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.