Well, I previously wrote about yet another frivolous lawsuit by the former Attorney General, Greg Abbott. But, then he actually won the suit on appeal. See my prior post here. The former AG sued the EEOC regarding enforcement guidance issued by the agency on criminal background checks. The case is State of Texas v. EEOC, No. 14-10949 (5th Cir. 1/27/2016). Criminal background checks have been controversial in recent years because they affect minorities in disproportionate numbers. At the district court level, the suit was dismissed. Judge Sam Cummings in Lubbock found that there was no case or controversy. The guidance was just that, guidance. It is not a binding rule. So, there was nothing to fuss about, said the lower court judge.

But, The Fifth Circuit viewed things differently. It said it is true that EEOC enforcement guidance is only advisory. But, the lack of binding or final effect of the rules does not mean there is no case or controversy. Said the higher court, the guidance amounts to a regulatory burden on Texas agencies as employers. The EEOC pointed out that the guidance does not create legal consequences for Texas employers. In that sense, the guidance is not “final” agency action. But, the Fifth Circuit panel stretched reality a bit to find that when the EEOC refers cases to the U.S. Attorney General (which is quite rare), it (the U.S. Attorney General) would rely on this guidance. Only the U.S. Attorney can enforce action against a Texas state agency.

In dissent, Judge Higginbotham points out that for there to be a “case,” the victim must have suffered some injury. The judge suggests the case is more political than legal. While the guidance is only a “cloud on the political horizon,” it inflicts no injury upon Texas, he observed. It is true the guidance could be relied on by the U.S. Attorney General – after the EEOC refers a case to that entity – but, the U.S. Attorney General can choose to ignore the guidance. Its a valid point.

See the decision here. I think there will be an attempted appeal to the Supreme Court. The majority decision has some flaws. But, the U.S. Supreme Court accepts so few cases that an appeal may go unnoticed.

The sandwich chain, Jimmy John’s, has agreed to stop including non-compete agreements in its hiring documents. I wrote about the chain’s requirement for non-compete agreements here. As I mentioned then, they were requiring the low wage earners to sign these agreements. As part of a settlement, Jimmy John’s is now dropping that non-compete agreement. The non-compete imposed a two year time limit in which a departing Jimmy John’s worker could not work for a competitor within two miles. The sandwich chain was sued by the New York state Attorney General regarding the practice. See CNBC report.

It is a brutal tactic to use with the most vulnerable workers. Earlier, this year the Illinois Attorney General commenced a similar lawsuit. Jimmy John’s is headquartered in Illinois. The chain says it stopped issuing sample non-compete agreements to its franchisees in 2014.

 

Well, it almost seems like “piling on,” but Donald Trump has made yet another troubling comment about a protected minority. In 2004, he was asked about one of his high level staffers, a woman who became pregnant. The real estate developer commented on Dateline NBC that it was an “inconvenience” when a female employee becomes pregnant. It was inconvenient for any any business, he explained. See San Antonio Express News report.

Taken by itself, one could argue that the statement is simple fact. It is inconvenient for a business when a female worker becomes pregnant. But, a decision to terminate a pregnant woman without a better explanation would look suspicious. One can only wonder how Mr. Trump can say such things and not be sued at some point for discrimination.

Now, if we count up the various minorities he has picked on, we can include a person with a disability, Mexicans, Moslems, veterans who have been captured (perhaps not a legally protected minority, but still important to myself), women in general, and now pregnant women. Sometimes tongue-in-cheek, lawyers will talk about equal opportunity employers who discriminate against everyone. Are such employers truly guilty of discrimination of they have bias toward everyone? No lawyer wants to try to defend such a person. But, it does appear we now have such an employer.

The Fourth Court of Appeals recently addressed a growing issue, at what point does same sex harassment constitute sexual harassment based on gender? Since the decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), we know there is such a thing as sexual harassment by persons of the same gender. In Oncale, several male co-workers harassed a male worker on an oil rig. The content of the harassment was clearly based on sex. But, none of the participants were gay. The employer argued rightly that previous precedent found that Title VII did not apply to same sex harassment based on gay or homosexual conduct. The Supreme Court in Oncale, however, found that this harassment was not based on homosexual conduct. This harassment was based on gender stereotypes. The court recognized then that same sex harassment was cognizable under Title VII if it was based on gender stereotypes.

But, what about the Texas equivalent of Title VII? Does the Texas Commission on Human Rights Act, Labor Code Sec. 21, include same sex harassment, not based on homosexual harassment? Yes, says the Fourth Court in Alamo Heights ISD v. Clark, No. 14-00746 (Tex.App. San Antonio 10/21/2015). In Clark, a new female coach at a middle school was harassed essentially from day one by the two senior, female coaches. The two senior female coaches discussed Coach Clark’s buttocks, her breasts almost daily and even blocked her exit from a room on occasion. The Fourth Court had no trouble finding this behavior over two years to be quite pervasive.

The employer tried to argue that the most offending coach directed her sexual banter and harassment at both men and women. But, the court disregarded that allegation, finding that most of the senior female coach’s harassment related to Coach Clark as a woman. As the court noted, this decision concerns a plea to the jurisdiction. So, the question concerns whether there is sufficient factual issue to justify a jury trial. There was, concluded the court, sufficient factual question regarding the nature of the senior coach’s harassment.

The school unfortunately did not take action in regard to Coach Clark’s EEOC charge. Indeed, they placed her on a performance improvement plan just a few days after the school received the charge. And, noted the court, Coach Clark had not received a negative evaluation until after she had filed her charge. The school also failed to follow district policies regarding alleged sexual harassment. The school did not report the allegations to the district. Remarkably, the school principal even warned the young coach that there would be “consequences” for her charge. The school faulted Ms. Clark for not complaining about the sexual harassment within ten days of the acts. But, there was no written policy that imposed a ten day time period. The court found that the district failed to follow its own procedures in several ways. So, the higher court affirmed the lower court’s denial of the plea to jurisdiction.

See decision here.

So, now Coach Art Briles has sued Baylor University for “wrongful termination.” See San Antonio Express News report. The saga of the Baylor University football team reached its apex a few weeks ago when the Pepper Hamilton law firm report was released. The report implicated Baylor University officials, including Coach Briles, in the half dozen or so rapes and sexual assaults committed by football players. As sports scandals go, its a “big un.” It ranks up there with the SMU scandals of the 1980’s.

So, it might seem nervy for Coach Briles to file suit. “Wrongful termination” in itself is not a cause of action recognized in Texas law. But, we can assume that a coach like Mr. Briles, reportedly paid $6 million per year, had a clause in his contract that he could be fired for only good reason or “just cause.” If so, then sure, he could sue for breach of contract. The breach would be in regard to the just cause provision.

So, what would be “wrongful” about his termination? The coach has only spoken once about the firing. He said that he had not seen the evidence used to fire him. He has not seen the Pepper Hamilton law firm report. But, that does not mean the evidence does not exist. Coach Briles and Baylor have already been sued by two alleged rape victims. Those lawsuits alone would be enough to justify most terminations of employees with a “just cause” provision. I find it had to believe Coach Briles truly believes the evidence justifying his termination does not exist. More likely, he is simply trying to get the some sort of settlement with Baylor. It is not an attractive aspect of litigation. But, he is likely betting the school would prefer to settle with him than see dirty laundry posted in court. That is what we call a frivolous lawsuit. It is filed not because it has merit, but because the simple act of filing gives the party some bargaining leverage.

Coach Mike L:each filed suit a few years ago when he was fired. He also argued wrongful termination, among other theories. I wrote about that lawsuit here. But ultimately, his lawsuit lost because state agencies are immune from lawsuits. Baylor does not enjoy similar immunity from suit.

The newspaper report describes Coach Briles’ lawsuit as typical of his “bare knuckled” approach to building a successful football program. It may be bare knuckled. But, it does not acknowledge responsibility for serious lapses on his watch. It also reflects no sense of honor regarding what was essentially his football program.

I find iDonald Trump’s comments about has said about us in Iraq. He has apparently said at least twice that U.S. soldiers were stealing money while deployed in Iraq and Afghanistan. He even mentioned the soldiers who did indeed travel around the country carrying cash. “How stupid are we,” he joked? See Politico report. He said some soldiers are living “high on the hog” now.

Well, ok, first, neither Iraq or Afghanistan had a banking system. They had and still have cash based economies. Cash is the only option. That caused many logistical headaches. Trust me, Mr. Donald, we would love to have been able to make payments by check, or even, debit card. Sigh. There is just so much an army can accomplish in a given time period in a third world country.

Sure, some very few soldiers did steal money. But, at least to my knowledge, most or perhaps all of those convictions were of soldiers who were working back in the relatively safe areas of Kuwait and other Middle East countries. Those soldiers were operating with high dollar contracts.

The people carrying the cash, those were my people. We dealt in CERP money – Commander’s Emergency Response Program. I was a CERP manager of sorts at Division level near Tikrit, Iraq. I did not supervise but did help train the PPO’s – Project Pursing Officers – at the battalion and Brigade level. As the name suggests, CERP was strictly a fly by the seat of your pants operation. We created it when the two wars were started. No one, not one person was trained on CERP before the wars. It was way beyond anything any of us had ever imagined could occur in a war. Yet, there we were spending huge some of money. at Division level, we spent some $90 million per year. At the Brigade level, they were managing budgets of $10-15 million per year. It was a huge amount of money for lieutenants, Staff Sergeants, and Sergeants First Class to be monitoring. But, this was war. War is all about adjusting to the plans and moves by the enemy. We deal with the unexpected. Some famous amatory historian once said, all war plans fail to survive first contact with the enemy. Plans change. So, we had to deal with reconstruction projects.

The Iraq and Afghanistan wars were pubic relations wars. Yes, in theory, we could kill all the bad guys – but only if we could find them. To find them, we needed cooperation from the average Iraqi citizen. To build trust, we had to spend money.

I cannot remember his name. He was a former Brigadier General in Saddam’s army. When I got to Tikrit in 2005, he was now the Deputy Governor for Salahadin Province. He was a key guy in a key province. He told one of the Civil Affairs officers: “I like you. You Americans fix schools and build medical clinics. But, if you stay too long, I will kill you.” We appreciated his honesty. But, he also encapsulated our strategy. If we simply chase bad guys, then we are no better than the British imperialists from a 100 years earlier. We had to prove we were different. It was CERP money and the larger multimillion dollar projects that showed we were different.

We may never know how many U.S. lives were saved by CERP money. CERP was not supposed to be used in a straight tit-for-tat deal. We could not tell a Sheik that if he makes sure no attacks are launched from his tribal controlled area, then he would get a new medical clinic in his town. But, I am sure some deals like that were actually made. As the CERP guy at Division level, I was the one person who as supposed to ensure no such deals were made. We were required to abide by a series of operations orders that required we spend CERP money and any other money in accordance with Civil Affairs doctrine. That meant each reconstruction project had to be sustainable. It could not be a project that would end once the U.S. soldiers left.

The PPO’s had no training on CERP until my predecessor devised a very good three hour block of instruction on CERP. I was the main person to organize the classes. But, the classes required a JAG officer for a small portion, the CERP money manager and I forget the fourth person. We would travel from FOB to FOB giving our class. Apart from the class, I would personally travel to a FOB once a month to check on a project.

Yes, it was possible fro one of the PPO’s to create a nonexistent project and pocket the money. An NCO or young lieutenant could conceivably create on paper a project and pocket the money. The only control on something like was me. I deliberately would pick a random project once a month and ask the PPO to show me that project. I prayed every time that the project would indeed be there. And, thank goodness, those projects were always there. They did exist. But, I checked less that ten percent of the projects. There just was not enough time to check on all these projects. The PPO”s themselves could not check any given project more than a few months. Here in the U.S., when you are the government and you are spending $50,000 to rehabilitate a school, you would check it everyday or close to everyday. In Iraq, we were doing well to check every few months.

The PPO’s had to go outside the wire about 5-6 days per week. They were the brave ones incurring the risk of IED’s everyday. One PPO team I rode with looked back after some 11 months and recounted the number of IED’s they had driven through. They could could recall about half a dozen. The roadside bombs were big, but not big enough to stop the convoy.

Yet, no PPO ever asked me if they really had to go outside the wire to check a project. No one ever even asked if there was a minimum number of checks they had to make. Non one ever suggested they need not go outside the wire as much as they were.

No, the PPO’s never asked about his or her own personal safety. On the contrary, the only fear they conveyed to me in my 12 months was liability. Some were very concerned about getting into trouble for losing money. What could happen to them, they wondered. My lawyer background helped. They would listen to me when I counseled them to follow these CERP procedures and they should be okay. And, I have to add that when I would go outside the wire with these very brave and bright young men and women, you could feel their pride in their projects. They were doing exceptional work in a very constrained environment. I was very proud of all those PPO”s with whom I worked.

Did some of those PPO’s take home some of that CERP money? It was possible. We just did not have the time to implement controls. I heard that yes, early in the war, the pay agents would travel around with backpacks full of cash to pay Iraqi contractors. All the contractors and builders were Iraqi. The minimal level of controls we had were developed slowly with each year of the war. But, in my time, at least, midway through the third year of the war, it was indeed possible for a young sergeant or lieutenant to pocket $5, 10 thousand.

At the time, while wearing the uniform, I would have indeed turned in anyone I found doing that. As I mentioned above, my biggest fear was that we would get to one project and nothing would be there. In fact, I depended on the PPO teams completely when I went outside the wire. If they claimed to be showing me the Mohammed School for Girls school project and it was actually the Ibn School for Boys, I would have no way of knowing that. That is, if they showed me a project other than the one named, I might not have known.

So, Mr. Donald has a point. But, really, from a man who never served, who appears to have no knowledge regarding the limitations of the wars, his comments are quite offensive. Those PPO’s are the ones who could have taken home money. And, those PPO’s had no training, no background for this sort of work. They were exposed to liability issues and physical safety issues for which Mr. Donald has no appreciation. All of us wanted to take care of Uncle Sam’s money. None of us wanted to be subject to investigations after the war. But, even more important, we all wanted to come home with all our fingers and toes. Unless Mr. Trump wants to talk to someone who was there or has actual knowledge of our limitations, he should keep his comments to himself. It is not too late for the candidate to become educated about what it was truly like over there. Until then, in my opinion, he remains an arrogant blowhard.

 

Paul Ryan says Donald Trump’s comments about Judge Curiel are “textbook” racist comments. But, I practice discrimination law and I am not sure what textbook racist comments are. Like most lawyers, I look to pertinent statutes for authority. Title VII of the Civil Rights Act describes discrimination as a personnel action that cannot otherwise be explained and there is evidence indicating race was a motive.

So, looking at the presidential candidate’s remarks that bothered Paul Ryan and others, Donald Trump said Judge Curiel could not be impartial about the Trump University lawsuit because he is “Mexican.” Speaker Ryan felt that statement alone was racist. Well, first, ethnicity is mentioned by Mr. Trump. So, there is evidence that race or ethnic background is an possible motive. Can his reference to the judge’s ethnic background be otherwise explained? No, not really. There is no good reason to mention his ethnicity.

Trump apologists would argue, as many employers would, that Mr. Trump actually meant that because he is Mexican-American, he is likely to oppose Mr. Trump’s plan to build a wall on the border with Mexico. But, that argument would lose. First, any reference to race or ethnic origin is always suspect. Most judges would be suspicious of any defense of a statement which includes a reference to race or ethnic origin. Second,  Judge Curiel’s family comes from Mexico. Their Mexican origin does not necessarily mean he would oppose the wall. Maybe its just my limited experience here in San Antonio, Texas, but I have known a good many conservative Mexican-Americans who oppose illegal immigration. I am sure out of some tens of millions of Mexican-Americans in the U.S., there are surely at least one or two who support in principle the creation of a wall on the border.

So, in the end, if this were a motion for summary judgment against Donald Trump, he would lose. Bringing up someone’s race or ethnic origin in this country is itself questionable. And, sometimes, cases are won or lost simply based on first impressions. We would think a candidate for president would have learned that lesson by now.

John Owens’ information apparently hit a nerve. Within a day of the news report regarding the AG’s refusal to sue Trump University, Ken Paxton’s office has issued a “cease and desist” letter to Mr. Owens. I wrote about that investigation here. The cease and desist letter warns the former head of the consumer protection division not to use documents from the Trump University investigation. The letter claims the information is privileged and confidential. But, Mr. Owens insisted he has not violated any ethical rules or laws. See San Antonio Express News report.

The Express-News report states that records from investigations are usually public after the investigation has concluded. It is strange that years after the investigation has concluded, someone argues that the records are confidential for some reason. What would be the reason? Trump University is closed. It no longer exists. So, it is quite unlikely it might return to Texas and then be re-investigated. So, the cease and desist letter suggests the real concern is more political than legal.

The business plan for Trump University calls for the salesmen to up-sell to more expensive products and ask to see any search warrants. That plan alone suggests Trump University is not what it purports to be. The “university” came to Texas in 2009. Some 30 complaints were lodged with the Better Business Bureau. The Attorney General’s office was interested. Investigators went undercover and attended the seminars. They interviewed dozens of students and requested hundreds of documents. In May 2010, investigators determined the alleged school violated two provisions of the Texas Deceptive Trade Practices Act. The AG’s Consumer Protection office decided evidence supported a lawsuit. They would seek $5.4 million.

Then, it all stopped. Trump University left the state and the suit was dropped. The case was closed and Texas consumers were left “high and dry,” said the former deputy chief for the consumer protection division, John Owen. They were a little shocked at the sudden end, according to Mr. Owen.

The buck stopped with the second-in-charge, Dan Hodge. Mr. Hodge was second only to AG Abbott. Mr. Owen believes Greg Abbott was aware of the recommended lawsuit. Dan Hodge now works as chief-of-staff to Gov. Abbott. Mr. Hodge turned down his staff’s recommendation to file suit. Three years later, Donald Trump, who famously often says that he contributes to politicians for one reason, to gain advantage, gave Greg Abbott $35,000. Mr. Trump had not donated to a Texas politician in years. But, he donated this time, when he apparently thought he would gain some advantage. See San Antonio Express News report.

The former head of the consumer protection division believes the decision not to sue was a political decision. And, as Donald Trump loudly proclaims,. he donates only to buy influence. And, now, Greg Abbott has, of course endorsed the controversial candidate.

Donald Trump, as if to insist that he is indeed racist, attacks the judge in his case for being “Mexican.” One of the lawsuits against the now defunct Trump University was filed in California. The federal judge presiding over the case is Gonzalo Curiel, a Mexican-American judge in San Diego. Don Trump described the Judge as a Trump hater because the candidate wants to deport immigrants. Mr. Trump has lost a few rulings in the case. Most recently, the presidential candidate remarked, he is “Mexican” – which he said was “great – I think its fine.” See CBS news report.

Why does one party need to bring up the race of the judge at all? He could have criticized the judge just as well without noting his ethnic origin. Judge Curiel was actually born in Indiana. But, his parents are from Mexico. And, of course, it should be obvious that when a lawsuit is pending, neither party should ever engage the judge in a personal way like this. Surely, Mr. Trump’s lawyers warned him not to attack the judge publicly. This lawsuit is still pending. It may be that the blunt spoken candidate just cannot keep his thoughts to himself.