Tucker v. Unitech Training Academy, Inc., 2019 U.S. App. LEXIS27030, (5th Cir. Sept. 4, 2019).

Disability Discrimination-Obesity

Obese employee was terminated by employer and sued claiming disability discrimination. The District Court granted summary judgment against the employee holding that employee failed to prove she was disabled in that she did not prove that she was limited in any major life activity.
The 5th Circuit, in an unpublished opinion, agreed with the lower court. Editor’s Note: The interesting thing about the case is that either the employee didn’t allege a “regarded as” claim as part of her disability suit or the 5th Circuit ignored it because it was not discussed. The “regarded as” portion of a disability claim does not require a showing that the employer regarded her as having an impairment that substantially limits a major life activity. The employee only needs to show that the employer “perceived her as having an impairment and that it discriminated against her on that basis.Burton v. Freescale, 798 F.3d. 222,230 (5th Cir. 2015). It appears that this aspect of regarded as should have been explored and analyzed by the Court.

Texas, P.A. v. Mahana, , No. 05-18-01414-CV, 2019 WL 4044086 (Tex. App.—Dall19)as Aug. 27, 20)

Defamation-Texas Citizens Participation Act-Free Speech

This case involves the “Kudzu” of Texas law, the Texas Citizens Participation Act, which, since its passage has threatened to invade every area of Texas law, limited only by the imagination of attorneys and the unwillingness of the Texas Supreme Court to construe it more strictly. However, the Court of Appeals in this case does reign in the Act somewhat. In this case, the text messages sent by the employee’s supervisors to other employees, falsely stating that the employee had been terminated from employment for testing positive in a drug test, were held to not be an exercise of free speech protected by the Texas Citizens Participation Act, where there was no allegation by the employer that the plaintiff had worked under the influence of drugs or endangered patient safety or that the false messages related to any other matter of public concern. Fortunately, the Texas Legislature in 2019 amended the Act to limit some of the unintended consequences of the broad language of the law.

Apache Corp. v. Davis, 2019 Tex. App. LEXIS 2710 (Tex.App.- Houston 2019)

Age and Sex Discrimination-Texas Labor Code Chapter 21

Sufficient evidence supported an employee’s retaliation claim under Tex. Lab. Code Ann. § 21.055 based on evidence that after she filed her complaint, her manager shunned her, stopped giving her any substantive work, and terminated her 7 weeks later. Although she did not check the box for sex discrimination in her charge, her emailed response to the Texas Workforce Commission-Civil Rights Division (TWCCRD) showed that she triggered the investigatory and conciliatory procedures necessary to exhaust her gender discrimination claim. Also, in her complaint to her manager, she referenced both age and sex discrimination, and there was evidence that her complaint was objectively reasonable based on the failure to promote her and other older women paralegals. The Court also held that, even though she did not check the TWCCRD claim form box for “retaliation,” the other allegations of the complaint would alert the TWCCRD that the retaliation claim should grow out of those allegations of discrimination. The Court also held that the employee established “but for” causation on the retaliation issue. The employer’s reasons for termination, that she defied orders to stop working overtime and refused to submit a schedule, changed over time; which can be an indication of a pretextual reason being given by the employer for the termination. Therefore, judgment of the district court based on the jury verdict was upheld as to the retaliation claim.

Point Isabel Indep. Sch. Dist. v. Hernandez, 2019 Tex. App. LEXIS 4855 (Tex.App.-Corpus Christi 2019)

Age Discrimination & Retaliation-Issue Preclusion by Administrative Proceeding

Hernandez, a Texas public school teacher sued a Texas school district for unlawful termination due to age discrimination and retaliation claiming that her teaching contract was not renewed because of the discrimination. After the district court denied a motion for summary judgment by school district, on appeal, the Court of Appeals reversed holding that the district court lacked jurisdiction over her claims under the Texas Commission on Human Rights Act, because the Texas Commissioner on Education’s decision established a legitimate, non-discriminatory reason for the adverse action due to an incident with a student. Under Tex. Educ. Code Ann. § 21.209, the Commissioner had jurisdiction over the issues regarding the nonrenewal of the teacher’s contract and issue preclusion prevented her from re-litigating the nonrenewal of her contract in the district court. A full hearing was held on Hernandez’s appeal of the District’s nonrenewal of her contract. Both parties were represented by counsel and Hernandez chose not to testify at the hearing. Hernandez had an adequate opportunity to fully and fairly litigate the issue of the nonrenewal of her contract, as well as the facts supporting her position. The Commissioner was presented with the issue of whether the nonrenewal of Hernandez’s contract was supported by substantial evidence. The Court said that the decision of the Commissioner, acting in a judicial capacity, based on all of the facts presented by the parties, clearly established legitimate, non-discriminatory reasons for the adverse action. The facts underlying Hernandez’s nonrenewal claim were the same that she based her retaliation and discrimination claims on, and Hernandez did not present any additional facts which occurred after the Commissioner’s decision. Hernandez appealed the decision of the Commissioner, and the Commissioner’s decision was upheld by the trial court. As a result, to the extent that Hernandez attempted to litigate the issue of the nonrenewal of her contract in the district court, she was precluded from doing so because the district court had no jurisdiction to hear the facts in support of that claim.

Ellis v. Dall. Area Rapid Transit, 2019 Tex. App. LEXIS 1995(Tex.App.-Dallas 2019)

Worker’s Compensation Retaliation- Political Subdivision-Retaliation Liability

The Texas Legislature and the Texas Supreme Court have created extreme confusion regarding the immunity of Texas subdivisions, such as cities and counties. It appears that political subdivisions are not liable to their ordinary employees for retaliation under Texas Labor Code § 451 because a worker has filed a worker’s compensation claim; however, first responders working for political subdivisions are able to sue for retaliation. And for another difficult to explain and complicated reason created by the Legislature and the Supreme Court, state employees can sue for sue for retaliation under Texas Labor Code § 451. The above Ellis case highlights this problem and goes into detail as to how it came about, as well as the Texas Legislature’s failure to clarify this issue in 2017 when it amended the law to allow first responders to sue. The Court said, “effective September 1, 2017…chapter 504 was again amended, this time to provide damage limitations on the liability of political subdivisions for workers’ compensation retaliation claims brought by their employees—the very claims that [the Supreme Court] held were no longer actionable as a result of the 2005 amendments. Tex. Lab. Code Ann. § 504.002(a-1). At the same time, chapter 451 of the labor code was amended to expressly allow “first responders” to seek relief under the chapter, and in such cases, ‘[s]overeign or governmental immunity is waived and abolished to the extent of liability created by this chapter.’Tex. Lab. Code Ann. § 451.0025(b).” As the Court further explains, “Employees of state agencies have the full protection of the Anti-Retaliation Act, which is made applicable to them by the State Application Act, Tex. Lab. Code Ann. § 501.002(a)(10). See Fernandez, 28 S.W.3d at 6-8 (sovereign immunity waived); Saito, 372 S.W.3d at 314). This is so because, unlike the Political Subdivisions Law, the State Application Act was not amended to add a provision that preserved sovereign immunity. Saito, 372 S.W.3d at 315. Why state employees are afforded protection by the law and most employees of political subdivisions are not escapes explanation. Similarly, why protection from injurious retaliatory conduct is legislatively important for first responder employees of political subdivisions but not for bus drivers likewise enjoys no explanation.”

El Paso Indep. Sch. Dist. v. Kell, 465 S.W.3d 383 (Tex.App.-El Paso 2015)

State Employee Whistleblower Procedures vs. Ch.21 Texas Education Code Procedures

Even though this is an older case, the law highlighted by the case bears repeating because it is a major trap for the unwary. Before a state employee , including school teachers, claiming whistleblower status can sue their employer in district court for retaliation under the Texas Whistleblower Act, they must first invoke their employer’s “applicable grievance or appeal procedures” within ninety days according to the Whistleblower Act. See Tex.Gov’t Code Ann. § 554.006(a)(West 2012). Failure to timely initiate administrative action acts as a jurisdictional bar to relief and cuts off a grievant’s right to judicial review. Aguilar v. Socorro Indep. Sch. Dist., 296 S.W.3d 785, 790 (Tex. App.–El Paso 2009, no pet.). However for term school teachers, it appears they must invoke the Chapter 21 hearing procedures and it appears to be not only the applicable procedure under the Act, but possibly the only way a term contract teacher may challenge a proposed termination under the Education Code. The Education Code creates a highly formalized, quasi-independent administrative proceeding that takes place under the same conditions as a bench trial for teachers to challenge proposed terminations. Tex.Educ.Code Ann. § 21.256(e). The Texas Rules of Evidence apply, and the hearing examiner may only render a decision based on admissible evidence. Id. at §§ 21.256(d)-(e). The teacher has the right to representation, the right to hear evidence, the right to cross-examine witnesses, and the right to present evidence. Id. at § 21.256(c). The school district must prove its termination allegations by a preponderance of the evidence. Id. at § 21.256(h). The question in the Kell case was whether Kell preserved her right to judicial review and invoked EPISD’s “applicable” grievance procedure when she forewent a statutory Chapter 21 termination hearing prior to termination and instead filed a grievance under EPISD’s local rules nearly two months after her termination was final, but within ninety days of notice. In construing the Education Code and EPISD’s own internal policies, the Court concluded that she did not preserve her right and should have used the Chapter 21 procedures, which require filing within 15 days of the receipt of written notice of termination. Tex. Educ. Code § 21.253. The Court held that the Chapter 21 procedures supersedes the Whistleblower procedure, thereby holding that a teacher must invoke the Chapter 21 procedure. The Court declined to hold that the 15 day deadline supersedes the Whistleblower 90 day deadline and invited the legislature to address this conflict. However, since Kell never invoked the Chapter 21 procedure, she lost her case.

Walden v. Nevada, Docket: 18-15691 (9th Cir. 2019)

Removal from State Court to Federal Court-Waiver of Immunity by State

The Ninth Circuit extended the holding in Embury v. King, 361 F.3d 562 (9th Cir. 2004), and held that a State that removes a case to federal court waives its immunity from suit on all federal-law claims in the case, including those federal-law claims that Congress failed to apply to the states through unequivocal and valid abrogation of their Eleventh Amendment immunity. Plaintiffs, a group of correctional officers, filed suit alleging violations of the Fair Labor Standards Act (FLSA) by Nevada. Nevada then removed the case to federal court, moving for judgment on the pleadings based on state sovereign immunity from suit. Accordingly, the panel affirmed the district court’s holding that Nevada waived its Eleventh Amendment immunity as to plaintiffs’ FLSA claims when it removed this case to federal court.

Garrison v. Dolgencorp, LLC, Docket No. 18-1066 (8th Cir 2019)

Americans With Disabilities Act- Reasonable Accommodation

Plaintiff filed suit against Dollar General after the company denied her request for a leave of absence due to a medical condition, alleging claims under the Americans with Disabilities Act (ADA). The court reversed the district court’s dismissal of plaintiff’s ADA claim and held that a reasonable jury could conclude that Dollar General was aware of her disability; that she requested an accommodation; and that Dollar General, had it engaged in the interactive process, could have reasonably accommodated her. Garrison never used the word accommodation or asked about anything other than leave. But the Court said that its analysis “is not limited to the precise words spoken by the employee at the time of the request,” and an employee need not even suggest what accommodation might be appropriate to have an actionable claim. Kowitz, 839 F.3d at 746, 748. Here, Bell knew that Garrison suffered from various medical conditions, that those conditions had been worsening and had required regular doctor visits, and that she had repeatedly inquired about a leave of absence to deal with them. Under these circumstances, a reasonable jury could conclude that Garrison requested an accommodation, even if she never used those “magic words,” Kowitz, 839 F.3d at 748 (citation omitted), because she made Dollar General “aware of the need for” one, Convergys Customer Mgmt. Grp., 491 F.3d at 795. See Kowitz, 839 F.3d at 748 (explaining that the ADA analysis “accounts for the employer’s knowledge of the disability and the employee’s prior communications about the disability”). The Court reached a similar conclusion about the adequacy of Dollar General’s engagement in what was supposed to be an “interactive process.” Fjellestad, 188 F.3d at 952. Once Garrison made the request, Dollar General had an obligation to “take some initiative” and identify a reasonable accommodation. Id. at 953; see Kowitz, 839 F.3d at 746 (“[O]nce aware of [an employee’s] needs, the employer is responsible for considering how best to accommodate them.”)