In the News

Felicity Fowler in the Dallas Business Journal: Haynes and Boone Ranks as North Texas’ Most Diverse Law Firm

Law firm Haynes and Boone, LLP tops the list of North Texas large law firms with the most women and most minority attorneys, according to Dallas Business Journal research. >>

Texas Super Lawyers Features 91 Haynes and Boone Lawyers

Ninety-one Haynes and Boone, LLP lawyers have been recognized in the Texas Super Lawyer 2013 award listing. >>

Haynes and Boone Wins MCCA’s Thomas L. Sager Award for South Region

The Minority Corporate Counsel Association (MCCA) has awarded Haynes and Boone, LLP the prestigious Thomas L. Sager Award for the South Region, recognizing the firm’s commitment to the hiring, retention and promotion of minority lawyers.

“This is a tremendous validation for the creative and effective work being done every day by members of our Attorney Diversity Committee, as well as the Recruiting Department,” said Terry Conner, firm managing partner. “Under their combined leadership, we continue to make great strides in fostering an environment that not only accepts, but also celebrates, the characteristics that make us truly unique and diverse individuals.” >>

WILEF Honors Haynes and Boone as a Top Law Firm for Women

DALLAS – Haynes and Boone, LLP has been awarded the Women in Law Employment Forum (WILEF) Gold Standard Certification for the third straight year. >>



Recent Publications

Diversity Highlights (2013)

The Attorney Diversity Committee (ADC) at Haynes and Boone, LLP is comprised of more than 60 attorneys, management and administrative team members that meets each month to advance our firm’s numerous diversity efforts. This document summarizes the efforts and accomplishments of 2013. >>

Pre-Hire Issues: A First Date From the Perspective of an Employer

When seeking to hire qualified employees, employers must avoid numerous legal complications that pervade the hiring landscape. >>



Felicity A. Fowler

Partner

Houston


1221 McKinney Street
Suite 2100
Houston, 77010
T +1 713.547.2072
F +1 713.236.5627

Dallas


2323 Victory Avenue
Suite 700
Dallas, 75219
T +1 214.651.5257
F +1 214.651.5940

Áreas de Practica

Educación

  • J.D., Georgetown University Law Center, 1992, Member, Journal of Law and Technology
  • B.S., Industrial and Labor Relations, Cornell University, 1989, Cornell National Scholar

Bar Admissions

  • Texas

Court Admissions

  • U.S. Court of Appeals for the Fifth Circuit
  • U.S. District Court for the Western District of Texas
  • U.S. District Court for the Northern District of Texas
  • U.S. District Court for the Southern District of Texas
  • U.S. District Court for the Eastern District of Texas
Felicity A. Fowler

Felicity Fowler is a partner in the Labor and Employment Practice Group of Haynes and Boone, and has more than 20 years of experience representing management in employment litigation and related proceedings. 

She is certified by the Texas Board of Legal Specialization as a specialist in the field of Labor and Employment Law, and she counsels clients in areas such as wage and hour law, discrimination and harassment claims, leaves of absence, employee terminations and reductions in force. Ms. Fowler regularly represents employers in employment litigation (including class actions) in state and federal court and in employment arbitrations. Ms. Fowler also advises clients on the risks and implications arising from the use of social media, and creates guidelines and social media policy recommendations. Ms. Fowler is a frequent lecturer on numerous employment law topics, including FMLA, ADA, FLSA, harassment and social media.

Ms. Fowler is the co-chair of Haynes and Boone's 60-person Attorney Diversity Committee, where she focuses on advancing the hiring, retention and promotion of diverse lawyers within the firm.

Selected Client Representations

  • Defended a well-known U.S. corporation in a highly-publicized, class-based discrimination lawsuit brought by the Equal Employment Opportunity Commission in U.S. District Court under the Americans with Disabilities Act and secured summary judgment on the basis that the class EEOC sought to represent was not disabled within the meaning of the ADA in EEOC v. Exxon Corp., 124 F.Supp. 2d 987 (N.D. Tex. 2000).
  • Successfully argued before the Fifth Circuit Court of Appeals in Hockman v. Westward Communications, 407 F.3d 317 (5th Cir. 2004), issue of first impression, which resulted in employer friendly defense standard in co-worker harassment cases; also handled companion case, Harvill v. Westward Communications, 433 F.3d 428 (5th Cir. 2005) (the Westward cases are often cited in the Fifth Circuit on various aspects of sexual harassment jurisprudence).
  • Helped secure a Fifth Circuit opinion that an employer can defend a safety-based policy under the ADA on business necessity grounds.
  • Successfully tried numerous employment law cases in Federal and State courts, as well as several arbitration forums.
  • Successfully obtained and/or defended numerous temporary and permanent injunctions in misappropriation of trade secrets, unfair competition and covenant not to compete cases.
  • Representation of securities brokerage firms in employment disputes. Recent experience includes a complete defense award for a client in a dispute filed by a former broker challenging stock forfeiture provisions in national employer's employee incentive compensation plan (Howell v. Citigroup Global Markets Inc., NYSE No. 2004-015794).
  • Successfully handled several wage and hour litigation matters, including multiple collective actions under the FLSA.
  • Obtained dismissal of sexual harassment case for employer based on jurisdictional arguments in Lee v. Dollar Tree Stores, Inc., 2007 U.S. Dist. LEXIS 53693 (S.D. Tex., July 25, 2007).
  • Obtained numerous summary judgments for employers in employment litigation matters, including: (1) Hockman v. Westward Communications, 282 F.Supp. 2d 512 (E.D. Tex. 2003) (sexual harassment); (2) Harvill v. Westward Communications, 311 F.Supp. 2d 573 (E.D. Tex. 2004) (sexual harassment/FLSA); (3) Weeks v. NationsBank of Texas, N.A., 2000 U.S. Dist. LEXIS 4069 (N.D. Tex. 2000) (retaliation); (4) Garrity v. NationsBank of Texas, N.A., 1999 U.S. Dist. LEXIS 1454 (N.D. Tex. 1999) (gender discrimination); and (5) Kushner v. Nationsbank, N.A., 1998 U.S. Dist. LEXIS 12708 (N.D. Tex. 1998) (ADA discrimination).
  • Frequently lectures on employment law topics for both lawyers and human resources professionals.
  • Employment law training, investigations, analysis, and resolution of complex employment situations.

Publications

  • "Pre-Hire Issues: A First Date from the Perspective of an Employer," Corporate Counsel Section Newsletter of the State Bar of Texas, Spring II, 2013.
  • "Assisting Clients with New Employment Law Compliance Practices and Challenges," Employment Law 2013, Aspatore Thought Leadership, February 2013.
  • "2013 Midwinter Meeting Report of 2012 Cases," Contributing Author, American Bar Association, Section of Labor and Employment Law, Committee on Federal Labor Standards Legislation, January 31-February 1, 2013.
  • "Employees Get What? What Texas Employers Need to Know About Mexican Labor and Employment Law," co-author with Yasser Madriz and Meghaan McElroy, The Houston Lawyer, January/February 2012.
  • Arthur T. Carter & Felicity A. Fowler, "Educating and Updating Clients on Recent Trends and Developments in the Employment Law Arena," in Inside the Minds: The Impact of Recent Regulatory Developments in Employment Law 7 (Thomson Reuters/Aspatore 2012).
  • "Health Care Reform 101: For Employers," Law360 Guest Column, Co-Author with Katie Chatterton and Meghaan McElroy, June 14, 2010.
  • Senior Editor, BNA/ABA Section of Labor and Employment Law, "Wage and Hour Laws: A State-by-State Survey," September 2005.
  • "Partnerships," SMU L. Rev. 1631 (1993) (cited in Kao Holdings, L.P., v. Young, 214 S.W.3d 504 (Tex. App.-Houston [1st Dist.] 2006), aff'd in part, 51 Tex. Sup. J. 1051 (Tex. 2008)).

Activities

  • Greater Houston Women's Chamber of Commerce, Board of Directors, 2010-present
  • Hispanic Bar Association of Houston, Board of Directors, 2004-present
  • Hispanic National Bar Association, Standing Commission on the Status of Latinas in the Legal Profession, 2012-2013, past Deputy Regional President, Region XII
  • American Health Lawyers Association
  • Family Services of Greater Houston, Board of Directors, 2005-present
  • Professional Women of Color, Board of Directors
  • Houston Diversity Council, co-founder

Awards

  • Selected as a 2013 Most Powerful and Influential Woman of Texas by the National Diversity Council
  • Named one of the "Top 25 Women of Vision 2009" by Hispanic Business Magazine, April 2009
  • Selected for inclusion in Texas Super Lawyers in Employment and Labor (2003, 2004, 2007-2013)
  • Recognized by Texas Super Lawyers among the Top 50 Women Super Lawyers in Texas and Top 100 Houston Super Lawyers (2010-2011)

Recent Speeches and Presentations

  • "Perceptions, Importance and Impact of Disability Hiring: What Your Company Needs to Know," panel presenter, Discover Employ Ability, The Dallas Mayor's Committee for the Employment of People with Disabilities Expo 2011, October 17, 2011.
  • "A Look into DOL Investigations/Enforcement Actions and Private Clauses of Action under the FLSA," University of Texas Corporate Counsel Institute, Dallas and Houston, Texas, April 2011.
  • "Due Diligence in Employment Law Issues" - HB 5th Annual Ethical Principles for Corporate Counsel Seminar, Houston, Texas, February 2, 2007
  • "Fairness, Consistency and Documentation: Using the FCD Trilogy to Avoid Employment Claims" - North Chamber 5th Annual Employment Law Update, San Antonio, Texas, March 1, 2007
  • "Electronic Discovery in Employment Law Cases: What Every Employer Should Know" - UH Law Center: Advanced Employment Law Seminar, March 30, 2007
  • "Advanced Leave Issues" - Greater Dallas Chamber Employment Law Update 2007, Dallas, Texas, April 13, 2007
  • "Discrimination and the Family: Addressing Pregnancy, Spouse, and Domestic Partner FMLA Issues" - 11th Annual South Montgomery County Woodlands Chamber of Commerce Employment Law Update, November 14, 2007
  • "Family Responsibilities Discrimination: Addressing, FMLA, Leave Issues" - 4th Annual Houston West and Katy Chambers of Commerce Employment Law Update, Houston, Texas, March 14, 2008
  • "Discrimination and the Family: Addressing Pregnancy, Spouse, and Domestic Partner FMLA Issues" - North Chamber Annual Employment Law Update, San Antonio, Texas, March 20, 2008
  • "The FMLA and the ADA - Watch Out for Intersectional Collisions & Those Hard-To-Deal With Mental Impairments" - Fort Worth Chamber 18th Annual Employment Law Update, Fort Worth, Texas, March 27, 2008
  • "The FMLA and the ADA - Watch Out for Intersectional Collisions & Those Hard-To-Deal With Mental Impairments" - Greater Dallas Chamber 20th Annual Employment Law Update, Dallas, Texas, April 9, 2008
  • "A Year of 'Change' - Understanding the New Revisions to the FMLA" - 2008 Haynes and Boone Houston Employment Law Update, June 20, 2008
  • "Top Five Employment Issues in a Down Economy" - 12th Annual South Montgomery County Woodlands Chamber of Commerce Employment Law Update, November 13, 2008
  • "Age Discrimination Claims: Litigation and Trial" - University of Houston Advanced Employment Law Seminar, Houston and Dallas, Texas, March 13 and 27, 2009
  • "The Americans with Disabilities Amendments Act and the New Regulations of the FMLA" - Fort Worth Chamber 19th Annual Employment Law Update, Fort Worth, Texas, March 27, 2009
  • "The ADAAA and the New FMLA" - Greater Dallas Chamber Annual Employment Law Update, Dallas, Texas, April 16, 2009

Selected Representative Experience


RP Holdings Inc. Restructuring
Haynes and Boone was engaged by RP Holdings Inc. in August 2011 to assist in its restructuring efforts. At that time, the company had just hired a new CEO, was facing liquidity challenges due to the nationwide stoppage of foreclosure prosecutions, and had completed internal audits showing a total of approximately $20 million was owed to it by its two largest customers. Its senior secured facility was due to mature in August 2012. In the fall of 2012, the company pursued a restructuring transaction with its private equity sponsors, the secured lenders and the two law firms, which failed to materialize on the eve of a possible closing in early January 2012.

Acquisition by Rockwell Collins, Inc. of AR Group, Inc., Aerovip, L.P., AR Leasing Services, L.P. and International Air Associates, L.P.
Represented Air Routing International Corporation in the sale of stock to Rockwell Collins, Inc.

Co-Worker Sexual Harassment and an Employee’s Obligation to Act Reasonably; Harvill v. Westward Communications, 433 F.3d 428 (5th Cir. 2005), Hockman v. Westward Communications, 407 F.3d 317 (5th Cir. 2004)).
While the Hockman court found potentially egregious conduct was not harassment as a matter of law, both Hockman and Harvill assist employers when complaining employees act unreasonably. Traditionally, the court’s inquiry of whether a company may avoid liability for co-worker harassment is limited to the question of whether the employer knew or should have known of the alleged harassment and failed to take prompt, remedial action. Accordingly, whether a plaintiff acted reasonably or unreasonably in bringing a complaint to management’s attention is a matter for supervisory harassment claims only, which operate under a different set of liability principles. We argued for adoption of the supervisory harassment “reasonableness” standard in co-worker harassment cases and the Courts agreed. Now, an employer may be able to avoid liability in co-worker harassment claims if the employee unreasonably failed to take advantage of corrective opportunities provided by the employer.

Laredo Medical Group Corp. v. Mireles, 155 S.W.3d 417 (Tex. App. - San Antonio 2004, pet. denied)
Obtained reversal of a $1.5 million judgment in a wrongful termination case against a hospital, based on an error in the jury charge.

FLSA Collective Action—Misclassification of Pipeline Controllers; In the United States District Court for the Southern District of Texas—Houston Division and the American Arbitration Association
Plaintiffs proposed to represent a class of pipeline controllers throughout the United States who were allegedly misclassified as exempt under the FLSA administrative exemption. The court conditionally certified the class, but we successfully limited the potential class to only certain grades of pipeline controllers. Further, after challenging plaintiffs’ faulty notice and successfully resolving the federal court lawsuit, only two claimants remain in arbitration.

Howell v. Citigroup Global Markets Inc.
Howell v. Citigroup Global Markets Inc., NYSE No. 2004-015794, complete defense award for a client in a dispute filed by a former broker challenging stock forfeiture provisions in national employer’s employee incentive compensation plan.

FLSA Collective Action—Off the Clock Claims
In the United States District Court for the Southern District of Texas - Houston Division. Represented the holding company of various Chevron gas stations in an FLSA collective action maintained by a proposed class of gas station cashiers who were allegedly told to work off the clock. Successfully prevailed at the conditional certification stage and the court denied Plaintiff’s motion for conditional class certification. This matter was then resolved on favorable terms.

Lee v. Dollar Tree Stores, Inc.
Lee v. Dollar Tree Stores, Inc., 2007 U.S. Dist. LEXIS 53693 (S.D. Tex., July 25, 2007) - Obtained dismissal of sexual harassment case for employer based on jurisdictional arguments.

Memberships

  • State Bar of Texas
  • American Bar Association – Labor & Employment, Litigation Sections
  • Houston Bar Association – Labor & Employment, Litigation Section
  • Hispanic Bar Association of Houston – Board of Directors (2004 to present)
  • American Health Lawyers Association

Online Publications

05/01/2013 - Pre-Hire Issues: A First Date From the Perspective of an Employer
When seeking to hire qualified employees, employers must avoid numerous legal complications that pervade the hiring landscape.

03/08/2012 - The Houston Lawyer Guest Article: What Texas Employers Need to Know About Mexican Labor and Employment Law
Before entering an unknown business market, employers must be apprised of the labor and employment laws governing the employer-employee relationship in that jurisdiction.

07/28/2011 - There Is Hope After All: Fifth Circuit Holds that Employers May Still Prevail on FLSA Retaliation Claims
A June ruling by the Fifth Circuit Court of Appeals has provided a bit of a relief for employers who face Fair Labor Standards Act retaliation claims from employees. The Supreme Court's ruling in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325, 1329, 179 L. Ed. 2d 379 (2011) represented a significant victory for employees, but now all is not lost for employers.

03/09/2011 - Employers’ Cat’s Paw Liability: Watch Out for the Monkey Business of Supervisors
In a case decided last week, Staub v. Proctor Hospital, a unanimous United States Supreme Court finally addressed the application of the “cat’s paw” theory of liability to employment discrimination claims, holding that an employer can be liable for an employment action motivated by a non-decision maker’s discriminatory animus.

02/22/2011 - OSHA 2010 and 2011: A Review of OSHA’s Expanded Enforcement Initiatives in 2010 and the Outlook for 2011
The business community has been placed on notice. OSHA has been actively pursuing its regulatory agenda, while also arming its arsenal to enforce compliance.

01/14/2011 - Haynes and Boone: Continuing to Set Pro-Employer Precedent in Sexual Harassment Law
The Equal Employment Opportunity Commission received more than 12,000 charges in 2009 from employees claiming sexual harassment—a 6 percent increase from three years ago. Although harassment claims are on the rise, Haynes and Boone continues to secure significant sexual harassment victories for its clients, and employers overall.

10/15/2010 - Veterans’ Benefits Act of 2010 - Expanding Employee Protection Under USERRA
Before heading into the pre-election recess, the Senate passed the Veterans’ Benefits Act of 2010 on September 28, 2010. See H.R. 3219, 111th Cong. (2d Sess. 2010). The Act, which passed in the House over one year ago, is a compromise measure between the House and the Senate and encompasses several veterans’ benefits bills. Of notable importance to employers is the Act’s expansion of employee protection under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).

07/29/2010 - Litigating Arbitration Agreements: Recent United States Supreme Court Decisions Provide Guidance to Employers Looking to Avoid Court
Despite entering into arbitration agreements with their employees, employers all too often find themselves in court adverse to the very employees who have signed an arbitration agreement. The U.S. Supreme Court recently issued three arbitration decisions that have important implications for employers seeking to avoid the inside of a courtroom.

06/30/2010 - U.S. Supreme Court Upholds Employer Searches and Underscores Importance of Electronic Communications Policies
The United States Supreme Court issued a unanimous decision that provides guidance on steps employers can take to reduce an employee’s privacy expectations and emphasizes the importance of having a clear, well-defined privacy policy.

06/14/2010 - Fowler, Chatterton and McElroy Guest Column in Law360: Health Care Reform 101: For Employers
On March 21, 2010, the House of Representatives passed the Patient Protection and Affordable Care Act (“PPACA”), signed into law on March 23, 2010. The health care reform law will make far-reaching changes to the United States health care system over the next several years.

04/22/2010 - Employers Beware: How the Recent Health Care Reform Legislation Affects Employers
On March 21, 2010, the House of Representatives passed the Patient Protection and Affordable Care Act (“PPACA”), which President Obama signed into law on March 23, 2010. The health care reform law will make far-reaching changes to the United States health care system over the next several years. 

06/19/2009 - U.S. Supreme Court Increases Employee Burden of Proof in Age Bias Cases
In Gross v. FBL Financial Services, Inc., decided on June 18, 2009, a deeply divided U.S. Supreme Court imposed a heightened proof burden on employees to establish age discrimination against their employers. In a 5-4 decision, the Court concluded that the literal text of the Age Discrimination in Employment Act (“ADEA”) does not allow a worker to prove discrimination by demonstrating that age was one “motivating factor” for the employer's adverse employment action.

05/01/2009 - What’s an Employer to Do? Understanding the Employment Law Implications of Swine Flu
Employers face an array of potential legal issues associated with the influenza A (H1N1) infection, also known as “swine flu.” As of May 1, 2009, 331 cases of swine flu in eleven countries have been reported and 109 of these cases are in the United States. Moreover, the World Health Organization has rated the swine flu as a phase 5 on the influenza pandemic alert level – revealing “a strong signal that a pandemic is imminent and that the time to finalize the organization, communication, and implementation of the planned mitigation measures is short.” Health organizations and the government are not the only entities that need to prepare plans. Employers also need to determine how they will deal with the problems associated with a potential influenza outbreak.

04/22/2009 - Texas Supreme Court Provides Greater Protection to Employers Seeking to Enforce Non-Compete Covenants
Building on its 2006 decision in Alex Sheshunoff Management Services, L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006), the Texas Supreme Court has further expanded the enforceability of non-compete covenants in the at-will employment setting. In Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, No. 07-0490 (Tex. April 17, 2009), a decision with significant practical implications for Texas employers, the court held that an employer’s implied promise to provide confidential information to an at-will employee may give rise to an enforceable covenant not to compete.

03/31/2009 - FINRA Proposes Rule to Streamline Cases Involving Broker Note Arbitrations
On March 24, 2009, the Financial Regulatory Industry Authority (FINRA) filed a rule proposal with the SEC to adopt Rule 13806 of the Code of Arbitration Procedure for Industry Disputes (“Industry Code”) to establish procedures to expedite the administration of promissory note cases and to also amend Rules 13214 and 13600 of the Industry Code to make conforming changes.

02/16/2009 - U.S. Supreme Court Protects Workers from Retaliation in Workplace Discrimination Investigations
On January 26, 2009, the United States Supreme Court, in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, concluded that Title VII’s anti-retaliation provision protects an employee-witness who “speaks out” about alleged discrimination “not on the employee’s own initiative,” but in answering questions during the employer’s internal investigation.

01/30/2009 - President Obama Signs Lilly Ledbetter Fair Pay Act
On Thursday, January 29, 2009, in a widely anticipated move, President Barack Obama signed his first bill into law, approving the Lilly Ledbetter Fair Pay Act. This legislation focuses on salary bias in the workplace. Discussed in greater detail below, the Ledbetter bill essentially negates a 2007 United States Supreme Court decision that limited a woman’s ability to sue for pay discrimination long after the first discriminatory paycheck occurred.

01/20/2009 - House Passes Two “Fair Pay” Bills
On January 9, 2009, the United States House of Representatives passed the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act. The bills now go to the Senate for consideration, and President Obama is expected to sign both into law should they reach his desk.

11/30/2008 - Hot Branding News Fall 2008
This edition includes articles such as "Courts Honor Contractual Choice of Law and Forum Provisions and Reject Public Policy Invalidation:  Curves Litigation", "Disability Law Expansion", "Identity Theft Red Flag Rules", and State and Global Updates.

11/21/2008 - The ADA’s Rebirth: Complying with the ADA Amendments of 2008
Based on several new amendments to the Americans with Disabilities Act (ADA), the statute has been reborn – it offers vastly expanded coverage to a wide variety of employee physical and mental impairments and will require employers to focus on creating and offering reasonable accommodations to individuals with disabilities. On January 1, 2009, the ADA Amendments Act of 2008 (ADAAA) will become effective and, in large part, it removes an employer’s common defense that the individual’s particular impairment does not constitute a “disability” under the ADA.

02/07/2008 - Recent Amendments to the FMLA – Exigency Leave and Servicemember Family Leave

01/10/2008 - Health Law: 2007 Highlights and Reminders for 2008

09/04/2007 - CMS Final Disclosure Rules on Physician Ownership & Physician Coverage of Hospital

06/25/2007 - Healthcare Legislation Update--Texas Legislature 80th Regular Session

04/27/2007 - Federal and Texas Requirements for Disclosure of Physician Ownership

01/08/2007 - Hot Topics in Health Care for Texas' 80th Legislative Session

01/05/2007 - Texas Regulatory Developments: Hospital Licensing and Pain Management Rules

12/19/2006 - 2007 Other Miscellaneous Policies Client Alert

05/30/2006 - IRS Compliance Check Questionnaire Sent to 600 Tax-Exempt Hospitals

05/05/2006 - Possible NLRA Implications - Part II

04/26/2006 - Possible NLRA Implications - Part I

12/01/2005 - Reminder to Update Your Policies and Procedures for 2006

08/02/2005 - AmeriChoice False Claims Act Settlement and Impact on Future Medicare/Medicaid Managed Care Contract

07/07/2004 - Proposed Regulations for Ambulatory Surgical Centers Licensed by the Texas Dept. of State Health Svc