General Practice, Solo and Small Firm Section of the State Bar of Texas






Clark v. Champion Nat’l Sec., 947 F.3d 275 (5th Cir. 2020)


Americans with Disabilities Act-Accommodation by Reduction of Discipline - “Qualified

Individual:” The Fifth Circuit affirmed the district court's grant of Champion's motion for summary judgment on workplace-discrimination claims brought by plaintiff, an employee, who alleged that he was fired because of a diabetes-related condition. Champion claimed that plaintiff was sleeping at his desk during work hours, an immediately terminable offense (it is important to note for this opinion that it was an immediately terminable offense). Held: The court held that the district court did not err in finding no direct evidence of discrimination on the basis of disability. The court also agreed with the district court that the evidence suggested that plaintiff could not perform the essential functions of the job with or without an accommodation. The court also held that plaintiff's disability-based claim failed because any harassment plaintiff alleged was not severe or pervasive and did not create an abusive working environment. Furthermore, plaintiff failed to show that the harassment was based on his disability. The court held that the district court did not err in finding no failure to accommodate plaintiff's disability and no failure to engage in an interactive process. Even if plaintiff was a qualified individual, his failure-to-accommodate claim failed because he failed to carry his burden to show that he requested reasonable accommodations. The court further held that plaintiff failed to show a prima facie case of retaliation. Finally, the district court did not err by denying plaintiff's claims for damages.


Escribano v. Travis County, 947 F.3d 265 (5th Cir. 2020)


Fair Labor Standards Act- Highly Compensated Employees - Exemption: The plaintiffs, six Travis County Sheriff's Office detectives, filed suit alleging that they were entitled to overtime pay under the Fair Labor Standards Act (FLSA). The county argued that plaintiffs were exempt as both executive and highly-compensated employees. The district court granted judgment for plaintiffs. Then the district court later ruled as a matter of law that plaintiffs were paid a salary, vacated the jury's finding on the first requirement of the exemptions, and granted plaintiffs' request for a new trial. Plaintiffs sought reconsideration, contending that they had conditionally asked for a new trial on the management issue, an element of the executive exemption and first-responder exception, not on the office-work issue, which is part of the highly-compensated-employee exemption. Plaintiffs then moved for reentry of judgment in their favor. Because plaintiffs did not want a new trial, the district court entered a final judgment. Held:  Rejecting the parties' jurisdictional challenges, the Fifth Circuit affirmed and held that it had appellate jurisdiction. The court also held that plaintiffs' failure to challenge the timeliness of the Rule 50(b) motion in the district court means that they have forfeited that objection, and the district court had jurisdiction to decide the motion for judgment as a matter of law. The court explained that a new trial was needed to answer the additional questions about whether plaintiffs were exempt and, by prevailing on a Rule 50(b) motion, the county did not somehow lose its right to assert its defenses. On the merits, the court held that the district court properly held as a matter of law that the county paid plaintiffs on a salary basis. Although the ruling did not fully resolve whether plaintiffs were entitled to overtime pay, the court stated that years of litigation never answered that ultimate question.


Hobbs v. Petroplex Pipe and Construction, Inc., 946 F.3d 824 (5th Cir. 2020)


Fair Labor Standards Act- Overtime- Employee or Independent Contractor?: The plaintiffs filed suit against their former employer, Petroplex, alleging claims for overtime pay under the Fair Labor Standards Act. Plaintiffs were former pipe welders for Petroplex and they claimed that they worked more than forty hours per week for the company without overtime pay. At issue on appeal was whether plaintiffs were considered employees or independent contractors. Held: The Fifth Circuit affirmed the district court's judgment in favor of plaintiffs, holding that plaintiffs were employees instead of independent contractors. The court held that the district court did not clearly err by determining that the control, investment, opportunity for profit and loss, and permanency Silk factors all weighed in favor of employee status.


Horvath v. City of Leander, 946 F.3d 787 (5th Cir. 2020)


Discrimination- Religious Grounds- First Amendment Claim- Reasonable Accommodation: The plaintiff filed suit against the fire chief and the city after he was terminated from his position as a driver/pump operator at the fire department because he objected to having TDAP vaccinations based on religious grounds. The plaintiff was given a choice between two accommodations: transfer to a code enforcement job that did not require a vaccination, or wear a respirator mask during his shifts, keep a log of his temperature, and submit to additional medical testing. When plaintiff did not accept either accommodation, he was fired by the fire chief for insubordination. Held: The Fifth Circuit affirmed the district court's grant of summary judgment to defendants on all of plaintiff's claims. In regard to plaintiff's claim of retaliation in violation of Title VII and the Texas Commission on Human Rights Act (TCHRA), the court held that the city provided a reasonable accommodation by offering to transfer plaintiff to the code enforcement position in the department. In regard to plaintiff's Title VII and TCHRA retaliation claims, the court held that the city had a legitimate, non-discriminatory reason for plaintiff's termination: plaintiff's defiance of a direct order by failing to select an accommodation to the TDAP vaccine policy. In regard to plaintiff's 42 U.S.C. 1983 claims that defendants violated his First Amendment Free Exercise rights, the court held that plaintiff's right to freely exercise his religious beliefs was not burdened by the respirator requirement.


Isett v. Aetna Life Insurance Co., 947 F.3d 122 (2nd Cir. 2020)


Fair Labor Standards Act- Exemptions: The Second Circuit affirmed the district court's award of summary judgment in favor of Aetna, plaintiff's employer. Held: The court held that, when interpreting the scope of a Fair Labor Standards Act (FLSA) exemption, courts must give the exemption a fair reading and shall not construe it narrowly against the employer seeking to assert the exemption. The court also held that the first prong of the professional exemption's primary duty test requires courts to: (A) identify what qualities or skills are characteristic of the work of the profession at issue; and (B) determine if the employee's primary duty reflects those qualities or skills; central to the profession of registered nursing is the ability to act independently, or under limited supervision, on the basis of collected clinical data; and the district court did not err in concluding that plaintiff's job satisfied the first prong. In this case, plaintiff's primary duty as an appeals nurse consultant—to conduct utilization review and approve insurance coverage for medically necessary services under minimal supervision—reflects the discretion and requires the judgment characteristic of other registered nurses. Therefore, plaintiff's job as an appeals nurse consultant required the use of advanced nursing knowledge. The court also held that, in cases where, as here, the employer requires the possession of an advanced academic degree, the third prong of the primary duty test for the professional exemption of the FLSA requires courts to: (A) identify the job's primary duty which requires the use of advanced knowledge; and (B) determine if that duty is consistent with the employer's minimum academic qualifications. The court held that the district court did not err in concluding that plaintiff's job satisfied the third prong. Accordingly, the undisputed facts demonstrated that plaintiff was properly classified as exempt under the FLSA's overtime-pay requirements.


Tawil v. Cook Children's Hosp. Sys., 582 S.W.3d 669 (Tex. App.—Fort Worth 2019)


Workers’ Compensation Retaliation- Prima Facie Evidence of Retaliatory Intent—Temporal Proximity of Protected Conduct and Adverse: The Texas Supreme Court has not stated a rule for determining whether a workers’ compensation retaliation plaintiff has presented enough circumstantial evidence to shift a burden to the employer to articulate a non-retaliatory action. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) (describing types of circumstantial evidence, but not stating the requirements for a prima facie case). Held:  In this case, the Fort Worth court of appeals offered the following rule: a plaintiff initially bears a “slight burden” to establish a prima facie case. The plaintiff fulfills that burden by proving he or she engaged in protected conduct “followed shortly” by an adverse  employment action.


At this stage of analysis, the “proximity” in time between the protected conduct and the alleged retaliatory act need not be particularly close. In the Fort Worth court’s view, “ the temporal proximity needed to establish the employee’s prima facie case does not need to meet the causal link standard necessary [in the later stage of analysis] to establish that the reason for termination offered by an employer is a pretext.” If the plaintiff satisfies this “slight burden,” the employer must then present a non-retaliatory reason for its action. The burden then returns to the plaintiff to show that the employer’s reason is a pretext. To rebut the employer’s reason, the employee “need not produce evidence on all the Continental Coffee factors but must produce evidence to sustain the majority of them.” Applying these rules the court found that the plaintiff had established a prima facie case, but the plaintiff’s evidence was not sufficient to create an issue of fact with respect to the employer’s reasons for discharge.


APC Home Health Services, Inc. v. Martinez, 2019 W.L. 6768319; Lexis 10803 (Tex. App.—El Paso Dec. 12, 2019)


Arbitration- Proof of Assent-Misleading Presentation of Agreement-Unconscionability of Shortened Time Limit or Limits on Discovery-Requirements for Arbitration of Personal Injury: The court held (1) an employee’s lack of memory of signing an arbitration agreement was not sufficient to create an issue of fact whether the signature on the document was the employee’s; (2) the Texas statute requiring the signature of the employee’s attorney for arbitration of a personal injury claim, Tex. Civ. Prac. & Rem. Code § 171.002, was preempted by the Federal Arbitration Act; (3) the parties’ contractual recitation that the their transaction involved interstate commerce sufficed to prove that the FAA applied in the absence of evidence that the transaction did not involve interstate commerce; (4) the employer’s statement that papers it presented at hiring, including the arbitration agreement, were “routine paperwork or documents” she needed to sign to be able to work, was not a misleading and was not grounds for voiding the agreement on grounds of procedural unconscionability; (5) a contractual deadline shorter than the statute of limitations for the tort the plaintiff asserted might be substantively unconscionable, depending on the circumstances, and this issue was to be decided not the arbitrator but by the court, requiring remand to the district court on this issue; (6) the agreement’s limit on discovery was not substantively unconscionable in the absence of any showing by the employee that she required more discovery.


Fratus v. City of Beaumont, 2019 Tex. App. W.L. 5076241; LEXIS 9013 (Tex. App.—Beaumont 2019)


Discrimination- Free Speech- Sovereign Immunity-Texas Constitution: A fire chief's action against a city alleging discrimination and retaliation based on his speech and his status as a Hispanic was barred by sovereign immunity. His claim for declaratory judgment was improper because it was based on harms that had already occurred and for which the city retained immunity. Because the chief asserted no claim against a city official, he had not pleaded claims for equitable relief sufficient to defeat immunity. The chief's criticism of his supervisor to his coworkers was not made outside the department and was not a matter of public concern; therefore the speech was not protected under Tex. Const. art. I, § 8. Even assuming he engaged in a protected activity, he failed to plead an adverse employment action that would support a Texas Commission on Human Rights Act claim; although he was terminated, he had been reinstated.





Website designed and developed by Daniel Hofheinz