In April, the Fifth Circuit of Appeals found that Carolyn Spears, formerly a tenured professor at Louisiana College (LC), had made out a prima facie case of age, sex, and disability discrimination and retaliation which resulted in a wrongful termination by the college. This decision reversed a lower court finding to dismiss those claims and sent the lawsuit back for further hearing. The new definitions created by this decision address an employment practice known as job fractioning. This ploy is sometimes used by employers to defeat employment discrimination claims. No more it seems, at least not in the Fifth Circuit. The facts of this case also highlight what a many-headed hydra an employment claim can be. Fortunately, however, there are increasingly effective ways to fight back.

Kilgore Law Holds Employers Accountable for Wrongful Termination

When you experience job discrimination, wrongful termination, or workplace retaliation, reach out to us. Fill out and submit the form you reach by clicking on this link Contact Kilgore & Kilgore. Or call us at (214) 949-9099. We want to hear from you. For more information on our employment law practice, click this link. Our employment lawyers are experienced with many forms of employee discrimination and retaliation.

What Is Job Fractioning?

An essential part of Spears’ age discrimination claim was evidence that she “was replaced by someone younger or treated less favorably than similarly situated younger employees.” Similarly, her sex discrimination claim required that she show that “the position sought was filled with someone outside the protected class” (i.e., a man). The problem was that her job duties were divided among several people, not all of whom met that requirement. The district court found that “such an action does not constitute replacement.” Spears’ retaliation and disability claims met a similar fate. On appeal, the Fifth Circuit concluded that “spreading out an employee’s job duties amongst other employees may still constitute a replacement of that person for purposes of the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964. (Title VII).”

Wrongful Termination Suits Can Be Complicated

The fact that Spears brought such a variety of claims, involving so many federal statutes (and a collection of Louisiana state laws) indicates what a layered and complicated phenomenon employment discrimination is for those who find themselves on the receiving end. Her story is, by any measure, an employment nightmare.

Spears Lawsuit Background

Carolyn Spears, born in 1941, joined LC’s faculty in the Department of Health and Physical Education in 1977. She was tenured in 1984. In 2007, she executed a Retirement Plan Options agreement, under which she chose to retire by July 31, at least in part to avoid future premium increases. Nonetheless, she continued to teach as a Senior Professor under yearly contracts.

In 2012, Spears with diagnosed with cancer and underwent treatment. The cancer returned in 2014 and she underwent treatment again. She applied for and received long-term and sick leave from LC. The facts are in dispute about whether she notified the human resources department that she did not intend to return.

Separately, she had filed a whistleblower complaint with the EEOC. The college seems to have discovered this complaint by stealth and with the assistance of a private investigator. A colleague who joined in this complaint was fired. There were also religious discrimination claims. LC had recently re-defined its religious mission as Calvinist teaching.

Spears argued that the dispute about her intention to return was a form of retaliation. LC reorganized the department within which Spears had been teaching, demoted her from her previous position as Chair, and reduced her salary. It then declined to renew her teaching contract. Spears was notified that the college was moving in a different direction. She sued. This is not unusual in employment disputes. Often, breakups from long-term jobs look like a nasty divorce.

Be Alert – Notice the Telltale Signs of an Impending Wrongful Termination

Even without overtly racist, sexist, ageist, or religiously bigoted behavior or comments, there are actions about which workers should be alert. In your own job, If you notice any of the actions listed below, it may be time to seek legal advice:

• Sweetening an early retirement plan option to urge long-time employees out the door is not necessarily despicable, depending on the sweetener.
• Before you leave the job, while you still have access to your employment records, prepare an analysis of employer actions that affected you or your position. Termination of a long-term worker’s employment, contract or otherwise, should be carefully documented through multiple periodic reviews – conducted at the time, not after the fact. If these records are missing, call a lawyer.
• A reduction-in-force (RIF) program that targets high-earning individuals, many of whom with long service records, may or may not violate age discrimination statutes. This situation is very fact dependent. These are, not coincidentally, the folks whose health insurance costs may be increasing.
• Especially when a RIF is a surprise, the option to work on contract may come as a relief, but beware. The hourly rate may be lower than salary, and there are no employee benefits. This also raises the legal question of whether employees are being misclassified as contractors.
• A constructive discharge may be afoot when an employee’s working conditions are changed in a way that makes performance impossible. Having your office moved far away from co-workers, perhaps to the basement next to the furnace, is a classic example.
• The moving in a different direction message is generally the kiss of death. The same is true of not a good fit with the team. However, this may be a disguise for prohibited age, gender, disability, race, national origin or religious discrimination, notwithstanding the wide latitude employers get under the employment at-will doctrine. The term looking for a digital native may be a version of age discrimination. The term digital native describes a person who has grown up in the information age.

Many Legal Options for Wrongful Termination Victims

Every situation is different. In Texas, employees have many ways to defend their jobs. Texas and federal statutes, such as Texas Labor Code Chapter 21 and the ADEA, protect against employment discrimination for those over 40. The ADA focuses on the rights of people with disabilities to work with reasonable accommodation. Title VII prohibits a wide variety of forms of employment discrimination, including disparate treatment based on sex, race, ethnicity, and religion, as well as retaliation.

We Have Answers to Your Employment Questions

Our Texas employment lawyers have an impressive depth of experience with employment claims. Contact us if you believe that you are the victim of discrimination, retaliation, wrongful termination, or other workplace problems. Reach out to Kilgore Law for a free review of the facts of your case. Click here to get the conversation started contact Kilgore & Kilgore. Fill out the form and we will contact you to determine whether we can assist with your claims.