Donald Trump and Chef Jose Andres have settled Mr. Trump’s lawsuit. I previously wrote about this lawsuit here and here. Then Candidate Trump sued Chef Andres when he refused to follow through on a commitment to open a restaurant in Mr. Trump’s new hotel in Washington, D.C. Chef Andres, a celbrity in his own right, felt that Candidate Trump’s comments in 2015 about Mexican immigrants caused harm to his business and made opening the restaurant more difficult. So, he refused to follow through on a commitment to open a restaurant. See CBS news report.

The Chef offered to settle a few times before this. It appears the President finally accepted his offer.

There are various constructs which serve to limit access to juries for discrimination victims. One of those constructs is the so-called “same actor inference.” The same actor inference provides that if the same manager who hired an employee later fires that same employee, then it is unlikely that that manager was motived by discriminatory animus. The reasoning is that if she hired you knowing you were Hispanic, then it is unlikely she would fire you because you are Hispanic. But, there are limitations to this inference. See, e.g., Soublet v. Louisiana Tax Commission, 766 F.Supp.2d 723, 729 (E.D. La. 2011) (When considering a motion for summary judgment, the same actor inference does not apply when 1) the context involves a failure to promote. Since, a person might be willing to hire the member of a minority for an entry level job but not for promotion, and 2) issue of fact exists whether the manager was responsible for both hiring and promotion); Feingold v. NY, 366 F.3d 138, 155 (2d Cir. 2004) (if “changes in circumstances during the course” of employment, the defense “would not necessarily apply”); Carlton v. Mystic Transport’n, 202 F.3d 129 (2d Cir. 2000) (“the enthusiasm with which the actor hired [plaintiff] … may have waned”). The same actor inference might make sense when the time between hiring and firing is relatively short. But, if years pass between the hiring and firing decisions, it loses considerable utility.

In reality, we never know to any degree of certainty what motivates a manager when someone is fired. An inference is just that, an inference. The Western Districtof Texas recognized the limitations of the same actor inference in Jones v. R.G. Barry Corp., No. 16-CV-154 (W.D.Tex. 3/17/2017). In that case a long-time employee, Sandra Jones, was let go when her position was eliminated in 2015. She was terminated by Mr. Evans. Mr. Evans had promoted the Plaintiff previously in 2007. Ms. Jones was retained by the employer in 2012 when several other members of her department were laid off that year. The employer suggested, but did not directly claim that Mr. Evans had some role in the decision to retain Plaintiff in 2012. Ms. Evans sued for discrimination based on her gender and her age.

The court did not buy the employer’s argument. It noted that the same actor inference is just that, an inference. It can be rebutted. It noted that the employee argued that other reasons may have played a role in the decision to retain the Plaintiff in 2012. She was the only person with knowledge of the distribution center at the time. If an inference should arise from Ms. Jones’ promotion in 2007, then the court would first need to look at who else may have been available for that promotion in 2007. The court found this was sufficient to rebut the inference. It noted correctly that it cannot apply the same actor inference without assessing the credibility of witnesses. Since this was a motion for summary judgment, any inference should be construed in favor of the non-movant, the Plaintiff. See the decision here.

These so-called doctrines, “same actor inference,” “stray remarks doctrine,” honest belief doctrine,” and others are constructed to help us understand the evidence. In reality, they often serve as a bar to a jury trial.  They should never become more important than the evidence itself. When a court reviews a motion for summary judgment, it should keep in mind that these are all just inferences. As inferences, they are of limited utility in deciding summary judgment.

 

It is unfortunate that the President of the United States would defend someone who has settled five separate claims of sexual harassment. Pres. Trump defended Bill O’Reilly yesterday, saying he was a good person. Pres. Trump does not think Mr. O’Reilly did anything wrong. See CBS news report. And, just a year ago, then Candidate Trump also defended Roger Ailes against his accusers.

I think that is the problem. Bill O’Reilly, and perhaps Roger Ailes, and perhaps Donald Trump, are all “good” persons until they are near women. Sexual harassment, racial harassment, all the forms of discrimination involve a perpetrator who is often considered to be a “good” person, except by the person s/he has harassed. Discrimination is by definition complicated.

The boys at Fox News just cannot seem to stay out of trouble. Another female employee has filed suit against Fox News and Roger Ailes. Julie Roginsky filed suit alleging sexual discrimination against the network. She claims that Roger Ailes offered her a regular spot on the show, “The Five,” in return for a sexual relationship. She refused. According to her suit, her career was then sabotaged. She also says the network retaliated against her when she she would not publicly defend Mr. Ailes last year when Gretchen Carlson filed her sexual discrimination lawsuit against the former executive.

20th Century Fox settled Gretchen Carlson’s claims for $20 million last year. The company also settled claims made by Laurie Dhue and Juliet Huddy, who had accused Bill O’Reilly of sexual harassment, for over $1 million each. It paid $2.5 million to Tamara Holder to resolve her allegations against Fox News Vice-President Fransisco Cortes. And, the lawsuit filed last year by Andrea Tantaros is still ongoing. I previously wrote about Ms. Tantaso’ lawsuit here. See Politico news report here.

According to the lawsuit, Mr. Ailes advised the young employee to get involved with older, married, conservative men because they may stray but they are loyal and will always come back. During meetings, he would always insist on a kiss hello from Ms. Roginsky. See CNN news report.

In the meantime, two brands, Mercedes and Hyundai, have pulled their ads from the Bill O’Reilly show. See CNN news report.

Bill O’Reilly, the well-known political commentator on Fox News, has cost Fox News millions of dollars. Fox News has settled five complaints from five different women for sexual harassment. All five of those complaints involved Bill O’Reilly. Mr. O’Reilly settled a case himself in 2004 with Andrea Mackris, a former producer, for $9 million. I previously wrote about Bill O’Reilly and Fox News here. Fox News just recently settled one major lawsuit involving Roger Ailes. Those allegations also involved Mr. O’Reilly. See CNN News report.

Of course, Mr. O’Reilly threatened legal action in reaction to this news story, initially published by the New York Times. Fox News is now being run by Rupert Murdoch’s sons. Apparently, Fox News is making efforts to make the work place more friendly to women. They have held trainingon sexual harassment. Let us hope so. As the news report mentions, besides the five cases resulting in settlement, there were other reports of sexual harassment against the Fox News star. If there is one known complaint, there are surely two or three others in which the victim chose not to complain.

Too, these settlements cost the employer millions of dollars. Bill O’Reilly must have been a real producer for Fox News to accept this level of liability.

Mary Ellen Johnson worked at Southwest Research Institute for many years before she was fired. Some time before her termination, she complained about possible discrimination against her due to her gender. She filed an internal complaint with SWRI in June, 2012. She then filed a complaint with the EEOC on Aug. 3, 2012. Several days later, she was fired on Aug. 15, 2012. She was told the reason was failure to observe timekeeping requirements. She had a security clearance in her former position. She lost the clearance when she was fired. The timing of the termination alone suggests the employer was motivated by reprisal because she went to the EEOC.

The employer moved to dismiss the retaliation claim. It claimed she was fired because she lost her security clearance and only because she lost her clearance. If any employer is not motivated by retaliatory intent, but by something neutral, then she could not claim reprisal. When reviewing a motion to dismiss, a judge must look at what the plaintiff says she can show. To dismiss a lawsuit, the judge would have to find there was no set of facts that could support her claim. The employer must show “beyond doubt” that she cannot prove a plausible fact scenario for her retaliation claim.

The court reviewed the papers concerning her termination. It found that the documents were not clear. Neither the memo recommending dismissal or the email concurring in termination mentioned any loss of a security clearance. The letter to the Plaintiff notifying her of her termination does mention a lack of “trustworthiness.” That term matches terminology used for loss of a security clearance. But, said the court, it would be a stretch to conclude from the use of that term that her termination was based on the loss of access to classified material. The letter itself did not otherwise mention the loss of her security clearance.

She might have lost her clearance because she was fired. Or, she might have been fired immediately after losing her clearance. The clearance issue could have come before the termination, or after. The records submitted by the employer did not show one way or the other which came first.

Because the documents are not clear, the motion should be denied. A fact-finder, a jury, should determine what happened. See Johnson v. Southwest Research Institute, No. 15-297-FB (W.D. Tex. 9/28/2016). And, seriously, if the employer makes a claim regarding why someone was fired, but it cannot produce better evidence than the use of one term, with no apparent connection to the decision-making process, then it is either rather very unorganized or it is trying to mis-lead the court. Either way, the employer loses some credibility with the court when it makes an argument based on fairly weak evidence.

You know things are serious when advocacy groups and non-profits as diverse as the Christopher & Dana Reeve Foundation, National Disability Rights Network, the NAACP, and the National Association of Social Workers all oppose a bill now pending in Congress. The ADA Education and Reform Act of 2017, sponsored principally by Rep. Ted Poe, (R-Tex), would require a person with a disability who encounters an obstacle to allow 180 days for a business owner or government building to even start to fix an obstacle. Under this proposed bill, if a man in a wheelchair cannot get into a local restaurant because there is no ramp, he must wait 60 days before the restaurant owner to respond to his complaint and then another 120 days before the owner has a legal duty to start to fix the ramp. As if there are not enough delays already. When I worked at Disability Rights of Texas, we had several of these sorts of lawsuits at any given time. Every business owner had plenty of time to correct the access issue. DR Texas would file suit only if the business owner had plenty of time to comply and just refused.

The reality is that the access portion of the ADA has little teeth. A successful plaintiff can win nothing more than fixing the problem and attorney’s fees. Rep. Poe just gained a few new co-sponsors, making passage more likely.

Congressman Poe claims there are abusive lawsuits filed by persons with disabilities. It is true that some persons with disabilities have filed many access lawsuits across the country. But, the Americans with Disabilities Act has been in force since 1990. Business owners have had ample time to comply. If some business still has a doorway that is too narrow, it is because it has chosen to ignore the ADA. And, any such lawsuit results only in improved access. The plaintiffs in access lawsuits cannot sue for damages. There is no provision for damages under the access provisions (known as Title III) of the ADA. Plaintiffs can only sue for fixing the problem and attorney’s fees. See letter opposing the bill by the Consortium for Citizens with Disabilities here.

The Texas Whistleblower Law has many limitations. One of those limits includes the requirement that the whistleblower must report the alleged violation of law to a law enforcement authority. For most laws, the local police force would be the appropriate authority. But, what about those many obscure white collar type crimes? We see one such violation in Office of the Attorney General v. Weatherspoon, 472 S.W.3d 280 (Tex. 2015). In this case, an Assistant AG, Ginger Weatherspoon says she was asked to submit a false affidavit regarding her dealings with a judge. She reported the unlawful request to her superiors within the Child Support Enforcement Division. She was later fired.

Ms. Weatherspoon filed suit under the Texas Whistleblower Statute. Tex.Govt.C. §554.0035. The OAG moved for a plea to the jurisdiction, which is like a motion for summary judgment. The trial court denied the motion. The Court of Appeals affirmed the denial. The Texas Supreme Court found in favor of the employer and reversed the denial of the plea. The main issue was other she reported the violation to the correct authority. She reported to the chief of her division, which in turn was required to make a report to the Office of Special Investigations. OSI was apparently the correct law enforcement agency. But, the Texas Supreme Court said that was not enough. Since, said the court, the division chief was not vested with authority to speak for the OSI or to conduct her own investigation.

The employee pointed out that if reporting to her division chief does not suffice, then OAG employees have no place to report. Since, they are subject to termination if they contact any law enforcement authority directly. The court essentially replied, “too bad.” The Whistleblower Act protects employees from reprisal, said the court. That should be dissuade employers from reprisal. See decision here.

The problem with that analysis is that the Texas Whistleblower statute is supposed to protect persons from reprisal, not lead them toward reprisal. The Court has taken the unrealistic view that employees should be willing to undergo financial hardship or worse in order to protect Texas citizens from law breakers. No other employer would have such a rule, that contacting law enforcement authorities directly is cause for dismissal. No one should have to risk her/her job to protect the public. The decision does not explain the basis for a rule prohibiting direct contact with any law enforcement agencies. We can only assume it has some nondiscriminatory purpose. But, if it has such a legitimate purpose, OAG employees should not be required to violate internal rules in order to comply with the Texas Whistleblower statute.

 

If a female employee is assaulted and harassed, can she sue for assault or for sexual discrimination or both? According to the Waffle House, Inc. v. Wiliams, 313 S.W.3d 796 (Tex. 2010) decision, she would have to sue under the Texas Commission for Human Rights Act for discrimination. Limiting the female employee to sex discrimination when her damages might be far worse than allowed under the TCHRA severely limits her. I wrote about that decision here. I also wrote about the pending appeal in the case of B.C. v. Steak ‘n Shake, No. 15-0404 (Tex. 2017). As the B.C. decision illustrates, what happens when the sex discrimination is just one single violent act? In that situation, the female employee could not make out a case for sex discrimination. Her case would be dismissed. A single act of harassment by a co-worker will almost never suffice to establish a claim for sexual harassment by a co-worker.

Fortunately, the Texas Supreme Court recognized that conundrum. In perhaps the only employee friendly decision from the Texas Supreme Court since before 2000, it found that the basis of B.C.’s claim is assault, not harassment. The assault was not tied to any promotion or threat of termination. There was nothing about the assault that suggests her supervisor had the intent to interfere with her job performance. In short, said the court, nothing about this situation indicated that the employer might be liable for tolerating a hostile work environment. That is an important distinction. That means the employee does not need to show the employer knew or should have known the supervisor was capable of sexual violence. The employer can still avoid liability for other reasons. But, it cannot avoid liability by showing it took steps to prevent sex harassment.

The Supreme Court found that the Legislature in passing the TCHRA, intended to create a scheme to combat workplace harassment, not abrogate common law assault. But, the court did not really reconcile its decision in Steak ‘n Shake with Waffle House. In Waffle House, it said flatly that common law tort claims like negligent supervision were incorporated by the Legislature into the TCHRA. See Waffle House decision here. The two opinions can probably not be reconciled. As  the dissent to Waffle House points out, common law claims are not pre-empted unless clearly so stated in the statute. The TCHRA does not specifically pre-empt any common law tort claim. Even so, we can all agree that assault claims are not preempted by the TCHRA. See the B.C. v.Steak ‘n Shake decision here.

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 assertion 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.

Sen. Franken asked Judge Gorsuch about this dissent. He mentioned that the judge described the temperature as “cold.” In fact, the temperature was 14 degrees below zero. The description suggests the judge was trying to reach a desired result.

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.

Sen. Franken says the dissent advocated an “absurd” result, that the driver should have asked his life to protect the cargo. Yes, that is absurd. See CNN news report.