About Us  |  Contact Us

Trial ahead for coworker spouses allegedly told that only wife should care for their sick kids

By Brandi O. Brown, J.D.

A jail corporal and a warrant secretary for a county sheriff’s office, who were married, will have the opportunity to present their claims of sex discrimination based on their employer’s alleged instruction that only the wife, the warrant secretary, should take leave to care for their sick children, even though the husband had leave available. A federal district court in Texas denied the employer’s motion for summary judgment on those Title VII and TCHRA claims. The court also concluded that the corporal’s claim for failure to accommodate under the ADA, based on the employer’s requirement that he be 100 percent recovered before he could return from leave for an injured shoulder, could proceed. Otherwise, it granted the employer’s motion (Newman v. Kerry County, September 7, 2021, Pulliam, J.).

Married, with children. According to a married couple employed by the Kerr County Sheriff’s Office, in March 2015 their children were having health issues and both parents were using sick leave to care for them. One of their children has Juvenile Rheumatoid Arthritis and all of their children were having issues with various illnesses. At some point, the husband, who was a corporal at the jail, was told that he and his wife needed to change how they took leave to care for the children. According to the employees, they were told that the husband was prohibited from using sick leave to care for them and that only the wife, the warrant secretary, should use leave.

Wife’s responsibility. When the wife complained to the sheriff about the order, he allegedly told her that it was her responsibility to care for their children when they were sick, that the order was not up for discussion, and that if she complained she would be fired. This continued even after she had exhausted her sick leave, forcing her to use unpaid leave even though her husband had accrued sick leave that would be paid. They alleged that the sheriff’s order cost the family thousands of dollars. Even though he did not request leave every time he needed to, they alleged that the husband requested leave on several dates in 2015, 2016, and 2018 and was denied. When the wife complained to HR about the order, she contends that the sheriff took the written complaint, crumpled it up, and threw it at her.

Husband stopped taking leave. While the employer denied most of these allegations, there was evidence in the form of a memo written later memorializing an administrator’s memory of conversations she had previously had with the corporal and the sheriff, in which she had told the corporal that the two employees “needed to work it out where he was not always the one taking off.” She said she had been concerned about “how much he was asking to take off with his kids” so she also visited the sheriff about it, who told her he was going to visit with both employees about it.

In his deposition, the sheriff also agreed that the records showed that after 2015, and until his resignation in 2018, the corporal did not take “a lot of sick leave to deal with the children.” However, he also denied that he ever had a conversation with either spouse about who needed to take care of their children. Both employees resigned within months of one another in 2018.

They later filed suit, alleging violations of Title VII, the ADA, and the Texas Commission on Human Rights Act. The county moved for summary judgment.

Sex discrimination. Both employees brought claims for discrimination based on their sex. They provided sworn affidavits with their response, which the court found established a prima facie case of sex discrimination. The employer argued that its policy was gender neutral and that it applied to all employees in the same way. It argued that the husband was not denied sick leave and that his wife was not required to take unpaid leave. The employer also contended that the wife “made up” her allegations that the sheriff had said he would fire her if she complained and that he had crumpled up her complaint and threw it at her.

For his part, the sheriff testified that he could recall one time the husband was denied leave, but that was because he was at court and there was no one to cover for him. A sergeant identified two times he was not allowed to take leave, with similar reasons. There was also the administrator’s memo memorializing her conversation with both the corporal and the sheriff.

Based on the evidence, the court concluded that the employer had not met its burden of production to articulate legitimate, non-retaliatory reasons for its actions. Instead, the court concluded, the employer had presented a genuine dispute of material fact regarding whether the sheriff had subjected the employees to a discriminatory policy or “order.” That dispute was material. Intentional discrimination might be established by the evidence of the order, the sheriff’s alleged threat to fire the wife if she complained again, or that he balled up her complaint and threw it at her.

On the flip side, however, proof that the sick leave policy was gender neutral and applied equally might defeat their claims. There was sufficient evidence in the affidavits—which were based on personal knowledge, were not conclusory, and not contradicted by the record—for a reasonable jury to return a verdict in favor of the employees.

Non-accommodation. Additionally, the court determined that the husband could proceed to trial with his claim of non-accommodation. In May 2018 he injured his shoulder and was approved for leave under the FMLA. He testified, by affidavit, that he was told that he had to be 100 percent healed in order to return to work at the end of his leave and that if he was unable to return with no restrictions at the point his leave expired, he would be fired. When it was time for the husband to return, he contended that the sheriff refused to give him a light duty position and instructed him to find a doctor willing to clear him to return to full duty. He alleged that he was forced to resign and that the employer did not offer any reasonable accommodation. The employer contended that he did not ask for one. Because of the conflicting testimony, the court denied the employer’s motion for summary judgment on the husband’s reasonable accommodation claim.

HWE and constructive discharge out. However, the court granted the employer’s motion with regard to the wife’s claim that she experienced a hostile work environment that ultimately led to her constructive discharge. She alleged that part of the hostile work environment was the sheriff’s order. However, she also alleged that, over the six-month period preceding her resignation, her coworkers subjected to her sexually explicit conversations, belittled and yelled at her, called her names, slammed a door on her, tampered with her chair, and removed supplies and files from her desk. The court concluded that the incidents she described did not establish the severity or pervasiveness necessary to support a finding of constructive discharge. Regarding those incidents, the court found that the wife could not establish that the employer failed to take prompt remedial action.

The court also granted the employer’s motion with regard to the employees’ claims of disability discrimination based on the denial of equal use of sick leave because of their child’s known disability, as well as their retaliation claims.