Lawyer Blames Leisure Lifestyle for Sanctions

Every lawyer is like a small business. We can decide when and what to say to judges, clients and opposing lawyers . . .  until someone reports our conduct. A New Jersey lawyer learned that lesson the hard way recently. Jared Stolz was disciplined by the New Jersey Supreme Court after he sent emails to the opposing lawyer with comments such as these:

  • "Don't feel you have to email me daily and let me know how smart you are."
  •  "Did you get beat up in school a lot? Because you whine like a little girl."
  • "This will acknowledge receipt of your numerous emails, faxes and letters . . . In response thereto, Bla Bla Bla Bla Bla Bla."

At the conclusion of a hearing, physical contact occurred between Mr. Stolz and the opposing lawyer. The lawyer told Mr. Stolz not to touch him. Mr. Stolz allegedly responded, "Why would I want to touch a fag like you?"

Mr. Stolz explains now that he was too lazy to work and that he enjoyed a golf trip with his father to Ireland and another trip to the Dominican Republic during this time period. Later, at an ethics hearing, Mr. Stolz described his actions as inexcusable, undignified and "venomous." He said he worked his way up to managing director while working in a cubicle and now, he wants to play golf. 

Mr. Stolz also told a court he had received certain certifications, when in fact, he had not. In reality, said the New Jersey Supreme Court, he was out of the office and may have missed the certifications. He simply did not want to admit that he had been out of the office for an extended period of time. 

He insists he mis-spoke and did not intend to lie to the court. He says he was very busy at the time with a lot of motions. Mr. Stolz explained that now, he reviews everything. He has two lawyers to help him review everything. "Am I going to get lazy again and play golf? I hope so. But, I certainly did not intentionally lie."

Mr. Stolz was suspended for three months. See ABA Bar Journal report

Flexible Work Schedule Can be a Reasonable Accommodation

I have written before about flexible work schedules. See my prior posts here and here. Sometimes, a worker with a disability will need a flexible work schedule as an accommodation. Recently, the District of Columbia Court of Appeals has affirmed that yes, flexible work schedules can be a reasonable accommodation. In Solomon v. Vilsack, No. 12-5123, 2014 U.S.App. LEXIS 15671 (D.C. Cir. 8/15/2014), a female worker suffered from depression since the 1980's. In 2003 and 2004, she sought and did use a flexible work schedule as an accommodation. She would arrive late for work and stay late on those days when her condition worsened. She provided medical documentation requesting that flexible work schedule.

But, in late 2004, the Agency told her she could no longer work flexible hours. Ms. Solomon's condition intensified such that she could not return to work. She filed suit under the Rehabilitation Act, 29 U.S.C. §791(b), an act which applies ADA standards. 

The district court initially granted summary judgment because the Plaintiff was receiving disability income benefits. On appeal, that summary judgment was overturned, because applications for SSDI are not inconsistent with the claim that a worker could work if she had the necessary accommodations. 

On remand to the lower court, the district court granted summary judgment, again. This time, the lower court granted summary judgment on the grounds that working a certain schedule is a requirement for any job. The lower court found that her request for a flexible work schedule as an accommodation was unreasonable as a matter of law. This decision overturns that second summary judgment. 

The Agency argued, and the lower court accepted, that working a regular and predictable schedule is an necessary element of any job. But, noted the D.C. Circuit, the ADA and the Rehabilitation Act expressly provide that re-structuring of a job or modified work schedules may serve as reasonable accommodations. Other courts have agreed. See McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013); Ward v. Massachusetts Health Research Ins., Inc., 209 F.3d 29, 34-35 (1st Cir. 2000); EEOC v. Ford Motor Co., 752 F.3d 634, 641 (6th Cir. 2014). Instead, the court should conduct a fact intensive inquiry regarding whether this particular job requires an employee to be present everyday at a certain time. Some jobs may require a set schedule, but other jobs do not.

The Agency argued that Ms. Solomon's job involved shirt, tight deadlines. But, the Plaintiff responded that short deadlines were rare. Indeed, she argued that she had met every single deadline through 2004 by working a flexible work schedule. The lower court dismissed her claim surmising that was due more to luck than to her work habits. But, said the appellate court, the district court should not engage in surmising when deciding summary judgment. "Summary judgment cannot rest on such speculation about the evidence," said the D.C. Circuit.  

 Not all jobs require daily attendance. And, not all jobs require set, certain schedules. In resolving requests for accommodations, the employers and the courts must get into the "weeds" of these decisions. See decision here

We Support the Troops, Usually But Not Always

You served in Iraq twice. Both times, you served in a combat role kicking in doors. You lost a few members of your Army family, but you accepted that. It is part of the deal you made with Uncle Sam. You were commissioned through ROTC at one of the Ivy league schools. You get out of the Army when your time expires and feel like you have earned a rest. After several months of looking for work, you get a job at a national bank on the East Coast.  Everything seems perfect. The civilian boss loves your work. Your co-workers appreciate having that Ivy league finance degree. You get two raises in the first six months. 

Then, the day after Veteran's Day, one of your former soldiers commits suicide. That brings back a flood of memories. You were his platoon leader. You spent almost 3 years taking care of this kid and keeping him straight. You knew his very young wife. You start having those bad dreams again. Its hard to sleep. 

Your boss stops you in the hallway and asks if everything is ok. She has noticed you do not speak at meetings. You were late with that report. You tell her about that kid, who shot himself. She says "this is not the Army. Take a day off." Then, she walks away.  

Your sleeplessness worsens. At work, others are noticing your red eyes and nodding off at meetings. You take a day off. You get some work done at home. The boss fusses at you for taking a day off when your report was not turned in yet.  

Weeks pass. The boss says accusingly that your speech is slurred and your eyes are drooping. The boss walks away, looking at you like you are a child molester. 

Walking down the hallway, you find your desk. A minute later, Human Resources calls you in for a meeting. The boss is there. The HR person and the boss ask if you are using drugs. "No," you look incredulous. They have no idea that in the Army, you were tested for drug use every other year. You think how ironic, they could probably not pass a drug test every other year for eight years.  

The boss and HR representative accuse you, the former Ranger captain of PTSD. "No-o-o," you stammer out.  You think back to all those times you encouraged other soldiers to see a counselor about possible PTSD. You recall asking the kid if he had seen a counselor - just a couple of years year before he committed suicide. "No," you say, "I do not have PTSD." But, you add, "i have been seeing a psychiatrist for Depression. The medication causes some drowsiness." You tell them you will talk to your psychiatrist about adjusting the dosage.  

They press you to go take a drug test, now. The clinic will be open for another hour, they insist. They ask if you want to talk to the EAP counselor, Employee Assistance Program. You recall the orientation explaining that EAP will assist employees with drug alcohol problems. You know that the EAP program is a good way to end a promising career. 

A more senior HR person comes in. She rattles off some statistics about all the employees who were helped by the EAP program. You continue to deny any drug use or alcohol abuse. The senior HR rep again asks about PTSD.  

You break down and weep. The questions stop. They look at you like a monkey in a zoo. The senior HR tells you that you have 24 hours to contact EAP. You are suspended for one week with pay. They send you home.  

You cannot imagine going back there after your boss saw you crying. A co-worker saw you leaving the room and you could see him questioning.  

The junior HR rep calls you the next day at home. He asks if you contacted EAP, yet. You tell him no.  You explain again you have a psychiatrist. Why do you need a counselor? He says you are fired for not contacting EAP within 24 hours and for refusing a drug test. You never refused any drug test. You think back to those days in Baghdad when you were never sure who and where the enemy was. You think things have not changed so much. 

Federal Employees Are Protected if They "Blow the Whistle"

Federal employees enjoy substantial protections other employees do not. One such protection is the whislteblower statute, also known as reporting fraud, waste or abuse. See Workplace Fairness summary. This statute protects a federal employee who reports fraud, waste or abuse or a simple violation of a statute or regulation. There are a number of ways to report a violation of this statute. A federal employee can submit a complaint to the Merit Systems Protection Board or to the Office of Special Counsel

Of course, one should never depend on a lawsuit or a complaint to pay the bills. It is always better to avoid problems, if possible. But, sometimes, problems find you. 

Rejection by the EEOC Means Nothing

The EEOC received some 93,727 charges of discrimination last year. Locally, each EEOC investigator carries a case load of 75-95 cases per year. Those numbers indicate very little time is devoted to actual investigation. The open secret is that the EEOC conducts very few true investigations. Yet, many folks still think that when the EEOC rejects a case, that rejection means something. 

Several years ago, I had to laugh when a management oriented lawyer suggested the EEOC might be "on the hunt" for some particular employer. See prior post here. As I mentioned then, I once heard a federal Judge chastise a government lawyer for suggesting that since the EEOC had rejected my client's case, then the case must be weak. No, insisted the judge, "we" get these cases all the time because the EEOC does nothing to to investigate and resolve possibly meritorious cases. 

In reality, most employers fear very little from the EEOC. Not because the EEOC lacks teeth, but because they are so overburdened with complaints of discrimination. They can effectively investigate only a handful of cases. So, when an annoyed employer tells me my client's case is baseless and he knows this because the EEOC said so, I just smile. Much the same way I smile when No. 2 son would claim No. 1 son ate that last cookie....

San Antonio Lawyer Sought Death of Former Office Manager

Yes, these things really do happen. I just uttered those words a few days ago and then come this story about a local lawyer who asked a client to kill his former office manager. Paul Andrews, a San Antonio lawyer, wanted to kill his former office manager, according to a report in the San Antonio Express News. The former office manager, Maryann Uribe, is the main witness against him in a barratry lawsuit. Barratry refers to the crime of soliciting clients. The Texas legislature made barratry lawsuits economically attractive a few years ago by allowing some percentage of any recovery for the person bringing such a lawsuit. So, now barratry lawsuits are economically viable.

The lawsuit against Mr. Andrews is currently pending in Nueces County. Mr. Andrews has offices in Corpus Christi and in San Antonio. The lawsuit has been ongoing for three years now in a few different counties. 

Mr. Andrews, according to the report, offered a client a discount on his attorney fee for a case, if he would perform a favor for him. Mr. Andrews explained that this was the best way to pay the client without leaving a paper trail. Mr. Andrews indicated to the client that he would not mind if Ms. Uribe was run over by a car or killed. Mr. Andrews was recorded while affirming his desire to have Ms. Uribe killed. 

Yes, these things do happen. Those crazy episodes on Boston Legal - the ones I always described as so unrealistic - reflected more reality than I realized. 

Judge Dismisses Texas Lawsuit Against EEOC

In 2012, the EEOC issued guidance to employers regarding criminal background checks. Criminal background checks can have a disproportionate impact on minorities. The EEOC's goal was to help employers avoid a blanket rule prohibiting hiring folks with criminal records. In 2013, the state of Texas, filed suit against the EEOC to enjoin the implementation of the new rules. See State of Texas v. EEOC, No.13-CV-00255 (N.D. Tex.). The Texas Attorney General's Office (Greg Abbott) referred to the new rules as the "felon hiring rule." Yes, Greg Abbott filed yet another frivolous lawsuit. I previously wrote about his frivolous lawsuits here and here

Earlier this week, U.S. Federal Judge Sam Cummings, in Lubbock, dismissed the suit saying there is no case or controversy. That is a term meaning there is no valid dispute. See order here.  As the EEOC explained in April, the guidance is just that, guidance. EEOC guidance does not and never has constituted a "rule." See Lubbock media report. The EEOC has issued such "guidance" regarding many types of discrimination. They serve as guide lines, but are not binding on any employer. They serve as interpretations of discrimination statutes. Some are followed by courts. Some are not. 

Greg Abbott has lost another case. But, he has probably helped his campaign just a bit. Now, he can say once again, "I wake up, I sue the federal government, and then I go home."

San Antonio lawyer Represenetd Both Parties to a Lawsuit

If true, this lawyer deserves the award for the most moxie. According to a recent San Antonio Express News report, Andrew Toscano in effect represented both sides to a lawsuit. In a personal injury lawsuit, R.D. Galvan and Luciano Morin sued the Chili's Restaurant chain after the two men were in an automobile wreck. The two had consumed alcoholic drinks at the restaurant shortly before a one-car accident. Mr. Galvan was supposedly represented by Michael De La Paz. He thought he was suing the restaurant. But, in reality Mr. Galvan had sued and then been counter-sued by his friend, Luciano Morin. 

The restaurant is in Pleasanton. Yet, the suit was filed some 150 miles away in Duval County, one of the places personal injury lawyers love to file suit. 

Mr. Toscano denies ever having represented Mr. Galvan. But, Mr. Galvan says he signed a contract hiring the Toscano law firm. Michael De La Paz shared office space with Mr. Toscano at the time. Mr. Galvan's current lawyer believes Mr. Toscano and Mr. De La Paz cooked up this scheme to file the suit in Duval County and extract money from Chili's and Mr. Galvan's insurance company. Mr. Galvan's new lawyer says the worst part was that representing Mr. Morin, Mr. Toscano claimed in legal pleadings that Mr. Galvan was driving the company truck. Yet, the police report and Mr. Galvan's own statement said Mr. Morin was driving the truck. 

Eventually, Chili's settled the claim that it had served the two men too much alcohol for $300,000. That money is now being held in the registry of the court and is being disputed. 

Yes, these things really do happen. 

Loser Pays Winner's Court Costs and, Sometimes More





courtesy of creation c

Yes, a plaintiff in an employment lawsuit can be hit with an award of attorney's fees. In federal court, the losing party is almost always ordered to pay the other side's court costs.  And, yes, if the plaintiff is found to have filed a "frivolous" lawsuit, then the plaintiff (ie, the employee) can be ordered to pay the defendant's (employer's) attorney's fees.  A couple of years ago, the EEOC was ordered to pay $4.5 million in attorney's fees to the employer. It us unusual, at least in the Western District Of Texas for a judge to find a plaintiff's case to be frivolous. And, there is some unfairness in the whole process, since frequently, the employer's defense is very frivolous.  

But, a plaintiff should always have enough evidence to avoid charges of frivolousness. Factors that help show frivolous include poor investigation prior to suit. The EEOC would be held to a higher burden since they are supposed to conduct an actual investigation of all charges of discrimination long before filing suit. Everyone knows the EEOC usually does not conduct an actual investigation.  Unlike private plaintiff lawyers, the EEOC actually has the tools, subpoena power, etc. with which to conduct a real investigation.

Other factors indicating "frivolous" include having enough evidence to defeat summary judgment, or at least, make summary (i.e., quick) judgment a close call.  if a plaintiff does not have enough evidence to get past the summary judgment hurdle, then s/he really should not be filing suit. 

I try to always tell my employee clients that they too could be hit with an award of attorney's fees in federal court. That is a real risk in every discrimination lawsuit. And, as mentioned above, in every federal lawsuit, the losing side will almost always be ordered to pay the other side's court costs. Court costs can amount to $5,000 or more. Think before you leap. 

PM Al-Maliki Just Cannot Let Go

I have to say, I find it fascinating that the Iraq Prime Minister will not give up his seat for the good of his country. He persists in holding onto his seat with clenched teeth, despite his own party turning away from him. See CBS news report. When we were in Iraq, we, the USA forces, strove mightily from the lowest rungs of the political ladder to the upper most rungs, to "coach" the Iraqis to be more inclusive and to explore the art of the compromise. Not every disagreement needs to be settled with the wrong end of a rifle. 

But, it is impressive that the President nominated the deputy speaker of the Parliament to serve as Prime Minister. Some of our lessons apparently took hold. 

During my time in Iraq in 2005-2006, we were struck at how long it took the Iraqi Parliament to form a new government after their first elections. That scenario has since played itself out again. Political compromise is so very hard for folks who are untrained and unschooled in democracy. Skills we learn in high school fishing clubs are still very new to so many Iraqis. Those high school clubs serve an important purpose. They often serve as our introduction to democracy. But, in Iraq, prior to 2003, everything was dictated by a central government. 

While on the subject of Iraq, I will add that is is disheartening to see much of the facilities and institutions we built being wasted. How hard we worked to connect the oil refinery in Bayji with Baghdad. How many times we briefed the status of the all-important power lines between Mosul, Tikrit and Baghdad. Now, none of that matters because ISIS controls everything between Mosul and Tikrit. 

We gave the Iraqis the tools to form a country. But, it is up to them to hang onto that country. Or not. 

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