Michael W. Fox

Profile

Mr. Fox has represented employers for more than thirty-five years. He has been Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization since 1980 and is a Fellow in the College of Labor and Employment Lawyers.  He has a Yellow Belt certification from Legal Lean Sigma.  He has been regularly listed in the Best Lawyers in America in Labor and Employment Law, as a Texas Monthly “Super Lawyer” in employment litigation and as one of America’s Leading Lawyers for Business by Chambers USA, where he was characterized by clients as a “great trial lawyer” with a “knack of identifying the points in the case to focus on.” 

Mr. Fox defends employers in employment law litigation including successfully defending the first male on male sexual harassment case tried to a jury in Texas.  He has had jury trials in the four largest cities in Texas as well as other parts of the state including Amarillo, Texarkana and El Paso.

In addition to jury trials, he has represented employers in more than 25 arbitration hearings on non-labor matters including race, sex and national origin discrimination, wage and hour claims, breach of contract and enforcement of covenants not to compete.

Mr. Fox also has extensive experience representing employers in collective actions under the FLSA. In 2008, he was successful in decertifying a class of more than 1,000 opt-ins and then obtaining a favorable jury verdict in the claims of the named plaintiffs.

In November, 2009 Mr. Fox was called as an expert witness to testify before the Senate Judiciary Committee based on his extensive experience with jury trials and arbitration. His written testimony provided a strong defense of arbitration of employment claims as well as support for the Supreme Court's "common sense" limitation of the mixed motive instruction in jury trials under the ADEA.

In July, 2002, Mr. Fox started the first employment law related web log, Jottings By An Employer's Lawyer, now affiliated with law.com Mr. Fox is also the Editor of HR Specialist, Texas Employment Law, a National Institute of Business Management publication and regularly contributes content to BusinessManagementDaily.com.

 

AV Rated Martindale HubbleTop Ranked Chambers USABest Lawyers

Experience

Experience: 

In his more than thirty-five years of practice Michael W. Fox has defended employers in hundreds of lawsuits and administrative claims against allegations ranging from sexual harassment, discrimination or retaliation, to enforcement of non-compete agreements to collective actions under the wage and hour laws.

Representative matters that Mr. Fox has handled include:

  • A collective action involving off the clock claims by over 1,100 opt-ins for a convenience store chain.  Following post-certification discovery, the trial court de-certified the class. A jury trial was held on the original two plaintiffs’ claims and a defense verdict was obtained.
  • Obtaining summary judgment in a sexual harassment, FMLA and retaliation case brought against a hospital and its four top officials by showing that the plaintiff and the hospital’s former human resource director had worked together to create the claims.
  • Obtaining summary judgment in two separate discrimination cases brought by prison wardens and sustaining the summary judgments on appeal to the Fifth Circuit Court of Appeals.
  • Obtained vacation of an arbitrator’s award of vacation pay of approximately $500,000 because the arbitrator exceeded his authority.

While many of the cases Mr. Fox has handled have been resolved by legal rulings or settlement, Mr. Fox has extensive experience as a trial lawyer, serving as an employer advocate in jury trials, arbitration hearings, bench trials and oral arguments before both federal and state courts of appeal.  

His experience in contested proceedings include:

Jury Trials

  • FMLA retaliation. Jury verdict for employer, no retaliation. Bohn v. La Quinta, E.D. of Louisiana, Magistrate Judge Joseph Wilkinson.
  • Age discrimination, retaliation and intentional infliction of emotional distress. Jury verdict for plaintiff on retaliation and intentional infliction of emotional distress. Currently on appeal to the 9th Circuit Court of Appeals. Dossat v. Hoffmann-La Roche, District of Nevada, Judge Roger Dawson.
  • FLSA off the clock case (2 named plaintiffs that remained after 1,100 member class was decertified). Jury verdict for employer, no unpaid overtime. Proctor v. Allsup's Convenience Stores, Northern District of Texas, Amarillo division, Judge Mary Lou Robinson.
  • Retaliation, national origin harassment, negligence and promissory estoppel. Jury found favorable answer for employer on statute of limitations, case settled before judgment entered. Dimitrijevic v. Tyco TEPS, District Court of Harris County (Houston), Judge Levi Benton.
  • Pregnancy discrimination. Non-binding summary jury trial, case settled after summary jury trial.  Anthony v. Healthtronics, District Court of Travis County (Austin), Judge Joe Hart.
  • Age/race discrimination and overtime claim for not complying with fluctuating work week. Jury verdict for defense, no discrimination and properly complied with fluctuating work week. Vidaurri v. Allsup's Convenience Stores, Northern District of Texas, Amarillo division, Judge Mary Lou Robinson.
  • Sexual harassment and assault. Jury verdict for defense, no harassment or assault. Braunig v. Bank of America, Western District of Texas, San Antonio Division, Judge Orlando Garcia.
  • Workers compensation retaliation claim. Jury verdict for defense, no retaliation. Sias v. Conway Transportation, District Court of El Paso County, Judge Bill Moody.
  • Age discrimination. Jury verdict for defense, no discrimination. Eavenson v. Amresco, Northern District of Texas, Dallas division, Judge Sam Lindsey.
  • Breach of settlement agreement, defamation, violation of California statute against defaming an employee. Jury verdict for Plaintiff, settled while case was on appeal. Nicolas v. Univision, Bexar County District Court (San Antonio), Judge Charles Gonzalez.
  • Male on male sexual harassment. Jury verdict for defense. Carillo v. Sierra Medical, Western District of Texas, El Paso Division, Judge Royal Ferguson.
  • Workers compensation retaliation. Jury verdict for plaintiff, reversed and rendered on appeal. Miller v. Merlin Express, Bexar County District Court (San Antonio), Judge Robert Murray.
  • Age discrimination. Jury verdict for defense, no age discrimination. Wilson v. Speed Queen, Northern District of Texas, Dallas Division, Judge Sam Cummings.
  • Workers compensation retaliation. Jury verdict for defense, no retaliation. Keister v. CPL Industries, District Court of Bowie County (Texarkana)]
  • Workers compensation retaliation. Jury verdict for defense, no retaliation. Tijerina v. Surlean Meat Co., District Court of Bexar County (San Antonio), Judge Andy Mireles.
  • Breach of contract and discrimination; settled after four weeks of trial Zaffirini v. Laredo Junior College, District Court of Webb County (Laredo), Judge Joe Kelly.

Arbitration hearings

  • Title VII retaliation. Arbitrator found for employee. Taylor v. Conifer Healthcare Solutions. American Arbitration Association (Dallas), Arbitrator Joseph M. Cox.
  • FMLA and race discrimination. Pittman v. Park Plaza Hospital. Arbitrator ruled for employer. American Arbitration Association (Houston), Arbitrator Diane Massey.
  • Termination under CBA. Termination upheld. Zamora v. Honeywell. (Las Cruces, NM). Arbitrator Peyton M. Williams.
  • Termination under CBA. Termination upheld. Fernandez v. Honeywell. (Las Cruces, NM). Arbitrator Harold E. Moore.
  • Discrimination, retaliation, intentional infliction of emotional distress and HIPAA violation. Arbitrator ruled for employer. Perez v. Park Plaza Hospital, American Arbitration Association (Houston), Arbitrator Randy Tower.
  • Claim for back wages. Arbitrator awarded minimal amount of back pay. Wilson v. Bayou Medical Center, American Arbitration Association (Houston), Arbitrator Dan Naranjo.
  • Whistleblower complaint under Texas Health Code. Arbitrator found for employer, no wrongful action. Mai v. Bayou Medical Center, American Arbitration Association (Houston), Arbitrator Robert Rice.
  • Intentional infliction of emotional distress. Arbitrator found for employer, no intentional infliction of emotional distress. Warner v. Park Plaza Hospital, American Arbitration Association (Houston), Arbitrator Otis King.
  • National origin and disability discrimination. Arbitrator found for employer, no discrimination. Taylor v. Houston Northwest Medical Center, American Arbitration Association (Houston), Arbitrator Lynn Gomez. 
  • Sexual harassment and retaliation. Arbitrator ruled for employer, no harassment or retaliation. Autrey v. Diamond Shamrock, American Arbitration Association (Dallas), Arbitrator Elizabeth Meiers; affirmed by state district court; affirmed by Dallas Court of Appeals.
  • Breach of oral contract. Arbitrator found breach of contract. Kingston v. Diamond Shamrock, American Arbitration Association (Albuquerque, NM).
  • Breach of contract and disability discrimination. Arbitrator found no disability but awarded damages for breach of contract. Stockinger v. Houston Northwest Medical Center, American Arbitration Association (Houston).
  • ERISA violation in computation of pension. Arbitrator found for employer, pension computed properly. Sondergard v. Diamond Shamrock, Inc., American Arbitration Association (Denver).
  • Violation of non-compete agreement. Arbitrator enforced agreement with minimal restrictions. Axcess Technologies v. King, American Arbitration Association (Austin), Arbitrator Tom Collins.
  • Sexual assault by supervisor. Arbitrator found assault and awarded damages, settled while on appeal. Roman v. Brownsville Medical Center, American Arbitration Association (Brownsville), Arbitrator Leo Saltzman.
  • Age and national original discrimination. Arbitrator found for employer, no discrimination. Ramirez v. Brownsville Medical Center, American Arbitration Association (Brownsville), Arbitrator Lynn Gomez.
  • Dispute over commissions and wrongful termination of contract. Arbitrator found no wrongful termination and awarded a portion of commissions. DeVriendt v. Fairchild Aircraft, American Arbitration Association (San Antonio), Arbitrator Don McManus.
  • Workers compensation retaliation. Arbitrator found for employer, no retaliation. Rodriguez v. Southwest General Hospital, American Arbitration Association (San Antonio), Arbitrator Bill Keller.
  • Enforcement of non-compete agreement. Held agreement enforceable and awarded attorneys fees to employer. Amtech Lighting v. Moore, American Arbitration Association (San Antonio), Arbitrator Robert Rice.
  • Race discrimination. Arbitrator found for employer, no discrimination.  Ofor v. Diamond Shamrock, American Arbitration Association (Houston) Arbitrator Otis King.
  • Race discrimination. Arbitrator found for employer, no discrimination. Bobb v. Park Plaza Hospital, American Arbitration Association (Beaumont), Arbitrator Reagan Burch.
  • Defamation. Arbitrator found for employer, no defamation. Perkins v. Diamond Shamrock, American Arbitration Association (San Antonio), Arbitrator Lynn Gomez.
  • Age and national origin discrimination. Arbitrator found for employer, no discrimination. Zurita v. Brownsville Medical Center, American Arbitration Association (Brownsville), Arbitrator Leo Saltzman.
  • Race discrimination. Arbitrator found for employer, no discrimination.  Eman-Henshaw v. 12 Oaks Hospital, American Arbitration Association (Houston).
  • Sex and age discrimination, retaliation. Arbitrator found for employer, no discrimination or retaliation. Hottman v. Park Plaza Hospital, American Arbitration Association (Beaumont), Arbitrator Otis King.
  • National origin discrimination and FLSA claim. Arbitrator found no discrimination, but violation of FLSA. Brownsville Medical Center, American Arbitration Association (Brownsville), Arbitrator William H. Lemons.
  • Wrongful termination. Arbitrator found for employer. Nowzaradan v. 12 Oaks Hospital. American Arbitration Association (Houston).
  • Racial discrimination. Arbitrator found for employer, no discrimination. Jackson v. 12 Oaks Hospital, American Arbitration Association (Houston).
  • Racial discrimination. Arbitrator found for employer, no discrimination. Leath v. AMI, American Arbitration Association (Dallas); affirmed by District Court of North Texas, Dallas division; affirmed by 5th Circuit Court of Appeals; certiorari denied by U.S. Supreme Court.
  • Discrimination. Settled after arbitration hearing, before arbitrator’s award. Walker v. Diamond Shamrock, American Arbitration Association (El Paso).
  • Wrongful termination in violation of CBA. Termination upheld. Annen v. Aviall. (Dallas)

Bench Trials

  • Claim by 17 plaintiffs for breach of oral and written contract for severance pay.  Trial Court found for plaintiffs. Reversed and rendered by Court of Appeals, application for review pending with Texas Supreme Court. Colorado v Tyco TEPS, District Court of Harris County (Houston), Judge Kyle Carter. 
  • Injunction to enforce covenant not to compete. Temporary injunction granted. After hearing, case settled.  Compass Bank v. Owens, Western District of Texas, Del Rio division, Judge Alia Ludlum.
  • Sexual harassment, intentional infliction of emotional distress and tortious interference with contract. Court found for plaintiff, settled while on appeal. Scribner v. Waffle House, Northern District of Texas, Dallas division, Judge Jerry Buchmeyer.
  • Workers compensation retaliation. Court found for employer, no retaliation. Fernize v. Braun Packing Co., District Court of Bexar County (San Antonio), Judge Michael Peden.
  • ERISA claim for withheld funds. Settled during middle of non-jury trial. Collen v. EDP, Western District of Texas, San Antonio division, Judge William Sessions.
  • Race discrimination. Court ruled for employer. Datapoint Corporation. Western District of Texas, San Antonio Division, Judge Fred Shannon.
  • National origin discrimination. Judge granted employer directed verdict at close of plaintiff’s case.  L&H Packing Company. Western District of Texas, San Antonio division, Judge Ed Prado.
  • Unfair labor practice hearing over discharge for engaging in concerted activity in non-union setting. Administrative Law Judge found for employer; NLRB reversed finding an unfair labor practice; 5th Circuit refused to enforce.

Oral Arguments on Appeals

  • Claims for breach of oral and written contracts for severance pay. Court of Appeals reversed trial court judgment in favor of employees and rendered for employer. Application for review pending before Texas Supreme Court. Tyco Valves Controls v. Colorado, 365 S.W.3d 750 (Tx. App. - Houston [1st Dist.] 2012). Justices Keyes, Sharp and Massengale.
  • Appeal of dismissal of action filed by 1,000+ employees for FLSA violations in their “individual” capacity. Court of Appeals upheld dismissals for all but employees employed at one store. Acevedo v. Allsup’s Convenience Stores, Inc. 600 F.3d 516 (5th Cir. 2010). Judges Jones, Benavides and Prado.
  • Appeal of arbitration award. Affirmed by Court of Appeals. Autrey v. Diamond Shamrock, 5th Court of Appeals (Dallas).
  • Appeal of grant of summary judgment for employer on age discrimination claim. Court of Appeals reversed and remanded for trial. Eavenson v. Amresco, Fifth Circuit Court of Appeals (New Orleans). Judges Jolly, DeMoss, and Dowd.
  • Appeal from denial of Motion to Compel Arbitration. District court affirmed by Court of Appeals. Cooper v. Tenet Healthcare, 960 S.W.2d 386 (Tx App – Houston [14th Dist.] 1998).
  • Appeal of jury verdict in favor of employee on workers compensation retaliation claim. Court of Appeals reversed and rendered for employer. Merlin Express v. Miller, (Tx. App. – San Antonio).
  • Enforcement of unfair practice finding by NLRB. Court of Appeals refused to enforce NLRB’s Order. NLRB v. Datapoint, 642 F.2d 123 (5th Cir. 1981).

Education and Honors

Education: 

J.D. with high honors, University of Texas School of Law, 1975
B.A., with honors, Stephen F. Austin State University, 1972

Honors and Awards: 
  • Order of the Coif
  • Board Certified, Labor and Employment Law, Texas Board of Legal Specialization (since 1980)
  • Fellow, College of Labor and Employment Lawyers
  • Fellow, Texas State Bar Foundation
  • Listed in Texas Labor and Employment Lawyers, Chambers USA Client Guide (since 2004)
  • Best Lawyers in America (since 1999)
  • Super Lawyer by Texas Monthly (since 2003)
  • Named Best Lawyers' 2012 Austin Employment Law – Management "Lawyer of the Year"
  • Named Best Lawyers' 2014 Austin Litigation - Labor & Employment "Lawyer of the Year"

Professional Activities

Professional Activities: 
  • American Bar Association (Labor & Employment Law and Litigation Sections)
  • Texas State Bar Association (Labor & Employment Law and Litigation Sections)
  • Society for Human Resource Management
  • Management Labor & Employment Roundtable
  • Fellow, College of Labor and Employment Lawyers
Speeches:
  • Texas Association of Business - "How Employers Make Juries Mad" - San Antonio - July 19, 2013
  • Business Management Daily Webinar - "Cost Cutting HR: 10 Legal Strategies That Can Actually Save You $$$" - June 25, 2013
  • The University of Texas School of Law 2013 Labor and Employment Law Conference - "Witness Preparation" - Austin - May 16, 2013
  • Ogletree Deakins Workplace Strategies Seminar - "The New Generation of Jurors" - New Orleans - May 9, 2013
  • 9th Annual Labor and Employment Law Advanced Practices Symposium - "Show Me The Money – Employment Laws That Can Actually Save You $$!; and Retaliation: Managing Employers’ #1 Risk (and Jurors Favorite Claims)" - Las Vegas - April 4, 2013 - April 5, 2013
  • State Bar of Texas Advanced Employment Law Course 2013 - "Social Media: Trap for Employees or Employer?" - Dallas - January 17, 2013
  • Ogletree Deakins Seminar - "21 Is Not Just A Card Game - Whistleblower Risks for Texas Employers" - Austin - November 2, 2012
  • The University of Texas School of Law 2012 - "Essential Employment Law" - Dallas - October 3, 2012
  • The University of Texas School of Law 2012 - "Essential Employment Law" - Austin - September 13, 2012
  • The University of Texas School of Law 2012 - "Essential Employment Law" - Houston - August 24, 2012
  • Texas Association of Business and the Society for Human Resource Management Texas Employment Relations Symposium 2012 - "Headline News: The Latest in Employment Law Developments and Trends" - San Antonio - July 19, 2012
  • The University of Texas School of Law 2012 Labor and Employment Law Conference - "Jury Trial War Stories: What I’ve Learned from My Jury Trials (and Disasters)" - Austin - May 18, 2012
  • Ogletree Deakins Workplace Strategies Seminar - "Cyber Employees – The Legal and Practical Challenges of the Virtual Workforce" - Phoenix - May 10, 2012
  • State Bar of Texas 20th Annual Advanced Employment Law Course - "Developing Themes at Trial: A View From Both Sides of the Docket" - Dallas - January 27, 2012
  • Ogletree Deakins Seminar - "The Legal System Is Broken: A Cynic’s View of Workplace Law" - Austin - November 4, 2011

In The News

Media Quotes:
  • September 23, 2013 - Business Insurance - "Navy Yard Massacre Exposes Information Gaps"
  • September 11, 2013 - Law360 - "Workers Ask Texas High Court To Restore Severance Pay"
  • September 6, 2013 - CFO Daily News - "10 Money-Saving Opportunities Hidden in Employment Laws"
  • August 30, 2013 - Inside Counsel - "Common Plaintiff Strategies for Harassment and Retaliation Litigation Ruled Out"
  • August 11, 2013 - Business Insurance - "Judge Restricts Class-Action Attempt in Wal-Mart Gender Bias Case"
  • July 10, 2013 - Law360 - "High Court Term Gives Employers A Leg Up In Litigation"
  • June 24, 2013 - Law360 - "Lawyers React to High Court Ruling on Retaliation Suits"
  • April 22, 2013 - Law360 - "High Court Poised to Shape Landscape For Retaliation Suits"
  • April 9, 2013 - Human Resource Executive - "Defending Against Worker Retaliation"
  • February 25, 2013 - Business Insurance - "Texas Whistle-Blower Statute Does Not Cover Internal Reports: Court"
  • January 23, 2013 - Law360 - "High Court Mixed-Motive Case To Shape Bias Suit Landscape"
  • October 26, 2012 - Law360 - "Affirmative Action Ruling Could Rattle Even Private Employers"
  • August 14, 2012 - Business Insurance - "Supervisory Retaliation Is A Growing Liability For Employers"
  • August 6, 2012 - Business Insurance - "Ways Employers Can Defend Against Retaliation Claims"
  • June 2012 - Bloomberg BNA (Volume 30, Number 6) - "The Bully-Free Zone: Creating a Respectful, Productive and Legal Workplace"
Published Works: