San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

The San Antonio regional office of the EEOC has filed two discrimination lawsuits here in the Alamo City.  One suit is against AA Foundries, Inc. alleging racial discrimination.  The lawsuit claims that a AA Foundries supervisor routinely used the "n" word and that a hangman's noose was displayed.  The breakroom also displayed racially offensive materials.  

According to the EEOC, when asked about the noose, an AA manager simply laughed it off.  When asked about the breakroom materials, the same supervisor simply responded that no one was required to read the materials.  The AA Foundries defense now lawyer suggests that the noose was a one-time incident by an "idiot."  AA Foundries employs some 20 persons.  The lawsuit is filed on behalf of four former employees. 

The EEOC also filed suit against Universal Toyota for age discrimination.  Universal Toyota is owned by Red McCombs.  The suit claims Univeral Toyota would not allow older salesman to sell the Scion.  The Scion is marketed to a younger customer.  According to the suit, several salesmen were told flatly they were too old to sell the Scion. One salesman was terminated after he complained about the discrimination. 

The San Antonio office includes a wide geographic area extending into New Mexico.  Only rarely do they file suits here in San Antonio.  I would expect they have good evidence before filing these two lawsuits.  

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Federal trials have become as rare as hen's teeth.  In the appeal of a jury verdict in Phillips v. Leggett & Platt, Inc., we see part of the reason why.  A Mississippi jury found that the defendant had discriminated against Jean Phillips on the basis of her age.  Ms. Philips was 66 years old when Leggett & Platt closed a manufacturing facility in one town and told Ms. Phillips she alone could not transfer to a neighboring community.  The accounts payable clerk was thus out of a job after 24 years with the defendant. Within four days, her managers called her back to work saying they would need her for a temporary job at the nearby facility.  The temporary job would would have no end date.  The job included the same pay and benefits and the same job duties.  Ms. Phillips hoped now she would essentially have her old job back. 

A younger woman was allowed to transfer to the nearby facility and she would perform the accounts payable clerk duties formerly performed by Ms. Phillips.  That woman left and another younger woman was hired to fill the position.  Still, Ms. Phillips continued in her temporary position hoping she would be awarded a permanent position.  After six months, her temporary position came to an end.  She then filed a complaint with the EEOC alleging age discrimination.  

At trial, the employee won and was awarded $48,000 in lost pay and benefits.  The employer appealed.  An age complaint must be filed within 180 days of the act of discrimination.   Leggett & Platt argued that the plaintiff should have filed her EEOC complaint within six months of first being notified that she would not have a position at the other plant, not within six months of the end of her temporary position.  The Fifth Circuit agreed with the employer and overturned the jury verdict.  The two judge majority found that equitable tolling did not apply.  That is, the court rejected the employee's argument that the employer's actions mis-lead her into postponing any complaint of age bias.  

The dissent points out that the two judge majority ignores Fifth Circuit precedent that whether to apply the doctrine of equitable tolling should be left up to the trial judge's discretion.  The trial judge is in a much better position to assess credibility issues.  Indeed, as the dissent adds, the facts supporting employer deception are much stronger in this Phillips case than the 1991 case relied on by the court.  Legget & Platt coincedentally, let Ms. Phillips go the second time within days of her 180 day deadline to file an EEOC complaint.  Ms. Phillips was called back to work for an indefinite job just as any at-will employee at the same pay as her old job.  She did not file a complaint earlier because she thought and hoped she now had her old job back. 

The majority opinion finds that the employer's actions ere not deceptive.  Their actions ere not intended to mis-lead the plaintiff.  The majority's fact conclusion might be appropriate, says the dissent.  But, it is simply a decision better left to the trier of fact.  "The bite of such inconsistencies - and the cld fact that the indefinite period of the recall lastd just over 180 days - is better entrusted to the better-informed discretion of the district [trial] judge." 

And, that is part of the reason why trials in US district court have become so rare.  As I mentioned here, federal appeal rates heavily favor employers.  Employers succesfully obtain reversal of jury verdicts about 41% of the time they seek such reversals.  While, employees only succeed 9% of the time.  And, among the 11 federal appellate courts, the Fifth Circuit is one of the circuits most likely to overturn a jury verdict.  Federal appeals courts as a whole simply do not respect jury verdicts. 

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A woman claims she was fired from her job at a Houston, Texas title company because she refused to dye her gray hair and wear "younger, fancier" clothes and lots of jewelry.  See ABA Bar Journal report.  The CEO of the title company dismisses her claim, saying he has gray hair.  Bill Shaddock says he would hire a 150 year old person if he seemed "worthy."  

As Kathy Butler, a prominent employment lawyer in Houston, points out, there is at least one case finding that requiring women working at a casino to wear make-up does not violate Title VII.  Since, in that case, the employer could show a legitimate business purpose for requiring the make-up and that the requirement was not related to a person's gender.  

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 Billy Ray Cyrus' former road and farm manager has sued the country-western singer and his wife for age discrimination.  The manager says Billy Ray said the manager was "old and dumb and don't know anything about running a farm."  Yea, comments about age are usually pretty good evidence of age discrimination.  See report. 

It looks like someone will have an achy, breaky heart..... 

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 A man in Dallas has worked at Jack in the Box for 32 years.  Robert Williams worked his way up to Area Coach, just a few steps below President and Chief Operating Officer.  Burt, he was not rewarded for his loyalty.  Instead, at meetings, a supervisor would ask if it was time for Mr. Williams' "nap"  and would refer to Mr. Williams as "old man."  He was fired, due to his age, he claims.  See report about Williams v. Jack in the Box.  

Yes, those remarks are classic examples of evidence showing age bias. 

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 Yahoo news has a story at:  www.finance.yahoo.com/career-work/article/110601/8-things-employers-arent-allowed-to-ask-you - the list describs things one supposedly cannot ask interviewees.  It has so many errors.  So, let's go one by one.

1. How old are you?  The Yahoo comment about this question is probably accurate.  There are very few jobs where someone can ask you your age and the question itself not serve as evidence of age bias.  Best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married?  I do not understand this.  I do not understand how this can serve as evidence of anything.  I think the Yahoo author is suggesting that this might serve as evidence if asked of female applicant.  But, virtually every married person would have some issue or concern regarding family life and their employer.  I cannot imagine how this could be used as evidence against the employer in any claim.  

3. Are you a US citizen?  Yahoo's answer to this question might be correct.  The article refers to the Immigration Reform and Control Act of 1986, but I would also add that asking about citizenship could also serve as evidence in an ethnic origin case.  Better not ask this question until a job is offered.

4. Do you have disabilities?  Yahoo's answer is partially correct an partially incorrect.  An employer can ask if an applicant has any limitations that would keep him/her from performing essential functions of the job.  How else would a fire deaprtment make sure an applicant can carry someone out of a burning building?  The Yahoo news article gets this very wrong and very misleading.  Yes, ask about physical or mental limitations.  But, do not ask about disabilities or diagnoses until a job offer has been made.    

5.  Do you take drugs, smoke or drink?  Yahoo's answer is confusing.  An employer can ask about drinking, smoking or illicit drug use.  An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.  How Yahoo gets to the conclusion that one cannot ask about illicit drugs, smoking or alcohol is beyond me.  None of these abuses are protected activities under any employment laws to my knowledge. 

6. What religion do you practice?  The Yahoo news article is right about this.  An employer cannot ask about religious practices.  Since, that could be used as evidence later of religious discrimination.

7. What is your race?  See No. 6 above.  But, don't we all know not to ask this by now?  

8. Are you pregnant?  This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias.  So, yes, it is better not to ask this question.  And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

But, the article does not make this plain: all of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation.  If an employer asks about pregnancy and then later fires the applicant for some trivial error, only then would questions asked in an interview have any relevance.  A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation.  The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant.  The best defense for any employer is to simply issue written warnings whenever a transgression occurs.  Less worrying about verbal discussions and more focus on written discipline applied consistently will serve the employer much more.  

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A Dallas jury returned a verdict in favor of the plaintiff in US district court.  In an age discrimination case, the jury awarded the plaintiff employee lost pay and benefits of $500,000, liquidated damages of $500,000, mental anguish damages of $1,000,000, punitive damages of $15,00,000, front pay and attorney's fees to be determined later by the judge.  Under Title VII and the Age Discrimination in Employment Act, punitive damages are capped at $300,000.  So, the punitive damages will be reduced probably to $300,000. But, this large amount of punitive damages is still remarkable.  

When a jury becomes angry, they will award large amounts.  The McDonald's spilled coffee case is often referred to as a "runaway jury." But, in that case, the McDonald's executive who testified came across as arrogant.  And, there was evidence that McDonald's knew their coffee posed significant risk, yet the corporation had taken no precautions.  When a jury becomes angry, they will award large amounts. 

Same thing apparently occurred here in Miller v. Raytheon, No. 3:09-CV-0440 (N.D. Texas 2010). The defendant changed their reasons for the adverse personnel action several times.  The employer claimed for the first time at trial that it had offered the employee two jobs that had never been disclosed before.

Perhaps more damaging, however, was Raytheon's claims to the EEOC that it had offered the employee several job openings before selecting him for a RIF.  There was no evidence to support Raytheon's claim and the employee denied he had been offered any such positions.  The company also claimed the employee refused to look for new jobs, despite knowing that claim was false.  There had actually been several discussions between Mr. Miller and Human Resources regarding possible other jobs.  

Juries do not like being lied to.  Once an employer makes statements to the EEOC, those statements become part of the record and cannot be withdrawn.  Fortunately for Raytheon, Title VII punitive damages are capped at $300,000.  Otherwise, they would be looking at a huge judgment, a judgment caused not by some legal technicality, but by plain fabrication.  

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 This is what is wrong with federal judges when it comes to employment law.  In a recent deicison, the Fifth Circuit applied the discredited "stray remarks doctrine."  Of course, a defense employment lawyer notes the application approvingly.  See post.  In Jackson v. Cal-Western Packaging Corporation, the Fifth Circuit Court of Appeals (federal) found a remark by management was not sufficiently related to the adverse personnel action to be admissible. Nonsense.  The manager had referred to the Plaintiff Jackson a year ealier as "an old, grey-haired fart."  So, a year later, when he was fired for inconsistent reasons, he claimed age discrimination.  The remark shows clear age animus.  Under normal circumstances, the remark would serve as direct evidence of age discriminatory motive.  The burden would then move to the employer to show they would have fired the employee even without the age discriminatory motivation.  That would be a dificult burden to meet.  So, this discussion has real import.

 The employee was 69 years old when he was terminated.  He was replaced by a 42 year old employee.  Jackson filed suit.  The district court granted summary judgment, finding insufficient issues of fact to justify a trial by jury.  Jackson was accused of sex harassment, which he denied.  He claimed younger workers accused of sex harassment were not fired. 

The Fifth Circuit's reasoning is wrong on several levels.  First, it is simply not sensical to expect that an ageist remark from a year earlier would have no relevance at all to the decision to terminate. That simply does not reflect the reality most of us face in our everyday work lives.  So, yes, this issue certainly should have gone to a jury.

Second, this reasoning by the Fifth Circuit represents the court's attempt to hang onto a discredited doctrine.  The stray remark doctrine was overturned in another Fifth Circuit case from 2005.  The doctrine is referred to as the "stray remark doctrine" because the remark is deemed so remote in time, and so irrelevant that is is simply a stray remark (as if stray remarks have no relevance).  

In 2005, the Fifth Circuit's use of the stray remark doctrine was expressly overturned by the US Supreme Court in Reeves v. Sanderson Plumbing Products, 530 US 133, 151-152 (US 2005).  In Reeves, the employee was described as "so old he must have come over on the Mayflower."  The Fifth Circuit in that case had disregarded the statements saying they were not made in the context of Reeves' termination.  The Supreme Court, however, found the court of appeals impermissibly substituted its judgment for that of the jury.  That is, the Supreme Court found the Fifth Circuit evaluated the evidence when it should have left that function to the jury.  The Supreme Court ruled that the jury should decide if the remark was too remote in time to be relevant. 

So, this decision in Jackson is the Fifth Circuit's attempt to ignore Supreme Court precedent.   Much to the detriment of employees who have to get by inn the real world.  I have discussed this before. Some judges simply have little experience in the real world.  The workplace can be venal, small and trivial.  The life experiences of a judge do matter. 

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 According to a recent study by Manpower and Jury Verdict Research, employers won only 39% of jury cases in the past year, tied for the lowest percentage in this decade.  The lowest win rate was 33% for age cases and the highest win rate for employers was disability cases with 52%.  The median settlement amount was $90,000.  But, before my current clients see this and go bonkers, I am sure that means there was some very large amounts raising that amount so high.  Most employment cases settle for less than $20,000 in my experience.  

Why is the win rate for employers lower this past year?  Russ Cawyer advances various reasons, all of which make sense.  With the downturn in the economy, many potential jury members are out of work.  That sort of experience makes discrimination and employment issues more credible.  Mr. Cawyer mentions that in two recent jury trials, many more potential jury members were out of work or had a close family member who was out of work.  And, as he adds, in a down economy, many employers will take their chances at trial instead of trying to settle the case.  

Russ Cawyer, a management side lawyer, sees this as part of a trend favoring employees over employers.  Perhaps, but like everything, trends come in cycles.  

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 The decision in Gross is not grounded in reality.  Gross v. FBL Financial Services does not reflect how discrimination and bias actually work.  Gross is the US Supreme Court's recent decision on age discrimination.  For various reasons, it will probably also apply to discrimination under the Americans with Disabilities Act, also.   Harold Goldner discusses its many errors in detail.  Discrimination is never simple.  It is never clear cut.  It is often a jumble of emotions wrapped around one issue, someone's minority background.

A manager can genuinely believe s/he is not biased.  Yet, that very same manager can look at someone and wonder why he is late so often, why he does not speak as well, etc.  But, the manager applies that extra scrutiny only to the minority person.  And, then when the manager fires the minority person, s/he can claim to have been motivated by job issues.  Under the Gross decision, the manager can claim s/he was motivated primarily by tardies, not by race.  The manager wins, but the victim loses.  

That is the problem with decisions like Gross.  Bias is not simple.  There will often be more than one motivating factor.  To require that a plaintiff show that "but for" the tardies, the employee would not have been fired is asking for more than reality will allow. 

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