Pres. Obama updated the rules on overtime. He essentially brought them forward to allow for inflation. I wrote about that change in the overtime rules here and here. Well, now many states and business groups are filing suit to stop the changes. Of course, Ken Paxton and Texas are one of the leaders of the lawsuit. See San Antonio Express News report. Otherwise, the new rules would go into effect on December 1, 2016.

Judge Walter Smith, a Federal judge in Waco, was reprimanded by the Fifth Circuit last year for unwanted sexual advances on one of his employees back in 1998. I wrote about that reprimand here. Judge Smith has now retired. Apparently, the investigation into whether he made advances on other women over the years will continue. A federal judicial conduct committee met last July and found that the sanctions imposed against Judge Smith may not have gone far enough. The lawyer involved in the first complaint, Ty Clevenger, appealed the Fifth Circuit’s sanctions to the judicial conduct committee. As part of his appeal, he submitted the names of other courthouse employees who had been harassed by Judge Smith.

It turns out that during the initial investigation, Judge Smith failed to mention that the lawyer defending him had cases pending in Judge Smith’s court. That poses problems for Judge Smith and his defense lawyer. And, Ty Clevenger has his own legal issues. He has filed numerous complaints against judges and lawyers for years. He maintains a judge blog, He was sanctioned by a Washington, D.C. judge and fined $120,000. An action to disbar him is pending in the District of Columbia. Judge Smith sanctioned Mr. Clevenger seven years ago for filing a frivolous lawsuit. He fined him $25,000. See Waco Tribune-Herald report.

The frightening thing for lawyers who do what I do is that he granted summary judgment in one of my discrimination cases many years ago. What do victims of discrimination do when the fox is guarding the hen-house?

Settling a case is not easy. The hardest part is simply looking at your own case objectively and trying to put a number to its value. When we sell cars, there are sources of valuation of cars. But, valuation of lawsuits is generally based on results from other similar cases. But, the thing is no two cases are truly alike. There are innumerable variations from one lawsuit to another. So, perhaps, it is not too surprising what happened in one case involving Target in South Carolina.

A customer’s daughter found a hypodermic needle in the parking lot. She picked it up. Her mother reached to swat it away and stuck herself. She sued Target. She had to take medication for possible HIV infection. Her husband had to take some time off from work. The medication made her ill. This is not the sort of lawsuit with thousands and thousands of dollars in medical bills.

Just before trial, the plaintiff offered to settle the case for $12,000. Target responded with an offer of $750. The case did not settle. The jury awarded the plaintiff $4.6 million. Oops. That $12,000 offer is looking pretty good, now. There is a cap on punitive damages. So, the award will be reduced somewhat. But, Target is surely now wishing it could go back in time. See ABA Bar Journal report.

More and more employers are relying on staffing agencies to fill certain jobs. But, many employers retain so much control that they remain the employers in all but name. So, if the client employer is the employer in fact, what would be the status of the staffing agency? The Fifth Circuit addresses that issue in Nicholson v. Securitas Security Services USA, Inc., No. 15-10582 (7/18/2016). Helen Nicholson sued both the staffing agency, Securitas, and the client employer, Fidelity. But, Fidelity settled early in the lawsuit. Securitas moved for summary judgment, which was granted. Ms. Nicholson was a receptionist for Fidelity. She was 83 years of age. She was well-liked in that position. Yet, Fidelity asked that she be removed. Securitas placed a 29 year old woman in her place. Securitas then claims it could not find another position for Ms. Nicholson and she was terminated ten days later. The employee filed suit for age discrimination.

Securitas first claims it was not Ms. Nicholson’s employer. Yet, the contract it signed with the employee clearly identifies Securitas as her employer. And, in its answer to the Plaintiff’s Complaint, the staffing agency alleged that it was her employer. So, the higher court did not apply the “right to control” test. It simply found that the employer had already admitted it was her employer.

The discussion then turns to the evidence of pretext. Securitas argued that it was not aware of any discrimination by Fidelity. Fidelity simply asked them to place someone else in the position. Securitas management testified they they never questioned a client employer. But, the Fifth Circuit, relying on its decision in Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015), noted that a staffing agency participates in a discriminatory action if it knew or should have known about the discrimination. I previously wrote about the decision in Burton here.

The plaintiff conceded in her brief that she had no evidence that Securitas knew Fidelity’s action was based on a discriminatory motive. Instead, she argued that Securitas should have known the action was discriminatory. The plaintiff pointed out Securitas’ own policies which require counseling for substandard performance. There was no counseling when Fidelity asked that Ms. Nicholson be removed. Too, there was no investigation as to the reasons for the move. Securitas management did not ask why the move was necessary. Although, the Securitas manager also testified that it should look into the reasons for a complaint. The manager said they should “verify” the reason for a termination. So, construing the evidence in favor of the non-movant, Securitas failed to follow its own procedures in looking into the reason for the change in receptionist. So, the court reversed the summary judgment as to the age claim and the request by by Fidelity to move Ms. Nicholson.

Regarding the termination by Securitas, the court affirmed summary judgment. Ms. Nicholson was fired essentially because she did not obtain her security card and she testified she could not see herself performing a traditional security position. See the Fifth Circuit decision here.


Andrea Tantaros, has sued Fox News for sexual harassment. I wrote about that suit here. Now, Fox News has asked that her case be sent to arbitration with the American Arbitration Association. In effect, it is asking that her case be sent to the secret, Star chamber of American society. But, in so doing, they first lodge some pretty strong attacks against her. In its motion to refer to arbitration, the news outlet accuses her of not recalling the specific instances of sexual harassment; it claims the men involved all denied her claims; it claims she did not allow Fox News to review the cover of her book before she published it; and it claims her lawsuit is littered with falsehoods. It is ironic that a major employer seeks the privacy of arbitration, but only after first lodging accusations which she can only defend in private. See Vanity Fair report about the allegations against her and the move to arbitration.

Gretchen Carlson has settled her sex harassment case for $20 million and a public apology. See CNN news report. Fox News paid a portion and according to one report, so did Roger Ailes. It is one of the largest settlements ever for one person in a discrimination lawsuit. It also included a public apology. Fox News also settled with other women who lodged complaints for much smaller amounts.

Ms. Carlson’s case was settled before any motion for summary judgment or to dismiss. Ms. Carlson was said to have recordings of her encounters with Mr. Ailes. That would help explain the speed and size of this settlement.The settlement is also remarkable because Fox News settled the case. Fox News was not sued. To avoid the terms of a non-compete agreement, Ms. Carlson actually sued Roger Ailes.

Every Plaintiff’s lawyer in the country will draw a breath, not because this is such a large amount, but because now every client will ask why they cannot ask for $20 million. What makes her case worth so much is any alleged tape recordings and her high income. Doubtless, she was paid in the mid to high six figures. So, her lost income will be quite high. And, with this sort of notoriety, she will probably have trouble working as a news anchor for the foreseeable future.

The Seventh Circuit in Chicago has issued a remarkable decision,. In Ortiz v. Werner Enterprises, Inc., No. 15-2574, the three judge panel overturned a series of cases regarding a so-called “convincing mosaic” test. The decision starts as a normal three judge panel decision discussing Mr. Ortiz and his summary judgment. The lower court granted summary judgment finding that the evidence did not present a “convincing mosaic” of evidence to suggest discrimination. The lower court parsed the evidence, looking at the evidence separately as a direct evidence case and as a indirect evidence case. The lower court said the plaintiff’s evidence failed under either method of proof.

But, the higher court pointed out that it never intended the “convincing mosaic” test to even be a test. It intended the mosaic rationale to simply explain that all evidence is pertinent and that it was non-sensical to separate evidence into an indirect method of proof and a direct method of proof. “All the evidence,” said the court, “belongs in a single pile and must be evaluated as a whole.” Discrimination cases are inherently complicated. Simplistic rationales do not work.

In the opinion authored by Judge Easterbrook, joined by Posner and Hamilton, they correctly point out that the so-called indirect method of proof, forever enshrined in McDonnell-Douglas, is an artificial construct. The evidence, says the panel, should be reviewed in total. Indeed, in this case, Mr. Ortiz was subjected to the vilest anti-Hispanic slurs possible, “beaner,” “taco eater,” “dumb Mexican,” “Puerto Rican,” etc. The employer claimed he was fired for violating company policies. But, numerous co-workers testified via depositions and declarations that what Mr. Ortiz did was the company norm. And, the employer could not point to a written policy that supported its assertion.

Seriously, one has to wonder how a district court judge could grant summary judgment when the employee presents such clear displays of racial animus. The lower court apparently said the slurs had nothing to do with his discharge. But, one has to wonder how a judge could ever make such determination. If something ever cried out for jury assessment, it would be the use of such slurs.

The higher court, however, had a greater point. The district court should have looked at the evidence in total and not separate the inquiry into a direct evidence type of proof and an indirect type. Indeed, it expressly overruled several panel decisions that has used the “convincing mosaic” test incorrectly. Not being an en banc decision, the panel solicited the opinion of all the judges in active service before issuing the Ortiz decision. Normally, only an en banc court could overrule a panel decisions. The Oritiz court avoided this en banc requirement by soliciting the opinion of all the members of the Seventh Court. That is a remarkable approach. The Seventh Circuit has made a significant step toward clearing up the widespread confusion over the McDonnell-Douglas test. See the decision here.

So, just a few days after he made racial comments, Louis Agnese, President of UIW, has been fired. The Board of Trustees said it would not condone those sorts of comments. And, now it has voted to remove him as President. See San Antonio Express News report. The man who raised University of the Incarnate Word from a very small school, with some 1300 students, to one today with 11,000 students was fired for his remarks.

Lou Agnese made some comments about student’s skin color. He is apparently known for his slightly off-color and blunt comments. But, at a recent gathering of students, he mentioned to the students that some were not wearing the school colors, black and red. To one African-American student, he commented that even though she was not wearing red or black, her skin color would suffice.  He then asked if there any Native American students in the audience. If so, he went on, their skin color would work as Cardinal red. See San Antonio Express News report.

The President of the University of the Incarnate Word then quipped that Mormons were taking over the computer graphics and design school. He then asked a student where she was from. When she responded, “Dallas,” he persisted, “No, where is your family from? You’re Indian, right?”  He asked another student to stand up. He commented she was lucky to get into UIW, because her test scores were so low.

The President was forced to take a 90 day medical leave by the Board of Trustees for UIW. Mr. Agnese insists there is nothing wrong with him medically. He also insists no students were offended by his comments. Yet, it was a student complaint that lead to his 90 day involuntary leave. Isn’t that how it always goes? The person who makes racial jokes is convinced everyone finds them as humorous as he does. It is a safe principle: never makes jokes about skin color or race.

It is an ancient principle of trials that jurors can only consider what evidence they hear or see in court. That is why every trial these days includes a warning against looking things up on the internet. And, that is why most judges and lawyers know they cannot comment on actual cases prior to the jury verdict.

But, what about a committed criminal defense lawyer whose faith is a large part of his practice? Can such a lawyer post on Facebook that his clients are the discarded, overlooked persons Jesus ministered to? Can he post on Facebook that he sees God as directing him in his fight for justice? One judge in Ellis County, near Dallas, has said no, Mark Griffith cannot make such posts, since jurors might see those posts. See San Antonio Express News report.

Mr. Griffith explains that these are the sort of prayers he often makes before and during a trial. To inhibit him will restrain his First Amendment rights of free speech. He did eventually agree to refrain from posting real-time posts on Facebook. One would hope so. A juror should not be able to access our private thoughts or expressions of good will. That could lead to a crazy race by both sides to express their “pure” inner thoughts.