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

Well, the Texas Supreme Court is again dismantling victim's remedies.  But, this time, they are working against small ranchers.  In Bennett and Bonham Corp. v. Reynolds, the court took away another jury verdict.  This time it was a cattle theft case.  The jury awarded $5,327 in actual losses and $1.25 million in punitive damages.  The Supreme Court considered whether the punitive damages were too high in relation to the actual losses and said the amount was too high.  The court found that the 235:1 ratio was too high.  

Punitive damages are designed to punish a transgressor, beyond mere negligence.  The Texas Supreme Court reversed the lower appeal court and found that Bennett's trangsressions were more about the litigation than about the actual theft.  The two ranching families were neighbors and nursed a long-time feud.  Seventeen head of cattle strayed onto Bennett's property.  Bennett sold them.  Bennett denied to Reynolds knowing anything about them and thus prolonged Reynolds' discovery about the sale for some three months.  Reynolds sued Bennett, who then counter-sued claiming Reynolds had made everything up. 

The Court found that Bennett threatened a witness; attempted to bribe another witness; doctored some photos of the stolen cattle at auction; filed suit against a Reynolds ranch hand; and Bennett tried to meddle with Reynold's registered brand.  All pretty bad stuff. 

But, the Supreme Court found these bad acts occurred during the litigation, not as part of the theft,  So, in a technical ruling, the court found these bad acts essentially did not count for purposes of punitive damages.  There were other ways of dealing with reprehensible litigation tactics, said the court. 

In the Army, we have this marching song which we most often used to sing when we did physical training.  On those long runs, someone would strike up, "We're at it again, on the road....," we would wail.  Well, the Texas Supremes are at it again....

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 Ohio Employer's Law blog writes another good post on what to do if the boss is the harasser.  See post. Jon Hyman refers to a specific case, EEOC v. Fairbrook Medical Clinic, (4th Cir. 6/18/10), a sex harassment case.  In this case, the harasser was accused of several harassing incidents:

• repeatedly showing an x-ray of his penis, calling it "Mr. Happy"
• referring to his wife's "nice, tight p----y" during a staff meeting
• telling dirty jokes, including imitations of him kissing a woman's breast
• frequently talking to staff about oral sex and women's breasts
• referring to female staff as "slut" and "c---" routinely
• asking a female doctor if he could help her pump milk from her breast, if he could see her breast and could he lick up some spilled milk

This is pretty repulsive stuff.  Many courts would consider this to be mere bad manners.  But, the 4th Circuit, not an employee friendly court, found this went beyond mere incivility in the workplace. Telling off color jokes is one thing.  But, the court found this case involved more than crudities.  The business owner targeted the employee with very personal comments designed to humiliate and demean her. 

The harasser was the owner of the business.  As Ohio Employer's Law noted, what do you do when the harasser is the business owner?  Jon provides some guidelines.  The problem for him, an employer's lawyer, is that employers will be immune from liability if they have a viable procedure in place for victims of harassment to complain.  The problem for all small business owners is that this immunity just will not work for them.  How can a small business provide a means to submit a complaint about the owner?

Jon suggests the employer provide more than one avenue for the a victim to complain, presumably an office manager or a human resources professional.  But, it would be extremely difficult for an employer to establish that an office manager would "buck" the owner in the interests of providing remedies to the victim of harassment.  And, the case this immunity stems from provides that this defense (ie, having a viable procedure to make complaints about harassment) is not available when the harassment culminates in an adverse employment action, such as termination.  Ellerth v. City of Boca Raton, 524 U.S. 775 (2998).  So, even if there is a way to provide an avenue for complaints, the process means nothing if the aggrieved employee is fired or demoted. 

The other lesson to learn from Fairbrook Medical Clinic is that harassment must be pretty bad to constitute "actionable" harassment.  One or two off-color jokes is not enough.  Constant discussions about sex comes closer to actionable harassment.  As this case shows, it is important that the harassment be directed toward one person in particular. 

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According to a recent story in the San Antonio Express-News, most employees complain about their bosses' being lazy or dishonest.  See story.  Another 21% complain that their bosses are "nipickers."  

Speaking of which, Mike Maslanka writes a nice post about lying and body language.  A study suggests that bosses are often the better liars.  

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Judge Sharon Keller's lawyer made his final arguments to the Texas Commission on Judicial Conduct.  He argues defensively that the protocol she was expected to follow was not in writing at the time.  He said the TCJC has completed a poor investigation.  He accused the lawyers for the executed killer, Michael Richard, of telling a "pack of lies" regarding the events.  

The prosecutor, actually a special counsel for the TCJC, argued that Judge Keller admitted that she knew the protocol, whether it was written or verbal. She admitted that she knew the protocol was mandatory.  The protocol required her to refer the lawyers to the duty judge, Cheryl Johnson.  Instead, she dealt with the lawyers' request for more time herself.  

As the reader may recall, the lawyers for Michael Richard encountered computer trouble in trying to file a last minute motion.  The motion had a fair likelihood of success.  Richard was to be executed the next day.  So, the motion was critical.  They called the Criminal Court of Appeals.  The CCA is the final appeals court for criminal appeals.  The defense lawyers were eventually referred to Judge Keller.  They asked for more time.  Judge Keller said no.  She should have referred them to the duty judge Cheryl Johnson.  Indeed, most courts would have allowed the extra time, just because of the final nature of an execution.  See earlier posts (and here) about Judge Keller.  As Judge Berchelmann said, this was a grievous sin by any public servant. 

In following this story, I tend to think Judge Keller is normally a concerned, dedicated judge, and rather conservative.  It may have just been this one time, but I tend to believe that on this one day, she was impatient with the process that allows defense lawyers in death penalty cases to file motions at the very last minute.  It may have just been a bad day, but she showed poor judgment that one day.  Even judges are human.  This is a good lesson to anyone seeking justice in court. Judges do make mistakes.  Litigation is unpredictable in part because judges (and juries) are human.  

As I tell my clients all the time, you can have the best case and still lose.  Here, Michael Richard had good basis for a motion.  But, the motion was never filed......

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 San Antonio lawyer Ted Roberts has been granted "shock probation."  That means Ted Roberts will be let out of state prison early and he will seve 10 years probation.  See report.  Ted Roberts is the lawyer who was found guilty of forcing various persons to keep him quiet about these men having sexual relations with Ted Robert's wife.  'Shock probation" refers to the unexpected nature of receiving probation.  The offender thinks he is spending so many years in jail, but instead the judge lets him after having already sent him to prison. 

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You think the workplace bullying is bad where you work?  Meg Whitman, former eBay executive and current candidate for Governor of California, is accused of shoving an employee.  Ms. Whitman's campaign claims it was just a verbal altercation.  Either way, it resulted in a $200,000 setlement, reportedly.  See report.  I guess things get tense at eBay on occasion.....

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 Ohio Employer's Law Blog points out that according to a recent article, mandatory arbitration does not live up to its expectations.  See blog post.  Jon Hyman at Ohio Employer Blog refers to a recent ABA article finding that in one study, mandatory arbitration was 30% more expensive and 25% longer than traditional litigation.  The average costs and fees in an employment arbitration were $102,338 as opposed to $70,491 for litigation.  The average life cycle for an employment arbitration was 21 months as opposed to 17 months for litigation.  

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The US Supreme Court issued a ruling in Rent-A-Center West v. Jackson.  The Supremes have found that an arbitrator should resolve issues regarding the enforceability of an arbitration agreement, and not the courts.  See decision.  This is an unfortunate decision.  Simply based on policy grounds, arbitrators earn income by hearing arbitrations.  So, they have ample incentive to find every arbitration agreement enforceable, regardless of the circumstancess of the agreement.  

As the dissent points out, a challenge to the enforceability of the arbitration agreement under the facts in Rent-A-Center would be made by an arbitrator.  Not said is the fact that many arbitrators are not lawyers.  I cannot imagine how a non-lawyer would deal with issues regarding contract issues.  

Arbitration agreements have become very common in the work place.  Arbitrations have many pros and cons, but mostly cons where employees are concerned.  As Workplace Prof points out, the Federal Arbitration Act, passed in the 1940's, was never intended to apply to situations in which the arbitration agreement is not a true arms-length agreement.  See post.  The FAA is being applied to situations in which the parties do not have comparable bargaining power.  See Workplace Prof's description of a case in which bank customers alleged forgery of their signatures on a so-called agreement to arbitrate disputes with a bank.  Yet, the federal court still applied the FAA and ordered the bank customers to arbitration.  

It perverts contract law to force parties claiming fraud or forgery to subject themselves to a psuedo contract.  It is equally perverse to pretend that employers and employees can negotiate in good faith an agreement to arbitrate employment disputes.  

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 In a recent decision, the US Supreme Court affirmed the right of employers to review the text messages on employees' cell phones.  In City of Ontario v. Quon, the government employer searched the employees' cell phone for text messages.  The cell phone had been issued by the employer.  The City believed the employee had exceeded the limit on cell phone messages.  So, it got a private cell phone company to release the text messages.  In reviewing the text messages, the employer found some of the text messages to violate additional company policies.  Some messages had sexual content.  The Ninth Circuit Court of Appeals had found this intrusion violated the Fourth Amendment, since the employer could have simply looked at the recipient's address to see if the messages violated policy. 

The Supreme Court did not specifically address the isue regarding wherther the employee has a privacy interest in the text messages.  But, it did assume the employee has a privacy interest for the purposes of resolving whether the employer's actions were lawful.  In a close 5-4 decision, the Supreme Court found that the actions of the employer did comport with the Fourth Amendment.  See report. 

The US Supreme Court found that possibly exceeding the text message quota was sufficient reason for the intrusion into the text messages.  And, the court found that looking at the entire message, instead of just the addressee, was appropriate under the circumstances.  The court seemed to note with approval that the employer only looked at a sampling of the messages sent during work hours. The sexual nature of the messages did not help the employee's cause. 

The Supreme Court mentioned that this is a growing area and it would not issue any broad rulings. 

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In Iraq and Afghanistan, Moslem interpreters help us everyday with the war effort.  Interpreters assume a special risk.  They are targeted whenever possible.  See report of an Iraqi interpreter who was killed in Samarra by his son and nephew.  His son and nephew are said to be members of Al-Qaeda.  Samarra is heavily Sunni, so this report could be true.  We could not carry on the war with any degree of success without these hundreds of interpreters.  

Muhsin said al-Daraji worked for us since 2003.  His family constantly urged him to stop working for Coalition Forces (ie, US forces).  See CBS news report.  That is probably too long to work for Coalition Forces.  The longer you work for us, the more you become a target.  My interpreter when I served in Iraq also worked for CF from the beginning.  She was caught, tortured and killed in 2006.  

Hundreds, thousands of other Iraqi and Afghans cooperate with us in a wide variety of ways.  They too become targets.  When I was in Iraq serving in the US Army, we had to meet with Iraqi contractors far away from prying eyes out in the desert somewhere.  That was for their safety, not ours. 

Yet, I continue to hear Americans claiming Islam is violent and all Moslems seek jihad against us.....

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The national unemployment rate has reduced from 9.9% to 9.7% for May.  See report.  But, it appears that many of these new jobs are temporary jobs.  The San Antonio rate has improved slightly from 7.3% in April to 7.1% in May.  See TWC report.  Overall, Texas added 43,600 jobs in May. 

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City Manager who "terminated" his employment under clouds of a scandal demands his severance pay.  See San Antonio Express-News story.  Ron Cain, who was City Manager for the town of Windcrest, a San Antonio suburban city, stepped down at the suggestion of the City Council.  This was all prompted by a scandal involving his brother and millions of dollars spent or not spent on Rackspace, a large employer in Windcrest.   Mr. Cain's lawyer admits that nothing in his employment agreement provides he would be entitled to severance pay.  But, the lawyer adds, the intent of the drafters of the agreement was that Ron Cain would severance benefits if he resigned. 

It sounds to me like the newspaper report did not get this quite correct.  There is no right to anything just because the drafters of an agreement might have intended it.  To the contrary, there is a principle in the law that anything considered but rejected for the agreement was probably deliberately rejected.  So, I cannot hazard a guess as to what Ron Cain's lawyer is suggesting.  But, generally, under Texas law, there is no right to severance pay.  The only right to severance would be a matter of contract, if there is a contract.  

Not to mention that the City Manager's conduct is being investigated.  This request sounds a little "nervy."  

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Sigh, our Texas Supreme Court is at it again.  In a recent decision, the Court conflated personal injury claims with sexual harassment and other froms of discrimination.  See Waffle House, Inc. v. Williams.  The Court found that claims based on assault and negligent supervision are preempted by the Texas Commission on Human Rights Act.  The TCHRA is the state version of Title VII of the Civil Rights Act of 1964.  The TCHRA prohibits discrimination based on sex, race, national origin and other classifications.  The Court found that the TCHRA provided the exclusive remedy for all conduct related to discrimination.  Formerly, tort claims or personal injury claims would be in addition to, not in lieu of discrimination claims.  

As the dissent points out, this means that if Joe repeatedly slams Mary up against the wall at work, then Mary can sue Joe for assault and battery.  But, if Joe also gropes Mary while repeatedly slamming her against the wall, then Mary can only sue for discrimination.  One major difference is that the TCHRA is limited to $300,000 in emotional damages and punitive damages. But, a claim based on assault and battery would have limited or no dollar limit.  See dissent.  

The $300,000 cap suffices for many claims.  The $300,000 cap applies to the largest employers.  It includes punitive damages and compensatory damages.  Compensatory damages are intended to compensate a victim for emotional suffering.  But, the cap is not enough for some claims.  For example, would $300,000 be enough in a discrimination case also involving rape? Money never truly compensates for the worst abuses.  But, $300,000 would not be enough damages for some cases.  In the case of Jones v. KBR, the victim was raped repeatedly and then confined in Iraq by her employer.  Would $300,000 be enough for the Jones case?

Or, if the employer has less than 100 employees, the punitive damages and compensatory damages would be capped at $50,000.  Would $50,000 suffice for the worst claims involving rape or assault?

The ruling suggests judicial activism.  The issue was not even addressed by the parties.  The Supreme Court refers to a tangential reference by the employer before the lower court.  But, the issue was not presented before the Supreme Court itself.  

The TCHRA is supposed to track the federal equivalent, Title VII, but this ruling directly contradicts Title VII precedent. 

And, ultimately, in this case, the jury had awarded $3.46 million in punitive damages.  The trial court then converted that award into an award of $425,000 for past compensatory damages and $425,000 in punitive damages, due the cap for personal injury claims.  The Texas Supreme Court once against trumps a jury decision.  

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San Antonio pararescuer TSGT Michael Flores was killed in Afghanistan.  TSGT Flores was a 1997 graduate of John Marshall High School.  He was killed along with three others when their helicopter was crashed in Helmand Province.  The Taliban claim they shot down the Osprey-22 helicopter.  See San Antonio Express-News report. 

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 A state district judge was selected for a jury in Dallas County.  Judge Carlos Cortez was shocked that he was not stricken by one side or the other.  But, he says he enjoyed the experience.  He declined to serve as jury foreman, because he wanted to watch the process.  He eventually became the lone dissent, as the other five members voted to find no liability on the part of the defendant in a car wreck case.  See report.  

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 It was significant news when a class action lawsuit against Wal-Mart was certified a few weeks ago.  Class action lawsuits are always significant, but especially so when the employer is Wal-Mart.  I talked previously about the court ruling allowing the class certification.  See blog post.  

Now, someone at Wal-Mart leaked a report to the NY Times regarding an investigation made into Wal-Mart's potential bias against women in the mid-90's.  See NY Times report.  At Wal-Mart's request,  prominent law firm, Akin, Gump Hauer and Feld looked into possible gender issues at Wal-Mart's request.   The firm found wide-spread disparities in how women were hired and how they were paid.  The law firm, a well-known defense firm, urged the company to take several steps to make the system more fair, to avoid possible liability.  The report was released internally in 1995. The class action lawsuit was filed in 2001 by seven women.  The class action suit is styled Dukes v. Wal-Mart.  

This report could upset the balance.  Contrary to the NY Times report, such evidence could be admissible.  There are many cases holding that evidence of past bias is admissible, even if that past evidence was intended for internal review.  In this instance, portions of the report describing pay disparities might be admissible to show knowledge or intent on the part of Wal-Mart regarding gender discrimination.  The only hiccup is the fact that Akin, Gump performed the investigation.  So, the current defense law firm can argue this was attorney work product or attorney-client privileged.  Law professor thinks the report will not be admissible in court.   

I mentioned several weeks ago that Wal-Mart is one of the more difficult employers to sue.  They are known for obstreperous litigation tactics.  This report may well set the stage for a large settlement against a difficult to sue employer. 

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 A woman in New York filed suit alleging she was fired essentially because she was too attractive.  See report.  According to the lawsuit allegations, the former employee at Citibank was criticized by male co-workers because her curvaceous figure was too distracting in standard business attire and high heels.  The plaintiff claimed in the lawsuit that other women dressed more provocatively than she did but suffered no ill treatment.  The plaintiff brought that to management's attention.  But, according to the suit, the plaintiff, Debrahlee Lorenzana, was told that the general unattractiveness of the other other women rendered their attire moot.  This treatment and her termination amounted to sex discrimination, said the plaintiff. 

A friend of Ms. Lorenzana praises her work at Citibank.  She said Ms. Lorenzana does indeed turn men's heads and some men turn into "complete idiots around her."  But, that's not her problem and should not be her problem, notes the friend.  

Ms. Lorenzana's lawsuit is moving to arbitration due to an employment agreement.  

Actually, it would be hard to show sex discrimination if you cannot show how men are treated better.  On the other hand, this sort of treatment would not occur were she not female.  It is not particularly fair to treat anyone differently because of the way they look.  But, Title VII is not about being fair.  It is about treating one gender differently than another gender.  Arbitration hearings are secret.  So, we may never know the result. 

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So, you have a LInkedin account.  As with most users, many of your contacts are co-workers.  You leave your employer and send messages to your contacts on Linkedin.  Is that a problem?  It is a problem, if you have a non-compete with your former employer in which you agreed to not contact former your former co-workers.  That is what happened in one recent lawsuit.  The former employer, an IT staffing firm, learned of the messages and filed suit against the former co-workers.  See report.  

The former employee had signed a non-compete agreement in which he agreed to not solicit former co-workers.  So, sending an email to all his contacts, co-workers and others, which said, "Hey, let me know if you are still looking for opportunities," sounds like solicitation. 

So, yes, as the report explains, now, when an employee leaves a company, that employee may have to "un-friend" his/her former co-workers.  In this case, the non-compete clearly prohibited solicitation of former employees.  

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Every so often someone will claim that discrimination is gone or mostly gone.  Yet, evidence of bias pops up everywhere.  In a recent trial in a patent infringement case in Marshall, Texas, a witness from Israel was testifying.  The defense lawyer was cross examining the Israeli witness.  Asking about the witness' lunch meeting at Bodacious Barbacue, the defense lawyer asked what he ate.  "I bet not pork," he offered.  Apparently, the defense lawyer thought this comment was humorous. 

The lawyer later apologized for the remark to the jury.  

The jury eventually found in favor of the plaintiff and awarded $3.7 million against Cisco Systems. But, because of the remark by the defense lawyer, the federal magistrate who heard the case offered to consider a motion for new trial.  See report.  That is, after he dismissed the jury, he told the lawyers he would was troubled by the remark, no matter how innocent the lawyers intentions may have been.  He said he would consider a motion for new trial if the plaintiff wished to file one.  The verdict was large, but the plaintiff had sought $53 million.  Commill USA v. Cisco Systems, Inc., Et Al.

Most people, lawyers especially, are on their best behavior in court.  If this is the defense lawyer's best behavior, one must wonder what he will utter in more casual settings.  As I tell my managers and employers, ethnic jokes are the path to lawsuits and trouble.   The only "safe" joke these days is a good ole fashioned Aggie joke.....

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A Dallas jury awarded $3.6 million to an Egyptian-American doctor who sued for race and religious discrimination.  See report.  It all started when the employer, UT Southwestern, asked Dr. Nassar to commit billing fraud.  Dr. Nassar refused.  He then felt constant discrimination and harassment and resigned in 2006.  

It took the jury in US district court only about an hour to reach a verdict and assess $3.6 in total.  

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Under the Texas Payday Statute, terminated employees are not entitled to their vacation pay when they leave their job.  So explains Russ Cawyer in this post. The same statutory provision applies to sick leave or severance pay.  Such benefits are owed to the employee only if the departing employee has a valid contract providing for those benefits.  You can view the Texas Payday statute here.  

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