To mark Memorial Day, I would like to recall two area San Antonio heroes. They were both fiends of mine. They both died in war zones back in 2005 and 2006 when I was deployed myself.

SSGT Clinton Newman was a fine soldier. He was a bright young man in the 321st Civil Affairs Brigade during my brief time with the 321st here in San Antonio. One of the nice things about being in your hometown unit is that I actually ran into a member of my unit at a movie. I ran into SSGT Newman when he was at a movie with his girl and I was with mine. He was one of the few 321st soldiers still here back in late 2003 and early 2004, while most of the unit was deployed. See a biographical sketch to learn more about someone who would have been a fine citizen of San Antonio and was already an excellent soldier.

I served with Albert E. Smart way back in the 2/141 Infantry Battalion in Corpus Christi. We were young company commanders together. Albert was gung-ho and always smiling. Years later, I was quite surprised to see him in the 321st CA Brigade here in San Antonio. He deployed in 2005 and passed away in Kuwait on the way to Afghanistan. It was such a shock that someone so young, in such good physical shape would pass away from an illness. I think Heaven is in much better physical shape now that Albert is there. And, I expect there are a great many more smiles among its citizens. See a memorial here to learn more about my buddy, Albert.

According to a recent study, lawsuits based on family care or pregnancy discrimination are on the rise. The Center for Worklife Law at the University of California produced the study. The Center found that lawsuits based on pregnancy discrimination or caring for family members more than tripled from 2006 to 2015. The study also found that employees won 67% of these cases that went to trial. The study looked at 4,400 such cases.

Cynthia Thomas Calvert, senior adviser to the Center, says American families are assuming a greater share of the burden of caring for persons with disabilities and those persons who are aging. That leads to greater stresses at work. See CBS news report.

There is no specific federal statute or Texas statute that addresses discrimination against care-givers. But, the Family Medical Leave Act does protect some workers who need time off to care for members of his/her immediate family. And, various other statutes protect persons who need accommodation for disability or who are pregnant.

So, fewer “managers” will be eligible for overtime. The Department of Labor raised the salary rate at which overtime would apply. I previously wrote about this change here. The salary level for certain low level managerial jobs is currently $23,660. If a low level manager is paid that amount or less, s/he would be entitled to overtime. So, employers had some incentive to make persons who should be hourly “managers” in name only. See CBS news report.

The new regulation takes effect in December. Employers have time to become familiar with the new requirements.

Well, it looks like Monique Rathbun is dropping her lawsuit against the Church of Scientology. See San Antonio Express News report. I first wrote about that strange lawsuit here. Ms. Rathbun filed a motion asking that her suit be dropped. She did not provide a reason for the dismissal. She fired her lawyers a few months ago. They were surprised since they won their appeal at the Court of Appeals and expected similar success at the Texas Supreme Court.

Litigation is like that. Like people, lawsuits are always unpredictable.

One of the unintended consequences of arbitration is what to do when arbitration is invoked? Employment arbitrations typically start with an employment lawsuit. The employee often forgets s/he had even signed an arbitration agreement. So, the employee files the lawsuit, not anticipating a claim for arbitration. Then, the employer pulls out the arbitration agreement from dusty files. The employer invokes arbitration. What happens to the lawsuit? Many employers insist the employee dismiss the lawsuit outright.

But, the Fifth Circuit in Fonseca v. USG Insurance Services, Inc., found that to be error. In Fonseca, the employee dismissed her lawsuit when arbitration was invoked. But, later the employer failed to pay the arbitral fees. AAA then dismissed the arbitration, because the employer failed to pay the required fees. All this takes months to evolve. Months later when AAA dismissed Ms. Fonseca’s arbitration claim, the statute of limitations had passed for the plaintiff. It was too late for her to then re-file her former lawsuit. On appeal, the plaintiff argued that the arbitration proceeding tolled the statute of limitations. That is, she argued that the time period was postponed while her claim languished with AAA.

No, said the Fifth Circuit. Prior caselaw states that a arbitrations do not toll the statute of limitations. Filing an arbitration claim does not stop the clock. She should have requested a stay of the original lawsuit, said the court. See court decision here. That is, the Fifth Court said she should have retained the lawsuit, not dismiss it, and simply ignore it while the arbitration claim proceeds. One wonders if USG deliberately failed to pay the arbitration fees hoping for this result.

The remarkable thing is that the employee is in arbitration only because the employer pulled some long-forgotten agreement from an old folder somewhere. Yet, when the employer fails to pay its fees, it suffers no repercussions. The central fallacy of arbitration is that it was never intended for typical consumers. It was intended for generally business savvy large corporations and labor unions. Employees and consumers are paying the price for this poorly designed private system of justice.

Obesity is sometimes referred to as a growing epidemic. There is more obesity today. But, obesity in itself does not rise to the level of a disability, according to a recent Eighth Circuit Court of Appeals decision. In Morriss v. BNSF Railway Company, No. 14-3858 (8th Cir. 4/5/2016), the plaintiff was 5’10” and weighed 285 pounds. He was at one time “pre-diabetic,” but as of the time when he applied for a job with BNSF, he suffered from no particular diagnosis. Mr. Morriss had a body mass index of 40.9 for one physical exam and 40.4 at another physical exam. BNSF had a policy against hiring anyone for a safety position with a BMI greater than 40. The plaintiff lost on summary judgment at the district court level.

The plaintiff appealed on the grounds that he was regarded as having a disability. The Eighth Circuit disagreed. It said to qualify as a disability under the ADA, there must be a physical impairment that falls outside the normal range and that impairment occurs as a result of a physiological disorder. The plaintiff cited more recent cases based on the ADA Amendments Act that found there need be a physiological disorder only when the weight falls within the normal range. But, said the court, Congress did not change the definition of physical impairment when it amended the ADA. It did change the legal standard, but did not change the definition of physical impairment. And, that definition requires there be some underlying physiological disorder.

The court then found that the employer did not regard Plaintiff as having a disability. Instead, it regarded him as having physical characteristic. So, yes the employer could regard him as having a physical characteristic that could lead to future medical problems. See decision here. The Eighth Circuit joins the Second and Sixth Circuit in finding that obesity alone does not qualify as a disability under the ADA.

Regardless of this decision, as the population becomes heavier, I expect we will see more litigation over this issue.

David Brooks, the generally conservative commentator, does not support Donald Trump. He says this is a “Joe McCarthy” moment for the Republican Party. See San Antonio Express News commentary piece. He refers to Senator Joe McCarthy, the Senate bully. In his zeal to uproot all vestiges of Communism or Communist sympathizers, he bullied, scared and threatened his way across Washington, D.C. Everyone was afraid of Joe McCarthy, because they feared being branded as “soft” on Communism. Like Donald Trump, Joe McCarthy shot from the hip. For example, he stated flatly, like he knew and only he knew, that there were dozens of Communists in the federal government. He claimed in one speech to have a list in his hands of 205 known Communists in the State Department. Later, in the Senate, he said the number was actually 57. Still later, he claimed it was 81. That alleged list lead to Senate hearings looking for Commies anywhere in the federal government. Overnight, Joe McCarthy became a household name. He became an albatross for the Republicans. Gen. Eisenhower, while campaigning, said he supported Mr. McCarthy’s goals, but not his methods. According to some accounts, in actuality, the President had planned a sharper attack on Sen. McCarthy, but backed down at the last minute.

When the Senator ran his own committee, he destroyed people, based on little more than suspicion. His browbeating tactics in Senate hearings offended his colleagues. But, afraid of what he would do or say, the other Senators said nothing.

In looking into the U.S. Army, he could find no evidence of subversion after weeks of investigation. But, he was convinced the Army had been “soft” on Communists. Frustrated, he started focusing on the case of Irving Peress, a New York dentist. Mr. Peress had been drafted in 1952. In his papers, he had disclosed a former membership in the American Labor Party, a leftist organization. When asked about his political affiliations, he had left that blank. Capt. Peress was promoted to Major in 1953. Sen. McCarthy started a campaign  to find out who had promoted Maj. Peress. The question, “Who promoted Peress?” became a conservative rallying cry. All this time, Sen. McCarthy knew that the major had been promoted automatically by the provisions of the Draft Doctor’s Act, a recently passed law which Sen. McCarthy had supported.

When called before the committee, Capt. Peress invoked the 5th Amendment numerous times. He insisted that citing the 5th Amendment did not amount to guilt. Later, Sen. McCarthy demanded that the Army court-martial Capt. Peress. The pressure eventually forced Capt. Peress to request a discharge. He was discharged honorably with a promotion to major. The committee then called on his commander, BG Wicker to explain how he was promoted and discharged without a court-martial. BG Wicker, a West Point graduate, had been at Normandy. He had lead an Infantry battalion at the key Battle of Brest. He was a hero. He was asked about his approval of the discharge orders for Maj. Peress. Based on advice from the Army counsel, he refused to answer certain questions. The Senator badgered him, and accused him of perjury. He said the general was not fit to wear the uniform.

“Tail-Gunner” Joe had been an enlisted man in the Army during WW II. His abuse of BG Wicker caused many people to turn against Sen. McCarthy. All the general did was approve discharge for an officer who had committed no transgression while in service. As BG Wicker said many years later, he was initially not unsympathetic to Sen. McCarthy. But, as soon as the hearing began, he quickly became disillusioned. Sen. McCarthy, said the general, was an opportunist. The Senator’s abuse postponed Zwicker’s promotion to Major General.

The debacle with BG Wicker lead to the Army hearings. Sen. McCarthy would hold hearings on live television, the new medium, digging deeper into so-called Army tolerance of Communism. Millions watched as he browbeat and interrogated various Army officials. In one such hearing, the chief legal representative for the Army, Joseph N. Welch pressed the committee about some supposed 130 persons who worked in defense plants and supported the Communist party. Sen. McCarthy jumped into the conversation. He insisted Mr. Welch explain the case of Fred Fisher, a young lawyer who worked in Mr. Welch’s law firm. Mr. Fisher, insisted the Senator, had once belonged to the National Lawyer’s Guild, the “mouthpiece” of the Communist party.

The National lawyers Guild is still around. It is indeed liberal leaning, but it is also independent of any political affiliation. Sen. McCarthy had to know this.

Joseph Welch accused the senator of cruelty. The Senator persisted, demanding to know about Mr. Fisher’s former membership. Mr. Welch famously replied, “Senator, may we not drop this? We know he belonged to the National Lawyer’s Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir, at long last? Have you no sense of decency??” When Sen. McCarthy persisted, Mr. Welch cut him off. He reminded him that he could have asked about Fred Fisher any time that day. He sat within six feet of Mr. Welch. He told the chairman of the committee to call the next witness. The gallery then erupted in applause and a recess was called. Sen. McCarthy’s decline began soon after.

Fred Fisher did indeed once belong to the NLG during law school. But, as Mr. Welch pointed out, this was needless trashing of a man at a time when membership in liberal organizations could ruin a man’s career. This line of inquiry served no purpose, other than advancing Sen. McCarthy’s political goals.

This is the Republican Party’s Joe McCarthy moment. Donald Trump has trashed POW’s, Mexican immigrants, women, persons with Eastern European last names, persons with disabilities, and Moslems. The Republican leadership can support someone clearly advocating bigotry, racism and anti-female bias. Or, they can insist Mr. Trump display some minimal level of decency.

 

 

The continuing saga of the San Antonio Police Officers Association lawsuit has lead to a court ordered mediation. The lawsuit is currently on appeal with the Fourth Court of Appeals here in San Antonio. The City filed a motion seeking that the parties be ordered to mediation. See San Antonio Express News report. Mediation will not work unless both sides are ready to discuss settlement. So, court-ordered mediation rarely works. It may be that the Fourth Court of Appeals, for whatever reason, believes the union is ready to talk. Up to now, the union has obstinately insisted that the City drop its lawsuit before it consents to talks.

Sometimes, in a hearing, one or both of the parties will say something verbally they would not say in writing indicating they are ready to discuss settlement. Unless that sort of verbal signal occurred, the court ordered mediation will likely lead to nowhere. The San Antonio Police Officers Association has been so public in its opposition to any talks so long as the lawsuit is pending that they really cannot back down, now.

There are many ways to negotiate. But, one of the hardest ways to negotiate is to draw a line in the sand. Ultimatums rarely work.

As if to prove that a person can file suit about anything, Professor James Tracy has sued the Florida Atlantic University over his termination. Mr. Tracy is the person who some months ago denied that the Sandy Hook massacre occurred. The parents of one young victim, Noah Pozner, 6 years old, claimed that Mr. Tracy harassed them and challenged them to prove their son existed. The professor was reportedly taunting the parents. He was fired last January.  Mr. Tracy was previously reprimanded in 2013 for writing on his blog that the Sandy Hook massacre was staged and for questioning the validity of other mass shootings. See CBS news report.

He has filed suit alleging First Amendment violations and wrongful termination. It is true that a state agency may not take action against an individual for expressing an opinion in a public way. But, harassing or taunting is not protected free speech. The parents of Noah Pozner described the harassment in an opinion piece published in a Florida newspaper. So, the employer can show it relied on the perception of other persons. The school will not even have to argue it believed Mr. Tracy was harassing. It can argue simply that it relied on a victim’s parents.

Too, it is one thing to have strange ideas. But, when the strange idea is part of the lawsuit, then one’s credibility starts at a deficit. Mr. Tracy’s case will be a difficult one from the get-go.

On-call scheduling has not been well received. It is a new trend in reducing personal costs. But, it causes workers substantial stress, since they do not know until a few hours before or the night before whether they will be working. This late notice makes arranging child care virtually impossible. Attorneys general from eight states and the District of Columbia are investigating the practice. So far, they have simply sent letters seeking payroll records and policies. But, those letters prompted some large companies to drop the practice. See ABA Bar Journal report.

I would expect on-call scheduling would have greater impact on female workers, since they are more often the workers arranging child care. So, this sort of practice would impose a greater burden on women. The practice would then constitute disparate impact on female workers. I could also see how such scheduling could also aversely impact workers with disabilities. This sort of business practice may cost an employer much more over the long-term than it saves near term.