People in public life have to be careful about they say and do. Pres. Bill Clinton was sued by several women during the last couple of years of his administration. Pres. Trump appears headed toward those same troubled waters. During the campaign a former Apprentice contestant, Summer Zervos, accused Mr. Trump of groping her and assaulting her. The candidate denied it. Now, she has sued the soon-to-be President. Her attorney is the celebrity lawyer, Gloria Allred of Los Angeles. See CBS news report. Ms. Zervos says she will drop the lawsuit if Pres. Trump will simply acknowledge the truth of her claims. That does not seem likely. Mr. Trump enters office already a party to several lawsuits. It looks like his tally will only increase.

But, the President-Elect did settle his Trump University lawsuit. He agreed to pay the victims of his fraud $25 million. See CNN news report.

Sometimes, employers who are sued for discrimination in turn file their own lawsuit against an employee. I wrote about Wayne Wright and Schlumberger doing this here and here. In Wayne Wright’s case, the employer sued the former employee after she filed with the EEOC. The law firm sued for a declaration that it was justified in firing her. Schlumberger sued its former employee saying she had downloaded confidential information. Schlumbereger was found  to have fabricated its story and was sanctioned.

But, some courts are not convinced that counter-lawsuits amount to retaliation. In Jones v. Frank Kent Motor Co., 2015 WL 4965798 (Tex.App. Ft. Worth 2015 (unpublished), the employee sued Kent Motor Co. The former employer then counter-sued claiming Mr. Jones had participated in a scheme to fraudulently increase bonuses for himself based on customer satisfaction surveys. Kent Motor Co. moved for partial summary judgment. The partial judgment was granted. Kent Motor Co. then non-suited its counter-claims. The court then reinstated Mr. Jones’ retaliation claim. Kent Motor Co. then reinstated its counter-claims. Mr. Jones then amended his Petition to claim the counter-claims were retaliation in themselves. The employer filed an exception to that allegation. The court granted that special exception and the retaliation claim based on the counter-claims as dismissed. After a bench trial, the court found in favor of the defendant.

On appeal, Plaintiff Jones argued that the district court erred in not recognizing a claim of retaliation based on a frivolous counter-claim. Kent Motor Co. had counter-claimed for civil theft, common law fraud, mail fraud, breach of fiduciary duty, and for money received. The court said there was “ample” evidence for Kent Motor Co.’s claims and would not find them to frivolous. Although, it did not explain what that evidence was. It mentioned that eight or nine surveys were sent to Mr. Jones’ home address. But, it did not explain if that meant they were fraudulent, or a common mistake, or what.

The court of appeals made the remarkable claim that in general, Texas does not recognize post-employment retaliation for filing counter-claims. It notes the decision in Burlington Northern &Santa Fe RR v. White, 548 U.S. 53 (2006), which expressly finds that any action can amount to retaliation so long as the action dissuades a reasonable person from filing or supporting a charge of discrimination. It instead relied on a Fifth Circuit case, Hernandez v. Crawford Bldg Material Co., 321 F.3d 528, 532-33 (5th Cir. 2003). Hernandez was almost certainly overruled by White. The Jones court claims three subsequent cases continue to cite Hernandez. But, it does not mention that those three cases cite Hernandez for holdings not related to whether post-termination retaliation can include counter-claims. See Jones, at note 3. See decision here.

This ruling appears to be result-oriented.

So, if you are at work, thinking you might be fired, you might think about taking some documents home with you. Some documents might help later if you have to file suit. Taking documents from your employer is problematic conduct. Yes, the documents might help your case, but they could also give your employer a basis for suing you. In Highland Capital Management, LP v. Looper Reed & McGraw, No. 15-000055, 2016 WL 164528 (Tex.App. Dallas 2016), the employee took home some 60,000 documents. Highland Capital sued its former employee, Patrick Daugherty, for violating his employment agreement, misusing confidential information and other causes of action. While that lawsuit was still pending, it also sued Mr. Daugherty’s law firm, Looper, Reed and McGraw, accusing the law firm of everything from refusing to return those documents to using those documents to threatening to use those document if certain sums were not paid to lying to the plaintiff about the scope of those documents.

Looper Read filed a motion for summary judgment. Looper Reed relied on the attorney immunity doctrine and on the fact that Mr. Daugherty prevailed in the original lawsuit. The attorney immunity doctrine apples to suits by third parties against lawyers for action taken during the course of representation. The trial court granted summary judgment.

The Dallas Court of Appeals found that Looper Reed was indeed protected by the attorney immunity doctrine. The former employer argued that the law firm acted in a criminal, tortious way in using the documents. But, the court of appeals noted that the law firm’s use of the papers, accepting them, reviewing them, advising a client to reject a counter-demand, speaking about an opposing party in a negative light, etc. are the sort of duties required of any lawyer. So, accepting Highland Capital’s allegations as true, they still do not rise to the level of actionable conduct. See decision here.

Lamar Austin spent six months in Iraq in 2006 as an Ammunition Specialist. At the end of 2016, the Army veteran was working for Salerno Protective Services in Concord, New Hampshire. He had worked previously at a series of jobs, Target, Pitco, a New Hampshire based company that makes fryers for fast food businesses. He was still in his 90 day probation period at Salerno when his wife went into labor on Dec. 30. He called in to work telling them about his wife’s labor. The labor went a second day. The boss warned him that he had to come to work by 8:00 a.m. the next day, or else. When Mr. Austin did not appear for work on New Year’s Day, he was fired. They texted him that he was terminated.

His story appeared in the Concord, New Hampshire newspaper. See Concord Monitor news report. In the story, he mentioned that he would hope to find work in the electrical trades. He had had bouts of unemployment in the past. The International Brotherhood of Electrical Workers saw the story and offered him a job. See Task and Purpose report here about Mr. Austin. It worked out for the young Army veteran, this time. But, I wonder if the Family Medical Leave Act applied to him. if Salerno had over 50 employees, he would have been protected. But, otherwise, yes, they could have fired him for trying to take care of his wife.

Many temporary placement agencies think they are immune from lawsuits for discrimination. That is not at all true. Both Title VII (42 U.S.C. Sec. 2000e-2(b) and Texas Labor Code Sec. 21.052 apply to temporary placement agencies. Both statutes specifically prohibit a temporary placement agency from referring a potential worker to a job based on discriminatory bias. In some cases, the placement agency did not discriminate itself. But, it looked the other way when its client, the mammoth Fortune 500 company did discriminate. Some agencies avoid that problem by simply offering another temporary job to the alleged victim. But, as the court explained in EEOC v. Olsten Staffing Services Corp., 657 F.Supp.2d 1029, 1037 (W.D. Wisc. 2009), simply offering another job to a discrimination victim does not resolve the underlying issue. “Circumvention does not equal corrective action,” said the court. Id, at p. 1037.

I previously write about a Fifth Circuit decision which found that staffing agency participates in a discriminatory decision when the staffing agency knew or should have known discrimination motivated the adverse personnel action. See my prior post here. In that case, the staffing agency enabled a discriminatory decision. But, sometimes, the staffing agency itself discriminates more directly.

That direct sort of discrimination is the basis of a lawsuit recently filed in Chicago. MVP Staffing, a temporary placement agency that has offices in 38 states has been accused of placing Hispanic employees at the expense of African-American workers. According to the lawsuit, MVP prefers Hispanic workers because they were often undocumented and less likely to complain about wages and work conditions. See CBS News report.

 

 

 

Not one, but two chefs backed out of agreements to open restaurants in Donald Trump’s Washington, D.C. hotel. I previously wrote about celebrity chef Jose Andres here. Also, Geoffrey Zakarian backed out of a similar deal. Donald Trump sued both. Both backed out after he disparaged Mexican immigrants. Both chefs claim they would have trouble hiring staff and attracting patrons after such remarks. Donald sued, as he often does. Mr. Trump is set to be deposed in Mr. Andres’ lawsuit next week. See CBS news report.

Both chefs have talked settlement with Mr. Trump. But, no agreement has been reached. The President-elect has tried to postpone the deposition. But, it is his lawsuit. He cannot file a lawsuit and then complain that the rules are not convenient for him.

In every court room, there is just a thin veneer of civility. That is why all the court personnel are so polite. They know one angry word, one snarky comment will provoke a reaction. In the case against Bill Cosby, there are plenty of legal issues to try the nerves of both parties. In one recent hearing, the prosecutor got very upset in court when Bill Cosby’s lawyer appeared to be trying to make public the names of 13 other women who have accused Mr. Cosby of sexual assault. Brian McMonagle, the defense lawyer who represents Bill Cosby, wants the names of the thirteen possible witnesses. The prosecutor, Kevin Steele, became enraged during the defense attorney’s argument. Mr. Steele was convinced the lawyer was trying to intimidate the thirteen women. He argued that Mr. McMonagle wanted to identify them so they could be intimidated. The defense lawyer responded, that the women are “adults, not children.” Mr. Steele also “blew up” when Mr. McMonagle positioned a projection screen in a way that appeared to allow reporters to see the name of the women accusers. The Judge eventually allowed that 11 of the women who have voluntarily gone public would be identified. He also warned both lawyers that if this conduct continues, he will call the sheriff’s deputies. See ABA Bar Journal report.

The defense lawyer was trying to use exhibits in court that contained the names of the 13 women. See NBC news report. And, of course, his retort that they are “adults” suggests he was not concerned about the consequences to the 13 women if there names were made public.

If the defense attorney was indeed using exhibits during the hearing that contained names which have up to now been confidential, then he was indeed apparently trying to make their names public. Yes, Virginia, lawyers do play games to try to intimidate the other side.

Judges matter. The life experiences they bring to the bench matter. So, when I see a concurrence like the one written by Judge Jones of the Fifth Circuit, I become concerned. In Pineda v. JTCH Apartments, LLC, No. 15-10932 (5th Cir. 12/19/2016), the employee recovered some $5,000 in damages. Santiago Pineda was a maintenance worker for the apartments. He and his wife lived in the apartments. He sued to recover unpaid overtime. Three days after filing suit, the apartment owner evicted Mr. Pineda and his wife for nonpayment of rent. The eviction action sought repayment of the rent from Maria Pena, Mr. Pineda’s wife. After being evicted, Maria Pena joined the lawsuit and alleged retaliation. After a three day trial, the jury awarded the plaintiff $1400 in lost wages and $3700 for the retaliation claim. The judge awarded liquidated damages, which in effect doubled the lost wage award.

The judge then awarded the plaintiff’s attorney some $76,000 in attorney’s fees. The judge reduced the attorney fee request by 25% because, said the trial court, the amount sought was “grossly” disproportionate to the amount recovered.

Both parties appealed. The plaintiffs appealed because they believe the court should have allowed emotional damages. Many courts have allowed a claim for emotional distress damages under the Fair Labor Standards Act. This three-judge panel concluded there was no reason why the district court could not have done so. It found the lower court should have allowed a claim for emotional distress damages.

The defendant argued that the claim for attorney’s fees was too high. It claimed the plaintiff’s attorney did not settle the case when he could have. This is a claim unique to Texas state law, described as the “doctrine of excessive demand.” They also claimed the complaint was filed in bad faith. But, said the court, the defendant waived this argument by not bringing it before the trial court. The higher court then ordered the case be remanded to address the claim for emotional distress damages. But, cautioned the court, the attorney’s fees are already quite high. So, counsel should proceed expeditiously.

Judge Jones then dissented, accusing the plaintiff’s attorney of engaging in hardball tactics in freezing the bank account of the employer during the lawsuit. Judge Jones accused the plaintiff attorney of freezing the bank account ex parte – meaning it was done without notice to the defendant. She also claimed that testimony “implied” that Mr. Pineda may have sued for this “tiny” sum only because the apartment manager reported Mr. Pineda for possible child abuse. She described the attorney’s efforts as possible procedural abuse. My concern is that having done collections type legal work, I know that freezing bank accounts is exceedingly difficult. It is possible to freeze the account ex parte, but if so, one must provide notice to the defendant immediately. Too, this vase reflects the purpose of having a statute that allows for attorney fees. If there were no attorney’s fees available, then such smaller claims would not be pursued.

Too, I do not know how many maintenance workers Judge Jones has known throughout her lifetime, but at least to the maintenance workers I have known, $1400 is not a “tiny” sum. In truth, Judge Jones may have never spoken to an actual maintenance worker. Yes, a judge’s life experiences do matter.

As I review the Docket Sheet, I do not see anything out of the ordinary in this lawsuit. It was not over-worked in some way. Neither party seems to have filed unnecessary motions. The defendant did not seek dismissal or summary judgment. The reality is that even relatively small amounts require a great deal of attorney time. If there is a problem of some sort, it may be that the plaintiff did not accept the amount offered in settlement. But, that is not unusual. Judge Jones appears to be looking for issues with which to cast the plaintiff in a negative light.

 

Once Donald Trump assumes office, I expect we will have to re-visit many aspects of public life that we once took for granted. One of those aspects is the Hatch Axct. The Hatch Act was passed in 1939. It was passed to ensure that federal employees would not be forced to engage in political campaigns in order to remain employed. Once upon a time, federal employees were expected to assist candidates in their campaigns. The Hatch Act added a degree of professionalism to the federal workforce. Some jobs were classified as civil service and therefore, protected from political pressures. Other jobs were classified as political which meant they could be replaced whenever a new person was elected to office.

The incoming Trump administration has already asked the Energy Department for the names of persons who worked on behalf of climate change policies. The Trump folks also asked the State Department for information related to gender related staffing and funding. Tom Perez, the current head of the Labor Department, said those questions about Energy Department employees was illegal. See CBS News report. Mr. Perez did not explain what he believed to be illegal, but I am sure he was referring to the Hatch Act. The Hatch Act prohibits political activity by federal employees. The Hatch Act prevents federal employees from engaging in political campaigning. It also allows federal employees to vote their conscience, to contribute money to candidates of their choice, and to join political parties or clubs of their choice. See Office of Special Counsel handout on the Hatch Act and what activities are prohibited for federal employees here.

To the extent that the Trump folks are seeking to take action against or to target in some way federal employees who have expressed political views, then it violates the Hatch Act. And, that is before they have even assumed office. One can only wonder what will come after they assume office.

It was big news just a few months ago that Wells Fargo bank pressured its employees to engage in fraudulent sales tactics. Some employees were even issuing credit cards and setting up new bank accounts for its customers – without the customers’ permission. It was fraud. But, was it illegal? That distinction matters in a state like Texas. In Texas, there is no law protecting employees from employers engaging in fraud. But, there is a law against requiring an employee to engage in illegal activity. Alex Leal has filed suit against Wells Fargo. His lawsuit appears to lie right at the intersection of what is illegal and what is fraudulent but perhaps lawful. He was a branch manager at a branch on the West side of San Antonio. In his lawsuit, he says he was fired because he refused to go along with the sales tactics.

He also alleges defamation. I just wrote a post about defamation here and how hard it is to show defamation in the work place. To win, Mr. Leal must not just show management lied about him, he must show they knew it was a lie and they sought to cause him harm.

Mr. Leal is also suing for age discrimination, saying management preferred younger employees because they were more likely to go along with these fraudulent sales tactics. He says he was replaced by a 29 year old manager. See San Antonio Express News report.