Ex-employee failed to allege she was qualified for her position but court held she was entitled to amend in discrimination/retaliation case


City of Granbury v. Christine Willsey 02-17-00343-CV (Tex. .App. — Fort Worth, March 15, 2018)

This is an age/sex discrimination and retaliation case where the Fort Worth Court of Appeals affirmed-in-part and reversed-in-part the order denying the City’s plea to the jurisdiction.

Willsey worked for the City for over seventeen years, including nine years as a police officer and almost nine years as a public works inspector.  In 2016 the City eliminated her inspector position but reassigned her to be a permit clerk. Three days after she inquired as to how long before her retirement would vest, the City terminated her. The City asserts the inspector as well as the permit clerk position were eliminated and absorbed into the existing number of employees. The City filed a combined answer/plea to the jurisdiction. The trial court denied the plea. The City appealed.

The court went through a detailed point-by-point prima facie analysis. To be successful in an age discrimination claim a plaintiff must plead that she was either (1) replaced by someone outside the protected class, (2) replaced by someone younger, or (3) otherwise discharged because of her age. Willsey did not plea or establish she was qualified for the inspector position, only that she was eliminated. Simply because she was an inspector for nine years does not equate to her continued qualifications for the position. The same goes for her sex discrimination claims. Under the retaliation claims, Willsey asserts that the City pursued her after her termination by “making up false accusations against her and seeking criminal charges against her” for stealing records, interfering with her future employment. However, the court responded “[e]ven construing Willsey’s pleadings liberally in her favor, we are left to guess what the protected activity is that Willsey participated in prior to her termination that the final decisionmaker for the City was aware of and the causal link between that protected activity and her termination.” However, the court then analyzed whether the lack of pleading sufficiency could be cured by allowing her the ability to amend. Because this is a reduction-in-force case rather than a true replacement case, and the City’s arguments focus on a replacement case, it has not established an amendment would be futile. As a result, it remanded the case to allow the trial court to allow an amendment after some level of discovery has occurred.

If you would like to read this opinion click here. Panel consists of Justice Walker, Justice Kerr and Justice Pittman. The attorney listed for Willsey is Christopher S. Medlenka. The attorney listed for the County are Fredrick ‘Fritz’ Quast.

Injured worker’s claims get partially revived by 4th Court of Appeals.


Jose Luis Pena v. County of Starr, 04-12-00462-CV (Tex. App. – San Antonio, December 18, 2013).

This is an appeal from the granting of a summary judgment in an employment case involving disability, discrimination, retaliation, and FMLA claims which the 4th Court of Appeals affirmed in part and reversed in part.

Pena was hired as an animal control officer by Starr County who was injured on the job. While undergoing treatment it was discovered he had a life-threatening condition and would miss additional work to undergo surgery. Complications arose, and while hospitalized the County terminated his position. At the time of termination he was 58 years old. Pena sued, however, the trial court granted the County’s summary judgment motion. Pena appealed.

As to the FMLA and ADA claims, the County argued Pena did not file a request for FMLA leave before his surgery.  However, the San Antonio Court of Appeals pointed out that that procedure is required for “foreseeable” leave. Pena was only supposed to be gone a week, but complications during the surgery kept him away from work much longer. Pena, through is daughter, informed the County as soon as he felt practical under the circumstances. Pena raised a fact issue as to the timeliness of the notice.  The court also analyzed the relation-back doctrine as to the statute of limitations defense under the FMLA and determined it applied.

As to the other claims, Pena did not point to any evidence he was replaced by a younger employee or that there is a connection to his age. His testimony established he believes he was terminated because of his injury and condition. So, summary judgment was proper for the age discrimination claims.  As far as the disability discrimination claims under Texas law are concerned, the court noted that while the County may have established the back injury was not a disability, the life-threatening cardio disease could have been.  The County did not address this issue, which makes summary judgment improper. Finally, the court agreed with the County that the trial court lacked subject matter jurisdiction for the Worker’s Comp. retaliation claim since sovereign immunity has not been waived for such claims.

If you would like to read this opinion click here.

FMLA retaliation charge allowed to go to jury says Fifth Circuit

Ion v. Chevron USA, Incorporated, No. 12-60682 (5th Circ. September 26, 2013).

This is a FMLA retaliation case where the U.S. Court of Appeals for the Fifth Circuit reversed the trial court’s grant of summary judgment for the employer and remanded for trial. This is a long opinion, so the summary is a little longer than normal. (Sorry about that).

The employ (“Ion”) was a Chevron chemist who requested various leaves under the FMLA. A month later, Ion was suspended for five days for performance deficiencies and excessive lunch breaks. Ion admitted to taking excessive lunch breaks but that he utilized that time to go to daycare.  Later Ion was diagnosed as having a serious psychological health condition due to his life changing divorce. Ion reportedly emotionally “exploded” during one clinic incident which caused clinic staff to complain. Later, a co-worker reported that Ion boasted about faking a nervous breakdown in order to get FMLA leave and benefits.  After receiving this information Ion was terminated.  The trial court granted Chevron’s MSJ which the Fifth Circuit now reversed.

The court went through a step-by-step analysis of the entire burden shifting standard in this case. For an explanation of the process, this is a good case to read, although a little painfully long. The Fifth Circuit first reiterated that in a mixed-motive FMLA retaliation claim, the claimant must show his leave request was a motivating factor in his termination. To escape liability, the employer must show the retaliation was not the but-for cause of its actions. The court noted the U.S. Supreme Court’s holding in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), limited the applicability of mixed-motive frameworks in Title VII cases, but neither party asked for an extension of Nassar to FMLA or disputed the mixed-motive framework in this case. The court expressly reserved the right to address that question in a future case. However, the court emphasized that genuine issues of material fact exist under either standard in this case.

Ion established his prima facie case of retaliation. Chevron then met its burden to establish a non-discriminatory reason for the termination. In which case, Ion must then establish his FMLA request was a motivating factor in his termination. Ion provided emails to support the motivating factor element. Viewing the emails in the light most favorable to the non-movant, they established a jury could infer the FMLA leave requests were motivating factors in his termination. Finally, the burden again shifts to the employer to prove that it would have taken the same action despite its discriminatory animus.  In that regard the court wrote “While it is true that Chevron disciplined Ion for his absences and poor performance prior to his application for FMLA leave, it is also true that Chevron’s disciplinary response for these actions had already been determined. Chevron’s claim that it would have fired him based on his absences and poor performance is disingenuous and contradicted by the evidence. Chevron had the opportunity to fire Ion based on these deficiencies and chose not to do so. As discipline, Chevron elected to suspend Ion for five days and place him on a PIP/AIP. Significantly, Chevron did not indicate to Ion that it was considering further discipline for his prior absences and performance.”   Further, Chevron took at face value an employee’s statement Ion was “faking” even though Chevron’s own process had referred him to a licensed professional who declared he suffered from a serious health condition. At the very least, this creates a fact issue for the jury. Further, while the clinic incident was significant, the termination letter was devoid of any reference to it as a grounds for termination. The accounts of the incident were also lacking in any detail and without reference to “specific or objective description of Ion’s behavior. The accounts do not describe foul language, physical manifestations of anger, or any other description of Ion’s behavior outside of Ion asking questions.” The FMLA does not “permit an employer to draw any arbitrary distinction between firing an employee for exercising his FMLA rights and for firing an employee for how he exercised his FMLA rights.” In summation, Chevron has failed to meet its burden that it would have fired Ion regardless of retaliatory motive as a matter of law.  It still has the opportunity to establish its defense, but that must be determined by a jury.  MSJ reversed and case remanded for trial.

If you would like to read this opinion click here.