In federal court, sanctions are a real possibility. A state court can also award sanctions if a lawsuit is found to be frivolous. But, state court judges are more reticent about awarding sanctions than federal judges. In federal court, sanctions rarely occur, but they do occur. The law firm representing the plaintiffs in Elfoulki v. Brannons Sandwich Shop, No. 14-cv-5964 (S.D.N.Y. 6/22/16),  found that to be true. They filed the lawsuit alleging failure to pay minimum wage at a small sandwich shop. They filed suit on behalf of two named plaintiffs and sought collective action certification. The court approved the collective action. But, no other employees opted in to the lawsuit. So, the collective action was later decertified.

The employer then asked for sanctions. The employer did not actually gross more than $500,000 in sales and had not grossed more than $159,000 in sales since it opened about ten months before the lawsuit. Grossing more than $500,000 in one of the way a business qualifies for coverage under the FLSA. The employees would still be covered by the Fair Labor Standards Act if they could show the employees were directly involved in interstate commerce. But, the plaintiffs did not make such an allegation. In accordance with federal rules, the Defendant submitted a notice to the Plaintiffs declaring their gross revenues were way below the $500,000 threshold and invited the plaintiffs to dismiss their lawsuit. The plaintiffs did not respond. The Defendant moved for summary judgment.

To award sanctions, there must be a showing of “objective unreasonableness.” The court does not want to chill any future FLSA lawsuits. So, it asked the question, in a run-of-the-mill wage lawsuit, how would the plaintiffs find out how much the employer had in gross sales? The court suggested the plaintiff firm could have simply looked at the menu and interviewed customers. The law firm could also look at other shop locations, review court filings of similar businesses, review plans for expansion, etc. The court would not limit the inquiry and did not expect the investigation to be perfect. The plaintiff law firm explained various factors that the court found unpersuasive. The defendant had not submitted its “safe harbor” notice until a year into the lawsuit. The lawyers had assumed the employer was interested in settling. The two attorneys could not be sure the owner’s gross income was below $500,000 until he had been deposed. But, the court noted it was the pre-lawsuit investigation that was at issue, not what transpired after they filed the lawsuit.

So, the court sanctioned the law firm $4,000 under Fed.R.Civ.Pro. Rule 11. The defense attorneys had billed its client some $8,500.  See decision here. There are some things every lawyer should be sure of before filing suit. Whether the lawsuit will survive a motion for summary judgment is critically important.

Wow, I am speechless. In a 2013 interview, Donald Trump, Jr. said women who cannot handle life in a big corporation should go teach kindergarten. He was speaking about sexual harassment in the workforce. According to the Huffingtonpost report. First, as the proud parent of two sons, I have spent my share of time with kindergarteners. That is no easy task. But, really, women should be able to “handle” sexual harassment? That is wrong on so many levels. How does a woman “handle” it when she is held to higher standards and only finds out about those higher sales goals when she is being escorted out the door? How does a woman “handle” it when she is fired while out on pregnancy leave? How does anyone “handle” it when upper management engages in biased evaluations of your work?

What to think about a young man who has those views at such an early age? We are accustomed to older men holding onto out-dated views. Perhaps, those views are not as out-dated as we would wish.

Threats of a lawsuit are always a little dubious. It is easy to make threats. Filing an actual lawsuit requires much more work. Donald Trump fired off such a threat the day after the New York Times published a piece describing his sexual assault of two women. Mr. Trump’s lawyer threatened to sue the Times for libel. The in-house counsel for the Times quickly fired back with his own letter. But, his lawyer contained actual legal reasoning. Libel, explained the Times‘ lawyer, indicates someone’s reputation has been harmed. The essence of libel is protection of one’s reputation. Mr. Trump has bragged about his nonconsensual touching of women. Mr. Trump let a radio DJ refer to his daughter as a “piece of ass.” He said publicly that he would walk in on beauty pageant contestants in a state of undress. Several other women, apart form the Times article, have come forward to report on Mr. Trump’s sexual shenanigans. The in-house counsel concluded, this reputation was created by Donald Trump himself through his words and actions. Nothing in the Times article had any effect on the reputation he created.

Exactly. Libel only applies if the reputation has been harmed. If a person proclaims he has robbed stores, then a newspaper article that describes him as a robber does not harm his reputation. It is no wonder that a few lawyers on my Facebook page described the Times response as drafted by a “real” lawyer. Threats to sue only work if they convey some minimal legal ability to follow through. See ABA Bar Journal report.

Sheriff Joe Arpaio wants the country to think he is tough. He is tough on prisoners. Unfortunately for Hispanics, he is also tough on Hispanic Americans. I last wrote about Sheriff Arpaio here. He would not refrain from targeting Hispanics in his traffic stops. The federal judge in Phoenix has warned Sheriff Arpaio several times. The “tough” sheriff claims he violated the judge’s order unknowingly. But, Judge Murray Snow does not believe him.

Sherri Arpaio has done little to preserve his credibility. He famously hired a private investigator to investigate the judge’s wife. He was found to have hidden some 50 hard drives regarding a secret investigation of Judge Snow himself. Sheriff Arpaio seems to enjoy controversy.

As expected, he has been charged with criminal contempt. Criminal contempt can be a misdemeanor or a felony. If charged with a misdemeanor violation, he would face just six months in jail. See CBS News report. But, a felony conviction would force him to give up his Sheriff position.

This all stems from a racial harassment lawsuit the Sheriff lost three years ago. All he had to do was follow the judge’s orders. We can only assume he wants this sort of fuss with the the federal judge. He must see political advantage in this.

Well, I have wondered why someone like Donald Trump, who routinely makes prejudicial statements, has not been sued for discrimination. The answer is he has been sued. Or, at least, one of his golf courses was sued for discrimination. One of his Florida golf courses was sued in 2012 because he pressed management to replace “unattractive” female employees with better looking workers at his golf course in Florida. One former employee testified that she heard Mr. Trump tell managers many times that the restaurant hostesses were not pretty enough and needed to be replaced.

The employees themselves would rotate hostesses to make sure ether best looking women were working when Mr. Trump would visit. His predilection a so well known that that they conspired to save their jobs.  The “bulk” of the lawsuit was settled with some employees for $475,000 in 2013. Another woman entered into a separate confidential settlement. That is a huge amount when compared tot he average discrimination lawsuit. See CNN news report. Those sorts of comments by Mr. Trump are considered direct evidence of discriminatory bias.

And, just when I thought this was the only discrimination case against Mr. Trump, there is this account of a sex harassment lawsuit filed by a Florida woman in the 1990’s. Jill Harth was in a long-term relationship with George Houraney. The couple sought to use some of Trump’s properties for their various contests, one of which was a beauty contest. Ms. Harth accused him in a later lawsuit of continually groping her, at meetings, at restaurants, everywhere. She accused him of trying to rape her. See New York Times report.

Ms. Harth and Mr. Houraney eventually had to sue Mr. Trump when he walked away from their written agreement. Even later, she became his girlfriend for a time when he was breaking up with Marla Maples. Even today, in the last few months, she tried to obtain work from Mr. Trump working on his makeup and hair. What an odyssey.

I am just surprised he has not been sued more.

A jury in state court awarded $240,000 to a detective with the Austin, Texas Police Department. Amy Lynch sued the department for discrimination. Ms. Lynch was a long-time law enforcement officer who was diagnosed with narcolepsy in 2009. Soon after, she was transferred from her high profile assignment in the Human Trafficking and Vice unit to Firearms, a less prestigious position. She was then later denied her accommodation of coming to work at 10:00 a.m. She received a poor evaluation and then went out on FMLA leave. While out on leave she was told she was being dismissed from the Firearms division and she would have to find a new position. And, oh by the way, she would have to pass a new fitness for duty examination. She passed that exam in 2011. It did not address her narcolepsey. So, the Chief ordered a second exam. She passed the second exam. But, she was still not offered a position.

Ms. Lynch filed suit in 2012. She filed her first EEOC charge in 2011 and her second in 2013. With no explanation, the Chief offered her a position in Burglary in January, 2014 with the accommodation that she could start work at 9:00 a.m. and not work nights. That was very close to her requested accommodation.

The state court jury deliberated all day after three days of testimony. It then awarded her $220,000 in lost pay and benefits and $20,000 in emotional suffering damages. See Austin Chronicle report. The general public does not appreciate that discrimination cases do not typically result in large verdicts. This case shows how often a jury will award an appropriate amount for lost pay and benefits. But, when it comes time to award emotional suffering type damages, the jury becomes very conservative. It also shows what can happen when an employer can “see the light” and reconsider an earlier, discriminatory termination. The jury surely took the Austin Police Department’s change of heart into consideration when it awarded a relatively small amount for emotional suffering.

But, the claim for attorney’s fees will surely be north of six figures. Discrimination cases require a tremendous amount of attorney time.

The Apprentice with Donald Trump was a top rated show for some 14 years. It turns out that behind the scenes, Donald Trump would often engage is sexual banter and teasing with the cast members and the crew. He would repeatedly discuss the rear end of one female camera operator he found attractive. He discussed her looks for years and apparently had a crush on her. See San Antonio Express News report. Many cast and crew members found his remarks inappropriate. The show had cast members sign a non-disclosure agreement. They agreed not to disclose such things.

On the set, whenever there was a lull in the conversation, Mr. Trump would ask one cast member if he would f—  another particular female cast member. If the male cast member would avoid the question, Mr. Trump would persist, pressing the issue. He often discussed female contestants and how they would be in bed.

Such comments are entirely inappropriate in a professional setting. Apart from a lack of professionalism, such remarks serve as evidence of female bias. All an employee needs for a discrimination case is one unexplained termination and remarks like that. It just bad business to continually discuss whether someone is attractive or not. And, while this rationale would probably not appeal to Mr. Trump, it just is not a nice thing to do. What message do comments like that send?

Some women call is “mansplaining.” They refer to the process in which a man will talk over them at a meeting and interrupt women to explain their position. At the recent presidential debate, Donald Trump interrupted Hillary Clinton 51 times. She interrupted him 17 times. Mr. Trump interrupted the female candidate 26 times in the first 25 minutes. Researchers at Brigham Young University and at Princeton have food that men dominate 75% of the conference room discussions at work. When I mentioned how many times Mr. Trump had interrupted Ms. Clinton, one local female attorney nodded her head in avid agreement.

A few San Antonio area female managers confirmed they had experienced “mansplaining” at their jobs. Trish DeBerry, CEO of the DeBerry Group, a marketing firm in San Antonio, said she has not experienced such “mansplaining.” The city has a female mayor and female City manager, she noted. She seems to think this area is a little better and more respectful. See San Antonio Express News report.

But, certainly, one female candidate experienced some form of mansplaining at one recent debate…..

It is ironic that Donald Trump suggests that veterans suffering from PTSD are weak. He obtained several deferments from the draft during the Viet Nam War. He said “strong” soldiers do not suffer from PTSD. See ABC news report. The implication is that weak soldiers do suffer from PTSD.

That is nonsense. It is also simplistic. I do not mind admitting that I suffer from mild PTSD. Loud, unexpected noises will make me jump, or simply unnerve me a bit. I cannot stay around loud, unexpected loud noises. PTSD comes in degrees. It is not black and white. I know many veterans suffer from far worse cases of PTSD than I do. They are not weak and neither am I. We did our part, without hesitation or reservation.

One of the highlights of my Army career was seeing so many young men and women voluntarily enlisting in the armed forces during the two wars. I was a commander of a basic training unit for a time. The Drill Instructors appreciated the steadfast courage of those young men and women enough that hazing or harassing at boot camp was at an all-time low.

I feel sorry for persons like Mr. Trump who have never experienced the selfless sense of duty that compels us to stand up for our country and our comrades. We faced our fears. We were well-trained and well-lead. We loved our country and we profoundly trusted our fellow soldiers. Mr. Trump talks with shallow understanding. He has not served one minute in a war zone. I still feel like my time in Iraq was one of the best experience of my life. One of the good guys, the word “strong” comes to mind, was Paul Clevenger. He committed suicide a year or so after we came back. He was a good, young soldier. The war affected us all in different ways. There is no weakness in facing your fears and following through on your commitment. So many soldiers exceeded their comfort zone. There was a young, Junior League, female JAG lawyer who went on a convoy for the first time at my request. Just a few weeks from the end of her tour, she hopped in her HMMWV with a smile, as far as I knew. She never let on that it was her first convoy. She never let her fear show.

There was the very young soldier who would never go out on a convoy. He was scared. But, you know, he was always there at work, everyday, on time. He stayed late working many times – to avoid forcing soldiers from distant FOB’s to make an unnecessary return trip. There was the young captain who went home on his six month break and did not come back. No one blamed him or accused him of anything. We all knew he had done his best, he had pushed his limit. All these soldiers were brave in their own individual way. War is too complicated for simplistic criticisms.

The Battle of Ia Drang Valley illustrates the complexity of war. The first battle is well known from the film, “We Were Soldiers,” starring Mel Gibson. But, the book We were Soldiers Once and Young includes the follow-up battle. A sister battalion, the 2nd Btn of the 7th Cavalry Regt. left the scene of LTC Hal Moore’s battle to move toward a faraway Landing Zone (LZ). The 2/7th was commanded by LTC Robert McDade.

Unlike LTC Moore, LTC McDade was new to his battalion. A Battalion included some 700 soldiers. He barely knew his soldiers. The 2/7th was ambushed just a day or two out of their starting point. The battalion fell apart, in part because LTC McDade withdrew from his men and the battle. He made little or no attempt to coordinate there actions of his soldiers. The fight devolved into dozens of different, smaller battles. The men of the 2/7th were fighting with no coordination from higher headquarters.

LTC McDade was not a weak person. Far from it. He was a combat veteran of WW II and the Korean War. But, the thing about combat is that it is such a stressor that generals and historians alike cannot predict when and how certain persons succeed, while others do not. I think it likely that not being bonded with his men was a factor. Hal Moore was famously close to his men. LTC McDade was new.

War and PTSD involve people. When you discuss people, by definition you discuss varieties and differences. Even in war, most importantly in war, we cannot pigeonhole the human condition. LTC McDade was not weak. My friend, SGT Paul Clevenger was not weak. The true weak one is the one who dares to discuss things he cannot comprehend.

When a local politician wins office, she or he like to bring in their own persons for key positions. Sometimes, they also like to fire the employees who supported their opponent. County Clerks from here to Timbuktu will seek to replace you if you support the defeated opponent. But, the County Clerks who do so will be violating the First Amendment. The First Amendment protects our free speech. That free speech includes political support for one candidate or another.

County Clerk Rebecca Bolin did not get that memo. She won election as County Clerk of Kerr County and promptly fired three employees who supported the incumbent, Jannett Peiper. The new Clerk fired Julia Gaeza, Sarah Trainum, and Judith Rodgers in 2014. Ms. Bolin had been a deputy clerk herself before beating her boss. Ms. Bolin fired the three women on her first day in office. That is close timing indeed. Ms. Bolin told one of the three women, Julie Garza, that she was fired because of her Facebook post supporting the incumbent.

The employer moved for summary judgment and lost. Mag. Judge Primomo noted the timing, the three deputy clerks were fired the day the new County Clerk took office. He described Ms. Bolin’s motives as “ambiguous at best.” That is judge-speak for the employer’s evidence is weak. So, he was saying this case should be decided by a jury. The judge also noted there were no written warnings for any of the three deputy clerks. There was no history of poor performance.

The employer appealed to the Fifth Circuit regarding the denial of summary judgment. It argued that Ms. Bolin should receive qualified immunity for her actions. But, Kerr County settled while that appeal was pending. Texas counties are part of an insurance pool, Texas Association of Counties.TAC settled the case with the three women. The plaintiff’s lawyer indicated this amount replaced their lost income.

The three former deputies will receive $300,000, presumably that means $100,000 for each former deputy clerk. The lawyer mentioned that amount would replace their lost income. If they have been out of work for three years, that amount sounds about right as lost income

See San Antonio Express News report.