When you ask for an accommodation, you need to be careful what you ask for. Because, you just might get it. That is an old saying and it applies to the decision in Dillard v. City of Austin, 837 F.3d 557 (5th Cir. 2016). Derrick Dillard worked for the City of Austin. He was a laborer and field supervisor until he sustained injuries in a car wreck. He could not perform physical labor any longer. After extended leave, he was offered a position as an Administrative Assistant. He was stunned at first, because he did not know how to do “no administrative work.” He did not meet the stated qualifications for the job, three years experience as an Administrative Assistant. So, the city provided him with on-the-job training and let him shadow another Administrative Assistant. He was encouraged to complete additional training, but he never did. His typing skills did not improve. Instead of training on the computer, he was observed to be surfing the internet and playing games. He arrived at work late and left early. He spent some of his time looking for a new job.

The employee started the Administrative Assistant job in April, 2012. By September, he was given a bad performance evaluation. His supervisor testified that he lacked skills, but he also seemed unwilling to improve his skills. Mr. Dillard asked to be moved to a different job and claimed he was not given enough work to do. He admitted he could not complete his one typing assignment because he could not type fast enough. His physical abilities were improving. But, the process toward termination proceeded. At a pre-termination meeting, he admitted the allegations against him were accurate. He was not apologetic for his behavior. He said he was trying to find a new job within the City.

In late October, he was fired. Plaintiff Dillard filed suit saying the city failed to accommodate him. The district court granted summary judgment. The higher court noted that if an accommodation is not working, then the employee may ask for a new accommodation. That is part of the interactive process. The plaintiff argued that the City failed to cooperate when it became clear the new job was not working out. He argued that as his capacity improved, the City should have considered him for jobs that were open. But, the Fifth Circuit was not impressed. The interactive process is a two-way street. It requires that both parties work together in good faith. When they gave him the new job, the ball was in his court. He should have worked in good faith to make it work. The misconduct indicated the was not trying in good faith to succeed in this new position. There was also evidence of making personal phone calls, napping at work, lying about his attendance, etc. This case was now less about the interactive process and more about mis-conduct.

The higher court found no evidence that the City failed to act in good faith, since the employee did not show a desire to try and make the new position work. The court affirmed the grant of summary judgment. Yes, be careful what you ask for, because you just might get it. See the decision here.

A critical issue for many persons who suffer any illness is recovery and treatment. That comes as no surprise. Yet, it seems to surprise many courts. The issue often arises when the employee asks to work from home. The employee and his/her doctor may not know to any degree of certainty how long the recovery will last or how the patient will react to particular forms of treatment. In Credeur v. State of Louisiana, No. 16-30658 (5th. Cir. 6/23/2017), the employee was an Assistant Attorney General for the state of Louisiana. Renee Credeur had a kidney transplant. That resulted in complications. She worked from home for several months, apparently without any problem. She then needed more time, so she used her FMLA leave, 12 weeks of unpaid leave on an intermittent basis.

When she still had not recovered, she asked to work from home as an ADA accommodation. A few months later in October, 2013, the employer said she could work from home. Yet, in January, 2014, the AG’s office asked for an accounting of her work hours and certification of her illness. Her three doctors gave different opinions, one stating she could work at the office no more than 3-4 hours per day, a second doctor saying she could work at the office “as tolerated,” and a third doctor saying she should not work at the office for another six months. Ms. Credeur told her employer her endurance was improving and she could now travel via airplane to depositions and attend hearings.

Later,  in February, 2014, Ms. Credeur’s supervisor transferred some of her files due to her reduced work load. And, she was told to use leave time to work from home. That requirement essentially meant she could no longer work from home. In March, 2014, she was given a “last chance” agreement to sign. She had to improve her performance, which referred to her attendance issues and other new, subjective performance issues, or suffer consequences. The “last chance” agreement specifically said she could not work from home.

Ms. Credeur’s condition worsened and she requested to work from home, again. The AG denied her request in August, 2014. At this point, her doctors had said she could not attend hearings, depositions and the like. She provided a medical note for her absences and then returned to work in late August, 2014. Reading between the lines, I interpret that to mean she returned to work because she had to. She worked until December and then resigned. She later filed suit against the AG’s office.

This is one of those rare cases that addresses working from home head on. The court credited the employer’s claim that to work as a litigation attorney, she had to work at the office. The plaintiff responded that she worked from home successfully for many months. She disputed the employer’s claim that face-to-face meetings with co-workers were essential. One supervisor said it was possible to work from home on a temporary basis. While another supervisor testified that to work as part of a team, she needed to work at the office frequently “to bounce ideas” off other members of the team. The court mentioned that Credeur “unilaterally” declared she had no problems when she worked from home earlier. The court also noted that she offered her own “unsupported” testimony that she need not work from the office every day. The panel cited EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc) for the proposition that a plaintiff’s unsupported testimony that she could work from home does not create an issue of material fact. The panel also cited an unpublished decision, Rodriguez v. Mrs. Baird’s Bakery, 111 F.3d 893 (5th Cir. 1997) for the holding that subjective belief that discrimination occurred cannot create a material issue of fact.

The court was troubled by the lack of support for Ms. Credeur’s claims about her job. It also may be that the court felt qualified to discuss the possible limitations for the job of medical malpractice litigation attorney. But, this requirement that Ms. Credeur provide some corroboration of her observations about her job violates most rules of evidence. It also conflicts with the court’s recent decision in recent cases, such as  Heinsohn v. Carabin & Shaw, 832 F.3d 224 (5th Cir. 2016) (cautioning against requiring greater credibility from the plaintiff than from the defendant); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015); Tolan v. Cotton, 134 S.Ct. 1861 (2014) (finding it to be error to disregard the plaintiff’s testimony simply because it is “self-serving”).

A plaintiff is a witness like any other. There is nor rule of evidence that requires the plaintiff to have corroboration. If the court wa snot sure, it should have denied the motion for summary judgment. What the essential functions of a job are is a question for the jury.

The panel devoted much of its opinion to discussing whether the job was capable of working from home or not. It discussed testimony from co-workers that they or others had previously worked from home for brief times. Surely, so much discussion regarding what the testimony says about that issue would suggest that this is a fact question best decided by the jury.

The Fifth Circuit affirmed the grant of summary judgment. There are few cases finding working from home to be a viable accommodation. The few that do find telecommuting to be viable almost always involve a situation in which the telecommuting worked previously for some period of time, but was then cancelled by a new supervisor. See, e.g., DeRosa v. National Envelope Corp., 595 F.3d 99, 104 (2d Cir. 2010) (Acknowledging the employee’s prior accommodation of two years working from home). See the Credeur v. State of Louisiana decision here.

The Fifth Circuit reversed summary judgment in another case recently. In Caldwell v. KHOU-TV Company, Inc., No. 16-20408 (5th Cir. 3/6/2017), the court addressed ADA and FMLA issues. Gerald Caldwell worked at KHOU TV as a video editor. Due to a childhood disease, he needed the aid of crutches for walking. Mr. Caldwell notified his supervisor he would need time off for upcoming surgeries.

About that time the parent company, Gannett Company notified KHOU that the station needed to reduce their work force. One worker was chosen for lay-off based on documented poor work performance. That editor was given prior warning about his performance. Mr. Caldwell received no such warning. Mr. Caldwell was also chosen. The supervisors initially said he was chosen because he had expressed an unwillingness to work in EDR. Later, in its motion for summary judgment, the employer argued that Mr. Caldwell had not taken the initiative to spend as much time in EDR as the other editors.

Mr. Caldwell filed suit based on the ADA and the FMLA. The employer moved for summary judgment, which was granted. On appeal, the Fifth Circuit reversed the summary judgment. The court found there was substantial evidence of pretext. The employer provided different reasons for selecting Mr. Caldwell for the RIF. The employer first claimed Mr. Caldwell shirked his responsibilities by refusing to do the EDR work he had been assigned. The employer provided this expansion in answer to interrogatories and in a letter to Plaintiff’s attorney. But, in a letter to the EEOC, the employer said he was terminated not because he avoided work, but because of his inability and unwillingness to adjust to new technologies. And, before the district court, KHOU argued that Caldwell did not take the initiative to spend as much time in EDR as other editors. And, contrary to all this evidence, the direct supervisor, Philip Bruce, said “absolutely” there were no job performance issues with Mr. Caldwell. These statements, said the higher court, indicated inconsistent explanations, so as to show genuine issue of material fact.

The lower court had looked at the same evidence and discounted it. The district judge found that many of these statements were not made by Mr. Bruce, the direct supervisor. But, the court of appeals noted that no precedent required that all explanations emanate from the direct supervisor. On the contrary, many cases cite articulated reasons from the employer as a whole. The court cited Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408 412-13 and n. 11 (5th Cir. 2007) for the proposition that simply stated, an employer’s inconsistent explanations for its employment decisions at different times are probative of whether those statements are pretextual and that cases do consider statements by the employer’s representatives before the EEOC, before the district court and the Fifth Circuit. And, that makes sense. The employer sues the “employer,” after all, not individual supervisors.

The higher court noted that the employer’s explanation had evolved from insubordination to a lack of initiative. Mr. Caldwell himself denied ever expressing a preference for or against EDR. The plaintiff’s supervisors also confirmed they did not recall the plaintiff ever expressing a preference against working in EDR. The employee also testified, and the supervisors confirmed, that it was ultimately the employer’s decision to limit his time in EDR, suggesting the employer was not truthful.

[Note: It is always unwise to try to mislead the court. Judges remember that. It will affect the rest of their decisions. That the supervisors apparently disagreed with the company’s  representative seriously undermines any case.]

The higher court also discussed the lack of opportunities for the disabled worker. The court compared not affording employment opportunities to black workers to not providing opportunities to Mr. Caldwell. The plaintiff had argued that the employer chose not to schedule him time in EDR. The lower court had found that he was not scheduled more time in EDR due to his disability. The Fifth Circuit found that lack of opportunity comparable to a case, Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990), in which an African-American woman was not given the chance to improve her work performance, because the employer did not counsel her about performance problems. In Caldwell, the court said this situation was similar because KHOU did not give Mr. Caldwell time to work in EDR and improve his technical abilities. This lack of time also indicated that the employer did not counsel Mr. Caldwell and warn him that he should spend more time in EDR.

The higher court also reversed summary judgment regarding Plaintiff’s FMLA claim. See the decision here.

This is the last in a series of cases dating back some three years in which the Fifth Circuit has reversed summary judgment. The most common problem in that line of cases is the failure of the district court to construe facts in favor of the plaintiff. We hope district judges will make more of an effort to construe facts in favor of the non-movant, as they should.

Persons who have a disability are entitled to accommodation if necessary. But, there are limits to the sort of accommodation they can expect. One limit on requests for accommodation is that the person cannot seek an indefinite leave. An employer should not have to wait forever or close to forever for an employee to return to work. In Moss v. Harris County Constable Precinct One, No. 16-20113 (5th Cir. 3/15/2017), the plaintiff, Robert E. Moss had a chronic back injury. He left on FMLA leave. When his FMLA leave ended, his doctor said he needed another six months of leave from work. Three months into that leave, he told his employer he would retire at the end of that six month leave. The new Constable promptly fired him before his six months had elapsed. Mr. Moss filed suit under several different statutes, one of which was the Americans with Disabilities Act. He argued that the Constable failed to accommodate his treatment.

But, the Fifth Circuit found that Plaintiff Moss filed to show he was entitled to an accommodation. It was not clear in the midst of his six month leave that he could perform the essential duties of his job, despite 16 years working with the Constable’s office. His doctor had not released him back to work. Mr. Moss argued that bis leave requests was not indefinite. But, noted the court, his requested leave would have ended the same day he planned to retire. That amounts to an indefinite leave, said the court. See decision here.

I am sure Deputy Moss had some reason for seeking to be counted as an employee through the end of his six months. Perhaps, there was some retirement benefit for reaching a certain date. But, the employer is not required to honor personal reasons.

In the world of jobs, anything is possible. In the employment world, we deal with human behavior in all its manifestations. We see a crazy case in Fisher v. Lufkin Industries, Inc., No. 15-40428 (5th Cir. 2/10/2017). William Fisher had worked for Lufkin Industries off and on for some 20 years when he was fussed at by his boss, Steve Saxton. “Boy, I don’t know why every time come over here [to Fisher’s work area] its a hassle!” His voice was raised. Mr. Fisher is African-American. Fisher reported the use of the term “boy” to HR and said it was racial. HR tasked another manager to look into the matter. That manager found that the use of the term “boy” was used as exclamation, not in a derogatory way.

[I am not sure what that means, but it could mean Mr. Saxton referred that way to white and black workers.]

Mr. Saxton’s manager. David Jinkins, was also asked to look into the matter. About a month later, a co-worker of Mr. Fisher, David Rhoden, approached Manager Jinkins and said he did not like hearing that Fisher had complained about the use of the term “boy.” Mr. Rhoden said Fisher had said he would get Mr. Saxton fired. During this conversation, Mr. Rhoden mentioned that for a long time, Mr. Fisher had been selling DVD’s out of his lunch box and some of the CD’s were pornographic. Rhodes would later testify that it was Mr. Jinkins who asked about the CD’s.

Manager Jinkins asked Rhoden to buy a CD from Fisher, so they could use it as proof. Rhoden resisted. Jenkins said, “You scratch my back, I’ll scratch yours.” Mr. Rhoden bought a CD a few days later. It turned out to be blank. Mr. Jinkins told Rhoden to try again. This time, the CD was pornographic, said Mr. Jinkins. An investigation ensued. The company said Mr. Fisher violated a company rule in selling CD’s on company property. Mr. Fisher did not deny the accusation, nor did he agree with it. The company officials went to Mr. Fisher’s car to search it. As the search began, Mr. Fisher said he received a call from his wife and he had to go. One official said he heard the phone ring. Two other officials present said they did not hear any phone ring. The car was never searched. Mr. Fisher was fired a day later.

Mr. Fisher filed suit. In his lawsuit, he said he had been subjected to reprisal for opposing discriminatory conduct.

The lower court granted summary judgment. The court said the investigation was retaliatory. Many employees sold things at work. Many employees possessed pornographic material at work. There was no specific rule prohibiting selling things at work. But, Mr. Fisher lied to company investigators and did not cooperate in the search of his car, said the district court. Therefore, said the court, the firing was justified. It granted summary judgment apparently seeing the termination by HR, which meant the HR official was not motivated by retaliation.

On appeal, the Fifth Circuit was perplexed. It noted that the investigation was retaliatory. The lower court found it was retaliatory and facts supported that finding. But, under the cat’s paw theory, a supervisor can act on the retaliatory motive of a subordinate manager. Manager Jinkins appeared to have a retaliatory motive. His investigation and “sting” operation reflected an unusual interest in Mr. Fisher. The investigation would not have occurred but for Rhoden’s and Jinkin’s retaliatory motive. Mr. Fisher’s lack of cooperation with a retaliatory motivated investigation was “inextricably” tied to the retaliatory motive of Jinkins and Rhoden. The actions of Mr. Rhoden and Mr. Fisher were proximate causes of Fisher’s termination. So, the Fifth Circuit panel reversed the grant of summary judgment. See decision here.

In a per curiam decision, the Fifth Circuit reversed summary judgment for the employer. In Stennett v. Tupelo Public School District, No. 13-60783 (5th Cir. 7/30/2015), Ms. Stennett argued she was more qualified than the persons chosen for various district jobs. Ms. Stennett had formerly worked for the Tupelo Public School District for some 30 years, gradually rising up through the ranks. She was laid off and told she could re-apply for various jobs. She did apply for three different positions for the 2010-11 school year. She was not even interviewed. She was then 64 years old. TPSD then re-hired several former TPSD employees, who were much younger. Ms. Stennett was the only former administrator who was not re-hired by TPSD. The next school year, the plaintiff applied for seven different positions with TPSD and was not hired. She was only interviewed for two of the positions. Yet, the district court granted summary judgment. The employer argued that the teachers who were chosen were more qualified.

The Fifth Circuit reversed summary judgment. It found that in looking at the evidence as a whole, she was much more qualified than the persons who were selected for the positions. On that basis, it found there was sufficient issue of material fact. It said a reasonable jury could conclude Ms. Stennett was more qualified than the persons who were chosen. She was not even interviewed for a position as an Administrative Intern. The court also noted that the employer relied on subjective qualifications that were not included in the job postings. One principal, for example, was looking for someone “to kind of complement him.” Another wanted someone who could provide instructions to the teachers. As the court mentioned, reliance on previously undisclosed job requirements itself can raise a genuine issue of material fact.

This is an unusual case. The court even noted that unlike most cases involving one particular job, Ms. Stennett was turned down for multiple positions. It is difficult to accuse several different persons of discrimination. People just do not generally believe discrimination can occur across different persons. But, Ms. Stennett was able to show undisclosed job requirements, and a lack of explanation by one principal regarding why he did not even interview Ms. Stennett. The plaintiff also showed that the Superintendent had promised to help her find a new position, but did nothing to help her. The superintendent himself did not interview the plaintiff for one position for which he was the hiring official. All this, said the court, amounted to genuine issue of material fact. See decision here. The decision is not published. But, it should be. It goes into substantial detail regarding how to analyze pretextual explanations.

 

Judges matter. The life experiences they bring to the bench matter. So, when I see a concurrence like the one written by Judge Jones of the Fifth Circuit, I become concerned. In Pineda v. JTCH Apartments, LLC, No. 15-10932 (5th Cir. 12/19/2016), the employee recovered some $5,000 in damages. Santiago Pineda was a maintenance worker for the apartments. He and his wife lived in the apartments. He sued to recover unpaid overtime. Three days after filing suit, the apartment owner evicted Mr. Pineda and his wife for nonpayment of rent. The eviction action sought repayment of the rent from Maria Pena, Mr. Pineda’s wife. After being evicted, Maria Pena joined the lawsuit and alleged retaliation. After a three day trial, the jury awarded the plaintiff $1400 in lost wages and $3700 for the retaliation claim. The judge awarded liquidated damages, which in effect doubled the lost wage award.

The judge then awarded the plaintiff’s attorney some $76,000 in attorney’s fees. The judge reduced the attorney fee request by 25% because, said the trial court, the amount sought was “grossly” disproportionate to the amount recovered.

Both parties appealed. The plaintiffs appealed because they believe the court should have allowed emotional damages. Many courts have allowed a claim for emotional distress damages under the Fair Labor Standards Act. This three-judge panel concluded there was no reason why the district court could not have done so. It found the lower court should have allowed a claim for emotional distress damages.

The defendant argued that the claim for attorney’s fees was too high. It claimed the plaintiff’s attorney did not settle the case when he could have. This is a claim unique to Texas state law, described as the “doctrine of excessive demand.” They also claimed the complaint was filed in bad faith. But, said the court, the defendant waived this argument by not bringing it before the trial court. The higher court then ordered the case be remanded to address the claim for emotional distress damages. But, cautioned the court, the attorney’s fees are already quite high. So, counsel should proceed expeditiously.

Judge Jones then dissented, accusing the plaintiff’s attorney of engaging in hardball tactics in freezing the bank account of the employer during the lawsuit. Judge Jones accused the plaintiff attorney of freezing the bank account ex parte – meaning it was done without notice to the defendant. She also claimed that testimony “implied” that Mr. Pineda may have sued for this “tiny” sum only because the apartment manager reported Mr. Pineda for possible child abuse. She described the attorney’s efforts as possible procedural abuse. My concern is that having done collections type legal work, I know that freezing bank accounts is exceedingly difficult. It is possible to freeze the account ex parte, but if so, one must provide notice to the defendant immediately. Too, this vase reflects the purpose of having a statute that allows for attorney fees. If there were no attorney’s fees available, then such smaller claims would not be pursued.

Too, I do not know how many maintenance workers Judge Jones has known throughout her lifetime, but at least to the maintenance workers I have known, $1400 is not a “tiny” sum. In truth, Judge Jones may have never spoken to an actual maintenance worker. Yes, a judge’s life experiences do matter.

As I review the Docket Sheet, I do not see anything out of the ordinary in this lawsuit. It was not over-worked in some way. Neither party seems to have filed unnecessary motions. The defendant did not seek dismissal or summary judgment. The reality is that even relatively small amounts require a great deal of attorney time. If there is a problem of some sort, it may be that the plaintiff did not accept the amount offered in settlement. But, that is not unusual. Judge Jones appears to be looking for issues with which to cast the plaintiff in a negative light.

 

More and more employers are relying on staffing agencies to fill certain jobs. But, many employers retain so much control that they remain the employers in all but name. So, if the client employer is the employer in fact, what would be the status of the staffing agency? The Fifth Circuit addresses that issue in Nicholson v. Securitas Security Services USA, Inc., No. 15-10582 (7/18/2016). Helen Nicholson sued both the staffing agency, Securitas, and the client employer, Fidelity. But, Fidelity settled early in the lawsuit. Securitas moved for summary judgment, which was granted. Ms. Nicholson was a receptionist for Fidelity. She was 83 years of age. She was well-liked in that position. Yet, Fidelity asked that she be removed. Securitas placed a 29 year old woman in her place. Securitas then claims it could not find another position for Ms. Nicholson and she was terminated ten days later. The employee filed suit for age discrimination.

Securitas first claims it was not Ms. Nicholson’s employer. Yet, the contract it signed with the employee clearly identifies Securitas as her employer. And, in its answer to the Plaintiff’s Complaint, the staffing agency alleged that it was her employer. So, the higher court did not apply the “right to control” test. It simply found that the employer had already admitted it was her employer.

The discussion then turns to the evidence of pretext. Securitas argued that it was not aware of any discrimination by Fidelity. Fidelity simply asked them to place someone else in the position. Securitas management testified they they never questioned a client employer. But, the Fifth Circuit, relying on its decision in Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015), noted that a staffing agency participates in a discriminatory action if it knew or should have known about the discrimination. I previously wrote about the decision in Burton here.

The plaintiff conceded in her brief that she had no evidence that Securitas knew Fidelity’s action was based on a discriminatory motive. Instead, she argued that Securitas should have known the action was discriminatory. The plaintiff pointed out Securitas’ own policies which require counseling for substandard performance. There was no counseling when Fidelity asked that Ms. Nicholson be removed. Too, there was no investigation as to the reasons for the move. Securitas management did not ask why the move was necessary. Although, the Securitas manager also testified that it should look into the reasons for a complaint. The manager said they should “verify” the reason for a termination. So, construing the evidence in favor of the non-movant, Securitas failed to follow its own procedures in looking into the reason for the change in receptionist. So, the court reversed the summary judgment as to the age claim and the request by by Fidelity to move Ms. Nicholson.

Regarding the termination by Securitas, the court affirmed summary judgment. Ms. Nicholson was fired essentially because she did not obtain her security card and she testified she could not see herself performing a traditional security position. See the Fifth Circuit decision here.

The Fifth Circuit is a risky place to do business. Sometimes, it just reaches some strange conclusions. The case of Allen v. Radio One of Texas II, LLC, No. 11-20781, 2013 WL 703832 (5th Cir. 2/26/2013) illustrates the lack of predictability at the Fifth Circuit. In that case, Corina Allen worked at a radio station as general sales manager.  After complaints about her from subordinates and co-workers, she was warned and then fired. Three weeks after her termination, she sent a letter threatening the station with a lawsuit and suggesting they settle. The Fifth Circuit seemed to be troubled by this letter. The letter did not mention sex discrimination. The opinion does not say who wrote the letter. But, I would expect her lawyer sent the letter.

A few months later, Ms. Allen filed an EEOC charge alleging sex discrimination. Ms. Allen briefly worked for CBS radio, a competitor to Radio One. About the time of her EEOC charge, she called Radio One seeking business. Ms. Allen had left CBS Radio and was now working for herself. The plaintiff sold radio advertising. Ms. Allen was seeking to do business with her former employer. But, Radio One said they could not do business with her because of her EEOC charge.

It is curious that the appellate decision mentions her brief employment with CBS Radio. She was terminated from that position before her call to Radio One. There is no apparent reason why that brief employment would be relevant. So, it is curious that the higher court mentioned it.

The court’s description that she called Radio One “about” the time of she filed her EEOC charge is also confusing. She must have filed her charge before she called Radio One. Since, Radio One referred to her charge as the reason for not doing business with her. She recorded that phone call. One would think that is pretty clear evidence of retaliatory motive. Radio One refused to do business with her because she had opposed their discriminatory conduct. Or, at least, a jury could see it that way

And, that is how the jury did see it. The issue of whether that refusal to do business with her amounted to retaliation went to the jury. The jury found that refusal did indeed constitute reprisal for filing her EEOC charge. The jury awarded $6,100 in lost income, $10,000 for emotional pain and suffering, and $750,000 in punitive damages. The district court would reform the punitive damages down to the cap of $300,000. But, it still remains a large verdict.

But, as in all trials, the defendant moved for judgment as a matter of law (JMOL) at the close of the plaintiff’s case. The district court denied the motion, saying there was sufficient evidence upon which a jury could find for the plaintiff. As the Fifth Circuit noted, the judgment as a matter of law is a device by which federal courts ensure no jury will reach crazy verdicts. A judge can stop the trial in its tracks by finding, after the plaintiff has presented all her evidence, that not enough evidence has been presented. Or, the defendant can re-new its JMOL motion at the close of the entire trial. At that point again, the judge can take the decision away from the jury. It can rule that the plaintiff does not have sufficient evidence upon which a reasonable jury can find in her favor.

The trial judge in the Allen case denied the motion at the time. But, the defendant appealed the denial of a JMOL. And, that is what the Fifth Circuit looked at.

The higher court said no, the plaintiff had not presented adequate evidence. The higher court simply found that the refusal to do business with Ms. Allen came too long after her termination. It was 18 months after her termination and a year after she filed her EEOC charge. It was not reasonable, said the court, that an employee would contemplate just before filing her EEOC charge that she might not be able to do business in the future because of her complaint. See the court’s decision here.

The court offered no actual analysis other than its own opinion that this fear would not occur to the average employee. The experience of the panel is apparently far different than mine. Because, I can attest that most plaintiffs contemplate just about every possible contingency before they take even the smallest legal action against her employer. Most, perhaps all employees, fret about such a thing until the cows come home.

So, the higher court found there was insufficient evidence for the verdict. That means Ms. Allen gets nothing. She loses her trial. All because one panel of three judges substituted their experience for that of the jury.

The Fifth Circuit issued an interesting decision reversing summary judgment. In Heinsohn v. Carabin and Shaw, No. 15-50300, 2016 WL 4011160 (5th Cir. 7/26/2017), the higher court found the employer did not have policies in place to support its claim that it fired a Legal Assistant for missing an appeal deadline and for allegedly trying to cover up the missed deadlines. In Heinsohn, the lower court granted summary judgment, finding that the plaintiff failed to show genuine issue of material fact regarding the reasons for her firing.

According to the Fifth Circuit, the law firm failed in showing it had a practice of requiring a Legal Assistant to take any particular action in response to a missed deadline. The plaintiff claimed she did not miss any deadline. But, noted the court, even if she did,  the law firm did not present evidence indicating it had a policy requiring the plaintiff to report a missed deadline. For example, the senior partner testified he would “expect” any employee to report a missed deadline or come to the attorney and ask for guidance. The court asked what does “expect” mean? Does that mean “assume,” or does it mean “require”? Heinsohn, at p. 24 (slip opinion). There was no written policy and the senior partner’s explanation was ambiguous.

The challenge for the employer was that the actual supervising attorney testified he did not really have a problem with the Legal Assistant supposedly missing a deadline. He seemed satisfied that the two missed deadlines were not her fault. As many lawyers have advised employers, employers need to have written policies in place. Without clear policies, the employee will be able to show genuine issue of material fact regarding performance issues.

The higher court also addressed the allegation that Mrs. Heinsohn was fired for being out on pregnancy leave. The plaintiff testified via an affidavit that the law firm wanted a guaranteed, specific date by which she would return to work. She said that was the employer’s true concern, that she could not specify a date when she would return from pregnancy leave. The lower court struck that portion of the plaintiff’s testimony saying it contradicted her email exchange with the law firm. But, the Fifth Circuit disagreed, noting that Fed.R.Ev. Rule 1002 does not require a witness to provide the best evidence in her power. Heinsohn at p. 10. That is, her testimony in an affidavit was sufficient to create a factual issue, even if one interpretation of her email would indicate something to the contrary. As the court noted, when the magistrate judge discounted one source of testimony in favor of another, it was assessing credibility.

The court also relied on Tolan v. Cotton, 134 S.Ct. 1861 (2014) and Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015), in finding that that Mrs. Heinsohn’s testimony should not be disregarded simply because it is “self-serving.” If all such testimony was so discounted, then the testimony of the employer and its employees should be similarly disregarded. Heinsohn, at p. 29. See opinion here.

It is unfortunate that some lower courts still appear to not understand the ruling in Tolan v. Cotton.