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If a female employee is assaulted and harassed, can she sue for assault or for sexual discrimination or both? According to the Waffle House, Inc. v. Wiliams, 313 S.W.3d 796 (Tex. 2010) decision, she would have to sue under the Texas Commission for Human Rights Act for discrimination. Limiting the female employee to sex discrimination when her damages might be far worse than allowed under the TCHRA severely limits her. I wrote about that decision here. I also wrote about the pending appeal in the case of B.C. v. Steak ‘n Shake, No. 15-0404 (Tex. 2017). As the B.C. decision illustrates, what happens when the sex discrimination is just one single violent act? In that situation, the female employee could not make out a case for sex discrimination. Her case would be dismissed. A single act of harassment by a co-worker will almost never suffice to establish a claim for sexual harassment by a co-worker.

Fortunately, the Texas Supreme Court recognized that conundrum. In perhaps the only employee friendly decision from the Texas Supreme Court since before 2000, it found that the basis of B.C.’s claim is assault, not harassment. The assault was not tied to any promotion or threat of termination. There was nothing about the assault that suggests her supervisor had the intent to interfere with her job performance. In short, said the court, nothing about this situation indicated that the employer might be liable for tolerating a hostile work environment. That is an important distinction. That means the employee does not need to show the employer knew or should have known the supervisor was capable of sexual violence. The employer can still avoid liability for other reasons. But, it cannot avoid liability by showing it took steps to prevent sex harassment.

The Supreme Court found that the Legislature in passing the TCHRA, intended to create a scheme to combat workplace harassment, not abrogate common law assault. But, the court did not really reconcile its decision in Steak ‘n Shake with Waffle House. In Waffle House, it said flatly that common law tort claims like negligent supervision were incorporated by the Legislature into the TCHRA. See Waffle House decision here. The two opinions can probably not be reconciled. As  the dissent to Waffle House points out, common law claims are not pre-empted unless clearly so stated in the statute. The TCHRA does not specifically pre-empt any common law tort claim. Even so, we can all agree that assault claims are not preempted by the TCHRA. See the B.C. v.Steak ‘n Shake decision here.

Texas has a whistleblower statute. It applies only to government workers. In a recent whistleblower decision, the Fourth Court of Appeals here in San Antonio reversed a grant of summary judgment. In the case of Torres v. City of San Antonio, No. 04-15-00664 (Tex.App. San Antonio 12/7/2016), Lt. Torres worked for the City Fire Department. In 2009, he was assigned to the Arson Division, where he would spend time at the San Antonio Police Department building. As an arson investigator, he had credentials to access a secure area at SAPD. He noticed two former arson investigators using credentials to get into the same secure area. They should have turned in their investigator credentials when they left the Arson Division. So, Lt. Torres mentioned this to his Captain. A few days later, he submitted a report to the Deputy Fire Chief. Believing no action was being taken, a few days later, he submitted a complaint to the City wide Office of Municipal Integrity. OMI investigated and found the two former Arson investigators were indeed retaining their former credentials. Fire Department Chief Hood was aware they were retaining their credentials, but the Chief did not realize that retention violated statute. Changes were made in procedures to keep this from happening again. Lt. Torres left the Arson Division a few months later.

In 2012, Lt. Torres applied to return to the Arson Division. He was turned down in favor of someone less experienced and without the necessary certifications. The persons making the selection included Chief Hood and Torres’ former supervisor, Capt. Casals. Both Hood and Casals said they overlooked Lt. Torres for the position in part because of his prior complaint to OMI. That evidence amounts to a clear violation for he Texas Whistleblower law. Under the statute, a claimant must show: 1) he was a public servant, 2) he made a good faith report of a violation of law by his employer governmental agency, 3) he made the report to an appropriate law enforcement agency, and 4) he suffered retaliation at work for making the report. Yet, the lower court granted summary judgment.

The City presented evidence that Torres made the report not out of good faith belief, but to shield himself from consequences of unilaterally causing the credentials to be cancelled for the two prior former Arson Investigators. Lt. Torres responded with evidence showing that other officers would have made the complaint, and that he only went to OMI after he saw no action was being taken by the Fire Department. The court of appeals found there was genuine issue of material fact regarding whether his report was in good faith. The employer also argued that the plaintiff did not show his being turned down for the position was related to his report to OMI.

The City showed several reasons why Lt. Torres was not selected, other than his prior whistleblower complaint. But, said the Fourth Court, the plaintiff is not required to show his reporting the credentials issue was the sole reason for being passed over. Instead, the employee need only show that but for the report, he would not have been turned down. That is, the employee need only show the report played some role, however small in the action taken against him. The issue should be resolved by a jury, said the court. See the decision here.

 

 

Some of us are more likely to contract certain illnesses due to our genes. But, would we want our employer to know about those predisposed illnesses? Well, a bill proposed in Congress would allow your employer to ask that question. HR 1313 passed a vote in committee and is now before the whole House. It would allow your employer to require you to take a genetics test to determine if you were predisposed to certain illnesses. All 22 Republicans voted for the bill. All 17 Democrats voted against it. Observers expect it will be attached to the current new health care bill now working its way through Congress.

The bill, known as the Preserving Employee Wellness Programs Act, would apply to employer health care wellness plans. If the employee refuses to take the DNA test, then the costs of his/her health care would rise 30%. See Time news report. Under current law, known as Obamacare, an employer could require an employee to pay more for insurance if s/he refuses to participate in an employer’s wellness plan. The idea is to improve the health of workers and thereby reduce health care costs for the employer. Wellness plans include more than just health insurance. But, there is little evidence that wellness programs actually improve the health of a workforce. And, there appears to be no direct correlation between genetic predisposition and a person’s health. But, that does not appear to stop House Republicans from advancing the proposal.

The 2008 Genetic Information Nondiscrimination Act prevents employers from discrimination against a person for a genetic predisposition toward certain illness. The GINA bars an employer from even asking workers to undergo a DNA test. So, I presume the current bill, if passed, would or could overrule the GINA.

Big Brother is out there, and he may be your employer. It is bad enough to be fired because you develop a serious illness. But, to be fired because you might develop a serious illness is more than most people can accept.

I wrote about Ricardo Romo previously here. He was placed on leave from his position as president of the University of Texas at San Antonio. When he was first placed on leave, he pledged to clear his name. Now, he has decided to retire. He does not explain the entire situation but suggests he was the subject of a sexual harassment complaint because he engaged in an abrazo at work with female employees. His chief of staff, Sonia Martinez was also placed on leave at the same time. See San Antonio Express News report.

I am not Hispanic, but my experience with the abrazo is: 1) it is voluntary. The participants are not required to engage in an abrazo. Persons wishing to show mutual affection can choose to simply shake hands. And, 2) the abrazo is basically a hug. Hugs come in degrees of closeness.

Mr. Romo’s story sounds fishy to me. No sexual harassment claim is based simply on hugs. Words are required to make a case. Hugs are capable of subjective interpretation. Hugs alone are not enough. And, when the alleged perpetrator is a president of a public university, the quality of proof must be stronger than normal. The case against this former president surely involved more than simple hugs.

The colonel hearing the court martial of Bowe Bergdahl will not dismiss the charges against the young sergeant. He agreed the comments by then Candidate Trump were troubling. But, he would not agree they were so pervasive and unfair as to saturate the community and cause prejudice. See CNN news report. The lawyer for SGT Bergdahl will appeal.

All I can say is the defense has a pretty good appeal issue now or later. Candidate Trump’s comments were very unwise. He repeatedly referred to SGT Bergdahl as a traitor during his campaign.

Its a reminder that discrimination and prejudice is often just below the surface. A customer at a San Antonio restaurant left a racist note after he finished his meal at Di Frabo Ristorante Italiano. The restaurant lies in a wealthy area near the Dominion suburb. The customer left a note on his receipt: “The food was tasty and the service attentive. However, the owner is ‘Mexican.’ We will not return. America First.” The owner, Fernando Franco, is indeed from Mexico City. He came here to expand his brand across the border in Texas. He moved to San Antonio in 2012 on an investor E-12 visa.

He posted the note on Facebook and Twitter. It was retweeted some 12,000 times by Monday. His post received a strong reaction from Trump supporters. Mr. Franco is concerned for his safety and that of his family. He does not know how the customer knew he was Mexican, but he says he does look like a “typical” person from Mexico. But, the restaurant has also received much support in response to the note. One person commented, “God bless you, sir. Keep up the good work. That customer was an idiot and is setting a terrible example for his children.” See San Antonio Express News report.

It appears that the election of Donald Trump has brought out some of the crazies. One has to wonder how this person hopes to dine in San Antonio and avoid Mexican owners. We do not lack for restaurants with some connection to Mexicans or Mexican -Americans. I see a lot of hamburgers in one customer’s future….

There are many issues with Pres. Trump’s travel ban. One important consideration is the risk it poses to U.S. troops serving in Iraq and Afghanistan. We still have several thousand soldiers in Afghanistan and a few hundred in Iraq. Add to that the thousands of U.S. civilians in support of the soldiers serving in those two countries and you have a good many Americans who serve as handy targets for ISIS and Al Qaeda. Political issues that affect the Middle East reverberate in Iraq and Afghanistan. The jihadis are motivated when they hear the U.S. or Western nations supposedly oppressing Moslems.

When I served in Iraq, every staff tracked attacks on Coalition (i.e., U.S.) forces. The statistics were part of the daily briefing presented to every commander. We knew there would be a spike in attacks anytime Middle East or Israel issues became part of the public debate in America. It was part of our intel or “enemy situation” briefing. It is without doubt that right now as we speak, soldiers in Iraq and Afghanistan are scaling back their activities to some degree to avoid the large spike in attacks. For your average revenge minded terrorist, mainland U.S. is a long way to go. But, northern Iraq and central Afghanistan not so much. See the Brian Chasnoff column in the San Antonio Express News in which Rep. Will Hurd speaks to that concern. Congressman Hurd is a former CIA officer. He would know. As a former U.S. Army officer, I also know. Talk tough here. But, over there, they pay the price.

Many employees find themselves in a real quandary when the employer asks them to commit an illegal or unethical act. Texas law protects a worker who is asked to break a criminal statute. But, some employees become so vexed about their situation that s/he goes to the media. That is what happened in Peine v. HIT Services L.P., 479 S.W.3d 445,  2015 WL 6490290 (Tex.App. Hou. 2015). Joseph Peine was a CPA working as a CFO for HIT Services, a heavy turbine business group. According to Peine’s evidence, the company was in financial trouble. It had a history of inflating earnings in the past. He was hired to help turn things around, he alleged. This concerns a motion for summary judgment, so Mr. Peine’s allegations should be assumed as correct. The CFO alleged he was asked to inflate earnings for the year. He was told to claim a project had been completed, when it had not been completed. Mr. Peine refused. His boss, Durg Kumar threatened him and others in the CFO office if the CFO did not follow orders. He said he would “clean house” if the CFO did not comply with his order.

Mr. Peine went around Kumar to talk to higher-ups. Mr. Kumar went around Peine to get things included in the quarterly financial statement. The parent company placed Mr. Peine on leave with pay while it investigated claims made about him. About the same time, Mr. Peine contacted a Thomson Reuters reporter and provided documents. He suggested they wait to see if HIT would fix the problems before going forward with any news report. Soon, the company investigation uncovered the email from Peine to the reporter. The investigator, an in-house attorney, recommended that Mr. Peine be fired for violating the company’s confidentiality policy. Within a couple of months of his initial complaint to the parent company, Mr. Peine was fired.

The CFO filed a lawsuit based on Sabine Pilot Services, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). Sabine Pilot is that rare case of judge-made law. That decision recognized an action to sue for a termination resulting from a worker’s refusal to follow an illegal order. The employer moved for traditional summary judgment alleging that Mr. Peine violated the confidentiality policy. The employee responded that there was a genuine issue of fact regarding why he was fired. The court of appeals discussed the standard of proof for a Sabine Pilot case. Sabine Pilot actions require a showing that the “sole cause” of the termination was the order to commit an illegal act. The Plaintiff pointed to statement by Kumar that he would “clean house” if the CFO did not do as he wished and a statement by the parent company that Mr. Peine was a “liability.” Those statements represent direct evidence, said the plaintiff. But, the court of appeals did not accept these statements as direct evidence. The court found they were circumstantial evidence, since there was no indication the persons making those statements had a direct role in Mr. Peine’s termination.

The court did not seem to be aware that in acknowledging the possibility of two different motivations, it was implicitly agreeing that that a jury should decide this issue, not a judge. If there is more than one possible interpretation of the evidence, then under the rules, the decision belongs to the jury, not a judge. But, this irony does not help the plaintiff. Since, few, perhaps no, plaintiffs will survive an appeal to the Texas Supreme Court.

The Plaintiff also presented an expert witness in the area of government compliance. That expert testified that this was a classic case of retaliation. But, the court was still troubled by the fact that he might have been fired for violating the confidentiality policy. The expert could not speak to that possible motivation. Mr. Peine then argued that he expressed concerns to a public forum and should be protected. But, no, said the court, Texas does not recognize freedom to report illegal activities in a private work place. That is true. The Texas whistle blower law only applies to government employees, not private sector workers.

So, the court affirmed the grant of summary judgment. Based on the decision, it does not appear the plaintiff contested whether he truly violated the confidentiality clause. Some employers claim to have such a policy, but upon closer examination, it turns out they often ignore it. It is also unfortunate he went to a reporter. Otherwise, his case should have been solid. Many employees, faced with an unjust termination, reach out to any possible avenue of protection. People who are facing the end of their financial well-being do desperate things. See decision here.

Many temporary placement agencies think they are immune from lawsuits for discrimination. That is not at all true. Both Title VII (42 U.S.C. Sec. 2000e-2(b) and Texas Labor Code Sec. 21.052 apply to temporary placement agencies. Both statutes specifically prohibit a temporary placement agency from referring a potential worker to a job based on discriminatory bias. In some cases, the placement agency did not discriminate itself. But, it looked the other way when its client, the mammoth Fortune 500 company did discriminate. Some agencies avoid that problem by simply offering another temporary job to the alleged victim. But, as the court explained in EEOC v. Olsten Staffing Services Corp., 657 F.Supp.2d 1029, 1037 (W.D. Wisc. 2009), simply offering another job to a discrimination victim does not resolve the underlying issue. “Circumvention does not equal corrective action,” said the court. Id, at p. 1037.

I previously write about a Fifth Circuit decision which found that staffing agency participates in a discriminatory decision when the staffing agency knew or should have known discrimination motivated the adverse personnel action. See my prior post here. In that case, the staffing agency enabled a discriminatory decision. But, sometimes, the staffing agency itself discriminates more directly.

That direct sort of discrimination is the basis of a lawsuit recently filed in Chicago. MVP Staffing, a temporary placement agency that has offices in 38 states has been accused of placing Hispanic employees at the expense of African-American workers. According to the lawsuit, MVP prefers Hispanic workers because they were often undocumented and less likely to complain about wages and work conditions. See CBS News report.

 

 

 

Every employee owes his employer a duty of loyalty. An employee generally may not carry on a business that competes with his employer’s business. To do so is grounds for termination. But, what about an employee who is contemplating leaving his employer? Can he discuss his possible departure with co-workers? The court in In Re Athans, 478 S.W.3d 128, 2015 WL 5770854 (Tex.App. Hou. 2015) answers yes. In Athans, three surgical assistants worked for American Surgical Professionals. One of them considered leaving ASA to work for a competitor. The three worked closely together. Another surgical assistant planned to leave to start a competing firm, Prestige Surgical Assistants. Martinez planned to leave and asked Athans if he was interested in leaving. Martinez testified he simply shared his project with Athans. He shared the project with other surgical assistants. Martinez and an investor started Prestige Surgical Assistants after Martinez ;eft ASA. ASA sued Martinez and Athans  for “soliciting” Athans and others to leave. ASA accused Martinez of interfering with the employment agreement between Athans and ASA. Four surgical assistants turned in letters of resignation at the same time. One surgical assistant changed his mind and stayed with ASA. The others joined Prestige.

The jury found in favor of Prestige. ASA sought a new trial, which was granted. Prestige sought a writ of mandamus to stop the new trial, which the court of appeals granted. The Court of Appeals agreed with Prestige. Assuming, said the court, that “solicit” means to ask seriously, Athans did not ask any of the surgical assistants “seriously.” He simply told them about his project. Athans was not certain he would work for Prestige when he resigned from ASA. He did not know what he would do when he left ASA. The other surgical assistants also indicated that Athans simply told them about a possible opportunity. The jury was entitled to use the ordinary meaning of “solicit.” See decision here.

The decision illustrates the difficulty in suing based on intent. ASA apparently lacked evidence regarding when Athans made up his mind to work for Prestige. If Athans had decided before he turned in his resignation and if ASA had some evidence of the timing of that decision, the outcome might have been different.