san antonio employment lawyer

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.

Coach Art Briles has filed suit against Baylor University. He filed suit for libel, saying Baylor is spreading false allegations that he knew of sexual assaults and did not report them. See Dallas Morning News report. “Libel” refers to defaming someone verbally. Slander refers to defaming someone in writing. Baylor has been very careful about what it says about Coach Briles. There have been a few stories just recently that Coach Briles was aware of an alleged gang rape incident and did not report it to Baylor authorities. See SB nation report. Coach Briles claims that what Baylor is saying about him is keeping him from finding a new coaching position. He was just recently overlooked for an open head coaching job at the University of Houston, He had formerly coached at U of H before he started working for Baylor.

The sad truth is that defamation claims in Texas are very difficult for the plaintiff. What an employer says about an employee is accorded extra protection in Texas. The employer receives a qualified privilege when it discusses an employee or former employee. That means Coach Briles would have to show Baylor acted with actual malice when it said those things about the coach. To show malice, the plaintiff must show the employer knew or should have known what it said was false and that it did so with intent to cause harm. Simply showing an employer knew something was false, as opposed to simple mistake, is a very high obstacle. But, to also show the employer made that false statement with the intent to cause harm is huge. Unless Coach Briles has an inside witness who can attest that the Baylor spokesperson wanted to be sure Coach Briles never worked again, the coach will lose his defamation lawsuit.

That is why lawsuits alleging defamation in the work place are so rare. Who would ever have that sort of evidence? Many clients have asked me about suing their former employer for something the employer has said. Yes, many employers do defame former employees. But, unless the law changes, those sorts of lawsuits will remain exceedingly rare.

It benefits a business to hire persons with disabilities. As David Hendricks, columnist with the San Antonio Express News points out, persons with disabilities are loyal workers. Mr. Hendricks recounts the time when Marriott Global Reservations hired a person with blindness. The hiring manager was nervous simply about interviewing a person who was blind. But, once hired, the new reservation taker did very well. He would use the tab key to move through the on-screen reservation form. He could not see to use the mouse, as other workers did. Using the tab was faster. Soon, all the reservation takers were using the tab key.

H-E-B has hired persons with disabilities for years. They have found disabled workers to be much more loyal than more traditional workers. They have found persons with disabilities to work well in certain jobs. A new regulation, Mr. Hendricks adds, requires federal contractors and sub-contractors to employ at least 7% persons with disabilities. The contractors can establish plans to work toward those goals. Texas Workforce Solutions, a state agency, will help Texas employers reach those goals.

Typically, it costs the company nothing or very little to accommodate most persons with disabilities. The rest of the time, it costs less than $500. It just makes sense to hire persons with disabilities. Whatever his/her impairment, the disabled worker still must be able to perform the essential functions of the job. See column by Mr. Hendricks.

Faith Gonzales worked at a Bill Miller barbecue restaurant. As any San Antonian would know, Bill Miller’s is a fast-food version of barbecue and is a local institution. She complained about discriminatory conduct and was fired in 2008. She filed her charge with the EEOC. The matter did not go to trial until January, 2013. After a two day trial, the Bexar County Court-at-law jury awarded $30,000 in lost pay and emotional suffering damages. Most juries award relatively small amounts for lost pay and emotional suffering type damages.

As often happens with civil rights lawsuits, the larger money is in the attorney’s fees. Ms. Gonzales’ lawyers submitted an attorney fee request for $65,000. They submitted the request to the judge after the trial, not to the jury and not during trial. The employer, Bill Miller, argued the fee request should have been made to the jury. The judge disagreed and awarded $60,000 in attorney’s fees.

On appeal, the Fourth Court of Appeals in San Antonio agreed with the defendant. It said attorney’s fees must be decided by a jury, even though at least one Texas Supreme Court case, El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012), indicates that judges should decide attorney fees. See the decision in Gonzales v. Bill Miller  here. The Fourth Court noted that two other Texas courts of appeals have found that attorney’s fees should be determined by the court, not by a jury. The Fourth Court noted that the reasonableness of an attorney fee is a fact issue. The court also noted correctly that El Apple I did not state clearly that a court should determine attorney’s fees. It did refer generally describe the lower court’s role as reviewing attorney fee requests for reasonableness. El Apple I, pp. 763-64. It would be impossible for a jury to perform that role. Nevertheless, the Fourth Court added, the Supreme Court in El Apple I was not presented with the question of who should decide the question of attorney’s fees. That is true. The Texas Supreme Court did not address who specifically should determine a jury fee award.

So, the appellate court returned the case to Bexar County Court-at-Law No. 7 for trial simply on the issue of attorney’s fees. The jury then awarded some $127,000 in attorney’s fees. The Defendant may be wishing it had not sought this appeal, after all.

Some women call is “mansplaining.” They refer to the process in which a man will talk over them at a meeting and interrupt women to explain their position. At the recent presidential debate, Donald Trump interrupted Hillary Clinton 51 times. She interrupted him 17 times. Mr. Trump interrupted the female candidate 26 times in the first 25 minutes. Researchers at Brigham Young University and at Princeton have food that men dominate 75% of the conference room discussions at work. When I mentioned how many times Mr. Trump had interrupted Ms. Clinton, one local female attorney nodded her head in avid agreement.

A few San Antonio area female managers confirmed they had experienced “mansplaining” at their jobs. Trish DeBerry, CEO of the DeBerry Group, a marketing firm in San Antonio, said she has not experienced such “mansplaining.” The city has a female mayor and female City manager, she noted. She seems to think this area is a little better and more respectful. See San Antonio Express News report.

But, certainly, one female candidate experienced some form of mansplaining at one recent debate…..

The Fourth Court of Appeals recently addressed a growing issue, at what point does same sex harassment constitute sexual harassment based on gender? Since the decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), we know there is such a thing as sexual harassment by persons of the same gender. In Oncale, several male co-workers harassed a male worker on an oil rig. The content of the harassment was clearly based on sex. But, none of the participants were gay. The employer argued rightly that previous precedent found that Title VII did not apply to same sex harassment based on gay or homosexual conduct. The Supreme Court in Oncale, however, found that this harassment was not based on homosexual conduct. This harassment was based on gender stereotypes. The court recognized then that same sex harassment was cognizable under Title VII if it was based on gender stereotypes.

But, what about the Texas equivalent of Title VII? Does the Texas Commission on Human Rights Act, Labor Code Sec. 21, include same sex harassment, not based on homosexual harassment? Yes, says the Fourth Court in Alamo Heights ISD v. Clark, No. 14-00746 (Tex.App. San Antonio 10/21/2015). In Clark, a new female coach at a middle school was harassed essentially from day one by the two senior, female coaches. The two senior female coaches discussed Coach Clark’s buttocks, her breasts almost daily and even blocked her exit from a room on occasion. The Fourth Court had no trouble finding this behavior over two years to be quite pervasive.

The employer tried to argue that the most offending coach directed her sexual banter and harassment at both men and women. But, the court disregarded that allegation, finding that most of the senior female coach’s harassment related to Coach Clark as a woman. As the court noted, this decision concerns a plea to the jurisdiction. So, the question concerns whether there is sufficient factual issue to justify a jury trial. There was, concluded the court, sufficient factual question regarding the nature of the senior coach’s harassment.

The school unfortunately did not take action in regard to Coach Clark’s EEOC charge. Indeed, they placed her on a performance improvement plan just a few days after the school received the charge. And, noted the court, Coach Clark had not received a negative evaluation until after she had filed her charge. The school also failed to follow district policies regarding alleged sexual harassment. The school did not report the allegations to the district. Remarkably, the school principal even warned the young coach that there would be “consequences” for her charge. The school faulted Ms. Clark for not complaining about the sexual harassment within ten days of the acts. But, there was no written policy that imposed a ten day time period. The court found that the district failed to follow its own procedures in several ways. So, the higher court affirmed the lower court’s denial of the plea to jurisdiction.

See decision here.