Recent Legal Opinions · 2019. 9. 30. · Recent Legal Opinions Michael Y. Kim Grace S. Lee The...

Recent Legal Opinions

Michael Y. KimGrace S. Lee

The Michael Kim Law Firm, PLLC4236 W. Lovers LaneDallas, Texas 75209

www.mkimlegal.com

Title VIIDisparate Treatment

Disparate treatment discrimination addresses employmentactions that treat an employee worse than others based onthe employee’s race, color, religion, sex, or national origin.

Proof and finding of discriminatory motive is required, anda plaintiff can prove such motive through either direct orcircumstantial evidence.

When proving through circumstantial evidence, a courtanalyzes the claim under the McDonnell Douglas framework.

Cicalese v. Univ. of Texas Med. Branch, 924 F.3d 762, 766 (5thCir. 2019).

Title VIIMcDonnell Douglas

Under the McDonnell Douglas framework, a plaintiff must establisha prima facie case by showing:

(1) he/she belongs to a protected group;

(2) he/she was qualified for the position sought;

(3) he/she suffered an adverse employment action; and

(4) he/she was replaced by someone outside the protectedclass.

Boyd v. Mississippi Dep’t. of Pub. Safety, 751 Fed. Appx. 444, 450(5th Cir. 2018), cert. denied, 139 S. Ct. 1215 (2019) (citing Price v.Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002)).

Title VIIMcDonnell Douglas

If the plaintiff makes his prima facie case, then theburden shifts to the employer to produce a legitimate,non-discriminatory reason for the adverse employmentaction.

Then, the burden shifts back to the plaintiff, and hemust show that the employer’s proffered reason was apretext for discrimination.

Boyd, 751 Fed. Appx. at 450.


There are two elements a plaintiff must plead tosupport a disparate treatment claim under Title VII:

(1) an adverse employment action; and

(2) taken against the plaintiff because of his or herprotected status.

Cicalese, 924 F.3d at 767.


A plaintiff must allege “facts, [either] direct orcircumstantial, that would suggest [the employer’s]actions were based on [the plaintiff ’s] race or nationalorigin or that [the employer] treated similarly situatedemployees of other races or national origin morefavorably.”

Cicalese, 924 F.3d at 767 (quoting Raj. v. La. State Univ.,714 F.3d 322, 311 (5th Cir. 2013).


• Making derogatory remarks regarding Italians

• Excluding Rastellini from departmental activities

• Demoting Rastellini to a part-time, non-tenure track position at a significantly lower pay rate

• Reducing Cicalese’s salary

• Reassigning Cicalese’s director titles to less qualified, American doctors

• Rescinding all permanent faculty licensure waivers (only Rastelliniand Cicalese benefited from the permanent waivers)

Cicalese, 924 F.3d at 765.

Title VIISex Discrimination: Pregnancy

The terms “because of sex” or “on the basis of sex”include, but are not limited to, because of or on thebasis of pregnancy, childbirth, or related medicalconditions; and women affected by pregnancy,childbirth, or related medical conditions shall betreated the same for all employment-related purposes . .as other persons not so affected but similar in theirability or inability to work. . . .

42 U.S.C. § 2000e(k).


Plaintiff must make a prima facie case:(1) she belongs to the protected class;(2) she sought accommodation;(3) the employer did not accommodate her; and(4) the employer did accommodate others “similar intheir ability or inability to work.”

Luke v. CPlace Forest Park SNF, L.L.C., 747 Fed. Appx.978, 979 (5th Cir. 2019) (citing Young v. United ParcelServ., Inc., 135 S. Ct. 1338, 1353-54 (2015)).


The burden then shifts to the employer to justify its refusalto accommodate the plaintiff by relying on legitimatenondiscriminatory reasons for denying the plaintiff’saccommodation.

If the employer offers that justification, then the plaintiffmust show that the reasons given by the employer werenot its true reasons but a pretext for discrimination.

Luke, 747 Fed. Appx. at 979.

Title VIISex Discrimination

“Sex” discrimination has been held to encompassdiscrimination based on sexual harassment or sexualstereotyping.

Title VII in plain terms does not cover sexualorientation.

O’Daniel, 922 F.3d at 305.


EEOC administratively declared that Title VIIprohibited “sex” discrimination based on sexualorientation.

O’Daniel v. Indus. Serv. Sols., 922 F.3d 299, 304 n.9 (5thCir. 2019) (quoting Baldwin v. Foxx, EEOC App. No.0120133080, 2015 WL 4397641 (EEOC July 15,2015)).


The threshold criterion for relief . . . is a showing thatthe plaintiff “participated in an activity protected underthe statute.”

O’Daniel, 922 F.3d at 305 (quoting Feist v. La. 730 F.3d450, 454 (5th Cir. 2013)).


“. . . . whether the employee’s communications to theemployer sufficiently convey the employee’s reasonableconcerns that the employer has acted or is acting in anunlawful discriminatory manner.”

O’Daniel, 922 F.3d at 306 (quoting Yount v. S & ARestaurant Corp., 226 F.3d 641 (Table), 2000 WL1029010, at *3 (5th Cir. 2000) (per curiam).


“[I]t is not ‘reasonable’ in the Fifth Circuit to infer thatTitle VII embraces an entirely new category of personsprotected for their sexual orientation.”

O’Daniel, 922 F.3d at 306.


Title VII protects an employee only from “retaliationfor complaining about the types of discrimination itprohibits.”

O’Daniel, 922 F.3d at 306 (quoting Miller v. Am. FamilyMut. Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000).

Title VIISex Discrimination: Sexual Orientation

Although the Fifth Circuit does not recognize “sexualorientation” as a protected class under Title VII, theUS Supreme Court recently granted certiorari in theSecond Circuit’s Altitude Exp., Inc. v. Zarda, 139 S. Ct.1599 (2019) on the issue of whether Title VII’sprohibition against employment discrimination“because of sex” encompasses discrimination based onsexual orientation.

ADA & Rehabilitation Act

The substantive standards for employmentdiscrimination under the Americans with DisabilitiesAct (ADA), 42 U.S.C. § 12101 et seq., apply equally toclaims brought under the Rehabilitation Act, 29 U.S.C.§ 701, et seq.

Stokes v. Nielsen, 751 Fed. Appx. 451, 454 (5th Cir.2018) (citing Flynn v. Distinctive Home Care, Inc., 29U.S.C § 794(d)).


Disability discrimination includes the employer’sfailure to make reasonable accommodations, unless theemployer can show that the requested accommodationwould impose undue hardship.

Stokes, 751 Fed. Appx. at 454 (5th Cir. 2018) (citingFeist v. La., Dep’t of Justice, Office of the Att’y Gen., 730F.3d 450, 452 (5th Cir. 2013)).


To make out a failure-to-accommodate claim, aplaintiff must show that he or she is:

(1) a qualified individual with a disability;

(2) the disability is known to the employer; and

(3) the employer failed to make a reasonableaccommodation for the known disability.

Stokes, 751 Fed. Appx. at 454 (citing Feist, 730 F.3d at452).


A plaintiff is not required to show that the requestedaccommodation is necessary to perform essential jobfunctions to constitute a reasonable accommodation.

The ADA defines “reasonable accommodations” asmeasures that would enable an employee with adisability “to enjoy equal benefits and privileges ofemployment as are enjoyed by its other similarlysituated employees without disabilities.”

Stokes, 751 Fed. Appx. at 454 (citing Feist, 730 F.3d at452-54 and 29 C.F.R. Sec. 1630.2(o)(1)).


“[A]fter an employee has requested an accommodation, ‘itmay be necessary for the [employer] to initiate an informal,interactive process [with the employee] . . . in order to craft areasonable accommodation.’”

“[A]n employer cannot be found to have violated the ADAwhen responsibility for the breakdown of the informal,interactive process is traceable to the employee and not theemployer.’”

Stokes, 751 Fed. Appx. at 455 (quoting Loulseged v. Akzo NobelInc., 178 F.3d 731, 735 (5th Cir. 1999)).

Title VII & ADEAHostile Work Environment

Under Title VII, the plaintiff must prove that he/she:

(1) belongs to a protected group;

(2) was subjected to unwelcome harassment;

(3) the harassment complained of was based on his/her membership in theprotected group;

(4) the harassment complained of affected a term, condition, or privilege ofemployment; and

(5) the employer knew or should have known of the harassment in question andfailed to take prompt remedial action.

English v. Perdue, No. 18-50530, 2019 WL 2537414, at *3 (5th Cir. June 19, 2019) (citingWilliams-Boldware v. Denton County, Tex., 741 F.3d 635, 640 (5th Cir. 2014)).

Title VII & ADEAHostile Work Environment

Under the ADEA, the plaintiff must show that:

(1) he/she was over the age of 40;

(2) he/she was subjected to harassment, either through words oractions, based on age;

(3) the nature of the harassment was such that it created anobjectively intimidating, hostile, or offensive workenvironment; and

(4) there exists some basis for liability on the part of theemployer.

English, 2019 WL 2537414, at *3 (citing Dediol v. Best Chevrolet, Inc.,655 F.3d 435, 441 (5th Cir. 2011).

Title VII & ADEARetaliation

Under Title VII, the plaintiff must show that:

(1) he/she engaged in conduct protected by Title VII;

(2) he/she suffered a materially adverse action; and

(3) a causal connection exists between the protected activityand the adverse action.

The ADEA requires the same showing.

English, 2019 WL 2537414, at *3 (citing Jenkins v. City of SanAntonio Fire Dep’t, 784 F.3d 263, 269 (5th Cir. 2015) and Wooten v.McDonald Transit Assocs., Inc., 788 F.3d 490, 496-97 (5th Cir.2015)).


In retaliation cases, “causation is difficult to prove” and calls for “a highly fact specific” analysis.

The Fifth Circuit’s suggested factors in the analysis:(1) employee’s “past disciplinary record,” (2) an employer’s departure from “typical policy and

procedures,” and (3) “the temporal relationship between the employee’s

conduct and discharge.”

English, 2019 WL 2537414, at *3 (citing Nowlin v. Resolution Trust Corp., 33 F.3d 498, 508 (5th Cir. 1994)).


The mere fact that some adverse action is taken after anemployee engages in some protected activity will notalways be enough for a prima facie case.

English, 2019 WL 2537414, at *3 (citing Swanson v.General Servs. Admin., 110 F.3d 1180, 1183 n.3 (5th Cir.1997)).


Adverse employment actions are ultimate employmentdecisions such as hiring, firing, demoting, promoting,granting leave, and compensating.

An employment action that does not affect job duties,compensation, or benefits is not an adverse action. Forexample, complaints that coworkers got to socialize with thehigher-ups, for instance, do not count.

English, 2019 WL 2537414, at *3 (citing Stroy v. Gibson onbehalf of Dep’t of Vet. Affairs, 896 F.3d 693, 699 (5th Cir.2018).

Title VIIContinuing Violation Doctrine

As long as an employee files a complaint while at leastone act which comprises the hostile work environmentclaim is still timely, the entire time period of the hostileenvironment may be considered by a court for thepurpose of determining liability.

Heath v. Board of Supervisors for Southern University andAgricultural and Mechanical College, 850 F.3d 731, 736(5th Cir. 2017).


Hostile environment claims are “continuing” becausethey involve repeated conduct, so the “unlawfulemployment practice” cannot be said to occur on anyparticular day.

Heath, 850 F.3d at 737 (quoting National R.R. PassengerCorp. v. Morgan, 536 U.S. 101, 117 (2002)).


Three limits on the continuing violation doctrine:

(1) the plaintiff must demonstrate that the separate acts are related;

(2) the violation must be continuing (intervening action by the employer will sever the acts that preceded it from those subsequent to it); and

(3) the doctrine may be tempered by the court’s equitable powers.

Heath, 850 F.3d at 738.


Morgan overruled our prior cases to the extent they heldthat the continuing violation doctrine does not applywhen an employee was or should have been awareearlier of a duty to assert her rights. The focus is onwhen the harassment occurred, not when a plaintiffknew of an ongoing violation.

Heath, 850 F.3d at 739 (discussing National R.R.passenger Corp. v. Morgan, 536 U.S. 101, 117-18 (2002)).


The continuing violation doctrine applies the same toTitle VII hostile work environment claims as it does tosuch claims brought under section 1983.

Heath, 850 F.3d at 739-41.


Title VII focuses on “the protection of the individualemployee, rather than the protection of the minoritygroup as a whole” and it does not “give an employerlicense to discriminate against some employees on thebasis of race or sex merely because [the employer]favorably treats other members of the employee’sgroup.”

Heath, 850 F.3d at 741 (quoting Connecticut v. Teal, 457U.S. 440, 453-55 (1982)).

42 U.S.C. § 1983Municipal Liability

A claim under 42 U.S.C. § 1983 has two foundational elements:

(1) a violation of the Constitution or federal law; and

(2) that the violation was committed by someone acting undercolor of state law.

While municipalities can be sued directly under § 1983, Monellestablishes that they “cannot be found liable on a theory ofvicarious liability or respondeat superior.”

Webb v. Town of St. Joseph, 925 F.3d 209, 214 (5th Cir. 2019)(quoting Davidson v. City of Stafford, 848 F.3d 384, 395 (5th Cir.2017), as revised (Mar. 31, 2017)).


3 Required Elements:

(1) an official policy

(2) promulgated by the municipal policymaker

(3) was the moving force behind the violation of aconstitutional right

Webb, 925 F.3d at 214.


Three ways to show a municipal policy:

(1) written policy statements, ordinances, or regulations

(2) a widespread practice that is so common and well-settled as to constitute a custom that fairly representsmunicipal policy

(3) a single decision when the official or entitypossessing “final policymaking authority” for anaction “performs the specific act that forms the basisof the § 1983 claim.”

Webb, 925 F.3d at 215.


Even when an official with final policymaking authoritydoes not directly act to set policy, a municipality may beliable in “extreme factual situations” when that officialratifies a subordinate’s decision, which requires more thanthe defense of a decision or action shown to beunconstitutional after the fact.

A municipality may also be liable when a policymakerengages in deliberately indifferent failure to controlsubordinates in a way likely to result in violation ofconstitutional rights.

Webb, 925 F.3d at 217.


“If a final policymaker approves a subordinate’srecommendation and also the subordinate’s reasoning, thatapproval is considered a ratification chargeable to themunicipality.”

Webb, 925 F.3d at 218 n.48 (quoting Culbertson v. Lykos,790 F.3d 608, 621 (5th Cir. 2015)).


“Only if the authorized policymakers approve asubordinate’s decision and the basis for it would theirratification be chargeable to the municipality.”

Webb, 925 F.3d at 218 n.48 (quoting Okon v. Harris Cty.Hosp. Dist., 426 Fed. Appx. 312, 317 n.10 (5th Cir.2011) (per curiam)).


After establishing a municipal policy promulgated by anauthorized policymaker, a plaintiff must show that thepolicy was the “moving force” behind the constitutionalviolation by showing either:

(1) the policy itself was unconstitutional; or

(2) that it was adopted with deliberate indifference tothe “known or obvious fact that such constitutionalviolations would result.”

Webb, 925 F.3d at 219 (quoting Shumpert v. City of Tupelo, 905 F.3d 310, 316-17 (5th Cir. 2018), as revised (Sept. 25, 2018)).

First AmendmentFree Speech Retaliation

To make a claim for retaliation under the First Amendment’s rightto free speech, the “plaintiff must establish that:

(1) he/she suffered an adverse employment decision;

(2) his/her speech involved a matter of public concern;

(3) his/her interest in speaking outweighed the governmentaldefendant’s interest in promoting efficiency; and

(4) the protected speech motivated the defendant’s conduct.”

Boyd, 751 Fed. Appx. at 450 (citing Howell v. Town of Ball, 827 F.3d515, 522 (5th Cir. 2016)).

First AmendmentFree Speech Retaliation

Pertinent considerations as to whether a public employee’s interest inspeaking outweighed employer’s interest in promoting efficiency, forexample, include whether the statement:

(1) impairs discipline by superiors or harmony among co-workers;

(2) has a detrimental impact on close working relationships forwhich personal loyalty and confidence are necessary; or

(3) impedes the performance of the speaker’s duties or interfereswith the regular operation of the enterprise.

Boyd, 751 Fed. Appx., at 450 (citing Rankin v. McPherson, 483 U.S.378, 388 (1987)).

First AmendmentFree Speech

When public employees engage in speech pursuant to theirofficial duties, they “are not speaking as citizens for FirstAmendment purposes, and the Constitution does notinsulate their communications from employer discipline.”

“[T]he critical question under Garcetti is whether the speechat issue is itself ordinarily within the scope of an employee’sduties, not whether it merely concerns those duties.”

Harmon v. Dall. Cty., Tex., 927 F.3d 884, 893 (5th Cir.2019), as revised (July 9, 2019) (citations omitted) (citingGarcetti v. Ceballos, 547 U.S. 410, 418, 421 (2006)); Howell v.Town of Ball, 827 F.3d 515, 522–23 (5th Cir. 2016)).

Questions

Recent Legal Opinions

Michael Y. KimGrace S. Lee

The Michael Kim Law Firm, PLLC4236 W. Lovers LaneDallas, Texas 75209

(214) [email protected]

Recent Legal Opinions · 2019. 9. 30. · Recent Legal Opinions Michael Y. Kim Grace S. Lee The...

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