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.

Its a fundamental part of the military court martial process that a commander may not discuss a pending court martial. Anything a general says will prejudice the military jury. But, what happens when the commander speaking about a prominent court martial is a candidate for president? Donald Trump spoke often about Bowe Bergdahl. The candidate referred to him as a traitor many times and at least once, suggested he be dropped out of a plane. Candidate Trump is now Pres. Trump. His words have consequences.

SGT. Bergdahl’s lawyers have filed a motion claiming they cannot obtain a fair trial. The Army lawyers have responded that the use of the term “traitor” was not meant in a legal way, but in a “conversational” sense, whatever that might mean. They also argue that no reasonable person would interpret Candidate now Pres. Trump’s words as anything other than campaign rhetoric. Again, I do not know what that means. Words have consequences. The military lawyers cannot un-ring the bell. They cannot withdraw or undo Mr. Trump’s words. I am doubtful the Army authorities will accept that sort of explanation. See CBS news report. If these remarks had been made by a general, there is no question the court martial would be dismissed. Those sorts of remarks do indeed prejudice any potential military jury. That the remarks were made by a candidate for President might make a difference. We will see.

There is a reason why candidates for any office generally refrain from commenting about pending cases.

Yes, some lawyers have a conscience. Like the “Saturday night massacre” a generation ago, Pres. Trump fired Sally Yates, the acting Attorney General because she refused to defend a questionable ban on travel for seven Moslem countries. See one description of the Saturday Night Massacre in 1973 here. Elliot Richardson and William Ruckleshaus refused to carry out what they believed was an unlawful order to fire Archibald Cox, the Watergate prosecutor. Ms. Yates refused to defend Pres. Trump’s ban on seven Moslem countries. She explained that she questioned whether that travel ban was lawful. See CBS news report.

The White House did not clear its ban with government agencies. It issued the ban with no prior coordination with the Department of Justice.  The travel ban obviously surprised the Attorney General’s office. As Ms. Yates indicated, she had serious doubts about its legality and she wrestled with what to do over the weekend.  She considered resigning rather than dealing with the problem, but she felt that leaving the office would just push the problem off on someone else.

Like 1973, this could portend further trouble for the president. When Nixon fired those two lawyers in 1973, that action very likely started his long journey toward eventual resignation. Firing the Attorney General and his first assistant was seen by many as unnecessary on Pres. Nixon’s part and clearly intended to protect himself. That was a shock to the country, just as today firing the acting Attorney General is quite surprising today. Ms. Yates is the only person at DOJ who is authorized to sign off on requests for warrants for foreign investigations. Her absence will surely cause further problems.

So, if you are at work, thinking you might be fired, you might think about taking some documents home with you. Some documents might help later if you have to file suit. Taking documents from your employer is problematic conduct. Yes, the documents might help your case, but they could also give your employer a basis for suing you. In Highland Capital Management, LP v. Looper Reed & McGraw, No. 15-000055, 2016 WL 164528 (Tex.App. Dallas 2016), the employee took home some 60,000 documents. Highland Capital sued its former employee, Patrick Daugherty, for violating his employment agreement, misusing confidential information and other causes of action. While that lawsuit was still pending, it also sued Mr. Daugherty’s law firm, Looper, Reed and McGraw, accusing the law firm of everything from refusing to return those documents to using those documents to threatening to use those document if certain sums were not paid to lying to the plaintiff about the scope of those documents.

Looper Read filed a motion for summary judgment. Looper Reed relied on the attorney immunity doctrine and on the fact that Mr. Daugherty prevailed in the original lawsuit. The attorney immunity doctrine apples to suits by third parties against lawyers for action taken during the course of representation. The trial court granted summary judgment.

The Dallas Court of Appeals found that Looper Reed was indeed protected by the attorney immunity doctrine. The former employer argued that the law firm acted in a criminal, tortious way in using the documents. But, the court of appeals noted that the law firm’s use of the papers, accepting them, reviewing them, advising a client to reject a counter-demand, speaking about an opposing party in a negative light, etc. are the sort of duties required of any lawyer. So, accepting Highland Capital’s allegations as true, they still do not rise to the level of actionable conduct. See decision here.

Defamation refers to uttering an untruthful statement about someone. “Libel” refers to written defamation. “Slander” refers to oral defamation. In the employment context, defamation has an extra hurdle. In Texas, to constitute defamation at work, the defamation must be made in the course and scope of employment. That is, the defamatory statement must be related to the speaker’s job. So long as the speaker makes the statement to persons with a duty or need to know, then the speaker will be protected by a qualified privilege. To qualify as workplace related defamation, the statement must be made as part of one’s job. If the statement is part of someone’s job, then it will be protected by a “qualified privilege.”

For example, if a manager makes a statement to someone in Human Resources about an employee, even if that statement is not truthful, then the qualified privilege would probably apply. The manager’s statement would be protected by this qualified privilege. If the manager makes a statement to a potential employer, then again that statement will be deemed to have been made in the course and scope of employment. So, the manager’s statement will be protected by the qualified privilege.

An employee can overcome the qualified privilege only be showing that the speaker acted with actual malice. Showing malice is a high burden. Malice refers to a person knowingly and deliberately causing harm. Malice is more than a mistake or a misunderstanding. To show malice, an employee would have to show the speaker knew or should have known the statement was not true and that the speaker sought to cause harm of some sort. Many employees have come to me seeking redress for defamation. Rarely have I seen sufficient evidence to make a case of malice.  It is quite difficult to get inside a person’s head and show what the manager was thinking. That sort of evidence is rare.

For example, an employer fires a person for alleged stealing. The employee did not steal.  But, how do we show malice? That is, how do we show the employer knew or should have known the theft allegations were not true? Most times, we cannot. How do we show the manager made the statement hoping to cause harm to the employee? Again, it is rare that an employee would have that sort of evidence.

Many of the normal principles of defamation law apply to the workplace: the statement must be clear and unambiguous. It cannot be capable of two different meanings, one of which might be non-defamatory. Truth is always an absolute defense to defamation. But, for most people charged wrongly with theft, there is little anyone can do about that sort of termination. Defamation lawsuits in the workplace are just too difficult.