Texas Custody Schedule Changed Due to School Absences

Originally published by Robert Epstein.

iStock-1252096710A parent’s behavior may affect their rights to access and possession of their child in a Texas custody case.  In a recent case, the trial court’s order provided that the schedule would change if the child had a certain number of unexcused absences or instances of tardiness while in the mother’s care.

According to the appeals court’s opinion, the trial court entered a custom possession order (CPO) as part of a modification order at the end of January 2020.  Pursuant to the CPO, the father had the right to possession of the child from Wednesday morning to Friday morning each week and from Friday morning to Monday morning every other weekend, and the parents alternated holidays and school breaks.  The CPO also provided that the mother’s possession schedule would change to the Standard Possession Schedule if the child had a total of any combination of five unexcused absences and “tardies” from school, as determined by the school, while in the mother’s possession.

Father Moves to Impose Standard Possession Order

The father moved to confirm and clarify the order and requested an injunction in April 2020.  He alleged the child had been tardy five days and absent two days during the fall semester of 2019.  He asked the court to confirm and clarify that the standard possession schedule was in effect and to grant an injunction.


He testified the child’s official school record showed the five tardy days and two unexcused absences and that the mother was responsible for getting the child to school on those days.  He presented a business records affidavit of the school’s records custodian dated January 30 and the child’s attendance records.  The records showed the child had four unexcused absences and five tardy days, including the specific days identified by the father.  He also testified that his attorney had attempted to resolve the issue without going to court.

The mother presented a business records affidavit dated June 16.  The attached records did not show the child was tardy on three of the dates on which he was shown tardy in the records introduced by the father.

The child’s kindergarten teacher testified she would rely on the records dated June 16.  She testified children are sometimes sent to the office when they arrive late, and that she and the office personnel can both input tardies.  She also testified that the system she uses and the system used by the office are different and that the two sets of records were from two different systems.

The mother testified she did not know if she was responsible for getting the child to school on three of the dates, which were on the days the parents alternated possession.

The trial court ordered the parties to use the standard possession and access schedule and awarded the father attorney fees.

Mother Appeals Trial Court’s Confirmation of Standard Possession Order

The mother appealed, arguing the trial court abused its discretion because it did not have sufficient evidence to support the order.  She argued the kindergarten teacher was an expert, and the trial court should have relied on the June records because the teacher testified she would rely on them and because they were more recent.

The appeals court noted the trial court had recognized the teacher as an expert in teaching, but not in education administration.  She had testified she was unfamiliar with generation and interpretation of school attendance records.  Although she acknowledged the discrepancy in the records, she could not explain it.  The appeals court further noted the trial court could have found she would rely on the June records because she was familiar with that report and not the one the father submitted.  The trial court had the discretion to discount her testimony.

Appellate Court Finds that Trial Court Properly Considered Conflicting Evidence

The appeals court noted that the trial court could also have found the January attendance records were more reliable than the June attendance records.  The June records contained a summary of absences and tardiness on a single page, which the appeals court noted was blurry and hard to read.  The January records included a “detailed accounting of the daily reports of attendance, absences, and tardies. . .”

Additionally, the court could have believed the father’s testimony that the mother was responsible for getting the child to school on the identified tardy and absent days.  The mother had admitted she was responsible on some of the days and did not remember who was responsible on the other days.

The appeals court found the trial court did not abuse its discretion in deciding to apply the standard schedule because there was substantial and probative evidence supporting it.

The appeals court found there was insufficient evidence supporting the award of attorney fees and remanded the case to the trial court on that issue, but otherwise affirmed the trial court’s order.

Walk into Court Prepared: Call McClure Law Group Today

A significant issue in this case is the conflicting evidence presented by the parties. Although the mother presented a witness to testify about the records, that witness was unable to explain the discrepancy.  If you are experiencing a custody dispute, a skilled Texas custody attorney can work with you to identify the evidence to best support your case.  Please contact McClure Law Group at 214.692.8200 to set up a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.


What goes into an award of spousal support here in Texas?

Texas appeals court asked to reconsider same-sex divorce case

Originally published by On behalf of Laura Dale.

The battle for equal rights for same-sex couples didn’t end when the Supreme Court quashed the Defense of Marriage Act in 2015. New sorts of battles — many of them related to the way that same-sex couples were treated in the past — were just beginning.

One of those battles is determining what exactly makes a marriage when your marriage isn’t recognized under the laws of your state. Same-sex couples who were in long-term, committed relationships that fall technically short of the definition of marriage only because the parties were of the same gender find themselves facing this question often when such a marriage comes to an end.

Why does the date of a same-sex marriage matter if the couple is splitting? It’s simply because the start and end of a marriage is both a social and a financial contract. The date of a marriage often informs issues like how much spousal support a dependent spouse is due or what assets are really marital assets and subject to division in a divorce.

Now, the Texas Fifth District Court of Appeals is being asked to grant a new divorce trial to a man who split from his partner of 15 years just prior to the Obergefell v. Hodges decision that made same-sex marriage legal throughout the country. A lower court said that no marriage existed because there was no legal same-sex marriage in Texas.

The plaintiff and his attorneys argue that the couple did everything short of legally marry. They say that since they were prevented from doing so by a law that is now considered unconstitutional, that shouldn’t prevent the court from treating their relationship as a marriage.

Cases like this will, unfortunately, continue to come up for a long time into the future. That’s why same-sex couples seeking a divorce are wise to look for attorneys who understand their unique concerns.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.


Can a Texas family court reduce an above guidelines child support obligation in an out-of-state Order?

Can a Texas family court reduce an above guidelines child support obligation in an out-of-state Order?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

One of the cool parts of being a family law attorney with the Law Office of Bryan Fagan is that there is never a dull moment. There are always unique people with unique circumstances who walk through our door with questions about their lives and their families.

Like Texas, many other states lay out a specific percentage of a non-custodial parent’s income to pay in child support to the custodial parent. Texas has it that for one child, a non-custodial parent should pay 20% of their net monthly resources towards the support of that child. For two children, 25% would go towards child support. The percentages increase by increments of 5% until you reach five or more kids topping out at 40%. In this way, courts have a straightforward mechanism to be put into action for determining child support in most cases. It has become so predictable that the guideline levels of support will be implemented that most attorneys and clients don’t bat an eye when the issue of paying guideline support is raised.

Recently, a potential client presented a scenario where he and his wife were divorced in a state other than Texas, and after the divorce the man’s ex-wife and children had moved to Texas. The state that the children and ex-wife had previously lived in was a higher than average cost of living state and our potential client was ordered to pay child support that is above and beyond the “guideline” levels of support for that state.

Our potential client was thus left with a child support order that obligated him to pay an amount of child support that was above and beyond what is proscribed in the family code of his native state. When a judge decides regarding any subject that is related to a child, he or she must do so based on what is in the best interests of that child. This is a standard that most every state utilizes when applying the law towards the specific circumstances of a child and their family.

Based on the needs of that child, their current circumstances, the ability of their parents to provide the necessities of life and any medical/social/educational needs of that child, an amount of child support will be ordered. Whether the parties to the divorce agreed in mediation to that level of child support or a judge ordered that the amount be paid after a trial, the fact is that the current child support order for this man obligates him to pay an above guidelines level of support.

Where does the Law Office of Bryan Fagan come into play?

Here is where our office becomes relevant to the discussion. This gentleman contacted us about representing him in a child support modification case. His thoughts on the matter center around the reduced level of expenses that his ex-wife is responsible for now that his children live in the Great State of Texas. Having moved from another state whose cost of living is much higher than Texas, our potential client wanted to see what a judge would consider as far as reducing the above guidelines level of child support. Is there a basis in prior court cases to argue that an out of state child support order can be modified to see a reduction in the child support obligation based on circumstances like this?

Today’s blog post from the Law Office of Bryan Fagan will seek to answer that question. As I see it, there are two parts to this discussion that we have to tackle. The first is whether or not a Texas Court has the jurisdiction to modify an out of state child support order. The second is what basis in the law would a family court judge have to reduce the above guidelines level of child support when there has been a change in the cost of living associated with raising children.

When does a Texas court gain the jurisdiction to modify an out of state child support order?

There are a couple of ways that a child support order that comes from a court outside of Texas could be modified, potentially, by a Texas family court. The Texas Family Code states in section 159.613 that if both the child support obligor (parent who pays child support) and the oblige (parent who receives child support payments) and the child all reside in Texas then our state has attained jurisdiction over the case and may modify and/or enforce the out of state order.

Likewise, when only one party (parent) live in Texas, then a modification is possible even if both parents do not reside in Texas. This occurs when the parent bringing the modification cases (in our above scenario, the father) is not a resident of Texas and the responding party (the mother in our example) lives in Texas and is subject to personal jurisdiction in Texas. Here, too, a Texas family court would have jurisdiction over the case.

What have Texas courts stated about subject matter like this?

So now we at least have a basic understanding of how a Texas court gains the ability to make rulings regarding an order issued by an out of state court. The jurisdiction to do so is critically important. You may be in a situation like our potential client- having seen a change in circumstances that have materially affected your family since the issuing of that order. Thus, some portion of your prior order is no longer suitable for you or your children. However, if you cannot successfully argue to a Texas court that jurisdiction is proper in Texas you will not be able to make an argument about any of the facts and circumstances that justify a modification.

A fairly recent Texas state appellate court decision would further assist us in our discussion. In re Dennis J. Martinez, 450 S.W.3d 157 (2014) contains within it a good discussion of the relevant law regarding how and when an out of state court can lose jurisdiction over a case and its parties.

This court notes that in section 159.205 of the Texas Family Code, our state law provides only two ways in which a court may lose jurisdiction over a case and its parties about a family law matter. First, the obligor, the oblige, and the child would have to all move out of the state that issued the order (as we discussed previously). Another and less likely scenario would be that all individuals file written consents in Texas allowing a Texas court to assume jurisdiction and modify the other state’s order.

As noted above, the circumstances under which a court may modify a support decree from another state are found in section 159.611 of the Family Code. SeeTEX. FAM.CODE ANN. § 159.611. A modification is permitted by the non-rendering state under the circumstances outlined in section 159.611 because under such circumstances the rendering state no longer has a sufficient interest in the modification of its order.

If you are facing a situation like a gentleman who contacted us about potentially representing him in a child support modification case here in Texas, you need to consider whether or not a Texas court will even be able to hear your arguments and potentially grant you whatever relief you are requesting. Keep in mind that if you cannot clear this jurisdictional hurdle you won’t even get the opportunity to submit any of your arguments to the court as to why your child support order needs to be modified.

Can a Texas court grant a reduction in the child support obligation of a parent under an out of state order?

Here is the question that our potential client is interested in knowing the answer to. He wanted to find out what facts and circumstances would need to be in play that could lead to a court in Texas reducing his above guidelines level of child support that he is currently obligated to pay.

A modification of a child support order is warranted when the petitioning party (the person asking for the modification) can provide evidence showing a material and substantial change in the circumstances of one of the parties to the order or a child of the order. As the court in Tucker v. Tucker, 908 S.W.2d 530 (1995), notes, there is an inherent fact-finding nature of child support issues and the cases that are made up of those issues.

The high court in Texas was stating what every family law attorney worth his salt could tell you: that family law cases are extremely fact-specific. If you would like to modify a child support order then you will need to present facts clearly and concisely to the court. This means that your initial petition to the court and in your oral arguments inside of a modification hearing need to display the requisite level of material and substantial change needed to grant the modification.

Cost in living expenses has been a factor alleged by prior parties seeking child support modifications

Part of the analysis that your court will look at when considering whether or not to grant a child support modification is the expenses incurred by the custodial parent who is raising the children on a day to day basis. Remember- our potential client would like to make an argument that because his ex-wife and kids now live in Texas, with its lower cost of living than their native state, is no longer in need of a child support payment that is above the guidelines of his home state.

Costs associated with special education for your child, school tuition and things of this nature are relevant to our discussion. A court would look to the expenses of your ex-spouse to determine whether there is sufficient evidence in the record to compare the expenses of her and your children at the time that the original child support order was issued and what the expenses are now. This means that you will need to do some digging to produce this kind of evidence, especially if the child support order is from a decade ago.

In the case, In the Interest of C.C.J. and C.M.J, Minor Children, 244 S.W.3d 911 (2008), the court went over a good analysis when that has to be shown to a court to justify a modification:

To determine whether there has been a material and substantial change in circumstances, the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought. London v. London, 192 S.W.3d at 15. 

In that case, the parent who was attempting to modify the prior court order was the mother. She was arguing for an increase in the level of child support based on a material and substantial change in the circumstances of her and her children. Her expenses, she attempted to argue, had increased dramatically in recent years, while the income of her ex-husband had increased. The evidence she presented, the court determined was insufficient to justify an increase in child support. Here is what the appellate court determined:

Here, without both historical and current evidence of the financial circumstances of Mother and the children, the trial court had nothing to compare. See id. Because there is no evidence in the record of the financial circumstances of Mother or the children at the time of the entry of the divorce decree, we conclude the trial court’s finding of “a substantial and material change of circumstances since the rendition of the prior order” is not supported by the record. Accordingly, we conclude the trial court abused its discretion in increasing Father’s monthly child support obligation.

What does the Texas Family Code have to say about a decrease in the needs of a child about child support?

The Texas Family Code states that an increase in the needs, the standard of living, or lifestyle of the oblige since the rendition of the existing order does not warrant an increase in the obligor’s child support obligation. Texas Family Code section 156.405. I would also argue that the opposite could also be potentially held by a Texas court. Specifically that an argument that a decrease in the needs, the standard of living or lifestyle of the custodial parent is not necessarily a reason in and of itself to modify a child support obligation.

A Texas case that is important for our purposes is In the Interest of J.A.H. and M.K.H, Children, 311 S.W.3d 536 (2009). Here, as in the prior case we discussed, a mother was attempting to argue that an increase in her expenses due to a change in the cost of living after a move justified an increase in the child support obligation of her ex-husband. What the court found, in this case, was that all of the evidence submitted by the mother tended to show that there had been a change in her circumstances rather than a change in a substantial change in the circumstances of her children.

The court argued that simply showing a change in lifestyle and not a material or substantial change in circumstances of the children does not in and of itself justify a modification of the child support order. If you attempt to argue that because your ex-spouse’s mortgage payment has decreased or that their utility bills are lower and that justifies a decrease in the child support obligation, then this case should give you pause.

How are the needs of your child taken into account by a court?

Specifically, to justify an award of child support above the guidelines outlined in the Texas Family Code, your ex-spouse must show that there would be needs of your child that would be unmet but for the higher than guidelines level of support. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex. 1993). Note that the needs of your child are not the bare necessities of life, either. Each court will decide as to what the needs of your child are. Like we mentioned earlier in this blog post, the facts of your case will guide the judge in large part.

The bottom line: if you wish to modify a child support order come with plenty of evidence

Whether yours is an out of state child support order or an order that originates in Texas, you need to come to court with plenty of evidence that justifies the modification request A family court judge has the authority to reduce a level of child support that is currently set above the guidelines of your home state, but to earn that decrease in the support obligation you have to submit sufficient proof showing a change in the conditions of your spouse, your children or you. A material and substantial change regarding the cost of living is a trickier argument to make than one based on a change in your income or an increase (or decrease) in the educational or medical needs of your child.

Please consider contacting the Law Office of Bryan Fagan if you have questions about today’s material. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions in a comfortable and pressure free environment.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.


State court rejects child molester’s appeal

State appeals court affirms, again, Solano juvenile murder conviction

FAIRFIELD — The 1st Appellate District of the state Court of Appeals this week affirmed that Latasha Brown does not have the right to a juvenile court transfer hearing under a state law enacted 10 years after the California Supreme Court had already refused to hear a separate appeal of her conviction. Brown had filed a […]


Trump seeks more time to consider appeal in biofuel waiver case

Appeals court upholds ruling Trump cannot block critics on Twitter

NEW YORK — The 2nd Circuit Court of Appeals upheld its decision Monday that President Donald Trump cannot block critics on Twitter, rejecting his long-shot bid to reargue the case. Trump had asked for a nine-judge panel to reconsider the ruling. A majority rejected that bid. Judge Barrington Parker, writing for the majority, said Trump’s […]


Once More, With Feeling: Business Entities Must be Represented in Court by a Licensed Attorney

Once More, With Feeling: Business Entities Must be Represented in Court by a Licensed Attorney

Originally published by Carrington Coleman.

R2Go Transport LLC a/k/a Ready 2 Go Transport LLC v. Xellex Corp.
Dallas Court of Appeals, No. 05-19-01246-CV (March 18, 2020)
Chief Justice Burns (Opinion, linked here), and Justices Molberg and Nowell
Ken Carroll

The Dallas Court of Appeals reminded us today that business entities in the State of Texas cannot appear in court pro se or through non-lawyer employees or members. Generally, except for the performance of ministerial tasks (like posting bond), only a licensed attorney may represent a business entity in a Texas court. The rule originated with respect to corporations in Kunstoplast of America, Inc. v. Formosa Plastics Corp., U.S.A., 937 S.W.2d 455 (Tex. 1996). It now extends to virtually all “fictional legal [business] entities,” including partnerships and limited liability companies. See, e.g., Sherman v. Boston, 486 S.W.3d 88, 95-96 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). “Allowing a non-attorney to present a company’s claim would permit the unlicensed practice of law.” Id. (trial evidence presented for LLC by non-lawyer “had no legal effect” and was “legally insufficient to support a judgment”). The rule applies in all courts, trial and appellate—other than small claims courts, for which there is an express statutory exception. Tex. Gov’t Code § 28.003(e) (“A corporation need not be represented by an attorney in small claims court.”).

Here, R2Go’s counsel was allowed to withdraw from the appeal. When the LLC did not obtain replacement counsel, despite having been warned and ordered to do so, the Dallas Court dismissed its appeal, because it could not proceed with its appeal without being represented by a licensed attorney.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.


In A Venue Dispute, Court Held That A Personal Injury Claim Against An Estate Representative Could Be Filed In The County Where The Estate Was Pending

Originally published by David Fowler Johnson.

In UPS Ground Freight, Inc. v. Trotter, parties filed claims against an estate representative based on a car accident in the county where the estate was being administered. No. 12-19-00135-CV, 2020 Tex. App. LEXIS 1127 (Tex. App.—Tyler February 10, 2020, no pet. history). A defendant, employer of the decedent, moved to transfer venue to the county where the accident happened. The trial court denied the motion to transfer, and the defendant filed an appeal.

The independent administrator alleged that venue was proper pursuant to Texas Civil Practice and Remedies Code Section 15.031 because the estate was being administered in that county. The defendant argued that Section 15.031 did not apply because the suit was not one against the administrator “as such, to establish a money demand” against the estate. They contended that the statute limits its applicability to suits involving a claim for a fixed, liquidated sum, and the plaintiffs sought an undetermined amount of personal injury damages.

The court of appeals noted that the term “money demand” was not defined by the statute. It held: “Venue statutes dictating permissible counties in which to sue an administrator of an estate must be read in conjunction with Texas Estates Code provisions regarding procedures for pursuing claims against an estate.” Id. The court noted that the Texas Estates Code defines “claims” as liabilities of a decedent that survive the decedent’s death, regardless of whether the liabilities arise in contract or tort or otherwise. Id. (citing Tex. Est. Code Ann. § 22.005(1)).

The court then discussed the claims process for estate administration. In light of this framework, the court looked to the Texas Civil Practice And Remedies Code to determine the proper county in which the plaintiffs could file suit against the estate administrator for their alleged personal injury damages. The court held:

Pursuant to Section 15.031, a suit against an estate administrator, in her capacity as administrator, to establish a money demand against the estate which she represents, may be brought in the county in which the estate is being administered. A suit for personal injury damages caused by the alleged negligence of the decedent is a suit for unliquidated damages. A suit for personal injury damages against the estate administrator is a “suit to establish a money demand” because the result is that the unliquidated demand is reduced by judgment to a liquidated amount. Therefore, Appellees were entitled to file their personal injury lawsuit against McElduff, as estate administrator, in Rusk County, where Clark’s estate is being administered to establish a money demand.

Id. (internal citations omitted).

The court noted that venue was not exclusive, and that the plaintiffs could have filed suit in the county where the accident occurred. The court also noted: “Because Appellees’ claims against the administrator and Appellants arise out of the same transaction, occurrence, or series of transactions or occurrences, venue in Rusk County is also established as to Appellants.” Id. The court affirmed the trial court’s order denying the motion to transfer venue.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.


Texas Supreme Court coronavirus update

Originally published by Staff Report.

Editor’s Note: The Texas Supreme Court issued the following advisory.

Chief Justice Nathan L. Hecht ordered the Supreme Court Building indefinitely closed to the public Wednesday in expanding efforts to thwart spread of COVID-19. The State Preservation Board also closed the adjacent Capitol complex.

Under an order issued late Tuesday the Texas Supreme Court emphasized that court-ordered child-custody schedules following school calendars shall follow the original school schedule as published even as so many schools close to constrain the developing coronavirus pandemic.

“Possession and access shall not be affected by the school’s closure that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic,” the order clarified. But parties were not barred by the order from altering a possession schedule by agreement if allowed by the foundational court order, or courts from modifying their orders.

The latest order follows one Monday that postponed four cases set for oral argument March 25 in Austin. The Court last week canceled oral argument set for April 9 in El Paso.

The Supreme Court has issued two other orders and joined with the Texas Court of Criminal Appeals in one to address potential judicial ramifications from the coronavirus threat in Texas.

In efforts to protect court participants and court staff because of coronavirus concerns, the Supreme Court and Court of Criminal Appeals issued a joint emergency order that clears the way for video- and teleconference proceedings and to postpone deadlines affecting cases.

The order follows Gov. Greg Abbott’s statewide disaster declaration and runs no later than 30 days after the governor’s disaster order ends.

The joint order follows two others by Chief Justice Nathan L. Hecht assigning district and court of appeals judges to hear enforcement cases challenging involuntary quarantines. Both were issued under emergency powers in the Texas Health and Safety Code for controlling infectious disease.

Under the order, state courts may modify or suspend any and all deadlines and procedures, “whether prescribed by statute, rule, or order,” and may extend limitations statutes in any civil case. Court proceedings may be conducted outside a court’s usual location in the venue county but must provide reasonable notice and access to the participants and the public. Any such modifications and limitations may be discretionary and without a participant’s consent but are required when “risk to court staff, parties, attorneys, jurors and the public” exists.

In court proceedings, sworn statements made out of court or sworn testimony given remotely, such as by teleconferencing, videoconferencing or other means, may be considered as evidence. The order allows anyone involved in any hearing, deposition, or other proceeding of any kind – “including but not limited to a party, attorney, witness, or court reporter, but not including a juror” – to participate remotely.

The order notes that its provisions are subject only to constitutional limitations.

The order also:

  • Requires every participant in a proceeding to alert the court if the participant has, or knows of another participant who has, COVID-19 or flu-like symptoms, or a fever, cough or sneezing and that courts take any other reasonable action to avoid exposing court proceedings to the threat of COVID-19.
  • Take any other reasonable action to avoid exposing court proceedings to the threat of COVID-19.

On March 6 the Supreme Court issued a first order assigning 31 district judges to hear cases involving involuntary quarantines outside their judicial administrative regions and followed that March 13 by assigning 21 Texas appeals court judges to hear appeals in any court-of-appeals district from involuntary quarantine cases.

No challenges to ordered quarantines had been reported by March 16.

The joint emergency order runs until May 8, unless extended by the chief justice. Both judicial-assignment orders are scheduled to end September 30.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.


What Is Past Is Prologue: The Ninth Circuit Again Rules That Prior Salary Cannot Justify Pay Differences

What Is Past Is Prologue: The Ninth Circuit Again Rules That Prior Salary Cannot Justify Pay Differences

Originally published by Seyfarth Shaw LLP.

By Christine Hendrickson and Nolan R.Theurer

Seyfarth Synopsis: The Ninth Circuit, in an en banc decision following remand from the Supreme Court, held that employers cannot justify pay disparities under the federal Equal Pay Act by showing that those disparities are based on employees’ past earnings. We hope you will join Seyfarth’s Pay Equity Group for an Equal Pay Day 2020 webinar on March 31, 2020, to discuss this case and more about the current state of pay equity law. You can register for the webinar here.

On Thursday, February 27, 2020, the Ninth Circuit, sitting en banc, issued a decision in Rizo v. Yovino, holding the prior salary cannot be used as a “factor other than sex” to justify pay differences under the federal Equal Pay Act. The ruling tracks the earlier Ninth Circuit opinion written by late U.S. Circuit Judge Stephen Reinhardt, which was discarded by the U.S. Supreme Court because Judge Reinhardt died before the decision was published. With the February 27th ruling, the Ninth Circuit joined the Tenth and Eleventh circuits in holding that the Equal Pay Act precludes employers from relying solely on prior salary to justify pay differences. This is in contrast to decisions in the Seventh and Eighth Circuits, which held that such reliance does not by itself violate the Equal Pay Act.

The Facts Underlying The Ninth Circuit Case

The original Ninth Circuit case, Rizo v. Yovino, 854 F.3d 1161 (9th Cir. 2017), was brought by Aileen Rizo who worked as a math consultant for the Fresno County public schools. The County classified management-level employees in salary levels that contain progressive pay steps. New math consultants were placed into Level 1, which contained ten salary steps with compensation ranging from $62,133 to $81,461. To determine the starting salary for a new consultant, the County considered the candidates’ most recent prior salary and added 5% to assign the starting salary step within Level 1.

Rizo previously worked as a middle school math teacher in Arizona. Consistent with the County’s practices, Rizo was to receive a 5% increase over her prior salary. However, doing so would have resulted in a starting salary that was lower than the minimum salary level for new math consultants. The County addressed the issue by setting Rizo’s starting salary at the minimum of the Level 1-Step 1 salary range, along with a slight increase to account for her advanced education.

Several years later, Rizo learned that at least one of her male colleague’s starting salary was set at the Level 1-Step 9 salary range and that the other math consultants, all of whom were male, all earned more than she was paid. After raising internal complaints regarding the disparity between her compensation and that of her male counterparts, Rizo filed suit raising allegations under the federal Equal Pay Act, Title VII, and the California Fair Employment and Housing Act.

The Trial Court Decision

The County moved for summary judgment, arguing that although Rizo earned less than her male colleagues, the pay differences were not based on her sex, but were instead based on her prior salary, a legally-permissible “factor other than sex.” The district court disagreed, holding that, under the Equal Pay Act, prior salary alone can never qualify as a factor other than sex. The district court reasoned that basing one’s starting salary exclusively on prior salary carried too great a risk of perpetuating gender-based wage disparities.

The Court of Appeals’ Original Decisions

The Ninth Circuit Court of Appeals initially reversed the District Court, relying on its prior decision in Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982). which held that an employer can maintain a pay differential based on prior salary (or any other gender-neutral factor) if it shows that the factor effectuates some business policy and if the employer uses the factor “reasonably in light of the employer’s stated purpose as well as its other practices.” The Ninth Circuit held similar reasoning applied to Title VII claims as well.

However, the Ninth Circuit then granted en banc review “to clarify the law, including the vitality and effect of Kouba.Rizo v. Yovino, 887 F.3d 453, 459 (2018) (en banc). On April 9, 2018, the Ninth Circuit, sitting en banc, overruled Kouba, holding that prior salary cannot be the sole justification to explain a pay differential between a man and woman under the federal Equal Pay Act. Writing for the majority, Judge Reinhardt wrote that a worker’s salary history can never be a non-sex factor because women have historically earned less than men. He opined that if the law lets employers point to women’s past salaries to justify paying them less, it would “perpetuate that gap ad infinitum.

The Appeal to The U.S. Supreme Court

Defendant Fresno County Superintendent of Schools Jim Yovino appealed the Ninth Circuit’s ruling to the U.S. Supreme Court, arguing that the en banc opinion relied on Judge Reinhardt’s vote, and should be vacated due to Judge Reinhardt’s death eleven days prior to the date the opinion issued. Agreeing with the Appellant and noting that judges are “appointed for life, not for eternity,” the Supreme Court vacated the Ninth Circuit opinion. Yovino v. Rizo, 139 S.Ct. 706 (2019).

The February 27, 2020 Court of Appeals Decision

This Thursday, the en banc Ninth Circuit echoed Judge Reinhardt’s April 2018 opinion, holding that past salary is not a “factor other than sex” and reviving Rizo’s suit under the Equal Pay Act. Writing for the majority, Judge Morgan Christen wrote that “setting wages based on prior pay risks perpetuating the history of sex-based wage discrimination.” Rizo v. Yovino, No. 16-15372, 2020 WL 946053 (9th Cir. 2020).

“The express purpose of the act was to eradicate the practice of paying women less simply because they are women,” Judge Christen wrote for the majority. Id. at *1. “Allowing employers to escape liability by relying on employees’ prior pay would defeat the purpose of the act and perpetuate the very discrimination the EPA aims to eliminate.” Id.

In concurring opinions, two judges said their colleagues should have taken the more moderate approach of some other circuits.

In her concurrence, Judge Margaret McKeown said Fresno Schools’ policy did not justify the disparity between Rizo’s pay and that of her male coworkers, but salary history “may provide a lawful benchmark” for setting pay if considered alongside other factors such as education and training. Judge McKeown’s concurrence was joined by Judges Richard Tallman and Mary Murguia. Id. at 14.

Judge Consuelo Callahan also concurred, joined by Judges Tallman and Carlos Bea. She stated that an employer should be permitted to use past salary as a factor in setting pay, as long as its use “does not reflect, perpetuate, or in any way encourage gender discrimination.” Id. at 19.

Implications For Employers

As a result of Thursday’s ruling, there is a clear Circuit court split regarding the use of prior salary to explain pay disparities. Employers should be aware of the split and approach this area with caution. Following this decision, the Ninth, Tenth and Eleventh Circuits have held that the Equal Pay Act precludes employers from relying solely on prior salary, whereas the Seventh and Eighth Circuits, have ruled that such reliance does not by itself violate the Equal Pay Act. Id. at 19.

Employers should also be aware of numerous salary history bans that prohibit employers from seeking and, in some cases, relying on prior pay in setting starting wages.

Careful evaluation of your policies and practices around the use of prior salary is encouraged. Given the maze of federal, state, and local laws that govern the use of wage history, employers should evaluate the laws that apply to their operations to ensure they are not unwittingly running afoul of these potentially conflicting obligations.

Seyfarth’s Pay Equity Group continues to track these developments closely. We hope you will join us for a webinar on March 31, 2020, Equal Pay Day 2020, to hear more about the current state of pay equity law. You can register for the webinar here.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.


bust of Julius Caesar

ADA and FHA Quick Hits – Great Caesar’s Ghost edition.

Originally published by Richard Hunt.

bust of Julius Caesar“Beware the Ides of March” was what the prophet warned Caesar according to Shakespeare. It didn’t go well for him, but the latest batch of ADA and FHA decisions are something of a mixed bag. Before getting to that news though I want to make sure everyone who wants one has a copy of my white paper on HUD’s new guidance on service and assistance animals. If you are interested just email me. You will be added as a subscriber to this blog and I’ll email a copy of the paper. But now on to the news.

Standing and intent to return – the Strojnik factor

It is elementary that an ADA plaintiff must establish some likelihood of a future injury in order to have standing. Strojnik v. 1530 Main LP, 2020 WL 981031 (N.D. Tex. Feb. 28, 2020) is one of a small number of Texas cases addressing this issue. Judge Brown’s analysis is worth reading because it looks at the 5th Circuit authorities and explains why the “deterrent effect” doctrine is not sufficient to give a plaintiff standing in the absence of any intent to return. The “deterrent effect” doctrine is, in fact, a mis-named and mis-used substitute for intent to return. A plaintiff who never intended to go back cannot have been deterred from going back by some condition at the defendants’ place of business. Sloppy language and slopping thinking in the Nnth Circuit are the origin and support of the ADA litigation industry.

Strojnik suffered a similar fate in Strojnik v. IA Lodging Napa First LLC, 2020 WL 906722, at *3 (N.D. Cal. Feb. 25, 2020) although the Court found his pleadings to be more comprehensively inadequate. The opinion ends on the heartening note that the Court will have more to say about Strojnik’s litigation tactics in an upcoming order on the defendant’s motion to declare Strojnik a vexatious litigant.

ADA Pleading

Strojnik v. 1530 Main LP also adopts a helpful pleading standard for a showing of present injury. Instead of pleading specific ADA violations Strojnik simply attached photographs of allegedly non-compliant features of the hotel to his Complaint. Without an explanation of how each pictured condition affected his disability the Court found the Complaint was inadequate.

Schutza v. Union City Investments LLC, 2020 WL 905605 (S.D. Cal. Feb. 25, 2020) is a must-read opinion for anyone faced with generic ADA pleadings. The complaint, like most of those from serial filers, alleged the existence of access barriers without saying just what was wrong. That was not enough for the Court:

But were the dining tables too high? Were they too low? Where were the paths of travel? How were they inaccessible? Plaintiff leaves everyone guessing. As Plaintiff’s allegations are only “naked assertions devoid of further factual enhancement, and the Court need not accept “legal conclusions” as true, the Court finds Plaintiff’s allegations for this element of an ADA claim insufficient.

The Court grants leave to amend, and the nature of the problems is such that they can be cured by amendment if the problems really exist, but forcing the plaintiff to do the work of identifying ADA barriers to access with some specificity will at least test the legitimacy of the claims.

ADA Title II and sovereign immunity

As a starting note, readers interested in this issue should read William Goren’s recent blog on the 11th Circuit’s decision concerning the State of Florida. Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 874042 (E.D. La. Feb. 21, 2020) looks at the issue in the context of a state funded stadium. The discussion is worth reading, but the plaintiff’s decision to concede sovereign immunity for damage claims makes the holding  somewhat unimportant. For more about this case see the discussion below on the merits of the ADA claims in the same lawsuit.

The cost of default

In California small businesses continue to find that the cost of default in a typical serial plaintiff lawsuit is cheaper than any amount of defense. In Acosta v. Martinez et al, 2020 WL 1026890 (E.D. Cal. Mar. 3, 2020) the defendant was ordered fix ADA violations and pay $4000 in statutory damages plus $1,823 dollars in attorneys’ fees. The usual warning applies of course – if the cost of repair is excessive a defense based on the readily achievable standard doesn’t make sense.

The defendant didn’t do quite so well in Arroyo v. Melendez, 2020 WL 869211 (C.D. Cal. Feb. 21, 2020), but no statutory damages were awarded because the court declined to exercise jurisdiction over Unruh Act claims, so total monetary award was only $3245.75.

The defendant lost even more in Johnson v. Johnson, 2020 WL 901517 (N.D. Cal. Feb. 25, 2020), with an award of $4492 in fees and costs. A default strategy needs to take into account the individual court to guess at what the cost will be.
The same strategy can be even cheaper outside of California. In Hillesheim v. SNA LLC, 2020 WL 1077570 (D. Neb. Mar. 6, 2020) the plaintiff recovered only $2718.40 in attorneys’ fees and costs. If the injunctive relief was inevitable the result was a bargain.

Rutherford v. JJ’s Mkt. and Liquor, 2020 WL 883220 (C.D. Cal. Feb. 24, 2020) reached a similar result, with an award totaling $2591.00 in fees and costs. The Court had previously refused to exercise jurisdiction over Unruh Act claims, so there were no damages.

Halfway moot

You can absolutely moot an ADA claim by shutting down the public accommodation and selling the property on which it operated according to Johnson v. Baird Lands, Inc., 2020 WL 978629 (N.D. Cal. Feb. 28, 2020). That does not, however, eliminate a damage claim under California’s Unruh Act. Johnson recovered $4000 in statutory damages, but nothing more.

All the way moot

I have categorized Harty v. Nyack Motor Hotel Inc., 2020 WL 1140783 (S.D.N.Y. Mar. 9, 2020) as a mootness case because that is the most obvious basis for the court’s holding. The defendant simply took down their allegedly inaccessible website, an act sufficiently dramatic to moot any claim about it. The rest of the opinion catalogues the pro se plaintiff’s other failures, which were many. It is worth reading because some of the failures are common in complaints from more sophisticated plaintiffs.

Pleadings, franchises, and claims based on admitted ignorance.

In Chapman v. CKE Restaurants Holdings, Inc. 2020 WL 1230130 (E.D.N.C. Mar. 12, 2020) the plaintiff managed all the usual standing hurdles only to be tripped up by the fact that ignorance is not a reasonable basis for a lawsuit. The plaintiff sued the purported owner of a large number of franchised restaurants. The court agreed that she had alleged both injury and intent to return, but found that she had not connected the defendant to her injuries because she did not plead the necessary ownership and control. Equally important, her class allegations rested on the existence of a policy that failed to make the restaurants accessible or, in the alternative, the lack of an effective ADA policy. The court was unwilling to accept mutually inconsistent alternatives as a sufficient basis for a lawsuit since the plaintiff was clearly only speculating. The case was dismissed without prejudice and the plaintiff can in theory plead a claim that can withstand a motion to dismiss; whether she will be able in fact to do so remains to be seen.

Underline those hyperlinks if you want your arbitration clause to stick

Theodore v. Uber Techs., Inc., 2020 WL 1027917 (D. Mass. Mar. 3, 2020) is one of several cases concerning Uber’s arbitration agreement with its customers, and deals with the broader issue of “clickwrap” agreements.* It is most interesting because it contains a detailed analysis of much of the relevant law and draws a very specific distinction between hyperlinks that are underlined and those that are merely in a different color. Comparing a 2nd Circuit case in which a clickwrap agreement was found to give sufficient notice with a 1st Circuit case in which it was not the Court concludes that because the relevant hyperlinks were not underlined they were insufficiently conspicuous. I think the lesson is clear – app and website operators need to say to hell with sleek design and make sure it isn’t possible for a user to fail to notice a clickwrap agreement. Aesthetics are nice but it is unlikely a good looking interface drives enough profits to make up for the legal expense of litigating a case instead of arbitrating it.

Group homes, zoning and the Fair Housing Act

Valencia v. City of Springfield, Illinois, 2020 WL 1035229 (C.D. Ill. Mar. 3, 2020) is the latest in a series of decisions in the long-running dispute between two group homes, the Department of Justice and the City of Springfield. This decision is critical because based on its holding many municipal zoning ordinances are intentionally discriminatory on their face. The City’s zoning ordinance distinguished between group homes in which unrelated individuals resided together and “family” residences in which up to five unrelated individuals could live together. Group homes were subject to minimum spacing requirements while “family” homes were not. Thus, a group home with five unrelated residents would be treated differently than a “family” home with the same number of unrelated residents. The Court had no trouble finding the ordinance was discriminatory on its face.

That finding could have an impact on many municipal zoning ordinances because in the last twenty to thirty years municipalities have adopted zoning plans intended to permit group homes for the disabled in residential districts while continuing to regulate such homes. A typical ordinance will do what the City of Springfield ordinance did – define a permitted group home as one providing some service to unrelated individuals, define a “family” as a number of related individuals plus some number of unrelated individuals, and then impose limits on the group home whether or not it has fewer unrelated individuals than a “family.” The Court’s finding that such limits are intentionally discriminatory is a warning to municipalities to review their zoning practices for provisions that were originally intended to comply with the FHA but, because their consequences are discriminatory, in fact violate the FHA.

Stadium line of sight litigation

Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 874046 (E.D. La. Feb. 21, 2020) and the companion opinion Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 874039 (E.D. La. Feb. 21, 2020) are too long to summarize, but there are a couple of key holdings. First, the Court rejects the idea that limitations on an ADA claim based on a failure to make altered areas accessible runs from the first date the plaintiff visits the altered premises. The Court finds that limitations runs from the last visit, not the first. Second, the Court rejects a claim that the plaintiff’s standing is limited to the particular seats he occupies, finding that he faces at least a threat of discrimination from all discriminatory conditions. Beyond this the opinion demonstrates that line of sight litigation is complicated because stadiums are complicated and what can be done is therefore subject to reasonable disagreement. The same is true of comparing lines of sight for wheelchair bound spectators and standing spectators and even deciding which of many entities involved in owning and operating the stadium may be liable. Unless settled these cases seem doomed to go to trial.

And more on alterations

In Lewis v. Phan, 2020 WL 885751 (W.D. Wash. Feb. 24, 2020) the Court ultimately denied a summary judgment on the central claim of discrimination, but the discussion of alteration claims is a reminder that clear thinking is required for businesses planning on a renovation of some kind. The court points out that when a building is “altered” there are two obligations; to make the altered area accessible to the “maximum extent feasible” and, if the altered area is a primary function area, to create an accessible route to it from the building exterior, subject to the limit that the cost not be “disproportionate.” If the altered area includes the route from the building exterior to the interior then it is part of the “maximum extent feasible” standard. If not, it is subject to the “disproportionate” cost standard.  The parties in this lawsuit failed to tell the Court which standard applied, with the result that they were sent away to think further about it.

City sidewalks as services

Hamer v. City of Trinidad, 2020 WL 869818 (D. Colo. Feb. 21, 2020) is a lawsuit that has been around awhile, with a trip to the 10th Circuit and the Supreme Court along the way.** In this latest decision the principal substantive ruling is that sidewalks constitute a “service” of the City that are therefore required to be accessible under the ADA. The Court also takes up limitations again in light of the Tenth Circuit’s holding, but only to conclude that fact issues preclude summary judgment.

Am. Council of Blind of Metro. Chicago v. City of Chicago, 2020 WL 1139243 (N.D. Ill. Mar. 9, 2020) is one of those cases that reaches what seems to be a momentous result without the least discussion. In contrast to Hamer v. City of Trinidad, which included extensive discussions in the District Court and Court of Appeals concerning how and why to apply the ADA’s statute of limitations to city services in the form of sidewalks, American Council of the Blind disposes of the issue with a single sentence: “As noted above, however, plaintiffs are not seeking damages for those (or any other) events, but instead seek to remedy dangerous conditions they claim are ongoing.”  This decision seems likely to provide the tail end of a string cite about continuing violations, but nothing more.

Is an auto repair shop a public accommodation?

Pomponio v. Brand Motors, LLC, 2020 WL 922450 (N.D. Cal. Feb. 26, 2020) is one of those rare cases in which the defendant claims it is not a public accommodation. The Court granted a motion to dismiss based on the lack of fact allegations to support the claim it was a public accommodation, but granted leave to amend. It is frankly hard to imagine an auto repair shop that is not a public accommodation, at least with respect to the area in which customers are dealt with, but it is imaginable that an appointment only shop that never allowed customers on the premises could avoid ADA coverage.

ADA Website lawsuits – long arm jurisdiction

Mercer v. Rampart Hotel Ventures, LLC, 2020 WL 882007 (S.D.N.Y. Feb. 24, 2020) is the District Court’s confirmation of the magistrate’s recommendation I discussed in ADA and FHA Quick Hits – Hearts & Flowers Edition. That discussion covers the same material.

* See my earlier Quick Hits blog, Quick Hits or just search “Uber” above to find all my blogs on ride-sharing issues. For arbitration, see “Browsewrap could tame the ADA website litigation monster.” and other blogs with the word “arbitration.”
** See my earlier blogs, Another ADA case heads to the Supreme Court – City of Trinidad v Hamer, and Eternal liability under ADA Title – It’s what you don’t do that matters, as well as the mention in Quick Hits – He’s making a list and checking it twice, which will provide a link to William Goren’s discussion of the topic.



Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.