Winners' Rules: For Employment Lawyers in the Fifth Circuit

By Robert J. Wiley

Plaintiff employment lawyers in conservative states often face an uphill battle in fighting for worker rights. To overcome strong judicial biases in favor of employers, lawyers need as much legal authority as possible to win their case. Winners' Rules has scoured cases in the Fifth Circuit for precedents favorable to employees. This book focuses on cases where the plaintiff's evidence was successful in defeating motions for summary judgment. By using this book, you will have precedent-setting cases that you can use to show that you have created a legitimate fact question and that your case should not be dismissed on summary judgment.

• Language: English
• Publisher: AuthorHouse
• Release date: Jul 16, 2015
• ISBN: 9781504923477

Robert J. Wiley

Attorney Robert J. Wylie is a certified specialist in labor and employment law by the Texas Board of Legal Specialization.

Book preview

WINNERS’

RULES

FOR EMPLOYMENT LAWYERS IN THE FIFTH CIRCUIT

ROBERT J. WILEY

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Robert J. Wiley is the attorney responsible for this publication.

Attorney Robert J. Wiley is certified as a specialist in labor and employment law by the Texas Board of Legal Specialization.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse 07/16/2015

ISBN: 978-1-5049-2346-0 (sc)

ISBN: 978-1-5049-2347-7 (e)

Library of Congress Control Number: 2015911363

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Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

Contents

Introduction to the Second Edition

The Winners’ Rules Manifesto

Introduction

1-1. The Prima Facie Case in Discrimination Claims

1-2. The Prima Facie Case in Hostile Work Environment Claims

1-3. The Prima Facie Case in Retaliation Claims

1-4. The Prima Facie Case in First Amendment Retaliation Claims

1-5. The Prima Facie Case in FMLA Interference Claims

1-6. The Prima Facie Case in a Failure to Accommodate Disability (ADA) Claim

1-7. The Prima Facie Case in a Failure to Accommodate Religion (Title VII) Claim

1-8. The Prima Facie Case in a Wage Discrimination (Equal Pay Act) Claim

2-0. The Employer’s Burden of Production to Proffer a Legitimate, Non-Discriminatory Reason

3-0. Casting Doubt on the Employer’s Stated Reason for the Adverse Action

3-1. Unlawful Motivating Factor

3-2. Pretext

4.0 Direct Evidence

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Introduction to the Second Edition

The winners’ rules project continues to grow. It has been an exciting year for my law firm and for this project. I still feel like we are in the learning stages of what will become a vital resource for plaintiffs’ employment lawyers.

We must be able to show judges similar cases where plaintiffs have survived summary judgment. Whether or not we can achieve this goal as practitioners will determine whether our clients win or lose.

I am extremely that our winners’ rules project has allowed my firm and to advocate more strategically, zealously, and in the most effective way possible.

This year also harkens the beginning of our blog located at texasemploymentlawyer.com. My goal is to use this blog to share our research in real time. As soon as a new case comes out in which the plaintiff prevails, we promptly analyze the case and identify the facts that led to the successful decision.

We are also hosting our first conference in Las Vegas, Nevada. It is my hope that this conference will become an annual resource for plaintiffs’ employment lawyers. There is no substitute for coming together and sharing ideas. We have designed our conference to be both informative and interactive.

I hope that this book proves a resource for your practice. And I hope that you will freely share suggestions, ideas, and criticisms for future editions with me.

ROBERT J. WILEY

FEBRUARY, 2015

The Winners’ Rules Manifesto

This book began as a reaction to Professor Nancy Gertner’s article Losers’ Rules which was published in the Yale Law Journal Online. A former federal judge turned Harvard Law professor, Gertner makes several observations, including:

Federal judges are hostile to discrimination cases.

However, judges do not believe they are biased against discrimination cases. They see themselves as merely following the law.

Scholars have long thought that employers settle good cases and fight bad cases, resulting in disproportionate numbers of published decisions favoring employers.

As cases against plaintiffs pile up, judges begin to think of discrimination cases as trivial and frivolous.

Courts create rules to enable them to quickly dispose of these discrimination cases.

Courts then write decisions employing these rules – Losers’ Rules – and publish their opinions.

In short order, other courts rely on these Losers’ Rules, which become precedent, and the process is repeated over and over again.

As a result, judges wrongly feel that the law compels them to grant summary judgment as they do; while in actuality employment cases involve factually complex disputes, concern state-of-mind issues, are usually proved circumstantially, and are hotly contested by the parties.

As a practitioner representing plaintiffs, I couldn’t agree more. Gertner goes a long way in answering the question: Why do judges reach the wrong result so often in employment law cases?

When I say reach the wrong decision what I mean is the legal result diverges from common sense. As colleagues, focus groups, or friends would say: it doesn’t pass the smell test. These are situations where one employee is clearly singled out, a formerly outstanding performer can suddenly do no right, or the employer’s rationale is lame. Common sense tells us that this sort of action belies an ulterior motive. But put though a filter of Losers’ Rules, these cases are repeatedly dismissed.

Losers’ Rules include:

The stray remarks doctrine;

The honest belief doctrine;

The requirement that comparators or comparative acts be nearly identical;

The same actor inference;

The business judgment rule.

Each of these Losers’ Rules provides defense lawyers with a safe harbor in which they can shelter their clients from the consequences of common sense judgment.

While the avenues for an employer to defeat a claim seem ever expanding, plaintiffs are left without clear guidance on what it takes to establish evidence of discrimination.

Gertner calls for three solutions: (1) Congressional amendment of Title VII, (2) judicial education programs, and (3) requiring or encouraging courts to write decisions articulating why summary judgment should not be granted. Personally, I don’t see any of these solutions on the horizon, and certainly none will arrive in time to help the cases I am dealing with right now.

It seems to me that a fourth option has been overlooked. Indeed, in countering Losers’ Rules there should be a role for those with the greatest vested interest: plaintiffs’ employment lawyers. Whether we win or lose cases determines our own security; our ability to provide for ourselves, our own employees, and our families.

I believe that we as plaintiffs’ employment lawyers must refine how we practice law. Specifically, I believe we must develop our own arsenal of Winners’ Rules. We are charged with presenting argument to the courts. We have control over the arguments we make. We must turn away from vague, broad argument and embrace the specific.

We must sort through the haystacks of mostly bad opinions to find the rare case where the plaintiff has prevailed. We then must scour the opinion for the reason why the plaintiff won. We must then turn that reason in to a simple statement. A rule. A Winners’ Rule.

This book is a start. I practice in the fifth circuit and this book covers recent cases in state and federal courts in Louisiana, Texas, and Mississippi.

Practicing in this area of the country I sometimes feel that Losers’ Rules are at their zenith and civil rights are at their nadir. But I believe in the law and the wisdom of Congress when it passed popular statutes to ensure equality of opportunity in the workplace.

As lawyers we must educate the courts with precedent-based rules showing in simple, straightforward terms why summary judgment must be denied.

But we will not win because of good intentions, sympathy for our clients, or because we know we fight for what is right. We must win by accepting that summary judgment is here to stay and it is case determinative. To win summary judgment, we must have rules of our own.

This first edition is very rough. It was completed under the mantra of it is better to be done than to be perfect. I already know through comments and feedback that more work needs to be done on developing themes and organizing rules. Certainly more cases need to be examined. But at least it is a start. Hopefully publishing this book will result in even more feedback so that next year’s edition becomes more of a bible of what it takes to win discrimination cases in the fifth circuit.

ROBERT J. WILEY

FEBRUARY, 2014

Introduction

The Winners’ Rules Project, conducted over the summer of 2013, comprises roughly 400 fact-based rules pulled from recent cases in Texas and federal courts within the fifth circuit in which employees overcame summary judgment in suits against employers. The purpose of the project was to find rules that counter the rules often cited by the defense, Losers’ Rules as labeled by a Yale Law Journal article, that result in a court granting summary judgment against employees. The rules below, termed Winners’ Rules, are meant to direct judges to the types of fact patterns that raise a genuine issue of material fact for particular issues, precluding summary judgment and allowing an employee or applicant to attempt to vindicate his rights before a factfinder rather than a non-factfinding judge that does not weigh the evidence in the context of everyday workplace life. While employment and labor law covers a wide variety of causes of action, most of the Winners’ Rules came from cases involving employment discrimination, retaliation, or workplace harassment.

The McDonnell Douglas Framework

These cases typically follow the burden-shifting framework established by McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Parties’ burdens shift over three phases, here labeled as: prima facie case, employer’s nondiscriminatory reason, and discriminatory or retaliatory intent. If the plaintiff proves both the prima facie case and the intent phase, then a jury may infer that the employer took its action against the employee because of an illegal purpose. This burden shifting occurs only if the plaintiff produces nothing but circumstantial evidence; producing direct evidence will allow the parties to bypass the McDonnell Douglas shifts and address the ultimate question of whether the employer acted because of some illegal purpose.

First, the plaintiff must prove a prima facie case. Each cause of action has its unique elements for the prima facie case. For the purpose of summary judgment, the plaintiff need not prove each element but just raise a genuine issue of material fact for each. The Winners’ Rules describe evidence in this summary-judgment context. The prima facie elements often connect an employee’s protected status or activity to an adverse employment action. If the employee proves the prima facie case, then the plaintiff is entitled to an inference of discrimination or retaliation by the employer.

For the second phase, an employer has the burden of reversing that inference of discrimination or retaliation by proffering a legitimate, nondiscriminatory reason for the adverse action found in the prima facie case. This is a very low burden of only production. The employer need not prove that this reason was the actual reason; it need only produce some reason. The rules here reflect those few times where the employer failed to meet this burden, often because the court found that its stated basis for adverse action would not actually be legitimate even if true.

Finally, the employee can prevail if he presents enough evidence to cast doubt on the employer’s legitimate, nondiscriminatory reason or to show that discrimination or retaliation was a motivating factor, depending on the statute. This phase, perhaps the most contentious for summary judgment, contains the most Winners’ Rules.

Organizing the Winners’ Rules

The Winners’ Rules are organized by the McDonnell Douglas phases. The first section covers prima facie cases for discrimination under various statutes, hostile work environment, general retaliation, and free-speech retaliation against public employees, which all fall under McDonnell Douglas. The prima facie section also includes other causes of action, such as FMLA interference, failure to accommodate a disability under the ADA, and wage discrimination. For all causes of action, the prima facie cases are broken down by elements. Not all cases for a particular cause tested a claim by the same elements, so the elements listed here are those most commonly recognized by courts. Each element is further broken down by category of fact pattern to direct the reader more easily to a rule.

A brief section of rules addressing the employer’s burden of producing a legitimate, nondiscriminatory reason for adverse action follows the prima facie section. This section is not broken down by cause of action because the burden remains the same for any case following McDonnell Douglas. Similar to the prima facie section, though, the rules here are organized by fact pattern.

The third and final major section of the project focuses on the employer’s intent. It is first divided by a subsection on the employee’s burden to overcome the employer’s nondiscriminatory justification when producing only circumstantial evidence and by a subsection on direct evidence to bypass McDonnell Douglas. The first subsection is further broken down by a section for rules showing an unlawful motivating factor and a section for rules showing pretext, and then again by the fact-pattern categories. The second subsection, on direct evidence, is divided only by fact-pattern category.

Further explanation and analysis on the major trends for overcoming summary judgment for each stage or cause of action precedes almost every section.

LOUIS STAHL

AUGUST, 2013

1-1. The Prima Facie Case in Discrimination Claims

This section contains rules regarding the prima facie cases in different discrimination actions. The elements for ADA (and ADAAA where applicable) disability discrimination; Title VII race, color, religious, sex, or national-origin discrimination; and ADEA age discrimination are generalized to reflect the common patterns among these prima facie cases. A plaintiff alleging discrimination under these statutes must raise a genuine issue of material fact as to whether the plaintiff: (1) belongs to a group protected by statute, (2) is qualified for the position, (3) suffered an adverse employment action, and (4) can show a causal connection between his membership in the protected group and the adverse employment action.

For