Cowboys Owner Apparently Settles Lawsuit

Jerry Jones, owner of the Cowboys, does stay busy. He was accused just a couple of weeks ago of assaulting an exotic dancer, Jana Weckerly. The lawyer for Jerry Jones said she missed the statute of limitations - the deadline by which all suits must be filed. She alleged that the Cowboys owner assaulted her in 2009. if so, then yes, she would have missed the two year statute of limitations by a country mile. But, I am sure, she realized that this sort of a lawsuit, against someone so prominent, does not truly have a time limit. 

According the the recent report, she dismissed her lawsuit just before a hearing on the defendant's motion to dismiss. The defendant, Jerry Jones, claims it was dismissed because of the time issue. But, one report said the hearing was canceled "per the mediator." A mediator is a person who mediates a lawsuit. This cryptic note suggests the lawsuit was settled. The plaintiff's lawyer even claims in a public statement that the plaintiff was not paid any money by Mr. Jones. See San Antonio Express News report (account required). 

Sure, sure. If he paid no money, why would a court, any court grant the motion to dismiss before the hearing? Indeed, how could a court grant the motion to dismiss before the hearing? In Texas state court, a judge could not grant a motion prior to the hearing - unless the plaintiff agreed to such a dismissal. And, the only reason a plaintiff would agree to a dismissal would be for a settlement. 

Only employment cases routinely use confidentiality clauses in settlement agreements. And, now it appears, suits against prominent football team owners also include confidentiality clauses - with elaborate, prepared statements for the press. 

Racism Alive and Well in East Texas

Racism comes in degrees. A wise man once said we are all racist to some degree. Well, one truck driver in East Texas is way off to one degree. On the back of his pick-up truck, he has professionally painted a picture of a a banana and Pres. Obama wearing Somali garb. The tailgate asks if this socialist "a**_ makes his truck look too big. Is the word ass or ape? We do not know. But, yes, this tailgate qualifies as a racist caricature. See San Antonio Express News report

Jimmy John's Requires Non-Compete Agreements

Non-competition agreements have been around for a long time. They have usually been used for saelsmen who have access to cloesly guarded customer lists and to doctors. But, now, they have been uased for hourly employees at a sandwich chain. Jimmy John's has been sued because it requires employees to agree they will not work for another sandwich chain for two years after leaving Jimmy John's. The agreements apply to all of the Jimmy John's 2000 locations. See San Antonio Express News report.

That would significantly affect the ability of a worker to find new employment making sandwiches. For some folks, who live paycheck to paycheck, that is a huge burden. All I can say is some employers have no conscience. 

Court Finds Factual Issues Regarding Accommodations








The ADA Amendments Act was passed in 2009. Since then, courts have addressed more fundamental questions about disability claims, such as what are the essential functions of a job and how can they be accommodated? On one such case, Perez v. Sprint/United Management Co., 2013 WL 6970898, No. 12-CV-3161 (N.D. Ga 12/19/2013), the court denied summary judgment and found that there was factual dispute regarding whether the employee could perform the essential functions of the job. Gilbert Perez was a systems engineer in charge of setting up presentations for other workers. He was diagnosed with bilateral ankle degenerative joint disease. As it worsened, the pain increased. He started using a cane and was then fired.

The court accepted the employer's claims regarding what the essential functions of the job included. So, the question remaining was whether the plaintiff could perform those functions. The plaintiff argued that he could perform those essential functions without accommodation. The employer argued he could not perform those functions with or without accommodation. 

The court found there was a genuine factual dispute based on the plaintiff's own testimony, and on the lack of any write-ups on the plaintiff regarding his job performance. The court also noted that co-workers testified that Mr. Perez could perform the functions of his job without change. He could still, climb ladders, for example. The plaintiff was helped occasionally, but said one co-worker, it was common for workers to help each other. 

The court also noted that when Mr. Perez applied for short term disability benefits, the policy management group denied his claim, saying his disability was not serious enough. The jury, said the court, was entitled to conclude from this finding that his disability was not serious. 

The employer did not adequately investigate Mr. Perez' medical condition, said the court. So, the employer did not perform an individualized assessment of his request for accommodations. 

The court also found direct evidence of discrimination. A supervisor had wanted to say that Mr. Perez would be fired because he was medically unable to do his job. HR recommended different language, but the intent was still apparent. The court also found there were sufficient facts indicating this statement was pretext. That is, the plaintiff could actually do his job, but the employer was fabricating. Since, there were no write-ups regarding his performance. It was also possible that the doctor's explanation was not that Mr. Perez could not perform the job, but that the doctor was simply suggesting possible accommodations. And, noted the court, HR advised the supervisor in an email that she remove any references to the plaintiff's medical condition from Mr. Perez' file. 

Later, at trial, Mr. Perez was awarded $125,250 by a jury. Still pending is a request for front pay, and attorney's fees. 

Note that the court accepted the Plaintiff's version of the need for accommodations, as it should. The court found fault with the employer for not having documented any perceived performance problems and for not looking into his medical documentation. The employer could have asked for more information if it did not understand the doctor's notes. And, it is almost always a sure loser to claim after-the-fact performance issues. 

Note also that a few co-workers testified for Mr. Perez. It is rare to have that sort of support at trial or summary judgment. The presence of co-workers implicitly risking their own jobs to testify for a co-worker has a powerful effect. 

EEOC Finds Evidence of Discrimination at City of San Antonio

Well, I guess it is going to snow this coming July, or at least in March. The EEOC has found in favor of an employee. They have found evidence of discrimination. Finding in favor of the employee may not be as rare as snow in July, but it does approach the rarity of snow in March. Two employees of the Animal Care Services for the City of San Antonio filed claims saying they were paid less than male workers who preformed the same work. 

Christine Peden and Jeanne Martinez filed claims based on the Equal Pay Act. The City responded that the salaries were based on a variety of factors. It said raises were limited to to 5% and that new hires would only receive minimum wage. But, later they admitted that on occasion, the City would make an exception. The City did make an exception for one male manager. The EEOC found that change in its response to amount to pretext. Even worse, the City disciplined the two women for discussing wages. They were counseled in writing for spreading "rumors, gossip" and helping create dissension. See San Antonio Express News report here (account required). 

The thing about wage issues is workers cannot know what others make without engaging in some form of "gossip." So, disciplining workers for engaging in such discussions is prohibited by a few statutes. It was exceedingly unwise for the manager to discipline them for discussing wage issues. 

Equal Pay Act claims are notoriously difficult. See one of my prior posts about the EPA here. But, it looks like the City made a difficult case much easier for these two women. 

Discrimination Cases Present Many Obstacles




Courtesy of creationc

Employment cases are exceedingly difficult, with numerous deadlines and traps for the unwary. We see some of these traps in the case of Prewitt v. Continental Automotive, No. 12-CV-582 (W.D. Tex. 8/28/2014). In this case, Larry Prewitt alleged that he had been terminated due to several reasons: race discrimination, national origin, disability, age, sex and retaliation for opposing discriminatory practices. But, said the court in ruling on the emplpyer's motion to dismiss, the Plaintiff did not exhaust administrative remedies on the national origin, age, sex and disability claims.The court reached this result in 2013. That left claims based on race and retaliation. 

Every worker who wishes to file suit alleging discrimination must first file a claim with the Equal Employment Opportunity Commission. The EEOC will then issue a right-to-sue letter and the worker can then file suit. But, Mr. Prewitt filed three different charges with the EEOC over a period of a few years. He did not file suit until the last charge had been released by the EEOC. In the first two charges, he alleged national origin, age and disability. So when he finally filed suit in 2012, he was long past the deadline to file suit on those first two charges. So, he did not exhaust administrative remedies on those first two complaints. 

Practice pointer: It is very unwise to file a claim alleging the "kitchen sink." Basing a discrimination claim on multiple bases, such as age, race, national origin, disability, etc. suggests speculation or even desperation. It is much more effective to focus on one or two claims, which should be the stronger claims. When a plaintiff alleges everything but the kitchen sink, all of the claims will look weak. 

The third EEOC charge included the claims based on race discrimination and retaliation. So, the court addressed those allegations. The race claim was not plausible, said the court. The Plaintiff's own allegations claimed he was fired because he took too many absences. The factual allegations of his Complaint nowhere indicated his termination was due in some way to his race. The court allowed the plaintiff to amend his complaint to fix that inconsistency.  

Practice pointer: The Plaintiff is white. He was claiming that he was fired due to his white race. I am not saying Caucasian based claims are impossible. But, they are more difficult than other claims. It would have been better to drop that claim at some point.  

A year later, the Defendant then moved for summary judgment on the remaining claims, race discrimination and retaliation. The Plaintiff filed a response to the motion that was too long. It violated local rules on page length - without seeking court permission to do so. So, the court struck that reply. The Plaintiff then filed a "sur reply" to the motion for summary judgment. The Plaintiff did so without the court's permission. Filing a sur reply (i.e., an "extra" reply) without the court's permission violates local rules. So, the court also struck the sur reply. 

During oral argument on the motion for summary judgment, Plaintiff admitted in court that he lacked evidence for a race based claim. So, the court granted summary judgment as to that claim.

Inexplicably, the Plaintiff also argued that Mr. Prewitt was fired due to his disability. The disability claim, however, had been expressly rejected a year earlier when the court ruled on the motion to dismiss. 

Regarding the retaliation claim, the court noted that the employer argued it had terminated the worker because he violated the attendance policy. The Plaintiff had ten attendance "events." That is, he had ten occasions in which he was absent and allegedly did not follow attendance protocol. The Plaintiff responded that on one of those attendance events, he had received permission to be absent. That absence should not have been counted, said the Plaintiff. Thus, he was arguing that the employer's explanation lacked credibility. The court found that argument created sufficient issue of fact and denied summary judgment regarding the retaliation claim. So, the retaliation claim remained. 

A week later, the Defendant then filed a motion to reconsider, which the court accepted as a second motion for summary judgment. In this second motion for summary judgment, the employer argued that a manager could not grant permission for an absence. The employee's testimony to the contrary was wrong, in effect. The manager could not have allowed Mr. Prewitt to leave work early that day, since the attendance policy requires 24 hour notice for any absence. The manager's permission did not matter. And, the employer claimed that the event to which Plaintiff referred did not happen on the day Plaintiff claimed. Plaintiff claimed he was allowed to leave work early one day in August. The employer claimed that according to its records, it could not have been in August. 

The Plaintiff then responded by changing his testimony. He submitted a new affidavit in which he changed the month from August to July. But, said the court, Plaintiff did not contradict the manager's affidavit that a manager could not override the Continental attendance policy. 

Comment: I am not so sure. Did not Mr. Prewitt implicitly contradict the manager when Mr. Prewitt said the manager did allow him to leave early that day? 

But, said the court, in the end, the Plaintiff did not present "competent" evidence regarding when he was allowed to leave work early. It could have been one of the ten attendance events, or not. The court suggested that it was mere "conjecture" on the Plaintiff's part when that attendance event occurred. 

The Plaintiff submitted evidence that the time-keeping system at Continental was flawed and not accurate. But, noted the court, none of that evidence explicitly contradicted one of those ten attendance events for which he and been fired.  So, the granted summary judgment regarding the one surviving claim, retaliation.

Later, the Plaintiff submitted a motion for new trial on his own. He filed this motion without a lawyer. But, unfortunately, pro se motions rarely succeed. That motion is still pending. 

Discrimination cases are not easy. They present many traps for the unwary. The best plaintiffs are the ones who file suit reluctantly, perhaps very reluctantly. Alleging too many bases of discrimination at the outset will color everything that comes afterward. 

Juries are Unpredictable

I try to warn clients all the time that juries are fickle. A party can have the best evidence and still lose. One recent case illustrates that reality. In Alexander v. Servisair, LLC, No. H-12-817 (S.D. Tex. 2013), the plaintiff alleged that she had been terminated for pursuing her rights to sick leave under the Family Medical Leave Act. Darlene Alexander was out on extended FMLA leave when the employer fired her. The employer claimed she had failed to return to work and had abandoned her job. Yet, she had submitted the proper FMLA paper work and had been approved for leave. The case ought to be "open and shut." The employer fired her for a clearly false reason while she was still out on FMLA leave. 

After a two day trial, the jury found that the employer did indeed interfere with the employee's attempt to take leave. It found the employer did not act in good faith in dealing with the employee's request for sick leave. Yet, the jury awarded a mere $1 in damages. 

The employee presented undisputed evidence that she had lost $37,000 in income due to the employer's termination. The jury found the employer did not act in good faith in terminating Ms. Alexander. So, it should have awarded liquidated damages equal to the amount of the lost pay. So, the jury should have awarded $37,000 twice, once for lost pay and once for liquidated damages. And, the employer presented no evidence suggesting the plaintiff did not mitigate her damages. Yet, the jury only awarded $1 in damages. It is a crazy verdict that makes little sense. 

Responding to a motion by the plaintiff, the judge later awarded $37,000 in lost pay and another $37,000 in liquidated damages. The judge also awarded some $92,000 in attorney's fees. The judge, in effect, rectified the jury's error. But, the employer has appealed. 

We like to think that juries consider carefully each case that comes before it. But, in reality, many jury members do not wish to be in court. They have many other obligations. Perhaps, some jurors traded a vote of "Yes" on a couple of questions, so they could all go home more quickly. That is so unfortunate. Jury duty is one of our hallmarks as citizens of a great Republic. We need to give jury duty the respect it deserves. 

Cher is Sued for Discrimination

Three back-up dancers have filed suit against Cher. They claim she fired them because they are African-American. Cher's tour, "Dressed to Kill," has been very successful. But, she reportedly said her back-up dancers had too much color. She allegedly told choreographer, Kevin Wilson, not to hire any more dark skinned dancers. The lawsuit was filed by three long-time dancers on her tours, Kevin Wilson, Suzanne Easter and Jacquelyn Dowlett Ballinger. The three dancers were fired last July. See CBS News report

According to their lawyer, these dancers have backed up Cher for over a decade. if so, their claims should be taken seriously. If Cher is trying to appeal to a certain audience, that will not excuse her actions. Title VII of the Civil Rights Act does not allow any retail merchant to discriminate in an effort to please some customers. Customer preference was rejected as a defense decades ago in Title VII jurisprudence. 

Lawyer Blames Leisure Lifestyle for Sanctions

Every lawyer is like a small business. We can decide when and what to say to judges, clients and opposing lawyers . . .  until someone reports our conduct. A New Jersey lawyer learned that lesson the hard way recently. Jared Stolz was disciplined by the New Jersey Supreme Court after he sent emails to the opposing lawyer with comments such as these:

  • "Don't feel you have to email me daily and let me know how smart you are."
  •  "Did you get beat up in school a lot? Because you whine like a little girl."
  • "This will acknowledge receipt of your numerous emails, faxes and letters . . . In response thereto, Bla Bla Bla Bla Bla Bla."

At the conclusion of a hearing, physical contact occurred between Mr. Stolz and the opposing lawyer. The lawyer told Mr. Stolz not to touch him. Mr. Stolz allegedly responded, "Why would I want to touch a fag like you?"

Mr. Stolz explains now that he was too lazy to work and that he enjoyed a golf trip with his father to Ireland and another trip to the Dominican Republic during this time period. Later, at an ethics hearing, Mr. Stolz described his actions as inexcusable, undignified and "venomous." He said he worked his way up to managing director while working in a cubicle and now, he wants to play golf. 

Mr. Stolz also told a court he had received certain certifications, when in fact, he had not. In reality, said the New Jersey Supreme Court, he was out of the office and may have missed the certifications. He simply did not want to admit that he had been out of the office for an extended period of time. 

He insists he mis-spoke and did not intend to lie to the court. He says he was very busy at the time with a lot of motions. Mr. Stolz explained that now, he reviews everything. He has two lawyers to help him review everything. "Am I going to get lazy again and play golf? I hope so. But, I certainly did not intentionally lie."

Mr. Stolz was suspended for three months. See ABA Bar Journal report

Flexible Work Schedule Can be a Reasonable Accommodation

I have written before about flexible work schedules. See my prior posts here and here. Sometimes, a worker with a disability will need a flexible work schedule as an accommodation. Recently, the District of Columbia Court of Appeals has affirmed that yes, flexible work schedules can be a reasonable accommodation. In Solomon v. Vilsack, No. 12-5123, 2014 U.S.App. LEXIS 15671 (D.C. Cir. 8/15/2014), a female worker suffered from depression since the 1980's. In 2003 and 2004, she sought and did use a flexible work schedule as an accommodation. She would arrive late for work and stay late on those days when her condition worsened. She provided medical documentation requesting that flexible work schedule.

But, in late 2004, the Agency told her she could no longer work flexible hours. Ms. Solomon's condition intensified such that she could not return to work. She filed suit under the Rehabilitation Act, 29 U.S.C. §791(b), an act which applies ADA standards. 

The district court initially granted summary judgment because the Plaintiff was receiving disability income benefits. On appeal, that summary judgment was overturned, because applications for SSDI are not inconsistent with the claim that a worker could work if she had the necessary accommodations. 

On remand to the lower court, the district court granted summary judgment, again. This time, the lower court granted summary judgment on the grounds that working a certain schedule is a requirement for any job. The lower court found that her request for a flexible work schedule as an accommodation was unreasonable as a matter of law. This decision overturns that second summary judgment. 

The Agency argued, and the lower court accepted, that working a regular and predictable schedule is an necessary element of any job. But, noted the D.C. Circuit, the ADA and the Rehabilitation Act expressly provide that re-structuring of a job or modified work schedules may serve as reasonable accommodations. Other courts have agreed. See McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013); Ward v. Massachusetts Health Research Ins., Inc., 209 F.3d 29, 34-35 (1st Cir. 2000); EEOC v. Ford Motor Co., 752 F.3d 634, 641 (6th Cir. 2014). Instead, the court should conduct a fact intensive inquiry regarding whether this particular job requires an employee to be present everyday at a certain time. Some jobs may require a set schedule, but other jobs do not.

The Agency argued that Ms. Solomon's job involved shirt, tight deadlines. But, the Plaintiff responded that short deadlines were rare. Indeed, she argued that she had met every single deadline through 2004 by working a flexible work schedule. The lower court dismissed her claim surmising that was due more to luck than to her work habits. But, said the appellate court, the district court should not engage in surmising when deciding summary judgment. "Summary judgment cannot rest on such speculation about the evidence," said the D.C. Circuit.  

 Not all jobs require daily attendance. And, not all jobs require set, certain schedules. In resolving requests for accommodations, the employers and the courts must get into the "weeds" of these decisions. See decision here