Wash & Thomas Blog
Commentary on Employee Rights, Bankruptcy, Personal Injury, and Social Security Disability laws in Texas

Texas Employee Rights

Recent Cases Affecting Employment Law
By Danny Wash

Vance v. Ball State University, U.S. Supreme Court, No. 11-556, Decided 6/24/13
Title VII- Definition of Supervisor- Supreme Court ruled that, under the federal Title VII discrimination statute, an employer can be held vicariously liable for an employee’s unlawful harassment only where that particular employee has been empowered with the authority “to take tangible employment actions against the victim.” The term “supervisor” is not defined in Title VII. Instead, it was adopted by the Supreme Court as a way to identify those individuals whose actions could give rise to vicarious employer liability in the two earlier decisions of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). As established in Ellerth and Faragher, the standard to determine the employer’s liability is different based on whether or not the alleged harasser held a “supervisor” position. First, where the alleged harasser is only the individual’s co-worker (and not a supervisor), the employer is liable only if it was negligent in failing to prevent the harassment from taking place. Conversely, where the alleged harasser is the individual’s supervisor, and the harassment results in an adverse tangible employment action, the employer will be strictly liable. However, if no tangible employment action is taken, the employer can avoid liability if it can demonstrate, as an affirmative defense, that (1) it exercised reasonable care to prevent and eliminate harassment, and (2) that the plaintiff unreasonably failed to take advantage of the preventive or remedial opportunities provided by the employer. The Supreme Court rejected guidance issued by the Equal Employment Opportunity Commission – and adopted by several other circuit courts -that links supervisor status, in part, to an employee’s ability to direct another’s daily tasks. Accordingly, according to the Majority decision, “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ’significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’”

University of Texas Southwest v. Nassar, U.S. Supreme Court, No. 12-484, Decided 6/24/13
Title VII Retaliation- In this case the Supreme Court held that Title VII retaliation claims must be proved according to traditional principles of “but-for” causation, not the lessened causation test stated in §2000e–2(m). An employee alleging status-based discrimination under §2000e–2 need not show “but-for” causation. The Court stated that it suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives for the decision. However, Title VII’s anti-retaliation provision appears in a different section from its status-based discrimination ban. And, like §623(a)(1), the Age Discrimination in Employment Act (ADEA) provision in Gross, §2000e–3(a) makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. The Court decided that given the lack of any meaningful textual difference between §2000e–3(a) and §623(a)(1), the proper conclusion is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.

EEOC v. Houston Funding II, LLC, 2013 U.S. App. LEXIS 10933; May 30, 2013
Pregnancy Discrimination- Plaintiff EEOC sued defendant employers alleging a former employee was unlawfully discharged because she was lactating and wanted to express milk at work. The U.S. District Court for the Southern District of Texas granted summary judgment to the employers, finding that, as a matter of law, discharging a female employee because she was lactating or expressing milk was not sex discrimination. The EEOC appealed to the 5th Circuit. The employee had regularly kept in touch while she was absent on maternity. When she called to say she had been released to return to work, and again mentioned she was lactating and asked if she could use a back room to pump milk, there was a long pause after which she was told her job had been filled. A later termination letter stated she was discharged due to job abandonment, effective 3 days before the phone call. The EEOC’s argument that the employee was discharged because she was lactating or expressing milk stated a cognizable sex discrimination claim under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, § 2000e(k). Lactation, the physiological process of secreting milk from mammary glands and directly caused by hormonal changes associated with pregnancy and childbirth, was a related medical condition of pregnancy for purposes of § 2000e(k). It is a physiological result of being pregnant and bearing a child. The EEOC had also proffered evidence showing that the stated reason for the discharge, job abandonment, was pretextual. There was thus triable evidence from which a factfinder could find a violation of Title VII.

El Paso County Juvenile Board v. Aguilar, 387 S.W.3d 795 (Tex.App.-El Paso 2012)
Immunity-Worker’s Comp Retaliation- Former employee of county juvenile board brought suit alleging termination for filing a worker’s compensation claim in violation of Sec. 451 Texas Labor Code. Board filed a plea to the jurisdiction alleging governmental immunity in the wake of the Texas Supreme Court’s decision in Travis Central Appraisal District v. Norman, 342 S.W.3d 54 (Tex.2011). Sovereign immunity protects the State, its agencies, and its officials fro lawsuits for damages. A political subdivision enjoys governmental immunity from suit to the extent it has not been abrogated by the Legislature. A cause of action under Section 451 Texas Labor Code cannot proceed against a governmental entity absent Legislative consent. The Political Subdivisions Law (PSL) did not waive immunity for political subdivisions according to the Texas Supreme Court in Norman. A county juvenile board is a political subdivision of the State according to the PSL. Therefore, the employee’s suit was dismissed for lack of jurisdiction.

El Paso County v. Kelley, 390 S.W.3d 426 (Tex.App.- El Paso 2012)
Exhaustion of remedies- Texas Commission on Human Rights Act- Former county employee filed a complaint with the Texas Workforce Commission-Civil Rights Division (Commission) alleging he was terminated in retaliation for reporting illegal discrimination. The complaint was filed within 180 days of the retaliation; however, the Commission dismissed his claim prior to the 180 day period from the date he filed the complaint. The employee did not request a right to sue and actually filed suit prior to the running of the 180 day period. The county filed a plea to the jurisdiction claiming that the suit was jurisdictionally barred because the employee failed to obtain a right to sue and filed a suit prior to the exhaustion of the 180 day period. The trial court denied the plea and the county appealed. The court of appeals held that the exhaustion of the 180 day period after filing the complaint, nor obtaining a right to sue, were jurisdictional. The court stated that the county could have filed a plea in abatement to abate the suit until the running of the 180 days but since they failed to do so, the time had expired and the suit was not barred jurisdictionally by either the 180 day limit or the failure to secure a right to sue letter.

Armendariz v. Redcats USA, L.P., 390 S.W.3d 463 (Tex.App.-El Paso 2012)
Worker’s Comp Retaliation- Employee brought suit for wrongful discharge against her former employer. The trial court granted the employer’s motion for summary judgment. The employee appealed. The employee was injured on the job and filed a worker’s compensation claim. The employee had a poor attendance record and the employer used a point system for attendance. Prior to the absence that the employer claims was the reason for termination, the employee had been on final notice for prior attendance issues. The court reviewed the standards for establishing a causal link between the claim and the termination. When circumstantial evidence is used there are five factors the court generally uses: (1) knowledge of the claim by those making the decision; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure of the employer to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. While an employee is not required to produce evidence on all five of the factors, the courts generally require an employee to establish at least a majority of them. The court examined the evidence related to the five factors and ruled that the employee fail to establish a majority of them.

Lotito v. Knife River Corporation-South, 391 S.W.3d 226 (Tex.App.- Waco 2012)
Promissory Estoppel- Employee sued his former employer alleging promissory estoppel as an independent cause of action that the employer promised to employ him in Texas for four years and then relocate him to California and employee him for an additional four years. The trial court granted a summary judgment in favor of the employer. The court of appeals held that despite having held that promissory estoppel was a viable cause of action in a bid construction case, it was not an available offensive cause of action in an employment case. The court stated that it has held that in the context of an employment case, promissory estoppel is a “shield, not a sword”. Judge Davis concurred with the result but disagreed on the holding that promissory estoppel could never be used a an offensive cause of action in an employment case citing other cases. Judge Davis stated that where there is no actual contract, promissory estoppel may be used to supply the injured party with a remedy which will enable the party to be compensated for his forseeable, definite and substantial reliance. However, in this case, the promise of eight years of employment would have been prevented from enforcement by the statute of frauds and therefore, the employee’s reliance was not reasonable and justified.

Echostar Satellite LLC v. Aguilar, 394 S.W3d 276 (Tex.App.-El Paso 2012)
Worker’s Comp Retaliation- Employee brought action against employer alleging that he had been discharged for filing a worker’s compensation claim. The case was tried to a jury and the employer appealed an adverse verdict. The court of appeals cited the five factors of circumstantial evidence quoted above in the Armendariz case. However, the court included two additional factors- temporal proximity of the claim to the date of termination and providing incentives to refrain from reporting injuries, as being further proof of a causal link. The employer alleged that it had a uniformly enforced absence policy and that this was the reason for discharge. The Texas Supreme Court has held that a uniformly enforced absence control policy is a defense to a wrongful discharge case. The evidence showed that when the employee’s leave was over, he did not show up for three consecutive days and did not call. The company had a policy that anyone having three no-call, no-shows was to be automatically terminated. However, the company failed to terminate the employee for three weeks after the three absences, with no explanation for why they did not terminate him for that length of time. The court held that the unexplained failure to enforce the policy in this manner justified the jury’s finding.

July 10th, 2013 Comments Off


Discrimination Based on Breast Feeding Protected By Pregnancy Discrimination Act & Title VII
By Danny Wash

The Fifth Circuit Court of Appeals has ruled in EEOC v. Houston Funding II, Ltd. that the plaintiff should receive a jury trial on whether the company violated the Pregnancy Discrimination Act (PDA) and Title VII, when she requested the right to use a breast milk express pump at work and was fired. The plaintiff was an employee who gave birth and was on leave for the birth. She was breast-feeding the baby at home and, in order to continue the feeding and return to work, she needed to use a breast pump at work. The company was reluctant to oblige and when she pushed the issue they fired her allegedly for other reasons. She sued in federal court and the company convinced the judge to dismiss her case. She appealed to the Fifth Circuit, which has the reputation of being hostile to employees. However, in this case, the panel came down on the side of the employee holding that she should get a jury trial on the issue. The Fifth Circuit stated that “The PDA provides that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions[.]” 42 U.S.C. § 2000e-(k). The court went on to use the dictionary definition of “medical condition” and state that “given that this definition includes any physiological condition, it is difficult to see how it could not encompass lactation.” The court stated that lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter. Therefore, the court held that lactation is an aspect of female physiology that is affected by pregnancy and seems readily to fit into a reasonable definition of “pregnancy, childbirth, or related medical conditions.” The court further held that “because discriminating against a woman who is lactating or expressing breast milk violates Title VII and the PDA, we find that the EEOC has stated a prima facie case of sex discrimination with a showing that Houston Funding fired [plaintiff] because she was lactating and wanted to express milk at work.”

June 6th, 2013 Comments Off


MENTAL ANGUISH REVISITED BY TEXAS SUPREME COURT
By Danny Wash

The Texas Supreme Court is once again “tinkering” with the proof necessary to recover mental anguish damages.  Although the case involved defamation, in  Hancock v. Variyam, the court revisted  the necessary amount of proof to support damages for mental anguish.  This is important to employment cases because they frequently involve an attempt to recover mental anguish damages and frequently fail for insufficient proof. The court has in the past set forth the requirement that in order to recover mental anguish a plaintiff must show evidence of a substantial disruption in daily routine or a high degree of mental pain and distress.  Also, the plaintiff must additionally show the nature, duration, and severity of the mental anguish.  The court had laid down these requirements in earlier cases.  However, in the Hancock case the court showed in a negative manner how the plaintiff had not provided enough evidence of mental anguish.  If you are a lawyer representing plaintiffs you should put a copy of the case in your notebook in order to review all of the necessary requirements with your client to determine if the mental anguish claimed will pass the rather high standard of the court. Also, you should talk with your client about the level of necessary proof so that the appropriate level of proof and words may be presented at deposition and trial, if the proof and words are true.  Many times the appropriate emotions and interference with the plaintiff’s life is present but is not effectively presented because of insufficient preparation or just the inability of the client to express the level of mental anguish.  It may be that others (such as a spouse or friend) can express the necessary evidence better than the client.  The problem with the Supreme Court’s insistence on the high level of “magic words” and testimony necessary to clear the high hurdle the court has erected is that it ignores the problem of people who are not very expressive or have difficulty talking about their emotions.  The court seems to ignore the role of a jury in assessing the demeanor of the plaintiff regarding the mental anguish and penalizes the ones who are not able to express themselves orally very well.  In that event, it makes it even more important to some how convey the level of suffering by other means, either spouse, friends, or a counselor.

May 17th, 2013 Comments Off


Corporations Are Robbing Us Of Our Right to a Fair Trial
By Danny Wash
Being wronged by a corporation is painful enough, but just try getting your day in court. Most Americans don’t realize it, but our Seventh Amendment right to a fair jury trial against corporate wrongdoers has quietly been stripped from us. Instead, we are now shunted into a stacked-deck game called “Binding Mandatory Arbitration.” Proponents of the process hail it as superior to the courts — “faster, cheaper and more efficient!” they exclaim.
But does it deliver justice? It could, for the original concept of voluntary, face-to-face resolution of conflict by a neutral third party makes sense in many cases. But remember what Mae West said of her own virtue: “I used to be Snow White, then I drifted.” Today’s practice of arbitration has drifted far away from the purity of the concept.
All you really need to know about today’s process is that it’s the product of years of conceptual monkey-wrenching by corporate lobbyists, Congress, the Supreme Court and hired-gun lobbying firms looking to milk the system for steady profits. First and foremost, these fixers have turned a voluntary process into the exact opposite: mandatory. Let’s look at this mess.
— Unlike courts, arbitration is not a public system, but a private business.
— Far from being neutral, “the third-party” arbitration firms are — get this! — usually hand-picked by the corporation involved in the case, chosen specifically because they have proven records of favoring the corporation.
— The corporation also gets to choose the city or town where the case is heard, allowing it to make the case inconvenient, expensive and unfair to individuals bringing a complaint.
— Arbitrators are not required to know the law relevant to the cases they judge or follow legal precedents.
— Normal procedural rules for gathering and sharing evidence and safeguarding fairness to both parties do not apply in arbitration cases.
— Arbitration proceedings are closed to the media and the public.
— Arbitrators need not reveal the reasons for their decisions, so they are not legally accountable for errors, and the decisions set no legal precedents for guiding future corporate conduct.
— Even if an arbitrator’s decision is legally incorrect, it still is enforceable, carrying the full weight of the law.
— There is virtually no right to appeal an arbitrator’s ruling.
That adds up to a kangaroo court! Who would choose such a rigged system? No one. Which is why corporate America has resorted to brute force and skullduggery to drag you into their arbitration wringer.
By “force,” I mean practically every business relationship you have with a corporation (customer, employee, supplier, etc.) begins with you blindly signing away your right to go to court. Written in indecipherable legalese, these sneaky provisos are usually secluded in the tiny-type of pre-printed, take-it-or-leave-it, non-negotiable contracts.
By “you,” I mean everyone one of us who: takes a job, gets a credit card, subscribes to cable TV, buys an insurance policy, rents an apartment, purchases nearly any new product (from cellphone to house), has a home remodeled or car repaired, enters a nursing home, becomes a franchisee or corporate supplier or signs up with a landscaping service.
If you seek justice because you’ve been gouged by your bank, discriminated against, sexually harassed, unfairly fired, cheated on wages, sold a shoddy product, denied health care coverage or otherwise harmed by a corporation, you’ll most likely find that you’re barred from the courthouse door. That document you unwittingly signed has shackled you to the corporation’s own privatized court.
Since binding mandatory arbitration “agreements” are written by corporate lawyers, it’s no surprise that they stack the deck in favor of corporations. But — wow! — the percentage of rigged wins is disgusting.
For example, Public Citizen found that one giant firm, the National Arbitration Forum, heard over 34,000 consumer-versus-bank cases in California. It sided with financial giants 95 percent of the time. Even more astonishing, the city of San Francisco found that of the 18,045 cases brought by banks and other powers against overmatched California consumers, NAF’s private judges sided with the corporations 100 percent of the time.
As a consumer or employee, I wanted you to know about this so I have reproduced the following article by Jim Hightower of AlterNet.org.:
Being wronged by a corporation is painful enough, but just try getting your day in court. Most Americans don’t realize it, but our Seventh Amendment right to a fair jury trial against corporate wrongdoers has quietly been stripped from us. Instead, we are now shunted into a stacked-deck game called “Binding Mandatory Arbitration.” Proponents of the process hail it as superior to the courts — “faster, cheaper and more efficient!” they exclaim.
But does it deliver justice? It could, for the original concept of voluntary, face-to-face resolution of conflict by a neutral third party makes sense in many cases. But remember what Mae West said of her own virtue: “I used to be Snow White, then I drifted.” Today’s practice of arbitration has drifted far away from the purity of the concept.
All you really need to know about today’s process is that it’s the product of years of conceptual monkey-wrenching by corporate lobbyists, Congress, the Supreme Court and hired-gun lobbying firms looking to milk the system for steady profits. First and foremost, these fixers have turned a voluntary process into the exact opposite: mandatory. Let’s look at this mess.
— Unlike courts, arbitration is not a public system, but a private business.
— Far from being neutral, “the third-party” arbitration firms are — get this! — usually hand-picked by the corporation involved in the case, chosen specifically because they have proven records of favoring the corporation.
— The corporation also gets to choose the city or town where the case is heard, allowing it to make the case inconvenient, expensive and unfair to individuals bringing a complaint.
— Arbitrators are not required to know the law relevant to the cases they judge or follow legal precedents.
— Normal procedural rules for gathering and sharing evidence and safeguarding fairness to both parties do not apply in arbitration cases.
— Arbitration proceedings are closed to the media and the public.
— Arbitrators need not reveal the reasons for their decisions, so they are not legally accountable for errors, and the decisions set no legal precedents for guiding future corporate conduct.
— Even if an arbitrator’s decision is legally incorrect, it still is enforceable, carrying the full weight of the law.
— There is virtually no right to appeal an arbitrator’s ruling.
That adds up to a kangaroo court! Who would choose such a rigged system? No one. Which is why corporate America has resorted to brute force and skullduggery to drag you into their arbitration wringer.
By “force,” I mean practically every business relationship you have with a corporation (customer, employee, supplier, etc.) begins with you blindly signing away your right to go to court. Written in indecipherable legalese, these sneaky provisos are usually secluded in the tiny-type of pre-printed, take-it-or-leave-it, non-negotiable contracts.
By “you,” I mean everyone one of us who: takes a job, gets a credit card, subscribes to cable TV, buys an insurance policy, rents an apartment, purchases nearly any new product (from cellphone to house), has a home remodeled or car repaired, enters a nursing home, becomes a franchisee or corporate supplier or signs up with a landscaping service.
If you seek justice because you’ve been gouged by your bank, discriminated against, sexually harassed, unfairly fired, cheated on wages, sold a shoddy product, denied health care coverage or otherwise harmed by a corporation, you’ll most likely find that you’re barred from the courthouse door. That document you unwittingly signed has shackled you to the corporation’s own privatized court.
Since binding mandatory arbitration “agreements” are written by corporate lawyers, it’s no surprise that they stack the deck in favor of corporations. But — wow! — the percentage of rigged wins is disgusting.
For example, Public Citizen found that one giant firm, the National Arbitration Forum, heard over 34,000 consumer-versus-bank cases in California. It sided with financial giants 95 percent of the time. Even more astonishing, the city of San Francisco found that of the 18,045 cases brought by banks and other powers against overmatched California consumers, NAF’s private judges sided with the corporations 100 percent of the time.
March 29th, 2013 Comments Off


DEFINITION/EXPLANATION OF IMPORTANT TERMS of the ADA (ADAAA)
By Danny Wash
Americans with Disabilities Act Disability (as amended by ADAAA) means-
A Physical or Mental Impairment that Substantially Limits one or more of the
Major Life Activities (MLA) or being
Regarded As having such an impairment or
A Record Of such an impairment
Definitions/explanations of the above terms:
Physical or Mental Impairment means a physiological or mental disorder, cosmetic
disfigurement, or anatomical loss affecting a body system or mental disorder or disability,
emotional/mental illness, & specific learning disabilities.
Substantially Limits to be construed broadly in favor of coverage and is measured against ability
of an individual to perform as compared to most people in the general population.
Major Life Activities are activities such as caring for oneself, manual tasks, numerous bodily
operations, and working. Also, operation of a major bodily function or an individual organ.
“Major” shall not be interpreted strictly.
Determination of whether impairment substantially limits a MLA shall be made without regard to
effects of mitigating measures. An impairment that is episodic or in remission is a disability if it
qualifies when active.
The following impairments will almost always result in coverage: deafness substantially limits
hearing; blindness limits seeing; intellectual disability limits brain function; autism limits brain
function; cancer limits normal cell growth; diabetes limits endocrine function; multiple sclerosis
limits neurological function; depression, PTSD, obsessive compulsive disorder limits brain
function.
Considering the manner, condition, or duration of performing the MLA, as opposed to general
population, should be done to determine a disability. The focus is on how a MLA is substantially
limited and not on what outcomes a person can achieve. For example, someone with a learning
disability may achieve a high level of academic success, but may be substantially limited because
of the additional time and effort involved compared to general population.
Regarded As (RA)- A person is RA if the person is subjected to a prohibited action because of an
actual or perceived physical or mental impairment, whether or not that impairment substantially
limits, or is perceived to substantially limit a MLA. A person is RA any time an employer takes
a prohibited action against the person because of an actual or perceived impairment, even if the
employer asserts, or may or does establish a defense to such action.
Record Of (RO)- A person needs a written record of an impairment to qualify.
Americans with Disabilities Act Disability (as amended by ADAAA) means-
A Physical or Mental Impairment that Substantially Limits one or more of the
Major Life Activities (MLA) or being
Regarded As having such an impairment or
A Record Of such an impairment.
Definitions/explanations of the above terms:
Physical or Mental Impairment means a physiological or mental disorder, cosmetic disfigurement, or anatomical loss affecting a body system or mental disorder or disability, emotional/mental illness, & specific learning disabilities.
Substantially Limits to be construed broadly in favor of coverage and is measured against ability of an individual to perform as compared to most people in the general population.
Major Life Activities are activities such as caring for oneself, manual tasks, numerous bodily operations, and working. Also, operation of a major bodily function or an individual organ. “Major” shall not be interpreted strictly.
Determination of whether impairment substantially limits a MLA shall be made without regard to effects of mitigating measures.  An impairment that is episodic or in remission is a disability if it qualifies when active.
The following impairments will almost always result in coverage: deafness substantially limits hearing; blindness limits seeing; intellectual disability limits brain function; autism limits brain function; cancer limits normal cell growth; diabetes limits endocrine function; multiple sclerosis limits neurological function; depression, PTSD, obsessive compulsive disorder limits brain function.
Considering the manner, condition, or duration of performing the MLA, as opposed to general population, should be done to determine a disability.  The focus is on how a MLA is substantially limited and not on what outcomes a person can achieve.  For example, someone with a learning disability may achieve a high level of academic success, but may be substantially limited because of the additional time and effort involved compared to general population.
Regarded As (RA)- A person is RA if the person is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit a MLA.  A person is RA any time an employer takes a prohibited action against the person because of an actual or perceived impairment, even if the employer asserts, or may or does establish a defense to such action.
Record Of (RO)- A person needs a written record of an impairment to qualify.
(This is a brief explanation and for a more expansive explanation please consult the EEOC website for further clarification)
February 27th, 2013 Comments Off


FMLA-CLARIFICATION OF SON OR DAUGHTER DEFINITION BY DOL
By Danny Wash

The Department of Labor released a new interpretation and clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an individual 18 years or older and incapable of self-care because of a mental or physical disability.  The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is—(A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” However, in order to meet the FMLA’s definition of a “son or daughter,” an adult child (i.e., one who is 18 years of age or older) must have a mental or physical disability and be incapable of self-care because of that disability. The FMLA regulations adopt the ADA’s definition of “disability” as a physical or mental impairment that substantially limits a major life activity (as interpreted by the EEOC) to define “physical or mental disability.”

A parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter:

  • (1) has a disability as defined by the ADA;
  • (2) is incapable of self-care due to that disability;
  • (3) has a serious health condition; and
  • (4) is in need of care due to the serious health condition

It is only when all four requirements are met that an eligible employee is entitled to FMLA-protected leave to care for his or her adult son or daughter.

Based on the purpose of the FMLA, the legislative history of the definition of “son or daughter,” and WHD’s enforcement experience, as well as the example in the preamble to the 2008 FMLA Final Rule, it is the Administrator’s interpretation that the age of onset of a disability is irrelevant in determining whether an individual is a “son or daughter” under the FMLA. An employee is entitled to take FMLA leave to care for a son or daughter with a serious health condition who is 18 years of age or older and incapable of self-care because of a disability regardless of when the disability commenced.

Therefore, for a parent to take FMLA leave for an adult child, the son or daughter must not only be incapable of self-care due to a disability but must also need care due to a condition that qualifies as a serious health condition under the FMLA regulations. While the adult son or daughter’s serious health condition need not be directly related to his or her disability, the same condition may satisfy both the ADA definition of disability and the FMLA definition of serious health condition.

The interpretation by the Department of Labor gives two helpful examples in order to understand these rules:

Example 1: An employee’s 37-year old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of major life activities (i.e., walking standing, sitting, etc.). As a result of this injury, the daughter is hospitalized for two weeks and under the ongoing care of a health care provider. Although she is expected to recover, she will be substantially limited in walking for six months. If she needs assistance in three or more activities of daily living such as bathing, dressing, and maintaining a residence, she will qualify as an adult “daughter” under the FMLA as she is incapable of self-care because of a disability. The daughter’s shattered pelvis would also be a serious health condition under the FMLA and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability.

Example 2: An employee’s 25-year old son has diabetes but lives independently and does not need assistance with any ADLs or IADLs. Although the young man’s diabetes qualifies as a disability under the ADA because it substantially limits a major life activity (i.e., endocrine function), he will not be considered an adult “son” for purposes of the FMLA because he is capable of providing daily self-care without assistance or supervision. Therefore, if the son is admitted to a hospital overnight for observation due to a skiing accident that does not render him disabled, his parent will not be entitled to take FMLA leave to care for him because he is over the age of 18 and not incapable of self-care due to a mental or physical disability.

If the son later becomes unable to walk and is also unable to care for his own hygiene, dress himself, and bathe due to complications of his diabetes, he will be considered an adult “son” as he is incapable of self-care due to a disability. The son’s diabetes will be both a disability under the ADA and a chronic serious health condition under the FMLA because his condition requires continuing treatment by a doctor (e.g., regular kidney dialysis appointments). If his parent is needed to care for him, his parent may therefore take FMLA-protected leave to do so.


January 16th, 2013 Comments Off


Jury Fact Questions Are Fading Fast in Federal Court
By Danny Wash

A jury fact question is what a judge looks for in determining whether a case should be allowed to go to a jury trial or should be dismissed on a motion for summary judgment.  In the federal 4th circuit  case of  EEOC v. Thompson Contracting, Grading, Paving, and Utilities, Inc., No. 11-1897, http://bit.ly/UzoJst, the employee’s religion required him to not work on Saturday.  The employee was observant of this part of his religion and was fired because he refused to work on Saturday.  The termination resulted from a situation where all the other drivers were working because of bad weather and the company was also using contract drivers.  After the employee was fired he filed a complaint with the EEOC .  The EEOC usually just investigates a charge and then dismisses it allowing the complainant to find a private attorney to follow through with a suit.  However, in some cases which it believes are meritorious, the EEOC handles the case for the employee and files suit on his behalf, as they did in this case.  The federal district judge granted the employer’s motion for summary judgment holding that their was no fact question for a jury to decide as to whether the employee’s request placed an undue burden on the employer despite the employee’s right to not be discriminated against based on his religion under the civil rights law.  The court of appeals agreed with the district judge on appeal. The disheartening aspect of this case is that all of these judges, in essence, said that no reasonable jury could find that the employee’s request did not place an undue burden on the employee despite the EEOC’s belief that it did.  I’m not saying that the employee should or would have won before a jury; but the 7th amendment of the U.S. Constitution grants a right to a jury trial and a jury should have been given a chance to decide the question of undue burden.  The jury trial is a valuable right and it is being steadily eroded by many of the judges in the federal system, as well as by some state judges.  The more judges find that there is no fact question for a jury, the more case authority then exists for later judges to depend upon to deny jury trials to others.  It is like a snowball rolling downhill.

December 31st, 2012 Comments Off


The Erosion of the Jury Trial
By Danny Wash

The federal Tenth Court of Appeals handed down an opinion which is illustrative of the difficulty plaintiffs have in federal court to clear the ever increasing height of the summary judgment hurdle. Many of the judges in the federal system are clearly usurping the role of a jury and deciding fact issues by simply stating that no reasonable jury could decide in a certain manner to allow a plaintiff to receive a jury trial of the case.  The U.S. Constitution  grants every citizen the right to a jury trial.  However, this right is being seriously eroded by judges who apparently don’t like the jury system and the result is the curtailment of this constitutional right.  The Tenth Court of Appeals ruled in the case of Brown v. Scriptpro, Inc., that Brown failed to produce enough evidence to get to a jury regarding his Family Medical Leave Act (FMLA) claim.  Brown requested time off to accompany his wife to the doctor regarding their new baby (an area which is protected by the FMLA).  This request was refused and two days later Brown was fired.  Brown sued for interference with his right to take leave and retaliation for having requested the leave.  Scriptpro responded by pointing to  discipline problems of Brown stating that they were the reason he was fired when he was.  The evidence presented did not show that Scriptpro had informed Brown that it had an intent to fire him if the matters were not corrected.  Also, Scriptpro did not present evidence that it always fires employees with Brown’s level of performance issues.  It appears from the evidence that they simply fired him two days after the request for FMLA leave.  The Court stated that there was no evidence to rebut Scriptpro’s  assertion that they fired Brown for the previous performance problems.  However, this shows how some courts  have apparently distanced  their assessments from that of  the “reasonable juror”.   You may or may not agree with me, but anytime you have a situation like this with an action and then an almost immediate reaction by the employer, a question of fact for a jury arises in  my mind.  Some federal courts don’t agree with this and demand some more evidence beyond the close proximity of the act and a result. However, this is what a jury does.  A jury listens to the testimony, judges the witnesses and their demeanor, examines the evidence and then decides.  And, this is my issue with the opinion, in that it appears that a reasonable jury could believe that Scriptpro decided to fire Brown based on the FMLA leave request.  A plaintiff does not have to show that the protected activity is the only cause of his termination.  Even though there may have been other reasons for Brown’s termination, it appears that the FMLA request could have been the final act that caused his termination.  At least, this would be something for a reasonable jury to decide based on having all the evidence and the chance to judge its credibility by hearing and seeing the witnesses (something the judges did not have before them in deciding the case from afar).

December 10th, 2012 Comments Off


Recent Texas Employment Law Cases
By Danny Wash

El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012)

Attorney Fees- Proper Lodestar Calculation- This was a suit for employment discrimination and retaliation under the Texas Commission on Human Rights Act.  After a trial, the employee prevailed only on the retaliation claim.  After the trial, the employee’s attorney submitted an application for attorney’s fees accompanied by affidavits.  The affidavits set forth the work done by the attorneys generally and the approximate number of hours of each attorney.  The trial court used the “lodestar” method in determining a reasonable fee.  The lodestar method involves two steps.  First, the court must determine the reasonable hours spent by counsel and a reasonable hourly rate.  The court then multiplies the number of such hours by the rate, the product of which is the base fee or lodestar.  The court may then adjust the base lodestar up or down (apply a multiplier), if relevant factors indicate an adjustment is necessary to reach a reasonable fee.  The Supreme Court stated that a party applying for attorney fees under the lodestar method bears the burden of documenting the hours expended on the litigation and the value of those hours.  In this case, the Court stated that the issue was whether the trial court properly applied the lodestar method in determining the fees.  The Supreme Court stated that the evidence presented supporting the fee should include (1) the nature of the work, (2) who performed the services and their rate, (3) approximately when the services were performed, and (4) the number of hours worked.  The Court further stated that when there is an expectation of use of the lodestar method, attorneys should document their time much as they would for their own clients, that is, contemporaneous billing records or other documentation recorded reasonably close to the time when the work is performed.  In this case, the Court noted that the attorneys did not present time records or other documentary evidence; nor did they testify based on their recollection of such records.  The attorneys instead based their time estimates on generalities such as the amount of discovery in the case, the number of pleadings filed, the number of witnesses questioned, and the length of the trial.  The Court stated that this information may be relevant but it provides none of the specificity need for the trial court to make a meaningful lodestar determination.  Also, the Court stated that if multiple attorneys or other legal professionals are involved, the fee application should indicate which attorney performed a particular task or category of tasks.  The Court further held that when obtaining payment for legal assistants more information is needed such as: (1) the qualifications of the legal assistants to perform substantive legal work, (2) that the legal assistant performed substantive legal work under the direction and supervision of an attorney, (3) the nature of the legal work performed, (4) the legal assistant’s hourly rate, and (5) the number of hours expended by the legal assistant.  The legal fee award was reversed and sent back to the trial court so that the attorneys could “reconstruct their work in the case to provide the minimum information the trial court requires to perform a meaningful review of their fee application.”  The Court then examined the trial court’s doubling the lodestar to approximate a reasonable fee in the case.  The Court held that a trial court could apply a multiplier to increase or decrease the lodestar figure to approximate a reasonable fee.  The Court noted that in their class action rulings they had authorized multiplier to fee awards “in the range of 25% to 400% of the lodestar figure” and that amount could be used in TCHRA actions.

In Re XL Specialty Insurance Company, 373 S.W.3d 46 (Tex. 2012)

Worker’s Comp- Evidence- Privileges- In a suit by worker against worker’s comp carrier for employer, employee sought the communications made between employer and the carrier during the administrative proceedings.  The carrier and employer refused raising the attorney-client privilege (Tex.R.Evid 503(b), the joint client privilege, the joint defense and common interest doctrine, and the allied litigant doctrine.  The trial court ruled against the privilege and the insurer brought a writ of mandamus proceeding.  The Supreme Court discusses the foregoing privileges and doctrines but holds that they do not apply in this case regarding communications between a worker’s comp insurer and its insured (the case is a good resource for case authorities related to the foregoing privileges).  If the employer had been a defendant and the communications had been between the lawyers for the two defendants then the communications probably would have been privileged.

Garza v. Zachry Construction Corp., 373 S.W.3d 715 (Tex.App.-San Antonio 2012, pet. denied)

Worker’s Comp-Employer Immunity- Worker (employee of plant owner), who had been injured in railcar accident at a chemical plant, brought suit against a subcontractor and subcontractor’s employees working at the plant alleging that the negligence of the subcontractor’s employees caused the accident.   The worker had received worker’s compensation benefits provided by his employer.  The Court noted that in this suit the situation was not a subcontractor’s employee suing a general contractor or the employee of another subcontractor and that under those circumstances Tex.Lab.Code § 408.001 would bar the subcontractor’s employee’s claims and limit the recovery to worker’s compensation benefits.  Instead, in this case, the premises owner/general contractor’s employee was suing the subcontractor and two of the subcontractor’s employees.  In the motion for summary judgment, which was granted by the trial court, the defendants argued that under TLC § 406.123, the premises owner/general contractor was their deemed employer and all of the participants were then all deemed fellow employees when the general contractor provides worker’s compensation insurance coverage to its employees and the subcontractor’s employees.  The Court pointed out that courts have extended the reach of §§ 408.001 and 406.123 to premises owners (thus, according to the Court, the Legislature and courts have created a legal fiction of premises owners/general contractors as “deemed employers”, subcontractors as “deemed employees” of the premises owner/general contractor and all tiers of subcontractors as “fellow employees” for purposes of the worker’s comp act).  The plaintiff employee argued that the statute was unconstitutional based on the Texas “open courts” provision by preventing his common law negligence suit against the subcontractor.  As generally happens in an open courts challenge, the Court spent a couple of pages of twisting like a pretzel to finally rule that the open courts provision did not save the plaintiff from being flushed down the tube from which no claim returns.

University of Texas Medical Branch at Galveston v. Petteway, 373 S.W.3d 785 (Tex.App.-Houston 2012, no pet.)

Gender Discrimination- A female nurse brought a gender discrimination claim under the Texas Commission on Human Rights Act (TCHRA) against the hospital employer alleging that the termination of her employment was disparate discipline for her conduct after revelation of her affair with a male nurse.  The district court denied the hospital’s plea to the jurisdiction.  The hospital appealed and the court of appeals reversed and dismissed the female nurse’s claim.  The Court of Appeals stated that in order for the female nurse to establish a prima facie case of gender discrimination she must establish (1) that she was a member of a class protected by the TCHRA; (2) she was qualified for her position; (3) she was terminated; and (4) she was treated less favorably than similarly situated members of the opposing class.  The Court further stated that employees who are treated differently are similarly situated under the TCHRA if the circumstances are comparable in all material respects, including similar standards, supervisors, and conduct.  To prove the claim based on disparate discipline, it must be shown that the misconduct of the employees must be of comparable seriousness.  Usually, the employee must show that the misconduct for which the employee was discharged was nearly identical to that engaged in by the non-disciplined employee and the comparator must have essentially comparable disciplinary violation histories.

Nazareth Hall Nursing Center v. Melendez, 372 S.W.3d 301 (Tex.App.– El Paso 2012, no pet.)

Arbitration- “Like trying to invade Russia in the winter” is an old saying for something that is very difficult or impossible.  This saying applies to the difficult battle of overcoming an arbitration agreement in an employment case (considering the love of the Texas Supreme Court for arbitration).  However, this difficulty did not deter Melendez, as she filed a discrimination suit against her employer, who then promptly waived their arbitration agreement in her face.  The district court refused to enforce the arbitration agreement and the employer appealed.  The Court of Appeals agreed with the district court, that since the agreement was contained in the employee handbook and the employer had the right to change any of the policies and procedures of the handbook, the agreement was illusory and unenforceable.  The Court stated that there was a 2006 agreement in the handbook, which Melendez acknowledged when she began employment by signing a form.  However, the Court ruled that this 2006 agreement was illusory because of the employer’s right to change it by the language in the handbook. The employer then argued that a 2009 amended agreement bound Melendez because she continued to work after its adoption and therefore she was bound by it.  However, the Court refused this argument because the employer did not prove that Melendez was ever notified of the 2009 modified agreement or that she accepted the agreement.  Since the employer did not prove the existence of a valid arbitration agreement, the arbitration agreement was invalid as to Melendez.

Hertz Equipment Rental Corporation v. Barousse, 365 S.W.3d 46 (Tex.App.– Houston 2012, pet. denied)

Worker’s Compensation Retaliation- A terminated employee filed suit against his former employer alleging retaliation for his filing of a worker’s compensation claim.  After a bench trial, the district court entered a judgment for damages and exemplary damages.  The employer appealed.  The Court of Appeals reviewed the case and upheld the finding of worker’s compensation retaliation and the actual damages but reversed as to the punitive damages because the evidence did not rise to the level of malice required.  The case contains a thorough examination of the law and damages in this kind of case and should be examined by anyone handling one of these cases.

Pruitt v. International Association of Fire Fighters, 366 S.W.3d 740 (Tex.App.– Texarkana, 2011, no pet.)

Employment Discrimination- Aiding & Abetting- A former fire chief brought an action against a labor union and the union officers alleging aiding & abetting discrimination, and the common law torts of intentional infliction of emotional distress (IIED), breach of fiduciary duty, and tortious interference with employment relations.  The district court dismissed the employee’s claims for lack of jurisdiction.  The employee appealed and the Court of Appeals affirmed.  The claim was brought under Texas Labor Code § 21.056, which states, “An employer, labor union or employment agency commits an unlawful employment practice if the employer, labor union, or employment agency aids, abets, incites, or coerces a person to engage in a discriminatory practice.”  The Court held that the employee was required to present his claim to the Texas Workforce Commission-Civil Rights Division to be processed through their system before he could file suit.  The failure to do this within the time allowed sunk his ship.  The need to go through the TWCCRD has always been required but the application of it to a labor union was the unusual aspect of the case.  However, the Court then cut down his other common law causes of action by holding that Chapter 21 of the Labor Code was the exclusive remedy for the facts presented and could not be avoided by casting the same facts as common law causes of action. [Common law claim for IIED not available to employee complaining of sexual harassment in employment because gravamen of complaint was sexual harassment. Hoffman– La Roche, Inc. v. Zeltwanger, 144 S.W.3d 441 (Tex.2004)].  The employee tried to abandon and expressly exclude the claim for discrimination; however, the Court pointed out that his claims for racial discrimination would be a factor in the case and that they were inextricably intertwined with the facts giving rise to complaints that could have been resolved through Chapter 21’s administrative procedure.  And, this seems to be the key question of whether Chapter 21 precludes a common law cause of action.  Are the facts intertwined and could the facts have been reasonably submitted to the TWCCRD or the EEOC?  If so, then the claim must be brought through the TWCCRD and cannot be reformatted as a common law claim to avoid the TWCCRD.

November 5th, 2012 Comments Off


FMLA Trap for the Unwary-It’s Your Duty to See that the Medical Certification is Returned Timely
By Danny Wash

The Family Medical Leave Act (FMLA) is a great benefit for employees who are eligible and comply with the rules of the law.  However, some people have the erroneous impression that they can’t be fired when they are under “doctors care”.  This is absolutely wrong and believing this urban legend can get you fired.  While the FMLA helps an employee out with some beneficial rules, it has a rule called “medical certification” that if ignored by the employee will cause you to lose your FMLA protection for your leave.  Even if the doctor and you notify the employer that you are off with an illness that you and he believe are covered by the FMLA, if the employer sends the doctor a “medical certification” allowed by 25 CFR 825.313 (b), the doctor still must comply with the request.  The doctor must fill out the medical certification and return it to the employer within 15 days.  Now, here is the big catch- It is your duty as the employee to see that the medical certification is filled out properly and returned timely!  Even if it is the doctor’s fault, the mailman’s fault, or the dog ate your medical certification; it is still your fault that it did not get back to the employer on time and you lose your FMLA leave protection thereby letting the employer off the hook and free them up to fire you (there is an exception is it was not “practicable due to extenuating circumstances” to return it within 15 days but this is living dangerously to depend on this exception).  So, be persistent and forceful with the doctor and his staff to get the certification done and then you make sure its either timely mailed or you deliver it yourself (or someone on your behalf).  I know this doesn’t seem fair but sometimes life isn’t fair and we have to accept it and follow the rules.

October 19th, 2012 Comments Off