immediately began an investigation into the employee’s allegations. Judgment affirmed.
Exhaustion of Administrative Remedies- Pattern or Practice Discrimination
An employee presented sufficient evidence of discrimination based on race or national origin to meet his summary judgment burden under Tex. Labor Code Ann. §§ 21.051(1), 21.125(a) because he showed disparate treatment with respect to a return to work policy and procedure, while the employer produced no evidence of a legitimate, non-discriminatory reason. A retaliation claim under Tex. Labor Code Ann. § 21.055 also survived summary judgment because the employee’s testimony and circumstantial evidence raised fact issues about whether the employee had opposed an unlawful employment practice by complaining, prior to his termination, that he had been treated less favorably; The employee exhausted administrative remedies as to a pattern or practice discrimination claim because the charge he filed sufficiently alleged facts suggesting a discriminatory pattern or practice. Affirmed in part, reversed in part, and remanded.
Summary judgment was erroneously granted in an age discrimination suit under the Texas Commission on Human Rights Act, Tex. Lab. Code Ann. § 21.051 (2006), because there was a disputed issue of material fact as to why the employee was terminated during a workforce reduction from conflicting evidence as to whether certain projects that the employee had been working on had been placed on hold or were ongoing at the time of his termination. Summary judgment was erroneously granted on the employee’s retaliation claim because numerous times during his tenure, and three days prior to his termination, the employee complained that certain coworkers were not recording their time accurately and that they were not complying with company policies, which raised a fact issue as to whether retaliation for such protected activity was a factor in the termination decision. Trial court’s judgment reversed and case remanded.
Age Discrimination- Disparate Impact- Disparate Treatment- Exhaustion of Remedies
The employees’ letter complaints sufficiently alleged a disparate-impact claim such that they exhausted their administrative remedies for those claims; thus, the trial court had jurisdiction to hear the case and did not err in denying the employer’s plea to the jurisdiction on that basis. There was sufficient statistical evidence from which a jury could reasonably conclude that a consolidation agreement caused the disparate impact alleged; given that the jury returned a verdict in favor of the employees, it could be assumed that the jury credited their expert testimony over the testimony of the employer’s expert and thus agreed with the employees’ expert that stripping public safety officers of their years of service effectively resulted in younger officers receiving raises that were three times higher than those of older officers. Affirmed on rehearing.
Sovereign Immunity Not Waived-Retaliation Claim-Effect of Filing a Collateral Disability Claim
A former state employee who brought claims of disability discrimination under Tex. Lab. Code Ann. § 21.051 and failure to accommodate disability under Tex. Lab. Code Ann. § 21.128 did not establish a prima facie case because she did not show that she was a qualified individual with a disability under Tex. Lab. Code Ann. § 21.105, in light of evidence that around the time when she alleged she could have returned to work, she attested to her inability to perform her job or comparable work in her collateral application for disability-retirement benefits. A retaliation claim under Tex. Lab. Code Ann. § 21.055 lacked proof of causation because a supervisor’s decision authorizing less than a requested amount of sick leave did not contravene the employer’s policies and there was no showing of very close temporal proximity. Absent a prima facie case, sovereign immunity was not waived. Reversed and Rendered.