I live here and did not know we have an animal court. According to an ABA Bar Journal report, we have an animal court to hear cases of pet owners acting irresponsibly. See ABA Bar Journal report. The court may be unique. It targets cases involving animal bites, stray animals and animal vaccinations. It has collected more than $250,000 in fines in its first ten months of its existence.
Depositions are key events in any lawsuit. The Opposing Counsel has the freedom to ask questions that lead to admissible evidence or questions which are reasonably calculated to lead to admissible evidence. That standard allows a broad range of questions. Most plaintiff employees are understandably nervous about being deposed regarding their case.
Some plaintiffs, for example, think they must remember every date, every statement and every key detail. The human memory does not work like that. No one remembers every date on which a discriminatory or suspicious act occurred. But, yes, every employee who files suit should recall in general terms when an even occurred. Most, if not all of my clients, for example, can recall that they were turned down for time off for Christmas, or that they were denied a requested accommodation a few weeks after July Fourth. Most of us can recall significant events in our lives in relation to some holiday or time of the year. if a sequence of events is important to you, then you will surely recall such details.
Many witnesses, parties or not, will respond with an "I don't know" or two during their deposition. But, if the witness tosses out an "I don't know" too frequently, then their testimony will receive little credit from the judge and jury. Russ Cawyer at Texas Employment Law Update talks about plaintiffs who do not recall enough. See his post. I agree completely. This truism applies to any witness. Many managers fail to recall key details. Once, I counted up the number of "I don't knows" by one manager during his deposition and argued he did not merit credibility from the court. He responded to my questions with a "don't know" some 20 times in a one hour deposition. If one side remembers very little and the other side claims to remember very many details, who will sound more credible? Russ is right, credibility wins trials.
It is tempting, when unjustly charged with something at work, to refuse the employer's instructions. We need to resist such temptations. The boss remains the boss until replaced by a bigger boss or by a judge. An employee at San Antonio Independent School District may learn this lesson the hard way. Leticia Rivera worked for SAISD for over 20 years. She got into some sort of verbal dispute with her prinicipal. Ms. Rivera was asked to leave the school. But, Ms. Rivera insisted on retrieving her personal possessions first. An SAISD policeman was called.
Ms. Rivera says the officer pushed her against the wall and later arrested her after she insisted on retrieving her belongings. The school claims the teacher's aide resisted arrest. Ms. Rivera has filed a charge with the EEOC. She says a coach was allowed to stay in his job despite committing a significant infraction of his own.
But, my question is why insist on anything after she has been told to leave? It is a difficult lesson for employees. But, the boss remains the boss until replaced by a bigger boss or by the judge. If the supervisor tells you to leave, no matter how unjustified, you must do what they tell you. No EEOC charge or lawsuit can change that reality. Lawsuits mean nothing until a judge or jury reach a final decision.
See San Antonio Express News report.
The not so-Evil HR lady pens another helpful post. This time she talks about when can an employee give immediate notice of resignation. A day care director is asking the HR expert about her situation. The day care director is being asked by member of the board who oversee the facility to violate laws regarding day care facilities. The director asks if she must submit two weeks notice. She wants to leave before her good reputation is damaged by an unsympathetic board. The HR expert responds in general that it is kosher to quit immediately when:
She then advises the director to tell the board she is concerned about A, B and C. An inspection is imminent. if A, B and C are not fixed, then she will submit her resignation. The director is very concerned that the daycare is violating clear state regulations. She does not wish to be connected with a daycare that comes under a cloud. The Evil HR Lady reminds the director that if she quits without notice, most HR experts will code her as "ineligible for rehire." Even if the director never wishes to work for this corporation again, the employer may be bought out in the future by another corporation. And, the simple "not eligible for rehire" can make finding a new job very difficult.
The HR expert suggests that even if the director leaves and they suffer a poor inspection, the director may well receive the blame. As the HR expert mentions, people who are unethical in one area are usually unethical in all areas.
if the director gives the board clear, specific reasons for leaving, then it will be clear she left because they would not conform to state standards. The not so Evil HR lady mentions one of my favorite suggestions: the director should express her concerns in writing/ She needs to build a paper record regarding her reasons for departure. As the HR expert mentions, the board will likely toss her out when she expresses her concern. So, the director will get to where she probably needs to be - while still protecting herself. See the not so Evil HR Lady's blog here.
I believe that when we find ourselves in the director's situation, most of us get very emotional. Our jobs are at stake. Too many of us resign rather than endure the strain of dealing with unethical or overly demanding people. But, we need to take a step back and consider alternatives. Who knows? The employer might just do the right thing. Putting concerns in writing might just elevate the discussion just enough......
Hossein Bagheri, owner of two Salsalito Mexican food restaurants here in San Antonio, plead guilty to hiring illegal immigrants to work in his restaurants. The owner was placed on probation for five years by U.S. District Judge Orlando Garcia. The owner was also ordered to pay a fine of $250,000 and the restaurant corporation was ordered to pay $500,000. The General Manager and the Human Resources Manager also plead guilty, They have not yet been sentenced. See San Antonio Express News report.
This is a first for San Antonio, If this continues, most Mexican food restaurants will close down in town, as well as most construction contractors.......
Texas ethical rules require that lawyers not charge a client an "unconscionable" fee. There is no precise definition of "unconscionable," but it does mean really, really high fees. A lawyer in West Texas was paid millions of dollars by wrongly convicted inmates. The wrongly convicted inmates receive $80,000 per year in state compensation for every year they were wrongly incarcerated. Texas has lead the nation in releasing wrongly convicted inmates. Kevin Glasheen has represented a dozen of them. In fact, Mr. Glasheen successfully lobbied the Texas legislature to raise the amount paid to inmates from $50,000 to $80,000 per year. See San Antonio Express News report.
Mr. Glasheen charged the exonerated inmates 25% of their recovery. In one case, he spent some 40 hours on the case and filled out a one page form to the secure the release of an exoneree. For that case, Mr. Glashen was paid $4.36/second. That works out to $15969/hour. Top paid lawyers in Houston and Dallas are paid perhaps $1000/hour. So, Mr. Glasheen is well-paid indeed. He has also been able to accomplish what few lawyers could do: he was able to lobby the entity that pays these fees to increase the compensation paid to his clients.
The Texas Bar Association sought disciplinary action against Mr. Glasheen. The action went all the way to trial in Amarillo, Texas. A state district judge found Mr. Glasheen's fees not to be excessive. She commented that it seemed like a simple case at first, but it is not. The state bar says they will appeal the finding.
I do not do malpractice law, so cannot comment regarding the definition of "unconscionable." But, $15969 per hour is pretty darn high. I understand that lawyers accepting cases on contingency incur substantial risk. The state bar prosecutor said the case against Mr. Glasheen was never about disbarment. He was seeking a letter of reprimand, or suspension of his license or probation. The whole point of having mandatory membership in bar associations is to avoid the abuses we saw in the 19th century, when persons claiming to be lawyers routinely bilked an unsuspecting public. Is Mr. Glasheen possibly taking advantage of a clientele with few options? if so, the judge found that he did not bilk anyone.
There should not be anymore cases like this. According to the San Antonio Express News report, the state legislature passed a law in 2011 that attorneys would be paid by the hour, not based on percentage.
In 2006, Mel Gibson ranted and raved when a Los Angeles County deputy stopped the actor for drunk driving. Mr. Gibson infamously accused the deputy, James Mee, of being Jewish. Turns out, the actor was correct. Deputy Mee is Jewish. The actor sputtered other anti-Jewish diatribes. "The Jews are responsible for all the wars in the world," Mr. Gibson insisted. In writing the report of the incident, Deputy included the anti-Jewish rantings. But, the Sheriff, Lee Baca, was said to be a friend of Mel Gibson.
Deputy Mee was asked to remove the anti-Jewish slurs from the initial report and, instead, include them in a supplemental report that would not be immediately available to the public. The deputy resisted. He included the anti-Jewish ravings to show how drunk the actor was. He later filed suit claiming he was subjected to retaliation. He sued for discrimination bsed on his religion and for retaliation. The deputy claimed he was passed over for promotion.jpg)
The judge dismissed the retaliation charge last month. That left charges based on workplace harassment and anti-Jewish discrimination. Deputy Mee has now settled his claims for $50,000. See Los Angeles Times report. Deputy Mee was suspected of leaking the initial police report to the media.
He never lost his job and still works for the Sheriff. This is a good settlement for an employee who cannot point to clear job loss. Being overlooked for promotion is very hard to show.
The only source of economic loss in a discrimination lawsuit is lost pay and benefits. Many people think discrimination lawsuits settle for huge amounts. Not so - not in the vast majority of cases. Even in a case with large issues and international publicity, the employee here has settled for a relatively small sum of $50,000.
"Spoliation of evidence" refers to the deliberate destruction of evidence prior to a trial. It is a rare event in civil litgation. But, spoliation of evidence was found in a case involving a personal inury lawyer in Virginia. Lawyer Matthew Murray was ordered to pay $522,000 for instructing his client ro remove photos from his Facebook age. His client was ordered to pay $180,00 for obeying his instructions. A state distruct judge issued these sanctions in the case of Lester v. Allied Concrete Co., a wrongful death lawsuit. See blog report here.
Mr. Murray has apparently resigned from his firm and quit the practice of law. I am sure a sanction of $522,000 will do that. Mr. Murray told his client to remove pictures, such as the one of him holding a beer and wearing a t-shirt that said "I [heart] hot moms." The client was a recent widower suing about the death of his wife.
In this case, the defendant was able to show via expert testimony that the widower deleted 15 photo from his Facebook account and perhaps a 16th. See Court's opinion. The photos were provided to the defendant later, before the trial. The jury found in favor of Mr. Lester and awarded $10 million. Subsequent to the trial, the judge ordered that Plaintiff's counsel provide copies of emails between the lawyer and his client to the court for in camera inspection (ie, for the judge's eyes only). When the district judge ordered production of these emails, he ruled that emails related to Defendant's request for production were not attorney-client privileged.
This all started when one of the defense lawyers "hacked" into Mr. Lester's Facebook page via a mutual friend and observed the photos showing Mr. lester as apparently non too distraught over his wife's death.
The court found that the plaintiff, Isaiah Lester, lied about his depression and treatment. The court found that Mr. Murray told Mr. Lester via email "to clean up" his Facebook page and told the client that "blow-ups" of pictures like the "I [heart] hot moms" photo would cause problems at trial. Mr. Lester deactivated his Facebook age. A few days later, in responding to discovery requests, the plaintiff said he did not have a Facebook account. The defendants complained - at this point they knew Mr. Lester had or should have a FB account. Mr. Murray then asked Mr. Lester to reactivate his account. The plaintiff's lawyer also provided hard copies of the 16 photos to the defense.
At his subsequent deposition, Mr. Lester lied about what he had done and denied he had deactivated his Facebook account.
Defendants then issued a supboena duces tecum for emails between Lester and his lawyer for the time period when the request for production was issued. Plaintiff resisted. The defense then filed a motion to compel. The court required a privilege log of the disputed emails. The judge found the initial privilege log deficient. When Mr. Murray finally produced the incriminating email, he claimed its prior omission was error. He blamed the omission on a paralegal.
As many politicians have learned, it is not the initial lie that gets you into trouble. It is the cover-up. Mr. Murry would have been far better off if he had simply taken his medicine early on and avoid any deception.
In a remarkable decision, U.S. District Judge Lynn Hughes has ruled that lactation, or breast feeding is not related to pregnancy. See Washington Post blog. The EEOC had filed a lawsuit on behalf of Donnicia Venters, a female employee of a debt collection firm in Houston, Texas. The employee had discussed with her employer when she would return to work after giving birth. She mentioned she would need a place to express milk or feed her baby, as the new statute requires. With no warning her employer then fired her. Ms. Venters had worked for the business for three years at the time.
The new lactation statute does require employers to provide a place for mothers to express milk. But, the law does not provide any protections for the mothers if they get fired for actually expressing milk or intending to express milk. See Connecticut Employment Law Blog for more information about the new law. The only protection for Ms. Venters would be some connection to gender dscrimination.
In the lawsuit, Judge Hughes found that breast-feeding is not related to pregnancy or to sexual discrimination. Therefore, Ms. Venters could not claim her termination was related to her gender. I have heard that only women can breast feed, but Judge Hughes seems to know better. See opinion here.
Judge Hughes apparently has a reputation for saying strange things. He is not too well thought of a the robing room, a website allowing persons to rate judges.
You know, its almost like some employers want to be sued. Or, they want strife of some sort. I once had seven women come see me about their job. As I listened to the ladies, I realized their claims were less about discrimination and more about horrible working conditions. They worked in a small office. The windows were adorned with wooden blinds. The office manager, also the wife of the owner, would insist that the blinds be turned so they were pointing up. At some point, after thinking about that, I asked the potential client which way is up? How does one know whether a blind is pointed up or down? The potential client did not know. Coffee was curtailed for months. Antique items on the desks had to stay in the same place everyday. Visitors to the restroom were allotted three squares of TP per visit. The office manager would draw a line on the TP to monitor.
Another potential client once told me how she worked 20 years at the same place. No one was allowed to go out to lunch with a co-worker. Ever. Not surprisingly, that place had little interaction at work. The sales clerks were expected to work all day with no "water cooler gossip." No birthday cakes ever graced the halls of that place of employment.
Apart from more important job issues such as discrimination, opposition to discriminatory practices, etc., should we not be concerned about productive working environments? Are workers doing their best when they are under this sort of stress? After so many years in the Army, I think i can often tell the good places to work. The good places are the ones where I, as a customer, can walk in and chat with whoever is at the counter. if the counter clerk frowns, or grumbles unnecessarily, I know this is probably not a happy place. This little test always worked for me when i would visit a new unit in the Army. If the low man on the totem pole would not chat with me, i knew this was probably not a good place to be.
The person with the least amount of prestige gets the bad stuff. It all rolls down hill. If that little guy feels empowered to talk with a stranger, then that is a worker who feels s/he is accomplishing things at work. S/he feels valued. Such a worker will perform at his best even under stress. Workers at the place where they are essentially not allowed to chat with each other will not. Business will suffer.
In the Army, our Super Bowl is war. That's how it is. We train for years for the Big Dance. When I was in Iraq, my little test held true. if the low man on the ladder would chat with the occasional visitor, then that was a good unit and they would perform well in a time of high stress. When we first arrived in Iraq, we replaced another Civl Affairs battalion. That prior unit had very low morale. They had endured a miserable 12 months in Iraq, replete with Congressional investigations, IG investigations and EEO complaints.
I remember when I first arrived with a group of other senior officers and Non-Commissioned officers from my unit, the 445th CA battalion, the commander of the messed-up unit, walked right past us, without a word. One would have expected he and all of his outgoing battalion would have been thrilled to see us. They could not leave Iraq until we arrived and transitioned to replace them. But, there we were, some half dozen of us, fresh in country and he walks past us without a word of greeting. Things got worse after that. We had to live and work with those outgoing folks for two weeks. Almost all of their people were very hard to work with . . . almost as if they hated their jobs and hated being there. Their commander was not the low man on the ladder, but my little test still seemed to work. It worked at the Big Dance and it works here at home, too.
I admire the litigation process very much. The strength of our system here in the US is that virtually anyone can file suit for any perceived wrong. But, the strength is also the weakness. Anyone can file suit over anything. People for the Ethical Treatment of Animals (PETA) has sued Seaworld in San Diego to free the slaves.. err... the whales. PETA's lawyer has argued in U.S. district court that the whales are subject to the Thirteenth Amendment, which prohibits slavery. The whales should be free, they argue. The killer whales are forced to live in tanks and perform daily.
Seaworld filed a motion to dismiss the claims. The judge asked for an oral hearing and will rule later. See San Antonio Express News report. PETA claims victory already simply because such an argument has now been made in court. This case is on the "frontier of civil rights," said their lawyer. This is not about poor treatment. It is about something more. ". . . we heard arguments as to whether living, breathing, feeling beings have rights and can be enslaved simply because they happen to not have been born human," said Jeffrey Kerr, the lawyer for PETA.
And, sure, when you look at the text of the Tirteenth Amenment, it does not refer to slavery among humans. See Thirteenth Amendment. But, the Thirteenth Amendment merely amends the document. The U.S. Constitution starts with these words, "We the people." See Constitution. Not, "we the mammals" or "we the sentient beings." PETA faces a huge obstacle in this lawsuit.
So, the next time, Rover begs you for crumbs from the table. Remember, he could sue you.....
My clients often tell me some horrible deed by the employer and quickly ask me "can they do that?" To me the real question is "will the employer's act and his explanation pass muster with the judge and jury?" I usually answer by "guestimating" what how a jury would respond. If the client really presses me, I will tell them they should ask their friends and neighbors. Friends and neighbors do not represent a scientific sampling of a jury pool. But, it is a starting point.
We see some of this credibility assessment at work in the redistricting lawsuit against the state of Texas. One of the state's witnesses testified that when they worked on the Republican favored districts, they did not consult with any government official. I have never worked in state government. But, it does not seem credible to me that state employees working on redistricting had little guidance from Republican lawmakers in charge of the redistricting process. That assertion struck one of the judges the same way. Washington D.C. District Judge Beryl Howell had the same reaction. He commented during the trial that he had to "scratch his head" over that testimony. See San Antonio Express News report. Whenever a federal judge offers an opinion, the listener should pay close attention. Judge Howell's comment is judge-speak for "I do not believe you."
As I have explained to clients many times, what we say in court must be believable on some level. If an employer claims he fired someone only because s/he was late one time one minute, that just stretches the limits of credibility. So, yes, we can all say whatever we want in court. But, it must pass "the smell test." I heard a report today that Judge Howell's reaction prompted the state, in part, to discuss possible settlement in the lawsuit. Yes, comments from judges do have that effect.
When I was a young lawyer in rural Louisiana, I clerked for a smart state district judge. He would routinely pull the lawyers for both parties into the back room to hear the "skinny" on whatever motion they were in court on that day. He always asked if the parties had talked about settlement. If there was a stumbling bock to settlement, he wanted to hear about it. Once in a while the stumbling block was some motion that one of the parties was sure they would win. After a lot of careful language, my judge would tell the lawyers that based on what he heard, he would rule in a particular way. He was telling them in judge-speak how he would probably rule on the disputed motion. Dropping that heavy hint always brought about an agreement or settlement. Judge Howell dropped his hint, I think.
Financing discrimination lawsuits is difficult. The plaintiffs often are unemployed by the time they even find a lawyer. Many potential plaintiffs do not find a lawyer, at all. So, it is not surprising to see three women who are suing DePaul University have set up a website seeking donations for their lawsuit. See their website here. Melissa Bradshaw, Penny Silvers, and Jennifer Holtz have sued the school claiming they were denied tenure because of their gender. Of 33 persons up for tenure, seven were denied. Of those seven, five were women.
A case based on tenure might cost more, since the plaintiff may find it necessary to depose each member of the tenure committee - in addiition to the usual depositions of the final decision-makers and any supervisors.
In Carey v. 24 Hour Fitness, USA, Inc., No. 10-20945, (5th Cir. 1/25/12),we have another caes regarding an arbitration clause in an employee handbook. But, this time, the court of appeals found that the arbitration clause was not binding. The cause prohibited entering into any class actions based on the Fair Labor Standards act. The employee, John Carey, however, did enter into an FLSA class action. 24 Hour Fitness sought to stay the class action and force arbitration. The district court denied the stay and found the arbitration agreement to be illusory. The Fifth Circuit sustained the lower court.
Under Texas contract law, an agreement which allows one party to unilaterally make changes to the agreement retroactively is considered illusory. Such an agreement is not a genuine agreement. In this case, the Fifth Circuit found that 24 Hour Fitness retained the right to amend the employee.jpg)
handbook, including the arbitration clause, at any time with no limit. The court fiound the 24 Hour Fitness arbitration agreement different from that in other cases, in which the handbook was subject to change, but not if any complaint had already been lodged.
The arbitration agreement in the 24 Hour Fitness case allowed the employer to "revise, delete, and add to" the employee handbook at any time. There was no limit on its ability to do so. the agreement, thus, applied to the employee but allowed the employer to slip out of it if it chose. This failure to make the agreement truly binding rendered the agreement "illusory,: said the court.
24 Hour Fitness argued that it did not have an express ability to make changes retroactively. But, noted the court, Texas law presumes retroactive application if the agreement is silent on the subject. See the opinion here.
The Fifth Circuit has overruled similar arguments made here by the plaintiff in other cases. It seems that the law of arbitration agreements is still evolving.
This decision also reflects the challenge of using employee handbooks. Employee handbooks benefit employers because they prescribe procedures for counseling or terminating employees. Such procedures make it far easier for employers to win claims for unemployment benefits. But, employee handbooks can become contracts - meaning the failure to follow discipline procedures in the book may give rise to breach of contract claims by an employee. The employer then responds with clauses providing that the employee handbook is not a contract and can be changed at any time. So, how does the employer insert an arbitration clause without making the rest of the handbook a contract? This decision suggests that the employer should at least make it clear that it can change the handbook, but such changes would not apply to any pending claims of discrimination or FLSA violations.
But, in the end, it is hard to eat your cake and eat it too. There are limits to how much we can squeeze into any one contract.
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