Obesity is sometimes referred to as a growing epidemic. There is more obesity today. But, obesity in itself does not rise to the level of a disability, according to a recent Eighth Circuit Court of Appeals decision. In Morriss v. BNSF Railway Company, No. 14-3858 (8th Cir. 4/5/2016), the plaintiff was 5’10” and weighed 285 pounds. He was at one time “pre-diabetic,” but as of the time when he applied for a job with BNSF, he suffered from no particular diagnosis. Mr. Morriss had a body mass index of 40.9 for one physical exam and 40.4 at another physical exam. BNSF had a policy against hiring anyone for a safety position with a BMI greater than 40. The plaintiff lost on summary judgment at the district court level.

The plaintiff appealed on the grounds that he was regarded as having a disability. The Eighth Circuit disagreed. It said to qualify as a disability under the ADA, there must be a physical impairment that falls outside the normal range and that impairment occurs as a result of a physiological disorder. The plaintiff cited more recent cases based on the ADA Amendments Act that found there need be a physiological disorder only when the weight falls within the normal range. But, said the court, Congress did not change the definition of physical impairment when it amended the ADA. It did change the legal standard, but did not change the definition of physical impairment. And, that definition requires there be some underlying physiological disorder.

The court then found that the employer did not regard Plaintiff as having a disability. Instead, it regarded him as having physical characteristic. So, yes the employer could regard him as having a physical characteristic that could lead to future medical problems. See decision here. The Eighth Circuit joins the Second and Sixth Circuit in finding that obesity alone does not qualify as a disability under the ADA.

Regardless of this decision, as the population becomes heavier, I expect we will see more litigation over this issue.

Are college football players employees? The NLRB, at least on the regional level, said yes. See my prior post regarding that ruling here. In a similar case, one former college basketball player, Ed O’Bannon, sued the NCAA for using his name and image in marketing. The NCAA has long used the names and images of current and former players in marketing efforts. A lower court had found in favor of the former players. The district court had ordered deferred payments for current student athletes.

But, the Ninth Circuit Court of Appeals saw things differently. The higher court opinion said offering payments to students not related to education expenses would go too far. That would be a “quantum leap” over the current system which bases payments on education expenses. The higher court did agree that the NCAA rules are subject to anti-trust scrutiny, indicating future challenges are likely. See CBS news report.

In a recent ruling, the National Labor Relations Board has adopted a new standard regarding joint employers. Joint employers is a relatively new creation in the area of labor and employment law. Joint employers, as the name suggests, refers to separate employers both being employers of the same employee. Many years ago, I worked on a case in which a large office supply house contracted out its drivers to a third party. One day the drivers worked for Acme Office Supply. The next day, they worked for Speedy Delivery Service. Based on many factors, the drivers were eventually found to be employees of both entities. Yet, both entities had completely different ownership structures.

That situation was more apparent. It was obvious the large office supply company was trying to avoid liability when it switched to a third party. And, since the large office supply business still actually supervised the drivers in every way, it was easy to see that Acme Office Supply was still an employer, at least in part. But, what if Speedy Delivery hired some of the old drivers, but not all? What if Speedy Delivery had its own human resources department? And, what if Acme had some employees on-site, but so did Speedy Delivery? That is much like the case in Browning-Ferris Industries, 362 NLRB 186 (8/27/2015). BFI operated a recycling center. BFI hired and supervised the employees who worked outside the center. But, to perform the functions of sorting and cleaning the items inside the center, BFI contracted with Leadpoint Business Services. The chief Leadpoint person reports to his corporate office in Arizona.

The Board noted that the common law test for joint employers up to now has focused on control. Who controls the employee? If both entities control, then both entities are employers. The Board then looked to the test for independent contractors, which does look at who may control the employee, not necessarily who actually does control the employee. There was some evidence that BFI exercised control over some Leadpoint employees. But, the Regional Director found these instances were too infrequent to establish control. The national level Board, however, focused not on actual control but on the degree to which the second entity could control. So, the Board by a 3-2 vote, decided that no longer will it be necessary to show that the second entity must actually exercise that authority which it possesses over the employee. Browning-Ferris, at p. 15-16 (slip opinion).

The Board then noted that BFI though its agreement with Leadpoint, possessed “significant” control over who Leadpoint hired. Although BFI did not participate in Leadpoint’s day-to-day hiring decisions, it “codetermined” the outcome of that process by imposing specific conditions on Leadpoint’s ability to make hiring decisions. Even after Leadpoint has determined that an applicant meets the required qualifications, BFI still retains the authority to reject that employee “for any or no reason.” BFI retained the authority to “discontinue” any of the personnel assigned by Leadpoint. Two BFI managers testified that BFI has never discontinued any employee or has ever been involved in discipline. But, said the Board, two such incidents occurred in which BFI requested the immediate dismissal of two workers.

So, the Board determined that BFI was mis-leading. Prevarication to a tribunal always leads to problems for that entity.

The Board also found that BFI exercised indirect control over the speed and methods of Leadpoint’s work. The speed of the conveyor belts has been a source of constant tension between BFI and Leadpoint. Apparently on their own, BFI personnel have coached Leadpoint personnel on how to work smarter, faster – with no apparent involvement of Leadpoint managers. Since BFI retained “ultimate control” over the sorting and sifting lines, the Board found it difficult to see how Leadpoint could bargain with a union over issues involving work speed and breaks. BFI also assigned work positions, and assigned specific tasks that need to be completed. It dictated the number of workers needed and the timing of the work shifts.

Regarding wages, BFI played a significant role in the rates of pay and how the Leadpoint workers were paid. Under the terms of the agreement, Leadpoint may not pay its employees more than BFI pays its employees.

So, yes, this decision is possibly far-reaching. The standard for many principles of employment and contract law start with NLRB decisions. If the NLRB finds that indirect control is “control” for purposes of the National Labor Relations Act, then that certainly could spread to other employment statutes. The other day, I heard one reporter say this could affect franchises and their corporate headquarters. Yes, indeed. If McDonald’s requires its franchisees to establish certain work schedules, pay certain wages and even positions the workers in the work area, then that would certainly make them a joint employer of the local McDonald’s employees. See decision here.

This is a 3-2 decision. That means when the next President comes into office and points his two new members of the board, this decision could change. But, until then, we have a very new standard that will change the outcome of many cases. This decision is a game;changer.


In Burton v. Freescale Semiconductor Inc. and Manpower of Texas, LP, No. 14-50944 (5th Cir. 8/10/2015), the Fifth Circuit overruled the district court’s summary judgment. The court addressed a frequent issue, who is responsible for the termination of temporary employees? But, in so doing, the higher court also addressed a more frequent issue, how to apply the summary judgment standard.

Nicole Burton was placed at Freescale by Manpower, a temporary employment agency. Freescale relies on temps. It increases hiring in good times and scales back in the slow times. Ms. Burton received good performance evaluations in 2009 and 2010. In 2011, she broke a wafer. She was counseled for that error. In March, she inhaled chemical fumes at work. She sought  medical treatment. Her health problems continued and she filed a worker’s compensation claim in June. About two weeks after the filing, Freescale decided to fire her. Supposedly, an incident in late June when she was allegedly using the internet was the final straw. But, the evidence was ambiguous regarding whether the supervisor actually knew about the internet incident when he decided to terminate.

The decision to terminate was made in late June. But, the plaintiff was not terminated until late July. In the meantime, Freescale hired and trained her replacement. So, in that one month period, Freescale started collecting documentation of performance problems. Manpower asked for any such documentation. Manpower recommended against termination due to the small amount of documentation and the recent filing of her worker’s compensation complaint. The day after Manpower’s initial reluctance, representatives from Manpower and Freescale, including the supervisor and HR persons, conducted a telephone conference. They established a “communication plan” regarding her termination. They decided Ms. Burton would be fired for four separate incidents, at least two of which occurred after the decision to terminate had already been made. Ms. Burton was then told she was fired. She sued under the ADA. She claimed she was fired because of she was perceived as having a disability and because she filed a worker’s compensation claim.

The district court granted summary judgment. Unlike the court of appeals, the district court accepted Freescale’s accusations at face value with little discussion. The lower court agreed that at least one incident did occur post-termination, but the court simply pointed to “additional” transgressions which were not otherwise included as basis for the termination. The court seemed to think that showing some of the employer’s reasons, or even one reason, were false did not matter if the employer had “fall back” reasons for termination. Order re MSJ, p. 23. The district court also made the remarkable factual conclusion that the decision-maker’s testimony was not inconsistent. The court accorded no inferences in favor of the plaintiff when the decision maker could not recall when he first learned about the internet incident. The burden is on the emplayer to articulate its reasons for termination. If it cannot do so, there are many cases which would afford the plaintiff favorable inferences. Yet, the district court here afforded the plaintiff no such inferences when the employer’s story sputtered. The district court, it seems, did draw factual inferences against the plaintiff.

The plaintiff pointed to deposition testimony regarding the termination, when the supervisor changed her answer completely. At first she said she did not know who first recommended termination. Soon after, she said she was the one who first recommended termination. The plaintiff pointed to that very substantial change as indicating doubts about her testimony. No, said the lower court, the supervisor was simply trying to get her answer straight. But, of course, if the supervisor has trouble getting her story straight, that suggests a trial should be held. “Trying” to get her story straight is the very definition of shaky testimony. Summary judgment is not appropriate when there are questions about such evidence.

The higher court disagreed with the trial court. It found that the district court credited some testimony, while discounting other testimony. It noted that the district court flat ignored the supervisor changing her answer. This was in contravention of the decision a year ago in Tolan v. Cotton, 134 S.Ct. 1861 (2014). Burton, at p. 20 (slip opinion).

The district court even defended the managers, saying they were deposed two years after the incidents in question. “A person cannot be expected to be able to recall every single detail from two-and-one half years prior.” Order re MSJ, p. 26. But, really, that is why summary judgment should be denied. Summary judgment means “quick” judgment. A quick judgment should not be granted if there are doubts about the evidence. That is the point of summary judgment.

But, even so, the higher court seemed annoyed a bit with the language used by the employer’s attorney. At one point discussing pretext, the court noted that Freescale conceded that there was some evidence showing that the Freescale supervisor was aware of the medical treatment. The court noted the truth of that statement and remarked  that it just “scratches” the surface. Burton, p. 11 (slip opinion). Later, in a footnote, the court took a rare direct swipe at the language used by Freescale’s attorney.

  “Disparaging the evidence is a theme throughout Freescale’s brief. In addition to labelling Burton’s accounts of deposition testimony as ‘creative slicing and dicing’ and writing off the testimony regarding the defendants’ policies as ‘generic.’ Freescale also complained that ‘Burton attempts to pick apart verbiage used in Manpower’s EEOC Position Statement.’ We do not find this sort of dismissive bluster compelling in the slightest.”

Burton, p. 26 n.16 (slip opinion). That is judge speak indicating the judges were annoyed by the over-the-top language used by the attorney. Courts of appeals prefer more thoughtful analysis.

The higher court would not agree with the lower court that the employer simply provided “additional” reasons to the EEOC. The stories provided to the EEOC and provided to the court do differ regarding the reasons for the termination. The employers “peddled” the July reasons for termination only until discovery revealed the decision had already been made in June, noted the court. The higher court did what the lower court would not, it looked behind the defenses offered by the employer and found they did not hold up.

Regarding the joint employer issue, the court rightly noted that the critical factor is control of the employee. Evidence indicated Freescale had the greater degree of control by far. Manpower then argued that it was not involved in the decision, so it should be granted summary judgment. The court noted, however, that there was evidence that Manpower knew this termination was questionable. The temporary agency should have done more than simply acquiesce in the decision. And, said the higher court, that the placement agency “had no choice” contractually but to comply with a discriminatory decision is no defense at all. Its contract with Freescale also required it to follow all state and federal laws, including the Americans with Disabilities Act.

Regarding the “perceived as disabled” issue, the court explained that the plaintiff only needs to show that she was perceived as impaired and that the employer discriminated against her on that basis. Freescale urged that it was not aware of any disability. The court commented simply that there was no shortage of contrary evidence. See the decision here.


With an aging population, we are already seeing more medical care issues in the work place. There will be more, not fewer, requests for accommodation. Since the ADA was amended effective in 2009, we are just now seeing the increase in requests for accommodation cases. Some folks just get the whole request for accommodation thing wrong. I am as guilty as anyone. A few years ago, I prosecuted a case alleging that failure to accommodate an older person whose doctor prescribed “reduce stress.” As I learned the hard way, that sort of accommodation is too ambiguous to enforce. Judges sympathize with employers trying to navigate confusing regulations.

We see some of this ambiguity in a case in which the employee was diagnosed with edema, also known as dropsy. Edema involves swelling of the extremities. The treatment involves medication which requires frequent urination. Jeffrey Gordon worked as a retail coverage merchandiser (RCM). His job was to drive around town stopping at various grocery stores to track sales, promote certain products, and talk to store managers about the product. In October, Plaintiff Gordon told his boss he had been diagnosed with edema and that he would be seeking alternative employment. He asked to be transferred to an office position, to allow greater access to bathroom facilities. The court granted summary judgment in Mr. Gordon’s case. But, the court does not acknowledge this alleged request for accommodation in October, 2012. See Gordon v. Acosta Sales and Marketing, Inc., No. 13-CV-662 (W.D. Tex. 2015). Instead, in its order granting the motion for summary judge, the court simply finds that the plaintiff sought reduced hours in October, 1012 and informed his boss that he would seek alternative employment within Acosta Sales. The court does not appear to acknowledge that with the change in employment would come greater access to a bathroom.  Gordon, 12/22/2014 Order, p. 2-3.

Acosta Sales then hired someone to replace Mr. Gordon. In its response to the MSJ, the Plaintiff complained that this was part of an effort to force him to quit. But, the court disagreed. The judge found the employer was simply complying with the request of Kraft Foods that its RCM focus on only its products. In response to the email requesting fewer hours, the boss approached Mr. Gordon at a store and publicly berated him, “I am your f—ing supervisor. I can tell you to do whatever I want!” The plaintiff complained to the supervisor’s supervisor. At that meeting, Mr. Gordon said he wanted an accommodation of being moved away from his supervisor. Acosta Sales did investigate the incident. It disciplined the supervisor. But, it did not move Mr. Gordon away from the supervisor. Instead, it simply reassured him that the supervisor would not retaliate against him.

The court seemed to find it significant that the supervisor did not mention Mr. Gordon’s disability in his rant.The court also glossed over the Plaintiff’s allegation that the email was actually a complaint that he was being replaced regarding the Kraft foods – in addition to complaining that his hours were being reduced..

In its response to the MSJ, the Plaintiff argued that he suffered additional retaliation after the meeting with the Human Resources and the higher supervisor. But, the court found there was no real reprisal and that in his deposition, the plaintiff essentially admitted there was no genuine reprisal after the meeting with HR.

During the meeting with HR and the chain-of-command, the higher supervisor accused Mr. Gordon of lying and not disclosing his disability when he was hired. He had been hired just a month before October, 2012. Mr. Gordon took offense and walked out of the meeting. The Plaintiff did not address that allegation in its response. It is quite serious for any employee to walk out of a meeting with management. This is particularly so when asking for an accommodation. If the employee fails to cooperate in a discussion about accommodation, then the employer is relieved of the duty to provide any accommodation.

Later, the plaintiff submitted additional information from his doctor expressing the need for more frequent bathroom breaks. The employer responded that it would allow him more frequent breaks while driving around. The employee felt that was not enough. He believed that he was given a “Hobson’s chose” of his health or his job. So, he quit in March, 2013. In its response, the plaintiff alleged “constructive termination,” meaning that he was forced to quit. So, apparently, instead of responding to Acosta’s email regarding more frequent bathroom breaks and explaining why that would not work, the plaintiff simply quit. He said he had lost faith in the employer’s “system. ” Order, p. 5.

The burden to show work conditions are so bad that a person must quit is very high, indeed. Rarely does the Fifth Circuit find a situation so bad that a person was justified in quitting. Any plaintiff who alleges constructive termination will be toiling uphill. But, the bigger problem with this case is the poorly defined accommodation of “more frequent” bathroom breaks. The employer can request more information if it does not understand a particular request. But, here, here was little discussion. The employee walked out of one meeting regarding his accommodation. Mr. Gordon then did not respond to an email offering one alleged accommodation. At least in its response to MSJ, the plaintiff has not explained specifically how many more bathroom breaks he needed, why only an inside office job would offer the right amount of bathroom breaks, or why the accommodation offered by the employer, more frequent breaks, would not suffice.

Employers have a burden, too. They are generally not medical care providers. “More frequent” can mean one thing to one person and something entirely different to someone else. The court found that Acosta did offer a reasonable accommodation as a matter of law.

The court could and should have construed the facts more in favor of the non-movant. I find it remarkable that the judge expects the supervisor to include a reference to the disability during his yelling session, in order to connect the rant to this disability. This is summary judgment, after all, not an actual trial.

But, the request for accommodation is ambiguous. This request is vague, not too different from my old case of “reduce stress.” Requests do need to be specific, especially if the “requester” ends the discussion early.



Gov. Abbott has asked the Texas State Guard to “monitor” the training known as Jade Helm 15. I previously wrote about that silly request here. I was wrong in describing the entity as the Texas National Guard. The Governor actually asked the “Texas State Guard” to watch the Special Forces soldiers traipse around conducting their training exercise. The Texas State Guard is a different entity than the National Guard. The State Guard is a voluntary position. They undergo very limited training. But, many former service members serve in the State Guard. I knew or saw a few State Guard members when I served in the Texas National Guard. My impression then was that they were basically adult boy scouts. But, now I know better. Some of them do good work. Others are slightly more effective than boy scouts.

The Governor made a strange request. Fortunately, not much is required. The State Guard members merely need to attend briefings that would already occur and then report back to the Governor. See San Antonio Express News report.

The exercise started yesterday. Another organization, Counter Jade Helm, has taken it upon itself to also monitor Jade Helm. One of the CJH volunteers followed a truck in the town of Bastrop which he thought was military. The truck turned out to be a civilian water truck. See Stars and Stripes report. That is such a relief…..

If a lawyer said what Ken Paxton said about disregarding A Supreme Court decision, then that lawyer would indeed face disbarment. So, it is perhaps not surprising that some 150 Texas lawyers have threatened to file a complaint about the Texas Attorney General. Ken Paxton issued legal guidance soon after the Supreme Court decision finding that gay marriages enjoyed protection under the U.S. Constitution. The day after the decision, the AG issued guidance that County Clerks could choose to ignore the decision if it violated their religious beliefs. But, warned, the AG, such County Clerks could face litigation if they refused to issue marriage licenses to gay persons.

Some 150 Texas lawyers have indicated they would file a complaint with the Texas bar about his unlawful legal guidance. See Texas Tribune report. The letter mentions the oath we lawyers take to uphold the U.S. Constitution.

Too, one must question the advice that County Clerks can even have religious beliefs. Acting as officers of the state or local government, much of what an official can do is limited. The Fourteenth Amendment applies the terms of the U.S. Constitution to all local and state government officials. State and local officials are the government for purposes of the U.S. Constitution. One can only assume Mr. Paxton’s advice was more political than legal.

According to Donald Trump, many Mexican immigrants are rapists. He defended his comments later. See Business insider report. They also bring drugs and crime. But, some, he says, are good people. All I can say his experience with Mexican immigrants is far different than mine.

Surprisingly, Sen. Ted Cruz supported Mr. Trump in making his comments. Sen. Cruz focused on the need to tighten the nation’s borders. But, other candidates, including Rick Perry and Jeb Bush have criticized Mr. Trump for the evident racism of his comments.

Well, the state Senate passed a measure that would restrict Hazlewood recipients to veterans who served six years or longer. That means the average veteran who does his or her 3 years and leaves would not qualify. And, the benefits must be used within 15 years of service, according to the Senate version. That means many, perhaps most children of veterans will be too young to use the college benefits. The Hazlewood Act allows veterans to attend a state college free of tuition and some fees. The current act allows veterans to pass the benefit to his/her children if the veteran cannot use it. I previously wrote about this attack on the Hazlewood Act benefits here.

And, at about the same time as the Senate version, the state House passed a measure that would limit the credit hours to 60 hours, a big reduction from 150 hours. Both measures apply immediately, with no “grandfather clause” for veterans who have already left the service. So, either way, Texas veterans are kicked to the curb, because the state could not get its financial estimates straight. All this despite the fact that the state has a large surplus and will cut taxes substantially, this year. See Texas Tribune report.

People lie in civil cases. They really do. Unlike what you see on TV, witnesses can usually lie in non-criminal cases and get away with it. Prosecutors just are not interested in going after folks who lie in a civil case. They have too many more serious cases to deal with. But, one woman in Houston learned that sometimes, the prosecutor will take notice when proving the lie is easy enough.

Amy Fisher lied for her employer in a wage lawsuit. The case went to court in federal court in Houston. A key issue was whether salespersons were outside sales or inside sales. If they were outside salespersons, they they would be exempt from overtime requirements. Ms. Fisher must have exaggerated some amount regarding the extent to which sales persons conducted sales outside. She was the only sales associate to testify at trial for Meritage Homes Corp. She apparently testified in deposition earlier the same day in which she testified at trial. The plaintiff was alleging that sales associates spend most of their time selling homes inside a model home. Ms. Fisher apparently disagreed. But, her testimony was shaky enough that the trial ended soon after she testified.

The Defendant had planned to call some six witnesses on the following day after Ms. Fisher testified. That would have been the seventh day of a lengthy class action trial. Yet, parties suddenly settled the next day without Meritage calling any of those six witnesses. See Lipnicki v. Meritage Homes Corp., No. 10-CV-605 (S.D. Tex. 11/18/2014). One can assume Ms. Fisher was caught in some pretty clear lies forcing the employer to settle much sooner than it had intended. Yes, those things do happen. But, catching a witness in a lie is so rare that it makes the news. See KSTAR news report. Whatever the evidence was against Amy Fisher, it must have been pretty clear for the U.S. Attorney to take notice.