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

The former Chief Financial Officer for the Bexar County Medical Society has sued her former employer for sex discrimination and retaliation.  See San Antonio Express News report.  Former CFO Patricia Baldeschwiler served in the post about eight years.  According to her lawsuit, Ms. Baldeschwiler and other female employees began to experience sexual discrimination from the Chief Executive Officer, John Wisneiwski.  The plaintiff says she took her complaints to the executive committee of the BCMS in October, 2009.  She was fired three weeks later.  So, of course, the lawsuit claims she was fired in retaliation for opposing discriminatory practices. 

As I have mentioned before, discrimination is often subjective and difficult to prove.  But, if an employer fires someone soon after a complaint of discrimination, then the suit becomes one involving retaliation. Retaliation is much easier to prove. 

The Express News report mentions that Ms. Baldeschwiler received her right-to-sue notice from the EEOC in September, 2010.  But, she did not file suit until now after receiving a separate right-to-sue notice from the Texs Workforce Commission's Civil Rights Division.  That is, surely because the former CFO preferred to file suit in state court.  A plaintiff who wishes to file in state court must obtain a right-to-sue notice from the Civil Rights Division of TWC. 

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Retaliatory lawsuits are rarely a good idea.  Employers can feel very offended when an employee files a lawsuit. The employment relationship can be like family.  So, sure, many employers feel some betrayal when they are sued.  But, to respond with a counter-lawsuit almost never works. 

In one case, the employer responded to a discrimination lawsuit by employees with a counter-suit for defamation. The timing of the counter-suit seemed suspicious enough, but the employer also asked for $1 million in damages.  The court eventually found the counter-suit to be frivolous and sanctioned the employer to pay attorney's fees for the employee.  Not only did the employer lose its supposed counter-suit, but he cast substantial doubt on whatever defenses he had to the original discrimination lawsuit by his employees.  

So, if you, the employer counter-sue and lose, you could incur additional tens of thousands of attorney's fees owed to the plaintiff - in addition to the tens of thousands you owe to your own lawyer.  Not a good business decision, after all. 

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You would think people would know better, by now.  St. Phillip's College, a junior college, part of the Alamo Community College District system, is investigating an administrator at St. Phillip's for sending hundreds of bawdy emails.  See San Antonio Express News report.  Warren Parker, an instructor at St. Phillip's, filed a complaint with the EEOC about allegedly hundreds of emails sent him by Program Director Donna Laird.  Mr. Parker claims that Ms. Laird cc'ed so many people, including her own supervisors, that he presumed these emails were the norm.  He failed to complain until he was recently turned down for tenure.  Mr. parker claims these emails evidence sexual harassment. 

The Complainant says Ms. Laird has been forwarding these emails to him since he started working at St. Phillip's in 2005.  He retained some 100 of these mails, but claims there have been 400 or more.  The emails include scantily clad vaginas, pictures mocking young blacks dressed up for prom as "ghetto," a woman simulating oral sex on the stick shift of a car, and more.  

For those of you who do not know, you should not forward such emails.  Racy emails contribute nothing to your work and could place you in a position similar to that which Ms. Laird now finds herself.  Not surprisingly, the Express News reporter tried to contact other recipients of the email and could find no one willing to speak to her.  

The day after the Express News published this initial report, St. Phillip's College fired Warren Parker. See San Antonio Express News report.  The letter firing Mr. Parker was apparently mailed before the news report was published.  St. Phillips better have a good reason for the termination.  Anytime an employer fires an employee after they have filed an EEOC charge, the employer needs to have a very good reason.  Without a good reason, the termination will look like retaliation for EEO activity.  

St. Phillip's claims it fired Mr. Parker because he used a sick day to take care of his side-busines, providing education for radiography users.  But, St. Phillip's will need to show that it has fired other employees with similar transgressions.  

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Worker's compensation protects employees who suffer on-the-job injuries.  The worker's compensation scheme was devised back in the 1920's and 1930's as a way to prevent lawsuits against employers.  The intent was to provide some modest level of compensation for workers who get injured.  In return, employees would give up the right to file personal injury lawsuits against their employer.  Employers would then avoid unpredictable lawsuits which could result in large verdicts.  

Over time it became necessary to provide incentives for employers not to take action against employees who file worker's compensation claims.  The Texas Labor Code provides for a lawsuit based on worker's compensation retaliation.  See Sec. 451 of the Texas Labor Code.  If a worker suffers reprisal for filing a worker's compensation claim, then that worker can sue the employee for retaliation. 

In recent years, the Texas courts have limited the worker's comp protections.  In the 1990's, for example, the Texas Supreme Court addressed the situation concerning employers who are not enrolled in the Texas Worker's Compensation System but who do have some sort of health insurance for workers who get injured.  These employers are considered to be "self-insured" for purposes of worker's comp insurance.  Would such employers be subject to the anti-retaliation provision?  No, said the Texas Supreme Court.   Such employers are not included in Sec. 451.  That is, if an employer is self-insured, they can fire an employee who files a on-the-job injury health claim.  Firing such an employee would not be retaliation under Sec. 451.  See Texas Mexican Railway Co. v. Bouchet, 963 S.w.2d 52 (Texas 1998). 

Now, the Texas Supreme Court has held that local governmental subdivisions are not covered by Sec. 451 either.  In fact, they have overruled their prior decision to the contrary, City of La Porte v. Barfield, 898 S.W.2d 288 (Tex. 1995).   In this new decision, the Supreme Court has found that Sec. 451 did not waive governmental immunity, after all.  See Travis Central Appraisal District v. Norman, No. 09-0100 (Tex. 4/29/2011).  The Court bases its decision on some amendments to Sec. 504, a companion article, which, in the view of the Court, retracted prior waiver of governmental immunity. 

Governments must waive immunity to be sued.  That is a precept as old as the United States.  So, now, according to the Texas Supreme Court, the state legislature did not waive governmental immunity.   Government workers can now suffer retaliation if they pursue their right to file a worker's compensation claim.  

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 The EEOC has filed suit against an oil rig construction company doing business in Texas and Mississippi.  The EEOC filed suit against Signal International LLC in Gulfport, Mississippi on behalf of indian workers recruited for US work on an H-2B visa.  The workers were recruited to come here to work as welders and pipefitters in Pascagoula, Mississippi and Orange, Texas.  Signal says they needed the workers in the aftermath of Hurricane Katrina when workers were scarce.  See San Antonio Express News report.  The workers came here from 2006 through 2007.  The suit seeks class certification. 

The suit claims discrimination based on ethnic origin and retaliation.  Some of the workers began seeing lawyers in 2007 regarding their conditions.  They were subjected to harsh language, unsanitary living conditions.  Their living area was surrounded by a fence and the immigrants were sometimes searched before entering.  In response to the workers seeing lawyers, Signal rounded up five workers and sent them home to India.  

I presume the "harsh" language refers to racial epithets.  Otherwise, such language would not be relevant to a lawsuit based on discrimination and retaliation. 

Some workers filed suit in 2008 alleging human trafficking and racketeering.  Assisted by the Southern Povery Law Center, that earlier suit is still pending. 

As always, discrimination lawsuits can be problematic.  But, retaliation suits are much easier for the worker to win.  Employers should not take reprisal for workers seeking their rights under Title VII.  That only makes the situation worse. 

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Two former employees of Dallas law firm Simon, Eddins & Greenstone have filed suit against the firm alleging sex based discriminatioon.  The women filed in federal court according to an April 11 report in Texas Lawyer.

In Franklin v. Simon, Eddins & Greenstone, Katherine Franklin alleges an associate lawyer, Ben Braly, sent her a link via email in November, 2009.  The link allegedly included a picture of partner Greenstone's penis.  Ms. Franklin contacted the EEOC.  She provided info to the EEOC in preparation for filing a charge.  She reported the pornography to Partner Simon, she alleges.  

She met with a lawyer outside the firm who said he was related to Simon and could not represent her.  The firm then fired her the next day in December, 2009. 

The firm claims Ms. Franklin was fired after she received a poor review.  Franklin says she had received good reviews before that and had received a $500 bonus.  Ms. Franklin says Mr. Greenstone showed her the email and told her she did not have to open it - apparently suggesting it was her choice to click on the link. 

In an interview, Mr. Greenstone says in November, 2009, he changed the screen saver on the associate's phone to something "inappropriate."  Ben Braly, the associate lawyer, then tried to respond by sending a mock Human Resources complaint about Greenstone to another lawyer.  But, Mr. Braly inadvertently sent the prank email to Franklin.  The prank email contained a link to a video of two men.  Mr. Greenstone says Mr. Braly apologized immediately to Franklin.  He says no one saw the inappropriate image other than Mr. Braly.  

Mr. Greenstone emphasizes that he never intended to offend anyone.  There are things they do in the office for fun.  And, they want everyone to be treated with respect, he added.  

The firm denies the picture of the penis was Mr. Greenstone's.  The Plaintiffs' lawyer says he does not know if is or is not, because he has never seen Mr. Greenstone's penis.  In a Title VII analysis, I think it matters little to whom the penis belonged....  

The firm may have some good facts with which to minimize the sex harassment portion of the case.  But, retaliation is always the stronger claim.  The retaliation claim plus the "frat boy" atmosphere puts the law firm in a bad position. 

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In a recent decision, the US Supreme Court ruled that the Fair Labor Standards Act does indeed provide protection for employees who complain or ask about wages orally.  The federal courts have disagreed on this issue for decades.  They all agreed that the FLSA protected employees who complained in writing about wages.  But, several courts found that the 1938 statute did not protect employees who complained verbally.   See Supreme Court decision.  The court voted 6-2 in favor of the employee. 

As the Court pointed out, the act was passed at a time when many workers were illiterate.  Just over 20% of manufacturing laborers in 1940 only had five years of schooling.  It was often simply not practicable to write up complaints in a workplace where work sites were dirty and special clothes were necessary.  Kasten v. St. Gobain Performance Plastic Corp., (3/22/2011). 

And, of course, truly, few employees would have the nerve to complain in writing.  But, many employees do indeed ask simple questions about wages and then suffer reprisal.  One of my clients once noted that a big box store failed to pay overtime to some seasonal employees.  My client simply asked one of the managers if that was kosher?  The client really thought he was just trying to help management and the workers.  Big box store never asked him to return - he was a seasonal employee himself.  If this decision had been issued sooner, that client could have filed some legal action about their reprisal against him. 

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An employee went to the EEOC.  She was being sexually harassed in a pretty blatant manner by the owner of a small company somewhere in the USA.  She meets with an investigator who tells her that she has no case, because she has no evidence.  EEOC investigators should not give legal advice, but  it happens sometimes.  They are investigators, after all.  Investigation sometimes involves discussions about evidence.   

The complainant then responds that she has witnesses.  Investigator tells her to call her Human Resources person to make a report.  The employee calls HR from the investigator's office.  She reports the sexual harassment. 

Within ten minutes, the owner calls the employe, still at the investigator's office.  She puts him on speaker phone.  The owner says, "I understand you complained about me.  You don't need to return to the office."  The owner fired the employee over the EEOC's own phone within ten minutes of her complaint.  The investigator heard it all. 

One might think, great, what great evidence!  The silly owner called and fired the employee for pursuing her rights with the EEOC - right where the EEOC could observe the whole chain of events.

Wrong.  The invstigator still insisted she had no case and refused to allow her to file a claim for discrimination or for retaliation.  He tells the employee she should just go collect her last paycheck and move on with her life.

This is the organization that on its own website says:

"The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's . . .  sex . . . . It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit."

 As I have mentioned before, do not expect much from the EEOC.  Most investigators mean well. They have far too many cases to perform an adequate investigation in any one case.  Of course, this situation goes beyond mere investigation.  The investigator already has all the necessary facts on which to start and conclude an investigation.  I can only conclude that the culture at some EEOC offices is indifferent and blind to the realities of the workplace.  

Is there room for doubt that the employer just retaliated against the woman because she opposed discrimination?  The investigator saw and hard it all.  He already has enough evidence to find in her favor on the issue of retaliation for opposing discrimination. 

The EEOC does have some teeth.  They do file lawsuits on behalf of employees.  But, situations like this one suggest that sometimes they will not see discrimination even if it is in front of their nose......

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 The Ninth Circuit joins the Seventh Circuit in finding that an employee suing for retaliation under the Americans with Disabilities Act is not entitled to compensatory damages or punitive damages.  Alvarado v. Cajun Operating Co., No. 08-15549 (9th Cir. 12/11/09).  The court also ruled that a jury is not available.  See brief discussion.  Mike Maslanka agrees with the result.  

In fact, the Southern District of Texas reached the same result in a different case at about the same time: Miles-Hickman v. David Powers Homes, 613 F.Supp. 872 (S.D.Tex. 2009).  

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 Most people are familiar with the retaliation part of Title VII of the Civil Rights Act of 1964.  That anti-retaliation provision prohibits retaliation against someone who opposes discrimination.  Texas is, of course, an at-will state.  But, even so, we do have a few state anti-retaliation statutes.  

Texas prohibits reprisal against an employee who reports abuse or neglect of a resident at a nursing home.  Texas Health & Safety Code Sec. 242.133.  Such a lawsuit must be filed within 90 days of the alleged reprisal.  

An employee is protected against being ordered to commit an illegal act.  This claim is known as a Sabine Pilot claim, after Sabine Pilot v. Hauck, 687 SW 2d 733( Tex. 1985).   The refusal to commit an illegal act must be the sole cause of the termination. 

An employee is also protected because he/she served on a jury.  Texas Civil Practice & Remedies Code Sec. 122,001.  An employee who believes he/she has suffered retaliation due to jury service has two years in which to bring such a claim.  The damages are limited, but still, this statute does offer some protection. 

Also, state or local government employees are protected if they report violations of law by their employer.  See Texas Government Code Sec. 554. The good faith report of the violation of law would need to be made to the appropriate law enforcement agency. The report would need to be related to the reporting employee's official duties. 

While this list is not completely exhaustive, these are the few protections we Texas employees have which actually have some teeth.  

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