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

 A Detroit law firm requires secretaries to wear heels.  Until just a few years ago, they used teacups and saucers for coffee.  This is a traditional law firm.  One woman injured herself wearing heels.  Her heel caught on the carpet.  She hurt her back.  She had to take medical four times as part of her treatement. So, her employer, Honigman, Schwatrz, and Cohn refused to let her come back to work after her fourth medical leave.  See ABA Journal report.  They fired her. 

Denise Fitzhenry injured her back.  Now, she has sued for violations of the Americans with Disabilities act and the Family Medical Leave Act.  99% of the secretaries at Honigman are female.  She also alleges a hostile and degrading work environment for secretaries.  Her lawyer, Deborah Gordon, describes the law firm as very traditional.  They are like the "Mad Men," the television show, the lawyer explains.  Yes, I am sure.....

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Facebook has many uses.  Now, it has helped solve a crime.  A San Antonio child wrote on her mother's Facebook wall that she had been molested.  See San Antonio Express News report.  The message alleged that a man had touched her under her clothes twice in August.  The mother confronted the man.  He then attacked the mother and the child.  Police were called.  The man was arrested.  But for the message on the Facebook wall, the police might never have learned of the sexual assault.  The man has been charged with sexual assault of a child. 

Jorge Pena, an assistant professor at University of Texas at San Antonio in communications, explains that the girls' outcry should not be unexpected.  Most people "friend" people they know, leading to the creation of a tightly knit community online.  

San Antonio police have already had some success with Facebook.  They captured a criminal suspect on their Top Ten list when a Facebook wall posting suggested that he would appear at a particular night club for his birthday.   Eric Dishong was wanted for suspicion of theft, theft of a firearm and burglary of a vehicle.  Now, he sits in a San Antonio jail. 

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Texas Supreme Court does the right thing, for a change.  A provision in the Texas Civil Practice and Remedies Code contains a retroactive prohibition against asbestos lawsuits in regard to one particular company.  Retroactive prohibitions of any kind are very rare.  This provision was passed as part of several tort reform amendments in 2003.  See Texas Civ.Pra. & Rem. Code Sec. 149.  It is even more rare for a provision to ever say as Sec. 149 says, "The limitations in Section 149.003 shall apply to a domestic corporation or a foreign corporation that has had a certificate of authority to transact business in this state or has done business in this state and that is a successor which became a successor prior to May 13, 1968. . . "

It does read like a statute designed to protect one particular company.  The Texas Supreme Court appears to agree.  See Texas Lawyer report.  The court found this provision unconstitutional (ie, the Texas Constitution).  Retroactive provisions are scrutinized more closely than normal statutes.  A typical statute would limit or prohibit something in the future, not the past.   A retroactive application is seen as depriving someone of a particular right of some sort.  The court found that Sec. 149 does not satisfy the requirements of a retroactive law.  

This issue matters to Barbara Robinson.  A normal or prospective statute would have had no effect on Barbara Robinson's lawsuit.  Her lawsuit was already filed when the tort reforms were passed in 2003.  Only a retroactive statute could affect her lawsuit. 

Barbara and John Robinson sued a company, Crown Cork in 2002.  Crown Cork fit the definition in Sec. 149.  Sec. 149 protected Crown Cork.  John Robinson was exposed to asbestos with the Navy from 1956 to 1976.  The predecessor corporation to Crown Cork manufactured the asbestos to which John had been exposed.  Sec. 149 passed into effect on June 11, 2003.  Crown Cork promptly moved for summary judgment .  John Robinson died days later.   His widow, Barbara, appealed and lost at the Houston Court of Appeals.  Now, the Texas Supreme Court, years later, has overturned the Houston Court of Appeals. 

Sec. 149 was passed while the Robinson suit was pending.  It is likely that whoever sponsored Sec. 149 amendment knew its effect.  Former Chief Justice Tom Phillips represents Crown Cork.  The company is well-connected on several levels.  

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The City of San Antonio settled a case filed by Capt. Rosemary Flammia alleging sex discrimination. See San Antonio Express News report.  I mentioned this case last week.  See prior post.  Capt. Flammia, a female officer, sued the City when she was demoted in 2007 from the post of Deputy Chief of Police.  The settlement will include reinstatement to the Deputy Chief position for one day before retiring and payment of $249,000.  

She had been Deputy Chief for seven years when she was demoted.  One has to wonder what the new Chief was thinking when he demoted someone with no better reason than he wanted to.  If he did not speak with Human Resources for that sort of decision, then he did not do his job.  He was also involved somehow in another sex discrimination case from another city.  

She would have been paid $124,000 as Deputy Chief instead of the $93,000 she received as captain.  So, it appears she got her lost pay and more in her settlement.  That is a good settlement for her.  The City continues to deny liability.  But, no one pays that much money if they believe they have a viable defense. 

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Rosemary Flammia rose to Deputy Police Chief.  Then, a new Police Chief, William McManus, arrived and he demoted her down to Captain in 2007.  Capt. Flammia was the highest ranked female, I am sure, in San Antonio history.  She was also passed over for two promotions to Assistant Police Chief. Why was she demoted?  According to a recent San Antonio Express News article, the City's attorney said in 2007 the Chief could pick whoever he pleased for his staff.  See Express News story.  So, Capt. Flammia sued for sex discrimination. 

I am sure the Chief can indeed pick whoever he wishes for his staff.  But, he cannot do so if motivated by discriminatory bias.  I presume that if he had a non-discriminatory reason in 2007, he would have provided it.  If the best reason they can articulate is "cause he wanted to," then the City should settle this case.   

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 A Marine from San Antonio was killed in Afghanistan.  CPL Jorge Villareal was killed while on foot patrol in Helmand Province.  He graduated in 2006 from Kennedy High School.   See San Antonio Express News report.  CPL Villareal was part of a close knit group of friends who grew up together.  He served as class Treasurer and was a member of the National Honor Society at Kennedy High.  

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I talked about the school issued missing computers last May.  See blog post.  The Philadelphia school district then activated the webcams on the laptops in the hopes of finding them.  But, as it turns out, most were not stolen, at all.  So, the district inadvertently downloaded thousands of pictures of various families in their homes.  It was a huge invasion of privacy.  

Well, now the district has settled one case for $610,000.  See Chicago Tribune story.  The tracking program was accidentally left on months after the laptops were located.  Some 56,000 unnecessary images were taken by the district.  The student who settled his case, Blake Robbins, then 15 years old, said he never reported the laptop was stolen and did not understand why the tracking program was activated.  The webcam system took some 400 pictures of him over a two week period.  

Blake received $175,000 to be placed in a trust for him.  The lawyer received $425,000.  The article does not explain, but I assume that was the lawyer's attorney's fees.  Most civil rights statutes contain an attorney's fees provision. 

The district no longer uses the web tracking program.  With this case, we start getting some idea of the limits on computer technology and privacy concerns. 

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In employment law, former employees frequently must represent themselves in court.  There simply are not enough lawyers for employees to meet the demand.  And, of course, many former employees by definition lack income and resources.  In one recent case, a former salesman for Wyndham Vacation Resorts, Inc. lost his lawyer but persisted and won.  See San Antonio Express News report.  

James F. Faucett was fired from Wyndham in 2008.  He started a website called mywyndhamlawsuit.com where he posted a Wyndham manual which revealed that salespersons were taught to essentially lie about the benefits Wyndham would provide regarding the sale of timeshares across the country.  Wyndham is the largest seller of timeshares in the country.  After leaving Wyndham, he started a business called Advocates Against Timeshare Fraud, in which he helped customers avoid contracts to purchase timeshares.  Wyndham then sued him in 2009 to stop him from using his documents.  The former sales rep obtained some documents from the trash bin before he left Wyndham.  In January, 2010, Wyndham obtained a temporary restraining order (TRO) prohibiting Mr. Faucett from using the documents. TRO's by nature are based on quick evidence, often within just a few weeks of filing suit. TRO's are intended to be temporary until the parties can have a more complete hearing later. 

But, as many former employees must, he filed for bankruptcy.  Wyndham's state court lawsuit then was removed to federal bankruptcy court.   So, the employer's lawsuit was essentially transferred to federal bankruptcy court.  Wyndham then moved to permanently seal the employee manual and other documents.  Customers, to whom Mr. Faucett had provided the documents, intervened to make their own arguments in support of using the "smoking gun" manual.  

This time, representing himself, Mr. Faucett won.  Judge Leif Clark, the federal bankruptcy judge, found that Wyndham had not explained how Mr. Faucett's use of the documents could cause harm to Wyndham.  The former employer failed to explain how its competitors could use the information in the documents against Wyndham.  So, the court denied Wyndham's motion to seal the documents.  

The judge opined that Wyndham's "real interest in seeking to have this document filed under seal seems to be to keep it out of the hands of Wyndham's customers."   In fact, the court noted that the Wyndham representative who testified said they would prefer this information not be provided to customers who could use the information against Wyndham.  

Pro se plaintiffs do sometimes win.  Mr. Faucett had help from customers who joined the bankruptcy proceeding apparently on this one issue.  But, still, defeating Wyndham's team of lawyers is no small feat.  

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 Well, sanctions were dismissed against Judge Sharon Keller, after all.  See San Antonio Express News story.  A special panel appointed by the Texas Supreme Court agreed with Judge Keller's lawyer that the Judicial Commission could only issue a censure, recommendation for removal or dismissal of the case.  No public warning was possible, said the special panel.  So, the public warning issued by the Judicial Commission was null and void.  

Go figure.  I predicted different results.  See prior post.  One would think that a panel empowered to recommend removal would have the implied power to issue a public warning, a step short of censure or removal.  But, the panel disagreed.  . 

Judge Keller will go forward with a cloud over her head, unfortunately.  She will always be known as the judge who performed imperfectly one time.  The standard for Judges and lawyers is no mistakes. We do err on occasion.  Most mistakes are "fixable" in some way.  Refusing a late filed motion for a man's execution is not. 

We now know that many people are found guilty who were actually innocent.  DNA evidence has overturned too many supposed murder and rape convictions in the past 20 years.  One can only hope that the inmate Judge Keller allowed to be executed was not such a person. 

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In a recent lawsuit, three former teachers claim their First Amendment rights were violated after they told a KENS 5 reporter that their principal kept some sex toys in her office.  See San Antonio Express News report.    The three teachers formerly taught at Gabriel Tafollla charter school in Uvalde.  They had complained to a reporter that a teacher who sold the sex toys was not renewed for the following school year, while the principal with some of the sex toys in her office was promoted.  The three teachers supposedly made their complaints anonymously.  See KENS 5 news story.  But, they were subsequently fired, suggesiting the school learned their identities.  

First Amendment rights apply to governmental employers.  So, I have to assume the lawyer, Ed Pina, can show that the charter school is a governmental entity.  Otherwise, this sort of suit is exactly what the First Amendment is intended to protect: discourse about issues of public concern.  Some members of the community would possibly be concerned that a principal has sex toys at school or that a charter school is terminating some employees for selling sex toys, while promoting others involved with sex toys. 

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 Michael Fox (not the actor) writes a nice blog on employment law from the employer's perspective at: http://employerslawyer.blogspot.com/.  He wrote recently about a jury result in Madison, Wisconsin.  A jury awarded $2 million to a teacher who sought the simple accommodation of a class room with a window.  Otherwise, she was subject to crying spells, fatigue, anxiety, hypervigilance and a host of other emotional maladies.  See post.  All this for a first grade teacher. 

Mike's point is that we should beware of cases reported in the newspaper.  He suggests this report that all the teacher needed was a room with a window may have more to it than that.  I am sure he is right about that.  Not because reporters lack ability, but more because it is difficult to report on an unfamiliar area.  Many movies get all aspects of a trial wrong.  The same would follow with news reports.  I have noticed this with my other career, the US Army.  I have heard reporters describe 100 soldiers as "brigade" sized (no way), Bradley Fighting Vehicles referred to as tanks (not even close), and platoon leaders referred to as commanders (not really).  

The newspaper report and Mike are right about one thing, the jury was upset when they awarded $2 million to the teacher.  They had to believe the school district wasted their time with a weak case in order to award that much money.  The award will be reduced by a big chunk - the Americans with Disabilities Act is subject to caps on damage awards.  The highest cap for emotional suffering type damages is $300,000.  The newspaper reports that the teacher, Renae Ekstrand, suffered from seasonal affective disorder, a form of depression.  See Leagle report.  The employer initially won on summary judgment.  The summary judgment in favor of the employer was overturned on appeal in 2009.  In 2010, the trial resulted with this $2 million award. 

Ms. Ekstrand suffered a nervous breakdown after having to teach in a windowless room.  There was apparently an empty classroom available with a window. 

The point of the newspaper story is that everything could have been avoided if the school had offered her a room with a window.  One room was apparently available with no effort.  

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In most private sector jobs, if you were suspended 17 times by your employer, you would be out of a job.  But, Officer Lee Rakun is still appealing his latest suspension from the San Antonio Police Department.  See San Antonio Express-News story.  In fact, Officer Rakun received his first suspension within a year of starting with the police force.  The SAPD has an active union and a strong Collective Bargaining Agreement (CBA).  So, that helps explain Officer Rakun's tenacity.

The advantage of CBA's is that they typically require some form of "good cause" for termination.  An employee can only be fired for good cause.  Without a CBA, the rest of us are subject to Texas' "at will" employment.  "At will" employment means the employer can terminate anyone for any reason (other than discrimination and a few other exceptions).  The employee handbook so many of us have at our jobs say an employee will be fired for certain infractions.  But, employee handbooks are not binding and they are often violated by the employer. 

So, the next time you are fired for "excessive absences" or because after 14 years of no errors, you are accused of failing to account for one $15 expense, think about unions and Officer Rakun's appeal of his 17th suspension.  

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 A man in Dallas has worked at Jack in the Box for 32 years.  Robert Williams worked his way up to Area Coach, just a few steps below President and Chief Operating Officer.  Burt, he was not rewarded for his loyalty.  Instead, at meetings, a supervisor would ask if it was time for Mr. Williams' "nap"  and would refer to Mr. Williams as "old man."  He was fired, due to his age, he claims.  See report about Williams v. Jack in the Box.  

Yes, those remarks are classic examples of evidence showing age bias. 

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Scroll down to a July 23, 2010 entry and you will see a blog post by Michael Fox, the employer's lawyer, about a whistle blower case in Maine.  See post.  A supervisor complained about several unsafe situations regarding the men he supervised.  They worked in a warehouse with wooden pallets. The supervisor eventually lost his job after his complaints.  The whistle blower complained about a lack of ventilation, and about the change from leather gloves to cotton gloves.  Leather gloves are more resistant to splinters, as any backyard gardener knows.  The employees who spent their days repairing pallets were getting many more splinters than they had before the switch.  

A Maine jury agreed with the employee and awarded $1.15 million in damages.  No doubt, the employer now sees the value in leather gloves, after all. 

Fifty years ago, these leather gloves would have been the subject of a union grievance.  With the decrease of union membership, there are more whistle blower actions than ever.  Texas does not have an equivalent to the Maine whistle blower statute.  We do not even have a private sector employment whistle blower statute.  But, I bet we have some employers who switch from leather work gloves to cotton gloves. 

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 Employee handbooks are not enforceable.  They have not been enforceable since the early 1990's.  In the early 1990's, after a few court decisions, Texas employers realized they had to include a disclaimer in each handbook stating that the handbook is not a contract.  Employers wanted employe handbooks to not bind the employers.  Much of what makes a good handbook does not make for a good contract from the employer's perspective.  There were one or two cases in the late 1980's in which employees successfully argued that they had not been warned three times prior to termination, as required in the employee handbook.  So, their terminations were overturned.  Employers responded with clauses making the handbook not binding and not contractual. 

Then comes this movement to send disagreements to arbitration.  Employers thought arbitration would be cheaper and faster than lawsuits.  So, they sought to make arbitration the default forum for disagreements in the workplace.  But, how do you have a binding arbitration in an employee handbook that has a disclaimer?  That is, how does one make a non-binding handbook binding, sort of, sometimes, maybe?

Easy.  Include a phrase that sets the arbitration clause apart from the rest of the handbook, so that only the arbitration clause is binding.  This is what has lead to the Hatton v. D.R. Horton case.  See report.  The Texas Supreme Court has asked the parties to provide briefing on the issue, which usually means the court will consider the issue.  The Texas Supreme Court has been very supportive of large corporations and employers for many years.  And, the movement to take disagreements to arbitration, for everything from buying a car to workplace complaints is still strong.   So, the chances of success for the employee in Hatton v. D.R. Horton are slim indeed. 

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I served in Iraq for a year and devoted 28 years of my life (mostly part-time as a Reservist) to the military. So, seeing signs like "Thank God for Dead Soldiers" at a funeral for a dead soldier angers me beyond belief.  See news report.  I cannot understand a church that openly, proudly protests at many, many funerals for service members killed in the two wars.  I practice civil rights law, so have some understanding of civil rights.  The First Amendment is a critical part of our laws and heritage.

The First Amendment has rarely been limited.  The most well known limitation came in a 1919 case, Schenk v. United States, in which Justice Oliver Wendell Holmes said that falsely yelling fire in a crowded theater was not protected speech.  See court opinion.  Justice Holmes offered this as an example of speech that would not protected by the 1st Amendment.  

This Westboro Baptist church case will be very difficult for the Supreme Court to decide.  Albert Snyder, the father of the slain soldier, Michael Snyder, rightly points out that this church took away his right to a private, mournful funeral.  Even though, the funeral procession was guided away from the protesters and the protesters were done by the time the funeral started, the father became aware of the protest within a month when he was researching his son's death on the internet.  He sued the church for intentional infliction of emotional distress and was eventually awarded $5 million in damages.  The court of appeals overturned the verdict saying the church was exercising its right to free expression. 

Now, the appeal is before the US Supreme Court.  In oral arguments today, the justices indicated they were having trouble with this case.  What are the limits of free speech?  Free speech cannot be based on popularity.   There is no need for a government protection for popular speech.  It is the unpopular speech that needs protection. 

The Schenk decision indicated that one limit would be public harm.  Free speech should not extend to speech which causes panic and endangers lives.  It seems to me that some speech can be so provocative that it endangers lives.  But, I am told by those more learned in First Amendment cases that the Supreme Court has already rejected that attempt to limit free speech.  Recall the case concerning the Neo-Nazis who appealed and won their right to march in a Jewish neighborhood in Chicago.  Their march was also likely to provoke violence, but the Supreme Court, I am told, rejected that argument.  

I am sure the tiny Westboro Baptist church is concerned for their own safety.  They may be the most unpopular church in America.  In this case, I have to speak more as a former soldier.  If they picketed the funeral of one of my soldiers, I would not wait for any lawsuit to take appropriate action.  

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 Rob Radcliff wrote a piece on noncompetes in Texas at his blog, Smooth Transitions.  He discusses the state law regarding physician noncompete agreements.  A physician noncompete must not impinge on a doctor's access to a list of his/her patients upon his/her departure; the departing doctor must have access to the patients' records when authorized by the patient; and the physician must not be prevented from providing treatment to an acutely ill patient.  

The statute provides the requirements for an enforceable physician noncompete.  You can go here to see the complete statute: Texas Business & Commerce Code Sec. 15.50.  

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 Its a sign of the times.  Employee is out sick and the employer calls to pressure the employee to return to work asap.  See story.  A woman was recovering at home from a double mastectomy.  The manager at the crafts store, Michaels, called her several times asking when she could come back to work.  Kara Jorud was torn between fears for her job and the need to recover.  Eventually she went back to work much sooner than the the three months to which she would have been entitled under the Family Medical Leave Act.  

She could barely lift her arms across her chest when she returned to work.  She asked her husband to come in one day to help her lift boxes.  She was then fired for this breach of company policy.  

Fortunately, even in bad times, the nation's discrimination laws still apply.  So, folks like Mrs. Jorud at least have a choice.  

Ms. Jorud was one of the lucky few.  She won her lawsuit and was awarded $8.1 million.  As I tell my clients, yes, it is unpleasant when the boss calls you and pressures you.  But, that sort of pressure can become very good evidence later.  The court found that the employer's actions violated the Family Medical Leave Act. 

In a 2001 poll by the Department of Labor, almost one-third of workers said they did not take leave even when they felt they needed it because they feared they would lose their jobs. In the MSNBC poll accompanying the story, 62% of respondents said they felt pressure to not take time off for medical needs in this difficult economy.  

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