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

A former SAWS employee was awarded $275,000 in state district court here in Bexar County.  See San Antonio Express News report. Kevin Martin claimed he was fired because he reported that employees were improperly exposed to asbestos pipes. The Texas Commission on Environmental Quality investigated and found violations. Sounds like a whistle blower lawsuit. 

As always, the employer claimed they fired the employee for other reasons. SAWS plans to appeal. San Antonio water System also lost a jury decision a few years ago in another large employment verdict.  That jury verdict was overturned on appeal. 

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Nancy Norman has filed suit against her former employer, Ebbay Halliday Realtors, Inc., in Dallas district court for discrimination based on her disability. She filed suit under the Texas Commission on Human Rights Act., the Texas equivalent of Title VII of the Civil Rights Act.  See Texas Lawyer report.  Ms. Norman was fired after ten years of employment and 37 days after disclosing her diagnosis, inverse psoriasis, a skin disorder.  Ms. Norman's doctor told her to wear shorts to work and change once she arrived at work.  Her disorder involves a painful red rash made worse by friction and perspiration.  Her doctor warned her against overheating. The employee told her office administrator about the diagnosis and what the doctor prescribed.

She arrived to work wearing shorts. The office manager, Don Davis immediately told her she cannot wear shorts to work. During the following week, Mr. Davis allegedly exhibited hostility toward Ms. Norman. He then issued her a disciplinary write-up for dressing improperly for work and general incompetence. When Ms. Norman tried again to explain to him her need to wear shorts to work, he cut her off and said he did not care about her medical issues.  Ms. Norman says she had received letters of commendation in the past. 

Ms. Norman then failed to attend a shower for a co-worker during lunch.  Mr. Davis complained about that omission and sent her home.  He called her at home later that day and fired her. 

It sounds like a good case for the employee. The employer will surely defend on the basis that Ms. Norman was not a productive employee and had other issues. But, if Ms. Norman truly has a write-up for dressing improperly at work after she had been diagnosed, the employer's actions will appear retaliatory.  Mr. Davis will undoubtedly deny his statements. But, the verifiable evidence will be strong enough that many jury members may accept the plaintiff's version of events. This is a case which the employer should settle. 

And, requiring attendance at a function during non-working hours?  A possible violation of the Fair Labor Standards Act?  The employer has some problems in this lawsuit. 

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 The very large Wal-Mart class action lawsuit is going to the US Supreme Court for review this week.  See CBS news report. The class involves 500,000 to 1.6 million potential plaintiffs. The suit alleges discrimination against women. The suit was initially filed ten years ago in California.  It was most recently the subject of an appeal at the federal Ninth Circuit Court of Appeals in California.  Wal-Mart claims the class involves too many women in too many different positions at Wal-Mart.  If the members of the class are too different, then the class action fails.  The case is said to be the largest employment discrimination case ever.   Betty Dukes, Et Al v. Wal-Mart Stores, Inc.

I have written about this class action here and here.  It was a close 6-5 decision at the Ninth Circuit. In the midst of the appeals, a report was leaked showing Wal-Mart knew it had anti-female practices in place. A major law firm had prepared a report for Wal-Mart noting disparities in how women are hired and paid.  

Of course, to be a class action, the plaintiffs must show their claims are similar. Does the discrimination apply to all women? All female managers? Or, just female clerical employees? The plaintiffs are apparently trying to show the evidence applies to all female employees. If each individual claim is too small, then the employees would never obtain a lawyer willing to accept their case. 

The plaintiffs have several actual, named plaintiffs who include one female manager and one female greeter. In 2001, when the lawsuit was filed,  job openings were rarely posted.  In 2001, only 14% of store managers were women, while 80% of lower ranking employees were women. These numbers are strong, but statistical evidence in itself is rarely enough.  

The major issue appears to be does the plaintiff's evidence support such a broad class? Twenty other large corporations have filed friends of the court briefs, arguing against class certification.  If the best the plaintiffs could do at the relatively friendly Ninth Circuit is 6-5, then one must wonder about their chances at the relatively employer friendly US Supreme Court. 

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The EEOC has published the final regulations to support the new Americans with Disabilities Act.  See regulations.  The ADA was amended in 2008, which amendments then went into effect in 2009.  

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In a recent decision, the US Supreme Court ruled that the Fair Labor Standards Act does indeed provide protection for employees who complain or ask about wages orally.  The federal courts have disagreed on this issue for decades.  They all agreed that the FLSA protected employees who complained in writing about wages.  But, several courts found that the 1938 statute did not protect employees who complained verbally.   See Supreme Court decision.  The court voted 6-2 in favor of the employee. 

As the Court pointed out, the act was passed at a time when many workers were illiterate.  Just over 20% of manufacturing laborers in 1940 only had five years of schooling.  It was often simply not practicable to write up complaints in a workplace where work sites were dirty and special clothes were necessary.  Kasten v. St. Gobain Performance Plastic Corp., (3/22/2011). 

And, of course, truly, few employees would have the nerve to complain in writing.  But, many employees do indeed ask simple questions about wages and then suffer reprisal.  One of my clients once noted that a big box store failed to pay overtime to some seasonal employees.  My client simply asked one of the managers if that was kosher?  The client really thought he was just trying to help management and the workers.  Big box store never asked him to return - he was a seasonal employee himself.  If this decision had been issued sooner, that client could have filed some legal action about their reprisal against him. 

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Defamation cases are very difficult in the employment context.  In Texas, the employer is protected by what is referred to as a "qualified privilege."  The qualified privilege means the alleged victim of the statement must show the speaker acted with actual malice.  Actual malice means the speaker knew or should have known the statement was false when it was uttered and the statement caused harm.  See my prior post on defamation in Texas.  The only way to establish what a speaker was thinking would be for the speaker to reveal his/her thoughts to someone who will testify.  Such evidence is hard to come by. 

The San Antonio nurse, Tammy Perez, who sued her former employer lost her trial.  See San Antonio Express News report.  She had filed suit against the Santa Rosa hospital, a hospital affiliated with the Roman Catholic Church.  The hospital denied any defamatory remarks and said she was fired because she breached patient confidentiality.  

It appears that the alleged defamatory remarks included references by management to Nurse Perez  as "religious girl" and "holier than thou."  At trial, the hospital defended the remarks saying they were probably true and that she chose to live her life that way.   Ms. Perez had objected to a procedure at the hospital regarding a miscarried baby.  Nurse Perez believed the hospital had performed an abortion.  She reported hr concerns to the Roman Catholic church and was later fired. 

It appears to me that the plaintiff had pretty good evidence that a high-ranking priest lied about when or whether the nurse revealed confidential information about the patient.  But, the jury apparently disregarded that evidence.  They only took two hours to find in favor of the hospital.  As I have explained to many clients, the easiest tack for any jury is to just say "no."  If they say no, they can complete their jury duties very quickly.  A plaintiff has to have a good case to compel them, to go through the hours and hours of deliberation required to reach a "yes."   The truth is many jurors just want to get back to their normal lives at the end of a two week trial. 

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 A similar question arises in all my employment cases.  In a recent case, the defense lawyer was deposing a witness who supported my client.  He asked why she thought the manager's remark was discriminatory.  Upon hearing that swine flu was predominant in the Rio Grande Valley, the manager had remarked, "Well, what do you expect from the Valley."  The witness recounted that comment as one of 3 or 4 discriminatory remarks made by the manager.  

This one may or may not show Hispanic bias.  But, the witness (Caucasian) believed it did.  The defense attorney then went down a line of questioning he would regret.  He wanted to challenge her perception.  The defense lawyer was new to South Texas.  He had moved here from a Northern state.  

Defense attorney: "Why do you think that comment refers to Hispanics?"  Witness: "Because everyone knows the Valley is mostly Hispanic."  "Are you Hispanic?"  Witness: "No, but I have several Hispanic relatives in the Valley and go there often."  Attorney: "Have you seen a census report for the Valley?"  ....  long pause.  The witness turns to face the defense lawyer squarely.  "I am from Cotulla.  I do not have to see a census report to know that Cotulla is predominantly Hispanic."  The defense lawyer then wisely dropped this line of questions. 

It is a common line of questions - the defense lawyer tries to challenge a perception of discrimination.  But, a perception, any perception belongs to the witness alone.  It is by definition subjective.  It is ultimately up to the jury to assess the validity of the subjective perception.  The jury decides the relevance of the remarks and whether one remark or all remarks display some bias.  

Some minority clients have actually backtracked or apologized for their perception.  They should not.  Minorities notice things that majority members of a group do not notice.  Body language, facial expressions are facts.  Observations are facts.  Ultimately, it is up to the jury to agree or disagree that certain body language or particular jokes amount to bias.  The beauty (and weakness) of the jury system is that the juries reflect common beliefs, good or bad. 

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One of the major surprises for me after returning from twelve months in Iraq was the anti-Moslem bias in my country.  Now, five years later, I suppose that is to be expected.  Very few Americans know any Moslems.  And, of course, we are all very faimiliar with the eighteen murderous Moslems that attacked us on 9/11.  I served with some remarkable persons in Iraq who happened to be Moslem.  So, my perception is now different.  I flinch when I hear anti-Moselm rhetoric.  Moslem jokes are not funny to me.  And, I have disputed with several of my fellow citizens that Moslems are anymore violent than anyone else.  

No, I have not read the Koran.  I have been told that the Koran teaches Moslems to be violent.  A devout Christian friend has read the Koran in Arabic and says different.  Whatever.  As I have mentioned here before, I knew some wonderful persons in Iraq who happened to be Moslem.  In fact, we could not prosecute these two wars without some very brave and very decent Iraqis and Afghanis who happen to be Moslem.  

Egyptian society is roiling and turning.  Egypt has had a visible Christian minority for the last couple thousand years.  They have existed in uncertain peace with their Moslem neighbors.  With the current revolutionary fervor, one would expect religious strife.  One Christian church was burned when a romance between a Moslem girl and a Christian boy was discovered.  The boy and the girl were seen together.  The village elders decided the girl must die.  Her father refused.  Extremists killed him and strife began.  At some point, the extremists believed the boy was in a Christian church called Soul.  The Moslem extremists burned down the church.  

 Christians had been protesting already.  They protested more when this one church was burned.  One or two leading Moslem clerics supported the Christians and denounced the church burning.  The Egyptian Army promised to rebuild the church.  Moslems came to the Christian protests to say they supported the Christians.

At a memorial service, a Coptic Christian priest said the Muslims and Christians are brothers.  See NPR news report.  The priest himself stopped a Christian from seeking revenge at a prior protest.  Moslems cannot be categorized anymore than Christians can be. 

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A San Antonio nurse filed suit against the Santa Rosa hospital for defamation.  The nurse, Tammy Perez, claims the hospital performed an abortion a few years ago.  She says the hospital then fired her after she raised the issue to various Roman Catholic church officials.  The Santa Rosa hospital is affiliated with the Roman Catholic church.  The trial is ongoing.  In recent testimony, the defensse lawyer accused Ms. Perez of lying on her application when she was initially hired by Santa Rosa.  In cross examination, the defense laawyer said Ms. Perez omitted the fact that she had been terminated from a prior job at another hospital.  Ms. Perez had simply said she came to the Santa Rosa because of  "family."  Apparently, in reality, Ms.Perez had been terminated due to ethical issues regarding some medical treatment.  See San Antonio Express News report.  

The defense lawyer also brought out that Ms.Perez lied when she applied for a job after leaving the Santa Rosa hospital.  She wrote "personal" regarding her reason for leaving the Santa Rosa when she later applied for a position at the Nix hospital.  

"Family."  "Personal."  None of these reasons are lies, but they do serve to mislead.  All my clients who have endured termination agonize over what to write on applications.  Simple one or two words do not come close to explaining what happened when they were unjustly fired.  Yes, a clever defense lawyer can take those half-truths to make a plaintiff look less than honest.  

Why she left the Santa Rosa should have nothing to do with defamation.  Subsequent jobs should have no relevance to what happened at the prior job.  Telling the Nix a half-truth does not help prove or disprove defamation at the Santa Rosa hospital.  There are many cases (ie, precedent) holding that what happens at a subsequent job is not admissible regarding what happens at the prior job.  I would be interested to know how the defense lawyer, Cindi Benedict, got that information into evidence.  

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I love the lawsuit business.  Other than my other career, the Army Reserve, this is one area where you see people acting gracefully under pressure - or not.  Charlie Sheen has been imploding for the past few weeks.  He apparently has been diagnosed with bipolar disorder.  He very publicly disprespected his boss, his executive producer.  He was then fired in a very public way.  He has now filed his suit seeking "bazillions."  But, now the lawsuit seeks a mere $100 million.  

It was clear he would file for some sort of breach of contract.  But, his lawsuit actually refers to a perceived disability by Warner Brothers that Charlie was in a manic state or was bipolar.  The complaint says Warner Bros. refused to accommodate the "alleged" disabilities.  The suit does not admit that Charlie actually suffers from a disability of any sort.  See ABA Bar Journal report.  The suit accuses the executive producer, Chick Lorre, of making derogatory remarks about Mr. Sheen's condition.  The suit also includes a cause of action for breach of contract.  

The complaint includes some personal attacks against Mr. Lorre suggesting to me that the client, Charlie Sheen, had too much imput into the drafting of the document.  The complaint also appears to include an error under the Americans with Disabilities Act.  One cannot seek accommodation for a perceived disability.  An employee can only seek accommodation for an actual disability.   I suspect the lawyers tried to work in the disability theory, but Mr. Sheen must have flinched from admitting he suffers from bipolar disorder.  The disability theory is an interesting approach for a major Hollywood star to take.  But, it appears he backed down from it at the last minute.  So, the lawsuit does not claim he has a disability, yet it essentially asks for some sort of accommodation for the disability he does not claim

I need to add that in a previous position with Advocacy, Inc., I represented many, many persons with bipolar disorder.  Almost all of them comported themselves with dignity and respect, which qualities Mr. Sheen appears to lack. 

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Judges always tell jurors not to do their own legal research during a trial.  A jury is supposed to use the legal terms provided by the court.  Our judicial system relies on legal standards that are known to both sides, defense and prosecution.  The two sides to any trial will devote considerable time and energy to what legal definitions and terms are used in a trial.  

One San Antonio juror did what many do these days, he looked up the definition of murder and manslaughter, I am sure, on the internet.  That research resulted in a mistrial in a difficult murder trial.  The District Attorney's office has said they will seek a second trial. 

Now, the defense lawyer wants the name of the juror and wants the juror to help pay for the expense of a second trial.  See San Antonio Express News report.  The defense lawyer wants the miscreant juror to help pay the attorney's fees for his client.  While, the prosecutor replies no, that juror should help pay for jury fees and the expense of bringing in out of town witnesses again.  If the juror is found in contempt, s/he could be placed in jail for up to six months and be ordered top pay a fine. 

This particular trial of a homeowner who killed an intruder is complicated.  The "intruder" was shot several times outside in the driveway area.  The homeowner used hollow point bullets.  The home late at night looked very much like the home of the intruder's family where he was staying.  The "intruder" did not have a criminal record and was a college student at an out of town college.  It was the sort of trial that comes with many expenses.  

This will happen and has happened all across the country.  The internet has made legal terms and definitions available to everyone with an internet connection.  This sort of jury research has happened before.  See my prior post.  Jurors need to be alert more than ever to warnings and advice from the judge. 

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A former clerk in Bexar County Precinct 2 has filed suit against Constable Val Flores saying he was wrongfully terminated after blowing the whistle regarding violations of law.  See San Antonio Express News report.  Michael DeMarquis worked in the Constable's office's from August to December, 2009. The former clerk claims co-workers broke into his SUV after he made these allegations known.  In His suit, he claims he saw a senior Deputy Constable verbally and physically assault a handcuffed female prisoner, ammunition went missing, funds were misapplied, and a captain imposed an unlawful quota of 20 tickets per day on the deputies.  He also claims the Constable offered the plaintiff a promotion in return for money. 

This suit puts the Bexar County District Attorney's office in a difficult position.  The DA apparently would defend the lawsuit.  But, if the allegations are true, then the Constable's office is guilty of criminal wrongdoing.  So, the DA's office is investigating the claims to first see if it can defend the Constable or hire an outside lawyer. 

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Texas, like some 40 states, is an at-will state.  That means an employer can fire an employee for any reason, so long as the reason is not discriminatory or in violation of the very few protected activities.  Yet, some employees still think they can disrespect their employer.  See the story about Charlie Sheen.  He has referred to one of his employers as "whatshischeese" and "whatshiscock" in published reports.  He described the wife of his executive producer as unattractive.  These are things no employee should say in public.  

Mr. Sheen has referred to his employment agreement several times.  So, I presume he is one of the lucky few who have a contractual agreement that he can only be fired for good cause or fair cause.  But, under any standard I am familiar with, disrespecting your employer is good cause.  Any local Texas jury would surely agree.

I have screened many employment calls over the years.  One I recall referred to some incident in which he was accused of cursing his employer.  The caller assured me he did not cuss his employer twice - only once.  He seemed to understand quickly when I explained that cussing your employer even once is cause for termination.  Under at-will employment, any reason is adequate.  But, in cussing even once, that caller lost his right to unemployment benefits.  Unemployment benefits are based on good cause.  An employee in general will receive unemployment benefits if the employee loses his/her job through no fault of his/hers.  With or without unemployment benefits, an employer can fire an employee for disrespect.  

So, sure, an employer can fire you for cussing him just one time.  And, I think, even the famous can be fired for referring to the employer in public as "whatshischeese."  

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A Lubbock, Texas lawyer has filed suit against against the Texas Department of Insurance, Worker's Compensation Division because the Texas Dept. of Insurance sent him a "cease and desist" letter.  The TDI had sent John Gibson a letter warning him to stop using the words "Texas" and "worker's compensation" in the web address.  Mr. Gibson operates a web site called www.texasworkerscomplaw.com.  The TDI accused Mr. Gibson of violating a provision of the Texas Labor Code which prohibits use of the words "texas" and "workers compensation" in connection with advertising and solicitation for business.  In his lawsuit, Mr. Gibson argues this provision is unconstitutional as a violation of the First Amendment.  See Texas Lawyer report.  

I am sure that provision must date from the bad ole days of workers compensation litigation, which at one time was lucrative.  Workers compensation was the subject of much advertising as late as the 1980's prior to so-called tort reform.  Now, very few lawyers practice workers compensation law.  More importantly, blogs have been seen by most observers as not advertising and more as an educational tool.  For example, law firm news letters are exempt from the advertising rules because they are seen as more educational than solicitations for business. This will be an interesting lawsuit as it explores the nature of blogs. 

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Some cases come close to home for every lawyer.  For me, its cases involving Iraq and Afghanistan veterans.  I served in Iraq 2005-06 as a Reserve officer.  So, I have some familiarity with veteran issues.  The stigma regarding PTSD is often overblown.  In this case reported by WFAA in Dallas, a veteran suffered reprisal because his employer believed he might have issues from PTSD.  Rodney Bennett, a National Guard member, served a tour in Iraq and a tour in Afgahanistan.  See WFAA news report.  He returned to his job as a law enforcement officer with the Dallas Independent School District. 

After his second tour, he was demoted from police officer to dispatcher.  He was fired because he would not accept the demotion. Mr. Bennet says he was perceived as having possible issues from PTSD - simply because he had served two tours.  Mr. Bennett has been to the VA clinics, but declined to state whether he has been diagnosed with PTSD.  That is too bad.  In my opinion, a great many vets have been diagnoised with PTSD but function just fine in their daily lives.  Regardless of his diagnosis, his employer should have looked at him based on actual medical records, not perceived possibilities. 

Fortunately, this National Guardsman did not file under the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The USERRA has some nice features regarding proving discrimination against a service member.  But, the damages available to the successful plaintiff are low.  They can only recover lost pay and benefits and court costs.  Since compensatory damages (emotional suffering) and punitive damages are not available, the cases are seen as less lucrative by some plaintiff employment lawyers.  A lawyer in another state mentioned to me recently that he would turn away such cases in the future due to the low recovery available.   

Liquidated damages are available when the violation is found to be "willful."  See DOL web page. But, the circumstances of most cases suggest that most violations will not be found to be willful.  For example, a Reservist who returns with a medical diagnosis of some sort may be fired for medical reasons wholly unrelated to his Reserve duty.  

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The Supreme Court says it is permissible to protest at funerals for dead service members with very provocative signs, such as "You are Going to hell," "Thank God for dead soldiers" and worse.  See Yahoo news report.  As an Iraq veteran, I would like to "free speech" that pastor in the face.  He is deliberately trying to incite a reaction from those attending the funeral for those killed in Iraq and Afghanistan.  But, I also know from several published reports that in this case, the father did not see the signs at the funeral.  It was only weeks later that he saw the signs in various news reports.

It was still extremely upsetting for him to see hateful signs directed toward his son's death.  There is a rule of law that 1st Amendment would not trump "fighting words" - words that have no value other than inciting riot or violence.  I had hoped these signs would rise to that level.  I have not read the decision but am sure the fact that the father did not see the signs until weeks after the funeral were an important factor.  

Whatever.    I would still like to "free speech" that pastor in the kisser...... 

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Alex Colvin of Cornell University has published one of the first empirical studies of arbitration in the employment context.  He looked at the reports submitted by the American Arbitration Association, one of the leading providers of arbitrations, in California.  The study looked at 3,945 arbitrations, of which 1,213 were decided by an arbitration award.  See abstract of this study. 

Key conclusions include: 1) employees win 21.4% which is considerably lower than win rates in trials, 2) among those few wins by employees, the median award amount was $36,500 and the median award was $109,858, both amounts substantially lower than that reported in litigation awards, 3) mean arbitration fees were $6,340 in cases overall and $11.070 for cases disposed of by an award following a hearing (In 97% of these, the employer paid 100% of the fees other than a small filing fee - pursuant to AAA rules), 4) in 82.4% of the arbitrations, the employee was paid less than $100,000 per year.  Note that the author must be comparing California arbitrations to California state court trials.  The success rate of employees in california state courts is generally higher than that found in federal courts.  See my prior post regarding success rates in federal courts on a national level.   

The study also examined whether there was a repeat player effect, that is, wherher employers who appear repeatedly would receive favorable treatment.  The study indicates that yes, employers who appear more than once achieve significantly lower awards.  The study indicates that when the same arbitrator decides a case with the same employer from prior arbitrations, then those employees receive lower awards and win less often. These findings support the anecdotal evidence suggesting that repeat employers do better and they do better in particular when they use the same arbitrator.  

The repeat player effect has a large impact on employees, since employees will very rarely have more than one arbitration.  Employment arbitrations are far different than labor arbitrations, in which the union would also receive some repeat player effect. 

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If anyone has crazier lawsuits than the US, its the Brits.  In this post by Workplace Prof, we see a picture of an employee who was caught stealing money from his employer.  The employee made out a check to himself drawing on company funds and cashed it.  Do not try this at home, but the employer then paraded the miscreant through the town and to the police station displaying a sign proclaiming his thievery.  The owner of a flooring business, Simon Cremer, paraded Mark Gilbert through the streets of Wiltham in Essex, U.K.  

So, of course, Mr. Gilbert then later sued Cremer for humiliation and two years of lost earnings.  The case settled with Cremer paying 5,000 pounds in damages and 8,000 pounds in court costs.  

I think such a lawsuit would not do nearly that well, here.  Many members of the juries I have heard from would have no tolerance for a thief - despite the perp parade.  But, I would advise any employer not to take that chance.....

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