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News Flash

Please see the attached order amending Rule 32.4



Notice to Filers, Changes in Requirement of Certificate of Compliance:

The Clerk of Court has also updated the Practitioner's Guide with the following:

Notice of Proposed Amendment to 5TH CIRCUIT RULES 26, 28, 29, 31 and 32 
 
Pursuant to 28 U.S.C. § 2071, we give notice the court is considering amending 5TH CIR. R. 26, 28, 29, 31 and 32 as shown below.  Additionally, the court is studying possible additional changes with respect to new word count limitations in the December 1, 2016 amendments to FRAP Rules 5, 21, 27, 28.1, 32, 35 and 40.   
 
We will accept written comments for consideration on the proposed change through November 15, 2016: 
 
Clerk of Court U.S. Court of Appeals for the Fifth Circuit ATTN: Rule Changes 600 South Maestri Place New Orleans, LA 70130 
Notice of Proposed Amendment to 5TH CIRCUIT RULES 26, 28, 29, 31 and 32 
 
Pursuant to 28 U.S.C. § 2071, we give notice the court is considering amending 5TH CIR. R. 26, 28, 29, 31 and 32 as shown below.  Additionally, the court is studying possible additional changes with respect to new word count limitations in the December 1, 2016 amendments to FRAP Rules 5, 21, 27, 28.1, 32, 35 and 40.   
 
We will accept written comments for consideration on the proposed change through November 15, 2016: 
 
Clerk of Court U.S. Court of Appeals for the Fifth Circuit ATTN: Rule Changes 600 South Maestri Place New Orleans, LA 70130 
or send comments electronically to Changes@ca5.uscourts.gov 

Fair Labor Lawyer by Marlene Trestman

The Clerk of Court for the Fifth Circuit has offered guidance for citation to the record on appeal.  

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The Daily Commentary (sample)

Sample case reviewed on May 23, 2017.
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EEOC v. EmCare, Inc. No. 16-10598

http://www.ca5.uscourts.gov/opinions/pub/16/16-10598-CV0.pdf

Before SMITH, PRADO, and GRAVES, Circuit Judges.

AFFIRMED. (May 19, 2017).

Posted in Employment-Retaliation, Employment-Retaliatory Discharge, Hostile Work Environment, Sexual Harassment, Title VII

 

Luke Trahan worked for EmCare, Inc.’s (“EmCare”)AnesthesiaCare division from November 2008 to August 7, 2009. He was hired as a physician recruiter but was quickly promoted to recruiting manager. During his time at EmCare, Trahan headed the credentials and billing enrollment teams. For the first few months of his employment, Trahan was supervised by Jim McKinney, the CEO of AnesthesiaCare. This case arose from McKinney’s frequent and persistent sexual remarks and gestures in the workplace. At trial, numerous witnesses testified to various examples of the following conduct: McKinney constantly commented on women’s bodies, asking them to lower their blouses, hike up their skirts, or show more cleavage. In June 2009, when AnesthesiaCare hosted a “Bring Your Child to Work Day” (“BYCTW Day”), Yvonne Shaw, a senior credentialing coordinator, brought her fifteen-year-old daughter to the office. She testified that when she introduced her daughter to McKinney, McKinney stated, “[T]here is no way she is 15 with breasts like that.” Shaw recalled that McKinney laughed when Shaw became visibly upset. She then went to HR to complain, accompanied by Trahan. At this point in his employment, Trahan had already complained to HR at least four times about McKinney’s behavior.

In July, Karen Thornton, EmCare’s vice president for human relations and head of AnesthesiaCare’s human resources office suggested that Trahan’s and Shaw’s units be audited. The report was essentially positive regarding Trahan’s performance, particularly as it compared to that of another recruiter who did not get fired. Trahan never received any feedback from his superiors about the audit. On August 7, 2009 – six weeks after BYCTW Day and four days after the audit report – EmCare fired Trahan, Shaw, and a third employee who had complained on BYCTW Day. Sean Richardson, EmCare’s chief operating officer testified that it was his decision to terminate Trahan, but acknowledged that he discussed the decision with Thornton and McKinney beforehand. Thornton entered Trahan’s termination into the computer database, which she only did when there was a “backlog or if [she] was personally involved in the transaction.”

The Equal Employment Opportunity Commission filed suit in Federal Court seeking injunctive relief and monetary damages under Title VII on behalf of Trahan and two other employees. Relative to this appeal, the suit alleged that Trahan was terminated in retaliation for his complaints about McKinney’s behavior. EmCare did not seek dismissal or summary judgment, proceeded to a six-day jury trial. The jury found in favor of the EEOC and that EmCare had terminated Trahan in retaliation for complaining of sexual harassment in the workplace. The jury awarded $167,000 in back pay for Trahan. The District Court denied EmCare’s motion for judgment as a matter of law. EmCare appealed, contending that EEOC failed to present sufficient evidence of a causal link between Trahan’s protected activity and termination because there was no evidence that the individual who decided to terminate Trahan was aware he had engaged in protected activity. Specifically, EmCare maintained that there was no evidence Sean Richardson, the person who decided to terminate Trahan, was aware of Trahan’s complaints. Thus, EmCare implicitly advanced two claims: (1) there was no evidence that Richardson knew about Trahan’s complaints and (2) there was no evidence that anyone other than Richardson decided to fire Trahan.

To prove retaliation under Title VII, the plaintiff must establish: “(1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action.” Thomas v. Tex. Dep’t of Criminal Justice, 220 F.3d 389, 394 (5th Cir. 2000). Against EmCare’s contention that any evidence suggestive of Richardson’s knowledge amounted to speculation, the Fifth Circuit found that the case did not involve mere speculation. As an initial matter, there was an abundance of conflicting testimony over critical issues, entitling the jury to discredit Richardson’s and Thornton’s versions of events and find their testimony not credible. For example, the jury heard conflicting accounts regarding: whether Thornton and Richardson ever personally observed McKinney make sexually offensive comments, whether Trahan and Shaw ever complained to HR about McKinney’s behavior, and whether the audit of Trahan’s unit produced any legitimate grounds to fire him. Accordingly, the Court was persuaded that the jury was entitled to find that Richardson and Thornton had both witnessed inappropriate behavior in the workplace and taken no action, that Trahan and other employees complained to HR numerous times, and that the justification for firing Trahan was pretextual. In light of these contradictory statements, as well as the circumstances surrounding Trahan’s termination, the Court concluded that the evidence was sufficient for the jury to find that Richardson was aware of Trahan’s complaints. Moreover, the Court explained that there was sufficient evidence for the jury to find that Thornton and Richardson both made the decision to fire Trahan. Because the jury could have logically inferred either that Richardson knew of Trahan’s complaints or that Thornton was involved in the decision to fire Trahan, the EEOC presented sufficient evidence of causation.

On Appeal from the United States District Court for the Northern District of Texas (Barbara M. G. Lynn)
Attorney for Appellant – Steven W. Moore, Denver, CO
Attorney for Appellee – Paul D. Ramshaw, Washington, DC

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