Federal courts in Texas have been busy this year, issuing many significant decisions impacting employment litigation that employees should be cognizant of, as many of these decisions are precedent-setting and impact an employee’s ability to establish a prima facie case.
Filing a charge with the EEOC
The EEOC provides an intake form that assists employees in determining coverage of their claims. The Fifth Circuit made clear it will not consider these intake forms as an employee's formal charge against his or her employer.
In Ernst v. Methodist Hospital System, 2021 U.S. App. LEXIS 17015 (5th Cir. 2021) (unpublished), an employee’s EEOC intake questionnaire did not satisfy Title VII’s charge-filing requirements because it was not verified as required by EEOC regulations and the employer was not provided with notice of the questionnaire or the claims therein. This is an important distinction employees should be aware of when pursuing an EEOC claim against an employer, as failing to timely file an EEOC charge may bar an employee's ability to pursue litigation.
In Ernst v. Methodist Hospital System, 2021 U.S. App. LEXIS 17015 (5th Cir. 2021) (unpublished), an employee’s EEOC intake questionnaire did not satisfy Title VII’s charge-filing requirements because it was not verified as required by EEOC regulations and the employer was not provided with notice of the questionnaire or the claims therein. This is an important distinction employees should be aware of when pursuing an EEOC claim against an employer, as failing to timely file an EEOC charge may bar an employee's ability to pursue litigation.
Required proof for age discrimination
One element of an age discrimination claim is that the plaintiff must show he or she was replaced by a substantially younger employee. Many courts require that the replacement is not themselves within the protected group of employees 40 years or older.
The court in Fenley v. Texas Plumbing Supply Company, Inc., No. 14-19-00851, 2021 WL 1881273 (Tex. App.—Houston [14th Dist.] May 11, 2021) (mem. op.), held direct evidence can support a prima facie showing of age discrimination even where the plaintiff is replaced by someone 40 or older.
The court further ruled on another important conflict among courts reviewing age discrimination claims--whether the "same actor inference" absolutely precludes the possibility of bias. Many courts also apply the “same actor inference” to find that if the person wo hired the plaintiff is the same person who fired the plaintiff, a factfinder should infer that person was not biased. The court held that the same actor inference can be overcome by direct evidence of bias. In this case, there was direct evidence that a supervisor told the 70-year-old plaintiff “you are too old for this job.”
The court in Fenley v. Texas Plumbing Supply Company, Inc., No. 14-19-00851, 2021 WL 1881273 (Tex. App.—Houston [14th Dist.] May 11, 2021) (mem. op.), held direct evidence can support a prima facie showing of age discrimination even where the plaintiff is replaced by someone 40 or older.
The court further ruled on another important conflict among courts reviewing age discrimination claims--whether the "same actor inference" absolutely precludes the possibility of bias. Many courts also apply the “same actor inference” to find that if the person wo hired the plaintiff is the same person who fired the plaintiff, a factfinder should infer that person was not biased. The court held that the same actor inference can be overcome by direct evidence of bias. In this case, there was direct evidence that a supervisor told the 70-year-old plaintiff “you are too old for this job.”
Single event of sexual harassment
To be actionable, sexual harassment must be "sufficiently severe or pervasive" to alter the terms and conditions of the victim's employment. The plaintiff in Rivas v. Estech Systems, Inc., No. 06-20-00058-CV, 2021 WL 2231262 (Tex. App.—Texarkana June 3, 2021) (mem. op.) sued her employer for sexual harassment after finding her supervisor had placed a camera under her desk aimed at her seat.
The court held that the plaintiff could establish “severe or pervasive” harassment despite her being unaware of the camera for several months and despite the employer immediately removing it and firing the supervisor upon discovering the camera. Thus, a single event alone can be severe or pervasive.
The court further held that an employer must prove both elements of the Ellerth affirmative defense, which requires the employer show: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
The court held that the plaintiff could establish “severe or pervasive” harassment despite her being unaware of the camera for several months and despite the employer immediately removing it and firing the supervisor upon discovering the camera. Thus, a single event alone can be severe or pervasive.
The court further held that an employer must prove both elements of the Ellerth affirmative defense, which requires the employer show: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Employee's electronic signature
The Texas Supreme Court in Aerotek, Inc. v. Boyd, __ S.W.3d __, 2021 WL 2172538 (Tex. May 28, 2021), made it easier for employers to establish assent to employee documents and agreements by an employee’s electronic signature.
The court relied upon a provision of the Texas Uniform Electronics Transactions Act that provides “[a]n electronic record or electronic signature is attributable to a person [by] showing. . .the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.”
Standing alone, the plaintiff employees’ sworn denials that the electronic signatures at issue here with respect to an arbitration agreement was insufficient to create an issue of fact.
The court relied upon a provision of the Texas Uniform Electronics Transactions Act that provides “[a]n electronic record or electronic signature is attributable to a person [by] showing. . .the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.”
Standing alone, the plaintiff employees’ sworn denials that the electronic signatures at issue here with respect to an arbitration agreement was insufficient to create an issue of fact.
Diabetes not a "per se" disability
In a disappointing blow to disability discrimination plaintiffs, the court in Dillard v. SNC-Lavalin Engineers & Constructors Inc., __ S.W.3 __, 2021 WL 2149219 (Tex. App.—Houston [1st Dist.] 2021, held that a plaintiff’s allegation that he had diabetes and took medication for diabetes, standing alone, did not create an issue of fact whether he was disabled because he failed to show the diabetes caused him to be “substantially limited.”
Despite the ADA requiring that the substantial limitation requirement shall be construed broadly in favor of expansive coverage and diabetes being virtually always found to impose a substantial limitation under federal regulations, the court held a determination of whether an impairment is substantially limiting still requires an individualized assessment.
Thus, a plaintiff must also show that diabetes substantially limits the plaintiff’s endocrine function or another major life activity. Diabetes is not a “per se” disability.
Despite the ADA requiring that the substantial limitation requirement shall be construed broadly in favor of expansive coverage and diabetes being virtually always found to impose a substantial limitation under federal regulations, the court held a determination of whether an impairment is substantially limiting still requires an individualized assessment.
Thus, a plaintiff must also show that diabetes substantially limits the plaintiff’s endocrine function or another major life activity. Diabetes is not a “per se” disability.
Final thoughts
As this sample of recent decisions by federal courts in Texas illustrates, the required proof and procedural steps of employment litigation is ever-evolving and changing. Employees should always consult an experienced employment attorney before taking any steps that could jeopardize their claims.
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