Luis Cristain sustained an injury at work. His employer, Hunter Buildings and Manufacturing, fired him soon after he fell from scaffolding. Eight days later and a few days after filing a claim for worker’s compensation benefits, the employer moved him to a position where he would be supervised by Kevin Edmonds. Mr. Edmonds had already been scrutinizing Mr. Cristain’s performance. Now, he would have direct supervision.

The job was a new job, which did not otherwise exist before. Cristain went from being a general helper to a “Flow Monitor,” a job for which he had no training or experience. Immediately, Edmonds accused Cristain of taking unnecessary breaks. Three days later, the supervisor gave the worker a written warning for allegedly not picking up some paperwork. Mr. Edmonds investigated the scaffolding incident and found Cristain at fault.

Two weeks after the accident, Mr. Edmonds met with Mr. Cristain about the scaffolding fall and fired him. Mr. Edmonds claims Mr. Cristain became loud and profane at the meeting.

Mr. Cristain filed suit for worker’s compensation retaliation and age discrimination. The district court denied the motion for summary judgment. At trial, the court initially denied the defendant’s motion for judgment as a matter of law. But, when the employer renewed the motion for judgment as a matter of law, the court granted the motion in regard to the worker’s compensation claim. It let the age discrimination claim proceed to the jury. The jury found for the defendant on the age claim.

On appeal, the Fifth Circuit panel noted that proximity in time can support a showing of worker’s compensation retaliation. The Texas caselaw notes proximity of weeks or months will support a filing of retaliation. Here, Mr. Cristain was fired two weeks after his injury. That is a “stark temporal proximity,” said the appellate court. The employer did not follow its own internal procedures for disciplining a worker. It skipped steps. Supervisor Edmonds openly suggested Cristain did not truly suffer an injury. During trial, the employee presented evidence of other workers who submitted worker’s compensation claims. Of eleven such workers, two were fired within 30 days of the injury and four others were terminated within 90 days of their injuries. Too, the employer’s explanation for the termination shifted over time. These facts amounted to “considerable” evidence supporting his claim, said the court.

The panel reversed the granting of the motion for judgment as a matter of law in regard to worker’s compensation reprisal claim. The Court then ordered a new trial regarding that claim. See the opinion in Cristain v. Hunter Building and Manufacturing, LP, No. 17-20667 (5th Cir. 11/14/2018) here.

An engineer worked for Texas Commission on Environmental Quality or 23 years. Shiyan Jiang was never in any trouble until in 2014, he was assigned a new boss, Kim Wilson. The new boss believed Mr. Jiang placed some papers in a permit folder that did not belong there. The plaintiff then filed a complaint alleging discrimination based on age and ethnic origin. The supervisor then found many more things wrong with the long-time engineer, including raising his voice and disputing settled policy matters. Ms. Wilson placed the engineer on probation. During the probation, he had two meetings with supervisors. No incident occurred after the second meeting, yet, the supervisor recommended termination.

Mr. Jiang filed suit as Jiang v. Texas Commission on Environmental Quality, No. 17-CV-00739 (W.D. Tex. 8/13/2018). The TCEQ moved for summary judgment. The Western District court noted that there was evidence that some other co-workers raised their voices on occasion. Other co-workers sometimes placed draft documents into a permit folder. And, others debated policy with their supervisors. Mr. Jiang submitted a statement on his behalf in responding to the motion for summary judgment. The employer tried to argue that Jiang’s Declaration was based on subjective belief. But, his testimony was corroborated by co-workers. The employer then argued that the co-worker affidavits were based on subjective belief. But, noted the court, the co-workers presented facts to support their beliefs.

The court also noted that two other senior employees were placed on probation or issued written warnings after they complained about age discrimination. And, the court noted  that Mr. Jiang complained about race discrimination at the second probation meeting. The very next day, the supervisor recommended he be terminated. That is a very close nexus indeed between opposing discrimination and then suffering an adverse personnel action. The court found that viewing all this evidence in totality, a jury could infer a pattern of behavior of retaliation against persons who complaint about discrimination. It found that there were issues of fact regarding the employer’s articulated reasons for the termination. So, the court denied the employer’s motion for summary judgment. See the decision here.

The judge ruled correctly. The affidavits of co-workers, if supported by factual observations, are much more than mere “subjective” belief.

One would expect that a case involving direct evidence of age bias would not be granted summary judgment. Yet, that is what happened in Lopez v. Exxon Mobil Development Co., No. 14-16-00826, 2017 WL 4018359 (Tex.App. Houston 9/12/2017). Plaintiff David Lopez worked for Exxon for over ten years when he was terminated in 2014. He was 56 years old at the time. He worked at various positions, mostly in management. He was told he would have to move from Texas to Canada. He complained about the assignment and the lack of a housing waiver. Not having a housing waiver, his family would have to move with him. Plaintiff Lopez spoke with his senior supervisor, Don Moe, about the transfer. Mr. Moe said higher-ups were concerned that someone of Lopez’ age was complaining about a move. He said older guys should just shut up. It was clear, said Mr. Moe, that Lopez was not on the “fast track.”

Plaintiff Lopez did not mention the ageist remarks for another six months. He finally mentioned them to his functional supervisor, Irfan Khan. Mr. Lopez said his transfer was discriminatory. The employee said Mr. Khan said he would look into the matter. Mr. Lopez received a poor evaluation after complaining. He was placed on a PIP. Mr. Khan and two other supervisors decided to terminate Mr. Lopez. The two other managers said Mr.Lopez was “old and stubborn.”The employee filed suit based on the Texas Commission on Human Rights Act. Exxon moved for summary judgment, which was granted.

On appeal, the court of appeals claimed the “old and stubborn” comment was not direct evidence. Without explaining its reasoning, the court simply said the court would have to draw an inference or make an assumption to determine whether the comment indicated motive. If the comment was direct evidence, then no inference or presumption would be necessary to see its discriminatory bias.

Reviewing the case as one of circumstantial proof, the court noted that Mr. Lopez had been ranked in the bottom third of his peers for the last four or five years. Acknowledging the many good performance reviews received by the plaintiff, the court of appeals simply found his testimony conclusory and subjective. Yet, at the same time the court made that observation that Lopez was describing the subjective evaluation process that resulted in his PIP. It then remarkably concluded that showing good performance evaluations simply shows the plaintiff might show the employer provided a false reason – that is not competent summary judgment evidence, claimed the court. Of course, that flies in the face of Reeves v, Sanderson Plumbing Products, 530 U.S. 133, 147 (2000), which expressly had that evidence of falsity of the reasons alone may support a finding of improper motive. The court actually accused the plaintiff of drawing a subjective conclusion when he argued that Exxon’s process was “highly subjective.” The court apparently never heard the phrase “what is good for the goose is good for the gander.”

The Fourteenth Court has imposed a doctrine known as pretext plus. It required the plaintiff to show more than pretext. It has held the plaintiff to a different standard than that set for the employer. The employer may engage in a subjective process, but the employee may not. Too, it has engaged in fact-finding. It finds the ageist remarks by Moe, and others to be too distant in time. That should be a jury finding. The jury should determine whether six months was too long. Certainly, the comments about “old and stubborn” were not distant in time. This is a motion for summary judgment, not a trial. Summary judgment exists to test the evidence, not to resolve it. See the decision here.

The Fourteenth Court has issued a poorly thought decision. It is decisions like this that have come to undermine our jury system. Decisions like this take away from the jury assessments which serve as bedrock for our judicial system.

There are many things an interviewer can ask a job applicant. But, you do need to be careful about some questions. Here are some things to consider.

1. How old are you? Be very careful about asking this question. There are very few jobs where someone can ask you your age and the question itself not serve as evidence of age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. Why would this question be helpful? Unless this is a ruse to discover whether a female applicant might quit when she wants to have a baby. This question serves little purpose.

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked of Hispanic or Hispanic-appearing applicants.

4. Do you have a disability? Do not ask this specific question. But, an employer can ask something similar if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire department make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5. Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial transgression, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

There are several things an employer can ask in an interview. Let’s discuss a few.

1. How old are you? This is not a good question to ask. There are very few jobs in which age is a legitimate requirement for the job. Inevitably, this question will suggest age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the U.S. Army.

2. Are you married? If you ask this only of female applicants, then this question could cause problems. Why would this question be helpful? Unless this is a ruse to discovery whether a female applicant might quit when she wants to have a baby. Its best to just not go there….

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked about Hispanic or Hispanic-appearing applicants.

4. Do you have disabilities? Do not ask this specific question. But, an employer can ask if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire deaprtment make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5.  Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial error, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

There are various constructs which serve to limit access to juries for discrimination victims. One of those constructs is the so-called “same actor inference.” The same actor inference provides that if the same manager who hired an employee later fires that same employee, then it is unlikely that that manager was motived by discriminatory animus. The reasoning is that if she hired you knowing you were Hispanic, then it is unlikely she would fire you because you are Hispanic. But, there are limitations to this inference. See, e.g., Soublet v. Louisiana Tax Commission, 766 F.Supp.2d 723, 729 (E.D. La. 2011) (When considering a motion for summary judgment, the same actor inference does not apply when 1) the context involves a failure to promote. Since, a person might be willing to hire the member of a minority for an entry level job but not for promotion, and 2) issue of fact exists whether the manager was responsible for both hiring and promotion); Feingold v. NY, 366 F.3d 138, 155 (2d Cir. 2004) (if “changes in circumstances during the course” of employment, the defense “would not necessarily apply”); Carlton v. Mystic Transport’n, 202 F.3d 129 (2d Cir. 2000) (“the enthusiasm with which the actor hired [plaintiff] … may have waned”). The same actor inference might make sense when the time between hiring and firing is relatively short. But, if years pass between the hiring and firing decisions, it loses considerable utility.

In reality, we never know to any degree of certainty what motivates a manager when someone is fired. An inference is just that, an inference. The Western Districtof Texas recognized the limitations of the same actor inference in Jones v. R.G. Barry Corp., No. 16-CV-154 (W.D.Tex. 3/17/2017). In that case a long-time employee, Sandra Jones, was let go when her position was eliminated in 2015. She was terminated by Mr. Evans. Mr. Evans had promoted the Plaintiff previously in 2007. Ms. Jones was retained by the employer in 2012 when several other members of her department were laid off that year. The employer suggested, but did not directly claim that Mr. Evans had some role in the decision to retain Plaintiff in 2012. Ms. Evans sued for discrimination based on her gender and her age.

The court did not buy the employer’s argument. It noted that the same actor inference is just that, an inference. It can be rebutted. It noted that the employee argued that other reasons may have played a role in the decision to retain the Plaintiff in 2012. She was the only person with knowledge of the distribution center at the time. If an inference should arise from Ms. Jones’ promotion in 2007, then the court would first need to look at who else may have been available for that promotion in 2007. The court found this was sufficient to rebut the inference. It noted correctly that it cannot apply the same actor inference without assessing the credibility of witnesses. Since this was a motion for summary judgment, any inference should be construed in favor of the non-movant, the Plaintiff. See the decision here.

These so-called doctrines, “same actor inference,” “stray remarks doctrine,” honest belief doctrine,” and others are constructed to help us understand the evidence. In reality, they often serve as a bar to a jury trial.  They should never become more important than the evidence itself. When a court reviews a motion for summary judgment, it should keep in mind that these are all just inferences. As inferences, they are of limited utility in deciding summary judgment.

 

More and more employers are relying on staffing agencies to fill certain jobs. But, many employers retain so much control that they remain the employers in all but name. So, if the client employer is the employer in fact, what would be the status of the staffing agency? The Fifth Circuit addresses that issue in Nicholson v. Securitas Security Services USA, Inc., No. 15-10582 (7/18/2016). Helen Nicholson sued both the staffing agency, Securitas, and the client employer, Fidelity. But, Fidelity settled early in the lawsuit. Securitas moved for summary judgment, which was granted. Ms. Nicholson was a receptionist for Fidelity. She was 83 years of age. She was well-liked in that position. Yet, Fidelity asked that she be removed. Securitas placed a 29 year old woman in her place. Securitas then claims it could not find another position for Ms. Nicholson and she was terminated ten days later. The employee filed suit for age discrimination.

Securitas first claims it was not Ms. Nicholson’s employer. Yet, the contract it signed with the employee clearly identifies Securitas as her employer. And, in its answer to the Plaintiff’s Complaint, the staffing agency alleged that it was her employer. So, the higher court did not apply the “right to control” test. It simply found that the employer had already admitted it was her employer.

The discussion then turns to the evidence of pretext. Securitas argued that it was not aware of any discrimination by Fidelity. Fidelity simply asked them to place someone else in the position. Securitas management testified they they never questioned a client employer. But, the Fifth Circuit, relying on its decision in Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015), noted that a staffing agency participates in a discriminatory action if it knew or should have known about the discrimination. I previously wrote about the decision in Burton here.

The plaintiff conceded in her brief that she had no evidence that Securitas knew Fidelity’s action was based on a discriminatory motive. Instead, she argued that Securitas should have known the action was discriminatory. The plaintiff pointed out Securitas’ own policies which require counseling for substandard performance. There was no counseling when Fidelity asked that Ms. Nicholson be removed. Too, there was no investigation as to the reasons for the move. Securitas management did not ask why the move was necessary. Although, the Securitas manager also testified that it should look into the reasons for a complaint. The manager said they should “verify” the reason for a termination. So, construing the evidence in favor of the non-movant, Securitas failed to follow its own procedures in looking into the reason for the change in receptionist. So, the court reversed the summary judgment as to the age claim and the request by by Fidelity to move Ms. Nicholson.

Regarding the termination by Securitas, the court affirmed summary judgment. Ms. Nicholson was fired essentially because she did not obtain her security card and she testified she could not see herself performing a traditional security position. See the Fifth Circuit decision here.

In every settlement of a discrimination claim, the employer always require a confidentiality clause.  In this clause, the employee agrees to reveal the terms of the settlement only to a select few persons, such as a spouse and an accountant.  The rationale offered by the employer is that otherwise, they will face numerous other lawsuits seeking the "easy pickin’s" of a discrimination lawsuit.  Well, whatever might happen, most of my clients have no interest in disclosing anything.  So, they usually agree to such clauses.  

But, in one recent age discrimination case, the result was not so happy.  Patrick Snay, former headmaster at Gulliver Preparatory School in Miami was forced out.  He sued for age discrimination and settled for $80,000.  The settlement included a confidentiality clause.  Mr. Snay and his wife told their daughter, Dana.  Dana was now attending Boston College, but she had many friends from her days at Gulliver.  She posted the good news on Facebook, "Mama and Papa Snay won the case against Gulliver."  "Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT."  Dana had 1200 FB friends.  See Yahoo news report

Ok.  That is a slight violation of the confidentiality clause.  Gulliver students saw the post.  The post made its way to Gulliver administrators who then told their lawyers.   The employer moved to declare the settlement void and the court agreed.  

First, it is doubtful the Snays were truly planning a European vacation.  If Mr. Snay was like most of my clients, he was unemployed for a year or two before finding work.  Most of that settlement would pay down credit card bills and pay off loans from friends and family.  

Second, sure this was unfortunate for Patrick Snay.  But, his lawsuit is now alive, again – assuming he has no statute of limitations issues.  He may eventually find more money from a jury.  Mr. Snay says he had to tell his daughter something.  She suffered psychological scars when he was forced out.  

Many plaintiffs do not read the entire settlement agreement.  It is a legal document, stocked with plenty of legalese that goes on for ten, fifteen pages or more.  It is not light reading.  If Mr. Snay did not caution his daughter with the confidential nature of the settlement terms, then he should have.  

But, now he has his lawsuit back.  And, I will wager that there will not be a rash of lawsuits against Gulliver Prep School seeking those "easy" settlements for age discrimination.  

A potential client recently assured me she could make me "wealthy" if I would accept her case for discrimination.  She was responding to my gentle declination of her case.  How do I explain to a potential client that what they see on television or in the movies is not real life?  Sure, Erin Brockovich did well in their class action two decades ago because they found "smoking gun" type evidence.  But, in the average discrimination case, direct evidence of intent to discriminate is "few and far between."  

To show intent, we have to produce evidence of what a person was thinking when they committed the adverse personnel action.  How do we get inside someone’s head?  We can only rely on the statements by that person.  And, these days, most folks know not to say what they are thinking.  

The other part of my answer would concern motions for summary judgment and the jury system.  Motions for summary judgment end in the dismissal of many decent cases of discrimination, everyday.  I wrote about one study that found plaintiffs in discrimination cases have the lowest percentage of success among major lawsuits.  The chances of success for disability, race and national origin, sex discrimination and age discrimination and FMLA reprisal range between 9 and 20%.  See my post here.  

And, the jury system.  I appreciate the jury system.  In my view, serving on a jury and casting a vote are the two major ways we preserve our democracy.  The jury system allows any person the opportunity to enforce community standards.  No special training is required.  But, truly, many jurors get the result wrong.  Many juries do not appreciate what they do and rush through the process.  I tell clients that they can throw the dice at Las Vegas or take their matter to a jury.  The chances of success are about the same.  

So, no, Ms. Potential Client, I do not expect to become wealthy through your case.  But,  I do appreciate the offer……

Many times an employer’s stated reasons for an unlawful discharge will change over time.  The first occasion an employer offers its reasons is when it fires the employee.  But, often, a supervisor will not provide any reasons at the termination.  Or, there may not be an actual face-to-face meeting when the employee is terminated. The next time an employer would have to explain its reasons for the termination is the "position statement" to the EEOC.  When a complainant files a charge of discrimination, the EEOC requires the employer to explain the circumstances of the termination.  This explanation is known as the "position statement."  

In a large corporation, the position statement is typically prepared by a Human Resources representative or the general counsel.  It is important to get the facts straight, because that position statement is part of the file forever.  It can be used to impeach the employer.  That is what occurred in Miller v. Raytheon, No. 11-10586 (5th Cir. 5/2/13).  In this case, Mr. Miller worked for Raytheon or a predecessor company for almost 30 years.  Under a new boss, he received a poor evaluation in 2007.  Mr. Miller was included in a RIF in 2008 under questionable circumstances.  He was then reviewed for other positions at Raytheon.  He was offered no other positions, even though he was qualified for several.  At a meeting with HR, he was told Raytheon could not offer him any position due to the one poor job evaluation. 

On his own, Mr. Miller applied for four positions at Raytheon but was not selected.  Mr. Miller filed a charge of discrimination with the EEOC based on age.  The employer provided a position statement to the EEOC which claimed Raytheon had a policy in which it would "search every corner of the earth" and "exhaust all opportunities to place" an individual before releasing him in a RIF.  The letter erroneously said Mr. Miller had not applied for any positions at Raytheon after he was laid off.  

Even though the position statement was sent after the layoff, the employee was allowed to use this letter at trial.  The jury found in favor of Mr. Miller and awarded him some $17 million. 

The employer moved for judgment as a matter of law seeking to overturn the jury verdict.  But, in the opinion, the Fifth Circuit said the letter presented circumstantial evidence of pretext and cited caselaw finding that evidence of dissembling alone can show discrimination.  The court noted the discrepancies in the letter.  At trial, the employee also provided evidence that two younger employees were eligible for the RIF but were not laid off.  "In totality," said the Court, this was sufficient evidence on which the jury could choose not to believe the employer’s explanation.  

The Court agreed with the employer that each piece of evidence in isolation might not support the jury verdict.  But based on the accumulation of evidence and the credibility determinations of the jury, this was sufficient evidence.  See decision here

It is rare enough that the Fifth Circuit affirms a jury verdict.  It is even more rare when the evidence is largely circumstantial.  The Court made the right call for the right reasons.  The court should indeed look at the "totality" of the evidence.  In fact, in most cases, the employer tries very hard to look at each piece of evidence in isolation.  But, terminations do not happen in a vacuum.  At least this time, the Fifth Circuit agrees.