The Ninth Circuit has joined the Fourth Circuit in upholding the injunction against Pres. Trump’s travel ban. The unanimous three-judge decision found that of the six countries identified in the ban, none had ever posed a risk to the United States. I wrote about the Fourth Circuit’s recent decision here. The Ninth Circuit pointed to the same two travel bans. But, the Ninth Circuit did not devote as much attention to Pres. Trump’s statements about the travel bans. The opinion notes the complete lack of a link between the nationality of the six countries and any terrorist organization. The second travel ban points to no link between those persons seeking entry to this country and any unsettled conditions in those six countries. In short, the second travel ban did not provide any basis foe a complete ban on travel from those six countries. The court did point to a statement by Pres. Trump on June 5 in a tweet that he was concerned with the six countries themselves, not the 180 million persons living in those six countries. Slip opinion, p. 40 n.14.

The President tweeted: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” The court noted that Sean Spicer has said the President’s tweets represent official U.S. policy.

It also cited the 1965 statute, the immigration and Nationality Act of 1965, which prohibits discrimination against any one nationality in the country’s immigration policies. That act specifically provides that no preference on immigration will be based on “nationality.” See 8 U.S.C. Sec. 1157. See the decision in Hawaii v. Trump, No. 17-00050 (9th Cir. 6/12/2017) here.

And, of course, the next day, the President continued his assault on the judiciary by suggesting the Ninth Circuit was not concerned with national security. See Politico report about his tweet.

Against my better judgment, sometime back, I let the company representative talk to my client at a mediation. I am always interested in trying something different. The employer suggested the company rep talk directly to my client, the employee who had sued that company. Always interested in trying something different, I thought, “let’s give it a try.” The meeting did not last long. After just a few minutes, the representative started pointing out all the things the plaintiff should have done differently: she should have called the HR hotline, she should have done this, she should have done that. He was blaming the victim.

We see that blaming the victim thinking when former Director of the FBI explains a difficult meeting with Pres. Trump. The President asked him to let up on the Flynn investigation. Mike Flynn, he assured the Director, was a “good guy.” So, when Director Comey testified to the Senate last week, he was asked several times why he did not prevent that one-on-one meeting? Why didn’t he insist on someone staying in the room? Dir. Comey is a big, tough guy, after all.

Pres. Trump placed Director Comey in an untenable position. Mr. Comey did not arrange the meeting. He was not the supervisor. He was still new to working with a new president. Like my client, the victim of extended harassment, she was not the boss. She wanted to make a difficult relationship with her boss work. She did talk to HR, but did not call the HR hotline. She tried to resolve her problems with her boss as quietly as possible. She hoped to save her job, not end it. As did Director Comey.

The Director was honest. He said he was a coward. Maybe, he would handle it differently if there was another such meeting with the president. All victims of an overbearing boss try to make it work. And, all victims of an overbearing boss shrink from the challenge, at first.

 

A  request for accommodation need not mention any specific words, so long as the request puts the employer on notice that an accommodation is needed. Indeed, if an impairment is obvious, caselaw does not require the person to actually request the accommodation. See Brady v. Wal-Mart Stores, 531 F.3d 127, 135 (2d Cir.2008); McElwee v. Cnty. Of Orange, 700 F.3d 635, 642 (2d Cir. 2012). Generally, a doctor’s note or medical restriction of some sort suffices to serve as a request for an accommodation. See, e.g.Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 784 (6th Cir. 1998) (doctor’s note was sufficient, and court would infer that employer read it because it was located in plaintiff’s personnel file). So, the decision in Acker v. General Motors, No. 16-11174 (5th Cir. 4/10/2017) is surprising. That decision found that FMLA leave cannot constitute a request for an accommodation.

Lonny Acker worked for GM for over ten years. He was diagnosed with anemia, which causes blackouts, heart palpitations and severe fatigue. It can cause dizziness for prolonged periods. He requested and received intermittent FMLA leave. He was out on leave some 30 times over a six month time period. Five absences were considered unexcused. Mr. Acker testified he called in for those absences, but the phone records for his phone did not support that claim. He was suspended twice, once for 30 days. He then filed suit for the unpaid suspensions.

The employer moved for summary judgment. The lower court granted the motion for summary judgment, which the Fifth Circuit affirmed. The court insisted that Mr. Acker cannot create a factual issue based solely on his deposition testimony, since his testimony conflicted with the phone records. That is unfortunate. GM accused him not of not calling in but of not calling in to the right places. He allegedly called the absence phone line but did not call the Benefits & Services phone line, according to GM. Five of the 30 absences were in question. Plaintiff Acker insisted he called in correctly on those days. But, said, the court, his testimony was not enough to avoid summary judgment. So, the court affirmed summary judgment regarding his FMLA interference claim.

The employee then argued that his FMLA leave should constitute a request for an accommodation. He admitted that his FMLA request did not follow the GM procedure for seeking a request for an accommodation under the ADA and the state equivalent of the ADA. Mr. Acker argued that generally, a request for medical leave is generally also a request for an accommodation. No, said the court. The panel stated that FMLA and the ADA are two different statutes. But, of course, the two are different statutes.  That the two are different statutes wth different definitions does not explain why a request for medical leave does not serve as a request for an accommodation.

The court then added that “FMLA leave is not a reasonable accommodation under the ADA.” It cited Harville v. Texas A&M Univ., 833 F.Supp.2d 645, 661 (S,D.Tex. 2011), which cited Trevino v. United Parcel Service, No. 3:08-CV-889-B, 2009 WL 3423039 *12 (N.D. Tex. 10/23/2009). The court in Trevino does indeed find that a request for leave under the FMLA does not serve as a request for leave as an accommodation. But, it does not explain why. It does cite to Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001). But, the Navarro decision nowhere finds that in all cases a request for medical leave under the FMLA can never serve as a request for accommodation. Instead, it answered a different question, whether a daughter’s illness met the definition of disability under the FMLA. If the daughter’s diagnosis satisfied the definition of disability under the FMLA, then the mother was entitled to leave to care for her daughter. The question of whether a person asking for medical leave under the FMLA could be seen as also requesting leave as an accommodation was never addressed.

The salient question which the Fifth Circuit opinion did not address was whether the leave request under the FMLA satisfied the requirements for requesting leave under the ADA? The caselaw states in clear terms that no “magic” words are necessary to request leave as an accommodation. There appears to be no reason why a request for leave under the FMLA cannot serve as a request for leave as an accommodation, assuming the normal ADA factors are also satisfied. That is, so long as the employee places the employer on notice that the leave may apply to a qualified disability, then yes, a request for leave under the FMLA ought to serve as a request for leave as an accommodation. One can conclude from the court decisions, however, that judges prefer to keep legal matters tidy and not allow things to “slop” over from one statute to another……..

See the decision in Acker v. General Motors here.

 

 

Pres. Trump seriously undercuts his own case when he states publicly that the travel ban currently on appeal is a “watered down” version of the first travel ban. See CNN news report. That is a problem because the first travel ban made specific references to establishing a religion. The second ban removed that language. I wrote about the Fourth Circuit decision here. The DOJ lawyers tried to argue that the travel ban did not target Moslems. The Fourth Circuit were not impressed. They noted the President’s many public statement syndicating the travel ban did indeed target Moslems. The administration has also consistently claimed it was not a “travel ban.”

With his latest remarks, the President has once again undermined his own case.

The Trump administration has proposed huge cuts to the Social Security Disability payments. Known as SSDI, these payments go to persons who can no longer work. The Trump administration has proposed cuts of $72 billion over ten years. They have also proposed reducing the back pay period from 12 months to six to save more money. As one woman exclaimed, these benefits apply to persons with stage 4 cancer. Heck, I had a client once with a brain tumor. It was not operable. Yet, even he was initially denied benefits and had to appeal.

The White House Budget Director, Mick Mulvaney, claims the administration wants to “test” new approaches to labor force participation. But, he did not explain how the administration would screen out persons allegedly receiving benefits who do not deserve the benefits or how it would transition disabled persons to jobs. And, the Office of Management and Budget did not respond to a request for more information regarding how the adimistration plans to achieve these aims. During his briefing on the budget, Mr. Mulvaney claimed that SSDI applies to partial or short-term disability. It does not. On the contrary, it applies only to permanent disability that keeps a person from working abroad range of jobs.

I have worked on a few SSDI appeals. I can attest that SSDI is exceedingly difficult to obtain. Many persons apply for benefits who are severely incapacitated and yet, they are denied benefits. Unfortunately, the “Plan B” for most applicants is to apply again. Since, their impairment worsens, and the documentation of the condition usually improves. By the second or third attempt, if the person is still alive, they are generally more successful. But, during that lag time between the first application and the second, they are without health care. Persons already on the edge of survival have no medical care.

According to one agency, the U.S. process to achieve disabled status ranks highest among advanced countries, second only to South Korea. The Arc, a nonprofit that advocates for persons with disabilities, estimates some 946,000 persons currently receiving benefits would lose their benefits under this plan. See CBS News report.

It is one thing to lose benefits because the country claims to lacks resources. But, to lose benefits because an administration is confused about those benefits indicates a lack of competence. No one is getting rich off these benefits. The top benefit amount is about $14,000 per year. But, SSDI includes access to medicaid. So, recipients do receive medical care. For persons with the most serious health conditions, that is all about survival. There is something just not cool about taking benefits away from someone in Stage 4 cancer, so we can buy more tanks. I love tanks. But, that is just not the way to go.

Seeing the cranes lifting the Robert E. Lee monument in New Orleans is a little distressing for me. Not every county in Texas has a monument to the Confederate soldier, but many do. And, almost every county from Louisiana to Virginia has at least one monument to the Confederate soldier. The monuments do not commemorate the Confederacy. They commemorate the Confederate soldier. Right or wrong, the Confederate soldier believed he was defending his home and his country from Yankee invasion.

I am not an expert on Civil War history, but I have read a great many Civil War histories and many first person accounts by Southern participants. I have yet to read a diary or a letter home in which any Confederate soldier bemoaned the loss of slavery. Instead, they always talk about keeping their families safe and protecting their communities. When they express fear, their fear always concern family and community. Most soldiers did not fight to maintain slavery. By one account some 750,000 to 1 million Southerners and a few Northerners served in the Confederate military. I find it hard to believe that 750,000 souls from any group of Americans were any more racist than any other group of Americans living at the time. Yes, the South as a whole sought to maintain slavery. A great many Southerners lost lives and limbs in the four year conflict. Yet, they often persisted in their cause not for one battle, not for one month, not for one year, but for years.

It appears now in 2017 that the nation is moving toward a view that the Southerners who supported the Confederacy were racist. Certainly, those Southerners did advocate a system that enslaved others. Sitting here in 2017, we cannot survey citizens long deceased. But, we know from the most personal, intimate correspondence, letters and diaries, that few Southerners pledged their lives and the lives of their families to maintain a most cruel system.

My ancestor, of whom I am quite proud, 1LT George P. Crane, served on a committee to erect that Robert E. Lee monument that is now being removed from its 133 year old perch. 1LT Crane served all four years of the war. After the war, he retained his uniform and sword. He died 13 years after the war. Our family has no tradition of hating the Yankees or rejecting the outcome of the war. Many years ago, I asked an elderly aunt if we had any “bad” stories about the Civil War. She told me a long story that culminated in something she would do in the 1930’s in New York: if someone wanted to discuss the Civil War, she would invite them to her parent’s home in New Orleans for dinner. In 1869, just a few years after the end of the war, George’s mother, an Irish immigrant, created a river barge with the motto, “Union and peace” as a fund-raiser for an orphanage. Gen. P.G.T. Beauregard, whose statute was removed last week, attended that same fund-raiser. The Cranes did not whine about the outcome of the war.

The Cranes and their first cousins, the Agars, the Walshes, the Rice’s, all good Irish families, participated in the fabric of the city. All these families helped support various charities, generally for the Catholic Church, such as orphanages and churches. I researched another branch of my family, the Byrnes and Heaslips. They did not serve in the war. They did not support charities, at least not according to any available source. Based on my limited research, the people who served in the Civl War were the same persons who generally supported their community.

As I have researched my family’s history, I was mildly surprised to see that many red-blooded Southern males chose to avoid service in New Orleans and in various Louisiana parishes. Many, on the other hand, like 1LT Crane served all four years of the war. As a young man, George P. Crane visited the then ignored George Washington tomb. Yet, he also said Robert E. Lee was the greatest man this country ever produced.

I never knew George P. Crane. But, I have known family who knew family who knew him. I have read his diaries. I have researched his life and times in substantial detail. I tend to think he would be okay with the removal of the statute he helped erect. Because, I think, he would recognize that a substantial portion of the New Orleans population view that precious memorial as offensive. The Geo. P. Crane I feel I have come to know would not want to memorialize someone, no matter how admirable that person might be to some, who causes offense to so many others. It is just not the Southern way to offend others without a very good reason.

It is ironic that the New Orleans statues are removed just weeks and days before Memorial Day. Before there was a Memorial Day, there was Decoration Day, honored across the South. The Confederate widows and families would go decorate the graves of the fallen soldiers.

The Fourth Court of Appeals in Richmond, Virginia has upheld the lower court’s preliminary injunction regarding the Trump travel ban. This ruling applies to the second ban, not the first. The second ban was written better after the administration encountered so many problems with the first ban.

A Maryland district court issued the preliminary injunction. Thirteen judges heard the appeal, indicating it was an en banc ruling. At the hearing, many of the judges were skeptical that the ban did not have the desired effect of applying to Muslims. The lengthy decision refers to Pres. Trump’s comments about Islam. It discussed comments by administration officials. The court found the ban implicated the establishment of religion clause in the U.S. Constitution. That clause forbids the government from establishing any one particular religion.

Among the facts causing concern for the court were the first travel ban. The administration claims the first travel ban and the second were based on national security concerns. But, the alleged national security issues were not identified until after the administration issued the first travel ban. Too, one recent report by the Department of Homeland Security explicitly said that most terrorist acts were committed by persons who grew up in the U.S. The report mentioned that no one has died at the hands of any person from the six nations identified in the second travel ban in the last 40 years.

In a display of poor appellate strategy, DOJ argued that “unofficial” comments by a candidate should not be considered, especially those made during a campaign. The government lawyers made the specious argument that somehow when Candidate Trump became President Trump, his statements became less probative. But, citing to various caselaw involving candidates for election and other issues, the court noted that such statements are probative if closely related in time and if uttered by the same deciding official. The court added, “Just as the reasonable observer’s world is not made brand new with every morning, . . . nor are we able to awake without the vivid memory of these statements.” The court cited to McReary County v. ACLU, 545 U.S. 844, at 866 (2005). Quoting Jonathan Swift, Polite Conversation (Chiswick Press, 1892), the court added a comment that we cannot shut our eyes to such evidence when it starts us in the face and there are none so blind as those who cannot see. Slip opinion, at 66. Anytime a court reaches back to the 1800’s for a non-law related book, you know the court is annoyed. The court was annoyed with the administration’s disingenuous attempt to pretend Pres. Trump did not say the things the country knows he said.

[Note: It is very poor form to argue obvious fallacies. It is a technique likely to lead to defeat. If a normal litigator had tried to argue an obvious fallacy like Candidate and President Trump’s comments about Muslims, the court would come down very hard on us.]

The DOJ also argued that the second travel ban was neutral in its language. But, responded, the court, even a neutral executive order can discriminate. See the Fourth Circuit’s decision in International Refugee Project v. Trump, No. 17-1351 (5/25/2017) here. The Fourth Circuit was once one of the two most conservative courts in the country. It is perhaps more liberal now than it was. The court reached this result with a 10-3 vote. See CBS news report here.

There is another preliminary inunction working its way through the appellate process in the Ninth Circuit. A federal judge in Hawaii also issued an injunction against the travel ban.

When you look at a termination, you start with the reasons provided by the employer. In Donald Trump’s letter to former Director Comey, he starts by stating the Attorney General recommended that the Director be replaced. He thanks him for telling him three times that he was not the subject of the Russia investigation. See Trump’s letter here. Then,w e learn the Attorney General provided a memo to Pres. Trump upon which the President supposedly based his decision to terminate. That Memo describes Dir. Comey’s conducts regarding Hillary Clinton emails last Summer and last October.

Those two documents become the employer’s articulated response. Those are the reasons offered by the employer for the termination. As in any discrimination case, we then ask do those reasons make sense? In this case, not really. Pres. Trump has praised Dir. Comey many times for making public the investigation into Ms. Clinton’s emails. It strains credulity to believe he now sees those actions as performance deficiencies.

In employment cases, circumstantial science is admissible, If the employer has violated its normal procedures, that can help show an improper termination. Many, perhaps most cabinet level officials are asked to resign. It is actually quite rare to “fire” a cabinet level official. It is more common to ask an official to resign. Too, the fact that Mr. Comey was not notified prior to his dismissal arouses concern. If this was a performance based decision, why was he not notified first? If the employer truly wants improvement, why would it not notify the employee of performance issues? Why was a replacement not discussed and perhaps even vetted with Congress first?

So, the administration has not followed normal protocol in firing a cabinet level official in two ways, not personally discussing the termination with the official beforehand and not allowing him to resign. The White Hosue has not followed basic White House protocol. The employer could then argue that this is not a typical White House. There might be some merit to that argument. But, few employers are willing to state publicly that it violated protocol because it is not competent. Most employers just will not go there.

Then, we come to the mention of the Russia investigation in the letter actually firing Mr. Comey. That suggests the true reason was the Russian investigation. So, in the end, this would be a case in which the judge is not likely to dismiss or grant a motion for summary judgment. So, yes, this would be a case which most plaintiff lawyers would accept.

 

Sexual harassment was so common at Fox News that it often went unreported. See Alisyn Camerota’s account. She worked for Fox News for years and now works for CNN. So, she has a platform to speak freely. When she was still new at Fox News, Roger Ailes offered to help her move up in the ranks. But, she would first have to work very closely with him, away from the office, at a hotel. She understood his meaning very well. She describes him today as at times, charming and charismatic. He could also be a bully. She declined his offer. At the time, a single woman, she feared this was the end of her career.

In ten years, she rose as far as being the weekend anchor for Fox News. She left Fox in 2014 for CNN. She told no one about the Fox News CEO’s “offer.” She was embarrassed by the incident. Most women do not report these incidents. Toward the end of her time at Fox, she refused to go into Roger Ailes’ office.

Look at the column by Elaine Ayala in the San Antonio Express News. See that column here. Ms. Ayala recounts the stories of six different women in the San Antonio area, all of whom experienced blatant sexual harassment. Like Ms. Camerota, most chose not to report the incidents. One woman, working at gym, reported harassment by a patron and was told by her male manager to smile more.

in a survey by Cosmopolitan magazine, they found 75% of 2000 working women had been harassed due to their gender. In another study by the University of Colorado, researchers found that women were too afraid to complain. See CBS News report. Yes, sexual harassment is too common.

The Fifth Circuit reversed summary judgment in another case recently. In Caldwell v. KHOU-TV Company, Inc., No. 16-20408 (5th Cir. 3/6/2017), the court addressed ADA and FMLA issues. Gerald Caldwell worked at KHOU TV as a video editor. Due to a childhood disease, he needed the aid of crutches for walking. Mr. Caldwell notified his supervisor he would need time off for upcoming surgeries.

About that time the parent company, Gannett Company notified KHOU that the station needed to reduce their work force. One worker was chosen for lay-off based on documented poor work performance. That editor was given prior warning about his performance. Mr. Caldwell received no such warning. Mr. Caldwell was also chosen. The supervisors initially said he was chosen because he had expressed an unwillingness to work in EDR. Later, in its motion for summary judgment, the employer argued that Mr. Caldwell had not taken the initiative to spend as much time in EDR as the other editors.

Mr. Caldwell filed suit based on the ADA and the FMLA. The employer moved for summary judgment, which was granted. On appeal, the Fifth Circuit reversed the summary judgment. The court found there was substantial evidence of pretext. The employer provided different reasons for selecting Mr. Caldwell for the RIF. The employer first claimed Mr. Caldwell shirked his responsibilities by refusing to do the EDR work he had been assigned. The employer provided this expansion in answer to interrogatories and in a letter to Plaintiff’s attorney. But, in a letter to the EEOC, the employer said he was terminated not because he avoided work, but because of his inability and unwillingness to adjust to new technologies. And, before the district court, KHOU argued that Caldwell did not take the initiative to spend as much time in EDR as other editors. And, contrary to all this evidence, the direct supervisor, Philip Bruce, said “absolutely” there were no job performance issues with Mr. Caldwell. These statements, said the higher court, indicated inconsistent explanations, so as to show genuine issue of material fact.

The lower court had looked at the same evidence and discounted it. The district judge found that many of these statements were not made by Mr. Bruce, the direct supervisor. But, the court of appeals noted that no precedent required that all explanations emanate from the direct supervisor. On the contrary, many cases cite articulated reasons from the employer as a whole. The court cited Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408 412-13 and n. 11 (5th Cir. 2007) for the proposition that simply stated, an employer’s inconsistent explanations for its employment decisions at different times are probative of whether those statements are pretextual and that cases do consider statements by the employer’s representatives before the EEOC, before the district court and the Fifth Circuit. And, that makes sense. The employer sues the “employer,” after all, not individual supervisors.

The higher court noted that the employer’s explanation had evolved from insubordination to a lack of initiative. Mr. Caldwell himself denied ever expressing a preference for or against EDR. The plaintiff’s supervisors also confirmed they did not recall the plaintiff ever expressing a preference against working in EDR. The employee also testified, and the supervisors confirmed, that it was ultimately the employer’s decision to limit his time in EDR, suggesting the employer was not truthful.

[Note: It is always unwise to try to mislead the court. Judges remember that. It will affect the rest of their decisions. That the supervisors apparently disagreed with the company’s  representative seriously undermines any case.]

The higher court also discussed the lack of opportunities for the disabled worker. The court compared not affording employment opportunities to black workers to not providing opportunities to Mr. Caldwell. The plaintiff had argued that the employer chose not to schedule him time in EDR. The lower court had found that he was not scheduled more time in EDR due to his disability. The Fifth Circuit found that lack of opportunity comparable to a case, Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990), in which an African-American woman was not given the chance to improve her work performance, because the employer did not counsel her about performance problems. In Caldwell, the court said this situation was similar because KHOU did not give Mr. Caldwell time to work in EDR and improve his technical abilities. This lack of time also indicated that the employer did not counsel Mr. Caldwell and warn him that he should spend more time in EDR.

The higher court also reversed summary judgment regarding Plaintiff’s FMLA claim. See the decision here.

This is the last in a series of cases dating back some three years in which the Fifth Circuit has reversed summary judgment. The most common problem in that line of cases is the failure of the district court to construe facts in favor of the plaintiff. We hope district judges will make more of an effort to construe facts in favor of the non-movant, as they should.