1. Federal district court in Louisiana holds that H-2B guest workers are entitled to the protections of the Fair Labor Standards Act.
In a case of first impression, a federal district court in Louisiana was faced with a putative collective action brought by guest workers in the United States on H-2B following Hurricane Katrina. The guest workers sought a declaratory judgment that their employer had violated the Fair Labor Standards Act ("FLSA") by failing to reimburse them during their first week of employment for costs incurred in traveling to the United States and in obtaining Visas. In Castellanos - Contreras v. Decatur Hotels, LLC, 488 F.Supp. 2d 575 (E.D.La. 2007), the district court concluded that although the H-2B statutes and regulations did not expressly recognize the applicability of the FLSA, neither Congress nor the relevant federal agencies has ever stated that H-2B guest workers are not entitled to the protections of the FLSA. Noting that the FLSA, by its own terms, applies to all "employees" and, noting the Fifth Circuit's determinations in prior decisions that the term includes citizens and aliens alike, the district court concluded there was no rationale to preclude documented H-2B guest workers from asserting the same rights under the FLSA.
2. An Employer's denial of a transfer may qualify as a "adverse employment action" in a Title VII discrimination claim.
In a recent decision Alvarado v. Texas Rangers, __ F.3d __, 2007 WL 2028917 (5th Cir.), a female trooper, Juanita Alvarado, sued her employer, the Texas Department of Public Safety ("DPS") asserting that she was denied an appointment to DPS's Texas Rangers Division because of her gender in violation of Title VII. The district court granted summary judgment in favor of the employer, DPS, finding that Alvarado could not establish that she had suffered an adverse employment action because her move from her current Sergeant's position to a Sergeant position with the Rangers would be nothing more than a purely lateral transfer. The district court further determined that there was no indication that there was anything discriminatory in the appointment process or that she had been discriminated against because of her gender. On appeal, Alvarado argued that the lower court erred in granting summary judgment for DPS because (1) she had evidence sufficient to allow a reasonable trier of fact to find that the denial of the position with the Rangers was akin to a denial of a promotion and, therefore, constituted an adverse employment action; and (2) that DPS had failed to provide legally sufficient nondiscriminatory reasons for her non-selection. She further argued that the reasons put forth by DPS for her non-selection were pretextual.
On appeal, the Fifth Circuit noted that it was confronted with an issue of first impression, namely, when may an employer's denial of a transfer qualify as a "adverse action" for purposes of a Title VII discrimination claim. Alvarado had been a trooper since 1988 and had subsequently become a Sergeant with DPS in their Special Crimes Unit in 1997. She had applied unsuccessfully for a Sergeant position with the Rangers on five separate occasions. After being rejected for the fifth time, Alvarado filed a Title VII action claiming that denial of the appointment was based on her gender in violation of Title VII.
In the course of its opinion, the Fifth Circuit reiterated the long standing rule that to establish a prima facie case of sex discrimination under Title VII, Alvarado had to show she was a member of a protected class, she was qualified for the position she sought, she suffered an adverse employment action, and others similarly situated but outside the protected class were treated more favorably. The Fifth Circuit noted that the lower court had ruled against Alvarado, concluding that she could not establish an adverse action because the position she sought with the Rangers was nothing more than a purely lateral transfer. In its opinion, the Fifth Circuit stated that it was well established that the denial of a purely lateral transfer is not an adverse employment action redressable under Title VII. The Court also noted that it is well established that the denial of a promotion is an adverse employment action.
In Alvarado, the Fifth Circuit was faced with ascertaining when an employer's denial of a transfer may qualify as an adverse action. In reviewing the cases addressing denials of transfers and denials of promotions, the Court concluded that the denial of a transfer may be the effective equivalent of a denial of a promotion and thus, qualify as an adverse employment action even if the new position does not entail an increase in pay or other tangible benefits. According to the Court, if evidence indicates that the position sought was objectively better, then the failure to award the position to the plaintiff can constitute an adverse employment action. In determining whether a new position is objectively better, the Court said a number of factors can be relevant such as whether there is an increase in salary or other benefits; whether the position provides greater responsibilities or better job duties; whether the position provides greater opportunities for advancement; whether the position requires greater skill, education or experience; whether the position is obtained through a complex competitive selection process; or, whether the position is otherwise objectively more prestigious. The Court stated that this is an objective inquiry and that an employee's subjective impressions or reasons for wanting the new position are insufficient to prove a position sought is "objectively better."
After reviewing the record evidence, the Fifth Circuit concluded that there was a fact issue as to whether the Rangers position was in fact effectively better than the position held by Alvarado. Alvarado had produced objective summary judgment evidence indicating that her non-selection to the Rangers was akin to the denial of a promotion, and therefore, constituted an adverse employment action. The Court further determined that DPS's burden of production to show that it had legitimate nondiscriminatory reasons for not appointing Alvarado to the Rangers was insufficient. According to the Court, DPS had failed to provide evidence as to the specific grounds for the scoring of Alvarado and other candidates in the subjective stage of the interview process. While the Court recognized that an employer's subjective reason for not selecting a candidate may on occasion serve as a legitimate nondiscriminatory reason for the candidate's non-selection, an employer must offer a plausible explanation or evidence of how or why such performance assessments were made. In this case, the Fifth Circuit concluded that DPS simply failed to satisfy its evidentiary burden. Accordingly, the district court's grant of summary judgment for DPS was reversed and the matter was remanded for trial on the merits.
3. The Fifth Circuit holds that in a work rule violation case, a plaintiff may establish a prima facie case of discrimination by demonstrating either that he did not violate the rule or that non-minorities were treated differently under circumstances "nearly" identical to his.
In Brown v. United Parcel Service, Inc. 2007 WL 1598180, (5th Cir.), plaintiff claimed that he was discriminated against on the basis of race when he was terminated by UPS for stealing approximately $160.00 from a customer. The evidence indicated that Brown allegedly took cash for a COD order and then failed to report it or require the customer to provide some sort of payment other than cash in violation of UPS policy. When questioned about the incident later by UPS, Brown gave conflicting stories. Both UPS representatives as well as the Teamster's Union (which represents UPS employees) upheld the termination.
In his Title VII lawsuit, Brown claimed that another co-worker, who was white, had committed a similar act but was treated differently and was not terminated. The record evidence indicated the Caucasian co-worker allegedly forged customer signatures so that he could drop off their packages. He had been terminated by UPS but was later reinstated by the Teamsters/UPS panel and given a suspension instead. The lower court had granted summary judgment in favor of UPS; the lower court found that Brown had failed to establish a prima facie case of discrimination since he failed to show how he was treated less favorably than others similarly situated outside the protected class. On appeal, the Fifth Circuit noted that in a work rule violation case such as that presented, it was incumbent upon Brown to establish either that he did not violate the rule or that white employees were treated differently under circumstances identical to his. In reviewing the evidence, the Court concluded that the actions of Brown and his white co-worker were not nearly identical. While both employees had engaged in dishonest conduct, the Court concluded that Brown's dishonesty was of a different magnitude. According to the Court, stealing from a customer and then lying about it is more serious and creates a greater risk that UPS may lose business than faking signatures in order that you may leave a package for a customer. Accordingly, the Fifth Circuit affirmed the lower court's dismissal of Brown's claim, finding that he had failed to establish a prima facie case of discrimination.
4. Fifth Circuit states that an Employer's failure to follow its own employment policy is not always evidence of pretext.
In Turner v. Baylor Richardson Medical Center, 476 F.3d 337 (5th Cir. 2007), plaintiff filed a Title VII action against her employer alleging race discrimination and retaliation, arising out of her termination. The plaintiff had alleged that the employer had retaliated against her after she asked her supervisor to stop referring to inner-city youth as "ghetto children". The lower court had granted summary judgment in favor of the employer, finding that plaintiff was unable to prove a prima facie case of either race discrimination or retaliation. On appeal, the Fifth Circuit affirmed.
According to the Court, the plaintiff could not have reasonably believed that the supervisor's comment, standing alone, constituted an unlawful employment practice in violation of Title VII. The Court also affirmed summary judgment with respect to the plaintiff's race discrimination claim. The plaintiff had argued that the reason for her termination was pretextural, but her only supporting evidence of pretext was the employer's failure to follow its prescribed procedures for disciplinary termination. In again affirming the lower court's ruling dismissing plaintiff's claim on this issue, the Fifth Circuit concluded that an employer's failure to follow its own procedural rules is not evidence of pretext unless the employer has treated similarly situated employees differently in the past. In Turner, the Fifth Circuit found no such evidence and dismissed the plaintiff's claim.
5. Is placing an employee on paid administrative leave an adverse employment action in a Title VII retaliation claim? The Fifth Circuit concludes that it is "a close question."
Just last month, the Fifth Circuit was faced with a Title VII discrimination and retaliation claim brought by an African American police lieutenant who claimed that she had been discriminated against when the Shreveport Police Department took her gun and placed her on paid leave after an outburst. McCoy v. City of Shreveport, __ F.3d__, 2007 WL 1991042 (5th Cir.) The district court had granted summary judgment in favor of the employer, finding that plaintiff had suffered no adverse employment action and thus, could not prevail on either her Title VII discrimination or retaliation claims. On appeal, the Fifth Circuit affirmed, but not before engaging in an in depth analysis as to the varying standards of an adverse employment action for Title VII discrimination claims as opposed to retaliation claims.
McCoy had been a 22-year veteran of the Shreveport Police Department from December 1981 until her retirement in December 2003. She had attained the rank of lieutenant in February, 2002. In July of 2003, she filed a grievance with the police department's Internal Affairs Bureau, alleging that a subordinate officer harassed her by twice throwing wadded up paper in her face and by repeatedly entering her office only to stare at her and laugh. Both the City and the Shreveport Police Department determined that the alleged conduct was not harassment and cautioned both officers to avoid future workplace horseplay. McCoy was extremely upset and cried when she learned of the decision and reportedly told another black lieutenant in her supervisor's presence "we are not officers, we are black officers." McCoy's supervisor testified that McCoy said she would "not take this lying down" and "would take care of it." McCoy then asked to be relieved of duty to see a doctor. The supervisor retrieved McCoy's gun before she left and the department placed her on administrative leave with pay. The leave was later classified as extended sick leave. McCoy eventually submitted a retirement letter in 2003, mentioning constantly having to face the white sergeant she had complained about and having to look behind her back.
McCoy subsequently filed claims of race, sex and retaliation claims under Title VII,but the lower court dismissed her Title VII suit, finding no adverse employment action. To establish a prima facie case of sex and race discrimination, the Fifth Circuit noted that McCoy had to show that she was a member of a protected class, was qualified for the position, sustained an adverse employment action, and was replaced by someone outside the protected group. To prove retaliation, she had to show that she participated in an activity protected by Title VII, sustained an adverse job action and established a causal connection between the two events. While both the discrimination and retaliation claims required adverse action, the Fifth Circuit observed that the standard of proof that had to be adduced by McCoy differed. To establish adverse action for her discrimination claim, McCoy had to prove an ultimate employment action on behalf of her employer. Although McCoy claimed that a constructive discharge had occurred, the Fifth Circuit disagreed. After noting the high standard necessary for a plaintiff to prove a reasonable person in her position would have felt compelled to resign, the Court concluded that based on the circumstances, she was unable to satisfy this high burden. The Court also determined that paid administrative leave did not suffice as an ultimate employment action for Title VII discrimination purposes, since ultimate employment actions address situations such as hiring, granting leave, discharging, promoting or compensating. Placing McCoy on paid leave or administrative leave was not, according to the Court, an adverse employment action.
The thorny issue presented on appeal concerned McCoy's retaliation claim post the United States Supreme Court's decision in Burlington Northern and Santa Fe Railway v. White, __ U.S. __, 126 S. Ct 2405 (2006). The Fifth Circuit noted that under the standard adopted by the Supreme Court in Burlington Northern, an adverse employment action for purposes of a Title VII retaliation is any action that "might well have persuaded a reasonable worker from making or supporting a charge of discrimination." The Fifth Circuit observed that it had to confront and analyze the effect of the Burlington Northern standard on the facts presented by McCoy. Was the police department placing McCoy on paid administrative leave an adverse employment action under the Burlington Northern standard? The Fifth Circuit stated that while it was "a close question," it need not answer this question because even if McCoy could establish a prima facie case of retaliation, she could not prove that the City's legitimate nondiscriminatory and non-retaliatory reasons for collecting her gun and badge and placing her on administrative leave were pretextural. According to the Court, there were three separate instances allegedly constituting adverse employment action taken against McCoy: (1) retrieval of McCoy's gun before allowing her to leave work; (2) designating McCoy's leave as administrative leave; and (3) taking McCoy's badge. The City seized McCoy's gun because her comments about "workplace violence" and "taking care of the problem herself" raised legitimate safety concerns for her and others. The City further indicated that McCoy presented no evidence of any racially insensitive conduct by City personnel or police personnel and had no evidence to show that the decision to classify her leave as administrative had a retaliatory motive, particularly when she asked to take time off. With respect to confiscating her badge and gun, the Fifth Circuit noted that the City did not proffer a motive for confiscating the badge and gun other than such action was necessary to satisfy the police department's rule regarding administrative leave. According to the Fifth Circuit, McCoy had failed to offer evidence from which a reasonable juror could infer that the legitimate reasons proffered by the City for confiscating her badge and gun and placing her on administrative leave were a pretext for retaliation. The Fifth Circuit thus affirmed the district court's dismissal of McCoy's Title VII claims.
