

proposed Rule 23(b)(2) class:
◦ all Wal-Mart female employees since 1998
SCOTUS: certification was improper
◦ claims weren’t capable of class-wide resolution
◦ millions of employment decisions at issue
◦ monetary relief
M
Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541; 2011 U.S. LEXIS 4567 (2011).

U.S. Supreme Court unanimously rejected a
constitutional challenge to the collection of certain
background information by the U.S. government as part
of the process of credentialing federal contractors.
 Background check included: (1) Drug use, etc. (2)
release for inquiries in to “honesty and
trustworthiness”
 Reasonable questions for vetting workers
H
NASA v. Nelson,
131 S. Ct. 746, 178 L. Ed. 2d 667 (2011).

Employee filed sex discrimination charge
 Employer fired employee’s fiancé
 Employer violated Title VII—even though the
fiancé was not an employee of the employer
M
Thompson v. N. Am. Stainless, LP,
131 S. Ct. 863; 2011 U.S. LEXIS 913 (2011).

State cannot declare an arbitration agreement covered by
the FAA violates public policy because it disallows classwide proceedings. (5-4, Scalia)
◦ FAA's overarching purpose = ensure enforcement of
arbitration agreements according to their terms so as to
facilitate informal, streamlined proceedings.
H
AT&T Mobility LLC v.
Concepcion,
131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011).

M
Employee made oral complaint re: placement of time
clocks
◦ oral complaint was sufficient to invoke FLSA
Kasten v. Saint-Gobain
Performance Plastics Corp.,
131 S. Ct. 1325; 2011 U.S. LEXIS 2417 (2011).

65 year old auto salesperson produced evidence that his
manager, half a dozen times daily for eight weeks, called
him names like "old mother******," "old man," and
"pops.“
◦ In addition to evidence of physically threatening or humiliating conduct,
and constructive discharge.

H
5th Circuit concluded that the pervasiveness of these
alleged comments created a genuine issue of material
fact concerning an ADEA hostile work environment claim.
Dediol v. Best Chevrolet, Inc.
10-30767, 2011 WL 4011079 (5th Cir. Sept. 12, 2011).

Plaintiff sued for state and federal claims, but later admitted
the federal claims weren’t valid
◦ Defendant asked federal court to award attorneys’ fees
because the suit was (1) a civil rights matter and (2)
frivolous
◦ Defendant could recover only the portion of fees paid to
defend the frivolous claim—not the entire lawsuit
M
Fox v. Vice,
131 S. Ct. 2205; 2011 U.S. LEXIS 4182 (2011).

EE’s file discrimination charge with OFCCP instead of
EEOC.
◦ OFCCP has multiple communications with EE’s
◦ After 300-days, OFCCP forwards file to EEOC who issues a right to sue
letter

5th Circuit: “equitable tolling is available where a plaintiff
has actively pursued judicial remedies but filed a
defective pleading, as long as the plaintiff has exercised
due diligence.” Perez v. United States, 167 F.3d 913, 918 (5th Cir. 1999)
◦ Focus on: (1) efforts taken by counsel to move filing forward; (2) lack of
timely notice from OFCCP that charges were misfiled; (3) the government’s
“egregious and exceptional” delay
H
Granger v. Aaron's, Inc.,
636 F.3d 708 (5th Cir. 2011).


Police chief sued for retaliation under Petition Clause
SCOTUS: employee’s petition must relate to matter of
public concern
◦ if matter of public concern, balancing test is applied
M
Borough of Duryea, Pa. v. Guarnieri,
131 S. Ct. 2488; 2011 U.S. LEXIS 4564 (2011).


Several members of the United States Armed Forces
Reserves and Air National Guard file class action.
5th Circuit: USERRA does not provide for a hostile work
environment claim based on the plain text of USERRA,
its legislative history, and its policies.
◦ Does not contain the "conditions" language of Title VII
◦ Military not historically disadvantaged
H
Carder v. Cont'l Airlines,
Inc., 636 F.3d 172 (5th Cir. 2011).

Employee faced hostility at work for his obligations as a
member of US Army Reserves
◦ Supervisor’s specific intent to cause termination was
sufficient
 even though they did not actually terminate employee
M
Staub v. Proctor Hosp.,
131 S. Ct. 1186; 2011 U.S. LEXIS 1900 (2011).

Upon termination, Martin signed a general release in
exchange for a severance package.

Martin then sued employer under FLSA for failure to pay
overtime wages.

5th Circuit: Money paid to Martin in severance package was
for a release of claims, and not related to her labors at all
 Pepsi is not entitled to a set-off against a potential award from an FLSA
cause of action
H
Martin v. PepsiAmericas, Inc.,
628 F.3d 738 (5th Cir. 2010).

Arizona law: sanctions for employing unauthorized aliens

IRCA’s preemption clause did not invalidate Arizona’s law
◦ why? because it only imposed licensing conditions on
businesses operating within Arizona
M
Chamber of Commerce of the
United States v. Whiting,
131 S. Ct. 1968; 2011 U.S. LEXIS 4018 (2011).


Three days after the City of Dallas was served with
Magiera’s Title VII complaint, she was removed from her
duties as a field training officer (“FTO”).
Other evidence: Fact question regarding LNDR for
removal of duties
Magiera v. City of Dallas,
389 Fed. Appx. 433 (5th Cir. 2010)
H

Former attorney failed to rebut non-discriminatory
bases for termination:
1)
2)
3)
4)
DA’s Office’s new image
DA Watkins’s distrust of Plaintiff;
DA Watkins’s negative experiences with Plaintiff;
DA Watkins’s belief of Plaintiff’s poor reputation
M
Jackson v. Watkins,
619 F.3d 463 (5th Cir. 2010).

Employee terminated a month after returning to work,
while cancer is in remission.
◦ Remission = hard to prove illness affecting major life activity

Judge rejects ER’s SJ argument that EE lacks a disability
and grants partial summary judgment to Plaintiff
◦ Expands "major life activity" to include "major bodily functions,"
i.e. cell growth
H
Norton v. Assisted Living
Concepts, Inc.,
79 Fed. R. Serv. 3d 776 (E.D. Tex. 2011).


M
Compensatory damages limit:
◦ $200k for all claims in a Title VII case
Back pay for sales commission limit:
◦ depends on quota theory presented
◦ presenting only Disparate Impact Theory limited plaintiff
to one potential calculation for back pay1
Black v. Pan Am. Labs., LLC,
No. 09-51092, 2011 U.S. App. LEXIS 14167 (5th Cir. 2011).

While working as police officers, also worked as security
officers at two facilities owned by the city
◦ city failed to pay them overtime compensation

Court: Off-duty work performed by the officers was
“solely at (the officer's) option” within meaning of FLSA
“special detail” exemption to FLSA overtime requirement
◦ Contractual requirement that licensees use off-duty officers as security at
facilities did not defeat that exemption
◦ Sixth reported case involving special detail exemption
H
Clark v. City of Ft. Worth,
4:10-CV-519-A, 2011 WL 3268110 (N.D. Tex. July 29, 2011)

M
Court denied Enterprise’s MSJ because:
◦ (1) temporal proximity (four months time lapse)
◦ (2) Plaintiff never previously disciplined;
◦ (3) Enterprise’s kept diary of the Plaintiff’s correspondence
with Enterprise; and
◦ (4) Enterprise vacillated on whether and in what capacity the
Plaintiff should work during her FMLA leave
Hornak v. Enter. Prods. Co., Inc.,
No. H-09-3902, 2010 U.S. Dist. LEXIS 91320 (S.D. Tex. Sept.
2, 2010) (mem. op.).

Supreme Court will decide whether union's assessment
for political expenses must be preceded by Hudson
notice.
◦ Knox v. California State Employees Ass'n, Local 1000, Serv. Employees Int'l Union,
AFL-CIO-CLC, 628 F.3d 1115 (9th Cir. 2010) cert. granted, 131 S. Ct. 3061 (U.S.
2011)(No. 08-16645).

Supreme Court will decide whether FMLA's self-care leave
provision abrogated states' 11th amendment immunity.
◦ Coleman v. Maryland Court of Appeals, 626 F.3d 187 (4th Cir. 2010) cert. granted,
131 S. Ct. 3059 (U.S. 2011)(No. 10-1016).

H
SC will decide whether “ministerial exception” applies to
teacher at a religious elementary school.
◦ E.E.O.C. v. Hosanna-Tabor Evangelical Lutheran Church & Sch., 597 F.3d 769 (6th
Cir. 2010) cert. granted, 131 S. Ct. 1783, 179 L. Ed. 2d 653 (U.S. 2011)(No. 10553).

Company offered options to purchase 500 shares of stock
◦ Employee signed a non-solicitation agreement
◦ stock options were sufficient consideration
 made the employee an “owner” of the company and
 linked his interests with the company’s long-term
business interests
M
Marsh USA, Inc. v. Cook,
54 Tex. Sup. J. 1234, 2011 Tex. LEXIS 465
(Tex. 2011).

Court ultimately held that a waiver of governmental
immunity must be clear and unambiguous.
◦ Chapter 504 as an amendment to the TWCA:“nothing in
this chapter waives sovereign immunity or creates a new
cause of action”
Travis Central Appraisal
District v. Norman,
342 S.W.3d 54 (Tex. 2011).
H


M
Employee: employer could revise employee manual
◦ Thus, the arbitration agreement in contract was illusory
Court: contract stood alone—didn’t incorporate manual
◦ Thus, the arbitration agreement was enforceable
In re 24R, Inc.,
324 S.W.3d 564 (Tex. 2010).

Two months after resigning from Caye Publishing
(Johnson County), Cobb began publishing and
distributing a magazine in two cities in nearby Parker
County.

Lower court enjoins Cobb from distribution in Johnson
and Parker County

Appeals Court: Restriction to only Johnson County
◦ (1) no geographical limit therefore overbroad and unenforceable;
◦ (2) Caye had not sold any advertising in Parker County, cultivated any customer
goodwill, or taken any action to start a publication in this area.
H
Cobb v. Caye Publ'g Group, Inc.,
322 S.W.3d 780 (Tex. App.—Fort Worth 2010, no pet.).

Judicial review of arbitration award was proper because:
◦ TAA allows expanded judicial review,
◦ Texas policy supports freedom of contract,
◦ contract limited arbitrator’s decision-making authority,
◦ the arbitration’s transcript was recorded, and
◦ objections were preserved.
Nafta Traders, Inc. v. Quinn,
M
339 S.W.3d 84 (Tex. 2011).

Plaintiffs all former Administrative Law Judges
◦ claim of wrongful termination in retaliation for their opposition to “illegal
crony favoritism,” and “illegal practices in the operation of state agencies
tasked with the administration of judicial and quasi-judicial functions.”

Court of Appeals: Sabine Pilot is a judge made exception
to the at-will employment rule and was created in a case
dealing with a private employer.
◦ NO waiver of State’s immunity
H
Tex. State Office of
Admin. Hearings v. Birch,
2010 WL 5141647 (Tex. App.—San Antonio 2010,
no pet.).

Defendant-employee’s MSJ:
◦ Partially granted for employer’s fraud claim
 Employee was at-will, thus employers couldn’t
justifiably rely on promises of future employment
M
PAS, Inc. v. Engel,
No. 14-10-00513-CV, 2011 Tex. App. LEXIS 4851 (Tex.
App.—Houston [14th Dist.] June 28, 2011, no pet.).

Charged filed within180 days of Plaintiff receiving her
last paycheck
◦ Lilly Ledbetter Fair Pay Act -- discrimination takes place with each
successive pay check.

Charge not filed within 180 days of when discriminatory
pay practice being put into effect began.

Fort Worth Court of Appeals: statute silent, legislature
can amend and has in the past
 Decision has been appealed to the Texas supreme Court and conflicts with
Prairie View A & M Univ. v. Chatha, 317 S.W.3d 402 (Tex. App. 2010), review
granted (Feb. 25, 2011); See Pending Cases Section.
H
Tarrant Regional Water Dist. v.
Villanueva, 331 S.W.3d 125 (Tex. App.—Fort Worth
2010, pet. filed).

M
Appellate court reduced compensatory damages from
$300k to $50k
◦ per TCHRA’s “damages cap”
 cap must be invoked by the state agency
 cap amount is based on that agency’s number of
employees
Tex. Comm’n on Human Rights v.
Morrison, No. 03-09-00726-CV, 2011 Tex. App. LEXIS 5159
(Tex. App.—Austin July 8, 2011, no pet.).



Plaintiff’s lawyer advised client to not answer questions
regarding her SSN at deposition.
Protective Order put in place by Trial Judge
Fourth Court of Appeals in San Antonio: Without
authenticity of SSN, Defendant is “unable to determine
her true identity or to properly investigate her
background to determine whether she made similar
claims or whether she has a criminal history.”
 Questions pertaining to alienage and citizenship off limits.
H
In re K.L. & J. Ltd. P’ship,
336 S.W.3d 286 (Tex. App.—San
Antonio 2010, no pet.).


M
At-will employee left work early (at 5:15pm) to vote
She was fired two days later
 no law prohibits an employer from firing an at-will
employee for leaving work to vote
Martin v. Clinical Pathology
Labs., Inc.,
343 S.W.3d 885 (Tex. App.—Dallas 2011, no pet.).

Parties acted as if they were meeting for the first time
when being introduced at the arbitration.

JAMS arbitrator and a former US Magistrate failed to
disclose he had close ties to lawyer in case:
 (1) Attending a Dallas Mavericks game the prior year. Lawyer paying
some $1,200 for the tickets
 (2) Eating dinner at an expensive restaurant. Lawyer picking up tab of
$428
 (3) Lawyer sending a $75 basket of wine to the family
H
Karlseng v. Cooke, 05-09-01002-CV, 2011 WL
2536504 (Tex. App.—Dallas June 28, 2011, no
pet.), reh'g overruled (Sept. 9, 2011).

M
Award reversed—employee takes nothing
◦ Employee violated manufacturing procedure
 potentially expensive and dangerous consequences
 consistent termination reasons
 no examples of others receiving less harsh
punishment
 nondiscriminatory bases for firing others
Baker Hughes Oilfield Operations, Inc.
v. Williams, No. 01-08-00762-CV, 2011 Tex. App. LEXIS 1845
(Tex. App.—Houston [1st Dist.] Mar. 10, 2011, pet. filed).


Disclosed: At the beginning of the arbitration, Arbitrator
said he had "come across" the lawyer and representative
before.
Not Disclosed: Arbitrator had presided over an arbitration
three years before with the same employer, the same
employer's representative and the same employer's
attorney.
 Could not even disclose how many arbitrations he had done with
Defendant in the past

Better system for checking potential issues?
H
Alim v. KBR - Halliburton,
331 S.W.3d 178 (Tex. App.—Dallas 2011, no pet.).

Athletic director (AD) reported violation of the University
Interscholastic League’s (UIL) parent-residency requirements
◦ Court: UIL is not a “law”
 not adopted by the legislature
 not adopted by the Commissioner of Education
 Thus, the AD failed to invoke the Whistleblower Act
M
Galveston Indep. Sch. Dist.
v. Jaco, 331 S.W.3d 182 (Tex. App.—Houston
[14th Dist.] 2011, pet. denied).

Jury finds Plaintiff was retaliated against because of her
complaints about patient care and safety

Defendant appeals, ALFLA provides no cause of action

H
Appeals Court: Interpretting the ALFLA to expressly
prohibit retaliation but not provide a remedy for
retaliation would lead to an absurd result and render the
retaliation provisions meaningless.
Emeritus Corp. v. Blanco,
2011 WL 2637474 (Tex. App.—El Paso 2011, no pet.).


M
Violation of public college’s policy is a violation of law
Whistleblowers must report to people with enforcement
power
◦ college’s CFO’s had enforcement power
Univ. of Houston v. Barth, No. 01-0600490-CV, 2011 Tex. App. LEXIS 6866 (Tex. App.—Houston
[1st Dist.] Aug. 25, 2011, no pet. h.).


H
Supreme Court agreed to consider whether the statute of
limitations for a government employee’s complaint about
discriminatory pay begins from the date of the last
paycheck reflecting the decision or the (earlier) date on
which the employee was informed of the decision.
Prairie View A & M Univ., 317 S.W.3d 402 (Tex. App.—Houston [1st Dist.]
2011, pet. granted) (No. 10-353).
Hal K. Gillespie
Gillespie, Rozen & Watsky P.C.
hkg@grwlawfirm.com
Mark A. Shank
Gruber Hurst Johansen Hail Shank LLP
mshank@ghjhlaw.com