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

 Christine O'Donnell, the Republican nominee for Senate in Delaware, has further problems with her resume.  She claims on her Linkedin page to have taken a course at the well-known Oxford University in Emgland.  Well, not quite.  What she actually took was a course from Phoenix University, a well-knwon for-profit school, at Oxford.  Phoenix rented space from Oxford University. Phoenix U. had a summer program at Oxford in 2001. See report.  

She also claims to have taken a course at the prestigious Claremont Graduate University in California.  Well, perhaps not.  Claremont Graduate University has no record that she attended the school at any time.  But, a Claremont Institute, a conservative think-tank did award Ms. O'Donnell a fellowship in 2002. Claremont Institute is not connected to the much better known Claremont University. Claremont Institute is also located in Claremont, California.  

It was just a few weeks ago that we learned that Ms. O'Donnell had claimed for years to have graduated from Farleigh Dickinson University.  But, she actually only received her degree on Sept. 1, 2010.  

The problem with padding a resume is that it stays with you.  You may think it will help get a particular job or position.  But, it becomes difficult later to leave those bogus qualifications behind when you later move on to some other job. 

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The work place can be a very dangerous place.  Workplace Prof presents a scenario that concerns another unnamed professor.  See post.  Workplace refers to another blog at: suburbdad.blogspot.com/.  Well, since Dean Dad posted the original post at his blog, Community College Dean, Dean Dad has taken back down the post at the request of the original professor.  I bet he did ask that it be taken down.

The kernel of the story remains:  Student takes class from Prof last year. After class is over, student and Prof date and have brief affair.  Affair ends badly.  Student takes another class from unnamed Prof.  Student demands an "A" or else she will reveal all.  The original post by Dean Dad solicited recommendations on what Prof should do.  After a few days, Dean Dad took down the original post. 

If Prof drops the student, then he will be accused of reprisal.  If she does not get an "A," then student will reveal the forbidden affair to the school.

Dean Dad's advice, now removed, was that Prof should tell the school about the affair and remove student's leverage.  That is surely the best advice.  

Another word of advice, don't date students even after the class is over.  The advice pertains to others, as well.  In the military, for example higher ranking officers or NCO's should not date younger officers or NCO's even if they are not in your chain of command.  They may be in a different unit today but they could be in your chain of command in a month or a year.  Same advice applies to folks in the civilian sector.  Just another employee today could be your employee next year. 

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 Trial lawyers treat jurors with kid gloves.  We are extra polite, extra respectful in regard to those citizens who perform their civic duty without complaint.  The pay is low, yet their service is invaluable.  But, what do you say when a juror violates one of the basic  requirements of jury duty?  A trial is a serious thing.  When the defendant could go to prison or worse, it is even more serious.  Yet, during one criminal trial, a member of the jury posted on her Facebook wall that she looked forward to finding the defendant guilty.  She posted this comment while the trial was till ongoing.  See report.  The son of the defense lawyer saw the comment and told his mom.  The mother defense lawyer told the judge.  The judge removed the Facebook poster from the jury and replaced her with an alternate. 

Was the jury member listening to the whole trial with an open mind?  Was she ready to listen to the defendant's evidence, which always comes last?  We hope so, but her Facebook comments suggest otherwise. 

The juror was removed form the trial soon enough not to cause a mistrial.  But, the juror may well be found in contempt.  

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 I try to talk on this forum about employment issues and discrimination in general.  Since I am an Iraq veteran, I also discuss the war from time to time, typically simply to note the death of a local soldier killed in Iraq or Afghanistan.  So, when a local governmental entity itself expresses some form of prejudice, I cannot help but notice.  The Texas Board of Education has passed a resolution to limit references to Islam in future textbooks.  The resolution probably has little binding effect on future boards.  See report.  

But, it sends a message.  I fear the message is that Islam itself is "bad," not just the jihadist extremists.   If the TBOE message is that Christianity is good, I agree.  But, I wonder why do we need that particular message for an agency that chooses text books?

When I returned from the Iraq war in 2006, I could not help but notice some anti-Islam comments here at home in the US.  In Iraq, I served with many Iraqi interpreters.  They took the same risks we did.  Indeed, they probably took more risks, since their families were exposed in ways ours never would be.  And, of course, as some readers know, my interpreter, Salma, was killed shortly after I left the country.  When Ansar Al-Sunna killed her, they warned all other translators working with the US to leave their jobs before "we get you."  Yes, the Ansa Al-Sunna terrorists were very brave to attack and seize a five foot tall woman traveling the long, dusty road from Kirkuk to Tikrit.  

I have written here about an interpreter I refer to as Abdul.  Abdul was a wonderful person and very brave.  He was devout.  Salma was not particularly devout.  Like Christians, Moslems come in many flavors and varieties.  So, I have not been able to understand these broad generalizations about Moslems.  I am glad I will never have to explain these stereotypes to Salma.  But, I fear I might have to explain them to Abdul someday.  

Ironically, Abdul would probably smile, shrug and forgive.  The only Moslems who will profit from anti-Islam prejudice are Moslems like Al Qaeda and Ansar Al-Sunna.  The TBOE resolution is rather "cuckoo" as one member said.  Bit, it will surely aid the terrorist recruiters.  

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The Americans with Disabilities act contains provisions requiring businesses and governments to provide accessible facilities.  Title II of the ADA requires that the facilities be accessible to persons with disabilities.  Many, many businesses have not complied with the ADA.  See comparison chart.  Some folks believe incorrectly that if their facility was built before passage of the ADA in 1990, then they do not need to comply.  That is not true.  Title II actually provides that public facilities must be accessible if accessibility is "readily achievable."  See Advocacy, Inc. Fact sheet.    Existing facilities which have received "substantial alterations" are not subject to any grandfather clause and must be accessible. 

Public facility includes everything open to the public: restaurants, hotels, theaters, doctor's offices, lawyers' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers.  In my own experience, even neighborhood association playgrounds or pools must be accessible.  

A large issue is sidewalks.  Are sidewalks a "service or program" of a city such that it fits the Title II requirements?  In a recent decision, the Fifth Circuit Court of Appeals found that sidewalks are not services or programs of the city.  The decision acknowledges that the various federal courts of appeals are divided over the question.  So, the issue will likely come before the US Supreme Court before long.  

In my neighborhood, there are a few folks in wheelchairs who have to traverse the shoulder of a busy Fredericksburg Road because there are no sidewalks.  How long before they have a close encounter with a Mack truck?

In a recent class action against Burger King, the company had to pay as settlement $5 million in damages and $2.5 million in attorney fees for 10 Burger King facilities that were but in the 1970's and 1980's.  Burger King tried to argue that since they were built before passage of the ADA, their facilitiers did not have to comply.  But, each of the 10 Burger King's had major alterations over the decades.  The plaintiffs claimed the facilities were not accessible to wheelchairs and scooters.  As our population ages, this will become more and more an issue.  See post.  The class action lawsuit was filed in the northern district court of California. 

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 I hear this concern every so often from potential employee clients.  They are concerned that they do not have "proof" that the employer said such and such.  Sometimes, this concern stems from something a general practice lawyer asked.  General practice lawyers ask various questions, often simply because they do not know what to ask about potential employment cases.  Employment lawyers on behalf of employees are hard to find.  So,  many or most potential employee clients meet with general practice lawyers or personal injury lawyers before finally seeing an employment lawyer.  

In employment cases, circumstantial evidence can succeed.  In fact, sometimes circumstantial evidence can be overwhelming.  

There are basically two ways to prove a discrimination case: 1) Employer tells the employee directly that s/he is being fired because they are the wrong color, wrong ethnic background, wrong gender, have a disability, etc., or 2) an adverse personnel action occurs for which there is no reasonable explanation.  If we rely on the second method of proof, then there needs to be some evidence of improper motive, such as jokes about race, ethnic origin, gender, disability or whatever.  

Regarding either method of proof, the employer will typically claim in a lawsuit that the worker had performance issues.  The employer might claim to have written or verbal warnings.  if so, then we get into the issue of comparatives.  That is, were other employees fired or disciplined for same or similar offenses? 

There is a third method known as statistical proof, but statistics rarely succeed in discrimination cases.

So, yes, circumstantial evidence is often the normal method of proof.  And, yes, the evidence is often "he said, she said."  Over the years, I have had many clients tell me that the employer made this joke about minorities or made that joke about another gender.  That is good evidence.  Even if the employee cannot provide me documented "proof" (whatever that means) that the employer made that statement.

The reality in employment cases is that the employer will always deny such statements.  Current employees will not remember anything.  The few employees who might be willing to testify to what they heard will do so only in court.  That is the norm.  People do not want to risk their jobs for someone else's case.  

Shoot, its a wonder we win as many cases as we do.  

So, yes, we rarely have third party witnesses to discriminatory statements.  The employer is rarely kind enough to reduce his discriminatory comments to an email.  And, no, we do not necessarily need a witness to "he said/, she said" comments.  Folks always want a more certain answer, but the truth is it all depends.....

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I have written here before that high dollar verdicts often indicate a jury became angry about a lawsuit.  In Velez v. Novartis Pharmaceuticals Corp., the jury awarded $250 million in punitive damages.  See posts here and here.  This is the largest punitive damage award in any class action lawsuit, I am told.  Novartis, the reader will recall, was a class action lawsuit alleging gender based discrimination against a large pharmaceutical company.  The case had some damaging statements made by managers, which statements showed anti-female bias.  

It now appears that yes, the manager's statements were damaging.  But, the lawyer representing Novartis may have had as much as anything to do with upsetting the jury.  It turns out that the lead defense attorney himself said some pretty offensive things.  For example, in his closing argument, he said:

"The first [plaintiff] - first of all, I've never seen anybody cry so

much on the witness stand in my life. She didn't have very much to cry about.  The first thing that was said to her, according to her, was: 'Can you give me two good years before you get pregnant, Tara?' And she could hardly get that out on the witness stand. It's like she had beeen knifed. Honsetly. What was wrong with this woman? She was so fragile. And she cried all through her testimony. Nothing bad ever happened to her. She just didn't get entered into the managment development program."

The defense lawyer essentially made fun of the first employee because she cried so much. Conventional wisdom holds that juries lose sympathy for witnesses who cry too much.  If so, this particular defense lawyer reversed that dynamic completely.  

He did worse than that.  The defense lawyer also said in his opening statement, the part of the trial where he introduces the jury to his case, that one manager who said some pretty bad things "wasn't that bad a manager.  He was just terrible with women."   

Members of the jury always start a little annoyed.  They do not want to be there.  Jury service is critical to our democracy.  But, most jury members would prefer to be home taking care of kids, or be at work protecting their jobs.  Not at court listening to someone tell them that one of the main harassers was really ok, except for a little gender bias thing.  

He also discussed in his closing the merits or lack of merits in one woman trying to confront the man she said raped her.  "If I were a woman, the male, older defense lawyer said, "I would not have done that."  Later, he essentially admitted there was some assault on the women employees.  That is, they had been touched inappropriately, and worse.  But, as he said, "it was not because she was a woman.  It was not because she was assaulted.  It was just dumb."  He referred to some of the managers as "idiots."  

So, after a month long trial concerning thousands of women victims, the best the defense can argue is that what they did was "dumb" and the managers were "idiots."   Yes, jury members do get annoyed when they think they have spent a month away from jobs, away from families simply because management was "dumb."  That is when juries award large verdicts.  

As I explain to my clients, most defense lawyers manage bad facts much better than this.   Typically, a good defense lawyer finds a way to apply the best spin to any set of bad facts.  With good coaching, most witnesses at least sound better, even if the facts themselves do not improve.  So, yes, it is not realistic to ask for $250 million in punitive damages as a settlement offer, I tell my employee clients.  A big part of my job is educating clients about the realities of what to expect from a jury.  But, lawyers like this defense lawyer for Novartis Pharmaceuticals make my job so much harder.  

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The national unemployment rate has increased from 9.5% to 9.6%.  See report.  54,000 government jobs were lost during the month of August.  That loss is probably due to the loss of census jobs.  But, there was an increase of 67,000 private sector jobs.  In Texas, the unemployment rate rose slightly from 8.2% to 8.3%.  See report.  But, in San Antonio, unemployment actually went down from 7.7% to 7.6%. 

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 Workplace harassment takes many forms.  In the San Antonio Police Department, two police officers stuffed trash in a female co-worker's mailbox.  They hid her squad car when she needed it. Now, the two male co-workers have been placed on suspension.  See San Antonio Express News story.  One of the male police officers is 31 years old, the other is 39 years old.  Age does not guarantee maturity. They sent derogatory messages to the female officer and about her on SAPD computers.  One officer received a 60 day suspension.  The other received an "indefinite suspension."  He has essentially been fired.  

The news report does not explain what lead up to the pranks and harassment.  But, to risk termination, I hope it was in their eyes a very good reason.  Unfortunately, as I have mentioned in other posts, workplace bullying is more common than it ought to be.  See prior posts.  

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 Why would an employer provide grounds for a lawsuit to an employee?  It is hard to fathom, but Bexar Metropolitan Water District has fired a business analyst whose warnings about improper accounting practices were supported by a a consultant.  See San Antonio Express News report. Gilbert Herrera's warnings were well-reported prior to his termination.  An outside audit confirmed his belief that some $3 million in fees should not have been counted as revenue.  That $3 million, however, was needed so Bexar Met could maintain a higher bond rating.  Bexar Metropolitan has been closely followed for the past several years in the San Antonio media.  The water district has had a great many scandals and lawsuits, lately.  

With that history, why would an employer fire a well-known whistle blower?  My only guess from afar is that most employers who violate known statutes exhibit some degree of arrogance.  The news report suggests that Mr. Herrera has been insubordinate or had a "bad attitude."    That may help the employer in a lawsuit.  I try to tell all my employee clients that they need to be on their best behavior especially after reporting their employer for some violation.  Juries do not always understand the law in a particular trial.  But, they do understand personalities and insubordination. 

As I have mentioned before in this blog, some friends of mine run a chain of sandwich shops.  They have never been sued.  They have a talent for respecting all employees and giving everyone, customer or employee a fair shake.  The few times they run into potential issues, they quickly offer some money and seek a release.  

Bexar Met is run by dozens of people with degrees and training.  They have some 270,000 residential and commercial customers.  They are overseen by an elected board of seven members. Their last CEO was a retired Army lieutenant-colonel.  Despite all the leadership and management training he would have received from the Army, he violated wire tapping laws, as well as sexual harassment statutes.  Yet, my friends with no formal management training and no college degrees exhibit much more talent and leadership than those supposedly better educated.  

Mr. Herrera says he is looking for a lawyer.  I bet he is.  Bexar Met has more lawsuits just in the past five years than some businesses and agencies get in a lifetime.  

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 Yahoo news has a story at:  www.finance.yahoo.com/career-work/article/110601/8-things-employers-arent-allowed-to-ask-you - the list describs things one supposedly cannot ask interviewees.  It has so many errors.  So, let's go one by one.

1. How old are you?  The Yahoo comment about this question is probably accurate.  There are very few jobs where someone can ask you your age and the question itself not serve as evidence of age bias.  Best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married?  I do not understand this.  I do not understand how this can serve as evidence of anything.  I think the Yahoo author is suggesting that this might serve as evidence if asked of female applicant.  But, virtually every married person would have some issue or concern regarding family life and their employer.  I cannot imagine how this could be used as evidence against the employer in any claim.  

3. Are you a US citizen?  Yahoo's answer to this question might be correct.  The article refers to the Immigration Reform and Control Act of 1986, but I would also add that asking about citizenship could also serve as evidence in an ethnic origin case.  Better not ask this question until a job is offered.

4. Do you have disabilities?  Yahoo's answer is partially correct an partially incorrect.  An employer can ask if an applicant has any limitations that would keep him/her from performing essential functions of the job.  How else would a fire deaprtment make sure an applicant can carry someone out of a burning building?  The Yahoo news article gets this very wrong and very misleading.  Yes, ask about physical or mental limitations.  But, do not ask about disabilities or diagnoses until a job offer has been made.    

5.  Do you take drugs, smoke or drink?  Yahoo's answer is confusing.  An employer can ask about drinking, smoking or illicit drug use.  An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.  How Yahoo gets to the conclusion that one cannot ask about illicit drugs, smoking or alcohol is beyond me.  None of these abuses are protected activities under any employment laws to my knowledge. 

6. What religion do you practice?  The Yahoo news article is right about this.  An employer cannot ask about religious practices.  Since, that could be used as evidence later of religious discrimination.

7. What is your race?  See No. 6 above.  But, don't we all know not to ask this by now?  

8. Are you pregnant?  This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias.  So, yes, it is better not to ask this question.  And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

But, the article does not make this plain: all of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation.  If an employer asks about pregnancy and then later fires the applicant for some trivial error, only then would questions asked in an interview have any relevance.  A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation.  The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant.  The best defense for any employer is to simply issue written warnings whenever a transgression occurs.  Less worrying about verbal discussions and more focus on written discipline applied consistently will serve the employer much more.  

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Paid maternity leave is virtually nonexistent in the US.  Even unpaid leave is not a given.  Since, the Family Medical Leave Act only applies to employers with 50 or more employees.  A worker must have worked for the employer some 12 months prior to requesting the FMLA leave.  According to one public agency, the FMLA covers 60% of the workforce.

One mother, Anna, describes her two births.  See post.  She was an independent contractor both times. So, the only leave she received was what she could squeeze in between births.  Every Western country, except Australia and the US, offer paid maternity leave according to Anna.  So much for family values.....

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How do employment lawyers choose clients?  Mike Maslanka, a defense employment lawyer, talks about this topic.  He discusses a talk he had with a plaintiff employment lawyer from Houston.  The Houston lawyer said he asks two questions: 1) what reason did the employer give for terminating you?  2) what was the real reason?  This plaintiff lawyer from Houston said he believed these two questions would "pry out the truth" regarding what happened.  I agree these two questions are key.

Mike then offers his version; as a defense oriented employment lawyer, he considers two quotes when choosing clients: 1) Salespersons often say the best sale they make is the one they did not make, and 2) Mark Twain warned that is often easier to stay out than to get out later.  I agree.  As Mike says, life is too short to deal with difficult clients.  I agree completely.  

This is especially true when considering plaintiff clients.  As I have mentioned before, very, very few potential clients come see me because they seek revenge or because they are looking for a pot of gold.  Most simply want some sort of vindication or recognition by someone in authority that they have been wronged.  But, they do want me to represent them sometimes with as little investment on their part as possible. They want me to take their case on contingency with no requirement that they pay anything.  So, yes, they may not tell me all the bad news in that first meeting.  We need to "pry it out" sometimes.  And, in the prying out process, we do sometimes learn which clients we need to avoid for many reasons. 

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Hewlett-Packard  sues Mark Hurd claiming that his new job as CEO for Oracle will require him to disclose trade secrets.  Apparently, HP never required Hurd to sign a non-disclosure or non-compete agreement. So, HP is suing under the theory of inevitable disclosure of trade secrets.  HP filed suit in California, which according to one observer, has not embraced the doctrine of inevitable disclosure. See Workplace Prof post.  

Mark Hurd, of course, was the CEO for HP until he was charged with sexual harassment.  See post. Not a bad gig.  Cost your employer big bucks and bad publicity and become the CEO for Oracle.....

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 A San Sntonio soldier has been killed in Afghanistan.  PFC Diego Montoya was Mehtar Lam in Northern Afghanistan.  A 2009 Taft High School graduate, he participated in the high school JROTC program.  He was serving with the 64th MP Company.  See San Antonio Express News report.  His mother said he always wanted to serve in the Army.  His step-father said he was a hopeless romantic. 

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The ADA was amended substantially in 2009.  See prior discussion here.  With the new ADA in place, disability cases will be more about the accommodation process and less about whether a person is disabled.  Workplace Prof discusses a case that sheds some light on the accommodation process.  An employee seeking accommodation must present his/her concerns to the employer.  The employer is then required to respond by either providing the accommodation or offering alternatives.  This is known as the "interactive process."  

Some employees, inspired by some limited knowledge of the law, then argue with the employer and essentially refuse particular accommodations.  The employer is not required to provide the requested accommodation.  It is only required to provide an accommodation that meets the employee's need.  In Gratzi v. Office of Chief Judges, 601 F.3d 674 (7th Cir. 2010), the employee was a court reporter who had an incontinence problem.  She needed a nearby bathroom as an accommodation. She needed to get to a restroom on a moment's notice.  But, her position was reorganized into a pool position in which she no longer was assigned to a particular worksite.  There was no reason to believe this reorganization was motivated by discriminatory intent. 

The employer suggested a number of possible accommodations, all of which were rejected by Mr. Gratzi.  She insisted on reinstatement to her previous position.  Reinstatement to her previous position meant she would be assigned to one particular worksite.  The court reporter did not seek her doctor's advice regarding some of these proposed and then rejected accommodations.  She simply rejected them outright.  The appellate court found in favor of the employer.  The plaintiff, did not, said the court, explain why the offered suggestions would not work.  She did not explain why these alternatives would not allow her to get to a restroom within five minutes, as she needed.  

Some of the alternatives would have required Ms. Gratzi to raise her hand for a break.  She argued that this would cause her embarrassment, possible resentment by other court reporters who would have to cover for her, and would disrupt court proceedings.  But, as the 7th Circuit said, this was a detriment more to her employer than to the employee.  The court felt she did not do enough to reach an accommodation.   A few employees have come to see me lately expressing their resentment at the employer's apparent unwillingness to provide the requested accommodation.  But, the law does not require the employer to provide you the accommodation you want.  It only requires the employer to provide an accommodation that meets your medical needs.  

As Workplace Prof points out, the employee's outright rejection of several alternatives made her an unsympathetic plaintiff.  Sympathy does count in litigation.  That five minutes of feeling good when you tell the manager "no" can cause long term pain and regret.  It would serve any employee much better if they articulate some objective reason why an alternative will not work.  Even better, check with your doctor before responding to the employer's offer. 

Note that the employer in Gratzi was allowed to reorganize in ways that added to the employee's difficulties, so long as the reorganization was done without discriminatory intent.  

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 A worker in El Paso was vindicated after he was fired for talking to his co-workers about work conditions.  The employer's action in firing the worker violates the National Labor Relations Act.  Taking action against a worker for discussing "terms and conditions" of employment with co-workers violates the NLRA.  Eric Murillo worked for Chaffhaye, Inc. and arranged a meeting with other employees to discuss unsafe working conditions.  His employer fired him.

After filing a complaint with the National Labor Relations Board and seeking representation from the Paso del Norte Civil Rights Project, he was reinstated with lost wages.  OSHA also eventually got involved and also found violations.  See report.  Chaffhaye produces livestock and forage feed. 

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 Fitness for duty exams are not popular with the workforce.  They can be very stigmatizing.  But, employers want to know if an employee has issues that could affect business.  Most caselaw says fitness for duty exams for unspecified reasons are not justified - they are perceived s a backdoor to discriminate based on disability.  But, the 9h Circuit found in Brownfield v. City of Yakima that sometimes they are appropiate.  See decision.  In this case, a police officer exhibited erratic behavior a few years after he sustained a head injury.  He was complaining over a period of years about a supervisor who Brownfield believed was keeping him from  promotion.  After exhibiting some erratic behavior, his employer required him to see a doctor and provide a report.  Brownfield cooperated at first and then refused to follow through.  The first doctor did find a mental diagnosis.  

The court found that in a workplace where the employer is engaged in dangerous work, preventive fitness for duty exams might be appropriate where there is a business necessity.  The court cautioned that they should not be used as a means to harass an employee or to fish for non-work related medical issues.  The business necessity standard is "quite high" and should not be confused with mere expediency, said the court.  The court then concluded: 

         "Nevertheless, we hold that the business necessity standard
         may be met even before an employee’s work performance
         declines if the employer is faced with significant evidence
         that could cause a reasonable person to inquire as to whether
         an employee is still capable of performing his job. An employee’s
          behavior cannot be merely annoying or inefficient to
         justify an examination; rather, there must be genuine
         reason to doubt whether that employee can perform
         job-related functions."

This ruling may not provide the clearest guidance, but it is a start.    

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