TBJ January 2022

2021: The Year in Review

Labor and Employment Law

Written by Trang Q. Tran

In 2021, there were many significant rulings that established the threshold for establishing pretext in discrimination cases, basic pleading standards, and class certification.

In Lindsey v. Bio-Med. Applications of La, the U.S. Court of Appeals for the 5th Circuit reversed the district court’s granting of summary judgment to Bio-Medical Applications of Louisiana on the plaintiff’s Family and Medical Leave Act retaliation claim. The 5th Circuit found there were genuine issues of material facts as to whether the attendance-related reasons asserted by BMA as the reason for Leisha Lindsey’s termination were pretextual. First, “Lindsey received her first ever disciplinary action” in more than 17 years of working for BMA “within three weeks of returning from FMLA leave.” Second, Lindsey’s initial Corrective Action Form failed to list a single date that she was absent, even though the form had a portion labeled “Date(s) of incident/occurrence.” Third, “the supervisor who prepared Lindsey’s Corrective Action Form, testified that he could not identify the days or hours that Lindsey did not show up to work.”1

In Scott v. U.S. Bank, the 5th Circuit reversed a district court’s granting of a motion to dismiss. Paul Scott sued U.S. Bank alleging that it had violated 42 U.S.C. § 1981 by retaliating against him “because he opposed racial discrimination occurring within his department.” Defendant moved to dismiss the complaint for failure to state a claim and the court granted it with prejudice.

In reversing the dismissal, the 5th Circuit held that the district court’s use of the McDonnell Douglas Corp. v. Green test, in the case, imposed on Scott a heavier burden than was required to meet at the pleading stage. Scott had sufficiently alleged facts that, “interpreted in the light most favorable to him, supported a reasonable belief that his employer engaged in an unlawful practice.”2

In Hewitt v. Helix Energy Sols. Grp., the 5th Circuit explained that paying employees on a day rate does not constitute payment on a salary basis under the Fair Labor Standards Act. The parties agreed that the plaintiff met both the duties requirements and income thresholds of both the highly compensated employee and executive exemptions. However, the company paid Hewitt on a daily basis, rather than on a weekly, monthly, or annual basis. Therefore, the company cannot meet the salary basis requirement for both exemptions to the FLSA.3

In Sterling v. Greater Hous. Transp. Co., the U.S. District Court for the Southern District of Texas issued an order granting class certification for a group of bus drivers in Houston’s METROLift transportation program. The drivers claimed that the defendants violated the FLSA by misclassifying them as independent contractors and denying them overtime. This decision is significant because it comes after the 5th Circuit’s new framework for evaluating class certification in Swales v. KLLM Transport Services, LLC, 985 F.3d 430 (5th Cir. 2021) but utilizes the previous standards. Metro argues that the plaintiff must establish that they are employees before class can be certified. The court rejected this argument and held that the issue at the class certification stage is not whether the plaintiff will ultimately prevail in proving all the elements of the alleged FLSA violation, including employment status, but whether the court can determine if the named plaintiffs and proposed class members are employees or independent contractors on a class-wide basis.4

1. Lindsey v. Bio-Med. Applications of La., 20-30289, at *1 (5th Cir. Aug. 16, 2021).
2. Scott v. U.S. Bank, 21-10031 (5th Cir. Nov. 2, 2021).
3. Hewitt v. Helix Energy Sols. Grp., 19-20023, at *1 (5th Cir. Sept. 9, 2021).
4. Sterling v. Greater Hous. Transp. Co., CIVIL ACTION No. H-20-910, at *4-5 (S.D. Tex. Jul. 14, 2021).

TRANG Q. TRAN is a labor and employment lawyer in Houston. He has practiced law for over 25 years focusing on the trial of employment cases. Tran is a member of the State Bar of Texas Labor and Employment Law Section Board of Directors. He can be reached at trang@tranlf.com.


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