- In thoughtful opinions, two different federal judges in the Northern District of Texas have held that a mixed-motive analysis applies in a Title VII retaliation case. That's good news for plaintiffs. It is easy to argue to judge and jury: "You may believe that the employer was motivated by legitimate reasons, but if there is evidence of an unlawful reason -- even just one out of 10 reasons -- then you must deny summary judgment (judge) or return a verdict for the plaintiff (jury)." That's heaven for plaintiffs lawyers. Check out Martin v. UT Southwestern Medical Center, 2009 U. S. Dist. LEXIS 1691 (2009) and Smith v. Xerox Corp., 2008 U. S. Dist. LEXIS 91216 (2008).
- In deciding to seek injunctive relief when an employee leaves to go to a competitor, where must the employer file suit? The venue rule says a plaintiff must bring suit in the county of residence of the parties being sued. Wrong, says the 1st Court of Appeals in Houston on Feb. 5 in Shuttleworth, et al. v. G & A Outsourcing , Inc. The court held that the venue statute, Texas Civil Practice & Remedies Code §65.023(a), does not apply to a suit that seeks both legal as well as injunctive relief if the "main purpose" of the suit is for damages as well as deterrence -- that is, sending a message to other employees not to breach their covenants. Why is this important? It is easier to get injunctions in some Texas counties than others. An employer can now seek injunctive relief in a county of its pick if it pleads and argues in conformity with Shuttleworth. Warning: It's hard to know whether other courts will pick this up.
- A final word: Texas is becoming increasingly Hispanic in culture. When the culture changes, the jury pool changes. What will that mean, for example, regarding jurors' view of the elderly in an age discrimination case? "Más sabe el diablo por viejo que por diablo." Translation: "The devil is wise, not because he is the devil but because he is old." This aphorism could reflect a view of age as a plus, not as a drawback. Such a view could play to a plaintiff's advantage in an age discrimination case.
Comments