The toughest sheriff in America is dropping hints that he would like a pardon from the President. Former Sheriff Joe Arpaio told the Arizona Republic that he would accept a pardon from Pres. Trump. See Politico news report here. I recently wrote about the court finding him guilty of contempt here. He says he talks with the President now and then, but will not brag about it.

So, he does have some self-restraint, after all.

There is a song about a Scottish soldier who perished during WW I in the trenches. It goes like this (with English translation):

Lay me down in the cold, cold ground

Where before many more have gone

Thoughts of home take away my fear

Sweat and blood hide my veil of tears

Once a year say a prayer for me

Close your eyes and remember me

“Sgt. MacKenzie” by Joseph Kilna MacKenzie.

Every veteran wants to be remembered. The biggest fear when you serve in some far off land is that the folks back home have forgotten about you. Even in Iraq, as closely tied as we were to the home front, we wondered, usually after six months or so in country, whether the folks back home had moved on with their lives and forgotten us.

Now, some folks in San Antonio want to forget the Confederate veteran. Things have changed so much since 1900 when the Confederate monument was erected. Many people find the monument offensive. The monument does not recognize some great general. It represents the common soldier, with his rifle at rest, he points skyward recalling his departed comrades.

It is wrong to suggest the statue was erected to keep African-Americans in their place or to show who controlled the Jim Crow South. Yes, even San Antonio had some Jim Crow laws. But, the statue was built not to overwhelm others, but to recall the sacrifices of those Confederate veterans. Veterans were dying in greater and greater numbers in the 1890’s. A movement spread across the South to recall their sacrifices. The San Antonio monument specifically asks us not to forget the Confederate veteran. It says, “Lest we forget.” It was nothing more than an attempt by the families of veterans to recall their departed loved ones. The state government did not erect the San Antonio monument.

My ancestor helped erect the Robert E. Lee monument in New Orleans. In his diary, he wrote about the public entertainment put on by volunteers to raise money. He said “thousands” came and had to be turned way because the hall was so full. Paula Allen in the Express News explains in today’s paper that bake sales and subscriptions by San Antonio businesses paid for the Travis Park Confederate monument. The city government donated the land. So, no, these monuments were generally not erected by Jim Crow governments. They were erected by average people, like you and me.

In a recent editorial, Josh Brodesky of the San Antonio Express News, and others, have suggested the Confederate veteran was motivated by racism and a desire to maintain slavery. That is not accurate. The veterans are long gone. We cannot now ask them to take a survey and study their motivations. But, James McPherson in his book, For Cause and Comrades, (Oxford Univ. Press 1997), accomplished a pretty decent survey by reviewing the personal letters and diaries of some 400 Confederate soldiers. He looked at the contemporary correspondence and diaries of some 647 Union soldiers and 429 Confederate soldiers. In his career, he explains that having looked at perhaps 25,000 such records, he believed this was a representative sample. For Cause, p. viii. Dr. McPherson is a well known Civil War historian.

According to Dr. McPherson’s study, some 57% of Confederate soldiers espoused patriotic fervor for the South. That is, their service was motivated by patriotism. For Cause, p. 102. Just some 20% of Confederate service members espoused pro-slavery views during the war. For Cause, p. 110. That is still too large a number for us today. But, it pales when compared to Union soldiers who referred to slavery as a motivation for serving in the war. The number of Union soldiers who espoused anti-slavery views was much higher. As the author explains, slavery was a political issue among the Union army. It was discussed and debated more. It was not such an issue among the Confederate army. So, perhaps, if there was more actual debate, then the pro-slavery view might have been higher among Confederate soldiers.

But, the point remains, if they fought to “own people,” they did not discuss it much. And, I can speak from experience. When you are hungry, tired, hot, far from home, you devote much of your free waking moments to why you are here. Why are we in this god forsaken land? If the Confederate soldier was concerned about continuing slavery, he would have said so.

Should it matter what motivated those Confederate soldiers? When I went to Iraq in 2005, I did not stop and say to my commander, “please explain to me the basis for this war?” Sgt. MacKenzie, it is said, died protecting a wounded comrade in the trenches. At those moments, you do not ask why. You simply react. In the song, Joseph MacKenzie, the great-grandson of the sergeant, did not ask for bugles and flourishes to commemorate the death of his ancestor. He simply asked that his great-grandfather be remembered. That is all any veteran can hope for. Say a prayer for those who fell. Recall the rest of us when our times come. We answered the call. We did not hesitate.

“Direct” evidence of discrimination generally means a statement that clearly indicates discriminatory intent. In one of my early cases, a San Antonio manager said “we need to get rid of all the lazy ass niggers here.” That statement clearly evinces discriminatory intent.The bias is clear with no need for additional explanation. In Okpere v. National Oilwell Varco, LLP, No. 14-15-00694, 2017 WL 1086340 (Tex.App. Hou. 3/25/2017), the Houston Court of Appeals discusses direct evidence regarding a man with a disability. Ehimarey H. Okpere worked for NOV for four months. He suffered a stroke and returned to work within days. He was terminated 13 days later. Mr. Okpere testified that his team leader said the supervisor said upper management let him go because of his condition, the stroke. The team leader, however, denied the statement. A statement against interest is not considered hearsay. A statement against interest by management would be admissible. So, a statement by management that upper management took an action which violates the ADA would normally be admissible. The problem here is that the team leader is not offering his opinion about why Mr. Okpere was fired. He is quoting his boss. The team leader was not offering his own opinion, but the opinion of the supervisor. So, his statement is hearsay within hearsay.

The Houston Court of Appeals felt that was too large a jump from the person uttering the statement to the person who heard it. The result likely would have been different if the employee was told this by the supervisor directly. But, this statement was uttered by someone who merely heard the supervisor utter the statement. The court found that even direct evidence is subject to the hearsay rules. That is, hearsay within hearsay is hearsay.

The employer otherwise defended against the lawsuit by claiming the Human Resources person who fired the worker did not know he had suffered a stroke. He did not know that Mr. Okpere had a disability. But, the timing was remarkable. The plaintiff was fired just 13 days after returning to work. NOV said it fired the employee because he was late for work that morning. The company claimed it would not normally fire a worker for being late one time. It pointed to an ambiguous comment on Mr. Okpere’s prior time card indicating he had been late before. The court then parses the evidence to find that Mr. Okpere’s testimony that he had never been late was not consistent with other parts of his testimony.

Anytime a court has to parse and get into exacting detail about a person’s testimony, then summary judgment is not appropriate. But, the Houston court of appeals appeared to be more interested in affirming summary judgment. See the decision here.

There must be something in the water at Fox News. They keep having issues with sexual harassment. Eroic Bolling, a news host, has been accused by several female co-workers of sending photos of his genitals via text messages. Huffington Post reported that more than a dozen sources said he had sent unsolicited photos of his private parts. Fox News has placed Mr. Bolling on suspension pending an investigation. A lawyer for Mr,. Bolling denies the claims.

See CNN News report. Not surprisingly, Mr. Bolling has been a strong supporter of Pres. Trump. Roger Ailes was accused of sexual harassment and was also a friend of the President. The President seems to favor men who harass women. I previously wrote about Roger Ailes here and here. And, then there were the reports of Bill O’Reilly harassing women and then reaching large settlements with them to keep them quiet. I wrote about Bill O’Reilly here and here. And, of course, Pres. Trump supported Bill O’Reilly when he was accused of sexual harassment, as well.

Its a tough life working in Big Law. A partner at Wilson Sonsini Goodrich & Rosati in New York became dependent on drugs. Identified only as “Peter,” his former wife wrote about him in a New York Times piece.  Peter worked 60 hours a week for 20 years. He was by all accounts successful. His former wife, Ellene Zimmerman wrote about his life. He constantly stressed over pay, competition and clients. Ms. Zimmerman pointed out that if he had asked for help, he felt there would be ten other lawyers waiting to take his place. The competition was never ending.

In the months before his death, Peter was at times angry and threatening, then remorseful and generous. He would leave messages on her phone, meandering soliloquies. He never sacrificed a client for his family life. He departed any social gathering if a client called. In his last few months, he would sometime lose consciousness. The drugs helped him stay awake, but they took a toll. He died from an infection contracted from a syringe. His ex-wife found him, lying dead on the floor, with half-filled syringes, crushed pills, a spoon, a lighter, a bag of white powder and a tourniquet next to him. His last cell phone call was to a conference call, vomiting, unable to sit up, slipping in and out of consciousness.

At his funeral, many of the attorneys attending the service, were bent over their cell phones tapping out email to clients and attorneys even as they laid to rest one of their own who could not stop tapping out those same messages. Ms. Zimmerman wrote a book about her former husband’s death. In a recent ABA survey, 20% of judges and lawyers reported alcohol problems, 28% reported problems with depression and some 75% skipped the question on drug use. See ABA Bar Journal article.

My old professor at Tulane Law School, Luther McDougal, would jump in at times like this and remind us, “Its all about greed. About Greed.” That would signal it was time to move on to another topic.

Well, the “toughest” sheriff was found guilty of contempt. Sheriff Joe Arpaio targeted Hispanics in his traffic stops. He ignored an order from a U.S. District Judge to stop targeting Hispanics. His office did not stop for another 18 months. During his trial, he claimed his lawyer did not explain the judge’s order to him very well. The “toughest” sheriff went to court with a “dog ate my homework” defense and lost.

The toughest sheriff is 85 years old and faces up to six years in jail for the offense. But, given his age and status as a law enforcement official, it is not likely he would receive the maximum. It was not typical for a county law enforcement official to make immigration arrests a priority. But, Sheriff Arpaio was never typical. See CBS News report. I previously wrote about the toughest sheriff’s trial here and here.

The Americans with Disabilities Act was passed in 1992 during the administration of the first George H.W. Bush. It was later amended in 2009. Yet, many persons with disabilities still face obstacles to employment. In EEOC v. S&B Industries, Inc., No. 15-CV-641, 2017 LEXIS 9259 (N.D. Tex. 2017), two women with hearing impairment applied for a job with S&B Industries. S&B repairs cell phones. There was a group interview of several applicants. Katelyn Baker and Tia Rice communicate only with benefit of an ASL interpreter or by writing notes. The employer did not hire either woman. The parties agreed the two women were not qualified for the technician job. They lacked experience and training. But, contended the EEOC, there were several other jobs the two women could have performed. The women were referred by a staffing agency, which was aware of their impairment. Yet, no one provided them an ASL interpreter for the group interview.

The EEOC sought to provide an expert at trial, who would describe the ASL language, and discuss the barriers faced by hearing impaired persons when seeking employment. The employer moved to exclude testimony from the expert, arguing she would simply present stereotypes about society. It argued that none of these stereotypes have been attributed to S&B. The court noted that an expert can serve as a “teaching” expert if she can distill complicated subject matter into language a jury can understand. The expert had planned to testify that “audism and phonocentric” views may have prevented accommodations from being offered by  S&B. The court rejected that testimony, saying there was no evidence that such views may be attributed to S&B. There was no evidence, circumstantial or direct, that any employee of S&B held such views.

The court also rejected the expert’s planned testimony regarding how many people in the U.S. suffer from hearing impairment and regarding how few are employed. The court opined that such evidence would not help show that discriminatory motive animated the decision not to hire Ms. Baker and Ms. Rice. Such evidence might help show why the two plaintiffs could not mitigate their damages. But, that was not the topic for which the expert was identified.

Experts are not used often in employment cases. The problem, as shown here, is tying such polemics to actual alleged transgressors. Just because many people hold bias against deaf persons do snot mean these particular managers held those views.

It is rare for persons with severe disabilities to come forward and file a complaint. The parties entered into a Consent Decree soon after the court’s ruling on the motion to exclude and regarding summary judgment. The court denied the motion for summary judgment in part. The EEOC then settled the case for $110,000 and with the requirement that the employer conduct training on accommodations in the workplace. See EEOC press release here. See the decision here.

Donald Trump’s campaign rally in Louisville, Kentucky in 2016 is again in the news. As I have mentioned here previously here and here, the President and his campaign have been sued for roughing up protesters at that rally. One of the defendants with the President is Mathew Heimbach, a white nationalist. He is chairman of the Traditionalist Worker Party in Indiana. He was charged with assault for his actions at that campaign rally. He plead a form of “no contest” to a charge of disorderly conduct. See CBS news report.The Traditionalist Worker Party describes itself as “fighting” to secure the future of white children. As part of his plea deal, Mr. Heimbach was ordered to attend anger management classes, a suspended jail sentence and ordered to pay a fine.

In the civil lawsuit against Mr. trump. Mr. Heimbach has claimed he was indeed encouraged by Mr. Trump to rough protesters up.

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.