What is a disability? A potential client asked me that recently. A broken leg, for example, is not an impairment that would qualify for coverage under the Americans with Disabilities Act. To qualify as a disability, the impairment must be permanent or something like permanent. It must also be serious. In Datar v. National Oilwell Varco, L.P., No. 01-15-00541 ((Tex.App. Hou. 1/19/2017), the employee claimed a impairment involving his back. He said he had a lower back sprain that made it “harder” to sit down, to walk and to pick things up. The Court of Appeals found that an impairment does not rise to the level of a disability unless it affects a major life activity. Yet, the court apparently disregarded evidence that at least once, the employee was in such pain that he had to go to the emergency room and could not work. Too, the court relied on caselaw issued prior to amendment of the ADA in 2009.

The court discounted the plaintiff’s testimony that the sprain made it harder for him to work. It relied, instead, on the medical note that released him back to work. See the decision here. This will be a continuing issue in future cases. Many persons suffer from these debilitating back injuries.

The first business day after being pardoned, the toughest sheriff is on the attack. Sheriff Joe Arpaio filed a motion on Monday seeking to dismiss his conviction. He insists he was found guilty by a biased judge. But, he accused the first judge of being biased, as well. Accusing a federal judge of bias is a dubious claim in any case. But, when you have been there, done that already, it does seem insincere.

In any event, the toughest sheriff says he may run for office again. See CBS news report.

The motion will lead to an interesting legal issue. A pardon does not indicate innocence. It is more of a forgiveness. As far as I know, there is no requirement that the judge now withdraw her conviction of the toughest sheriff. Good luck, Sheriff.

The toughest Sheriff in the country and the President both hinted the President would pardon Sherrif Arpaio and he has indeed done just that. Pres. Trump pardoned Sheriff Joe Arpaio, even though, technically, the toughest sheriff has not yet been sentenced. See CBS news report. The toughest sheriff has been a loyal supporter of the President and that loyalty has now paid off. But, unfortunately, the toughest sheriff in the country is now excused from profiling Hispanics.

First Sheriff Arpaio hinted that he would like a pardon. Then, Pres. Trump said he might pardon the “toughest sheriff” in the country. He has “done a lot” to oppose illegal immigration in this country and is a “great American patriot,” said the President. See CBS news report. I previoulsy wrote about the trial of the toughest sheriff here and here. So, now the toughest sheriff needs a little help…..

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.

In litigation, social media has become a very hot issue. Many parties think they can obtain that final, critical piece of evidence from social media. One example is Facebook. Many employers involved in a lawsuit request the employee’s Facebook posts for a certain time period. The rationale is that a victim of discrimination cannot legitimately claim to be depressed if he posts pictures of himself drinking a cool one at the local pub. Or, some defendants will argue, if the plaintiff posts something about being upset with his family or pet dog, then the employer can use that post to argue he was upset about things other than being fired.

Isiah Lester was involved in a  wreck when a truck owned by Allied Concrete Company swerved into his lane and inflicted multiple injuries to him. The collision killed his wife. Mr. Lester sued. Trial was held and Isiah Lester was awarded $6.2 million. His wife’s parents were awarded money, as well. Sometime after the collision but before trial, Mr. Lester posted a picture of himself on Facebook. In the picture, he is wearing a shirt saying, “I love hot moms” and drinking a beer.

Later, after trial, the defendant apparently learned about Mr. Lester’s Facebook account. The defendant, Allied Concrete Company, sued Mr. Lester and his lawyer for among other things, spoliation of evidence. The next day, the plaintiff’s lawyer told his paralegal to tell Mr. Lester to “clean up” his Facebook page. The paralegal emailed the Mr. Lester, asked him about the picture, and told him to delete other pictures. The plaintiff avoided producing any information about the Facebook account. At Mr. Lester’s deposition, he was evasive. Facebook was still new in 2010 and 2011. Perhaps, they thought they could get away with trying to hide the account.

When the defendant pressed for the Facebook postings, the lawyer at first claimed the Facebook account did not exist. Mr. Lester deleted the account. Later, he re-activated the account, but did delete the pictures. The defendant subpoenaed the Facebook account records and eventually obtained all the pictures. The lawyer did not list the email to his paralegal in the privilege log. It looked like he was trying to hide that email from the Defendant. But, in the end, it was also uncovered.

The defendant sought sanctions. The court found that the plaintiff’s lawyer had intentionally omitted his paralegal’s email from the privilege log. The lawyer tried to blame the omission on the paralegal. The court found the plaintiff:

  • spoliated evidence by deleting his Facebook pictures,
  • tried to mislead the defendant by deactivating his Facebook account, and
  • lied in his deposition about deactivating his Facebook account.

The court sanctioned the plaintiff in the amount of $542,000 and his lawyer in the amount of $180,000. The award was tied to the defendant’s legal costs in pursing this information. The court referred the lawyer to the state bar for ethical violations. The court also referred the plaintiff to the prosecutor for his perjury in a civil matter.

This was the first case to sanction a party for trying to hide social media evidence. See the decision in Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) here. The plaintiff and his lawyer went to a lot of trouble to hide the words of one t-shirt. It may well have turned out that he could have explained that t-shirt to the jury and assured them he was suffering emotionally when he drank that beer. Perhaps, that was his first social occasion since the accident. We will never know the full story. But, he and his lawyer made it much worse than it had to be.

 

The U.S. Supreme Court accepted an appeal regarding the administration’s travel ban. It also partially overruled the injunctions against the travel ban issued by the Ninth Circuit and the Fourth Circuit. The injunctions were issued to stop the ravel ban pending appeal. The administration is appealing the injunctions, but it is likely the court will hear the entire appeal. not just the injunctions. Oral arguments are set for October regarding the much criticized travel ban. See CBS news report here. This is the first court victory for the administration regarding the two travel bans. I previously wrote about the second ban here and here.

There are several things an employer can ask in an interview. Let’s discuss a few.

1. How old are you? This is not a good question to ask. There are very few jobs in which age is a legitimate requirement for the job. Inevitably, this question will suggest age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the U.S. Army.

2. Are you married? If you ask this only of female applicants, then this question could cause problems. Why would this question be helpful? Unless this is a ruse to discovery whether a female applicant might quit when she wants to have a baby. Its best to just not go there….

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked about Hispanic or Hispanic-appearing applicants.

4. Do you have disabilities? Do not ask this specific question. But, 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? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5.  Do you take drugs, smoke or drink? 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.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  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, 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.

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. Emphasizing written discipline, applied consistently will serve the employer very well.

In federal court, sanctions are a real possibility. The parties need to behave themselves and act in a professional manner. That even applies to a settlement conference. In Chen v. Marvel Food Services, Inc., No. CV-15-6206 (E.D. N.Y. 11/21/2016) (FLSA), the court scheduled a settlement conference. The parties were required to come to court and discuss settlement. Under the local rules, that means both parties had to comply with certain deadlines in submitting settlement offers and responses. The plaintiff submitted his settlement offer weeks prior to the conference. But, minutes before the conference was to start in court, the plaintiff doubled his settlement demand. He explained that he had re-evaluated his case. The defendant was unable to proceed with the conference because he had come with authority to settle based on the prior amount.

The Defendant filed a motion for sanctions. The plaintiff did not oppose the motion, but he did move to strike the motion because it contained the prior settlement demands. The plaintiff argued that the motion for sanctions contained confidential information. The court denied the motion to strike. The court noted this was an action based on the Fair Labor Standards Act. Therefore, the ultimate settlement amount was not confidential. The court then found that in doubling his settlement demand just minutes before the conference was to start, the plaintiff acted in bad faith. It sanctioned the plaintiff $1,000, which were the expenses of the defendant’s lawyer for that day. See the decision here.

Seeing the cranes lifting the Robert E. Lee monument in New Orleans is a little distressing for me. Not every county in Texas has a monument to the Confederate soldier, but many do. And, almost every county from Louisiana to Virginia has at least one monument to the Confederate soldier. The monuments do not commemorate the Confederacy. They commemorate the Confederate soldier. Right or wrong, the Confederate soldier believed he was defending his home and his country from Yankee invasion.

I am not an expert on Civil War history, but I have read a great many Civil War histories and many first person accounts by Southern participants. I have yet to read a diary or a letter home in which any Confederate soldier bemoaned the loss of slavery. Instead, they always talk about keeping their families safe and protecting their communities. When they express fear, their fear always concern family and community. Most soldiers did not fight to maintain slavery. By one account some 750,000 to 1 million Southerners and a few Northerners served in the Confederate military. I find it hard to believe that 750,000 souls from any group of Americans were any more racist than any other group of Americans living at the time. Yes, the South as a whole sought to maintain slavery. A great many Southerners lost lives and limbs in the four year conflict. Yet, they often persisted in their cause not for one battle, not for one month, not for one year, but for years.

It appears now in 2017 that the nation is moving toward a view that the Southerners who supported the Confederacy were racist. Certainly, those Southerners did advocate a system that enslaved others. Sitting here in 2017, we cannot survey citizens long deceased. But, we know from the most personal, intimate correspondence, letters and diaries, that few Southerners pledged their lives and the lives of their families to maintain a most cruel system.

My ancestor, of whom I am quite proud, 1LT George P. Crane, served on a committee to erect that Robert E. Lee monument that is now being removed from its 133 year old perch. 1LT Crane served all four years of the war. After the war, he retained his uniform and sword. He died 13 years after the war. Our family has no tradition of hating the Yankees or rejecting the outcome of the war. Many years ago, I asked an elderly aunt if we had any “bad” stories about the Civil War. She told me a long story that culminated in something she would do in the 1930’s in New York: if someone wanted to discuss the Civil War, she would invite them to her parent’s home in New Orleans for dinner. In 1869, just a few years after the end of the war, George’s mother, an Irish immigrant, created a river barge with the motto, “Union and peace” as a fund-raiser for an orphanage. Gen. P.G.T. Beauregard, whose statute was removed last week, attended that same fund-raiser. The Cranes did not whine about the outcome of the war.

The Cranes and their first cousins, the Agars, the Walshes, the Rice’s, all good Irish families, participated in the fabric of the city. All these families helped support various charities, generally for the Catholic Church, such as orphanages and churches. I researched another branch of my family, the Byrnes and Heaslips. They did not serve in the war. They did not support charities, at least not according to any available source. Based on my limited research, the people who served in the Civl War were the same persons who generally supported their community.

As I have researched my family’s history, I was mildly surprised to see that many red-blooded Southern males chose to avoid service in New Orleans and in various Louisiana parishes. Many, on the other hand, like 1LT Crane served all four years of the war. As a young man, George P. Crane visited the then ignored George Washington tomb. Yet, he also said Robert E. Lee was the greatest man this country ever produced.

I never knew George P. Crane. But, I have known family who knew family who knew him. I have read his diaries. I have researched his life and times in substantial detail. I tend to think he would be okay with the removal of the statute he helped erect. Because, I think, he would recognize that a substantial portion of the New Orleans population view that precious memorial as offensive. The Geo. P. Crane I feel I have come to know would not want to memorialize someone, no matter how admirable that person might be to some, who causes offense to so many others. It is just not the Southern way to offend others without a very good reason.

It is ironic that the New Orleans statues are removed just weeks and days before Memorial Day. Before there was a Memorial Day, there was Decoration Day, honored across the South. The Confederate widows and families would go decorate the graves of the fallen soldiers.