James E. Byrom

Thompson & Horton LLP3200 Southwest Freeway

Suite 2000Houston, Texas 77027

Employment Case Law Update

State Bar of Texas33rd ANNUAL SCHOOL LAW SECTION

San Antonio - July19-20, 2019

Presented by Jim ByromThompson and Horton, LLP

Not Protected ActivityDeFrancesco v. Memorial Vill. Police Dep’t, No. 01-17-00660-CV,

2019 WL 1388006 (Tex. App.–Houston [1st Dist.] Mar. 28, 2019, no pet.) (mem. op.) (internal references omitted).

• 1. Officer telling superiors about a single instance where twofellow officers showed co-officer an offensive video with racialslurs was not protective activity.

• 2. Acts of officer’s attorneys sending two separate letterscomplaining that police department and its agents intentionallydiscriminated against officer was not protective activity.

• 3. Officer’s statements to chief of police about racialharassment in response to a disciplinary action was notprotected activity.

• 4. Police officer telling his sergeant and his chief of police about asingle instance where two fellow officers showed co-officer anoffensive video on a video-sharing website which used a racial slur todescribe African-American president was not protected activity…since officer’s mere mentioning of the isolated incident could not havebeen accompanied by a reasonable belief that police department wasengaging in discriminatory employment practices.

• 5. Acts of police officer’s attorneys sending two separate letters topolice department’s director of human resources complaining thatpolice department and its agents intentionally discriminated againstofficer because of his race and age were not protected activity… whereneither letter stated that the factual basis for officer’s complaint, officerfailed to cite any example of where department negatively altered theterms, conditions, or privileges of his employment on the basis of hisage or claimed Hispanic heritage, and officer failed to provide thenames of the officers who allegedly uttered those racial and ethnicslurs, what those slurs were, when they were uttered, or the context inwhich they were made.

• 6. Police officer’s statements to chief of police about racialharassment by other police officers…in response to a disciplinaryaction against him for comments he made about his supervisorwhere in the nearly 1,000-word response, officer used only 16 ofthose words to discuss sergeant’s alleged racial slur against officer’salleged Hispanic heritage, officer made the statements not as acomplaint but as an effort to mitigate any punishment he mightreceive for disparaging police department and officers, and chiefspecifically referenced officer’s response noting that he consideredthe seemingly casual conversation, officer’s time at this agency, andofficer’s response to the complaint.

• 7. DeFrancesco’s claim of Hispanic heritage is relatively new.During his first marriage, between 1985 and 1991, he could notrecall whether he referred to himself as Hispanic. For the firstseveral years of his employment with the Houston PoliceDepartment, he identified as “white.” But shortly after the HoustonPolice Department settled a lawsuit brought by and on behalf ofAfrican-American and Hispanic officers, DeFrancesco identifiedhimself as “Hispanic” on an application for a promotion to sergeant.

• Although DeFrancesco claims to be of Hispanicheritage, this has not stopped him from voicing raciallyderogatory criticisms of Hispanics.

• Chief Osborne placed DeFrancesco on administrativeleave with pay, pending an investigation into severalmatters, including his missing court appearances inFebruary and May of 2013; sending a text message to adispatcher that stated, “Keep Sosa in your prayers; sheis going to need it before this is over”; revealingpotentially exculpatory information to the defenseattorney in a pending criminal case but not to theprosecutor; and making public comments on aFacebook page that called fellow officers in theDepartment into disrepute.

• Chief Sanders explained the report’s allegation that DeFrancescoleft the jurisdiction to return home without notifying his supervisoror otherwise receiving permission. DeFrancesco acknowledged thathe left the jurisdiction to get his radio from his house.

• The evidence is that after MVPD discovered the Denny’s tape andheard DeFrancesco verbally abuse MVPD and its officers, MVPDinitiated a disciplinary proceeding against him. Following internalpolicies, MVPD allowed DeFrancesco to respond to the allegations.

• DeFrancesco did not attribute the “hostile work environment” toany racial or age discrimination. Rather, according to DeFrancesco,the “hostile work environment” was created by Officer Norwood,who once said that “all [he] has for DeFrancesco is a Remingtonslug” and who “constantly ... tr[ied] to rat on [DeFrancesco] foranything.”

HOLDING:

• No employer would have read DeFrancesco’s response andbeen put on notice that a charge of racial discriminationwas being made, nor would any person writing thatresponse reasonably believe that he was opposingdiscriminatory practices. DeFrancesco’s response to thedisciplinary action against him was not a protected activity.

• Because we conclude that the evidence conclusivelydemonstrates that DeFrancesco did not engage in aprotected activity, the trial court properly granted MVPD’splea to the jurisdiction and motion for summary judgment.We therefore overrule DeFrancesco’s first issue and do notreach his remaining issues.

Fort Bend Cnty. v. Davis, 139 S.Ct. 1843, 1849–51 (2019).

Perez v. Brennan, 766 F. App’x. 61, No. 18-40520, 2019 WL 1387825 (5th Cir.March 26, 2019) (citing Davis v. Fort Bend Cnty., 893 F.3d 300, 305 (5th Cir. 2018))(per curiam).

Lawson v. Jason Pharm., Inc., No. 3:17-CV-2648-L, 2019 WL 2448849, (N.D. Tex.June 12, 2019) (mem. op.).

Fifth Circuit recently held that a Title VII plaintiff’s failure to exhaust administrativeremedies “is not a jurisdictional bar but rather a prudential prerequisite to suit” thatshould be analyzed in the context of Federal Rule of Civil Procedure 12(b)(6). Perezv. Brennan, 766 F. App’x 61, No. 18-40520, 2019 WL 1387825, at *3 (5th Cir. 2019)(per curiam) (citing Davis v. Fort Bend Cnty., 893 F.3d 300, 305 (5th Cir. 2018)).The Supreme Court likewise recently held that the charge-filing requirement is notjurisdictional but rather a prerequisite to filing suit, and a defendant’s challenge onthose grounds may, therefore, be forfeited if not timely raised. Fort Bend Cnty. v.Davis, 139 S. Ct. 1843, 1849-51 (2019).

II. EXHAUSTION OF REMEDIES UNDER TITLE VII NOT JURISDICTIONAL

Free v. Granite Publications, L.L.C., 555 S.W.3d 376 (Tex. App.–Austin 2018, no pet.).

The Court cited Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500(Tex. 2012). Because the case involved a governmental defendant, thecourt followed the directive of the Legislature in amended section 311.034of the Government Code and determined that section 21.202(a) is amandatory statutory prerequisite.

“ ‘[A]s an intermediate appellate court, we are not free to mold Texas lawas we see fit but must instead follow the precedents of the Texas SupremeCourt unless and until the high court overrules them or the TexasLegislature supersedes them by statute.’ ” New Braunfels v. Stop theOrdinances Please, 520 S.W.3d 208, 224 (Tex. App.—Austin 2017, reh’gdenied). For now, we are compelled to hold that the district court lackedsubject matter jurisdiction over Free’s claims.

III. TCHRA 180 DEADLINE IS JURISDICTIONAL

VII. TEMPORAL PROXIMITY IN REVERSE

• Johnson v. PRIDE Indus., No. EP-18-CV-00044-FM, 2018 WL6624691 (W.D. Tex. Dec. 18, 2018), appeal docketed, No. 19-50173(5th Cir. Mar. 1, 2019) (internal citations omitted).

• See the paper for the laundry list of statements and actions Plaintiffconsidered discriminatory.

• Plaintiff resigned over six months following the last reported incident,the one involving the magazine loaded with Dummy Rounds. Plaintiffdoes not point to any other incidents that occurred during those sixmonths. Rather, Plaintiff claims to have been subjected to a “patternof persistent racial harassment.” While the court is mindful of theharmful effects of racial discrimination, this claim for constructivedischarge is based on retaliation for engaging in a protected activity—the filing of complaints. This is not a claim for constructive dischargeon the basis of racial discrimination. An alleged pattern of persistentracial harassment is inapposite to this claim and does not precludesummary judgment.

V. DISCRIMINATION FAILURE TO CONFORM TO SEX ORGENDER STEREOTYPE

Senegal v. Yum! Brands, No. CV H-18-1734, 2019 WL 448943 (S. D. Tex.Feb. 5, 2019).

Title VII does not protect against sexual orientation discrimination. Brandonv. Sage Corp., 808 F.3d 266, 270 n.2 (5th Cir. 2015) (“Title VII in plain termsdoes not cover ‘sexual orientation.’ ”); Smith v. Liberty Mut. Ins. Co., 569F.2d 325 (5th Cir. 1978); see also Berghorn v. Tex. Workforce Comm’n, No.3:17-CV-01345-L, 2017 WL 5479592, at *3 (S.D. Tex. Nov. 15, 2017).

However, “[a]ctionable sex discrimination under Title VII includesdiscrimination against those who do not conform to sex or genderstereotypes.” Wittmer v. Phillips 66 Co., 304 F. Supp. 3d 627, 634 (S.D. Tex.2018), aff'd on other grounds, 915 F.3d 328 (5th Cir. 2019); PriceWaterhouse v. Hopkins, 490 U.S. 228, 250–51, 109 S. Ct. 1775 (1989),superseded by statute on other grounds, 42 U.S.C. § 2000e–2(m).

VI. TIMELINE BEGINS WHEN EMPLOYEE IS INFORMED

At a meeting on March 14, 2016, Walton, on behalf of UTMDA, presentedPhillips with an “Intent to Terminate” letter, stating, in pertinent part, asfollows:

It is my intent to terminate your employment for unacceptable conductfor falsification of time....

On April 19, 2016, Walton, on behalf of UTMDA, sent Phillips a“Termination Decision” letter, stating, in pertinent part, as follows:

This Letter is to inform you of the termination of your employment with[UTMDA] effective immediately. The decision to terminate youremployment was based on your violation of conduct and attendanceexpectations in accordance with [UTMDA’s] Disciplinary ActionPolicy.

• 6. On October 11, 2016, Phillips filed with the Texas WorkforceCommission (“TWC”) and Equal Employment OpportunityCommission (“EEOC”).

• 7. With respect to when an unlawful employment practice accrues,the Texas Supreme Court has held: “Our precedent establishes thatthe 180–day limitations period in the TCHRA begins ‘when theemployee is informed of the allegedly discriminatory employmentdecision, not when that decision comes to fruition.’ ” Prairie View A& M Univ. v. Chatha, 381 S.W.3d 500, 516 (Tex. 2012) (quotingSpecialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex.1996, reh’g overruled)); see also Delaware State Coll. v. Ricks, 449U.S. 250, 258, 101 S. Ct. 498, 504 (1980)

• That an employee may have felt the effects of discriminatorytreatment later, or that the damage may continue to occur for anextended period of time after the discriminatory treatment, does notextend the commencement of limitations. Specialty Retailers, 933S.W.2d at 493.

X. LIMITATIONS (AFFIRMATIVE DEFENSE) IS NOT PROPER FOR PLEA TO

THE JURISDICTION• Sims v. Madisonville, No. 08-15-00113-CV, 2018 WL 4659572 (Tex.

App.–El Paso, Sept. 28, 2018, pet. filed (Dec. 12, 2018)) (notdesignated for publication).

• The statute of limitations may be raised as an affirmativedefense. TEX. R. CIV. P. 94. However, our sister courts haverepeatedly concluded that an affirmative defense of limitationsunder the Whistleblower Act cannot be raised in a plea to thejurisdiction but must be raised and proved in summaryjudgment proceedings. Our conclusion is the same.

XI. EQUITABLE ESTOPPEL—YOU TOLD ME I COULD• Byrd v. City of Houston, No. H-18-778, 2019 WL 355746 (S.D. Tex. Jan

29, 2019) (citations to the record omitted).

• Plaintiff was not an eligible employee when she requested FMLA leavebecause she had not worked for the City for a full year. However, sheargues that the City is estopped from asserting an ineligibility defensebecause the City represented to her that she was eligible, had reason toknow that she would rely on that representation, and she reasonablyrelied on that representation, to her detriment.

• An employer who without intent to deceive makes a definite buterroneous representation to his employee that she is an “eligibleemployee” and entitled to leave under FMLA, and has reason to believethat the employee will rely upon it, may be estopped to assert a defenseof non-coverage, if the employee reasonably relies on that representationand takes action thereon to her detriment.

III. REPORT OF STUDENTS VIOLATIONS OF THE LAW UNDER WHISTLEBLOWER ACT

• Van Deelan v. Spring Indep. Sch. Dist., No. 14-17-00432-CV, 2018 WL 6684278 (Tex. App.–Houston [14th Dist.]Dec. 20, 2018, no pet.) (mem. op.).

• “to the extent that Van Deelan reported about studentsviolating the law, retaliation for those complaints wouldnot be subject to Texas Whistleblower Act protection”’.

XV. MUST USE TCHRA, NOT WHISTLEBLOWER STATUTE

• Under the TCHRA, it is unlawful for an employer to retaliateor discriminate against an employee who “participates in anymanner in an investigation, proceeding, or hearing.” TEX.LAB. CODE ANN. § 21.055(4).

• As a public employee, Jackson had to use the “specific andtailored anti-retaliation remedy” available to her under theTCHRA rather than seek remedies based on the same allegedmisconduct under the Whistleblower Act. We conclude thatJackson was not entitled to rely on the Whistleblower Act onher complaints that the County took some of her job dutiesaway from her, that the County denied her rights under theCollective Bargaining Agreement, that the County denied her afair appeal of her grievance, and that the County subjected herto a hostile work environment.

XVI. PURELY INTERNAL COMMENTS AND 1ST AMENDMENT Webb v. Huntsville Police Dep’t, No. 4:17-CV-03829, 2019 WL 669850 (S.D. Tex. Feb 19, 2019) (internal citations omitted).

Plaintiff alleges that she filed internal complaints—up the chain ofcommand—concerning physical assaults and sexual harassmentthat she had suffered at the hands of her supervisor. Plaintiff wasterminated and brought 1st Amendment Claim.

It is not clearly established law that an internal complaint madeonly to supervisors—primarily to vindicate one’s own rights—qualifies as protected speech under the First Amendment,Lunsford is entitled to qualified immunity concerning Plaintiff’sinternal complaints up the chain of command.

• In addition to her internal complaints, Plaintiff alleges that shelater reached out to members of City Council regarding the poortreatment of herself and other female officers before heremployment was terminated. In other words, her externalstatements to members of City Council were a “continuation” ofthe prior complaints she had already submitted up the chain ofcommand in the police department.

• Because the Court holds above that it is not clearly establishedthat Plaintiff’s internal complaints up the chain of command atthe police department qualified as protected speech, it followsthat Lunsford is also entitled to qualified immunity concerningPlaintiff’s later contact with City Council, which was acontinuation of her prior internal complaints.

XVII. WORKERS COMPENSATION ACT RETALIATION AND IMMUNITY

• Ellis v. Dallas Area Rapid Transit, No. 05-18-00521-CV, 2019WL 1146711 (Tex. App.–Dallas Mar. 13, 2019, pet. filed (Apr.26, 2019)) (mem. op.) (internal references omitted).

• In City of LaPorte v. Barfield, 898 S.W.2d 288, 298–99 (Tex.1995), the supreme court concluded that a political subdivision’simmunity from workers’ compensation retaliation claims hadbeen clearly and unambiguously waived by the PublicSubdivisions Law, TEX. LAB. CODE ANN. §§ 504.001–.073,which made chapter 451 applicable to political subdivisions.

• A decade after Barfield, however, the legislature amended laborcode chapter 504 to provide that “[n]othing in this chapterwaives sovereign immunity or creates a new cause of action.”TEX. LAB. CODE ANN. § 504.053(e). As a result, in TravisCentral Appraisal Dist. v. Norman, 342 S.W.3d 54, 58, 59 (Tex.2011), the court concluded that the amendment resurrectedimmunity for retaliation claims brought by employees ofpolitical subdivisions.

• As the Norman court noted, “[t]his no-waiver provisionconsiderably clouds the chapter’s former clarity regardingretaliatory discharge claims” and has “muddled the issue.” Id.Thus, the Norman court reasoned, there was no longer a clearand unambiguous waiver of immunity which a court must find tojudicially effectuate a waiver.

• Effective September 1, 2017—after Ellis filed his lawsuit—chapter504 was again amended, this time to provide damage limitations onthe liability of political subdivisions for workers’ compensationretaliation claims brought by their employees—the very claims thatNorman held were no longer actionable as a result of the 2005amendments. TEX. LAB. CODE ANN. § 504.002(a-1).

• At the same time, chapter 451 of the labor code was amended toexpressly allow “first responders” to seek relief under the chapter, andin such cases, “[s]overeign or governmental immunity is waived andabolished to the extent of liability created by this chapter.” TEX.LAB. CODE ANN. § 451.0025(b).

• While it appears nonsensical that the legislature would add ageneral damage limitation for chapter 451 claims brought byemployees of political subdivisions if it did not intend to waivegovernmental immunity from suit, the amendment did notpurport to alter the express directive found in section504.053(e), that “[n]othing in this chapter waives sovereignimmunity or creates a new cause of action.” Moreover, at thesame time the damage limitation was enacted, chapter 451 wasamended to specifically waive immunity for claims of firstresponders, as defined in section 421.095 of the TexasGovernment Code, but not for others like Ellis, a bus driver.

• We cannot conclude in these circumstances that a waiver ofgovernmental immunity is clear and unambiguous, as isrequired. Like the Norman court, we view the law as “toointernally inconsistent” to meet that standard.

REQUESTING LEAVE ≠ PROTECTED ACTIVITY?

• Texas Dept. of Trans. v. Lara, No. 03-18-00153-CV, 2019 WL2052930 (Tex. App.–Austin May 9, 2019, no pet.) (notdesignated for publication).

• Lara, however, contends he engaged in protected activity whenhe asked for leave to recover from surgery. As support for hisinterpretation of the TCHRA, Lara cites to this Court’sunpublished opinion in Texas State University v. Quinn, No. 03-16-00548-CV, 2017 WL 5985500, at *3 (Tex. App.—AustinNov. 29, 2017, no pet.) (mem. op.). But we did not suggest inQuinn that a reasonable accommodation request is a protectedactivity. See id. Instead, we merely summarized Quinn’sposition that “she was engaged in protected activity when,among other things ... she requested an accommodation.”

• The TCHRA’s prohibition on retaliation provides:• An employer, labor union, or employment agency commits an

unlawful employment practice if the employer, labor union, oremployment agency retaliates or discriminates against a person who,under this chapter:

• (1) opposes a discriminatory practice;• (2) makes or files a charge;• (3) files a complaint; or• (4) testifies, assists, or participates in any manner in an

investigation, proceeding, or hearing. TEX. LAB. CODE § 21.055(retaliation).

• Unlike the analogous provision of the ADA, this Section includes nomention of the exercise of rights otherwise granted by the statute—like the right to request accommodation—as protected activity thatmight give rise to a retaliation claim.

XXI. AFFIRMATIVE DEFENSES• Garcia v. Harris Cnty., No. CV H-16-2134, 2018 WL 6003387

(S.D. Tex. Nov. 15, 2018), on reconsideration, No. CV H-16-2134, 2019 WL 132382 (S.D. Tex. Jan. 8, 2019).

• Whether affirmative defenses are subject to the fair noticestandard set forth in Conley v. Gibson or the heightenedpleading standard set forth by the Supreme Court in BellAtlantic Corp. v. Twombly and Ashcroft v. Iqbal is unsettled lawin the Fifth Circuit.

• However, the Fifth Circuit has applied the fair notice standardin opinions after Twombly and Iqbal, suggesting that the lesserstandard of fair notice is the appropriate standard foraffirmative defenses.

XXII. GOOD FAITH BELIEF OF DISHONESTY UNDER FMLA

• DeVoss v. Southwest Airlines Co., 903 F.3d 487 (5th Cir. 2018).

• On June 24, DeVoss called Southwest to invoke a separatecommuter policy after realizing that she would be late for work.When informed that the commuter policy would not apply to herparticular situation, and that she would be assessed attendancepoints for being late, DeVoss stated that she was sick, andsubsequently missed a three-day work assignment. As a result of thatphone call, Southwest initiated an internal investigation thatconcluded that DeVoss’s statement was dishonest and grounds fortermination.

• On July 2, Southwest notified DeVoss that she would beterminated as of July 7, citing her alleged dishonesty. DeVossfiled a grievance under the collective bargaining agreement,that grievance was denied, and, almost a year later, she filedsuit against Southwest alleging interference and retaliationunder the FMLA. Southwest removed the case to federal court.

• For the purposes of an FMLA claim, what matters is notwhether Southwest was objectively correct about DeVoss’sdishonesty, but whether it had a good-faith belief thatdishonesty existed, and that such belief was the basis for thetermination. See Waggoner v. City of Garland, 987 F.2d 1160,1165–66 (5th Cir. 1993).

HXXIV. GENDER DISCRIMINATION DISJUNCTIVE(OR NOT)

• Harp v. Cooke Cnty., No. 4:17-CV-74, 2018 WL 6617637 (E.D.Tex. Dec. 18, 2018).

• Gender-discrimination claims follow a burden shifting rubric,as set forth in McDonnell Douglas Corp. v. Green, 411 U.S.792 (1973)

• The fourth prong may be satisfied either by showing thatPlaintiff was treated differently than her non-protected classpeers who were similarly situated or by establishing thatPlaintiff was replaced by someone outside his or her protectedgroup.

• But,

• Remaley v. TA Operating LLC, 561 S.W.3d 675 (Tex. App.–Houston[14th Dist.] 2018, reh’g deied (Sept. 18, 2018), review denied (Oct. 9,2018)). Citing Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583(Tex. 2017), the supreme court omitted the disjunctive formulation ofelement four.

• “For Rincones to prevail here, he must first establish a prima faciecase of race or national-origin discrimination by showing ... [hisemployer] gave preferential treatment to a similarly situated employeeoutside the protected class.” Applying this teaching, we conclude thatsatisfying a prima facie case in this context requires Remaley toproffer evidence tending to show he was treated less favorably than asimilarly situated person who was female or younger.

XXV. NO DUE DILIGENCE AFTER LIMITATIONS EXPIRED• Fields v. SDH Services E., LLC, No. 4:18-CV-1438, 2019 WL

2552688 (S.D. Tex. Feb. 6, 2019), rev’d in part No. 4:18-CV-01438, 2019 WL 1098369 (S.D. Tex. Mar. 7, 2019) (citationsto the record omitted).

• Fields sued Sodexo, Inc. and SDH on January 28, 2016asserting claims under Title VII, TCHRA, and common lawnegligence. Counsel for Sodexo offered on more than oneoccasion to accept service on behalf of Sodexo and SDH, butPlaintiff’s counsel did not respond to the offer. Defensecounsel withdrew the offer to accept service on July 6, 2016.

• On March 27, 2018, Plaintiff’s counsel again requestedcitations be issued, but both citations named Sodexo as theparty to be served. Plaintiff did not serve the March 27, 2018citations

• Plaintiff then filed an Amended Petition. A citation was issuedfor service on Sodexo on April 11, 2018, and Plaintiffperfected service on Sodexo’s registered agent on April 13,2018. Plaintiff did not serve SDH at that time.

• Plaintiff has failed to demonstrate that she did anything topursue service between September 6, 2016, when the certifiedmail envelope was returned to sender, and April 2018 when sheserved her petition on Sodexo’s registered agent. By that time,the applicable statutes of limitations had long expired. Adiligent plaintiff does not allow almost two years to passwithout making any effort to serve defendants. The courtconcludes that Plaintiff did not bring her suit within theapplicable limitations periods on her claims because she didnot diligently pursue service after filing her lawsuit in statecourt. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990)

XXVI. HURRICANE HARVEY RELIEF• As a general rule, a lawsuit asserting Title VII claims must be

filed within 90 days of a plaintiff’s receipt of a right-to-sue letterfrom the EEOC. See 42 U.S.C. § 2000e-5(f)(1).

• A person who fails to file a lawsuit within the 90-day periodforfeits her right to pursue such a claim. See Espinoza v. Mo.Pac. R. Co., 754 F.2d 1247, 1251 (5th Cir. 1985). Because theFifth Circuit treats the 90-day period “akin to a statute oflimitations,” the 90-day filing requirement is subject to equitabletolling.

• On August 25, 2017…,

• Hurricane Harvey struck the Houston-Galveston area, causing Harris,Brazoria, and Galveston counties to be declared disaster areas byfederal and state officials. It was, quite literally, the storm of alifetime, breaking a national rainfall record for a single tropical storm.Unprecedented in size and force, Hurricane Harvey hit the Gulf Coastwith a vengeance, displacing thousands of residents from their homesas the result of a “flood event [ ] on an entirely different scale thanwhat we’ve seen before in the United States.” The herculean stormcaused an estimated $125 billion in damages. Truly, “meteorologists’worst case scenario ended up coming true.”

• Unfortunately, the powerful storm did not spare Jefferson and herfamily from pain, heartache, and despair. Concerned for her family’ssafety, Jefferson and her three children evacuated their home in TexasCity on the afternoon of August 25, 2017, packing everything theycould in her car. They tried to return to their home after the stormmade landfall, but severe flooding and road closures made thatimpossible. Faced with limited resources and minimal alternatives,Jefferson and her kids moved in with a cousin from August 31, 2017,to September 6, 2017.

• On September 6, 2017, Jefferson and her family finally obtained accessto their family home. But the “homecoming turned to heartbreak in aninstant. Not only was [their] house flooded and [their] belongingsdamaged and destroyed, but an eviction notice had been posted on[their] door earlier that day.” Although their house was badly damaged,Jefferson and her children stayed in the flooded home from September6 until September 14 or 15, 2017. To make matters worse, schools wereclosed and Jefferson was forced to stay home with her kids untilSeptember 11, 2017, preventing her from earning an income andlooking for a new place to live. On September 14 or 15, 2017, Jeffersonmoved back into her cousin’s apartment, where she stayed untilSeptember 29, 2017, when she was finally able to secure a new place tolive.

• Although equitable tolling is only to be applied in “rare and exceptionalcircumstances,” the Court believes that the instant circumstancescertainly merit application of the equitable tolling doctrine. Davis v.Johnson, 158 F.3d 806, 811 (5th Cir. 1998). It is the Court’s firm beliefthat if Hurricane Harvey and Jefferson’s resulting displacement do notconstitute extraordinary circumstances, then nothing does.

• It is important for a judge to make sure that he or she does notsimply become a robot, mechanically applying the law to agiven set of facts. A jurist must exercise sound judgment,humanity, and empathy, remembering that every person, nomatter her race, religion, socio-economic status, sexualorientation, or a myriad of other factors, deserves a chance tobe heard. The Court will go to great lengths to exercise itsdiscretion to ensure a litigant has an opportunity to present hercase to a judge or jury—especially when circumstancescompletely outside her control would otherwise slam thecourthouse door in her face. The Court, therefore, concludesthat Hurricane Harvey and Jefferson’s resulting displacementconstitute extraordinary circumstances that warrantapplication of the equitable tolling doctrine. Summaryjudgment should be denied.

XXXI. BEFORE TRIAL, BURDEN SHIFTING…AFTER TRIAL, SUFFICIENCY OF EVIDENCE• Texas Dep't of Transp. v. Flores, No. 08-17-00047-CV, 2019 WL

2121508 (Tex. App.–El Paso May 15, 2019, no pet.).

• In employment discrimination cases which have not been fullytried on the merits, appellate courts apply the burden-shiftinganalysis established in McDonnell Douglas.

• Where a discrimination case has been fully tried on the merits, areviewing court does not engage in a burden-shifting analysis;instead, appellate courts only inquire whether the evidence islegally sufficient to support the jury’s ultimate finding.

XXXII. “NOTICE PLEADING” DOES NOT SURVIVE MOTION TO DISMISS

• Davis v. Texas Health & Human Servs. Comm’n, No. 18-20053, 761 F.App’x. 451 (2019) (5th Cir. Mar. 21, 2019) (per curiam).

• Shirley Davis appeals the district court’s dismissal of her fourth attempt toplead discrimination and retaliation claims against her former employer. Ina memorandum order, the district court explained that Davis’s “scantdescriptions of the allegedly discriminatory actions fail to include anydetails about how the events she alleges were discriminatory” or that shefaced retaliation for Title VII protected activity.

• Davis argues the district court erred in applying an “evidentiary standard”when evaluating the sufficiency of her Third Amended Complaint. Davisinstead invokes a “notice pleading standard,” arguing “there is norequirement that specific facts are necessary,” but that she nonethelesspleaded sufficient facts to state plausible claims for Title VII discriminationand retaliation. We disagree. The district court applied the correct standard,citing Bell Atlantic Corporation v. Twombly for the requirement that tosurvive a Rule 12(b)(6) motion, a complaint must allege sufficient “facts tostate a claim to relief that is plausible on its face.”

XXXIII.CORRESPONDENCE BETWEEN EMPLOYER AND WC CARRIER IS PRIVILEGED

In re WHC, LLC, 570 S.W.3d 349, 351 (Tex. App.–El Paso 2018, orig.proceeding). (Mandamus case)• Discovery request in WHC’s wrongful termination case:

• All correspondence from your insurance carrier regarding[Sanchez], including status letters on claim, loss reports,correspondence regarding hearings with Workers’ CompensationBoard.

• Communications between employer, its attorneys, and its worker’scompensation insurance carrier about former employee’s worker’scompensation claim were protected from disclosure by the attorney-client and work product privileges in former employee’s wrongfultermination suit against employer…Even though employer wasrepresented by a different law firm in the worker’s compensation case;the privilege belonged to employer, not its attorneys, and the documentsthe trial court ordered employer to produce contained confidentialcommunications, its attorneys’ mental impressions, legal opinions, andstrategy with regard to former employee’s pending claims. TEX. R.EVID. 503(b)(1).

XXXVII. PLAINTIFF FAILED TO FILE AMENDED OR SUPPLEMENTAL CHARGE WITH EEOC• Wernert v. City of Dublin, 557 S.W.3d 868 (Tex. App.–Eastland

2018, no pet.).• Failure of employee to file amended or supplemental

administrative charge with Equal Employment OpportunityCommission (EEOC) for alleged acts that occurred after hisprevious EEOC charge precluded recovery in action againstformer employer, the city, for unlawful discrimination andretaliation under Texas Commission on Human Rights Act inconnection with serious on-the-job knee injury; employerrequired employee to use accumulated leave and terminated himafter he filed EEOC charge alleging discrimination based onphysical disability, and employee did not assert a retaliation claimarising from filing his EEOC claim but instead based retaliationclaim on his act of complaining to human resources departmentabout police chief’s alleged comment calling him a “cripple.”TEX. LABOR CODE ANN. § 21.001, et seq.

XXXVIII. AWARENESS OF PHYSICAL CONDITION ≠ “REGARDED AS DISABLED”Curley v. Tradition Senior Living L.P., No. 3:18-CV-00954-M,2019 WL 2395057 (N.D. Tex. June 6, 2019) (mem. op.)(references to trial record omitted).

Plaintiff offers evidence that Murphy noticed his limp andinquired about it. Plaintiff also presented evidence that Pearlmanwas present when Plaintiff was limping. Pearlman testified, to thecontrary, that he was not aware that Plaintiff walked with a limp.Even if Murphy and Pearlman were aware of the limp, however,this is not sufficient, by itself, to show that they regarded him ashaving an impairment that substantially limited a major lifefunction. Miles-Hickman v. David Powers Homes, Inc., 589 F.Supp. 2d 849, 865 (S.D. Tex. 2008) (“ “[T]o be ‘regarded as’disabled,” a plaintiff cannot simply rely on an employer’sknowledge of an employee’s physical condition.”)

XXXIX. PUBLIC V. PRIVATE SPEECH • Liebbe v. Dallas Indep. Sch. Dist., No. 3:16-CV-2413-S, 2018

WL 4621716 (N.D. Tex. Sept. 26, 2018), appeal docketed, No.19-10556 (Mar. 15, 2019)) (mem. op.) (references to trial recordomitted).

• To establish a First Amendment retaliation claim, a publicemployee must prove that: “(1) he suffered an adverseemployment action; (2) he spoke as a citizen on a matter ofpublic concern; (3) his interest in the speech outweighs thegovernment’s interest in the efficient provision of publicservices; and (4) the speech precipitated the adverseemployment action.” Nixon v. City of Houston, 511 F.3d 494,497 (5th Cir. 2007) (citations and internal quotation marksomitted). In its Motion, Dallas ISD challenges the second andfourth elements of Liebbe’s claim.

• The letter discusses allegations regarding Liebbe’s misconduct on thejob, his placement on administrative leave, the way Dallas 1SDpolice treated him when he was placed on leave, and Dallas ISD’sresponse to Liebbe’s attendance at the Board Briefing. The letterconcludes with Liebbe asking the Board to “gain control of thistreacherous situation before the administration forces [him] to seekjustice through the courts.” Thus, the Board Letter conveys thecomplaints of a Dallas ISD employee regarding his personalemployment situation and was sent by Liebbe as “an employeeembroiled in a personal employment dispute,” not as a private citizenon a matter of public concern.

XL. LETTER NOT ADVERSE PERSONNEL ACTION UNDER WHISTLEBLOWER ACT

• Walck v. City of Lubbock, No. 07-17-00096-CV, 2019 WL 1716781(Tex. App.–Amarillo Apr. 17, 2019, pet. filed (July 2, 2019)) (mem.op.).

• Letter of reprimand issued to city police officer for working on schoolrelated projects while on duty and using city equipment withoutpermission was not “adverse personnel action” under WhistleblowerAct; although officer felt investigation process was stressful, he lostsleep, felt ostracized, and he suffered financial loss when he paid$1,500 to attorney for representation in grievance proceeding, lettercaused no job-related consequences, officer was not demoted, heremained in his role as burglary detective, he neither sought nor beendenied promotion, and was not denied any pay raise, and letter wouldnot likely deter similarly situated, reasonable employee from reportingviolation of law. TEX. GOV’T CODE ANN. §§ 554.001–554.010.

XLI. STATEMENTS MADE AS EMPLOYEE OR CITIZEN?Rojas v. City of Grand Prairie, No. 3:18-CV-1776-K, 2019 WL 1115052(N.D. Tex. Mar. 11, 2019) (mem. op.).Rojas pleads a claim under 42U.S.C. § 1983 (2012) and alleges that the Defendants violated Rojas’sFirst Amendment Free Speech rights by terminating her in retaliation fora statement made in a survey submission.

Shortly before her termination, Rojas responded to an electronic surveyconducted by the Texas Court Clerks Association. According to theComplaint, the City required Rojas to be a member of the Texas CourtClerks Association, and the City paid the costs associated with hermembership. In her response to the survey, Rojas recommendedlegislative changes that would permit “undocumented people to obtaindrivers licenses in Texas.” When Cherry discovered Rojas’s surveyresponse, Cherry suspended and eventually terminated Rojas because ofher statement. Rojas alleges that the City, through City Manager TomHart, ratified Cherry’s decision to terminate Rojas in violation of herFirst Amendment rights.

• The facts pleaded by Rojas in her Complaint demonstrate thather speech was as an employee rather than as a citizen, and,therefore, is not subject to First Amendment protection.

• The Court finds that the speech as described in the Complainthas no analogue to speech by citizens, as the speech onlyoccurred because the City (1) employed Rojas, (2) requiredRojas to be a member of the Texas Court Clerks Association,and (3) paid the necessary fees for membership. See Andersonv. Valdez, 845 F.3d 580, 594 (5th Cir. 2016). Because Rojas’sspeech is unprotected as a matter of law, the Court dismissesRojas’s § 1983 First Amendment retaliation claim against bothDefendants.

XLII. ALLEGATIONS WERE ENOUGH• Pfau v. Mnuchin, No. 1:18-CV-422-RP, 2019 WL 2124673

(W.D. Tex. May 15, 2019) (references to trial record omitted).

The Court finds that Pfau has plausibly alleged that Drumgoole’sharassment created a hostile work environment. Drumgoole’sharassment was pervasive; he allegedly harassed Pfau for nearlythe entire time she was employed at the IRS, from the first weekof March 2017 (just after she finished her initial training) until atleast May 4 or May 11 (just before she resigned). During this time,in addition to the five specific harassment events described, Pfaualleges that “Drumgoole would repeatedly ask [her] if she hadenough work to do, would examine and criticize her completedassignments, and order [her] to stop working on assignments”—allwhile “stand[ing] so close to [Pfau’s] body as to touch [her] at theelbow and shoulder.” Drumgoole’s alleged harassment was notonly frequent; it was severe.

• Pfau believed she was faced with threats of physical violencebecause Drumgoole “punched one fist into his other hand’s openpalm” while he “frequently grunted and repeatedly made eyecontact with [her]” and had on a previous occasion “clenched hisfists” while telling Pfau to “quit her job.” A reasonable person inPfau’s position could objectively interpret these actions as a threatof physical harm, particularly in light of Drumgoole’s allegedongoing harassment and the fact that the later of these twoincidents occurred just days after Pfau reported Drumgoole’sbehavior—for which he “complained that he felt like he was theone being falsely accused, intimidated and harassed.”Drumgoole’s harassment was severe enough that Pfau claims shesuffered anxiety and insomnia from it and began taking leavefrom work to avoid Drumgoole. This severity was exacerbated,moreover, by the fact that Pfau was allegedly told by hersupervisor that Drumgoole was “more important” than she was,that he had already been subjected to “prior disciplinary actions,”and that “nothing could be done about his behavior.”

THIS SEEMS FUNNY TO ME

Spaghetti Again• Liccardi v. Delta Pers./Delta Staffing Servs., No. 3:16-CV-2537-

S (BT), 2018 WL 3979857 (N.D. Tex. July 25, 2018), report andrecommendation adopted, No. 3:16-CV-02537-S-BT, 2018 WL3974710 (N.D. Tex. Aug. 20, 2018) (references to trial courtrecord omitted).

• Her Original Complaint consisted entirely of the following:

• (1) Frauds and Swindles—Title 18 Part I Chapters 63 Section1341[;]

• (2) Conversion—Theft—Embezzlement—Title 18 US Code IChapter 31 Section 664[;]

• (3) Violation of Civil Rights—Title 42 US 1981A[;]• (4) Breach of Employment US Code 6503[;]• (5) Wage Payment and Collection—NJSA 34.11-4.7[;]• (6) Coercion—Title 42 Chapter 126 Subchapter IV Section

12203[;]• (7) Conceal—Title 42 Chapter 46 Subchapter XI Section

3795A[;]• (8) Unjust Enrichment[;]

• (9) Repeated, deliberate and intentional discrimination andviolation of [Plaintiff’s] civil rights[;]

• (10) Deliberate and intentional withholding of commissions forthe purpose of investment over 30 years[;]

• (11) Deliberate and intentional attempt to exclude or alienate inorder to withhold monies and claim financial gain[;]

• (12) Deliberate and intentional attempt to keep secret[;]• (13) Deliberate intent to never pay[;]• (14) Deliberate and intentional attempt to conceal records[;]

and• (15) Repeated, deliberate and intentional infliction of emotional

distress and financial injury.

• Defendants argue that Plaintiff’s claims should be dismissedpursuant to FED. R. CIV. P. 41(b), because Plaintiff continues todisregard the District Court’s order that directed her to take allof her “fragmented and multiple pleadings” and assemble theminto “one pleading,” so that the Court and Defendants are able to“ascertain from one pleading whether Plaintiff has stated at leastone claim on which relief can be granted.”

• The Court recommends that Plaintiff not be given any furtheropportunities to amend, because it would be futile. Plaintiff hasbeen given multiple opportunities to state a claim for relief.There is no reason to believe Plaintiff has not already allegedher best case. Giving Plaintiff a fifth opportunity to state aclaim for relief will only further prolong this litigation andcause prejudice to Defendants. See Xiumin Li v. Genentech,Inc., No. 3:17-CV-712-B, 2017 WL 6886720, at *13 (N.D. Tex.Dec. 20, 2017), report and recommendation adopted, No. 3:17-CV-712-B, 2018 WL 369157 (N.D. Tex. Jan. 10, 2018)(“Courts, nonetheless, may appropriately dismiss an action withprejudice without giving an opportunity to amend when it findsthat the plaintiff has alleged his or her best case.” (citing Jonesv. Greninger, 188 F.3d 322, 327 (5th Cir. 1999) ) ).

• The District Court should GRANT Defendants’ FourthAmended Motion to Dismiss, and dismiss this case withprejudice.

I’LL JUST QUIT---OK• In this action alleging claims for discrimination and retaliation

under the Family and Medical Leave Act of 1993 (“FMLA”),29 U.S.C. § 2601 et seq., and disability discrimination underthe Americans with Disabilities Act of 1990 (“ADA”), 42U.S.C. § 12101 et seq., and the Texas Commission on HumanRights Act (“TCHRA”), TEX. LAB. CODE ANN. § 21.001, etseq. (West 2015), defendant Quality Edge, Inc. (“QualityEdge”) moves for summary judgment.

• In July 2016 Carrizal contacted Pritchard to inform him that hehad received a job offer at a higher salary from AZZGalvanizing (“AZZ”), a competitor of Quality Edge. Carrizalasked whether Quality Edge would match the salary that AZZhad offered. He also told Pritchard that he was concerned thatthe employees he managed would leave Quality Edge if he left.

• Carrizal contends that he requested an accommodation while hewas employed with Quality Edge, citing to his August 3, 2016email to Sejat “requesting temporary leave to heal from thefall.” P. Br. 13. But as Quality Edge points out in its reply,Carrizal was not employed with Quality Edge on August 3,2016. He had already been terminated. “In situations where anemployee’s termination based on a legitimate,nondiscriminatory reason has been made effective but has notyet been processed, courts must not permit the employee to usethe ADA as a shield from being fired by suddenly requesting anaccommodation before the ink on h[is] valid termination papersis dry.” Green v. Medco Health Sols. of Tex., LLC, 947F.Supp.2d 712, 729 (N.D. Tex. 2013) (Boyle, J.), aff’d, No. 13–10667, 560 F. App’x. 398 (5th Cir. 2014).

• Summary judgment granted on termination and failure toaccommodate.

Things you don’t want to see in your opinion (1)

• Canada v. Texas Mut. Ins. Co., No. 18-50247, 766 F. App'x 74,80 (5th Cir. 2019) (per curiam).

• During the litigation, she amended her complaint seven times,repeatedly engaged in duplicative—and sometimes frivolous—motions practice, impugned the integrity and sought thedisqualification of the district court judge, tried to disqualifydefense counsel, filed a frivolous interlocutory appeal, and at onepoint attempted to voluntarily dismiss her claim because shebelieves “the legal proceedings in the United States is racist,supports racism, [and] staffs racist[s].” This decision will bringher odyssey to an end.

II. Things you don’t want to see in your opinion (Part Deux) • Grant v. U.S. Dep't of Transp., No. 4-18-CV-00444-ALM-

CAN, 2019 WL 1009408 (E.D. Tex. Jan. 28, 2019), report andrecommendation adopted, No. 4:18-CV-444, 2019 WL1003641 (E.D. Tex. Mar. 1, 2019) (references to trial courtrecord omitted).

• Pending before the Court is Plaintiff’s Complaint. The Courtrecommends that Plaintiff’s Complaint be DISMISSED, asspecified herein.

• Plaintiff is a serial filer of frivolous litigation in various federal courtsacross the country, .... the vast majority of [P]laintiff’s cases [of whichthe Court is aware] have been dismissed as frivolous under 28 U.S.C. §1915(e).” Grant v. United States Dep’t of the Treasury, No. 1:18-cv-457 (E.D. Va. 2018) (citing Grant v. Ill. Governor’s Office, No. 4:18-mc-1006 (S.D. Tex. 2018); Grant v. U.S. Dep’t of Defense, No. 18-cv-449 (E.D. Va. 2018); Grant v. Ill. Governor’s Office, No. 18-cv-829(E.D. Va. 2018) ). Plaintiff’s present Complaint recycles anemployment discrimination claim against the Office of the IllinoisGovernor filed already before numerous courts, including: the UnitedStates District Courts for the Eastern District of Virginia, District ofColumbia, Northern District of New York, Eastern District of NewYork, Eastern District of Pennsylvania, and Middle District ofAlabama. To assert his claims here, in the Eastern District of Texas,Plaintiff simply lined through various parts of his Illinois state courtcomplaint and handwrote certain changes, including naming theUnited States Department of Transportation and Department ofTreasury as defendants in place of the Office of the Illinois Governor.See Grant v. United States Dep’t of the Treasury, No. 1:18-cv-457(E.D. Va. 2018).

• Plaintiff then attaches to his Complaint: (1) a text order from theUnited States District Court for the Central District of Illinoisdenying Plaintiff’s request to proceed in forma pauperis anddismissing Plaintiff’s Complaint against the Illinois Department ofEmployment Security as frivolous pursuant to § 1915, citingeleven other of Plaintiff’s cases previously dismissed by the court(Grant v. Ill. Dep’t of Emp’t Security, No. 3:18CV03054-CSB-EIL(C.D. Ill. 2018) ); (2) an order from the United States DistrictCourt for the Northern District of Georgia dismissing Plaintiff’sComplaint against the Illinois Department of Transportation asfrivolous (Grant v. Ill. Dep’t of Transp., No. 1:18CV1474-TWT(N.D. Ga. 2018) ); (3) an order from the United States DistrictCourt for the Northern District of Georgia dismissing Plaintiff’sComplaint against the Office of the Illinois Governor as frivolousin a separate case (Grant v. Office of the Ill. Governor, No.1:18CV1472-TWT (N.D. Ga. 2018) );

• (4) an order from the United States District Court for the EasternDistrict of Virginia dismissing Plaintiff’s Complaint against theUnited States Department of Transportation and Department ofTreasury as frivolous (Grant v. U.S. Dep’t of the Treasury, CaseNo. 1:18CV457 (E.D. Va. 2018) ); (5) a Memorandum Opinionfrom the United States District Court for the District of Marylanddismissing Plaintiff’s Complaint against the United StatesDepartment of Transportation and Department of Treasury asfrivolous (Grant v. U.S. Dep’t of Transp., No. GLR-18-1327 (D.Md. 2018) ); and (6) an order from the United States Court ofAppeals for the Federal Circuit also dismissing Plaintiff’sComplaint as frivolous (Grant v. U.S., Case No. 2018-1413 (Fed.Cir. 2018) ).

III. NOT “KISS OF DEATH” BUT AT LEAST THE “HUG OF DEATH”• Upshaw v. Erath Cnty., No. 3:17-CV-1758-S, 2019 WL 2341378

(N.D. Tex. June 3, 2019).

• Here, the Court finds that Plaintiffs’ well-pleaded allegations do notsuggest that Plaintiffs were branded with a badge of infamy or publicscorn. The Complaint states that Plaintiffs were branded as “GenerallyDischarged,” which is “like the proverbial ‘kiss of death’ for a lawenforcement officer who seeks future employment in the lawenforcement area.” Am. Compl. ¶ 24. Per Texas law, however, a“General Discharge” means either that the termination “was related toa disciplinary investigation of conduct that is not ... criminalmisconduct [or] insubordination or untruthfulness,” or that thetermination was “for a documented performance problem.” TEX. OCC.CODE ANN. § 1701.452(b)(2)-(3) (emphasis added). Accordingly, the“General Discharge” merely suggests that Plaintiffs’ performance wasinadequate or incompetent, rather than that Plaintiffs committed aserious felony or were dishonest. See Vander Zee v. Reno, 73 F.3d1365, 1369 (5th Cir. 1996).

Overkill?

• Schulte v. Stewart Title Ins. Co., No. MC H-18-2892, 2019 WLF.3d 495, 498 (5th Cir. 2001) (citing Siglar v. Hightower, 112F.3d 191, 193 (5th Cir. 1997)). In making this determination, thecou1084798 (S.D. Tex. Feb. 19, 2019), report andrecommendation adopted, No. MC H-18-2892, 2019 WL1084228 (S.D. Tex. Mar. 7, 2019) (internal references omitted).

• A complaint is frivolous if it lacks an arguable basis in law orfact. See Denton v. Hernandez, 504 U.S. 25, 31 (1992);Richardson v. Spurlock, 260 rt liberally construes Plaintiff’scomplaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)(holding that a pro se complaint must be held to less stringentstandards).

• In the present case, it appears that Plaintiff intends to sue noless than 143 individuals and 101 title companies foremployment discrimination. In support of her complaint ofdiscrimination, Plaintiff states, “The original complaint is filedunder a previous court case. At that time the ruling was statuteof limitations had expired.” She goes on to state, “When I filedwith the EEOC they gave me a piece of paper saying that oneof the companies in question was found with slander, tamperingwith my credit and identity theft.” Plaintiff then digresses intoher personal life, her past employment history, and complaintsconcerning her current employer, Kroger.

• Plaintiff seeks court orders that all defendants stop discriminatingagainst her, to employ/reemploy her, to promote her and to grant backpay and other damages. What is missing is any fact supportingactionable discrimination against any of the Defendants. It is unclearwhich of the over hundred defendants actually employed Plaintiff andher dates of employment. While Plaintiff alludes to receiving from theEqual Employment Opportunity Commission seven Right to SueLetters against Stewart Title, Texas American Title, Lawyers Title,Law Offices of Mae Nacol, StarTex Title, Gracy Title and Dillard’s,she fails to attach those Right to Sue Letters to her complaint. Thecourt questions whether she has filed this suit within ninety days ofreceiving the right to sue because she has referenced these same Rightto Sue letters in prior lawsuits.

• On August 20, 2012, Plaintiff attempted to sue over one hundred titlecompanies for employment discrimination, most of which are alsonamed in the present action. In that suit, Plaintiff referenced sevenRight to Sue letters that were issued in 2003 and blamed thedefendants for the losses of her employment, residence, car, pets andcredit. This action was dismissed on September 26, 2012, for failureto state a claim for relief.

• On January 20, 2015, Plaintiff filed suit against Stewart Titleand Texas American Title Insurance Company, along withapproximately 150 other title companies referencing the sameseven Right to Sue letters received in 2003. When Plaintiffcould not produce documentation that she filed the suit withinninety days of receiving any Right to Sue letter, the courtdismissed the suit.

• On March 23, 2017, Plaintiff filed an application to proceed informa pauperis in an employment discrimination complaintagainst Stewart Title and over one hundred other titlecompanies making conclusory allegations of employmentdiscrimination without supporting facts. Plaintiff was deniedleave to proceed in forma pauperis.

• In light of the foregoing, the court finds that Plaintiff’sproposed complaint is frivolous because Plaintiff has madethese same conclusory allegations repeatedly over the pasteleven years.

Sham Affidavit• Perez v. Brennan, No. 18-40520, 2019 WL 1387825, 766 F. App'x

61, 62 (5th Cir. Mar. 26, 2019) (per curiam).• United States Postal Service letter carrier, who was Hispanic and of

Mexican-American heritage, sued for racial discrimination,retaliation, and hostile work environment. The United States DistrictCourt for the Southern District of Texas, Usdc No. 1:17-CV-43,denied carrier’s claims, and he appealed.

• The district court denied Perez’s remaining retaliation claim onsummary judgment. First, the court held that affidavits produced insupport of Perez’s opposition were sham affidavits, as theycontained material contradictions to his prior deposition testimonyregarding how much he drank the night before he was sent home.The court held that Perez had not shown an issue of fact whether theUSPS’s legitimate reason for the suspension—on-dutyimpairment—was pretextual. The court alternatively held thatPerez’s suspension was not an adverse employment action.

• In their summary judgment affidavits, Perez and his wife statethat he drank only two beers.

• In his deposition, Perez testified that he drank ten beers thenight before the incident.

• The district court did not abuse its discretion in finding this tobe a direct, material conflict with respect to Perez’s argumentthat the legitimate reason for his suspension was pretextual andstriking the affidavits.1

• We will not consider Perez’s argument, first raised on appeal,that the deposition question he answered was confusing. SeeAG Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir.2009) (holding “arguments not raised before the district courtare waived and will not be considered on appeal” absentextraordinary circumstances); see also FED. R. CIV. P.32(d)(3)(B) (“An objection to an error or irregularity at an oralexamination is waived if ... it is not timely made during thedeposition.”).

ULTIMATE EMPLOYMENT ACTION

• Matthews v. Pride, No. 9:17-CV-00082-RC, 2018 WL 5306662(E.D. Tex. Aug. 9, 2018), report and recommendation adoptedsub nom. Matthews v. Pilgrim's Pride Corp., No. 9:17-CV-0082,2018 WL 4354031 (E.D. Tex. Sept. 12, 2018), appeal docketed,No. 18-40984 (5th Cir. Oct. 16, 2018). [Currently on appeal].

• Matthews avers that Pilgrim has a practice of favoring Latinoemployees and transferred Plaintiff to an incentive checkingposition on the production line because she is white.

• Plaintiff concedes that she applied to be an incentive checkermultiple times in the preceding years and argues that she onlynow received the offer because the supervisor was non-Latino.

BAD START--ALWAYS EAT YOUR CACTUS

• Gonzalez v. Fluor Corp., No. CV H-16-2823, 2019 WL 610255(S.D. Tex. Jan. 22, 2019), report and recommendation adopted,No. CV H-16-2823, 2019 WL 587795 (S.D. Tex. Feb. 13,2019), appeal docketed, No. 19-20234 (5th Cir. Apr. 11, 2019).[Currently on appeal].

• Alleged failure to accommodate.• 3 days after starting his job.• In the office, Gonzalez informed Shannon that Gonzalez was

experiencing heel pain which traveled up to his neck and thathe treated the heel pain by drinking fresh cactus juice, which heforgot to drink on the day in question.

• Note: Tequila is a distillate of the blue agave, one of over 200strains of this family of desert lilies which grow across Mexico

What does that mean?• Purloining• Herring v. American Paper & Janitorial Prod., Inc., No. CV

H-17-3474, 2018 WL 6735992 (S.D. Tex. Dec. 24, 2018), aff'dsub nom. Herring v. NewFirst State Bank, No. 18-20740, 770 F.App'x 671 (5th Cir. 2019).

• Charles Otis Herring owned a janitorial business. AmericanPaper & Janitorial Products, Inc., had a broad maintenancecontract with NewFirst State Bank. Paper subcontracted thejanitorial work to Herring.

• Herring and two of his employees were seen stealing food fromthe Bank’s refrigerator the night after the Bank’s Christmasparty. The Bank told Paper that it did not want Herring workingin its building. Paper then canceled its contract with Herring.

• Purloining pastries may seem frivolous, unless of course theybelong to you. Banks are especially wary of dishonesty in theirhouses. The Bank is not required to prosecute Herring. It is notthe government. Fairness, but not the law, suggests one shouldbe careful in reacting to evidence of dishonesty

• Peradventure• Liebbe v. Dallas Indep. Sch. Dist., No. 3:16-CV-2413-S, 2018

WL 4621716 (N.D. Tex. Sept. 26, 2018), appeal docketed, No.19-10556 (Mar. 15, 2019)) (mem. op.) (references to trialrecord omitted). [Currently on appeal].

• When a party bears the burden of proof on an issue, he “mustestablish beyond peradventure all of the essential elements ofthe claim or defense to warrant judgment in his favor.”Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).

• Wilkerson v. Univ. of N. Texas, No. 4:15-CV-00540, 2018 WL6331686 (E.D. Tex. Dec. 4, 2018) (mem. op.).

• Holcombe v. Advanced Integration Tech., No. 4:17-CV-522, 2018 WL6727291 (E.D. Tex. Dec. 21, 2018) (mem. op.).

• Balderas v. Valdez, No. 16-CV-2652-D, 2018 WL 3570096 (N.D. Tex.July 25, 2018) (mem. op.).

• If the movant bears the burden of proof on a claim or defense on whichit is moving for summary judgment, it must come forward withevidence that establishes “beyond peradventure all of the essentialelements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d1190, 1194 (5th Cir. 1986).

• Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003).“The court has noted that the ‘beyond peradventure’ standard is‘heavy.’ ” Carolina Cas. Ins. Co. v. Sowell, 603 F.Supp.2d 914, 923-24(N.D. Tex. 2009) (Fitzwater, C.J.) (quoting Cont’l Cas. Co. v. St. PaulFire & Marine Ins. Co., 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23,2007) (Fitzwater, J.)).

ipse dixit

• To establish reliability, the party offering the expert testimonyneed not show that the expert’s assessment is correct. Moore v.Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).However, the court need not admit testimony based purely onthe ipse dixit of the expert. Gen. Elec. Co. v. Joiner, 522 U.S.136, 146, 118 S. Ct. 512 (1997).

• Hughes v. Giammanco, No. 01-18-00771-CV, 2019 WL2292990 (Tex. App.–Houston [1st Dist.] May 30, 2019, nopet.) (not designated for publication).

• (ip-sah dicks-it) v. Latin for "he himself said it," meaning theonly proof we have of the fact is that this person said it.

ejusdem generis• (eh-youse-dem generous) adj. Latin for "of the same kind,"

used to interpret loosely written statutes. Where a law listsspecific classes of persons or things and then refers to themin general, the general statements only apply to the samekind of persons or things specifically listed. Example: if alaw refers to automobiles, trucks, tractors, motorcycles andother motor-powered vehicles, "vehicles" would not includeairplanes, since the list was of land-based transportation.

• Thome v. Young Men's Christian Ass'n of Greater HoustonArea, No. CV H-17-2974, 2019 WL 2369119 (S.D. Tex. June 4,2019), appeal docketed, No. 19-20451 (5th Cir. June 27, 2019).[Currently on appeal]

• Post hoc ergo propter hoc is vacuous.• Thome had no facts to suggest that the reason for her termination

was her protected status. The coincidence of her beingterminated while pregnant is not evidence of discrimination.

• Latin for "after this therefore because of this.” This is when weinfer A caused B simply because B happened after A.

Independent Contractor

• New Prime Inc. v. Oliveira, 139 S. Ct. 532, 534, 202 L. Ed. 2d 536(2019).

• US SUPREME COURT CASE deciding the rights of the parties underthe Arbitration Act of 1925.

• “[I]t’s a ‘fundamental canon of statutory construction’ that wordsgenerally should be ‘interpreted as taking their ordinary ... meaning ...at the time Congress enacted the statute.’ ” Wisconsin Cent. Ltd. v.U.S., 585 U.S. ––––, ––––, 138 S.Ct. 2067, 2074, 201 L.Ed.2d 490(quoting Perrin v. U.S., 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d199 (1979)). After all, if judges could freely invest old statutory termswith new meanings, this Court would risk amending legislation outsidethe “single, finely wrought and exhaustively considered, procedure”the Constitution commands. INS v. Chadha, 462 U.S. 919, 951, 103S.Ct. 2764, 77 L.Ed.2d 317 (1983). The Court would risk, too,upsetting reliance interests by subjecting people today to different rulesthan they enjoyed when the statute was passed.

• At the time of the Act’s adoption in 1925, the phrase “contractof employment” was not a term of art, and dictionaries tendedto treat “employment” more or less as a synonym for “work.”Contemporaneous legal authorities provide no evidence that a“contract of employment” necessarily signaled a formalemployer-employee relationship. Evidence that Congress usedthe term “contracts of employment” broadly can be found in itschoice of the neighboring term “workers,” a term that easilyembraces independent contractors. Pp. 538 – 541.

• New Prime argues that by 1925, the words “employee” and“independent contractor” had already assumed distinct meanings. Butwhile the words “employee” and “employment” may share a commonroot and intertwined history, they also developed at different times andin at least some different ways. The evidence remains that, asdominantly understood in 1925, a “contract of employment” did notnecessarily imply the existence of an employer-employee relationship.New Prime’s argument that early 20th-century courts sometimes usedthe phrase “contracts of employment” to describe what are recognizedtoday as agreements between employers and employees does nothing tonegate the possibility that the term also embraced agreements byindependent contractors to perform work. And its effort to explain awaythe statute’s suggestive use of the term “worker” by noting that theneighboring terms “seamen” and “railroad employees” included onlyemployees in 1925 rests on a precarious premise. The evidence suggeststhat even “seamen” and “railroad employees” could be independentcontractors at the time the Arbitration Act passed.

• In 1922, for example, the Railroad Labor Board interpreted the word“employee” in the Transportation Act of 1920 to refer to anyone“engaged in the customary work directly contributory to the operation ofthe railroads.”

• A New English Dictionary on Historical Principles 130 (1891) (defining“employment” as, among other things, “[t]he action or process ofemploying; the state of being employed. The service (of a person). That onwhich (one) is employed; business; occupation; a special errand orcommission. A person’s regular occupation or business; a trade orprofession”); 3 The Century Dictionary and Cyclopedia 1904 (1914)(defining “employment” as “[w]ork or business of any kind”); W. Harris,Webster’s New International Dictionary 718 (1st ed. 1909) (listing “work”as a synonym for “employment”); Webster’s Collegiate Dictionary 329 (3ded. 1916) (same); Black’s Law Dictionary 422 (2d ed. 1910) (“anengagement or rendering services” for oneself or another); 3 OxfordEnglish Dictionary 130 (1933) (“[t]hat on which (one) is employed;business; occupation; a special errand or commission”).

I am so sick!

• Jackson v. BNSF Ry. Co., No. 17-10872, 751 F. App'x 509 (5thCir. 2018).

• After former railroad employee was terminated from heremployment because former employer suspected employee wastaking medical leave when she was not sick, employee filedaction against railroad for interference and retaliation under theFamily and Medical Leave Act. Following removal from statecourt, employee added claim for disability discrimination underTexas law. The United States District Court for the NorthernDistrict of Texas, No. 4:16-CV-695, John McBryde, J., 2017 WL8682446, granted railroad summary judgment. Employeeappealed.

• A week after she left work, Jackson attended a Beyoncé concertin the BNSF luxury suite at AT&T Stadium. Jackson hadreceived the tickets from BNSF before she went on medicalleave. She attended with a coworker, and other BNSFemployees were in the suite.

• The lawful justification BNSF cites is its concern that Jacksonwas not being honest about needing to take leave. Even if itturns out there was a medical explanation for needing to takeleave yet being able to attend the concert, BNSF’s belief thatleave was being abused qualifies as a legitimate nonretaliatoryreason if it had good-faith basis for that belief. DeVoss v.Southwest Airlines Co., 903 F.3d 487, 492 (5th Cir. 2018).

Don’t even think about appealing this case

• Gaines v. City of Dallas, No. 3:17-CV-1867-L, 2019 WL266855 (N.D. Tex. Jan. 18, 2019).

• Accordingly, the court grants Defendant The City of Dallas’sMotion to Dismiss Plaintiff’s Amended Federal Complaint(Doc. 27) and dismisses with prejudice Plaintiff’s defamationand ADEA claims for failure to state a claim upon which reliefmay be granted. Plaintiff has not requested another opportunityto amend her pleadings and, for the reasons stated by themagistrate judge, the court will not allow her to further amendher pleadings, as doing so would be futile and unnecessarilydelay the proceedings in this case.

• The court prospectively certifies that any appeal of this actionwould not be taken in good faith. See 28 U.S.C. § 1915(a)(3);FED. R. APP. P. 24(a)(3). In support of this certification, the courtincorporates by reference the Report. See Baugh v. Taylor, 117F.3d 197, 202 and n.21 (5th Cir. 1997). The court concludes thatany appeal of this action would present no legal point of arguablemerit and would, therefore, be frivolous. Howard v. King, 707F.2d 215, 220 (5th Cir. 1983).

I Promise I Can Do This Job

• Mehryari v. First Nat'l Bank Texas, No.417CV00679ALMKPJ, 2018 WL 6012226 (E.D. Tex. Nov. 8,2018), report and recommendation adopted, No.417CV00679ALMKPJ, 2018 WL 6528465 (E.D. Tex. Dec.12, 2018).

• ADA Claim• Plaintiff was terminated for falsifying her time card (or at

least the employer believed she had).• “A qualified individual with a disability is defined as “an

individual with a disability who, with our without reasonableaccommodation, can perform the essential functions of theemployment positions that such individual holds or desires”

• The Court denied the Motion for Summary Judgment, saying:• “Furthermore, there is no evidence that Plaintiff was not able

to perform the essential functions of her job because she was“dishonest’.”

Sorry, could you speak up?

• Boyd v. Dallas Area Rapid Transit, No. 3:18-CV-1326-L-BH,2019 WL 350165, at *1 (N.D. Tex. Jan. 29, 2019).

• “In his Objections (to Magistrates Findings, Conclusions andRecommendations), Plaintiff objected to “Dismissal ofPlaintiff’s Retaliation Claim”.

• The Court overruled the objection as moot to the extent thatthe Magistrate judge declined to dismiss the Plaintiff’sretaliation claim.

NO REASONABLE TRIER OF FACT

• Anderson v. YRC, Inc., No. 17-10703, 742 F. App'x 27 (5th Cir.Nov. 12, 2018) (per curiam).

• Plaintiffs contend the district court erred in dismissing theiremployment-discrimination action on summary judgment. Theyargue the district court improperly limited its review by refusingto consider facts not pleaded in the amended complaint orincluded in the EEOC charges and that it failed to apply thecontinuing-violations doctrine. But we need not reach thesearguments. Even if Plaintiffs prevailed on them, they would stillnot be entitled to relief because their underlying hostile-work-environment claim fails to survive summary judgment.

• To survive summary judgment, Plaintiffs needed to show a genuinedispute of material fact on this point. See id. Instead, the evidenceshows that YRC’s action was both prompt and remedial. It openedan investigation the day after the February 5 noose was reported. Itinterviewed more than 450 employees, reviewed more than *28 250hours of video footage, contacted local and federal authorities, andinstituted the secret-witness program. Plaintiffs contend YRC’sinvestigation was inadequate and “mere window dressing” becauseno one was fined, suspended, or fired as a result. YRC responds thatif its response were deemed inadequate under Title VII, the effectwould be to impose on employers requirements found nowhere inthe law. YRC took preventive measures by increasing security,prohibiting the use of rope in the facility, and reiterating thecompany’s harassment and vandalism policies during weekly pre-shift meetings.

• No reasonable trier of fact could conclude that YRC’s response wasinadequate or deny that it was “ ‘reasonably calculated’ to end theharassment.” Hockman v. Westward Commc’ns, LLC, 407 F.3d 317,329 (5th Cir. 2004) (quoting Skidmore v. Precision Printing andPackaging, Inc., 188 F.3d 606, 615 (5th Cir. 1999) ).

Too Many Defendants in the Kingdom

• King/Morocco v. Land Rover Sw. Houston, No. CV H-18-4196,2018 WL 5995295 (S.D. Tex. Nov. 15, 2018), appeal docketed, No.19-20417 (5th Cir. June 19, 2019). [Currently on appeal]

• Attorneys and Law Firms: The King/Morocco, Houston, TX, pro se.• Myron Gerard Simms, also known as The King/Morocco, has sued

Land Rover Southwest Houston, representing himself and withoutprepaying the filing fees. He alleged that Land Rover failed to hirehim and retaliated against him based on race, gender, national origin,religion, and age, in violation of the Civil Rights Act of 1964, 42U.S.C. § 2000e-2(a), and international treaties. After considering thepleadings and the applicable law, the court dismisses the complaint,with prejudice, as frivolous, time-barred, repetitive, and for failing tostate a plausible claim for relief. The reasons are explained in detailbelow.

• The district court granted Simms leave to proceed withoutprepayment and transferred his action to the Southern District ofTexas, because the factual allegations “underlying [Simms’s] variouscauses of action occurred in the State of Texas and flow from hisfailure to secure employment with Defendant Land Rover SouthwestHouston, located in Houston, Texas.” (Docket Entry No. 2 at 1–2).

• In September 2018, before filing this lawsuit, Simms filed anotherlawsuit in this district. In that case, also filed without prepaying fees,Simms alleged that 13 car dealerships in Houston, including LandRover Southwest Houston, had failed to hire and retaliated againsthim based on race, gender, national origin, religion, and age.Complaint, Simms v. Nw. Chrysler Jeep Dodge Ram (No. 4:18-mc-2740), ECF No. 1. His allegations against Land Rover were identicalto the ones in this case. Id. In October 2018, Simms was denied leaveto proceed without prepayment in that earlier filed case. Order,Simms v. Nw. Chrysler Jeep Dodge Ram (No. 4:18-mc-2740), ECFNo. 3. He did not pay the filing fee.

• This action contains factual allegations that are frivolous orunintelligible and asserts meritless legal theories. It was alsofiled too late, and it duplicates an earlier-filed case

• The duplicative nature of this case is another basis to dismiss itas frivolous. Wilson v. Lynaugh, 878 F.2d 846, 849–50 (5th Cir.1989); see Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir.1975) (“[N]o one, rich or poor, is entitled to abuse the judicialprocess.”).

July 2018© Thompson & Horton LLP

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James E. (Jim) ByromThompson & Horton LLP

3200 Southwest Freeway, Suite 2000Houston, Texas 77027

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