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EMPLOYMENT LAW UPDATE by Nellie Hooper, Associate

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1. Ramirez v. City of San Antonio, 312 F.3d 178 (5th Cir. 2002)

ADA plaintiff must file claim within 300 days of alleged discriminatory act.

City employee sued City alleging his transfer to a physically less demanding job violated the Americans with Disabilities Act (ADA). After Employee had surgery, City consulted with a specialist in occupational medicine. The specialist concluded Employee should be transferred to a sedentary job and could no longer perform as a shift supervisor. The City transferred Employee to a lower paying, clerical job, but continued to compensate Employee with at a supervisor’s pay rate for six months. After six months, employees wages were substantially reduced.

Under the ADA, a plaintiff must file a discrimination charge within 300 days of the alleged discriminatory act. The 300 day period runs from the time the complainant should reasonably know the challenged act occurred. Here, the Employee should have known of the alleged violation by the date of his transfer. Because more than 300 days passed before he filed a complaint, his claim was untimely. The Court affirmed the trial court’s grant of summary judgment.

2. Moore v. Hannon Food Service, Inc., 317 F.3d 489 (5th Cir. Jan. 20, 2003).

Employer who timely corrected alleged violations of Fair Labor Standards Act was not subject to liability.

Hannon Food Service owned a number of KFC restaurants and paid its managers a per week salary and monthly bonus based on sales. Hannon deducted recurrent cash register shortages from the monthly bonus. Hannon changed this policy and began deducting shortages from the weekly salary. Hannon’s counsel advised Hannon to discontinue this practice, which Hannon did. Managers filed suit against Hannon alleging violations of the Fair Labor Standards Act (FLSA). The Court concluded that Hannon corrected the matter within the "window of correction" allowed by federal regulations. Therefore, the Court rendered judgment in favor of Hannon.

3. Gowesky v. Singing River Hospital Systems, ___ F.3d ___, 2003 WL 253111 (5th Cir. Feb. 6, 2003).

Harsh words by two employees were insufficient to establish a disability based workplace harassment claim under the Americans with Disabilities Act.

Emergency room physician acquired hepatitis C while treating a patient. She ceased active duty at the hospital and underwent chemotherapeutic treatment for her infection. Two years later, the virus was in remission and physician sought to return to active duty. Physician testified that hospital administrator told physician he was not sure Physician could work in the ER with hepatitis C and would be subject to weekly blood draws. Physician also testified administrator said he would not go to a dentist with Hepatitis C and would not let physician suture his child. Physician also testified that the hospital’s director of emergency medicine threatened her and stated she would have to guarantee there would be no problems. Nevertheless, the hospital scheduled her to return to her ER duties on multiple occasions. On each occasion, Physician "repeatedly declined to return to work."

Physician filed this ADA suit alleging disability-based workplace harassment. The Court noted its high standard for an actionable harassment claim, stating: "It is a simple fact that in the workplace, some workers will not get along with one another, and this Court will not elevate a few harsh words or ‘cold shouldering’ to the level of actionable offense." The Court concluded that the "slender" evidence produced by the Physician did not meet the standard necessary to establish disability based harassment claim as a matter of law.

4. City of Houston v. Williams, ___ S.W.3d ___, 2003 WL 253342 (Tex. App.--Houston [14th Dist.] 2003, no pet. h.)

Firefighter who elects to have suspension reviewed by independent hearings examiner must exhaust administrative remedies before filing suit.

City of Houston Fire Department and some employees engaged in dispute on proper number of firefighters to be assigned to certain fire trucks. Fire Chief advocated three crew members per truck, while union President advocated four members per truck. Union President was suspended after "reportedly interject[ing] with inappropriate remark" at a press conference held by Houston’s mayor. President appealed his suspension to an independent hearings examiner. Six days later, President filed a declaratory judgment suit. Because President failed to exhaust his administrative remedies, the district court did not have jurisdiction over the matter.

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If you have any questions about any of these cases or would like copies of specific cases, please contact Nellie Hooper (NHooper@fhmlaw.com).

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© Fanning, Harper & Martinson, P.C., March 4, 2003.

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