Articles Posted in Labor & Employment Law

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The panel opinion, special concurrence, and dissent previously issued in this case were withdrawn, and the following opinions were substituted in their place. Plaintiff filed suit against his employer, BNSF, for disability discrimination and retaliation after he was diagnosed with Parkinson's disease and later placed on medical leave. The Fifth Circuit reversed the district court's grant of summary judgment to BNSF on plaintiff's disability discrimination claim because there was a fact issue as to whether BNSF discriminated against plaintiff. However, the court affirmed the district court's judgment on the retaliation claim and held that plaintiff failed to establish a prima facie case of an unlawful retaliation. View "Nall v. BNSF Railway Co." on Justia Law

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The Fifth Circuit denied a petition for rehearing and petition for rehearing en banc. The court substituted this opinion in place of its prior opinion. The court affirmed the district court's judgment as to plaintiff's hostile work environment claim and held that plaintiff sufficiently alleged sustained harassment that undermined his ability to work. In this case, he was repeatedly subjected to behavior that was hostile, intimidating, and bullying, and it was done publicly over a period of more than three years. Furthermore, defendant was deliberately indifferent to this racially hostile work environment. The court also affirmed as to the 42 U.S.C. 1981 claim and held that defendant retaliated after plaintiff complained about discrimination by transferring him to the night shift in a different division. Therefore, plaintiff's allegations supporting unlawful retaliation establish a violation of his constitutional rights, one that a reasonable official would know was unlawful. However, the court held that defendant was entitled to qualified immunity on the First Amendment retaliation claim where it was not clearly established that an internal complaint of discrimination made only to supervisors, primarily to vindicate one's own rights, qualified as speech made as a "citizen" rather than as an "employee." View "Johnson v. Halstead" on Justia Law

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In Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), the Fifth Circuit held that Title VII does not prohibit discrimination on the basis of sexual orientation. The court held that Blum remained binding precedent. Nonetheless, the court affirmed the district court's judgment in an action alleging that Phillips 66 discriminated against an employee based on the employee's transgender status. The court held that the district court correctly granted summary judgment for the employer because the employee failed to present sufficient evidence to support a prima facie case of discrimination, and because the employee failed to present a genuine issue of material fact concerning pretext. In this case, the employee did not present evidence that any non-transgender applicants were treated better, and Phillips 66 identified a legitimate, non-discriminatory reason for rescinding the offer—namely, the employee's misrepresentations regarding her prior employment. View "Wittmer v. Phillips 66 Co." on Justia Law

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The Fifth Circuit withdrew the prior opinion and substituted the following opinion. In this case, a nurse alleged that an assisted living center allowed a hostile work environment to continue by not preventing a resident's repetitive harassment. Plaintiff filed suit under Title VII after she was terminated in part for refusing to care for an aggressive patient in a nursing home. The court reversed the district court's grant of summary judgment on the harassment claim and held that the evidence of persistent and often physical harassment by the aggressive patient was enough to allow a jury to decide whether a reasonable caregiver on the receiving end of the harassment would have viewed it as sufficiently severe or pervasive even considering the medical condition of the harasser. In this case, an objectively reasonable caregiver would not expect a patient to grope her daily, injure her so badly she could not work for three months, and have her complaints met with laughter and dismissal by the administration. The court allowed the district court to consider plaintiff's retaliation claim via direct evidence for the first instance on remand. View "Gardner v. CLC of Pascagoula, LLC" on Justia Law

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Plaintiff filed suit against Chief Justice Valdez in his individual and official capacities, arguing that Valdez intervened in plaintiff's hiring as retaliation for plaintiff filing a complaint against Valdez. The Fifth Circuit held that Valdez is entitled to qualified immunity because it was not clearly established as of May 2014 that where a briefing attorney swore as part of his employment to comply with a code of conduct requiring him to report judicial misconduct to a specific state authority, he nonetheless spoke as a citizen in reporting a judge to that authority. Accordingly, the court reversed the district court's order denying Valdez's motion for summary judgment in both his official and individual capacity. View "Anderson v. Valdez" on Justia Law

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After the union filed a grievance against Southwest for using non-union vendors to clean the interiors of remaining overnight aircraft, the arbitrator ruled that the grievance was timely because the union filed it within ten working days after the collective bargaining agreement (CBA) was signed. The Fifth Circuit reversed the arbitration award in favor of the union and held that the arbitrator erroneously ruled that the CBA became effective on the date it was signed. In this case, the arbitrator ignored the unambiguous terms of the CBA. Therefore, the court remanded for further proceedings. View "Southwest Airlines Co. v. Local 555" on Justia Law

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One of the plaintiffs in this case rejected a Federal Rule of Civil Procedure 68 offer of judgment and proceeded to trial, where she prevailed on her Fair Labor Standards Act (FLSA) claim and was awarded damages and attorney's fees. In this case, the damages she won at trial were lower than the offer she had earlier rejected, and so Rule 68 required her to pay defendants' post-offer costs. The Fifth Circuit joined its sister circuits and held that, in assessing a plaintiff's degree of success under a fee-shifting provision like the FLSA's, a court should consider a plaintiff's rejection of a Rule 68 offer that would have given her more than what she ultimately obtained at trial. The court affirmed the fee award here, because the district court properly considered the Rule 68 offer in its considerable downward adjustment of the lodestar. View "Gurule v. Land Guardian, Inc." on Justia Law

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Plaintiff filed suit against his employer, BNSF, for disability discrimination and retaliation after he was diagnosed with Parkinson's disease and later placed on medical leave by the company. The Fifth Circuit reversed the district court's grant of summary judgment for BNSF on plaintiff's disability discrimination claim, holding that even assuming BNSF's alleged safety concerns were legitimate and non-discriminatory, the totality of the circumstances created a material fact issue as to whether BNSF's proffered reasons for refusing to reinstate plaintiff were merely pretextual. The court affirmed the district court's judgment regarding the retaliation claim and held that plaintiff failed to provide sufficient evidence to support a causal link between the filing of his EEOC claim and his continued placement on medical leave. The court remanded for further proceedings. View "Nall v. BNSF Railway Co." on Justia Law

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The Fifth Circuit affirmed the district court's denial of qualified immunity to defendant, the chief of police, on plaintiff's hostile work environment claim where plaintiff, a police sergeant, sufficiently alleged that he sustained harassment that undermined his ability to work and defendant was deliberately indifferent to this racially hostile work environment. The court also affirmed the district court's denial of qualified immunity on 42 U.SC. 1981 claims where plaintiff's allegations of a retaliatory shift change supported a claim of unlawful retaliation that a reasonable officer would know was unlawful. However, the court reversed as to plaintiff's 42 U.S.C. 1983 First Amendment retaliation claim where defendant was entitled to qualified immunity, because it was not clearly established that an internal complaint of discrimination made only to supervisors, primarily to vindicate one's own rights, qualified as speech made as a citizen rather than as an employee. Accordingly, the court remanded for further proceedings. View "Johnson v. Halstead" on Justia Law

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Hensel, the general contractor building a new Austin public library, maintained control over the worksite through on-site management personnel, Hensel's subcontractor, HEW, worked on the project’s East Screen Wall. HEW's sub-subcontractor, CVI, was to complete demolition and excavation for the Wall. A nearly vertical 12-foot wall of “Type C” soil developed. Occupational Safety and Health Administration (OSHA) regulations mandate systems to protect employees from cave-ins. No protective systems were in place. On a rainy morning in 2015, CVI was to reinstall rebar at the base of this wall of soil, preliminary to pouring concrete footings. Concerned about the weather and the instability of the wall, CVI owner Daniels sent his employees to work on another area. Hensel's superintendent instructed Daniels to return his employees to the excavation. Daniels sent an email to HEW’s senior project manager, who gave only a cursory reply. Daniels sent his employees back to the excavation. That day, an OSHA compliance officer discovered CVI employees working at the unprotected wall. The city inspector, Hensel’s superintendent, and HEW’s superintendent were present. OSHA cited CVI and Hensel for violating 29 C.F.R. 1926.652(a)(1), pursuant to its multi-employer citation policy. OSHA considered Hensel a “controlling employer” An ALJ agreed but found that Fifth Circuit precedent that “OSHA regulations protect only an employer’s own employees,” foreclosed the citation. The Fifth Circuit reversed, deferring to OSHA’s construction of 29 U.S.C. 651, as granting authority to issue citations to controlling employers. View "Acosta v. Hensel Phelps Construction Co." on Justia Law