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.

The Fifth Circuit reversed summary judgment in another case recently. In Caldwell v. KHOU-TV Company, Inc., No. 16-20408 (5th Cir. 3/6/2017), the court addressed ADA and FMLA issues. Gerald Caldwell worked at KHOU TV as a video editor. Due to a childhood disease, he needed the aid of crutches for walking. Mr. Caldwell notified his supervisor he would need time off for upcoming surgeries.

About that time the parent company, Gannett Company notified KHOU that the station needed to reduce their work force. One worker was chosen for lay-off based on documented poor work performance. That editor was given prior warning about his performance. Mr. Caldwell received no such warning. Mr. Caldwell was also chosen. The supervisors initially said he was chosen because he had expressed an unwillingness to work in EDR. Later, in its motion for summary judgment, the employer argued that Mr. Caldwell had not taken the initiative to spend as much time in EDR as the other editors.

Mr. Caldwell filed suit based on the ADA and the FMLA. The employer moved for summary judgment, which was granted. On appeal, the Fifth Circuit reversed the summary judgment. The court found there was substantial evidence of pretext. The employer provided different reasons for selecting Mr. Caldwell for the RIF. The employer first claimed Mr. Caldwell shirked his responsibilities by refusing to do the EDR work he had been assigned. The employer provided this expansion in answer to interrogatories and in a letter to Plaintiff’s attorney. But, in a letter to the EEOC, the employer said he was terminated not because he avoided work, but because of his inability and unwillingness to adjust to new technologies. And, before the district court, KHOU argued that Caldwell did not take the initiative to spend as much time in EDR as other editors. And, contrary to all this evidence, the direct supervisor, Philip Bruce, said “absolutely” there were no job performance issues with Mr. Caldwell. These statements, said the higher court, indicated inconsistent explanations, so as to show genuine issue of material fact.

The lower court had looked at the same evidence and discounted it. The district judge found that many of these statements were not made by Mr. Bruce, the direct supervisor. But, the court of appeals noted that no precedent required that all explanations emanate from the direct supervisor. On the contrary, many cases cite articulated reasons from the employer as a whole. The court cited Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408 412-13 and n. 11 (5th Cir. 2007) for the proposition that simply stated, an employer’s inconsistent explanations for its employment decisions at different times are probative of whether those statements are pretextual and that cases do consider statements by the employer’s representatives before the EEOC, before the district court and the Fifth Circuit. And, that makes sense. The employer sues the “employer,” after all, not individual supervisors.

The higher court noted that the employer’s explanation had evolved from insubordination to a lack of initiative. Mr. Caldwell himself denied ever expressing a preference for or against EDR. The plaintiff’s supervisors also confirmed they did not recall the plaintiff ever expressing a preference against working in EDR. The employee also testified, and the supervisors confirmed, that it was ultimately the employer’s decision to limit his time in EDR, suggesting the employer was not truthful.

[Note: It is always unwise to try to mislead the court. Judges remember that. It will affect the rest of their decisions. That the supervisors apparently disagreed with the company’s  representative seriously undermines any case.]

The higher court also discussed the lack of opportunities for the disabled worker. The court compared not affording employment opportunities to black workers to not providing opportunities to Mr. Caldwell. The plaintiff had argued that the employer chose not to schedule him time in EDR. The lower court had found that he was not scheduled more time in EDR due to his disability. The Fifth Circuit found that lack of opportunity comparable to a case, Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990), in which an African-American woman was not given the chance to improve her work performance, because the employer did not counsel her about performance problems. In Caldwell, the court said this situation was similar because KHOU did not give Mr. Caldwell time to work in EDR and improve his technical abilities. This lack of time also indicated that the employer did not counsel Mr. Caldwell and warn him that he should spend more time in EDR.

The higher court also reversed summary judgment regarding Plaintiff’s FMLA claim. See the decision here.

This is the last in a series of cases dating back some three years in which the Fifth Circuit has reversed summary judgment. The most common problem in that line of cases is the failure of the district court to construe facts in favor of the plaintiff. We hope district judges will make more of an effort to construe facts in favor of the non-movant, as they should.

Bill O’Reilly, the well-known political commentator on Fox News, has cost Fox News millions of dollars. Fox News has settled five complaints from five different women for sexual harassment. All five of those complaints involved Bill O’Reilly. Mr. O’Reilly settled a case himself in 2004 with Andrea Mackris, a former producer, for $9 million. I previously wrote about Bill O’Reilly and Fox News here. Fox News just recently settled one major lawsuit involving Roger Ailes. Those allegations also involved Mr. O’Reilly. See CNN News report.

Of course, Mr. O’Reilly threatened legal action in reaction to this news story, initially published by the New York Times. Fox News is now being run by Rupert Murdoch’s sons. Apparently, Fox News is making efforts to make the work place more friendly to women. They have held trainingon sexual harassment. Let us hope so. As the news report mentions, besides the five cases resulting in settlement, there were other reports of sexual harassment against the Fox News star. If there is one known complaint, there are surely two or three others in which the victim chose not to complain.

Too, these settlements cost the employer millions of dollars. Bill O’Reilly must have been a real producer for Fox News to accept this level of liability.

The decision in Pena-Rodriguez v. Colorado did not receive much attention. But, it should have. In that case, a Mexican immigrant was found guilty of assaulting two teenage girls. After the verdict, a member of the jury reported that another member of the jury said some racist things about Mr. Pena-Rodriguez. The jury was all white. One juror, a former police officer, said he’s guilty “because he’s Mexican and Mexican men take what they want.” The same juror made several anti-Mexican comments. He dismissed the credibility of an alibi witness because the witness was an illegal immigrant. These statements are clearly racist. If these sentiments had been known, they would have kept the former police officer off the jury. But, because the statement did not come to light until after the verdict, it could not be used under the law in Colorado and in most states.

Most states have a version of the “no impeachment” rule, that provides a jury cannot be impeached after the verdict for things said during deliberations. There are just a few limited exceptions to the rule, such as when a juror considers something s/he should not have during deliberations.

The no impeachment rule dates back to common law England. But, as Justice Kagan pointed out, this is as good as “smoking gun” evidence gets. This statement clearly shows racist sentiment. By a 5-3 vote, the U.S. Supreme Court ruled that where prejudice is involved, the “no impeachment” rule must give way. The Sixth Amendment, which guarantees the right to a trial by jury, requires the courts to consider evidence of racial bias.

As the dissent pointed out, this ruling will invite scrutiny of jurors everywhere regarding what was said in the formerly sacred room, the jury room. It is common practice for lawyers to meet with jurors after a trial to discuss how they arrived at their verdict. If evidence of racial bias is fair game, then surely other forms of bias will also become fair game. And, yes, that does open a Pandora’s box. But, the alternative is jurors acting out of racist prejudice. And, that cannot be allowed. See Above the Law blog post here. The time may come when we move away from the jury system. England uses juries in only rare cases, now. See the decision in Pena-Rodriguez v. Colorado, No. 15-6-6 (3/6/2017) here.

Back when I was active in the Nationals Guard and Reserve, I would visit other Army units to coordinate exercises, gather information or for some particular need. I soon noticed that when subordinate members of the unit would freely chat with an unknown captain or major, that was very likely a strong unit, with good morale. If the lower ranking member would not chat with me, that indicated problems. The military is like a large corporation, with different corporate culture in each unit.

In today’s corporate culture, social media has made it easier for employees to chat publicly about their experiences. Uber received a lot of blow back when one engineer described the ride-sharing company as chaotic, sexist and overly aggressive. Susan Fowler wrote a blog post about her year at Uber. The attention has grown so much that it may affect the value of a likely IPO later this year for the business. See San Antonio Express News report.

Ms. Fowler mentioned how she was propositioned by a male senior manager and that Human Resources often protected “high performers” at Uber. Consumers who notice issues between employees notice that tension, according to research at Georgetown University. That research found consumers react strongly to perceived problems with a particular brand. Christine Porath, the Georgetown researcher, also found that companies that devoted more attention to the welfare of its workers performed better during the recent economic crisis.

Uber’s CEO reacted to Ms. Fowler’s blog, saying the company would heal the wounds and build a better corporate culture. Yes, employees, all employees, matter. Human Resources, often overlooked, is on the front lines of that culture. In military terms, we would describe HR as a “force multiplier.” HR provides much more value that simple processing of forms. It makes the other departments better. The corporations, and military units, that appreciate that will become much more productive.

 

Among the many forces unleashed in the past year or so is anti-Semitism. Bomb threats against Jewish Community Centers, the place where many people, Jewish and otherwise, find rumba lessons, tennis lessons and basketball. More than 100 JCC’s across the country have been the targets of bomb threats. Two Jewish cemeteries have been vandalized. Two Indians were shot in a bar in Kansas City, because the shooter thought they were Iranians. See CNN news report.

The FBI is investigating. They do not yet know who is making these threats. But, we can assume whoever it is, they do not dance, play tennis or otherwise engage in their community.