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Fifth Circuit

Updated to September 19, 2018

Fifth Circuit

Roberson-King v. State of Louisiana Workforce Comm'n, 904 F.3d 377, 130 FEP 1861 (5th Cir. 2018). Panel: HIGGINSON, Stewart, Weiner. Claims on Appeal: Title VII promotion (race). State law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Any difference in qualifications between the two candidates does not create a genuine dispute of material fact about whether plaintiff was clearly better qualified for the district supervisor position. The choice to value successful applicant's Certified Rehabilitation Counselor credential over plaintiff's strengths is within the realm of reasonable business judgments.

Stroy v. Gibson, 896 F.3d 693, 130 FEP 1713 (5th Cir. 2018). Panel: ELROD, Costa, Ho. Claims on Appeal: 1. Title VII retaliation. 2. Title VII discrimination (race). Disposition Below: 1. Dismissed for lack of subject-matter jurisdiction [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Although it was error to dismiss on jurisdictional grounds, failure of plaintiff to wait 180 days to file suit failed to exhaust administrative procedures, and there was no waiver or estoppel argument to excuse failure to exhaust. 2. Peer review process at agency is not an "adverse employment action" under Title VII. By rule, information gathered through the peer review process "may not be used for personnel actions, disciplinary action, to affect privileges, or to affect employment."

Mitchell v. Mills, 895 F.3d 365, 130 FEP 1669 (5th Cir. 2018). Panel: JOLLY, Southwick, Willet. Claims on Appeal: § 1983 pay (race). Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Plaintiff failed to identify white comparables who were nearly identical to himself. Plaintiff worked in the Water Department; his comparators worked in the Street Department. One comparable had skills and prior experience operating a motor grader and lay-down machine that plaintiff did not possess. Comparable also had duties that included supervisory responsibilities, drafting budgets, planning roadwork projects, and operating various heavy machinery, which plaintiff did not have. Second comparable also had experience with motor grader and an extensive background in welding, construction, and the operation and maintenance of heavy machinery, which plaintiff lacked.

Gardner v. CLC of Pascagoula, LLC, 894 F.3d 654, 130 FEP 1637 (5th Cir. 2018). Panel: COSTA, King, Dennis. Claims on Appeal:  1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. "[T]he multiple years of [almost daily] unwanted sexual grabbing and explicit comments [plaintiff] endured could certainly be deemed severe and pervasive harassment" noting that "only one of those is necessary." Court notes special "complication" that "the source of the harassment is the resident of an assisted living facility who suffers from dementia." The standard of liability for the facility must take "due account of the unique circumstances involved in caring for mentally diseased elderly patients" Even in such a workplace, a "facility must take steps to try to protect an employee once there is physical contact that progresses from occasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm." Genuine dispute whether jury could find that the employer did not take reasonable steps to prevent or correct the harassment: "CLC does not dispute that it was aware of J.S.'s treatment of his caregivers, and multiple people testified that they reported his behavior to management. The company had prior notice not only because of informal complaints but also because of the daily written notes made by the staff. In response to these concerns, CLC failed to even attempt to remedy the situation. Gregg reportedly laughed at Gardner when she complained about J.S.'s behavior, and there is no evidence that the administration took steps to protect its employees. After being punched three times, Gardner asked to be reassigned; the response was 'no.'" The plaintiff also offered alternatives that the employer never used, including "requiring two or more caregivers at a time, using medication to control behavior, or transferring a problematic patient to a more appropriate home. Most telling of CLC's ability to remedy the situation is that it eventually removed J.S. and sent him to an all-male facility it operates. But it chose to do that only after J.S. assaulted another patient. No reason is given for why that option was not considered when female employees complained of pervasive harassment or in response to the severe assault of an employee." 2. Direct evidence that plaintiff was fired for trying to avoid harasser (i.e., Gardner's "insubordination" for her "refusal to provide J.S. care.") "We note that there is a body of caselaw addressing when a refusal to engage in work that the plaintiff believes is subjecting her to unlawful conduct qualifies as protected activity."

Davis v. Fort Bend Cty., 893 F.3d 300 (5th Cir. 2018). Panel: ELROD, King, Jones. Claims on Appeal: Title VII termination (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Resolving intra-circuit dispute, Title VII's charge-filing requirement is simply a prerequisite to suit, not a jurisdictional requirement. Thus, objection to failure to include "religion" in EEOC charge is waivable. Defendant forfeited opportunity to raise employee's alleged failure to include "religion" in charge by not raising the defense until remand from a prior appeal of the same claim.

Davenport v. Edward Jones & Co., L.P., 891 F.3d 162, 130 FEP Cases 1537 (5th Cir. 2018). Panel: DAVIS, Jones [HIGGINSON, dissenting in part]. Claims on Appeal: Title VII harassment (sex). State tort claim (not discussed here). Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff had failed to submit the constructive discharge claim to the EEOC for investigation, and thus forfeited her right to bring it in court. Plaintiff also alleged that boss threatened to hold up raise until she dated a customer. "Denial of a raise" is a tangible employment action, citing the U.S. Supreme Court's decision in Burlington Industries, Inc., v. Ellerth. Contrary to the district court, the panel holds that the propositioning in a quid pro quo case does not need to be directly by or for the supervisor's benefit. "[Supervisor] Coyne allegedly conditioned the receipt of 'big bonuses' upon Davenport's submission to his requests that she date [the customer]. Because Coyne made the requests, he engaged in the sexual harassment, not [the customer]. It is of no consequence that a third-party was to be the beneficiary-Coyne was the harasser." The panel also holds that even the open-ended suggestion that Davenport "date" Fisher could constitute actionable harassment, as it may be regarded as a "request for sexual favors." Nevertheless, panel holds that plaintiff failed to present evidence that the employer took a tangible employment actions against her, and affirm summary judgment on that basis. "Davenport produced no summary-judgment evidence that, under Edward Jones's bonus policy, she was eligible for a bonus in October 2015 that Coyne could either approve or disapprove. Consequently, Davenport produced no summary judgment evidence that Coyne and Edward Jones denied her a bonus because she refused to date [the customer]."

Herster v. Bd. Of Supervisors of LSU, 887 F.3d 177 (5th Cir. 2018). Panel: STEWART, Clement, Southwick. Claims on Appeal: Title VII compensation (sex). State law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: For purposes of McDonnell Douglas method of proof, plaintiff failed to present comparable male employees. Two men who were identified were both Assistant Professors rather than Professionals-in-Residence. The Assistant Professor position is a tenure track role that requires research as a condition of employment. In contrast to an Assistant Professor, a Professional-in-Residence like plaintiff was not required to research or seek to obtain research grants. Only comparator offered who was also a Professional-in-Residence had greater qualifications and responsibilities (he had a Ph.D, and was assigned a larger course load because he was assigned to teach five lecture format classes in Art History). It was not direct evidence that decisionmaker referred to the employee as a "trailing spouse" and said "I thought you were going to have children and be happy" and that plaintiff was acting like a "princess." Comments did not relate to compensation and proximity to decision was not established.

EEOC v. BDO USA, Inc., 876 F.3d 690, 130 FEP 945 (5th Cir. 2017). Panel: STEWART, King, Dennis. Claims on Appeal: Subpoena enforcement action. Disposition Below: Enforcement denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Privilege log did not suffice to make prima facie showing of attorney-client privilege, regarding (a) entries that are vague and/or incomplete (numerous log entries fail to identify a sender, recipient, date, or provide a substantive description of the subject matter; state only that "legal advice" was sought; and/or do not indicate whether the communications were made, and maintained, in confidence; emails between counsel do not indicate whether entries included non-lawyer recipients); (b) entries that fail to distinguish between legal advice and business advice (log does not provide sufficient detail to meet its burden of allowing opposing counsel or the trial court to determine whether entries merely described as "legal advice," or that included or courtesy copied attorneys, actually contained privileged legal advice); and (c) entries that fail to establish that the communications were made in confidence and that confidentiality was not breached (log leaves open questions whether emails courtesy copied to a third party remained privileged, whether matters communicated to attorneys were done so with the intention of remaining privileged, whether non-attorney individuals to whom communications were sent were within the sphere of confidence). Also striking down protective order preventing EEOC from contacting employees,; magistrate judge granted and determined the scope of the protective order based on an erroneous interpretation of the law.

Patton v. Jacobs Eng'g Gp., 874 F.3d 437, 33 A.D. Cases 1205 (5th Cir. 2017). Panel: PRADO, King, Jolly. Claims on Appeal: 1. ADA reasonable accommodation. 2. ADA harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Although reasonable accommodation claim was not in EEOC charge, it appeared in EEOC intake questionnaire and scope of the EEOC investigation growing out of the charge could reasonably be expected to include a failure to accommodate claim. But there is insufficient evidence to establish that supervisors knew of disability (childhood onset fluency disorder). Request for quieter work environment - stating that his stuttering and anxiety problems "all go[] together" and "that at a previous job [he] was sensitive to [noise]" - insufficient to establish knowledge by employer that limitations experienced by plaintiff were as a result of his disability. 2. There was sufficient evidence to present a genuine dispute of material fact on pervasiveness. Plaintiff testified that "there were a lot of names by quite a few people over an extended period of time," and that he was called names like "bush hog" and "lawnmower" every week. Summary judgment affirmed on ground that plaintiff failed to invoke company's harassment reporting procedures.

Welsh v. Fort Bend Indep. Sch. Dist., 860 F.3d 762, 130 FEP 369 (5th Cir. 2017). Panel: HAYNES, Smith, Junell. Claims on Appeal: Title VII and ADEA discrimination (sex, national origin) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Texas courts do not apply res judicata to claims that were not yet mature at the time of the first lawsuit, as measured by time first complaint was filed, and plaintiff was not obliged to continuously update first complaint to add new claims.

Credeur v. State of Louisiana, 860 F.3d 785, 33 A.D. Cases 855 (5th Cir. 2017). Panel: GRAVES, Reavley, Elrod. Claims on Appeal: 1. AD and La. state law reasonable accommodation. 2. AD and La. state law harassment. 3. AD and La. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Regular work-site attendance is an essential function, and litigation attorney who had surgery for kidney transplant and was unable to return to work after six months (lack of medical clearance) was thus not a qualified person. Record included written correspondence with plaintiff prior to this litigation demonstrates a policy of requiring regular on-site attendance from litigation attorneys, testimony of supervisors, and plaintiff's admitted failure to stay on top of deadlines. 2. Criticism of an employee's work performance, such as that documented in Last Chance Agreement, and Thereats of termination do not satisfy the standard for a harassment claim. Nor do conditions that the DOJ imposed on employee through the process of fashioning a reasonable accommodation; employer's imposition of reasonable work-related conditions to ease an employee's transition back to the office after an illness does not constitute actionable harassment. Dispute over whether plaintiff should sign payroll documents that she believed to be false not a form of harassment. 3. Enforcement of accommodations, Last Chance Agreement, and voluntary resignation not materially adverse actions.

EEOC v. Emcare, Inc., 857 F.3d 678, 130 FEP 179 (5th Cir. 2017). Panel: STEWART, King, Dennis. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial ($167,000 in back pay for Trahan, $82,000 in back pay for Shaw, and $250,000 in punitive damages for Stokes) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiff presented sufficient evidence of a causal link between plaintiff's protected activity and termination. There was conflicting testimony over critical issues, entitling jury to discredit decision makers' versions of events and find their testimony not credible, such as whether decision makers ever personally observed sexually offensive comments, whether employees ever complained to HR about that behavior, and whether the audit of employee's unit produced any legitimate grounds to fire him. Jury could have believed employee's testimony that decision maker criticized her attempts to complaint about harassment, showing that he knew about her protected activity. addition ally, there was evidence that manager to whom employee reported harassment actually caused the termination by encouraging employer to audit employee to justify termination.

Cabral v. Brennan, 853 F.3d 763, 130 FEP 27 (5th Cir. 2017). Panel: SMITH, Haynes, Junell. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Two-day suspension not materially adverse.

Acker v. General Motors, LLC, 853 F.3d 784, 33 A.D. Cases 597 (5th Cir. 2017). Panel: JONES, Stewart, Owen. Claims on Appeal: AD and Tex. state law reasonable accommodation. FMLA claim [not discussed here]. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Requesting FMLA leave is not a request for a reasonable accommodation under the ADA.

Fisher v. Lufkin Indus., Inc., 847 F.3d 752, 129 FEP 1629 (5th Cir. 2017). Panel: DENNIS, Elrod, Graves. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a bench trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Magistrate clearly erred in granting employer judgment, where record established both prongs of "cat's paw" analysis. Magistrate expressly found that "a desire to retaliate against [plaintiff]" motivated manager to complain about plaintiff and motivated second-level supervisor to launch the investigation of plaintiff. Magistrate also found that the "subsequent discipline was motivated by a desire to retaliate for Fisher's protected activity." Findings therefore lead to the necessary conclusion that the investigation would not have taken place but for supervisors' retaliatory actions. Plaintiff's refusal to acquiesce fully in the retaliatory investigation and search of his personal effects did not serve as a superseding cause.

Ruiz v. Brennan, 851 F.3d 464, 33 A.D. Cases 606 (5th Cir. 2017). Panel: HIGGINSON, Barksdale, Graves. Claims on Appeal: Rehabilitation Act discrimination. Disposition Below: Dismissal for lack of subject-matter jurisdiction, FRCP12(b)(1). Outcome on Appeal: Affirmed [defendant]. Grounds: When a federal-sector plaintiff's claims are properly subsumed within an administrative class action, plaintiff cannot meet the administrative exhaustion requirement with respect to her individual claims as long as the class action is pending. Even though the front desk position was allegedly retracted because of plaintiff's congenital hearing impairment, rather than her injured-on-duty disability (as in pending class), plaintiff still satisfies the class definition with respect to her claim, i.e., she was an employee placed in a modified position due to an injured-on-duty disability.

Moss v. Harris Cty., 851 F.3d 413, 133 A.D. Cases 561 (5th Cir. 2017). Panel: HAYNES, Higginbotham, Jones. Claims on Appeal: ADA discrimination and retaliation. § 1983 First Amendment claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff was not qualified individual with a disability where at the time of his termination on April 16, 2013, he had been on leave since November 7, 2012, he had exhausted all of his FMLA leave, and his doctor had instructed him and his employer that he was incapable of returning to work until around July 2013. He was medically incapable of performing his duties as a deputy constable at the time of his termination. Leave was not a reasonable accommodation, because - owing to impending mandatory retirement - he would not return. Also no evidence that the county had vacant light-duty positions available.

Alkhawaldeh v. Dow Chemical Co., 851 F.3d 422, 129 FEP 1765 (5th Cir. 2017). Panel: PRADO, Higginso, Costa. Claims on Appeal: 1. Title VII termination (race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2.  Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff failed to identify valid comparator, i.e., non-Jordanian Muslim Arab FS/FL treated relatively better. 2. No reasonable fact-finder could conclude that plaintiff would not have been fired but for his November 2009 conversation opposing race and national origin discrimination, where his bad performance rating came the month before. Also, not pretext where performance deficiencies were amply documented.

Heath v. Bd. of Supervisors for the Southern Univ. and Agricultural and Mechanical College, 850 F.3d 731, 129 FEP 1729 (5th Cir. 2017). Panel: COSTA, Davis, Clement. Claims on Appeal: 1. Title VII and § 1983 harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Judge erroneously failed to apply Morgan to timing issues on harassment claim, using pre-Morgan circuit case law (now overruled). Issue of "whether the act has the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights" clearly inconsistent with Morgan. The continuing violation doctrine applies the same to Title VII hostile work environment claims as it does to such claims brought under § 1983. Fact that other female faculty member did not experience harassment is not material to viability of plaintiff's personal claim. 2. There year gap too long to infer causation.

Caldwell v. KHOU-TV, 850 F.3d 237, 33 A.D. Cases 517 (5th Cir. 2017). Panel: PRADO, Higginso, Costa. Claims on Appeal: ADA termination. FMLA claim [not discussed here]. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Shifting explanations present genuine dispute about the employer's real reasons for termination. "[T]he Defendants' explanations for Caldwell's dismissal have evolved from insubordination to a lack of initiative. As to Caldwell's unwillingness to work in EDR, Caldwell testified that he never expressed such a preference. Similarly, Caldwell's supervisors stated that they had no knowledge of Caldwell ever expressing a preference against working in EDR. There is also a question as to whether the Defendants' lack-of-initiative explanation was truthful. Caldwell testified, and his supervisors confirmed, that it was ultimately the employer's decision to limit Caldwell's time working in EDR, not Caldwell's." While explanations originated from different individuals, "this Court has not adhered to a bright-line rule that only the decision-maker's statements can be considered when determining whether a plaintiff has presented sufficient evidence of pretext based on inconsistent explanations for an employment decision." Also, "unlike other employees, Caldwell was actually prevented from doing EDR work by his employer [because he used crutches], a limitation that was ultimately used as a basis for his termination." The inference of ADA discrimination was underscored with the way the station treated the other, non-disabled editor who was ultimately fired. The station had a counselling policy for deficient performance, yet this policy was not applied to plaintiff. "[N]o one ever informed Caldwell that he should have been doing more work in EDR ... This differs from the Defendants' treatment of the only other editor [Murphy] laid off during the RIF who was not disabled. Unlike Caldwell, the other editor who was not performing adequately was informed of his deficiencies in a one-on-one meeting, providing that employee with notice and an opportunity to improve, both of which were withheld from Caldwell."

Cazorla v. Koch Foods of Miss., LLC, 838 F.3d 540, 129 FEP 992 (5th Cir. 2017). Panel: HIGGINBOTHAM, Dennis, Clement. Claims on Appeal: Title VII harassment (sex). Disposition Below: Protective order denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Discovery on EEOC and plaintiffs that inevitably would have revealed the immigration status of any claimants who applied for U visas, as well as that of their families, warrants entry of a protective order. Claimants had no privilege against discovery by operation of 8 U.S.C. § 1367, which applies on its face only to the federal government itself. Claimants waived any argument that the burden of "good cause" for production of U Visa material belonged on the party that was seeking discovery. Nevertheless, plaintiffs were entitled to FRCP26(c) order. Discovery may be probative in this case, because applications for U Visas were possibly motivated by false or exaggerated reports of harassment, and applications spiked when EEOC got involved in investigation. District court did not clearly err in finding that the relevance of the U Visa material outweighed any possible harm to the claimants themselves from allowing discovery, where employees may no longer be employed at defendant (though noting that the risk of disclosure itself might have an in terrorem effect on claimants cooperating with the government. district court erred, holds the panel, by disregarding the public interest. "Allowing U visa discovery from the claimants themselves in this high-profile case will undermine the spirit, if not the letter, of those Congressionally sanctioned assurances and may sow confusion over when and how U visa information may be disclosed, deterring immigrant victims of abuse - many of whom already mistrust the government - from stepping forward and thereby frustrating Congress's intent in enacting the U visa program." Protective order must bar company from learning the identities of any visa applicants and their families, at least in the liability phase.

Vaughan v. Anderson Regional Medical Center, 849 F.3d 588, 129 FEP 1666 (5th Cir. 2017). Panel: GRAVES, Benavides, Haynes. Claims on Appeal: ADEA retaliation. Disposition Below: Interlocutory appeal from partial dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: ADEA retaliation provision does not allow award of damages for "general compensatory damages" or punitive damages, adhering to Dean v. Am. Sec. Ins. Co., 559 F.2d 1036 (5th Cir. 1977) but noting split in circuits.

Outley v. Luke & Associates, Inc., 840 F.3d 212, 129 FEP 1114 (5th Cir. 2016). Panel: SMITH, Jolly, Graves. Claims on Appeal: 1. Title VII transfer (race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Transfers were not adverse employment actions. Merely changing working hours or imposing a higher workload does not qualify. Hourly pay remained the same, and plaintiff retrained full-time status. That she had to attend training does not mean that the transfer was a demotion; indeed, training may be required for even a coveted promotion. Claim that she was denied merit raise fails where she did not show otherwise similarly situated persons who received raise. Even if plaintiff made out prima facie case, no genuine dispute about pretext. There stray remarks by non-decision makers do not create an issue about pretext. Court did not abuse discretion in not hearing motion to compel interrogatory answer where motion to compel was filed too late. 2. Although two months is sufficient for temporal proximity, connection between protected activity and denial of a merit pay adjustment is too attenuated, where person who issued Thereat to plaintiff had no authority to set pay.

Dillard v. City of Austin, 837 F.3d 557, 32 A.D. Cases 1765 (5th Cir. 2016). Panel: COSTA, Southwick, Ozerden. Claims on Appeal: 1. AD and Tex. state law termination. 2. AD and Tex. state law reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff presented no genuine dispute of material fact that the City's reliance on his history of misconduct and poor performance was pretextual. 2. Although city could have fired plaintiff once he exhausted his leave under federal law and city policy, it cannot rely on this rationale when it made the decision to retain him in a different position. Nevertheless, no genuine dispute that plaintiff caused collapse of interactive process by failing to master the new position he was assigned to as an accommodation. Even an employee unable to perform office tasks needs no special skill to avoid misusing company time, dishonesty, falling asleep, or absenteeism.

Chhim v. Univ. of Texas at Austin, 836 F.3d 467 (5th Cir. 2016). Panel: Per curiam (Higginbotham, Prado, Haynes). Claims on Appeal: 1. ADEA discrimination. 2. Title VII discrimination (race, color, national origin). 3. Title VII retaliation. Disposition Below: 1. Dismissed on subject matter jurisdiction grounds, FRCP12(b)(1) [defendant]. 2. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 3. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. University has sovereign immunity, and plaintiff did not sue individual state official defendants in their official capacities in this suit; thus Ex parte Young exception does not apply.2. Plaintiff does not state plausible claim that suggest the applicant hired by university for supervisory position was less qualified than plaintiff or was similarly situated. 3. Failure of charging party to mention any grievances that were filed before university's decision not to hire him in March 2014 means that the scope of his retaliation charge before the EEOC and the scope of the EEOC's investigation could not reasonably be expected to reach those claims

Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 129 FEP 715 (5th Cir. 2016). Panel: WEINER, Smith, Graves. Claims on Appeal: Tex. state law termination (pregnancy). FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court abused its discretion by striking plaintiff's deposition testimony on an issue (whether she had discussed her date of return with C&S) that was supposedly "refuted by [an] e-mail exchange" between plaintiff and Leonard. "By determining that the e-mail exchange 'refuted' Heinsohn's deposition, the magistrate judge improperly considered the veracity of the evidence, rather than its admissibility." Applying the standard burden-shifting analysis under McDonnell Douglas, the court holds that plaintiff met her prima facie burden, and that C&S proffered two reasons why it supposedly fired her: missing deadlines, and attempting to conceal this from the employer. Genuine dispute on pretext. Employer gave plaintiff no explanation for its action at the time of her discharge. "C&S relies entirely on post hoc evidence of its reason, viz, [managing partner's] Shaw's deposition, in which he declared that the decision to terminate Heinsohn was his and was based on what Escobedo and Leonard had told him after her maternity had begun." Yet in manager's deposition, he admitted that he could not recall what files he examined when he made the decision. Indeed, "this lack of specificity" might have been because Shaw in fact did not terminate plaintiff. "[I]f Escobedo, not Shaw, was Heinsohn's supervisor it might have been improper for Shaw to terminate her for following Escobedo's instructions." While employer proffered documents purporting to document plaintiff's violations, plaintiff - who created, and thus had personal knowledge of, the records - "testified that the notes are not authentic," that "the files in the case management system have been tampered with," and that "anyone at C&S could have done this, because the case management system did not contain any controls." This created a genuine dispute about whether the files were doctored. There were also genuine disputes about whether the plaintiff committed any violations at all. Any alleged lapses in records-keeping may have been the result of inadequate training and supervision. Further, "C&S has not produced evidence of any written policy dictating exactly what Heinsohn was required to include in her notes in the case management system." Even if the notes of the plaintiff's performance were authentic and complete, there remained genuine disputes about whether the employer could have reasonable believed there were violations of firm policy. Regarding the alleged missed deadlines, "the notes from the case management system indicate that although deadlines were missed, those deadlines were not missed by Heinsohn. In both cases, Heinsohn's notes indicate that the SSA did not copy her on the notice of the event triggering the deadline." Thus, the "uncontested evidence indicates that the deadline was not missed by Heinsohn, so she did not violate C&S's policy." Plaintiff's alleged failure to follow-up on, or disclose, the expired deadlines was rebutted by evidence that "Heinsohn responded immediately by preparing and sending a good-cause letter to the SSA" and "contemporaneously recorded the circumstances of each of the missed deadlines in her notes in the case management system." There was also evidence that supervisor had given plaintiff latitude to handle the expired deadlines on her own, without his involvement. Finally, the notes generally indicated that plaintiff updated her files before her leave, and that "Escobedo, Carvajal, and Rendon all had access to Heinsohn's notes in the case management system, so they were at least constructively aware of the status of each of her cases, including any missed deadlines," thus negating any inference that she was trying to hide anything. District court also "erred in rejecting Heinsohn's statements as self-serving and accepting Shaw's, Escobedo's, Caravajal's, and Rendon's," noting "that Heinsohn's statements are no more and no less self-serving than those of the others." Indeed, the panel states, "[i]f we toss Heinsohn's deposition, we must also toss the depositions, affidavits, and declarations of the others for the same reason. To hold otherwise would signal that an employee's account could never prevail over an employer's. This would render an employee's protections against discrimination meaningless."

Pullen v. Caddo Parish school Bd., 830 F.3d 205, 129 FEP 628 (5th Cir. 2016). Panel: SMITH, Barksdale, Costa. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Panel reverses supervisor-liability portion of the district court decision. Focuses on the first prong, i.e., that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Relevant to first prong is "[b]oth the harasser's knowledge of the [employer's anti-harassment] policy and the victim's awareness of it (and of associated complaint procedures) are relevant to whether the company acted reasonably." Where the employee concedes awareness of a policy, this typically enough to establish the first prong. Yet "a company's policy and complaint mechanisms [may be] unreasonable or ... not sufficiently publicized to employees for the company to prevail at summary judgment." Plaintiff adduced enough evidence to create a genuine dispute about whether the Board's policy was unreasonable: "Pullen produced evidence that, if believed, would show that employees at the central office were not trained on sexual harassment, were not informed of the existence of a policy, were not shown where to find it, and were not told whom to contact regarding sexual harassment. This would be a sufficient basis for a reasonable jury to find that the company did not take reasonable steps to prevent and remedy sexual harassment." The witnesses sharply disagreed over whether they had ever received a copy of the harassment policy or any training on the subject. While there was evidence that the Board may have posted the policy on bulletin boards, witnesses testified that the postings were not publicized and may have been incomplete. "Pullen presented testimony from employees who indicated that they were given no training or information about the sexual-harassment policy and were not even aware of its existence. The evidence, construed in Pullen's favor, also shows that Graham was never given a copy of the policy, never saw it, and was never trained regarding its contents. Moreover, the evidence generates a reasonable inference that the policy was not posted in a conspicuous location (given that several employees said they had never noticed it)."2. Plaintiff could not prove liability for the periods when she was assigned to human resources, or the central office. Panel rejects plaintiff's arguments that alleged harasser continued to be her supervisor even when she was assigned to other offices, and that alleged harasser's conduct was of such an open and notorious nature that the Board was constructively on notice of the harassment.

Nicholson v. Securitas Security Services, Inc., 830 F.3d 186, 129 FEP 617 (5th Cir. 2016). Panel: SOUTHWICK, Benavides, Dennis. Claims on Appeal: 1. ADEA reassignment. 2. ADEA termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. District court erred in holding that Securitas was not an employer. Indeed, "Securitas twice admitted that it employed Nicholson, first in the contract it signed with Nicholson, and second in its answer to Nicholson's complaint where it averred that Nicholson was its employee." There was sufficient evidence for a jury to decide whether Securitas acted on an age-biased motive by honoring client Fidelity's request to reassign Ms. Nicholson. Joint-employer may be held liable for employment discrimination "participates in the discrimination, "or "knows or should have known of the client's discrimination but fails to take corrective measures within its control." "Participation" means that a staffing firm must "know[] or should have known the client's reasons were discriminatory." Jury could infer constructive ("should have known") knowledge from the following facts: (1) "Securitas admits that it failed to investigate the circumstances of Fidelity's reassignment request, including not even asking Nicholson for an explanation before removing her from Fidelity." (2) Securitas may have "deviated from standard company practices by not investigating the reasons Fidelity wanted Nicholson removed." (3) Securitas ignored its own guideline stating that "[i]nefficient or substandard performance" is an action that "normally do[es] not result in immediate termination" and instead is "addressed . . . through counseling." 2. Uncontested that there were no other positions Ms. Nicholson was qualified to fill, so no biased motive.

Combs v. City of Huntington, 829 F.3d 388, 129 FEP 622 (5th Cir. 2016). Panel: STEWART, Jones, Dennis. Claims on Appeal: Title VII harassment (sex) and retaliation. Disposition Below: Reduced fee award [defendant]. Outcome on Appeal: Reversed [plaintiff]. GroundsPerdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010), did not overrule use of the twelve Johnson factors, which continue in use in the Fifth Circuit and which includes degree of success as a factor. Yet the district court erred in reducing the award solely on strict proportionality considerations, imposing a 6.5:1 fee-to-damages ceiling.

Rogers v. Pearland Independent school Dist.827 F.3d 403, 129 FEP 429 (5th Cir. 2016). Panel: OWEN, Higginson [GRAVES, dissenting in part]. Claims on Appeal: Title VII disparate treatment and impact hiring (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff forfeited disparate impact theory by not briefing it on appeal; in any event, plaintiff failed to establish that the district maintains a policy of "excluding from consideration for employment all persons who have been convicted of a felony." Regarding disparate treatment, plaintiff failed to make out prima facie case because there was no comparable employee. White employee who was hired despite possible felony conviction for drug possession 30 years earlier not comparable to plaintiff, who was convicted of at least There drug crimes and crimes for which plaintiff received a much more severe sentence than white employee.

Morris v. Town of Independence827 F.3d 396, 129 FEP 425 (5th Cir. 2016). Panel: OWEN, Higginbotham, Smith. Claims on Appeal: § 1981 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to set forth a prima facie case, because there was no comparable white employee. While white employee survived layoff, plaintiff (unlike alleged comparator) was a part-time employee without fixed duties, and mayor received complaints about the plaintiff's performance. 

VACATED (Sept. 23. 2016) State of Texas v. EEOC, 827 F.3d 372 (5th Cir. 2016). Panel: JOLLY, Davis [HIGGINBOTHAM, dissenting]. Claims on Appeal: administrative law challenge to Title VII guidelines on use of criminal background checks. Disposition Below: Dismissed for lack of subject matter jurisdiction, FRCP12(b)(1) [defendant EEOC]. Outcome on Appeal: Reversed [plaintiff state]. Grounds: Texas could challenge EEOC's "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964" in court. As Texas is an object of the Guidance at issue, there is no reason to deviate from the presumption that Texas has constitutional standing to challenge it: if taken as a mandatory scheme for all employers to follow, it increases the state's regulatory burden, and preempts state laws. Under APA, Guidance is "final agency action" because the EEOC has committed itself to applying the Guidance when conducting enforcement and referral actions, and has power to investigate (if not pursue litigation against) state. While agency's decision to investigate a specific regulated entity, including the issuance of subpoenas related to that investigation, normally does not constitute "final agency action," state could challenge what was in effect a mandatory set of policies applicable to all employers. 

EEOC v. Bass Pro Outdoor World, LLC826 F.3d 791 (5th Cir. 2016). Panel: HIGGINBOTHAM, Southwick, Higginson. Claims on Appeal: Title VII pattern or practice [race]. Disposition Below: Summary judgment denied [defendant]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: EEOC has authority to bring pattern-or-practice claim under section 706 of Title VII for damages. EEOC can meet its conciliation and investigation requirements without naming individual class members.

Williams v. J.B. Hunt Transport, Inc.826 F.3d 806, 32 A.D. Cases 1531 (5th Cir. 2016). Panel: HIGGINSON, Weiner, Costa. Claims on Appeal:  ADA termination. Disposition Below: Dismissal for lack of subject-matter jurisdiction, FRCP12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Whether or not an ADA plaintiff in the transportation industry was obliged to exhaust administrative remedies by initiating the 49 C.F.R. § 391.47's process for resolution of conflicting medical evaluations, district court's treatment of exhaustion as subject-matter jurisdiction was error. Judgment affirmed on alternative ground that plaintiff was not a qualified individual because he lacked the DOT certification required for job by federal law.

Delaval v. PTech Drilling Tubulars, LLC824 F.3d 476, 32 A.D. Cases 1405 (5th Cir. 2016). Panel: SOUTHWICK, King, Graves. Claims on Appeal: 1. ADA termination. 2. ADA reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine dispute of material fact that plaintiff was terminated for violating the company's attendance policy. While e-mails between employer and plaintiff may raise a fact question about whether any of plaintiff's absences were authorized, they do not indicate that employer's stated reason for firing plaintiff was a pretext. 2. Plaintiff caused breakdown of interactive process by failing to produce proof of his whereabouts during his week-long absence.

Rodriguez v. Eli Lilly and Co., 820 F.3d 759, 32 A.D. Cases 1241 (5th Cir. 2016). Panel: HIGGINSON, Davis, Smith. Claims on Appeal: ADA termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Comment made about plaintiff's PTSD and mental stability six months before termination too remote to constitute direct evidence of discrimination. While plaintiff contested There reasons proffered for termination, two remained entirely unrebutted, and plaintiff did not provide evidence showing any of the five reasons were false.

EEOC v. Rite Way Service, Inc., 819 F.3d 235, 128 FEP 1889 (5th Cir. 2016). Panel: COSTA, Clement, Graves. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Title VII's opposition clause in section 704(a), 42 U.S.C. § 2000e-3(a), requires opposition of a practice made unlawful by Title VII ("he has opposed any practice made an unlawful employment practice by this subchapter"). Employee must manifest an objectively reasonable belief that the practice "opposed" was illegal. "Reasonable belief" standard applies equally to third parties cooperating in an internal investigation. Even if the one incident the claimant witnessed would not by itself constitute harassment as a legal matter, the circumstances might tilt into gray-zone "reasonable belief" - at least enough to allow a jury to decide it. "She heard Harris tell Quarles that he was looking at and admiring her rear end ... [T]his was conduct directed at a specific fellow employee. That it came from a person in a supervisory position is another important consideration." The earlier near-slap is also "relevant to how she assessed the seriousness of Harris's later comment that he was 'gonna look' at Quarles's rear end because he was a man." Finally, witness's belief was informed by a pamphlet furnished by the employer that "sexual harassment" - including "unwelcomed sexual . . . comments" and "other verbal or physical conduct of a sexual nature" - should be reported.

Fairchild v. All American Check Cashing, Inc.815 F.3d 959, 128 FEP 1660 (5th Cir. 2016). Panel: PRADO, Owen, Haynes. Claims on Appeal: Title VII termination (pregnancy). FLSA claim (not discussed here). Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Testimony that manager from different location told her that her termination was because of her pregnancy properly excluded under FRE801(d)(2)(D) where manager was not a decision maker, and comment was thus not within the scope of employee's employment relationship. Evidence of temporal proximity did not create a jury issue (two months separated announcement of pregnancy from termination), and plaintiff failed to rebut several legitimate non-discriminatory reasons for termination: her contentious relationship with her manager; the problems she caused regarding store morale and customer service; and her repeated performance-related problems that resulted in warnings, including a citation issued after she informed employer of her pregnancy.

Nelson v. Watch House Int'l LLC, 815 F.3d 190, 128 FEP 1421 (5th Cir. 2016). Panel: STEWART, Owen, Costa. Claims on Appeal: Title VII termination (race, religion). Disposition Below: Motion to compel arbitration [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Because arbitration contract lacked savings clause related to existing claims and disputes and requiring advance notice of termination, contract was illusory under Texas law and not enforceable.

Flynn v. Distinctive Home Care, Inc., 812 F.3d 422, 32 A.D. Cases 853 (5th Cir. 2016). Panel: DAVIS, Barksdale, Dennis. Claims on Appeal: Rehabilitation Act termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Section 504(a) specifically authorizes discrimination suits against "any program or activity receiving Federal financial assistance," not limited to employers. While recognizing that "[t]he AD and the Rehabilitation Act generally are interpreted in pari materia," the panel observes that "generally" does not mean always: "we agree that the Rehabilitation Act generally adopts 'the substantive standards for determining what conduct violates' Title I of the ADA," but "hold - as our sister Circuits have held - that Section 504 does not incorporate 'the definition of who is covered under' Title I." Noting split in circuit.

Wheat v. Florida Parish Juvenile Justice Com'n, 811 F.3d 702, 128 FEP 841 (5th Cir. 2016). Panel: JOLLY, Dennis (REEVES, dissenting in part). Claims on Appeal: Title VII retaliation. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006), plaintiff did not produce a genuine dispute about whether the following actions were "materially adverse": assignment of "janitorial duties" upon her rehiring; the denial of a 4% raise as indicated by her performance evaluation; and the denial of her request to be transferred away from a "difficult inmate." But the plaintiff did create an issue regarding her termination. While she was charged with assaulting a juvenile resident, plaintiff offered evidence of other employees who were violent towards juvenile residents, but were not discharged by the Commission.

Fairchild v. All American Check Cashing, Inc., 811 F.3d 776, 128 FEP 1109 (5th Cir. 2016). Panel: PRADO, Owens, Haynes. Claims on Appeal: Title VII termination (pregnancy). FLSA claim (not discussed here). Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Testimony that manager from different location told her that her termination was because of her pregnancy properly excluded under FRE801(d)(2)(D) where manager was not a decision maker, and comment was thus not within the scope of employee's employment relationship. Evidence of temporal proximity did not create a jury issue (two months separated announcement of pregnancy from termination), and plaintiff failed to rebut several legitimate non-discriminatory reasons for termination: her contentious relationship with her manager; the problems she caused regarding store morale and customer service; and her repeated performance-related problems that resulted in warnings, including a citation issued after she informed employer of her pregnancy.

Cannon v. Jacobs Field Services No. Am., Inc., 813 F.3d 586, 32 A.D. Cases 793 (5th Cir. 2016). Panel: COSTA, Jolly, Haynes. Claims on Appeal: ADA hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in applying pre-ADAAA standard of disability, in case involving employee with rotator cuff impairment. Genuine dispute whether plaintiff was disabled, where amended ADA includes "lifting" in list of major life activities (regulation also includes reaching) and shoulder injury indisputably limited plaintiff in those activities. Employer that failed to hire employee because of limitations also chargeable with "regarded as" discrimination. Also genuine issue whether plaintiff was "qualified." Assuming that driving is an essential function of the field engineer position, there is sufficient evidence from which a jury could conclude that plaintiff was able to perform that duty owing to use of painkillers (disputed issue off fact whether employee was still using drugs). Regarding "essential function" of climbing, disputed issue of fact whether plaintiff could climb (e.g., he received clearance from doctor for climbing vertical ladders and maintaining 3-point contact with either arm"). No pretext analysis where employer never tendered a legitimate nondiscriminatory reason for rescinding offer. District court failed to act on separate reasonable-accommodation claim; ordered to consider this on remand.

Miller v. Metrocare Services, 809 F.3d 827, 32 A.D. Cases 798 (5th Cir.  2016). Panel: CLEMENT, Stewart, Elrod. Claims on Appeal: AD and Tex. state law termination. FLSA, FMLA, and constitutional due-process claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No dispute that employer articulated a legitimate, nondiscriminatory reason for termination (employee, as HR director, failed to conduct required criminal background checks on a large number of employees, exempted himself from these same checks, and allowed the records to falsely reflect that the checks had been conducted), and employee failed to present evidence that this reason is a pretext for discrimination.

Brandon v. Sage Corp.808 F.3d 266, 128 FEP 649 (5th Cir. 2015). Panel: JONES, Smith, Southwick. Claims on Appeal:  Title VII and § 1981 retaliation (sex, race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Even if plaintiff was engaged in opposition activity by objecting to discriminatory comments about hiring "cross-gender" individual, summary judgment could be affirmed on ground that Thereat to reduce pay was not "materially adverse action" where person who made Thereat was co-worker, not in a position to carry it out. Plaintiff was highly-placed supervisor who knew chain of command, and was chargeable with following up to see if suggested pay cut was made. Moreover, person who made Thereat was not an alter ego or proxy of the employer; lacked authority to speak for the company or control over employee compensation, benefits, or primary responsibilities. Nor was person who made Thereat an agent with regard to plaintiff's employment status; he did not have the authority to hire, fire, or alter plaintiff's conditions of employment.

Ortiz v. City of San Antonio Fire Dep't, 806 F.3d 822, 128 FEP 589 (5th Cir. 2015). Panel: HIGGINSON, Weiner, Costa. Claims on Appeal: 1. GINA discrimination. 2. GINA retaliation. 3. Title VII discrimination (national origin). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Plain error review applies because plaintiff did not appeal report and recommendation from magistrate judge. Requirement that plaintiff participate in a mandatory wellness program not a violation of GINA because it nowhere requested, required, or purchased his genetic information, or discriminated against him on the basis of genetic information. 2. While EEOC complaint that cited GINA could constitute protected activity, there was no evidence of causation because charge was filed after allegedly adverse reassignment. 3. Employer advanced legitimate reasons for not placing non-Latino employee on alternate duty, and plaintiff did not create triable issue as to whether those reasons were false. Moreover, timing of plaintiff's placements on administrative duty showed that employer's motive was ensuring compliance with the Wellness Program.

Peterson v. Bell Helicopter Textron, Inc., 806 F.3d 335, 128 FEP 601 (5th Cir. 2015). Panel: JOLLY, Smith, Southwick. Claims on Appeal: Texas state law termination (age). Disposition Below: Judgment following a jury trial (injunction against future discrimination) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Plaintiff waived any claim for injunctive relief by failing to cite prayer for relief in pretrial order or trial brief. Although FRCP54(c) gives district courts discretion to enter any relief to which a party is entitled, even if there is no prayer for relief, this only where such relief is tested adversarially, tried by consent, or otherwise developed with reasonable notice to the defendant. State law does not provide award of attorney's fee where plaintiff fails to obtain favorable judgment. Tex. Lab. Code § 21.125(b) requires "prevailing party" status.

Porter v. Houma Terrebonne Housing Auth. Bd. of Commis., 810 F.3d 940, 128 FEP 477 (5th Cir. 2015). Panel: HIGGINBOTHAM,  Davis, Southwick. Claims on Appeal: Title VII and Tex. state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Whether protected activity is "materially adverse" cannot hinge on whether an employee is deprived of a contractual or other right. Genuine dispute of material fact about whether the decision to deny employee's request to rescind a resignation was materially adverse. Employee might have reasonably believed that the resignation was still negotiable, in view of the fact that "she was asked to consider rescinding her resignation by the Chairman of the Housing Authority Board" and by her direct supervisor. Also, "her request to stay on a month longer than her initial effective resignation date was immediately approved, plausibly creating an expectation that her resignation was still negotiable and not finalized." There was sufficiently close "temporal proximity" between plaintiff's testimony and the decision not to allow employee to withdraw her resignation (six and a half weeks) to support causation. Also a genuine dispute about whether the employer's reason for refusing employee's request was pretextual. Although it was supervisor's "assessment that Porter was not happy working there," a jury could find that this was untrue based on other supervisor's testimony that plaintiff "enjoy[ed] working with the children." Moreover, there was substantial evidence that might lead a finder of fact to doubt supervisor's credibility, including his shifting stories about whether he had authored an offending e-mail and left the "sexy voice" message on Porter's phone, as well as the prior decisions on four other occasions to allow employees to withdraw their resignations.

Nobach v. Woodland Village Nursing Center, 799 F.3d 374, 127 FEP 1628 (5th Cir. 2015). Panel: JOLLY, Smith, Southwick. Claims on Appeal: Title VII religious discrimination and accommodation. Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Employer not liable as a matter of law for termination of Jehovah Witness who refused to say rosary with patient, where employer was unaware of employee's religious objections until after termination decision as already made.

Zamora v. City of Houston798 F.3d 326, 127 FEP 1525 (5th Cir. 2015). Panel: CLEMENT, Wiener, Southwick. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial ($23,000 past reputational and mental distress damages; $127,000 future compensatory damages) [plaintiff]. Outcome on Appeal: Affirmed, but remanded on damages [plaintiff]. Grounds: The Fifth Circuit joins the Sixth, Eighth and Tenth Circuits in holding that the so-called "cat's paw" theory of causation, approved for motivating-factor cases under the Uniformed Services Employment and Reemployment Rights Act in Staub v. Proctor Hospital, 562 U.S. 411 (2011), can also apply in cases that require proof of "but-for" causation such as Title VII retaliation (University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013)). Plaintiff claimed (and the jury found) that "CRU supervisors made retaliatory statements to Internal Affairs, intending to cause Zamora to suffer an adverse employment action, and that they succeeded." There was sufficient evidence of causation. Supervisors submitted their statements to Internal Affairs after having been recently been deposed for lawsuit. Moreover, plaintiff's "expert testified that the Department operated under a 'code of silence' in which officers would retaliate against those who complained, spoke out against others, or filed complaints or lawsuits." Because the officers made remarks that "severely attack Zamora's credibility and reputation," a jury could have found that they were motivated by retaliation. In turn, those inflammatory remarks infected the Internal Affairs investigation. While defendant argued that the many layers of review between the supervisors' statements and the ultimate decision maker necessarily broke the chain of causation, a jury did not have to credit that argument: "investigation did not merely take the CRU supervisors' statements into account; he based his disciplinary recommendations on them. And without the supervisors' statements, the adverse action would not have been justified." Court upholds $23,000 in past reputational and mental distress damages, based on the father's testimony about Zamora's mental anguish during and after the suspension, and the testimony of "Zamora's expert, and several of his supervisors [that] either ... Zamora's reputation was harmed after he was branded untruthful or that in general, officers found to be liars suffer severe reputational harm within police departments." Award of $127,000 in compensatory damages for future mental anguish and reputational harm supported by record, though because plaintiff abandoned future mental distress, this part of award needed to be returned the judge for recalculation. "[T]he jury was entitled to make the natural and common-sense inference that an employee suffering from a blackened reputation in the eyes of high-ranking executives of an organization is limited in his potential to rise within that organization." Plaintiff also introduced expert testimony "about the importance of truthfulness in the law enforcement community, and about the devastating effect that even an overturned finding of untruthfulness can have." No new trial based on the jury discovering notes from Zamora's first jury trial, jotted on a blackboard in the jury room. "[T]he district court interviewed each of the jurors individually in open court. The district court noted that, upon discovering the notes and 'deduc[ing] that material was related to some proceeding in this case . . . [the jury] in good faith . . . stopped reading.'"

Taylor v. City of Shreveport798 F.3d 276, 31 A.D. Cases 1653 (5th Cir. 2015). Panel: DAVIS, Jolly, Higginbotham. Claims on Appeal: Rehabilitation Act § 504 and ADA medical inquiry, 42 U.S.C. § 12112(d)(4)(A). State and federal statutory and constitutional claims (not discussed here). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Sick-leave policy could not be challenged under Title II, which does not apply to employment. Under Rehabilitation Act, plaintiffs properly alleged that the Police Department, as a specific "program or activity," falls within the scope of the Rehabilitation Act. Also, there are no exhaustion requirements for Rehabilitation Act claims. Plaintiff need not assert that he or she has a disability to contest an allegedly improper medical inquiry or medical examination. On merits, form that requires that "[f]or every event that a member uses sick leave [he or she] shall furnish or verify" to his or her supervisor the "[n]ature of illness or injury." Because an employer's request for a general diagnosis neither intended to reveal nor necessitates revealing a disability, it does not violate the Rehabilitation Act. While other courts have found that such general-diagnosis disclosure requirements violate Title I, the Rehabilitation Act has a "sole" causation requirement. SPD-3 Form count states a claim, in part. Section of the SPD-3 Form that permits Department to determine why the officer missed work and confirm that the absence was justified satisfies Rehabilitation Act. But section that requires health providers to respond to request for information about chronic conditions, including projections about future absence, specifically targeting individuals with "a physical or mental impairment that substantially limits one or more major life activities." On remand, the City will have the burden to show that this aspect of the SPD-3 Form requirement is "job-related and consistent with business necessity." Plaintiffs can only get injunctive relief, because none of the plaintiffs allege that the SPD-3 Form requirement proximately caused them any tangible injury in fact. One as-applied challenge to disclosure fails: allege that Defendants required her to submit an SPD-3 Form, she does not describe the contents of that SPD-3 Form or specify whether Defendants first learned of the disclosed medical conditions as a result of that SPD-3 Form.

Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 31 A.D. Cases 1533(5th Cir. 2015). Panel: REAVLEY, Owen, Higginson. Claims on Appeal: ADA termination. State law retaliation tort (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff].  Grounds: Under joint-employer theory, plaintiff presented genuine dispute about which defendant(s) might be held liable under the ADA. Freescale, which controlled Burton's assembly-line job, constituted an employer. Manpower, which handled the pay and other paperwork for Burton, but did not order her termination could still properly be named as defendant. Manpower is an "employer" by virtue of sharing the employment relationship with Freescale. Following the recent decision in Whitaker v. Milwaukee Co., 772 F.3d 802 (7th Cir. 2014) - and other circuits - panel holds that "a joint employer must bear some responsibility for the discriminatory act to be liable for an ADA violation." Liability is not simply imputed to the joint employer because of the other actor's discrimination. On this record, Manpower could be held liable. That it might have been obliged under its service contract to carry out Burton's termination "is no defense. As an employer, Manpower had an independent obligation to comply with the ADA, and a contractual obligation to discriminate would be unenforceable." On the merits of the prima facie case, employer may have regarded plaintiff as disabled because of the repeated trips to the hospital and attendant absences from work. "Akroyd testified he learned of Burton's alleged injury in mid-June and 'immediately' instructed his staff to 'look at it' because it was 'important.'" And when "Freescale worked to compile 'documentation' justifying its decision to terminate Burton, it collected multiple reports from supervisors explicitly tying complaints about Burton's conduct to her asserted medical needs." Panel holds that there are genuine disputes of material fact about whether the five proffered reasons could rationally support the decision. Employer relies on "sundry addition al complaints" that "were uncovered only after Akroyd took steps to retrospectively justify the termination decision." It also advanced "reasons" that occurred after the decision to terminate was already made. But "[p]urported examples of post-decision poor performance, however, are not evidence of a legitimate, nondiscriminatory reason for her termination." Indeed, "[a]n ex post facto reason is no reason at all." Panel further holds that even the reasons given falling into the correct time frame presented genuine disputes of material fact. Even a sub-par performance rating from two years prior, for instance, could be impeached for its lack of recency. And especially considering that the reviews were largely positive, a jury could find that they could not have inspired the termination. Other reasons offered, such as damage to one of the wafers that she worked on (i.e., "the platform upon which microchips are seated during construction") and attendance, were "not proffered as ... independent bas[e]s for termination" and thus were not probative. Record also presented evidence that the Freescale kept altering its explanation opportunistically. While inconsistent explanations do not automatically warrant a finding in favor of plaintiff, "at there is doubt Akroyd knew of Burton's Internet use when he made the termination decision. If Akroyd had no such knowledge, proffer of the violation as a reason for her termination is false and therefore necessarily pretextual .... [So] the testimony here bears upon Akroyd's explanation for terminating Burton. Burton has successfully raised a fact question regarding whether Akroyd knew of her alleged improper Internet use at the time he decided to fire her." The record also supported an inference of fabricating a reason for the termination: "After Manpower's Rivera asked Akroyd for documentation supporting the decision to terminate Burton's assignment, Akroyd directly solicited Burton's supervisors to provide 'documentation.' Alvarez responded with an e-mail that begins 'Here is what I have on Nicole Burton' and sets forth 'a laundry list of violations to justify [the] predetermined decision to terminate' Burton. Plaintiff's only truly negative performance review was completed and submitted just after the decision to fire her and was provided to Akroyd after he requested documentation." A company policy to document performance deficiencies contemporaneously, which was not carried out in Burton's case, probative. Also, closeness in time (temporal proximity) of plaintiff's disclosure of her illness and her termination was relevant. "We have already identified significant evidence of pretext, meaning the only issue now is whether the decision to terminate Burton's assignment was sufficiently close in time to the employer's perceived discovery of Burton's medical condition to raise an inference of pretext. Plainly so. The decision to terminate Burton was made in late June, roughly two weeks after Burton's mid-June formal report of her health problems."

Goudeau v. Nat'l Oilwell Varco, LP, 789 F.3d 589, 127 FEP 825 (5th Cir. 2015). Panel: COSTA, Benavides, Southwick. Claims on Appeal: 1. ADE and Tex. state law termination. 2. ADE and Tex. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. "Stray remarks" test applies only when remarks are proffered as direct evidence of discrimination; otherwise, in a circumstantial case where comments are offered as part of prima facie case, manager's references to "old farts," plaintiff wearing "old man clothes," and plan to fire two other, older employees (which was carried out) are probative. Plaintiff also presents genuine dispute of material fact about pretext where (1) written warnings were for activities that were not within the employee's duties and (2) all four were given to him on the day he was terminated despite relating to events that occurred on different dates before meeting. 2. Eight-to-ten month gap between complaint about "old fart" comment and termination does not support inference of causation.

Jackson v. Frisco Ind't Sch. Dist., 789 F.3d 589, 127 FEP 825 (5th Cir. 2015). Panel: BARKSDALE, Southwick, Higginson. Claims on Appeal: 1. Title VII and Tex. state law non-renewal of contract (race). 2. Title VII and Tex. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Recommendation to board not to renew contract by hearing examiner authorized to conduct abbreviated evidentiary hearing and issue findings, conclusions, and recommendations has no collateral estoppel effect regarding whether race played a factor in the decision. Plaintiff did not have an adequate opportunity to litigate his claim, where he had only 15 days to prepare for the hearing and less than 24 hours' notice of the hearing date, plus did not receive his entire personnel file until days before the hearing. On the merits, plaintiff identified (for prima facie purposes) another sports coach, white, with negative conduct nearly identical to plaintiff's alleged shortcomings. Also, evidence of pretext, where individual who downgraded rating of plaintiff in evaluation process stated more than once that plaintiff might not be a "good fit." Employer conceded at oral argument that there is a genuine dispute for pretext for discrimination at the associate-principal level, and a genuine dispute of material fact exists for whether the associate-principal's allegedly discriminatory animus at that level is imputed to employer. 2. Because of concession of a genuine dispute for pretext for discrimination at the associate-principal level, claimed separation between that level and the school board - supposedly created by the hearing examiner - to shield the board from liability does not defeat genuine dispute about whether associate-principals bias was but-for cause of termination.

Peterson v. Bell Helicopter Textron, Inc.788 F.3d 384, 127 FEP 322 (5th Cir. 2015). Panel: JONES, Haynes, Crone. Claims on Appeal: Texas state law termination (age). Disposition Below: Judgment following a jury trial (injunction against future discrimination) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Plaintiff waived any claim for injunctive relief by failing to cite prayer for relief in pretrial order or trial brief. Although FRCP54(c) gives district courts discretion to enter any relief to which a party is entitled, even if there is no prayer for relief, this only where such relief is tested adversarially, tried by consent, or otherwise developed with reasonable notice to the defendant. State law does not provide award of attorney's fee where plaintiff fails to obtain favorable judgment.

Thomas v. Johnson, 788 F.3d 177, 127 FEP 335 (5th Cir. 2015). Panel: REAVLEY, Owen, Higginson. Claims on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Probationary employee who was terminated for "lack of candor" was not similarly situated to other such employees, where plaintiff told easily verified and most likely false story about why he diverted from a designated patrol area. Comparison to non-probationary, permanent employee not a valid comparator.

Wooten v. McDonald Transit Assoc, Inc.788 F.3d 490, 127 FEP 441 (5th Cir. 2015). Panel: PRADO, Smith, Weiner. Claims on Appeal: ADEA termination and retaliation. Disposition Below: Default judgment granted [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiff's complaint met the "well-pleaded" standard required by Rule 55 and could support a default judgment. Notice of a claim to the defendant for purposes of Rule 55 is informed by the Rule 8 pleading standard. Noting intra-circuit split on whether ADEA plaintiff is required to prove, as an element of the prima facie case, that he was qualified for his position.

Paske v. Fitzgerald, 785 F.3d 977, 126 FEP 1842 (5th Cir. 2015). Panel: CLEMENT, Davis, Jones. Claims on Appeal: 1. Title VII termination (race). 2. Title VII retaliation. First Amendment claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Disciplinary termination for police officer's refusal to follow order, refusal to take drug test, dereliction of duty and conduct unbecoming an officer not comparable to other officers treated more lightly for lesser acts of dishonesty. 2. No record of a protected activity (opposing race discrimination), other than employee's own reference to "Klansman."

Jenkins v. City of San Antonio Fire Dep't784 F.3d 263, 126 FEP 1527 (5th Cir.  2015). Panel: HAYNES, Jones, Crone. Claims on Appeal: ADE and Title VII (race) discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Claims from 2011 untimely because they were filed more than 90 days from receipt of right-to-sue letter (applying There-day presumption of receipt from mailing). Regarding 2012 charge, difference between District Chief of CS&E and District Chief of Inspections modest and denial of transfer was not materially adverse or likely to dissuade a reasonable employee from engaging in protected activity.

McMullin v. Miss. Dep't of Public Safety782 F.3d 251, 126 FEP 1177 (5th Cir. 2015). Panel: JOLLY, Wiener, Clement. Claims on Appeal: Title VII promotion (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact about whether plaintiff applied for vacancy by sending letter before the formal promotion procedure commenced. Lieutenant, a 35-year veteran of the force, denied a promotion and not even interviewed, and a sergeant was promoted instead. In contrast to plaintiff's extensive training experience, black colleague "had a lower rank, seven fewer years of service with the Department, and served as training officer and counselor in four or five patrol schools," plus a disciplinary history that had twice led to his termination, though in both instances he was later reinstated. Department offered vague explanation for why it considered promoting a sergeant over a lieutenant. Department did not meet burden of production: beyond "perfunctorily stat[ing] that it 'has provided a legitimate, non-discriminatory reason for its decision to promote [Sergeant],'" department offered no elaboration.

Squyres v. The Heico Cos., 782 F.3d 224, 126 FEP 1317 (5th Cir. 2015). Panel: HIGGINSON, Stewart (JONES, concurring). Claims on Appeal: ADE and Tex. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute of material fact that employee failed to establish pretext for decision not to renew contract (employee's performance did not warrant renewal at that level of pay or responsibility) and decision to withdraw new contract (because plaintiff did not accept it before deadline). Employer did offer reason at time for retracting offer, reasons were internally consistent, fact that plaintiff had term contract made him different from other at-will employees, and co-workers' age comments could not be imputed to employer. No abuse of discretion in denying continuance of summary-judgment response or leave to amend the complaint.

Etienne v. Spanish Lake Truck & Casino Plaza, LLC, 778 F.3d 473, 126 FEP 13 (5th Cir. 2015). Panel: JOLLY, Higginbotham, Owen. Claims on Appeal: Title VII promotion (color, race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine  dispute of material fact based on direct evidence, where former manager testified that general manager charged with filling the managerial opening-allocated responsibilities to casino employees did not allow "dark skin black person[s to] handle any money at" and told her "on several occasions" that he "thought [plaintiff] was too black to do various tasks at the casino." The panel also rejects the employer's argument that these admissions constituted inadmissible stray remarks; comments explicitly reference color; they were made by person who indisputably had authority over the managerial hiring process; and they are related to the challenged employment decision in that they have to do with who can handle money, a task required of the manager position. Finally, owing to the admission (if believed) that management discriminated on the basis of color, plaintiff bore no duty to prove that the person it promoted was less qualified. Under Title VII, the burden shifted to the employer to disprove a discriminatory motive.

Wooten v. McDonald Transit Associates, Inc., 775 F.3d 689, 125 FEP 1158 (5th Cir. 2015). Panel: PRADO, Smith [WEINER, dissenting]. Claims on Appeal: ADEA discrimination and retaliation. Disposition Below: Default judgment [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Parties agreed that default was properly entered, as a procedural matter, so issue shifted to whether the allegations of the complaint were sufficient to support the judgment or (alternatively) whether they could be supplemented by the prove-up record. Opinion addresses an intracircuit conflict over whether an ADEA retaliation claimant must also allege that he or she "was qualified for his [or her] position." While Holtzclaw v. DSC Commc'ns Corp., 255 F.3d 254, 259 (5th Cir. 2001), expressly included this element, the case law has not been consistent and that this requirement arguably did not survive Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Complaint did not meet the "well-pleaded" standard required by Rule 55 (and Rule 12(b)(6), as well) and could not support a default judgment. "His few factual allegations are inextricably bound up with legal conclusions (e.g., 'discriminated and retaliated' and 'created a hostile work environment' leading to 'constructive[] discharge')," and simply "parrot[s]" the language of the ADEA. While testimony at prove-up hearing filled out the allegations in the complaint but because the pleadings were insufficient, default judgment cannot stand. Pleadings cannot be supplemented by later hearing testimony under FRCP55(b)(2). Case remanded the case with a mandate to dismiss the complaint, with leave to amend.

Martinez v. Texas Workforce Commission, 775 F.3d 685, 125 FEP 1178 (5th Cir. 2014). Panel: Per curiam (King, Jolly, Haynes). Claims on Appeal: Title VII promotion (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee did not create genuine dispute of material fact about pretext, where employer asserted that it chose non-Mexican candidate because she had more experience, including 30 years of state government experience. Plaintiff was not clearly more qualified, as required to present triable issue of fact. Employer can discount general categories of qualifications (years of service) in favor of more specific qualifications (supervisory experience). Use of "subjective" interview not probative of pretext.

Savant v. APM Terminals, 776 F.3d 285, 125 FEP 932 (5th Cir. 2014). Panel: HIGGINSON, Higginbotham, Clement. Claims on Appeal: ADEA discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Memorandum of Understanding and CBA clearly and unmistakably waived union members' rights to a judicial forum: "Any complaint that there has been a violation of any employment law, such as . . . [the] ADEA, . . . shall be resolved solely by the grievance and arbitration provisions of the collective bargaining agreement." The MOU further clarifies that its procedure "shall be a worker's sole remedy for a violation of any antidiscrimination or employment law." Parties could agree to be bound by MOU even if it is not executed.

EEOC v. LHC Group, Inc., 773 F.3d 688, 30 A.D. Cases 1798 (5th Cir. 2014). Panel: PRADO, Benavides, Graves. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine disputes of material fact remain regarding (1) whether employee was promoted to Team Leader, (2) if so, whether employer could reasonably accommodate her disability, (3) whether employer engaged in the required interactive process to seek accommodation, and (4) whether employee was terminated on account of her disability. Employee, an RN, worked as a Field Nurse from 2006 to 2009, at which point -- though timing was disputed -- she was promoted to Team Leader. "Team Leaders manage patient care, schedule field nurses, fill in when nurses are absent, and communicate with patients' doctors and pharmacists." On May 26, 2009, Sones had a grand mal seizure, fired one month later. While some panels had held that the employee in an ADA case must prove that he or she was replaced by a non-disabled individual, the court holds that such proof is not strictly necessary. To establish a nexus, it is sufficient to show simply that "(3) that [the employee] was subject to an adverse employment decision on account of his disability." While driving was an essential function of the Field Nurse position (on which the court affirms summary judgment), there was a genuine dispute about whether driving was necessary for a Team Leader where "many Team Leader tasks were performed in the branch office." Driving duties could have been modified; employer failed to enter into interactive process. Employer also ought to have considered reasonable accommodations for her computer-related duties. To begin with, the impairment might only have been temporary: "Sones contends that her limitations were largely due to an unusually high dosage of anti-seizure medication, which Sones was in the process of tapering." Also, evidence that decisions were driven by disability bias, showing nexus: "We're going [to] have to let you go because you're a liability to our company"; employee told that "if my disability manifested again while I was on the job, [LHC] would be in trouble," and told she was "terminated because I have become a liability to [LHC] because of my disability." That some of these comments appeared in EEOC charge did not render the inadmissible hearsay. Admissible under FRE801(c)(4) and (d)(2). because the ADA requires proof only that disability was a motivating -- not a determining -- factor in the adverse decision, the EEOC's alleged failure entirely to rebut the employer's performance-based reasons for termination was not fatal to the claim. "[A]n employee who fails to demonstrate pretext can still survive summary judgment by showing that an employment decision was 'based on a mixture of legitimate and illegitimate motives . . . [and that] the illegitimate motive was a motivating factor in the decision'" (quoting Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005)).

Perret v. Nationwide Mut. Ins. Co., 770 F.3d 336, 124 FEP 1457 (5th Cir. 2014). Panel: GRAVES, King, Higginson. Claims on Appeal: Texas state law constructive discharge. Disposition Below: Judgment following a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Plaintiffs  presented insufficient evidence that they were subjected to working conditions so hostile that a reasonable employee would be compelled to leave where employees were simply placed on performance improvement plans, depriving them of one quarterly bonus.

EEOC v. Simbaki, Ltd., 767 F.3d 475, 124 FEP 713 (5th Cir. 2014). Panel: CLEMENT, Higginbotham, Higginson. Claims on Appeal: Texas state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Judicially-recognized exceptions to EEOC charge named-party requirement not limited to pro se litigants. Using trade name for corporate employer did not satisfy naming requirement, because charge did not otherwise indicate (in facts or listing of addresses) that the corporate parent was intended to be named. That EEOC sent notice to corporate parent does not effectively add it to charge. On the other hand, district court should have considered whether unnamed party could be added as party under judicially-recognized exceptions; that party was represented by counsel is not reason to ignore exceptions, which is more consistent with practice of liberally construing charges.

Thompson v. City of Waco, TX, 764 F.3d 500, 124 FEP 730 (5th Cir. 2014). Panel: HIGGINSON, Clement [SMITH, dissenting]. Claims on Appeal: Title VII (race) and § 1981 demotion. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Employee stated claim that he was effectively demoted, where he pled more than a loss of some job responsibilities. Despite preserving the title of detective, he would have none of the responsibility for searching for evidence, logging evidence, preparing and signing affidavits, work undercover, be the evidence officer at a crime scene, or be a lead investigator.

Davis v. Fort Bend Cty., 765 F.3d 480, 124 FEP 101 (5th Cir. 2014). Panel: PRADO, Wiener [SMITH, dissenting]. Claims on Appeal: 1. Title VII and § 1981 termination (race). 2. Title VII and § 1981 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Under 42 U.S.C. § 2000e(j), plaintiffs in religious reasonable-accommodation cases must prove that they hold sincere ("bona fide") religious convictions, but not necessarily that activity itself is a religious observance; even a non-religious activity (here, a community service project for the plaintiff's church) might require accommodation if employee has sincere belief that she is compelled to attend event. Employee demonstrated deep and sincere commitment to her church. Employer could not prove as a matter of law that requiring another employee to cover for plaintiff was an undue hardship; indeed, the employer offered no fact-based explanation for its refusal to accommodate, especially where plaintiff had lined up a substitute. 2. Most cited actions were not materially adverse (more meetings, reassigning matters to her staff, reducing her staff). While termination was adverse, plaintiff presented no rebuttal to employer's legitimate, non-discriminatory reason.

Nobach v. Woodland Village Nursing Center, Inc., 762 F.3d 442, 123 FEP 1565 (5th Cir, 2014). Panel: JOLLY, Smith, Southwick. Claims on Appeal: Title VII termination (religion). Disposition Below: Judgment following a jury trial [plaintiff]. Outcome on Appeal:  Reversed [defendant]. Grounds: Plaintiff presented insufficient evidence that employer knew of her religious beliefs before terminating her (for insubordination, for not assisting a patient in praying the Rosary). Employee mentioned religious objection only after she was told that she was terminated. Employer had no duty under Title VII to withdraw termination decision based on information learned after decision was made.

Gorman v. Verizon Wireless Texas, LLC, 753 F.3d 165 (5th Cir. 2014). Panel: JOLLY, Garza, Higginson. Claims on Appeal: Texas state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Requirement to receive a right to sue letter under Texas law is a condition precedent of an action, not jurisdictional (overruling Jones v. Grinnell Corp., 235 F.3d 972 (5th Cir. 2001). Nevertheless, plaintiff's claim failed to present genuine dispute of material fact about causation (fired ten months after protected action, decision maker was unaware of protected activity).

Gilbert v. Donahoe, 751 F.3d 303, 29 FEP 1338 (5th Cir. 2014). Panel: OWEN, Reavley, Prado. Claims on Appeal: Rehabilitation Act discipline. Disposition Below: Dismissal for lack of jurisdiction, Rule 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: CBA clearly and unmistakably assigned Rehabilitation Act claims to arbitration.

Willis v. Cleco Corp., 749 F.3d 314, 122 FEP 513 (5th Cir. 2014). Panel:GARZA, Davis (DENNIS, dissenting in part). Claims on Appeal: 1. Title VII and § 1981 termination (race). 2. Title VII and § 1981 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff failed to challenge district court's holding on appeal that he failed to make out prima facie case, and request for reconsideration tucked into last page of 18-page brief insufficient to preserve issue. 2. Putting plaintiff on disciplinary warning status after he sent a mass email to others about co-worker's family misfortune (overdose on drugs) presented genuine dispute of material fact, where there was record evidence that person who made decision was allegedly told by supervisor that he was "very pissed" at plaintiff for reporting alleged discrimination and "if we have to find a reason ... we are going to terminate that n----r for reporting me and trying to burn my ass."

Odle v. Wal-Mart Stores, Inc., 747 F.3d 315, 122 FEP 532 (5th Cir. 2014). Panel: WIENER, Haynes, Higginson. Claims on Appeal: Title VII pay and promotion (sex). Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: American Pipe tolled limitations period for putative class member in Dukes v. Wal-Mart case. Tolling did not end when the Ninth Circuit issued its mandate on October 20. 2010, because the en banc opinion did not notify her that she could no longer pursue her claim as part of a class; it left that issue up to the district court in remand.

Taylor v. Bailey Tool Mfg. Co., 744 F.3d 944, 121 FEP 1756 (5th Cir. 2014). Panel: HAYNES, Wiener, Higginson. Claims on Appeal: Title VII and § 1981 discrimination and retaliation (race). Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Under state rules, which applied to case before it was removed to federal court, federal-law discrimination claims added to amended complaint did not "relate back" to state law claim that was already time-barred.

Bell v. Thornburg, 743 F.3d 84 (5th Cir. 2014). Panel: PRADO, Stewart, King. Claims on Appeal: Louisiana state law discrimination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court had removal jurisdiction over claim originally filed in state court owing to federal officer removal privilege (28 U.S.C. § 1442(a)(1).). Chapter 13 standing bankruptcy trustee did not qualify as an employer under Louisiana Employment Discrimination Law (LEDL), since he did not employ 20 or more employees.

Williams-Boldware v. Denton County, Tex., 741 F.3d 635, 121 FEP 755 (5th Cir. 2014). Panel: STEWART, Jolly, Smith. Claims on Appeal: Title VII, §§ 1981 and 1983 harassment (race). Disposition Below: Judgment after a jury trial ($170,000 on each of There claims for mental distress, pain and suffering, future suffering) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: There comments (about understanding why some people were hanged and wanting to put on "pointy white hat," comment about "boom-box," and calling plaintiff a "troublemaker"), even if severe or pervasive, adequately corrected as a matter of law: response came within a day, a meeting was granted, alleged harasser was reprimanded and plaintiff no longer had to be supervised by alleged harasser's spouse. Plaintiff waived promotion claim by failing to adequately allege claim to defeat motion to dismiss based upon qualified immunity.

Royal v. CCC&R Tres Arboles, 736 F.3d 396, 120 FEP 1440 (5th Cir. 2013). Panel: JOLLY, DeMoss, Southwick. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee had reasonable belief that she opposed a practice that violated Title VII (sniffing around her areas sex harassment).

Tagore v. Dep't of the Treasury, 735 F.3d 324, 120 FEP 1093 (5th Cir. 2013). Panel: JONES, Dennis, Higginson. Claims on Appeal: 1. Title VII reasonable accommodation (religion). 2. RFRA. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Agency could not accommodate employee's religious observance as Sikh of wearing a kirpan (a ceremonial sword), where it would (a) violate the standards of the Department of Homeland Security; and (2) it poses more than a de minimis burden of agency (agency would have to expect blade; work from home alternative would pose hardship). 2. RFRA imposes "strict scrutiny" test. Because agency had previously allowed employees to carry kirpan, agency has burden of showing why it would deny an exception in this case.

Neely v. PSEG Texas, LP, 735 F.3d 242, 28 A.D. Cases 1325 (5th Cir. 2013). Panel: SMITH, Prado, Elrod. Claims on Appeal: ADA retaliation, discrimination and reasonable accommodation. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not err in instructing jury (and submitting special interrogatory) that it must find that employee is "qualified individual with a disability." ADAAA did not eliminate requirement that employee prove disability. Same charge was proper for reasonable accommodation claim.

EEOC v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 120 FEP 15 (5th Cir. 2013). Panel: ELROD, Stewart, King, David, Dennis, Prado, Southwick, Hynes, Graves, Higginson [JOLLY, Jones, Smith, Demoss, Clement, Owen, dissenting] [JONES, Jolly, Smith, Demoss, Clement, Owen, dissenting] [SMITH, Demoss, dissenting] [DEMOSS, Jones, Smith, dissenting]. Claims on Appeal: Title VII harassment (same-sex male). Disposition Below: Judgment after a jury trial ($201,000 in compensatory damages and $250,000 in punitive damages, compensatory damage award reduced to $50,000) [plaintiff]. Outcome on Appeal: Affirmed except punitive damages [plaintiff]. Grounds: Sufficient evidence to support finding that employee was harassed because of sex. Supervisor referred to employee as "pu--y," "princess," and "fa--ot," as often as "two to There times a day." About two to There times per week-while bent over to perform a task-supervisor approached him from behind and simulated anal intercourse with him. Efforts to raise the issue with foreman at first unavailing; eventually, though, he was transferred away from crew. Investigation of harassment allegations amounted to no more than two ten-minute interviews with supervisor and crew foreman, and resulted in a finding of no harassment. Applying the recent Supreme Court decision, Vance v. Ball State Univ., 133 S. Ct. 2434 (2013), holding that Wolfe - who had hiring and firing authority - was Woods's "supervisor, whose harassing behavior was automatically attributable to the employer. Under Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), plaintiff can satisfy Title VII's because-of-sex requirement with evidence of a plaintiff's perceived failure to conform to traditional gender stereotypes. Despite that Oncale offered There examples of situations where same-sex harassment were likely to occur (one such example: homosexual desire), no one path or scenario is required to prove that same-sex harassment was motivated "because of . . . sex." Unnecessary to prove in such cases that the victim of harassment actually expressed non-traditional gender traits: "[E]ven an employer's wrong or ill-informed assumptions about its employee may form the basis of a discrimination claim. . . . We do not require a plaintiff to prop up his employer's subjective discriminatory animus by proving that it was rooted in some objective truth; here, for example, that employee was not, in fact, 'manly.'" EEOC offered evidence that supervisor thought that employee was not a manly-enough man and taunted him tirelessly. The trial testimony was bolstered by a medical school professor's expert testimony "regarding the nature of same-sex harassment from a psychological perspective." (Court affirmed the admission of such testimony in a harassment case, with the important limitation that the doctor "could testify regarding sexual harassment studies from a psychological perspective but could not offer any opinions regarding the specific facts of the case.") The jury could have found the hostile work environment severe or pervasive. Woods "was a unique and constant target of . . . abuse." Harasser himself "conceded that he called only [employee] 'queer'; he did not recall whether he called anyone else 'fa--ot,' a name he used regarding [the employee] on a consistent basis. This, alongside all of the evidence discussed above . . . -the repeated humping, the reference to oral sex, etc.-is sufficient for a reasonable juror to conclude that Wolfe's harassment was sufficiently severe or pervasive to alter the conditions of Woods's employment. Wolfe hurled raw sex-based epithets uniquely at Woods two-to-There times a day, almost every day, for months on end." Employer was not entitled to a judgment as a matter of law on its affirmative defense (under Faragher/Ellerth) that it took reasonable precautions to correct and prevent harassment by supervisor. Company HR policy had "no specific guidance regarding sexual harassment," and "even if the EEO Statement had included content relevant to sexual harassment-which it did not-Boh Brothers employees were not aware of the policy." Court strikes the punitive damage award - for lack of evidence that the company was aware or at least perceived a risk that it was violating federal civil rights law: "the uncontroverted evidence shows that neither [supervisor] subjectively understood that male-on-male sexual harassment, based on something other than sexual desire, was sufficient to violate federal law." The court remands the case to the district court, therefore, to reconsider the cap that it placed on the compensatory damage award. Finally, court affirmed the entry of injunctive relief because "Boh Brothers failed to demonstrate, by clear and convincing evidence, that future violations of Title VII were not reasonably likely to occur."

Leal v. McHugh, 731 F.3d 405, 120 FEP 44 (5th Cir. 2013). Panel: STEWART, King, Owen. Claims on Appeal:  1. ADEA federal-sector hiring. 2. Title VII retaliation. Disposition Below: 1. Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Plaintiffs properly invoked federal-sector section (29 U.S.C. §633a) Plaintiffs also stated claim where complaint alleged that they were both denied transfer into new position, that a substantially younger employee got one of the positions instead, and one of the decision maker talked about wanting "new blood." Citation of fact that decision was also motivated by personal animus did not plead case out of court. Under Gross, but-for is not synonymous with "sole cause." Even if both plaintiffs could not have been promoted to same position, they might be entitled to attorneys' fees even if they cannot get reinstatement or back pay. Front pay might also be an option. 2. There to nine year gap between protected activity and adverse action dispels any inference of causation.

Feist v. State of Louisiana, 730 F.3d 450, 119 FEP 1724 (5th Cir. 2013). Panel: BENAVIDES, Davis, Jones. Claims on Appeal: 1. ADA discrimination. 2. Title VII and ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. District court erred in holding that accommodation (dedicated parking space) necessarily had to accommodate an essential function of the job; under 42 U.S.C. § 12111(9), on-site parking would appear to be a reasonable accommodation to make the facility more accessible. 2. Five-month gap between protected activity and termination insufficiently close to raise inference of retaliation. Moreover, employee did not rebut legitimate, non-discriminatory reason (poor performance). Co-worker who was involved in same project and made same error was also terminated.

Shirley v. Precision Castparts Corp., 726 F.3d 675 (5th Cir. 2013). Panel: WEINER, Dennis, Owen. Claims on Appeal: ADA termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee could be terminated within terms of 42 U.S.C. § 12114(b) where "currently engaging" in use of illegal drugs can include recent use, and being fired for failing out of drug treatment a second time falls within this provision. He did not fall in drug rehabilitation safe harbor of 42 U.S.C. § 12114(b), because employee must demonstrate that they remained drug-free for a significant period of time, and he was drug-free for only eleven days, and was still using prescription drugs (an opiate pain killer and Vicodin).

Mumfrey v. CVS Pharmacy, 719 F.3d 392 (5th Cir. 2013). Panel: PRADO, Reavley, Elrod. Claims on Appeal: Tex. state law retaliation. Disposition Below: Judgment after a bench trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Because under the state of Texas law when the original complaint was filed in state court, plaintiff did not specify a monetary amount in the ad damnum (because that practice was prohibited). Because first amended complaint specified amount ($3.575 million) that was in excess of jurisdictional minimum for removal, it was that pleading that triggered 30-day removal period. As there was no possibility of recovery against individual defendants, they were correctly dismissed as improperly joined and complete diversity existed. Judge could have concluded that employer proffered legitimate, non-discriminatory reason for termination (refusing to verify prescription on final review), where reason was documented (including with video file), other employees who were not terminated were not comparable because their job duties were different, they were disciplined for different kinds of offenses, and plaintiff had worse prior disciplinary history. Employee cannot prove claim entirely by "temporal proximity" where the rest of the evidence points to employee having committed serial violations of workplace rules prior to termination.

EEOC v. Houston Funding II., 717 F.3d 425, 118 FEP 891 (5th Cir. 2013). Panel: JOLLY, Graves [JONES, concurring]. Claims on Appeal: Title VII/PDA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Discrimination against woman who is lactating or expressing breast milk violates the Pregnancy Discrimination Act provisions of Title VII.

Juino v. Livingston Parish Fire Dist. No. 5., 717 F.3d 431, 118 FEP 885 (5th Cir. 2013). Panel: STEWART, Smith, Wiener. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: "Volunteer" firefighter is not an "employee" for Title VII purposes. Adopting Threshold- remuneration test (noting split of circuits), requiring that there be some payment for services that is not purely incidental before applying common-law master-servant test. Here, firefighter received $2.00 per fire and life insurance (plus uniform, badge and training), which court deemed incidental as a matter of law.

Haire v. Board of Supervisors of Louisiana State College., 719 F.3d 356, 118 FEP 917 (5th Cir. 2013). Panel: JOLLY, Garza, Owen. Claims on Appeal: 1. Title VII and La. state law promotion (sex). 2. Title VII and La. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Employee made out a prima facie claim of discrimination (she was denied a promotion in favor of a male candidate who did not even meet the posted job requirements). GDMF about university's explanation that plaintiff was passed over due to her violation of police procedure in prior case she worked on at department. Plaintiff provides evidence that she was following a lawful order from her supervisor and department had no formal written procedure that clearly prohibited her from obeying her supervisor's command to file a disputed report. "[What followed from [that] incident was [alleged by plaintiff to be] all a charade that LSU undertook to cover its tracks in the sex discrimination suit anticipated. By papering [plaintiff's]s files with disciplinary write-ups, it could protect itself with a sham justification for not promoting a female applicant who was more qualified." Also GDMF whether department reasonably believed plaintiff was not following a lawful order by superior, where superior admitted in deposition had "she had not obeyed it, she could have been disciplined by the department." Another officer's own biased motives infected the decision-making process, making his superior - the Chancellor who made the promotion decision - a "cat's paw" under the rubric of Staub: supervisor (who received promotion offer plaintiff) "played a role in the investigation," "was responsible for parts of the Coaching Letter, and reported to the formal decision maker, Chancellor Martin, about the 'normal procedure' within the LSUPD with respect to entering information into the police report posting system . . . . Thus, the Chancellor, who was new to LSU at the time and unfamiliar with LSUPD policy, obtained from Rabalais what the 'normal procedure' was and then attributed wrongdoing to Haire for violating what he understood, from Rabalais's description, that procedure to be." 2. GDMF over the retaliation claim. There was evidence of retaliatory motive: "Sharon Gonzalez, who worked in LSU Risk Management alongside Haire and Durham, testified that Haire is 'alienated from administration at the police department,' that 'Rabalais doesn't talk to her,' and that the situation has 'gotten worse since this lawsuit.' Gonzales further said that Rabalais 'demeans' Haire and 'keeps her out of meetings.' In sum, Gonzalez felt that LSU is 'taking things away from [Haire].' Haire has also become ineligible for overtime pay, which has an effect on her income." There was evidence that the denial of promotion coincided with Haire's discrimination charges, thus causation: "Rabalais was named interim Chief in August 2009, Haire filed her EEOC charge on September 29, 2009, and Rabalais was named permanent Chief in January 2010. This timing, coupled with the gradual changes in Haire's duties noted by Sharon Gonzalez, is enough to satisfy the [causation] prong."

Miller v. Raytheon Co., 716 F.3d 138, 118 FEP 212 (5th Cir. 2013). Panel: JONES, Garza, Prado. Claims on Appeal: ADE and Tex. state law termination. Disposition Below: Judgment after a jury trial ($17 million, remanded to $759,758 back pay/benefits); $100,000 mental anguish, $186,628 front pay, and $488,437 attorney fees) [plaintiff]. Outcome on Appeal: Affirmed but damages remitted [plaintiff]. Grounds: There was sufficient evidence to support the verdict, both for liability and for proof of "willfulness" to support liquidated damages under the ADEA (resulting in double damages). Company made erroneous statements in EEOC position statement, employee was discourage from applying elsewhere in company (violating ordinary procedures), age-53 plaintiff fired while younger coworkers (34 and 46) were saved. As remedy, boost in the plaintiff's retirement pay - an enhanced benefit -constituted front pay and thus should have been decided by the judge, so that relief is vacated and remanded. the benefit constituted front pay, and remanded the issue back to the trial judge. Moreover, any claim for present damages based on enhanced pension benefits he would not receive until up to fifteen years later would have had to be discounted to present value in order to represent employee's actual loss. Nonetheless, court "decline[s] to set out an inflexible rule on the treatment of 'pension benefits' as damages or front pay under ADEA. The term is ambiguous. In some cases, it refers to employer contributions to a 401(k) plan; in others, to the right to receive certain benefits in the future; in others, the accrual of seniority entitlements to enhanced payments." The $100,000 emotional distress award made under Texas state law is vacated. While plaintiff testified that layoff made him feel "sucker-punched' and caused him chest pain, back pain, sleep disturbances, and emotional problems," this was not adequately substantiated by client's own "self-serving" testimony was insufficient to support even the remitted award, e.g., no expert medical or psychological testimony of the extent of his mental anguish, nor did plaintiff seek the assistance of any health care professional or counselor. Court correctly awarded him the higher of the two statute's recovery (liquidated damages under ADEA). Court appropriately capped punitive award at $300,000 under state law. No prejudgment interest under ADEA when employee has already received liquidated damages. Front pay period of one year was not error, but claim remanded because it was based on entire damage award, which has now been partially vacated and remanded. Discounting hourly rates of counsel 30% to $577.50, $542.50 and $280 not abuse of discretion.

Toy v. Holder, 714 F.3d 881, 118 FEP 229 (5th Cir. 2013). Panel: SMITH, Reavley, Jolly. Claims on Appeal: Title VII discrimination (sex) and retaliation. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employment excluded from Title VII under 42 U.S.C. § 2000-2(g) national security exception, barring review of decision barring contract employee to FBI from having "access to the premises."

Raj v. Louisiana State Univ., ., 714 F.3d 322, 118 FEP 20 (5th Cir. 2013). Panel: HIGGINSON, King, Clement. Claims on Appeal: ADEA, Title VII, EPA, §§ 1983 and 1985, and La. state law discrimination and retaliation. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(1) and (6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: All claims except EP and Title VII barred by Eleventh Amendment immunity. Plaintiff was not required to plead "prima facie" case in complaint, but failed to plead facts that would make it plausible that he treated adversely because of race or national origin.

Carter v. Luminant Power Services Co., 714 F.3d 268, 117 FEP 1701 (5th Cir. 2013). Panel: HIGGINBOTHAM, King, Clement. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee who established that retaliation was a motivating factor in disciplinary action, but employer prevailed on "same decision" defense, not entitled to fees or costs under 42 U.S.C. § 2000e-5(g)(2)(B)(i).

Antoine v. First Student, Inc, 713 F.3d 824, 117 FEP 1710 (5th Cir. 2013). Panel: STEWART, DeMoss. Graves. Claims on Appeal: Title VII reasonable accommodation (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented genuine dispute of material fact about whether employer failed to accommodate his Seventh-day Adventist faith. A seniority-based system permitting employees to choose their own shifts, combined with an employer's offer to approve any voluntary shift swaps that the employee enters into in a workplace where swapping is regular and accepted, constitutes a reasonable accommodation. Issues include: 1) whether employer provided accommodation to arrange a voluntary shift swap; and 2) whether there was a preliminary agreement by the local union to consider a memorandum of understanding or other "side agreement" that would have permitted a voluntary shift swap under the CBA in employee's case. Employer claimed that it was solely Antoine's responsibility to find a replacement driver, while employee asserts that employer offered to find a substitute driver and then failed to do so. Employer also contends that the CBA generally prohibits voluntary shift swaps, but that it intended to circumvent this general prohibition if employee first found someone to take his shift. Yet employee asserts that employer never pursued a preliminary agreement from the union to consider any alterations to the CBA in order to accommodate him. Panel also disaffirms suggestion in district court opinion that accommodating employee would be undue hardship, where CBA provides a procedure for swapping routes that does not require a forced, unilateral reassignment by employer, i.e., the voluntary route change provision in the CBA.

Klein v. Nabors Drilling USA, 710 F.3d 234 (5th Cir. 2013). Panel: PRADO, Jones, Garza. Claims on Appeal: ADE and La. state law termination. Disposition Below: Arbitration not compelled [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Formation issue governed by state law, with no preference for arbitration. Although arbitration agreement appears to allow alternative methods of dispute resolution besides arbitration, policy unmistakably waived judicial forum. Legend that policy would not restrict employee's rights under state and federal law referred only to substantive, not procedural, rights.

Milton v. Texas Dept. of Criminal Justice, 707 F.3d 570 (5th Cir. 2013). Panel: JOLLY, Prado, Higginson. Claims on Appeal: ADA reasonable accommodation. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee with sensitivity to perfumes/scents did not demonstrate that she was substantially limited in the major life activity of breathing, because condition was easily mitigated (in case brought under pre-ADAAA standards).

Autry v. Fort Bend Ind't Sch. Dist., 704 F.3d 344, 116 FEP 1582 (5th Cir. 2013). Panel: HIGGINBOTHAM, Owen, Southwick. Claims on Appeal: Title VII hiring (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed, but fees for defendant vacated [defendant]. Grounds: Employer proffered legitimate, nondiscriminatory reason for hiring white applicant (application process screened 15 applications, met with top applicants that included blacks and whites). Plaintiff presented no comparative evidence of credentials of successful candidate, to establish that plaintiff was "clearly better qualified." No record of procedural irregularities. Comment by one decision maker that President Obama's election would "ruin th damn country" was political, not racial, in nature. Comment about President Obama and fried chicken has racial connotations, but was insufficient to rebut otherwise exhaustive record on summary judgment. Claim did not reach "frivolous" level, so fees vacated.

Quesada v. Napolitano, 701 F.3d 1080, 116 FEP 1158 (5th Cir. 2012). Panel: HIGGINBOTHAM, Owen, Southwick. Claims on Appeal: Title VII settlement. Disposition Below: Settlement enforced [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion finding that attorney had authority to accept settlement agreement, where such authority is presumptive, and there was no contemporaneous evidence that he rejected the offer until after it was already accepted.

Reed v. Neopost USA, Inc., 701 F.3d 434, 116 FEP 815 (5th Cir. 2012). Panel: ELROD, Stewart, Garza. Claims on Appeal: 1. ADE and Tex. State law termination. 2. ADEA harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff did not create genuine issue of material fact over whether he was terminated for falsifying customer surveys, regardless of whether court applies ADEA but-for standard of Texas law "motivating standard" test. Denial of wrongdoing does not create a genuine issue. Age biased comments by co-worker not probative of decision maker's views. 2. Occasional references to plaintiff's age by co-workers ("pops," "old man," "grandpa") not severe or pervasive.

Cannata v. Catholic Diocese of Austin, 695 F.3d 354 (5th Cir. 2012). Panel: DENNIS, Davis, Haynes. Claims on Appeal: ADE and ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Music director/pianist for Roman Catholic parish was within "ministerial exception" under Hosanna-Tabor. Court overrules former There-part test applied by Starkman v. Evans, 198 F.3d. 173 (5th Cir. 1999).

Ibarra v. United Parcel Service, Inc., 695 F.3d 354 (5th Cir. 2012). Panel: HIGGINBOTHAM, King, Haynes.  Claims on Appeal: Title VII harassment (race). Disposition Below: Arbitration compelled [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Only collective bargaining agreement that clearly and unmistakably requires union members to arbitrate statutory civil rights claims could waive the right of individual members to bring civil actions. Exclusive grievance process of the CBA did not encompass statutory civil rights claims even though it provides that company agrees "not to discriminate against any individual with respect to hiring, compensation, terms or conditions of employment because of such individual's race, color, religion, sex, sexual orientation, national origin, physical disability[,] veteran status or age in violation of any federal or state law." Deemed significant that (1) the article itself did not mention Title VII or require that such legal claims be grieved; and (2) the CBA included no express waiver of the right to bring a civil action.

Filer v. Donley, 690 F.3d 643, 115 FEP 1307 (5th Cir. 2012). Panel: JONES, Prado, Southwick. Claims on Appeal:Title VII harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant].  Grounds: Employee, a dual-status Air Reserve Technician (full-time civilian employee also serving in the Air Force Reserve), failed to exhaust federal-sector procedures for claims that swastikas were displayed in workplace for eleven days, and whites were given preferential treatment. As for only claim that was properly exhausted (about noose discovered in workplace), it is covered by Feres doctrine. Plaintiff was on active duty at time, functioning in military environment and litigation of claim would center on adequacy of Air Force's personnel management.

EEOC v. Service Temps Inc., 679 F.3d 323 (5th Cir. 2012). Panel: HIGGINBOTHAM, Smith, Higginson. Claims on Appeal: ADA employment agency failure to refer. Disposition Below: Judgment following a jury trial (injunctive relief, $14,400 back pay, $20,000 compensatory damages for emotional pain and suffering, $68,800 punitive damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: The

EEOC v. v. Boh Bros. Const. Co., LLC, 689 F.3d 458, 115 FEP 946 (5th Cir. 2012). Panel: JOLLY, DeMoss, Stewart. Claims on Appeal: Title VII harassment (same sex). Disposition Below: Judgment following a jury trial ($200,000 in compensatory damages and $250,000 in punitive damages, reduced to $50,000 cap) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Because the only evidence of supposedly non-stereotypical masculine behavior in the record is employee's use of "Wet Ones" in the toilet, while all other insults were misogynistic and homophobic epithets, behavior not shown to be directed at employee because of sex. Reserving for future case whether sex-stereotyping is a cognizable form of same-sex harassment under Title VII.

Love v. Tyson Foods, Inc., 677 F.3d 258, 114 FEP 1189 (5th Cir. 2012). Panel: KING, Weiner [HAYES, dissenting]. Claims on Appeal:Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff judicially estopped by filing of Chapter 13 petition that did not mention lawsuit as asset of estate.

Turner v. Kansas City So. RR Co., 675 F.3d 887, 114 FEP 1044 (5th Cir. 2012). Panel: DENNIS, Southwick [OWEN, dissenting]. Claims on Appeal:1. Title VII termination (race - two employees). 2. Title VII termination (race - two employees). Disposition Below: 1. Summary judgment [defendant] 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiffs fail to produce prima facie evidence that two plaintiffs were substantially related to white workers for comparative purposes for discipline. 2. The employer originally named (and produced for depositions) the individuals said to have been the decision makers in each disciplinary action, yet when deposed these witnesses actually denied involvement in these decisions. Only four years after the decisions were made, the employer finally produced a single, individual decision maker (Mr. Thorness, General Superintendent of Transportation), but by this point the witness could not recollect the precise details of these disciplinary actions. Two employees challenged the initial decisions to discipline (not the eventual resolution on appeal), and that in each case they were able to identify a white employee who was either jointly involved in the incident or committed a violation of equivalent severity. (In dicta, EEOC held not to timely raise another, more succinct argument under the "same incident" test - McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976) - that where a white employee receives lesser discipline than a black employee for the same accident, the employee establishes a prima facie case.) In making out the prima facie case, incidents need not be identical, and "similitude of employee violations may turn on the 'comparable seriousness' of the offenses for which discipline was meted out and not necessarily on how company codes an infraction under its rules and regulations.'" Plaintiffs were able to establish that their disciplinary histories were comparable to their white counterparts. Under Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), employer was required to produce admissible evidence of a valid, non-racially biased reason for the actions. But in the absence of testimony by the decision maker about the reasons for each decision, there was no such evidence. Avowed decision maker's declaration did not meet the Burdine burden of production. "A declaration from someone who acknowledges he may not even have been the decision-maker and makes no effort to re-evaluate what he would have done at the time based on what would have been before him, produces nothing to support the employer's evidentiary burden." Although disciplinary files included other documents discussing the circumstances of each incident, none bore on the admitted decision maker's actual rationale for why he made disparate decisions for white and black employees.

Nassar v. Univ. of Texas Southwestern Med. Ctr., 674 F.3d 448, 114 FEP 986 (5th Cir. 2012). Panel: REAVLEY, Elrod, Haynes. Claims on Appeal: 1. Title VII retaliation. 2. Title VII constructive discharge (race). Disposition Below: 1. Judgment after a jury trial ($436,167 back pay, $3 million compensatory, capped at $300,000) [plaintiff]. 2. Judgment after a jury trial [plaintiff]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Jury could have held that blocking employee's transfer was motivated by retaliation instead of provision of contract between institutions. Case remanded for retrial on damages. Because the constructive discharge claim carried a substantial back-pay remedy, and jury's award was vacated, new trial required. Court approved setting back pay by comparing his employment to the lost opportunity at the second hospital, rather than the first. "By retaliating against Nassar and blocking his job with [the second hospital], UTSW deprived Nassar of the pay he otherwise would have earned there. Therefore, to make Nassar whole, the back pay ought to be measured against what Nassar would have made at [the second hospital]." The court also holds that lost honouraria income is not recoverable as back pay, because it was not (strictly speaking) income, but it could be recovered under 42 U.S.C.§1981a(b)(2), as "future pecuniary losses." 2. Harassment that merely constituted "hostile work environment" without aggravated circumstances does not support verdict for constructive discharge.

Hernandez v. Yellow Transportation, Inc., 641 F.3d 118, 112 FEP 417 (5th Cir. 2011). Panel: SOUTHWICK, Clement, Haynes. Claims on Appeal: 1. Title VII retaliation. 2. Title VII harassment (race). 3. Title VII termination (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Four incidents of harassment, two comments directed at each of the two plaintiffs, over a decade not sufficient to be severe or pervasive; other incidents of hostility not shown to be racially motivated. Harassment of African-Americans not probative of hostility toward Latinos, such as plaintiffs. White plaintiff did not establish "associational" harassment because there was no record of a personal relationship between that plaintiff and Latino employees. 2. Co-worker harassment cannot be imputed to employer under a retaliation theory. Employee also failed to establish causal link between protected activity and alleged act of retaliation (termination and reinstatement, without back pay). 3. Although terminated employee was assumed to have established prima facie case of discrimination, there was insufficient evidence of pretext: no similarly situated persons (fired for misconduct), no evidence that co-worker animus was related to final decision, no evidence that knife-wielding incident related to plaintiff (that occurred years after termination) was in any way connected to protected activities.

Cherry v. Shaw Coastal, 668 F.3d 182,114 FEP 320 (5th Cir. 2012). Panel: DAVIS, Higginbotham, Stewart. Claims on Appeal: 1. Title VII retaliation. 2. Title VII harassment (sex). Disposition Below: 1. Judgment as a matter of law [defendant] 2. Judgment as a matter of law [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Decline in overtime occurred throughout department, not targeted at employee, thus it did not constitute an adverse employment action. 2. Employee proved that same-sex harassment was sexual in nature, and severe or pervasive, where contact by supervisor included (1) repeated requests that plaintiff remove his clothes on the job; (2) brushing and touching (including once on plaintiff's buttocks, and multiple times in his hair); (3) propositioning and other explicit sexual comments via text messages. Employer could be held liable where complaints at first led to no response and, while the employee was eventually allowed to transfer, an investigation led to no discipline of the harasser. Punitive damages properly denied: "Shaw Coastal had a policy in place that provided a clear procedure for addressing sexual harassment issues, and although its response here was far from prompt, it did ultimately respond to Cherry's complaints by ensuring that he and Reasoner would no longer be on the same survey team."

Vaughn v. Woodforest Bank, 665 F.3d 632,114 FEP 118 (5th Cir. 2011). Panel: DEMOSS, Jones, Davis. Claims on Appeal: Title VII termination (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented genuine issue of material fact about whether "Unsatisfactory Conduct" report and subsequent termination was motivated by the employee's race (white). The employee was alleged to have engaged in "inappropriate comments" that allegedly "created a perception of racial discrimination and uncomfortable work environment due to lack of confidentiality." The comments primarily concerned the inauguration of Pres. Obama, the employee's belief that Pres. Obama converted from Islam and expression of hope that "if anything were to happen to him it would be done by 'his own people' rather than 'Americans.'" Employee testified that her's were not the only raced-oriented comments made about the inauguration, but she was the only one terminated. Other facts in the record included that (1) the source of all of the complaints was a single, African-American employee, who had been passed over twice for promotions (once by the plaintiff, herself); (2) the regional manager directed Vaughn to pay an African-American one dollar an hour more than an equivalent white employee; and (3) Vaughn was instructed not to discipline an African-American employee who committed insubordination, i.e., "not following instructions, arriving late to work or not coming in at all, writing bad checks, and berating a fellow retail banker in front of customers."

Griffin v. United Parcel Service, Inc., 661 F.3d 216, 25 A.D. Cases 551 (5th Cir. 2011). Panel: STEWART, Jones, Southwick. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee with diabetes was not substantially limited in the major life activity of eating; condition required modest changes in diet. Alternatively, employer not shown to have failed to provide reasonable accommodation; interactive process was still underway when employee retired.

Wesley v. General Drivers Warehousemen & Helpers Local 745, 660 F.3d 211 (5th Cir. 2011). Panel: PRADO, Reavley, Smith. Claims on Appeal: § 1981 duty of fair representation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Court announces elements of claim of racially-discriminatory breach of the duty of fair representation: "First, he must show that he was subjected to an adverse union action. Second, he must show that he was treated less favorably by the union than employees of different races. Third, because this claim is brought under § 1981, he must prove that this differential treatment arose from purposeful racial discrimination." There was no adverse action here. Employee had several opportunities to speak in the hearing, during which he also raised examples of what he perceived to be unequal treatment of employees based on race. While employee may have preferred union to address racial discrimination more directly, employee wqs able to raise issue at hearing.

Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 113 FEP 490 (5th Cir. 2011). Panel:SOUTHWICK, Jones [HIGGINBOTHAM, dissenting]. Claims of Appeal:  ADEA termination. Disposition Below: Judgment after a jury trial ($53,370 back pay, reduced by the district court to $48,000) [plaintiff]. Outcome on Appeal:  Reversed [defendant]. Grounds: Plaintiff filed EEOC charge 63 days after her last day of work but some nine months after she was informed of her original termination. District court held that 180 days limitations was either measured from her final day of work, or was equitably tolled (or estopped) because employer's actions "induced" employee not to file a charge until after the limitations period had expired. But a termination claim accrues at the time an employee learns of plan to terminate. Issue of whether temporary, indefinite employment tolls the limitations period issue of first impression by circuit. The panel finds, as a matter of law, that the temporary employment did not prevent the running of limitations - the claim still accrued when Phillips learned that her permanent employment would end: "Phillips' rehiring for a temporary position on August 6 may have created a glimmer of hope of permanent reemployment if she performed well, yet may have cast a shadow of doubt about her chances of being rehired if she filed an EEOC claim. The difficult choice that may have faced her would not have altered the finality of the clear and adverse action of her termination from permanent employment." Panel rejects the alternative of equitable tolling because Phillips possessed all of the information she needed to file a charge in June of 2007. "The finality of Leggett's decision was never in doubt. Phillips' recall was temporary and not for permanent employment. The nature and status of Phillips' temporary employment may have created an awkward situation for filing an EEOC claim, but it was not ambiguous."

Dulin v. Bd. of Commissioners of the Greenwood LeFlore Hosp., 657 F.3d 251, 113 FEP 524 (5th Cir. 2011), per curiam order vacating, 646 F.3d 232, 112 FEP 1203 (5th Cir. 2011). Panel: CLEMENT, Prado [BARKSDALE, dissenting in part]. Claims on Appeal: § 1981 termination. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Board attorney, who claimed he was fired for racial reasons (he is white) failed to present sufficient evidence that race was the determinative factor, where he did not rebut Board's rationale (i.e., dissatisfied with his legal work). That board members did not previously inform him of complaints did not raise an inference that this explanation was false. Comments by non-decision makers not probative. Comments by board members did not indicate racial motive. No evidence of clearly-superior qualifications vs. replacement attorney. Newspaper story about board meeting was inadmissible hearsay.

Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 113 FEP 353 (5th Cir. 2011). Panel: STEWART, Smith [Garwood, deceased]. Claims on Appeal: 1. ADEA harassment. 2. Title VII harassment (religion). 3. ADE and Title VII constructive discharge. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1. In issue of first impression, court recognizes theory of age harassment, where plaintiff establishes that he or she is in the protected age group; was subjected to harassment, either through words or actions, based on age; the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and there exists some basis for liability on the part of the employer. Plaintiff presented genuine issue of material fact about harassment where employee was subjected to almost daily, profane comments about his age and physically Threatening actions by his supervisor, including an assault in front of a group of other employees. 2. Genuine issue of material fact that harassment was also motivated by religion, where supervisor - in addition to making hostile comments about age - also regularly abused employee because of his Christian religious faith: "go to your God and [God] would save your job;" "God would not put food on your plate;" and "[G]o to your f****ng God and see if he can save your job." 3. Genuine issue of material fact that comments and physical Thereats constituted constructive discharge, where "in the eight-week span between the July 3rd incident and his resignation from Best Chevrolet, tensions escalated into a physical altercation in front of others, which precipitated [plaintiff's] departure from Best Chevrolet. The record illustrates a difficult - and at times volatile - relationship [plaintiff] shared with [supervisor] Clay. Unhappy in the Used Cars department, Dediol sought to maintain his employment with Best Chevrolet, but in a different department. When this request was rejected, the situation erupted, eventually compelling Dediol to resign."

McClain v. Lufkin Industries, Inc., 649 F.3d 374, 112 FEP 1665 (5th Cir. 2011). Panel: JONES, Clement [DENNIS, concurring in the judgment]. Claims on Appeal: Title VII disparate impact (race). Disposition Below: Attorney's fee petition reduced to local rate [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred by holding that it was required to hold Oakland, CA firm that co-counseled in complex class action to lower Eastern District of Texas hourly rates. Although the presumptive market rate is that of the community where the services are provided - the local forum rate - "where, as here, abundant and uncontradicted evidence proved the necessity of . . . turning to out-of-district counsel, the co-counsel's 'home' rates should be considered as a starting point for calculating the lodestar amount. Also, under Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662 (2010), court not required to compare plaintiff's fee to those of the defense lawyers in the same case. District court did not clearly err in deciding not to reduce the number of hours claimed due to partial-success on the merits, and it correctly calculated the back pay award.

Black v. Pan American Laboratories, 646 F.3d F.3d 254, 112 FEP 1185 (5th Cir. 2011). Panel: CLEMENT, Jones [DENNIS, dissenting in part]. Claims on Appeal: Title VII and Tex. state law termination (sex) and retaliation. Disposition Below: Judgment after a jury verdict ($200,000 compensatory damages for each claim; $150,000 in back pay for each claim; and a total of $2,400,000 in punitive damages; reduced to $150,000 back pay for both claims total, compensatory/punitive damages capped at $200,000) [plaintiff]. Outcome on Appeal: Affirmed, with remand to calculate back pay. Grounds: There was sufficient evidence to support liability on the quote and termination claims. Managers involved in decisions had made sexist comments (women "get hired on, get married and/or get pregnant and they leave," plaintiff did not need to worry about her quota because she was not the "bradwinner anyway") and sexually humiliating comments (commenting on her body, propositioning her). Back pay on the quota claim vacated and remanded. Because the employee's theory at trial was that she was subjected to a higher quota than a comparable male, her back pay award should ought to have been calculated based on difference between her actual commissions and the commissions that she would have earned with the quota of a comparable male salesperson. The jury's award of $150,000, was calculated based on the difference between plaintiff's actual commissions and what her commissions would have been if she had zero quota. Panel affirms district court's application of the § 1981a(b) and Texas law compensatory and punitive damage caps to the total of her claims rather than to each claim. It held, consistent with the D.C., Sixth, Seventh and Tenth Circuits, "that the plain language of § 1981a(b)'s cap applies to each party in an action."

Barker v. Halliburton Co., 645 F.3d 297, 112 FEP 1151 (5th Cir. 2011). Panel: GARZA, Reavley, Southwick. Claims on Appeal: Title VII loss of consortium. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Loss of consortium not recognized under Title VII.

King v. University Healthcare System, L.C., 645 F.3d 713, 112 FEP 973 (5th Cir. 2011). Panel: GARZA, Jones, Jolly. Claims on Appeal: EPA claim. La. state law wage payment claim (not discussed here). Disposition Below: Judgment after a jury trial ($32,700 back pay, $32700 liquidated damages). Outcome on Appeal: Affirmed [plaintiff]. Grounds: Court did not abuse discretion by (1) excluding evidence emails exchanged between parties in course of attempting to settle (FRE 408); or (2) barring discovery of emails on defendant's privilege log. On the motion for judgment as a matter of law, there was sufficient evidence that both doctors (male and female) did equal work. It also holds that the employer did not establish, as a matter of law, the affirmative defense of "any other factor other than sex." "UHS's evidence supporting its affirmative defense consisted chiefly of testimony of UHS employees who stated that [the male doctor] was paid the bonus because they believed he was returning. The jury's broad authority permitted it to conclude that the testimony offered by UHS was not credible and that UHS simply failed to carry its burden." The panel also affirms the district court's finding that the employer did not meet its burden of "good faith" - jury and that an award of liquidated damages was mandatory. The case is remanded for a recalculation of attorneys fees.

Granger v. Aaron's Inc., 636 F.3d 708, 111 FEP 1448 (5th Cir. 2011). Panel: SOUTHWICK, Davis, Smith. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Open issue whether charges filed with OFCCP were deemed cross-filed with EEOC under a Memorandum of Understanding, even where OFCCP lacked jurisdiction. In any event, denial of summary judgment could be affirmed on equitable tolling grounds. Parties disputed standard of review on appeal, de novo or abuse of discretion; intra-circuit split on this issue discussed. Under any standard, tolling allowed where employees filed charges with OFCCP within 300 days, and they and their lawyers reasonably believed because of their multiple contacts with the agency that they filed in the correct office (government did not correct error for a long time). No prejudice to employer by misfiled charge.

EEOC v. Philip Services Corp., 635 F.3d 164, 111 FEP 1189 (5th Cir. 2011)). Panel: DEMOSS, King, Prado. Claims on Appeal: Action to enforce conciliation agreement. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: EEOC cannot bring action to enforce oral conciliation agreement because statute does not carve out any exceptions to prohibition of disclosure of conciliation material, 42 U.S.C. § 2000e-5(b).

Harris v. Boyd Tunica, Inc., 628 F.3d 237, 111 FEP 60 (5th Cir. 2010). Panel: PRADO, Weiner, Owen. Claims on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Fact that lawyer's paralegal mis-entered the date when the complaint had to be filed was not a basis for equitable tolling of the 90-day limitations period after the right-to-sue letter was received.

Jones v. LaHood, 625 F.3d 827, 110 FEP 1139 (5th Cir. 2010). Panel: Per curiam (DeMoss, Benavides, Elrod). Claims on Appeal: Title VII and §1981 retaliation. Disposition Below: Dismissal for lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: administrative procedure and judicial review for failed applicant to be Designated Engineering Representative was intertwined with merits of a Federal Aviation Administration order, subject exclusively to 49 U.S.C. § 46110(a). Citing Ligon v. LaHood, 614 F.3d 150, 109 FEP 1743 (5th Cir. 2010).

Jackson v. Watkins., 619 F.3d 463, 110 FEP 257 (5th Cir. 2010). Panel: Per curiam (DeMoss, Elrod, Haynes). Claims on Appeal: Title VII, §1981 and Texas law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to rebut one of the proffered reasons for termination (supervisor's "overwhelmingly negative" experience with plaintiff). Employee, under circuit law, to defeat summary judgment was obliged to present a genuine issue of material fact about each of the employer's nondiscriminatory reasons. Employed failed to preserve Rule 56(f) denial (for continuance to allow deposition of same supervisor).

Ligon v. LaHood, 614 F.3d 150, 109 FEP 1743 (5th Cir. 2010). Panel: JOLLY, Smith, Owen. Claims on Appeal: ADEA demotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Remand for dismissal on subject-matter jurisdiction grounds [defendant]. Grounds: Decision of FAA to reduce the authority of a Designated Engineering Representative for any reason is subject to challenge only as an administrative review in a federal court of appeals, 49 U.S.C. § 46110(a), so district court lacked jurisdiction to adjudicate claim under the ADEA. Claim challenging the decision for age discrimination inextricably intertwined with the merits and procedures of the FAA order.

Moss v. BMC Software, Inc., 610 F.3d 917, 109 FEP 1173 (5th Cir. 2010). Panel: STEWART, Benavides, Southwick. Claims on Appeal: ADEA hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to present genuine issue of material fact regarding pretext. Although successful, younger applicant for Staff Legal Counsel position had fewer years of experience, she had more relevant experience with Original Equipment Manufacturer (OEM) licensing, Alliance and Development Outsourcing agreements. Plaintiff advanced no evidence that he had experience with such transactions. His deposition testimony revealed a lack of substantive knowledge in this field. Although employer's reliance on previously unarticulated job requirements would raise a genuine issue of material fact as to pretext, these responsibilities were listed in the job announcement, the company's internal job requisition form and testimony of executives. District court properly applied Ash v. Tyson Foods standard, even though it was misstated in the summary judgment opinion. Plaintiff's argument that he was given a shorter interview than other candidates did not imply discrimination. Statement that executive wanted a lawyer at a "more junior level" was not probative of age discrimination, where in context this was meant to refer to an entry-level position.

Kemp v. Holder, 610 F.3d 231, 23 A.D. Cases 513 (5th Cir. 2010). Panel: Per Curiam [King, Barksdale, Elrod]. Claims on Appeal: AD and Rehabilitation Act termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: ADAAA not retroactive. Employee's hearing impairment not a "disability," where employee admitted that he was not substantially limited in any major life activity when he wears his hearing aids. As for "regarded as "claim, plaintiff did not present genuine issue of material fact about whether the two joint employers in this case believed that plaintiff was significantly restricted in his ability to hear or to perform in government or law enforcement jobs when he was wearing his hearing aids; employers hired him knowing that he used assistive device, and he was excluded only from one, specialized kind of position (court security officer).

Carmona v. Southwest Airlines Co., 604 F.3d 848, 23 A.D. Cases 140 (5th Cir. 2010). Panel: GARWOOD, Owen, Southwick. Claims on Appeal: ADA termination. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Reversed and remanded for finding on reinstatement [plaintiff]. Grounds: Employee suffers from psoriatic arthritis, and "spends about one-third to one-half of each month unable to move without a great deal of pain." As a result, he has had to avail himself of intermittent FML and company-sanctioned sick leave to cover those periods. Jury awarded him $80,000 for termination. District court entered judgment for the defendant, holding that the employee had presented insufficient evidence that (1) he was an "individual with a disability" and (2) that he was fired "because of" disability. AD amendment Act did not apply retroactively to a claim arising before January 1, 2009, but even under the more restrictive definition of "disability" under the old ADA, plaintiff presented sufficient evidence that he was substantially limited in the major life activity of walking. Although plaintiff found other employment and experienced a trouble-free period of job attendance, "the jury rationally could have concluded that Carmona was able to work for Jet Blue despite being substantially limited in his ability to walk, because he could tolerate the pain long enough to make it through a part-time day as a customer service agent." Employee was "qualified" because he was able to perform the essential function of the job with the accommodation of intermittent leave, which employer had granted him. Plaintiff also presented sufficient evidence that he was fired "because of" disability. While defendant argued successfully in the district court that there was no evidence that the comparators were not disabled, this evidence was unavailable to plaintiff precisely because the employer withheld it.
Panel remands for the district court to take up plaintiff's motion seeking reinstatement.

Jackson v. Cal-Western Pkg. Corp., No. 09-20411 (5th Cir. Mar. 26, 2010). Panel: OWEN, Smith, Clement. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to present a genuine issue of material fact about pretext, where he was fired ostensibly for committing sex harassment, there was evidence to support it (notwithstanding employee's denials), and single age-biased comment made a year before termination is stray remark and not probative of intent.

Smith v. Xerox Corp., No. 08-11115 (5th Cir. Mar. 24, 2010). Panel: REAVLEY, Wiener [JOLLY, dissenting]. Claim on Appeal: Title VII retaliation. Disposition Below: Judgment following a jury trial ($67,500 in compensatory damages and $250,000 in punitive damages) [plaintiff]. Outcome on Appeal: Affirmed except for punitive damages [plaintiff]. Grounds: Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), did not overrule Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion), as applied to a Title VII retaliation claim. Judge did not abuse discretion by instructing jury on mixed-motive liability. Applying Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), employee was also not required to present "direct evidence" of a retaliatory motive for judge to give the charge. It was not necessary, for plaintiff to receive mixed-motive charge, to concede that there were other legitimate reasons for the adverse decision. Determining whether a case is mixed-motive or "pretext" need not occur until trial. There was sufficient evidence to support the verdict for the plaintiff (in a separate unpublished opinion). Punitive damage award vacated as having an insufficient basis in the record. "In light of the competing evidence that impugned Smith's performance, we cannot say that the evidence supports a finding that Xerox managers acted with malice or reckless indifference to the possibility that her termination could violate federal law."

Alaniz v. Zamora-Quezada, 591 F.3d 761, 108 FEP 24 (5th Cir. 2009). Panel: OWEN, Jones, Southwick. Claim on Appeal: Title VII harassment (sex). Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Affirmed except as to one plaintiff [plaintiff]. Grounds: Incidents of doctor/owner repeatedly asking female employees out, propositioning them, commenting on physical appearance and touching was sufficiently severe or pervasive to constitute "hostile work environment." "Quid pro quo" claim for one plaintiff was insufficient, and judgment as a matter of law ought to have been granted, where reassignment of employee to HR manager and two-week paid probation did not result in material salary, benefits or duties. New trial not required, though, even with dismissal of one claim, where verdict could be supported instead by (unchallenged) retaliation claims. Denial of severance under FRCP 42(b) was not abuse of discretion given similarity of claims involved. FRE 404(b) prohibition of "character evidence" not violated, where parallel evidence of harassment also tended to prove plan, motive or absence of mistake. Evidence not subject to exclusion for undue prejudice under FRE 403 because systematic pattern of harassment was highly probative of intent. Admission of some hearsay could not be shown to have had more than a slight effect on the jury's verdict; hence error was not reversible. No plain error in jury questions. Jury could be instructed on both hostile work environment and quid pro quo theories. Plaintiffs were not required to show that harassment complaints were "sole cause" of termination. Plaintiff counsel's closing argument which mentioned doctor's ethnicity, was not clear error, and in any event it was related to plaintiffs' claims, where doctor (according to record) told employees that Mexican women sleep with their bosses and that there was an "American woman spy" after the first harassment complaint was filed. Reference to plaintiffs' status as "mothers and daughters" was improper, but not a significant part of the closing argument. No violation of due process in awarding punitive damages, despite reference to harm to others in closing argument, where jury charge specified that plaintiffs had to prove specific harm to themselves.

Stewart v. Mississippi Transp. Com'n, 586 F.3d 321, 107 FEP 911 (5th Cir. 2009). Panel: JONES, Prado[HAYNES, dissenting in part]. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Events in 2006 were severed from prior events by corrective actions taken in 2004 (which included assigning plaintiff away from harasser), which ended the harassment for 16 months. Reassigning plaintiff back to harasser as supervisor did not negate the prompt and effective measures taken previously. Hence, prior event were not part of continuing violation. Events in 2006 by themselves were not "severe or pervasive" (one utterance every few days about how he loved her and the should be "sweet" to each other). Prior events only established that the employee found these statements subjectively offensive, not objectively offensive. 2. Being reassigned to new supervisor, and given heavier workload did not result change in duties or compensation, and in fact resulted in promotion. Finding personal items removed from desk and locks changed, and suffering ostracism, not materially adverse. Though forced leave could be adverse, in this case plaintiff suffered minimal consequences and there was no proof that she suffered any injury to reputation.

Floyd v. Amite County school Dist., 581 F.3d 244, 107 FEP 147 (5th Cir. 2009). Panel: DAVIS, King, Garwood. Claim on Appeal: Title VII and §1981 association termination (race). State law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Black coach high school track and field coach for (and principal of) a predominantly African-American public school, invited white prep school athletes to train with his team. Floyd alleged that the school board president terminated him because of "association" with white players. Court holds that animus based on resistance to racial integration in athletic practice does not translate into employment discrimination on the basis of race. Evidence submitted by plaintiff does not indicate that any animus by his employer was directed at him because of his relationship with these athletes. Rather, the evidence reflects that the racial animus was directed solely towards the white student.

Ikossi-Anastasiou v. Louisiana State Univ., 579 F.3d 546, 106 FEP 1815 (5th Cir. 2009). Panel: OWEN, Reavley, Stewart. Claim on Appeal: 1. Title VII termination (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Time on claim ran from date that employee received letter from university denying unpaid leave and insisted she return to work, rather than later date when employee was terminated for her failure to return to work.2. Plaintiff college instructor alleged that in response to letters that she wrote to the university administration complaining about discrimination, she was invoiced for sabbatical pay that was ordinarily not required to be returned. school's written demand for repayment was not a form of settlement negotiations shielded from evidence by Fed. R. Evid. 408. Repayment demand was in same letter that stated that her failure to return to work meant she had abandoned her position. This letter is not part of any settlement negotiations and is not excluded under Rule 408.

Lee v. Kansas City Southern Ry., 574 F.3d 253, 106 FEP 1030 (5th Cir. 2009). Panel: WIENER, Jones, Benavides. Claim on Appeal: 1. Title VII termination (sex). 2. Title VII retaliation. FMLA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Genuine issue of material fact why a white employee with a comparable track record of safety violations and who likewise failed to stop a signal in 2004 received leniency and was allowed to keep his job. Court reaffirms that "similarly situated" does not require that employees by identical. Here, plaintiff and white comparator held identical positions, compiled a similar number of serious moving violations over a similar period of time, including an identical infraction for which plaintiff was fired while other employee was granted leniency, and their ultimate employment status rested with the same person.2. No evidence that decision maker was aware of the employee's EEOC filing.

EEOC v. Chevron Phillips, 570 F.3d 606, 21 A.D. Cases 1729 (5th Cir. 2009). Panel: DENNIS, Garza, Mills. Claim on Appeal: ADA reasonable accommodation and termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: EEOC presented a genuine issue of material fact about whether the charging party -- suffering from chronic fatigue syndrome (CFS) -- was substantially limited in the major life activities of caring for herself, sleeping, and thinking. Recognizes that caring for oneself (in 29 C.F.R. § 1630.2(I)), sleeping and thinking are major life activities. Holds that employee presented genuine issue of material fact whether employee was substantially limited in each major life activity. For caring for oneself, evidence included that employee could not shower, cook, shop fasten own clothes or use washroom without pain and without assistance. For sleeping, employee established that she often slept only 1-2 hours per night, and 3-4 hour on other days. For thinking, employee established episodes of aphasia, times she forgot son's name, forgetfulness about routine tasks and losing focus. District court erred in finding disability was intermittent where symptoms persisted eight months. Even if indefinite, relapse-remitting conditions can be disability. Ability to perform job in spite of limitations has no bearing on the definition of "disabled." Use of mitigating drugs lessened impairment but still left employee substantially limited. Genuine issue of material fact about whether employee requested accommodation despite that her request did not specify medical condition or a location closer to her home. Failure to engage request, in combination with what employer knew about employee's condition, violated interactive process. Regarding termination, genuine issue of material fact presented by employer's justification that employee was fired for misrepresenting medical facts: questionnaire to employee did not ask about CFS, employee made honest error in describing most recent onset of symptoms, supervisors looked for reasons to fire employee right after she requested leave, employer had shifting stories about what the employee supposedly misrepresented.

Cox v. DeSoto Co., 564 F.3d 745, 105 FEP 1571 (5th Cir. 2009). Panel: HAYNES, Smith, Owen. Claims of Appeal: ADEA termination and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that employee's ADEA retaliation claim was barred by collateral estoppel, owing to unperfected and dismissed appeal of state employment security determination to state court. ADEA provided for detailed administrative remedy inconsistent with state administrative procedures. Termination claim properly dismissed, though; employee failed to present mixed-motive theory in district court and thus waived it.

Duron v. Albertson's LLC, 560 F.3d 288, 105 FEP 870 (5th Cir. 2009). Panel: Per Curiam (Garza, Stewart, Owen). Claims of Appeal: Title VII termination (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in granting summary judgment on the timing issue. Court declines to apply the "mailbox" presumption of receipt of a government notice, where the fact was contested by admissible evidence (the plaintiff's affidavit). Employer did not produce any business records or other physical evidence that the EEOC sent the notice of the right to sue to employee.

EEOC v. Board of Sup'rs for University of Louisiana System, 559 F.3d 270, 105 FEP 746 (5th Cir. 2009). Panel: CLEMENT, King, Benavides. Claims of Appeal: ADEA termination and retaliation. Disposition Below: Motion to dismiss denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Eleventh Amendment did not bar federal government from enforcing ADE against state university.

EEOC v. Agro Distribution LLC, 555 F.3d 462, 21 A.D. Cases 788 (5th Cir. 2009). Panel: JONES, Garwood, Smith. Claims of Appeal: ADA reasonable accommodation and termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Despite the employee's difficulty in regulating his body temperature, the availability of mitigating measures had to be considered in the equation of whether he suffered a "substantial limitation" under Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). (The panel acknowledges that the Sutton standard was legislatively overruled by the AD amendments Act of 2008, but that the new legislation was not retroactive.) It was not a reasonable accommodation for the employee to be completely excused from the task of unloading barrels, when there were lesser accommodations available (such as taking rest breaks). Fee award of $225,000 against agency affirmed, affirming district court's finding that by the time the claimant's deposition occurred, EEOC should have known that the claim was frivolous under Christianburg Garment standard.

Taylor v. UPS, Inc., 554 F.3d 510, 105 FEP 6 (5th Cir. 2008). Panel: DAVIS, Clement, Elrod. Claims of Appeal: 1. Title VII and § 1981 promotion (race). 2. Title VII and § 1981 pay (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed[plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Class-action tolling by operation of nationwide certified class in St. Louis continued during the appeal (i.e., from the time that the district court granted summary judgment on the class claims in 2000 until the ultimate disposition of the class case by the Eighth Circuit in 2004): "a party who sues on a cause of action tolls the statute of limitations during the entire prosecution of the action, including the prosecution of any appeal; otherwise, a plaintiff could not count on an appeal to protect his or her rights." Thus, court below erred in dismissing promotion claims arising prior to March 18, 2002. Claims remanded for resolution of merits of 2002-03 promotion claims; panel determines that district court must consider the merits of the promotion claims put together. 2. Panel reverses the district court's assessment of the plaintiff's expert witness: "Dr. Borg's analysis compares Taylor to two specific, apparently similarly situated white employees-those with similar evaluations and tenures-over the course of their employment at UPS. That comparison shows Taylor was paid 5.75% less than one of them and slightly over 17% less than the other. Thus, the district court erred in refusing to consider that portion of Dr. Borg's report."

Stover v. Hattiesburg Public school Dist., 549 F.3d 985, 104 FEP 1386 (5th Cir. 2008). Panel: STEWART, Higginbotham, Southwick. Claims of Appeal: 1. Title VII constructive discharge (race, sex). 2. Title VII and EPA compensation (race, sex). Disposition Below: 1. Summary judgment [defendant]. 2. Judgment following a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2 Affirmed except for fee award for defendant [defendant]. Grounds: 1. Allegations of hostile work environment were not so intolerable that an employee would feel compelled to resign. 2. Trial judge did not err in (1) precluding employee at trial from arguing the importance and impact of direct evidence; (2) allowing evidence of her replacement's comparative skills and credentials, which were relevant to EPA claim; (3) admitting evidence that employee destroyed/deleted computer information; (4) granting motion in limine to bar evidence of board's habit not to post vacancies publically, where the evidence got to the jury, anyway; (5) instructing jury on "same actor" inference; (6) denying new trial on overwhelming weight of evidence (waived in the district court by failure to file post-trial motion. Attorney fees for defense of $144,058 was erroneous where claim was not frivolous, having survived motion for summary judgment to trial. Costs of $10,570 constituting double-counting; actual costs were $5,285.

Carmona v. Southwest Airlines, 536 F.3d 344, 103 FEP 1369, 20 A.D. Cases 1461 (5th Cir. 2008). Panel: WIENER, Jones, Clement. Claims on Appeal: Title VII and ADA discrimination). Disposition Below: Dismissal for lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: RLA does not preempt AD and Title VII claims, despite that court would have to refer to the CBA to consider fully each of the alleged acts of disparate treatment, because there is no disagreement about how to interpret these provisions of the CBA that detail employer's procedures for assessing attendance, leave, discipline, and termination.

Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 103 FEP 1360 (5th Cir. 2008). Panel: GARZA, Reavley, Jolly. Claims on Appeal: 1. Title VII harassment. 2. Title VII constructive discharge (sex). 3. Title VII retaliation). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Genuine issue of material fact about whether employee perceived the behavior subjectively as harassment, where she would rate harassing conduct as a ten on a scale of one to ten, stated that she was happy to be away from harasser, that she did not want to work alone with harasser, and that she felt humiliated every time he made one of his sexually-charged comments. Finally, plaintiff indicated that had her father not raised the initial complaint, she would have gone to management. Also district court ignored fact that employee pursued harassment complaints with employer and the EEOC. Also triable issue about whether employer exercised reasonable care to prevent and correct harassment; although the company brought harassment to an end by transferring the employee to another department -- after a complaint from her father -- the record included evidence that employer was on notice earlier about the harassment because of earlier incidents involving other women. 2. Failure of employee to complain previously about adverse treatment, and fact that it does not arise beyond garden-variety harassment, establishes that employee would not have been compelled to resign. 3. No adverse employment action in rude treatment, transfer to another department, unpleasant task (breaking down clothing racks).

Williams v. Wynne, 533 F.3d 360, 103 FEP 1167 (5th Cir. 2008). Panel: GARZA, Stewart, Owen. Claims on Appeal: Title VII retaliation). MSPB claim (not discussed here). Disposition Below: Dismissal for lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Citing Walsh v. Wynne, No. 07-20175 (5th Cir. June 24, 2008), court holds that Aircraft Electrician working for Air Force Reserves was barred by Feres doctrine from proceeding with Title VII action.

Walsh v. Wynne, 533 F.3d 289, 103 FEP 1152 (5th Cir. 2008). Panel: SOUTHWICK, King, DeMoss. Claims on Appeal: Title VII; §§ 1981, 1983 and 1985; and Bivens discrimination (race and sex). Due process claim (not discussed here). Disposition Below: Motions to dismiss under Fed. R. Civ. P. 12(b)(1) and (6) granted [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Treated as under Fed. R. Civ. P. 12(b)(6), district court properly dismissed case as non-justiciable under Feres doctrine. Plaintiff not excluded from scope of doctrine by virtue of his a dual-statusGuardsman and a federal technician. Reliance upon discharge letters approved because they were referenced in complaint. Federal technicians are federal employees who provide civilian support for National Guard as regular employment, in addition to regular service in the Guard, and who are commanded by the state Adjutants General. When plaintiff was mustered out of the Guard, due to disciplinary action, he also lost his technician job. "It is not possible to disentangle for these purposes their military role and command structure from their civilian employment, such that suits under Sections 1983 and 1985 or Bivens may proceed without raising the same concerns as when those claims are brought by traditional Guardsmen." While Title VII does permit suits by federal technicians, 29 C.F.R. § 1614.103 and 10 U.S.C. §10216(a), decisions which originate from military command are still barred if they are "integrally related to the military's unique structure." Here, all of the claims fell within that bar, because they were subjective personnel decisions made within the command structure. Notwithstanding, department continues to have authority to investigate EEO claims in administrative proceedings, so the claims should have been dismissed without prejudice to allow such proceedings. "Restarting agency action on a claim is particularly appropriate when the statutorily encouraged resort to a civil action after lengthy agency delay becomes futile, not because of a plaintiff's procedural default but because of a judicially created doctrine such as Feres."

Pinkerton v. Spellings, 529 F.3d 513, 20 A.D. Cases 1095 (5th Cir. 2008). Panel: Per curiam (Reavley, Jones, Smith. Claims of Appeal: Rehabilitation Act termination. Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Judge erred in instructing jury on "sole" cause standard in case tried under § 501 (i.e., "Do you find from a preponderance of the evidence that the DOE terminated Pinkerton solely because of his disability?'") Although § 504(a) provides for liability exclusively under the explicit "solely by reason of" rubric of that section, § 501 lacks express standard. But Congress meant § 501 liability to track the ADA; thus "motivating factor" test should be applied to ADA claims. and because the jury charge only contained the "sole" cause language, the employee's substantive rights were misstated and a new trial had to be granted. Court does not decide who bears burden of proof, whether McDonnell Douglas method of proof applies or whether 42 U.S.C. § 2000e-2(m) applies.

Charles v. Grief, 522 F.3d 508, 103 FEP 276 (5th Cir. 2008). Panel: WIENER, Benavides, Prado. Claims on Appeal: § 1983 retaliation. Disposition Below: Denial of summary judgment on qualified immunity [plaintiff]. Outcome on Appeal: affirmed in part, dismissed in part [plaintiff]. Grounds: Rejects argument that employee's speech on racial discrimination (against employee and other African Americans) is not protected under Garcetti because it concerns facts that he happened to learn while at work. Moreover, in this case communication was not made in the course of performing or fulfilling his job responsibilities, but was communicated directly to "elected representatives of the people" (i.e., state legislators). Issues of public trust, including racial discrimination, are also issues of public concern. Court lacked jurisdiction over whether termination was caused by protected speech (but in footnote suggests that employee would meet Pickering standard).

McClain v. Lufkin Indus., Inc., 519 F.3d 264, 102 FEP 1362 (5th Cir. 2008). Panel: JONES, Higginbotham, Clement. Claims on Appeal: 1. Title VII class disparate impact assignment (race). 2. Title VII class disparate impact promotion (race). 3. § 1981 disparate treatment (race). Disposition Below: 1. Judgment after a bench trial [plaintiff]. 2. Judgment after a bench trial [plaintiff]. 3. Class certification denied [defendant]. Outcome on Appeal: 1. Reversed [defendant]. 2. Affirmed on liability, but damage award remanded [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Putative class representatives did not meet administrative prerequisites in charges. One charge alleged only disparate treatment and did not identify a putative neutral policy. EEOC investigation did not reach disparate impact; OFCCP investigation, even if it gave employer notification of possible disparate impact claim, did not substitute for charge-filing requirement. A second charge specified disparate impact only for promotions. Neither employee had standing to challenge initial assignments because they had already been employed for decades. 2. Panel affirms district court's finding of liability based on subjective decision-making. Evidence included provision in CBA that allowed promotion based on ability instead of seniority; evidence that training opportunities were distributed subjectively by managers; attendance and discipline records were subject to manipulation; and salaried jobs not under the CBA were handed out based on subjective factors. District court also found that promotion practices were not capable of separation (seniority could be waived in promotions; bid data was critically incomplete). Affirms finding that promotion system had statistically significant disparate impact' Dr. Richard Drogin constructed hypothetical pools and found statistically significant racial disparity in hourly promotions (7.61 S.D.) and salaried promotions (2.02 S.D.). No error in allowing hypothesized pools where bid sheets were unavailable; expert need not regress for all possible variables. Disparity of 2.02 is still significant, even if on the low end. Back-pay formulas previously authorized under Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974), affirmed. Individualized determinations of 700 class members was not feasible (would lead to "quagmire of hypothetical judgment." Damages vacated, because award included recovery for assignment claim. Court suggests that 127 promotion shortfall could be remedied by taking total wages attributable to lost promotions and allocate number proportionately throughout class. Lost wage calculations by class expert vacated because based on assumptions about racial assignment that was vacated on appeal. Twenty-hour period for presenting defense not abuse of discretion. Injunctive relief (a "follow the law" injunction) vacated for vagueness. Lack of findings by district court to reduce attorney fee lodestar due to disputes on hourly rates and alleged excessiveness - resulting in across-the-board 25% reduction - abuse of discretion. 3. Certification properly dismissed under Fed. R. Civ. P. 23(b)(3) where financial recovery "predominated" and class could not validly forego compensatory relief without generating conflict of interest with the rest of the class.

Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008). Panel: DAVIS, Stewart, Owen. Claims on Appeal: § 1983 First Amendment retaliation. Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Employee raising concerns about racial discrimination in her unit with the EEOC was not within employee's job function and on remand district court should consider whether speech involved matter of public concern and meets Pickering balancing test.

Abner v. The Kansas City Southern RR Co., 513 F.3d 154, 102 FEP 616 (5th Cir. 2008). Panel: HIGGINBOTHAM, Wiener, Garza. Claims on Appeal: Title VII/§ 1981 harassment. Disposition Below: Judgment after a jury trial ($125,000 punitive damages each for eight plaintiffs) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Notwithstanding the Thirteenth Amendment roots of section 1981, a claim brought under that act is statutory in nature. But in a Title VII and section 1981 case, the presence of the Title VII caps -- combined with the "high Threshold" necessary to prove punitives -- substitutes for the need to show proportionality. Thus, "a punitive damages award under Title VII and § 1981 need not be accompanied by compensatory damages," agreeing with the Second and Seventh Circuits (splitting with the First Circuit). Nominal damage award was unnecessary to support the punitive award: "Because the award of actual or punitive damages is capped under Title VII, we do not require a ceremonial anchor of nominal damages to tie to a punitive damages award." The panel also found no abuse of discretion in (1) allowing the plaintiffs to present evidence of incidents going back as far as ten years, supporting the district court's conclusion that the incidents were part of a single claim; (2) admitting alleged hearsay erroneously under FRE801(d)(2)(D); and (3) miscellaneous alleged errors in the admission of one managers KKK-related conviction and the overruling of objections to plaintiffs' closing argument.

Lauderdale v. Texas Dep't of Criminal Justice, 512 F.3d 157, 102 FEP 555 (5th Cir. 2007). Panel: SMITH, Higginbotham, Owen. Claims on Appeal: 1. Title VII harassment (sex). 2. § 1983 harassment against officer (sex). 3. Title VII constructive discharge (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Genuine issues of material fact exists on whether the employee suffered pervasive harassment (average of 10-15 calls per shift by supervisor for four months, asked if she was married, said he might "hang himself," asked to take a trip to Las Vegas to "snuggle," grabbed her belt, ordered her to appear in his office for no reason). But employer prevails as a matter of law on the Faragher/Ellerth defense, because employee maintained standing policy against harassment, provided training and made quick response to plaintiff's complaint. Employee failed to report harassment until she quit work, which was too late. 2. Officer was not entitled to qualified immunity for harassment; because actionable harassment must be "objectively offensive," qualified immunity can never provide protection for harassment.3. No evidence of aggravated circumstances that would support claim that harassment was so severe that it caused resignation.

Price v. Rosiek Const. Co., 509 F.3d 704, 102 FEP 737 (5th Cir. 2007). Panel: Per Curiam [Jolly, Higginbotham, Prado]. Claims on Appeal: Title VII/§ 1981 termination. Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No abuse of discretion (1) refusing to admit testimony of co-worker about hostile work environment created by immediate supervisor (who was not the decision-maker), or alternatively it did not effect his substantial rights because the proposed testimony was vague and did not rebut uncontested performance reason for the employee's termination; or (2) instructing jury specifically that it was free to accept or reject findings in EEOC determination that were favorable to the employee.

Washburn v. Harvey, 504 F.3d 505, 101 FEP 1222, 19 A.D. Cases 1412 (5th Cir. 2007). Panel: GARZA, Higginbotham, Weiner. Claims on Appeal: 1. Title VII, AD and Rehabilitation Act promotion. 2. Title VII, AD and Rehabilitation Act retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff could not pursue disability claim against federal government under Title VII or ADA. Under Rehabilitation Act, district court erred in holding that employee was not "otherwise qualified" as a matter of law. Agency claimed that position required applicant to be "certified appraiser," but original posting did not require certification and acting supervisory appraiser did not hold certification, either. Also, employee had performed same job in temporary capacity and been well reviewed by supervisor.2. Conclusory declaration furnished by employee that he was told that he would never be promoted because of his discrimination complaints (without any information about alleged declarants) insufficient to support inference of discrimination. Under indirect method, denial of promotion two years after filing of Title VII complaint does not raise inference based on temporal proximity, and audit of plaintiff was part of agency-wide effort not targeted at him alone.

Palasota v. Haggar Clothing Co., 499 F.3d 474, 101 FEP 769 (5th Cir. 2007). Panel: HIGGINBOTHAM, Dennis, Clement. Claims of Appeal: ADEA termination. Disposition Below: Judgment following a jury trial ($842,218.96 back pay, $842,218.96 liquidated damages, $524,999.98 front pay, reinstatement and $14,583.33 monthly front pay, post-judgment interest, fees). Outcome on Appeal: Affirmed except reinstatement/front pay [plaintiff]. Grounds: District court did not err in denying motion for judgment as a matter of law on remand (342 F.3d 569 (5th Cir. 2003)). Record included evidence of termination of 12 sales associates age 40 and over, while hiring 13 new employees (all but one under 40) , employer targeted severance packages at sales associates in their early fifties or older, that a severance package ought to be directed at them and that the effect would be to "thin the ranks." Younger sales associates took over plaintiff's territory and plaintiff was given inconsistent explanation for his termination. Moreover, national sales manager and president made remarks that employer "needs race horses, not plow horses" and criticizing the "graying" of the sales force, supporting theory that company was trying to remake entire sales force to bring more youthful appearance. "addition ally, Haggar's unsuccessful efforts to have Palasota release it from ADEA claims upon his termination tended to show that Haggar had knowingly violated the ADEA or recklessly disregarded whether its conduct toward Palasota was prohibited by the statute." jury could consider, in calculating back pay, amounts that employee would have earned if employer had not artificially depressed his earnings in later years (jury found that he would have been earning $175,000 instead of $85,6000 yearly). Employer failed to plead mitigation defense in answer, but defense was not waived because it was tried by consent under Fed. R. Civ. P. 15(b). Jury was nevertheless not compelled by record to agree with Haggar that employee's substitute employment was comparable in income and prestige to prior job as sales associate. Front pay was clear error, because employee presented no evidence of vacant position to which he could be reinstated, that his prior accounts have already been divided among the remaining associates, no new employees had been hired since 2002, and incumbents would either have to be fired or lose income to allow reinstatement. Moreover, employer cannot match $175,000 peak salary, employee testified that he would not go back to work at Haggar for $75,000-100,000, and that he has his own business now. Remaining lump-sum front pay vacated and remanded for consideration of whether liquidated damage award adequately compensated employee, to avoid windfall.

McCoy vs. City of Shreveport, 492 F.3d 551, 100 FEP 1812 (5th Cir. 2007). Panel: Per Curiam [Higginbotham, Wiener, Prado]. Claims of Appeal: 1. Title VII constructive discharge (race, sex). 2. Title VII leave (race and sex). 3. Title VII retaliation. First Amendment retaliation (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Officer who was relieved of duty (with consent) for medical reasons, counseled against horseplay, required to turn in her badge and gun for the interim and suffered boorish remarks was not constructively discharged. 2. Being required to take administrative leave, with pay and with possibility of return not "ultimate employment action." 3. While being placed on administrative leave presents close question about the Burlington Northern standard for an adverse employment action, employee could not present genuine issue of material fact about pretext. That decision makers were aware of employee's complaints about treatment of minorities and made decision to take gun and badge by itself did not establish causation.

Berquist v. Washington Mutual Bank, 500 F.3d 344, 101 FEP 1379 (5th Cir. 2007). Panel: STEWART, Jones, Jolly. Claims of Appeal: ADEA termination . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in finding that employee was not "qualified" for position for purposes of proving prima facie case; employee possessed same job skills he had at the time he was placed in credit review position, and that employer was no pleased with performance in the job does not prove lack of qualifications at that stage. Employee, though, was not replaced by substantially younger counterparts, which precluded resort to indirect method of proof. Using direct method, comment by manager about wanting to attract younger talent and that employees two counterparts were younger did not constitute direct evidence, coming six months before decision and (in context) discussion need to develop talent internally. Decision to terminate two oldest employees while offering younger two employees option of transferring not circumstantial evidence of age bias. Two younger employees had more experience in the specialty area, while older employees only performed overflow work from that department. Evidence that only the two older employees were placed on performance improvement plans, where employee had admitted (more than once) lacking expertise in credit review. Manager had even tried to use the PIP as a vehicle to locate more appropriate work for employee that used his skill set. Employee also failed to present a genuine issue of material fact about the reasons for the reduction in force (RIF) in his office.

Decorte v. Jordan, 497 F.3d 433, 101 FEP 481 (5th Cir. 2007). Panel: BARKSDALE, Garwood, Garza. Claims on Appeal: Title VII, § 1981 and La. state law termination (reverse race). Disposition Below: Judgment following a jury trial for 35 plaintiff; compensatory damages from $250 to $13,500, and equitable relief [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Verdict supported by sufficient evidence. All but one of the plaintiffs were white (the only other plaintiff was Latino but described as white in exhibits). Racial composition of office, after Jordan was elected as District Attorney, went from 77 white-56 black to 27 white-130 black. Defendant argued that he staffed office with people who supported his candidacy, regardless of race, that he attempted to recruit white staff, promote whites to high-level positions, and did not interfere with the attorney staff. Person recommending hires did not consider published factors or interviews, but were affected by loyalty and budgetary considerations, and were sometimes just "random." Statistical evidence established probability of randomness was one in a million. No reversible error in (1) admission of EEOC determination, (2) instruction to jury that cultural-diversity report was an "affirmative action" plan, or (3) failure to bifurcate liability and damages (not objected to below). Claimants' testimony sufficient to prove emotional distress to support damages.; each testified about personal difficulties (stress, sleeplessness, strained relations, depression, physical symptoms), citing EEOC Policy Guidance No. 915.002 § II(A)(2) (July 14, 1992). Testimony of There plaintiffs supported by life span development psychologist. Statements in closing argument about EEOC internal processes, not part of the record, were countered by defendants' own closing, thus harmless error. No plain error in attack on defense attorney's integrity and argument about expert opinions not offered into evidence.

Guerra v. North East Independent Sch. Dist., 496 F.3d 415, 101 FEP 321 (5th Cir. 2007). Panel: Per Curiam [Jolly, Clement, Owen]. Claims on Appeal: ADEA promotion. Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to object to jury instruction on causation, and on plain error review instruction is upheld. Though it contained two different causation standards (but-for and "motivating factor"), ambiguity was not prejudicial because parties tried case on pretext standard and "motivating factor" was lesser-included standard. No error in excluding EEOC determination in favor of employee under FRE403 that was decided against him, then reversed after intervention by a member of Congress. Would have unduly prejudiced jury.

EEOC v. WC&M Enterprises, 496 F.3d 393, 101 FEP 332 (5th Cir. 2007). Panel: DENNIS, Davis, Prado. Claims on Appeal: Title VII harassment (religion, national origin). Disposition Below: Summary judgment [reversed]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in evaluating charge-timing; employee's own affidavit supported claim that harassment continued into the 300-day period before the charge was filed. Employee not required to prove that work performance objectively suffered. Court also erred in holding that none of the harassment was based on national origin because the harassers did not refer to the employee's actual national origin. Citing 29 C.F.R. § 1606.1, an EEOC guideline and several district court opinions, the panel concludes finds genuine issue of material fact about whether conduct was severe or pervasive ("why don't you just go back where you came from since you believe what you believe?'" "'This America. That's the way things work over here. This not the Islamic country where you come from," reference to employee "'Taliban" and calling him an 'Arab.'"

Massingill v. Nicholson, 496 F.3d 382 (5th Cir. 2007). Panel: HIGGINBOTHAM, Davis, Barksdale. Claims on Appeal: ADA termination. Determination Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Fifth Circuit joins other courts in holding that federal employee must either accept agency determination or else surrender award in favor of de novo review in federal court. Though ambiguous, complaint might be read to request de novo review. No requirement that employee disgorge remedy, provided that it may be set-off of final judgment.

Arismendez v. Nightengale Home Health Care, Inc., 493 F.3d 602, 101 FEP 27). Panel: BENAVIDES, Jones, Stewart. Claims on Appeal: Tex. state law termination (pregnancy). Disposition Below: Judgment after a jury trial ($1 million punitive capped at $200,000, $26,150 back pay, $10,000 compensatory) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Evidence was sufficient to establish that decision maker was supervisor who told employee at time of termination that she knew it was illegal to fire her because she was pregnant, but she had a "business to run" and "could not take having a pregnant woman in the office." Supervisor signed Employee Separation Report. The report listed the reasons for the involuntary separation were "excessive sick leave/ job abandonment." Employee's husband hand delivered a doctor's note to supervisor that extended the period of bedrest but that note was not in employee's file, and regional manager was never made aware of it. Regional manager testified that he would have considered the circumstances regarding employee's bedrest if he had been made aware. Regional manager described employee as a superior employee and a key person in the office. Supervisor communicated with Nightingale's human resources department regarding terminating employee and provided all the information that the regional manager had in order to make the termination decision. Employee also showed defeated "same decision" defense, showing that if company intends to fire an employee for job abandonment, personnel manual established procedures for reporting absences, which jury could have found were met by employee. Manual also provided for progressive discipline which employer did not give. Although employer claimed it was operating with "skeletal staff" and could not hire temporary replacement for employee during her bedrest, evidence showed that branch had already operated without manager for an entire year. Statutory cap correctly applied. Employer did not waive defense by failing to plead it; assuming cap as a "defense," it was sufficient for employer to raise it in the pretrial order and employee was not prejudiced thereby. State-law punitive cap, applying generally to state-law causes of action, superceded higher limits previously allowed under state labor code.

Alvarado v. Texas Rangers, 492 F.3d 605, 100 FEP 1793 (5th Cir. 2007). Panel: GARZA, Reavley, Dennis. Claims on Appeal: Title VII promotion (sex). Disposition Below: Summary judgment [reversed]. Outcome on Appeal: Reversed [plaintiff]. Grounds: While a purely lateral transfer is not ordinarily actionable as an adverse employment action, employee presented genuine issue of material fact that denial of transfer from Department of Public Safety sergeant to Texas Rangers was denial of promotion. Standards for evaluating whether transfer is equivalent to a promotion are objective, and include increase in compensation or other tangible benefits; greater responsibility or better duties; requirement of superior skill, education or experience; whether entry is competitive; and prestige. Factors in this case included "(1) the Rangers are an elite unit within DPS and have a unique and illustrious history; (2) an appointment to the Rangers is, according to DPS, 'one of the most competitive goalsto which a law enforcement officer may aspire'; (3) the 'promotion and selection' process is complex and rigorous; (4) the competition to become a Ranger is 'fierce,' as evidenced by the large number of applicants for the few available positions, and is steeper than the competition for positions with any of DPS's other divisions; (5) the minimum qualifications for becoming a Ranger Sergeant are higher than the minimum qualifications for becoming a Sergeant with Special Crimes; (6) the Rangers work under less supervision and have greater job responsibilities, including being the primary investigators of homicides and handling other major 'high-profile' and 'sensitive' cases; (7) although DPS regulations do not officially classify Ranger appointments as promotions because they do not entail an increase in pay, receiving an appointment to the Rangers is generally viewed within DPS as a promotion; and (8) newly appointed Rangers are horned at a special 'promotional ceremony' in Austin." Employer also failed to meet burden of production to supply legitimate, non-discriminatory reason for failure to promote. Although it pointed to scoring system that ranked sergeant 29th, employer failed to show that score was determined by sex-neutral factors. Although sergeant had superior written exam score to There of the men selected, oral interview was given determining weight, and employer never attempted to defend interview scores or to show objectively why sergeant scored much lower than male applicants. Employer also neglected to furnish any information in the record about relative qualifications of the employees to support inference that "best qualified" candidates were selected.

Nasti v. Ciba Specialty Chemicals, 492 F.3d 589, 101 FEP 6 (5th Cir. 2007). Panel: STEWART, Jones, Benavidas. Claims on Appeal: Title VII termination (sex). State law defamation claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While employer offered two explanations for termination (submitting a false call report and performance-related reason), this does not present genuine issue of material fact about pretext because they are not inconsistent: termination was already in the works for performance, when false-call incident motivated ultimate decision. Employee failed to present a sufficient case that the false-call explanation was false. There different manager separately concluded that employee attempted to mislead company. Even assuming subordinate attempted influence decision for racially biased reasons, decision maker made separate inquiry of employee. Mixed-motive theory waived.

Morgan v. Potter, 489 F.3d 195, 100 FEP 1270 (5th Cir. 2007). Panel: BENAVIDES, Smith, Dennis. Claims on Appeal: ADE and Title VII discrimination. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff who filed suit 97 days after mailing of right-to-sue held untimely under 42 U.S.C. § 2000e-16(c). No evidence in record on actual receipt of letter, so district court did not err in applying five-day presumption of receipt stated in letter.

Jenkins v. Cleco Power LLC, 487 F.3d 309, 19 A.D. Cases 425 (5th Cir. 2007). Panel: STEWART, Jones, Jolly. Claims on Appeal: AD and La. state law reasonable accommodation and retaliation. ERISA claim [not discussed here]. Disposition Below: Fed. R. Civ. P. 41(b) involuntary dismissal [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Sitting qualified as a major life activity and plaintiff established (contrary to the district court's holding) that he was substantially limited, because she could only sit There hours a day. But plaintiff presented no genuine issue of material fact about whether employer failed to enter into interactive process to locate employment meeting his condition. Although record contained letter provisionally clearing employee for call center work, recommendation was consistent with later recommendation that employee would need to alternate sitting and standing. Employer rotated employee through several jobs to find one that met his physical needs.

Bourdais v. New Orleans City, 485 F.3d 294, 100 FEP 720 (5th Cir. 2007). Panel: BENAVIDES, Reavley, Jolly. Claim on Appeal: Equal Protection hiring (reverse discrimination race). Disposition Below: Judgment entered after a jury trial [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: City's only argument on appeal was that plaintiffs ought to have brought their suit in 1991, when they were refused employment, instead of 1999. Borrowing the Louisiana statute of limitations tolling rules, the court finds that plaintiffs prevail under doctrine of "Contra Non Valentem," i.e., suspending the running of the claim while "the plaintiff does not know nor reasonably should know of the existence of the cause of action." Although two other lawsuits had already been filed challenging the same practice years earlier, the later-filing plaintiffs were deemed not on notice because in contrast to the other two cases -- where the claimants were never hired -- plaintiffs eventually became fire recruits. That, combined with their lack of actual knowledge of the other lawsuits (except at the rumor level), supported verdict in their favor on defense. Plaintiffs, nonetheless, fail to win (as front pay) an award of pension benefits to compensate them for the delay in hiring. "The dollar amount of damages attributable to the delayed pension benefits is extremely speculative, and given the uncertainty of whether the pensions will ever vest, the district court was within its discretion to find that awarding such damages would go beyond making the plaintiffs whole." And 17 of the plaintiffs received no back pay at all, on the grounds that they did not establish their eligibility be to hired in 1991.

Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 100 FEP 537 (5th Cir. 2007). Panel: DAVIS, Stewart, Godbey. Claim on Appeal: 1. Title VII promotion (race). 2. Title VII termination (race, retaliation). Disposition Below: 1. Summary judgment (defendant). 2. Summary judgment (defendant). Outcome on Appeal: 1. Reversed (plaintiff) 2. Affirmed (defendant). Grounds: 1. Conceding that employee had prima facie case of race discrimination under pretext method of proof, employer contended that white candidate for VP of Purchasing had more "purchasing experience in the bottling industry." Genuine issue of material fact presented where company had given different reason to the EEOC (allegedly superior "purchasing experience") and that plaintiff's purchasing experience was longer, and recognized by the company as superior (raises, invitation on company trip). Plaintiff had temporarily filled the very position to which he sought promotion. Other candidate had experience in unrelated field of management and operations. Defense witness who made promotion decision acknowledged that successful candidate had less purchasing experience and that plaintiff excelled in relevant area of summarizing different proposals and contacting suppliers. 2. Employee failed to present genuine issue of material fact on pretext, where employer gave legitimate, non-discriminatory reason for termination (insubordination), and record evidence (performance evaluation and plaintiff's negative response to it) were consistent with that explanation.

Strong v. Univ. Health Care System, L.L.C., 482 F.3d 802, 100 FEP 544 (5th Cir. 2007). Panel: DEMOSS, Reavley, Benavides. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Applying circuit's "but for" standard for causation, court finds that nurse with 14 incidents of poor performance and improper conduct, culminating in her misidentifying a patient as an alcoholic, was terminated for performance rather than retaliatory reasons. Decision was made by management as a whole. Evidence of two other employees allegedly not terminated for comparable misconduct were not similarly situated (one was a doctor who resigned in face of claims of misconduct; the other a nurse supervisor whose alleged misconduct was not elucidated in the record). There-and-one-half month span was insufficiently close to infer retaliatory intent. In any event, temporal proximity at most will establish a prima facie case and will not (by itself) establish causation. Burlington Northern does not affect analysis.

EEOC v. E.I. Du Pont de Nemours & Co., 480 F.3d 724, 18 A.D. Cases 1793 (5th Cir. 2007). Panel: JONES, Reavley, Prado. Claim on Appeal: ADA "regarded as" termination. Disposition Below: Judgment after a jury verdict ($91,000 back pay, $200,000 front pay, $1 million punitive damages reduced to $300,000) [plaintiff]. Outcome on Appeal: Affirmed except front pay [plaintiff]. Grounds: Evidence demonstrates that employer regarded lab operator as being disqualified for any job at the plant because she supposedly could not evacuate the workplace quickly enough due to various medical conditions, thus substantially limited in the major life activity of walking (29 C.F.R. § 1630.2(j)(1)(i)). If company executive believed she was unable to walk safely in lab setting, jury could have concluded that employer believed her unable to walk safely anywhere. Evidence established that employee could in fact evacuate plant (she did so in 2003 without assistance), so jury could reject contentions that she was not a "qualified" individual or was a "direct Thereat" to herself and others. Back-pay award supportable, even though employee was medically limited after June 2001, because jury could have relied on evidence that employee could work under high pain Threshold. Front-pay, based on advisory jury verdict, was unsupportable because it assumed employee could work ten years post-judgment despite disability determinations by her treating physician. Punitive damages affirmed; employer made job more difficult for employee by moving equipment further away, tried to convince her to retire on disability, refused to allow her to demonstrate should could evacuate plant, and - after she tried to get job back - former supervisor supposedly said that the no longer wanted to see "crippled crooked self, going down the hall hugging the walls." Conclusory testimony about employer's EEO policies insufficient. Court holds in matter of first impression that 42 U.S.C. § 1981allows award of punitive damages without compensatory award.

Lemaire v. Louisiana Dept. of Transp. and Development, 480 F.3d 383, 99 FEP 1577 (5th Cir. 2007). Panel: PRADO, Barksdale (DEMOSS, dissenting in part). Claim on Appeal: 1. Title VII harassment (same-sex) 2. Title VII retaliation. Disposition Below: 1. Summary judgment (defendant) 2. Summary judgment (defendant). Outcome on Appeal: 1. Reversed (plaintiff) 2. Reversed (plaintiff). Grounds: 1. Where employer simply denied that incidents of sexually explicit behavior by supervisor occurred, and did not raise a Faragher/Ellerth defense, plaintiff's contradictory testimony presents genuine issue of fact. Where employer failed to present argument below on whether conduct was severe or pervasive, or citing same-sex harassment standard, it failed to put employee on notice to rebut such arguments and are waived. 2. Alleged act of retaliation prior to time employee filed complaint with agency was not retaliatory as a matter of law. Repelling sexual misconduct alone is not a protected activity. But other acts that employer did not specifically raise below for summary judgment could not be basis for dismissing claim. Suspension ordered two weeks after employee made report of harassment, because he refused to perform work duty (spraying weeds) and instead went to complain of further harassment; harasser was involved in decision to suspend employee and suspension letter referred to wrong day of work. No genuine issue of material fact about whether termination was motivated by performance reasons (sleeping on the job, showing up late, refusing to mow grass).

Barrow v. Greenville Independent school Dist., 480 F.3d 377, 99 FEP 1450 (5th Cir. 2007). Panel: HIGGINBOTHAM, Jolly, Dennis. Claim on Appeal: Title VII disparate impact (religion). § 1983 claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Patronage policy (requiring employees who work for district to send children to public school) not demonstrated to have statistical impact on employees who choose private religious schools.

Muhammad v. Dallas County Community Supervision and Corrections Department, 479 F.3d 377, 99 FEP 1281 (5th Cir. 2007) . Panel: OWEN, Jolly, Prado. Claim on Appeal: Title VII discrimination (race) and retaliation . Disposition Below: Fed. R. Civ. P. 12(b)(6) dismissal for failure to state a claim [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Applying "hybrid economic realities/common law control test," court holds that district court erred in determining that the Community Supervision and Corrections Department was not employee's employer as a mater of law, and remanded for factual findings. Court did not abuse discretion in denying plaintiff leave to file third amended complaint.

EEOC v. Jefferson Dental Clinics, 478 F.3d 690, 99 FEP 1313 (5th Cir. 2007) . Panel: CLEMENT, King, Wiener. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Affirmed as to equitable relief only [plaintiff]. Grounds: Commission --which provided material assistance in an ultimately unsuccessful state-court tort action, claiming intentional infliction of emotional distress, negligent retention, and wrongful discharge on behalf of four plaintiffs -- is precluded from seeking monetary relief for a Title VII action filed on behalf of the same plaintiffs in federal court, by operation of Texas state-law res judicata principles. The EEOC, among other things, participated in mediation of the state law case and sat as observers at the state court trial. Although finding that the EEOC did not control the state litigation, court concludes that "the EEOC's claims [for damages] arise out of the same subject matter as the state court case" and thus "[t]he There elements of res judicature therefore satisfied with respect to the claims for make-whole relief, and these claims are barred by the doctrine of res judicata." Although the Commission may seek injunctive relief, under this decision it is barred from pursuing any kind of damages claim.

Adams v. Groesbeck Ind't school Dist., 475 F.3d 688, 99 FEP 909 (5th Cir. 2007) . Panel: JONES, Smith, Stewart [concurring in judgment only]. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds : The employee failed to show that when he sought to return to this position -- after settling a Title VII action with the district -- the district had an available coaching job for him to fill, hence could not prove . The coach's duties had already been assigned to a long-term substitute. While the plaintiff's spouse (another coach in the same district) testified that the school could have used an addition al coach, and an athletic director supposedly said that the plaintiff would never be hired because of the lawsuit, the fact remained that no addition al position was created.

Andrews v. Roadway Exp. Inc., 473 F.3d 565, 99 FEP 774 (5th Cir. 2007). Panel: GARZA, Jones, Davis. Claim on Appeal: Title VII decree enforcement (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Texas procedures for writ of enforcement govern under Fed. R. Civ. P. 69(a) to enforce terms of 1985 Title VII consent decree. Plaintiffs waited 17 years to bring action after judgment became final on appeal, but Texas imposes a ten-year limit on the life of a judgment, and two addition al years to revive the "dormant" judgment. Decree was sufficiently clear to support issuance of writ of execution.

Culwell v. City of Fort Worth, 468 F.3d 868, 99 FEP 97 (5th Cir. 2006) . Panel: SMITH, Wiener, Owen. Claims on Appeal: 1. Title VII termination (reverse race). 2. Title VI retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Sanction to unfile Fed. R. Civ. P. 56(f) motion for alleged local rule violation was an abuse of discretion. District court as wrong on the facts (the signature was a bona fide lawyer), and overreacted to boot. "The form of the motion was not obviously violative of the order against submissions signed by firms, and it certainly did not warrant de facto dismissal on the basis of what must appear to the casual observer to be judicial petulance." On the merits plaintiffs' motion probably ought to have been granted. Holding that "Rule 56(f) allows for further discovery to safeguard non-moving parties from summary judgment motions that they cannot adequately oppose," and thus should be "liberally granted", the panel reverses the district court's finding that the plaintiffs failed to act with diligence. The plaintiffs filed their motion well within the discovery cut-off and in advance of the deadline to oppose summary judgment. Even if the 14-week extension for discovery sought was extravagant, plaintiffs were entitled to some extension. Finally, the court held that the plaintiffs' requested with enough specificity the needed discovery to preclude a ruling on the summary judgment motion. 2. Retaliation claim was beyond the scope of the charge.

Cheatham v. Allstate Insur. Co., 465 F.3d 578 (5th Cir. 2006). Panel: PER CURIAM [Smith, Garza, Prado]. Claims on Appeal: ADEA termination. FLS and state tort claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiffs terminated after investigations for committing abuse altering dates on claims files. Assuming that plaintiffs made out a prima facie case, court affirms summary judgment on ground that they did not prove pretext. No evidence that employees were treated any differently because of age. Younger employees not treated differently, because they only committed individual violations of the rule, while audit showed that plaintiffs committed serial violations.

Price v. Choctaw Glove & Safety Co., 459 F.3d 595, 98 FEP 1101 (5th Cir. 2006). Panel: DENNIS, Davis, Smith. Claim on Appeal : Title VII promotion (national origin). Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(1) [defendant] . Outcome on Appeal: Affirmed [defendant]. Grounds: Under single filing or piggyback rule, individual plaintiffs who were formerly putative absent class members and who did not file their own charges could not file new, independent action after class certification was denied in the original case for failure to exhaust administrative remedies with the EEOC.

Pacheco v. Mineta, 448 F.3d 783, 98 FEP 10 (5th Cir. 2006) . Panel: GARWOOD, Prado, Owen. Claim on Appeal: Title VII pay (sex). Disposition Below: Summary judgment [defendant] . Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to preserve disparate impact claim challenging selection process for promotions by Air Traffic employee, where his formal charge only presented a claim for discrimination on the basis of national origin, identified no neutral employment policy and complained only of past incidents of disparate treatment. Denial of discovery not an abuse of discretion. Panel notes intra-circuit split about whether failure to exhaust is jurisdictional or prerequisite to suit. Remanded for award of costs to agency.

Willisv. Coca Cola Enterprises Inc., 445 F.3d 413, 97 FEP 1288 (5th Cir. 2006) . Panel: GARZA, Benavides [REAVLEY, concurring in the judgment]. Claim on Appeal: Title VII termination (pregnancy). FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee - terminated for violation of "no call/no show" rule - failed to establish pretext for termination by evidence that other employees were allowed to miss one day of work without medical release; on day of doctor appointment, employee failed to communicate with employer, and failed to adduce comparable evidence of others treated more leniently under similar circumstances.

Int'l Brotherhood of Electrical Workers v. Mississippi Power & Light Co., 442 F.3d 313, 97 FEP 1501 (5th Cir. 2006) . Panel: KING, Barksdale, Clement. Claim on Appeal: Title VII disparate impact challenge to testing program. Disposition Below: Judgment after a bench trial [plaintiff]. Outcome on Appeal: Reversed and rendered [defendant]. Grounds: While employee presented prima facie case of disparate impact caused by raising cut-score of Clerical Aptitude Battery test (to allow laid-off employees to bump junior Storekeepers), employer met burden of production under 42 U.S.C. § 2000e-2(k)(1) on job-relatedness and business necessity (e.g. lead to more proficient employees). Panel holds, in issue of first impression for circuit, that employee bears burden of proof on acceptable alternative employment practice under 42 U.S.C. § 2000e-2(k)(1)(A)(i) (noting split with Eighth Circuit, agreement with Third and Eleventh Circuits). Employee did not meet burden by simply having expert mention different method of setting cut-score in passing.

Coleman v. New Orleans and Baton Rouge Steamship Pilots' Assoc., 437 F.3d 471, 97 FEP 369 (5th Cir. 2006). Panel: JOLLY, Jones, DeMoss. Claim on Appeal: ADE apprenticeship program. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Louisiana steamship and river port pilots' associations and board of river port pilot commissioners do not constitute "employers," and pilots are not "employees," under 29 U.S.C. § 630()b and (f), owing to absence of traditional control of individual (citing Clackamas Gastroenterology).

Dean v. City of Shreveport, 438 F.3d 448, 97 FEP 454 (5th Cir. 2006) . Panel: DEMOSS, Garwood, Smith. Claims on Appeal: Equal Protection, Title VII and La. state law challenge to consent decree (reverse discrimination). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: City could demonstrate existence of compelling interest, in 1980, to enter into consent decree regarding sex/race hiring of firefighters, despite absence of judicial finding. City showed only token hiring of minorities, despite that minorities made up 40% of general population, and no women. This was conclusive evidence when combined with history of systematic exclusion. But issue was whether effects of discrimination continued into 2000-02, when white male plaintiffs applied for hiring. City lacked record of qualified applicant pool. Expert was not credentialed to ascertain who were qualified applicants. Percentage of minorities passing civil service exam not proper proxy. Record also insufficient on narrow tailoring. No evidence of what alternative measures could have sufficed in 2000-02. Requirements of decree may also not have been flexible enough; decree language about "appropriate work force" was ambiguous. Duration of remedies in this case were decades' long. Impact of relief on third parties found not significant enough to make decree unconstitutional per se. Test-banding violated Title VII, 42 U.S.C. § 2000e-2(l).Because decree was voluntary, Louisiana state constitution. ban on racial classifications applied as well, and could constitute addition al ground to strike down decree, even if it survives strict scrutiny analysis. State law claim properly dismissed on ground that code expressly exempts affirmative action programs.

Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468, 17 AD Cases 790 (5th Cir. 2006) . Panel: WIENER, Higginbotham, Dennis. Claims on Appeal : AD and Texas state law "regarded as" hiring. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed and rendered for plaintiff [defendant]. Grounds: Employer's blanket policy of refusing to hire what it characterized as 'uncontrolled' diabetics violated ADas a matter of law, as applied to individual "regarded as" disabled. The question of "control" is never relevant in such cases; any rule requiring that a plaintiff exercise some level of control over his impairment, is relevant and applies only in an actual disability case. Employer waived any argument that employee was not qualified or posed a direct Thereat. Employer admitted in discovery that it regards applicant's diabetes as substantially limiting his ability to engage in the major life activity of working, and that it withdrew its employment offer for that reason... Moreover, by failing to make an individualized assessment of plaintiff's fitness to work, especially in view of the fact that he was already working on a contract basis for the same employer, citing 29 C.F.R. § 1630.2(1).

Harvill v. Westward Communications, L.L.C., 433 F.3d 428, 96 FEP 1793 (5th Cir. 2005). Panel: STEWART, King, Barksdale . Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. FELA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. District court erred in analyzing employee's claim of harassment to require her to prove harassment was both severe and pervasive. Employee presented genuine issue of material fact regarding whether seven-month period of grabbing, rubbing and fondling; rubber-band shooting (at breasts); unconsented discussions about sex on a near-weekly basis. Proof of numerousness of incidents sufficient without precise dates attached. Nevertheless, summary judgment properly granted on alternative basis of Faragher/Ellerth affirmative defense. Prior panel had already ruled in case involving same management that employer maintained adequate Hockman v. Westward Communications, LLC, 407 F.3d 317 (5th Cir. 2005). Employer had written policy, which plaintiff acknowledged, which directed her to Human Resources and which she failed to do. Harassment completely ceased after her attorney contracted HR. 2. Constructive discharge not alleged in EEOC charge. Also, no proof of constructive discharge, where her conclusory allegations including rude treatment, a race harassment complaint and a Thereat to her bonus.

Baker v. American Airlines Inc., 430 F.3d 750, 96 FEP 1555 (5th Cir. 2005) . Panel: CLEMENT, Garwood, Prado. Claims on Appeal : Title VII discrimination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Employee failed to conduct timely discovery, and district court did not abuse discretion in declining to accept late-filed brief or extend discovery under Fed. R. Civ. P. 56(f) in view of plaintiff's lack of diligence. Accordingly, plaintiff failed to present any genuine issues of material fact on her claims. Discovery sanctions against plaintiff affirmed.

Cutrera v. Board of Sup'rs of Louisiana State University, 429 F.3d 108, 17 A.D. Cases 321 (5th Cir. 2005). Panel: DAVIS, Jones, Garza. Claims on Appeal: 1. ADA termination. 2. ADA retaliation. § 1983 claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Genuine issue of material fact whether plaintiff with Stargardt's disease (which gradually leads to legal blindness) was disabled for purposes of the ADA, where employee and her experts testified that she nearly lacked central vision, her condition could not be corrected or mitigated and she would progressively lose all of her sight. Her disability could be found to impose a substantial limitation on the ability to see. Employee also presented genuine issue of material fact regarding her request for accommodation, where employer fired her before an accommodation could be considered or recommended. 2. Retaliation claim was not plead or argued below, and was therefore waived.

Jones v. Robinson Property Group, 427 F.3d 987, 96 FEP 1062 (5th Cir. 2005). Panel: STEWART, Davis, Dennis. Claims on Appeal: 1. Title VII and § 1981 failure to hire (race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant] 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff] 2. Affirmed [defendant]. Grounds: 1. Genuine issue of material fact presented by direct evidence of race discrimination: manager or his assistant reportedly said that casino "hired who they wanted to hire and there were not going to hire a black person unless there were extenuating circumstances," "good old white boys don't want blacks touching their cards in their face," and "maybe I've been told not to hire too many blacks in the poker room." 2. District court did not abuse discretion by denying plaintiff leave to amend complaint to add claim of retaliation under Fed. R. Civ. P. 15.

Miller v. Texas Tech Univ., 421 F.3d 342, 17 AD Cases 47 (5th Cir. 2005). Panel: DAVIS and WEINER, King, Higginbotham, Weiner, Barksdale, Benavides, Stewart, Dennis, Prado [JONES, Jolly, Smith, Garza, DeMoss, Clement, dissenting in part] . Claims on Appeal: Rehabilitation Act termination . Disposition Below : Denial of dismissal under Rule 12(b)(1) [plaintiff] . Outcome on Appeal : Affirmed [plaintiff]. Grounds: State agencies waived Eleventh Amendment immunity by accepting federal funds under 42 U.S.C. § 2000d-7, reaffirming Pace v. Bogalusa City school Board, 403 F.3d 272 (5th Cir. 2005) (en banc).

McLaren v. Morrison Mgt. Specialists, Inc., 420 F.3d 457, 96 FEP 549 (5th Cir. 2005). Panel: DEMOSS, Jolly, Smith . Claims on Appeal: Texas state law age failure to hire. Disposition Below : Judgment as a matter of law [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Employee was judicially estopped from age discrimination claim when he submitted application to SSA that averred his "total disability" and inability to perform the job, and failed to explain inconsistency in the course of the case.

Wheeler v. BL Development Corp., 415 F.3d 399 (5th Cir. 2005). Panel: DEMOSS, Davis, Smith . Claims on Appeal: § 1981 termination. Miss. state tort (not discussed here). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: White plaintiffs failed to make out prima facie case, because they were neither replaced by African-American employees (their duties were reassigned to white managers) nor treated differently than African-American employees under "nearly identical circumstances." Plaintiffs were found to have removed a tire-changing machine without approval and made false statements about it; other employees, white and black, were not terminated where the assets removed were less valuable and the employees admitted the conduct.

Marino v. Dillard's, Inc., 413 F.3d 530, 16 AD Cases 1537 (5th Cir. 2005) . Panel: GARZA, Garwood, Benavides . Claims on Appeal: ADA termination and reasonable accommodation. Disposition Below: Denying motion to compel arbitration [plaintiff] . Outcome on Appeal: Reversed [defendant]. Grounds: Under Louisiana law, arbitration agreement could be accepted by continuing employment without an express written consent. Acknowledgment was not ambiguous about means of acceptance.

Bryant v. Compass Group USA, Inc., 413 F.3d 471, 95 FEP 1804 (5th Cir. 2005). Panel: DEMOSS, Reavley, Prado. Claims on Appeal: Title VII termination (race) and retaliation . Disposition Below: Judgment entered after a jury trial; $42,500 actual damages, $160,000 compensatory damages, $350,000 punitive damages, $36,556.22 fees and $3,093.16 costs [plaintiff] . Outcome on Appeal: Reversed [defendant]. Grounds: Termination There weeks after employee filed EEOC charge was not retaliatory or discriminatory, where employer established legitimate explanation (suspicion of theft), and employee had nothing except the timing of the decision and his own profession of innocence of the offense to rebut the explanation. A disinterested third party turned the plaintiff into management after he supposedly admitted the ft to him. No evidence that Latino workers contrived story of theft to obtain plaintiff's termination (cat's paw theory) or that management should have known of any improper motive for turning plaintiff in for theft. Other employees accused of theft not similarly situated; plaintiff was accused of stealing money from a client during a bar mitzvah, while other employees were accused of stealing goods from employer. Employer could reasonably deem stealing from a client more serious. Also, employer believed that plaintiff admitted to the crime, while the other incident was never resolved.

Jethroe v. Omnova Solutions, Inc., 412 F.3d 598 (5th Cir. 2005). Panel: SMITH, Garwood, Clement . Claims on Appeal : Title VII discrimination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Plaintiff judicially estopped from filing claim that was not disclosed to creditors in Chapter 13 bankruptcy. Moreover, evidence established that non-disclosure was intentional (i.e., she knew about facts giving rise to claim and she had incentive to hide claim because it allowed her to avoid paying unsecured debt). Noting circuit split on intentionality with Third Circuit.

Hockman v. Westward Communications, LLC, 407 F.3d 317 (5th Cir. 2005) . Panel: PRADO, Wiener, Little. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliatory transfer. 3. Title VII constructive discharge (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant] 3. Affirmed [defendant]. Grounds: 1. Alleged harassment not severe or pervasive where over year and a half, plaintiff was once spanked by manager, he grabbed or brushed against her breasts and buttocks, he tried to kiss her, he asked plaintiff to come to work early, he watched her wash her hands at bathroom sink and commented on another employee's body to her. Plaintiff also failed to avail herself of corrective measures by appealing decision to next level supervisor. Employer had written policy, which plaintiff acknowledged, which directed her to Human Resources and which she failed to do. 2. Plaintiff involuntarily transferred to a more remote facility, filled with "numerous spiders and webs, hundreds of cricket corpses, dead rats, maggots, old newspapers, thick dust, bodily fluids on the desk and wall and feces and urination." suffered adverse employment action "because it was a purely lateral move." She "retrained the same pay, duties, and benefits; was reimbursed for her mileage from Grand Saline to Edgewood; and although the Edgewood facility was temporarily filthy, any filth was cleaned up within a week or two of Hockman's arrival." 3. Same facts as retaliation claim, and evidence that supervisor may have been instructed to "run off" another troublesome employee not sufficient to show intolerable conditions.

Keelan v. Majesco Software, Inc., 407 F.3d 332, 95 FEP 906 (5th Cir. 2005) . Panel: DEMOSS, Reavley, Prado. Claims on Appeal: Title VII termination (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: At Indian-owned business, two plaintiffs (British and American) did not present prima facie cases of discrimination where they were unable to present evidence of employees outside of their protected groups that were treated advantageously. Desert Palace does not alter requirement under indirect pretext method of proof that employee satisfy all four elements. Occasional statements of national chauvinism by manager and CEO insufficient to present issue of fact.

Abarca v. Matropolitan Transit Authority, 404 F.3d 938, 95 FEP 762 (5th Cir. 2005) . Panel: Per Curiam (Reavley, Higginbotham, DeMoss). Claims on Appeal: Title VII discrimination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Requiring Latino plaintiff to sign reinstatement agreement (on 36-hour deadline) approved by union as condition for return to work not discriminatory, where plaintiff could not locate similarly situated individual outside of his protected group who was not required to sign agreement under similar circumstances.

Septimus v. Univ. of Houston, 399 F.3d 601, 95 FEP 129 (5th Cir. 2005). Panel: KINKEADE, Weiner, Prado. Claims on Appeal: 1. Title VII retaliatory transfer/constructive discharge. 2. Title VII promotion (sex). 3. Title VII harassment (sex). 4. Title VII retaliatory hiring. Disposition Below: 1. Judgment following a jury trial [plaintiff]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Vacated and remanded [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Although employer waived objection to jury instruction setting forth causation standard, even in plain error analysis, instruction using "motivating factor" standard instead of "but for " causation conspicuously violated circuit law, causing a miscarriage of justice to employer. 2. Plaintiff, assuming she made out prima facie case regarding failure to promote to litigation counsel position, she failed to rebut explanation that she lacked posted qualifications for job and (by manager's lights) failed to demonstrate enough initiative for job. 3. Number and mildness of events insufficient to support finding of severe or pervasive harassment. 4. Ten-month gap between complaint about harassment and adverse action precludes finding of causation.

Vines v. Univ. of Louisianat Monroe, 398 F.3d 700, 95 FEP 144 (5th Cir. 2005) . Panel: GARZA, King, Smith. Claims on Appeal: ADE and La. state law compensation/ failure to rehire. Disposition Below: Denial of permanent injunction against state court action [plaintiffs]. Outcome on Appeal: Reversed; injunction granted [defendants]. Grounds: Employer entitled to entry of injunctive relief to bar relitigation of age discrimination claim in state court. Employees' claims were fully litigated by EEOC in prior federal proceeding; employees were in privity with EEOC; and Louisiana state law did not provide greater rights/remedies than federal law. (EEOC took over litigation of claims in federal court after Supreme Court ended private right of action for damages in Kimel ).

Machinchick v. PB Power, 398 F.3d 345, 95 FEP 152 (5th Cir. 2005) . Panel: HIGGINBOTHAM, Smith, Benavides. Claims on Appeal: ADE and Tex. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff was terminated under company's new "cradle-to-grave" business plan, which required business development personnel to both scout new business prospects and "shepherd those prospects through the sales process to closing and beyond." Plaintiff's newly-appointed boss thought that Machinchick would not be up to the new regime. In boss's e-mail to human resources describing Machinchick's shortcomings, claiming that Machinchick had a '[l]ow motivation to adapt' to change. Knowlton expounded upon this claim in his deposition, describing Machinchick as 'inflexible,' 'not adaptable,' and possessing a 'business-as-usual attitude.' We have found that purely indirect references to an employee's age, such as comments that an employee needed to look 'sharp' if he were going to seek a new job, and that he was unwilling and unable to 'adapt' to change, can support an inference of age discrimination. Boss also sent an e-mail to several PB Power employees discussing his intent to go forward with his plan to 'strategically hire some younger engineers and designers.'" The age stereotyping implicit in these remarks, and an e-mail from same boss about hiring "younger" engineers and designers, was sufficient to shift the burden under Price Waterhouse mixed-motive analysis, to the employer to prove that plaintiff would have been fired even in the absence of the discriminatory motive. Even where plaintiff could not produce evidence to fully rebut defendant's explanations, other evidence created genuine issue of material fact that age was a motivating factor in decision.

Johnson v. Crown Enterprises, Inc., 398 F.3d 339, 95 FEP 88 (5th Cir. 2005) . Panel: PRADO, Reavley, Benavides. Claims on Appeal: 1. Title VII race failure to hire. 2. § 1981 failure to rehire... Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. While it is undisputed under enterprise test that the two entities engaging plaintiff truck driver have common ownership and are interrelated, there is no genuine issue of material fact that employing entity made labor decisions for the other entity. Because company that declined to rehire plaintiff was not an employer (or a single enterprise with an employer), no Title VII liability. 2. Because trucker was independent contractor and not employee, Title VII did not apply, but § 1981 did. Plaintiff's amendment to complaint (though filed after one-year limitations period expired on pre-formation clam) related back to original claim (Fed. R. Civ. P. 15) and thus timely.

Perez v. Texas Dep't of Criminal Justice, 395 F.3d 206, 94 FEP 1729 (5th Cir. 2004). Panel: GARZA, Smith, Vance. Claims on Appeal: Title VII race termination. Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Plaintiff fired because he was arrested on felony assault charge. Evidentiary rulings affirmed. Evidence of what employer subsequently learned about alleged employee misconduct was irrelevant under FRE401 and unduly prejudicial under FRE403, because it does not relate to what the decision maker knew at the time. Exclusion of Internal Affairs report on incident, meanwhile, not shown to be unduly prejudicial to employer. But jury was misinstructed that employee only had to show misconduct of "comparable seriousness," instead of being nearly identical. The instruction was prejudicial because certain aspects of the plaintiff's situation were unique and important to how the investigation shaped up (e.g. assault involved an ex-inmate and took place off-duty, suggesting an integrity issue). Case remanded for new trial; district court did not err in denying judgment as a matter of law.

Patrick v. Ridge, 394 F.3d 311, 94 FEP 1688 (5th Cir. 2004). Panel: WEINER, Reavley, Davis. Claims on Appeal: ADEA failure to promote. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Defendant failed to meet its burden of production under McDonnell Douglas and Burdine by offering, as reasons not to promote the plaintiff, that (1) he was "not sufficiently suited" to the job (too imprecise); and (2) the successful candidate was the "best qualified" (where the record showed that the employer was not apprised of the candidates' relative qualifications at the time that it made the decision). Because the defendant relied on after-acquired information as a justification for its decision, that justification could not have motivated the decision as a matter of law.

Brazoria County, Texas vs. EEOC, 391 F.3d 685, 94 FEP 1356 (5th Cir. 2004). Panel: BARKSDALE, Lynn [PICKERING, dissenting in part]. Disposition Below: Title VII retaliation. Disposition Below: Award to plaintiff ($20,500 in compensatory damages; $18,952.50 in attorney's fees; and $2759.73 in costs) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: In administrative proceeding before commission under Government Employee Rights Act, 42 U.S.C. § 2000e-16a to 16c employee alleged (among other things) that she suffered ostracism in her job and that her employer (a county and a justice of the peace) wrote a defamatory letter accusing the employee's husband of theft, all in retaliation for complaining about harassment. Employee-intervenor's cross-appeal barred jurisdictionally, because filed more than 60 days after EEOC's decision. Previous decision giving employee leave to file petition out-of-time by motion panel not binding on merits panel after full briefing on issue. On merits, the panel finds that the GERA extends liability to the full breadth of Title VII for such employees (following preexisting Fifth Circuit case law decided under a predecessor section, 2 U.S.C. §§ 1201, 1202, 1220). But court finds no liability for acts of ostracism or libel, on the ground that the such activity did not constitute an "ultimate employment action," as required under period circuit case law (Mattern v. Eastman Kodak Co. ).

Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 94 FEP 665 (5th Cir. 2004). Panel: PRADO, Jolly, Jones. Claim on Appeal: 1. Title VII, §§ 1981 and 1983 retaliation and harassment (race). 2. Title VII, §§ 1981 and 1983 promotion, discrimination (race) and retaliation. First Amendment retaliation claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Holding, in matter of first impression for circuit, that Title VII claim may be barred by res judicata if, at the time of the earlier suit, the plaintiffs have not yet received a right-to-sue letter for the second action. 2. For racial discrimination claim, plaintiffs did not meet prima facie standard because they facially did not qualify for promotion under education and length of service criteria. Assuming plaintiff met prima facie test for retaliation, reason furnished for failure to promote (plaintiffs failed to meet minimum qualifications for position) not pretextual, despite that department revised qualifications during hiring process to add test requirement (plaintiffs did not meet requirements even before test requirement was added).

Arbaugh v. Y&H Corp., 380 F.3d 219, 94 FEP 360 (5th Cir. 2004). Panel: DEMOSS, Garza, Clement. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment, vacating jury verdict for plaintiff [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Noting circuit (and intracircuit) split, court reaffirms prior decisions holding that definition of "employer" under Title VII setting minimum number of employees presents issue of subject matter jurisdiction. District court did not err in finding that delivery drivers were not "employees" (under hybrid economic realities/common law test), because drivers supplied their own vehicles, paid their own expenses, earned most of their income from tips, received a Form 1099, could work for other companies, collaborated on setting schedules. Owners themselves concededly not employees under Supreme Court's recent decision, Clackamas Gastroenterology. Owners' spouses, under same authority, were also not employees for Title VII purposes; only services they performed were occasional advertising and promotional work, and they otherwise shared in ownership of business with husbands.

Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 94 FEP 91 (5th Cir. 2004). Panel: GARZA, Barksdale, [STEWART, dissenting]. Claim on Appeal: § 1981 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: African-American plaintiff was terminated on performance grounds (specifically, client development). Plaintiff failed to establish a prima facie case that he was given less time than his white counterparts to build up his business and more guidance by management, and that at least six (of 16) of his co-workers had negative performance evaluations as well. But the record showed varying circumstances among the white co-workers, and some white employees were also terminated). Moreover, even assuming plaintiff made out prima facie case, employer's reason for its decision was not shown to be false.

Roberson v. Alltel Information Services, 373 F.3d 647, 93 FEP 1836 (5th Cir. 2004). Panel: GARZA, Barksdale, Stewart. Claim on Appeal: 1. Title VII, § 1981 and ADEA termination. 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. HR manager testified that plaintiff's termination in RIF was based on objective criteria applied to all employees in unit. Reeves does not make all decision makers automatically "interested" witnesses, whose testimony should be disregarded on summary judgment. Employee's direct supervisor did not influence the termination decision by furnishing too few assignments to plaintiff; assignment decisions were affected by client requests, not supervisor judgment. 2. That RIF occurred after plaintiff made discrimination complaint not probative of causation, there was no evidence of pretext in reasons for listing plaintiff in RIF.

Shafer v. Army & Air Force Exchange Service, 376 F.3d 386 (5th Cir. 2004). Panel: JOLLY, Higginbotham, DeMoss. Claim on Appeal: Title VII discrimination and retaliation (sex). Disposition Below: Judgment entered on findings of special master; $1 million compensatory damages and attorney's fees [plaintiffs]. Outcome on Appeal: Reversed [defendant]. Grounds: Special master who was appointed to adjudicate contempt motion against defendant exceeded scope of referral under Fed. R. Civ. P. 53 by hearing and entering findings on subsequent retaliation and discrimination claims by same plaintiff. District court's failure to observe procedural minima of Rule 53 (such as notifying defendant that it was referring new claims to special master) and fact that new claims were not consolidated with old ones, as required under Fed. R. Civ. P. 43, was prejudicial to defense. Accordingly, district court erred in adopting special master's findings on those claims. Regarding treatment of contempt claim, special master applied wrong standard of review (preponderance of evidence, rather than clear and convincing); moreover plaintiff furnished insufficient evidence of causal link between her protected activities and reprimands. Award of $10,000 fine to plaintiff for failure to update personnel records exceeded the $1000 cap under 42 U.S.C. §2000h and was entered without procedural protections required for punitive sanctions (finding of criminal intent, proof beyond a reasonable doubt). Plaintiff lacked standing as former employee to obtain Injunctive relief to reform HR practices. Plaintiff's fee award reversed because she was no longer a prevailing party. See also Shafer v. AAFES, 277 F.3d 788 (5th Cir. 2002).

Rachid v. Jack In The Box, Inc., 376 F.3d 305, 93 FEP 1761 (5th Cir. 2004). Panel: CLEMENT, Higginbotham, Dennis. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: ADEA plaintiff not required to present direct evidence of discrimination to pursue mixed-motive ADEA case, in light of Desert Palace. Plaintiff presented genuine issue of material fact about whether manager who repeatedly made age-biased statements caused plaintiff to be fired for alleged work rule infraction on reporting employee overtime (that was unclear, and which plaintiff arguably did not violate). That younger managers were fired for same violation did not preclude pretext, where different managers made those decisions and other violations were more severe.

May v. Higbee Co., 372 F.3d 757, 94 FEP 44 (5th Cir. 2004). Panel: KING, Reavley, Garza. Claim on Appeal: Title VII promotion (sex). Disposition Below: Denying motion to compel arbitration [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Court had appellate jurisdiction for interlocutory appeal of order under 9 U.S.C. § 16(a)(1), because there was indisputably an agreement to arbitrate that met the requirements of 9 U.S.C. § 3, despite the employee's challenge to the validity of that agreement. On the merits, employee assented to arbitration both by signing an acknowledgment of receiving the policy and by continuing to work for employer. District court erred under Mississippi law by considering parol evidence to vary the terms of the agreement. Unconscionability defense waived on appeal.

Pegram v. Honeywell, Inc., 361 F.3d 272, 93 FEP 649, 15 A.D. Cases 523 (5th Cir. 2004). Panel: STEWART, Garwood, Jones. Claim on Appeal: 1. §1981/Tex. state law discrimination (race); 2. §1981 termination; 3. §1981 transfer; 4. ADA/Tex. state law disability discrimination. ERIS and state law actions [not discussed here]. Disposition Below: 1. Summary judgment [defendant]; 2. Summary judgment [defendant]; 3. Summary judgment [defendant]; 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]; 2. Reversed [plaintiff]; 3. Reversed [plaintiff]; 4. Affirmed [defendant]. Grounds: 1. Dismissed on timing grounds. Continuing violation theory does not rescue claims of loss of training opportunities, approval to participate in MBA program and interaction with clients; 2. District court ignored termination claim in decision; 3. Although loss of prestige because of transfer does not by itself constitute an adverse employment action, transfer that takes away a substantial benefit (here, incentive pay) is a demotion. Evidence of pretext included employer's failure to consider plaintiff's background experience selling core product, that he excelled and exceeded his quotas, and that he was replaced by white employee with far less experience; 4. No evidence that degenerative back ailment substantially limited plaintiff in any major life function, or that employer so regarded him.

Pineda v. United Parcel Service, Inc., 360 F.3d 483, 15 A.D. Cases 326 (5th Cir. 2004). Panel: GARZA, Davis, Little. Claim on Appeal: Texas state law retaliation. Disposition Below: Judgment after a jury trial; $400,000 compensatory damages [plaintiff], but remitted to $202,500. Outcome on Appeal: Reversed [defendant]. Grounds: Rehearing decision, vacating 353 F.3d 414 (5th Cir. 2003). Owing to new decision, Wal-Mart Stores, Inc. v. Canshola, 121 S.W.3d 735 (Tex. 2003), court finds that plaintiff cannot sustain retaliation claim under Texas Commission on Human Rights Act. Plaintiff presented no evidence that employer singled out plaintiff for investigation (for Thereats of violence) and eventual termination because he engaged in protected activity (filing charge, giving a deposition in a discrimination case).

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