The Americans with Disabilities Act was passed in 1992 during the administration of the first George H.W. Bush. It was later amended in 2009. Yet, many persons with disabilities still face obstacles to employment. In EEOC v. S&B Industries, Inc., No. 15-CV-641, 2017 LEXIS 9259 (N.D. Tex. 2017), two women with hearing impairment applied for a job with S&B Industries. S&B repairs cell phones. There was a group interview of several applicants. Katelyn Baker and Tia Rice communicate only with benefit of an ASL interpreter or by writing notes. The employer did not hire either woman. The parties agreed the two women were not qualified for the technician job. They lacked experience and training. But, contended the EEOC, there were several other jobs the two women could have performed. The women were referred by a staffing agency, which was aware of their impairment. Yet, no one provided them an ASL interpreter for the group interview.

The EEOC sought to provide an expert at trial, who would describe the ASL language, and discuss the barriers faced by hearing impaired persons when seeking employment. The employer moved to exclude testimony from the expert, arguing she would simply present stereotypes about society. It argued that none of these stereotypes have been attributed to S&B. The court noted that an expert can serve as a “teaching” expert if she can distill complicated subject matter into language a jury can understand. The expert had planned to testify that “audism and phonocentric” views may have prevented accommodations from being offered by  S&B. The court rejected that testimony, saying there was no evidence that such views may be attributed to S&B. There was no evidence, circumstantial or direct, that any employee of S&B held such views.

The court also rejected the expert’s planned testimony regarding how many people in the U.S. suffer from hearing impairment and regarding how few are employed. The court opined that such evidence would not help show that discriminatory motive animated the decision not to hire Ms. Baker and Ms. Rice. Such evidence might help show why the two plaintiffs could not mitigate their damages. But, that was not the topic for which the expert was identified.

Experts are not used often in employment cases. The problem, as shown here, is tying such polemics to actual alleged transgressors. Just because many people hold bias against deaf persons do snot mean these particular managers held those views.

It is rare for persons with severe disabilities to come forward and file a complaint. The parties entered into a Consent Decree soon after the court’s ruling on the motion to exclude and regarding summary judgment. The court denied the motion for summary judgment in part. The EEOC then settled the case for $110,000 and with the requirement that the employer conduct training on accommodations in the workplace. See EEOC press release here. See the decision here.

Donald Trump’s campaign rally in Louisville, Kentucky in 2016 is again in the news. As I have mentioned here previously here and here, the President and his campaign have been sued for roughing up protesters at that rally. One of the defendants with the President is Mathew Heimbach, a white nationalist. He is chairman of the Traditionalist Worker Party in Indiana. He was charged with assault for his actions at that campaign rally. He plead a form of “no contest” to a charge of disorderly conduct. See CBS news report.The Traditionalist Worker Party describes itself as “fighting” to secure the future of white children. As part of his plea deal, Mr. Heimbach was ordered to attend anger management classes, a suspended jail sentence and ordered to pay a fine.

In the civil lawsuit against Mr. trump. Mr. Heimbach has claimed he was indeed encouraged by Mr. Trump to rough protesters up.

Another local manager has sued Wells Fargo saying she was fired due to the oppressive and fraudulent sales tactics employed by the company. Rachael DeBoy of Cibolo sued the company accusing them of fraud, breach of contract, quantum meruit (i.e., alleging the company did not pay what was owed), and for wrongful termination. In the Petition filed under DeBoy v. Wells Fargo Bank, N.A., No. 2017-CI-12897, the former Branch Manager accuses the bank of imposing stringent sales quotas starting in 2011. Ms. DeBoy complained about the unethical sales tactics. She said these sales tactics harmed customers. She complained to managers, Human Resources and to the Ethics phone line. She received no response. But, her better sales persons were fired or transferred. She was set up to fail, she alleges.

She went out on maternity leave and was replaced by a temporary manager who reinforced the bank’s unethical sales practices. Then, upon her return to work, she received a poor job evaluation with no warning and no job coaching.She had formerly been a stellar employee.

She resigned to avid a termination. Her replacement received a raise and a promotion. I previously wrote about the first lawsuit by Alex Leal against Wells Fargo here. Lawsuits based on “wrongful termination” in Texas will not go far. There is no such cause pf action in Texas. Her other causes of action are perhaps problematic. The Plaintiff alleges she was denied bonuses and raises due to the unethical practices. But, given the bad publicity about Wells Fargo and its shady practices, she may succeed. See San Antonio Express News report here.

Some folks refer to the President as the Twitter-in-Chief. Well, he should also be considered as the Litigator-in-Chief. He tossed out provocative statements at campaign rallies like they were candy. At one rally in Louisville, he exhorted his supporters to rough up a couple of protesters. He also added, as the protesters were being forced to leave, “Don’t hurt ’em. Don’t hurt ’em.” Now, those protesters have sued the President and his campaign for encouraging violence. The U.S. District Judge hearing the matter denied a motion to dismiss a few months ago. I previously wrote about this lawsuit here.

Pres. Trump’s attorneys offered creative, if weak arguments, as his lawyers often do. They argued then Candidate Trump was engaging in his First Amendment rights. It was free speech, they argued. The lawyers also argued that Mr. Trump did not encourage violence. He did, after all, encourage the supporters not to harm the protesters. The judge rejected those arguments when he denied the motion to dismiss.

Now, the issue before the court is whether Mr. Trump should appear for a deposition. The President’s lawyers claim his words are clear and do not need explanation. But, in arguing his words have clear meaning, they make a deposition very likely. His words do not have clear meaning. In one passage, he exhorted violence. In a separate set of words he asked them not to harm the protesters. No, his meaning was not clear. In any normal lawsuit, absolutely, Mr. Trump would be deposed. The Litigator-in-Chief has dug his hole. He said things he should not have said, at a time when he should not have said them. People like that often end up in a lawsuit. That is partly why he spent over $500,000 in legal fees in the second quarter of 2017 and almost $200,000 in the first quarter of the year. See Politico news report.

When a person asks for an accommodation, s/he must be specific. A general request to “reduce stress” at the work place will not suffice. In Murray v. Warren Pumps, 821 F.3d 77 (1st Cir. 2016), the plaintiff had a bad back. His work restrictions included not lifting anything over 10 pounds and not sitting, walking or standing too long. The employer and the employee agreed that the employer would not ask him to violate these restrictions and Mr. Murray would monitor the restrictions. The plaintiff believed the employer asked him to violate the work restrictions. Sometimes, he would complain. Sometimes, he would not.

The plaintiff’s job was monitoring work place safety. He had some issues with the employer’s observance work safety. He also expressed dissatisfaction with the things they had asked him to do. He complained that sometimes, he was asked to perform physical activities that violated his work restrictions. The company met with Mr. Murray and suggested he was not happy there. The employer offered him a severance package. He refused to resign and was fired.

The employee filed suit. He argued among other things that the employer failed to accommodate him. The court dismissed Mr. Murray’s claim that he sought breaks “from time to time” as an accommodation. The court found the request to be vague. And, the employee did not explain in what way the employer refused those requests for accommodation.The employee also pointed to an incident when his supervisor asked him to help paint. When the plaintiff said he could not, the supervisor walked away, apparently not happy. But, acknowledged the employee, he was not forced to do the painting and he did in fact do the painting. The employee also discussed a time when the supervisor told him to perform some wiring. Murray said he could not physically do that. The supervisor told him to “get it done somehow.” The employee found someone to perform the wiring. Mr. Murray did not do the wiring himself. Mr. Murray carried the toolbox, which did weigh more than ten pounds.

Another time, the supervisor asked him to oversee a project that involved a lot of walking. Murray acknowledged that he did not complain about this request, and he did not inform the supervisor that this request would require him to violate his work restrictions. Mr. Murray also did seek help from anyone. The supervisor had left for the day. But, Mr. Murray did not seek out any other supervisor for help. In responding to a motion for summary judgment, the plaintiff said he did not have to show he was actually required to violate his work restrictions. It was enough, he argued, that he was “deliberately requested” to violate his work restrictions.

The court found these incidents did not amount to failure to accommodate. The worker, said the court, must alert the employer that its request would require him to violate his medical restrictions. The employer has no duty to “divine” the requested accommodation when the employee makes a “mundane” request for change at the work place. The court felt that the employee understood he was to monitor the requests and let the employer know when something might exceed his capabilities. The employer did provide many accommodations, added the court.

The court makes a good point. In some circumstances, it will not be clear to the employer that a requested action might stress the employee’s work restrictions. Some supervisors will simply forget. They have many things to consider, other than one employee’s physical limitations. It seems to me that often when a situation is confusing, the courts will defer to the employer, especially where, as here, the employer did clearly provide some accommodations. See the decision here.

When you ask for an accommodation, you need to be careful what you ask for. Because, you just might get it. That is an old saying and it applies to the decision in Dillard v. City of Austin, 837 F.3d 557 (5th Cir. 2016). Derrick Dillard worked for the City of Austin. He was a laborer and field supervisor until he sustained injuries in a car wreck. He could not perform physical labor any longer. After extended leave, he was offered a position as an Administrative Assistant. He was stunned at first, because he did not know how to do “no administrative work.” He did not meet the stated qualifications for the job, three years experience as an Administrative Assistant. So, the city provided him with on-the-job training and let him shadow another Administrative Assistant. He was encouraged to complete additional training, but he never did. His typing skills did not improve. Instead of training on the computer, he was observed to be surfing the internet and playing games. He arrived at work late and left early. He spent some of his time looking for a new job.

The employee started the Administrative Assistant job in April, 2012. By September, he was given a bad performance evaluation. His supervisor testified that he lacked skills, but he also seemed unwilling to improve his skills. Mr. Dillard asked to be moved to a different job and claimed he was not given enough work to do. He admitted he could not complete his one typing assignment because he could not type fast enough. His physical abilities were improving. But, the process toward termination proceeded. At a pre-termination meeting, he admitted the allegations against him were accurate. He was not apologetic for his behavior. He said he was trying to find a new job within the City.

In late October, he was fired. Plaintiff Dillard filed suit saying the city failed to accommodate him. The district court granted summary judgment. The higher court noted that if an accommodation is not working, then the employee may ask for a new accommodation. That is part of the interactive process. The plaintiff argued that the City failed to cooperate when it became clear the new job was not working out. He argued that as his capacity improved, the City should have considered him for jobs that were open. But, the Fifth Circuit was not impressed. The interactive process is a two-way street. It requires that both parties work together in good faith. When they gave him the new job, the ball was in his court. He should have worked in good faith to make it work. The misconduct indicated the was not trying in good faith to succeed in this new position. There was also evidence of making personal phone calls, napping at work, lying about his attendance, etc. This case was now less about the interactive process and more about mis-conduct.

The higher court found no evidence that the City failed to act in good faith, since the employee did not show a desire to try and make the new position work. The court affirmed the grant of summary judgment. Yes, be careful what you ask for, because you just might get it. See the decision here.

Success rates for plaintiffs in federal court have dropped dramatically from the 1980’s. In a study by two University of Connecticut law professors, they reported a success rate of 70% for plaintiffs in federal court in the mid 1980’s. The study looked at adjudicated civil cases of all types. That rate dropped to about 35% by 1995 and stayed in that range through 2009. The professors cannot explain the large drop. They did note that federal government suits for overpayment of veterans benefits mostly disappeared from the docket by 2009 and those suits were generally sure wins for the plaintiff. Otherwise, they could discern no pattern that might explain the large drop. The researchers discounted some possible theories, that poorer cases were being filed for the time period; that more weak sorts of lawsuits were being filed, such as prisoner cases; and that rise in dispositive motions caused more losses for the plaintiffs. The professors explained that if the dispositive motion theory caused this effect, then the plaintiff success rate should increase. Since, winning at summary judgment would be considered an adjudicated victory for the plaintiff.

The professors theorize that the success rate might relate to certain federal judges. That theory is problematical itself. It would be hard to envision a scenario in which federal judges become hostile to plaintiffs for ten years and then relent. But, even so, there is no way at present to determine if what might have caused such a large drop. See ABA Bar Journal report here. The paper, “The Curious Incident of the Falling Win Rate,” is available here.

A female passenger of Lyft has sued the ride-hailing business here in San Antonio. She alleges she was raped and sexually assaulted by a driver late one night. The woman was intoxicated. She blacked out a few times. She asked to pull over to vomit. When she got back in the car, she woke to find the male driver assaulting her. She started punching him. The driver took her home. When she got home, she texted a friend the license plate number belonging to Refugio Campos. See San Antonio Express News report.

The passenger filed a report with the San Antonio Police Department. The suit has been filed in state district court. It will be a problematical lawsuit. Lyft and Uber claim their drivers are independent contractors. So, suing Lyft itself will be difficult.

The trial for the “toughest sheriff” has concluded. I previously wrote about that trial here. The “toughest sheriff” has chosen a strange defense. As his trial reached its conclusion, his attorney argued that the “toughest sheriff” did not have a good lawyer. The lawyer did not explain the judge’s ruling to him, for eighteen months. The “toughest sheriff” did not know he could no longer enforce a ban on unlawful immigration. The defense presented some deputies who testified no one told them they could not enforce the federal ban on unlawful immigration.

The lawyer argued that the judge’s order was ambiguous, hard to understand and it was politically motivated. Its a problematical defense. One of his former lawyers testified, but apparently said little more than that Judge Snow’s order had some ambiguity in it. I cannot imagine any lawyer would testify s/he did not explain to the client what the judge wanted them to do, especially in a high profile case like Sheriff Arpaio. Too, the sheriff was and still is an experienced political operative. He has successful run for office for some 30 years. One would assume he can read a judge’s order and understand it. If he does not understand it, he knows how to seek clarification.

This is a high risk defense. It stretches the limits of credibility. The “toughest sheriff” did not testify. Really, he is the best person to advance a defense based on what he understood or did not understand. I suppose he was not tough enough for court. See CNN news report here.

In litigation, social media has become a very hot issue. Many parties think they can obtain that final, critical piece of evidence from social media. One example is Facebook. Many employers involved in a lawsuit request the employee’s Facebook posts for a certain time period. The rationale is that a victim of discrimination cannot legitimately claim to be depressed if he posts pictures of himself drinking a cool one at the local pub. Or, some defendants will argue, if the plaintiff posts something about being upset with his family or pet dog, then the employer can use that post to argue he was upset about things other than being fired.

Isiah Lester was involved in a  wreck when a truck owned by Allied Concrete Company swerved into his lane and inflicted multiple injuries to him. The collision killed his wife. Mr. Lester sued. Trial was held and Isiah Lester was awarded $6.2 million. His wife’s parents were awarded money, as well. Sometime after the collision but before trial, Mr. Lester posted a picture of himself on Facebook. In the picture, he is wearing a shirt saying, “I love hot moms” and drinking a beer.

Later, after trial, the defendant apparently learned about Mr. Lester’s Facebook account. The defendant, Allied Concrete Company, sued Mr. Lester and his lawyer for among other things, spoliation of evidence. The next day, the plaintiff’s lawyer told his paralegal to tell Mr. Lester to “clean up” his Facebook page. The paralegal emailed the Mr. Lester, asked him about the picture, and told him to delete other pictures. The plaintiff avoided producing any information about the Facebook account. At Mr. Lester’s deposition, he was evasive. Facebook was still new in 2010 and 2011. Perhaps, they thought they could get away with trying to hide the account.

When the defendant pressed for the Facebook postings, the lawyer at first claimed the Facebook account did not exist. Mr. Lester deleted the account. Later, he re-activated the account, but did delete the pictures. The defendant subpoenaed the Facebook account records and eventually obtained all the pictures. The lawyer did not list the email to his paralegal in the privilege log. It looked like he was trying to hide that email from the Defendant. But, in the end, it was also uncovered.

The defendant sought sanctions. The court found that the plaintiff’s lawyer had intentionally omitted his paralegal’s email from the privilege log. The lawyer tried to blame the omission on the paralegal. The court found the plaintiff:

  • spoliated evidence by deleting his Facebook pictures,
  • tried to mislead the defendant by deactivating his Facebook account, and
  • lied in his deposition about deactivating his Facebook account.

The court sanctioned the plaintiff in the amount of $542,000 and his lawyer in the amount of $180,000. The award was tied to the defendant’s legal costs in pursing this information. The court referred the lawyer to the state bar for ethical violations. The court also referred the plaintiff to the prosecutor for his perjury in a civil matter.

This was the first case to sanction a party for trying to hide social media evidence. See the decision in Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) here. The plaintiff and his lawyer went to a lot of trouble to hide the words of one t-shirt. It may well have turned out that he could have explained that t-shirt to the jury and assured them he was suffering emotionally when he drank that beer. Perhaps, that was his first social occasion since the accident. We will never know the full story. But, he and his lawyer made it much worse than it had to be.