We all suffer from some biases. That is part of human nature. There is, these days much discussion about the Confederate statues and what they represent. Here in San Antonio, we have one Confederate monument in Travis Park. County Commissioner Tommy Calvert, a fine person, insisted last week that that statue represents racism. He stressed that the Secession Declaration from 1861 mentions slavery as the motive for Texas’ secession. He did not explain how the how the secession declaration is related to the Travis Park Monument. In reality, the connection is tenuous.

The statue depicts one Confederate soldier with his finger pointed skyward and his rifle at rest. The statue does not represent Gen. Lee or any of the Southern leaders. It represents the average Confederate soldier. In today’s Army, we refer to the lowest soldier as Joe Snuffy or Private Snuffy. Pvt. Snuffy gives no one orders. He has to take orders from everyone. Pvt. Snuffy is the average soldier. Joe Snuffy is the soldier who stepped up when his state and what he believed to be his country called. We may disagree today with Pvt. Snuffy’s choice, but we cannot disagree about the sincerity of his beliefs.

Commissioner Calvert and others insist that the soldier in Travis Park represents racism and Jim Crow laws. I cannot say, and I think no historian can state categorically what all motives lead to the erection of that monument. But, if we look closely, the statue does not represent the things it has been accused of.

The statue was designed by Virginia Montgomery. We know from newspaper articles of the time period that Virginia was the daughter of Julia Montgomery, a former member of the Daughters of the Confederacy here in San Antonio. The statue’s critics have assumed that because of the connection to the Daughters of the Confederacy, there must become hate-filled motive behind the erection of that statue. But, beware of assumptions. Every discrimination lawsuit is based on someone’s false assumption.

Virginia Montgomery was an artist living in New Orleans. How did her mother end up in San Antonio? Mrs. Julia Montgomery was simply trying to make ends meet. Her husband was John Alfonso Montgomery, a captain in the Confederate army. He enlisted in April, 1862. He enlisted a year after the big rush to join. The more patriotic Southerners tended to join in April-May, 1861, when the war first started. Joining in May, 1862 suggests Capt. Montgomery was not among the more patriotic or devout Southerners. Two years later, he was dropped from the rolls of active soldiers in June, 1864, indicating he was probably wounded and could no longer perform his duty.

Capt. Montgomery was a Quartermaster for the 32nd Alabama Infantry regiment. Prior to the war, he was a “cotton merchant” in Mobile, Alabama. “Cotton merchant” is a generic term that probably means he was a cotton broker. Cotton brokers accepted crops of cotton from a planter or farmer and then took the risk of selling it to overseas or New York markets. Cotton brokers generally lived well. They were solidly in the middle class. It was an occupation, for example, that was generally not open to the Irish and German immigrants of the time. So, John Montgomery was doing well. That was good, because he and his wife, Julia, had seven children. The youngest child was Blocker Montgomery, born 1861-62. Blocker was Julia’s maiden name.

It was said that John came back from the war “broken in body and fortune.” He returned to Mobile after the war. The family suffered. John was listed with no occupation in the 1870 census. That means he was not working. In the 1871 Mobile City Directory, his occupation is simply listed as “merchant.” A description that means nothing for that time period. It is equivalent to describing someone in 2017 as a “businessman.”

A year later, John is a policeman. A year later, he has no occupation. The next year, he is listed as a “cigar dealer.” The next year, he is a clerk. At the age of 50 years old, he is employed as a clerk. The next year, he is not listed in the Mobile City Directory, at all. Like many returning veterans, he could not hold a job. Even worse, every year, the address for the family of nine persons changed. Capt. Montgomery could not even hold onto the family home.

In 1873, Mrs. Julia Montgomery appears in the New Orleans City Directory. That appearance suggests she left Mobile looking for work as a teacher.

The next year, 1877, John, the former captain does not appear. Instead, his son, John A. Montgomery, Jr. is listed. That likely means John, Sr. died or moved away. Since we know Julia will later be described as a widow, it is likely he passed away. And, now surprisingly, his son, 25 years old, is the head of the household. Normally, the widow would be listed as the head of the home and she would be described as the widow. But, Julia does not appear in the 1877 Mobile City Directory. We can only surmise that she was living elsewhere, perhaps in New Orleans trying to earn a few dollars.

Julia was surely in San Antonio by 1899 because in that year she is described in San Antonio papers as a member of the Daughters of the Confederacy here in San Antonio. She is described as someone who lived in San Antonio for many years. That sort of movement means she was moving for work. Year later, she will be described as an educator for some 50 years. It is likely, she was moving to San Antonio or New Orleans or both for work.

And, where was Virginia during this time? Virginia appears in the 1880 census living with her sister Faith. Faith Montgomery married a farmer, David Dunlap, in upstate Alabama. They were not wealthy. They listed a net worth of $350 in 1880, which was normal for a working class family.

By 1878, John A. Montgomery disappears from Mobile records. Apparently, he too passed away. The whole family was scattering to the four winds.

By 1887, Virginia is living in new Orleans on her own. Shock. Take a breath. It was very unusual for a single woman to live on her own, not with family. We know she was alone, because other family members who were working would have been listed in the City Directory for the same address. But, no other Montgomery’s appear.

Virginia was listed as an artist. This was a time when female artists were very unusual. When she designed the Travis Park monument in 1899, she was described as the first woman to ever design a monument. That could very well be true. In 1899, Virginia designed the Confederate monument for free. So, she was still in touch with her mother in San Antonio.

Julia attained some notoriety. She died in 1922. Her lengthy obituary explained she was very active in clubs, the Daughters of the American Revolution, the Daughters of the Confederacy, the Woman’s Club and others. She was one of the leaders of the suffragette movement in New Orleans. She voted for the first time in her life just two years before – in the 1920 presidential election. She was said to be the oldest voting woman in New Orleans the 1920 election. When she passed away, her age was given as 99. The 1870 census indicates she was born in 1830.  Regardless, her age was advanced, but he was still very active up to her death.

Virginia acquired some local fame as an artist. In 1930, she wrote a lengthy article for the New Orleans Times Picayune about “Bachelor Girl, A World Leader.” In the article, she explains that a single woman is not “unnatural” and that she can be a “world leader.” Virginia never married. But, she lead a full life. In one year, she is mentioned teaching Bible Study to students in Lower Algiers, a working class neighborhood across the river from New Orleans. In another lengthy Times Picayune article, her artistic approach is described. She favors, she said, three watercolors about “Negroes.” Doubtless, Virginia shocked readers again by suggesting African-Americans were appropriate subjects for serious art.

Julia passed away while living with Virginia. The home was and still is located at 7924 South Claiborne. It is a humble home. Nearby is a small park known as Palmer Park. The DAR planted a tree there in honor of Julia.

It is said in a 1911 San Antonio Light article that Julia came up with the concept for the Travis Park monument. That likely means she suggested that it represent a typical soldier, not a general. If Julia developed the concept and Virginia designed it, they are not what we expected from the Daughters of the Confederacy. I think most of us would expect the Daughters to be more like Gone with the Wind if we were to meet them. Perhaps, Commissioner Calvert and Councilperson Trevino expected the same.

The two Montgomery ladies were not Gone with The Wind. Julia struggled, having to move from city to city to work. She had to leave her family to make things work. Her children were scattered or dead. Yet, through all that, she maintained her love and affection for her veteran husband. Capt. Montgomery was a failure by some standards. But, to those who knew him best, he was apparently much more. To his family, he was Pvt. Snuffy of the CSA.

 

The Fourth Court of Appeals denied the appeal of the City of San Antonio regarding its labor agreement with the San Antonio Firefighters Union. See San Antonio Express News report here. The City had argued that the evergreen clause in the Collective Bargaining Agreement made the contract an unconstitutional “debt.” This is the second time the city has lost on that issue before the Fourth Court of Appeals here in San Antonio. I mentioned the prior loss when the issue was the CBA with the San Antonio police officers. It is the same issue in both labor agreements, the “evergreen” clause that keeps the contract in place even while a new pact is being negotiated. See that prior post here.

As before, the City surely knows its chances for success increase dramatically when it appeals to the Texas Supreme Court.

Texas has a whistleblower statute. It applies only to government workers. In a recent whistleblower decision, the Fourth Court of Appeals here in San Antonio reversed a grant of summary judgment. In the case of Torres v. City of San Antonio, No. 04-15-00664 (Tex.App. San Antonio 12/7/2016), Lt. Torres worked for the City Fire Department. In 2009, he was assigned to the Arson Division, where he would spend time at the San Antonio Police Department building. As an arson investigator, he had credentials to access a secure area at SAPD. He noticed two former arson investigators using credentials to get into the same secure area. They should have turned in their investigator credentials when they left the Arson Division. So, Lt. Torres mentioned this to his Captain. A few days later, he submitted a report to the Deputy Fire Chief. Believing no action was being taken, a few days later, he submitted a complaint to the City wide Office of Municipal Integrity. OMI investigated and found the two former Arson investigators were indeed retaining their former credentials. Fire Department Chief Hood was aware they were retaining their credentials, but the Chief did not realize that retention violated statute. Changes were made in procedures to keep this from happening again. Lt. Torres left the Arson Division a few months later.

In 2012, Lt. Torres applied to return to the Arson Division. He was turned down in favor of someone less experienced and without the necessary certifications. The persons making the selection included Chief Hood and Torres’ former supervisor, Capt. Casals. Both Hood and Casals said they overlooked Lt. Torres for the position in part because of his prior complaint to OMI. That evidence amounts to a clear violation for he Texas Whistleblower law. Under the statute, a claimant must show: 1) he was a public servant, 2) he made a good faith report of a violation of law by his employer governmental agency, 3) he made the report to an appropriate law enforcement agency, and 4) he suffered retaliation at work for making the report. Yet, the lower court granted summary judgment.

The City presented evidence that Torres made the report not out of good faith belief, but to shield himself from consequences of unilaterally causing the credentials to be cancelled for the two prior former Arson Investigators. Lt. Torres responded with evidence showing that other officers would have made the complaint, and that he only went to OMI after he saw no action was being taken by the Fire Department. The court of appeals found there was genuine issue of material fact regarding whether his report was in good faith. The employer also argued that the plaintiff did not show his being turned down for the position was related to his report to OMI.

The City showed several reasons why Lt. Torres was not selected, other than his prior whistleblower complaint. But, said the Fourth Court, the plaintiff is not required to show his reporting the credentials issue was the sole reason for being passed over. Instead, the employee need only show that but for the report, he would not have been turned down. That is, the employee need only show the report played some role, however small in the action taken against him. The issue should be resolved by a jury, said the court. See the decision here.

 

 

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….

The continuing saga of the San Antonio Police Officers Association lawsuit has lead to a court ordered mediation. The lawsuit is currently on appeal with the Fourth Court of Appeals here in San Antonio. The City filed a motion seeking that the parties be ordered to mediation. See San Antonio Express News report. Mediation will not work unless both sides are ready to discuss settlement. So, court-ordered mediation rarely works. It may be that the Fourth Court of Appeals, for whatever reason, believes the union is ready to talk. Up to now, the union has obstinately insisted that the City drop its lawsuit before it consents to talks.

Sometimes, in a hearing, one or both of the parties will say something verbally they would not say in writing indicating they are ready to discuss settlement. Unless that sort of verbal signal occurred, the court ordered mediation will likely lead to nowhere. The San Antonio Police Officers Association has been so public in its opposition to any talks so long as the lawsuit is pending that they really cannot back down, now.

There are many ways to negotiate. But, one of the hardest ways to negotiate is to draw a line in the sand. Ultimatums rarely work.

Well, I guess it is going to snow this coming July, or at least in March. The EEOC has found in favor of an employee. They have found evidence of discrimination. Finding in favor of the employee may not be as rare as snow in July, but it does approach the rarity of snow in March. Two employees of the Animal Care Services for the City of San Antonio filed claims saying they were paid less than male workers who preformed the same work. 

Christine Peden and Jeanne Martinez filed claims based on the Equal Pay Act. The City responded that the salaries were based on a variety of factors. It said raises were limited to to 5% and that new hires would only receive minimum wage. But, later they admitted that on occasion, the City would make an exception. The City did make an exception for one male manager. The EEOC found that change in its response to amount to pretext. Even worse, the City disciplined the two women for discussing wages. They were counseled in writing for spreading "rumors, gossip" and helping create dissension. See San Antonio Express News report here (account required). 

The thing about wage issues is workers cannot know what others make without engaging in some form of "gossip." So, disciplining workers for engaging in such discussions is prohibited by a few statutes. It was exceedingly unwise for the manager to discipline them for discussing wage issues. 

Equal Pay Act claims are notoriously difficult. See one of my prior posts about the EPA here. But, it looks like the City made a difficult case much easier for these two women. 

I talked previously about the City of San Antonio filing an appeal regarding Lt. Salvaggio. See my prior post here. The City lost before an arbitrator, in front of district court and in front of the court of appeals. Yet, they appealed again to the Texas Supreme Court. And, now they have lost, again. See San Antonio Express News report

Can anyone say "frivolous appeal"? 

The City of San Antonio settled a case filed by Capt. Rosemary Flammia alleging sex discrimination. See San Antonio Express News report.  I mentioned this case last week.  See prior post.  Capt. Flammia, a female officer, sued the City when she was demoted in 2007 from the post of Deputy Chief of Police.  The settlement will include reinstatement to the Deputy Chief position for one day before retiring and payment of $249,000.  

She had been Deputy Chief for seven years when she was demoted.  One has to wonder what the new Chief was thinking when he demoted someone with no better reason than he wanted to.  If he did not speak with Human Resources for that sort of decision, then he did not do his job.  He was also involved somehow in another sex discrimination case from another city.  

She would have been paid $124,000 as Deputy Chief instead of the $93,000 she received as captain.  So, it appears she got her lost pay and more in her settlement.  That is a good settlement for her.  The City continues to deny liability.  But, no one pays that much money if they believe they have a viable defense. 

Rosemary Flammia rose to Deputy Police Chief.  Then, a new Police Chief, William McManus, arrived and he demoted her down to Captain in 2007.  Capt. Flammia was the highest ranked female, I am sure, in San Antonio history.  She was also passed over for two promotions to Assistant Police Chief. Why was she demoted?  According to a recent San Antonio Express News article, the City’s attorney said in 2007 the Chief could pick whoever he pleased for his staff.  See Express News story.  So, Capt. Flammia sued for sex discrimination. 

I am sure the Chief can indeed pick whoever he wishes for his staff.  But, he cannot do so if motivated by discriminatory bias.  I presume that if he had a non-discriminatory reason in 2007, he would have provided it.  If the best reason they can articulate is "cause he wanted to," then the City should settle this case.