Winners' Rules for Employment Lawyers In the Fifth Circuit

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Winners’ Rules

FOR EMPLOYMENT LAWYERS IN THE FIFTH CIRCUIT

Robert J. Wiley

Copyright © 2014 Robert J. Wiley.

The Law Office of Rob Wiley, P.C.

Principal address: 1825 Market Center Blvd., Ste. 385, Dallas, Texas 75207

Robert J. Wiley is the attorney responsible for this publication.

Attorney Robert J. Wiley is certified as a specialist in labor and employment law by the Texas Board of Legal Specialization.

All rights reserved. No part of this book may be reproduced, stored, or transmitted by any means—whether auditory, graphic, mechanical, or electronic—without written permission of both publisher and author, except in the case of brief excerpts used in critical articles and reviews. Unauthorized reproduction of any part of this work is illegal and is punishable by law.

ISBN: 978-1-4834-1053-1 (sc)

ISBN: 978-1-4834-1237-5 (e)

Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

This book is intended to educate plaintiffs’ employment lawyers about information from select cases. Obviously, a practitioner should not rely exclusively on this book in representing a client, and there is no warranty or representation on the suitability for this purpose. This book is no substitute for independent research including the most current cases and opinions available.

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Lulu Publishing Services rev. date: 04/18/2014

Contents

The Winners’ Rules Manifesto

Introduction

1-1. The Prima Facie Case in Discrimination Claims

PFC Element #1: Whether the Employee is a Member of a Protected Class

Plaintiff has Medical Condition

PFC Element #2: Whether the Employee is Qualified for the Position

Employer Justifies Action on Performance or Conduct

Employer Justifies Action on Employee’s Qualifications

Defining Essential Functions

Employee has a Disability

PFC Element #3: Whether the Employee was Subjected to Adverse Employment Action

Employer Denies Opportunities

Employer Modifies Employee’s Duties/Schedule

Disciplinary Actions

Defendant Claims that Employee Resigned

PFC Element #4: Whether a Causal Connection Exists Between Protected Group and Adverse Action

Comments and Actions of Superiors and Coworkers

Employer Justifies Action on Qualification

Treated Differently than Other Employees

Employer Replaces the Employee

Employer Justifies Action on Decision-making Process

1-2. The Prima Facie Case in Hostile Work Environment Claims

PFC Element #1: Whether the Employee Belongs to a Group Protected by Statute

Hostile Work Environment Because of Age Prohibitied

PFC Element #2: Whether the Harassment was Unwelcome

Negative Response by Employee to Comments and Actions of Others

Comments and Actions of Supervisors and Coworkers

Subjective Testimony of Third Party

Treated Differently than Other Employees

PFC Element #3: Whether the Harassment was Based on Membership in Protected Class

Derogatory Statements and Epithets

Offensive Acts

Harassment by a Member of the Same Protected Class

PFC Element #4: Whether the Harassment Affected a Term, Condition, or Privilege of Employment (Severe or Pervasive)

Comments and Actions of Supervisors and Coworkers

Time Period

Ramifications of Harassment

Treated Differently than Other Employees

Plaintiff’s Reaction

PFC Element #5: Whether the Employer Knew or Should Have Known of the Harassment and Failed to Take Remedial Action

Knew or Should Have Known

Failure to Take Remedial Action

1-3. The Prima Facie Case in Retaliation Claims

PFC Element #1: Whether the Employee Engaged in Protected Activity

Employee Activity

Employer Reaction

Complaint of Discrimination not Hearsay

PFC Element #2: Whether the Employee was Subjected to Materially Adverse Employment Action

Denial of Opportunity

Employer Modifies Employee’s Duties

Disciplinary Measures

Comments and Actions of Superiors

PFC Element #3: Whether a Causal Link Exists Between the Protected Activity and the Adverse Action

Temporal Proximity

Employer Justifies Action on Performance or Conduct

Comments and Actions of Supervisor

1-4. The Prima Facie Case in First Amendment Retaliation Claims

PFC Element #1: Whether a Public Employee Spoke Pursuant to Official Job Duties

PFC Element #2: Whether a Public Employee Spoke on a Matter of Public Concern

PFC Element #3: Whether a Public Employee’s Speech Outweighed the Employer’s Interest in Workplace Efficiency

PFC Element #4: Whether the Employee Suffered an Adverse Employment Action

PFC Element #5: Whether the Adverse Action was Substantially Motivated by the Protected Speech

1-5. The Prima Facie Case in FMLA Interference Claims

PFC Element #1: Whether Employee is Eligible for FMLA Leave

PFC Element #2: Whether the Employer is Subject to the FMLA

PFC Element #3: Whether the Employee is Entitled to FMLA leave

PFC Element #4: Whether the Employee Gave Notice of Intent to Take Leave

PFC Element #5: Whether the Employer Denied Benefits to Which the Employee was Entitled

1-6. The Prima Facie Case in a Failure to Accommodate Disability (ADA) Claim

PFC Element #1: Whether the Employer is Covered by the ADA

PFC Element #2: Whether the Employee is Disabled

PFC Element #3: Whether the Employee can Perform Essential Functions with or without Reasonable Accommodation

PFC Element #4: Whether the Employer was on Notice of Disability and Failed to Provide Accommodation

1-7. The Prima Facie Case in a Failure to Accommodate Religion (Title VII) Claim

PFC Element #1: Whether and Employee’s Bona Fide Religious Belief Conflicts with Employment Requirement

PFC Element #2: Whether the Employee Informed the Employer About the Religious Belief

PFC Element #3: Whether the Employee was Discharged for Failing to Comply with the Conflicting Requirement

1-8. The Prima Facie Case in a Wage Discrimination (Equal Pay Act) Claim

PFC Element #1: Whether the Employer is Covered by Equal Pay Act

PFC Element #2: Whether the Employee Performed Work in a Position Requiring Equal Skill, Effort, and Responsibility

PFC Element #3: Whether the Employee was Paid Less than Members of the Opposite Sex

2-0. The Employer’s Burden of Production to Proffer a Legitimate, Non-Discriminatory Reason

Nature of the Employment Action

Rules Addressing Procedure and Parties’ Burdens

Employer Justifies Action on Qualifications

Employer Justifies Action on Performance or Conduct

Employer Justifies Action on Decision-making Process

Employer Deviates from Normal Procedures

3-0. Casting Doubt on the Employer’s Stated Reason for the Adverse Action

3-1. Unlawful Motivating Factor

Temporal Proximity

Comments and Actions of Supervisor

Employer Shifts Justifications for Employment Action

Employer Justifies Action on Performance or Conduct

Treated Differently than Other Employees

Employer Justifies Action on Cost or Reduction in Force

Rules Addressing Procedure or Parties’ Burdens

3-2. Pretext

Comments and Actions of Superiors

Employer Deviates from Ordinary Procedures

Employer Shifts Justifications for Employment Action

Employer Justifies Action on Employee’s Performance or Conduct

Employer Justifies Action on Qualifications

Employer Justifies Action on Decision-making Process

Employer Justifies Action on Cost or Reduction in Force

Evidence of Company Trends

Treated Differently than Other Employees

Employer Reassigns Employee’s Duties

Subjective Testimony by Third Party

Role of the Decision Maker in the Employment Action

Rules Addressing Procedure and Parties’ Burdens

Limiting the Same Actor Inference Rule

4.0 Direct Evidence

Rules Addressing Procedure or Parties’ Burdens

Temporal Proximity

Comments and Actions of Supervisor

Evidence of Company Trends

Role of the Decision Maker

The Winners’ Rules Manifesto

This book began as a reaction to Professor Nancy Gertner’s article Losers’ Rules which was published in the Yale Law Journal Online.¹ A former federal judge turned Harvard Law professor, Gertner makes several observations, including:

•  Federal judges are hostile to discrimination cases.

•  However, judges do not believe they are biased against discrimination cases. They see themselves as merely following the law.

•  Scholars have long thought that employers settle good cases and fight bad cases, resulting in disproportionate numbers of published decisions favoring employers.

•  As cases against plaintiffs pile up, judges begin to think of discrimination cases as trivial and frivolous.

•  Courts create rules to enable them to quickly dispose of these discrimination cases.

•  Courts then write decisions employing these rules – Losers’ Rules – and publish their opinions.

•  In short order, other courts rely on these Losers’ Rules, which become precedent, and the process is repeated over and over again.

•  As a result, judges wrongly feel that the law compels them to grant summary judgment as they do; while in actuality employment cases involve factually complex disputes, concern state-of-mind issues, are usually proved circumstantially, and are hotly contested by the parties.

As a practitioner representing plaintiffs, I couldn’t agree more. Gertner goes a long way in answering the question: Why do judges reach the wrong result so often in employment law cases?

When I say reach the wrong decision what I mean is the legal result diverges from common sense. As colleagues, focus groups, or friends would say: it doesn’t pass the smell test. These are situations where one employee is clearly singled out, a formerly outstanding performer can suddenly do no right, or the employer’s rationale is lame. Common sense tells us that this sort of action belies an ulterior motive. But put though a filter of Losers’ Rules, these cases are repeatedly dismissed.

Losers’ Rules include:

•  The stray remarks doctrine;

•  The honest belief doctrine;

•  The requirement that comparators or comparative acts be nearly identical;

•  The same actor inference;

•  The business judgment rule.

Each of these Losers’ Rules provides defense lawyers with a safe harbor in which they can shelter their clients from the consequences of common sense judgment.

While the avenues for an employer to defeat a claim seem ever expanding, plaintiffs are left without clear guidance on what it takes to establish evidence of discrimination.

Gertner calls for three solutions: (1) Congressional amendment of Title VII, (2) judicial education programs, and (3) requiring or encouraging courts to write decisions articulating why summary judgment should not be granted. Personally, I don’t see any of these solutions on the horizon, and certainly none will arrive in time to help the cases I am dealing with right now.

It seems to me that a fourth option has been overlooked. Indeed, in countering Losers’ Rules there should be a role for those with the greatest vested interest: plaintiffs’ employment lawyers. Whether we win or lose cases determines our own security; our ability to provide for ourselves, our own employees, and our families.

I believe that we as plaintiffs’ employment lawyers must refine how we practice law. Specifically, I believe we must develop our own arsenal of Winners’ Rules. We are charged with presenting argument to the courts. We have control over the arguments we make. We must turn away from vague, broad argument and embrace the specific.

We must sort through the haystacks of mostly bad opinions to find the rare case where the plaintiff has prevailed. We then must scour the opinion for the reason why the plaintiff won. We must then turn that reason in to a simple statement. A rule. A Winners’ Rule.

This book is a start. I practice in the fifth circuit and this book covers recent cases in state and federal courts in Louisiana, Texas, and Mississippi.

Practicing in this area of the country I sometimes feel that Losers’ Rules are at their zenith and civil rights are at their nadir. But I believe in the law and the wisdom of Congress when it passed popular statutes to ensure equality of opportunity in the workplace.

As lawyers we must educate the courts with precedent-based rules showing in simple, straightforward terms why summary judgment must be denied.

But we will not win because of good intentions, sympathy for our clients, or because we know we fight for what is right. We must win by accepting that summary judgment is here to stay and it is case determinative. To win summary judgment, we must have rules of our own.

This first edition is very rough. It was completed under the mantra of it is better to be done than to be perfect. I already know through comments and feedback that more work