Take the Fifth

Designated for publication

• Hebrew v. Texas Department of Criminal Justice, 22-20517, appeal from S.D. Tex.
  • Oldham, J. (Dennis, Engelhardt, Oldham), Title VII, employment discrimination
  • Reversing summary judgment dismissal of employee’s discrimination claims after he was fired for his refusal to cut his hair and beard in violation of his religious vow, in light of Groff v. DeJoy, 143 S. Ct. 2279 (2023).
  • The Court held that the TDCJ could not meet the standard of showing that accommodating the plaintiff’s religious observance of long hair and beard would impose an undue hardship on the TDCJ’s operations. In Groff, the Supreme Court had rejected the standard that an undue hardship was met by any burden that was more than de minimis. Instead, “[t]he Court held that a showing of ‘undue hardship’ requires something far greater: an employer must prove that the burden of accommodation ‘is substantial in the overall context of an employer’s business.’ … This is a heavy burden and requires something far greater than de minimis—something more akin to ‘substantial additional costs or substantial expenditures.'”

• Winkle v. Rogers, 22-30638, appeal from W.D. La.
  • Southwick, J. (Davis, Southwick, Oldham), personal tort, spoliation, expert witness
  • Reversing in part summary judgment in favor of defendant, affirming in part, and remanding, regarding claims arising from injury to plaintiff when truck tire tread separated from tire core and hit plaintiff’s vehicle.
  • The Court held that the district court erred in holding there was no genuine issue of fact that the defendant trucking company’s destruction of the failed tire remnants was not in bad faith. “The need for the material from the tire to be preserved was critical. There was evidence that Prime had its own recapping operation on or near the Salt Lake Facility, and those tires were used on Prime’s tractor-trailers. The failure of a company in the business both of recapping tires and then using them on its vehicles to have policies in place to preserve evidence such as this, and its inability to produce any actual evidence of what happened to the tire, creates a fact question on bad faith.”
  • In light of its holding as to the spoliation claim, the Court held that there may be a different evidentiary dynamic on remand, and therefore also reversed the district court’s grant of summary judgment to the defendants on the merits of the underlying negligence and products liability claims.
  • The Court held that the district court did not abuse its discretion in finding that plaintiff’s expert witness was not qualified to provide expert opinion testimony on defects in the tire recapping process.

• Jackson v. Wright, 22-40059, appeal from E.D. Tex.
  • Oldham, J. (Elrod, Ho, Oldham), First Amendment, sovereign immunity, standing
  • Affirming denial of motion to dismiss First Amendment retaliation claim against university by professor after university announced it would search for a new editor for a journal published by the university over which the professor had wielded control, allegedly in response to an article published by the professor that had been condemned by graduate students and other faculty as faulty in its methodology and inhered with racist tropes and ideologies.
  • The Court held that the plaintiff’s claims “turn[ed] the key on the Ex parte Young door” to fit past the sovereign immunity bar. It held he had sued the right defendants and that he had properly only sought prospective relief.
  • The Court also held that the professor had standing to bring his First Amendment claim. The Court held that he had articulated an injury to a legally protected interest. “[H]e has been and continues to be banned by UNT from any continuing involvement with the Journal. Jackson ‘can no longer publish scholarship in the Journal that he considers a trademark of his life’s work, and if he took action to publish the work that is currently ‘on ice,’ he would face negative consequences imposed by UNT officials.'”

Unpublished

• Hernandez v. Garland, 22-60110, petition for review of BIA order
  • per curiam (King, Jones, Duncan), immigration
  • Granting petition for panel rehearing in light of Santos-Zacaria v. Garland, 143 S. Ct. 1103 (2023), and substituting new opinion that (as the prior panel opinion had) denying petition to review BIA order denying motion to reconsider earlier decision.

• Davis v. Lumpkin, 23-10693, appeal from N.D. Tex.
  • per curiam (Stewart, Clement, Engelhardt), habeas corpus
  • Dismissing for lack of appellate jurisdiction appeal from district court’s denial of motion to stay petitioner’s § 2254 petition until he could return to state court to exhaust various claims.