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

I love lawsuits and everything a lawsuit represents.  Anyone can file any lawsuit anytime.  Subject to a few consequences for those of us who get too crazy.  In many countries, that is not the norm, at all.  

In Los Anglees, one restuarant customer filed suit because he was forced to eat rice at a sushi restaurant.  The restaurant, Studio City offered a deal: $28 for all the sushi you can eat.  David Martin liked that deal, but he only wanted the raw fish (sounds so yummy...).  So, really, what he wanted was the all you can eat sashimi, which is just raw fish.  Mr. Martin is diabetic and must restrict his carbohydrates.  But, the owner Jay Oh insisted he could not fill up only on the fish.  See Los Angeles Times news report.  

Mr. Oh offered to prepare two orders of sashimi for $25, but Mr. Martin was not satisfied. He left the restaurant after being charged ala carte for the sushi and a green tea.  

Mr. Martin sued for discrimination on the basis of his disability, Type 2 Diabetes.  He claims $4,000 in damages.  Mr. Oh says he will fight to the end.  The plaintff's attorney says they do not seek money but a chnage in policy at the restaurant.  

Mr. Oh says he would go broke offering endless raw fish and no rice for $28.  But, I am wondering why people want to eat raw fish and then sue when they are prevented from eating raw fish....

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Some plaintiff clients want "revenge" of some sort when they file suit.  That is, they see the defense lawyer pursuing some outrageous litigation tactic and the client then asks me what will I do in response?  The client wants some comparable tactic.  Tit for tat.  You see this in Allen Sanford's litigation mess.  He recently field suit against a dozen federal agencies, the FBI, the SEc, etc.  See Texas Lawyer report.  Mr. Sanford accuses these agencies of unfair and abusive law enforcement tactics.  Mr. Sanford, of course, is the former high-living investment counselor who is accused of swindling his clients out of billions of dollars.  

His lawyers surely tried to dissuade him from this suit.  But, if they are being paid by the hour, their persuasive attempts may have been brief.  Federal courts see these lawsuits with some frequency, although not always from someone with Sanford's resources.  Many pro se clients file similar suits. Such suits are usually based on nothing more than speculation.  These retaliation suits do nothing more than make it clear that they are scared. 

It is better not to give in to our "inner Mongo" as James McElhaney, well known writer of litigation tactics would say.  See ABA Bar Journal article.  Judges are suspicious of counter-suits.  Counter-suits naming a dozen different federal agencies go to the head of the list of apparently frivolous lawsuits.  

In one lawsuit eons ago, the defense lawyer asked several questions about personal issues regarding my client.  The personal issues had no relationship to whether he suffered discrimination at work.  None.  The questions were designed solely to frighten my client.  Client asked me to retaliate in kind.  He thought we could do the same thing to one of the managers.  i told him, no, let the defense lawyer do this at trial and see how the jury responds.  As Mr. McElhaney explains, the jury will mot see this as fair.  They will only see tit for tat and become disgusted with both sides. Resist the call of your inner Mongo when you are in the midst of a lawsuit.....

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 A Kerrville woman was fired for sending a text message on a city-owned phone that was allegedly vulgar.  Janet Holmes has filed suit claiming she was fired for conduct similar to that of male employees who were not fired.  See San Antonio Express News story.  Plaintiff Holmes, a former administrative assistant was fired from Kerrville City Hall.  Ms. Holmes field suit in US District Court in San Antonio. 

This is the basis for many discrimination suits: a person (in a protected category) is fired for the very same conduct for which another person (not in the protected category) is not fired for.  To succeed, such cases require that the employee show the conduct is truly similar and that the managers making the decisions to terminate or not terminate are the same. 

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A San Antonio man was awarded $263,000 in a religious discrimination lawsuit.  Steven Hecht worked three years at Million Air San Antonio, a small plane servicing firm.  Million Air would mix religion and business routinely.  The owner, Mark Fessler, told Mr. Hecht to fire two employees because the Lord told Mr. Fessler they should be fired.  Mr. Hecht was required to attend lunch meetings that mixed religion and business.  A "prophet" came to work and said Mr. Hecht was unclean, unrighteous and struggling with pornography issues.

The prophecies were ok with the two owners, Mark and Richard Fessler, so long as Mr. Hecht attended their church.  But, when he stopped attending, he was fired.  

The defense attorney pointed out that the employee had accepted another weekend job when he was fired.  He was apparently suggesting Mr. Hecht was planning to leave Million Air.  I am not sure what that argument is supposed to indicate.  In any event, the  Bexar County jury did not buy that argument.  The jury awarded lost pay and compensatory (emotional suffering) damages.  The plaintiff had been making in excess of $100,000.  They also awarded punitive damages of $150,000.  

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San Antonio Airman Corey C. Owens died in a non-combat related incident in Iraq.  He was assigned to Laughlin AFB in Texas and listed San Antonio as his home town.  See news report. 

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 In employment cases, the employer will always depose the plaintiff employee.  The defense lawyer will ask a wide variety of questions, not necessarily directly related to whether discrimination occurred or not.  They may ask for driver's license numbers, acquaintances at work, out of work.  In one disability case, the defense lawyer even asked a few questions of my client regarding her love life.  I don't know.  Depositions are a discovery device.  So, any question that relates reasonably to potentially admissible evidence is fair game.  

Lately, many defense lawyers are asking questions regarding the social security number of an employee.  The SSN is a pretty good tool for searching public data bases.  I am sure they also hope to add to the employee's apprehension about the lawsuit process.  If the employee is Hispanic, then apprehension will increase substantially.  if the Hispanic client is here illegally, then he/she will not have a valid SSN.  Many defense lawyers know that.  Mike Maslanka discusses a case where that issue was raised in a deposition.  See Mike's blog post. 

The defense lawyer had the SSN from when the employee, Bella Viveros applied for the job.  But, the defense started asking questions regarding the validity of her SSN.  The employee's lawyer told her to not answer those questions.  The employee's lawyer then sought a protective order, a ruling from the trial judge that the employee did not have to answer such questions.  The trial judge granted the protective order.  The defense then moved for a mandamus, a ruling by an appellate court to force the trial judge to change its ruling. 

On appeal to the Fourth Court of Appeals in San Antonio, the court ruled for the defense lawyer. See decision in In Re K.L. & J. Limited Partnership.  

The court found that the defense lawyer should have an opportunity to ask questions regarding the validity of the SSN and toi make sure she is truly who she says she is - supposedly to determine whether she has made similar (employment) claims in the past or has criminal history.  The employer says they could not locate the employee's name in any national data base of SSN holders. So, they should have the opportunity to examine the validfity of her SSN.  The court of appeals did find that the employer could not ask questions regarding the employee's citizenship. 

As Mike Maslanka adds, this is an area of hot debate.  I am sure there will be more caselaw and more disputes regarding this issue.  At first blush, it seems this should be a non-issue.  If the employer had concerns about citizenship, then it should not have hired the employee in the first place.  But, it is true that if an employer learns of details later that would have caused concern at the time of hiring, then that new information could undermine the employee's claim for lost pay.  But, this could all lead to questions regarding what the employer knew and when did it know it.  In the end, questions regarding citizenship and SSN's could cause more trouble for the employer than they are worth. 

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You cannot sue the state without permission.  This law is as old as the United States.  The principle provides essentially that a state must waive its sovereign immunity.  

Coach Mike Leach has run into this challenge when he sued Texas Tech for violating the terms of his contract.  See report.  Coach Leach claims the Texas Tech University violated his employment contract when they allegedly fired him for cause.  The 7th Court of Appeals in Lubbock disagreed and rejected his claim.  Coach Leach says he will appeal to the Texas Supreme Court.  Coach Leach, as some know, is a law school graduate. 

His suit is based on breach of contract.  One would expect that if the state has entered into a contract, then it has waived sovereign immunity for purposes of that one contract.  So, I will be interested to read this opinion when/if it becomes public. 

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It was a difficult case, even heart-wrenching.  A policeman had rushed to a low priority call and had accidentally struck and killed another San Antonio police officer.  See San Antonio Express News report.  The policeman in a hurry was David Seaton. Proceeding at 100 mph without lights or siren on, he ran a red light and struck another vehicle.   The collision seriously imnjured the other driver and another San Antonio Police Officer, Robert Davis.  Officer Davis was working an earlier auto collison.  Mr. Seaton also suffered injuries in the crash.  

Eventually, he was convicted of assault and manslaughter.  The trial was emotional.  The presiding judge described it as one of the most traumatic cases he had ever presided over.  And, apparently, the jury foreperson wrote about it on her blog.  The defense lawyers sought a new trial, saying Ms. Grennes had a political agenda and that she had hidden her self-employment (ie, the blog).  The foreperson denied any political agenda and said her blog only gets 13 hits a day.  She did not mention her self-employment and the blog because she did not think it important to jury service. 

Mr. Seaton's defense lawyers learned about the blog entry and investigated the foreperson.  She said she was contacted by someone claiming to be a college student researching the trial. The forepeson, Pamela Grennes, later learned that the alleged student was a private investigator.  The defense lawyers filed a motion seeking a new trial.  During testimony, Ms. Grennes told the defense lawyer she deleted the posts about the trial because she felt threatened by the defense lawyers.  The judge denied the motion for new trial. 

Yes, blog entries do affect trial outcomes. 

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The National Labor Relations Board (NLRB) filed a complaint regarding a company which took action against an employee who had posted unfavorable comments about the company on her Facebook page.  See my prior post about this case.  The NLRB and the employer have now settled that case.  As part of the settlement, the company agreed to change its overly broad rules prohibiting employees from discussing their wages, hours and working conditions.  See report. The employer's prior policy had prohibited employees from depicting the employer "in any way" on social media sites or writing disparaging comments about co-workers or superiors.  

So, no agency decision resulted from the complaint.  But, this will surely not be the last Facebook case....

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 The NFL is engaged in labor negotiations over a new contract.  It appears that at one recent meeting, one of the owners displayed some disprespect for two of the player representatives at that meeting, Drew Brees and Peyton Manning.  Jerry Richardson, owner of the Carolina Panthers and former NFL player, listened as Mr. Manning was discussing player safety.  Mr. Richardson then asked what Mr. Manning knows about player safety.  See news report.  

Labor negotiations require that the participants be on their best behavior.  Labor negotiations can be tense even when everyone is behaving nicely.  Mr. Richardosn is apparently trying to start some conflict.  He has been advocating that the owners be more aggressive with the player's union. 

I was a member of a union once.  Even though I was not involved in the negotiations over a new contract, I heard about the negotiations frequently.  They were tense.  But, at least in my union's case, personal attacks were avoided.  

Way back when, Bart Starr was a labor representative for the then new NFL player's union.  Vince Lombardi, hardly a raging lberal, told Mr. Starr that he should show leadership in the union.  Vince Lombardi always pressed his players to be leaders on and off the field.  

Successful labor negotiations require some minimum level of respect by both sides.  Coach Lombardi understood this.  Owner Richardson should also. 

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In a clever move, Bexar Metropolitan Water District has offered Gilbert Herrera, a whistleblower, his old job back.  See San Antonio Express News report.  Bexar Met has also deposited the amount of Mr. Herrera's lost pay into the registry of the court.  Yet, the lawsuit will proceed. 

See my prior post about Mr. Herrera and his whistleblower claims.  I said then that his lawsuit looked like a strong lawsuit. 

The news paper report does not identify the specific legal manueverings.  But, in offering the whistle blower his job back, Bexar Met is attempting to cut off his lost pay.  The employee's lawyer, Alex Katzman, says that the offer will subject Mr. Herrera to working for the same boss who fired him.  If so, then the offer may be found to be insincere.  If the offer is not genuine, then back pay will not stop.  So, you can see the chess game being played out.  One side can stop lost pay if they make a genuine offer of reinstatement.  The other side then counters that working for the manager who fired him is not a genuine offer. 

Its all about the chess game.....

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Yes, you can get fired for anything in an at-will state.  A Green Bay Packer fan was fired in Chicago because he wore a Packer tie to work.  See report.  He wore the tie to his job selling cars at Webb Chevrolet shortly after the Packers beat the Bears in a playoff game.  The dealership is involved in promotions with the Bears and took offense at the tie. The General Manager told him once to take it off.  The salesman thought he was joking.  The GM told him again later and then fired him when he did not take off the tie.  The car salesman is a long-time Packer fan.  He also wore it in honor of his 91 year old grandmother, a Packer fan, who had died that month.

The GM said he was not aware of the grandmother's death.  But, the GM also never asked.  And, now he must deal with all the negative publicity. 

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 The employer does lose, sometimes.  I wrote about the nurses who complained about a doctor.  See prior post.  The nurses were charged with felonies, which charges were eventually dropped.  They then filed a whistleblower lawsuit and eventually settled.  Their lawsuit became nationally known.  Well, now the doctor they complained about has now suffered his own repercussions.  He has been placed on probation for four years by the Texas Medical Board.  The TMB oversees doctors.  See Austin American Statesman report.  

Dr. Rolando Arafiles can continue to practice medecine if he obtains additional training.  The board essentially substantiated the two nurses' complaints regarding improper treatment of patients.  The Board also found that he tried to intimidate the two nurses.  

Dr. Arafiles was also indicted in January on charges of misuse of official information.  The charges allege that Dr. Arafiles asked the County Sheriff to investigate the two nurses after they complained anonymously to the TMB in 2009.  Both nurses were fired from the hospital where they had been employed for years. 

The nurses secured a settlement in their whistleblower lawsuit.  Now, they have the rare vindication of a ruling by a state agency. 

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 SPC4 Omar Soltero was killed in Afghanistan recently.  He was assigned to the 10th Mountain Division and was serving in Wardek Province in Central Afghanistan.  He was killed by an Improvised Explosive Device (aka "roadside bomb").  See San Antonio Express News report.  His parents live on the northeast part of town.  He was in a relationship with another soldier and leaves behind two children. 

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 A colleague in Oregon agrees with my post that settling discrimination cases requires a client (employer and employee) to deal in reality.  Joel Christiansen, who writes a nice blog on employment law, points out that emotional suffering can be supported by stories about missed mortgage payments.  It helps to discuss and consider these emotional topics.  But, as he cautions, Title VII does not provide direct reimbursement for mortgage payments.  So, do not draw a line in the sand for some particular dollar value.  See Joel's blog post about settling employment cases.  

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Social media is that new frontier we always hear about - or one of them anyway.  Some lawyers are still trying to understand the limits.  One lawyer in South Florida was upset about a judge, who he believed was circumventing the speedy trial requirements.  So, he posted a blog entry about a judge.  The judge would ask defendants if they would be ready for trial sooner than normal - apparently trying to avoid the speedy trial law.  The lawyer, Sean W. Conway, did more than discuss trial tactics.  He blastd the judge, making some personal attacks on her.  The Florida Bar Association found that the the lawyer's blog entry violated Florida ethical rules regarding public comments about a judge's integrity.  See ABA Bar Journal report.  Mr. Conway opposed the sanctions on the basis of the First Amendment.  The Florida Supreme Court rejected his argument.  The court issued Mr. Conway a public reprimand and a fine of $1250.  

And, we already know about a judge in North Carolina who had "friended" a lawyer on Facebook who was appearing in a case before the judge.  The two exchanged comments about the trial on FB during the trial.  That judge, Carleton Terry was issued a public reprimand.  See my prior post about this case. 

And, another lawyer in Illinois lost her job with the Public Defender's office because she blogged about cases she worked on.  Lawyers should know not to reveal confidential information acquired from clients. 

These rules are not new.  The social setting is new.  The intimacy of online communication suggests a level of privacy that does not exist.  The best rule of thumb is to assume anything you publish on the web will be viewed by everyone.  So be careful out there.....

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