Another local manager has sued Wells Fargo saying she was fired due to the oppressive and fraudulent sales tactics employed by the company. Rachael DeBoy of Cibolo sued the company accusing them of fraud, breach of contract, quantum meruit (i.e., alleging the company did not pay what was owed), and for wrongful termination. In the Petition filed under DeBoy v. Wells Fargo Bank, N.A., No. 2017-CI-12897, the former Branch Manager accuses the bank of imposing stringent sales quotas starting in 2011. Ms. DeBoy complained about the unethical sales tactics. She said these sales tactics harmed customers. She complained to managers, Human Resources and to the Ethics phone line. She received no response. But, her better sales persons were fired or transferred. She was set up to fail, she alleges.

She went out on maternity leave and was replaced by a temporary manager who reinforced the bank’s unethical sales practices. Then, upon her return to work, she received a poor job evaluation with no warning and no job coaching.She had formerly been a stellar employee.

She resigned to avid a termination. Her replacement received a raise and a promotion. I previously wrote about the first lawsuit by Alex Leal against Wells Fargo here. Lawsuits based on “wrongful termination” in Texas will not go far. There is no such cause pf action in Texas. Her other causes of action are perhaps problematic. The Plaintiff alleges she was denied bonuses and raises due to the unethical practices. But, given the bad publicity about Wells Fargo and its shady practices, she may succeed. See San Antonio Express News report here.

Some folks refer to the President as the Twitter-in-Chief. Well, he should also be considered as the Litigator-in-Chief. He tossed out provocative statements at campaign rallies like they were candy. At one rally in Louisville, he exhorted his supporters to rough up a couple of protesters. He also added, as the protesters were being forced to leave, “Don’t hurt ’em. Don’t hurt ’em.” Now, those protesters have sued the President and his campaign for encouraging violence. The U.S. District Judge hearing the matter denied a motion to dismiss a few months ago. I previously wrote about this lawsuit here.

Pres. Trump’s attorneys offered creative, if weak arguments, as his lawyers often do. They argued then Candidate Trump was engaging in his First Amendment rights. It was free speech, they argued. The lawyers also argued that Mr. Trump did not encourage violence. He did, after all, encourage the supporters not to harm the protesters. The judge rejected those arguments when he denied the motion to dismiss.

Now, the issue before the court is whether Mr. Trump should appear for a deposition. The President’s lawyers claim his words are clear and do not need explanation. But, in arguing his words have clear meaning, they make a deposition very likely. His words do not have clear meaning. In one passage, he exhorted violence. In a separate set of words he asked them not to harm the protesters. No, his meaning was not clear. In any normal lawsuit, absolutely, Mr. Trump would be deposed. The Litigator-in-Chief has dug his hole. He said things he should not have said, at a time when he should not have said them. People like that often end up in a lawsuit. That is partly why he spent over $500,000 in legal fees in the second quarter of 2017 and almost $200,000 in the first quarter of the year. See Politico news report.

When a person asks for an accommodation, s/he must be specific. A general request to “reduce stress” at the work place will not suffice. In Murray v. Warren Pumps, 821 F.3d 77 (1st Cir. 2016), the plaintiff had a bad back. His work restrictions included not lifting anything over 10 pounds and not sitting, walking or standing too long. The employer and the employee agreed that the employer would not ask him to violate these restrictions and Mr. Murray would monitor the restrictions. The plaintiff believed the employer asked him to violate the work restrictions. Sometimes, he would complain. Sometimes, he would not.

The plaintiff’s job was monitoring work place safety. He had some issues with the employer’s observance work safety. He also expressed dissatisfaction with the things they had asked him to do. He complained that sometimes, he was asked to perform physical activities that violated his work restrictions. The company met with Mr. Murray and suggested he was not happy there. The employer offered him a severance package. He refused to resign and was fired.

The employee filed suit. He argued among other things that the employer failed to accommodate him. The court dismissed Mr. Murray’s claim that he sought breaks “from time to time” as an accommodation. The court found the request to be vague. And, the employee did not explain in what way the employer refused those requests for accommodation.The employee also pointed to an incident when his supervisor asked him to help paint. When the plaintiff said he could not, the supervisor walked away, apparently not happy. But, acknowledged the employee, he was not forced to do the painting and he did in fact do the painting. The employee also discussed a time when the supervisor told him to perform some wiring. Murray said he could not physically do that. The supervisor told him to “get it done somehow.” The employee found someone to perform the wiring. Mr. Murray did not do the wiring himself. Mr. Murray carried the toolbox, which did weigh more than ten pounds.

Another time, the supervisor asked him to oversee a project that involved a lot of walking. Murray acknowledged that he did not complain about this request, and he did not inform the supervisor that this request would require him to violate his work restrictions. Mr. Murray also did seek help from anyone. The supervisor had left for the day. But, Mr. Murray did not seek out any other supervisor for help. In responding to a motion for summary judgment, the plaintiff said he did not have to show he was actually required to violate his work restrictions. It was enough, he argued, that he was “deliberately requested” to violate his work restrictions.

The court found these incidents did not amount to failure to accommodate. The worker, said the court, must alert the employer that its request would require him to violate his medical restrictions. The employer has no duty to “divine” the requested accommodation when the employee makes a “mundane” request for change at the work place. The court felt that the employee understood he was to monitor the requests and let the employer know when something might exceed his capabilities. The employer did provide many accommodations, added the court.

The court makes a good point. In some circumstances, it will not be clear to the employer that a requested action might stress the employee’s work restrictions. Some supervisors will simply forget. They have many things to consider, other than one employee’s physical limitations. It seems to me that often when a situation is confusing, the courts will defer to the employer, especially where, as here, the employer did clearly provide some accommodations. See the decision here.

When you ask for an accommodation, you need to be careful what you ask for. Because, you just might get it. That is an old saying and it applies to the decision in Dillard v. City of Austin, 837 F.3d 557 (5th Cir. 2016). Derrick Dillard worked for the City of Austin. He was a laborer and field supervisor until he sustained injuries in a car wreck. He could not perform physical labor any longer. After extended leave, he was offered a position as an Administrative Assistant. He was stunned at first, because he did not know how to do “no administrative work.” He did not meet the stated qualifications for the job, three years experience as an Administrative Assistant. So, the city provided him with on-the-job training and let him shadow another Administrative Assistant. He was encouraged to complete additional training, but he never did. His typing skills did not improve. Instead of training on the computer, he was observed to be surfing the internet and playing games. He arrived at work late and left early. He spent some of his time looking for a new job.

The employee started the Administrative Assistant job in April, 2012. By September, he was given a bad performance evaluation. His supervisor testified that he lacked skills, but he also seemed unwilling to improve his skills. Mr. Dillard asked to be moved to a different job and claimed he was not given enough work to do. He admitted he could not complete his one typing assignment because he could not type fast enough. His physical abilities were improving. But, the process toward termination proceeded. At a pre-termination meeting, he admitted the allegations against him were accurate. He was not apologetic for his behavior. He said he was trying to find a new job within the City.

In late October, he was fired. Plaintiff Dillard filed suit saying the city failed to accommodate him. The district court granted summary judgment. The higher court noted that if an accommodation is not working, then the employee may ask for a new accommodation. That is part of the interactive process. The plaintiff argued that the City failed to cooperate when it became clear the new job was not working out. He argued that as his capacity improved, the City should have considered him for jobs that were open. But, the Fifth Circuit was not impressed. The interactive process is a two-way street. It requires that both parties work together in good faith. When they gave him the new job, the ball was in his court. He should have worked in good faith to make it work. The misconduct indicated the was not trying in good faith to succeed in this new position. There was also evidence of making personal phone calls, napping at work, lying about his attendance, etc. This case was now less about the interactive process and more about mis-conduct.

The higher court found no evidence that the City failed to act in good faith, since the employee did not show a desire to try and make the new position work. The court affirmed the grant of summary judgment. Yes, be careful what you ask for, because you just might get it. See the decision here.

Success rates for plaintiffs in federal court have dropped dramatically from the 1980’s. In a study by two University of Connecticut law professors, they reported a success rate of 70% for plaintiffs in federal court in the mid 1980’s. The study looked at adjudicated civil cases of all types. That rate dropped to about 35% by 1995 and stayed in that range through 2009. The professors cannot explain the large drop. They did note that federal government suits for overpayment of veterans benefits mostly disappeared from the docket by 2009 and those suits were generally sure wins for the plaintiff. Otherwise, they could discern no pattern that might explain the large drop. The researchers discounted some possible theories, that poorer cases were being filed for the time period; that more weak sorts of lawsuits were being filed, such as prisoner cases; and that rise in dispositive motions caused more losses for the plaintiffs. The professors explained that if the dispositive motion theory caused this effect, then the plaintiff success rate should increase. Since, winning at summary judgment would be considered an adjudicated victory for the plaintiff.

The professors theorize that the success rate might relate to certain federal judges. That theory is problematical itself. It would be hard to envision a scenario in which federal judges become hostile to plaintiffs for ten years and then relent. But, even so, there is no way at present to determine if what might have caused such a large drop. See ABA Bar Journal report here. The paper, “The Curious Incident of the Falling Win Rate,” is available here.

A female passenger of Lyft has sued the ride-hailing business here in San Antonio. She alleges she was raped and sexually assaulted by a driver late one night. The woman was intoxicated. She blacked out a few times. She asked to pull over to vomit. When she got back in the car, she woke to find the male driver assaulting her. She started punching him. The driver took her home. When she got home, she texted a friend the license plate number belonging to Refugio Campos. See San Antonio Express News report.

The passenger filed a report with the San Antonio Police Department. The suit has been filed in state district court. It will be a problematical lawsuit. Lyft and Uber claim their drivers are independent contractors. So, suing Lyft itself will be difficult.

The trial for the “toughest sheriff” has concluded. I previously wrote about that trial here. The “toughest sheriff” has chosen a strange defense. As his trial reached its conclusion, his attorney argued that the “toughest sheriff” did not have a good lawyer. The lawyer did not explain the judge’s ruling to him, for eighteen months. The “toughest sheriff” did not know he could no longer enforce a ban on unlawful immigration. The defense presented some deputies who testified no one told them they could not enforce the federal ban on unlawful immigration.

The lawyer argued that the judge’s order was ambiguous, hard to understand and it was politically motivated. Its a problematical defense. One of his former lawyers testified, but apparently said little more than that Judge Snow’s order had some ambiguity in it. I cannot imagine any lawyer would testify s/he did not explain to the client what the judge wanted them to do, especially in a high profile case like Sheriff Arpaio. Too, the sheriff was and still is an experienced political operative. He has successful run for office for some 30 years. One would assume he can read a judge’s order and understand it. If he does not understand it, he knows how to seek clarification.

This is a high risk defense. It stretches the limits of credibility. The “toughest sheriff” did not testify. Really, he is the best person to advance a defense based on what he understood or did not understand. I suppose he was not tough enough for court. See CNN news report here.

In litigation, social media has become a very hot issue. Many parties think they can obtain that final, critical piece of evidence from social media. One example is Facebook. Many employers involved in a lawsuit request the employee’s Facebook posts for a certain time period. The rationale is that a victim of discrimination cannot legitimately claim to be depressed if he posts pictures of himself drinking a cool one at the local pub. Or, some defendants will argue, if the plaintiff posts something about being upset with his family or pet dog, then the employer can use that post to argue he was upset about things other than being fired.

Isiah Lester was involved in a  wreck when a truck owned by Allied Concrete Company swerved into his lane and inflicted multiple injuries to him. The collision killed his wife. Mr. Lester sued. Trial was held and Isiah Lester was awarded $6.2 million. His wife’s parents were awarded money, as well. Sometime after the collision but before trial, Mr. Lester posted a picture of himself on Facebook. In the picture, he is wearing a shirt saying, “I love hot moms” and drinking a beer.

Later, after trial, the defendant apparently learned about Mr. Lester’s Facebook account. The defendant, Allied Concrete Company, sued Mr. Lester and his lawyer for among other things, spoliation of evidence. The next day, the plaintiff’s lawyer told his paralegal to tell Mr. Lester to “clean up” his Facebook page. The paralegal emailed the Mr. Lester, asked him about the picture, and told him to delete other pictures. The plaintiff avoided producing any information about the Facebook account. At Mr. Lester’s deposition, he was evasive. Facebook was still new in 2010 and 2011. Perhaps, they thought they could get away with trying to hide the account.

When the defendant pressed for the Facebook postings, the lawyer at first claimed the Facebook account did not exist. Mr. Lester deleted the account. Later, he re-activated the account, but did delete the pictures. The defendant subpoenaed the Facebook account records and eventually obtained all the pictures. The lawyer did not list the email to his paralegal in the privilege log. It looked like he was trying to hide that email from the Defendant. But, in the end, it was also uncovered.

The defendant sought sanctions. The court found that the plaintiff’s lawyer had intentionally omitted his paralegal’s email from the privilege log. The lawyer tried to blame the omission on the paralegal. The court found the plaintiff:

  • spoliated evidence by deleting his Facebook pictures,
  • tried to mislead the defendant by deactivating his Facebook account, and
  • lied in his deposition about deactivating his Facebook account.

The court sanctioned the plaintiff in the amount of $542,000 and his lawyer in the amount of $180,000. The award was tied to the defendant’s legal costs in pursing this information. The court referred the lawyer to the state bar for ethical violations. The court also referred the plaintiff to the prosecutor for his perjury in a civil matter.

This was the first case to sanction a party for trying to hide social media evidence. See the decision in Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) here. The plaintiff and his lawyer went to a lot of trouble to hide the words of one t-shirt. It may well have turned out that he could have explained that t-shirt to the jury and assured them he was suffering emotionally when he drank that beer. Perhaps, that was his first social occasion since the accident. We will never know the full story. But, he and his lawyer made it much worse than it had to be.

It is a strange ruling in Alkhwaldeh v. Dow Chemical Company, 851 F.3d 422 (5th Cir. 2017). The three judge panel consistently refers to Mr. Alkhwaldeh by his first name, Ammar, not by his last name. The opinion also recognizes  that the employer provided inconsistent explanations for the termination, but disregards those inconsistencies. Dow Chemical claimed it fired Mr. Alkhwaldeh because of poor performance in 2009 and because he failed to complete a Performance Improvement Plan in 2010. But, as Dow employees pointed out, Mr. Alkhwaldeh would not still be employed if he did not successfully complete his PIP. The court disregarded that inconsistency by pointing to “numerous” other factors, such as the strength of his prima facie case, the probative value of the proof that the employer’s claim was false and “any other” evidence that supports the employer’s case.

The court then explains that the ultimate question is not about pretext but whether a reasonable fact-finder could conclude that the employer would have fired the employee “but for” his opposition to discrimination. Mr. Alkhwaldeh had expressed that he believed he was the victim of discrimination back in November, 2009. The plaintiff is Moslem, so doubtless he was subject to many anti-Moslem jokes.

But, the decision is simply wrong. Pretext alone is sufficient basis upon which a jury can conclude that an improper motive played a role. We have known that since the decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (Even if a plaintiff offers only indirect evidence, that may be sufficient basis on which a jury may infer discriminatory motive. Proof that the employer’s explanation is unworthy of credence is one form of of circumstantial evidence that is probative of intentional discrimination, and it is one form that can be quite persuasive). It is also unfortunate that the court essentially engaged in fact-finding when it concluded that the plaintiff’s evidence of pretext was not sufficient to overcome the alleged “other evidence” in the employer’s case. Weighing evidence is not appropriate for summary judgment.

But, it appears the employee received his low performance rating in October, 2009, just a month before he was subjected to overt comments about his religion. So, his complaint about discrimination came after the poor rating. That timing issue may have affected the rest of the court’s analysis. This decision reminds us that some courts are reticent about relying too heavily on inconsistent explanations for a firing. Ito seems to me that some courts sympathize with HR departments in responding to EEOC charges. Perhaps, some judges see those departments as over-worked. I think any such sympathy would be discounted if those judges had met with terrified victims of those HR departments and managers who acted with illicit motives. And, one has to wonder how careful the panel was if the court did not understand which name was the employee’s last name. This was also one of those very rare cases in which the EEOC found in favor of the employee. Such a finding is almost as rare as snow in July. One would think such a case would be impervious to a motion for summary judgment. See the decision here.

A critical issue for many persons who suffer any illness is recovery and treatment. That comes as no surprise. Yet, it seems to surprise many courts. The issue often arises when the employee asks to work from home. The employee and his/her doctor may not know to any degree of certainty how long the recovery will last or how the patient will react to particular forms of treatment. In Credeur v. State of Louisiana, No. 16-30658 (5th. Cir. 6/23/2017), the employee was an Assistant Attorney General for the state of Louisiana. Renee Credeur had a kidney transplant. That resulted in complications. She worked from home for several months, apparently without any problem. She then needed more time, so she used her FMLA leave, 12 weeks of unpaid leave on an intermittent basis.

When she still had not recovered, she asked to work from home as an ADA accommodation. A few months later in October, 2013, the employer said she could work from home. Yet, in January, 2014, the AG’s office asked for an accounting of her work hours and certification of her illness. Her three doctors gave different opinions, one stating she could work at the office no more than 3-4 hours per day, a second doctor saying she could work at the office “as tolerated,” and a third doctor saying she should not work at the office for another six months. Ms. Credeur told her employer her endurance was improving and she could now travel via airplane to depositions and attend hearings.

Later,  in February, 2014, Ms. Credeur’s supervisor transferred some of her files due to her reduced work load. And, she was told to use leave time to work from home. That requirement essentially meant she could no longer work from home. In March, 2014, she was given a “last chance” agreement to sign. She had to improve her performance, which referred to her attendance issues and other new, subjective performance issues, or suffer consequences. The “last chance” agreement specifically said she could not work from home.

Ms. Credeur’s condition worsened and she requested to work from home, again. The AG denied her request in August, 2014. At this point, her doctors had said she could not attend hearings, depositions and the like. She provided a medical note for her absences and then returned to work in late August, 2014. Reading between the lines, I interpret that to mean she returned to work because she had to. She worked until December and then resigned. She later filed suit against the AG’s office.

This is one of those rare cases that addresses working from home head on. The court credited the employer’s claim that to work as a litigation attorney, she had to work at the office. The plaintiff responded that she worked from home successfully for many months. She disputed the employer’s claim that face-to-face meetings with co-workers were essential. One supervisor said it was possible to work from home on a temporary basis. While another supervisor testified that to work as part of a team, she needed to work at the office frequently “to bounce ideas” off other members of the team. The court mentioned that Credeur “unilaterally” declared she had no problems when she worked from home earlier. The court also noted that she offered her own “unsupported” testimony that she need not work from the office every day. The panel cited EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc) for the proposition that a plaintiff’s unsupported testimony that she could work from home does not create an issue of material fact. The panel also cited an unpublished decision, Rodriguez v. Mrs. Baird’s Bakery, 111 F.3d 893 (5th Cir. 1997) for the holding that subjective belief that discrimination occurred cannot create a material issue of fact.

The court was troubled by the lack of support for Ms. Credeur’s claims about her job. It also may be that the court felt qualified to discuss the possible limitations for the job of medical malpractice litigation attorney. But, this requirement that Ms. Credeur provide some corroboration of her observations about her job violates most rules of evidence. It also conflicts with the court’s recent decision in recent cases, such as  Heinsohn v. Carabin & Shaw, 832 F.3d 224 (5th Cir. 2016) (cautioning against requiring greater credibility from the plaintiff than from the defendant); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015); Tolan v. Cotton, 134 S.Ct. 1861 (2014) (finding it to be error to disregard the plaintiff’s testimony simply because it is “self-serving”).

A plaintiff is a witness like any other. There is nor rule of evidence that requires the plaintiff to have corroboration. If the court wa snot sure, it should have denied the motion for summary judgment. What the essential functions of a job are is a question for the jury.

The panel devoted much of its opinion to discussing whether the job was capable of working from home or not. It discussed testimony from co-workers that they or others had previously worked from home for brief times. Surely, so much discussion regarding what the testimony says about that issue would suggest that this is a fact question best decided by the jury.

The Fifth Circuit affirmed the grant of summary judgment. There are few cases finding working from home to be a viable accommodation. The few that do find telecommuting to be viable almost always involve a situation in which the telecommuting worked previously for some period of time, but was then cancelled by a new supervisor. See, e.g., DeRosa v. National Envelope Corp., 595 F.3d 99, 104 (2d Cir. 2010) (Acknowledging the employee’s prior accommodation of two years working from home). See the Credeur v. State of Louisiana decision here.