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

 In the legal business, lawsuits are governed by deadlines referred to as "statutes of limitation."  A lawsuit must be filed within the applicable statute of limitation.  A suit based on personal injury must be filed within two years of the act complained of.  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 act complained about.  A suit based on breach of an oral contract must be filed within two years of the alleged breach.  Suit on a written contract must be filed within four years of the alleged breach. 

Of course, there are many exceptions to these statutes of limitation.  If you have questions, you should speak with a qualified lawyer. 

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Nancy Norman has filed suit against her former employer, Ebbay Halliday Realtors, Inc., in Dallas district court for discrimination based on her disability. She filed suit under the Texas Commission on Human Rights Act., the Texas equivalent of Title VII of the Civil Rights Act.  See Texas Lawyer report.  Ms. Norman was fired after ten years of employment and 37 days after disclosing her diagnosis, inverse psoriasis, a skin disorder.  Ms. Norman's doctor told her to wear shorts to work and change once she arrived at work.  Her disorder involves a painful red rash made worse by friction and perspiration.  Her doctor warned her against overheating. The employee told her office administrator about the diagnosis and what the doctor prescribed.

She arrived to work wearing shorts. The office manager, Don Davis immediately told her she cannot wear shorts to work. During the following week, Mr. Davis allegedly exhibited hostility toward Ms. Norman. He then issued her a disciplinary write-up for dressing improperly for work and general incompetence. When Ms. Norman tried again to explain to him her need to wear shorts to work, he cut her off and said he did not care about her medical issues.  Ms. Norman says she had received letters of commendation in the past. 

Ms. Norman then failed to attend a shower for a co-worker during lunch.  Mr. Davis complained about that omission and sent her home.  He called her at home later that day and fired her. 

It sounds like a good case for the employee. The employer will surely defend on the basis that Ms. Norman was not a productive employee and had other issues. But, if Ms. Norman truly has a write-up for dressing improperly at work after she had been diagnosed, the employer's actions will appear retaliatory.  Mr. Davis will undoubtedly deny his statements. But, the verifiable evidence will be strong enough that many jury members may accept the plaintiff's version of events. This is a case which the employer should settle. 

And, requiring attendance at a function during non-working hours?  A possible violation of the Fair Labor Standards Act?  The employer has some problems in this lawsuit. 

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Clients and potential clients sometimes ask me what is their case (or potential case) worth?  What little they know of its value is colored by the ubiquitous Personal Injury lawyer ads.  Or, sometimes, their knowledge is influenced by what some brother-in-law knows or thinks he knows.  So, some clients, a small percentage expect wealth and riches.  

Employment cases are not car wreck cases.  The employment discrimination statutes provide for specific types of damages.  Title VII and the Texas law equivalent, Texas Commission on Human Rights Act, provide for lost pay and benefits, compensatory damages, punitive damages and costs of prosecuting the lawsuit which includes attorney's fees.  

So, I am sorry, but the court cannot, even if it wanted, award you the value of the home you lost or the divorce the job loss caused.  That sort of information does help show emotional suffering.  But, no, there will be no dollar for dollar award regarding a lost home.  I wish there were.  The judge cannot award anything not allowed by statute. 

Lost pay and benefits include more than may meet the eye.  It includes lost pay of course.  It includes all lost benefits.  So, save that COBRA letter that records the dollar amount paid by the employer for your medical insuirance.  I do not need to know how much you paid each month out of your paycheck for medical insurance.  I need to know how much the employer paid.  

Lost benefits include retirement benefits.  Terminations involve different calculations than failure to promote.  Lost promotions or raises can affect how much a 401K would grow.  I have had a few clients who could "guesstimate" pretty well how much their retirement would have grown if they had received a particular step increase.  If the client cannot make their estimate, then we may need to hire an economist to study the issue.  

Lost bonuses count.  Of course, the employer will claim bonuses are never guaranteed.  They may even point to policies which provide bonuses are never certain and depend on financial success each fiscal year.  But, if the actual practice suggests that bonuses are likely and that failure to pay a bonus may have been motivated by discriminatory animus, then we have a fact issue regarding bonuses.  If we have a factual issue, then the issue will be decided by a judge or jury.  

Arriving at an amount for compensatory damages is complicated.  Compensatory damages describes damages intended to compensate a person for emotional suffering.  How do we measure emotional suffering?  The best source is actual jury verdicts.  If we can point to a similar case, involving similar discriminatory practices by similar employers and employees, then we rely on such cases.  But, discrimination is rarely the same across industries.  Employers often are different in very critical ways.  So, truly comparable jury verdicts are rare. 

We also look at studies.  There have been a few.  Most studies show that a winning plaintiff in an employment cases gets no compensatory damages.  The few who are awarded some amount are typically awarded an amount equal to or comparable to the amount of lost pay and benefits.  If the discrimination victim is a Vice-President who lost $100,000 in pay and benefits, then the jury in such an instance would award $100,000 in compensatory damages.  If the victim is a warehouse laborer and his lost pay and benefits is $15,000, then the jury who awards compensatory damages awards another $15,000 in emotional suffering damages.  

That may not be fair.  The emotional suffering between the VP and the warehouseman may be the very same level.  They may both lose their homes, marriages and suffer enormously.  But, as I tell my clients, in the legal business, we do not deal in "fair."  We have to deal in reality.  The "real world" is the mode of exchange for most lawyers and judges.  

Punitive damages are very rare, according to studies.  They tend to range across wide extremes. 

Of course, all these amounts are subject to caps.  Title VII and the the TCHR Act are capped at various levels based on number of employees.  The highest cap is $300,000.  So, even the largest employer in the country will never see a larger award than $300,000 in compensatory damages.  

Once in a blue moon, you will see a jury award a million dollars for compensatory damages.  But, that amount will be reduced by a judge to the appropriate cap level.  

So, as I hear from some clients, some brother-in-law may know of an "exact same case" that resulted in a million dollars.  Great, I advise the client, go hire that brother-in-law, because he knows more than I do.  

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Sigh, our Texas Supreme Court is at it again.  In a recent decision, the Court conflated personal injury claims with sexual harassment and other froms of discrimination.  See Waffle House, Inc. v. Williams.  The Court found that claims based on assault and negligent supervision are preempted by the Texas Commission on Human Rights Act.  The TCHRA is the state version of Title VII of the Civil Rights Act of 1964.  The TCHRA prohibits discrimination based on sex, race, national origin and other classifications.  The Court found that the TCHRA provided the exclusive remedy for all conduct related to discrimination.  Formerly, tort claims or personal injury claims would be in addition to, not in lieu of discrimination claims.  

As the dissent points out, this means that if Joe repeatedly slams Mary up against the wall at work, then Mary can sue Joe for assault and battery.  But, if Joe also gropes Mary while repeatedly slamming her against the wall, then Mary can only sue for discrimination.  One major difference is that the TCHRA is limited to $300,000 in emotional damages and punitive damages. But, a claim based on assault and battery would have limited or no dollar limit.  See dissent.  

The $300,000 cap suffices for many claims.  The $300,000 cap applies to the largest employers.  It includes punitive damages and compensatory damages.  Compensatory damages are intended to compensate a victim for emotional suffering.  But, the cap is not enough for some claims.  For example, would $300,000 be enough in a discrimination case also involving rape? Money never truly compensates for the worst abuses.  But, $300,000 would not be enough damages for some cases.  In the case of Jones v. KBR, the victim was raped repeatedly and then confined in Iraq by her employer.  Would $300,000 be enough for the Jones case?

Or, if the employer has less than 100 employees, the punitive damages and compensatory damages would be capped at $50,000.  Would $50,000 suffice for the worst claims involving rape or assault?

The ruling suggests judicial activism.  The issue was not even addressed by the parties.  The Supreme Court refers to a tangential reference by the employer before the lower court.  But, the issue was not presented before the Supreme Court itself.  

The TCHRA is supposed to track the federal equivalent, Title VII, but this ruling directly contradicts Title VII precedent. 

And, ultimately, in this case, the jury had awarded $3.46 million in punitive damages.  The trial court then converted that award into an award of $425,000 for past compensatory damages and $425,000 in punitive damages, due the cap for personal injury claims.  The Texas Supreme Court once against trumps a jury decision.  

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 Discrimination laws in Texas are enforced by the Texas Workforce Commission, Civil Rights Division and the Equal Employment Opportunity Commission.  But, the CRD is only located in Austin, Texas.  So, by far, most cases are filed with the EEOC.  Both agencies have a work share agreement in which a charge with one will simultaneously be filed with the other agency.  The federal statute is Title VII of the Civil Rights Act of 1964, while the state version is the Texas Commission on Human Rights Act.  The TCHRA generally tracks Title VII. 

Both statutes prohibit discrimination based on sex, race, national origin, and religion.  The Americans with Disabilities Act prohibits discrimination based on disability.  The Age Discrimination in Employment Act prohibits discrimination based on age.  The EEOC investigates alleged violations of the Americans with Disabilities Act and Age Discrimination in Employment Act.  And, of course, the Texas TCHRA also tracks the ADA and the ADEA.

Any charge of discrimination must first be filed with either the EEOC or the TWC, CRD before proceeding to a lawsuit. 

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