San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

The national unemployment rate remains steady at 9.7% this month.  The state unemployment rate remains steady at 8.2%, still lower than the national rate.  The San Antonio area unemployment rate did increase from 6.9% to 7.7%.  A year ago this month, the San Antonio rate was 6.4%. 

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 My friend Gene Lee wrote a good post about how long discrimination lawsuits can take.  He refers to statistics showing that from start to finish, the average lawsuit will take 22 months.  That sounds about right for the San Antonio area, also.  Here in South Texas, we can file the typical discrimination lawsuit in state or federal court.  The length of litigation time is about the same for either venue. 

As Gene explains, the discovery process will take months, sometimes years.  In employment cases more than other cases, the relevant "evidence" is mostly in the hands of the employer.  So, as one might expect, employers resist providing evidence whenever possible.  "Discovery" is the process we use to obtain relevant evidence.  Discovery includes written questions and requests for documents.  It also includes depositions.  Discovery is often the heart of the case for both sides in an employment suit. 

Depositions are the biggest cost in any lawsuit.  Gene Lee also put together a nice post about the costs of a lawsuit.  As Gene explains, you do not have to depose every critical witness, but it sure helps to depose anyone and everyone.  

And, of course, as Gene explains in both posts, after everything is done and you win, the employer side will almost always appeal in an employment case.  Employers fare very well in appellate court.  So, they have strong incentive to contest any jury wins.  The appeal itself here in South Texas will require another 1-2 years to complete.  If one must appeal to the Texas Supreme Court, that would take significantly longer.  I recently saw an article about a party who actually sued the Texas Supreme Court because they had heard his appeal four years ago and still had not issued a ruling.  Ouch!

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 In Texas employment lawsuits, sometimes both a manager and the company are named in a lawsuit.  In such situations, the employer typically provides a lawyer for the management official.  "Provides" generally means pay for.  Almost always, the same defense lawyer represents both the manager and the company.  But, the manager's interest and the employer's interest are not always the same.  In a recent case, the New Jersey Supreme Court looked at the arrangement used by the employer and found some ethical problems.

The employer told the employee which attorneys they could hire, agreed to pay for them, but said the employer could cease payments at any time.  The company told the employees they could hire their own attorney if they wished.  The matter was criminal.  The state Attorney General was the plaintiff.  The AG's office objected to this arrangement and tried to disqualify the counsel for the employees.

The New Jersey Supreme Court disapproved of the "take it or leave it" nature of the attorney representation plan.  Relying on several ethical rules, common to most states, the court found 1) that in the future, the employee would have the right to pick his/her own lawyer at the employer's expense, 2) that the employer could not stop paying the lawyer without court approval, 3) the counsel could not withdraw without court approval, and 4) specifically held that the employer could not terminate payments simply because the employer did not like the tack the employee and his  counsel were taking.  See In re State Grand Jury.  

Texas has a similar ethical rule to New Jersey's: no one but the client can tell the attorney how or what to do in a litigation.  In some situations, both the company and a lower level manager are named in a lawsuit.  The employer provides the same lawyer for both he company and the manager.  In such situations, who is the client?  Sharing the same lawyer works well for some situations, but not for others.  What happens, for example,  when the company has some liability regarding a policy which the manager faithfully followed?  That is, the company's policy is at fault, but not the manager. Or, what happens if a higher level manager uttered some discriminatory statement about which the lower level manager has personal knowledge?  These are conflict of interest situations.  But, the company's lawyer has strong financial interest not to raise these potential conflicts.  If the company's layer raises these potential issues, he risks losing a valuable client for the law firm. 

When you have a conflict of interest situation, the company's lawyer should quit.  He cannot represent both parties any longer.  If the company then provides a separate lawyer for the lower level manager the company cannot control the tactics employed by that lawyer.  And, relying on this New Jersey decision, the company cannot terminate the lawyer once the representation heads south for the employer.  

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 No one supports frivolous lawsuits.  But, few have done as much to stop supposed frivolous lawsuits as has Bob Perry.  The huge home builder from Houston, Texas has donated tens of millions of dollars to political contests largely to oppose consumer lawsuits.  He funded the SWIF boat for truth campaign against John Kerry.  He helped George Bush become governor of Texas.  His pet issue throughout all these donations has been arbitration.  The Texas Residential Construction Commission was created largely due to his support of key state legislators.  Due in no small part to Bob Perry's largesse, binding arbitration is now a fact of life for most Texans from employees to home buyers to automobile owners.  

One particular lawsuit by one of his home buyers has dragged on for over a decade.  Bob Perry was determined not to let this case go to a jury.  He wanted it to go to arbitration.  It did go to arbitration, where Bob and Jane Cull were awarded $800,000 by the arbitrator.  Yes, some consumers do win in arbitration.  Mr. Perry was not satisfied.  He found a way to make binding arbitration not so binding.  He appealed twice and lost until he came to the Texas Supreme Court.  The Texas Supreme Court is a very friendly venue for large corporations and for Bob Perry.  The Texas Supremes came out for their man.  Bob Perry had donated $21 million to the Texas Supreme Court between 2006 and 2009.  Every member of the court had accepted money from Bob Perry.  Yet, not one member of the Texas Supreme Court recused themselves from his case.  In a close 5-4 decision, the Texas Court disallowed the arbitration award and sent it to trial in 2008.  I am sure this is the only Texas case that has ever gone to arbitration but was overturned on appeal in the past ten years. 

So, yes, Bob and Jane Cull's case then went to a jury, an actual trial in 2010.  The Cull's told the jury how the attic caved in and the foundation heaved and how Bob Perry refused to fix it.  On March 1, 2010, the jury responded.  They awarded the Cull's $58 million, including $44 million in punitive damages.  Bob Perry will surely appeal.  He has already described this jury verdict as "jackpot justice." 

The Cull's originally bought their dream home, their planned retirement home in 1996.   Now, in 2010, with years more for appeals, they will not get their home fixed anytime soon.  But, this "jackpot justice" jury award will surely help them if Bob Perry decides to discuss settlement. 

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 I spoke about depositions in general a couple of weeks ago.  Now, let's talk about employee depositions in a San Antonio employment lawsuit.  The plaintiff employee deposition is critical to success for any employment lawsuit.  The plaintiff employee must be able to show the opposing attorney and the employer that the employee can testify, can present well to a jury and tell a coherent story.  It is not as easy as it sounds.

The employee has to get past some of the pain, enough to testify without breaking down.  Too many tears will impede a story.  And, as Mike Maslanka shows in a recent post, the plaintiff employee must be able to look at his/her case with enough objectivity to admit possible error on his/her part.  Mike mentions one if his favorite questions to ask (in a deposition, I am sure) "what errors on your part helped lead up to the termination?"  No one is perfect, so if you answer, "none," you risk appearing dishonest.  If you admit to too many mistakes, or to some very significant mistakes, then you risk losing your entire case.  

The plaintiff employee deposition will go as long as several hours and as short as a couple of hours.  It is emotionally draining for every client I have had.  It can get intense.  The plaintiff employee must re-live the very horrible experience of losing a job through no fault of his or hers.  I have had many clients cry either during the deposition itself or during a break.  

Some clients do not hold up, at all.  Some plaintiff employees are suffering from various issues that cause them to be easily lead by opposing counsel.  One former client admitted to opposing counsel that he complained about discrimination on Tuesday, even though he and I both knew it was Monday.  if it was Monday, then he had a good retaliation claim.  If it was Tuesday, then he had no retaliation claim.  Why would he say Tuesday?  I may never know, other than he was simply easily lead on cross-examination.  

Employers will often ask the same question two or three times.  The same question.  But, it is an important question.  "State all facts on which you believe you were the victim of discrimination."  If the plaintiff employee omits one or two key facts, then s/he may lose the right to allege those key facts in the lawsuit.  

Another "catch-22" is that nice is important,  Any witness risks offending the jury if the witness is too rude or pushy.  Niceness does count.  But, if the witness or plaintiff employee do not "fight" for their position in a deposition, then they risk the opposing lawyer defining their story.  The plaintiff employee must be "nice" to some degree, but s/he also needs to fight for her answer, sometimes. 

Cross examination is all about one word answers.  Opposing counsel wants the plaintiff employee to answer yes or no.  But, some questions require explanation.  "Isn't it true you never called in when you were sick?'  Yes, but.....  "Yes, but the employer did not require employees to call in if they were ill more than one day.  We did not have to call in everyday if we were out more than one day."    The explanation fills in a huge gap about why the employee did not call in.  At some point, the employee plaintiff must provide this key fact.  The risk is that in not providing a key fact, the plaintiff lawyer may not be able to use that key fact when the judge decides summary (ie, quick) judgment.  

So, yes, the plaintiff employee deposition is very important.  

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 The EEOC was hit with an award of $4.5 million in attorney's fees by a federal district court in Iowa.  That is, the EEOC was ordered to pay $4.5 million to the winning side in their lawsuit.  Workplace Prof has discussed the award.  Turns out the EEOC filed suit on behalf of one woman and unspecified other women in a sex harassment case.  The employer was a trucking company with many different locations.  So, as the lawsuit progressed, the EEOC added other female plaintiffs as they came forward.  The women were in different locations working for various male supervisors and co-workers.  The EEOC then turned the initial lawsuit into a "pattern and practice" case.  

Eventually, the district court dismissed claims on behalf of some women and issued summary judgment against the rest of the women.  So, the EEOC lost on all claims.  At some point, there were 67 women with claims still pending but into which claims the EEOC did not investigate and did not attempt conciliation.  Thus, the EEOC created a huge burden for the court and the employer, said the court.  

As Law Professor explains, its a case of darned if you, darned if you don't.  If you add the new clients, then you do have a pattern of sex harassment.  But, many women filed their charges after the lawsuit had been filed.  So, yes, it would appear to the employer that the lawsuit would never end, as new plaintiffs joined and deadlines were extended.  The EEOC could have chosen not to add the women to the one lawsuit, but then lawsuits would have been pending against the employer for years and years.  

Its a case also of the EEOC simply does not perform actual investigations 99 times out of 100.  Yet, they do have the power to complete investigations.  More is expected of them.  But, because they have so few investigators, they accomplish very little.  Most US district court judges are aware of the EEOC's limitations.  But, the EEOC's limitations essentially make more work for the federal court system. 

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 In a recent settlement with the EEOC, Sears Roebuck agreed to pay $6.2 million to resolve claims made by persons with disabilities.  Sears also agreed to enter into a consent decree, which means Sears agreed to perform many other non-monetary tasks in settlement of the claims.  The EEOC represented persons with disabilities who had worked at Sears.  In the suit, Sears allegedly maintained an inflexible leave policy which did not look at each request for leave on a case-by-case basis.  This is the largest ADA settlement ever.  Some 235 Sears employees received an average of $26,300 each.  

The EEOC also sued UPS in a class action lawsuit also for maintaining inflexible leave policies.  See report.  Delaware employment law blog reports that these leave policies concerned employers who terminate employees after six or twelve months, regardless of their individual situation.  These policies are fairly common, since they supposedly avoid claims of discrimination.  The theory is that every employee, regardless of whether their injuries stem from worker's compensation complaints, disabilities or just simple personal injuries, is treated the same: they are fired after so many months (six or twelve typically).  If all employees with health problems are treated the same, then there is no discrimination, correct? 

No.  Wrong, because the ADA requires an individualized assessment of a person's need.  Under the ADA, an employer must conduct a case-by-case evaluation regarding requests for accommodation.  For example, if an employee needs more time off as part of some treatment plan, the ADA would require an accommodation of more than six or twelve months of leave.  As Delaware employment law blog explains, employers with such leave policies are prime targets for lawsuits, now.  Many of us viewed such policies as unlawful.  Now, we know they are unlawful.  Employer should examine their polciies to make sure they allow for some sort of individualized evaluation whether extended leave is necessary as an accommodation. 

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 Judge Keller of the Court of Criminal Appeals is not out of hot water, yet.  The Court of Criminal Appeals, of course, is the highest court in Texas for criminal cases.  So, her case is significant.  See San Antonio Express News report.  The special counsel appointed in her case recommended that she suffer some sort of discipline.  The Special master, Judge Berchelmann, had previously found her conduct deficient but said Judge Keller did not break any laws.  Well, as the special counsel points out, Judge Berchelmann was very critical of her conduct.  In the legal world, we are not supposed to violate custom or even unwritten rules without a good reason.  Most lawyers would suffer some sort of discipline from the bar association for such conduct.  So, the special counsel recommends that she be disciplined simply for violating protocol. 

Judge Keller's latest reaction is concerning.  Her lawyer, "Chip" Babcock filed objections to Judge Berchelmann's report.  He referred to Berchelmann's comments that Judge Keller showed poor judgment in not being more helpful as a public servant.  Judge Berchelmann said her failure to keep the clerk's office open was "highly questionable" and that failure was a reason many in the legal community are not proud of her actions.  Mr. Babcock commented that Judge Keller is not part of some "popularity contest among Texas lawyers."    

Judge Keller and her lawyer apparently do not "get it."  Judge Berchelmann was explaining as respectfully as he could that Judge Keller violated known protocol.  She did not violate any statute or law.  But, for a lawyer or judge, violating known, expected protocol is also serious.  "Discipline" in the legal world can include everything from a private letter of reprimand to suspension of the right to practice law.  It is bad enough that she did what she did.  It is even worse that she does not appreciate the gravity of her actions.  Judge are public servants, after all.  More is expected of them,. not less. 

As I have discussed many times, the background and experiences of a judge do matter.  Judge Keller spent many years in the appellate section of the Harris County District Attorney's office before becoming a judge.  So, she has done little actual litigation in her career.  It shows.....

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 They are sometimes forbidden, but they occur all the same.  Work place romance always occurs, and perhaps surprisingly, often leads to marriage.  According to a recent San Antonio Express news article, more than 20% of office romances lead to marriage.  One wedding planner says 25% of his weddings started in the workplace.  The parties are not always employed by the same firm, but work helped them get together.  

But, the article reminds us, people need to be professional about the romance and not allow the romance from getting in the way of work.  Amen.  The best work policies in the world cannot prevent employees from becoming unprofessional.  Emloyees must do that themselves. 

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