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….

Pres. Trump’s case continues to worsen. Ten former State Department officials signed affidavits attesting that the travel ban does not make the U.S. safer. Former CIA Director, Gen. Mike Hayden, former Secretary of State Madeleine Albright, former Secretary of State John Kerry, former National Security Advisor Susan Rice and others have submitted testimony that the ban does not do what the administration claims it does. See NPR news report.

This would be like in an employment suit, former high level managers directly contradicting the employer’s stated rationale for a termination. It would be comparable to several former high level managers saying “No, the revenue projections were positive. Lay-offs were not necessary.” Too, it is just extraordinary when ten former officials care enough to go to the trouble of reviewing and then signing affidavits within such a short amount of time.The exhibit was filed early Monday morning. So, they must have coordinated all this leg-work on Sunday. Judges do take more notice of a lawsuit in which persons with no apparent financial stake in the outcome will go to some trouble to support a lawsuit.

Many of these persons were Democrats. But, for purposes of a lawsuit, that may not matter. What does matter is all ten former officials have expertise regarding the claimed rationale. Many discrimination cases hold that if the stated rationale does not hold water, then the finder of fact can construe the true motive was an improper one, such as discrimination.

The administration starts with a deficit. It is trying to argue that the travel ban is not a Moslem ban. Yet, Donald Trump has been quite well known for proclaiming the need for a Moslem ban for many months. Do his lawyers really expect the judge to disregard his public pronouncements? I doubt it. The Department of Justice lawyers have been given a very difficult case and are doing the best they can with it.

Coach Briles filed suit against Baylor University last December for defamation. See my post about that lawsuit here. In that lawsuit, he claimed Baylor said he knew about rapes and sexual assaults and did nothing about them. He claims din his lawsuit that was false, that he did not know about the sexual assaults. Well, now, he has dropped his lawsuit. He dropped his lawsuit just as a lawsuit filed by a former Athletic department assistant was getting started. Colin Shillinglaw filed his own suit against Baylor. Mr. Shillinglaw sued Baylor for claiming he had mis-handled the incidents involving the sexual assaults and rapes. In response to Mr. Shillinglaw’s lawsuit, Baylor provided evidence of Coach Briles’ knowledge of the incidents. Up to now, the administration has kept quiet about specific evidence, probably to protect the confidential nature of the claims.

For example, in response to a text about a football player exposing himself to a masseuse and asking for special favors, Coach Briles responded. “What kind of discipline . . . She a stripper?” The player, Tevin Elliot remained on the football squad and the incident was not reported to administration officials. Later, that same player would be accused of rape by two women in separate incidents. In 2013, a female athlete accused several players of gang raping her. She eventually told her female coach. When the female coach approached Coach Briles about it, he said, “These are some bad dudes. Why was she around those guys?” The response filed by the school argues that the football program was a “black hole” into which disappeared these allegations of brandishing a gun, drug use, domestic violence, indecent exposure, academic fraud, and physical assault.  See Chicago Tribune report.

It would be surprising if Coach Briles did not know about the actions of his players. Most coaches, perhaps all coaches are approached about what their players allegedly have done. And, really, the coaches know their players very well. So, Coach Briles’ suggestion that he knew his players were “bad dudes” reflects very poorly on him and the sort of players he recruited. The best defense to a defamation lawsuit is the simple truth. One can guess that Coach Briles filed his lawsuit as a bluff, hoping the administration would not reveal its information. He may have been trying to take advantage of the school’s difficult position. It must and is required to protect the confidential nature of these allegations. But, if so, he was wrong to assume the administration would not provide enough information to protect itself.

It is very unwise for a party to a lawsuit to discuss the lawsuit or the judge in public. Those statements will almost always become known to the judge. Donald Trump insists on discussing the judge’s actions in the lawsuit over the travel ban. On Sinday, he tweeted that Judge Robart’s decisions was “terrible” and that if there was some mayhem resulting from the lifting of the ban, then the fault would lie with the judge. He accused the judge of placing our country in peril. See CNN news report. There is an old saying: do not mess with teachers in the classroom, policeman on the streets or judges in the court room. Each of those persons are accustomed to being in charge of their respective environments. More importantly, each environment will quickly devolve into chaos if respect and decorum are not maintained.

Comments outside the court room will be noted. Assigning improper motives to the judge will cause some offense. That is so unwise in the midst of a difficult lawsuit. And, it surely drives his legal team crazy. His comments make this lawsuit personal. But, even worse, his comments help show the true motive for this travel ban.

Challenges to the ban are based at least in part on discrimination. The best way to show discrimination is comments by the persons who created or implemented the ban. His comments are admissible evidence. He might well be making his case worse, not better with his tweets.

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.

Donald Trump is involved in many lawsuits. He lost one of them. Mr. Trump purchased a golf course in 2012 ago for $5 million. That was a good price, but part of the deal was that he had to accept the liabilities then pending. Some 65 members were trying to withdraw from their membership. There was some $41 million owed to them as refundable deposits. Under the terms of their agreement, the resignation process was complicated and lengthy. It could take ten years to resign one’s membership. Mr. Trump named the golf course, Trump Golf Course. It is in Jupiter, Florida.

A couple of months after assuming control, Mr. Trump said if they wanted to resign, then they could not have access to the club. Yet, they were still required to pay dues of some $8,000 to $20,000 per year. The members then said well, if they were losing access to the course, then their resignation was final and they were entitled to a refund of their deposits. Mr. Trump’s company refused to issue refunds or to otherwise speed up the resignation process. The members filed a class action lawsuit, saying the new owners were unilaterally changing the terms of their agreement. Eric Trump was the operations person for the golf course and he admitted on the witness stand that paying dues without access to the club violated a fundamental principle of life. Donald Trump testified via videotaped deposition.

The trial was held in federal court last August. This week, the judge issued his ruling in favor of the members. He awarded the members $5.6 million for refunds of their dues and deposits. As always, Mr. Trump said he would appeal. See CBS news report.

But, Mr. Trump’s hardball business tactics did work well in one sense. During the four years of the lawsuit, about half the members changed their mind and withdrew from the resignation list. That saved him tens of millions in refunds he would have owed. See NPR news report. Whether these many lawsuits are good politics is beyond the scope of this blog. But, one must wonder.

There are many issues with Pres. Trump’s travel ban. One important consideration is the risk it poses to U.S. troops serving in Iraq and Afghanistan. We still have several thousand soldiers in Afghanistan and a few hundred in Iraq. Add to that the thousands of U.S. civilians in support of the soldiers serving in those two countries and you have a good many Americans who serve as handy targets for ISIS and Al Qaeda. Political issues that affect the Middle East reverberate in Iraq and Afghanistan. The jihadis are motivated when they hear the U.S. or Western nations supposedly oppressing Moslems.

When I served in Iraq, every staff tracked attacks on Coalition (i.e., U.S.) forces. The statistics were part of the daily briefing presented to every commander. We knew there would be a spike in attacks anytime Middle East or Israel issues became part of the public debate in America. It was part of our intel or “enemy situation” briefing. It is without doubt that right now as we speak, soldiers in Iraq and Afghanistan are scaling back their activities to some degree to avoid the large spike in attacks. For your average revenge minded terrorist, mainland U.S. is a long way to go. But, northern Iraq and central Afghanistan not so much. See the Brian Chasnoff column in the San Antonio Express News in which Rep. Will Hurd speaks to that concern. Congressman Hurd is a former CIA officer. He would know. As a former U.S. Army officer, I also know. Talk tough here. But, over there, they pay the price.

Yes, some lawyers have a conscience. Like the “Saturday night massacre” a generation ago, Pres. Trump fired Sally Yates, the acting Attorney General because she refused to defend a questionable ban on travel for seven Moslem countries. See one description of the Saturday Night Massacre in 1973 here. Elliot Richardson and William Ruckleshaus refused to carry out what they believed was an unlawful order to fire Archibald Cox, the Watergate prosecutor. Ms. Yates refused to defend Pres. Trump’s ban on seven Moslem countries. She explained that she questioned whether that travel ban was lawful. See CBS news report.

The White House did not clear its ban with government agencies. It issued the ban with no prior coordination with the Department of Justice.  The travel ban obviously surprised the Attorney General’s office. As Ms. Yates indicated, she had serious doubts about its legality and she wrestled with what to do over the weekend.  She considered resigning rather than dealing with the problem, but she felt that leaving the office would just push the problem off on someone else.

Like 1973, this could portend further trouble for the president. When Nixon fired those two lawyers in 1973, that action very likely started his long journey toward eventual resignation. Firing the Attorney General and his first assistant was seen by many as unnecessary on Pres. Nixon’s part and clearly intended to protect himself. That was a shock to the country, just as today firing the acting Attorney General is quite surprising today. Ms. Yates is the only person at DOJ who is authorized to sign off on requests for warrants for foreign investigations. Her absence will surely cause further problems.

Many employees find themselves in a real quandary when the employer asks them to commit an illegal or unethical act. Texas law protects a worker who is asked to break a criminal statute. But, some employees become so vexed about their situation that s/he goes to the media. That is what happened in Peine v. HIT Services L.P., 479 S.W.3d 445,  2015 WL 6490290 (Tex.App. Hou. 2015). Joseph Peine was a CPA working as a CFO for HIT Services, a heavy turbine business group. According to Peine’s evidence, the company was in financial trouble. It had a history of inflating earnings in the past. He was hired to help turn things around, he alleged. This concerns a motion for summary judgment, so Mr. Peine’s allegations should be assumed as correct. The CFO alleged he was asked to inflate earnings for the year. He was told to claim a project had been completed, when it had not been completed. Mr. Peine refused. His boss, Durg Kumar threatened him and others in the CFO office if the CFO did not follow orders. He said he would “clean house” if the CFO did not comply with his order.

Mr. Peine went around Kumar to talk to higher-ups. Mr. Kumar went around Peine to get things included in the quarterly financial statement. The parent company placed Mr. Peine on leave with pay while it investigated claims made about him. About the same time, Mr. Peine contacted a Thomson Reuters reporter and provided documents. He suggested they wait to see if HIT would fix the problems before going forward with any news report. Soon, the company investigation uncovered the email from Peine to the reporter. The investigator, an in-house attorney, recommended that Mr. Peine be fired for violating the company’s confidentiality policy. Within a couple of months of his initial complaint to the parent company, Mr. Peine was fired.

The CFO filed a lawsuit based on Sabine Pilot Services, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). Sabine Pilot is that rare case of judge-made law. That decision recognized an action to sue for a termination resulting from a worker’s refusal to follow an illegal order. The employer moved for traditional summary judgment alleging that Mr. Peine violated the confidentiality policy. The employee responded that there was a genuine issue of fact regarding why he was fired. The court of appeals discussed the standard of proof for a Sabine Pilot case. Sabine Pilot actions require a showing that the “sole cause” of the termination was the order to commit an illegal act. The Plaintiff pointed to statement by Kumar that he would “clean house” if the CFO did not do as he wished and a statement by the parent company that Mr. Peine was a “liability.” Those statements represent direct evidence, said the plaintiff. But, the court of appeals did not accept these statements as direct evidence. The court found they were circumstantial evidence, since there was no indication the persons making those statements had a direct role in Mr. Peine’s termination.

The court did not seem to be aware that in acknowledging the possibility of two different motivations, it was implicitly agreeing that that a jury should decide this issue, not a judge. If there is more than one possible interpretation of the evidence, then under the rules, the decision belongs to the jury, not a judge. But, this irony does not help the plaintiff. Since, few, perhaps no, plaintiffs will survive an appeal to the Texas Supreme Court.

The Plaintiff also presented an expert witness in the area of government compliance. That expert testified that this was a classic case of retaliation. But, the court was still troubled by the fact that he might have been fired for violating the confidentiality policy. The expert could not speak to that possible motivation. Mr. Peine then argued that he expressed concerns to a public forum and should be protected. But, no, said the court, Texas does not recognize freedom to report illegal activities in a private work place. That is true. The Texas whistle blower law only applies to government employees, not private sector workers.

So, the court affirmed the grant of summary judgment. Based on the decision, it does not appear the plaintiff contested whether he truly violated the confidentiality clause. Some employers claim to have such a policy, but upon closer examination, it turns out they often ignore it. It is also unfortunate he went to a reporter. Otherwise, his case should have been solid. Many employees, faced with an unjust termination, reach out to any possible avenue of protection. People who are facing the end of their financial well-being do desperate things. See decision here.

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.