Take the Fifth

Designated for publication

• Dean v. Akal Security, Inc., 20-30306, appeal from W.D. La.
  • Southwick, J. (Higginbotham, Southwick, Engelhardt), Fair Labor Standards Act
  • Affirming summary judgment in favor of defendant on FLSA claims arising from meal-period policy that automatically deducted one hour of pay from employees of security company whose employees accompanied deportees being flown to another country, on return flights with no deportees and that exceeded 90 minutes. The Aviation Security Officers (“ASOs”) were nonexempt, hourly employees under the FLSA. They appeal the dismissal of their FLSA claim that the mandatory one-hour meal period violated overtime pay requirements.
  • At issue was the application of the regulation that “Bona fide meal periods are not worktime” in 29 CFR § 785.19(a). “Compensation for all hours worked is the rule, but the regulations provide that an unpaid meal break can occur during the workday when certain conditions are met.” The Court held that the Fifth Circuit has adopted the “predominant-benefit” test. “When we apply that test, we consider whether the employee or the employer received the predominant benefit from the meal break. Factors relevant for this consideration include: [1] whether the employees are subject to real limitations on their personal freedom which inure to the benefit of the employer; [2] whether restrictions are placed on the employee’s activities during those times, such as whether or not the employee may leave the work site if he chooses; [3] whether the employee remains responsible for substantial work-related duties; and [4] how frequently the time is actually interrupted by work-related duties.” While these are fact-intensive factors, the Court held that there is nothing in the test that inherently precludes summary judgment.
  • Applying the test, the Court held that “the ASOs were the one who predominantly benefited from the one-hour meal periods.”

• Thompson v. Microsoft Corp., 20-50218, appeal from W.D. Tex.
  • Higginbotham, J. (Higginbotham, Southwick, Engelhardt), Americans with Disabilities Act
  • Affirming summary judgment in favor of employer-defendant on claims under the ADA for failure to accommodate, discrimination, and creation of a hostile work environment. The plaintiff’s claims arise from his request for accommodations for his autism spectrum symptoms and Microsoft’s reassignment of him from his executive position in Austin to lower-paying positions at other locations.
  • The Court held that the accommodations that Microsoft declined to provide (individuals to assist the employee with translating verbal information into written materials, recording meeting notes, and performing administrative tasks) were unreasonable accommodations under the ADA because they would exempt him from performing essential job functions. “Microsoft also determined that these requested accommodations interfered with the EA’s essential functions involved in communicating with the client and managing multiple complex projects in a fast-paced environment. Moreover, Microsoft noted that Thompson’s requests would require hiring someone to work with Thompson on a full-time basis, indicating that EAs spend a considerable amount of time on functions Thompson was seeking to have someone else do. As such, these requests excused him from performing essential functions. It follows that Thompson is not a qualified person under the ADA.”
  • The Court also held that Microsoft engaged in formulation of accommodations in good faith. “Microsoft worked with Thompson over several months, explaining accommodations it deemed unreasonable, asking Thompson to respond with alternate accommodations, and offering to consult directly with Thompson’s doctors. Further, Microsoft’s placement of Thompson in the job reassignment program is precisely one of the possible accommodations the ADA contemplates, so by attempting to reassign Thompson, Microsoft was continuing the interactive process rather than terminating it. Because Microsoft had the ‘ultimate discretion to choose between effective accommodations,’ it was justified in placing Thompson on job reassignment over his objections.”
  • The Court held that summary judgment on plaintiff’s discrimination claim was appropriate, as he was not a qualified person under the ADA, and also failed to show that he was subject to adverse employment actions.
  • The Court also held that plaintiff was not subject to “harassment pervasive or severe enough to alter the conditions of his employment.”

Unpublished

• Spivey v. Wilson, 19-40885, appeal from E.D. Tex.
  • per curiam (Davis, Stewart, Dennis), prisoner suit
  • Affirming summary judgment dismissal of prisoner’s § 1983 claim against prisoner officials arising from assault that occurred while he was being transferred to another unit.

• U.S. v. Vasquez, 19-50993, appeal from W.D. Tex.
  • per curiam (Davis, Elrod, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Whitman, 20-10624, appeal from N.D. Tex.
  • per curiam (King, Smith, Haynes), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Owens, 20-11108, appeal from N.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal
  • Granting summary affirmance of guilty plea conviction of being a felon in possession of a firearm.

• U.S. v. Nguyen, 20-11122, appeal from N.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, supervised release
  • Granting summary affirmance of conviction of violation of supervised release conditions.

• U.S. v. McElroy, 20-50225, appeal from W.D. Tex.
  • per curiam (Owen, Jolly, Dennis), criminal, supervised release, sufficiency of evidence
  • Affirming defendant’s conviction of revocation of supervised release, including admission of positive urinalysis report and upholding sufficiency of evidence to support finding of possession of cocaine in violation of supervised condition terms.

• U.S. v. Cuellar-Arreola, 20-51034, appeal from W.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
  • Granting summary affirmance of 24-month sentence for illegal reentry into the U.S. following deportation.

• Rubio-De Machuca v. Garland, 20-60282, petition for review of BIA order
  • per curiam (King, Smith, Wilson), immigration
  • Dismissing in part and denying in part El Salvadoran citizens’ petition for review of BIA order dismissing their appeal of the denial by the immigration judge (“IJ”) of their application for asylum, withholding of removal, and relief under the Convention Against Torture.

• Wu v. Garland, 20-60553, petition for review of BIA order
  • per curiam (Wiener, Southwick, Duncan), immigration
  • Denying Chinese citizen’s petition for review of BIA order dismissing his appeal of an Immigration Judge’s (“IJ”) denial of asylum.

• U.S. v. Jimison, 20-60555, appeal from S.D. Miss.
  • per curiam (Jolly, Elrod, Graves), criminal, compassionate release
  • Affirming district court’s denial of motion for compassionate release.

• U.S. v. Haj, 21-10036, appeal from N.D. Tex.
  • per curiam (Clement, Elrod, Haynes), criminal, compassionate release
  • Dismissing as frivolous appeal from denial of motion for compassionate release.