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EMPLOYMENT LAW UPDATE by Nellie Hooper, Associate

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Texas Supreme Court

1. Mission Petroleum Carriers, Inc. v. Roy B. Solomon, 46 Tex. Sup. Ct. J. 649 (May 2003).

The Supreme Court declined to impose a common-law duty of ordinary care on employers who conduct in-house urine specimen collection pursuant to Department of Transportation regulations.

Fifth Circuit

2. Martinez v. Dep’t of the US Army, 317 F.3d 511 (5th Cir. 2003).

A federal employee who abandoned his EEOC appeal was allowed to file a federal lawsuit. The Fifth Circuit held that 42 U.S.C. section 2000e-16(c) allows federal employees to file suit in federal court if an agency has not taken final action within 180 days, and because abandonment of an EEOC was not a failure to cooperate with the administrative process.

3. Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, (5th Cir. 2003).

Employees failed to make a prima facie showing of Title VII retaliation, where they did not show that a school board’s implementation of a reading requirement and new salary structure for a janitor position constituted an adverse employment action. A disparate impact claim also failed (even though all existing female employees were required to be tested) because the employees failed to show statistical evidence tending to show that the reading requirement operated in a way which selected applicants from the protected group - females - in a pattern "markedly disproportionate" from the entire pool of applicants for the new Janitor position, of which the Employees were a part of.

4. Gowesky v. Singing River Hosp. Systems, 321 F.3d 503, (5th Cir. 2003).

An employee infected with hepatitis C, who repeatedly refused to report for work assignments, was not considered "disabled" within the meaning of the ADA. Thus, her claims for gender and disability-based discrimination failed

Texas Courts of Appeals

5. Strickland v. Medtronic, Inc., 97 S.W.3d 835, (Tex. App.–Dallas 2003, no pet. h.).

The Dallas Court of Appeals held that a covenant not to compete is ancillary to or part of an otherwise enforceable agreement when (1) the employer’s consideration in the otherwise enforceable agreement gives rise to the employer’s interest in restraining the employee from competing and (2) the covenant is designed to enforce the employee’s consideration in the otherwise enforceable agreement. In this case, the court concluded there was an otherwise enforceable agreement between the parties but that the covenant not to compete was not ancillary to or part of the otherwise enforceable agreement.

6. Tarrant County v. Van Sickle, 98 S.W.3d 358, (Tex. App.–Forth Worth 2003, no pet. h.).

Injured deputy sheriff, who was medically unable to return to work, did not receive salary and benefits once his term of office expired. The Court of Appeals held that the Texas Constitution prohibits salary payments to sheriff’s deputies past the term of the sheriff who hired them.

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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., July 2003.

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