San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

 What does it take to show discrimination, if this is not enough?  The best evidence to show discrimination is almost always what we call direct evidence.  The "n" word, for example,  is always good evidence to show racial prejudice.  Using the term "old man" is very good evidence to show age bias.  So, this case where an employer refers to an African-American as "boy" several times over a two year period is very good evidence.  Yet, inexplicably, the 11th Circuit Court of Appeals affirmed the grant of summary judgment.  See Alexander v. Opelika City Schools. 

Summary judgment is where a judge essentially finds that a plaintiff (employee) does not have adequate evidence to justify having a trial.  To say that "boy" is not enough evidence to justify a trial is very hard to believe.  Frankly, many appellate courts apply an unrealistic standard for evidence.  

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 I served one year in Iraq.  I and many of my comrades could not have survived without the service of hard-working Iraqi Muslims.  Since returning home, I have been a little surprised to hear the folks here at home denigrate all Muslims.  i cannot accept that.  Some perhaps, but not all.  The Moslems I knew in Iraq were amazing persons, who, I believe, were made better by their faith.  Not all, of course.  But, some yes.  I knew a few Muslims who displayed an amazing humility and decency.  It is no more true to say all Muslims do this or all Muslims do that than it is to say all Christians do this or all Christians do that.  

This is off topic from my normal employment and labor law post.  But, I do comment on the Iraq and Afghan vets.  It would not be fair to fail to mention the hard-working, devout Muslims I knew and enjoyed when I was there.  Those Iraqi interpreters were devoted to improving their country.  But, unlike us, the Iraqi interpreters cannot leave the violence after a year.  They go home to it everyday.  Iraqi interpreters often have to sneak their way home to avoid being discovered as US employees.  Those Iraqis serving with us are targeted like us.  But, unlike us, they cannot escape the violence. They are paid well.  But, no one risks his/her life time and again for mere money.  And, no one risks the lives of their families time and again for mere money.  

My former translator was captured, tortured and killed.  Her only crime was that she worked for us.   Other interpreters I knew were targeted in their homes and in their neighborhoods.  Almost all of our interpreters were Muslim.  None tried to kill me or any US soldier.  None of our interpreters ever tried to kill anyone.  Indirectly, however, they fought the good fight simply by interpreting for us and providing desperately needed cultural advice.  They risked all.  

The "bad guys" in Iraq, what we referred to as Anti-Iraq Forces, would love to obtain the names of our interpreters.  They hate the interpreters with a passion.  It is ironic that many in the US denigrate all Muslims, while the Muslims I knew were forced from their jobs due to threats or are dead because - simply they worked for us.  

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 Sometimes, management lawyers like to scare potential clients and sometimes, they are simply concerned.  But, either way, they over-state the effect EEOC has.  The EEOC means well, but they simply have too many cases to perform an actual investigation.  Each investigator carries 75-80 cases per investigator.  Their budget was cut way back in the 1980's and has seen little relief since.  One local San Antonio management lawyer actually suggests business owners should be wary of the EEOC.  ("The EEOC Is On The Hunt. Are You The Prey?")  Is he kidding??

He must understand, as we all do who deal with the EEOC, that the EEOC very rarely finds in favor the employee.  Unfortunately, the EEOC is often a paper tiger.  

I was in federal court once when a federal judge chastised a government lawyer for suggesting that since the EEOC did not find in favor of the employee, there was something wrong with the employee's case.  The judge fussed at the lawyer and told him the EEOC does little or nothing in almost every case they get.  The EEOC means well.  They really do want to do right by the employee and the employer.  But, unfortunately, they accomplish very little in 99 out of 100 cases. 

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 Eight ways to lose a non-compete case.  See gruntled employees blog to see how an employer can lose a lawsuit regarding a former employee who has apparently violated a noncompete agreement.  The post provides a nice summary regarding what to avoid.  

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 To show same sex harassment, one must show: 1) the alleged harasser made explicit or implicit proposals of sexual activity and that the sexual harasser was homosexual, 2) the harasser was motivated by general hostility toward members of the same sex, or 3) direct, comparative evidence showing different treatment for members of the same sex than for members of the opposite sex.  See:  Love v. Motive Enterprises, LLC.     In Love, the employee alleged several acts of discrimination by a female supervisor: the female supervisor would rub her breasts against Ms. Love many times; the female supervisor locked Ms. Love in the bathroom and said she would not unlock it until Ms. Love was "nice" to her; the supervisor rubbed her groin against Ms. Love's leg; and more.  But, the Fifth Circuit found that Ms. Love had not presented evidence that the female supervisor was homosexual.  

Actually, Ms. Love did present such evidence.  But, she provided recollections of the supervisor's homosexual acts after she had been deposed.  She provided an affidavit recalling homosexual acts by the supervisor.  But, this was after she had already testified in her deposition that she could not recall homosexual activity by the female supervisor.  

To some people, this late, new evidence would seem to still be evidence.  But, the to the Fifth Circuit, that is late evidence.  In the minds of some judges on the Fifth Circuit, if such evidence comes late, then it is suspect.  That is because some Fifth Circuit judges try to ascertain the facts or the truth behind allegations.  But, this matter was before the Fifth Circuit on appeal from a grant of summary judgment.  So, the judges should not have been weighing the evidence. 

Summary (or quick)  judgment occurs when the court essentially kicks a case out of court saying they have no case.  But, here, Ms. love does have a case.  She remembered a key fact late, but she recalled it all the same.  She ought ot have her day in court.  The fact that she remembered something after her deposition would be a good question for cross-examination.  But, it really is not enough reason to grant summary judgment.  

That is why Judge Dennis concurred in part and dissented in part.  He agreed with some things but disagreed with the part of the main decision which was weighing evidence.  When considering summary judgment, judges should not weigh evidence.  They should, instead, be giving the the employee the benefit of the doubt regarding all evidence.  

I have to say, I really am appalled at the many conclusions of fact the court reached in this decision.  They should not be resolving factual issues at all when deciding on summary judgment.  The court should give the employee the benefit of the doubt regarding all factual issues and then determine if she has a case.  

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 Is San Antonio far behind?  Ft. Worth passed a broad anti-homosexual discrimination ordnance.  The ordnance applies to transgender folks, as well as to gay or lesbian persons.  This ordnance only applies to the city of Ft. Worth.  This ordnance was passed in response to an incident at a gay bar where the police allegedly harassed some gay men.  So, it is not likely that other Texas cities will follow suit.  

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 The Genetic Information Nondiscrimination Act (GINA) takes effect  Nov. 21.   GINA prohibits discrimination based on genetic information.  Among its provisions, it will prohibit insurance companies and employers from requesting family medical history from employees except for a few circcumstances.  It will prohibit insurance companies from using family history information to set premiums or deny coverage. 

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 Cathy McBroom is headed back to Galveston with a promotion.  See Texas Lawyer story.  Ms. McBroom was one of the ladies complaining about Sam Kent's sexual  harassment.  Judge Kent later accepted a plea bargain and is doing 33 months in a federal penitentiary.  Ms. McBroom had been Judge Kent's Case Manager.  She was transferred to the Houston Division in 2007 when she made her complaints.  That is, she was transferred to Houston to work for other federal judges.  She will now go back to Galveston as deputy clerk in charge of the Galveston Division where she will serve as Case Manager for another federal judge. 

If only all sexual harassment complaints could turn out so well......

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 Many employers seek to reduce cost by hiring independent contractors to perform some work.  The employer does not have to pay benefits to an independent contractor.  But, what is an independent contractor?  The IRS uses one test to determine whether an employee is a true independent contractor and not just an employee under a different name.  Department of Labor uses a different test.  But, a recent decision by the Fifth Circuit Court of Appeals addresses factors found in both tests.  

Cromwell, Et Al v. Driftwood Contractors, Inc. Et Al was decided on Oct. 12.  Cromwell and another man worked for Driftwood performing a great deal of electrical work in the aftermath of Hurricane Katrina.  Cromwell and his co-worker invested $70,000 in providing their own equipment, says Mike Maslanka.  They provided their own insurance and paid their own taxes.  They were so busy that they could not work for anyone else.  That factor made the difference, says Mr. Maslanka.  Because, the Fifth Circuit concluded they were so economically dependent on Driftwood that they were actually employees, and were not independent, at all.  

This was a Fair Labor Standards Act lawsuit.  Cromwell and his co-worker had filed suit for overtime wages.  By claiming overtime wages, Cromwell and his co-worker were claiming they were employees, not independent contractors.  Summary (ie, "quick") judgment had been granted in favor of the employer, Driftwood, at the lower court.  But, the Fifth Circuit reversed that summary judgment, a rare move for the Fifth Circuit.  So, economic dependence can make a difference, even to the Fifth Circuit.  

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 You're a federal employer and you have some "dead weight" you want to get rid of.  One method is to privatize your services.  Privatization allows the federal employer to "abolish" all jobs within a given department and let the new company hire who it chooses.  The new company can screen each employee and see who it wishes to keep.  

The danger in this approach is that the new employer will not the old employees.  Most new employers would want to hire some former management person to help them screen the old employees.  What if the former manager bases some or all decisions on prejudice?  This hiring process would present some temptation to. for example, to get rid of older employees or those might be chronically ill.  If the new employer relies on the former manager, then the new employer may be just as liable as the manager for improper motives.  

In any privatization situation, the new employer needs to watch carefully how it makes hiring decisions.  

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 Today comes another Veteran’s Day.  Many of us recall a grandfather who served or an uncle who endured.  But, as Pres. Obama, noted, the same service we grew up hearing about occurs today, everyday.  The 13 who died at Ft. Hood exemplify the thousands who have endured in this generation’s two wars. 

 CW2 (Ret) Cahill was killed at the age of 62.  Retired, he came back to Ft. Hood to serve those deploying and returning.  When I went to Iraq in 2005, many of those appearing with me at Ft. Jackson, South Carolina were retirees who volunteered to come back to active service and lend a hand. 

After retiring as a major with service in the National Guard, CPT Gaffaney persisted for three years to return to the Guard as a psychiatric nurse, his civilian occupation.  Hampered by a hearing deficit, he pushed to serve at this time of need.  He wore down the Army and finally returned for a second career as a Reserve officer.  When I reported to Ft. Jackson in 2005, we had one Lieutenant-Colonel, who pushed and pushed for two weeks to be sent to Iraq.  He had diabetes.  He swore that his meds could be obtained in Iraq.  But, the medical folks at Ft. Jackson did not believe him and would not let him go.

When I was in Iraq, I went on a mission to visit some significant Iraqi officials.  On that convoy was a young female NCO.  She had graduated from college right after 9/11 with an engineering degree.  She joined the Army as an enlisted person and became an intelligence analyst, probably a very good one.  Here she was going outside the wire to collect intelligence.  She could have been anywhere that day, but she chose to be in Iraq, risking IED’s and more to collect critical information first hand. .

When I reported to Ft. Jackson in 2005, some 20-30 of my fellow soldiers were retirees who volunteered to come back and serve as Civil Affairs officers and NCO’s. 

Pres. Obama said: "You may remember the stories of a grandfather who marched across Europe; an uncle who fought in Viet Nam; a sister who served in the Gulf.  But as we honor the many graduates who have served --  all of us -- every single American - - must acknowledge that this generation has more than proved itself the equal of those who've come before." 

The large group of us, some 100 of us, were sent to California after Ft. Jackson.  We were to marry up with our Civil Affairs units and conduct train.  We had seven "full bird" Colonels in our group.  A sharp, able bunch.  The Civil Affairs brigade called them to a meeting.  The brigade told the Colonels, " we have some good news for you, we do not need you and you can go home."  The Colonels responded, "no, you called us from our civilian jobs, you must take us.  We are here to serve and we will serve."  One or two had contacts at the Pentagon.  They pressured the Civil Affairs Brigade to take them and put them to work.  All seven served their tours with distinction.

Pres. Obama: “We need not look to the past for greatness, because it is before our very eyes.” 

Those of us who reported to Ft. Jackson in 2005 formed a bond that lasted throughout our twelve month deployment.  Near the very end, in the midst of our two week departure for home, a brave, gallant First Sergeant was killed.  Losing one of us was a kick in the gut.  Soldiers I admired blamed themselves, for nothing. 

But, I know:

Pres. Obama: ". . .  here is what you must know: Your loved ones endure throughout the life of our nation.  Their memory wil be honored in the places they lived and by the people they touched. Their life's work is our security, and the freedom that we all too often take for granted. Every evening that the sun sets on a tranquil town; every dawn that a flag is unfurled; every moment that an American enjoys life, liberty and the pursuit of happiness -- that is their legacy.”

Somewhere there is a town that is tranquil, a flag unfurled, and Americans smile because there are men and women like CW2 (Ret) Cahill, CPT Gaffany and 1SGT Saenz. 

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 I do not what is going on, but there is another story about a Manager allegedly telling her employees not to speak Spanish in the workplace.  See local San Antonio Express News story.  This was regarding a non-profit agency.  Sometimes, I just wish I could give a massive presentation to all Managers and manager wannabes.  Do not tell your employees to speak only English unless you have a very good reason......

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 Unemployment is now over 10%.  First time since the early 1980’s.  There are indications that the economy is improving.  But, still, some employers will take this opportunity to get rid of some folks.  Beware persons with disabilities, and others.   Many employers view this as an opportunity to get rid of some employees viewed as less than desirable.  

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 Early reports (always suspect) are that the shooter at the Ft. Hood massacre was motivated at least in part by some sort of Islam fervor.   See this post also.   But, his cousin was quoted as saying the shooter was very upset by the horrors of war.  Maj. Hassan counseled many soldiers at Walter Reed Army Hospital.   Through those soldiers, he apparently saw some of the horrors of the Iraq war.  I am sure the counselings had to play some role in the massacre.  As a few vets said in the Nov. 8 edition of the Express-News, something like this was sure to happen sooner or later.  

Still not told in this war is the toll it takes on soldiers, more so than past wars, such as WW II.  Suicides are way up in the Army now, at levels not seen since the end of the Viet Nam war.  The Army was much bigger then.  So, this is a large concern. 

 As I tried to explain to a friend, I do not doubt that "good" Moslems will condemn this massacre.  As Maj Hassan's Imam said, these are not the actions of a good Moslem, at all.  I know.  I served with a couple of truly amazing Moslems in Iraq.  If they were Christian, I would describe them as very, very Christian.  They displayed over the year I knew them a remarkable humility and kindness in the face of great risk and danger. 

Shortly after I left Iraq, my translator was tortured and killed for no greater crime than she worked for the USA. Everytime we went outside the wire, we depended on some Moslem translator and he depended on us,   Yes, Moslems kill.  But, many Moslems risk their lives for us and for their own country. 

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 From a more sociological perspective, the San Antonio Express news agrees that requiring New Mexico employees to only speak English is wrong on many levels.  See story.  The Express news adds that New Mexico, of course, was Hispanic long before it became part of the US.  According to the author, Ruben Navarrette, the employees who were fired come from old New Mexico families.  So, they are no immigrants and are speaking their "normal" tongue.  

As I recently posted, an employer who requires employees to only speak English must have a clear business reason.  Otherwise, it will appear that discrimination was a motivating factor.  The employer said he wanted employees to speak English because he was afraid they were talking about him in Spanish.  Sigh.  

The scary thing is the employer lived for many years in Texas and ran businesses here.  

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 A South Texas hospital will pay $27.5 million to the U.S. Justice department as part of a settlement of claims that the hospital, South Texas Health Systems, bilked money from the US government.  The allegations include charges that the hospital entered into a kick-back scheme with various doctors.  The plan was that the hospital would provide indirect payments to doctors who referred patients to the hospital chain.   This was a  qui tam lawsuit.  It started with a report by a former South Texas Health Systems employee, Bruce Moilan, in 2005.  Mr. Moilan will receive $5.5 million as part of the settlement.  See the San Antonio Express News story. 

 "Qui tam" lawsuits refer to claims based on the False Claims Act.  Under the False Claims Act, a person who reports fraud, waste or abuse is paid some monies if the report leads to a recovery of monies owed to the federal government.  If someone bilks the federal government, as South Texas Health Systems allegedly did, then private citizens who assist the government in recovery of that money receive a share of the recovery.  The False Claims Act was first passed soon after the Civil War.  It was passed in response to the massive fraud committed against the federal government in purchasing supplies and equipment for the war effort.  Today, medicare and medicaid fraud is a large part of the qui tam lawsuits being filed.  

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 An employer can impose rules requiring that only English be spoken in the work place.  But, an employer can do so only if there is a real, definable business reason for the rule.  Most cases that have allowed such English-only rules were based on safety reasons.  See post.  Of course, no such rule could be imposed if the primary purpose is discrimination.  But, if safety or some other business reason is not involved, it will appear that discrimination is the motivation.  If so, then Title VII of the Civil Rights act of 1964 will apply.  

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You are asked to sign a non-compete agreement by your employer.  But, you are not sure you want to sign.  What do you do?  One IBM management employee deliberately signed in the wrong place.  He wanted more time to think about signing it.  He signed in the space where the employer would sign.  Then, he went to work for Dell.   The Second Circuit Court of Appeals finds for the employee in this recent decision, IBM v. Johnson.  See post.  

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