Congress passed the Families First Coronavirus Response Act (FFCRA) in March, 2020 in response to the coronavirus pandemic. Soon afterward, Congress also passed the Emergency Paid Sick Leave Act (EPSLA). As the name suggests, the EPSLA allowed employees to take time off from work to quarantine due a possible covid19 infection. The leave requirements portion of the statute expired in December, 2020. But, prior to that expiration, Enny Alvarado was working for The Valcap Group, LLC. In November, 2020, a co-worker tested positive for the covid19. Alvarado had been working closely with that co-worker. Ms.  Alvarado called her doctor, who told her she should take a covid19 test and quarantine until she received the results. Valcap had no policies then in place for the pandemic. Ms. Alvarado asked for and received medical leave to quarantine at home. Later that same day, the company fired her.  Her employer said anyone who takes covid19 leave would be fired.

EPSLA

Ms. Alvarado sued under the Americans with Disabilities Act, alleging “regarded as” discrimination and under the EPSLA. Valcap moved to dismiss saying the EPSLA did not have a provision similar to the Family Medical Leave Act stating that an employer may not “interfere” with a worker’s right under the statute. The court agreed with the Defendant. But, it noted that to the extent Alvarado claims in her suit that Valcap disciplined or discharged her for pursuing her rights under the EPSLA, she may indeed maintain such a suit. The EPSLA does in fact provide that an employer may not discipline or discharge an employee for seeking her rights under the statute.

The employer also argued that because Ms. Alvarado did not take her leave, she could not allege she was fired for taking that leave. She had simply requested it. The court rejected this argument, saying that requesting leave amounted to taking leave under the EPSLA. And, at least on this blog, this employer gets an “F” for making a silly argument. The only reason she did not actually take her leave was because she was fired before she could take that same leave – which had already been approved by the employer.

ADA

The court granted the motion to dismiss regarding the worker’s ADA claim. It found that at most, she had pleaded that she was fired for seeking to quarantine, not because her employer perceived her as having an impairment.

See the decision in Alvarado v. The Valcap Group, LLC, No. 21-CV-1830 (N.D. Tex. 1/30/2022) here.

 

Attorney-General Ken Paxton is determined to get into trouble. He filed that very weak lawsuit in 2021 seeking to overturn the 2020 election results. Sixteen Texas lawyers, including four former Texas bar presidents, filed an ethics complaint about that weak lawsuit. In Texas, any person can submit a complaint about a lawyer’s ethical practices. I previously wrote about that complaint here. A Texas Bar Association committee found merit to the complaint. AG Paxton claimed the committee was composed of liberal lawyers. But, that is not likely. There just are not many “liberal” lawyers active on Texas Bar committees. Most lawyers on these committees actually come from the larger law firms, who are seeking to fulfill their Bar obligations.

Now, the Bar has filed suit in Williamson County against AG Paxton’s First Assistant, Brent Webster. He signed off on that weak lawsuit along with AG Paxton. If the First Assistant on that frivolous lawsuit is sued, you can be certain AG Paxton will also be sued. That also means the two lawyers chose to not have their case decided by a Bar committee. They chose the public route of trial in open court.

The San Antonio Express News states that among the possible sanctions is disbarment. Well, not quite. The Texas Bar, like most Bar associations, is very conservative. It follows a very predictable pattern of issuing a private warning for the first offense, and a public warning for the sound offense. Only then does actual disbarment become an option. Bit, generally before disbarment, the Bar will place a lawyer on probation first.

See more about this lawsuit in the San Antonio Express News here. And, I am still just shaking my head at how many lawyers rolled dice with their law licenses, all to beg Donald Trump for his favor. And, you know, it is very rare for lawyers to seek a public trial. Most prefer the more private avenue of a committee review.

So, Justice Alito’s leaked draft opinion suggests Roe v Wade will be overturned. What does that possibility suggest for other rights? Justice Alito wrote in the draft opinion that the 14th Amendment did not specifically name abortion and otherwise does not protect a right to abortion. The draft opinion concerns the case of Dobbs v. Jackson Women’s Health Organization. Follow this link to see the draft opinion here.

The justice said, “That provision has been held to guarantee some rights that are not mentioned by the Constitution, but any such right must be ‘deeply rooted in this nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.” Lawrence H. Tribe, a constitutional legal scholar from Harvard University, wrote an op-ed for the Boston Globe criticizing the draft opinion. Mr. Tribe noted that such language suggests that rights we tend to take for granted, such as right to marry a person of our choice, birth control, with whom to have sex, how to raise children, and a lengthy list of other freedoms – also are not specifically named in the Constitution and also do not have deep roots in our country’s history.

Erwin Chemerinsky, dean of the Berkeley School of Law, noted that many rights we now enjoy rely on the same privacy interests which support Roe v. Wade. Griswold v. Connecticut, 381 U.S. 479 (1965) rests on that same privacy interest, which is not specifically identified in the Constitution. Griswold protects the right to use contraception. When Roe falls, how long will it be before states start passing laws restricting contraception and the morning-after pill? asks Chemerinsky. Indeed, late last week, Tennessee passed a bill making it a crime to use the morning after pill.

In Obergefell v. Hodges, 576 U.S. 644 (2015),  the Supreme Court extended the due process clause and the equal protection clause of the 14th Amendment to same sex marriage. Neal Katyal, former Solicitor General of the U.S. wrote in an opinion piece that the Obergefell decision does not rest on deep-seated tradition, but on a sense of traditional American liberty. Jordan Woods of the LGBTQ Law & Policy Program, noted that Justice Alito’s reasoning in the draft opinion is similar to his dissent in Obergefell.

Other experts note that in the draft opinion, Justice Alito expressly states the decision only applies to abortion. The Dobbs draft opinion states that the Roe decision is different from these other decisions because it addresses potential human life. But, even so, the same reasoning will clearly apply to a wide range of interests all of which ultimately rest on this privacy interest – which is not specifically named in the Constitution, yet so many courts seem to find. See the ABA Bar Journal here for more information.

Too, Justice Alito’s tone in his draft opinion is concerning. Both sides in this huge abortion debate have valid points. I do not believe it helps either side of that debate for Justice Alito to engage in a mocking, even contemptuous  tone in his draft opinion. I hope that this contempt will be written out in subsequent drafts.

The Western District of Texas recently denied in part and granted in part a Rule 12(b)(6) motion to dismiss in the matter of Doe v. U.T. at San Antonio, No. 20-CV-1039-DAE (W.D. Tex. 9/27/2021). The Plaintiff sued UTSA based on several theories. He also sued two administrators in addition to the school itself. The Plaintiff is Egyptian Moslem. He sued under Title VII, 42 U.S.C. Sec. 1983, the First Amendment (free speech), and the Equal Protection Clause. As I have mentioned here before, it is unwise to sue under everything but the kitchen sink. Suing under so many different statutes and provisions suggests a lack of confidence in your case.

Equal Protection

In the end, the court granted the motion to dismiss regarding free speech and the Equal Protection Clause. This being a 12(b)(6) motion to dismiss, the court only looked at the Complaint. In the complaint, the Plaintiff did not allege a comparator employee for equal protection. Neither did he allege discriminatory intent.

Free Speech

Regarding free speech, the court noted in the Fifth Circuit considers qualified immunity to be the norm. Qualified immunity “shields all but the incompetent or those who knowingly violate the law.”

Discrimination

Regarding Title VII and Sec. 1983, the court noted that at the pleading stage, the Plaintiff need not name comparator employees. Doe was alleging that he was treated differently because he is Egyptian and Moslem. He was denied certain meetings. He was placed on administrative leave during an investigation of him. But, non-Egyptian employees were not placed on administrative leave during an EOS investigation. The court denied dismissal on those grounds, saying that at the pleading stage, Doe did not need to identify specific comparator employees, yet.

Regarding Sec. 1983, the court found that the Plaintiff is seeking only prospective relief, such as reinstatement. But, Plaintiff sued the two administrators in their individual capacity, not in their official capacity. There is no relief possible from two administrators in their individual capacities. Therefore, Doe’s pleading fails. The court granted dismissal as to the two administrators in regard to Sec. 1983.

So, the claim based on Title VII remains.

We all know defense firms sometimes spy on opposing parties, but evidence of that spying is very rare. But, there was such evidence in one Georgia case. Cruz Mezquital sued a driver who was insured by American Family Insurance. She won a $30 million judgment. On appeal, the verdict was reversed. The higher court ordered a new trial. The law firm defending the suit was Baker Donelson, headquartered in Atlanta. With over 650 attorneys in multiple cities, Baker Donelson qualifies as a mega firm by any definition.

On remand, the law firm hired Martinelli Investigations to learn more about Ms. Mezquital’s injuries. They installed GPS devices on her vehicle and set up trail cameras on her property. They trespassed on Ms. Mezquital’s property to place those cameras and devices. Ms. Mezquital became aware of the spying. At some point before the second trial, Baker Donelsen used photos acquired from the surveillance. The plaintiff then settled the car wreck case.

Ms. Mezquital then sued two lawyers at Baker Donelson, the insurance company and the investigator for invasion of privacy, trespass to property, and trespass to personalty. Mezquital is seeking $12.2 billion from the insurance company and $1 billion from the law firm in punitive damages. The defendants filed a motion to dismiss, which the court largely denied. It did dismiss a claim based on negligence per se, but allowed the other claims to remain. It denied a motion based on res judicata, finding the lawsuit for a car crash and one for spying were very different. The court also found that a release signed by the plaintiff for her first case did not apply to the second lawsuit. The plaintiff’s attorney said he expected to see frivolous appeals. I bet he does. See ABA Bar Journal report.

They found his body three days after he was pulled under by the current. SPC Bishop Evans jumped in to save a couple of illegal immigrants. He did what Guardsmen have always done, save someone he never met. Two illegal immigrants are alive due to his efforts.

As the Justice of the Peace arrived, she saw that his body was covered with an American flag.  DPS Troopers removed their hats. Nearby soldiers who had been looking for the young Guardsman saluted when they saw his body. The Troopers shed a few tears. See San Antonio Express News report.

Rare indeed it is when a National Guardsman dies while on state duty. Usually, state active duty means driving a truck through flooded waters or bringing folks their medications. But, these days in Texas, state active duty means presenting the optics of securing our border. In the military, we are often called upon to stand there, or sit here and look good. We call it “eye wash.” Your role is to simply look good, to suggest you are doing something productive. We are generally okay with eye wash. It is part of the job. … In limited quantities.

But, dying for one man’s political ambition is not okay. Wasting the life of one young soldier is never okay.

<Slow salute> SPC Bishop Evans.

I have written about Operation Lone Star here and here. It is an exceedingly stupid mission, generated simply to secure an election. It is fundamentally flawed in so many ways. Chief among its problems is a lack of work for its about 6,500 Guardsmen/women. A close second is the lack of basic equipment. The soldiers lack first aid kits, ballistic vests, and helmets. They also lack federal benefits. If they are hurt or simply ill, they cannot seek Veterans Affairs Department medical care. They are not on federal orders, so they cannot go to the nearest Air Force base or Army post and see the on-post doctors. They must seek medical insurance like any state employee. But, unlike state employees, they have not been briefed on their medical insurance benefits. So, it is not surprising that many have joined a state employee union.

What If

But, the worst oversight surely is what if. In the Army, we would say what if the sh** hits the fan. What if a crisis occurs and a Guardsman is shot or passes out from heat exhaustion on some lonely ranch. Or, what if a Guardsman sees an Illegal Immigrant struggling in the water and jumps in to help. Anyone who knows the Guard knows 99% of Guardsmen will jump in despite being told not to. The reason most Guards guys join is that hero moment. That is a big part of the attraction. As one Guardsmen told me anonymously regarding Operation Lone Star:

“Despite being briefed not to help, we will always do the right thing and help even if it puts our lives in danger.”

Disappeared

Now, the worst has happened. An unidentified Guardsman did just that, he jumped in to help a struggling immigrant. It might have been a child or a woman. Guardsmen are not saints. But, that is what we do, we jump in to save folks. Anyone at state leadership, including the Governor, who does not know that is not paying attention. Now, that Guardsman has disappeared in the Rio Grande. See Army Times report here. The Rio Grande is very shallow in some parts, but in other parts, the water is quite deep, especially at this time of year.

The Texas Military Department, which has minimized the equipment shortages, the pay problems and the lack of genuine work, has issued a statement – anonymously as they always do – saying the Guardsmen has simply disappeared. He has not necessarily drowned. But, if he is missing, that is a big deal. The young man or woman is either AWOL or drowned. No, he has drowned. The TMD is wrong, again. One young Guardsman died doing what Guardsmen do everywhere, trying to save someone he never met.

If the young man or woman had died in the sandbox, his friends and family would know he died for something worthwhile. He would have died defending his country, as he understood his duty. But, to die to help one governor win re-election?? I want to know who will tell this young Guardsman’s family that he gave his life, so Gov. Abbott could win his next election.

Increasingly popular during the pandemic are apps known as “bossware” and “tattle ware.” These software programs allow supervisors to track the work performed by work-from-home employees. These apps can monitor websites visited, log key strokes, take screenshots and even record video and audio. But, do such apps violate an employee’s privacy? Some states, such as Delaware, New York and Connecticut, require employers to notify employees they are being monitored. But, most states do not. Even so, monitoring rises to a new level when it is at your home.

Texas Law

Even in the traditional workplace, Texas courts allow employers to monitor employee phone calls when using the employer’s phone. An employer can take photos of the employee’s publicly displayed calendar at work. Oyoyo v. Baylor Health Network, No. 99-CV-00569,  2000 WL 655427 *5 (N.D. Tex. 5/17/2000). But, if the employer monitors phone calls, it must notify the employees. Texas has no statute governing employee privacy. So, any lawsuit must rely on the common law tort of invasion of seclusion or of privacy. Since there is no state statute, any court addressing alleged invasion of privacy at a worker’s home would have to address what parts of the home would the worker have an expectation of privacy. That would lead to a very fact-intensive inquiry regarding where the at-home worker conducts his/her work.

Purchases from software makers, such as Hubstaff and Awareness Technologies surged during the pandemic. Marketed under names like Time Doctor and StaffCop, these new technologies represent a new sort of intrusion on the work place. According to one survey, 60% of companies were using the software. That represented double the number before the pandemic. Many employers obtain consent from the employee for such monitoring. But, we wonder what sort of consent. Does the content apply specifically to key strokes, or to something more? See ABA Bar Journal report here for more information.

Alex Jones of InfoWars has been conducting the strangest litigation. He has completely refused to cooperate in discovery in two major lawsuits. His conduct was so bad that that one court found him in default as a sanction. Now, he has filed a Chap. 11 bankruptcy petition. Chap. 11 does not involve a final accounting. It seeks to allow the petitioner time to get his/her assets in order and set up a payment plan. It will also stop or suspend all pending litigation. See CBS news report here.

The litigants can ask the court for permission to continue the two lawsuits toward conclusion. But, first, they will likely see what sort of payment plan Mr. Jones comes up with. All we can say is he is one strange person incurring huge risk with his lies and now with his strange litigation strategy. Indeed, what sort of person lies about murdered school children?

I have written about Judge Lynn Hughs of Houston before. See my prior posts here and here. He is in trouble with the Fifth Circuit, again. In Pulse Network v. Visa, Inc., No. 18-20669 (5th Cir.), the court of appeals removed Judge Hughes from this suit. The higher court found Judge Hughes had made a “gratuitous comment” which expressed “ingrained skepticism” about the plaintiff’s claims. The court of appeals noted in a footnote that Judge Hughes had been removed from five other cases.

The appeal concerned a ruling by the judge that Pulse Network lacked anti-trust standing to pursue its allegations against. In its suit, Pulse accuses Visa of dominating the market of debt card networks. Pulse argued on appeal that the judge had pre-judged the suit. For example, noted the plaintiff, in 2015 in the early stages of the case, at an early conference, Judge Hughes had “repeatedly insisted that the challenged Visa policies did not harm competitors,” and that merchants weren’t forced to pay a fixed monthly fee. The plaintiff noted those are some of the key factual disputes in the case.

Bias Toward Anti-Trust Lawsuits

Judge Hughes had also commented that are more bad antitrust lawsuits out there than any other type of lawsuit. He said the only genuine monopolies are those supported by the government. He said Standard Oil Co. was not a real monopoly. He was apparently referring to the lawsuit by the U.S. government against Standard Oil Company which resulted in its break-up in 1911. It was the first significant action under the Sherman Antitrust Act of 1890. Over 100 years later, the judge is still upset about that case.

The Fifth Circuit noted that any one of these comments by itself would not serve to show judicial bias. But, taken together, they raise legitimate concerns that the judge bears ingrained bias against the plaintiff’s claims. Judge Hughes blocked discovery by Pulse continually. After four years of litigation, Pulse had been prevented from conducting discovery on critical issues.

The higher court noted that when Visa moved to dismiss the case early in 2015, it took Judge Hughes nine months to issue a one sentence order denying the motion. When Visa later moved for summary judgment in 2017, it took the judge ten months to grant the motion.

Gratuitous Comments

Judge Hughes does indeed in many cases comment gratuitously on peripheral issues. In a discrimination case in 2013, Judge Hughes for no apparent reason discussed diversity efforts in schools of higher education. “And what does a diversity director do, go around and (paint) students different colors so they think they were mixed?” he asked, for no reason related to the actual lawsuit. The plaintiff in that case was Indian. Judge Hughes for no reason related to the case, insisted that the plaintiff was really Caucasian. He also often severely limits or prohibits discovery in a lawsuit. If ever one person was not suited to being a Judge, it is Lynn Hughes.

See ABA Bar Journal report here for more information.