WWYD If You Were the
Judge?
Case Law Update Trivia Game

Facts:
◦ Plaintiff Maetta Vance argued that Saundra Davis, a
catering specialist, had made Vance’s life at work
contentious through physical acts and racial
harassment.
◦ Vance sued her employer for workplace harassment by a
supervisor.
◦ Vance asserted that Davis was a supervisor although
Ball State claimed Davis was not actually Vance’s
supervisor.
◦ Davis had periodic authority to direct the work of other
employees, but did not have authority to hire, fire,
demote, promote, transfer, or discipline.
Vance v. Ball State University
570 U. S. ____ 2013, June 24, 2013

Question posed: For purposes of employer
liability in employment discrimination case, who
is a supervisor?
◦ A: A supervisor is someone who directs or oversees the
daily work of the harassed employee.
◦ B: A supervisor is someone who has the power to hire,
fire, promote, transfer or discipline the harassed
employee.
◦ C: Both A and B.
Vance v. Ball State University
570 U. S. ____ 2013, June 24, 2013

Answer: Ding, ding, ding--
◦ B: A supervisor is someone who has the power to hire,
fire, promote, transfer or discipline the harassed
employee.
The U.S. Supreme Court held that an employee is a
“supervisor” for purposes of vicarious liability under
Title VII of the Civil Rights Act only if he/she is
empowered by the employer to take tangible
employment actions against the victim.
Vance v. Ball State University
570 U. S. ____ 2013, June 24, 2013

Facts
◦ The employee found out her father was in the hospital.
◦ She sent a text message to her supervisor stating she would
not be able to be on call that night because her father was in
the emergency room.
◦ The employee claimed that her text message was a request
for FMLA leave to take care of her father who had suffered a
heart attack.
◦ The employee resigned and later filed interference and
retaliation claims under the FMLA.
Lanier v. Univ. of Tex. Southwestern Med. Ctr.,
2013 U.S. App. LEXIS 11836 (5th Cir. Tex. June 12, 2013)

Question Posed: Whether the employee’s text
message gave proper notice of her intention to
take FMLA leave?
◦ A: The text message contained insufficient information
to notify the employer she was requesting FMLA leave
◦ B: The text message was sufficient to put the employer
on notice because it mentioned a sick family member
◦ C: The text message was insufficient, but triggered a
duty by the employer to inquire if that what the
employee meant.
Lanier v. Univ. of Tex. Southwestern Med. Ctr.,
2013 U.S. App. LEXIS 11836 (5th Cir. Tex. June 12, 2013)

Answer:
◦ A. The text message did not state enough information to
alert an employer that a leave request was made under
the FMLA
◦ An employer may have a duty to inquire further if
statements made by the employee warrant it, but "the
employer is not required to be clairvoyant.“
◦ These statements did not warrant it because she had
only asked to be let off for one day.
Lanier v. Univ. of Tex. Southwestern Med. Ctr.,
2013 U.S. App. LEXIS 11836 (5th Cir. Tex. June 12, 2013)

Facts:
◦ Plaintiff Nassar was employed by UTSMC as a doctor. Plaintiff
is of Middle Eastern descent.
◦ Nassar’s boss’s boss, Levine, stated on multiple occasions that
“middle easterners are lazy” and would scrutinize Nassar’s
billing practices more closely than other doctors.
◦ Nassar was unable to obtain a promotion due to active
undermining by Levine.
◦ Affiliated clinic offered Nassar a position, but the offer was
rescinded after Nassar cited harassment in his resignation
letter.
◦ Nassar sued for constructive discharge and retaliation.
Univ. of Tex. Southwestern Med. Ctr v. Nassar
570 U. S. ____ (2013)

Question Posed: What burden of proof does a
plaintiff have in a Title VII retaliation claim?
◦ A. Retaliation was one of the reasons for the adverse
employment action. Also known as mixed motive.
◦ B. Retaliation was the only reason for the adverse
employment action. Also known as “but for” causation.
◦ C. Either A or B will do.
Univ. of Tex. Southwestern Med. Ctr
v. Nassar 570 U. S. ____ (2013)

Answer: Ding, ding, ding-◦ B: For Retaliation claims under Title VII, a plaintiff must
show that retaliation was the only reason for the
adverse employment action. “But for” causation (i.e.,
that an employer would not have taken the retaliatory
employment action “but for” the plaintiff’s engaging in
protected conduct).
◦ This is a higher burden than mixed motive.
Univ. of Tex. Southwestern Med. Ctr v. Nassar
570 U. S. ____ (2013)

Facts
◦ Four employees were grips—lighting and rigging technicians in the
filmmaking and video production industries—for Spring Break ‘86, a
movie coming out soon.
◦ The employees were members of the International Alliance of
Theatrical Stage Employees
◦ Toward the end of production, a number of union members, including
these four employees, filed a grievance against Spring Break Louisiana
alleging that they had not been paid wages for work they performed.
◦ The Union and Spring Break entered into a Settlement Agreement
pertaining to the disputed hours allegedly worked by the employees,
but the agreement was not signed by these four employees.
Martin v. Spring Break '83 Prods., LLC,
688 F.3d 247 (5th Cir. 2012)

Question Posed: Did the Union’s Settlement Agreement with the
movie bind these four employees and prohibit them from suing
for their individual wage & hour claims?
◦ A: No. The Settlement Agreement is unenforceable because
they never signed it or agreed to it—instead, the Settlement
Agreement was signed by Union representatives.
◦ B: No. Individuals may not privately settle and release FLSA
claims without court or DOL approval.
◦ C: Yes. Individuals may privately settle FLSA claims without
court or DOL approval when the dispute is not over
substantive FLSA rights, but merely settlement of a disputed
liability.
Martin v. Spring Break '83 Prods., LLC,
688 F.3d 247 (5th Cir. 2012)
Answer: C: Yes. Individuals may privately settle FLSA claims without
court or DOL approval when the dispute is not over substantive FLSA
rights, but merely settlement of a disputed liability.
-The Settlement Agreement was a way to resolve a bona fide dispute as to
the number of hours worked—not the rate at which Appellants would be
paid for those hours.
-Settlements that give employees "everything to which they are entitled
under the FLSA at the time the agreement is reached“ are enforceable
without DOL or court approval there is “little danger of employees being
disadvantaged by unequal bargaining power.”
-The Supreme Court denied certiorari without comment, which for practical
purposes, approves of the Fifth Circuit’s decision and reasoning.
Martin v. Spring Break '83 Prods., LLC,
688 F.3d 247 (5th Cir. 2012)
 Facts:
◦ The employee had regularly kept in touch while she was
absent on maternity.
◦ When she called to say she had been released to return
to work, and again mentioned she was lactating and
asked if she could use a back room to pump milk, there
was a long pause after which she was told her job had
been filled.
◦ A later termination letter stated she was discharged due
to job abandonment, effective 3 days before the phone
call.
EEOC v. Houston Funding II, Ltd.,
717 F.3d 425 (5th Cir. Tex. 2013)

Question Posed: Is discharging a female employee because
she is lactating or expressing breast milk constitutes sex
discrimination in violation of Title VII?
◦ A: No. Discrimination because of pregnancy, childbirth, or a related
medical condition is illegal, but lactation is not pregnancy,
childbirth, or a related medical condition.
◦ B. Yes. Lactation is a related medical condition of pregnancy for
purposes of the Pregnancy Discrimination Act of Title VII.
◦ C. Yes, but the PDA does not mandate special accommodations to
women because of pregnancy or related conditions, and therefore,
the employer is not required to provide a special accommodation to
the plaintiff to let her pump at work.
EEOC v. Houston Funding II, Ltd.,
717 F.3d 425 (5th Cir. Tex. 2013)
• Answer: B. Yes. Lactation is a related medical condition of
pregnancy for purposes of the Pregnancy Discrimination
Act of Title VII.
◦ The PDA provides that "[t]he terms 'because of sex' or 'on the basis of
sex' include, but are not limited to, because of or on the basis of
pregnancy, childbirth, or related medical conditions[.]“
◦ While, “The PDA does not define the statutory term "medical
condition" ("pregnancy, childbirth, or related medical conditions"),
“lactation is a related medical condition of pregnancy for purposes of
the PDA” – OBVIOUSLY.
EEOC v. Houston Funding II, Ltd.,
717 F.3d 425 (5th Cir. Tex. 2013)
Facts:
 In November of 2009, B.J. Roberts, defendant, the sheriff of
Hampton, Virginia, ran for re-election.
 A group of workers in Roberts' office, among them the
plaintiff, weren't enthused about the prospects of their
boss's continuation in his role. So they took to their
Facebook accounts to protest the run: They “Liked” the
campaign of Roberts's opponent, Jim Adams.
 Despite the “likes”, Roberts won the election.
 Defendant then fired Bland and the other employees.

Bland v. Roberts,
2013 U.S. App. LEXIS 19268 (4th Cir. Va. Sept. 18, 2013)

Question Posed: Whether the Plaintiff was
terminated in violation of his 1st Amendment
rights to freedom of speech?
◦ A: Yes. “Liking” something on facebook is the equivalent of
putting a campaign sign in your yard.
◦ B: No. “Liking” something on facebook is not an actual
statement, and insufficient speech to be protected by the 1st
Amendment.
◦ C: Maybe. It depends on whether the employee is “liking” a
“viewpoint” or whether the employee is “liking” his friend’s
most current status: “eating some food.”
Bland v. Roberts,
2013 U.S. App. LEXIS 19268 (4th Cir. Va. Sept. 18, 2013)
• Answer: C. It depends... Just kidding.
• A. Yes. “Liking” something on facebook is the
equivalent of putting a campaign sign in your yard.
 It is well established that an employee can speak
as a private citizen in his workplace, even if the
content of the speech is related to the speaker's
job.
 Political speech is central to the meaning and
purpose of the First Amendment.
Bland v. Roberts,
2013 U.S. App. LEXIS 19268 (4th Cir. Va. Sept. 18, 2013)

Facts
◦ Feist, an attorney with Lousianna DOJ, requested an
accommodation which consisted of a request for free on-site
parking due to osteoarthritis of the knee.
◦ Feist claimed that her employer had failed to reasonably
accommodate her disability because it refused to provide her
with a free on-site parking space.
◦ The district court granted summary judgment in the
employer's favor because Feist failed to explain how the
denial of on-site parking limited her ability to perform the
essential functions of her job as a lawyer.
◦ Feist could not explain how the request assisted her in the
performance of her essential functions.
Feist v. State of Louisiana,
No. 12-31065 (5th Cir. Sept. 17, 2013)

Question Posed: What is the employer’s obligation
in providing a reasonable accommodation?
◦ A. An employer must do more and provide an
accommodation that allows an employee to enjoy all
privileges and benefits of employment as enjoyed by
similarly situated employees without a disability.
◦ B. An employer is obligated to provide only an
accommodation designed to help the employee perform
the essential functions of the job.
◦ C. Neither A or B. An employer should never provide an
accommodation.
Feist v. State of Louisiana,
No. 12-31065 (5th Cir. Sept. 17, 2013)

Answer: Ding, ding, ding--
◦ A. An employer must do more and provide an accommodation
that allows an employee to enjoy all privileges and benefits of
employment as enjoyed by similarly situated employees
without a disability.
◦ The court held: Reasonable accommodations “need not
relate to the performance of essential job functions.”
◦ To support its view, the court focused on a regulation
discussing accommodations that allow an employee with a
disability “to enjoy equal benefits and privileges of
employment as are enjoyed by its other similarly situated
employees without disabilities.”
Feist v. State of Louisiana,
No. 12-31065 (5th Cir. Sept. 17, 2013)

Facts
◦ Round Rock Fire Chief Larry Hodge denied a fire fighter’s,
Jaime Rodriguez, request for representation by the Round
Rock Fire Fighters Association (the "Association") at an
internal investigatory interview in which Rodriguez was
being questioned concerning a complaint against him.
◦ Rodriguez and the Association alleged that denying
Rodriguez's request for Association representation and
continuing with the interview violated Rodriguez's rights
under section 101.001 of the labor code.
City of Round Rock v. Rodriguez
399 S.W. 3d 130 (Tex. 2013)

Question Posed: Whether the Texas Labor Code provides municipal
employees represented by a labor organization with rights equivalent
to so-called "Weingarten rights"--a private employee's right, upon
request, to representation by a labor organization during an internal
investigatory interview when the employee reasonably believes the
interview may result in disciplinary action.
◦ A: YES. The Texas Labor Code can be interpreted to confer a right
upon an employee covered by the National Labor Relations Act who
reasonably fears discipline may result from an investigatory
interview to union representation at that interview, upon his
request.
◦ B. NO. The Texas Labor Code confers only one explicit right: the
right to organize into a trade union or other organization. The
Texas Labor Code does not encompass every right provided by the
NLRA.
City of Round Rock v. Rodriguez
399 S.W. 3d 130 (Tex. 2013)
Answer:
B. NO. The Texas Labor Code confers only one explicit
right: the right to organize into a trade union or other
organization. The Texas Labor Code does not encompass
every right provided by the NLRA.
- The Texas Supreme Court could not find a
representation of a right in the Texas Labor Code
without similar “concerted activities” language.
- The Texas legislature did not enact legislature to confer
the same rights as the NLRA on Texas public-sector
employees during investigatory interviews.
City of Round Rock v. Rodriguez
399 S.W. 3d 130 (Tex. 2013)

Question posed: Does an employer have a duty
under Title VII or ADA/ADAAA to employees that
are experiencing domestic violence, sexual
assault, or stalking?
◦ A. Heck no! Those are not protected categories
◦ B. Yes.
Other Recent Developments

Answer: Ding, ding, ding--
◦ According to the EEOC the answer is B. Yes because Title VII
prohibits disparate treatment based on sex, which may
include treatment based on sex-based stereotypes. For
example:
 An employer terminates an employee after learning she has been
subjected to domestic violence, saying he fears the potential
"drama battered women bring to the workplace.“
 Choosing not to hire a male applicant because he obtained a
restraining order against his domestic partner.
 Granting leave to male employee so he can testify in an assault
trial, but denying leave to a female employee to prevent her from
testifying in domestic violence case.

But that’s not it. The EEOC stated that the ADA prohibits different
treatment or harassment at work based on an actual or perceived
impairment, which could include impairments resulting from
domestic or dating violence, sexual assault or stalking. For example:
◦ An employer searches an applicant's name online and learns that
she was a complaining witness in a rape prosecution and received
counseling for depression. The employer decides not to hire her
based on a concern that she may require future time off for
continuing symptoms or further treatment of depression.
◦ An employee has facial scarring from skin grafts, which were
necessary after she was badly burned in an attack by a former
domestic partner. When she returns to work after a lengthy
hospitalization, co-workers subject her to frequent abusive
comments about the skin graft scars, and her manager fails to take
any action to stop the harassment.
And the winner is…..