it happens more and more. A jilted lover posts pictures of his former girlfriend on the internet. Only this former lover kept doing it over and over. Mark J. Uhlenbrock was a pilot for United Airlines. He formed a relationship with a stewardess who uses the name Jane Doe. The relationship started in 2002 and lasted about four years. He took some pictures of her in the nude with her permission – and some pictures without permission. The stewardess obtained restraining orders against him here in Bexar County in 2009 and again in 2011. He just kept posting the pictures. The pilot settled her case against him for $110,000. But, the harassment did not stop.

In 2013, the stewardess went to their mutual employer, United Airlines. But, the employer failed to take appropriate action, says the EEOC. The EEOC filed suit recently against United Airlines for failing to do something about the pilot’s conduct. In 2015, Mr. Uhlenbrock was arrested by the FBI and his computers were seized. United granted him ing-term disability in January, 2016. He received the long-term disability payments until July, 2016. In June, 2016, he pleaded guilty in federal court to internet stalking. He was sentenced to 41 months in prison for the offense.

Mr. Uhlenbrock said he had an addiction to posting nude photos on the internet. See San Antonio Express News report here. The EEOC appears to be arguing that United kept the pilot on its payroll several months after he pleaded guilty to stalking and that the employer took no steps to stop him from posting the pictures. The challenge in these sorts of cases is showing the employer had a duty to address behavior which occurred off-premises. This may become the exemplar for such cases, since the relationship clearly started on company premises on company time. At least one of the pictures was of Ms. Doe in her flight attendant uniform.

Even worse, the federal violations continued long after the stewardess complained. Ms. Doe filed suit in state court in Bexar County, and complained to management long before the EEOC filed this new lawsuit. At one point, United said it could not take action because the harassment was not related to work. The captain never received any discipline for his conduct. See Texas Lawyer report. The lawsuit is filed as Suit No. 18-CV-817 in the Western District.

Many plaintiffs complain they are treated differently than other co-workers in some way. It might be about pay, promotion opportunities, etc. In one case, two plaintiffs said they were treated differently than other peers and that they were subjected to derogatory comments about Italians. In Cicalese v. University of Texas Medical Branch, No. 17-CV-0067, 2018 US Dist. LEXIS 46796 (S.D. Tex. 3/22/2018), the employer filed a Rule 12(b)(6) motion to dismiss. Rule 12(b)(6) addresses the failure to state a claim. Dr. Cicalese was born in Italy. He and his wife both worked for UTMB. His wife, Dr. Rastellini, was also born in Italy and was also a medical doctor. Things went well for the couple the first five years at UTMB. But, when a new dean started working there, things went downhill. The doctors say the new dean targeted them based on their heritage as Italians. The dean, said the plaintiffs, when he first met them, told them they should go back to Italy. He made additional negative comments about Italians.

The dean removed some positions from the two doctors. But, it appears the adverse personnel action which forms the basis of their suit is denial of tenure.

The Plaintiffs’ allegations were not specific. Dr. Rastellini alleged other, unnamed comparators were granted tenure with lesser credentials. But, she did not name them. She did not describe what those lesser credentials looked like. She did name others, but not in the context of comparative employees. The court resurrected the so-called four-part test found in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996), regarding so-called stray remarks. I previously discussed the stray remarks doctrine here regarding a 2015 Fifth Circuit decision. In that decision in Goudeau v. National Oilwell Varco, LP,793 F.3d 470 (5th Cir. 2-15), the court tried to clear up the confusion surrounding the stray remarks doctrine. The point of the 2015 decision was that a remark which shows discriminatory bias on its face has some value, even if they may be old. Even older remarks can serve as evidence of pretext, said the court in 2015.

But in Cicalese, the court relied on Brown to find the remarks too remote in time. But, as the Goudeau court explained, even remarks that might be old in time, provide some relevance to the circumstantial evidence case. They might well be relevant to help show pretext. “In a circumstantial case like this one, in which the discriminatory remarks are just one ingredient in the overall evidentiary mix, we consider the remarks under a “more flexible” standard.” Goodeau, at p. 475.

But, the Southern District (Hanks) made no reference to Goudeau. It did not discuss a more flexible standard. Instead, it relied on the old strict formula that makes little sense. The complaint apparently did not mention the time period in which the three purported remarks were made. But, if a decision-maker makes a remark which shows bias on its face, such a remark would hold some relevance for a very long time period. This decision does appear to be oriented toward reaching a particular result. See the Cicalese decision here.

Sexual harassment cases are complicated. The legal standard is that harassment by co-workers which is “severe or pervasive” will constitute a hostile work environment – if of course, management knows about the harassment and does nothing. But, what happens when the harasser is a customer? If an employer is aware of the harassment and does nothing, the employer is liable. In Gardner v. CLC of Pascagoula, LLC, No. 17-60052 (5th Cir. 6/29/2018), we see an additional twist. What happens when the person doing the harassment is a patient suffering from dementia?

The plaintiff was employed as a certified nursing assistant at an assisted living facility. She had years of experience in the field. Perhaps, that is why she was assigned to J.S., a difficult patient. J.S. was elderly. He suffered from dimentia. He would grope the female employees and become violent when they would resist. One day, he tried to grope Ms. Gardner. She resisted. He struck her breast. He struck her again, as they tried to move him. She may or may not have swung toward him deliberately missing him. She walked out, allegedly saying she was the wrong skin color. The other white nurse apparently was able to calm down J.S.

Ms. Gardner went out on worker’s compensation leave and was fired when she returned to work. The employer said her comment was racist and that she tried to hit J.S. The CNA filed suit. The employer was granted summary judgment.

There was no question J.S. frequently tried to grope women, on their thighs, breast, buttocks and their private areas. He did this daily. The appellate court found this was “severe or pervasive” harassment. J.S. was eventually moved to an all-male facility with lock-down security.

Ms. Gardner might have still lost her claim, but her supervisors were derisive toward her complaints about J.S. One of them told her to put on her big girl pants. And, as the court pointed out, another element of a sexual harassment claim is that management takes no action to stop the harassment. The court faulted management for doing nothing to even try to stop the harassment. After J.S. had punched her three times, she asked to be transferred. Management told her no. Management clearly was not even trying to fix the problem. The plaintiff presented evidence regarding what other nursing facilities had done where she worked. They would require two or more aids, try to use medications to control behavior, or simply transfer the patient to some other facility. CLC took none of steps. And, of course, long after firing Ms. Gardner, CLC did finally transfer J.S. out of the facility.

The court recognized that there may be times when it is simply not physically possible to keep an ill patient from acting aggressively. But, there were things the employer could have done this time, in this case. But, it did none of those. The Fifth Circuit reversed the grant of summary judgment. See the decisions here.

A frequent issue in discrimination cases concerns when does the time for filing a complaint start? The answer can be complicated when a teacher, for example, is notified her contract will not be renewed the next school year. Do her six months to file start when she is told she will not be re-hired, or does it start at the end of the school year, when the decision takes effect? In Reyes v. San Felipe Del Rio Consolidated ISD, No. 14-17-00488, 2018 WL 1176487 (Tex.App. San Antonio 3/7/2018), the Court said the time to file started when the school district board told the teacher it had accepted the Superintendent’s proposal to terminate her employment.

Situations involving public school teachers are particularly confusing, because they are entitled to a hearing before the school board. Before a teacher’s termination becomes final, she can ask for a hearing before the school board. Ms. Reyes had such a hearing. She lost, as do most teachers. She was the told by letter dated Jan. 18, 2012 that her employment would be terminated. According to the letter, her employment was terminated effective Jan. 11, 2012. She then filed her charge of discrimination on May 23, 2012. She later filed suit. The district filed a plea to the jurisdiction, which is comparable to a motion to dismiss. It is based on the pleadings. The district argued that she had missed her deadline to file her charge. The district argued that her deadline started not in January, 2012, but in August, 2011 whene was first told the board had accepted the Superintendent’s recommendation that she be terminated.

The court looked at the Texas Education Code which explains the appeal process for public school teachers. The court found that under the Texas Commission on Human Rights Act, Tex. Lab.C. Sec. 21.202, the key event occurred when a decision was made, not when that decision took effect. The focus of the statute, said the court, is on the unlawful decision. So, her six months started in August, 2011, not in January, 2012. And, the court affirmed the dismissal of her case. See the decision here.

Ouch. The plaintiff made a rational decision to look to the result of her hearing before the school board. And, she lost because she relied on the wrong event. She might have the possibility of filing in federal court. But, because she filed her charge some ten months after August, 2011, that possibility would also would be problematic.

Well, the Supreme Court disagreed with me. But, only by a 5-4 vote. The Supreme Court ruled in favor of the President’s travel ban and rejected the appeal of the state of Hawaii. See the opinion in Trump v. Hawaii, No. 17-965 (6/26/2018) here. I previously wrote about that travel ban and its apparent religious bias here and here. The Supreme Court found that the President had broad authority to restrict immigration. And, this was after all the third version, the one the President referred to as a “watered down” version.

Chief Justice Roberts wrote the majority opinion. The President relied on 8 USC Sec. 1182(f), which allows the President broad authority to restrict immigration. Justice Roberts noted that the Proclamation implementing the travel ban is 12 pages long. It provided detailed reasons for the exclusions it sought.

Regarding the allegation that the executive order sought to exclude Muslims, the court noted that the Constitution provides that the government shall take no measure respecting the establishment of a religion. The court noted the many statements by Candidate and President Trump attacking the Muslim faith. In his first week as President, he referred to the first version of the ban as the “Muslim ban.” When the current immigration ban was implemented, he said it was “watered down” and that he wanted something stronger. Justice Roberts then recounted a long history, starting with George Washington, of presidents espousing religious tolerance and freedom. The Justice was clearly calling the current President to a higher standard than to espouse “Muslim bans.”

But, the court would not go so far as to assign bias to the executive order itself. Wearing blinders a bit, the Justice claimed the executive order itself is neutral in regard to the Muslim faith. Of coarse, that conclusion strikes me as naive. The court chose to ignore the President’s own stated bias in effecting this travel ban.

Justice Kennedy issued a concurring opinion, simply to remind the Prudent that he, like all federal officials, took an oath to defend and support the Constitution. Without naming Pres. Trump by name, he was clearly warning the President that he must adhere to the principle of the Constitution even in regard to travel restrictions.

Four justices dissented. This was a close vote. But, the vote to watch belongs to Justice Kennedy. He is the swing vote. He supported the President’s executive order, this time. But, he sent a warning to the executive branch. I am doubtful the President will notice. But, his lawyers will.

 

In Myles v. UT Health Science Center at San Antonio, No. 17-00871-XR, 2018 US Dist. LEXIS 5080 (W.D. Tex.), we see an instance in which the state employee successfully sued the state employer for a violation of the Family Medical Leave Act. Normally, a state employer is immune to a suit based on the FMLA, if the allegation is the employee had to stay home to care for herself. The state employer can simply cite its Eleventh Amendment immunity, and the lawsuit would end. But, in this case, the employee also sued the individual managers who were responsible for her termination.

Loretta Myles worked for UTHSC for many years, eventually rising to the manager level in the Human Resources department in 2009. In 2015, she requested FMLA leave to care for her ill husband. He suffered from prostrate cancer. But, Plaintiff’s supervisor, Ann Gaeke told her not to use FMLA leave. At one point, Ms. Gaeke warned Ms. Myles she should start looking for another job. The Plaintiff then took several weeks leave, saying she needed a break from harassment by her supervisor. On her first day back at work, Ms. Gaeke presented the employee with written discipline. Three days later, she was fired.

At the outset, the employer submitted a motion to dismisses citing Eleventh Amendment immunity. The Agency also argued that the two named defendants, Ann Gaeke and Heather Kobbe, are not “employers” as defined in the FMLA. But, the district court pointed to caselaw which did find that “employer” could include a public employee. Looking at Ms. Myles’ leave request as “self-care,” the court rightly noted that the Supreme Court has held that state employees cannot sue the state under the FMLA for taking care of oneself. But, the district court noted that Ms. Gaeke took sufficient actions against the plaintiff that her actions were in controversy. This was more than a supervisor simply carrying out state mandated requirements.

In its reply brief, the state raised the issue of qualified immunity regarding Ms. Gaeke. But, accepting the Plaintiff’s allegations as true, as the court must, the plaintiff has shown sufficient facts to indicate Ms. Gaeke violated clear statutory rights. Therefore, qualified immunity does not apply.

The Eleventh Circuit recently overturned summary judgment in a discrimination case. In Vinson v. Koch Foods, No. 17-10075 (11th Cir. 5/23/2018), the plaintiff sued for discrimination based on her national origin, Puerto Rican and based on race. She had worked for the employer a couple of years in Human Resources as a clerk and as a translator.  Ms. Vinson and two white co-workers took time off to visit a sick co-worker in the hospital. All three workers were placed on suspension when they returned to work. Of the three women, only Ms. Vinson’s duties were changed dramatically afterward. The plaintiff was required to work on the production line, processing chickens and operating machinery. Another Puerto Rican woman filled her job in HR. Later, Ms. Vinson was fired. The explanation varied. Some said her position was eliminated. Some said she was not producing enough.

The lower court granted summary judgment remarkably in part because Ms. Vinson did not mind being on the production line. She received a raise. But, as the Eleventh Circuit noted, her subjective view of the job change is not controlling. That she received a pay raise one month before being fired does not remove the adverse personnel action.

Her new duties included pulling guts from chicken carcasses, sawing chicken carcasses, hanging dead chickens on shackles, cutting and removing damaged meat from chicken carcasses, using sealing machines for packaging, and weighing boxes of meat. This was a major change in her duties. Too, the new job did not exist on any organizational chart for the employer. She had no job description. The job did not exist at other plants. Her supervisor did not know what she was supposed to be doing on the production floor. A jury could conclude, said the court, that the job was created just for Ms. Vinson.

Regarding the termination, the plaintiff presented a mixed motive case for the termination. Among the reasons for the summary judgment was that Ms. Vinson did not discredit the employer’s reasons for firing the woman. This amounted to a requirement that the plaintiff show pretext, said the court. But, this is a mixed motive case, in which the standard is a motivating factor. That is, the standard is whether the improper motive played a motivating role in the decision. So, the plaintiff did not need to show pretext. She only needed to show that there was genuine issue of fact regarding whether race or national origin was one motivating factor in the decision. Even so, the plaintiff did present evidence of pretext. The supervisors’ accounts of the termination did not match.

The lower court also found that the plaintiff presented no evidence that race or national origin played a role in the decision to terminate. But, a union supervisor expressly said he had observed Ms. Vinson’s supervisor disciplining Hispanics more harshly than white workers. The court noted that Ms. Vinson was replaced by another Puerto Rican female. But, that in itself does not show a lack of racial or national origin motive. The court reversed summary judgment regarding this claim. See the decision here.

Plaintiffs in employment cases often contend they are paid less than other, similarly situated co-workers. The Defendant then argues no, the plaintiff does not truly know that. Many times, the court will side with the employer and find that the employee is relying on speculation when s/he claims to “know.” Since, many plaintiffs are relying on hearsay when they make that sort of a claim. They often rely on water cooler talk.

In Sims v. Wells Fargo Bank, N.A., No. H-16-3212, 2018 U.S. Distilled. LEXIS 19896 (S.D. Tex. 2018), the court sided with the employee. Rochelle Sims was an African-American branch manager. A male business banking specialist transferred into Ms. Sims’ branch. In reviewing his performance, the plaintiff realized the male subordinate was paid more than she was. She did some research and saw that other male, non-African-American  branch managers were paid more than she was.

Ms. Sims spoke with HR and her supervisor about the pay gap. Her supervisor told her she should step down from the manager position. If not, Wells Fargo would “eat her lunch.” The plaintiff did that and transferred to a different branch. Soon, the male business banking specialist who had come into her old branch was promoted to branch manager. Ms. Sims filed a complaint with he EEOC and filed suit. The employer moved for summary judgment. Wells Fargo argued that Ms. Sim’s claim that she had been paid less than male, non-African-American branch managers had been based on speculation.

The court, however, noted that the employer relied on a conclusory assertion in claiming Sims was not paid more than her counter-parts. The bank offered no evidence, said the court. It relied on inadmissible hearsay to claim her pay was comparable to her male counter-parts. So, it denied summary judgment on the plaintiff’s claim regarding a pay gap. See the decision here.

In a remarkable decision, the Fifth Circuit affirmed the grant of a 12(b)(6) motion to dismiss. In Meadows v. City of Crowley, No. 10752 (5th Cir. 5/3/2018), the plaintiff submitted a 36 page complaint detailing how an African-American police officer was passed for promotion five times. On appeal, the plaintiff alleged that the district court had used an evidentiary standard, not a pleading standard. That is, the plaintiff argued that the district court required the employee to make out a prima facie case to avoid dismissal. The majority opinion said the plaintiff needed to plead sufficient facts to avoid dismissal, regardless of the existence of evidence for each element of the prima facie case. In a footnote, the majority opinion took issue with the dissent, saying the employee did not always surpass the qualifications of other employees when she was passed over.

The majority opinion does not explain how a court can look at facts supporting the prima facie elements without actually discussing the prima facie elements themselves.

The rejoinder by the majority, which included the new Judge Ho, is concerning. A motion to dismiss should be based on possibilities in the facts, not certainties. If the applicant even occasionally had better credentials than her rivals, that does suggest the dismissal is not proper. A motion to dismiss should address pleadings, not the merits. In his dissent, Judge Graves notes that the lower court clearly applied the wrong standard for a 12(b)(6) motion. In a footnote, the dissent noted that in Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), the Supreme Court unanimously held that a plaintiff does not need to satisfy the McDonnell Douglas test at the 12(b)(6) stage. Id. at 511 (rejecting the notion that “the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss”).  The applicant was turned down four times in a 1.5 year period. Each time, she was the only minority candidate. 

The majority opinion pointed to five applications. But, noted the dissent, that fifth application was removed in plaintiff’s amended complaint. The majority opinion relied on an application for promotion that was no longer part of the live pleadings. The majority opinion failed to consider the facts liberally in favor of the non-movant. See the opinion here.

In a recent decision, the Fifth Circuit overruled Judge Lynn Hughes, again. The Fifth Circuit reversed Judge Hughes’ grant of summary judgment on several claims. The claims started when Karen D’Onofrio left Vacations to Go, the largest seller of ocean-going cruises in the world. Karen was a sales representative for Vacations. After a couple of years with Vacations. Karen’s husband sustained an injury to his back. About that same time, Michael, her husband, decided he would purchase a franchise with OneCruise, a competitor of Vacations. Karen took some time off to care for Michael. While she was out, she attended a training for OneCruise. She had planned to service her customers while out on FMLA leave. But, she failed to respond to emails. Customers complained. So, Vacations moved her customers to in-house sales reps.

Vacations then erroneously sent an email to customers, including Michael, that Karen no longer worked for Vacations. She had in fact been locked out of her online customer accounts. Karen, believing she had been fired applied for unemployment benefits. After several months, Vacations emailed Karen asking when she would return to work. Karen replied that she would not return, because she thought she had been fired.

Karen sued Vacations in state court for FMLA violations and hostile work envfironment. Vacations counter-sued for breach of a non-compete agreement and added Michael as a defendant. Vacations also sued for fraud, conversion of confidential information, and tortious interference with existing and prospective business relations. The company also removed the suit to federal court and Judge Hughes. Karen moved to voluntarily dismiss her FMLA claims, which Vacations opposed. The district court denied her motion to dismiss. Michael moved to be dismissed form the case, which motion the judge never addressed. Judge Hughes stayed discovery, as he often does. Vacations then moved for summary judgment, which the district court granted.

On appeal, the Fifth Circuit first addressed the evidence for the motion for summary judgment. The employer’s affidavits, noted the appellate court, were conclusory. Various Vacations employees submitted affidavits that concluded Karen had a valid non-compete agreement in place and she had violated it. That was a legal conclusion, said the court. Employees also speculated as to the damages, and did not explain how they arrived at their assessment of the damages. The employees did not even claim to have firsthand knowledge of the damages. The plaintiff’s objections to the affidavits should have been sustained, said the court. They were not competent evidence for summary judgment.

The Fifth Circuit found the district court had granted summary judgment on Karen’s hostile work environment claim without giving her notice that such a claim was before the court. The distrioct court granted summary judgment as to her hostile work environment claim sue sponte from the bench.

The district court quashed discovery, but would allow discovery by specific order. There was no order in which Judge Hughes allowed Karen to conduct discovery as to her hostile work environment claim. With no discovery on the claim, she was not prepared when the court ruled from the bench that it would grant summary judgment as to her hostile work environment claim. The court reversed the granting of summary judgment as to Karen’s hostile work environment claim.

The appellate court did affirm summary judgment as to Karen’s FMLA claim. Vacations had given her a choice. She could work from home and service existing customers or she could take a straight FMLA leave with no work. She chose to work from home. That choice prevents any claim that Vacations interfered with her FMLA rights.

Regarding the breach of a non-compete agreement, the Fifth Circuit found the agreement to be overbroad. The agreement had no limits, which means it was, in effect an industry wide agreement. Texas law forbids industry wide non-compete agreements. It had no geographic limit and it applied to any job for any competitor. The agreement would apply not just to any other cruise line, but to any travel company. The non-compete agreement applied too broadly, said the Fifth Circuit. The Fifth Circuit remanded this claim back to the district court for proceedings to determine the geographic limits Karen worked and the customers she serviced. The court could not determine what the limitations of the non-compete agreement were without more information about to whom she sold the product.

Regarding Vacations’ other claims, the Fifth Circuit found there was substantial issue of fact, such that summary judgment was not appropriate. The district court also incredibly awarded attorney’s fees against the D’Onofrios in the amount of $174,000. The higher court reversed that award. Judge Hughes has been reversed yet again.

See the decision in D’Onofrio v. Vacation Publications, No. 16-20628 (4/23/2018) here.