Discrimination cases are difficult. They are more difficult than many other types of cases, because there is an intrinsic bias against discrimination claimants. As Judge Kopf (of Hercules and the Umpire blog) said, many judges are simply skeptical about discrimination claims. We see some of the challenges in this article about successful discrimination and retaliation claims in Dallas, Texas. Eliot Shavin took one such case with five plaintiffs, four African-American and one Hispanic, against BAE Systems Land and Armaments. See Texas Lawyer report.

At the conclusion of a two week trial, the plaintiffs lost in a hung jury. The polling of the jury indicated the six person jury leaned toward finding for the employer. The employer moved for a judgment as a matter of law and lost. Trial was held in the Northern District of Texas.

After the trial, the plaintiff’s counsel apparently interviewed some of the jurors and learned there was at least one sleeper member who would not admit during voir dire to innate bias against discrimination claims. The report does not describe the nature of the sleeper jury member, but often, there are one or two jury members will not admit during voir dire that s/he refuses to believe there is still racism in this country, today. “Voir dire” is the process in which lawyers question potential jurors before the trial starts about any innate biases they may hold. The plaintiff’s lawyer, Mr. Shavin, realized he would need to conduct a more thorough voir dire at the next trial. But, after  various continuances of the trial date, the plaintiffs accepted an Offer of Judgment for the five plainiffs for $1,000,000 total.

Voir dire is particularly difficult in federal court, because federal judges allow a very limited time in which to conduct voir dire. Many federal judges will not allow the individual attorneys to ask the voir dire questions. Federal judges generally ask the questions themselves. The process moves along faster, but those “sleeper” members slip through.

 

See Texas Lawyer report.

In a recent decision, the Fifth Circuit cleared up some confusion regarding how to show disability discrimination. In EEOC v. LHC Group, Inc., No. 13-60703 (5th Cir. 12/11/2014), the court noted that Fifth Circuit jurisprudence had three different versions of a prima facie case for showing disability discrimination. All three versions required the plaintiff to show that he 1) has a disability, and 2) he is qualified to do the job he has held. LHC Group, slip opinion, p. 6. But, then the precedent diverges. One line of cases would require the plaintiff to show 3) that he was subject to an adverse employment action on account of his disability. This line of cases started with Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847 (5th Cir. 1999), which relied on an earlier decision in Chiari v. City of League City, 920 F.3d 311 (5th Cir. 1991).

The second line of cases would require the employee to show 3) he was subject to an adverse employment action, and 4) he was replaced by a non-disabled person or was treated less favorably than non-disabled employees. This line of cases stretched back to Daigle v. Liberty Life Insurance Co., 70 F.3d 394 (5th Cir. 1995). And, a third line of cases would require the plaintiff to show 3) he was subjected to an adverse employment action on account of a disability or the perception of a disability, and 4) he was treated less favorably than non-disabeld employees. The court cited McInnes v. Alamo Community College District, 207 F.3d 276 (5th Cir. 2000). The court noted that the third formulation actually required a plaintiff to show that his adverse action was related to a disability twice.

The court clarified that the court should have been using the first formulation, because that decision came first, after all. Too, the second line of cases was intended for a case in which a disabled person was not hired. While,the first formulation addressed situations regarding continued employment. And, the other circuits have adopted similar versions of the first formulation. So, using the first version of the prima facie case, the court finds the plaintiff must show 1) he has a disability, 2) he was qualified for the job, and 3) he was subject to an adverse employment decision on account of his disability. LHC Group, slip opinion, p. 9. See opinion here.

And, on the merits of the case before it, the Court overruled in part and sustained in part the grant of summary judgment. The lower court erred in a couple of respects. It discounted statements made by managers that the plaintiff was terminated because he had become a liability. The lower court found this statement to be “presumed hearsay.” Yet, as the Fifth Circuit noted, they are statements made by a party opponent. Even though the statements were contained in a charge of discrimination, they would be admissible at summary judgment. The EEOC charge is competent evidence at the summary judgment stage, said the appellate court. It would seem apparent that any charge ought to be admissible. It is a sworn statement, after all.

The court has injected some clarity in disability discrimination law. It has also invested in some sound scholarship. Let us hope the Fifth Circuit continues both trends.

The crew of a  United Airlines Flight arrived at their plane one day and found the words “BYE BYE” scrawled on the tail section. It was July, 2014, just a few months after the Malaysia airline plane disappeared over the Indian ocean. The crew was shaken. They asked for a security sweep. United, however, simply examined the auxiliary power unit or APU and found nothing wrong. They said the graffiti was a joke. The crew asked the flight to be cancelled. The airline refused. The entire crew of thirteen refused to board the plane. The flight was canceled. The crew was fired a few months later for insubordination. Now, the crew has sued the airline seeking back pay and compensatory damages. See CBS news report. They also ask to be reinstated to their old jobs.

The attorney for the flight attendants says it was a “moral mandate” to not board that plane.

Maybe. But, in at-will state, as most states are, the employer can terminate a worker for refusing to perform his/her duties. The employer has the privilege of deciding what constitutes appropriate risk or not. Oil field workers encounter physical risk all the time. Their pay may be higher than most flight attendants, but the decisions are the same. Should the worker accept the risk or not? If the worker will not accept the risk, then s/he can quit.

Unless the employee has a union. If the employees form a union, then they can negotiate for some input into what constitutes risk. Otherwise, at least here in Texas, the employer gets to decide what is risky or not so risky.

There are so many cases discussing the burden of proof in discrimination cases. It is even more complicated when the plaintiff is alleging mixed motives. Mixed motive cases refers to those cases that have a mix of motives, unlawful and lawful. For example, a plaintiff who alleges she was overlooked for a promotion due to nepotism and illegal ethnic origin discrimination. Nepotism is not a protected classification. Ethnic origin is.

In these mixed motive cases, Federal caselaw finds that the burden of proof shifts to the employer once the employee makes out a prima facie case or  has offered direct evidence. See, e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100 (2003) (affirming the use of circumstantial evidence in mixed motive cases. Mixed motive cases are no different than other discrimination cases in regard to types of proof); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (Even if a plaintiff offers only indirect evidence, that may be sufficient basis on which a jury may infer discriminatory motive. Proof that the employer’s explanation is unworthy of credence is one form of of circumstantial evidence that is probative of intentional discrimination, and it is one form that can be quite persuasive). As Justice O’Connor (who wrote the majority opinion in Reeves) explained in her concurrence, the passage of the Civil Rights Act of 1991 changed the burden of proof for claimants. Requiring direct evidence in mixed motive cases prior to 1991 was appropriate, but no longer appropriate after 1991. Desert Palace, at 102.

So, it is surprising that the Houston court of appeals ruled that under the Texas Commission of Human Rights Act, a plaintiff must present direct evidence in a mixed motive case before the burden of proof will shift to the defendant. In the case of KIPP, Inc. v. Whitehead, 2014 WL 3926562 (Tex.App. Houston 8/12/2014), the employer filed a plea to the jurisdiction. The plea to the jurisdiction is comparable to a Federal Rule 12(b)(6) motion. It attacks a plaintiff’s initial pleading for errors. Direct evidence, as the court rightly noted, is evidence which indicates a discriminatory bias without need of any inference. The Houston court of appeals ruled that in the absence of a prima facie case, the plaintiff must allege direct evidence. See decision here.

Even so, the Houston court did find that the plaintiff had shown sufficient evidence of pregnancy discrimination. It found that she had made out a prima facie case of discrimination based on her gender and pregnancy. It also found that a woman who has been pregnant but still suffers discrimination can state a cause of action under Texas Labor Code Sec. 21.

Of course, one must wonder what this court considers sufficient evidence to constitute “direct” evidence. In KIPP, the employer told the employee she did not fit in anymore. He said he had given her job away because she had been pregnant. KIPP terminated her employment three months after she returned from her pregnancy. If these sorts of statements are not direct evidence, then nothing is.

A San Diego, California jury recently awarded less than one million in compensatory damages and another $185 million in punitive damages to a woman who sued for pregnancy based discrimination. See Workplace Prof blog post. The suit was lodged against AutoZone. Rosario Juarez alleged that she was fired after being told that pregnant women could not get the job done while pregnant. She was a store manager. When she initially became pregnant, she was demoted and was urged to return to counter sales. After waiting the required one year, she asked to return to her old job. Instead, she was fired.

The trial in federal court lasted two weeks. During trial, a former district manager, testified that he was berated by a Vice-President for having so many female managers. “What are we running here, a boutique? Get rid of those women.” See Reuters news report.

The amount of punitive damages will be reduced. The cap on punitive and compensatory damages is $300,000. But, the jury clearly wanted to send a message. They succeeded. But, it is very rare for any former manager to testify, much less one with such damaging testimony. These sorts of jury results are quite rare.

Texas Supreme Court
Texas Supreme Court

Just when we thought the Texas Supreme Court cleared things up regarding non-compete agreements, the court issues another decision that muddies the water. In Exxon Mobil Co. v. Drennen, 2014 WL 4782974 (Tex. 2014), the court addressed a non-compete agreement in which the employee would forfeit deferred compensation (stock ownership) for violating the non-compete clause. The court found that a forfeiture clause did not fall within the definition of  of “covenant” under the Covenants Not to Compete Act. Because, a forfeiture clause does not actually prohibit an employee from competing after leaving employment, said the court. The court also addressed its decision in Marsh U.S.C., Inc. v. Cook, 354 S.W.2d 764 (Tex. 2011). I previously discussed that decision here.

That decision, we thought, established that the consideration for a covenant not to compete only needs to be “reasonably realated” to an interest of the employer’s. The decision had stated that “goodwill” could serve as an employer’s interest that was worth protecting. That decision brought Texas jurisprudence more in line with the rest of the country and made covenants not to compete easier to enforce. But, the court in Drennen said the Marsh decision did not actually involve a covenant not to compete. The Marsh decision  also involved a forfeiture of future compensation. But, the stock ownership plan in the Drennen case is different from that in Marsh, said the court. In Marsh, the employee was required to sign a non-compete agreement when he purchased stock. Here, however, Mr. Drennen was simply awarded stock in return for hard work and loyalty. The exchange, said the court, was continued loyalty (by Mr. Drennen) in return for for stock options (by Exxon).

The Drennen court then found that New York law would apply under the choice of law provision in the agreement. See decision here.

In many ways, the deck is stacked against the discrimination victims. Most folks who believe they have been subjected to discrimination put off seeing a lawyer. Many, a great many folks go directly to the EEOC, trusting in the federal government. The EEOC means well, but it is over-worked and under-staffed. Many EEOC workers are simply poorly trained. Consider the case that occurs every so often: the plaintiff files a charge with the EEOC. The EEOC will occasionally take a very long time with a case. If the EEOC allows a case to sit at the EEOC for over two years, the case will go beyond the statute of limitations. That is, the case will go beyond the time limit in which to file a state lawsuit of discrimination.

If that case concerns disability discrimination, the plaintiff is in serious trouble. The U.S. Supreme Court has held that the state agencies cannot be sued under Title VII or under the Americans with Disabilities Act. The statute of limitation to file under the state version of the ADA is two years. The deadline to file suit under the Texas Commission on Human Rights Act is two years. So, if the EEOC issues a right-to-sue letter after the two years has already passed, the plaintiff in effect cannot sue for disability discrimination.

If the plaintiff attempts to file suit, the employer will file a motion to dismiss. The judge will grant the motion to dismiss saying the plaintiff should have contacted a lawyer. But, wait. Many folks believe that seeing a lawyer should be a last resort. . . .  Oh well.

So, yes, in many ways, the deck is stacked against the average employee who has suffered discrimination.

Lawsuits are tricky. They must be filed within a certain deadline, known as "statutes of limitation."  If a person misses the statute of limitation without a very, very good reason, that person cannot file the lawsuit. Statutes of limitations are very important. A suit based on personal injury must be filed within two years of the act complained of. If a person is in a car wreck, that person must file a lawsuit within two years of the car wreck. 

If the last day of the two year period falls on a weekend or a holiday, then the statute of limitations period is extended until the next business day. A lawsuit based on the state statute which prohibits discrimination must be filed within two years. This statute is known as the Texas Commission on Human Rights Act. 

A suit based on defamation, libel or slander must be filed within one year of the act complained about. A suit based on breach of an oral contract must be filed within two years of the alleged breach. Suit on a written contract must be filed within four years of the alleged breach. 

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

So, Greg Abbott files another frivolous lawsuit. He has filed suit against the federal government over Pres. Obama’s immigration measures. See San Antonio Express News report (account required). And, as before, the lawsuit is described as frivolous by lawyers familiar with immigration law. One immigration lawyer describes the lawsuit as "political theater."  I have written about his frivolous lawsuits and weak defenses here and here. His actions may serve serve as effective politics, but they are ineffective actions. 

Oral arguments are set for Nicholas v. San Antonio Water System. I previously wrote about that case here and here. CPS spent half a million dollars by November, 2013 defending the case. They could have settled the case for much less. Oral arguments are set for January, 2015 before the Texas Supreme Court. See San Antonio Express News report. 

The Texas Supreme Court is infamous for being friendly to corporations and employers. The chances of success for the plaintiff are not high.