Young v. United Parcel Service, Inc., 575 U.S. ____, (2015)
Pregnancy Discrimination
The Pregnancy Discrimination Act specifies that Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions,” 42 U.S.C 2000e(k), and that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Young, a UPS driver, became pregnant; her doctor advised that she should not lift more than 20 pounds. UPS required drivers to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction. Young filed a disparate-treatment claim of discrimination, identifying UPS policies that accommodated workers who were injured on the job, were covered by the Americans with Disabilities Act, or had lost Department of Transportation certifications. UPS argued that, since Young did not fall within those categories, it had not discriminated on the basis of pregnancy, but had treated her as it treated all “other” relevant “persons.” The district court granted UPS summary judgment. The Fourth Circuit affirmed. The U.S. Supreme Court vacated. Disparate treatment law normally allows an employer to implement policies that are not intended to harm members of a protected class if the employer has a nondiscriminatory, nonpretextual reason. A pregnant worker can make a prima facie case of disparate treatment by showing that she sought and was denied accommodation and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then try to establish “legitimate, nondiscriminatory” reasons, other than that it is more expensive or less convenient to accommodate pregnant women. If the employer offers a reason, the plaintiff may show that it is pretextual. The plaintiff may survive a motion for summary judgment by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden. The plaintiff can create a genuine issue of material fact as to “significant burden” with evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Young created a genuine dispute as to whether UPS provided more favorable treatment to some employees whose situation cannot reasonably be distinguished from hers.
Collie v. IBEX Staffing Solutions, Inc., 2015 Tex.App. LEXIS 2284
Jury Instructions-Pretext Inference
This was a Texas state court jury trial involving a charge of discrimination by the plaintiff-employee against the defendant-employer. The plaintiff requested a jury instruction that, “if you disbelieve the reasons [employer] has given for its decision, you may but are not required to find that [employer] terminated [Plaintiff] based on her race.” The trial court rejected this instruction and gave the jury only the statutory “motivating factor” instruction. The jury returned a verdict for the employer. The plaintiff appealed arguing that the refusal to give the instruction was reversible error. The Court of Appeals affirmed holding that the trial court refusal was not reversible error and the court did not abuse its discretion. In essence, the CCA rejected the U.S. Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, Inc. insofar as it might apply to jury instructions and rejected the example offered by the Fifth Circuit’s pattern jury instructions. The case is an unpublished opinion and it remains to be seen as to the effect of this opinion on the development of Texas case law relating to Fifth Circuit law in this area. Generally, the two bodies of law relating to discrimination law tend to follow each other but are not bound to do so.
Rincones v. WHM Custom Services, Inc.,457 S.W.3d 221 (Tex.App.-Corpus Christi 2015)
Defamation- Compelled Self-Publication
In a defamation suit, the plaintiff must prove a “publication” of the false information by the defendant. According to a theory of “compelled self-publication,” an employer might be liable for defamation if the employer’s actions were such that the employer knows will compel the employee to disclose the accusation to prospective employers as a part of the hiring process. Only a few courts have recognized this cause of action; one, being the Corpus Christi court of appeal. The court of appeals reaffirmed its decision of thirty years ago that the theory of self-publication is valid. In this case, the plaintiff’s drug test was a false positive and the employer refused to allow him to retake the test. The employer would not state that he retook the test, which was negative. The court also held that the contractor conducting the tests owed a duty of care to the employee in reporting the result of the test.
Keller v. Miri Microsystems LLC, 781 F.3d 799, (6th Cir. 2015)
FLSA- Overtime- Misclassification as Contractor
Miri is a satellite-internet-dish installation company. Keller installed satellite internet dishes for Miri’s customers six days each week. Keller alleges that Miri did not compensate him adequately as an employee under the Fair Labor Standards Act, 29 U.S.C. 207, by failing to pay him overtime compensation. Miri contends that Keller was an independent contractor, not entitled to overtime pay. The district court entered summary judgment in favor of Miri. The Sixth Circuit vacated. The FLSA’s definition of “employee” is strikingly broad and “stretches the meaning of ‘employee’ to cover some parties who might not qualify as such under a strict application of traditional agency law principles.” The court stated that it must look to see whether a worker, even when labeled as an “independent contractor,” is, as a matter of “economic reality,” an employee. Rutherford Food Corp. v. McComb, 331 U.S. 722, 729 (1947) (“Where the work done, in its essence, follows the usual path of an employee, putting on an ‘independent contractor’ label does not take the worker from the protection of the Act.”). Keller offered sufficient evidence that he was an employee and that he worked more than 40 hours each week to survive summary judgment.
Dodds v. Terracon Consultants, Inc., 2015 U.S. Dist. LEXIS 63787 (S.D. Tex., May 15, 2015)
Sabine Pilot Cause of Action Not Preempted By Surface Transportation Assistance Act
Dodds, an at-will employee who worked for Terracon Consultants, was fired for refusing to work over a weekend. Dodds contends that a Department of Transportation regulation barring employees from driving commercial vehicles after working 60 hours in 7 days prevented him from working that weekend. Dodds sued Terracon under Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985), which prohibits an employer from firing an employee based solely on his refusal to perform an illegal act. After discovery, Terracon moved for summary judgment, arguing that it did not require Dodds to perform an illegal act and that Sabine Pilot did not apply because Dodds has a statutory remedy under the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105 et seq. The STAA provides that a person may not discharge an employee because the employee refuses to operate a vehicle because the operation violates a regulation of the United States related to commercial motor vehicle safety, health, or security. An employee discharged in violation of the STAA may file an administrative complaint with the Secretary of Labor, who can order the employer to rehire the employee and pay compensatory damages and punitive damages of up to $250,000. If the Secretary of Labor does not issue a timely final order, the employee may bring an action for de novo review in United States District Court. If the Secretary issues a final order after a hearing, any person adversely affected by that order may file a petition for review in the appropriate United States Court of Appeals. The STAA states that [n]othing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement. Terracon claimed that Dodds could not utilize the Sabine Pilot common law cause of action because the statutory remedy provided by STAA precluded its use under case law citing cases from other states. The Court discussed the Texas Supreme Court case of Safeshred, Inc. v. Martinez, 365 S.W.3d 655 (Tex. 2012). The Court held that the current state of the law in Texas makes it inappropriate for the court to dismiss the state-law Sabine Pilot claim based on the federal statutory remedy. The Court held that finding the Sabine Pilot claim precluded or preempted by the STAA statutory remedy was inconsistent with the Texas Supreme Court’s recent decision in Safeshred, which allowed a Sabine Pilot claim for an at-will employee discharged for refusing to violate a DOT regulation. The motion for summary judgment was denied.
Ecclesiastical Abstention Doctrine–Ministerial Exception
Pastor Reese entered into an employment agreement with a Presbyterian Church (²Church²). The agreement provided that Reese would serve as pastor of the Church for a five-year period with the possibility of two additional five-year terms. In July 2011, the Church terminated Reese’s employment. Reese then filed a lawsuit against the Church for breach of contract and intentional infliction of emotional distress. Reese sought damages including, the loss of future and past wages, punitive damages and attorney’s fees. The Church filed a Plea to the Jurisdiction alleging that the trial court lacked subject matter jurisdiction over Reese’s claims based upon the First Amendment to the Constitution. The trial court granted the Church’s Plea to the Jurisdiction and dismissed all of Reese’s claims with prejudice. Reese then appealed. Federal and state courts have utilized the so-called ²ecclesiastical abstention doctrine² and the ²ministerial exception.² The broad ecclesiastical abstention doctrine prohibits civil courts from exercising jurisdiction over matters concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them. The ministerial exception provides that civil courts lack subject matter jurisdiction to decide cases concerning employment decisions by religious institutions concerning a member of the clergy or an employee in a ministerial position. The Court in this case relied on the U.S. Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and Sch. v. E.E.O.C., 132 S. Ct. 694, 705-6, 181 L. Ed. 2d 650 (2012). In Hosanna-Tabor, the Supreme Court said that: “[Respondent] continues to seek front pay in lieu of reinstatement, back pay, compensatory and punitive damages, and attorney’s fees. An award of such relief would operate as a penalty on the Church for terminating an unwanted minister, and would be no less prohibited by the First Amendment than an order overturning the termination. Such relief would depend on a determination that [the church] was wrong to have relieved [respondent] of her position, and it is precisely such a ruling that is barred by the ministerial exception.” The Reese Court said that if it were to second guess the Church’s decision to terminate Reese, it would deprive the Church of its right ²to shape its own faith and mission² by ²imposing an unwanted minister.² Further, the Court stated that Reese is seeking damages nearly identical to those sought by the respondent in Hosanna-Tabor. As such, any monetary award by the Court would ²operate as a penalty on the Church for terminating an unwanted minister.² The Reese Court held that the failure to extend the crux of Hosanna-Tabor to this case would result in the untenable consequence of the Court establishing religion and preventing the free exercise thereof in violation of the First Amendment. These cases lead to the apparent result that a minister is unable to enter into an enforceable employment contract with a church, that could allow the minister any guaranteed employment term. It is hard to believe that any group could be above the law involving employment or simple contract law, but, apparently there is such a group, and it is called a church.