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

Herman Cain says the ten year old sex harassment allegations against him are baseless.  He denies any wrongdoing.  See CBS news report.  Yet, he admits the National Restuarant Association paid a settlement on the two separate chareges against him.  One news report said the two settlements were in the five figures.  

Who truly knows what happened.  But, I find it doubtful any employer would pay out settlements in the five figures if the claims truly lacked any basis.  Discrimination cases are always emotional and difficult.  A breakdown of the employment relationship causes both sides to feel much anger and resentment.  Employers are angry anyway, but especially so if they believe the charges truly lack basis.  Settlements in discrimination cases are rare compared to other sorts of lawsuits.  

Virtually all settlements require the complaining party to agree to keep the terms of the settlement confidential.  So, I am sure whoever accused Mr. Cain of sex harassment agreed they would not discuss the terms of any settlement.  So, we will probably not hear their side of the story. 

But, as I have told my employee clients many times, the employer would not be paying out large sums of money if the claim truly had no merit.  

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A St. Phillip's College professor was denied tenure.  Angela Wilson then filed charges of racism and retaliation against the president of St. Phillip's College, Adena Loston.  See San Antonio Express News report.  Ms. Wilson, a professor of radiography, was also involved in a dispute with the Veterans Administration Hospital.  St. Phillip's had an internship program with the VA hospital's radiography department.  Ms. Wilson felt the St. Phillip's students were being mis-treated, so she pulled them out of the program.  In the following school year, she tried to place new students in the program.  The VA then said they had no room for student interns.  

Mr. Loston learned of the snafu after the internship program was essentially shut down by the VA.  He found Ms. Wilson, Donna Laird and Jerry Narvaez, another professor at fault.  Ms. Wilson was given a final warning at the time.  About the same time, Ms. Wilson filed a sex harassment charge against a fellow male professor, Warren Parker.  She was denied tenure soon afterward.  She appealed and lost her hearing before the Alamo Community College District trustees.  St. Phillip's College is a part of the ACCD system. 

I previously wrote about the radiography department at St. Phillip's here and here.  Ms. Wilson filed her complaint against the same Warren Parker described in my prior posts.  It does appear that the radiography department at St. Phillip's is dysfunctional.  As many of my employee clients have found, termination, even when involuntary, is often the best result possible.  Some jobs just require too much emotional investment. 

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My colleague and friend, Mike Maslanka, at Work Matters, pens a nice post about questions to pose to the employee plaintiff.  See post.  Mike's post discusses good questions to ask the plaintiff.  Mike generally represents employers.  These questions would usually come during the deposition or the trial.  His point is that the better questions for the employer to ask are not "home run" type questions, but the doubles and triples.  "is this a fair summary?"  As Mike points out, this question, often in a deposition, is not all that fair.  The question often is slanted just a bit to favor the employer.  The goal is to elicit testimony the employer can use to seek dismissal of the case or summary judgment. 

 "Take it to the limit one more time."  Mike makes a valuable point here.  He means the employer's lawyer should look for ways to press the issue regarding personality conflicts.  If he can show the employee was fired due to personality issues, then that undercuts discrimination or some other illegal motive playing a role.  And, he hopes to show that the employee is unreasonable. 

The plaintiff employee who cannot set aside his/her anger will surely lose. The employee needs to show some appreciation for the opposing point of view.   "Niceness" does count in litigation.  Ultimately, we all answer to a judge and jury for everything we do in a lawsuit.  An employe (or employer) who comes across as unforgiving or unreasonable will lose.  The jury does not understand the law very well, but they tend to understand human nature very well.  They do not sympathize with plaintiffs who cannot get past the emotional pain. 

Its a fine line the plaintiff employee must walk.  S/he must be firm, but not cross.  S/he must be "nice" but not easily pushed around during questioning.  It is a difficult task.  But, the employee who cannot set aside anger to some degree loses credibility. 

Its a truism that applies elsewhere.  In my time in the Army, some  28 years in the Army, Army Reserve and National Guard, personnel issues occurred with some frequency.  "He said, she said" disputes were not unheard of.  If one side could discuss the issues with some balance, that soldier gained credibility.  Litigation is no different.......

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 A former employee of the City of Kerrville, Texas has settled her lawsuit against the City for $12,500.  She had sued the City of Kerrville for sex discrimination.  She had alleged she was fired for conduct that would have resulted in much less severe punishment for men.  See San Antonio Express News report. I previously wrote about her lawsuit here.  Very many discrimination lawsuits settle for less than $20,000.  In this area of law, any settlement should be considered a win for the employee.  She was fired after ten years working as an administrative assistant for the City of Kerrville. 

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Your average county courthouse sees more genuine drama and pathos than any television show can ever capture.  So, perhaps it is not surprising when one courthouse becomes the scene of partying French Moroccans.  Five French citizens of Moroccan background were traveling across country in a rented RV.  After a night of drinking at Coyote Ugly, a Riverwalk establishment, capped off by more drinks at the famous Esquire bar, two of them spied the Bexar County Courthouse.  Apparently, not realizing it was a courthouse, they climbed up the fire escape and broke in.  Coming across a closet in the San Antonio Bar Association offices, they found a couple of the over-sized, wide, straw sombreros used for skits.  The donned the sombreros, played judge in some courtrooms and strolled the halls sipping more beer.  See San Antonio Express News report. 

Litle did they know, that due to Post-9/11 funding the courthouse has alarms and security cameras thoughout.  They were observed during most of their courthouse party.  Within minutes the courthouse was surrounded and the two partiers were arrested.  The three remaining travelers, asleep in their RV, were rousted out of bed and dragged to jail.  

Initially, they were suspected of being terrorists.  Two were even reported initially to be on an FBI watch list.  The FBI became involved as well as the Sheriff's office.  After a few days in jail, authorities decided they were just errant partiers.  But, the two partiers remain locked up accused of burglary and intent to commit criminal mischief.  The three RV'ers worry about their friends in jail and are concerned because they have run out of money and must return home - if they hope to help their friends in jail.  They express affection foe the USA, saying we have a lot of good people here.  The French travelers speak French and Spanish and broken English. 

So, this time the courthouse sees more humor than drama.  Two young Frenchmen learn some valuable lessons.  May life always be this peaceful. 

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The City of Austin, Texas settled a discrimination lawsuit against the Fire Department for $850,000.  See Austin American Statesman report.  The lawsuit had been filed by two white Fire Battalion chiefs who complained that two minority candidates who ranked lower were selected over them for promotion to Assistant Chief.  The lawsuit claimed the selections were based on race.  The suit claimed that the City Council had asked that the Fire Department achieve greater diversity.  That request apparently prompted the Fire Department to reach four ranks down to select the two minority candidates. 

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 Due to national security issues, this may be the shortest appellate opinion ever.  See opinion in Abdul v. Obama.  Its says simply "Classified opinion not available to public." 

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In Texas, unemployment benefits are awarded to employees who lose their job through no fault of their own.  That is the general rule.  It is one area in Texas employment law where fairness carries some weight.  The process starts when the employee files a claim for benefits.  Texas Workforce Commission will then request a statement from the employer.  Some employers choose not to respond, in which case TWC will award benefits. 

If the employer responds with information indicating that the employee's termination was due to some misconduct by the employee, then TWC will set the claim for a telephone hearing.  The employee may have evidence corroborating key points.  If so, s/he must provide copies of the evidence to the employer and to the TWC judge prior to the hearing.  The hearing notice should include contact information for the employer or the employer's representative. 

The employer may hire a lawyer for the hearing.  More often, the employer will rely on its Human Resources department to serve as representative.  

The employee must satisfy some technical requirements to be awarded benefits.  I am not aware of the specific requirements.  The website, Can My Boss do That? contains some general information regarding those requirements.  In General, the employee must have worked for the employer for some period of time and must have earned a certain level of money to qualify for benefits.  TWC states on its website that the applicant must have earned sufficient amounts of pay in four of the five preceding quarters.  

Can my boss do that? discusses one situation where they suggest you will be disqualified for benefits: if you testify that you quit due to stress, then you will lose benefits.  That may be true, since resignation usually does disqualify a person for unemployment benefits.  But, if you can show that you quit for medical reasons, you might still win benefits.  TWC judges are sometimes sensitive to disability issues.  

It is difficult to find a lawyer to represent an employee at a TWC hearing.  Employers and, I suspect, TWC do not want employees to be represented at such hearings.  There is no mechanism for lawyers to be paid if they represent an employee.  And, of course, an employee who has just lost his job will have little money available to hire a lawyer. 

In fact, even keeping benefits once they have been awarded is a challenge.  The employee is required to call in once a week to certify s/he has looked for work that week.  If you do not call in, you will not receive benefits for that week.  The phone line is very busy.  I have heard from a couple of clients that they could not get through the busy signal for one or more weeks.  So, they missed benefits one or more weeks.  It i almost as if TWC was trying to keep the employe from receiving his/hr benefits once they have been awarded. 

And, of course, it is hard to believe but the former head of appeals for TWC was offering advice to employers in 2010 on how to deceive employes and avoid paying benefits.  See my prior post.  The Texas unemployment benefit process is not employee friendly.  But, it is possible to appear at a hearing and win.  The employee will have to plan ahead and think carefully about what you want to to tell the judge at the hearing.  You also need to consider carefully the questions which you wish to ask key witnesses. 

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Six years ago, I was sitting at a desk at FOB Danger, Iraq processing applications for CERP funds.  Periodically, I would go "outside the wire" to look at ongoing reconstruction projects.  I was one of some 150,000 soldiers, sailors, Marines and Airmen serving our country.  We served on a large team, my brothers and sisters in the service.  Now, we lose another, LCPL Ben Schmidt.  Cheered at football games long after graduation, he apparently charmed many.  He designated Texas Christian University to receive his military life insurance money - to set up a scholarship.  He was an extraordinary young man.  See San Antonio Express News report. 

He shunned killing, yet returned for another tour with his fellow Marines.  He went, as many of us did, to look out for our brothers and sisters on the big team.  

Some 140,000 men and women are serving in Afghanistan.  Another 40,000 or so in Iraq.  Men and women die everyday in one of those two wars.  Does anyone notice?  Here in San Antonio, we notice the passing and huge loss of LCPL Schmidt.  But, even here in Military City, USA, will we notice the loss of other Marines next week from some other town?  Some time back, a First Lieutenant asked if we cared.  See my prior post.  He just wanted us to take notice of the troops serving overseas.  I hope we do......

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A Georgia school teacher lost her job over Facebook photos of her holding an alcoholic drink during a European vacation.  A parent supposedly complained and she was forced out.  Now, she is suing for damages.  The district judge granted summary judgment to the employer.  See Atalanta Journal-Constitution report. 

The school teacher, Ashley Payne, claims someone claiming to be a parent sent an email regarding the Facebook photos.  Ms. Payne says there is no evidence the sender was truly a parent.  She claims she was denied the right to a hearing prior to her forced resignation. 

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The Family Medical Leave Act provides that an employee can take time off from work to care for a family member.  But, "caring" for a family member means the employee must be in close and continuing proximity to the family member.  So, the Fifth Circuit denied an appeal by a father who argued that frequent telephone calls to his daughter and wife regarding his daughter sufficed as "caring" for the daughter.  

The father was in Texas, while his wife was in Florida caring for their ill daughter.  The father had argued on appeal that frequent telephone contact over two weeks with his daughter satisfied the requirements of the FMLA.  Telephone contact, said te Fifth Circuit, does not satisfiy the proximity requirement.  See Baham v. McClane Foodservice, Inc., 011 US App. Lexis 13620 (5th Cir. 2011). 

Not that telephone "caring' does not have some value, but really? 

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Sometimes, a creative employer will defend an apparently racist decision by claiming they did not discriminate against all minorities.   We see an attempt at such a defense in Diaz, Et Al v. Kraft Foods Global, Inc., No. 10-3073 (9th Cir. 8/8/11).  Two employees alleged they were victims of anti-Hispanic discrimination when they were passed over for promotion.  A third employee claimed discrimination because he was never promoted to a higher wage level. 

The three Hispanic employees claimed a white supervisor, Peter Michalac, consistently assigned disfavored tasks to them, scrubbing parking lots, cleaning sewers, as often as possible during the cold winter months.  The three employees testified that Mr. Michalac referred to one of them as a "gold digger" when he sought a raise.  He once said he got his job because he was white.  He once yelled, "I'm white and I'm right."  A fourth Hispanic employee testified that on numerous occasions, Mr. Michalac said Hipanics were "dummies" and "stupid."  He said he did not like Spanish people. 

The employer defended on the basis that Mr. Michalac did not assign all disfavored jobs to all Hispanics.  That is, he did not assign these odious tasks to another Hispanic employee, Raul Fernandez.  So, argued the employer, Mr. Michalac was not biased against all Hispanics or these three plaintiffs in particular. 

The court of appeals rejected this reasoning.  The court explained that if this line of reasoning worked, then every female victim of sex harassment would have to prove that the offending male harasser harassed all women.  The court found that discrimination against one Hispanic violates Title VII even if the employer does not discriminate against another Hispanic employee.  The statute applies to individuals, not necessarily to groups of minorities.  There is no token exception to Title VII, said the Court. 

The appellate court pointed out that the lower court appears to have incorrectly applied similarly situated analysis to a situation that did not involve similarly situated employees.  The three Hispanic employees were not comparing themselves to non-Hispanic employees.  They were presenting direct evidence of discrimination.  

Yes, observations of tone, gestures, inflections, as well as the actual words of the transgressor do make a difference.  See the decision here.  

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LCPL Benjamin Whetstone Schmidt was killed in Afghanistan.  he apparently suffered a gunshot wound.  LCPL Schmidt was a sniper for the Marines.  He was the son of Dr. David Schmidt, team physician for the San Antonio Spurs.  He was also the son of Becky Whetstone, former advice columnist for the San Antonio Express News.  Ms. Whetstone was formerly married to Congressman Charlie Gonzales. 

LCPL Schmidt was in his fourth year with the Marines and had planned to return to civilian life.  He graduated from Alamo Heights High school where he played football.  He was described by his mother as charming and charismatic.  He will be buried at Ft. Sam Houston National Cemetery.  See San Antonio Express News report. 

As I have mentioned here before, I have to admire our brave young men and women who continue to step up in a time of war and serve in our military. 

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All too often, someone who filed an EEOC charge comes to see me with their right-to-sue letter in hand seeking representation for a lawsuit.  Unable to accept their case, i discus the alternatives.  I review the deadline with the potential client: 90 days for federal court and 2 years for state court.  Looking more closely, I realize that the EEOC did not notarize the charge.  Oh, oh.  The EEOC famously, perhaps infamously, does not notarize changes of discrimination.  Without a notarized signature, the client cannot file suit in state court. 

The EEOC Notice of Dismissal (aka "right-to-sue" letter) form used by the EEOC has two signature blocks, one in which the affiant swears under penalty of perjury that the above complaint is correct and a second block which requires notary certification.  The EEOC uses the first block in which the affiant signs under penalty of perjury.  That first signature suffices for federal court, but not for state court.  The EEOC never asks the charging party to sign before a notary.  Stetson College of Law has posted a sample EEOC charge.  

Just about every private practice lawyer who represents employees asks the charging party to sign both signature blocks.  The notary certification is necessary for state court.  It only takes an extra minute or two to sign a second time before a notary.  I am told that way back when, the EEOC used to have charging parties sign both block.  But, they have long since discontinued that practice.  

So, now, in my office, I have to explain to a charging party why s/he cannot or should not file in state court.  It is way too late to file a new charge of discrimination.  As often happens, they came to see me about Day 88 of a 90 day deadline to file in federal court.  It is hard to find lawyers who represent employees in employment matters.  

So, once again, a client sees me well past the six month deadline for filing a charge of discrimination.  The 90 days to file in federal court is almost gone.  Since the charging party did not sign before a notary, s/he cannot now file in state court.  It is a maze which traps many well-meaning victims of discrimination.  All because the EEOC would not take an extra couple of minutes to have the charging party sign twice.......

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Some time back, I discussed a case where the defendant in a personal injury lawsyit was trying to obtain continued discovery of a plaintiff's Facebook and My Space entries.  See my prior post.  The Houston trial judge had ruled that after the plaintiff changed her settings to private, the defendant could no longer obtain the entries.  The defendant then sought a writ of mandamus to force the trial judge to rule differently.  

The Texas Supreme Court dismissed the writ on Sept. 9, 2011, meaning they reject the appeal for an unspecified reason.  See Texas Supreme Court site.  So, the trial judge's ruling stands: a party cannot continue to seek social media entries after the party changes her settings to privacy. 

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Many employers have implemented so-called no-fault attendance policies in which employees are charged with a day of leave regardless of the reason for the leave.  Once, the employee accumulates enough absent days, s/he will be fired.  Such leave policies, however, conflict, with the Americans with Disabilities Act.  Under the ADA, when an employee requests an accommodation which might involve leave, the employer must consider the request on an individual basis.  The consideration must address the specific employee's needs, not the potential needs of all employees who request leave.  

Texas Employment Law Update, a very good blog, agrees with other employment law blogs which argue that attendance is an essential requirement of every job.  See Texas Employment Law post.   Other management blogs argue that attendance is a requirement for every job.  See Work Blawg.  Work Blawg cites cases for the proposition that attendance is an implicit requirement for every job.  But, there are many cases which expressly hold that leave is a viable accommodation.  See, e.g., US Airways, Inc. v. Barnett, 535 U.S. 391, 397-98 (2002) (an accommodation may includes breaks for treatment).   

See also Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir.1998) (employee's attempt to extend a three week leave for treatment was reasonable); Walton v. Mental Health Ass’n. of Southeastern Pennsylvania, 168 F.3d 661, 671 (3d Cir. 1999) (“unpaid leave supplementing regular sick and personal days might, under other facts, represent a reasonable accommodation,” but leave requested here was not reasonable); Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir.1989) (decided under § 501 of the Rehabilitation Act); Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 782–783 (6th Cir. 1998); (medical leave of absence, paid or unpaid, may be reasonable accommodation); Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 601 (7th Cir.1998); Brannon v. Luco Mop Co., 521 F.3d 843, 849 (8th Cir. 2008); Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 n.5 (2d Cir. 2006) (noting that “[m]ost other circuits and the Equal Employment Opportunity Commission have concluded that, in some circumstances, an unpaid leave of absence can be a reasonable accommodation under the ADA.”).

The cases that argue that attendance is a job requirement for every job actually address a slightly different issue.  Many of these cases actually address the question of whether the employee can ever work.  These cases involve employees who miss months and years of work.  In Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996), the Fifth Circuit did indeed suggest that attendance was a requirement for every job.  But, the fact situation in this case concerned an employee who had missed a year of work and would likely miss many more months of work.  The issue was about whether the employee could ever work again, not whether intermittent leave would accommodate his illness or not.  The court simply stated the legal ruling too broadly. 

Every illness is different.  Every treatment plan is different.  Every situation is different.  Cities have more sources for occupational therapy than rural locations.  A patient living in a rural community will have far fewer choices for physical therapy than a city worker.  No one situation is the same.  That is why the ADA requires an individual assessment. 

Indeed, even discussing whether a particular job task is truly required is a fact issue.  Whether attendance, lifting, writing, sitting, standing, etc. are true job requirements is a fact issue.  It is mis-leading to argue that one case decision can state affirmatively that one particular job task is required for a broad range of jobs, much less "every" job.  The Fifth Circuit stated as much in Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 707 (5th Cir. 1997):

"First, we cannot say, on the facts of this case, that any or all of the above listed … duties as a matter of law are essential functions …. If we venture to second-guess then we simply usurp the most critical function of the jury in ADA cases, i.e., the injection of some indispensable common sense in the determination of what is or is not an essential function."

So, in the end, as with most legal questions, it depends on the situation.....

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 An Air Foce Reservist is one step closer to receiving his award of $926,506 in lost pay and benefits.  The 2d Circuit Court of Appeals upheld a lower court ruling that Michael Serricchio suffered discrimination when his employer changed his sales plan after he returned from active duty.  Wachovia paid Mr. Serricchio commissions as a financial advisor.  After returning from active duty, Wachovia changed his sales leads to "cold calls" instead of offering him his original clients or comparable customers. 

Wachovia had argued that it was only required to offer a returning Reservist the same commission structure without reference to the advisor's prior book of business.  Thus, in effect, the employer had argued that the returning Reservist was required to build back his book of customers.  If he did not, tough luck.  

The new employer, due to corporate changes is Wells Fargo.  The trial court ordered Wells Fargo to pay Mr. Serricchio a draw of $12,300 for the next nine months while be builds up his business.  He was awarded $389,453 in lost pay.  The Uniformed Services Employment and Reemployment Act (USERRA) does not provide for emotional suffering type damages.  The USERRA Act only provides for lost pay and benefits. 

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 Insurgents have killed a San Antonio soldier, 1LT Andres Zermeno, in Afghanistan.  See Defense Department news release.  1LT Zemeno died from wounds suffered in an RPG attack. 1LT Zermeno graduated from St. Mary's University where he met his wife.  He served in the ROTC program and studied psychology.  See KSAT news report. 

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