It is difficult to find a lawyer who specializes in employment law and who represents employees. Most employment lawyers represent the employer and are not willing to represent employees. The typical plaintiff starts out talking to Personal Injury lawyers, because PI lawyers advertise. So, many times, the employment plaintiff must file his/her own case pro se. Pro se means the person represents himself. How do pro se clients fare in court? I have no scientific evidence, but in my experience, they do not fare well.

We see one such case in Mzyk v. Northeast Independent School District, No. 14-00952 (W.D. Tex. 9/1/2015). Ms. Mzyk did not file an actual Complaint. Usually the Complaint is a summary of the allegations against the employer. It is always couched in legal language. But, Ms. Mzyk simply filed a copy of her EEOC charge and the right-to-sue Notice. The court generously accepted the copies as a complaint. The court is required to accord deference to the un-schooled layperson who files her own lawsuit. The suit did not go well for Ms. Mzyk. The employer quickly filed a motion for summary judgment. Responding to a motion for summary judgment requires considerable skill and training. It would be quite difficult for any layperson to respond. Ms. Mzyk filed two extensions seeking more time in which to respond. The judge granted each request. But, still, she did not file a response to the motion.

The judge noted rightly that just because no response was filed, a court may not issue a default judgment. So, the judge went through the process of discussing the evidence. The discussion was brief. The plaintiff had presented no contrary evidence. The judge did discuss Plaintiff Mzyk’s rebuttal information from her deposition. But, the judge was necessarily only seeing the rebuttal testimony provide by the defendant. Any information provided by the defendant, we can expect, would be favorable to the defendant. So, of course, the judge found Ms. Mzyk did not make out her case. Her lawsuit was dismissed. It is fortunate for her that the defendant did not seek sanctions. It did make a counter-claim in its Answer that her lawsuit was frivolous. So, clearly it did occur to the employer that it could seek sanctions.

But, it is unlikely a judge would award sanctions against a pro se plaintiff, anyway. Without the benefit of counsel, the true claims of the plaintiff would almost certainly not be revealed. The defendant did not even seek an award of expenses of defending the lawsuit, normally a routine matter once summary judgment has been granted. The plaintiff was fortunate indeed.

The Fifth Circuit reversed summary judgment in another case recently. In Caldwell v. KHOU-TV Company, Inc., No. 16-20408 (5th Cir. 3/6/2017), the court addressed ADA and FMLA issues. Gerald Caldwell worked at KHOU TV as a video editor. Due to a childhood disease, he needed the aid of crutches for walking. Mr. Caldwell notified his supervisor he would need time off for upcoming surgeries.

About that time the parent company, Gannett Company notified KHOU that the station needed to reduce their work force. One worker was chosen for lay-off based on documented poor work performance. That editor was given prior warning about his performance. Mr. Caldwell received no such warning. Mr. Caldwell was also chosen. The supervisors initially said he was chosen because he had expressed an unwillingness to work in EDR. Later, in its motion for summary judgment, the employer argued that Mr. Caldwell had not taken the initiative to spend as much time in EDR as the other editors.

Mr. Caldwell filed suit based on the ADA and the FMLA. The employer moved for summary judgment, which was granted. On appeal, the Fifth Circuit reversed the summary judgment. The court found there was substantial evidence of pretext. The employer provided different reasons for selecting Mr. Caldwell for the RIF. The employer first claimed Mr. Caldwell shirked his responsibilities by refusing to do the EDR work he had been assigned. The employer provided this expansion in answer to interrogatories and in a letter to Plaintiff’s attorney. But, in a letter to the EEOC, the employer said he was terminated not because he avoided work, but because of his inability and unwillingness to adjust to new technologies. And, before the district court, KHOU argued that Caldwell did not take the initiative to spend as much time in EDR as other editors. And, contrary to all this evidence, the direct supervisor, Philip Bruce, said “absolutely” there were no job performance issues with Mr. Caldwell. These statements, said the higher court, indicated inconsistent explanations, so as to show genuine issue of material fact.

The lower court had looked at the same evidence and discounted it. The district judge found that many of these statements were not made by Mr. Bruce, the direct supervisor. But, the court of appeals noted that no precedent required that all explanations emanate from the direct supervisor. On the contrary, many cases cite articulated reasons from the employer as a whole. The court cited Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408 412-13 and n. 11 (5th Cir. 2007) for the proposition that simply stated, an employer’s inconsistent explanations for its employment decisions at different times are probative of whether those statements are pretextual and that cases do consider statements by the employer’s representatives before the EEOC, before the district court and the Fifth Circuit. And, that makes sense. The employer sues the “employer,” after all, not individual supervisors.

The higher court noted that the employer’s explanation had evolved from insubordination to a lack of initiative. Mr. Caldwell himself denied ever expressing a preference for or against EDR. The plaintiff’s supervisors also confirmed they did not recall the plaintiff ever expressing a preference against working in EDR. The employee also testified, and the supervisors confirmed, that it was ultimately the employer’s decision to limit his time in EDR, suggesting the employer was not truthful.

[Note: It is always unwise to try to mislead the court. Judges remember that. It will affect the rest of their decisions. That the supervisors apparently disagreed with the company’s  representative seriously undermines any case.]

The higher court also discussed the lack of opportunities for the disabled worker. The court compared not affording employment opportunities to black workers to not providing opportunities to Mr. Caldwell. The plaintiff had argued that the employer chose not to schedule him time in EDR. The lower court had found that he was not scheduled more time in EDR due to his disability. The Fifth Circuit found that lack of opportunity comparable to a case, Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990), in which an African-American woman was not given the chance to improve her work performance, because the employer did not counsel her about performance problems. In Caldwell, the court said this situation was similar because KHOU did not give Mr. Caldwell time to work in EDR and improve his technical abilities. This lack of time also indicated that the employer did not counsel Mr. Caldwell and warn him that he should spend more time in EDR.

The higher court also reversed summary judgment regarding Plaintiff’s FMLA claim. See the decision here.

This is the last in a series of cases dating back some three years in which the Fifth Circuit has reversed summary judgment. The most common problem in that line of cases is the failure of the district court to construe facts in favor of the plaintiff. We hope district judges will make more of an effort to construe facts in favor of the non-movant, as they should.

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.


Many employees find themselves in a real quandary when the employer asks them to commit an illegal or unethical act. Texas law protects a worker who is asked to break a criminal statute. But, some employees become so vexed about their situation that s/he goes to the media. That is what happened in Peine v. HIT Services L.P., 479 S.W.3d 445,  2015 WL 6490290 (Tex.App. Hou. 2015). Joseph Peine was a CPA working as a CFO for HIT Services, a heavy turbine business group. According to Peine’s evidence, the company was in financial trouble. It had a history of inflating earnings in the past. He was hired to help turn things around, he alleged. This concerns a motion for summary judgment, so Mr. Peine’s allegations should be assumed as correct. The CFO alleged he was asked to inflate earnings for the year. He was told to claim a project had been completed, when it had not been completed. Mr. Peine refused. His boss, Durg Kumar threatened him and others in the CFO office if the CFO did not follow orders. He said he would “clean house” if the CFO did not comply with his order.

Mr. Peine went around Kumar to talk to higher-ups. Mr. Kumar went around Peine to get things included in the quarterly financial statement. The parent company placed Mr. Peine on leave with pay while it investigated claims made about him. About the same time, Mr. Peine contacted a Thomson Reuters reporter and provided documents. He suggested they wait to see if HIT would fix the problems before going forward with any news report. Soon, the company investigation uncovered the email from Peine to the reporter. The investigator, an in-house attorney, recommended that Mr. Peine be fired for violating the company’s confidentiality policy. Within a couple of months of his initial complaint to the parent company, Mr. Peine was fired.

The CFO filed a lawsuit based on Sabine Pilot Services, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). Sabine Pilot is that rare case of judge-made law. That decision recognized an action to sue for a termination resulting from a worker’s refusal to follow an illegal order. The employer moved for traditional summary judgment alleging that Mr. Peine violated the confidentiality policy. The employee responded that there was a genuine issue of fact regarding why he was fired. The court of appeals discussed the standard of proof for a Sabine Pilot case. Sabine Pilot actions require a showing that the “sole cause” of the termination was the order to commit an illegal act. The Plaintiff pointed to statement by Kumar that he would “clean house” if the CFO did not do as he wished and a statement by the parent company that Mr. Peine was a “liability.” Those statements represent direct evidence, said the plaintiff. But, the court of appeals did not accept these statements as direct evidence. The court found they were circumstantial evidence, since there was no indication the persons making those statements had a direct role in Mr. Peine’s termination.

The court did not seem to be aware that in acknowledging the possibility of two different motivations, it was implicitly agreeing that that a jury should decide this issue, not a judge. If there is more than one possible interpretation of the evidence, then under the rules, the decision belongs to the jury, not a judge. But, this irony does not help the plaintiff. Since, few, perhaps no, plaintiffs will survive an appeal to the Texas Supreme Court.

The Plaintiff also presented an expert witness in the area of government compliance. That expert testified that this was a classic case of retaliation. But, the court was still troubled by the fact that he might have been fired for violating the confidentiality policy. The expert could not speak to that possible motivation. Mr. Peine then argued that he expressed concerns to a public forum and should be protected. But, no, said the court, Texas does not recognize freedom to report illegal activities in a private work place. That is true. The Texas whistle blower law only applies to government employees, not private sector workers.

So, the court affirmed the grant of summary judgment. Based on the decision, it does not appear the plaintiff contested whether he truly violated the confidentiality clause. Some employers claim to have such a policy, but upon closer examination, it turns out they often ignore it. It is also unfortunate he went to a reporter. Otherwise, his case should have been solid. Many employees, faced with an unjust termination, reach out to any possible avenue of protection. People who are facing the end of their financial well-being do desperate things. See decision here.

In a per curiam decision, the Fifth Circuit reversed summary judgment for the employer. In Stennett v. Tupelo Public School District, No. 13-60783 (5th Cir. 7/30/2015), Ms. Stennett argued she was more qualified than the persons chosen for various district jobs. Ms. Stennett had formerly worked for the Tupelo Public School District for some 30 years, gradually rising up through the ranks. She was laid off and told she could re-apply for various jobs. She did apply for three different positions for the 2010-11 school year. She was not even interviewed. She was then 64 years old. TPSD then re-hired several former TPSD employees, who were much younger. Ms. Stennett was the only former administrator who was not re-hired by TPSD. The next school year, the plaintiff applied for seven different positions with TPSD and was not hired. She was only interviewed for two of the positions. Yet, the district court granted summary judgment. The employer argued that the teachers who were chosen were more qualified.

The Fifth Circuit reversed summary judgment. It found that in looking at the evidence as a whole, she was much more qualified than the persons who were selected for the positions. On that basis, it found there was sufficient issue of material fact. It said a reasonable jury could conclude Ms. Stennett was more qualified than the persons who were chosen. She was not even interviewed for a position as an Administrative Intern. The court also noted that the employer relied on subjective qualifications that were not included in the job postings. One principal, for example, was looking for someone “to kind of complement him.” Another wanted someone who could provide instructions to the teachers. As the court mentioned, reliance on previously undisclosed job requirements itself can raise a genuine issue of material fact.

This is an unusual case. The court even noted that unlike most cases involving one particular job, Ms. Stennett was turned down for multiple positions. It is difficult to accuse several different persons of discrimination. People just do not generally believe discrimination can occur across different persons. But, Ms. Stennett was able to show undisclosed job requirements, and a lack of explanation by one principal regarding why he did not even interview Ms. Stennett. The plaintiff also showed that the Superintendent had promised to help her find a new position, but did nothing to help her. The superintendent himself did not interview the plaintiff for one position for which he was the hiring official. All this, said the court, amounted to genuine issue of material fact. See decision here. The decision is not published. But, it should be. It goes into substantial detail regarding how to analyze pretextual explanations.


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.

The Fifth Circuit issued an interesting decision reversing summary judgment. In Heinsohn v. Carabin and Shaw, No. 15-50300, 2016 WL 4011160 (5th Cir. 7/26/2017), the higher court found the employer did not have policies in place to support its claim that it fired a Legal Assistant for missing an appeal deadline and for allegedly trying to cover up the missed deadlines. In Heinsohn, the lower court granted summary judgment, finding that the plaintiff failed to show genuine issue of material fact regarding the reasons for her firing.

According to the Fifth Circuit, the law firm failed in showing it had a practice of requiring a Legal Assistant to take any particular action in response to a missed deadline. The plaintiff claimed she did not miss any deadline. But, noted the court, even if she did,  the law firm did not present evidence indicating it had a policy requiring the plaintiff to report a missed deadline. For example, the senior partner testified he would “expect” any employee to report a missed deadline or come to the attorney and ask for guidance. The court asked what does “expect” mean? Does that mean “assume,” or does it mean “require”? Heinsohn, at p. 24 (slip opinion). There was no written policy and the senior partner’s explanation was ambiguous.

The challenge for the employer was that the actual supervising attorney testified he did not really have a problem with the Legal Assistant supposedly missing a deadline. He seemed satisfied that the two missed deadlines were not her fault. As many lawyers have advised employers, employers need to have written policies in place. Without clear policies, the employee will be able to show genuine issue of material fact regarding performance issues.

The higher court also addressed the allegation that Mrs. Heinsohn was fired for being out on pregnancy leave. The plaintiff testified via an affidavit that the law firm wanted a guaranteed, specific date by which she would return to work. She said that was the employer’s true concern, that she could not specify a date when she would return from pregnancy leave. The lower court struck that portion of the plaintiff’s testimony saying it contradicted her email exchange with the law firm. But, the Fifth Circuit disagreed, noting that Fed.R.Ev. Rule 1002 does not require a witness to provide the best evidence in her power. Heinsohn at p. 10. That is, her testimony in an affidavit was sufficient to create a factual issue, even if one interpretation of her email would indicate something to the contrary. As the court noted, when the magistrate judge discounted one source of testimony in favor of another, it was assessing credibility.

The court also relied on Tolan v. Cotton, 134 S.Ct. 1861 (2014) and Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015), in finding that that Mrs. Heinsohn’s testimony should not be disregarded simply because it is “self-serving.” If all such testimony was so discounted, then the testimony of the employer and its employees should be similarly disregarded. Heinsohn, at p. 29. See opinion here.

It is unfortunate that some lower courts still appear to not understand the ruling in Tolan v. Cotton.

The point of summary judgment is to dismiss cases that have no genuine chance of winning in front of a jury, or cases that a jury should not even hear. Summary judgment should result in dismissal of  cases that lack any real issue of fact. Why have a trial if there is no genuine issue? “Summary” means quick. So, if there is no real issue of fact, then it makes sense for the judge to decide the case quickly. But, at some point, some judges have hijacked the summary judgment motion to serve as a vehicle for judicial fact-finding. We see such an example in Wheat v. Florida Parish Juvenile Justice Commission, No. 14-30788 (5th Cir. 1/5/2016).

Lillie Wheat worked as a detention officer at a juvenile detention facility operated by the Florida Parish Juvenile Justice Commission. She rose through the ranks to Assistant Director of Female Services in 2008. In 2009, she took time off under the Family Medical Leave Act for surgery. She was terminated after her leave ran out. She filed suit for FMLA retaliation. She settled her claim and was reinstated to her old job in 2011. The Assistant Director position was filled, so she returned as regular officer but at her old, higher salary. After a couple of issues with juvenile inmates, Ms. Wheat was fired in 2012. She filed suit saying she was fired due to her gender – regarding an issues with a female juvenile inmate – and for FMLA retaliation.

Ms. Wheat advanced several claims for retaliation, a missed raise, the assignment of janitorial duties upon her return, and her request to be transferred away from a difficult juvenile inmate. The majority opinion actually refused to consider many of the retaliation incidents, but did address these three identified acts of retaliation. The majority opinion rejected the janitorial duties claim. Said the court, an “unsupported,” “bare bones” claim that janitorial duties is materially adverse to her career is not enough. The court was saying that her own claim that being assigned janitorial duties was harmful to her career was not enough. The claim lacks “contextual” detail to make that an adverse claim. That finding is counter-intuitive. If a relatively long-term employee like Lillie Wheat cannot testify to what is harmful to her career, who can?

Responding to the dissent, the majority added that there was no evidence that being assigned janitorial duties after being an Assistant Director constituted treating her differently than other detention officers. “Properly read, the record does not exclude the possibility that some ‘janitorial duties’ were expected of JDS officers generally – but especially those, like Wheat, who had just recently been hired or reinstated.” And, in that sentence, the court finds there is no way Ms. Wheat can allege the assignment was adverse.

The court then addressed her positive but late performance evaluations. Although it was positive, it stated that she would not receive a 4% pay raise. Noted the majority opinion, Ms. Wheat checked the box saying she reviewed and agreed with this rating. Ms. Wheat did not appeal this rating at the time. Again in responding to the dissent, the majority argued that the raise “may” have been affected by the lateness of the evaluation. So, that means the dissent agrees she might not meet her burden at trial regarding that factual issue. This possibility is not enough to create a dispute fact, said the majority.

The majority did agree that the termination itself is materially adverse. So, yes, that act does constitute actionable retaliation. Ms. Wheat did show she was treated differently regarding her prior issues with juvenile inmates. Some detention officers were discharged for mis-treating inmates, while others were not. So, the court reversed summary judgment regarding the termination itself.

In dissent, Judge Reeves of the Southern District of Mississippi noted that the majority opinion essentially draws available factual issues against the Plaintiff. For example, regarding the assignment of janitorial duties, Judge Reeves points out that her “bare bones” assertion should be enough. This is summary judgment, not trial. Ms. Wheat is a witness like any other. She also has a relatively long period of working at the detention facility. She is in a position to identify what is harmful to her career. Judge Reeves suggests that simple “common sense” suggests that being assigned janitorial duties when she is senior to many other workers is retaliatory. Or, as the judge explains, whether the janitorial duties were adverse to her is a strong enough issue that a jury should decide it. The dissent pointed to some decisions which explicitly found that a senior person being assigned janitorial duties constitutes negative treatment of that worker.

[Indeed, the majority opinion, seems to countenance that some persons would perceive this assignment as materially adverse when it acknowledges the “possibility.” The court’s use of the word “possibility” suggests a new standard for summary judgment, one that disregards “possible” factual issues. If “possible” facts are now excluded from summary judgment consideration, few cases will pass muster. Too, the disregard of her “unsupported” allegation ignores several cases that find plaintiffs are indeed competent to testify to their own observations. See, e.g. Tolan v. Cotton, 572 U.S. ___, 134 S.Ct. 1861, 1863 (2014); Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Burton v. Freescale Semiconductor, LP, No. 14-50944 (5th Cir. 8/10/2015).]

The dissent pointed out that the Fifth Circuit in Wilson v. Monarch Paper Co., 939 F.2d 1138, 1145 (5th Cir. 1991), found the assignment of a white collar executive to janitorial duties to be retaliatory. But, now, when  this same issue concerns a blue collar executive, the same court finds that no, this treatment was not retaliatory. In a judicial version of a snit, the dissent described the majority’s view as “we-don’t-know-what-janitorial-duties-really” means.

I have to say that phrase is accurate. What sort of evidence is needed to address what janitorial duties mean? Some judges appear to lack experience with real jobs, with real consequences. I am also concerned that the Fifth Circuit seemed to fault the employee in some way for not objecting to her performance evaluation or for not appealing it. Workers who have returned to work as she returned are under a magnifying glass as it is. The majority opinion seems to expect her to disregard the scrutiny and pretend she is a normal worker. That is asking too much from someone who must bring the bread home everyday. All workers tolerate difficult issues from their bosses. Workers who return to work after a lawsuit may have to tolerate even more abuse. It flies in the face of economic reality to expect Ms. Wheat to object to every possible issue. This is a poorly reasoned opinion. See decision here.

Work place harassment is still with us. And, courts still struggle with the term “severe or pervasive.” To rise to the level of work place harassment, conduct must be “severe or pervasive.” In Sanders v. Christus Santa Rosa PASC, 995 F.Supp. 2d 626 (W.D. Tex. 2014), the court looked at the totality of the circumstances and found there was issue of fact whether the harassment was severe or pervasive. Stephanie Sanders worked as a nurse at Christus Santa Rosa Hospitak. Dr. Michael Decherd made numerous sexual comments to the nurse. He showed her a video of a horse sodomizing a woman. He frequently sought her out, hugged her, showed a picture of her to a subordinate, and asked her to friend him on Facebook. He showed her a picture of a man performing oral sex on a woman and said he had changed his mind about oral sex.

The hospital filed a motion for summary judgment. It argued that Dr. Decherd did not follow her into a utility room, but was invited by the nurse. The court correctly pointed out that whether she invited him into the room is for a jury to resolve. The employer pointed out that once in the room, he did not attempt to accost her or kiss her.

The employer pointed to cases which found isolated teasing or banter did not rise to the level of sexual harassment. In those cases, male supervisors engaged in some 5 or 6 incidents of questionable behavior. Yet, the Fifth Circuit in those two cases found them to be isolated or somewhere less than “severe or pervasive.” The Western District observed that the higher court seemed almost to be counting incidents within a certain amount of time to see if there were enough incidents to qualify as severe or pervasive. And, the Western District pointed to a more recent case from the Fifth Circuit, Royal v. CCC & R Tres Arboles, LLC, 737 F.3d 396 (5th Cir. 2013), in which the court found hovering by two men over a woman in a confined space and sniffing could constitute severe or pervasive, such that a jury should resolve the issue. The Western District found these incidents severe or pervasive such that a jury should resolve the issue. It denied the motion for summary judgment.

The employer also argued that because Ms. Sanders continued working after this harassment occurred, that continued working precluded severity as a matter of law. The court rightly noted there is no authority for such an argument. The court then referred to the “aggressive” questioning of Plaintiff during her deposition. It noted that Nurse Sanders had asked Dr. Decherd a medical question about her breast implants.  Apparently based on that question, at Plaintiff’s deposition, the defense asked such questions as did Ms. Sanders flirt with Dr. Decherd, whether she took any responsibility for how Dr. Decherd acted around the nurse, and whether Plaintiff “brought it on at all.” Sanders, supra, at 634. The court rightly seemed troubled by the nature of these questions. I think any defense lawyer asking these sorts of questions without much better basis, is indeed risking judicial ire.

And, in its motion for summary judgment, the defendant had argued that there was nothing sexual or objectively offensive about asking for a cell phone number, being followed into a room and told you are “sexy.” The court did not appear to agree. At that point, the court found that based on the totality of the circumstances, these statements do raise a fact issue regarding whether this conduct was severe or pervasive and constituted harassment. Sanders, supra, at p. 633, n.9. In my opinion, in trying to argue that these sorts of statements are not sexual at all, the defense lawyer lost much credibility with the court.

So, the nurse defeated the employer’s motion for summary judgment. But, it was all for naught. In the end, the jury found Nurse Sanders was not harassed based on her gender. A jury in U.S. District Court essentially sided with the hospital, despite this evidence. Fortunately, the plaintiff had settled with the doctor before the hospital filed its motion for summary judgment. Indeed, with the doctor absent from the trial, the plaintiff may have found it more difficult to use some evidence. The jury did submit one note during its deliberations, suggesting it did at least have some discussion about the merits. This is a note of caution to all plaintiffs: even if you win the motion for summary judgment, that is no guarantee of victory last trial.

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

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

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

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

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

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

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

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

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

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

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

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

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