5th Circuit Employment Law News - U.S. Fifth Circuit
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Humana, as a third party service provider to an ERISA benefit plan, cannot sue under the Act to recover funds paid out, since it was not an ERISA fiduciary, the Fifth Circuit ruled on Monday. Rather, under the plan management agreement, Humana's role was simply ministerial, more akin to a lawyer or collections agent.

Humana and API entered into a plan management agreement whereby Humana would administer API's employee benefits plan. Under the PMA, API was to retain decisionmaking control over all discretionary decisions, with Humana acting within the framework of the plan's management policies. The limited discretion Humana had, even under the agreements broad subrogation terms, kept it from being treated as a true ERISA fiduciary, the Fifth Circuit found.

For a claim of age discrimination to withstand summary judgment, a plaintiff must show that he or she was treated differently from similarly, very similarly, situated employees because of his or her age, the Fifth Circuit reminded us yesterday. While those similar employees don't have to be identical they have to be fairly close.

James Hinga, a machinist who was let go after a recall, couldn't find a close enough match to support his age discrimination claim. Though he pointed to three younger employees, the fact that they had different roles and different discipline histories kept them from being appropriate comparators.

A federal judge in Texas has put a stop to the Obama administration's plans to expand coverage of Family and Medical Leave Act protections to married same-sex couples, at least temporarily. Judge Reed O'Connor, in the District Court for the Northern District of Texas, ordered the government to stay its FMLA final rule after Texas brought suit.

The stay puts a halt to an expansion which would have seen leave protections extended to all married spouses, regardless of state. The FMLA allows covered workers to take to take unpaid leave in the case of serious health conditions, to care for a spouse or child, or for the birth or adoption of a new child.

A Double Bench-Slapping and Appellate Advocacy Basics

The case? Thomas Roque v. Natchitoches Parish School Bd., in which Roque is alleging that he was denied a school superintendent position because of race-based discrimination.

During oral arguments for the case, Roque's attorney David Broussard got a quick lesson in Fifth Circuit appellate advocacy, courtesy of Fifth Circuit Judge E. Grady Jolly and District Court Judge Lance M. Africk (sitting by designation) in the form of a double bench-slapping.

Why? One word: interrupting. (H/T to Above the Law and NMissCommentor)

The facts of this case are pretty simple: Allen Thompson was a detective in Waco, Texas. Thompson and two other detectives were found to have falsified their time sheets. Thompson, but not the other two detectives, was subjected to written restrictions. Thompson is black; the other two detectives aren't. Hopefully you can see the Title VII employment discrimination lawsuit coming.

A federal district court dismissed Thompson's suit on the ground that he had failed to allege an adverse employment action. Last week, the Fifth Circuit reversed, finding that restrictions on his job duties were the equivalent of a demotion.

Corrections Officer's Leak to Press Was Grounds For Termination

The obvious case is, well, obvious.

Shift Sergeant Rodricus Carltez Hurst worked in a Lee County, Mississippi jail. The operations manual at the jail stated that only the Sheriff or his "designee" could talk to the media, though the rule doesn't seem to have been enforced all that well -- the record contained multiple instances where Hurst had spoken to the media during his tenure at the jail.

This time, however, he provided information on a local college player, Chad Bumphis, who had been arrested on New Year's Day after a "big group fight" at a local bar. Sgt. Hurst was quoted in a local newspaper's coverage, which is still available online. Hurst was fired shortly thereafter for violating the Department's media relations policy.

Sexual Harassment 101: Hague v. UT Health Science Center

The Fifth Circuit's March 28 decision in Monica Hague v. University of Texas Health Science Center at San Antonio underscores some of the basics of sexual harassment cases and shows one major pitfall to avoid.

Monica Hague worked on a contract basis as a nurse for the University of Texas Health Science Center. She claimed (among other things) that she was sexually harassed when a Dr. Manifold read a sexually explicit article aloud during a meeting and gave another employee a sexually explicit doll.

Hague followed internal procedures to address the behavior and eventually filed an EEOC complaint. Three days later, she was informed that her contract would not be renewed. She sued, alleging sexual harassment, sexual discrimination, and retaliation. The district court granted summary judgment in favor of her employer. The Fifth Circuit affirmed in part, vacated in part, and remanded in an opinion that reads reminds us of the basics of sexual harassment law.

Texas filed suit on Monday over the right of Texas state employers to absolutely bar the hiring of felons that would be stymied by the EEOC's guidelines.

According to the Dallas Business Journal, Texas Attorney General Greg Abbott filed suit in federal court challenging the Equal Employment Opportunity Commission's enforcement guidelines which recommend that absolute bans on hiring felons run afoul of Title VII.

Does Abbott have a case here, or is this just an issue to ride in his race against Wendy Davis for the Texas governorship?

Age discrimination is a strange animal in the federal circuits. Case law-wise, it shares many similarities with Title VII cases, but the jurisprudence is slightly different.

In Leal v. McHugh, the Fifth Circuit tackled a case that exemplifies some of the quirks of age discrimination cases, as well as the low standard of meeting a pleading burden.

A Lowe's employee was properly denied ERISA benefits on her death because of an insurance administrator's interpretation of her plan's coverage of work trips.

In a very sad case before the Fifth Circuit, Elizabeth Porter died in 2008 when a car hit hers head-on, killing herself and her unborn child. Porter had insurance benefits through her employer, Lowe's, but the company refused to pay those benefits to her husband because Porter had died while going to and from work.

The Fifth Circuit sided with the insurance administrator in Porter v. Lowe's Companies, finding that despite the gruesome facts, the decision was reasonable enough.