Recent Legal Opinions

1. Recent Legal Opinions Michael Y. Kim Grace S. Lee The Michael Kim Law Firm, PLLC 4236 W. Lovers Lane Dallas, Texas 75209 www.mkimlegal.com

2. Title VII Discrimination Title VII prohibits employment discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

3. Title VIIDisparate Treatment Disparate treatment discrimination addresses employment actions that treat an employee worse than others based on the employee’s race, color, religion, sex, or national origin. Proof and finding of discriminatory motive is required, and a plaintiff can prove such motive through either direct or circumstantial evidence. When proving through circumstantial evidence, a court analyzes the claim under the McDonnell Douglas framework. Cicalese v. Univ. of Texas Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019). 

4. Title VIIMcDonnell Douglas Under the McDonnell Douglas framework, a plaintiff must establish a prima facie case by showing: • he belongs to a protected group; • he was qualified for the position sought; • he suffered an adverse employment action; and • he was replaced by someone outside the protected class. Boyd v. Mississippi Dep’t. of Pub. Safety, 751 Fed. Appx. 444, 450 (5th Cir. 2018), cert. denied, 139 S. Ct. 1215 (2019) (citing Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002)).

5. Title VIIMcDonnell Douglas If the plaintiff makes his prima facie case, then the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse employment action. Then, the burden shifts back to the plaintiff, and he must show that the employer’s proffered reason was a pretext for discrimination. Boyd, 751 Fed. Appx. at 450.

6. Title VIIDisparate Treatment There are two elements a plaintiff must plead to support a disparate treatment claim under Title VII: • an adverse employment action • taken against the plaintiff because of his protected status. Cicalese,924 F.3d at 767.

7. Title VIIDisparate Treatment A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Cicalese,924 F.3d at 765 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

8. Title VIIDisparate Treatment A complaint does not need detailed factual allegations, but the facts alleged must be enough to raise a right to relief above the speculative level. Cicalese,924 F.3d at 765(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

9. Title VIIDisparate Treatment In this case, Cicalese and Ratellini, a married couple born in Italy, brought a Title VII action against the university, alleging that the university discriminated against them because of their national origin. Cicalese worked as a tenured professor and Rastellini accepted a tenure-track faculty position. Cicalese,924 F.3d at 762-64.

10. Title VIIDisparate Treatment • Making derogatory remarks regarding Italians • Excluding Rastellini from departmental activities • Demoting Rastellini to a part-time, non-tenure track position at a significantly lower pay rate • Reducing Cicalese’s salary • Reassigning Cicalese’s director titles to less qualified, American doctors • Rescinding all permanent faculty licensure waivers (only Rastellini and Cicalese benefited from the permanent waivers) Cicalese,924 F.3d at 765.

11. Title VIISex Discrimination: Pregnancy The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise.   42 U.S.C. § 2000e(k).

12. Title VIISex Discrimination: Pregnancy Plaintiff has the initial burden of the McDonnell Douglas framework to make a prima facie case that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” Luke v. CPlace Forest Park SNF, L.L.C., 747 Fed. Appx. 978, 979 (5th Cir. 2019) (citing Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1353-54 (2015)).

13. Title VIISex Discrimination: Pregnancy The burden then shifts to the employer to justify its refusal to accommodate the plaintiff by relying on ‘legitimate nondiscriminatory’ reasons for denying the plaintiff’s accommodation. If the employer offers that justification, then the plaintiff must show that the reasons given by the employer were not its true reasons but a pretext for discrimination. Luke, 747 Fed. Appx. at 979.

14. Title VIISex Discrimination: Pregnancy The employer refused to accommodate Plaintiff by excusing her from heavy lifting requirements of her job and ultimately terminated her. The Fifth Circuit affirmed the district court’s grant of summary judgment to the employer because there was no evidence that her inability to satisfy the heavy lifting requirement (which was the employer’s nondiscriminatory reason) was a pretext for pregnancy discrimination. Further, the employer did not accommodate other employees who had medical restrictions on heavy lifting. Luke, 747 Fed. Appx. at 980.

15. Title VIISexual Orientation “Sex” discrimination has been held to encompass discrimination based on sexual harassment or sexual stereotyping.  Title VII in plain terms does not cover ‘sexual orientation.’ O’Danielv. Indus. Serv. Sols., 922 F.3d 299, 305 (5th Cir. 2019).

16. Title VIISexual Orientation In this case, the plaintiff alleged that the employer fired her because of (1) her heterosexual orientation and (2) one of the defendant’s reaction to Plaintiff's pro-heterosexual speechthat she had posted on Facebook. The Fifth Circuit held that the plaintiff could not reasonably have believed she was opposing a practice prohibited by Title VII because Fifth Circuit law does not recognize “sexual orientation” as a protected class under this statute.O’Daniel, 922 F.3d at 301, 306-07.

17. Title VIISexual Orientation Although the Fifth Circuit does not recognize “sexual orientation” as a protected class under Title VII, the US Supreme Court recently granted certiorari in the Second Circuit’s Altitude Exp., Inc. v. Zarda, 139 S. Ct. 1599 (2019) ontheissueofwhetherTitleVII’sprohibitionagainstemploymentdiscrimination “becauseof sex” encompassesdiscriminationbasedon sexual orientation.

18. Title VIISexual Orientation The Second Circuit held that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination for purposes of Title VII. In this case, a gay former employee alleged that he had been terminated because of his sexual orientation and his gender. Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d. Cir. 2018).

19. Title VIISexual Orientation • Gender Stereotyping • Adverse employment actions as a result of the employer’s generalizations about members of the employee’s sex • Associational Discrimination • Context where an employer’s decision is predicated on opposition to romantic association between particular sexes. Zarda, 883 F.3d at 120.

20. Disability Discrimination Disability discrimination includes the employer’s failure to make reasonable accommodations, unless the employer can show that the requested accommodation would impose undue hardship. Stokes v. Nielsen, 751 Fed. Appx. 451, 454 (5th Cir. 2018) (citing Feist v. La., Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013)).

21. Disability Discrimination To make out a failure-to-accommodate claim, a plaintiff must show that she is: • a qualified individual with a disability; • the disability is known to the employer; and • the employer failed to make a reasonable accommodation for the known disability. Stokes, 751 Fed. Appx. at 454 (citing Feist, 730 F.3d at 452).

22. Disability Discrimination A plaintiff is not required to show that the requested accommodation is necessary to perform essential job functions to constitute a reasonable accommodation. In fact, the ADA defines “reasonable accommodations” as measures that would enable an employee with a disability “to enjoy equal benefits and privileges of employment.” Stokes, 751 Fed. Appx. at 454 (citing Feist, 730 F.3d at 452-54 and 29 C.F.R. Sec. 1630.2(o)(1)).

23. Disability Discrimination In this case, the plaintiff received a failing performance review after making accommodation requests. The employer claimed that the negative descriptions in the performance review showed its legitimate, non-retaliatory reason. The plaintiff repeatedly asked her supervisors to provide the documentation they relied on to criticize her work performance, but the documentation was never provided, and the plaintiff’s performance reviews had consistently been high. Stokes, 751 Fed. Appx. at 453-56.

24. Disability Discrimination The Fifth Circuit concluded that advance access to meeting materials for the plaintiff with visual impairment, although not essential to participation in the meetings, was necessary to make the plaintiff’s participation in the meetings equal to other employees who did not share the same disability. Stokes, 751 Fed. Appx. at 453-56.

25. Title VIIHostile Work Environment The plaintiff alleged that his supervisor discriminated against him based on his age and sex, created a hostile work environment, and retaliated against him after he filed an EEOC complaint. English v. Perdue, No. 18-50530, 2019 WL 2537414, at *1 (5th Cir. June 19, 2019).

26. Title VIIHostile Work Environment The plaintiff must prove that he: • belongs to a protected group; • was subjected to unwelcome harassment; • the harassment complained of was based on his membership in the protected group; • the harassment complained of affected a term, condition, or privilege of employment; and • the employer knew or should have known of the harassment in question and failed to take prompt remedial action. English, 2019 WL 2537414, at *3 (citing Williams-Boldware v. Denton County, Tex., 741 F.3d 635, 640 (5th Cir. 2014)).

27. Title VIIHostile Work Environment Isolated incidents (unless extremely serious) are insufficient for a hostile work environment claim. English, 2019 WL 2537414, at *3 (citing Turner & Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007)).

28. Title VIIHostile Work Environment The male plaintiff alleged that his female supervisor ridiculed and berated him publicly, subjected him to unwarranted scrutiny, and dealt unfairly and capriciously with his work leave. The female supervisor also allegedly tolerated snide remarks toward the male plaintiff by his coworkers. The Court affirmed the district court’s conclusion that the plaintiff did not adequately plead that his alleged hostile work environment was based on his sex or his age, stating that nothing in the plaintiff’s allegations makes it more than merely speculative that his sex or age caused the various forms of hostile treatment he allegedly endured. English, 2019 WL 2537414, at *3.

29. Title VIIHostile Work Environment As long as an employee files a complaint while at least one act which comprises the hostile work environment claim is still timely, the entire time period of the hostile environment may be considered by a court for the purpose of determining liability. Heath v. Board of Supervisors for Southern University and Agricultural and Mechanical College, 850 F.3d 731, 736 (5th Cir. 2017).

30. Title VIIHostile Work Environment “Hostile environment claims are “continuing” because they involve repeated conduct, so the “unlawful employment practice” cannot be said to occur on any particular day. Heath, 850 F.3d at 737 (quoting National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).

31. Title VIIRetaliation The plaintiff must show that: • he engaged in conduct protected by Title VII; • he suffered a materially adverse action; and • a causal connection exists between the protected activity and the adverse action. English, 2019 WL 2537414,at *3(citing Jenkins v. City of San Antonio Fire Dep’t, 784 F.3d 263, 269 (5th Cir. 2015)).

32. Title VIIRetaliation In retaliation cases, “causation is difficult to prove” and calls for “a highly fact specific” analysis.  The Fifth Circuit’s suggested factors in the analysis: • employee’s “past disciplinary record,” • an employer’s departure from “typical policy and procedures,” and • “the temporal relationship between the employee’s conduct and discharge.” English, 2019 WL 2537414,at *3(citing Nowlin v. Resolution Trust Corp., 33 F.3d 498, 508 (5th Cir. 1994)).

33. Title VIIRetaliation The mere fact that some adverse action is taken after an employee engages in some protected activity will not always be enough for a prima facie case. English, 2019 WL 2537414,at *3 (citing Swanson v. General Servs. Admin., 110 F.3d 1180, 1183 n.3 (5th Cir. 1997)).

34. ADEARetaliation A retaliation claim under the ADEA entails the same showing as a retaliation claim under Title VII. English, 2019 WL 2537414,at *3(referencing Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 496-97 (5th Cir. 2015)).

35. Adverse Employment Actions Adverse employment actions are ultimate employment decisions such as hiring, firing, demoting, promoting, granting leave, and compensating. An employment action that does not affect job duties, compensation, or benefits is not an adverse action. English, 2019 WL 2537414,at *3 (citing Stroy v. Gibson on behalf of Dep’t of Vet. Affairs, 896 F.3d 693, 699 (5th Cir. 2018).

36. 42 U.S.C. § 1983 A claim under 42 U.S.C. § 1983 has two foundational elements: • a violation of the Constitution or federal law; and • that the violation was committed by someone acting under color of state law. Webb v. Town of St. Joseph, 925 F.3d 209, 214 (5th Cir. 2019).

37. 42 U.S.C. § 1983Municipal Liability 3 Required Elements: (1) An official policy • promulgated by the municipal policymaker • was the moving force behind the violation of a constitutional right Webb, 925 F.3d at 214.

38. 42 U.S.C. § 1983Municipal Liability While municipalities can be sued directly under § 1983, Monell establishes that they “cannot be found liable on a theory of vicarious liability or respondeat superior.” Webb, 925 F.3d at 214.

39. Official Policy (1) Written policy statements, ordinances, or regulations • A widespread practice that is so common and well-settled as to constitute a custom that fairly represents municipal policy • A single decision when the official or entity possessing “final policymaking authority” for an action “performs the specific act that forms the basis of the § 1983 claim.” Webb, 925 F.3d at 215.

40. Final Policymaker “[A] final decisionmaker’s adoption of a course of action ‘tailored to a particular situation and not intended to control decisions in later situations’ may, in some circumstances, give rise to municipal liability under § 1983.”This requires the “deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.”Therefore, the “critical question” is generally “to decide who is the final policymaker, which is an issue of state law.” Webb, 925 F.3d at 215.

41. Delegated Authority A municipal employee may also possess final policymaking authority where the final policymaker has delegated that authority, either expressly or impliedly.Not all delegations of authority are delegations of policymakingauthority — “[w]e have long recognized that the ‘discretion to exercise a particular function does not necessarily entail final policymaking authority over that function.’” Webb, 925 F.3d at 215.

42. Ratification Even when an official with final policymaking authority does not directly act to set policy, a municipality may be liable in “extreme factual situations” when that official ratifies a subordinate’s decision, which requires more than the defense of a decision or action shown to be unconstitutional after the fact. A municipality may also be liable when a policymaker engages in deliberately indifferent failure to control subordinates in a way likely to result in violation of constitutional rights. Webb, 925 F.3d at 217.

43. Ratification Examples of Ratification: • “To base deliberate indifference on a single incident, it should have been apparent to the policymaker that a constitutional violation was the highly predictable consequence of a particular policy.” Alvarez v. City of Brownsville, 904 F.3d 382, 390 (5th Cir. 2018) (en banc). • Ratification might occur if the supervisor explicitly ratified or defended a subordinate’s actions and the “subordinate’s actions are sufficiently extreme – for instance, an obvious violation of clearly established law.” World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 755 (5th Cir. 2009). Webb, 925 F.3d at 218 n.47-48.

44. Ratification Examples of Ratification: • “If a final policymaker approves a subordinate’s recommendation and also the subordinate’s reasoning, that approval is considered a ratification chargeable to the municipality.” Culbertson v. Lykos, 790 F.3d 608, 621 (5th Cir. 2015) (emphasis added). • “Only if the authorized policymakers approve a subordinate’s decision and the basis for it would their ratification be chargeable to the municipality.” Okonv. Harris City, Hosp. Dist., 426 Fed. Appx 312, 317 n.10 (5th Cir. 2011). Webb, 925 F.3d at 218 n.47-48.

45. “Moving Force” Plaintiff must show that the policy itself was unconstitutionalor that it was adopted with deliberate indifference to the “known or obvious fact that such constitutional violations would result.” Webb, 925 F.3d at 219.

46. First AmendmentFree Speech To make a claim for retaliation under the First Amendment’s right to free speech, the “plaintiff must establish that: • he suffered an adverse employment decision; • his speech involved a matter of public concern; • his interest in speaking outweighed the governmental defendant’s interest in promoting efficiency; and • the protected speech motivated the defendant’s conduct.” Boyd, 751 Fed. Appx. at 450 (citing Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016)).

47. First AmendmentFree Speech Pertinent considerations as to whether a public employee’s interest in speaking outweighed employer’s interest in promoting efficiency, for example, include whether the statement: • impairs discipline by superiors or harmony among co-workers; • has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary; or • impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise. Boyd, 751 Fed. Appx., at 450 (citing Rankin v. McPherson, 483 U.S. 378, 388 (1987)).

48. First AmendmentFree Speech The employee’s First Amendment interests in sending an e-mail of grievances to his co-workers did not outweigh the employer’s interest in maintaining close working relationships and discipline. Further, the plaintiff had no evidence that his e-mail motivated the employer’s decision to terminate him. Boyd, 751 Fed. Appx., at 450-51.

49. First AmendmentFree Speech When public employees engage in speech pursuant to their official duties, they “are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In 2014, the U.S. Supreme Court “emphasized that ‘[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.’” Harmon v. Dallas Cty., Texas, No. 18-10353, 2019 WL 2558941, at *5 (5th Cir. June 21, 2019) (citations omitted) (citing Garcetti v. Ceballos, 547 U.S. 410, 418, 421 (2006)); Howell v. Town of Ball, 827 F.3d 515, 522–23 (5th Cir. 2016)).

50. First AmendmentFree Speech An employee’s grievance from termination will not ordinarily constitute a matter of public concern. Harmon, 2019 WL 2558941, at *7 (citing Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 398 (2011)).