San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

The Fifth Circuit overturned summary judgment for the employer in Schroeder v. Greater New Orleans Federal Credit Union, No. 10-31169 (5th Cir. 12/19/11).  The employee was fired after she complained about violations of law and regulation at a credit union.  Mary Schroeder filed suit based on 12 U.S.C. §1790b and La.Rev.Stat.Ann. § 23:967(A).  Sec. 1790 is a whistleblower protection act for credit union employees.  The trial court granted the employer's motion for summary judgment.  The plaintiff was fired Oct. 8, 2008 by the Louisiana credit union.  See Fifth Circuit opinion here. 

The appellate court overruled the summary judgment, finding that the lower court did not construe the available evidence in favor of the non-movant.  Sec. 1790b provides that a credit union employee may file suit if s/he is fired for reporting violation of law or regulation.   The three judge panel found that some evidence supported the employer, but some evidence supported the employee regarding the requirement to show causal connection between her reports of violations and her termination.  The court analogized by using the elements of proof for Title VII retaliation.  

One critical issue was whether Ms. Schroeder reported her concerns to the National Credit Union Association prior to her termination or after her termination.  There was some evidence that she made reports prior to her termination on Oct. 8, 2008.  Letters to the NCUA were dated Oct. 6, although the NCUA did not log them in until Oct. 21.  As the court noted, the trial judge should have construed that evidence in favor of the non-movant.  

Also, several co-workers knew Ms. Schroeder planned to go to the NCUA in June, 2008,  Phone records showed she made several calls to the NCUA in June, 2008.  She has a copy of her two Oct. 6 letters to the NCUA.  And, her attorney sent an email to the NCUA on Oct. 1, 2008.  As the court correctly noted, the lower court was required to view the evidence in light most favorable to the non-movant. So, the court concluded that Ms. Schroeder and her attorney submitted complaints in June and October, 2008 prior to her termination. 

Under Title VII and Sec. 1790b, the employee must show a causal connection between her opposition activity and her termination.  Regarding this causal connection, the court noted that Ms. Schroeder suffered no discipline until she was fired.  And, in fact, the employer praised her performance when she was demoted.  On the other hand, she was said to be "abrasive" to work with.  The court found overall that this evidence regarding her work performance was "neutral."  

Ms. Schroeder was demoted some two weeks prior to her first complaint to the NCUA.  But, her pay decrease came closely after her first calls to the NCUA.  And, her letters and her lawyer's email came shortly before her termination.  The court noted the competing inferences available from this evidence.  But, again, the court must draw inferences in favor of the non-movant.  Refreshingly, the court reaffirmed that such fact issues should be decided by a jury not by the judge.  So, the court found a close temporal proximity between her reports and her termination. 

The court of appeals then reversed the trial judge and sent the matter back to the trial judge for a trial on the merits. 

It is refreshing to hear the Fifth Circuit affirm the right to a trial by jury on key factual issues.  Perhaps, jury trials are not completely gone from the Fifth Circuit. 

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Legal scholars are becoming more aware that actual trials in federal courts have decreased dramatically since the 1960's.  Suja Thomas discussed this trend in a recent speech at Seattle University to mark the 25th anniversary of the summary judgment trilogy.  See Workplace Prof report.  Prof. Thomas mentions a couple of developments leading to this trend: the rise in arbitration and the summary judgment emphasis in federal courts.  See her paper.  

She mentions her own experience with arbitration when she and her husband purchased a house.  The sale agreement included an arbitration clause.  The house had some serious flaws (like no sewer connection).  The repairs would cost about $5,600.  Yet, the arbitration clause would require them to pay for three arbitrators, typically lawyers, and numerous fees that ranged from hundreds to thousands of dollars.  The arbitrator's fees alone would run into the hundreds of dollars per day.  All for a $5,600 problem.  Because Ms. Thomas is a lawyer, she was able to resolve it much simpler and more direct.  She could do her own research into the legal issues.  But, for the average homeowner, this would have been a minor catastrophe.  

Ms. Thomas mentions a good point regarding these major changes in how we resolve disputes: now, many disputes are not resolved at all and when they are, they are resolved by lawyers and other professionals, not by average citizens.  She mentions her own problem with a home builder.  She also mentions the case of AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011), a U.S. Supreme Court case.  The Concepcions had a $30 dispute with AT&T regarding their cell phone bill.  The cell phone agreement required them to take it to arbitration.  The agreement prevented them from seeking class actions.  The agreement allowed them to file suit in small claims court, but the filing fee for small claims court far exceeded the amount of the $30 dispute.

The California Supreme Court found that the e provision preventing them from seeking class action status was unconscionable and not enforceable.  AT&T appealed to the US Supreme Court, which affirmed the class action provision, saying that federal law favors arbitration.  

This is a crazy result.  The $30 dispute would have little value to anyone other than the Concepcions abd possible class action lawsuits.  Arbitration would require the Concepcions to pay fees in the hundreds of dollars - just to have their case heard by an arbitrator.  

The trilogy of summary judgment cases started the trend toward judicial resolution of cases.  As Prof. Thomas points out, summary (or "quick") judgment has become the tool to dismiss cases.  The trilogy includes Matsushita v. Zenith, 475 U.S. 574 (1986), Anderson v. Liberty Lobby, 477 U.S. 242 (1986), and Celotex v. Catrett, 477 U.S. 317 (1986).  These three decisions made it easier for employers and other to obtain summary judgments, an event that was formerly somewhat rare.  Summary judgment means the judge decides the case lacks merit and no jury ever hears the issues. It is resolution by judges. 

The Federal Judicial Center has found that summary judgment is granted more often in employment cases than any other type of case.  73% of employment cases result in summary judgment.  Other cases see summary judgment 60% of the time.  So, judges decide 73% of employment cases.  Judges are lawyers.  So, like arbitration, we have critical decisions made by lawyers. 

Prof. Thomas discusses remittitur.  If a federal judge is not happy with a jury decision, he can order remittitur, which is a reduction in the jury verdict.  More employment cases see remittitur than any other case.  In a study conducted by Prof. Thomas, 63% of the cases ordered to remittitur were civil rights cases. 

Prof. Thomas cites one estimate that one-third of all nonunion disputes end up in arbitration.  

The trend is toward disputes being resolved by a select, trained but biased dispute "clergy."  They are biased in the sense that this "clergy" will know and feel more comfortable with the employer who brings them business.  It is an institutional bias.  The problem with this arrangement is both constitutional and social.  The Seventh Amendment was intended to garauntee each citizen the right to a jury trial.  Now, by simply buying a house or applying for a job, we waive that right.

The social problem, says Ms. Thomas, is we are working toward having lawyers and judges decide all important disputes in our lives.   I think we all can agree that lawyers look at problems differently than others with different training.  I think we lose something when the average citizen is removed from this process. 

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A federal jury in Houston has returned a verdict against a former County Judge of $3.2 million.  James Blackstock, a former Brazoria County Court-at-Law Judge and former head of the Juvenile Probation Board was sued for sexual harassment by three female employees of the Juvenile Probation department.  The jury found the judge had created a hostile work environment and had physically assaulted one of the employees. 

The three women had complained the judge had hugged, groped, fondled, kissed them, and he had emailed them explicit photos.  In their lawsuit, they claimed the judge had preyed upon female employees for years with no repercussions.  Brazoria County and the Juvenile Board had previously settled with the plaintiffs for $135,000.  See Houston Chronicle report.  

The former judge had previously resigned his Board position after pleading no contest to charges of official oppression, a Class A misdemeanor. 

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 A similar question arises in all my employment cases.  In a recent case, the defense lawyer was deposing a witness who supported my client.  He asked why she thought the manager's remark was discriminatory.  Upon hearing that swine flu was predominant in the Rio Grande Valley, the manager had remarked, "Well, what do you expect from the Valley."  The witness recounted that comment as one of 3 or 4 discriminatory remarks made by the manager.  

This one may or may not show Hispanic bias.  But, the witness (Caucasian) believed it did.  The defense attorney then went down a line of questioning he would regret.  He wanted to challenge her perception.  The defense lawyer was new to South Texas.  He had moved here from a Northern state.  

Defense attorney: "Why do you think that comment refers to Hispanics?"  Witness: "Because everyone knows the Valley is mostly Hispanic."  "Are you Hispanic?"  Witness: "No, but I have several Hispanic relatives in the Valley and go there often."  Attorney: "Have you seen a census report for the Valley?"  ....  long pause.  The witness turns to face the defense lawyer squarely.  "I am from Cotulla.  I do not have to see a census report to know that Cotulla is predominantly Hispanic."  The defense lawyer then wisely dropped this line of questions. 

It is a common line of questions - the defense lawyer tries to challenge a perception of discrimination.  But, a perception, any perception belongs to the witness alone.  It is by definition subjective.  It is ultimately up to the jury to assess the validity of the subjective perception.  The jury decides the relevance of the remarks and whether one remark or all remarks display some bias.  

Some minority clients have actually backtracked or apologized for their perception.  They should not.  Minorities notice things that majority members of a group do not notice.  Body language, facial expressions are facts.  Observations are facts.  Ultimately, it is up to the jury to agree or disagree that certain body language or particular jokes amount to bias.  The beauty (and weakness) of the jury system is that the juries reflect common beliefs, good or bad. 

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Judges always tell jurors not to do their own legal research during a trial.  A jury is supposed to use the legal terms provided by the court.  Our judicial system relies on legal standards that are known to both sides, defense and prosecution.  The two sides to any trial will devote considerable time and energy to what legal definitions and terms are used in a trial.  

One San Antonio juror did what many do these days, he looked up the definition of murder and manslaughter, I am sure, on the internet.  That research resulted in a mistrial in a difficult murder trial.  The District Attorney's office has said they will seek a second trial. 

Now, the defense lawyer wants the name of the juror and wants the juror to help pay for the expense of a second trial.  See San Antonio Express News report.  The defense lawyer wants the miscreant juror to help pay the attorney's fees for his client.  While, the prosecutor replies no, that juror should help pay for jury fees and the expense of bringing in out of town witnesses again.  If the juror is found in contempt, s/he could be placed in jail for up to six months and be ordered top pay a fine. 

This particular trial of a homeowner who killed an intruder is complicated.  The "intruder" was shot several times outside in the driveway area.  The homeowner used hollow point bullets.  The home late at night looked very much like the home of the intruder's family where he was staying.  The "intruder" did not have a criminal record and was a college student at an out of town college.  It was the sort of trial that comes with many expenses.  

This will happen and has happened all across the country.  The internet has made legal terms and definitions available to everyone with an internet connection.  This sort of jury research has happened before.  See my prior post.  Jurors need to be alert more than ever to warnings and advice from the judge. 

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 Trial lawyers treat jurors with kid gloves.  We are extra polite, extra respectful in regard to those citizens who perform their civic duty without complaint.  The pay is low, yet their service is invaluable.  But, what do you say when a juror violates one of the basic  requirements of jury duty?  A trial is a serious thing.  When the defendant could go to prison or worse, it is even more serious.  Yet, during one criminal trial, a member of the jury posted on her Facebook wall that she looked forward to finding the defendant guilty.  She posted this comment while the trial was till ongoing.  See report.  The son of the defense lawyer saw the comment and told his mom.  The mother defense lawyer told the judge.  The judge removed the Facebook poster from the jury and replaced her with an alternate. 

Was the jury member listening to the whole trial with an open mind?  Was she ready to listen to the defendant's evidence, which always comes last?  We hope so, but her Facebook comments suggest otherwise. 

The juror was removed form the trial soon enough not to cause a mistrial.  But, the juror may well be found in contempt.  

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Well, the Texas Supreme Court is again dismantling victim's remedies.  But, this time, they are working against small ranchers.  In Bennett and Bonham Corp. v. Reynolds, the court took away another jury verdict.  This time it was a cattle theft case.  The jury awarded $5,327 in actual losses and $1.25 million in punitive damages.  The Supreme Court considered whether the punitive damages were too high in relation to the actual losses and said the amount was too high.  The court found that the 235:1 ratio was too high.  

Punitive damages are designed to punish a transgressor, beyond mere negligence.  The Texas Supreme Court reversed the lower appeal court and found that Bennett's trangsressions were more about the litigation than about the actual theft.  The two ranching families were neighbors and nursed a long-time feud.  Seventeen head of cattle strayed onto Bennett's property.  Bennett sold them.  Bennett denied to Reynolds knowing anything about them and thus prolonged Reynolds' discovery about the sale for some three months.  Reynolds sued Bennett, who then counter-sued claiming Reynolds had made everything up. 

The Court found that Bennett threatened a witness; attempted to bribe another witness; doctored some photos of the stolen cattle at auction; filed suit against a Reynolds ranch hand; and Bennett tried to meddle with Reynold's registered brand.  All pretty bad stuff. 

But, the Supreme Court found these bad acts occurred during the litigation, not as part of the theft,  So, in a technical ruling, the court found these bad acts essentially did not count for purposes of punitive damages.  There were other ways of dealing with reprehensible litigation tactics, said the court. 

In the Army, we have this marching song which we most often used to sing when we did physical training.  On those long runs, someone would strike up, "We're at it again, on the road....," we would wail.  Well, the Texas Supremes are at it again....

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 A state district judge was selected for a jury in Dallas County.  Judge Carlos Cortez was shocked that he was not stricken by one side or the other.  But, he says he enjoyed the experience.  He declined to serve as jury foreman, because he wanted to watch the process.  He eventually became the lone dissent, as the other five members voted to find no liability on the part of the defendant in a car wreck case.  See report.  

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 The state appeals court in Austin looks at what is sexual harassment and what is not.  Sex harassment refers to the situation in which a woman (or a man) is harassed without explicit requirement of a sexual relationship.  Sex harassment simply refers to harassment short of an explicit  relationship.  in Twigland Fashions, Ltd. v. Miller, the state Third Court of Appeals looked at a 49 day period in which a regional manager focused his attentions on a female store manager.  He hugged her twice - two "full body hugs." He told he loved her.  He told her she had to kiss him whenever she made a mistake.  Mike Mslanka discusses the case in his recent post.  The supervisor came up behind the female employee and wrapped his arms around her and pressed his body against hers.  She was fired after she spent two weeks avoiding the regional manager. 

But, the employee also testified that she could perform her work just fine when the regional manager was gone.  He only came to the store once or twice a month.  To constitute sexual harassment under Title VII or Texas Labor Code Art. 21, the harassment must rise to the level such that it affects the terms and conditions of her employment.  The court said the harassment must be so extreme and abusive that it deprives the victim of an equal opportunity in the workplace.  The court found that since the employee could perform her tasks well in the absence of the male supervisor, then her work conditions were not affected.  

Mike Maslanka describes this court decision in positive terms.  Of course, I represent employees mostly and find the decision troubling.  If the woman must fear every visit from this supervisor, are not her working conditions affected?  If she must work so hard to avoid him when he is present in the store, are not her working conditions affected?  Mike does not mention that the victim, a store manager who had been promoted by the regional manager, believed that the supervisor was suggesting that she cooperate with him if she wanted continued promotions.  See court decision. 

As Mike points out, this standard should be the same standard for racial victims, too.  He is right.  It should be.  But, we know that the standard used in this Miller case is not the same standard.  In a race or national origin case, it would be enough that the supervisor made disparaging comments about a man's race or national origin.  It would be enough if the supervisor suggested a deal with an employee, cooperate with him outside the office and promotions would continue.  But, because this case is sexual harassment, these facts are not enough.  The Miller court is applying a higher standard.  If this were not a sex harassment case, most courts would find the working conditions have been adversely affected in this work environment.  

The jury apparently agreed with me.  In this case, the appeals court took away the jury verdict.  As I have mentioned before, many juries understand the realities of the workplace better than many judges. 

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 According to a recent study by Manpower and Jury Verdict Research, employers won only 39% of jury cases in the past year, tied for the lowest percentage in this decade.  The lowest win rate was 33% for age cases and the highest win rate for employers was disability cases with 52%.  The median settlement amount was $90,000.  But, before my current clients see this and go bonkers, I am sure that means there was some very large amounts raising that amount so high.  Most employment cases settle for less than $20,000 in my experience.  

Why is the win rate for employers lower this past year?  Russ Cawyer advances various reasons, all of which make sense.  With the downturn in the economy, many potential jury members are out of work.  That sort of experience makes discrimination and employment issues more credible.  Mr. Cawyer mentions that in two recent jury trials, many more potential jury members were out of work or had a close family member who was out of work.  And, as he adds, in a down economy, many employers will take their chances at trial instead of trying to settle the case.  

Russ Cawyer, a management side lawyer, sees this as part of a trend favoring employees over employers.  Perhaps, but like everything, trends come in cycles.  

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 Five members of a jury "friend" each other during a jury trial.  In another trial, one involving murder, jury members look up key scientific terms on Wikipedia during deliberations.  The jury looked up terms helping them understand how blood settles, an important issue in the murder trial.  Court personnel found the results of the research after the trial was complete.  Of course, a jury is supposed to only consider the facts and information presented during trial.  They are not supposed to do their own research.  Both instances occurred in Maryland.  That state is now considering adding jury instructions to specifically prohibit online research by jury members.  

In the Facebook incident, five jury members formed a clique, allegedly upsetting the jury dynamics.  That is a problem since most jury instructions tell the jury they cannot discuss the case until both sides have rested and concluded their presentation of evidence.  One of the five apparently heard suggestions on how the trial should turn out from an outside observer.  One of the parties to the trial is seeking a new trial.  So, yes, forming a clique too early would be a problem.  See ABA Bar Journal for more info. 

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 The Texas Supreme Court has once again overturned a jury verdict and a successful appeal by a plaintiff.  In Whirlpool, Inc. v. Camacho, Texas' highest civil court found deficient the testimony of an expert who testified that a fire was caused by a faulty dryer.  The fire took the life of teenage Joab Camacho and consumed the Camacho mobile home.  

In the Court's decision, it explained in great detail how the dryer works and how the heat is vented, even providing a cross-section of a dryer vent.  The Court faults the Plaintiff's expert for not conducting different tests that might help explain the cause of the fire.  It is never a good sign when an appellate decision parses evidence so carefully.  The court comes very close to weighing the evidence.  Weighing evidence, of course, should the province of the jury, not a group of judges. 

The high court unfortunately gives very little weight to the jury findings.  There is supposed to be a presumption in favor of jury findings.  Any expert goes through tremendous scrutiny both at trial and at the intermediate appellate court.  The Supreme Court disregards all that scrutiny in overturning this decision. 

Former Mayor Phil Hardberger wrote a nice law review article on the corporate friendly Texas Supreme Court eleven years ago.  He was still an appellate judge at the time.  This recent Texas Supreme Court decision continues that unfortunate trend supporting big business at the expense of families and individuals.  

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 Sometimes, the best advocacy is the least advocacy.  Subtle can persuade better than histrionics.  Read Mike Maslanka's post about the president's speech last week.  When the President was accused of lying, he did not over-react.  He under-reacted.  His subtle reaction said more than histrionics ever could.  Mike then relates a similar experience from one of his trials.  Mike ia primarily a defense lawyer doing labor and employment cases.  So, the plaintiff he refers to was probably an employee.  An employee who blurts out anything demeaning or insulting will surely lose.  Mike played it well: he under-reacted.  He probably aroused the jury's sympathy.  

Its a scary thing to lose a job through no fault of yours.  Its scary to get in trouble at work through no fault of yours.  But, do not over-react.  In trial, the judge and jury see everything you do.  Whatever you do becomes magnified.  The jury may not understand legal issues.  But, they will surely understand human dynamics.  Under-reaction says much more.  

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