Rejection by the EEOC Means Nothing

The EEOC received some 93,727 charges of discrimination last year. Locally, each EEOC investigator carries a case load of 75-95 cases per year. Those numbers indicate very little time is devoted to actual investigation. The open secret is that the EEOC conducts very few true investigations. Yet, many folks still think that when the EEOC rejects a case, that rejection means something. 

Several years ago, I had to laugh when a management oriented lawyer suggested the EEOC might be "on the hunt" for some particular employer. See prior post here. As I mentioned then, I once heard a federal Judge chastise a government lawyer for suggesting that since the EEOC had rejected my client's case, then the case must be weak. No, insisted the judge, "we" get these cases all the time because the EEOC does nothing to to investigate and resolve possibly meritorious cases. 

In reality, most employers fear very little from the EEOC. Not because the EEOC lacks teeth, but because they are so overburdened with complaints of discrimination. They can effectively investigate only a handful of cases. So, when an annoyed employer tells me my client's case is baseless and he knows this because the EEOC said so, I just smile. Much the same way I smile when No. 2 son would claim No. 1 son ate that last cookie....

San Antonio Lawyer Sought Death of Former Office Manager

Yes, these things really do happen. I just uttered those words a few days ago and then come this story about a local lawyer who asked a client to kill his former office manager. Paul Andrews, a San Antonio lawyer, wanted to kill his former office manager, according to a report in the San Antonio Express News. The former office manager, Maryann Uribe, is the main witness against him in a barratry lawsuit. Barratry refers to the crime of soliciting clients. The Texas legislature made barratry lawsuits economically attractive a few years ago by allowing some percentage of any recovery for the person bringing such a lawsuit. So, now barratry lawsuits are economically viable.

The lawsuit against Mr. Andrews is currently pending in Nueces County. Mr. Andrews has offices in Corpus Christi and in San Antonio. The lawsuit has been ongoing for three years now in a few different counties. 

Mr. Andrews, according to the report, offered a client a discount on his attorney fee for a case, if he would perform a favor for him. Mr. Andrews explained that this was the best way to pay the client without leaving a paper trail. Mr. Andrews indicated to the client that he would not mind if Ms. Uribe was run over by a car or killed. Mr. Andrews was recorded while affirming his desire to have Ms. Uribe killed. 

Yes, these things do happen. Those crazy episodes on Boston Legal - the ones I always described as so unrealistic - reflected more reality than I realized. 

Judge Dismisses Texas Lawsuit Against EEOC

In 2012, the EEOC issued guidance to employers regarding criminal background checks. Criminal background checks can have a disproportionate impact on minorities. The EEOC's goal was to help employers avoid a blanket rule prohibiting hiring folks with criminal records. In 2013, the state of Texas, filed suit against the EEOC to enjoin the implementation of the new rules. See State of Texas v. EEOC, No.13-CV-00255 (N.D. Tex.). The Texas Attorney General's Office (Greg Abbott) referred to the new rules as the "felon hiring rule." Yes, Greg Abbott filed yet another frivolous lawsuit. I previously wrote about his frivolous lawsuits here and here

Earlier this week, U.S. Federal Judge Sam Cummings, in Lubbock, dismissed the suit saying there is no case or controversy. That is a term meaning there is no valid dispute. See order here.  As the EEOC explained in April, the guidance is just that, guidance. EEOC guidance does not and never has constituted a "rule." See Lubbock media report. The EEOC has issued such "guidance" regarding many types of discrimination. They serve as guide lines, but are not binding on any employer. They serve as interpretations of discrimination statutes. Some are followed by courts. Some are not. 

Greg Abbott has lost another case. But, he has probably helped his campaign just a bit. Now, he can say once again, "I wake up, I sue the federal government, and then I go home."

San Antonio lawyer Represenetd Both Parties to a Lawsuit

If true, this lawyer deserves the award for the most moxie. According to a recent San Antonio Express News report, Andrew Toscano in effect represented both sides to a lawsuit. In a personal injury lawsuit, R.D. Galvan and Luciano Morin sued the Chili's Restaurant chain after the two men were in an automobile wreck. The two had consumed alcoholic drinks at the restaurant shortly before a one-car accident. Mr. Galvan was supposedly represented by Michael De La Paz. He thought he was suing the restaurant. But, in reality Mr. Galvan had sued and then been counter-sued by his friend, Luciano Morin. 

The restaurant is in Pleasanton. Yet, the suit was filed some 150 miles away in Duval County, one of the places personal injury lawyers love to file suit. 

Mr. Toscano denies ever having represented Mr. Galvan. But, Mr. Galvan says he signed a contract hiring the Toscano law firm. Michael De La Paz shared office space with Mr. Toscano at the time. Mr. Galvan's current lawyer believes Mr. Toscano and Mr. De La Paz cooked up this scheme to file the suit in Duval County and extract money from Chili's and Mr. Galvan's insurance company. Mr. Galvan's new lawyer says the worst part was that representing Mr. Morin, Mr. Toscano claimed in legal pleadings that Mr. Galvan was driving the company truck. Yet, the police report and Mr. Galvan's own statement said Mr. Morin was driving the truck. 

Eventually, Chili's settled the claim that it had served the two men too much alcohol for $300,000. That money is now being held in the registry of the court and is being disputed. 

Yes, these things really do happen. 

Loser Pays Winner's Court Costs and, Sometimes More





courtesy of creation c

Yes, a plaintiff in an employment lawsuit can be hit with an award of attorney's fees. In federal court, the losing party is almost always ordered to pay the other side's court costs.  And, yes, if the plaintiff is found to have filed a "frivolous" lawsuit, then the plaintiff (ie, the employee) can be ordered to pay the defendant's (employer's) attorney's fees.  A couple of years ago, the EEOC was ordered to pay $4.5 million in attorney's fees to the employer. It us unusual, at least in the Western District Of Texas for a judge to find a plaintiff's case to be frivolous. And, there is some unfairness in the whole process, since frequently, the employer's defense is very frivolous.  

But, a plaintiff should always have enough evidence to avoid charges of frivolousness. Factors that help show frivolous include poor investigation prior to suit. The EEOC would be held to a higher burden since they are supposed to conduct an actual investigation of all charges of discrimination long before filing suit. Everyone knows the EEOC usually does not conduct an actual investigation.  Unlike private plaintiff lawyers, the EEOC actually has the tools, subpoena power, etc. with which to conduct a real investigation.

Other factors indicating "frivolous" include having enough evidence to defeat summary judgment, or at least, make summary (i.e., quick) judgment a close call.  if a plaintiff does not have enough evidence to get past the summary judgment hurdle, then s/he really should not be filing suit. 

I try to always tell my employee clients that they too could be hit with an award of attorney's fees in federal court. That is a real risk in every discrimination lawsuit. And, as mentioned above, in every federal lawsuit, the losing side will almost always be ordered to pay the other side's court costs. Court costs can amount to $5,000 or more. Think before you leap. 

PM Al-Maliki Just Cannot Let Go

I have to say, I find it fascinating that the Iraq Prime Minister will not give up his seat for the good of his country. He persists in holding onto his seat with clenched teeth, despite his own party turning away from him. See CBS news report. When we were in Iraq, we, the USA forces, strove mightily from the lowest rungs of the political ladder to the upper most rungs, to "coach" the Iraqis to be more inclusive and to explore the art of the compromise. Not every disagreement needs to be settled with the wrong end of a rifle. 

But, it is impressive that the President nominated the deputy speaker of the Parliament to serve as Prime Minister. Some of our lessons apparently took hold. 

During my time in Iraq in 2005-2006, we were struck at how long it took the Iraqi Parliament to form a new government after their first elections. That scenario has since played itself out again. Political compromise is so very hard for folks who are untrained and unschooled in democracy. Skills we learn in high school fishing clubs are still very new to so many Iraqis. Those high school clubs serve an important purpose. They often serve as our introduction to democracy. But, in Iraq, prior to 2003, everything was dictated by a central government. 

While on the subject of Iraq, I will add that is is disheartening to see much of the facilities and institutions we built being wasted. How hard we worked to connect the oil refinery in Bayji with Baghdad. How many times we briefed the status of the all-important power lines between Mosul, Tikrit and Baghdad. Now, none of that matters because ISIS controls everything between Mosul and Tikrit. 

We gave the Iraqis the tools to form a country. But, it is up to them to hang onto that country. Or not. 

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Less than 15 Employees = Freedom to Discriminate?

Title VII of the Civil Rights act of 1964 prohibits discrimination based on sex, color, religion, and national (ethnic) origin. Other statutes prohibit discrimination based on age and disability. For Title VII to apply to your company, you must have 15 or more employees. See EEOC fact sheet. For the Age Discrimination in Employment Act to apply, you must have 20 or more employees.  That means thousands of small employers are not covered by Title VII or the other discrimination statutes.  

The intent was to not burden smaller employers, the "mom and pop" businesses out there who employ a huge percentage of workers. That is probably a good thing. But, if you are being discriminated against by one of these employers, then that is not such a good thing. A young man came to see me, once. He had a steady girlfriend, someone he cared about very much. But, his older female boss and sole proprietor kept "making moves" on him. She just would not stop. He was very upset. He loved his work. But, this steady pressure to cooperate was taking a toll.  I had to break the bad news to him. Even with part-time employees, they were way short of 15 employees.  

He left my office knowing he would have to quit or risk losing his job when he was not ready for it. Plus, his girlfriend was not happy with him for staying there as long as he had.  

In a perfect world, we would all lose or keep our jobs based on our merit.  But, in this world, we often lose or keep jobs through no fault of our own.  Welcome to free (or semi-free) enterprise......

The Missing Right-to-Sue Letters

I wish I had a dollar for everytime this has happened here in San Antonio or especially across the country. A person came to see me who did not receive his "right-to-sue letter" from the EEOC. It was sent four months ago, but he just now found out about it. He contacted the EEOC to get a status report and learned of his right-to-sue letter. Across the country, this happens many times, perhaps dozens, each year. It has been a problem ever since some time in the 1970's when the EEOC stopped sending right-to-sue letters certified. Many folks, terminated from their job, must move to cheaper living arrangements or, perhaps to a new job. The employee may forget to notify the EEOC about an address change. Or, the EEOC may lose track of the address change. 

Invariably, the Charging Party (the employee filing the complaint) responds to this problem by going to the EEOC and asking them to rescind the first RTS letter and issue a new one. Most regional offices refuse to do so. They point to their log which says they mailed the letter. The EEOC offers no solution. The employee is stuck.

A right-to-sue letter refers to the Dismissal and Notice of Rights. The EEOC sends these right-to-sue letters at the conclusion of its supposed investigation. The Notice notifies the Charging Party that s/he must file their lawsuit within 90 days. See EEOC explanation of the lawsuit process.  If you miss the 90 days, your rights to file suit in federal court are waived forever.  

There may be ways around the missing right-to-sue letter. That is, there may be other causes of action available for certain types of discrimination.  But, discrimination cases are difficult enough without having statute of limitation (deadline to file suit) issues floating around.  

Signing Only Means You Received the Written Warning

Employers, if they are doing their job, should counsel an employee in writing for a serious offense. Part of that counseling is the need to verify that the employee has received the written warning and understands it. That is why the employer will ask the employee to sign the disciplinary warning. Signing does *not* mean you agree with it. It only means you have received the warning.  

A good website, www.canmybossdothat, explains this and more. See that information here.

When you do get a written warning, if you can, you want to add a brief sentence or two about your side of the story. Add your story and then sign it. Ask for a copy of the write-up if a copy is not offered. 

Worker Happiness Leads to Higher Profits

A recent study indicates that happy workers are good for profits. The challenge in this study is that successful companies may result in happier employees. Or, is it the other way around, do happy employees lead to successful companies? The study looked at the annual list of best companies to work for. These lists are published in 14 different countries. The study looked at the effect of such rankings on stock value. Stock value increases for companies after they are listed on the list of best companies to work for. See CBS News report

So, finds the study, companies do benefit to some extent from investing in worker happiness. The study is contained in a paper, "Employee Satisfaction Labor Market Flexibility, and Stock Returns Around the World," by Alex Edmans, Lucius Li, and Chendi Zhang. See summary of the paper here. Mr. Edmans is currently teaching at the London School of Business.