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.

As often happens with serious injuries, the recovery period is hard to predict. In Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), Raymond Severson took his full 12 weeks of leave under the Family Medical Leave Act. He was addressing his serious back pain. On the last day of his leave, he went through back surgery. He asked for an additional 2-3 months of leave. The company said no and fired him when he did not return to work. The employee then sued for a violation of the Americans with Disabilities Act. Mr. Severson said the company failed to accommodate his need for time off.  Three months later, the plaintiff was cleared to return to work.

The employer was granted summary judgment. On appeal, the Seventh Circuit affirmed. Without any explanation, the court decided that Mr. Severson’s request was for “extended” leave. The court did not explain how it came to decide that 2-3 months was extended leave, as opposed to 6-7 months, or 9-10 months.

The court rightly noted that the ADA does not allow for extended leave. But, it did not explain why 3 months would constitute extended leave. The court found that leave involving “multiple” months would be too long. That period of time allows a person not to work, not help him work, said the court.

The Equal Employment Opportunity Commission filed an amicus brief. It argued that effective accommodation means reasonable accommodation. The Seventh Circuit disagreed, saying that the Supreme Court said in U.S. Airways v. Barnett, 535 US 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002), that reasonable accommodation does not require that accommodations be effective. In a confusing sentence, the court concluded that “effectiveness is a necessary but not sufficient condition for a reasonable accommodation under the ADA.” But, to be fair to the Seventh Circuit, the decision in Barnett is confusing. Justice Breyer seems to conflate accommodation with undue hardship. The Justice strains to explain that accommodation needs to be effective, which would render the use of the word “reasonable” superfluous.

In the end, the Seventh Circuit concluded that if the court read the ADA as the EEOC argued, then the ADA would become a medical leave statute. If employees are entitled to extended leave under the ADA, then the ADA becomes a medical leave statute, or an “open-ended” version of the FMLA. At this point, the court has abandoned legal scholarship and now relies on cliches. The court presents no evidence that Congress intended the ADA not to include medical leave. And, indeed, the language of the ADA indicates otherwise. See the decision here.

The question arrises in many discrimination cases how far back can the plaintiff go in presenting relevant evidence? Title VII itself provides that a complainant must file his/her complaint within 300 days of the act of discrimination. Can the plaintiff present evidence of harassing conduct before that 300 days started? Yes, of course. The theory of “continuing violation” has been around a long time.In Heath v. Board of Supervisors for Southern University, 850 F.3d 731 (5th Cir. 2017), Prof. Heath was a professor at Southern University. In her lawsuit, she alleged a male supervisor had harassed her for ten years before she field her complaint. in her lawsuit, the district court refused to allow evidence of harassment older than 300 days.

The court noted that in cases alleging hostile work environment, a plaintiff can generally present evidence of harassment older than 300 days, so long as one act of harassment does fall within the 300 day window. But, the lower court refused to treat Prof. Heath’s situation as continuing. Prof. Heath left the school on a sabbatical. So, said the lower court, harassment prior to the sabbatical could not be included in her lawsuit.

In looking at continuing violation, the lower court applied a three part test: 1) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; 2) whether the alleged acts are recurring or more in the nature of an isolated work assignment or incident; and 3) whether the act has the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights. The district court focused on the third factor when it granted the defendant’s motion for summary judgment.

But, this test was used by Fifth Circuit decisions prior to the decision in National R.R. Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Pre-Morgan caselaw noted that the third factor was the most important. The Morgan case make an important distinction. It distinguishes discrete acts of traditional discrimination from hostile work environment claims. The human dynamics of harassment by a co-worker are different from those of a supervisor. Claims based on traditional discrete acts of discrimination are not subject to the continuing violation theory. Claims based on hostile work environment are.

As the Heath court noted, a hostile work environment claim is one based on death by a thousand cuts, not by one discrete act. In a hostile work environment, no one act can be pointed to as the one “unlawful employment practice.”

More importantly, the decision in Morgan rejected the view of circuits like the Fifth Circuit that formerly held that “the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.” So, the Fifth Circuit recognized that the Fifth Circuit’s pre-Morgan test for the continuing violation doctrine was implicitly overruled to the extent prior cases held that the continuing violation doctrine does not apply when an employee was or should have been aware earlier of a duty to assert her rights. That the employee was on notice or not that an act of harassment gave rise to a valid claim is not relevant.

See the Fifth Circuit decision here.

Well, the San Antonio court of appeals recognized same sex harassment in Alamo Heights ISD v. Clark and now the Texas Supreme Court has overruled that decision. This has long been a difficult area of law for courts. In the federal court system, the Supreme Court reached a compromise of sorts. It recognized that harassment can be based on gender stereotypes, even if the harassers are not homosexual. See the decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). The Fourth Court of Appeals in Alamo Heights ISD v. Clark reached a similar result. The Fourth Court found there could be harassment under the state version of Title VII based on gender stereotypes that did not involve apparent homosexual conduct or desire.

I previously wrote about the Fourth Court’s decision here. As I noted then, the harassment by Coach Monterrubio included non-stop comments about Coach Clark’s buttocks and breasts. Coach Monterrubio discussed sexual intercourse frequently with Coach Clark and discussed her breasts almost daily. A second coach often joined in. The appeal concerns a plea to the jurisdiction. So, the issue is not whether Coach Clark can win her case, but whether she can simply advance a claim based on gender stereotyping. The Texas Supreme Court gets the last word and they say no, she cannot advance such a claim.

During the oral argument, Justice Guzman was troubled by the lack of obvious homosexual intent by Coach Monterrubio. Justice Guzman claims the jokes and bullying were not based on Coach Clark’s gender. The judge pointed out that Monterrubio’s remarks also suggested Coach Clark should be a stay-at-home mom where she could be “smug, wealthy and snotty.” But, it is disingenuous to argue that comments like these could not be linked to the plaintiff’s gender: “Wow, Coach, I think your boobs are going to pop out of your shirt!” Telling her that her thong underwear and the dimples on her buttocks were visible. And, upon receiving a candle from Coach Clark, Coach Monterrubio said she would make love next to her candle and think about Coach Clark. To claim these sorts of comments are not linked to her gender is a big stretch. This claim concerns a plea to the jurisdiction. The issue is not who wins at trial, but whether the plaintiff advance the claim.

The Texas Supreme Court rightly noted that courts which follow Oncale are divided regarding whether homosexual motive by the harasser is required. But, the Texas Supreme Court found it did not matter whether Coach Monterrubio was motivated by homosexual desire or not. The majority decision finds a paragraph in Oncale to provide two different methods of proof. Although, I read the same paragraph and do not see any sort of proscriptive injunction to lower courts. It is simply the Oncale court providing two possible examples of how a plaintiff could show same sex harassment under Title VII. They are examples, not rules.

The court is then troubled by the lack of any allegation on Coach Clark’s EEOC charge or in her lawsuit that Coach Monterrubio was motivated by homosexual desire. But, really, that was the point of Oncale, that a man could harass another man even though there was no homosexual desire on the part of either man. The Court claims that Oncale says a claim of homosexuality must be “credible.” But, the Oncale court was simply providing one example of how a person could allege same sex harassment and still be protected by Title VII. Indeed, in Oncale, there was no evidence or claim that the harassing men were homosexual. There was no evidence that the male victim was homosexual. Justice Guzman has found a requirement in Oncale that simply is not present.

Yet, there is ample evidence that the female harasser in Alamo Heights ISD v. Clark was focused on the victim’s gender, which is indeed a requirement of Oncale. Justice Guzman has completely mis-interpreted the decision on Oncale. The majority decision also fails to interpret the evidence in the light most favorable to the non-movant. It explicitly looks at the evidence in ways detrimental to her case. It looks for comments that do not suggest sexual motivation. In the end, this is yet another result-oriented decision from the Texas Supreme Court.

The majority decision is quite long, some 66 pages. Any decision that requires those many pages to make a point is stretching credulity. The majority decision devotes some 15 of those 66 pages to rebutting the dissent. See the majority decision here.

The minority decision makes a good point. If a male coach had said those same things to Coach Clark, there would be no doubt he was sexually harassing the young coach. But, because the harasser was female, the employer gets a pass. The dissent also noted that the majority decision fails to construe the facts in favor of the non-movant. It pointed to an incident in which Coach Monterrubio grabbed Clark’s buttocks during a photo shoot. That sort of incident does tend to show possible lesbian behavior. Yet, the majority decision dismissed it as “horseplay.” Justice Guzman drew conclusions when she should have simply allowed this created a factual issue. See the dissent here.

 

Incredibly, it appears the settlements concerning Bill O’Reilly and his sexual harassment required his victims to lie about the evidence. According to a CNN report, a settlement agreement with Andrea Mackris, a former Fox News producer, required her to lie even under oath by referring to the allegations as “counterfeit” or as “forgeries.” According to this same CNN report, the lawyer who claimed to represent Ms. Mackris switched sides in the midst of the negotiations for the settlement agreement and then represented Bill O’Reilly.

As Ms. Mackris’ current lawyer mentions, if true, that is a profoundly unethical step for any lawyer in any state. There is no situation in which it would be proper for a lawyer to switch sides during a lawsuit or during a negotiation. The ethical rules emphasize the appearance of impropriety. Even if the lawyer, Benedict Morelli, could offer some explanation for switching sides, changing sides would simply look improper.

These are serious legal allegations, the kind any lawyer would lose his license for. I am sure all these legal problems helped persuade the judge to allow three of Mr. O”Reilly’s settlement agreements to become public. Mr. O’Reilly asked the judge to seal the settlement agreements. But, the federal judge denied his motion. See CNN news report.

One of the many challenges with every employment case involves which judge hears the lawsuit. If the wrong judge is assigned to a given lawsuit, the chances  of prevailing diminish. Lauren Browning learned this when she filed a lawsuit in 2005 alleging she was discriminated against on the basis of her gender at Southwest Research Institute here in San Antonio, Texas. Dr. Browning was a scientist, the only female scientist in her department. She complained about discrimination in general and in regard to her pay. In response, she was threatened with firing and was told her travel reimbursement requests would be looked at very closely. The SWRI Administrator pounded his fist on her desk and accused her of abusing the travel rules at the Institute. Her supervisor kept a secret file on her. Her boss warned her not to go to HR about her pay issues, again. Dr. Browning quit. She filed suit a year later.

The employer moved for summary judgment. Magistrate Judge Primomo recommended granting the motion. In his Recommendation, he consistently construed the evidence in favor of the employer, not the employee. For example, he mentioned that Dr,. Browning’s supposed written complaints about discrimination did not clearly invoke discrimination. He never mentioned that she also complained verbally. His recommendation disregarded Plaintiff’s affidavit that she wrote on the back of one of her evaluations that she felt she was the victim of wage disparities based on her gender. Yet, the Magistrate did accept affidavit testimony from her superior. The magistrate was expecting a higher level of evidence from the plaintiff than from the defendant.

The Magistrate Judge discussed the plaintiff’s allegation that she was not promoted, while men with inferior qualifications were promoted. The Magistrate Judge concluded that the plaintiff claimed no supervisor “approached” her about seeking a promotion. The Magistrate was suggesting the plaintiff expected management to come to her about possible promotions, an obviously unrealistic expectation. But, the plaintiff’s claims involved much more than that. The plaintiff actually said there was no way for a scientist to learn of any promotion opportunity because the openings were not posted. Even if they were posted, there was no mechanism by which an employee could apply for given position. Again, the Magistrate Judge construed the available evidence against the employee.

The Magistrate Judge claimed the secret file on her could not have upset her, because it was secret. The Magistrate Judge never mentioned that keeping a secret file suggests illicit motive on the part of the supervisor. He was viewing the evidence in the light most favorable to the movant, not to the non-movant.

It did not help Dr. Browning’s case that she quit. After years of abusive treatment, Dr. Browning quit. That means in a lawsuit for Title VII discrimination, she must show she was forced to quit. Mag. Judge Primomo found the conditions were not so bad that she truly had to quit. In finding the conditions were not so bad, the Magistrate Judge relied on testimony from the management witnesses while disregarding Dr. Browning’s testimony.

The Magistrate even found an argument not advanced by the employer. The Magistrate claimed that having Dr. Browning interview her replacement was not humiliating because she did not yet know she would resign. Yet, there was no evidence in the record regarding when the plaintiff decided to resign. The Magistrate Judge was looking for evidence to help the employer, not the employee. Mag. Judge Primomo did the same thing in Heinsohn v. Carabin and Shaw, No. 14-CV-00094 (W.D.Tex.). In Heinsohn, Mag. Judge Primomo again came up with an argument that helped the employer which had not been advanced by the employer. A court should not enter a summary judgment for an employer based upon a reason not articulated by the employer but identified sua sponte by the district court. Thomas v. Eastman Kodak Co., 183 F.3d 38, 62 (1st Cir. 1999). The Magistrate Judge was trying to help the employer. Yet, at the summary judgment stage, his task was to construe evidence in favor of the employee.

Regarding summary judgment, the court must view the evidence in favor of the non-movant. The point of summary judgment is not to arrive at the truth, but to test the evidence and see whether there is enough evidence to justify a trial. A tie ought to go to the plaintiff. The Browning v. Southwest Research Institute case was complicated. The briefs for both sides exceeded 40 pages each. The plaintiff appealed to the appointed judge, Fred Biery. But, Judge Biery accepted the Magistrate’s finding with a very brief three page opinion. Judge Biery’s decision accepted the Recommendation with little discussion of the very complicated evidence.

The plaintiff then appealed to the Fifth Circuit in New Orleans. Dr. Browning drew a generally pro-employer judge, Edith Jones. Judge Jones issued a decision that does not discuss the evidence in any detail. Instead, the opinion simply refers to the plaintiffs’ “broad conclusory” allegations. The decision nitpicks the evidence to find objective facts supporting a failure to promote while disregarding the subjective use made of those apparent facts. For example, Dr. Browning is accused of making gratuitous negative comments about co-workers, as if that alone would justify a low evaluation. But, the better question is how were comparable male workers evaluated for same or similar offenses? Did male co-workers receive the same poor evaluations for a similar offense? That is the critical question. Judge Jones never asked that question. The Fifth Circuit decision looks at the incident in which her boss threatened her with termination when she complained about unequal pay and concludes they were simply discussing pay issues. Judge Jones minimized her evidence. Again, the judge construed the evidence not in favor of the employee, but in favor of the employer.

The Fifth Circuit decision never mentioned the incident in which the Administrator pounded his fist on Dr. Browning’s desk and said he would scrutinize Dr. Browning’s travel reimbursement requests. In the end, the Fifth Circuit opinion found nothing occurred other than the normal “petty annoyances” in any job. The Fifth Circuit and Judge Jones issued a result-oriented decision. Dr. Browning lost, again. See the Fifth Circuit opinion here.

So, in a case in which a woman complained about discrimination and was met with fist pounding and threats of termination, she could not even get a trial. The plaintiff appealed to the U.S. Supreme court. But, the Supreme Court accepts less than 1% of the appeal filed. Hers was not one of the lucky few.

Recently, Dr, Browning spoke with the Medium about her lawsuit experience. See Medium report here. Needless to say, she found the legal experience to be result oriented. Facts were less important than the fact that she was an employee and her case appeared in front of the wrong judges. Dr. Browning no longer works in her field. She was not able to find employment in the field she loved. The employer offered to settle her case, despite winning at the district court. Dr. Browning, however, declined to settle, since any settlement would require her to agree to a confidentiality clause. She insisted on her right to discuss what happened to her, both at her place of employment and in our civil justice system.