It was a simple question. The reporter just wanted to know what the President would do about an increase in anti-Semitic activity. But, the President, perhaps feeling defensive already, accused the Jewish reporter of asking an unfair question. He explained why he is not prejudiced against Jewish persons. But, that was not the question. If you cannot ask the President of the United States what he will do about rising anti-Semitism, who can you ask? See CBS news report.

It does not matter the cause, at least not yet. But, there is a rise in bomb threats against Jewish Community Centers across the country. The President is in a good place to speak against that sort of ethnic prejudice. Unfortunately, Pres. Trump either misunderstood the question or chose not to answer. He told the reporter it was an unfair questions and he should sit down.

Dr. Ricardo Romo, President of the University of Texas at San Antonio, has been placed on leave immediately. The school has not offered an explanation for the sudden leave. But, there is pending a complaint of sexual harassment against the President by two employees. The two employees had been fired and apparently complained the termination was retaliation. See San Antonio Express News report.

Another federal judge has granted an injunction to stop the administration’s travel ban. Judge Brinkema in Virginia granted an injunction that applies to the state of Virginia. Like the judge in Washington state, she pointed to the campaign statements by then Candidate Trump that he would institute a ban on Muslim immigration and that the administration has not offered a rationale for the travel ban. Like the Ninth Circuit judges, Judge Bronkema chided the administration for not offering a rationale for the ban other than the executive is responsible for immigration. See CBS news report.

As I mentioned in a previous post, judges do not appreciate being told essentially that we can do it because we can do it. The proffered rationale is a key component of a discrimination case. Why did the employer do what it did? If discrimination was not the motive, what was the true motive? If the employer’s response is simply because it can, that persuades no one. And, it suggests the true motive was an improper one.

The Ninth Circuit affirmed the lower court’s issuance of an injunction which stopped the travel ban. The travel ban has received enormous attention since it was issued Jan. 27. In its opinion, State of Washington, v. Trump, No.17-35105 (9th Cir. 2/9/2017), the court first explained that yes, Presidential directives regarding immigration are reviewable by the courts and have been since at least 1866. The President is entitled to latitude, especially regarding security issues. But, noted the court, the U.S. Supreme Court has reviewed the President’s directives regarding immigration during World War II, the Viet Nam War and during the Afghanistan War after 9/11.

The decision does not address the merits of the travel ban. The appeal concerns the judge’s stay of the travel ban. So, the issue is more about whether the proponent of the travel ban is likely to succeed, what sort of harm will follow if the injunction is overturned, and about the public interest. The court finds that the two states, Washington and Minnesota, are likely to prevail on the due process claim. The court also notes the “serious nature” of the religious discrimination claims. That sentence indicates that while the court is not ready to find the states are likely to prevail on the religious discrimination claims, it does not look good for the federal Government on that issue.

Due Process

“Due process” simply means the government must provide notice and an opportunity to be heard when depriving persons of their right to life, liberty or property. Not only has the federal Government not shown that there was notice before issuing the ban, it did not even contend that it provided notice to those persons who would be affected. The Government argued that “most” of the person affected by the travel ban had no rights to due process. But, noted the court, the due process clause of the U.S. Constitution applies to citizens and aliens alike. It applies to anyone within the U.S. borders. Due process applies to unlawful aliens regardless of how they arrived in the US. But, the court focused mostly on those immigrants who do have a legal right to be in the US. It noted that the Government did not show that aliens with a lawful right to be here were accorded an opportunity to challenge the ban as it applied to each lawful alien.

[It is fairly well known among constitutional lawyers that unlawful aliens have some minimal protections in the U.S. It is surprising that the Government’s lawyers would claim differently. That error does reflect the ad hoc and hurried nature of the travel ban. “Winging it” does not work well in lawsuits].

The court noted that soon after the ban was issued, the government issued new “guidance” from the White House Counsel that appeared to remove lawful aliens (i.e. those aliens with visas) from the travel ban. But, said the Ninth Circuit, the Government could not show that the White House Counsel has authority to supersede a prior issued Executive Order. Indeed, there is no guarantee that the White House Counsel’s guidance applies to other executive branches. And, added the court, even it the Government could show that lawful aliens have been removed from the effects of the ban, the states can show that unlawful aliens still enjoy due process protections.

[The court appears to engage in some mild sarcasm here. Of course, a lawyer’s “guidance” is nothing more than another legal interpretation. It has no binding effect. To truly remove lawful aliens from the effect of the travel ban, the White House could have issued a new Executive Order. This passage does suggest the White House either overlooked a critical portion of its case or simply thought it could bluff the court of appeals. It is never wise to try to bluff a court of appeals].

The Government argued that the lower court’s injunction is too broad. It should not apply to the entire country. But, replied the Ninth Circuit, there is caselaw finding that nation wide application is more efficient and it pointed to a recent injunction issued by a lower court in Texas regarding an Executive Order issued by Pres. Obama in 2014. And, added the court, it is not the court’s place to re-word an Executive Order.

Religious Discrimination

The Court also addressed the argument that the travel ban implements religious discrimination. The Executive Order specifically allows special consideration for persons in a  religious minority in the seven countries. The two states argued that this exemption was intended to favor Christians over Moslems. The two states pointed to many statements by Pres. Trump indicating he would ban Moslems from the U.S. There is ample caselaw finding that a court may consider intent when reviewing the religious establishment clause of the U.S. Constitution. The court simply concluded that “serious allegations” have been raised which present “significant constitutional questions.”

Public Interest

The court addressed the alleged security concerns. It found that despite repeated requests for evidence of security concerns emanating from the seven named countries, the Government has yet to produce such evidence. The court noted that instead of providing evidence of security issues from the seven countries, the Government simply argued that the courts cannot review its decision. In a footnote, the court noted that the Congress and the President identified these same seven countries as countries of concern in 2015 and 2016, But, no-one has explained how Congress and the President arrived at that description or the basis for that status. See decision here.

It does sound like the Government lawyers rushed this. I am surprised they could not present a better explanation for why they cannot provide evidence of security issues, other than simply telling the courts, “Don’t worry, we got this.” That never works with most judges I know. That is an obvious question to expect on appeal. Yet, the Government did not have a ready answer other than an answer that would cause offense. One must wonder if the administration has brought its “A” game to this lawsuit.

Yes, those many anti-Muslim comments by the President since 2016 do make a difference. His comments in 2017 matter. The judges did not discuss Pres. Trump’s attacks on the courts. But, I can attest that judges do not look kindly on persons who accuse them of making “political” decisions. Indeed, some judges will feel almost as if they must find against someone who accuses them of being political. Thats as an exceedingly unwise thing to say.

Its a reminder that discrimination and prejudice is often just below the surface. A customer at a San Antonio restaurant left a racist note after he finished his meal at Di Frabo Ristorante Italiano. The restaurant lies in a wealthy area near the Dominion suburb. The customer left a note on his receipt: “The food was tasty and the service attentive. However, the owner is ‘Mexican.’ We will not return. America First.” The owner, Fernando Franco, is indeed from Mexico City. He came here to expand his brand across the border in Texas. He moved to San Antonio in 2012 on an investor E-12 visa.

He posted the note on Facebook and Twitter. It was retweeted some 12,000 times by Monday. His post received a strong reaction from Trump supporters. Mr. Franco is concerned for his safety and that of his family. He does not know how the customer knew he was Mexican, but he says he does look like a “typical” person from Mexico. But, the restaurant has also received much support in response to the note. One person commented, “God bless you, sir. Keep up the good work. That customer was an idiot and is setting a terrible example for his children.” See San Antonio Express News report.

It appears that the election of Donald Trump has brought out some of the crazies. One has to wonder how this person hopes to dine in San Antonio and avoid Mexican owners. We do not lack for restaurants with some connection to Mexicans or Mexican -Americans. I see a lot of hamburgers in one customer’s future….

Discrimination is not easy to prove. It starts with an adverse personnel action that does not make sense. Then, you ask the employer for its explanation. Does the it make sense? We see the same analysis when the judge reviews the administration’s travel ban. There is at least one federal statute that prohibits discrimination in regard to immigration policy. He appears to have viewed the travel ban as unconstitutional, because it favors one religion over another.

The judge, James Robart, asked why did the Trump administration implement the travel ban? When Michele Bennet, the government’s lawyer, explained it was to protect the U.S. Then the question becomes, how many terrorist acts were conducted by persons from these seven countries. Her answer was she did not know. Judge Robart replied there have been none. So, there is no support for the travel ban, added the judge.

That is not good. The government’s lawyer should have some reason planned to offer the judge, something more specific than protecting the public.

That sort of answer in court just kills your case. That constitutes a judicial admission that the proponent of the ban does not know why it instituted the travel ban. This is basic discrimination analysis. If the offered reason does not hold water, then the finder of fact can conclude the true motive was an improper motive, such as discriminatory bias. Michelle Bennet could not support her preferred reason with any facts. So, her explanation failed. That allowed the judge to conclude it was an improper motive.

And, it did not help that just as the judge was reviewing these motions and briefs. Kellyanne Conway, senior adviser to the President, said on MSNBC that one of the reasons they issued the travel ban was the “massacre” in Bowling Green, Kentucky. Only there was no such massacre in Bowling Green. Ms. Conway withdrew her explanation soon afterward. But, the damage is done. When asked, your explanation is simply false, that suggests the government did not know what its reason was.

The Washington judge, a George W. Bush appointee, rightly pointed out that it is a “bit of a reach” to say that Donald Trump’s anti-Moselm statement in June, 2015 would make him anti-Moslem. One comment is not enough. But, we wonder if the judge looked at Mr. Trump, the candidate’s many anti-Moslem statements. Even so, the judge wrote that there was “overwhelming amount” of evidence that the travel ban was directed at the Moslem religion, which is unconstitutional. See CBS news report.

The judge granted the motion to issue an order enjoining or preventing the use of the travel ban. And, the next day, of course, Pres. Trump tweeted about the order. He referred to Judge Robart as this “so-called” judge. The White Hosue issued a statement about the order referring to the judge’s order as “outrageous.” Soon after, the White House issued a new statement omitting the word “outrageous.” Judges are supposed to be above personal comments. but is is very unwise for any litigant to disparage the judge hearing your case. That is Litigation 101.

I have written here a few times that the life experiences a judge brings to the table are important. Pres. Trump’s nomination of Neil Gorsuch illustrates that maxim. Judge Gorsuch, prior to assuming his chair at the Tenth Circuit Court of Appeals represented big business, often opposing attempts to seek class action certification on behalf of workers. His decision in Hwang v. Kansas State University, 753 F.3d 1159 (10th Cir. 2014), is an unnecessarily harsh decision for American workers. Professor Hwang requested a six month leave of absence for recovery from her cancer treatment. She had already received one six month leave and needed another six months off. Kansas State said no, relying on an inflexible, supposedly “no-fault” leave policy.The judge speaks in broad terms that a six month leave could never work. Six months is so long that such a worker is simply not qualified for the job, said the conservative jurist. “It’s difficult to conceive how an employee’s absence for six months . . .  could be consistent with discharging the essential functions of most any job . . . ” Hwang, at 1162. I have written about so-called fixed leave policies here. That is poorly worded by any judge, when precision is called for.

Yes, it is unusual for any worker to miss work for six months and remain employed. Yet, it happens frequently for a wide variety of reasons at many employers. The critical question is whether a particular job function is a true job function. Is it a true job function that the worker return to work within a certain amount of time? See Holly v. Clarion Industries, LLC, 492 F.3d 1247 (11th Cir. 2007) (Applying a multi factor test to determine whether a claimed job function of arriving timely each day is truly required by the employer); Barber v. Nabors Drilling U.S.A., Inc. 130 F. 3d 702, 707 (5th Cir. 1997) (Rehabilitation Act) (whether a job function is truly required is fact intensive); Ralph v. Lucent Technologies, Inc., 135 F.3d 166 (1st Cir. 1998) (court upholds preliminary injunction requiring four-week trial return to part-time work for employee recovering from posttraumatic stress disorder); Carmona v. Southwest Airlines Co., 604 F.3d 848 (5th Cir. 2010) (although regular attendance may be an essential function of many jobs, plaintiff’s ability to meet employer’s “extremely lenient” attendance policy indicated that he was qualified). The key question is what happens if a person does not arrive timely, said the court in Holly. What is missing from Gorsuch’s analysis is the question, what would happen to the university if  Prof. Hwang was gone another six months?

Judge Gorsuch arrives at the critical question after spending some time disregarding the value of EEOC guidance and explaining why the denial of an accommodation actually benefits persons with disabilities. Hwang, at 1164. He then rejects Hwang’s suggestions that some faculty members receive sabbaticals of a year or longer. The reasoning is that if non-disabled persons are allowed extended leaves it would be discriminatory to not allow her an extended leave. The judge dismisses those examples as not sufficiently detailed. Hwang, at 1164. Are they tenured faculty, he asks? Are those professors on year-to-year contracts? But, those distinctions do not make a difference. The question is what would happen to the university employer if Prof. Hwang missed an additional six months. Would the business of the employer come to screeching halt? Would it offer some loss of income? What would happen? That the employer might allow extended leave for a year-to-year professor and not for a full tenured faculty member does not address that question. It does appear the judge was trying to reach a specific result.

The Judge could have simply said that under the facts of this case, Ms. Hwang has not shown that non-disabled workers are being treated differently. or, he could have said under the facts of this case, it appears the employer could not function if one professor took extended leave and that, therefore, the claimed job function of no extended leave is appropriate. Instead, he spoke much more broadly, suggesting a worker could never or almost never show that an employer can do without one worker for six months. He based that over broad assertion on nothing more than his personal knowledge of the working world.

Judge Gorsuch famously says a good judge is one who disagrees from time to time with his own decisions. He is right. A good judge follows precedent or the statute regardless of outcome. It just does not appear that he did so in his Hwang decision.

In another case, TransAm Trucking v. Admin. Review Board, Dept. of Labor, 833 F.3d 1206 (10th Cir. 2016), Judge Grouch dissented from a decision about a truck driver. The truck driver was stranded when his brakes froze in Illinois. The temperature was below zero at about 11 p.m. He asked his company what he should do. The tank was nearly out gas and he could not locate the fuel station required by his employer. The company told him to wait for the repair person. Then he noticed his heater was not functioning. Wishing a couple of hours, he noticed his was slurred. He fell asleep and woke up realizing after a few hours he could not feel his torso or his feet. He called the company again. The dispatcher told him to “hang in there.” After about 30 minutes of “hanging in there,” he unhitched the trailer. His supervisor told him to stay with the trailer. The boss kept telling the driver to turn on the heater and the driver kept telling his supervisor the heater was not working. The supervisor told him to drag the trailer with frozen brakes with him or stay with the trailer. That was his choice. The driver said he would go find some help and leave the trailer behind. TransAm fired him and he sued. The majority decision found he was fired because he wanted to comply with the Surface Transportation Assistance Act’s requirement to operate the truck safely.

Judge Gorsuch dissented. He admitted the employer’s decision was perhaps not wise or kind. (Gee, you think??) He pointed out that the statute protects someone who refuses to operate his vehicle out of safety concerns. But, in this situation, the driver was told to leave the trailer with the frozen brakes by the side of the road. He does admit after some protracted discussion about the meaning of “operate” that the statute is designed to protect the health and safety of the driver. But, the judge insists the statute applies to persons who “refuse to operate,” not to persons who actually operate the truck.

The judge’s focus on not operating the truck is curious. The last direction from his boss was to drive the truck with the broken trailer or stay with the trailer. His direction included both operating or not operating the truck. Yet, the judge focused on the direction to stay with the trailer by the side of the road – which meant not operating the truck. That focus does suggest the judge wanted to reach a certain result. He ignored the possibility that the driver was asked to operate the truck in an unsafe manner.

And, worse, the judge indicated the truck driver should have remained with the trailer in subzero conditions trying to to tell his boss the heater does not work. Simply to protect the cargo in the trailer. As a lawyer, I am gratified any judge is so committed to the precise wording of a statute. But, if you are a truck driver stuck out in the freezing temperatures at 11 at night, and your heater does not work, you do not really want to hear about “strict construction.” Your needs are more basic. And, I think, the rest of us do not want a judge who does not appreciate that distinction.

 

In a per curiam decision, the Fifth Circuit reversed summary judgment for the employer. In Stennett v. Tupelo Public School District, No. 13-60783 (5th Cir. 7/30/2015), Ms. Stennett argued she was more qualified than the persons chosen for various district jobs. Ms. Stennett had formerly worked for the Tupelo Public School District for some 30 years, gradually rising up through the ranks. She was laid off and told she could re-apply for various jobs. She did apply for three different positions for the 2010-11 school year. She was not even interviewed. She was then 64 years old. TPSD then re-hired several former TPSD employees, who were much younger. Ms. Stennett was the only former administrator who was not re-hired by TPSD. The next school year, the plaintiff applied for seven different positions with TPSD and was not hired. She was only interviewed for two of the positions. Yet, the district court granted summary judgment. The employer argued that the teachers who were chosen were more qualified.

The Fifth Circuit reversed summary judgment. It found that in looking at the evidence as a whole, she was much more qualified than the persons who were selected for the positions. On that basis, it found there was sufficient issue of material fact. It said a reasonable jury could conclude Ms. Stennett was more qualified than the persons who were chosen. She was not even interviewed for a position as an Administrative Intern. The court also noted that the employer relied on subjective qualifications that were not included in the job postings. One principal, for example, was looking for someone “to kind of complement him.” Another wanted someone who could provide instructions to the teachers. As the court mentioned, reliance on previously undisclosed job requirements itself can raise a genuine issue of material fact.

This is an unusual case. The court even noted that unlike most cases involving one particular job, Ms. Stennett was turned down for multiple positions. It is difficult to accuse several different persons of discrimination. People just do not generally believe discrimination can occur across different persons. But, Ms. Stennett was able to show undisclosed job requirements, and a lack of explanation by one principal regarding why he did not even interview Ms. Stennett. The plaintiff also showed that the Superintendent had promised to help her find a new position, but did nothing to help her. The superintendent himself did not interview the plaintiff for one position for which he was the hiring official. All this, said the court, amounted to genuine issue of material fact. See decision here. The decision is not published. But, it should be. It goes into substantial detail regarding how to analyze pretextual explanations.

 

Sometimes, employers who are sued for discrimination in turn file their own lawsuit against an employee. I wrote about Wayne Wright and Schlumberger doing this here and here. In Wayne Wright’s case, the employer sued the former employee after she filed with the EEOC. The law firm sued for a declaration that it was justified in firing her. Schlumberger sued its former employee saying she had downloaded confidential information. Schlumbereger was found  to have fabricated its story and was sanctioned.

But, some courts are not convinced that counter-lawsuits amount to retaliation. In Jones v. Frank Kent Motor Co., 2015 WL 4965798 (Tex.App. Ft. Worth 2015 (unpublished), the employee sued Kent Motor Co. The former employer then counter-sued claiming Mr. Jones had participated in a scheme to fraudulently increase bonuses for himself based on customer satisfaction surveys. Kent Motor Co. moved for partial summary judgment. The partial judgment was granted. Kent Motor Co. then non-suited its counter-claims. The court then reinstated Mr. Jones’ retaliation claim. Kent Motor Co. then reinstated its counter-claims. Mr. Jones then amended his Petition to claim the counter-claims were retaliation in themselves. The employer filed an exception to that allegation. The court granted that special exception and the retaliation claim based on the counter-claims as dismissed. After a bench trial, the court found in favor of the defendant.

On appeal, Plaintiff Jones argued that the district court erred in not recognizing a claim of retaliation based on a frivolous counter-claim. Kent Motor Co. had counter-claimed for civil theft, common law fraud, mail fraud, breach of fiduciary duty, and for money received. The court said there was “ample” evidence for Kent Motor Co.’s claims and would not find them to frivolous. Although, it did not explain what that evidence was. It mentioned that eight or nine surveys were sent to Mr. Jones’ home address. But, it did not explain if that meant they were fraudulent, or a common mistake, or what.

The court of appeals made the remarkable claim that in general, Texas does not recognize post-employment retaliation for filing counter-claims. It notes the decision in Burlington Northern &Santa Fe RR v. White, 548 U.S. 53 (2006), which expressly finds that any action can amount to retaliation so long as the action dissuades a reasonable person from filing or supporting a charge of discrimination. It instead relied on a Fifth Circuit case, Hernandez v. Crawford Bldg Material Co., 321 F.3d 528, 532-33 (5th Cir. 2003). Hernandez was almost certainly overruled by White. The Jones court claims three subsequent cases continue to cite Hernandez. But, it does not mention that those three cases cite Hernandez for holdings not related to whether post-termination retaliation can include counter-claims. See Jones, at note 3. See decision here.

This ruling appears to be result-oriented.

Lamar Austin spent six months in Iraq in 2006 as an Ammunition Specialist. At the end of 2016, the Army veteran was working for Salerno Protective Services in Concord, New Hampshire. He had worked previously at a series of jobs, Target, Pitco, a New Hampshire based company that makes fryers for fast food businesses. He was still in his 90 day probation period at Salerno when his wife went into labor on Dec. 30. He called in to work telling them about his wife’s labor. The labor went a second day. The boss warned him that he had to come to work by 8:00 a.m. the next day, or else. When Mr. Austin did not appear for work on New Year’s Day, he was fired. They texted him that he was terminated.

His story appeared in the Concord, New Hampshire newspaper. See Concord Monitor news report. In the story, he mentioned that he would hope to find work in the electrical trades. He had had bouts of unemployment in the past. The International Brotherhood of Electrical Workers saw the story and offered him a job. See Task and Purpose report here about Mr. Austin. It worked out for the young Army veteran, this time. But, I wonder if the Family Medical Leave Act applied to him. if Salerno had over 50 employees, he would have been protected. But, otherwise, yes, they could have fired him for trying to take care of his wife.