In Whitley v. Dr. Pepper Snapple Group, Inc., 2017 LEXIS 68040 (E.D. Tex. 2017), the Plaintiff’s son was diagnosed with autism spectrum disorder in September, 2015. Amy Whitley claimed Dr. Pepper discriminated against her because it denied coverage for Applied Behavior Analysis treatment, a form of therapy for autism spectrum disorder. Dr. Pepper’s Summary Plan Description initially made no reference to ABA treatment. The Plan did not list ABA treatment as excluded from coverage. In September, 2015, Amy Whitley met with an HR person for Dr. Pepper. The HR person said the Plan did not cover vocational rehabilitation training.

On Jan. 29, 2016, Dr. Pepper amended the Summary Plan Description to specifically exclude ABA treatment. The new Summary Plan Description was posted in May, 2016. Plaintiff Whitley filed an EEOC charge and later filed suit.

The employer moved for summary judgment and argued the amendment was intended to clarify the Plan. The Americans with Disabilities Act prohibits a denial of benefits due to a disability. The court found the plaintiff had an association with a person with a disability, her son. Dr. Pepper became aware of her son’s diagnosis in September, 2015. The court found the denial of coverage amounted to a denial of benefits, which is prohibited by the ADA. A term or provision of a health benefit plan may violate the ADA if it singles out a particular disability. The 2016 Amended Plan did single out and exclude from coverage ABA treatment.

The burden then shifted to the employer to provide a non-discriminatory reason for the exclusion. The court was not satisfied with the reason offered by the employer. The court found there was substantial issue of material fact regarding why the treatment was excluded. The court denied the motion for summary judgment, finding that the employee showed mgenuine issue of fact regarding whether the employer’s actions amounted to retaliation. See the decision here.

Many employers require drug tests for their employees. What happens when the drug testing laboratory commits an error regarding the test? Failing a drug test can result in termination. That is what happened in Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017). The employer had a random drug testing program. Exxon Mobil employed third party laboratories to administer the test. The employee tested positive for illegal substances. Gilberto Rincones said he saw DISA, Inc. follow poor procedures in gathering the urine samples. He claims they made a mistake. DISA offered him the opportunity to re-test. He did not satisfy the requirements for a re-test. But, he took a test on his own through another source and tested negative for drugs. He did not complete the rehabilitation program offered by Exxon and was placed on inactive status. He later filed suit against Exxon and against DISA.

On appeal, the Texas Supreme Court found Exxon was not liable for the actions of DISA. The lab was not the agent of the employer, said the court. It had no contract with the lab. And, its requirements of the lab did not amount to control of the lab. The plaintiff sued the employer for discrimination, arguing that three non-Hispanic employees were allowed to continue working for Exxon even after testing positive for drugs. But, the court found those three employees were not good comparisons to Mr. Rincones, because they were management.

The plaintiff sued DISA for tortious interference with his employment and for negligence. But, the court looked at the date his lawsuit against the lab was due. The court found that Mr. Rincones’ right to file suit accrued when he first learned of the false positive result, not when Exxon placed him on active status. He learned about the false positive on April 14, 2008. He was placed on inactive stays in August, 2008. He then filed suit in August, 2010. So, he was too late by a few months, said the court.

The plaintiff also alleged defamation against Exxon. He claimed that because his employer terminated him for a false reason, he would be forced to provide that false reason to future employers. That sort of defamation is known as “self-publication.” The employee is forced to self-publish the defamatory statement. The Texas Supreme Court recognized that many Texas courts of appeals have accepted compelled self-publication in the past. Nevertheless, the Supreme Court refused to agree. The court made the remarkable claim that if it recognized self-publication, then that recognition would encourage employees to worsen the harm done them by the employer. That is, allowing the doctrine of self-publication would prevent the employee from mitigating his damages. The court is basically saying the employee might not look for work if he had to mention something damaging about himself. Such a notion is simply silly. Few, if any employees, have the option of not looking for work after termination. The Texas Supreme Court has continued its antipathy to plaintiffs. It also betrays a lack of connection to average workers who live from paycheck to paycheck. See the opinion here.

What is a disability? A potential client asked me that recently. A broken leg, for example, is not an impairment that would qualify for coverage under the Americans with Disabilities Act. To qualify as a disability, the impairment must be permanent or something like permanent. It must also be serious. In Datar v. National Oilwell Varco, L.P., No. 01-15-00541 ((Tex.App. Hou. 1/19/2017), the employee claimed a impairment involving his back. He said he had a lower back sprain that made it “harder” to sit down, to walk and to pick things up. The Court of Appeals found that an impairment does not rise to the level of a disability unless it affects a major life activity. Yet, the court apparently disregarded evidence that at least once, the employee was in such pain that he had to go to the emergency room and could not work. Too, the court relied on caselaw issued prior to amendment of the ADA in 2009.

The court discounted the plaintiff’s testimony that the sprain made it harder for him to work. It relied, instead, on the medical note that released him back to work. See the decision here. This will be a continuing issue in future cases. Many persons suffer from these debilitating back injuries.

In a recent decision, the Fifth Circuit addressed the difficult question regarding what level of reprisal is enough to constitute retaliation? In Cabral v. Brennan, 853 F.3d 763 (5th Cir. 2017), Javier Cabral worked for the U.S. Postal Service. He complained about discrimination several times. He was then placed on a two day suspension after he allegedly struck a supervisor with a postal vehicle. The employee accused the supervisor of badgering him with questions The supervisor asked him for his driver’s license and Mr. Cabral refused to provide it. Mr. Cabral was placed on suspension for two days.

The employee claimed the two day suspension without pay was in retaliation for his previous complaints of discrimination. The U.S. Postal Service, however, claimed the employee was placed on suspension because he was using a suspended driver’s license. He may have had an occupational driver’s license. But, if so, he failed to produce it when asked. USPS moved for summary judgment. It relied on the decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) which held that acts other than straight suspension, demotion and termination could constitute retaliation. If the employer’s action was materially adverse, then the action could constitute retaliation under Title VII. The employer claimed the two day suspension was not materially adverse. The lower court agreed with the Postal Service and granted summary judgment.

Indeed, the defendant argued that the plaintiff had several DWI convictions on his record. The plaintiff was required to tell his supervisors about any driver’s license suspensions, but he had failed to do so. The plaintiff argued the suspension was retaliation for his prior activity opposing discrimination.

The Fifth Circuit agreed with the lower court. The higher court noted that the plaintiff in Burlington Northern was placed on unpaid leave for 37 days, causing her to fall into a deep depression. The plaintiff here, said the Fifth Circuit, had not shown that the suspension exacted a physical, emotional, or economic toll on him. Therefore, the employer’s action was not materially adverse. See the decision here.

One has to wonder about the facts of this case. Anytime an employee is accused of striking a supervisor, that is a case that is looking to be dismissed. The employee deemed the allegation. But, that sort of allegation forces the plaintiff to start out at a deficit. Perceptions do matter. The record from the lower court indicates Mr. Cabral was eventually paid for those two days of suspension.

Too, that the employer has filed several prior EEO complaints undermines his credibility. Within six months, he filed one EEO complaint and three grievances which alleged harassment and retaliation. Before that six month period, he had already filed two other EEO complaints. Some federal employees, fearing they will suffer some technical issue, think they must file a complaint for each and  every act of harassment. But, in reality, such employees appear to be “frequent filers.” Some lawsuits simply should not be filed.

Many employers have started posting their employee polices online, and not in hard copy format. If so, they will run into the issue presented in Doe v. Columbia North Hills Hospital, 2017 WL 1089694 (Tex.App. Ft. Worth 3/23/2017). Jane Doe was sexually assaulted by a male co-worker. When she sued her former employer, it invoked an arbitration agreement to which she ostensibly agreed. But, Columbia Hospital did not issue a paper copy of the employee manual. It did not ask for physical, paper copy signatures of employees acknowledging receipt of the policies. Instead, it posted the policies online and told employees they must review the policies. The review was part of the Hospital’s orientation. It required the employee to acknowledge she had received “orientation” on problem solving and grievance procedures. But, nothing in the paper specifically mentioned arbitration.

The employer invoked arbitration. The employer won at arbitration. The employee then challenged the alleged arbitration agreement. The Ft. Worth Court of Appeals rightly noted that basic contract principles require that a party to an agreement understand the agreement. A person drafting the agreement, for example, cannot include a provision in the agreement that has type face so small that the other party cannot read it. The court found that the online positing of an arbitration agreement did not provide notice to the employee. The word “arbitration” was never used in any warning to employees asking them to review the online policies. The statement about “problem solving” and “grievance procedures” said nothing about arbitration. The court added that even if the Hospital had specifically pointed to an arbitration policy and said be sure to review it, that might not impose a duty on the part of the employee to read the arbitration policy – unless the employer specified the term of the arbitration agreement. Other courts reviewing online postings have reached a similar result.

The court noted a recent Supreme Court of Alabama decision that found an employee who could have accessed an online agreement was different than a person who actually did access an online agreement. Ms. Doe did not dispute she was warned to review the online policy about grievances. Instead, she claimed the Hospital never mentioned the arbitration policy and she never read the policy. See the decision here.

The first business day after being pardoned, the toughest sheriff is on the attack. Sheriff Joe Arpaio filed a motion on Monday seeking to dismiss his conviction. He insists he was found guilty by a biased judge. But, he accused the first judge of being biased, as well. Accusing a federal judge of bias is a dubious claim in any case. But, when you have been there, done that already, it does seem insincere.

In any event, the toughest sheriff says he may run for office again. See CBS news report.

The motion will lead to an interesting legal issue. A pardon does not indicate innocence. It is more of a forgiveness. As far as I know, there is no requirement that the judge now withdraw her conviction of the toughest sheriff. Good luck, Sheriff.

The toughest Sheriff in the country and the President both hinted the President would pardon Sherrif Arpaio and he has indeed done just that. Pres. Trump pardoned Sheriff Joe Arpaio, even though, technically, the toughest sheriff has not yet been sentenced. See CBS news report. The toughest sheriff has been a loyal supporter of the President and that loyalty has now paid off. But, unfortunately, the toughest sheriff in the country is now excused from profiling Hispanics.

We all suffer from some biases. That is part of human nature. There is, these days much discussion about the Confederate statues and what they represent. Here in San Antonio, we have one Confederate monument in Travis Park. County Commissioner Tommy Calvert, a fine person, insisted last week that that statue represents racism. He stressed that the Secession Declaration from 1861 mentions slavery as the motive for Texas’ secession. He did not explain how the how the secession declaration is related to the Travis Park Monument. In reality, the connection is tenuous.

The statue depicts one Confederate soldier with his finger pointed skyward and his rifle at rest. The statue does not represent Gen. Lee or any of the Southern leaders. It represents the average Confederate soldier. In today’s Army, we refer to the lowest soldier as Joe Snuffy or Private Snuffy. Pvt. Snuffy gives no one orders. He has to take orders from everyone. Pvt. Snuffy is the average soldier. Joe Snuffy is the soldier who stepped up when his state and what he believed to be his country called. We may disagree today with Pvt. Snuffy’s choice, but we cannot disagree about the sincerity of his beliefs.

Commissioner Calvert and others insist that the soldier in Travis Park represents racism and Jim Crow laws. I cannot say, and I think no historian can state categorically what all motives lead to the erection of that monument. But, if we look closely, the statue does not represent the things it has been accused of.

The statue was designed by Virginia Montgomery. We know from newspaper articles of the time period that Virginia was the daughter of Julia Montgomery, a former member of the Daughters of the Confederacy here in San Antonio. The statue’s critics have assumed that because of the connection to the Daughters of the Confederacy, there must become hate-filled motive behind the erection of that statue. But, beware of assumptions. Every discrimination lawsuit is based on someone’s false assumption.

Virginia Montgomery was an artist living in New Orleans. How did her mother end up in San Antonio? Mrs. Julia Montgomery was simply trying to make ends meet. Her husband was John Alfonso Montgomery, a captain in the Confederate army. He enlisted in April, 1862. He enlisted a year after the big rush to join. The more patriotic Southerners tended to join in April-May, 1861, when the war first started. Joining in May, 1862 suggests Capt. Montgomery was not among the more patriotic or devout Southerners. Two years later, he was dropped from the rolls of active soldiers in June, 1864, indicating he was probably wounded and could no longer perform his duty.

Capt. Montgomery was a Quartermaster for the 32nd Alabama Infantry regiment. Prior to the war, he was a “cotton merchant” in Mobile, Alabama. “Cotton merchant” is a generic term that probably means he was a cotton broker. Cotton brokers accepted crops of cotton from a planter or farmer and then took the risk of selling it to overseas or New York markets. Cotton brokers generally lived well. They were solidly in the middle class. It was an occupation, for example, that was generally not open to the Irish and German immigrants of the time. So, John Montgomery was doing well. That was good, because he and his wife, Julia, had seven children. The youngest child was Blocker Montgomery, born 1861-62. Blocker was Julia’s maiden name.

It was said that John came back from the war “broken in body and fortune.” He returned to Mobile after the war. The family suffered. John was listed with no occupation in the 1870 census. That means he was not working. In the 1871 Mobile City Directory, his occupation is simply listed as “merchant.” A description that means nothing for that time period. It is equivalent to describing someone in 2017 as a “businessman.”

A year later, John is a policeman. A year later, he has no occupation. The next year, he is listed as a “cigar dealer.” The next year, he is a clerk. At the age of 50 years old, he is employed as a clerk. The next year, he is not listed in the Mobile City Directory, at all. Like many returning veterans, he could not hold a job. Even worse, every year, the address for the family of nine persons changed. Capt. Montgomery could not even hold onto the family home.

In 1873, Mrs. Julia Montgomery appears in the New Orleans City Directory. That appearance suggests she left Mobile looking for work as a teacher.

The next year, 1877, John, the former captain does not appear. Instead, his son, John A. Montgomery, Jr. is listed. That likely means John, Sr. died or moved away. Since we know Julia will later be described as a widow, it is likely he passed away. And, now surprisingly, his son, 25 years old, is the head of the household. Normally, the widow would be listed as the head of the home and she would be described as the widow. But, Julia does not appear in the 1877 Mobile City Directory. We can only surmise that she was living elsewhere, perhaps in New Orleans trying to earn a few dollars.

Julia was surely in San Antonio by 1899 because in that year she is described in San Antonio papers as a member of the Daughters of the Confederacy here in San Antonio. She is described as someone who lived in San Antonio for many years. That sort of movement means she was moving for work. Year later, she will be described as an educator for some 50 years. It is likely, she was moving to San Antonio or New Orleans or both for work.

And, where was Virginia during this time? Virginia appears in the 1880 census living with her sister Faith. Faith Montgomery married a farmer, David Dunlap, in upstate Alabama. They were not wealthy. They listed a net worth of $350 in 1880, which was normal for a working class family.

By 1878, John A. Montgomery disappears from Mobile records. Apparently, he too passed away. The whole family was scattering to the four winds.

By 1887, Virginia is living in new Orleans on her own. Shock. Take a breath. It was very unusual for a single woman to live on her own, not with family. We know she was alone, because other family members who were working would have been listed in the City Directory for the same address. But, no other Montgomery’s appear.

Virginia was listed as an artist. This was a time when female artists were very unusual. When she designed the Travis Park monument in 1899, she was described as the first woman to ever design a monument. That could very well be true. In 1899, Virginia designed the Confederate monument for free. So, she was still in touch with her mother in San Antonio.

Julia attained some notoriety. She died in 1922. Her lengthy obituary explained she was very active in clubs, the Daughters of the American Revolution, the Daughters of the Confederacy, the Woman’s Club and others. She was one of the leaders of the suffragette movement in New Orleans. She voted for the first time in her life just two years before – in the 1920 presidential election. She was said to be the oldest voting woman in New Orleans the 1920 election. When she passed away, her age was given as 99. The 1870 census indicates she was born in 1830.  Regardless, her age was advanced, but he was still very active up to her death.

Virginia acquired some local fame as an artist. In 1930, she wrote a lengthy article for the New Orleans Times Picayune about “Bachelor Girl, A World Leader.” In the article, she explains that a single woman is not “unnatural” and that she can be a “world leader.” Virginia never married. But, she lead a full life. In one year, she is mentioned teaching Bible Study to students in Lower Algiers, a working class neighborhood across the river from New Orleans. In another lengthy Times Picayune article, her artistic approach is described. She favors, she said, three watercolors about “Negroes.” Doubtless, Virginia shocked readers again by suggesting African-Americans were appropriate subjects for serious art.

Julia passed away while living with Virginia. The home was and still is located at 7924 South Claiborne. It is a humble home. Nearby is a small park known as Palmer Park. The DAR planted a tree there in honor of Julia.

It is said in a 1911 San Antonio Light article that Julia came up with the concept for the Travis Park monument. That likely means she suggested that it represent a typical soldier, not a general. If Julia developed the concept and Virginia designed it, they are not what we expected from the Daughters of the Confederacy. I think most of us would expect the Daughters to be more like Gone with the Wind if we were to meet them. Perhaps, Commissioner Calvert and Councilperson Trevino expected the same.

The two Montgomery ladies were not Gone with The Wind. Julia struggled, having to move from city to city to work. She had to leave her family to make things work. Her children were scattered or dead. Yet, through all that, she maintained her love and affection for her veteran husband. Capt. Montgomery was a failure by some standards. But, to those who knew him best, he was apparently much more. To his family, he was Pvt. Snuffy of the CSA.

 

The Fourth Court of Appeals denied the appeal of the City of San Antonio regarding its labor agreement with the San Antonio Firefighters Union. See San Antonio Express News report here. The City had argued that the evergreen clause in the Collective Bargaining Agreement made the contract an unconstitutional “debt.” This is the second time the city has lost on that issue before the Fourth Court of Appeals here in San Antonio. I mentioned the prior loss when the issue was the CBA with the San Antonio police officers. It is the same issue in both labor agreements, the “evergreen” clause that keeps the contract in place even while a new pact is being negotiated. See that prior post here.

As before, the City surely knows its chances for success increase dramatically when it appeals to the Texas Supreme Court.