San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

Judge Montalvo issued a decision for the Western District of Texas regarding the Americans with Disabilities act.  In Molina v. DSI Renal Inc., 2012 WL 29348 (W.D.Tex. 1/4/12) the court deneid the employer's motion for summary judgment.  The case was filed under the Texas Commission on Human Rights act, but the court interpreted based on the ADA Amendments Act.  Ms. Molina had suffered from back problems for years.  Her employer, however, suddenly decided it could no longer accommodate her.   The employer would not honor her lifting restrictions, saying they would no longer allow anyone to work unless they were fully released by their doctor.  On summary judgment, the employer argued that her back impairment was not a disability.  

But, the judge correctly stated that under the ADA amendments, to determine whether someone is "substantially limited," he must look not to the outcomes that the person can achieve.  Since, an impairment need not restrict or significantly restrict the individual from performing a major life activity in order to be considered "substantially limited."  Instead, as the EEOC guidance points out, the court should "compare the condition under which the individual performs the major life activity" or "the manner in which the individual performs the major life activity" as compared to the general population.  This comparison, said the court, could include the pain with which the individual performs the major life activity.  

As the court noted, the employee learned to work through her pain.  She was able to perform many of the same tasks after her back injury as she did before the injury.  The court noted that she was without pain mostly because she took pain medication.  She still suffered from a disability, concluded the court. 

Under the old ADA, Ms. Molina would have lost with this evidence.  It is the ADAAA's requirement that a judge look at her disability without the benefit of medication that made a substantial difference in her outcome.  The court found that a 20 lb lifting restriction was a substantial limitation on a major life activity of lifting.  He rejected pre-ADAAA decisions which had specifically found that a 20 lb lifting restriction was not a substantial limitation. See additional comments at Disability Blog. 

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The Fifth Circuit overturned summary judgment for the employer in Schroeder v. Greater New Orleans Federal Credit Union, No. 10-31169 (5th Cir. 12/19/11).  The employee was fired after she complained about violations of law and regulation at a credit union.  Mary Schroeder filed suit based on 12 U.S.C. §1790b and La.Rev.Stat.Ann. § 23:967(A).  Sec. 1790 is a whistleblower protection act for credit union employees.  The trial court granted the employer's motion for summary judgment.  The plaintiff was fired Oct. 8, 2008 by the Louisiana credit union.  See Fifth Circuit opinion here. 

The appellate court overruled the summary judgment, finding that the lower court did not construe the available evidence in favor of the non-movant.  Sec. 1790b provides that a credit union employee may file suit if s/he is fired for reporting violation of law or regulation.   The three judge panel found that some evidence supported the employer, but some evidence supported the employee regarding the requirement to show causal connection between her reports of violations and her termination.  The court analogized by using the elements of proof for Title VII retaliation.  

One critical issue was whether Ms. Schroeder reported her concerns to the National Credit Union Association prior to her termination or after her termination.  There was some evidence that she made reports prior to her termination on Oct. 8, 2008.  Letters to the NCUA were dated Oct. 6, although the NCUA did not log them in until Oct. 21.  As the court noted, the trial judge should have construed that evidence in favor of the non-movant.  

Also, several co-workers knew Ms. Schroeder planned to go to the NCUA in June, 2008,  Phone records showed she made several calls to the NCUA in June, 2008.  She has a copy of her two Oct. 6 letters to the NCUA.  And, her attorney sent an email to the NCUA on Oct. 1, 2008.  As the court correctly noted, the lower court was required to view the evidence in light most favorable to the non-movant. So, the court concluded that Ms. Schroeder and her attorney submitted complaints in June and October, 2008 prior to her termination. 

Under Title VII and Sec. 1790b, the employee must show a causal connection between her opposition activity and her termination.  Regarding this causal connection, the court noted that Ms. Schroeder suffered no discipline until she was fired.  And, in fact, the employer praised her performance when she was demoted.  On the other hand, she was said to be "abrasive" to work with.  The court found overall that this evidence regarding her work performance was "neutral."  

Ms. Schroeder was demoted some two weeks prior to her first complaint to the NCUA.  But, her pay decrease came closely after her first calls to the NCUA.  And, her letters and her lawyer's email came shortly before her termination.  The court noted the competing inferences available from this evidence.  But, again, the court must draw inferences in favor of the non-movant.  Refreshingly, the court reaffirmed that such fact issues should be decided by a jury not by the judge.  So, the court found a close temporal proximity between her reports and her termination. 

The court of appeals then reversed the trial judge and sent the matter back to the trial judge for a trial on the merits. 

It is refreshing to hear the Fifth Circuit affirm the right to a trial by jury on key factual issues.  Perhaps, jury trials are not completely gone from the Fifth Circuit. 

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Legal scholars are becoming more aware that actual trials in federal courts have decreased dramatically since the 1960's.  Suja Thomas discussed this trend in a recent speech at Seattle University to mark the 25th anniversary of the summary judgment trilogy.  See Workplace Prof report.  Prof. Thomas mentions a couple of developments leading to this trend: the rise in arbitration and the summary judgment emphasis in federal courts.  See her paper.  

She mentions her own experience with arbitration when she and her husband purchased a house.  The sale agreement included an arbitration clause.  The house had some serious flaws (like no sewer connection).  The repairs would cost about $5,600.  Yet, the arbitration clause would require them to pay for three arbitrators, typically lawyers, and numerous fees that ranged from hundreds to thousands of dollars.  The arbitrator's fees alone would run into the hundreds of dollars per day.  All for a $5,600 problem.  Because Ms. Thomas is a lawyer, she was able to resolve it much simpler and more direct.  She could do her own research into the legal issues.  But, for the average homeowner, this would have been a minor catastrophe.  

Ms. Thomas mentions a good point regarding these major changes in how we resolve disputes: now, many disputes are not resolved at all and when they are, they are resolved by lawyers and other professionals, not by average citizens.  She mentions her own problem with a home builder.  She also mentions the case of AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011), a U.S. Supreme Court case.  The Concepcions had a $30 dispute with AT&T regarding their cell phone bill.  The cell phone agreement required them to take it to arbitration.  The agreement prevented them from seeking class actions.  The agreement allowed them to file suit in small claims court, but the filing fee for small claims court far exceeded the amount of the $30 dispute.

The California Supreme Court found that the e provision preventing them from seeking class action status was unconscionable and not enforceable.  AT&T appealed to the US Supreme Court, which affirmed the class action provision, saying that federal law favors arbitration.  

This is a crazy result.  The $30 dispute would have little value to anyone other than the Concepcions abd possible class action lawsuits.  Arbitration would require the Concepcions to pay fees in the hundreds of dollars - just to have their case heard by an arbitrator.  

The trilogy of summary judgment cases started the trend toward judicial resolution of cases.  As Prof. Thomas points out, summary (or "quick") judgment has become the tool to dismiss cases.  The trilogy includes Matsushita v. Zenith, 475 U.S. 574 (1986), Anderson v. Liberty Lobby, 477 U.S. 242 (1986), and Celotex v. Catrett, 477 U.S. 317 (1986).  These three decisions made it easier for employers and other to obtain summary judgments, an event that was formerly somewhat rare.  Summary judgment means the judge decides the case lacks merit and no jury ever hears the issues. It is resolution by judges. 

The Federal Judicial Center has found that summary judgment is granted more often in employment cases than any other type of case.  73% of employment cases result in summary judgment.  Other cases see summary judgment 60% of the time.  So, judges decide 73% of employment cases.  Judges are lawyers.  So, like arbitration, we have critical decisions made by lawyers. 

Prof. Thomas discusses remittitur.  If a federal judge is not happy with a jury decision, he can order remittitur, which is a reduction in the jury verdict.  More employment cases see remittitur than any other case.  In a study conducted by Prof. Thomas, 63% of the cases ordered to remittitur were civil rights cases. 

Prof. Thomas cites one estimate that one-third of all nonunion disputes end up in arbitration.  

The trend is toward disputes being resolved by a select, trained but biased dispute "clergy."  They are biased in the sense that this "clergy" will know and feel more comfortable with the employer who brings them business.  It is an institutional bias.  The problem with this arrangement is both constitutional and social.  The Seventh Amendment was intended to garauntee each citizen the right to a jury trial.  Now, by simply buying a house or applying for a job, we waive that right.

The social problem, says Ms. Thomas, is we are working toward having lawyers and judges decide all important disputes in our lives.   I think we all can agree that lawyers look at problems differently than others with different training.  I think we lose something when the average citizen is removed from this process. 

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