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.

Pres. Trump has dis-invited the Philadelphia Eagles to the White House. The reigning Super Bowl champs are typically invited to the White House. The President indicated it was because of a disagreement over whether to stand for the national anthem at football games. See CBS news report. The President issued a statement that said:

“They disagree with their president because he insists that they proudly stand for the National Anthem, hand on heart, in honor of the great men and women of our military and the people of our country,”

As a retired member of that great military, all I can say is that is what I believed when I was in first grade, too. In fact, I attended a military school in first grade and absolutely believed that standing straight and tall during the national anthem meant I was a good patriot. Now, I know better. I grew up during the 60’s and 70’s. I was perfectly okay with protests for the right reason. Now, a lifelong student of history, I can point to dozens of examples of great patriots who protested in favor of sincere beliefs. Many of those protests would later go on to be vindicated. But, I guess it is better politics to think like a first grader……

P.S. You have not lived until you have sung the national anthem in a war zone. It was a surreal experience. Singing it at football games now almost seems to trivialize the song.

In a recent decision, the Fifth Circuit addressed the turbulent area of non-solicitation agreements. Michelle Moffitt-Johnston used to work for GE Betz, Inc. GE Betz applied chemicals to fuel prior to export. Ms. Moffitt-Johnston signed a non-solicitation agreement with GE Betz during her employment, in which she agreed to not solicit Betz’ customers for up to 18 months after any resignation or termination. After some ten years with GE Betz, Ms. Moffitt-Johnston resigned in 2012. Soon after, she started working for AmSpec Services, a competitor of GE Betz.

GE Betz had installed monitoring software on its worker’s computers. Monitoring logs on Ms. Moffitt-Johnston’s computer showed suspicious activity in the weeks leading up to her resignation. Days after she had announced her departure, someone using her computer downloaded some 27,000 files to an external hard drive. The evidence regarding this download was disputed. Plaintiff Moffitt-Johnston said this was the GE Betz IT department doing back-up, while the employer claimed Ms. Moffitt-Johnston had use of the computer at the time.

GE Betz admitted it had no smoking gun evidence that Ms. Moffitt-Johnston had solicited customers. Instead, it relied on a “mosaic” of evidence. The “mosaic” essentially consisted of AmSpec’s success with the customers who were included in an email from Moffitt-Jounston to AmSpec on her last day at work. But, as the court noted, it is just as likely that those customers worked with AmSpec because their cost was lower. “Many” but not all of Moffitt-Johnston’s former clients went with AmSpec. The Fifth Circuit affirmed the grant of summary judgment on the mis-appropriation of trade secrets claim. For similar reasons, the court also affirmed summary judgment regarding GE Betz’ claim for tortious interference with prospective business relationships.

To recover her attorney fees, Ms. Moffitt-Johnston relied on the Texas Covenants not to Compete Act (Tex.Bus.&Com.C. Sec. 15.50). The act requires several factors before a court could award attorney’s fees to the employee. One of those factors involved whether the employer knew the non-solicitation agreement included no geographic limitation. The GE Betz non-solicitation agreement was silent regarding any geographic limits. And, Texas jurisprudence provides, said the Fifth Circuit, that a limit regarding one’s customer base is reasonable – even if no geographic limit is specified. So, found the appellate court, it was not clear that the employer knew its non-solicitation agreement had no geographic limit. The Fifth Circuit then agreed the employee was not entitled to recover her attorney fees. See the decision in GE Betz, Inc. v. Moffitt-Johnston; AmSpec Services, LLC, No. 15-20008 (5th Cir. 3/13/2-18)  here.

It is probably the first legal advice I ever received. In law school, the teachers told us if the police say do this or do that, do it. Do not argue your rights with the police on the street, they emphasized. On the street, you do what the police officers say. Period. If the police violate your rights, you can file a complaint later. But, on the street, you do what they say.

So, it may not be popular to say this, but I feel that Sterling Brown was in the wrong when he refused police officer direction to remove his hands from his pockets. See NBC news report. Mr. Brown’s response to being told to take his hands out of his pockets was, “Hold on. I’ve got stuff in my hands.” The situation quickly escalated after he told the police to “hold on.” When the police tell you to do something, you need to do it. Police have a target on their back. They have to control the situation.

I am sure the Milwaukee police could have handled this situation better. But, when law enforcement says take your hands out of your pockets, you have no choice.

Way back when, when I was in my twenties. I was passing through “Fleasville,” also known as Leesville, Louisiana, heading to my then home, Alexandria. I was passing through about midnight. The police stopped me for some reason. Out of habit, I slipped my hands in my pockets without thinking. Immediately, those small town police officer shouted for me to remove my hands from my pockets. The urgency in their tone was clear. As quick as I could, I removed my hands. To me, it was no big deal. My hands can rest wherever.  But, to the police, it was a potential threat to their lives. Just do what they say. To you, it is no big deal. To the police, it is about life or death.

I first wrote about Kolby Listenbee’s lawsuit here. He is suing Texas Christian University because he claims the football staff, including the head coach, bullied him into playing even though he was hurt. Mr. Listenbee was recently cut by the Indianapolis Colts. A website, frogswire.com then posted a satirical post suggesting Mr. Listenbee is fragile and made of glass. Listenbee lashed out in a tweet accusing the TCU Horned Frog fans of being fake fans. His tweet claims that TCU fans only support the team when it is winning. He later deleted that tweet.

Frowgswire appears to be an independent website devoted to Horned Frog sports. See the frogswire post here.

As I mentioned earlier, this is a difficult lawsuit for the plaintiff. Mr. Listenbee is trying to argue the coaches’ conduct toward him harmed his athletic ability. But, here he is competing for a spot on a professional football team. Too, he is basically suing football for being football. To some degree, all coaches apply pressure to players to play with some injuries. To win his lawsuit, Mr. Listenbee will have to show that the TCU coaches went beyond the normal conduct of the average football coach.

A few years ago, Coach Mike Leach was fired by Texas Tech University in part because he sent a player suffering from a concussion to go stand in a dark shed on the practice field. And, of course, many years ago, the famous coach, Woody Hayes was fired after he struck a player. In every field or industry, the norm will vary. Compared to these two cases, the TCU coaching staff was relatively benign. Mr. Listenbee will have to have something better than simple verbal pressure or a guilt trip.

Full disclosure: I graduated from TCU with the class of 1980. Yes, it is true that attendance at games is way up compared to the late 1970’s. But, his lawsuit is not about the fans. It is about football.

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.

Yes, shifting explanations alone can show pretext. A changing explanation for a firing can serve as evidence of lying. Numerous courts have so held. See, e.g., Henderson v. AT&T Corp., 939 F.Supp. 1326, 1338 (S.D. Tex. 1996); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 238-239 (5th Cir. 2015). So, when Pres. Trump initially said he knew nothing about payments to Stormy Daniels and that reporters should ask his lawyer Michael Cohen about those payments, that was one explanation. And, now a month later, he says he did know about the payment of $130,000 to Stormy Daniels and it was not a campaign contribution. This is a new explanation. Now, this is a shifting explanation. As the Fifth Circuit said in Burton, a jury can infer pretext from shifting explanations. Burton, 798 F.3d at 236. A jury need not draw that inference. But, it can do so.

And, as lawyers around the country are saying at this moment, Pres. Trump just made his defense much more difficult.

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.