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

In the law business, you really do see it all, eventually.  The City of Dallas sought an order closing a church.  The "church" apparently practiced swinging.  A church known as the Playground was closed because its outreach consisted of hosting swingers' parties.  See Dallas Morning News report.  The owner, Wyakie Glenn Hudson claims to be an ordained minister.  Judge Molberg granted the City's request. He closed the Playground one week after another judge refused to close a dance hall owned by the same man known as the "Darkside."  That suit is apparently still pending. 

After Judge Molberg granted the order closing the Playground, "Pastor" Hudson said that city officials did not agree with his outreach. 

The Dallas City Attorney said detectives found no evidence of religious use when they inspected the facility.  They did find topless dancers and porn movies playing on flat-screen TV's.  Access to the Playground is free for women but $50 for men.  For an additional fee, "church-goers" have access to beds, condoms, and more porn videos in a separate room.  

The church has a certificate of occupancy as a church.  I presume that certificate may soon be revoked.....

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 In the legal business, lawsuits are governed by deadlines referred to as "statutes of limitation."  A lawsuit must be filed within the applicable statute of limitation.  A suit based on personal injury must be filed within two years of the act complained of.  If the last day of the two year period falls on a weekend or a holiday, then the statute of limitations period is extended until the next business day.  A lawsuit based on the state statute which prohibits discrimination must be filed within two years.  This statute is known as the Texas Commission on Human Rights Act. 

A suit based on defamation, libel or slander must be filed within one year of the act complained about.  A suit based on breach of an oral contract must be filed within two years of the alleged breach.  Suit on a written contract must be filed within four years of the alleged breach. 

Of course, there are many exceptions to these statutes of limitation.  If you have questions, you should speak with a qualified lawyer. 

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I forget where I first heard this sage advice: do not mess with teachers in the classroom, judges in the courtroom or police in the streets.  Now I am a lawyer and know all too well, do not disrespect judges in the courtroom.  It only leads to trouble.  One Houston lawyer with a large law firm, Littler Mendelson, was reminded of this after he filed suit over alleged civil rights violations.  His client claimed the civil rights of her daughter were violated  when a client tried to become a high school cheerleader.  

The lawsuit was based on 42 USC Sec. 1983, a civil rights statute.  The suit was dismissed.  The plaintiff appealed.  The plaintiff's lawyer said unkind things about the lower court decision written by a Magistrate Judge.  The court of appeals in a decision written by Judge Jerry Smith responded: 

“Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.”  He described the theory behind the suit as "flimsy."  See ABA Bar Journal report. 

It is very rare for an appellate judge to start out so critical.  But, he did not end with that.  He mentioned later in a footnote:

“Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word ‘principals’ should have been “principles.’ The word ‘vacatur’ is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (‘incompetence’) and a plural verb (‘are’).”

That is as personal an attack as occurs at the appellate level.  Judge Smith was clearly perturbed.  Magistrate Judges are not appointed by the President.  Appointed federal judges are known as "Article III" judges.  Magistrate Judges are hired by the appointed Article III judges and essentially serve as assistants to the appointed judges.  The Magistrate Judges typically hear motions and some trials.  They serve for ten years and are generally well-respected jurists in their own right. 

The judge was criticising the statement by the Littler Mendelson lawyer about the Magistrate Judge.  The lawyer had said that because he is not an Article III judge, his "incompetence in applying general principals [sic] of law are [sic] extraordinary."  Judge Smith said this sentence was unlcear, but it seemed to be making an unjustified attack on the magistrate judge.   The plaintiff's lawyer attacked the Magistrate Judge.  Judge Smith responded. 

I tell all my clients and anyone else interested that going to court is much like a drama presentation in a theater, everything we do is watched, scrutinized and analyzed.  All trial lawyers know this.  but, on this day, I think this one lawyer from one mega firm forgot this important lesson.  

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A soldier from San Antonio was killed in Iraq.  SGT Steven Talamantez was killed by indirect fire (mortar) in Maysan province of Iraq, a normally less violent province.  He was assigned to the 1st Cavalary Division out of Ft. Hood, Texas.  A graduate of McCollum High School in 1995, he worked in construction before joining the Army in 2008.  He left a wife and two children.  He said he loved the soldiers with whom he served.  See San Antonio Express News report. 

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As a lawyer, I often tell my non-lawyer friends we have two duties as citizens: to vote and to serve on a jury.  Surely, if nothing else, our Republic was founded on the principle of an educated electorate that casts votes.  But, if we ask for time off from our job to vote, we can be fired.  See the case discussed by Russ Cawyer here.  A three year employee asked to leave early to vote in the Presidential election in 2008 and was refused.  She then left 15 minutes early and was fired.  

In the decision, the Dallas court of appeals declined to create any new exceptions to the state at-will doctrine.  So, the employee lost her appeal.  In looking at these facts, one could argue that she was not fired for voting, but because she deliberately violated instructions from her supervisor.  So, the facts are cloudy.  But, in the end, we are "at-will" employees.  We can be fired for taking time off to go vote. 

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Law school professor, David Yamada, wrote a blog post saying essentially that many employer side lawyers in employment cases are "attack dogs" (my paraphrase) because many employers are "attack dogs" themselves.  Such abusive employers tend to seek out abusive lawyers, he writes.  See David Yamada's blog post.  Law school profs are in a position to observe and remain neutral.   His view regarding "Rambo" lawyers is:

"They distort, intimidate, and delay.  They take a worker's minor faults or mistakes and elevate them into major deficiencies.  They help their clients sweep horrible behaviors and actions under the rug.  They use legal process to deplete, torture, and humiliate everyday workers."  He argues that some employers continue the abuse into the lawsuit that went on during the employment relationship. 

Sure, some management lawyers do all those things.  It is like a second round of the same abuse for many employees involved in an an employment lawsuit.  But, another law prof, Workplace Prof counters saying that plaintiff side lawyers can be just as bad.  It is true that employer side lawyers will typically have more resources and the employer starts from a more privileged position.  More effective lawyers, he notes, can see the case from both sides an are problem-solvers, rather than Rambo litigators.  

In my experience, representing mostly employees, some employer side lawyers are very civil and work toward resolution, rather than fighting just for spite.  And, such lawyers do much to resolve a case.  These lawyers are the ones who make the system work more effectively.  But, I know there are some plaintiff side employment lawyers who makes cases worse and who fight, it often seems, just to fight.  

I find it hard to believe defense lawyers are any worse than some plaintiff lawyers.  But, since they often have the greater resources, it may seem worse to employees.  They get abused as employees and again later as litigants.  

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A federal jury in Houston has returned a verdict against a former County Judge of $3.2 million.  James Blackstock, a former Brazoria County Court-at-Law Judge and former head of the Juvenile Probation Board was sued for sexual harassment by three female employees of the Juvenile Probation department.  The jury found the judge had created a hostile work environment and had physically assaulted one of the employees. 

The three women had complained the judge had hugged, groped, fondled, kissed them, and he had emailed them explicit photos.  In their lawsuit, they claimed the judge had preyed upon female employees for years with no repercussions.  Brazoria County and the Juvenile Board had previously settled with the plaintiffs for $135,000.  See Houston Chronicle report.  

The former judge had previously resigned his Board position after pleading no contest to charges of official oppression, a Class A misdemeanor. 

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In my recent post, I talked about Jamie Leigh Jones losing her trial.  Ms. Jones became a hero to many when she successfully opposed and overturned the mandatory arbitration agreement she allegedly signed with KBR.  Since then, I now understand that Ms. Jones' mother was called to testify and was cross-examined by the defense lawyers regarding Ms. Jones' mental health history.  Apparently, the defense lawyers had hundreds of pages of Mr. Jones' psychological history and were using it well against her.  

There is a risk in employment cases when we seek large psychological damages.  To justify large damages, we need mental health professional testimony and evidence.  To do that, the plaintiff employee must disclose her psychological history.  Her mental health history becomes relevant.  Since, the defense will want to introduce evidence of other things that cause emotional stress in the employee's life other than her employment.  The employer may be entitled to introduce evidence regarding other matters that have caused the employee emotional distress.  That right may open the door to everything from family problems to drug problems to low self-esteem.  Of course, any drug problems, however ancient, may prejudice many juries. 

But, if the plaintiff limits her claim to "garden variety" emotional distress, then her mental health history is not discoverable, much less admissible.  So, yes, it is often better not to plead more than "garden variety" emotional distress damages.  Otherwise, we may open the door to our client's entire history, a history which may be not be flattering and which may cause additional stress for our clients.  Many clients feel like they are being abused again during the litigation process. 

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A woman claims she was fired from her job at a Houston, Texas title company because she refused to dye her gray hair and wear "younger, fancier" clothes and lots of jewelry.  See ABA Bar Journal report.  The CEO of the title company dismisses her claim, saying he has gray hair.  Bill Shaddock says he would hire a 150 year old person if he seemed "worthy."  

As Kathy Butler, a prominent employment lawyer in Houston, points out, there is at least one case finding that requiring women working at a casino to wear make-up does not violate Title VII.  Since, in that case, the employer could show a legitimate business purpose for requiring the make-up and that the requirement was not related to a person's gender.  

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 Jamie Leigh Jones, who claimed she was raped in Iraq when she served as a private contractor lost her case.  See news report.  She had sued her former employer, KBR.  A Houston jury rejected her claims of fraud and rape.  Ms. Jones acquired some fame when she testified in Congress opposing mandatory arbitration in so-called employment agreements.  She appealed her arbitration issue and eventually won the right to a jury trial.  I previously wrote about her case here.  

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Arbitration is not popular with many people.  Part of the problem with arbitration is a lack of accountability.  There is no appeal from an award by an arbitrator.  There is often a lack of information about the arbitrator.  In a recent case, we see what goes on behind some arbitrations.  The Fifth Court of Appeals in Dallas vacated a $22 million dollar award by one JAMS arbitrator.  See decision on Karlseng v. Cooke, No. 05-09-01002-CV.  The decision focused on the social ties between the arbitrator and the lawyer for the winning party.  Robert Faulkner, the JAMS arbitrator and a former US Magistrate, had close ties to the lawyer, Brett Johnson.  The arbitration hearing lasted several days in 2007.  The arbitrator awarded $22 million in damages and another $6 million in attorney's fees to the winning party.  The arbitral hearing concerned a partnership dispute. 

Karlseng, the losing party appealed the award to the trial judge, but was denied.  The Dallas Court of Appeals then overturned the lower court decision - finding that the ties were close between the former Magistrate and Mr. Johnson and those ties were not disclosed.   Of course, in an arbitration, all ties should be disclosed. 

In 2006, Johnson and Faulkner attended a Dallas Mavericks game, with Mr. Johnson paying some $1,200 for the tickets.  They ate dinner at an expensive restaurant to the tune of $428, again paid by Mr. Johnson.  In December, 2006, Mr. Johnson sent a $75 basket of wine to the Faulkners.  

Yet, at the start of the arbitration in 2007, Mr. Faulkner and Mr. Johnson acted as if they were meeting for the first time.  

Later, Mr. Faulkner said his wife opens the presents and he was not aware of the wine basket.  Mr. Faulkner said he forgot about the Mavericks game until reminded by his wife.  So says a report by Texas Lawyer.  

Arbitration is intended to represent an agreement between the parties to have their matter heard by an impartial third party.  It only works if the arbitrator discloses any potential biases.  It is a system based on contract.  If the arbitrator does not disclose all possible ties, the parties have no way of knowing.  The parties cannot make an intelligent choice in the absence of information. 

Arbitrations only work if the arbitrator discloses every possible bias.  Anyone who has purchased a new car, electronic device or who has worked for some 30% of the employers out there have knowingly or unknowingly agreed to mandatory arbitration.  A system based on arbitral disclosure will not work well for the average consumer, much less the average businessman involved in a partnership dispute. 

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During the 1960's many federal judges had to seek safety because they enforced constitutional law regarding integration in Southern states.  These Southern judges did not necessarily advocate integration.  Instead, they were simply fulfilling their duty to enforce the law as it had already been decided by a higher court. 

Our own Judge Fred Biery has received many threats since he issued an order prohibiting prayer at a Medina High School graduation.  See San Antonio Express News report.  US Marshalls have placed him on 24/7 protection.  

I find this all ironic since based on what I read in the Express News, it appears to me that Judge Biery complied with the law on prayer in schools and he actually advised the school district on how to make their prayers more in line with the law.  Mention your personal belief, without calling on others to believe as you do, he advised.  He also suggested they avoid the words "benediction" and "convocation."  The school district took his advice and they later succeeded when they appealed to the Fifth Circuit Court of Appeals. 

Judges very rarely issue legal advice.  Judge Biery was clearly trying to help the plaintiffs.  For that, he must fear for his safety.  That is an issue in Iraq.  The judges there too often bend to pressure from well placed persons regarding terrorists.  Don't even mention Mexico and the state of their judiciary.  

We should be thankful for judges like Fred Biery.  I have no idea what Judge Biery's theology is.  But, I am sure he simply felt he was enforcing the law as it had already been decided by a higher court.  That is his duty as a US District Judge. 

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SPC4 Nicholas Hensley was injured two weeks ago when he stepped on an IED (improvised explosive device) in Afghanistan.  He died from his injuries.  He was on his fourth deployment.  A Judson High School graduate, SPC4 Hensley was married and father to three daughters.  He loved playingwith his children.  See San Antonio Express News report. 

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