San Antonio Employment Law Blog

San Antonio Employment Law Blog

Award of Attorney’s Fees Against EEOC is Reversed

Posted in Litigation and trial practice

I first wrote about this case a couple of years ago. See my prior post about EEOC v. CRST Van Expedited, Inc.  It struck me as a good case, but the court parsed the evidence to make it seem like a weak case. Too, the court rejected the view that certain “lead” drivers could constitute managers. If those lead drivers were not managers, then the employer would not be liable for sexual harassment. In any event, the EEOC lost. In that appeal, the court of appeals did vacate the award of attorney’s fees. The higher court found that the employer did not prevail on any issue. A party must be a “prevailing” party to be entitled to attorney’s fees.

Well, the case apparently got worse for the EEOC, because the district court assessed $4.6 million in attorney’s fees, again. The EEOC did settle one case for one plaintiff for $50,000. But, what had

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Sanctions Can Result when a Party Does not Cooperate

Posted in Litigation and trial practice

In federal court, parties can be ordered to pay sanctions. Mentioning that to clients always attracts interest. If a person or entity “mis-behaves” in court, the judge can sanction them. Sanctions include anything from paying money, paying the opposition attorney’s fees to even outright dismissal. In one recent Fifth Circuit decision, a lawyer was ordered to pay sanctions by a bankruptcy court. The law firm and lawyer were ordered to pay $5,000 to the opposing party for discovery abuse. The lawyer and law firm then filed a frivolous motion for contempt against the opposing party, said the court. So, the bankruptcy judge ordered the lawyer to pay another $20,000 in sanctions. The law firm appealed to the Fifth Circuit and lost. During the appeal, the law firm did not post a supersedeas bond or otherwise pay the sanctions.

The opposition in the bankruptcy, Coventry II DDR then filed a motion for contempt.

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Lance Armstrong Ordered to Pay Back $10 Million

Posted in Contracts

Arbitration is more and more with us, all of us. Every consumer signs some arbitration agreement sometime, somewhere. Arbitration is increasingly found in the work place. Many employers require their employers to sign agreements to submit any dispute to arbitration. SCA Promotions paid a $10 million dollar bonus to Lance Armstrong years ago for winning multiple Tours de France. Part of the agreement was a provision requiring any dispute to go to arbitration. In 2005, SCA refused to pay the bonus due to the early allegations of substance abuse. Mr. Armstrong had to file suit to get his payment.

Now, SCA has gone to arbitration to get a refund. In a recent ruling, three arbitrators, in a 2-1 vote, ordered that Lance re-pay the bonus. The one arbitrator voting against the decision was the one arbitrator chosen by Lance. See Huffington Post report.

Observers are saying this is the single largest arbitration

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How Not to Start a New Job

Posted in General

Add this to the list of things not to post on social media: “Eww I start this &$#@ *$% job tomorrow” – followed by seven thumbs down. That is what @Cella posted on Twitter the day before she started a new job. Her employer heard about it and fired her – on Twitter. Cella is reported to live in Mansfield, Texas. Her story has gone viral. No word if she will get a new, better job after all this… See San Antonio Express News report.

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Distrust Breeds Strikes

Posted in Labor Law

The workers at Tesoro Refineries and other refineries have gone on strike. The companies were engaged in talks to avoid a strike, but the talks broke down. Is that surprising? Workers today are exposed to and required to commit illegal or simply unethical acts with some frequency. The refinery workers were required to work overtime every week, whether they wanted to or not. Why? Because the employers refused to hire more workers. The unions wanted the companies to hire apprentices to learn the trade, so there would be more skilled workers available. The companies refused. See Houston Chronicle report (account required).

And, as the reporter mentions, many workers in many different trades see and experience the employer lying about a fundamental fact, whether the employee is actually an employee. For perhaps the past 15 years, employers across the country have been trying to reduce costs by claiming workers are actually “independent

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HR Head of Dallas ISD Resigns

Posted in Discrimination

Some folks think discrimination is over. They believe there is no more “true” bias among us, these days. Well, that is not true. The Dallas Independent School District has demonstrated that bias among upper management is still with us. The head of the Dallas ISD Human Resources department has resigned, as has one of her assistants in the wake of a scandal involving Instant Messages between the head and her staff. Carmen Darville would, I am sure, like to rescind many of those IM messages. In those messages, she and others poked fun at employees based on race, religion and age. Ms. Darville and her staff disparaged their co-workers and discussed ways of getting rid of them.

The superintendent, Mike Miles, apologized for their comments. Ms. Darville apologized for an “error in judgment.” Yes, I am sure she does, now. She was the head of HR. Not only should she have known

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Rep. White Distrusts Muslims

Posted in General, Uncategorized

This anti-Muslim bias is kind of crazy. Rational people can hold such irrational views. Do we really judge a religion of hundreds of millions of followers by the actions of a few hundred? Well, yes, state Rep. Molly White does. A Muslim group recently held its seventh annual Texas Muslim Capitol Day in Austin. Rep. White would be gone for the weekend, but she told her staff to ask any Muslim entering her office to renounce Islam terrorist groups and swear allegiance to the US and our laws. Did she instruct her staff to ask any Christian entering her office to renounce the KKK?

Rep. White did not expect the hullabaloo that followed her instructions. She says now that she chose her words poorly. But, no, she will not let go of her bias toward all Muslims. See Texas Tribune report. Rep. White said if she could do things differently, then

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SAWS Seeks to Move the Goal Post

Posted in Litigation and trial practice

Oral arguments in the case of Nicholas v. SAWS were heard recently. The Defendant appealed the matter to the Texas Supreme Court after losing before the Fourth Court of Appeals. See my prior post about that appeal here and here. In the oral arguments, the defense attorney, Rachel Ekery, said the harassment by the supervisor, Greg Flores, was not true harassment. She argued that simple invitations to lunch did not rise to the level of sexual harassment. See San Antonio Express News report here. (account required).

The attorney for the employee, Jeff Small, counters that no, in context, those invitations were indeed harassment. Just as important is what the employee, Debra Nicholas, believed. Virtually all the cases that address the issue agree that reporting sexual harassment or any harassment must be reasonable and made in good faith. Someone may report outlandish harassment, but if she sincerely believes it is

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Plaintiffs Settle Despite Hung Jury

Posted in Litigation and trial practice, Uncategorized
Gavel

Discrimination cases are difficult. They are more difficult than many other types of cases, because there is an intrinsic bias against discrimination claimants. As Judge Kopf (of Hercules and the Umpire blog) said, many judges are simply skeptical about discrimination claims. We see some of the challenges in this article about successful discrimination and retaliation claims in Dallas, Texas. Eliot Shavin took one such case with five plaintiffs, four African-American and one Hispanic, against BAE Systems Land and Armaments. See Texas Lawyer report.

At the conclusion of a two week trial, the plaintiffs lost in a hung jury. The polling of the jury indicated the six person jury leaned toward finding for the employer. The employer moved for a judgment as a matter of law and lost. Trial was held in the Northern District of Texas.

After the trial, the plaintiff’s counsel apparently interviewed some of the jurors and learned there was

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Fifth Circuit Clears Up Disability Discrimination Caselaw

Posted in Discrimination, Uncategorized
Hallway

In a recent decision, the Fifth Circuit cleared up some confusion regarding how to show disability discrimination. In EEOC v. LHC Group, Inc., No. 13-60703 (5th Cir. 12/11/2014), the court noted that Fifth Circuit jurisprudence had three different versions of a prima facie case for showing disability discrimination. All three versions required the plaintiff to show that he 1) has a disability, and 2) he is qualified to do the job he has held. LHC Group, slip opinion, p. 6. But, then the precedent diverges. One line of cases would require the plaintiff to show 3) that he was subject to an adverse employment action on account of his disability. This line of cases started with Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847 (5th Cir. 1999), which relied on an earlier decision in Chiari v. City of League City, 920 F.3d 311 (5th Cir. 1991).

The second line of

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