Author Archives: dholmes

Houston Court of Appeals Holds That an Employee Recently Released from a Drug Rehab Program Is a “Current” Drug Addict for Purposes of Disability Discrimination

The disability discrimination statutes under both federal and state law expressly exclude current drug addiction as a disability. In Melendez v. Houston Independent School District, No. 14-12-00946-CV (Tex. App. — Houston [14th Dist.] Dec. 5, 2013), the Fourteenth Court of Appeals considered the application of that rule to an employee who had recently been released… Read More »

Houston Court of Appeals Affirms Denial of Injunction in Physician Non-Compete Case

Lasikplus of Texas, LLC v. Mattioli, No. 14-12-01155-CV (Tex. App. — Houston [14th Dist.] Nov. 21, 2013), addressed the availability of a temporary injunction to enforce the non-compete in a physician’s contract. Dr. Mattioli worked for Lasikplus under a contract that contained a non-compete and a provision requiring 120 days notice of termination. Dr. Mattioli… Read More »

El Paso Court of Appeals Upholds Workers Comp Retaliation Verdict Despite the Employer’s Reliance on a Cause-Neutral Absence Control Policy

Chapter 451 of the Texas Labor Code prohibits an employer from retaliating or discriminating against an employee who files a workers compensation claim. The key issue in many cases under Chapter 451 is whether the employee can prove that the retaliation was due to the workers compensation claim. Employers will often claim that they took… Read More »

Houston Court of Appeals Holds That a Doctor’s Employment-Related Claim Is Not a Health Care Liability Claim

Chapter 74 of the Texas Civil Practice and Remedies Code requires the dismissal of a health care liability claim unless the plaintiff files an expert report within 120 days. This is generally applicable in malpractice cases, but the courts have expanded the scope of the statute to cover other sorts of claims. In Methodist Hospital… Read More »

San Antonio Court of Appeals Upholds Causation in a Retaliation Case Despite a Three-Year Time Gap

Unlike ordinary discrimination claims, retaliation claims require “but for” causation: that the retaliatory act would not have occurred but for the plaintiff’s protected activity. It is common for plaintiffs to rely on “temporal proximity” (in other words, a short time gap between the protected activity and the adverse employment action) to prove causation. However, the… Read More »

Austin Court of Appeals Affirms Summary Judgment on Constructive Discharge Claim

When employees quit, rather than being fired, they can still sue for wrongful termination under a constructive discharge theory. However, the legal standard for constructive discharge is high. This is illustrated by Gardner v. Abbott, No. 03-12-00680-CV (Tex. App. — Austin 2013, no pet.) (now reported at 414 S.W.3d 369). Gardner was a state employee… Read More »

Dallas Court of Appeals Reverses Retaliation Judgment Due to Deficient Charge of Discrimination

Yet another plaintiff lost his case because of the failure to check the correct box on the charge of discrimination form. In this case, the plaintiff had actually won the case to a jury, only to see the judgment reversed due to a deficient charge. The case is ATI Enterprises, Inc. v. Din, No. 05-11-01522-CV… Read More »

Corpus Christi Court of Appeals Dismisses Claims Due to Deficient Charge of Discrimination

The process of filing a charge of discrimination with the EEOC or TWC is supposed to be simple. However, deficiencies in the charge can be jurisdictionally fatal to a plaintiff’s claim. The biggest sources of problems are (1) plaintiffs who file charges on their own, relying on the EEOC or TWC personnel for assistance; and… Read More »

El Paso Court of Appeals Finds UTEP Subject to Suit for Harassment of a Contractor’s Employee

On July 10, 2013, the El Paso Court of Appeals issued its opinion in University of Texas at El Paso v. Ochoa, No. 08-12-00115-CV (Tex. App. — El Paso 2013) (now reported at 410 S.W.3d 327). The issue in the case was whether UTEP could be sued for sexual harassment and retaliation by the employee… Read More »

Dallas Court of Appeals Affirms Award for Employee on TWC Wage Claim

On June 13, 2013, the Dallas Court of Appeals issued its opinion in JMJ Acquisitions Management, LLC v. Peterson, No. 5=12=00263-CV (Tex. App. — Dallas 2013, no pet.) (now reported at 407 S.W.3d 371). This case involves an appeal from a wage claim decided by the Texas Workforce Commission. Peterson worked for JMJ, which experienced… Read More »