Many temporary placement agencies think they are immune from lawsuits for discrimination. That is not at all true. Both Title VII (42 U.S.C. Sec. 2000e-2(b) and Texas Labor Code Sec. 21.052 apply to temporary placement agencies. Both statutes specifically prohibit a temporary placement agency from referring a potential worker to a job based on discriminatory bias. In some cases, the placement agency did not discriminate itself. But, it looked the other way when its client, the mammoth Fortune 500 company did discriminate. Some agencies avoid that problem by simply offering another temporary job to the alleged victim. But, as the court explained in EEOC v. Olsten Staffing Services Corp., 657 F.Supp.2d 1029, 1037 (W.D. Wisc. 2009), simply offering another job to a discrimination victim does not resolve the underlying issue. “Circumvention does not equal corrective action,” said the court. Id, at p. 1037.

I previously write about a Fifth Circuit decision which found that staffing agency participates in a discriminatory decision when the staffing agency knew or should have known discrimination motivated the adverse personnel action. See my prior post here. In that case, the staffing agency enabled a discriminatory decision. But, sometimes, the staffing agency itself discriminates more directly.

That direct sort of discrimination is the basis of a lawsuit recently filed in Chicago. MVP Staffing, a temporary placement agency that has offices in 38 states has been accused of placing Hispanic employees at the expense of African-American workers. According to the lawsuit, MVP prefers Hispanic workers because they were often undocumented and less likely to complain about wages and work conditions. See CBS News report.

 

 

 

Not one, but two chefs backed out of agreements to open restaurants in Donald Trump’s Washington, D.C. hotel. I previously wrote about celebrity chef Jose Andres here. Also, Geoffrey Zakarian backed out of a similar deal. Donald Trump sued both. Both backed out after he disparaged Mexican immigrants. Both chefs claim they would have trouble hiring staff and attracting patrons after such remarks. Donald sued, as he often does. Mr. Trump is set to be deposed in Mr. Andres’ lawsuit next week. See CBS news report.

Both chefs have talked settlement with Mr. Trump. But, no agreement has been reached. The President-elect has tried to postpone the deposition. But, it is his lawsuit. He cannot file a lawsuit and then complain that the rules are not convenient for him.

In every court room, there is just a thin veneer of civility. That is why all the court personnel are so polite. They know one angry word, one snarky comment will provoke a reaction. In the case against Bill Cosby, there are plenty of legal issues to try the nerves of both parties. In one recent hearing, the prosecutor got very upset in court when Bill Cosby’s lawyer appeared to be trying to make public the names of 13 other women who have accused Mr. Cosby of sexual assault. Brian McMonagle, the defense lawyer who represents Bill Cosby, wants the names of the thirteen possible witnesses. The prosecutor, Kevin Steele, became enraged during the defense attorney’s argument. Mr. Steele was convinced the lawyer was trying to intimidate the thirteen women. He argued that Mr. McMonagle wanted to identify them so they could be intimidated. The defense lawyer responded, that the women are “adults, not children.” Mr. Steele also “blew up” when Mr. McMonagle positioned a projection screen in a way that appeared to allow reporters to see the name of the women accusers. The Judge eventually allowed that 11 of the women who have voluntarily gone public would be identified. He also warned both lawyers that if this conduct continues, he will call the sheriff’s deputies. See ABA Bar Journal report.

The defense lawyer was trying to use exhibits in court that contained the names of the 13 women. See NBC news report. And, of course, his retort that they are “adults” suggests he was not concerned about the consequences to the 13 women if there names were made public.

If the defense attorney was indeed using exhibits during the hearing that contained names which have up to now been confidential, then he was indeed apparently trying to make their names public. Yes, Virginia, lawyers do play games to try to intimidate the other side.

Judges matter. The life experiences they bring to the bench matter. So, when I see a concurrence like the one written by Judge Jones of the Fifth Circuit, I become concerned. In Pineda v. JTCH Apartments, LLC, No. 15-10932 (5th Cir. 12/19/2016), the employee recovered some $5,000 in damages. Santiago Pineda was a maintenance worker for the apartments. He and his wife lived in the apartments. He sued to recover unpaid overtime. Three days after filing suit, the apartment owner evicted Mr. Pineda and his wife for nonpayment of rent. The eviction action sought repayment of the rent from Maria Pena, Mr. Pineda’s wife. After being evicted, Maria Pena joined the lawsuit and alleged retaliation. After a three day trial, the jury awarded the plaintiff $1400 in lost wages and $3700 for the retaliation claim. The judge awarded liquidated damages, which in effect doubled the lost wage award.

The judge then awarded the plaintiff’s attorney some $76,000 in attorney’s fees. The judge reduced the attorney fee request by 25% because, said the trial court, the amount sought was “grossly” disproportionate to the amount recovered.

Both parties appealed. The plaintiffs appealed because they believe the court should have allowed emotional damages. Many courts have allowed a claim for emotional distress damages under the Fair Labor Standards Act. This three-judge panel concluded there was no reason why the district court could not have done so. It found the lower court should have allowed a claim for emotional distress damages.

The defendant argued that the claim for attorney’s fees was too high. It claimed the plaintiff’s attorney did not settle the case when he could have. This is a claim unique to Texas state law, described as the “doctrine of excessive demand.” They also claimed the complaint was filed in bad faith. But, said the court, the defendant waived this argument by not bringing it before the trial court. The higher court then ordered the case be remanded to address the claim for emotional distress damages. But, cautioned the court, the attorney’s fees are already quite high. So, counsel should proceed expeditiously.

Judge Jones then dissented, accusing the plaintiff’s attorney of engaging in hardball tactics in freezing the bank account of the employer during the lawsuit. Judge Jones accused the plaintiff attorney of freezing the bank account ex parte – meaning it was done without notice to the defendant. She also claimed that testimony “implied” that Mr. Pineda may have sued for this “tiny” sum only because the apartment manager reported Mr. Pineda for possible child abuse. She described the attorney’s efforts as possible procedural abuse. My concern is that having done collections type legal work, I know that freezing bank accounts is exceedingly difficult. It is possible to freeze the account ex parte, but if so, one must provide notice to the defendant immediately. Too, this vase reflects the purpose of having a statute that allows for attorney fees. If there were no attorney’s fees available, then such smaller claims would not be pursued.

Too, I do not know how many maintenance workers Judge Jones has known throughout her lifetime, but at least to the maintenance workers I have known, $1400 is not a “tiny” sum. In truth, Judge Jones may have never spoken to an actual maintenance worker. Yes, a judge’s life experiences do matter.

As I review the Docket Sheet, I do not see anything out of the ordinary in this lawsuit. It was not over-worked in some way. Neither party seems to have filed unnecessary motions. The defendant did not seek dismissal or summary judgment. The reality is that even relatively small amounts require a great deal of attorney time. If there is a problem of some sort, it may be that the plaintiff did not accept the amount offered in settlement. But, that is not unusual. Judge Jones appears to be looking for issues with which to cast the plaintiff in a negative light.

 

Once Donald Trump assumes office, I expect we will have to re-visit many aspects of public life that we once took for granted. One of those aspects is the Hatch Axct. The Hatch Act was passed in 1939. It was passed to ensure that federal employees would not be forced to engage in political campaigns in order to remain employed. Once upon a time, federal employees were expected to assist candidates in their campaigns. The Hatch Act added a degree of professionalism to the federal workforce. Some jobs were classified as civil service and therefore, protected from political pressures. Other jobs were classified as political which meant they could be replaced whenever a new person was elected to office.

The incoming Trump administration has already asked the Energy Department for the names of persons who worked on behalf of climate change policies. The Trump folks also asked the State Department for information related to gender related staffing and funding. Tom Perez, the current head of the Labor Department, said those questions about Energy Department employees was illegal. See CBS News report. Mr. Perez did not explain what he believed to be illegal, but I am sure he was referring to the Hatch Act. The Hatch Act prohibits political activity by federal employees. The Hatch Act prevents federal employees from engaging in political campaigning. It also allows federal employees to vote their conscience, to contribute money to candidates of their choice, and to join political parties or clubs of their choice. See Office of Special Counsel handout on the Hatch Act and what activities are prohibited for federal employees here.

To the extent that the Trump folks are seeking to take action against or to target in some way federal employees who have expressed political views, then it violates the Hatch Act. And, that is before they have even assumed office. One can only wonder what will come after they assume office.

It was big news just a few months ago that Wells Fargo bank pressured its employees to engage in fraudulent sales tactics. Some employees were even issuing credit cards and setting up new bank accounts for its customers – without the customers’ permission. It was fraud. But, was it illegal? That distinction matters in a state like Texas. In Texas, there is no law protecting employees from employers engaging in fraud. But, there is a law against requiring an employee to engage in illegal activity. Alex Leal has filed suit against Wells Fargo. His lawsuit appears to lie right at the intersection of what is illegal and what is fraudulent but perhaps lawful. He was a branch manager at a branch on the West side of San Antonio. In his lawsuit, he says he was fired because he refused to go along with the sales tactics.

He also alleges defamation. I just wrote a post about defamation here and how hard it is to show defamation in the work place. To win, Mr. Leal must not just show management lied about him, he must show they knew it was a lie and they sought to cause him harm.

Mr. Leal is also suing for age discrimination, saying management preferred younger employees because they were more likely to go along with these fraudulent sales tactics. He says he was replaced by a 29 year old manager. See San Antonio Express News report.

Defamation refers to uttering an untruthful statement about someone. “Libel” refers to written defamation. “Slander” refers to oral defamation. In the employment context, defamation has an extra hurdle. In Texas, to constitute defamation at work, the defamation must be made in the course and scope of employment. That is, the defamatory statement must be related to the speaker’s job. So long as the speaker makes the statement to persons with a duty or need to know, then the speaker will be protected by a qualified privilege. To qualify as workplace related defamation, the statement must be made as part of one’s job. If the statement is part of someone’s job, then it will be protected by a “qualified privilege.”

For example, if a manager makes a statement to someone in Human Resources about an employee, even if that statement is not truthful, then the qualified privilege would probably apply. The manager’s statement would be protected by this qualified privilege. If the manager makes a statement to a potential employer, then again that statement will be deemed to have been made in the course and scope of employment. So, the manager’s statement will be protected by the qualified privilege.

An employee can overcome the qualified privilege only be showing that the speaker acted with actual malice. Showing malice is a high burden. Malice refers to a person knowingly and deliberately causing harm. Malice is more than a mistake or a misunderstanding. To show malice, an employee would have to show the speaker knew or should have known the statement was not true and that the speaker sought to cause harm of some sort. Many employees have come to me seeking redress for defamation. Rarely have I seen sufficient evidence to make a case of malice.  It is quite difficult to get inside a person’s head and show what the manager was thinking. That sort of evidence is rare.

For example, an employer fires a person for alleged stealing. The employee did not steal.  But, how do we show malice? That is, how do we show the employer knew or should have known the theft allegations were not true? Most times, we cannot. How do we show the manager made the statement hoping to cause harm to the employee? Again, it is rare that an employee would have that sort of evidence.

Many of the normal principles of defamation law apply to the workplace: the statement must be clear and unambiguous. It cannot be capable of two different meanings, one of which might be non-defamatory. Truth is always an absolute defense to defamation. But, for most people charged wrongly with theft, there is little anyone can do about that sort of termination. Defamation lawsuits in the workplace are just too difficult.

Every employee owes his employer a duty of loyalty. An employee generally may not carry on a business that competes with his employer’s business. To do so is grounds for termination. But, what about an employee who is contemplating leaving his employer? Can he discuss his possible departure with co-workers? The court in In Re Athans, 478 S.W.3d 128, 2015 WL 5770854 (Tex.App. Hou. 2015) answers yes. In Athans, three surgical assistants worked for American Surgical Professionals. One of them considered leaving ASA to work for a competitor. The three worked closely together. Another surgical assistant planned to leave to start a competing firm, Prestige Surgical Assistants. Martinez planned to leave and asked Athans if he was interested in leaving. Martinez testified he simply shared his project with Athans. He shared the project with other surgical assistants. Martinez and an investor started Prestige Surgical Assistants after Martinez ;eft ASA. ASA sued Martinez and Athans  for “soliciting” Athans and others to leave. ASA accused Martinez of interfering with the employment agreement between Athans and ASA. Four surgical assistants turned in letters of resignation at the same time. One surgical assistant changed his mind and stayed with ASA. The others joined Prestige.

The jury found in favor of Prestige. ASA sought a new trial, which was granted. Prestige sought a writ of mandamus to stop the new trial, which the court of appeals granted. The Court of Appeals agreed with Prestige. Assuming, said the court, that “solicit” means to ask seriously, Athans did not ask any of the surgical assistants “seriously.” He simply told them about his project. Athans was not certain he would work for Prestige when he resigned from ASA. He did not know what he would do when he left ASA. The other surgical assistants also indicated that Athans simply told them about a possible opportunity. The jury was entitled to use the ordinary meaning of “solicit.” See decision here.

The decision illustrates the difficulty in suing based on intent. ASA apparently lacked evidence regarding when Athans made up his mind to work for Prestige. If Athans had decided before he turned in his resignation and if ASA had some evidence of the timing of that decision, the outcome might have been different.

Donald Trump famously said Mexican immigrants are rapists and criminals. This was early in his campaign. The chef at his then new hotel in Washington, D.C., found those remarks offensive. Chef Jose Andres backed out of his written agreement planning the new hotel. Mr. Trump filed suit for breach of contract. Now, the chef has insisted on an opportunity to depose Mr. Trump. Mr. Andres is Spanish-American. He was born in Spain. He owns restaurants all across the U.S. He is a celebrity in his own right.

The President elect has been trying to avoid the deposition. But, the judge refused. He ordered the new President to appear for his deposition. The judge ruled he must appear for his deposition the first week of January. In a lawsuit of this sort, Mr. Trump’s remarks are center piece of the lawsuit. Of course, he must be deposed.

And, really, it is Mr. Trump’s lawsuit. As I sometimes have to remind my clients, if you pick the forum, then you must abide by the forum’s rules. See CNN news report.

Mr. Andres has suggested they settle their differences and make a donation to a charity. Mr. Andres tweeted his suggestion. But, so far, the incoming world leader insists on going to trial.

Coach Bev Kearney was placed on suspension in 2012 when it was discovered she had a long-term relationship with a student. Even though she had won six national track titles at the University of Texas, she was disciplined when the administration learned of the affair. She was then fired. See my prior posts here and here about her lawsuit.  She filed suit claiming retaliation after complaining about discrimination. She also alleged that she had been treated differently than other white, male coaches and teachers who also had relationships with students. Coach Kearney is African-American. She compared herself to Major Applewhite who had a brief affair with a student in 2009 and to an unnamed volleyball coach. As I mentioned in this post, her case based on disparate treatment would be difficult.

It is difficult to show disparate treatment. Every department is different. Every boss has different standards. Coach Kearney’s affair occurred in 2002. Coach Applewhite’s one-night stand occurred in 2009. But, the trial court and the court of appeals were satisfied that Coach Kearney had alleged sufficient allegations to indicate she could show disparate treatment. The employer had filed a plea to the jurisdiction, which is comparable to a motion for summary judgment. As I mentioned, Coach Applewhite’s affair with a student lasted only one night and he was disciplined for it. A volleyball coach from the late 90’s and Major Applewhite’s treatment, said the court, sufficed to show allegations of disparate treatment. The court noted, however, that the employer mentioned for the first time in its reply brief that the situations involving the volleyball coach or Coach Applewhite were not similar enough to Coach Kearney’s situation.

But, as most courts of appeals would, it declined to consider allegations raised for the first time in UT’s reply brief. From the employee’s perspective, that is fortunate. It is difficult to argue that different supervisors were applying the same standards, or that one infraction is truly similar to another infraction. The employer might well have succeeded in arguing that Major Applewhite’s offense was short-lived, lasting just one night, and that he did receive discipline for it. He may not have been fired, as Coach Kearney was, but the employer could argue that his offense was not as bad. Coach Kearney’s offense was a long-term relationship. I think the plaintiff dodged a bullet in their appeal. Lawyers do make mistakes, and this may have been significant. See the decision in University of Texas at Austin v. Kearney, No. 14-00500, 2016 WL 2659993 (Tex.App. Austin 2016), here.

UT, however, has requested an appeal. It will be interesting to see if the employer can squeeze in its argument that the situations of the other white, male coaches should not apply.

Coach Kearney also alleged she suffered retaliation. The Court of Appeals, however, noted that she cannot both claim to have been singled out for unique treatment and that she suffered reprisal for prior complaints of discrimination. The court of Appeals essentially finds that her pleadings negate the retaliation theory of recovery. That ruling strikes me as overly formalistic. But, the Texas Supreme Court is almost certain to affirm this pro-employer finding.