“Direct” evidence of discrimination generally means a statement that clearly indicates discriminatory intent. In one of my early cases, a San Antonio manager said “we need to get rid of all the lazy ass niggers here.” That statement clearly evinces discriminatory intent.The bias is clear with no need for additional explanation. In Okpere v. National Oilwell Varco, LLP, No. 14-15-00694, 2017 WL 1086340 (Tex.App. Hou. 3/25/2017), the Houston Court of Appeals discusses direct evidence regarding a man with a disability. Ehimarey H. Okpere worked for NOV for four months. He suffered a stroke and returned to work within days. He was terminated 13 days later. Mr. Okpere testified that his team leader said the supervisor said upper management let him go because of his condition, the stroke. The team leader, however, denied the statement. A statement against interest is not considered hearsay. A statement against interest by management would be admissible. So, a statement by management that upper management took an action which violates the ADA would normally be admissible. The problem here is that the team leader is not offering his opinion about why Mr. Okpere was fired. He is quoting his boss. The team leader was not offering his own opinion, but the opinion of the supervisor. So, his statement is hearsay within hearsay.

The Houston Court of Appeals felt that was too large a jump from the person uttering the statement to the person who heard it. The result likely would have been different if the employee was told this by the supervisor directly. But, this statement was uttered by someone who merely heard the supervisor utter the statement. The court found that even direct evidence is subject to the hearsay rules. That is, hearsay within hearsay is hearsay.

The employer otherwise defended against the lawsuit by claiming the Human Resources person who fired the worker did not know he had suffered a stroke. He did not know that Mr. Okpere had a disability. But, the timing was remarkable. The plaintiff was fired just 13 days after returning to work. NOV said it fired the employee because he was late for work that morning. The company claimed it would not normally fire a worker for being late one time. It pointed to an ambiguous comment on Mr. Okpere’s prior time card indicating he had been late before. The court then parses the evidence to find that Mr. Okpere’s testimony that he had never been late was not consistent with other parts of his testimony.

Anytime a court has to parse and get into exacting detail about a person’s testimony, then summary judgment is not appropriate. But, the Houston court of appeals appeared to be more interested in affirming summary judgment. See the decision here.

Some folks refer to the President as the Twitter-in-Chief. Well, he should also be considered as the Litigator-in-Chief. He tossed out provocative statements at campaign rallies like they were candy. At one rally in Louisville, he exhorted his supporters to rough up a couple of protesters. He also added, as the protesters were being forced to leave, “Don’t hurt ’em. Don’t hurt ’em.” Now, those protesters have sued the President and his campaign for encouraging violence. The U.S. District Judge hearing the matter denied a motion to dismiss a few months ago. I previously wrote about this lawsuit here.

Pres. Trump’s attorneys offered creative, if weak arguments, as his lawyers often do. They argued then Candidate Trump was engaging in his First Amendment rights. It was free speech, they argued. The lawyers also argued that Mr. Trump did not encourage violence. He did, after all, encourage the supporters not to harm the protesters. The judge rejected those arguments when he denied the motion to dismiss.

Now, the issue before the court is whether Mr. Trump should appear for a deposition. The President’s lawyers claim his words are clear and do not need explanation. But, in arguing his words have clear meaning, they make a deposition very likely. His words do not have clear meaning. In one passage, he exhorted violence. In a separate set of words he asked them not to harm the protesters. No, his meaning was not clear. In any normal lawsuit, absolutely, Mr. Trump would be deposed. The Litigator-in-Chief has dug his hole. He said things he should not have said, at a time when he should not have said them. People like that often end up in a lawsuit. That is partly why he spent over $500,000 in legal fees in the second quarter of 2017 and almost $200,000 in the first quarter of the year. See Politico news report.

When you ask for an accommodation, you need to be careful what you ask for. Because, you just might get it. That is an old saying and it applies to the decision in Dillard v. City of Austin, 837 F.3d 557 (5th Cir. 2016). Derrick Dillard worked for the City of Austin. He was a laborer and field supervisor until he sustained injuries in a car wreck. He could not perform physical labor any longer. After extended leave, he was offered a position as an Administrative Assistant. He was stunned at first, because he did not know how to do “no administrative work.” He did not meet the stated qualifications for the job, three years experience as an Administrative Assistant. So, the city provided him with on-the-job training and let him shadow another Administrative Assistant. He was encouraged to complete additional training, but he never did. His typing skills did not improve. Instead of training on the computer, he was observed to be surfing the internet and playing games. He arrived at work late and left early. He spent some of his time looking for a new job.

The employee started the Administrative Assistant job in April, 2012. By September, he was given a bad performance evaluation. His supervisor testified that he lacked skills, but he also seemed unwilling to improve his skills. Mr. Dillard asked to be moved to a different job and claimed he was not given enough work to do. He admitted he could not complete his one typing assignment because he could not type fast enough. His physical abilities were improving. But, the process toward termination proceeded. At a pre-termination meeting, he admitted the allegations against him were accurate. He was not apologetic for his behavior. He said he was trying to find a new job within the City.

In late October, he was fired. Plaintiff Dillard filed suit saying the city failed to accommodate him. The district court granted summary judgment. The higher court noted that if an accommodation is not working, then the employee may ask for a new accommodation. That is part of the interactive process. The plaintiff argued that the City failed to cooperate when it became clear the new job was not working out. He argued that as his capacity improved, the City should have considered him for jobs that were open. But, the Fifth Circuit was not impressed. The interactive process is a two-way street. It requires that both parties work together in good faith. When they gave him the new job, the ball was in his court. He should have worked in good faith to make it work. The misconduct indicated the was not trying in good faith to succeed in this new position. There was also evidence of making personal phone calls, napping at work, lying about his attendance, etc. This case was now less about the interactive process and more about mis-conduct.

The higher court found no evidence that the City failed to act in good faith, since the employee did not show a desire to try and make the new position work. The court affirmed the grant of summary judgment. Yes, be careful what you ask for, because you just might get it. See the decision here.

Success rates for plaintiffs in federal court have dropped dramatically from the 1980’s. In a study by two University of Connecticut law professors, they reported a success rate of 70% for plaintiffs in federal court in the mid 1980’s. The study looked at adjudicated civil cases of all types. That rate dropped to about 35% by 1995 and stayed in that range through 2009. The professors cannot explain the large drop. They did note that federal government suits for overpayment of veterans benefits mostly disappeared from the docket by 2009 and those suits were generally sure wins for the plaintiff. Otherwise, they could discern no pattern that might explain the large drop. The researchers discounted some possible theories, that poorer cases were being filed for the time period; that more weak sorts of lawsuits were being filed, such as prisoner cases; and that rise in dispositive motions caused more losses for the plaintiffs. The professors explained that if the dispositive motion theory caused this effect, then the plaintiff success rate should increase. Since, winning at summary judgment would be considered an adjudicated victory for the plaintiff.

The professors theorize that the success rate might relate to certain federal judges. That theory is problematical itself. It would be hard to envision a scenario in which federal judges become hostile to plaintiffs for ten years and then relent. But, even so, there is no way at present to determine if what might have caused such a large drop. See ABA Bar Journal report here. The paper, “The Curious Incident of the Falling Win Rate,” is available here.

It is a strange ruling in Alkhwaldeh v. Dow Chemical Company, 851 F.3d 422 (5th Cir. 2017). The three judge panel consistently refers to Mr. Alkhwaldeh by his first name, Ammar, not by his last name. The opinion also recognizes  that the employer provided inconsistent explanations for the termination, but disregards those inconsistencies. Dow Chemical claimed it fired Mr. Alkhwaldeh because of poor performance in 2009 and because he failed to complete a Performance Improvement Plan in 2010. But, as Dow employees pointed out, Mr. Alkhwaldeh would not still be employed if he did not successfully complete his PIP. The court disregarded that inconsistency by pointing to “numerous” other factors, such as the strength of his prima facie case, the probative value of the proof that the employer’s claim was false and “any other” evidence that supports the employer’s case.

The court then explains that the ultimate question is not about pretext but whether a reasonable fact-finder could conclude that the employer would have fired the employee “but for” his opposition to discrimination. Mr. Alkhwaldeh had expressed that he believed he was the victim of discrimination back in November, 2009. The plaintiff is Moslem, so doubtless he was subject to many anti-Moslem jokes.

But, the decision is simply wrong. Pretext alone is sufficient basis upon which a jury can conclude that an improper motive played a role. We have known that since the decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (Even if a plaintiff offers only indirect evidence, that may be sufficient basis on which a jury may infer discriminatory motive. Proof that the employer’s explanation is unworthy of credence is one form of of circumstantial evidence that is probative of intentional discrimination, and it is one form that can be quite persuasive). It is also unfortunate that the court essentially engaged in fact-finding when it concluded that the plaintiff’s evidence of pretext was not sufficient to overcome the alleged “other evidence” in the employer’s case. Weighing evidence is not appropriate for summary judgment.

But, it appears the employee received his low performance rating in October, 2009, just a month before he was subjected to overt comments about his religion. So, his complaint about discrimination came after the poor rating. That timing issue may have affected the rest of the court’s analysis. This decision reminds us that some courts are reticent about relying too heavily on inconsistent explanations for a firing. Ito seems to me that some courts sympathize with HR departments in responding to EEOC charges. Perhaps, some judges see those departments as over-worked. I think any such sympathy would be discounted if those judges had met with terrified victims of those HR departments and managers who acted with illicit motives. And, one has to wonder how careful the panel was if the court did not understand which name was the employee’s last name. This was also one of those very rare cases in which the EEOC found in favor of the employee. Such a finding is almost as rare as snow in July. One would think such a case would be impervious to a motion for summary judgment. See the decision here.

The Ninth Circuit has joined the Fourth Circuit in upholding the injunction against Pres. Trump’s travel ban. The unanimous three-judge decision found that of the six countries identified in the ban, none had ever posed a risk to the United States. I wrote about the Fourth Circuit’s recent decision here. The Ninth Circuit pointed to the same two travel bans. But, the Ninth Circuit did not devote as much attention to Pres. Trump’s statements about the travel bans. The opinion notes the complete lack of a link between the nationality of the six countries and any terrorist organization. The second travel ban points to no link between those persons seeking entry to this country and any unsettled conditions in those six countries. In short, the second travel ban did not provide any basis foe a complete ban on travel from those six countries. The court did point to a statement by Pres. Trump on June 5 in a tweet that he was concerned with the six countries themselves, not the 180 million persons living in those six countries. Slip opinion, p. 40 n.14.

The President tweeted: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” The court noted that Sean Spicer has said the President’s tweets represent official U.S. policy.

It also cited the 1965 statute, the immigration and Nationality Act of 1965, which prohibits discrimination against any one nationality in the country’s immigration policies. That act specifically provides that no preference on immigration will be based on “nationality.” See 8 U.S.C. Sec. 1157. See the decision in Hawaii v. Trump, No. 17-00050 (9th Cir. 6/12/2017) here.

And, of course, the next day, the President continued his assault on the judiciary by suggesting the Ninth Circuit was not concerned with national security. See Politico report about his tweet.

A  request for accommodation need not mention any specific words, so long as the request puts the employer on notice that an accommodation is needed. Indeed, if an impairment is obvious, caselaw does not require the person to actually request the accommodation. See Brady v. Wal-Mart Stores, 531 F.3d 127, 135 (2d Cir.2008); McElwee v. Cnty. Of Orange, 700 F.3d 635, 642 (2d Cir. 2012). Generally, a doctor’s note or medical restriction of some sort suffices to serve as a request for an accommodation. See, e.g.Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 784 (6th Cir. 1998) (doctor’s note was sufficient, and court would infer that employer read it because it was located in plaintiff’s personnel file). So, the decision in Acker v. General Motors, No. 16-11174 (5th Cir. 4/10/2017) is surprising. That decision found that FMLA leave cannot constitute a request for an accommodation.

Lonny Acker worked for GM for over ten years. He was diagnosed with anemia, which causes blackouts, heart palpitations and severe fatigue. It can cause dizziness for prolonged periods. He requested and received intermittent FMLA leave. He was out on leave some 30 times over a six month time period. Five absences were considered unexcused. Mr. Acker testified he called in for those absences, but the phone records for his phone did not support that claim. He was suspended twice, once for 30 days. He then filed suit for the unpaid suspensions.

The employer moved for summary judgment. The lower court granted the motion for summary judgment, which the Fifth Circuit affirmed. The court insisted that Mr. Acker cannot create a factual issue based solely on his deposition testimony, since his testimony conflicted with the phone records. That is unfortunate. GM accused him not of not calling in but of not calling in to the right places. He allegedly called the absence phone line but did not call the Benefits & Services phone line, according to GM. Five of the 30 absences were in question. Plaintiff Acker insisted he called in correctly on those days. But, said, the court, his testimony was not enough to avoid summary judgment. So, the court affirmed summary judgment regarding his FMLA interference claim.

The employee then argued that his FMLA leave should constitute a request for an accommodation. He admitted that his FMLA request did not follow the GM procedure for seeking a request for an accommodation under the ADA and the state equivalent of the ADA. Mr. Acker argued that generally, a request for medical leave is generally also a request for an accommodation. No, said the court. The panel stated that FMLA and the ADA are two different statutes. But, of course, the two are different statutes.  That the two are different statutes wth different definitions does not explain why a request for medical leave does not serve as a request for an accommodation.

The court then added that “FMLA leave is not a reasonable accommodation under the ADA.” It cited Harville v. Texas A&M Univ., 833 F.Supp.2d 645, 661 (S,D.Tex. 2011), which cited Trevino v. United Parcel Service, No. 3:08-CV-889-B, 2009 WL 3423039 *12 (N.D. Tex. 10/23/2009). The court in Trevino does indeed find that a request for leave under the FMLA does not serve as a request for leave as an accommodation. But, it does not explain why. It does cite to Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001). But, the Navarro decision nowhere finds that in all cases a request for medical leave under the FMLA can never serve as a request for accommodation. Instead, it answered a different question, whether a daughter’s illness met the definition of disability under the FMLA. If the daughter’s diagnosis satisfied the definition of disability under the FMLA, then the mother was entitled to leave to care for her daughter. The question of whether a person asking for medical leave under the FMLA could be seen as also requesting leave as an accommodation was never addressed.

The salient question which the Fifth Circuit opinion did not address was whether the leave request under the FMLA satisfied the requirements for requesting leave under the ADA? The caselaw states in clear terms that no “magic” words are necessary to request leave as an accommodation. There appears to be no reason why a request for leave under the FMLA cannot serve as a request for leave as an accommodation, assuming the normal ADA factors are also satisfied. That is, so long as the employee places the employer on notice that the leave may apply to a qualified disability, then yes, a request for leave under the FMLA ought to serve as a request for leave as an accommodation. One can conclude from the court decisions, however, that judges prefer to keep legal matters tidy and not allow things to “slop” over from one statute to another……..

See the decision in Acker v. General Motors here.

 

 

The Trump administration has proposed huge cuts to the Social Security Disability payments. Known as SSDI, these payments go to persons who can no longer work. The Trump administration has proposed cuts of $72 billion over ten years. They have also proposed reducing the back pay period from 12 months to six to save more money. As one woman exclaimed, these benefits apply to persons with stage 4 cancer. Heck, I had a client once with a brain tumor. It was not operable. Yet, even he was initially denied benefits and had to appeal.

The White House Budget Director, Mick Mulvaney, claims the administration wants to “test” new approaches to labor force participation. But, he did not explain how the administration would screen out persons allegedly receiving benefits who do not deserve the benefits or how it would transition disabled persons to jobs. And, the Office of Management and Budget did not respond to a request for more information regarding how the adimistration plans to achieve these aims. During his briefing on the budget, Mr. Mulvaney claimed that SSDI applies to partial or short-term disability. It does not. On the contrary, it applies only to permanent disability that keeps a person from working abroad range of jobs.

I have worked on a few SSDI appeals. I can attest that SSDI is exceedingly difficult to obtain. Many persons apply for benefits who are severely incapacitated and yet, they are denied benefits. Unfortunately, the “Plan B” for most applicants is to apply again. Since, their impairment worsens, and the documentation of the condition usually improves. By the second or third attempt, if the person is still alive, they are generally more successful. But, during that lag time between the first application and the second, they are without health care. Persons already on the edge of survival have no medical care.

According to one agency, the U.S. process to achieve disabled status ranks highest among advanced countries, second only to South Korea. The Arc, a nonprofit that advocates for persons with disabilities, estimates some 946,000 persons currently receiving benefits would lose their benefits under this plan. See CBS News report.

It is one thing to lose benefits because the country claims to lacks resources. But, to lose benefits because an administration is confused about those benefits indicates a lack of competence. No one is getting rich off these benefits. The top benefit amount is about $14,000 per year. But, SSDI includes access to medicaid. So, recipients do receive medical care. For persons with the most serious health conditions, that is all about survival. There is something just not cool about taking benefits away from someone in Stage 4 cancer, so we can buy more tanks. I love tanks. But, that is just not the way to go.

The Fourth Court of Appeals in Richmond, Virginia has upheld the lower court’s preliminary injunction regarding the Trump travel ban. This ruling applies to the second ban, not the first. The second ban was written better after the administration encountered so many problems with the first ban.

A Maryland district court issued the preliminary injunction. Thirteen judges heard the appeal, indicating it was an en banc ruling. At the hearing, many of the judges were skeptical that the ban did not have the desired effect of applying to Muslims. The lengthy decision refers to Pres. Trump’s comments about Islam. It discussed comments by administration officials. The court found the ban implicated the establishment of religion clause in the U.S. Constitution. That clause forbids the government from establishing any one particular religion.

Among the facts causing concern for the court were the first travel ban. The administration claims the first travel ban and the second were based on national security concerns. But, the alleged national security issues were not identified until after the administration issued the first travel ban. Too, one recent report by the Department of Homeland Security explicitly said that most terrorist acts were committed by persons who grew up in the U.S. The report mentioned that no one has died at the hands of any person from the six nations identified in the second travel ban in the last 40 years.

In a display of poor appellate strategy, DOJ argued that “unofficial” comments by a candidate should not be considered, especially those made during a campaign. The government lawyers made the specious argument that somehow when Candidate Trump became President Trump, his statements became less probative. But, citing to various caselaw involving candidates for election and other issues, the court noted that such statements are probative if closely related in time and if uttered by the same deciding official. The court added, “Just as the reasonable observer’s world is not made brand new with every morning, . . . nor are we able to awake without the vivid memory of these statements.” The court cited to McReary County v. ACLU, 545 U.S. 844, at 866 (2005). Quoting Jonathan Swift, Polite Conversation (Chiswick Press, 1892), the court added a comment that we cannot shut our eyes to such evidence when it starts us in the face and there are none so blind as those who cannot see. Slip opinion, at 66. Anytime a court reaches back to the 1800’s for a non-law related book, you know the court is annoyed. The court was annoyed with the administration’s disingenuous attempt to pretend Pres. Trump did not say the things the country knows he said.

[Note: It is very poor form to argue obvious fallacies. It is a technique likely to lead to defeat. If a normal litigator had tried to argue an obvious fallacy like Candidate and President Trump’s comments about Muslims, the court would come down very hard on us.]

The DOJ also argued that the second travel ban was neutral in its language. But, responded, the court, even a neutral executive order can discriminate. See the Fourth Circuit’s decision in International Refugee Project v. Trump, No. 17-1351 (5/25/2017) here. The Fourth Circuit was once one of the two most conservative courts in the country. It is perhaps more liberal now than it was. The court reached this result with a 10-3 vote. See CBS news report here.

There is another preliminary inunction working its way through the appellate process in the Ninth Circuit. A federal judge in Hawaii also issued an injunction against the travel ban.

The President has done it, again. He has said things that were later used against him in court. He issued an Executive Order a few weeks ago threatening to cut off funding to cities and communities that supposedly provide “sanctuary” to unlawful immigrants. The city of San Fransisco and other communities filed suit to stop that obstacle to funding. A federal district judge in San Fransisco found against the administration. The DOJ lawyers argued the cut to finding would only impact a small portion of funding. But, Pres. Trump’s comments indicated differently. The cut to funding, said the President, was a “weapon” against communities that disagreed with his policy. And, in February, Pres. Trump said he would cut off funding to the entire state of California, because it was “out of control.”

These statements, said the judge, indicated the administration intended a very broad cut to funding. Only Congress could tie funding (or no funding) to broad actions by state and local governments. Too, added the judge, the administration cannot tie a lack of funding to a program not related to the order. If the administration wants to control housing, for example it could only limit funding for housing. It could not enact broad limitations. See CBS News report.

Pres. Trump, as I have said before, is the worst client. He cannot avoid saying things that undercut his case. Even worse, he then attacks the judiciary for doing its job. He criticized the Ninth Circuit for this ruling, even though Judge Orrick does not sit on the Ninth Court of Appeals. He is a district judge, not an appellate judge. Reince Priebus, the President’s chief of staff, said Judge Orrick’s decision was the Ninth Circuit going “bananas.” These comments are irresponsible. We all need to respect the decision of the courts, If you cannot beat your adversary in court, do not cry about it later. Especially now when the the best evidence against Trump’s actions is Trump himself.