Blog Post

Fifth Circuit

Posted by: Paul Mollica
March 19, 2008
Topic: EEO Case Summaries by Circuit

Ligon v. LaHood, - F.3d -, 109 FEP 1743 (5th Cir. Aug. 9, 2010). Panel: JOLLY, Smith, Owen. Claims on Appeal: ADEA demotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Remand for dismissal on subject-matter jurisdiction grounds [defendant]. Grounds: Decision of FAA to reduce the authority of a Designated Engineering Representative for any reason is subject to challenge only as an administrative review in a federal court of appeals, 49 U.S.C. § 46110(a), so district court lacked jurisdiction to adjudicate claim under the ADEA. Claim challenging the decision for age discrimination inextricably intertwined with the merits and procedures of the FAA order.

Moss v. BMC Software, Inc., 610 F.3d 917, 109 FEP 1173 (5th Cir. 2010). Panel: STEWART, Benavides, Southwick. Claims on Appeal: ADEA hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to present genuine issue of material fact regarding pretext. Although successful, younger applicant for Staff Legal Counsel position had fewer years of experience, she had more relevant experience with Original Equipment Manufacturer (OEM) licensing, Alliance and Development Outsourcing agreements. Plaintiff advanced no evidence that he had experience with such transactions. His deposition testimony revealed a lack of substantive knowledge in this field. Although employer's reliance on previously unarticulated job requirements would raise a genuine issue of material fact as to pretext, these responsibilities were listed in the job announcement, the company's internal job requisition form and testimony of executives. District court properly applied Ash v. Tyson Foods standard, even though it was misstated in the summary judgment opinion. Plaintiff's argument that he was given a shorter interview than other candidates did not imply discrimination. Statement that executive wanted a lawyer at a "more junior level" was not probative of age discrimination, where in context this was meant to refer to an entry-level position.

Kemp v. Holder, 610 F.3d 231, 23 A.D. Cases 513 (5th Cir. 2010). Panel: Per Curiam [King, Barksdale, Elrod]. Claims on Appeal: ADA and Rehabilitation Act termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: ADAAA not retroactive. Employee's hearing impairment not a "disability," where employee admitted that he was not substantially limited in any major life activity when he wears his hearing aids. As for "regarded as"claim, plaintiff did not present genuine issue of material fact about whether the two joint employers in this case believed that plaintiff was significantly restricted in his ability to hear or to perform in government or law enforcement jobs when he was wearing his hearing aids; employers hired him knowing that he used assistive device, and he was excluded only from one, specialized kind of position (court security officer).

Carmona v. Southwest Airlines Co., 604 F.3d 848, 23 A.D. Cases 140 (5th Cir. 2010). Panel: GARWOOD, Owen, Southwick. Claims on Appeal: ADA termination. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Reversed and remanded for finding on reinstatement [plaintiff]. Grounds: Employee suffers from psoriatic arthritis, and "spends about one-third to one-half of each month unable to move without a great deal of pain." As a result, he has had to avail himself of intermittent FMLA and company-sanctioned sick leave to cover those periods. Jury awarded him $80,000 for termination. District court entered judgment for the defendant, holding that the employee had presented insufficient evidence that (1) he was an "individual with a disability" and (2) that he was fired "because of" disability. ADA Amendment Act did not apply retroactively to a claim arising before January 1, 2009, but even under the more restrictive definition of "disability" under the old ADA, plaintiff presented sufficient evidence that he was substantially limited in the major life activity of walking. Although plaintiff found other employment and experienced a trouble-free period of job attendance, "the jury rationally could have concluded that Carmona was able to work for Jet Blue despite being substantially limited in his ability to walk, because he could tolerate the pain long enough to make it through a part-time day as a customer service agent." Employee was "qualified" because he was able to perform the essential function of the job with the accommodation of intermittent leave, which employer had granted him. Plaintiff also presented sufficient evidence that he was fired "because of" disability. While defendant argued successfully in the district court that there was no evidence that the comparators were not disabled, this evidence was unavailable to plaintiff precisely because the employer withheld it.
Panel remands for the district court to take up plaintiff's motion seeking reinstatement.

Jackson v. Cal-Western Pkg. Corp., No. 09-20411 (5th Cir. Mar. 26, 2010). Panel: OWEN, Smith, Clement. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to present a genuine issue of material fact about pretext, where he was fired ostensibly for committing sex harassment, there was evidence to support it (notwithstanding employee's denials), and single age-biased comment made a year before termination is stray remark and not probative of intent..

Smith v. Xerox Corp., No. 08-11115 (5th Cir. Mar. 24, 2010). Panel: REAVLEY, Wiener [JOLLY, dissenting]. Claim on Appeal: Title VII retaliation. Disposition Below: Judgment following a jury trial ($67,500 in compensatory damages and $250,000 in punitive damages) [plaintiff]. Outcome on Appeal: Affirmed except for punitive damages [plaintiff]. Grounds: Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), did not overrule Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion), as applied to a Title VII retaliation claim. Judge did not abuse discretion by instructing jury on mixed-motive liability. Applying Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), employee was also not required to present "direct evidence" of a retaliatory motive for judge to give the charge. It was not necessary, for plaintiff to receive mixed-motive charge, to concede that there were other legitimate reasons for the adverse decision. Determining whether a case is mixed-motive or "pretext" need not occur until trial.There was sufficient evidence to support the verdict for the plaintiff (in a separate unpublished opinion). Punitive damage award vacated as having an insufficient basis in the record. "In light of the competing evidence that impugned Smith's performance, we cannot say that the evidence supports a finding that Xerox managers acted with malice or reckless indifference to the possibility that her termination could violate federal law."

Alaniz v. Zamora-Quezada, 591 F.3d 761, 108 FEP 24 (5th Cir. 2009). Panel: OWEN, Jones, Southwick. Claim on Appeal: Title VII harassment (sex). Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Affirmed except as to one plaintiff [plaintiff]. Grounds: Incidents of doctor/owner repeatedly asking female employees out, propositioning them, commenting on physical appearance and touching was sufficiently severe or pervasive to constitute "hostile work environment." "Quid pro quo" claim for one plaintiff was insufficient, and judgment as a matter of law ought to have been granted, where reassignment of employee to HR manager and two-week paid probation did not result in material salalry, benefits or duties. New trial not required, though, even with dismissal of one claim, where verdict could be supported instead by (unchallenged) retaliation claims. Denial of severance under FRCP 42(b) was not abuse of discretion given similarity of claims involved. FRE 404(b) prohibition of "character evidence" not violated, where parallel evidence of harassment also tended to prove plan, motive or absence of mistake. Evidence not subject to exclusion for undue prejudice under FRE 403 because systematic pattern of harassment was highly probative of intent. Admission of some hearsay could not be shown to have had more than a slight effect on the jury's verdict; hence error was not reversible. No plain error in jury questions. Jury could be instructed on both hostile work environment and quid pro quo theories. Plaintiffs were not required to show that harassment complaints were "sole cause" of termination. Plaintiff counsel's closing argument which mentioned doctor's ethnicity, was not clear error, and in any event it was related to plaintiffs' claims, where doctor (according to record) told employees that Mexican women sleep with their bosses and that there was an "American woman spy" after the first harassment complaint was filed. Reference to plaintiffs' status as "mothers and daughters" was improper, but not a significnat part of the closing argument. No violation of due process in awarding punitive damages, despite reference to harm to others in closing argument, where jury charge specified that plaintiffs had to prove specific harm to themselves.

Stewart v. Mississippi Transp. Com'n, 586 F.3d 321, 107 FEP 911 (5th Cir. 2009). Panel: JONES, Prado[HAYNES, dissenting in part]. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Events in 2006 were severed from prior events by corrective actions taken in 2004 (which included assigning plaintiff away from harasser), which ended the harassment for 16 months. Reassigning plaintiff back to harasser as supervisor did not negate the prompt and effective measures taken previously. Hence, prior event were not part of continuing violation. Events in 2006 by themselves were not "severe or pervasive" (one utterance every few days about how he loved her and the should be "sweet" to each other). Prior events only established that the employee found these statements subjectively offensive, not objectively offensive. 2. Being reassigned to new supervisor, and given heavier workload did not result change in duties or compensation, and in fact resulted in promotion. Finding personal items removed from desk and locks changed, and suffering ostracism, not materially adverse. Though forced leave could be adverse, in this case plaintiff suffered minimal consequences and there was no proof that she suffered any injury to reputation.

Floyd v. Amite County School Dist., 581 F.3d 244, 107 FEP 147 (5th Cir. 2009). Panel: DAVIS, King, Garwood. Claim on Appeal: Title VII and §1981 association termination (race). State law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Black coach high school track and field coach for (and principal of) a predominantly African-American public school, invited white prep school athletes to train with his team. Floyd alleged that the school board president terminated him because of "association" with white players. Court holds that animus based on resistance to racial integration in athletic practice does not translate into employment discrimination on the basis of race. Evidence submitted by plaintiff does not indicate that any animus by his employer was directed at him because of his relationship with these athletes. Rather, the evidence reflects that the racial animus was directed solely towards the white student.

Ikossi-Anastasiou v. Louisiana State Univ., 579 F.3d 546, 106 FEP 1815 (5th Cir. 2009). Panel: OWEN, Reavley, Stewart. Claim on Appeal: 1. Title VII termination (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Time on claim ran from date that employee received letter from university denying unpaid leave and insisted she return to work, rather than later date when employee was terminated for her failure to return to work.2. Plaintiff college instructor alleged that in response to letters that she wrote to the university administration complaining about discrimination, she was invoiced for sabbatical pay that was ordinarily not required to be returned. School's written demand for repayment was not a form of settlement negotiations shielded from evidence by Fed. R. Evid. 408. Repayment demand was in same letter that stated that her failure to return to work meant she had abandoned her position. This letter is not part of any settlement negotiations and is not excluded under Rule 408.

Lee v. Kansas City Southern Ry., 574 F.3d 253, 106 FEP 1030 (5th Cir. 2009). Panel: WIENER, Jones, Benavides. Claim on Appeal: 1. Title VII termination (sex). 2. Title VII retaliation. FMLA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Genuine issue of material fact why a white employee with a comparable track record of safety violations and who likewise failed to stop a signal in 2004 received leniency and was allowed to keep his job. Court reaffirms that "similarly situated" does not require that employees by identical. Here, plaintiff and white comparator held identical positions, compiled a similar number of serious moving violations over a similar period of time, including an identical infraction for which plaintiff was fired while other employee was granted leniency, and their ultimate employment status rested with the same person.2. No evidence that decisionmaker was aware of the employee's EEOC filing.

EEOC v. Chevron Phillips, 570 F.3d 606, 21 A.D. Cases 1729 (5th Cir. 2009). Panel: DENNIS, Garza, Mills. Claim on Appeal: ADA reasonable accommodation and termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: EEOC presented a genuine issue of material fact about whether the charging party -- suffering from chronic fatigue syndrome (CFS) -- was substantially limited in the major life activities of caring for herself, sleeping, and thinking. Recognizes that caring for oneself (in 29 C.F.R. § 1630.2(I)), sleeping and thinking are major life activities.  Holds that employee presented genuine issue of material fact whether employee was substantially limited in each major life activity. For caring for oneself, evidence included that employee could not shower, cook, shop fasten own clothes or use washroom without pain and without assistance.  For sleeping, employee established that she often slept only 1-2 hours per night, and 3-4 hour on other days. For thinking, employee established episodes of aphasia, times she forgot son’s name, forgetfulness about routine tasks and losing focus. District court erred in finding disability was intermittent where symptoms persisted eight months. Even if indefinite, relapse-remitting conditions can be disability. Ability to perform job in spite of limitations has no bearing on the definition of “disabled.”  Use of mitigating drugs lessened impairment but still left employee substantially limited. Genuine issue of material fact about whether employee requested accommodation despite that her request did not specify medical condition or a location closer to her home. Failure to engage request, in combination with what employer knew about employee’s condition, violated interactive process. Regarding termination, genuine issue of material fact presented by employer’s justification that employee was fired for misrepresenting medical facts:   questionnaire to employee did not ask about CFS, employee made honest error in describing most recent onset of symptoms, supervisors looked for reasons to fire employee right after she requested leave, employer had shifting stories about what the employee supposedly misrepresented.

Cox v. DeSoto Co., 564 F.3d 745, 105 FEP 1571 (5th Cir. 2009). Panel: HAYNES, Smith, Owen. Claims of Appeal: ADEA termination and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: District court erred in holding that employee's ADEA retaliation claim was barred by collateral estoppel, owing to unperfected and dismissed appeal of state employment security determination to state court. ADEA provided for detailed administrative remedy inconsistent with state administrative procedures. Termination claim properly dismissed, though; employee failed to present mixed-motive theory in district court and thus waived it.

Duron v. Albertson's LLC, 560 F.3d 288, 105 FEP 870 (5th Cir. 2009). Panel: Per Curiam (Garza, Stewart, Owen). Claims of Appeal: Title VII termination (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in granting summary judgment on the timing issue. Court declines to apply the "mailbox" presumption of receipt of a government notice, where the fact was contested by admissible evidence (the plaintiff's affidavit). Employer did not produce any business records or other physical evidence that the EEOC sent the notice of the right to sue to employee.

EEOC v. Board of Sup'rs for University of Louisiana System, 559 F.3d 270, 105 FEP 746 (5th Cir. 2009). Panel: CLEMENT, King, Benavides. Claims of Appeal: ADEA termination and retaliation. Disposition Below: Motion to dismiss denied [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: Eleventh Amendment did not bar federal government from enforcing ADEA against state university.

EEOC v. Agro Distribution LLC, 555 F.3d 462, 21 A.D. Cases 788 (5th Cir. 2009). Panel: JONES, Garwood, Smith. Claims of Appeal: ADA reasonable accommodation and termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Despite the employee's difficulty in regulating his body temperature, the availability of mitigating measures had to be considered in the equation of whether he suffered a "substantial limitation" under Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). (The panel acknowledges that the Sutton standard was legislatively overruled by the ADA Amendments Act of 2008, but that the new legislation was not retroactive.) It was not a reasonable accommodation for the employee to be completely excused from the task of unloading barrels, when there were lesser accommodations available (such as taking rest breaks). Fee award of $225,000 against agency affirmed, affirming district court's finding that by the time the claimant's deposition occurred, EEOC should have known that the claim was frivolous under Christianburg Garment standard.

Taylor v. UPS, Inc., 554 F.3d 510, 105 FEP 6 (5th Cir. 2008). Panel: DAVIS, Clement, Elrod. Claims of Appeal: 1. Title VII and § 1981 promotion (race). 2. Title VII and § 1981 pay (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed[plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Class-action tolling by operation of nationwide certified class in St. Louis continued during the appeal (i.e., from the time that the district court granted summary judgment on the class claims in 2000 until the ultimate disposition of the class case by the Eighth Circuit in 2004): "a party who sues on a cause of action tolls the statute of limitations during the entire prosecution of the action, including the prosecution of any appeal; otherwise, a plaintiff could not count on an appeal to protect his or her rights." Thus, court below erred in dismissing promotion claims arising prior to March 18, 2002. Claims remanded for resolution of merits of 2002-03 promotion claims; panel determines that district court must consider the merits of the promotion claims put together. 2. Panel reverses the district court's assessment of the plaintiff's expert witness: "Dr. Borg's analysis compares Taylor to two specific, apparently similarly situated white employees-those with similar evaluations and tenures-over the course of their employment at UPS. That comparison shows Taylor was paid 5.75% less than one of them and slightly over 17% less than the other. Thus, the district court erred in refusing to consider that portion of Dr. Borg's report."

Stover v. Hattiesburg Public School Dist., 549 F.3d 985, 104 FEP 1386 (5th Cir. 2008). Panel: STEWART, Higginbotham, Southwick. Claims of Appeal: 1. Title VII constructive discharge (race, sex). 2. Title VII and EPA compensation (race, sex). Disposition Below: 1. Summary judgment [defendant]. 2. Judgment following a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2 Affirmed except for fee award for defendant [defendant]. Grounds: 1. Allegations of hostile work environment were not so intolerable that an employee would feel compelled to resign. 2. Trial judge did not err in (1) precluding employee at trial from arguing the importance and impact of direct evidence; (2) allowing evidence of her replacements's comparative skills and credentials, which were relevant to EPA claim; (3) admitting evidence that employee destroyed/deleted computer information; (4) granting motion in limine to bar evidence of board's habit not to post vacancies publically, where the evidence got to the jury, anyway; (5) instructing jury on "same actor" inference; (6) denying new trial on overwhelming weight of evidence (waived in the district court by failure to file post-trial motion. Attorney fees for defense of $144,058 was erroneous where claim was not frivolous, having survived motion for summary judgment to trial. Costs of $10,570 constituting double-counting; actual costs were $5,285.

Carmona v. Southwest Airlines, 536 F.3d 344, 103 FEP 1369, 20 A.D. Cases 1461 (5th Cir. 2008). Panel: WIENER, Jones, Clement. Claims on Appeal:  Title VII and ADA discrimination). Disposition Below: Dismissal for lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: RLA does not preempt ADA and Title VII claims, despite that court would have to refer to the CBA to consider fully each of the alleged acts of disparate treatment, because there is no disagreement about how to interpret these provisions of the CBA that detail employer's procedures for assessing attendance, leave, discipline, and termination.

Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 103 FEP 1360 (5th Cir. 2008). Panel:  GARZA, Reavley, Jolly. Claims on Appeal:  1. Title VII harassment. 2. Title VII constructive discharge (sex). 3. Title VII retaliation). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Genuine issue of material fact about whether employee perceived the behavior subjectively as harassment, where she would rate harassing conduct as a ten on a scale of one to ten, stated that she was happy to be away from harasser, that she did not want to work alone with harasser, and that she felt humiliated every time he made one of his sexually-charged comments. Finally, plaintiff indicated that had her father not raised the initial complaint, she would have gone to management. Also district court ignored fact that employee pursued harassment complaints with employer and the EEOC. Also triable issue about whether employer exercised reasonable care to prevent and correct harassment; although the company brought harassment to an end by transferring the employee to another department -- after a complaint from her father -- the record included evidence that employer was on notice earlier about the harassment because of earlier incidents involving other women. 2. Failure of employee to complain previously about adverse treatment, and fact that it does not arise beyond garden-variety harassment, establishes that employee would not have been compelled to resign. 3.No adverse employment action in rude treatment, transfer to another department, unpleasant task (breaking down clothing racks).

Williams v. Wynne, 533 F.3d 360, 103 FEP 1167 (5th Cir. 2008). Panel: GARZA, Stewart, Owen. Claims on Appeal: Title VII retaliation). MSPB claim (not discussed here). Disposition Below: Dismissal for lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Citing Walsh v. Wynne, No. 07-20175 (5th Cir. June 24, 2008), court holds that Aircraft Electrician working for Air Force Reserves was barred by Feres doctrine from proceeding with Title VII action.

Walsh v. Wynne, 533 F.3d 289, 103 FEP 1152 (5th Cir. 2008). Panel: SOUTHWICK, King, DeMoss. Claims on Appeal: Title VII; §§ 1981, 1983 and 1985; and Bivens discrimination (race and sex). Due process claim (not discussed here). Disposition Below: Motions to dismiss under Fed. R. Civ. P. 12(b)(1) and (6) granted [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Treated as under Fed. R. Civ. P. 12(b)(6), district court properly dismissed case as non-justiciable under Feres doctrine. Plaintiff not excluded from scope of doctrine by virtue of his a dual-statusGuardsman and a federal technician. Reliance upon discharge letters approved because they were referenced in complaint. Federal technicians are federal employees who provide civilian support for National Guard as regular employment, in addition to regular service in the Guard, and who are commanded by the state Adjutants General. When plaintiff was mustered out of the Guard, due to disciplinary action, he also lost his technician job. "It is not possible to disentangle for these purposes their military role and command structure from their civilian employment, such that suits under Sections 1983 and 1985 or Bivens may proceed without raising the same concerns as when those claims are brought by traditional Guardsmen." While Title VII does permit suits by federal technicians, 29 C.F.R. § 1614.103 and 10 U.S.C. §10216(a), decisions which originate from military command are still barred if they are "integrally related to the military's unique structure." Here, all of the claims fell within that bar, because they were subjective personnel decisions made within the command structure. Notwithstanding, department continues to have authority to investigate EEO claims in administrative proceedings, so the claims should have been dismissed without prejudice to allow such proceedings. "Restarting agency action on a claim is particularly appropriate when the statutorily encouraged resort to a civil action after lengthy agency delay becomes futile, not because of a plaintiff's procedural default but because of a judicially created doctrine such as Feres."

Pinkerton v. Spellings, 529 F.3d 513, 20 A.D. Cases 1095 (5th Cir. 2008). Panel: Per curiam (Reavley, Jones, Smith. Claims of Appeal: Rehabilitation Act termination. Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Judge erred in instructing jury on "sole" cause standard in case tried under § 501 (i.e., "Do you find from a preponderance of the evidence that the DOE terminated Pinkerton solely because of his disability?'") Although § 504(a) provides for liability exclusively under the explicit "solely by reason of" rubric of that section, § 501 lacks express standard. But Congress meant § 501 liability to track the ADA; thus "motivating factor" test should be applied to ADA claims. and because the jury charge only contained the "sole" cause language, the employee's substantive rights were misstated and a new trial had to be granted.  Court does not decide who bears burden of proof, whether McDonnell Douglas method of proof applies or whether 42 U.S.C. § 2000e-2(m) applies.

Charles v. Grief, 522 F.3d 508, 103 FEP 276 (5th Cir. 2008). Panel:  WIENER, Benavides, Prado. Claims on Appeal: § 1983 retaliation. Disposition Below: Denial of summary judgment on qualified immunity [plaintiff]. Outcome on Appeal: affirmed in part, dismissed in part [plaintiff]. Grounds: Rejects argument that employee's speech on racial discrimination (against employee and other African Americans) is not protected under Garcetti because it concerns facts that he happened to learn while at work. Moreover, in this case communication was not made in the course of performing or fulfilling his job responsibilities, but was communicated directly to "elected representatives of the people" (i.e., state legislators). Issues of public trust, including racial discrimination, ar also issues of public concern. Court lacked jurisdiction over whether termination was caused by protected speech (but in footnote suggests that employee would meet Pickering standard).

McClain v. Lufkin Indus., Inc., 519 F.3d 264, 102 FEP 1362 (5th Cir. 2008). Panel: JONES, Higginbotham, Clement. Claims on Appeal: 1. Title VII class disparate impact assignment (race). 2. Title VII class disparate impact promotion (race). 3. § 1981 disparate treatment (race). Disposition Below: 1. Judgment after a bench trial [plaintiff]. 2. Judgment after a bench trial [plaintiff]. 3. Class certification denied [defendant]. Outcome on Appeal: 1. Reversed [defendant]. 2. Affirmed on liability, but damage award remanded [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Putative class representatives did not meet administrative prerequisites in charges. One charge alleged only disparate treatment and did not identify a putative neutral policy. EEOC investigation did not reach disparate impact; OFCCP investigation, even if it gave employer notification of possible disparate impact claim, did not substitute for charge-filing requirement. A second charge specified disparate impact only for promotions. Neither employee had standing to challenge initial assignments because they had already been employed for decades. 2. Panel affirms district court's finding of liability based on subjective decision-making. Evidence included provision in CBA that allowed promotion based on ability instead of seniority; evidence that training opportunities were distributed subjectively by managers; attendance and discipline records were subject to manipulation; and salaried jobs not under the CBA were handed out based on subjective factors. District court also found that promotion practices were not capable of separation (seniority could be waived in promotions; bid data was critically incomplete). Affirms finding that promotion system had statistically significant disparate impact' Dr. Richard Drogin constructed hypothetical pools and found statistically significant racial disparity in hourly promotions (7.61 S.D.) and salaried promotions (2.02 S.D.). No error in allowing hypothesized pools where bid sheets were unavailable; expert need not regress for all possible variables. Disparity of 2.02 is still significant, even if on the low end. Back-pay formula as previously authorized under Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974), affirmed. Individualized determinations of 700 class members was not feasible (would lead to "quagmire of hypothetical judgment." Damages vacated, because award included recovery for assignment claim. Court suggests that 127 promotion shortfall could be remedied by taking total wages attributable to lost promotions and allocate number proportionately throughout class. Lost wage calculations by class expert vacated because based on assumptions about racial assignment that was vacated on appeal. Twenty-hour period for presenting defense not abuse of discretion. Injunctive relief (a "follow the law" injunction) vacated for vagueness. Lack of findings by district court to reduce attorney fee lodestar due to disputes on hourly rates and alleged excessiveness - resulting in across-the-board 25% reduction - abuse of discretion. 3. Certification properly dismissed under Fed. R. Civ. P. 23(b)(3) where financial recovery "predominated" and class could not validly forego compensatory relief without generating conflict of interest with the rest of the class.

Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008). Panel: DAVIS, Stewart, Owen. Claims on Appeal: § 1983 First Amendment retaliation. Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Employee raising concerns about racial discrimination in her unit with the EEOC was not within employee's job function and on remand district court should consider whether speech involved matter of public concern and meets Pickering balancing test.

Abner v. The Kansas City Southern RR Co., 513 F.3d 154, 102 FEP 616 (5th Cir. 2008). Panel: HIGGINBOTHAM, Wiener, Garza. Claims on Appeal: Title VII/§ 1981 harassment. Disposition Below: Judgment after a jury trial ($125,000 punitive damages each for eight plaintiffs) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Notwithstanding the Thirteenth Amendment roots of section 1981, a claim brought under that act is statutory in nature. But in a Title VII and section 1981 case, the presence of the Title VII caps -- combined with the "high threshold" necessary to prove punitives -- substitutes for the need to show proportionality. Thus, "a punitive damages award under Title VII and § 1981 need not be accompanied by compensatory damages," agreeing with the Second and Seventh Circuits (splitting with the First Circuit). Nominal damage award was unnecessary to support the punitive award: "Because the award of actual or punitive damages is capped under Title VII, we do not require a ceremonial anchor of nominal damages to tie to a punitive damages award." The panel also found no abuse of discretion in (1) allowing the plaintiffs to present evidence of incidents going back as far as ten years, supporting the district court's conclusion that the incidents were part of a single claim; (2) admitting alleged hearsay erroneously under FRE801(d)(2)(D); and (3) miscellaneous alleged errors in the admission of one managers KKK-related conviction and the overruling of objections to plaintiffs' closing argument.

Lauderdale v. Texas Dep't of Criminal Justice, 512 F.3d 157, 102 FEP 555 (5th Cir. 2007). Panel: SMITH, Higginbotham, Owen. Claims on Appeal: 1. Title VII harasment (sex). 2. § 1983 harasment against officer (sex). 3. Title VII constructive discharge (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Genuine issues of material fact exists on whether the employee suffered pervasive harassment (average of 10-15 calls per shift by supervisor for four months, asked if she was married, said he might "hang himself," asked to take a trip to Las Vegas to "snuggle," grabbed her belt, ordered her to appear in his office for no reason). But employer prevails as a matter of law on the Faragher/Ellerth defense, because employee maintained standing policy against harassment, provided training and made quick response to plaintiff's complaint. Employee failed to report harassment until she quit work, which was too late. 2. Officer was not entitled to qualified immunity for harassment; because actionable harassment must be "objectively offensive," qualified immunity can never provide protection for harassment.3. No evidence of aggravated circumstances that would support claim that harassment was so severe that it caused resignation.

Price v. Rosiek Const. Co., 509 F.3d 704, 102 FEP 737 (5th Cir. 2007). Panel: Per Curiam [Jolly, Higginbotham, Prado]. Claims on Appeal: Title VII/§ 1981 termination. Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No abuse of discretion (1) refusing to admit testimony of co-worker about hostile work environment created by immediate supervisor (who was not the decision-maker), or alternatively it did not effect his substantial rights because the proposed testimony was vague and did not rebut uncontested performance reason for the employee's termination; or (2) instructing jury specifically that it was free to accept or reject findings in EEOC determination that were favorable to the employee.

Washburn v. Harvey, 504 F.3d 505, 101 FEP 1222, 19 A.D. Cases 1412 (5th Cir. 2007). Panel: GARZA, Higginbotham, Weiner. Claims on Appeal: 1. Title VII, ADA and Rehabilitation Act promotion. 2. Title VII, ADA and Rehabilitation Act retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1.Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff could not pursue disability claim against federal government under Title VII or ADA. Under Rehabilitation Act, district court erred in holding that employee was not "otherwise qualified" as a matter of law. Agency claimed that position required applicant to be "certified appraiser," but original posting did not require certification and acting supervisory appraiser did not hold certification, either. Also, employee had performed same job in temporary capacity and been well reviewed by supervisor.2. Conclusory declaration furnished by employee that he was told that he would never be promoted because of his discrimination complaints (without any information about alleged declarants) insufficient to support inference of discrimination. Under indirect method, denial of promotion two years after filing of Title VII complaint does not raise inference based on temporal proximity, and audit of plaintiff was part of agency-wide effort not targeted at him alone.

Palasota v. Haggar Clothing Co., 499 F.3d 474, 101 FEP 769 (5th Cir. 2007). Panel: HIGGINBOTHAM, Dennis, Clement. Claims of Appeal: ADEA termination. Disposition Below: Judgment following a jury trial ($842,218.96 back pay, $842,218.96 liquidated damages, $524,999.98 front pay, reinstatement and $14,583.33 monthly front pay, post-judgment interest, fees). Outcome on Appeal: Affirmed except reinstatement/front pay [plaintiff]. Grounds: District court did not err in denying motion for judgment as a matter of law on remand (342 F.3d 569 (5th Cir. 2003)). Record included evidence of termination of 12 sales associates age 40 and over, while hiring 13 new employees (all but one under 40) , employer targeted severance packages at sales associates in their early fifties or older, that a severance package ought to be directed at them and that the effect would be to "thin the ranks." Younger sales associates took over plaintiff's territory and plaintiff was given inconsistent explanation for his termination. Moreover, national sales manager and president made remarks that employer "needs race horses, not plow horses" and criticizing the "graying" of the sales force, supporting theory that company was trying to remake entire sales force to bring more youthful appearance. "Additionally, Haggar's unsuccessful efforts to have Palasota release it from ADEA claims upon his termination tended to show that Haggar had knowingly violated the ADEA or recklessly disregarded whether its conduct toward Palasota was prohibited by the statute." jury could consider, in calculating back pay, amounts taht employee would have earned if employer had not artificially depressed his earnings in later years (jury found that he would have been earning $175,000 instead of $85,6000 yearly). Employer failed to plead mitigation defense in answer, but defense was not waived because it was tried by consent under Fed. R. Civ. P. 15(b). Jury was nevertheless not compelled by record to agree with Haggar that employee's substitute employment was comparable in income and prestige to prior job as sales associate. Front pay was clear error, because employee presented no evidence of vacant position to which he could be reinstated, that his prior accounts have already been divided among the remaining associates, no new employees had been hired since 2002, and incumbents would either have to be fired or lose income to allow reinstatement. Moreover, employer cannot match $175,000 peak salary, employee testified that he would not go back to work at Haggar for $75,000-100,000, and that he has his own business now. Remaining lump-sum front pay vacated and remanded for consideration of whether liquidated damamge award adequately compensated employee,to avoid windfall.

McCoy vs. City of Shreveport, 492 F.3d 551, 100 FEP 1812 (5th Cir. 2007). Panel: Per Curiam [Higginbotham, Wiener, Prado]. Claims of Appeal: 1. Title VII constructive discharge (race, sex). 2. Title VII leave (race and sex). 3. Title VII retaliation. First Amendment retaliation (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Officer who was relieved of duty (with consent) for medical reasons, counseled against horseplay, required to turn in her badge and gun for the interim and suffered boorish remarks was not constructively discharged. 2. Being required to take administrative leave, with pay and with possibility of return not "ultimate employment action." 3. While being placed on administrative leave presents close question about the Burlington Northern standard for an adverse employment action, employee could not present genuine issue of material fact about pretext. That decisionmakers were aware of employee's complaints about treatment of minorities and made decision to take gun and badge by itself did not establish causation.

Berquist v. Washington Mutual Bank, 500 F.3d 344, 101 FEP 1379 (5th Cir. 2007). Panel: STEWART, Jones, Jolly. Claims of Appeal: ADEA termination . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in finding that employee was not "qualified" for position for purposes of proving prima facie case; employee possessed same job skills he had at the time he was placed in credit review position, and that employer was no pleased with performance in the job does not prove lack of qualifications at that stage. Employee, though, was not replaced by substantially younger counterparts, which precluded resort to indirect method of proof. Using direct method, comment by manager about wanting to attract younger talent and that employees two counterparts were younger did not constitute direct evidence, coming six months before decision and (in context) discussion need to develop talent internally.. Decision to terminate two oldest employees while offering younger two employees option of transferring not circumstantial evidence of age bias. Two younger employees had more experience in the specialty area, while older employees only performed overflow work from that department. Evidence that only the two older employees were placed on performance improvement plans, where employee had admitted (more than once) lacking expertise in credit review. Manager had even tried to use the PIP as a vehicle to locate more appropriate work for employee that used his skill set. Employee also failed to present a genuine issue of material fact about the reasons for the reduction in force (RIF) in his office.

Decorte v. Jordan, 497 F.3d 433, 101 FEP 481 (5th Cir. 2007). Panel: BARKSDALE, Garwood, Garza. Claims on Appeal: Title VII, § 1981 and La. state law termination (reverse race). Disposition Below: Judgment following a jury trial for 35 plaintiff; compensatory damages from $250 to $13,500, and equitable relief [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Verdict supported by sufficient evidence. All but one of the plaintiffs were white (the only other plaintiff was Latino but described as white in exhibits). Racial composition of office, after Jordan was elected as District Attorney, went from 77 white-56 black to 27 white-130 black. Defendant argued that he staffed office with people who supported his candidacy, regardless of race, that he attempted to recruit white staff, promote whites to high-level positions, and did not interfere with the attorney staff. Person recommending hires did not consider published factors or interviews, but were affected byloyalty and budgetary considerations, and were sometimes just "random." Statistical evidence established probability of randomness was one in a million. No reversible error in (1) admission of EEOC determination, (2) instruction to jury that cultural-diversity report was an "affirmative action" plan, or (3) failure to bifurcate liability and damages (not objected to below). Claimants' testimony sufficient to prove emotional distress to support damages.; each testified about personal difficulties (stress, sleeplessness, strained relations, depression, physical symptoms), citing EEOC Policy Guidance No. 915.002 § II(A)(2) (July 14, 1992). Testimony of three plaintiffs supported by life span development psychologist. Statements in closing argument about EEOC internal processes, not part of the record, were countered by defendants' own closing, thus harmless error. No plain error in attack on defense attorney's integrity and argument about expert opinions not offered into evidence.

Guerra v. North East Independent Sch. Dist., 496 F.3d 415, 101 FEP 321 (5th Cir. 2007). Panel: Per Curiam [Jolly, Clement, Owen]. Claims on Appeal: ADEA promotion. Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to object to jury instruction on causation, and on plain error review instruction is upheld. Though it contained two different causation standards (but-for and "motivating factor"), ambiguity was not prejudicial because parties tried case on pretext standard and "motivating factor" was lesser-included standard. No error in excluding EEOC determination in favor of employee under FRE403 that was decided against him, then reversed after intervention by a member of Congress. Would have unduly prejudiced jury.

EEOC v. WC&M Enterprises, 496 F.3d 393, 101 FEP 332 (5th Cir. 2007). Panel: DENNIS, Davis, Prado. Claims on Appeal: Title VII harassment (religion, national origin). Disposition Below: Summary judgment [reversed]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in evaluating charge-timing; employee's own affidavit supported claim that harassment continued into the 300-day period before the charge was filed. Employee not required to prove that work performance objectively suffered. Court also erred in holding that none of the harassment was based on national origin because the harssers did not refer to the employee's actual national origin. Citing 29 C.F.R. § 1606.1, an EEOC guideline and several district court opinions, the panel concludes finds genuine issue of material fact about whether conduct was severe or pervasive ("why don't you just go back where you came from since you believe what you believe?'" "'This is America. That's the way things work over here. This is not the Islamic country where you come from," reference to employee "'Taliban" and calling him an 'Arab.'"

Massingill v. Nicholson, 496 F.3d 382 (5th Cir. 2007). Panel: HIGGINBOTHAM, Davis, Barksdale. Claims on Appeal: ADA termination. Determination Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Fifth Circuit joins other courts in holding that federal employee must either accept agency determination or else surrender award in favor of de novo review in federal court. Though ambiguous, complaint might be read to request de novo review. No requirement that employee disgorge remedy, provided that it may be set-off of final judgment.

Arismendez v. Nightengale Home Health Care, Inc., 493 F.3d 602, 101 FEP 27). Panel: BENAVIDES, Jones, Stewart. Claims on Appeal: Tex. state law termination (pregnancy). Disposition Below: Judgment after a jury trial ($1 million punitive capped at $200,000, $26,150 back pay, $10,000 compensatory) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Evidence was sufficient to establish that decisionmaker was supervisor who told employee at time of termination that she knew it was illegal to fire her because she was pregnant, but she had a "business to run" and "could not take having a pregnant woman in the office." Supervisor signed Employee Separation Report. The report listed the reasons for the involuntary separation were "excessive sick leave/ job abandonment." Employee's husband hand delivered a doctor's note to supervisor that extended the period of bedrest but that note was not in employee's file, and regional manager was never made aware of it. Regional manager testified that he would have considered the circumstances regarding employee's bedrest if he had been made aware. Regional manager described employee as a superior employee and a key person in the office. Supervisor communicated with Nightingale's human resources department regarding terminating employee and provided all the information that the regional manager had in order to make the termination decision. Employee also showed defeated "same decision" defense, showing that if company intends to fire an employee for job abandonment, personnel manual established procedures for reporting absences, which jury could have found wre met by employee. Manual also provided for progressive discipline which employer did not give. Although employer claimed it was operating with "skeletal staff" and could not hire temporary replacement for employee during her bedrest, evidence showed that branch had already operated without manager for an entire year. Statutory cap correctly applied. Employer did not waive defense by failing to plead it; assuming cap as a "defense," it was sufficient for employer to raise it in the pretrial order and employee was not prejudiced thereby. State-law punitive cap, applying generally to state-law causes of action, superceded higher limits previously allowed under state labor code.

Alvarado v. Texas Rangers, 492 F.3d 605, 100 FEP 1793 (5th Cir. 2007). Panel: GARZA, Reavley, Dennis. Claims on Appeal: Title VII promotion (sex). Disposition Below: Summary judgment [reversed]. Outcome on Appeal: Reversed [plaintiff]. Grounds: While a purely lateral transfer is not ordinarily actionable as an adverse employment action, employee presented genuine issue of material fact that denial of transfer from Department of Public Safety sergeant to Texas Rangers was denial of promotion. Standards for evaluating whether transfer is equivalent to a promotion are objective, and include increase in compensation or other tangible benefits; greater responsibility or better duties; requirement of superior skill, education or experience; whether entry is competitive; and prestige. Factors in this case included "(1) the Rangers are an elite unit within DPS and have a unique and illustrious history; (2) an appointment to the Rangers is, according to DPS, 'one of the most competitive goalsto which a law enforcement officer may aspire'; (3) the 'promotion and selection' process is complex and rigorous; (4) the competition to become a Ranger is 'fierce,' as evidenced by the large number of applicants for the few available positions, and is steeper than the competition for positions with any of DPS's other divisions; (5) the minimum qualifications for becoming a Ranger Sergeant are higher than the minimum qualifications for becoming a Sergeant with Special Crimes; (6) the Rangers work under less supervision and have greater job responsibilities, including being the primary investigators of homicides and handling other major 'high-profile' and 'sensitive' cases; (7) although DPS regulations do not officially classify Ranger appointments as promotions because they do not entail an increase in pay, receiving an appointment to the Rangers is generally viewed within DPS as a promotion; and (8) newly appointed Rangers are honored at a special 'promotional ceremony' in Austin." Employer also failed to meet burden of production to supply legitimate, non-discriminatory reason for failure to promote. Although it pointed to scoring system that ranked sergeant 29th, employer failed to show that score was determined by sex-neutral factors. Although sergeant had superior written exam score to three of the men selected, oral interview was given determining weight, and employer never attempted to defend interview scoresor to show objectively why sergeant scored much lower than male applicants. Employer also neglected to furnish any information in the record about relative qualifications of the employees to support inference that "best qualified" candidates were selected.

Nasti v. Ciba Specialty Chemicals, 492 F.3d 589, 101 FEP 6 (5th Cir. 2007). Panel: STEWART, Jones, Benavidas. Claims on Appeal: Title VII termination (sex). State law defamation claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While employer offered two explanations for termination (submitting a false call report and perfromance-related reason), this does not present genuine issue of material fact about pretext because they are not inconsistent: termination was already in the works for performance, when false-call incident motivated ultimate decision. Employee failed to present a sufficient case that the false-call explanation was false. Three different manager separately concluded that employee attempted to mislead company. Even assuming subordinate attempted influence decision for racially biased reasons, decisionmaker made separate inquiry of employee. Mixed-motive theory waived.

Morgan v. Potter, 489 F.3d 195, 100 FEP 1270 (5th Cir. 2007). Panel: BENAVIDES, Smith, Dennis. Claims on Appeal: ADEA and Title VII discrimination. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff who filed suit 97 days after mailing of right-to-sue held untimely under 42 U.S.C. § 2000e-16(c). No evidence in record on actual receipt of letter, so district court did not err in applying five-day presumption of receipt stated in letter.

Jenkins v. Cleco Power LLC, 487 F.3d 309, 19 A.D. Cases 425 (5th Cir. 2007). Panel: STEWART, Jones, Jolly. Claims on Appeal: ADA and La. state law reasonable accommodation and retaliation. ERISA claim [not discussed here]. Disposition Below: Fed. R. Civ. P. 41(b) involuntary dismissal [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Sitting qualified as a major life activity and plaintiff established (contrary to the disctrict court's holding) that he was substantially limited, because she could only sit three hours a day. But plaintiff presented no genuine issue of material fact about whether employer failed to enter into interactive process to locate employment meeting his condition. Although record contained letter provisionally clearing employee for call center work, recommendation was consistent with later recommendation that employee would need to alternate sitting and standing. Employer rotated employee through several jobs to find one that met his physical needs.

Bourdais v. New Orleans City, 485 F.3d 294, 100 FEP 720 (5th Cir. 2007). Panel: BENAVIDES, Reavley, Jolly. Claim on Appeal: Equal Protection hiring (reverse discrimination race). Disposition Below: Judgment entered after a jury trial [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: City's only argument on appeal was that plaintiffs ought to have brought their suit in 1991, when they were refused employment, instead of 1999. Borrowing the Louisiana statute of limitations tolling rules, the court finds that plaintiffs prevail under doctrine of "Contra Non Valentem," i.e., suspending the running of the claim while "the plaintiff does not know nor reasonably should know of the existence of the cause of action." Although two other lawsuits had already been filed challenging the same practice years earlier, the later-filing plaintiffs were deemed not on notice because in contrast to the other two cases -- where the claimants were never hired -- plaintiffs eventually became fire recruits. That, combined with their lack of actual knowledge of the other lawsuits (except at the rumor level), supported verdict in their favor on defense. Plaintiffs, nonetheless, fail to win (as front pay) an award of pension benefits to compensate them for the delay in hiring. "The dollar amount of damages attributable to the delayed pension benefits is extremely speculative, and given the uncertainty of whether the pensions will ever vest, the district court was within its discretion to find that awarding such damages would go beyond making the plaintiffs whole." And 17 of the plaintiffs received no back pay at all, on the grounds that they did not establish their eligibility be to hired in 1991.

Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 100 FEP 537 (5th Cir. 2007). Panel: DAVIS, Stewart, Godbey. Claim on Appeal: 1. Title VII promotion (race). 2. Title VII termination (race, retaliation). Disposition Below: 1. Summary judgment (defendant). 2. Summary judgment (defendant). Outcome on Appeal: 1. Reversed (plaintiff) 2. Affirmed (defendant). Grounds: 1. Conceding that employee had prima facie case of race discrimination under pretext method of proof, employer contended that white candidate for VP of Purchasing had more "purchasing experience in the bottling industry." Genuine issue of material fact presented where company had given different reason to the EEOC (allegedly superior "purchasing experience") and that plaintiff's purchasing experience was longer, and recognized by the company as superior (raises, invitation on company trip). Plaintiff had temporarily filled the very position to which he sought promotion. Other candidate had experience in unrelated field of management and operations. Defense witness who made promotion decision acknowledged that successful candidate had less purchasing experience and that plaintiff excelled in relevant area of summarizing different proposals and contacting suppliers. 2. Employee failed to present genuine issue of material fact on pretext, where employer gave legitimate, non-discriminatory reason for termination (insubordination), and record evidence (performance evaluation and plaintiff's negative response to it) were consistent with that explanation.

Strong v. Univ. Health Care System, L.L.C., 482 F.3d 802, 100 FEP 544 (5th Cir. 2007). Panel: DEMOSS, Reavley, Benavides. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Applying circuit's "but for" standard for causation, court finds that nurse with 14 incidents of poor performance and improper conduct, culminating in her misidentifying a patient as an alcoholic, was terminated for performance rather than retaliatory reasons. Decision was made by management as a whole. Evidence of two other employees allegedly not terminated for comparable misconduct were not similarly situated (one was a doctor who resigned in face of claims of misconduct; the other a nurse supervisor whose alleged misconduct was not elucidated in the record). Three-and-one-half month span was insufficiently close to infer retaliatory intent. In any event, temporal proximity at most will establish a prima facie case and will not (by itself) establish causation. Burlington Northern does not affect analysis.

EEOC v. E.I. Du Pont de Nemours & Co., 480 F.3d 724, 18 A.D. Cases 1793 (5th Cir. 2007). Panel: JONES, Reavley, Prado. Claim on Appeal: ADA "regarded as" termination. Disposition Below: Judgment after a jury verdict ($91,000 back pay, $200,000 front pay, $1 million punitive damages reduced to $300,000) [plaintiff]. Outcome on Appeal: Affirmed except front pay [plaintiff]. Grounds: Evidence demonstrates that employer regarded lab operator as being disqualified for any job at the plant because she supposedly could not evacuate the workplace quickly enough due to various medical conditions, thus substantially limited in the major life activity of walking (29 C.F.R. § 1630.2(j)(1)(i)). If company executive believed she was unable to walk safely in lab setting, jury could have concluded that employer believed her unable to walk safely anywhere. Evidence established that employee could in fact evacuate plant (she did so in 2003 without assistance), so jury could reject contentions that she was not a "qualified" individual or was a "direct threat" to herself and others. Back-pay award supportable, even though employee was medically limited after June 2001, because jury could have relied on evidence that employee could work under high pain threshold. Front-pay, based on advisory jury verdict, was unsupportable because it assumed employee could work ten years post-judgment despite disability determinations by her treating physician. Punitive damages affirmed; employer made job more difficult for employee by moving equipment further away, tried to convince her to retire on disability, refused to allow her to demonstrate should could evacuate plant, and - after she tried to get job back - former supervisor supposedly said thathe no longer wanted to see "crippled crooked self, going down the hall hugging the walls." Conclusory testimony about employer's EEO policies insufficient. Court holds in matter of first impression that 42 U.S.C. § 1981a allows award of punitive damages without compensatory award.

Lemaire v. Louisiana Dept. of Transp. and Development, 480 F.3d 383, 99 FEP 1577 (5th Cir. 2007). Panel: PRADO, Barksdale (DEMOSS, dissenting in part). Claim on Appeal: 1. Title VII harassment (same-sex) 2. Title VII retaliation. Disposition Below: 1. Summary judgment (defendant) 2. Summary judgment (defendant). Outcome on Appeal: 1. Reversed (plaintiff) 2.Reversed (plaintiff). Grounds: 1. Where employer simply denied that incidents of sexually explicit behavior by supervisor occurred, and did not raise a Faragher/Ellerth defense, plaintiff's contradictory testimony presents genuine issue of fact. Where employer failed to present argument below on whether conduct was severe or pervasive, or citing same-sex harassment standard, it failed to put employee on notice to rebut such arguments and are waived. 2. Alleged act of retaliation prior to time employee filed complaint with agency was not retaliatory as a matter of law. Repelling sexual misconduct alone is not a protected activity. But other acts that employer did not specifically raise below for summary judgment could not be basis for dismissing claim. Suspension ordered two weeks after employee made report of harassment, because he refused to perform work duty (spraying weeds) and instead went to complain of further harassment; harasser was involved in decision to suspend employee and suspension letter referred to wrong day of work. No genuine issue of material fact about whether termination was motivated by performance reasons (sleeping on the job, showing up late, refusing to mow grass).

Barrow v. Greenville Independent School Dist., 480 F.3d 377, 99 FEP 1450 (5th Cir. 2007). Panel: HIGGINBOTHAM, Jolly, Dennis. Claim on Appeal: Title VII disparate impact (religion). § 1983 claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Patronage policy (requiring employees who work for district to send children to public school) not demonstrated to have statistical impact on employees who choose private religious schools.

Muhammad v. Dallas County Community Supervision and Corrections Department, 479 F.3d 377, 99 FEP 1281 (5th Cir. 2007) . Panel: OWEN, Jolly, Prado. Claim on Appeal: Title VII discrimination (race) and retaliation . Disposition Below: Fed. R. Civ. P. 12(b)(6) dismissal for failure to state a claim [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Applying "hybrid economic realities/common law control test," court holds that district court erred in determining that the Community Supervision and Corrections Department was not employee's employer as a mater of law, and remanded for factual findings. Court did not abuse discretion in denying plaintiff leave to file third amended complaint.

EEOC v. Jefferson Dental Clinics, 478 F.3d 690, 99 FEP 1313 (5th Cir. 2007) . Panel: CLEMENT, King, Wiener. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Affirmed as to equitable relief only [plaintiff]. Grounds: Commission --which provided material assistance in an ultimately unsuccessful state-court tort action, claiming intentional infliction of emotional distress, negligent retention, and wrongful discharge on behalf of four plaintiffs -- is precluded from seeking monetary relief for a Title VII action filed on behalf of the same plaintiffs in federal court, by operation of Texas state-law res judicata principles. The EEOC, among other things, participated in mediation of the state law case and sat as observers at the state court trial. Although finding that the EEOC did not control the state litigation, court concludes that "the EEOC's claims [for damages] arise out of the same subject matter as the state court case" and thus "[t]he three elements of res judicata are therefore satisfied with respect to the claims for make-whole relief, and these claims are barred by the doctrine of res judicata." Although the Commission may seek injunctive relief, under this decision it is barred from pursuing any kind of damages claim.

Adams v. Groesbeck Ind't School Dist., 475 F.3d 688, 99 FEP 909 (5th Cir. 2007) . Panel: JONES, Smith, Stewart [concurring in judgment only]. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds : The employee failed to show that when he sought to return to this position -- after settling a Title VII action with the district -- the district had an available coaching job for him to fill, hence could not prove . The coach's duties had already been assigned to a long-term substitute. While the plaintiff's spouse (another coach in the same district) testified that the school could have used an additional coach, and an athletic director supposedly said that the plaintiff would never be hired because of the lawsuit, the fact remained that no additional position was created.

Andrews v. Roadway Exp. Inc., 473 F.3d 565, 99 FEP 774 (5th Cir. 2007). Panel: GARZA, Jones, Davis. Claim on Appeal: Title VII decree enforcement (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Texas procedures for writ of enforcement govern under Fed. R. Civ. P. 69(a) to enforce terms of 1985 Title VII consent decree. Plaintiffs waited 17 years to bring action after judgment became final on appeal, but Texas imposes a ten-year limit on the life of a judgment, and two additional years to revive the "dormant" judgment. Decree was sufficiently clear to support issuance of writ of execution.

Culwell v. City of Fort Worth, 468 F.3d 868, 99 FEP 97 (5th Cir. 2006) . Panel: SMITH, Wiener, Owen. Claims on Appeal: 1. Title VII termination (reverse race). 2. Title VI retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Sanction to unfile Fed. R. Civ. P. 56(f) motion for aleged local rule violation was an abuse of discretion. District court as wrong on the facts (the signature was a bona fide lawyer), and overreacted to boot. "The form of the motion was not obviously violative of the order against submissions signed by firms, and it certainly did not warrant de facto dismissal on the basis of what must appear to the casual observer to be judicial petulance." On the merits plaintiffs' motion probably ought to have been granted. Holding that "Rule 56(f) allows for further discovery to safeguard non-moving parties from summary judgment motions that they cannot adequately oppose," and thus should be "liberally granted", the panel reverses the district court's finding that the plaintiffs failed to act with diligence. The plaintiffs filed their motion well within the discovery cut-off and in advance of the deadline to oppose summary judgment. Even if the 14-week extension for discovery sought was extravagent, plaintiffs were entitled to some extension. Finally, the court held that the plaintiffs' requested with enough specificity the needed discovery to preclude a ruling on the summary judgment motion. 2. Retaliation claim was beyond the scope of the charge.

Cheatham v. Allstate Insur. Co., 465 F.3d 578 (5th Cir. 2006). Panel: PER CURIAM [Smith, Garza, Prado]. Claims on Appeal: ADEA termination. FLSA and state tort claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiffs terminated after investigations for committing abuse altering dates on claims files. Assuming that plaintiffs made out a prima facie case, court affirms summary judgment on ground that they did not prove pretext. No evidence that employees were treated any differently because of age. Younger employees not treated differently, because they only committed individual violations of the rule, while audit showed that plaintiffs committed serial violations.

Price v. Choctaw Glove & Safety Co., 459 F.3d 595, 98 FEP 1101 (5th Cir. 2006). Panel: DENNIS, Davis, Smith. Claim on Appeal : Title VII promotion (national origin). Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(1) [defendant] . Outcome on Appeal: Affirmed [defendant]. Grounds: Under single filing or piggyback rule, individual plaintiffs who were formerly putative absent class members and who did not file their own charges could not file new, independent action after class certification was denied in the original case for failure to exhaust administrative remedies with the EEOC.

Pacheco v. Mineta, 448 F.3d 783, 98 FEP 10 (5th Cir. 2006) . Panel: GARWOOD, Prado, Owen. Claim on Appeal: Title VII pay (sex). Disposition Below: Summary judgment [defendant] . Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to preserve disparate impact claim challenging selection process for promotions by Air Traffic employee, where his formal charge only presented a claim for discrimination on the basis of national origin, identified no neutral employment policy and complained only of past incidents of disparate treatment. Denial of discovery not an abuse of discretion. Panel notes intra-circuit split about whether failure to exhaust is jurisdictional or prerequisite to suit. Remanded for award of costs to agency.

Willisv. Coca Cola Enterprises Inc., 445 F.3d 413, 97 FEP 1288 (5th Cir. 2006) . Panel: GARZA, Benavides [REAVLEY, concurring in the judgment]. Claim on Appeal: Title VII termination (pregnancy). FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee - terminated for violation of "no call/no show" rule - failed to establish pretext for termination by evidence that other employees were allowed to miss one day of work without medical release; on day of doctor appointment, employee failed to communicate with employer, and failed to adduce comparable evidence of others treated more leniently under similar circumstances.

Int'l Brotherhood of Electrical Workers v. Mississippi Power & Light Co., 442 F.3d 313, 97 FEP 1501 (5th Cir. 2006) . Panel: KING, Barksdale, Clement. Claim on Appeal: Title VII disparate impact challenge to testing program. Disposition Below: Judgment after a bench trial [plaintiff]. Outcome on Appeal: Reversed and rendered [defendant]. Grounds: While employee presented prima facie case of disparate impact caused by raising cut-score of Clerical Aptitude Battery test (to allow laid-off employees to bump junior Storekeepers), employer met burden of production under 42 U.S.C. § 2000e-2(k)(1) on job-relatedness and business necessity (e.g. lead to more proficient employees). Panel holds, in issue of first impression for circuit, that employee bears burden of proof on acceptable alternative employment practice under 42 U.S.C. § 2000e-2(k)(1)(A)(i) (noting split with Eighth Circuit, agreement with Third and Eleventh Circuits). Employee did not meet burden by simply having expert mention different method of setting cut-score in passing.

Coleman v. New Orleans and Baton Rouge Steamship Pilots' Assoc., 437 F.3d 471, 97 FEP 369 (5th Cir. 2006). Panel: JOLLY, Jones, DeMoss. Claim on Appeal: ADEA apprenticeship program. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Louisiana steamship and river port pilots' associations and board of river port pilot commissioners do not constitute "employers," and pilots are not "employees," under 29 U.S.C. § 630()b and (f), owing to absence of traditional control of individual (citing Clackamas Gastroenterology).

Dean v. City of Shreveport, 438 F.3d 448, 97 FEP 454 (5th Cir. 2006) . Panel: DEMOSS, Garwood, Smith. Claims on Appeal: Equal Protection, Title VII and La. state law challenge to consent decree (reverse discrimination). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: City could demonstrate existence of compelling interest, in 1980, to enter into consent decree regarding sex/race hiring of firefighters, despite absence of judicial finding. City showed only token hiring of minorities, despite that minorities made up 40% of general population, and no women. This was conclusive evidence when combined with history of systematic exclusion. But issue was whether effects of discrimination continued into 2000-02, when white male plaintiffs applied for hiring. City lacked record of qualified applicant pool. Expert was not credentialed to ascertain who were qualified applicants. Percentage of minorities passing civil service exam not proper proxy. Record also insufficient on narrow tailoring. No evidence of what alternative measures could have sufficed in 2000-02. Requirements of decree may also not have been flexible enough; decree language about "appropriate work force" was ambiguous. Duration of remedies in this case were decades' long.Impact of relief on third parties found not significant enough to make decree unconstitutional per se. Test-banding violated Title VII, 42 U.S.C. § 2000e-2(l).Because decree was voluntary, Louisiana state constitution. ban on racial classifications applied as well, and could constitute additional ground to strike down decree, even if it survives strict scrutiny analysis. State law claim properly dismissed on ground that code expressly exempts affirmative action programs.

Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468, 17 AD Cases 790 (5th Cir. 2006) . Panel: WIENER, Higginbotham, Dennis. Claims on Appeal : ADA and Texas state law "regarded as" hiring. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed and rendered for plaintiff [defendant]. Grounds: Employer's blanket policy of refusing to hire what it characterized as 'uncontrolled' diabetics violated ADA as a matter of law, as applied to individual "regarded as" disabled. The question of "control" is never relevant in such cases; any rule requiring that a plaintiff exercise some level of control over his impairment, is relevant and applies only in an actual disability case. Employer waived any argument that employee was not qualified or posed a direct threat. Employer admitted in discovery that it regards applicant's diabetes as substantially limiting his ability to engage in the major life activity of working, and that it withdrew its employment offer for that reason.. Moreover, by failing to make an individualized assessment of plaintiff's fitness to work, especially in view of the fact that he was already working on a contract basis for the same employer, citing 29 C.F.R. § 1630.2(1).

Harvill v. Westward Communications, L.L.C., 433 F.3d 428, 96 FEP 1793 (5th Cir. 2005). Panel: STEWART, King, Barksdale . Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. FELA claim (not discussed here). Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal: 1.Affirmed [defendant]. 2.Affirmed [defendant]. Grounds : 1. District court erred in analyzing employee's claim of harassment to require her to prove harassment was both severe and pervasive. Employee presented genuine issue of material fact regarding whether seven-month period of grabbing, rubbing and fondling; rubber-band shooting (at breasts); unconsented discussions about sex on a near-weekly basis. Proof of numerousness of incidents sufficient without precise dates attached. Nevertheless, summary judgment properly granted on alternative basis of Faragher/Ellerth affirmative defense. Prior panel had already ruled in case involving same management that employer maintained adequate Hockman v. Westward Communications, LLC, 407 F.3d 317 (5th Cir. 2005). Employer had written policy, which plaintiff acknowledged, which directed her to Human Resources and which she failed to do. Harassment completely ceased after her attorney contracted HR. 2. Constructive discharge not alleged in EEOC charge. Also, no proof of constructive discharge, where her conclusory allegations including rude treatment, a race harassment complaint and and a threat to her bonus.

Baker v. American Airlines Inc., 430 F.3d 750, 96 FEP 1555 (5th Cir. 2005) . Panel: CLEMENT, Garwood, Prado. Claims on Appeal : Title VII discrimination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Employee failed to conduct timely discovery, and district court did not abuse discretion in declining to accept late-filed brief or extend discovery under Fed. R. Civ. P. 56(f) in view of plaintiff's lack of diligence. Accordingly, plaintiff failed to present any genuine issues of material fact on her claims. Discovery sanctions against plaintiff affirmed.

Cutrera v. Board of Sup'rs of Louisiana State University, 429 F.3d 108, 17 A.D. Cases 321 (5th Cir. 2005). Panel: DAVIS, Jones, Garza. Claims on Appeal: 1. ADA termination. 2. ADA retaliation. § 1983 claim (not discussed here). Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal: 1.Reversed [plaintiff]. 2.Affirmed [defendant]. Grounds: 1. Genuine issue of material fact whether plaintiff with Stargardt's disease (which gradually leads to legal blindness) was disabled for purposes of the ADA, where employee and her experts testified that she nearly lacked central vision, her condition could not be corrected or mitigated and she would progressively lose all of her sight. Her disability could be found to impose a substantial limitation on the ability to see. Employee also presented genuine issue of material fact regarding her request for accommodation, where employer fired her before an accommodation could be considered or recommended. 2. Retaliation claim was not plead or argued below, and was therefore waived.

Jones v. Robinson Property Group, 427 F.3d 987, 96 FEP 1062 (5th Cir. 2005). Panel: STEWART, Davis, Dennis. Claims on Appeal: 1. Title VII and § 1981 failure to hire (race). 2. Title VII retaliation. Disposition Below: 1.Summary judgment [defendant] 2.Summary judgment [defendant]. Outcome on Appeal: 1.Reversed [plaintiff] 2.Affirmed [defendant]. Grounds: 1. Genuine issue of material fact presented by direct evidence of race discrimination: manager or his assistant reportedly said that casino "hired who they wanted to hire and there were not going to hire a black person unless there were extenuating circumstances," "good old white boys don't want blacks touching their cards in their face," and "maybe I've been told not to hire too many blacks in the poker room." 2. District court did not abuse discretion by denying plaintiff leave to amend complaint to add claim of retaliation under Fed. R. Civ. P. 15.

Miller v. Texas Tech Univ., 421 F.3d 342, 17 AD Cases 47 (5th Cir. 2005). Panel: DAVIS and WEINER, King, Higginbotham, Weiner, Barksdale, Benavides, Stewart, Dennis, Prado [JONES, Jolly, Smith, Garza, DeMoss, Clement, dissenting in part] . Claims on Appeal: Rehabilitation Act termination . Disposition Below : Denial of dismissal under Rule 12(b)(1) [plaintiff] . Outcome on Appeal : Affirmed [plaintiff]. Grounds: State agencies waived Eleventh Amendment immunity by accepting federal funds under 42 U.S.C. § 2000d-7, reaffirming Pace v. Bogalusa City School Board, 403 F.3d 272 (5th Cir. 2005) (en banc).

McLaren v. Morrison Mgt. Specialists, Inc., 420 F.3d 457, 96 FEP 549 (5th Cir. 2005). Panel: DEMOSS, Jolly, Smith . Claims on Appeal: Texas state law age failure to hire. Disposition Below : Judgment as a matter of law [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Employee was judicially estopped from age discrimination claim when he submitted application to SSA that averred his "total disability" and inability to perform the job, and failed to explain inconsistency in the course of the case.

Wheeler v. BL Development Corp., 415 F.3d 399 (5th Cir. 2005). Panel: DEMOSS, Davis, Smith . Claims on Appeal: § 1981 termination. Miss. state tort (not discussed here). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: White plaintiffs failed to make out prima facie case, because they were neither replaced by African-American employees (their duties were reassigned to white managers) nor treated differently than African-American employees under "nearly identical circumstances." Plaintiffs were found to have removed a tire-changing machine without approval and made false statements about it; other employees, white and black, were not terminated where the assets removed were less valuable and the employees admitted the conduct.

Marino v. Dillard's, Inc., 413 F.3d 530, 16 AD Cases 1537 (5th Cir. 2005) . Panel: GARZA, Garwood, Benavides . Claims on Appeal: ADA termination and reasonable accommodation. Disposition Below: Denying motion to compel arbitration [plaintiff] . Outcome on Appeal: Reversed [defendant]. Grounds: Under Louisiana law, arbitration agreement could be accepted by continuing employment without an express written consent. Acknowledgment was not ambiguous about means of acceptance.

Bryant v. Compass Group USA, Inc., 413 F.3d 471, 95 FEP 1804 (5th Cir. 2005). Panel: DEMOSS, Reavley, Prado. Claims on Appeal: Title VII termination (race) and retaliation . Disposition Below: Judgment entered after a jury trial; $42,500 actual damages, $160,000 compensatory damages, $350,000 punitive damages, $36,556.22 fees and $3,093.16 costs [plaintiff] . Outcome on Appeal: Reversed [defendant]. Grounds: Termination three weeks after employee filed EEOC charge was not retaliatory or discriminatory, where employer established legitimate explanation (suspicion of theft), and employee had nothing except the timing of the decision and his own profession of innocence of the offense to rebut the explanation. A disinterested third party turned the plaintiff into management after he supposedly admitted the theft to him. No evidence that Latino workers contrived story of theft to obtain plaintiff's termination (cat's paw theory) or that management should have known of any improper motive for turning plaintiff in for theft. Other employees accused of theft not similarly situated; plaintiff was accused of stealing money from a client during a bar mitzvah, while other employees were accused of stealing goods from employer. Employer could reasonably deem stealing from a client more serious. Also, employer believed that plaintiff admitted to the crime, while the other incident was never resolved.

Jethroe v. Omnova Solutions, Inc., 412 F.3d 598 (5th Cir. 2005). Panel: SMITH, Garwood, Clement . Claims on Appeal : Title VII discrimination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Plaintiff judicially estopped from filing claim that was not disclosed to creditors in Chapter 13 bankruptcy. Moreover, evidence established that non-disclosure was intentional (i.e., she knew about facts giving rise to claim and she had incentive to hide claim because it allowed her to avoid paying unsecured debt). Noting circuit split on intentionality with Third Circuit.

Hockman v. Westward Communications, LLC, 407 F.3d 317 (5th Cir. 2005) . Panel: PRADO, Wiener, Little. Claims on Appeal: 1.Title VII harassment (sex). 2.Title VII retaliatory transfer. 3.Title VII constructive discharge (sex). Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. 3.Summary judgment [defendant]. Outcome on Appeal: 1.Affirmed [defendant] 2.Affirmed [defendant] 3.Affirmed [defendant]. Grounds: 1. Alleged harassment not severe or pervasive where over year and a half, plaintiff was once spanked by manager, he grabbed or brushed against her breasts and buttocks, he tried to kiss her, he asked plaintiff to come to work early, he watched her wash her hands at bathroom sink and commented on another employee's body to her. Plaintiff also failed to avail herself of corrective measures by appealing decision to next level supervisor. Employer had written policy, which plaintiff acknowledged, which directed her to Human Resources and which she failed to do. 2. Plaintiff involuntarily transferred to a more remote facility, filled with "numerous spiders and webs, hundreds of cricket corpses, dead rats, maggots, old newspapers, thick dust, bodily fluids on the desk and wall and feces and urination." suffered adverse employment action "because it was a purely lateral move." She "retained the same pay, duties, and benefits; was reimbursed for her mileage from Grand Saline to Edgewood; and although the Edgewood facility was temporarily filthy, any filth was cleaned up within a week or two of Hockman's arrival." 3. Same facts as retaliation claim, and evidence that supervisor may have been instructed to "run off" another troublesome employee not sufficient to show intolerable conditions.

Keelan v. Majesco Software, Inc., 407 F.3d 332, 95 FEP 906 (5th Cir. 2005) . Panel: DEMOSS, Reavley, Prado. Claims on Appeal: Title VII termination (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: At Indian-owned business, two plaintiffs (British and American) did not present prima facie cases of discrimination where they were unable to present evidence of employees outside of their protected groups that were treated advantageously. Desert Palace does not alter requirement under indirect pretext method of proof that employee satisfy all four elements. Occasional statements of national chauvinism by manager and CEO insufficient to present issue of fact.

Abarca v. Matropolitan Transit Authority, 404 F.3d 938, 95 FEP 762 (5th Cir. 2005) . Panel: Per Curiam (Reavley, Higginbotham, DeMoss). Claims on Appeal: Title VII discrimination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Requiring Latino plaintiff to sign reinstatement agreement (on 36-hour deadline) approved by union as condition for return to work not discriminatory, where plaintiff could not locate similarly situated individual outside of his protected group who was not required to sign agreement under similar circumstances.

Septimus v. Univ. of Houston, 399 F.3d 601, 95 FEP 129 (5th Cir. 2005). Panel: KINKEADE, Weiner, Prado. Claims on Appeal: 1.Title VII retaliatory transfer/constructive discharge. 2.Title VII promotion (sex). 3.Title VII harassment (sex). 4.Title VII retaliatory hiring. Disposition Below: 1.Judgment following a jury trial [plaintiff]. 2.Summary judgment [defendant]. 3.Summary judgment [defendant]. 4.Summary judgment [defendant]. Outcome on Appeal: 1.Vacated and remanded [defendant]. 2.Affirmed [defendant]. 3.Affirmed [defendant]. 4.Affirmed [defendant]. Grounds: 1. Although employer waived objection to jury instruction setting forth causation standard, even in plain error analysis, instruction using "motivating factor" standard instead of "but for " causation conspicuously violated circuit law, causing a miscarriage of justice to employer. 2. Plaintiff, assuming she made out prima facie case regarding failure to promote to litigation counsel position, she failed to rebut explanation that she lacked posted qualifications for job and (by manager's lights) failed to demonstrate enough initiative for job. 3. Number and mildness of events insufficient to support finding of severe or pervasive harassment. 4. Ten-month gap between complaint about harassment and adverse action precludes finding of causation.

Vines v. Univ. of Louisiana at Monroe, 398 F.3d 700, 95 FEP 144 (5th Cir. 2005) . Panel: GARZA, King, Smith. Claims on Appeal: ADEA and La. state law compensation/ failure to rehire. Disposition Below: Denial of permanent injunction against state court action [plaintiffs]. Outcome on Appeal: Reversed; injunction granted [defendants]. Grounds: Employer entitled to entry of injunctive relief to bar relitigation of age discrimination claim in state court. Employees' claims were fully litigated by EEOC in prior federal proceeding; employees were in privity with EEOC; and Louisiana state law did not provide greater rights/remedies than federal law. (EEOC took over litigation of claims in federal court after Supreme Court ended private right of action for damages in Kimel ).

Machinchick v. PB Power, 398 F.3d 345, 95 FEP 152 (5th Cir. 2005) . Panel: HIGGINBOTHAM, Smith, Benavides. Claims on Appeal: ADEA and Tex. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff was terminated under company's new "cradle-to-grave" business plan, which required business development personnel to both scout new business prospects and "shepherd those prospects through the sales process to closing and beyond." Plaintiff's newly-appointed boss thought that Machinchick would not be up to the new regime. In boss's e-mail to human resources describing Machinchick's shortcomings, claiming that Machinchick had a '[l]ow motivation to adapt' to change. Knowlton expounded upon this claim in his deposition, describing Machinchick as 'inflexible,' 'not adaptable,' and possessing a 'business-as-usual attitude.' We have found that purely indirect references to an employee's age, such as comments that an employee needed to look 'sharp' if he were going to seek a new job, and that he was unwilling and unable to 'adapt' to change, can support an inference of age discrimination. Boss also sent an e-mail to several PB Power employees discussing his intent to go forward with his plan to 'strategically hire some younger engineers and designers.'" The age stereotyping implicit in these remarks, and an e-mail from same boss about hiring "younger" engineers and designers, was sufficient to shift the burden under Price Waterhouse mixed-motive analysis, to the employer to prove that plaintiff would have been fired even in the absence of the discriminatory motive. Even where plaintiff could not produce evidence to fully rebut defendant's explanations, other evidence created genuine issue of material fact that age was a motivating factor in decision.

Johnson v. Crown Enterprises, Inc., 398 F.3d 339, 95 FEP 88 (5th Cir. 2005) . Panel: PRADO, Reavley, Benavides. Claims on Appeal: 1. Title VII race failure to hire. 2. § 1981 failure to rehire.. Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal: 1.Affirmed [defendant]. 2.Reversed [plaintiff]. Grounds: 1. While it is undisputed under enterprise test that the two entities engaging plaintiff truck driver have common ownership and are interrelated, there is no genuine issue of material fact that employing entity made labor decisions for the other entity. Because company that declined to rehire plaintiff was not an employer (or a single enterprise with an employer), no Title VII liability. 2. Because trucker was independent contractor and not employee, Title VII did not apply, but § 1981 did. Plaintiff's amendment to complaint (though filed after one-year limitations period expired on pre-formation clam) related back to original claim (Fed. R. Civ. P. 15) and thus timely.

Perez v. Texas Dep't of Criminal Justice, 395 F.3d 206, 94 FEP 1729 (5th Cir. 2004). Panel: GARZA, Smith, Vance. Claims on Appeal: Title VII race termination. Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Plaintiff fired because he was arrested on felony assault charge. Evidentiary rulings affirmed. Evidence of what employer subsequently learned about alleged employee misconduct was irrelevant under FRE401 and unduly prejudicial under FRE403, because it does not relate to what the decisionmaker knew at the time. Exclusion of Internal Affairs report on incident, meanwhile, not shown to be unduly prejudicial to employer. But jury was misinstructed that employee only had to show misconduct of "comparable seriousness," instead of being nearly identical. The instruction was prejudicial because certain aspects of the plaintiff's situation were unique and important to how the investigation shaped up (e.g. assault involved an ex-inmate and took place off-duty, suggesting an integrity issue). Case remanded for new trial; district court did not err in denying judgment as a matter of law.

Patrick v. Ridge, 394 F.3d 311, 94 FEP 1688 (5th Cir. 2004). Panel: WEINER, Reavley, Davis. Claims on Appeal: ADEA failure to promote. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Defendant failed to meet its burden of production under McDonnell Douglas and Burdine by offering, as reasons not to promote the plaintiff, that (1) he was "not sufficiently suited" to the job (too imprecise); and (2) the successful candidate was the "best qualified" (where the record showed that the employer was not apprised of the candidates' relative qualifications at the time that it made the decision). Because the defendant relied on after-acquired information as a justification for its decision, that justification could not have motivated the decision as a matter of law.

Brazoria County, Texas vs. EEOC, 391 F.3d 685, 94 FEP 1356 (5th Cir. 2004). Panel: BARKSDALE, Lynn [PICKERING, dissenting in part]. Disposition Below: Title VII retaliation. Disposition Below: Award to plaintiff ($20,500 in compensatory damages; $18,952.50 in attorney's fees; and $2759.73 in costs) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: In administrative proceeding before commission under Government Employee Rights Act, 42 U.S.C. § 2000e-16a to 16c employee alleged (among other things) that she suffered ostracism in her job and that her employer (a county and a justice of the peace) wrote a defamatory letter accusing the employee's husband of theft, all in retaliation for complaining about harassment. Employee-intervenor's cross-appeal barred jurisdictionally, because filed more than 60 days after EEOC's decision. Previous decision giving employee leave to file petition out-of-time by motion panel not binding on merits panel after full briefing on issue. On merits, the panel finds that the GERA extends liability to the full breadth of Title VII for such employees (following preexisting Fifth Circuit case law decided under a predecessor section, 2 U.S.C. §§ 1201, 1202, 1220). But court finds no liability for acts of ostracism or libel, on the ground that the such activity did not constitute an "ultimate employment action," as required under period circuit case law (Mattern v. Eastman Kodak Co. ).

Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 94 FEP 665 (5th Cir. 2004). Panel: PRADO, Jolly, Jones. Claim on Appeal: 1. Title VII, §§ 1981 and 1983 retaliation and harassment (race). 2. Title VII, §§ 1981 and 1983 promotion, discrimination (race) and retaliation.First Amendment retaliation claim (not discussed here). Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal: 1.Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Holding, in matter of first impression for circuit, that Title VII claim may be barred by res judicata if, at the time of the earlier suit, the plaintiffs have not yet received a right-to-sue letter for the second action. 2. For racial discrimination claim, plaintiffs did not meet prima facie standard because they facially did not qualify for promotion under education and length of service criteria. Assuming plaintiff met prima facie test for retaliation, reason furnished for failure to promote (plaintiffs failed to meet minimum qualifications for position) not pretextual, despite that department revised qualifications during hiring process to add test requirement (plaintiffs did not meet requirements even before test requirement was added).

Arbaugh v. Y&H Corp., 380 F.3d 219, 94 FEP 360 (5th Cir. 2004). Panel: DEMOSS, Garza, Clement. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment, vacating jury verdict for plaintiff [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Noting circuit (and intracircuit) split, court reaffirms prior decisions holding that definition of "employer" under Title VII setting minimum number of employees presents issue of subject matter jurisdiction. District court did not err in finding that delivery drivers were not "employees" (under hybrid economic realities/common law test), because drivers supplied their own vehicles, paid their own expenses, earned most of their income from tips, received a Form 1099, could work for other companies, collaborated on setting schedules. Owners themselves concededly not employees under Supreme Court's recent decision, Clackamas Gastroenterology. Owners' spouses, under same authority, were also not employees for Title VII purposes; only services they performed were occasional advertising and promotional work, and they otherwise shared in ownership of business with husbands.

Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 94 FEP 91 (5th Cir. 2004). Panel: GARZA, Barksdale, [STEWART, dissenting]. Claim on Appeal: § 1981 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: African-American plaintiff was terminated on performance grounds (specifically, client development). Plaintiff failed to establish a prima facie case that he was given less time than his white counterparts to build up his business and more guidance by management, and that at least six (of 16) of his co-workers had negative performance evaluations as well. But the record showed varying circumstances among the white co-workers, and some white employees were also terminated). Moreover, even assuming plaintiff made out prima facie case, employer's reason for its decision was not shown to be false.

Roberson v. Alltel Information Services, 373 F.3d 647, 93 FEP 1836 (5th Cir. 2004). Panel: GARZA, Barksdale, Stewart. Claim on Appeal: 1. Title VII, § 1981 and ADEA termination. 2. Title VII retaliation. Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal: 1.Affirmed [defendant]. 2.Affirmed [defendant]. Grounds: 1. HR manager testified that plaintiff's termination in RIF was based on objective criteria applied to all employees in unit. Reeves does not make all decision makers automatically "interested" witnesses, whose testimony should be disregarded on summary judgment. Employee's direct supervisor did not influence the termination decision by furnishing too few assignments to plaintiff; assignment decisions were affected by client requests, not supervisor judgment. 2. That RIF occurred after plaintiff made discrimination complaint not probative of causation, there was no evidence of pretext in reasons for listing plaintiff in RIF.

Shafer v. Army & Air Force Exchange Service, 376 F.3d 386 (5th Cir. 2004). Panel: JOLLY, Higginbotham, DeMoss. Claim on Appeal: Title VII discrimination and retaliation (sex). Disposition Below: Judgment entered on findings of special master; $1 million compensatory damages and attorney's fees [plaintiffs]. Outcome on Appeal: Reversed [defendant]. Grounds: Special master who was appointed to adjudicate contempt motion against defendant exceeded scope of referral under Fed. R. Civ. P. 53 by hearing and entering findings on subsequent retaliation and discrimination claims by same plaintiff. District court's failure to observe procedural minima of Rule 53 (such as notifying defendant that it was referring new claims to special master) and fact that new claims were not consolidated with old ones, as required under Fed. R. Civ. P. 43, was prejudicial to defense. Accordingly, district court erred in adopting special master's findings on those claims. Regarding treatment of contempt claim, special master applied wrong standard of review (preponderance of evidence, rather than clear and convincing); moreover plaintiff furnished insufficient evidence of causal link between her protected activities and reprimands. Award of $10,000 fine to plaintiff for failure to update personnel records exceeded the $1000 cap under 42 U.S.C. §2000h and was entered without procedural protections required for punitive sanctions (finding of criminal intent, proof beyond a reasonable doubt). Plaintiff lacked standing as former employee to obtain Injunctive relief to reform HR practices. Plaintiff's fee award reversed becaue she was no longer a prevailing party. See also Shafer v. AAFES, 277 F.3d 788 (5th Cir. 2002).

Rachid v. Jack In The Box, Inc., 376 F.3d 305, 93 FEP 1761 (5th Cir. 2004). Panel: CLEMENT, Higginbotham, Dennis. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: ADEA plaintiff not required to present direct evidence of discrimination to pursue mixed-motive ADEA case, in light of Desert Palace. Plaintiff presented genuine issue of material fact about whether manager who repeatedly made age-biased statements caused plaintiff to be fired for alleged work rule infraction on reporting employee overtime (that was unclear, and which plaintiff arguably did not violate). That younger managers were fired for same violation did not preclude pretext, where different managers made those decisions and other violations were more severe.

May v. Higbee Co., 372 F.3d 757, 94 FEP 44 (5th Cir. 2004). Panel: KING, Reavley, Garza. Claim on Appeal: Title VII promotion (sex). Disposition Below: Denying motion to compel arbitration [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Court had appellate jurisdiction for interlocutory appeal of order under 9 U.S.C. § 16(a)(1), because there was indisputably an agreement to arbitrate that met the requirements of 9 U.S.C. § 3, despite the employee's challenge to the validity of that agreement. On the merits, employee assented to arbitration both by signing an acknowledgment of receiving the policy and by continuing to work for employer. District court erred under Mississippi law by considering parol evidence to vary the terms of the agreement. Unconscionability defense waived on appeal.

Pegram v. Honeywell, Inc., 361 F.3d 272, 93 FEP 649, 15 A.D. Cases 523 (5th Cir. 2004). Panel: STEWART, Garwood, Jones. Claim on Appeal: 1.§1981/Tex. state law discrimination (race); 2. §1981 termination; 3. §1981 transfer; 4. ADA/Tex. state law disability discrimination. ERISA and state law actions [not discussed here]. Disposition Below: 1. Summary judgment [defendant]; 2. Summary judgment [defendant]; 3. Summary judgment [defendant]; 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]; 2. Reversed [plaintiff]; 3. Reversed [plaintiff]; 4. Affirmed [defendant]. Grounds: 1. Dismissed on timing grounds. Continuing violation theory does not rescue claims of loss of training opportunities, approval to participate in MBA program and interaction with clients; 2. District court ignored termination claim in decision; 3. Although loss of prestige because of transfer does not by itself constitute an adverse employment action, transfer that takes away a substantial benefit (here, incentive pay) is a demotion. Evidence of pretext included employer's failure to consider plaintiff's background experience selling core product, that he excelled and exceeded his quotas, and that he was replaced by white employee with far less experience; 4. No evidence that degenerative back ailment substantially limited plaintiff in any major life function, or that employer so regarded him.

Pineda v. United Parcel Service, Inc., 360 F.3d 483, 15 A.D. Cases 326 (5th Cir. 2004). Panel: GARZA, Davis, Little. Claim on Appeal: Texas state law retaliation. Disposition Below: Judgment after a jury trial; $400,000 compensatory damages [plaintiff], but remitted to $202,500. Outcome on Appeal: Reversed [defendant]. Grounds: Rehearing decision, vacating 353 F.3d 414 (5th Cir. 2003). Owing to new decision, Wal-Mart Stores, Inc. v. Canshola, 121 S.W.3d 735 (Tex. 2003), court finds that plaintiff cannot sustain retaliation claim under Texas Commission on Human Rights Act. Plaintiff presented no evidence that employer singled out plaintiff for investigation (for threats of violence) and eventual termination because he engaged in protected activity (filing charge, giving a deposition in a discrimination case).

                                                                                                   

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Hatmaker v. Memorial Medical Center, No. 09-3002 (7th Cir. Aug. 30, 2010)

August 30, 2010
Watson v. CEVA Logistics U.S., Inc., No. 09-3322 (8th Cir. Aug. 30, 2010); Sheriff v. Midwest Health Partners, No. 09-3367 (8th Cir. Aug. 30, 2010)

August 27, 2010
EEOC v. UPS Supply Chain Solutions, No. 08-56874 (9th Cir. Aug. 27, 2010); Lewallen v. City of Beaumont, No. 09-40826 (5th Cir. Aug. 23, 2010)

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