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In an unusual move on Aug. 26, the Texas Supreme Court issued a per curiam decision in a case involving an issue of first impression. The Supreme Court’s decision in Ysleta Independent School District v. Monarrez, et al. involves a claim of wrongful termination under the state’s employment discrimination law. The ruling negates an almost $500,000 judgment that an El Paso County Court-at-Law No. 5 jury awarded to two terminated bus mechanics, both men, in their suit against the school district. The plaintiffs alleged in their brief to the Supreme Court that the school district disciplined them much more harshly for violating time-clock procedures than it did female employees in the same department for the same violations. [ See the opinion.] In Monarrez, the Supreme Court considered for the first time what it means for a protected class of employees under the Texas Commission on Human Rights Act (TCHRA) to be “similarly situated” to another group of employees allegedly treated more favorably by their employer. Basing its decision on federal case law, the court determined that there is no evidence that the misconduct of the male workers was of “comparable seriousness” to that of the female workers. “It was our contention all along that the district acted properly in terminating the plaintiffs and treated them no differently from the way it would treat other employees who acted similarly,” says Jerry Wallace, a shareholder and chairman of the state and local government practice group for El Paso’s Delgado, Acosta, Braden & Jones, which represents the district. “We also believe it is significant that the Supreme Court considered this important issue of first impression, offering critical guidance to employers throughout Texas on what behavior is permissible and impermissible under state employment discrimination law,” Wallace says. Former state Supreme Court Justice Craig Enoch, now a partner in Winstead Sechrest & Minick in Austin, says the court rarely addresses issues of first impression in per curiam decisions. But Enoch says the high court may have concluded that the issue in Monarrez was well-decided in federal law and wanted to send a message. “The court may have chosen the per curiam route to emphasize the point that they’re toeing the federal line on that issue,” he says. Deborah Hankinson, another former justice on the Supreme Court, says that, when she was on the court, it typically did not deal with issues for the first time in per curiam opinions. “I think we made it a point not to do cases of first impression as PCs [per curiams],” says Hankinson, principal in the Law Offices of Deborah Hankinson in Dallas. Hankinson says unsigned per curiam opinions give no indication of whether all of the justices agreed with the decision. “It only takes six justices to issue a [per curiam opinion],” she says. “The other three may say, “I’m not for it, but I’m not going to stop it.’” Six to eight justices decided Monarrez. The Supreme Court noted in the opinion that Justice Don Willett, the court’s newest member, did not participate in the decision. If a member of the court dissents, the court does not decide the case per curiam, Hankinson says. Justice Nathan Hecht, a 16-year veteran on the state Supreme Court, says members of the court address issues of first impression in per curiam decisions “when we need to,” but he could not remember a specific case handled in that manner. “What’s an issue of first impression and what’s not is kind of hard to tell,” Hecht says. “I’m sure there are going to be many times where the law is not entirely clear, but it was clear enough that argument wasn’t going to help.” State Supreme Court Chief Justice Wallace Jefferson also cannot recall another case of first impression in which the court issued a per curiam decision. But Jefferson adds, “There’s nothing that formally precludes the court from issuing a per curiam in a first impression case. It depends on the facts of the case.” CLOCKING IN The Monarrez case arose after the school district terminated bus mechanics Gustavo Monarrez and Jose Rodriguez in April 1999. According to the opinion, Rodriguez asked Monarrez to clock him in the day after the two men spent an evening drinking at a bar. Monarrez punched Rodriguez’s time card the following morning, which was a Saturday, but Rodriguez later notified Monarrez that he would not make it to work that day. At the end of the shift, Monarrez clocked out for himself and Rodriguez. As noted in the opinion, the two mechanics admitted to their supervisor several days later that they had violated time-clock procedures, and a review committee subsequently recommended their termination. Monarrez and Rodriguez sued the district, alleging gender discrimination in violation of the TCHRA, Texas Labor Code 21.051. “None of the female employees who violated [the district's] rule against clocking in other employees were terminated for breaching that rule,” Monarrez and Rodriguez alleged in their brief to the Supreme Court. “The plaintiffs in this case were terminated for violating the same policy that females received write-ups [for], or were not even disciplined,” says El Paso solo John Wenke, who represented Monarrez and Rodriguez at trial. “You can’t get more similarly situated than that.” In its brief to the Supreme Court, the district contended that testimony at trial established that the female employees, all bus drivers, punched each other’s time cards “merely for the sake of convenience.” The district alleged in the brief that the female employees’ actions were not similar to the “fraudulent conduct” committed by Monarrez and Rodriguez. The two men agreed the night before that Monarrez would clock in Rodriguez, who did not intend to go to work, the district alleged in the brief. “The bus drivers were actually at work; these guys did it because they didn’t want to go to work,” contends Rene Ordonez, the Delgado Acosta shareholder who represented the district at trial. Wenke says the termination notices for Monarrez and Rodriguez included only accusations that they violated the district’s clocking-in policy. He says Monarrez and Rodriguez reported their mistake to a supervisor, and Rodriguez received no pay for the day he didn’t work. After the review committee recommended their termination, the district fired the two men. Monarrez and Rodriguez sued the district, alleging gender discrimination. According to the Supreme Court’s opinion, the trial court rendered judgment on a verdict, awarding Monarrez $46,900 in lost wages, Rodriguez $74,000 in lost wages and $175,000 to each for mental anguish. The court also awarded $30,000 in attorney’s fees. “This was a case in which the jury returned its verdict in 50 minutes; [jurors] found disparate treatment between men and women,” Wenke says. After then-Court-at-Law Judge Herbert Cooper denied the district’s motions for a new trial and for judgment notwithstanding the verdict, the district appealed to the 8th Court of Appeals in El Paso, which in 2002 held the evidence legally sufficient to support the judgment. “After carefully reviewing the entire record, we find there is some probative evidence to support the finding that [the bus mechanics'] gender was a motivating factor in the district’s termination and that the finding is not against the great weight and preponderance of the evidence,” 8th Court Chief Justice Richard Barajas wrote for the court in Monarrez. Justices Ann McClure and David Chew joined Barajas in the decision. But the Supreme Court agreed with the district’s argument that there is no evidence the female employees, who were not disciplined for time card violations, were similarly situated to the male employees who were terminated. According to the Supreme Court’s opinion, the Texas Legislature enacted Labor Code 21.001(1) to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” Turning to federal case law dating back to the U.S. Supreme Court’s 1973 decision in McDonnell Douglas Corp. v. Green for guidance, the state Supreme Court held that Monarrez and Rodriguez were not similarly situated to the female employees in the employment discrimination context. As noted in the opinion: “There is no evidence that the time card violations by females included a conspiracy to conceal another employee’s absence from work. Thus, even though the female employees worked in the same department and were subject to the same time clock rules, there is no evidence that their respective misconduct was of ‘comparable seriousness.’” Dallas solo John Wall, who represents plaintiffs in employment discrimination cases but is not involved in Monarrez, says the state Supreme Court found as a matter of fact that the infractions of the female employees were less severe than those of the male employees, even though the record suggests there was evidence to the contrary. Monarrez and Rodriguez alleged in their brief to the Supreme Court that at least some female employees of the district’s transportation department punched time cards for other female employees, and that one female employee frequently “punched in” her daughter when the daughter was not present. “If somebody else punches your time card, that’s a conspiracy,” Wall says. While Monarrez and Rodriguez claimed in their brief that a female employee clocked in another female employee who wasn’t at work, Wallace maintains, “They were not able to bring anyone forward to say this had happened.” Wenke says that Rodriguez’s wife, who also works in the school district’s transportation department, testified at trial about the female employee who clocked in her pregnant daughter, also an employee, when the daughter was not present. Notes Wenke, “The big difference is that the plaintiffs were the only ones who voluntarily brought the indiscretion to the attention of their supervisors.”

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