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

The federal government has settled a case against a longtime San Antonio medical group.  Kellum Family Medical Practice Associates was accused of falsely billing the federal government.  The lawsuit, a qui tam lawsuit, also known as a whistle blower lawsuit, started when a former employee claimed the Kellum clinic submitted false bills for medicare and medicaid patients.  The former employee, Julie Hajek Stewart, claimed the practice was billing at physician rates for work performed by non-physicians.  

The Kellums denied the allegations but they have settled.  Qui tam lawsuits work like this one did: a former employee files the initial lawsuit.  The US Attorney's office then joins the lawsuit if it thinks the evidence is strong enough.  The US Attorney joined this lawsuit sometime back and have now reached an agreed settlement.  The employee will get 10-25% of the settlement, says the San Antonio Express News.  See report.  Typically, settlements in qui tam cases are in the hundreds of thousands, if not millions of dollars. 

The Kellum family practice operates 10 clinics, with 6 in San Antonio.  They deny liability but have settled.  The settlement amount has not been disclosed, yet.  As part of the settlement, the Kellums will enter into a corporate integrity agreement, which essentially amounts to a five year probation. 

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On this day of thanks, I ask that we think about 150,000 Americans serving in Afghanistan and 50,000 serving in Iraq.  They work everyday.  They risk their lives everyday for us.  Some of us may question the value of the two wars.  Some soldiers, marines, airmen and sailors might agree.  But, they serve all the same.  They perform their duty everyday not for fame, not for reward.  Recognition is important to them, but that is not why they serve.  They perform their duties because they feel a strong duty toward their fellow soldiers and toward us, the folks back home. 

Give thanks that after 235 years, we still have soldiers and service members who still step forward, who still do their duty even when they are not always remembered as closely as we could.  We are fortunate to have the traditions and culture we do.  Many other countries lack that sense of duty.  Iraqi service members go home for about a week every month to take home their pay.  Many do not return to duty.  When they are on duty, many turn away from challenges with a shrug and a barely audible "en sha'ala."  

It is said that part of the reason for the fall of the Roman empire was that after hundreds of years, the Roman citizens lost their willingness to fight for their country.  The army was populated mostly by non-citizens who in the end, would not resist the invaders.  if so, we are a long way from that. 

I served briefly in a drill sergeant unit.  I loved seeing those young, fresh faced soldiers taking on much more than they really understood.  They still volunteer.  They reflect us and what we have made of this wonderful  country.  Let us give thanks. 

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Yes, you can be fired for reasons beyond your control.  I tell that to potential clients all the time, but they do not seem to believe me, sometimes.  One man, Sam Salazar, dated a woman for two years before they broke up.  He started caling her so often at work that she was fired.  He then started calling her at her new job sometimes more than a 1,000 times a day.  He would tell whoever answered the phone to tell his former girlfriend that he loved her.  See San Antonio Express News report. 

The woman applied for a protective order from the Bexar County District Attorney's office in April, but was turned down.  That probably means she asked the DA's office to seek a protective order for her.  But, the DA's office did send Mr. Salazar a letter warning him to quit calling the woman or face criminal charges.  

Sam Salazar continued with his calls even at her new job.  So, he has been arrested for telephone harassment by the San Antonio Police department.  

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Its hard to believe, I know, but some people do not like lawyers much.  One man has been wearing a pig costume and protesting in front of the state bar headquarters in Austin.  See post.  He says he wants the rules changed so that "arbitration" (apparently meaning mediation) comes before discovery. He says he spent over $200,000 on legal fees in a dispute over a parcel of land worth $4,000.  He complains that he spent $40,000 or so before going to what he calls arbitration, where the case did not settle.  He finally lost his case on appeal.  He stayed in the lawsuit only so he could get his attorney's fees back (which would have only been possible if he had won or settled). 

Eric A. Anderson has also protested at the Travis County Courthouse.  He will not name his lawyer. 

I used to do collections work.  I would recommend to my client that any amount below $5,000, they should file on their own in Justice of the Peace court.  And, of course, once my attorney's fees became one-half or more of the amount owed, it was time to consider whether this was a debt worth pursuing.  I would discuss frankly with my  client how bad did they want to sue this person.  Quitting a lawsuit is not easy, sometimes.  We get "worked up" in the middle of a lawsuit.  But, we need to always remember that every lawsuit is essentially a business decision.  Cost benefit analysis must apply. 

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Forbes magazine offers us examples of things we should not say at work.  See Forbes article. Topics to avoid include sex, religion and politics, of course.  These are topics that can get folks riled up easily.  A thoughtless comment, seemingly harmless banter can linger.  According to one survey, only one-third of senior managers felt comfortable discussing their political views with colleagues. One lady remembers when she slipped up.  The boss, a senior manager, proudly announced at a meeting that he had voted for the Colonel, referring to Oliver North running for the Senate in Virginia. Without thinking, Alison Risso responded, "I pray to God you mean the one who sells chickens." Ms. Risso did not last long at that job.  

Beware of off-color jokes.  Be very wary of humor based on ethnic or gender stereotypes.  Never, ever discuss or "joke" about committing any sort of violence at work.  Do not discuss in any great detail operations, surgeries, or treatments.  

Don't say "that's not my department."  if you are not willing to invest five minutes into an issue for your boss or co-worker, then you have demonstrated your lack if interest in your job. 

Workplace morale requires some light topics. Workplace communication is greased by easy conversations and harmless banter.  I remember the Lieutenant-Colonel who insisted that lower ranking persons stand at parade rest in his office, with no hands in their pockets. He would not allow his staff, officer or non-commissioned officers, to sit in his office when providing important information.  You know that particular Lieutenant-Colonel was often out of the loop on critical developments in our work place.

Or, as the Forbes article explains, one new CEO had trouble getting his employees to follow his directions. When the consultant met with him, he told her up front that he did not care what his employees thought of him, so long as they did what he told them.  The consultant and author ("Shut Up and Say Something") recommends don't tell employees "just do it" or "you don't know what you are talking about."  Even in the Army, or perhaps especially in the Army, that does not work. 

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 If you are going to quit, get ready.  Clear your office of embarrassing computer files, personal papers and anything else you want to keep.  As the ABA Bar Journal advises lawyers, once you resign, your employer may very likely escort you out of the office immediately with nothing more than a promise to send your belongings later.  See Bar Journal report.  The advise is for lawyers, but it applies to any white collar employee.  Many employers now escort departing employees out the front door.  

Do not solicit clients, says the Journal, before departure.  Just as it would be wise for everyone else to not solicit customers before departure.  Beware of any non-compete agreements.  

If the employer has an exit interview, do not nitpick.  Try to address systemic issues.  Try to treat your departure as a business decision, despite the many events that may have lead up to it.  

Accept offers to meet for lunch or coffee from co-workers.  Do not turn these social sessions into gripe sessions.  Whatever the circumstances of your departure, turn it into a positive event. 

Remember former colleagues' birthdays.  Send them thank you notes for their help with your career. 

The Bar Journal does not mention this, but also, see a lawyer of you think you may have grounds for a lawsuit.  Even a lawsuit, in the end, is a business decision, too. 

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SSGT Giunta is awarded the Congressional Medal of Honor.  See news report.  He teared up when he described his receipt of the award.  He said he did not deserve it and that he was only a "mediocre" soldier.  I am sure that he does deserve it.  But, it is true that he did what many soldiers would have done and have done.  

Civilians who have never served do not appreciate the selflessness that serving in the armed forces instills.  We are taught to be a member of a team and to not seek personal recognition.  The few soldiers who do seek personal recognition are often shunned or become the subject of jokes.  "There is no 'I' in the word team."  How many times have I heard that during training or in Army schools??   

When I was young, I remember a few World War II vets who shunned the spotlight. Certifiable heroes, they nevertheless avoided recognition.  Now, I understand why.  To seek what we were taught to avoid would undermine everything we fought and bled for. 

For those not familiar, SSGT Giunta's squad was caught in an L-shaped ambush.  It was well executed and well planned.  Giunta and his squad was pinned down.  Two soldiers were forward of the rest and were exposed in the open, with no cover.  One was wounded badly, SGT Brennan. Brennan and Giunta were close friends.  In the dim light, Giunta could see that two Taliban fighters were dragging Brennan away.  Giunta got up, exposing himself to heavy enemy fire and advanced, tossed a grenade and shooting.  He shot one Taliban and the other retreated.  SSGT Giunta rescued his dying friend and pulled him back to safety.  Brennan died soon after.  But, Brennnan died knowing he was back with his buddies.  SSGT Giunta's attack broke up the ambush. The Taliban retreated. 

When you serve and especially when you deploy, your military unit becomes your family.  I would have given my life for my buddies readily, as they would have for me.  SSGT Giunta is right that his actions are not all that uncommon.  He is also right that he accepts the award for every soldier, marine, airman and sailor who was ready to do what he did.  He stands for us all in many ways. 

But, SSGT Giunta is also the best of us.  We are not all selfless or as selfless as we should be when we serve.  When many Iraq/Afghanistan vets return home, many come back angry.  Angry at those few instances when some soldier acted for his/her self interest and needlessly added to the ever present risk in a war zone.  

SSGT Giunta reminds us all how it should be.  He is the best of us.  

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Iowa passed a law recently requiring employers to give veterans Veterans Day off.  The leave can be unpaid.  See post.  The new law has some exceptions for public safety workers and major disruptions to employers.  But, the idea seems pertinent to today.  

I myself worked for an employer where Veterans Day was not always honored, even when I was fresh from the war.  My former employer would alternate Veterans Day with another holiday.  

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An employee went to the EEOC.  She was being sexually harassed in a pretty blatant manner by the owner of a small company somewhere in the USA.  She meets with an investigator who tells her that she has no case, because she has no evidence.  EEOC investigators should not give legal advice, but  it happens sometimes.  They are investigators, after all.  Investigation sometimes involves discussions about evidence.   

The complainant then responds that she has witnesses.  Investigator tells her to call her Human Resources person to make a report.  The employee calls HR from the investigator's office.  She reports the sexual harassment. 

Within ten minutes, the owner calls the employe, still at the investigator's office.  She puts him on speaker phone.  The owner says, "I understand you complained about me.  You don't need to return to the office."  The owner fired the employee over the EEOC's own phone within ten minutes of her complaint.  The investigator heard it all. 

One might think, great, what great evidence!  The silly owner called and fired the employee for pursuing her rights with the EEOC - right where the EEOC could observe the whole chain of events.

Wrong.  The invstigator still insisted she had no case and refused to allow her to file a claim for discrimination or for retaliation.  He tells the employee she should just go collect her last paycheck and move on with her life.

This is the organization that on its own website says:

"The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's . . .  sex . . . . It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit."

 As I have mentioned before, do not expect much from the EEOC.  Most investigators mean well. They have far too many cases to perform an adequate investigation in any one case.  Of course, this situation goes beyond mere investigation.  The investigator already has all the necessary facts on which to start and conclude an investigation.  I can only conclude that the culture at some EEOC offices is indifferent and blind to the realities of the workplace.  

Is there room for doubt that the employer just retaliated against the woman because she opposed discrimination?  The investigator saw and hard it all.  He already has enough evidence to find in her favor on the issue of retaliation for opposing discrimination. 

The EEOC does have some teeth.  They do file lawsuits on behalf of employees.  But, situations like this one suggest that sometimes they will not see discrimination even if it is in front of their nose......

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 A colleague tells me about a woman who works at a small manufacturing facility in the Houston area.  The facility employs many Hispanic workers who speak poor English with a heavy accent. The front office folks are Caucasian.  The workers on the floor are mostly Hispanic with a few recent immigrants from Mexico.  

The woman friend needs to speak with the Hispanic workers on occasion.  She was speaking to a worker about a project and encouraging him to speak English and not call for an interpreter.  His accent was difficult, but the woman friend was communicating with him adequately, when a senior female manager walks by and interjects.  "He's only a Mexican.  Why bother?"  Then the manager continues on her errand without even looking back.  The Hispanic worker cast his eyes downward and lost his willingness to discuss the product at issue. 

Apart from notions of civil rights, how do such interactions promote efficiency?  Did the senior manager's comment promote or hinder workplace efficiency?

Another time, the company was planning their company Halloween party.  The front office folks were doing the planning discussing the details.  The office workers debated whether to invite the Hispanic floor workers.  The senior female manager, remarked," What?  Invite them and they'll bring their six kids!"  Yet, this senior female manager has never actually spoken with any of the floor workers.  She knows none of them. 

The senior female manager violates many more rules other than Title VII of the Civil Rights Act.  She daily recommends violations of tax rules, accounting procedures and others.  Folks who violate one set of rules often violate other rules, as well.  

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 I published this entry for Vets Day in 2009.  As modified for 2010: 

Today comes another Veteran’s Day.  Many of us recall a grandfather who served or an uncle who endured.  But, as Pres. Obama noted in 2009, the same service we grew up hearing about occurs today, everyday.  The 13 who were killed at Ft. Hood exemplify the hundreds of thousands who have endured in this generation’s two wars. 

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

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

When I was in Iraq in 2005-06, I went on a mission to visit some significant Iraqi officials.  On that convoy was a young female NCO.  She had graduated from college right after 9/11 with an engineering degree.  She joined the Army as an enlisted person and became an intelligence analyst, a very good one.  Here she was going outside the wire to collect intelligence.  She could have been anywhere that day, but she chose to be in Iraq, risking IED’s and more to collect critical information first hand. 

Pres. Obama said in 2009: "You may remember the stories of a grandfather who marched across Europe; an uncle who fought in Viet Nam; a sister who served in the Gulf.  But as we honor the many graduates who have served --  all of us -- every single American - - must acknowledge that this generation has more than proved itself the equal of those who've come before." 

In 2005, the large group of us, some 100 of us, were sent to California after Ft. Jackson.  We were to marry up with our Civil Affairs units and conduct train.  We had seven "full bird" Colonels in our group.  A sharp, able bunch.  The Civil Affairs brigade called them to a meeting.  The brigade told the Colonels, " we have some good news for you, we do not need you and you can go home."  The Colonels responded, "no, you called us from our civilian jobs, you must take us.  We are here to serve and we will serve."  One or two had contacts at the Pentagon.  They pressured the Civil Affairs Brigade to take them and put them to work.  They refused to be sent home.  All seven served their tours with distinction.

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

I served as Commander of a drill sergeant battalion in 2007.  I could not help but notice how many fine young people were volunteering for service during a time of two wars.  Today's soldiers, marines, airmen and sailors accept the same risks their grandfathers and fathers accepted.  A couple of the drill sergeants mentioned in briefings that they had to respect the young soldiers joining now in time of war.  

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

When I entered the military in the 1980's, older citizens would question our generation.  Would they serve as the "Greatest Generation" served in the 1940's?  Yes, they have, we have, over and over.  

Thank a vet today for his/her service.  

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 It is a little known provision found in the National Labor Relations Act.  An employee has the right to discuss "terms and conditions " of employment with other employees.  An employee can discuss whether they like their supervisor or whether they are paid enough.  Discussions about work issues were seen as the precursor to forming or not forming a union.  So, the National Labor Relations Act, a 1930's era statute, allows employees such discussions.  I discussed this provision in a prior post. The National Labor Relations Board refers to this as "concerted activity."  They define concerted activity as two or more employees getting together to improve working conditions.  See NLRB webpage.  

So, it was sure to happen sometime.  An ambulance driver and union member in Connecticut   discussed and disparaged her boss on her Facebook page.   The remark drew supportive statements from other employees.  The ambulance service fired her.  Now, the National Labor Relations Board is investigating.  They have issued a press release denouncing terminations for an employee discussing terms and conditions of employment.  See press release.  

Dan Schwartz at Connecticut Employment Blog, who primarily represents employers, has warned employers abut this.  See his blog post.  Even though this partiucular employee is a union member, the provision regarding discussing terms and conditions of employment is not limited to union members.  So, employers, if you have a social media policy, make sure it does not prohibit discussions of "terms and conditions" of employment. 

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A podiatrist from the Hondo, Texas area tried to cancel his own hearing in US District Court.  See San Antonio Express News report.  Donald E. Robinson faxed papers to the federal courthouse announcing that his hearing had been canceled and naming himself as a surety for a $300 million bond, I presume to guarantee his appearance in court.  (So that's how you get federal hearings   canceled.....)

Dr. Robinson explained to the Express News that he had tried to work things out with the federal prosecutors, but they would not return his phone calls.  He had asked them about reaching a settlement of his case.  He hoped that the papers he faxed would help resolve things.  He was indicted in August for failing to pay his US taxes.  He says he relied on advice from an accountant.  He did not attend his hearing because he thought he was working things out with the prosecutor. 

It sounds like this time, he is not relying on the advice of a lawyer.  I do not practice criminal law, but I do not think that filing false documents will help his case.  

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The EEOC has held public hearings on an employer's use of credit reports as a tool with which to screen applicants.  Jon Hyman at Ohio Employment Blog discussed one such hearing.  See Jon's blog post.  Employers say credit histories help them screen clients and protect against fraud. Employees, especially in this economy, are concerned that poor credti history may unfairly keep them from a job.  The representative from the US Chamber of Commrece says employers take individual situations into account and do not abuse the practice.   

According to one credit agency, Experian, employers never see credit scores, just the histories.  See Jon's post for more info. 

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Many discrimination cases are focused on whether the employer's supposed reasons for termination are sincere.  Few employers explain that they have fired so-and-so because of the employee's race, color or whatever.  So, very often, cases are all about whether the employer's articulated reasons for a firing or demotion are sincere.  And, caselaw or precedent holds that evidence of the employer's false reasons support a finding of discrimination. 

So, what is the employer's reason?  Must the employer's reason include ample detail?  Not according to a recent Fifth Circuit decision.  In Jackson v. Watkins, et al, the federal Fifth Circuit found that conclusory reasons are enough.  As Mike Maslanka at Work Matters blog points out, that is surprising.  See Work Matters blog post.   Since, as happened in the Jackson case, an employer can offer very little which the employee cannot rebut.  In Jackson, a long time prosecutor for the Dallas County DA's office was fired.  The new District Attorney said nothing more than that he had had "negative" experiences with the prosecutor.  No examples.  No incidents.  That was it.  And, Mr. Jackson did not offer any rebuttal to this reason.  Mr. Jackson's lawyer simply argued that they did not have to present evidence rebutting that reason because it was so general.  The employee relied on evidence that Mr. Watkins fired four white top prosecutors and replaced them all with black prosecutors.  As the court suggested, statistical evidence is rarely persuasive and is not helpful without better analysis.  

Too, Plaintiff Jackson relied on his good job evaluations and good work record over the years.  But, as the court explained, none of this responds to the DA's claim to have had personal negative interactions with the employee. 

It is difficult for any employee to rebut that sort of statement.  But, the Fifth Circuit said that is good enough to amount to a legitimate non-discriminatory reason.  Therefore, the employee must rebut that, or the employee will lose.  As Mike points out, an employee who offers a conclusory basis for a claim of discrimination will get his claim tossed out of court.  But, the employer who does the same will win - at least according to this decision. 

But, employer do have incentive for providing detailed explanations in more frequent situations.  Discrimination lawsuits are pretty rare.  But, claims for unemployment are common.  An employer will not win a claim for unemployment benefits with conclusory statements about any personnel action.  Indeed, many TWC hearing officers will expect to hear about how the employer notified the employee s/he had a problem and how the employer gave the employee time to improve.  

So, from the employer's perspective, its darned if you do, darned if you don't.....

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There is computer software which allows a person to record key strokes made on a computer.  A parent or an employer can use it to see where someone is going on the internet.  Richard Renner at Whistleblower Protection Blog describes one way to find out if your employer is using ley logging software.  Update your motor vehicle registration.  One employee updated his motor vehicle registration.  He then received a letter from the United States Computer Emergency Readiness Team (US-CERT).   Apparently, US-CERT monitors the use of keystroke logging software.  So, they will notify you if they observe the use of such software. 

But, as Richard mentions, the best practice is not to use office computer equipment for sensitive information.  Employers have a legal right to much information transmistted over company owned servers and hardware. See Whistleblower Protection Blog post.  

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 Molly Dibianca at Delaware Employment Blog describes a person she knows who was passed over for promotion at a large company in the private sector.  The difficult thing for the friend was that the manager who apparently tried to get her the promotion broke the news to her quickly with no elaboration.  See Delaware Employment Law Blog blog post.  The manager felt terrible about the news.  He thought the friend had been done wrong in not getting the promotion.  

In the end what bothered the friend the most was that she felt unappreciated.  Molly is trying to make the point that a well placed compliment can mean so much to an employee.  In the Army, we were trained to appreciate our subordinates and to let them know they were appreciated.  We received leadership training at several key junctures in our career.  We practiced various counseling sessions regarding subpar performance.  Where was this manager's training?  Did no one tell him the value of a compliment?  

I have questioned and reviewed documents regarding many companies.  Manager training is not universal.  Many managers conduct counseling sessions exactly the opposite of how it ought to be done.  In one of my own prior jobs, managers received no training.  So, it is not surprising that manager turnover was very high.  

The costs of poor training roll down hill.  Employees who should grow into senior management become, instead discouraged employees and sometimes leave.  And, over time, as other things go wrong, discouraged employees often become plaintiffs in a lawsuit.  So, what is the value of a compliment?  What is the value of a proper counseling session?

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Some of our best and brightest join the military.  Some of the best of the best are lost to the war.  SGT Cesar Ruiz was one such Marine.  He joined, did his four years and got out.  He left the Marines because his wife, Kimberly, wanted him to avoid another tour in the two wars.  See San Antonio Express News report.  He went from active duty to the Individual Ready Reserve.  The IRR is subject to call-ups.  In 2008, Cesar Ruiz was called up.  Kimberly was not happy.  Soon afterward, he received a second letter providing him the opportunity to avoid this call-up.  

This second letter was the answer to her prayers, says Kimberly.  She was thrilled.  Until she saw Cesar's face when he read it.  She saw in his face his desire to go and serve his country.  He would say later that he wanted to go so his young son would not have to go.  

She could not hold him back.  He went, a Combat Engineer.  He was killed in Afghanistan within a month.  Now, Kimberly will jog in the Marine Corps marathon in Washington, D.C.  Not an athlete at all, she perseveres because, as she says, no matter how bad it will be it will not be as bad as the pain SGT Ruiz felt. 

Military service is not for everyone.  It is for those who will not stand by while others do nothing.  A hero is really nothing more than someone who does something because others do nothing. 

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