RECENT EMPLOYMENT LAW CASES OF INTEREST

Alamo Heights Independent School District v. Clark, 544 S.W.3d 755 (Tex. 2018)
Important Case- Sexual Harassment—Same Sex Harassment This discrimination and retaliation suit involves allegations of same-sex harassment and bullying by female coaches in the girl’s athletic department at a San Antonio middle school. The ultimate issue on appeal—the school district’s immunity from suit—is subsumed in two predicate evidentiary matters concerning the governmental-immunity waiver in the Texas Commission on Human Rights Act (TCHRA). The TCHRA waives immunity from suit only for statutory violations, which means the trial court lacks subject-matter jurisdiction over the dispute absent some evidence the school district violated the TCHRA. The main issues in this case are (1) whether the evidence raises an inference of gender-motivated discrimination and (2) whether the complainant must produce evidence to support her retaliation claim when no presumption of unlawful retaliation exists under the McDonnell Douglas burden-shifting framework. The latter inquiry is a question of first impression for the Court. The Supreme Court held that when jurisdictional evidence negates the prima facie case or, as in this case, rebuts the presumption it affords, some evidence raising a fact issue on retaliatory intent is required to survive a jurisdictional plea. The Supreme Court also dealt with the following additional issues:
1. —The “Because of Sex” Requirement. Harassment is illegal “discrimination”only if it is “because of” sex or some other protected characteristic. Harassment that is merely “about” sex is not, standing alone, sex “discrimination.” In this case, the plaintiff alleged “same sex” sexual harassment. Both the plaintiff and the harasser were women. Much of the harassment involved vulgar language and conduct was “about” sex, but it was not clear that the harassment was because of the plaintiff’s sex. The trial court granted the employer school district’s plea to the jurisdiction based on failure to allege facts supporting an inference of discrimination. The Supreme Court affirmed. The Court identified three ways harassment might be sex discrimination. First, harassment might be illegally discriminatory if it is motivated by sexual attraction. A presumption that a harasser is motivated by sexual attraction does not apply in the case of same sex harassment. Thus, additional facts might be necessary to support an allegation of harassment because of sexual attraction, but the evidence did not support such a claim in this case. Same sex harassment might also be illegally discriminatory because of the harasser’s hostility toward the victim’s sex, but evidence did not support a claim of sex-based hostility in this case. Third, same sex harassment is illegally discriminatory if the harasser harasses only persons of one sex and not the other (whatever the motivation), but there was no comparative evidence or facts to show that the harasser treated employees of one sex differently than employees of the other sex. The Court rejected a fourth method of proof the court of appeals had endorsed: evidence that the harassment included comments about the anatomy of one sex and not the other (or, as the Court put it, comments about “gender specific anatomy” and characteristics). The Court held that motivation is the key, and a harasser’s comments about anatomy of one sex or the other is not necessarily harassment “because of” the listener’s sex. “Regardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases.” The Court further said: “Regardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases. The [U.S.]Supreme Court was abundantly clear that gender motivation is not established ‘merely because the words used have sexual content or connotations.’ The Court rejected pre-Oncale lower-court authority holding ‘workplace harassment that is sexual in content is always actionable, regardless of the harasser’s sex, sexual orientation, or motivations. Consistent with Oncale, many courts in same-sex cases have recognized that crude, gender-specific vulgarity alone is insufficient to show that harassing behavior is because of gender. Furthermore, that a comment relates to a woman’s body says nothing about the speaker’s motive. The TCHRA is not a strict liability statute that mandates a finding of sex discrimination for any mention of a gender-specific body part. Motivation, informed by context, is the essential inquiry. Why matters. In other words, the bare act of one woman speaking to another woman about her female anatomy does not establish the comments were gender motivated.”
2. Retaliation—Motivating Factor v. “But For” Causation. —The Court noted an issue whether retaliation claims under Texas law are subject to the “but for” standard of causation or “motivating factor” standard. However, the Court passed on deciding this issue because the parties had assumed the “but for” standard would apply for purposes of the proceedings in the lower courts. Justices Boyd and Lehrmann, dissenting, would have applied the “motivating factor” rule.
3. Retaliation—Protected Conduct—Complaints About Rude or Offensive Behavior. One of the issues was whether a written statement the plaintiff filed with her employer qualified as“protected conduct” for purposes of anti-retaliation protection under Chapter 21of the Texas Labor Code. To constitute protected conduct, a complaint to the employer “must, at a minimum, alert the employer to the employee’s reasonable belief that unlawful discrimination is at issue.” The plaintiff’s complaint about “harassment” and “rude,” behavior, standing alone, was not enough to alert the employer that the employee was complaining about harassment motivated by sexual desire or discrimination on the basis of sex.
4. Retaliation—Materially Adverse Action. A “growth plan” an employer requires for an employee may or may not be a materially adverse action for purposes of retaliation law. The consequence threatened for failure to satisfy the growth plan is a key factor for determining whether the “plan” or similar disciplinary action is materially adverse. In this case, the employer warned that failure to comply with the growth plan would lead to termination, and the plaintiff was eventually terminated, so the Court held that the plan did constitute a materially adverse action. In evaluating but-for causation evidence in retaliation cases, court examines all of the circumstances, including temporal proximity between the protected activity and the adverse action, knowledge of the protected activity, expression of a negative attitude toward the employee’s protected activity, failure to adhere to relevant established company policies, discriminatory treatment in comparison to similarly situated employees, and evidence the employer’s stated reason is false. Analyzing these factors as a whole, the Supreme Court concluded no genuine fact issue about causation exists. Temporal proximity is relevant to causation when it is “very close.” Eight months passed between the EEOC charge and the principal’s termination recommendation. The Court held that gap too long as to be of little, if any, probative value.
5. Proof of Prima Facie Case. The Court held that in this case the prima facie case was rebutted. The Court stated that “there is no presumption and thus no evidence of illegal intent. Permitting a McDonnell Douglas case to proceed to trial when the prima facie case has been rebutted and the plaintiff has not raised a fact issue on causation defies logic. More importantly, allowing a trial to proceed without evidence to sustain a claim is repugnant to the TCHRA’s immunity waiver and contrary to the legitimate objectives of governmental immunity. Though Clark [the plaintiff] concedes she would be required to raise a material fact issue on pretext in a summary-judgment proceeding, she argues the plaintiff’s burden to respond to a jurisdictional challenge should be minimal and not unnecessarily involve the merits. We reject this argument. When the merits and jurisdiction overlap, as they do in TCHRA cases, and the defendant challenges the evidence to sustain a violation, plea-to-the-jurisdiction proceedings ‘mirror[] that of a traditional summary judgment motion.’ Whether by jurisdictional plea or summary-judgment motion, the plaintiff is not put to the ultimate burden of proof but must only raise a fact issue on the existence of illegal intent. Clark asserts that if all the elements of the burden-shifting evidentiary mechanism are jurisdictional, a ‘plaintiff suing a governmental entity would be in the position of pleading[] facts to rebut the defendant’s proffered excuse without full discovery, when the facts and details that show an excuse is false or a pretext are often solely in the control of the defendant.’ Clark’s concerns about the impact on pleading practice are unwarranted. Once a defendant challenges the plaintiff’s case with evidence, the jurisdictional inquiry focuses on the evidence and whether the plaintiff can create a fact issue. The pleadings are not implicated, and if discovery is necessary, trial courts have broad discretion to permit targeted discovery and alter hearing deadlines to allow parties the opportunity to respond with evidence.”The Texas Supreme Court held that the plaintiff’s evidence of pretext was insufficient to withstand a plea to the jurisdiction. The employer discharged the plaintiff eight months after the alleged protected conduct, but temporal proximity is evidence of “causation” only when it is “very close,” and eight months is not “very close.” The plaintiff did have other evidence of “causation.” First, a decision-maker knew about the plaintiff’s complaint about harassment. Second, that decision-maker responded that there would be “consequences,” but the Court found that this comment was so “vague” and “devoid of context” it had “barely a scintilla of probative value.” Third, there was some evidence that the employer did not follow its own policies in investigating and disciplining the plaintiff. However, given the employer’s unrebutted evidence of the plaintiff’s performance problems, “the remaining causation factors weigh heavilyin [the employer’s] favor,” and the Court concluded that “no fact issue exists” regarding alleged pretext.
6. Government Immunity—Requirements for Evidence to Avoid Plea to Jurisdiction–Pretext— The State of Texas has waived sovereign and governmental immunity against claims under Chapter 21, subject to the right of the State or a political subdivision to file a plea to the jurisdiction challenging whether there is a question of fact regarding the plaintiff’s claim. In this case, the Supreme Court of Texas adopted at least one new rule affecting the manner in which a plea to the jurisdiction must be resolved in a discrimination or retaliation case, including a Chapter 21 case. A plea to the jurisdiction based on factual sufficiency proceeds for the most part in a manner similar to a motion for summary judgment, especially if the plea is based on the non-existence of an issue of fact regarding the merits of the plaintiff’s claim. The lower courts in this case held that a court addressing a plea to the jurisdiction in a discrimination case should examine only whether the plaintiff can present minimal facts for a prima facie case, and that the court should not resolve a question of “pretext” on a plea to the jurisdiction. The Supreme Court of Texas reversed on this point. Even if the plaintiff has presented evidence of facts sufficient for a prima facie case, a defendant’s presentation of facts regarding a nondiscriminatory reason for the adverse action shifts a burden to the plaintiff to present evidence of facts showing pretext. If the plaintiff cannot present sufficient evidence to create a fact issue regarding “pretext,” the court should grant the plea to the jurisdiction and dismiss the plaintiff’s claim.
7. Dissenting Opinion. There was a dissenting opinion by Justices Boyd and Lehrmann. After reading the majority opinion, it’s not hard to see why these justices dissented. Anytime, the majority opinion spends several pages attacking/rebutting the dissenting opinion, you know something smells. If you represent plaintiffs in these type cases, you may want to take some solace in the dissent’s challenge of the majority’s opinion. As Justice Boyd states in the dissent, “In short, the Court distorts the applicable standard of review. Evidence supporting one fact does not negate evidence supporting a conflicting fact, even if the record contains significantly more of the former than of the latter.” Also, “The Court concludes that no evidence supports the inference of gender-based conduct because ‘only a handful’ of the ‘more than one hundred incidents’ Clark complained of involved comments ‘about female body parts, including Clark’s buttocks, the size of her breasts, and whether they are real.’… In fact, however, Clark testified that Monterrubio commented about Clark’s breasts ‘almost every day’ during their first few months working together. While she did not chronicle and detail all of those comments, she was not required to ‘marshal’ all of her evidence and ‘prove her claim’ to defeat the District’s jurisdictional plea. Mission Consol., 372 S.W.3d at 637. Instead, she merely had to provide ‘more than a scintilla’ of supporting evidence to create a fact issue…Here, the Court intercepts the jury’s responsibility, ignoring evidence that supports a finding of sexual desire because other evidence supports a finding that Monterrubio engaged in the harassing conduct for ‘other reasons,’ and failing to consider the reasonable inference that Monterrubio’s conduct and motives changed over time as Clark repeatedly responded negatively to Monterrubio’s comments and actions. Viewed under the applicable standard of review, I must conclude that the evidence here requires that a jury decide whether Monterrubio harassed Clark out of sexual desire and thus ‘because of’ her gender.”
Texas Workforce Commission v. Wichita County (Tex. 2018; Docket: 17-0130; May 25, 2018)
FMLA and Unemployment Eligibility
An individual qualifies as “unemployed” for purposes of the Texas Unemployment Compensation Act while taking unpaid leave from her job under the federal Family Medical Leave Act (FMLA), but eligibility for unemployment benefits requires more than “unemployed” status. Julia White went on FMLA leave for severe anxiety and depression. Before White returned to work for Wichita County, she filed a claim for unemployment benefits. The County contested the claim on the ground that White remained a County employee and thus did not qualify for benefits. The Texas Workforce Commission determined that White was “unemployed” while on her unpaid leave of absence and that it could pay her benefits if she met all other requirements. The trial court reversed. The court of appeals affirmed, concluding that it would be “absurd” for an individual to be entitled to unemployment benefits during FMLA leave. The Supreme Court reversed, holding (1) an individual on unpaid medical leave, even if protected under the FMLA, satisfies the Act’s definition of unemployed and may qualify for unemployment benefits if she meets the Act’s eligibility requirements; and (2) substantial evidence supported the Commission’s decision in this case.
Valadez v. Stockdale TX SNF Management, LLC, 2018 WL 1610932 (Tex. App.—San Antonio 2018) (not published in S.W.3d)
Employees of Assisting Living Facilities—Reporting of Abuse by One Patient Against Another——Section 260A.014(b) of the Texas Health and Safety Code prohibits employment retaliation because of a report of abuse of patients or residents of certain assisted living or other medical institutions and shelters. In this case, the court held that two employees were engaged in protected conduct when they reported one nursing home resident’s threats to harm other residents. Thus, retaliatory action based on their reports would be illegal retaliation. The court reversed summary judgment for the employer and remanded for further proceedings.
Long v. State, 535 S.W.3d 511 (Tex. Crim. App.2017)
Surreptitious Recording of Employee Speech on Job—A school principal who arranged for the surreptitious recording of a school coach’s halftime meeting with his players violated a Texas wiretap statute. See Tex. Penal Code § 16.02. Even though the coach was engaged in speech to his players, he could reasonably have expected his speech would not be recorded. The court affirmed the principal’s criminal conviction.
Advance Tire and Wheels, LLC v. Enshikar, 527 S.W.3d 476 (Tex. App.—Houston [1st Dist.] 2017)—
Non-Subscribers—Tort Liability for Work-Related Accidents—Failure to Provide Necessary Instrumentalities—Employee Knowledge of Risk
A “nonsubscriber” employer who does not buy workers’ compensation insurance remains liable to employees under tort law for work-related injuries for which the employer is at fault. A troubling question is whether an employee’s knowledge of a risk defeats the employee’s negligence claim against the employer. The Supreme Court has indicated that a diligent employee who continues work in the face of a premises danger cannot hold the employer liable for a resulting injury. Austin v. Kroger, Tex., L.P., 465 S.W.3d 193, 214 (Tex. 2015). In this case, the court of appeals holds that the rule in Austin applies only in a case of premises liability. The employer’s liability here was based on its negligent failure to provide necessary instrumentalities for the employee’s work. Thus, the employee’s appreciation of the risk posed by faulty equipment supplied by the employer was no defense for the employer.
Carley v. Crest Pumping Technologies, LLC, (5th Cir.; Docket: 17-50226, May 16, 2018)
FLSA-Exemption from Overtime
The Fifth Circuit vacated the jury verdict in favor of plaintiffs, former employees of Crest, in an action alleging violation of the Fair Labor Standards Act. The court held that the magistrate judge incorrectly placed the burden of proof on Crest as to the SAFETEA-LU Technical Corrections Act’s applicability, and plaintiffs presented no evidence to meet their burden of proving the weight of the vehicles they operated. In this case, there was no legally cognizable evidence provided by plaintiffs to refute Crest’s evidence that the gross vehicle weight rating of the vehicles was more than 10,000 pounds and thus the Corrections Act was applicable.
Kimberli Gardner v. CLC of Pascagoula, LLC, (5th Cir.; Docket: 17-60072; June 29, 2018)
Sexually Hostile Work Environment by Third Party- Retaliation– Female CNA working at nursing home was sexually harassed by resident creating a hostile work environment. Male resident’s actions against female CNA employee of nursing home were extreme with grabbing sexual body areas, hitting, and other extreme behavior. Nursing home took no effective remedial action even though it knew about attacks. District Court granted summary judgment in favor of nursing home. CNA appealed and 5th Circuit held that third party resident could create a hostile work environment and the nursing home could be liable if they knew or should have known of the hostile work environment and took no effective reasonable remedial action. The Court also stated that the CNA’s refusal to take care of resident after the attack by him could be oppositional activity for purposes of a retaliation claim. The 5th Circuit reversed the motion for summary judgment.