Donna K. McElroy

An "excellent, ethical attorney" according to client quotes in Best Law Firms 2018, Donna works with clients to develop effective EEO and NLRB policies, designs noncompetition and non-solicitation agreements and troubleshoots day-to-day employer concerns – including dealing with social media and its growing impact on the work place. However, sometimes solutions require a trial lawyer.  During her three decades of practicing law, Donna has represented employers before juries, judges, arbitration panels and in administrative proceedings; she is well versed in successfully defending employers when sometimes inevitable litigation is filed.

Among Donna’s significant engagements are the following:

Age Discrimination Litigation

• Obtained a summary judgment in favor of an employer sued in South Texas in an age discrimination case where the employee had been employed for more than 25 years and performance problems had not been documented

Americans with Disabilities Act (ADA) Litigation

• Representation of a hospital in a lawsuit filed under Title III of the ADA. Negotiated a resolution that resulted in a dismissal of the litigation with prejudice
• Representation of an institution of higher education in claims brought under Title III of the ADA. Negotiated a resolution commencement of litigation

Bad Faith Claims

• Representation of an employer resulting in a dismissal and attorneys’ fees from District Court and Fifth Circuit for the filing of bad faith/frivolous litigation by a former employee
• Obtained a reversal by the Thirteenth Court of Appeals of District Court of an order requiring the employer to pay two years back pay for failure to reinstate the plaintiff in accordance with the original order requiring reinstatement
• Representation of an employer in an arbitration involving claims of discrimination, wrongful termination and intentional infliction of emotional distress. Arbitrators found no liability on behalf of the employer and awarded no damages to the employee

Non-Competition and Trade Secret Litigation

• Represented Texas-based employer in litigation brought in Florida federal court for injunctive relief pertaining to employees’ non-competition and non-solicitation agreements signed in the state of Washington; resulted in no injunctive relief, no money paid by our client, and the client was able to employ the employees who signed the non-compete agreements
• Represented national provider of computer hardware, software and related services in litigation against former employees and the competitor with whom the employees accepted employment for claims relating to improper use of confidential information and obtained agreed no-solicit agreement even though employees had not signed such an agreement during their employment
• Represented multiple defendants, including a start-up company, in dissolving temporary restraining order and defeating request for temporary injunction based on alleged theft of proprietary information and tortious interference with non-competition agreement
• Defended employer in tortious interference claim filed in another state based upon hiring of two employees who executed non-compete resulting in the employer being able to hire both employees
• Commenced a lawsuit and obtained injunctive relief against a former independent contractor for violation of a non-competition agreement, ultimately resulting in an Agreed Final Judgment against the defendant enforcing the terms of the non-compete and enjoining him from further violations of the non-competition agreement
• Obtained summary judgment and an award of attorney’s fees in an unfair trade practices case, patent violation and non-competition action
• Representation of an employer to obtain an injunction against an employee in a case involving disclosure of trade secrets, conversion of company property and unfair competition. Resulted in a return of company property and an agreement not to use or disclose trade secrets or proprietary information
• Negotiated a “walk away” settlement after two years of litigation where the plaintiff claimed the defendants had stolen trade secrets, tortiously interfered with contracts and usurped corporate assets. None of the defendants paid any money

Race and National Origin Discrimination Litigation

• Obtained dismissal of race discrimination claims where Texas whistleblower claims were also asserted through a Plea to the Jurisdiction
• Obtained a summary judgment in favor of a client who was being sued by a doctor alleging national origin discrimination claiming she was terminated because of her heavy Asian accent
• Representation of an employer in a race discrimination, failure to promote, and retaliation case. After trial, obtained a zero-sum verdict for the employer
• In a race discrimination and retaliation case, obtained judgment from Fifth Circuit affirming granting of summary judgment
• Obtained judgment from Fifth Circuit affirming granting of summary judgment in a national origin discrimination case
• Obtained summary judgment on all aspects of plaintiff’s case in a Title VII national origin discrimination and wrongful termination action in federal district court

Reductions in Force and Age Discrimination Issues

• Representation of employers in implementing large-scale reductions-in-force, including obtaining releases of liability for claims under Title VII and the Age Discrimination in Employment Act (ADEA)
• Successfully structured a voluntary employer reduction in force for a workforce where nearly all of the employees were substantially over forty

Sex Discrimination Litigation

• Obtained summary judgment in state court in case involving significant investigation of employee's use of email where terminated employee claimed sex discrimination
• Obtained summary judgment in favor of an employer who was sued after an employee was terminated pursuant to a morality provision in her contract. The employee claimed gender discrimination, breach of contract, and intentional infliction of emotional distress. All of the employee’s claims were defeated

Sexual Harassment Litigation

• Arbitrated to conclusion a sexual harassment and retaliation claim brought by a Senior Vice President of a multinational corporation who was still employed by the employer. Arbitrator dismissed all claims of claimant, finding in favor of the employer
• In a state court lawsuit alleging wrongful termination, retaliation for filing an Occupational Safety and Health Administration (OSHA) complaint and slander, argued Motion for Summary Judgment and obtained an opinion from the 4th Court of Appeals affirming the summary judgment
• Obtained an award in arbitration denying all requested relief to an employee who had been terminated and was claiming sexual harassment and retaliation

Wage and Hour Counseling and Litigation

• Representation of an employer in class action relating to improper calculation of wages and bonuses
• Assisted employer in reclassification of a large number of long-term employees from exempt to non-exempt with no claims being filed with the Department of Labor
• Representation of an employer in a significant Department of Labor investigation involving claims of improper classification of non-exempt employees and hiring undocumented workers. Negotiated resolution without commencement of litigation
• Advised several nonprofit corporations on developing policies and practices to guard against employees improperly “volunteering” their time

WARN Act – Counseling

• Assisted employers in a variety of situations involving structuring closing of operations, avoiding Worker Adjustment and Retraining Notification (WARN) Act liability claims, e.g., closing of a plant and moving operations to Texas from out of state

Worker’s Comp Retaliation Claims

• Obtained summary judgment in retaliation based upon filing a worker’s compensation claim
• Obtained jury verdict in favor of employer in worker’s compensation retaliation claim in South Texas