Avvo Offers 15 Minutes of Legal Advice









You have to love free enterprise. Only a true entrepreneur would come with a system of turning legal advice into a drive through window. Avvo, the legal referral website, now offers 15 minutes of legal advice for a mere $39. The service applies to a variety of areas of law: immigration, criminal, divorce, family, employment, landlord-tenenat, real estate and small business. Avvo seems to have selected every area a consumer might need. I have to say, after 15 minutes, I am still waiting to hear the essentials of an employment case. The service is available in 15 states, including Texas. See ABA Bar Journal report

I am sure 15 minutes would work for some occasions, but if someone really has a case, 15 minutes is the beginning of the discussion, not the end. Maybe, we should just set up shop with a drive-in window and offer a free apple pie with that order....

A True Cowboy Judges a Person On His/Her Own Merits

An acquaintance passed away recently. His passing brought to mind the high school I graduated from in 1975. Mike Gallagher graduated from John Marshal High School a couple of years before I did. He was a football player, and an officer in the Fellowship of Christian Athletes. In other words, he was at the top or near the top of our high school social order.  He would have started attending Marshall about the same time as the University of Texas won the national championship in 1969 with the last all-white team. 

In talking about his passing, a few alumni offered stories about Mike. One story caught my attention.  Another student was Mormon. We did have a few Mormon students at our school, not that I ever noticed at the time. The Mormon student, we can call him Ray told this story about Mike: not many people harassed Ray about being Mormon. But, in this one class, there was one boy who harassed Ray everyday. One day, when the teacher was out of the room, the boy got particularly loud and obnoxious. Ray did not know what to say. But, Mike did. He got up in front of the room and told the boy to shut-up. He was tired of hearing him. Mike was a big guy, physically and otherwise. The boy shut up.

We had Hispanic students and a few black students. But, the culture at John Marshall High School in the 1970's was definitely cowboy. It had always been a cowboy school. And, even in the 70's. with dozens of new suburbs in the district, the cowboys still ruled the roost. I did not notice it at the time, but there must have some major social change in San Antonio's rural northside in the 1970's with all these suburban kids and minorities, including Mormons, showing up. In my class of 1975, we had a black cheerleader. Looking back, she must have been the first ever at our school. But, no one ever suggested there was anything unusual about having a black cheerleader. Everyone loved Rita Crockett. What was there to question?

One would think there might have been some prejudice against the growing Mexican-Amrican population and the incoming black students. But, there was very little. I recently asked a fellow alumnus, who is Mexican-American, and he could not recall any overt bias against Hispanics. The best reason we could arrive at was the cowboy culture. 

A true cowboy takes everyone on their own merits, for good or ill. An old saying in the West goes something like this, "I do not care if he has polka dot hair and green skin, if he's there when I need him, he's ok." Like most high schools, football was king at our school. And, that was certainly true in football: If you are there when I need you, then you are ok. And, sure, a great many of the cowboys played football. I think the working world would be much better off with a few true cowboys. 

Blackwater Guards Found Guilty

We went into the Iraq War on the cheap. We entered that war with the smallest number of troops possible. So, that lead to the US relying on private security firms for a number of missions. One such mission was providing security for the diplomats. Four Blackwater security personnel were found guilty last week after they killed 17 Iraqi civilians. One was found guilty of murder. The others were found guilty of manslaughter. See CBS news report. The guards opened fire on a crowded Baghdad street intersection after they claim to have heard shots fired. 

I was not impressed with Blackwater when I was in Iraq. They moved into our building on FOB Speicher. Ignoring the appropriate chain-of-command, they began to erect exterior stairs without first seeking permission from any authority. They were forced to stop work on the stairs mid-way through the project. Later, when someone from my staff section was checking something on the roof, they found that Blackwater had tapped into our internet feed - again without seeking permission or consent. 

Even for uniformed soldiers, with good training ad supervision, it is hard to never shoot an unarmed civilian in that sort of war. Young soldiers, or unclear situations can lead to accidents. For mercenaries, the challenge is much different. 

Service in a war zone is not too different than a trip to Las Vegas. It is tempting to slip into the "what happens in Vegas stays in Vegas" syndrome. Not only are you far from home, but you feel a lot of power when you hold that .50 caliber machine gun in your hands. The mercenary soldiers feel the same things, apparently, and feel little of the discipline required of uniformed soldiers. We can contract out guns and vehicles. But, contracting out good order and discipline is much more difficult. 

Judge Jones Cleared of Ethics Charges, Pending Appeal

I wrote before about Judge Edith Jones, who has been accused of making racist comments at a Federalist Society meeting. See my prior post here. She allegedly stated that certain racial groups, such as African-Americans and Hispanics, are "predisposed" toward crime. Most judges might get away with making those sorts of statements, if they were not already known to be as conservative as Judge Jones. The Fifth Circuit jurist has demonstrated an antipathy toward employment plaintiffs in the past. Various legal groups filed a complaint regarding her remarks.

Well, now, the investigation has found that she did not violate any canons of judicial ethics. The groups who filed the complaint have appealed. See Judge Kopf's comments about the investigation here. Judge Kopf finds the complaints about her remarks to have been over-stated. The complaint was investigated by a panel selected by the District of Columbia circuit. Judge Kopf finds their report to be well drafted. You can follow his link to look at the complaints and the judges' report. 

In reviewing the affidavits, I see where two attendees said Judge Jones specifically did not say certain races are prone to violence. But, three listeners, one of whom was self-reported as African-American, did report that she said certain races were "prone" or "predisposed" to violence. When one attendee asked the judge to clarify, she backed off her initial statement. She explained that she meant that certain races committed more crimes. Oh. Ok. 

All I can say is that Judge Jones, as Judge Kopf mentions, is opinionated - in my opinion, too opinionated for a federal judge. 

Cowboys Owner Apparently Settles Lawsuit

Jerry Jones, owner of the Cowboys, does stay busy. He was accused just a couple of weeks ago of assaulting an exotic dancer, Jana Weckerly. The lawyer for Jerry Jones said she missed the statute of limitations - the deadline by which all suits must be filed. She alleged that the Cowboys owner assaulted her in 2009. if so, then yes, she would have missed the two year statute of limitations by a country mile. But, I am sure, she realized that this sort of a lawsuit, against someone so prominent, does not truly have a time limit. 

According the the recent report, she dismissed her lawsuit just before a hearing on the defendant's motion to dismiss. The defendant, Jerry Jones, claims it was dismissed because of the time issue. But, one report said the hearing was canceled "per the mediator." A mediator is a person who mediates a lawsuit. This cryptic note suggests the lawsuit was settled. The plaintiff's lawyer even claims in a public statement that the plaintiff was not paid any money by Mr. Jones. See San Antonio Express News report (account required). 

Sure, sure. If he paid no money, why would a court, any court grant the motion to dismiss before the hearing? Indeed, how could a court grant the motion to dismiss before the hearing? In Texas state court, a judge could not grant a motion prior to the hearing - unless the plaintiff agreed to such a dismissal. And, the only reason a plaintiff would agree to a dismissal would be for a settlement. 

Only employment cases routinely use confidentiality clauses in settlement agreements. And, now it appears, suits against prominent football team owners also include confidentiality clauses - with elaborate, prepared statements for the press. 

Racism Alive and Well in East Texas

Racism comes in degrees. A wise man once said we are all racist to some degree. Well, one truck driver in East Texas is way off to one degree. On the back of his pick-up truck, he has professionally painted a picture of a a banana and Pres. Obama wearing Somali garb. The tailgate asks if this socialist "a**_ makes his truck look too big. Is the word ass or ape? We do not know. But, yes, this tailgate qualifies as a racist caricature. See San Antonio Express News report

Jimmy John's Requires Non-Compete Agreements

Non-competition agreements have been around for a long time. They have usually been used for saelsmen who have access to cloesly guarded customer lists and to doctors. But, now, they have been uased for hourly employees at a sandwich chain. Jimmy John's has been sued because it requires employees to agree they will not work for another sandwich chain for two years after leaving Jimmy John's. The agreements apply to all of the Jimmy John's 2000 locations. See San Antonio Express News report.

That would significantly affect the ability of a worker to find new employment making sandwiches. For some folks, who live paycheck to paycheck, that is a huge burden. All I can say is some employers have no conscience. 

Court Finds Factual Issues Regarding Accommodations








The ADA Amendments Act was passed in 2009. Since then, courts have addressed more fundamental questions about disability claims, such as what are the essential functions of a job and how can they be accommodated? On one such case, Perez v. Sprint/United Management Co., 2013 WL 6970898, No. 12-CV-3161 (N.D. Ga 12/19/2013), the court denied summary judgment and found that there was factual dispute regarding whether the employee could perform the essential functions of the job. Gilbert Perez was a systems engineer in charge of setting up presentations for other workers. He was diagnosed with bilateral ankle degenerative joint disease. As it worsened, the pain increased. He started using a cane and was then fired.

The court accepted the employer's claims regarding what the essential functions of the job included. So, the question remaining was whether the plaintiff could perform those functions. The plaintiff argued that he could perform those essential functions without accommodation. The employer argued he could not perform those functions with or without accommodation. 

The court found there was a genuine factual dispute based on the plaintiff's own testimony, and on the lack of any write-ups on the plaintiff regarding his job performance. The court also noted that co-workers testified that Mr. Perez could perform the functions of his job without change. He could still, climb ladders, for example. The plaintiff was helped occasionally, but said one co-worker, it was common for workers to help each other. 

The court also noted that when Mr. Perez applied for short term disability benefits, the policy management group denied his claim, saying his disability was not serious enough. The jury, said the court, was entitled to conclude from this finding that his disability was not serious. 

The employer did not adequately investigate Mr. Perez' medical condition, said the court. So, the employer did not perform an individualized assessment of his request for accommodations. 

The court also found direct evidence of discrimination. A supervisor had wanted to say that Mr. Perez would be fired because he was medically unable to do his job. HR recommended different language, but the intent was still apparent. The court also found there were sufficient facts indicating this statement was pretext. That is, the plaintiff could actually do his job, but the employer was fabricating. Since, there were no write-ups regarding his performance. It was also possible that the doctor's explanation was not that Mr. Perez could not perform the job, but that the doctor was simply suggesting possible accommodations. And, noted the court, HR advised the supervisor in an email that she remove any references to the plaintiff's medical condition from Mr. Perez' file. 

Later, at trial, Mr. Perez was awarded $125,250 by a jury. Still pending is a request for front pay, and attorney's fees. 

Note that the court accepted the Plaintiff's version of the need for accommodations, as it should. The court found fault with the employer for not having documented any perceived performance problems and for not looking into his medical documentation. The employer could have asked for more information if it did not understand the doctor's notes. And, it is almost always a sure loser to claim after-the-fact performance issues. 

Note also that a few co-workers testified for Mr. Perez. It is rare to have that sort of support at trial or summary judgment. The presence of co-workers implicitly risking their own jobs to testify for a co-worker has a powerful effect. 

EEOC Finds Evidence of Discrimination at City of San Antonio

Well, I guess it is going to snow this coming July, or at least in March. The EEOC has found in favor of an employee. They have found evidence of discrimination. Finding in favor of the employee may not be as rare as snow in July, but it does approach the rarity of snow in March. Two employees of the Animal Care Services for the City of San Antonio filed claims saying they were paid less than male workers who preformed the same work. 

Christine Peden and Jeanne Martinez filed claims based on the Equal Pay Act. The City responded that the salaries were based on a variety of factors. It said raises were limited to to 5% and that new hires would only receive minimum wage. But, later they admitted that on occasion, the City would make an exception. The City did make an exception for one male manager. The EEOC found that change in its response to amount to pretext. Even worse, the City disciplined the two women for discussing wages. They were counseled in writing for spreading "rumors, gossip" and helping create dissension. See San Antonio Express News report here (account required). 

The thing about wage issues is workers cannot know what others make without engaging in some form of "gossip." So, disciplining workers for engaging in such discussions is prohibited by a few statutes. It was exceedingly unwise for the manager to discipline them for discussing wage issues. 

Equal Pay Act claims are notoriously difficult. See one of my prior posts about the EPA here. But, it looks like the City made a difficult case much easier for these two women. 

Discrimination Cases Present Many Obstacles




Courtesy of creationc

Employment cases are exceedingly difficult, with numerous deadlines and traps for the unwary. We see some of these traps in the case of Prewitt v. Continental Automotive, No. 12-CV-582 (W.D. Tex. 8/28/2014). In this case, Larry Prewitt alleged that he had been terminated due to several reasons: race discrimination, national origin, disability, age, sex and retaliation for opposing discriminatory practices. But, said the court in ruling on the emplpyer's motion to dismiss, the Plaintiff did not exhaust administrative remedies on the national origin, age, sex and disability claims.The court reached this result in 2013. That left claims based on race and retaliation. 

Every worker who wishes to file suit alleging discrimination must first file a claim with the Equal Employment Opportunity Commission. The EEOC will then issue a right-to-sue letter and the worker can then file suit. But, Mr. Prewitt filed three different charges with the EEOC over a period of a few years. He did not file suit until the last charge had been released by the EEOC. In the first two charges, he alleged national origin, age and disability. So when he finally filed suit in 2012, he was long past the deadline to file suit on those first two charges. So, he did not exhaust administrative remedies on those first two complaints. 

Practice pointer: It is very unwise to file a claim alleging the "kitchen sink." Basing a discrimination claim on multiple bases, such as age, race, national origin, disability, etc. suggests speculation or even desperation. It is much more effective to focus on one or two claims, which should be the stronger claims. When a plaintiff alleges everything but the kitchen sink, all of the claims will look weak. 

The third EEOC charge included the claims based on race discrimination and retaliation. So, the court addressed those allegations. The race claim was not plausible, said the court. The Plaintiff's own allegations claimed he was fired because he took too many absences. The factual allegations of his Complaint nowhere indicated his termination was due in some way to his race. The court allowed the plaintiff to amend his complaint to fix that inconsistency.  

Practice pointer: The Plaintiff is white. He was claiming that he was fired due to his white race. I am not saying Caucasian based claims are impossible. But, they are more difficult than other claims. It would have been better to drop that claim at some point.  

A year later, the Defendant then moved for summary judgment on the remaining claims, race discrimination and retaliation. The Plaintiff filed a response to the motion that was too long. It violated local rules on page length - without seeking court permission to do so. So, the court struck that reply. The Plaintiff then filed a "sur reply" to the motion for summary judgment. The Plaintiff did so without the court's permission. Filing a sur reply (i.e., an "extra" reply) without the court's permission violates local rules. So, the court also struck the sur reply. 

During oral argument on the motion for summary judgment, Plaintiff admitted in court that he lacked evidence for a race based claim. So, the court granted summary judgment as to that claim.

Inexplicably, the Plaintiff also argued that Mr. Prewitt was fired due to his disability. The disability claim, however, had been expressly rejected a year earlier when the court ruled on the motion to dismiss. 

Regarding the retaliation claim, the court noted that the employer argued it had terminated the worker because he violated the attendance policy. The Plaintiff had ten attendance "events." That is, he had ten occasions in which he was absent and allegedly did not follow attendance protocol. The Plaintiff responded that on one of those attendance events, he had received permission to be absent. That absence should not have been counted, said the Plaintiff. Thus, he was arguing that the employer's explanation lacked credibility. The court found that argument created sufficient issue of fact and denied summary judgment regarding the retaliation claim. So, the retaliation claim remained. 

A week later, the Defendant then filed a motion to reconsider, which the court accepted as a second motion for summary judgment. In this second motion for summary judgment, the employer argued that a manager could not grant permission for an absence. The employee's testimony to the contrary was wrong, in effect. The manager could not have allowed Mr. Prewitt to leave work early that day, since the attendance policy requires 24 hour notice for any absence. The manager's permission did not matter. And, the employer claimed that the event to which Plaintiff referred did not happen on the day Plaintiff claimed. Plaintiff claimed he was allowed to leave work early one day in August. The employer claimed that according to its records, it could not have been in August. 

The Plaintiff then responded by changing his testimony. He submitted a new affidavit in which he changed the month from August to July. But, said the court, Plaintiff did not contradict the manager's affidavit that a manager could not override the Continental attendance policy. 

Comment: I am not so sure. Did not Mr. Prewitt implicitly contradict the manager when Mr. Prewitt said the manager did allow him to leave early that day? 

But, said the court, in the end, the Plaintiff did not present "competent" evidence regarding when he was allowed to leave work early. It could have been one of the ten attendance events, or not. The court suggested that it was mere "conjecture" on the Plaintiff's part when that attendance event occurred. 

The Plaintiff submitted evidence that the time-keeping system at Continental was flawed and not accurate. But, noted the court, none of that evidence explicitly contradicted one of those ten attendance events for which he and been fired.  So, the granted summary judgment regarding the one surviving claim, retaliation.

Later, the Plaintiff submitted a motion for new trial on his own. He filed this motion without a lawyer. But, unfortunately, pro se motions rarely succeed. That motion is still pending. 

Discrimination cases are not easy. They present many traps for the unwary. The best plaintiffs are the ones who file suit reluctantly, perhaps very reluctantly. Alleging too many bases of discrimination at the outset will color everything that comes afterward.