Texas Employment Law Blog : San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

A group of wait staff employees recently filed a lawsuit against Texas Roadhouse, Inc., alleging that it had violated Massachusetts Tips Law and Massachusetts Minimum Wage Law. Ultimately, Texas Roadhouse agreed to settle the putative class action suit for $5 million.

Under Massachusetts Tips Law, only wait staff employees, service employees, or service bartenders are permitted to participate in a tip pool when the tips are used to fulfill minimum wage requirements. Massachusetts law allows an employer to use tips to, in part, fulfill minimum wage requirements for employees who receive at least $20 per month in tips. An employer may pay its employees $2.63 plus tips when the total amount paid is equal to or greater than the state’s $8.00 minimum wage requirement.

In the lawsuit, Crenshaw, et. al, v. Texas Roadhouse, Inc., the plaintiffs alleged that Texas Roadhouse improperly distributed pooled tips to employees who were not wait staff employees, service employees, or service bartenders. As a result of Texas Roadhouse’s alleged improper distribution of pooled tips, the plaintiffs claimed that they were paid less than minimum wage. The plaintiffs argued that because employees other than those who regularly and customarily received tips participated in the tip pool, Texas Roadhouse improperly claimed the tips toward the minimum wage.

 Previous: Age Discrimination: EEOC Sues Texas Roadhouse

Learn more about overtime and other types of wage and hour claims here.

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According to a report in the Sioux City journal, a federal jury in Sioux City has awarded a woman nearly $900,000 for sexual harassment and retaliation by her former employer.

Following a 7-day trial, Jurors on Wednesday found that Mindy Gilster had been sexually harassed by her supervisor and was subjected to retaliation as a result of filing complaints and her lawsuit against her employer.  Gilster alleged that her supervisor harassed her by making inappropriate comments about her appearance, pressing his body against her on one occasion and propositioning her.  She alleged that following her complaints, she was given a poor job review and denied a raise before she was fired in February 2011.

The jury award includes $600,000 in punitive damages, $240,000 for past and future emotional distress and $30,150 in back pay and medical expenses.

Read more here. 

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This week a former physician assistant in the cardiac unit of a Sacramento hospital was awarded $168 million in damages for workplace harassment.  The report is in the Los Angeles Times.  The verdict is believed to be a record amount in the US for any single worker. The plaintiff, Ani Chopourian, filed at least 18 complaints over two years before getting fired.

A few examples of the defendant's conduct: One surgeon's way of saying good morning was to declare, "I'm horny" and give her a slap on the butt, she said. Another liked to demean her Armenian heritage and would ask whether she belonged to al-Qaeda.

Not surprisingly, the defendant, Mercy General Hospital, plans to appeal.

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Arizona Logistics, Inc. doing business as DSI Arizona, and its management company, Norlyn Enterprises, Inc., agreed to pay $175,000 to five former employees and to implement preventive measures as part of a settlement of a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

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Former Texas Southern women's basketball coach Surina Dixon has won a federal lawsuit against the school in which she alleged gender discrimination and retaliation for her 2008 firing.

A jury awarded Dixon $730,000 on Friday.  Statutory damage caps may reduce that amount.

Dixon was hired under a four-year contract by TSU in March 2008 and fired three months later without being allowed to coach a single game after she complained about illegal pay practices at the university.  Her salary was roughly half that of her mail counterpart - a violation of federal law. 

Dixon is now a high school teacher in Memphis, Tenn.

According to an article in the Houston Chronicle, TSU issued a statement and is still denying any wrongdoing whatsoever.  Obviously the school just doesn't get it despite the apparent facts of the case and jury's decision.  I can only take from their statement that they plan to continue efforts to discriminate against their female employees.  

Perhaps a shakeup in TSU's administration is in order.  

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Two restaurants in Jacksonville and their owners have been ordered to pay 30 employees $934,425 in back wages and liquidated damages under the terms of consent judgments. The agreements resolve a U.S. Department of Labor lawsuit based on an investigation by its Wage and Hour Division that alleged violations of the Fair Labor Standards Act’s minimum wage, overtime pay and record-keeping provisions.

Investigators found that kitchen employees were improperly classified as exempt from FLSA overtime pay provisions and consequently paid salaries that did not include compensation for hours worked over 40 in a week. Additionally, every week, tipped employees would receive their tips plus a paycheck that together equaled the minimum wage; however, management required the employees to sign and return the paychecks, and would then cash the checks and put the money back into the restaurant. Through this process, while it appeared that the owners were paying wages, the employees actually were allowed to keep only their tips. Finally, the employers did not maintain accurate records of the hours worked by employees.

The employees will receive $584,425 in back wages and an additional $350,000 in liquidated damages.

The FLSA requires that covered employees be paid at least the federal minimum wage for all hours worked, as well as one and one-half times their regular rates of pay for hours worked over 40 per week. If certain conditions are met, the FLSA permits an employer to take a tip credit toward its minimum wage obligation for tipped employees. The employer must pay tipped employees a cash wage of $2.13 per hour or the state mandated cash wage, whichever is higher; all tips must be retained by the employee except for contributions to a valid tip pooling arrangement; employees must be informed of the tip credit provision; and the amount of tips plus cash wages must equal the federal minimum wage, currently $7.25 per hour. Additionally, the law requires that accurate records of employees’ wages, hours and other conditions of employment be maintained.

Read the Full Report.

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We get a lot wrong in our media-transfixed culture, where a wry quip and populist outrage almost always trump any understanding of complicated facts. But rarely do we get someone as wrong as we got Stella Liebeck.

 - Hank Stuever - Washington Post

The Documentary Hot Coffee premiers this week on HBO.  Hot Coffee is a documentary about the tort “reform” industry. The movie, which debuted at the Sundance Film Festival, included much about the McDonald’s hot coffee case where the late Stella Liebeck was scalded from the brew. I would tell you more about the case, except that you already know the story.....or perhaps you only think you know the story.  

Hot Coffee examines the case and several other cases as well, and does a really good job of exposing how corporate america has spent billions to trick the American people into believing that the court system is evil and that anyone who brings a legal claim is looking for "jackpot justice."  

I encourage you to watch the movie and then do your own thinking on the issue.  It is important that we start seriously considering this issue because our court system and our freedoms are being taken right out from under us and most people don't even know it.

Here is the trailer:

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 In what may be a record-breaking award to a single plaintiff in a sexual harassment case, a federal jury in East St. Louis, Ill., yesterday awarded $95 million to a former employee of Aaron's Inc. Of that amount, $15 million was compensatory and $80 million was punitive damages.

The plaintiff said an Aaron's store manager made suggestive comments, touched her inappropriately and sexually assaulted her. Although she complained to a supervisor and called an Aaron's hotline, she said, the rent-to-own retailer allegedly took no action.

Not surprisingly, the company plans to appeal what it calls a "runaway jury" verdict.  

Read the full story here.

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"This is not a black holiday; it is a people's holiday," -- Coretta Scott King, Nov. 2, 1983. 

A Baptist minister, King became a civil rights activist early in his career. He led the 1955 Montgomery Bus Boycott and helped found the Southern Christian Leadership Conference in 1957, serving as its first president. King's efforts led to the 1963 March on Washington, where King delivered his "I Have a Dream" speech. There, he expanded American values to include the vision of a color blind society, and established his reputation as one of the greatest orators in American history.

In 1964, King became the youngest person to receive the Nobel Peace Prize for his work to end racial segregation and racial discrimination through civil disobedience and other nonviolent means. By the time of his assassination in 1968, he had refocused his efforts on ending poverty and stopping the Vietnam War. He was posthumously awarded the Presidential Medal of Freedom in 1977 and Congressional Gold Medal in 2004.

Martin Luther King, Jr. Day was established as a U.S. federal holiday in 1986.

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 The U.S. Equal Employment Opportunity Commission (EEOC) issued its annual Performance Report last week, stating that the agency is making progress in rebuilding its capacity to enforce the civil rights laws protecting the nation’s workers. Over the past two years, the EEOC has begun to replenish its depleted ranks and dedicate significant resources to training employees, the largest sustained training effort the agency has conducted in at least a decade.

As a result, the federal agency ended Fiscal Year 2010 with 86,338 pending charges—an increase of only 570 charges, or less than one percent. Between fiscal years 2008 and 2009, the EEOC’s pending inventory increased 15.9 percent.

“The EEOC is on the path toward rebuilding and on track to make further progress in the upcoming fiscal year to more efficiently and effectively enforce the federal laws prohibiting employment discrimination,” said EEOC Chair Jacqueline A. Berrien.

The EEOC received a record 99,922 charges in FY 2010, which ended Sept. 30, —the highest number of charges in the agency’s 45-year history. EEOC staff also delivered historic relief for victims of workplace discrimination. The agency secured more than $319 million in monetary benefits for individuals—the highest level of relief obtained through administrative enforcement in the Commission’s history. Among other agency achievements:

• The mediation program ended the year with a record 9,370 resolutions, 10 percent more than FY 2009 levels, and more than $142 million in monetary benefits;
• The EEOC also expanded its reach to underserved communities by providing educational training, and public outreach events to approximately 250,000 persons;
• The agency continued its concerted effort to build a strong national systemic enforcement program. At the end of the fiscal year, 465 systemic investigations, involving more than 2,000 charges, were being undertaken;
• The EEOC resolved a total of 7,213 requests for hearings in the Federal Sector, securing more than $63 million in relief for parties who requested hearings. The agency also timely resolved more than 66 percent of Federal Sector appeals.

The EEOC’s FY 2010 annual Performance and Accountability Report is posted on the agency’s web site at http://www.eeoc.gov/eeoc/plan/2010par.cfm. Comprehensive enforcement and litigation statistics for FY 2010 will be available in early 2011.

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A Chicago-area man was awarded $4.2 million in total damages Thursday from the Chrysler company by a federal jury who believed the company did not do enough to stop years of religious and ethnic harassment.

According to the Rockford Register Star, the 60-year-old plaintiff filed the lawsuit against Chrysler in 2002. He is a pipe fitter at the company’s Belvidere assembly plant and has worked for Chrysler for nearly 22 years.  A Cuban-born Jew, the plaintiff took abuse for years from co-workers, including being called an “import from Cuba,” having his tires shredded by homemade spikes and having messages such as “Kill Jew. Heil Hitler” scribbled on his locker.

The jury awarded May $709,000 in compensatory damages and $3.5 million in punitive damages.  However, statutory damage caps will likely lower the amount actually awarded to the plaintiff by a significant amount. Juries are never told that the full amount that they award to a plaintiff will not be ordered by the Court due to the damage caps that have been placed on such awards by federal and state legislatures.

Read the News Account.

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UT Southwestern has been ordered to pay Egyptian-born doctor $3.6 million for discrimination and retaliation stemming from its 2006 constructive discharge of an Egyptian-born Muslim American citizen. 

According to the Dallas Morning News, the jury took little time in deciding for the plaintiff in the case.  

It is noted that the verdict may be reduced by the Court in accordance with applicable statutory damages caps.  

Links:

Copy of the Lawsuit Pleadings

Dallas Morning News Article

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 A federal jury on Monday found that the U.S. unit of Swiss drug maker Novartis AG engaged in a "pattern or practice" of discrimination against its female employees. 

Following a six-week trial, the jury issued a verdict ordering the company to pay a class of women employees $3.3 million in compensatory damages.  On Tuesday, the jury awarded $250 million in punitive damages against the company.  

The lawsuit on behalf of about 5,600 current and former women employees alleged that while working for Novartis, they were systematically denied promotions, paid less and subjected to differential treatment.

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Albertsons, LLC, a national grocery chain, will pay $8.9 million and furnish other relief to settle three employment discrimination lawsuits filed by the U.S. Equal Employment Oppor tunity Commission (EEOC), the agency announced today. The EEOC had charged Albertsons with race, color, and national origin discrimination and retaliation at its Aurora, Colo., distribution center. The monetary relief will be distributed among 168 former and current employees.

All three of the EEOC’s cases stemmed from incidents at the Aurora distribution center, which is being closed for unrelated reasons. The first case, EEOC v. Albertsons LLC, Civil Action No. 06-cv-01273, was filed in 2006 and alleged a pattern or practice of workplace harassment and discrimin ation based on race, color and national origin. According to the lawsuit, minority employees were repeatedly subjected to derogatory comments and graffiti. Blacks were termed “n-----s” and Hispanics termed “s---s,” among other offensive epithets.

The EEOC said the offensive graffiti included racial and ethnic slurs, depictions of lynchings, swastikas, and white supremacist and anti-immigrant statements. The graffiti in a commonly used men’s room was so offensive that several employees would relieve themselves outside the building or go home at lunchtime rather than use the restroom. Some of this graffiti remained for years until the restroom was remodeled in 2005.

The EEOC also charged that minority employees were given harder work assignments and were more frequently and severely disciplined than their white co-workers. According to the EEOC, managers were aware of, and even participated in, the harassment and discrimination.

The second lawsuit, EEOC v. Albertsons LLC, Civil Action No. 08-cv-00640, was filed in 2008 and alleged a pattern or practice of retaliation. The EEOC alleged that dozens of employees complained about the discriminatory treatment and harassment and were subsequently given the harder job assignments, were passed over for promotion and even fired as retaliation.

The third case, EEOC v. Albertsons LLC, Civil Action No. 08-cv-02424, was also filed in 2008 and alleged race discrimination on behalf of a single African American employee at the distribution center who was terminated.

Source: EEOC Press

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The University of Phoenix has agreed to pay a former employee $32,500 as part of a settlement of a discrimination claim that has been made public by the EEOC. The University settled the discrimination claim brought by Latrish Elaine Tarhini, who worked as enrollment counselor at the school’s Houston campus.

The EEOC and Tarhini claimed that University of Phoenix management said she would not be in line for a promotion because she made an earlier pregnancy discrimination charge against the Phoenix-based company and its parent, Apollo Group Inc. The EEOC filed suit against UOP in September 2008 in federal court, claiming the for-profit university violated retaliation statutes of the Civil Rights Act of 1964. It violates federal law to discriminate against workers who previously filed discrimination claims against their employers.

The University of Phoenix is a subsidiary of Phoenix-based Apollo Group Inc. (Nasdaq: APOL). It has 397,000 students enrolled in its online and campus classes. The school has 200 campuses worldwide.
 

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