San Antonio Employment Law Blog

San Antonio Employment Law Blog

Plaintiffs Settle Despite Hung Jury

Posted in Litigation and trial practice, Uncategorized
Gavel

Discrimination cases are difficult. They are more difficult than many other types of cases, because there is an intrinsic bias against discrimination claimants. As Judge Kopf (of Hercules and the Umpire blog) said, many judges are simply skeptical about discrimination claims. We see some of the challenges in this article about successful discrimination and retaliation claims in Dallas, Texas. Eliot Shavin took one such case with five plaintiffs, four African-American and one Hispanic, against BAE Systems Land and Armaments. See Texas Lawyer report.

At the conclusion of a two week trial, the plaintiffs lost in a hung jury. The polling of the jury indicated the six person jury leaned toward finding for the employer. The employer moved for a judgment as a matter of law and lost. Trial was held in the Northern District of Texas.

After the trial, the plaintiff’s counsel apparently interviewed some of the jurors and learned there was

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Fifth Circuit Clears Up Disability Discrimination Caselaw

Posted in Discrimination, Uncategorized
Hallway

In a recent decision, the Fifth Circuit cleared up some confusion regarding how to show disability discrimination. In EEOC v. LHC Group, Inc., No. 13-60703 (5th Cir. 12/11/2014), the court noted that Fifth Circuit jurisprudence had three different versions of a prima facie case for showing disability discrimination. All three versions required the plaintiff to show that he 1) has a disability, and 2) he is qualified to do the job he has held. LHC Group, slip opinion, p. 6. But, then the precedent diverges. One line of cases would require the plaintiff to show 3) that he was subject to an adverse employment action on account of his disability. This line of cases started with Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847 (5th Cir. 1999), which relied on an earlier decision in Chiari v. City of League City, 920 F.3d 311 (5th Cir. 1991).

The second line of

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Flight Attendants Refuse to Work Due to Perceived Danger

Posted in General

The crew of a  United Airlines Flight arrived at their plane one day and found the words “BYE BYE” scrawled on the tail section. It was July, 2014, just a few months after the Malaysia airline plane disappeared over the Indian ocean. The crew was shaken. They asked for a security sweep. United, however, simply examined the auxiliary power unit or APU and found nothing wrong. They said the graffiti was a joke. The crew asked the flight to be cancelled. The airline refused. The entire crew of thirteen refused to board the plane. The flight was canceled. The crew was fired a few months later for insubordination. Now, the crew has sued the airline seeking back pay and compensatory damages. See CBS news report. They also ask to be reinstated to their old jobs.

The attorney for the flight attendants says it was a “moral mandate” to not board that

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Houston Court Of Appeals Addresses Mixed Motive Cases

Posted in Discrimination

There are so many cases discussing the burden of proof in discrimination cases. It is even more complicated when the plaintiff is alleging mixed motives. Mixed motive cases refers to those cases that have a mix of motives, unlawful and lawful. For example, a plaintiff who alleges she was overlooked for a promotion due to nepotism and illegal ethnic origin discrimination. Nepotism is not a protected classification. Ethnic origin is.

In these mixed motive cases, Federal caselaw finds that the burden of proof shifts to the employer once the employee makes out a prima facie case or  has offered direct evidence. See, e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100 (2003) (affirming the use of circumstantial evidence in mixed motive cases. Mixed motive cases are no different than other discrimination cases in regard to types of proof); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (Even if

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San Diego Jury Awards $185 Million in Punitive Damages

Posted in Discrimination

A San Diego, California jury recently awarded less than one million in compensatory damages and another $185 million in punitive damages to a woman who sued for pregnancy based discrimination. See Workplace Prof blog post. The suit was lodged against AutoZone. Rosario Juarez alleged that she was fired after being told that pregnant women could not get the job done while pregnant. She was a store manager. When she initially became pregnant, she was demoted and was urged to return to counter sales. After waiting the required one year, she asked to return to her old job. Instead, she was fired.

The trial in federal court lasted two weeks. During trial, a former district manager, testified that he was berated by a Vice-President for having so many female managers. “What are we running here, a boutique? Get rid of those women.” See Reuters news report.

The amount of punitive damages will

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Stock Options do not Support a Covenant Not to Compete

Posted in Contracts
Texas Supreme Court

Texas Supreme Court

Just when we thought the Texas Supreme Court cleared things up regarding non-compete agreements, the court issues another decision that muddies the water. In Exxon Mobil Co. v. Drennen, 2014 WL 4782974 (Tex. 2014), the court addressed a non-compete agreement in which the employee would forfeit deferred compensation (stock ownership) for violating the non-compete clause. The court found that a forfeiture clause did not fall within the definition of  of “covenant” under the Covenants Not to Compete Act. Because, a forfeiture clause does not actually prohibit an employee from competing after leaving employment, said the court. The court also addressed its decision in Marsh U.S.C., Inc. v. Cook, 354 S.W.2d 764 (Tex. 2011). I previously discussed that decision here.

That decision, we thought, established that the consideration for a covenant not to

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The Deck is Stacked Against the Plaintiff

Posted in Litigation and trial practice

In many ways, the deck is stacked against the discrimination victims. Most folks who believe they have been subjected to discrimination put off seeing a lawyer. Many, a great many folks go directly to the EEOC, trusting in the federal government. The EEOC means well, but it is over-worked and under-staffed. Many EEOC workers are simply poorly trained. Consider the case that occurs every so often: the plaintiff files a charge with the EEOC. The EEOC will occasionally take a very long time with a case. If the EEOC allows a case to sit at the EEOC for over two years, the case will go beyond the statute of limitations. That is, the case will go beyond the time limit in which to file a state lawsuit of discrimination.

If that case concerns disability discrimination, the plaintiff is in serious trouble. The U.S. Supreme Court has held that the state agencies cannot

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Texas Statutes of Limitation

Posted in Litigation and trial practice

Lawsuits are tricky. They must be filed within a certain deadline, known as "statutes of limitation."  If a person misses the statute of limitation without a very, very good reason, that person cannot file the lawsuit. Statutes of limitations are very important. A suit based on personal injury must be filed within two years of the act complained of. If a person is in a car wreck, that person must file a lawsuit within two years of the car wreck. 

If the last day of the two year period falls on a weekend or a holiday, then the statute of limitations period is extended until the next business day. A lawsuit based on the state statute which prohibits discrimination must be filed within two years. This statute is known as the Texas Commission on Human Rights Act. 

A suit based on defamation, libel or slander must be filed within one year of the

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Abbott Files Another Frivolous Lawsuit

Posted in Litigation and trial practice

So, Greg Abbott files another frivolous lawsuit. He has filed suit against the federal government over Pres. Obama’s immigration measures. See San Antonio Express News report (account required). And, as before, the lawsuit is described as frivolous by lawyers familiar with immigration law. One immigration lawyer describes the lawsuit as "political theater."  I have written about his frivolous lawsuits and weak defenses here and here. His actions may serve serve as effective politics, but they are ineffective actions. 

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Oral Arguments Set for Nicholas v. SAWS

Posted in Litigation and trial practice

Oral arguments are set for Nicholas v. San Antonio Water System. I previously wrote about that case here and here. CPS spent half a million dollars by November, 2013 defending the case. They could have settled the case for much less. Oral arguments are set for January, 2015 before the Texas Supreme Court. See San Antonio Express News report

The Texas Supreme Court is infamous for being friendly to corporations and employers. The chances of success for the plaintiff are not high. 

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