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

Do we really care about the soldiers, asks a First Lieutenant in Afghanistan?  See report.  Do we support pay raises for the troops?  Have we petitioned Congress?  Have we sent letters to our Congressmen?  He adds if we want them to stay overseas, tell our representatives.  If we want them to leave, tell our representatives.  But, he rightly adds, otherwise, to do nothing is simple complaining.  

Speaking as a former deployed soldier, i know it is easy to be over there and think no one back home gives a whit about you.  We can and should do more.  A deployed soldier should never have to wonder if the folks back home care. 

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Many times, an employee comes to see me and asks me how strong his/her case is.  Often, i do not know.  It is hard to gauge the strength of a case until we know the reasons used by an employer for a questionable adverse personnel action.  Indeed, sometimes those reasons change over time.  

In a reent case, the 8th Circuit Court of Appeals has confirmed that yes, shifting reasons over time do help show pretext.  See report.  In Jones v. National American University, the plaintiff employee was turned down for a promotion to the Director of Admissions.  The plaintiff was in her mid-50's.  The plaintiff had spoken with one of the decision-makers about another applicant who was in his mid-50's also.  This particular decision-maker had mentioned that he was not sure he would want a "grandpa" working with high school students.  The school later picked a 34 year old woman for the position.  

The plaintiff quit when she was not picked for the position.  When she quit, the same decision-maker told her that the person picked was simply the better choice long-term.  

The plaintiff filed with the EEOC.  She claimed she was not hired due to her age.  The employer responded to the EEOC that Ms. Jones was not picked because of her poor work performance.  But, at trial, the employer claimed no, it was actually because she lacked management experience. Indeed, at trial, the testimony about the plaintiff's work performance was all positive.  And, none of the job postings listed management experience as a requirement.  Ms. Jones also introduced evidence showing that she was more qualified for the position than the younger person who was picked.  So, the employer's case essentially fell apart at trial. 

The reasons for the selection changed at trial significantly.  Shifting reasons suggests pretext. 

We have known since the decision in Reeves v. Plumbing Products, Inc., 530 US 133 (2000), that the US Supreme Court accepts changing reasons as proof of discriminatory bias.  That decision found that a jury can infer discriminatory bias if the employer's proffered reason for a discharge is shown to be false.  The jury is not required to draw such a conclusion, but it may draw such a conclusion.  So, the decision in Jones should not be surprising.  But, too many courts still do not follow the Reeves reasoning and give enough weight to shifting reasons.  

It helps that the employer made the statement showing age bias.  But, proof of falsity should be enough.  People do not discriminate and then admit it.  They almost always deny any discriminatory bias. 

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Shirley Sherrod, the former Department of Agriculture official,  will sue the blogger who posted her comments out of context.  See report.  Good for her.  The report does not explain what the suit will be based on.  But, I would expect she could sue him for defamation or "false light" defemation.  The blogger, Andrew Breitbart, is said to be supported by the Washington Times.  

Key to a defamation suit would be whether Ms. Sherrod is considered to be a "public figure."  Since she spoke at the NAACP convention in Georgia, she might qualify as a public figure.  If she is a public figure, then she would have to show actual malice on the part of the blogger.  Proving actual malice is difficult. 

Everyone from the administration to Bill O'Reilly have now apologized for what they said about Ms. Sherrod.  See story.  Ms. Sherrod believes we can heal our racial differences, but we need to confront those differences.  

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 Novartis Pharmaceuticals settled the class action case against them for $175 million.  See report.  The case was based on gender discrimination.  I discussed this case earlier.  See post here and here.  You will recall this was the case where a jury came back with a verdict for $250 million in punitive damages for some egregious statements made by many managers over the years.  

Apparently, the employer reasoned that the risk of appeal was too great and they should settle their claims.  That is probably a wise move.  Many times, after a high verdict, it is simply better business to pay an agreed upon amount and report the business loss than to risk the results of an appeal. 

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It is always harder to find a job when you reach a certain age.  A female lawyer, almost 60,  has submitted 1,000 applications and has yet to find a job.  According to the ABA Journal report, she has applied for everything from day care worker to clerk.  The former shopping center lawyer was laid off in January, 2009.  She has not even had one interview.  She compares finding a job interview to looking for a unicorn.....

Many of my clients who lost their jobs in their 50's typically take a year or more to find a new job.  

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Minnesota Labor & Employment Law Blog discusses how an employer can mess up an employment case.  In Hamm v. Minnesota, the state eventually agreed to pay Hamm $250,000 to settle her claims. The law firm at Minnseota Labor & Employment Law discusses the things the employer did wrong: accusing Hamm of transgressions that by their own policy were not Hamm's responsibility; the state disciplined Hamm alone out of 150 other attendees at a particular conference; and the list goes on.

The author's point is that better review would have prevented handing over a strong case to the plaintiff employee.  The author generally represents the employer.  Someone should have reviewed these claims to make sure they made sense.  The employer's case always gets better when they hire a lawyer.  As Minnesota Labor & Employment Law mentions, fresh eyes do make a difference.  

But, it is alsp true that the worst offenders often have too much hubris to seek out a fresh pair of eyes. The worst offenders get into trouble, in part because they think they do not need help. 

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 Racism is often just below the surface in our society.  A black woman admits that she felt some antipathy toward a white farmer.  She learned from her own racism and grew from it.  Yet, her story is used to fan the flames of white fear.  See story.  Shirley Sherrod discussed her first case working with a white farmer when she worked for a non-profit agency assisting poor farmers.  It was some 20 years ago.  She explained how she learned from her initial reaction and grew as a person.  But, a conservative website posted a video of her talk, excised the part about learning from her initial mistake and claimed the then USDA employee was biased against white farmers.  The NAACP condemned her supposed remarks, taken out of context.  Ms. Sherrod was then fired.  The USDA said it has zero tolerance for racism. 

Now, the USDA, realizing it mis-understood her remarks, will apparently ask her to come back.  The NAACP has also apologized.  Yes, it does pay to take the time to listen to the whole context, not just a few snippets.  In any event, Ms. Sherrod is not sure she would want to go back to the USDA.  That would be a pity.  Few of us, perhaps none, are truly free of bias and prejudice.  We need more public servants who recognize their weaknesses and learn from them.  

Ironically, her talk was at a NAACP banquet in Georgia last March discussing racism.  Her father was killed by white men in rural Georgia in 1965.  In her entire talk, she discusses how she had planned to leave Georgia after his death.  But, she stayed and committed herself to helping blacks. But, she concluded, God will put things in your path to teach you and you learn that your real commitment is to poor people, white or black.  

We all have a journey in life.  I think we need a few more like Shirley Sherrod in public service.  

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Judge Sharon Keller has been issued a public reprimand for her conduct involving the attempted appeal of death row inmate Michael Richard.  See San Antonio Express News report.  Judge Keller sits on the Texas Court of Criminal Appeals, the state's highest court for criminal cases.  As readers will recall, Judge Keller refused Richard's lawyer's last minute request to keep the clerk's office open until they could file an appeal.  The State Commission on Judicial Conduct investigated.  The Commission has now issued her a public reprimand.  This sanction is much less than the requested sanction that she be removed from office.  

Judge Keller violated known protocol for the court, as I explained in earlier posts.  This story demonstrates the unpredictability of all litigation.  On any given day, even the best judges will make a bad call.  That is why lawyers discuss settlement.  As my former judge used to say, the worst settlement agreement is better than the best trial.  He meant that no matter how strong your case may be, you should consider settlement.  Because, one never knows what may happen at trial. 

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A Dallas jury returned a verdict in favor of the plaintiff in US district court.  In an age discrimination case, the jury awarded the plaintiff employee lost pay and benefits of $500,000, liquidated damages of $500,000, mental anguish damages of $1,000,000, punitive damages of $15,00,000, front pay and attorney's fees to be determined later by the judge.  Under Title VII and the Age Discrimination in Employment Act, punitive damages are capped at $300,000.  So, the punitive damages will be reduced probably to $300,000. But, this large amount of punitive damages is still remarkable.  

When a jury becomes angry, they will award large amounts.  The McDonald's spilled coffee case is often referred to as a "runaway jury." But, in that case, the McDonald's executive who testified came across as arrogant.  And, there was evidence that McDonald's knew their coffee posed significant risk, yet the corporation had taken no precautions.  When a jury becomes angry, they will award large amounts. 

Same thing apparently occurred here in Miller v. Raytheon, No. 3:09-CV-0440 (N.D. Texas 2010). The defendant changed their reasons for the adverse personnel action several times.  The employer claimed for the first time at trial that it had offered the employee two jobs that had never been disclosed before.

Perhaps more damaging, however, was Raytheon's claims to the EEOC that it had offered the employee several job openings before selecting him for a RIF.  There was no evidence to support Raytheon's claim and the employee denied he had been offered any such positions.  The company also claimed the employee refused to look for new jobs, despite knowing that claim was false.  There had actually been several discussions between Mr. Miller and Human Resources regarding possible other jobs.  

Juries do not like being lied to.  Once an employer makes statements to the EEOC, those statements become part of the record and cannot be withdrawn.  Fortunately for Raytheon, Title VII punitive damages are capped at $300,000.  Otherwise, they would be looking at a huge judgment, a judgment caused not by some legal technicality, but by plain fabrication.  

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I live in a military town.  We have more retired service members here in San Antonio (aka "Military City, USA") than you can shake a stick at.  So, in civilian jobs, we regularly work with former military members.  Some excel, some do not.  The perception of military persons out side of Military City, USA is sometimes that military members are too rigid or inflexible.  Some are.  The perception is sometimes accurate.  But, by far, former military members do well in the civilian workforce.

Look at Mike Maslanka's comments about Hal Moore, retired Army general.  Hal Moore provides good lessons for all civilian leaders: 1) Never deprive a human being of dignity.  2) Always lead from the front.  That is, place yourself at the key point of any operation at key moments.   3) Listen to those below you in the chain of command.  No one knows the job of the dishwasher better than the dishwasher himself.  4) When faced with a difficult issue, always remember there is one more thing you can do to influence the outcome. 

For those not familiar with LG (Lieutenant General) Moore (Ret), he was the Battalion Commander in the book and movie, We Were Soldiers Once . . . And Young.  Great book and great movie.  LG Moore was a role model for many Army officers. Leadership, true leadership applies in any context. When he came home from Viet Nam, he visited the homes and families of all his deceased soldiers. 

If more civilian leaders practiced these four principles, we would have far more agreeable and productive workplaces.  

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 In the June/July edition of the Louisiana Bar Journal, New Orleans attorney Michelle Craig relates some good advice for employers.  She discusses social media sites.  She advises employers to not routinely comment to employees about the contents of posts, blogs or comments.  She notes this could suggest the employer is conducting surveillance of its employees.  Surveillance is one of the actions prohibited by the National Labor Relations Act.  

The NLRA also prohibits reprisal against employees who discuss terms and conditions of employment. See my earlier post about this sort of reprisal.  Forbidding an employee from discussing terms and conditions of employment in any venue, including social media sites, would likely violate the NLRA.  

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 A majority of Americans oppose forced arbitration accoding to a recent survey.  See HR Lawyer post.  In a nationwide survey of 800 citizens, 59% opposed forced arbitration clauses in employment and consumer contracts.  59% support the Arbitration Fairness Act, a proposed statute in Congress. Support crosses political and gender boundaries. Even after voters hear arguments pro and con, only one-third support mandatory arbitration. 

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He served as a mechanic, the chief mechanic for his battalion.  He loved his job and was devoted to his unit.  As they trained and prepared to deploy to Iraq, he promised them.  He guaranteed no HMMWV would break down outside the wire.  That is a big promise to make.  He was an E7, a Sergeant First Class with over ten years in the Army.  He knew the HMMWV's in Iraq were hand-me-down's from five previous rotations.  They came with all sorts of mechanical issues.  But, the SFC knew his skills and he knew the capabilities of the mechanics he supervised.  He promised and he meant it.  

The SFC was dedicated.  He performed all the tasks he could, based on the firm belief that he would ask nothing of his soldiers he was not willing to do himself.  So, he lifted the 55 gallon drums with no hesitation.  He heard the disc pop when he incurred three herniated discs.  He was out of action for months, if not forever.  They took him to Germany, the nearest base with back specialists.  

Two weeks after he left Iraq, two of his HMMWV's broke down.  Two were killed.  Two were evacuated to Germany, where all the worst cases go.  It wasn't his promise anymore.  But, he felt responsible all the same. One of the KIA's was his buddy, Achmed, the Iraqi interpreter.  The E7 was angry, angry at the war, angry with himself for getting hurt when his unit needed him. 

The E7 worked hard everyday at BAMC, Ft. Sam Houston.  The promise was never far from his mind.  The doctors said he had more determination than anyone they had ever seen.  He should be a medical retirement, but he worked so hard.  The doctors did not know about the promise.  They did not know about Achmed.  The E7 never forgot either.  

A year later, he was close to full rehabilitation.  The doctors thought he was a medical miracle.  The wife knew.  She knew about the promise and about Achmed.  She wanted to shake him when he said he would transfer to the 101st or the 82d Divisions.  Both divisions would deploy very soon to Iraq and Afghanistan.  The wife knew why he wanted to transfer, why he wanted to deploy again. She wanted to shake him, sometimes.  But, she also understood.  That was why she loved him, because he always kept his promises.  

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Discrimination against persons with disabilities still occurs.  Read a humorous take on one person's experience as the handicapped person at Harvard law School and her years afterward.  Carrie Griffin Basas was tempted to offer her cane to law partners staring at her with mouths open as she showed up for on-campus interviews.  One professor kept the class late, so they could "celebrate" the handicapped girl who helps the handicapped and who will one day be on the Supreme Court."  Well, that girl is still waiting for her Supreme Court nomination.....

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