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.

One of the more difficult problems for employers is harassment by unknown co-workers. The law was designed for harassment by supervisors. It functions not so well when the harassment is caused by co-workers. In Tolliver v. YRC, Inc., No. 17-10294, 2018 US LEXIS 17806 (5th Cir. 6/28/2018), African-American workers were harassed in various ways for over 15 years. The black workers encountered racist graffiti, nooses, and other incidents. The district court refused to allow evidence of incidents which occurred beyond the 300 day limitations period. So, the court only addressed two incidents, a noose left in YRC facilities and racist graffiti left on a YRC truck. It was not known who committed these acts.

The court found these two incidents were not sufficiently pervasive or severe to amount to a hostile work environment. The court noted that the plaintiffs did not contend that the two incidents were directed toward them. And, said the court, “for the most part,” the plaintiffs learned of the two incidents second-hand.

But, even if the two incidents were sufficiently severe or pervasive, management took prompt and remedial action. The company posted a $25,000 reward for information about the incidents. It interviewed hundreds of employees. It hired security guards, and it contacted law enforcement. The employer also provided weekly reminders about its non-discrimination policies. The employer did not discipline anyone, because the perpetrators were not found.

As the court added, Title VII is not a behavior code. It prohibits discrimination. Essentially the court is saying Title VII does not require the employer to deeply investigate acts of apparent racism. Most courts require reasonably swift action, and not much more than asking employees if they know who committed the acts. This decision is in line with those prior authorities. The Fifth Circuit affirmed the grant of summary judgment. See the decision here.

The National Labor Relations Act has always protected a worker’s right to discuss “terms and conditions” of employment. Sec. 7 of the NLRA protects the right of workers to discuss conditions at their job. Sec. 7 of the NLRA is found at 29 U.S.C. § 158(a)(1). 

But, because labor unions are so rare in the country now, very few people are aware of this right. The right applies even before a union is formed. When the NLRA was passed into law, Congress recognized that to form a union, workers would have to discuss problems at work. I last discussed those Sec. 7 rights here. The Fifth Circuit has recently re-affirmed the right to discuss conditions at work. In the case of In-N-Out Burger v. NLRB, No. 17-60241 (5th Cir. 7/6/2018), some fast food workers demonstrated solidarity with a national movement to raise the minimum wage to $15. The workers wore buttons with the slogan “Fight for $15” to work.

Management then cited a company rule that forbade workers from wearing any pins or stickers on their work uniform. The workers complied. Someone filed a complaint with the NLRB. The NLRB found the burger chain to have violated Sec. 7. The Fifth Circuit agreed. Despite the rule against buttons, the burger chain requires its workers to wear holiday themed buttons at Christmas time and a donation button in April seeking donations to the In-N-Out Foundation. The burger chain argued that “special circumstances” under the NLRA would allow them to implement rules regarding food safety and to project a certain “public image.”

The appellate court was not impressed. It reviewed the history of Sec. 7, noting its critical role in forming labor unions. It noted that “special circumstances” under the NLRA pertain to work place safety. The no pins or buttons rule had no direct connection to the company’s desire to presenting consistent menu and ownership structure at each restaurant. Prior cases law does not support a “special circumstances” privilege in regard to buttons and interacting with the public. And, the use of a Christmas button and a donation button undercut the company’s claim that “special circumstances” required that uniforms be button free. The appellate court found in favor of the NLRB. See the decision here.

Overcoming Sec. 7 is very difficult. In-N-Out Burger wasted a lot of effort.

Judge Lynn Hughes in the Southern District of Texas is a difficult judge. He harangues attorneys who appear before him. He cancels discovery, even though the federal rules of civil procedure provide otherwise. He is a difficult judge on several levels. In the case of USA v. Swenson, No. 17-20131 (5th Cir. 7/3/2018), the US Attorney prosecuted an adoption agency for fraud. Shortly before trial, the US Attorney dumped thousands of documents on the defense. There were indications that the prosecution had been hiding or withholding documents until the defense knew to ask for those specific documents. The day before trial, the parties had another conference in front of Judge Hughes. The prosecution brought yet another large pdf file of documents to the hearing. The prosecutor apologized to the court, saying she had overlooked the documents.

Judge Hughes fussed at the prosecutor. He said she is supposed to know what she is doing. He said it was better in the old days, because the prosecutors wore dark suits and blue ties. They did not let “girls” do this in the old days. The case had been continued three time already. So, the judge dismissed the case with prejudice.

On appeal, the Fifth Circuit panel found there was no Brady violation here, meaning the prosecutor did not intentionally withhold material that would have helped the defense. It noted that the district court did not explain why one more continuance – the first continuance to be requested by the prosecutor  – would not suffice. The Fifth Circuit reversed the dismissal and remanded the matter back to the district court. But, remarkably, the appellate court remanded the case not back to the same judge, but to the chief judge to re-assign the case to a different judge. That is, the court remanded the case to a different judge, not back to Judge Hughes. See the decision here.

Reassigning to a different judge is as clear a rebuke as judges get. I expect it was the comment about “girls” that concerned the court of appeals. But, Judge Hughes is always a concern for the Fifth Circuit.

Sexual harassment cases are complicated. The legal standard is that harassment by co-workers which is “severe or pervasive” will constitute a hostile work environment – if of course, management knows about the harassment and does nothing. But, what happens when the harasser is a customer? If an employer is aware of the harassment and does nothing, the employer is liable. In Gardner v. CLC of Pascagoula, LLC, No. 17-60052 (5th Cir. 6/29/2018), we see an additional twist. What happens when the person doing the harassment is a patient suffering from dementia?

The plaintiff was employed as a certified nursing assistant at an assisted living facility. She had years of experience in the field. Perhaps, that is why she was assigned to J.S., a difficult patient. J.S. was elderly. He suffered from dimentia. He would grope the female employees and become violent when they would resist. One day, he tried to grope Ms. Gardner. She resisted. He struck her breast. He struck her again, as they tried to move him. She may or may not have swung toward him deliberately missing him. She walked out, allegedly saying she was the wrong skin color. The other white nurse apparently was able to calm down J.S.

Ms. Gardner went out on worker’s compensation leave and was fired when she returned to work. The employer said her comment was racist and that she tried to hit J.S. The CNA filed suit. The employer was granted summary judgment.

There was no question J.S. frequently tried to grope women, on their thighs, breast, buttocks and their private areas. He did this daily. The appellate court found this was “severe or pervasive” harassment. J.S. was eventually moved to an all-male facility with lock-down security.

Ms. Gardner might have still lost her claim, but her supervisors were derisive toward her complaints about J.S. One of them told her to put on her big girl pants. And, as the court pointed out, another element of a sexual harassment claim is that management takes no action to stop the harassment. The court faulted management for doing nothing to even try to stop the harassment. After J.S. had punched her three times, she asked to be transferred. Management told her no. Management clearly was not even trying to fix the problem. The plaintiff presented evidence regarding what other nursing facilities had done where she worked. They would require two or more aids, try to use medications to control behavior, or simply transfer the patient to some other facility. CLC took none of steps. And, of course, long after firing Ms. Gardner, CLC did finally transfer J.S. out of the facility.

The court recognized that there may be times when it is simply not physically possible to keep an ill patient from acting aggressively. But, there were things the employer could have done this time, in this case. But, it did none of those. The Fifth Circuit reversed the grant of summary judgment. See the decisions here.

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.

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.

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

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

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

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

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

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

See the Fifth Circuit decision here.

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

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

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

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

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

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

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

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

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

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

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