The Houston Methodist Hospital required all of its employees to get a vaccine against the COVID19 virus. Some 178 employees sued. They argued, among other things, that requiring employees to accept a vaccine not fully approved by the FDA amounted to Nazi science experiments in a concentration camp. Note to future advocates: avoid over-the top rhetoric.

Judge Lynn Hughes, a federal judge, dismissed that sort of rhetoric. He noted correctly that no law prohibits an employer from requiring a vaccine for employment. He described the plaintiffs argument that the vaccine was “experimental and dangerous” as both false and irrelevant.  Texas law, noted the court, only prohibits asking employees to violate criminal law. There is no prohibition for so-called “dangerous and experimental” vaccines. The judge, known for his mercurial decisions and descriptions, described the plaintiff’s complaint as “press release style.” The complaint, he noted, did not identify what specific illegal acts the employees were required to perform. Accepting a vaccine is not an illegal act.

The judge is essentially explaining at-will employment. An employer can require anything, short of asking the employee to engage in illegal acts. The remedy in Texas to unwelcome requests is to quit, or form a union. If there are 178 hospital employees upset about taking a vaccine, then they may have enough to start organizing a union.

The judge took offense at comparing the vaccine requirement to Nazi doctors. “Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability, and in many cases, death.” See NPR new report.

The plaintiffs say they will appeal. Good luck. The law is not on their side. They will need some luck.

In a small town police force, one officer is going through some serious emotional issues. His former girlfriend and mother of their child is seeing a senior officer on the same small police force. In March, 2018, the chief of the police force referred Office Michael Grelle to a clinical psychologist for an evaluation. The chief mentioned that Officer Grelle had said he could not control his emotions. The young officer had handled various calls in a haphazard way, said the chief. The officer had cried during a meeting with his supervisors. On March 21, 2018, the psychologist found that Grelle could continue to perform his duties, if he obtained counseling. Yet, on April 3, the chief started an investigation concerning a remark made by Grelle in 2017. On April 17, 2018, the chief submitted Officer Grelle for termination.

In the case of Grelle v. City of Windcrest, No. SA-19-CV-00125-XR, 2021 WL 1910783 (W.D. Tex. May 12, 2021), Officer Grelle sued for discrimination based on his ethnic origin (white) and for ADA “regarded as” discrimination. The City moved for summary judgment. The Western District denied the motion. Regarding the ethnic origins claim, the court noted that the city claimed it fired Grelle solely because during an arrest, he asked to remove a bandage from a suspect before taking him to jail. Officer Grelle did not want the Magistrate to become alarmed at seeing a bandaged prisoner. The request to remove the bandage was approved by three supervisors at the scene of the arrest.

Yet, the City claimed Officer Grelle violated requirements of honesty in removing the bandage. It did not help the City’s case that a lieutenant claimed he withdrew his permission to remove the bandage after that discussion at the scene of the arrest. The body cam video from Officer Grelle clearly showed the three supervisors approving the bandage removal. Yet, the lieutenant claimed later after that discussion, he withdrew his permission. The court did not accuse the lieutenant of lying, but that change in his testimony had to hurt his credibility. Too, noted the court, in the termination documents, little mention is made of this supposed breach of honesty by Officer Grelle.

ADA

The City claimed Officer Grelle’s depression and emotional issues was not a factor in his termination. The City argued there was no evidence that the City viewed the officer as disabled. But, as the Court noted, the chief specifically referred Officer Grelle to a psychological evaluation. The chief noted at the time that Grelle had been suffering from depression for about a year. The Court noted that the timing was suspicious. The police department initiated an investigation into Officer Grelle regarding taking the bandaged prisoner to jail . That investigation started the day after the psychologists report was issued, and six weeks after the ride to jail. As the court noted, a reasonable jury could conclude that after the psychological evaluation did not remove Officer Grelle from the force, the investigation was initiated. See the decision here.

You served in Iraq twice. Both times, you served in a combat role, kicking in doors. You lost a few members of your Army family, but you accepted that. It is part of the deal you made with Uncle Sam. You were commissioned through ROTC at one of the Ivy league schools. You get out of the Army when your time expires and feel like you have earned a rest. After several months of looking for work, you get a job at a national bank on the East Coast.  Everything seems perfect. The civilian boss loves your work. Your co-workers appreciate having that Ivy league finance degree. You get two raises in the first six months.

Then, the day after Veteran’s Day, one of your former soldiers commits suicide. That brings back a flood of memories. You were his platoon leader. You spent almost 3 years taking care of this kid and keeping him straight. You knew his very young wife. You start having those bad dreams again. Its hard to sleep.

Your boss stops you in the hallway and asks if everything is ok. She has noticed you do not speak at meetings. You were late with that report. You tell her about that kid, who shot himself. She says “this is not the Army. Take a day off.” Then, she walks away.

Your sleeplessness worsens. At work, others are noticing your red eyes and nodding off at meetings. You take a day off. You get some work done at home. The boss fusses at you for taking a day off when your report was not turned in yet.

Weeks pass. The boss says accusingly that your speech is slurred and your eyes are drooping. The boss walks away, looking at you like you are a child molester.

Walking down the hallway, you find your desk. A minute later, Human Resources calls you in for a meeting. The boss is there. The HR person and the boss ask if you are using drugs. “No,” you look incredulous. They have no idea that in the Army, you were tested for drug use every other year. You think how ironic, the boss and the HR rep could probably not pass a drug test every other year for eight years.

The boss and HR representative accuse you, the former Ranger captain of PTSD. “No-o-o,” you stammer out.  You think back to all those times you encouraged other soldiers to see a counselor about possible PTSD. You recall asking the kid if he had seen a counselor – just a couple of years year before he committed suicide. “No,” you say, “I do not have PTSD.” But, you add, “I have been seeing a psychiatrist for Depression. The medication causes some drowsiness.” You tell them you will talk to your psychiatrist about adjusting the dosage.

They press you to go take a drug test, now. The clinic will be open for another hour, they insist. They ask if you want to talk to the EAP counselor, Employee Assistance Program. You recall the orientation explaining that EAP will assist employees with drug alcohol problems. You know that the EAP program is a good way to end a promising career.

A more senior HR person comes in. She rattles off some statistics about all the employees who were helped by the EAP program. You continue to deny any drug use or alcohol abuse. The senior HR rep again asks about PTSD.

You break down and weep. The questions stop. They look at you like a monkey in a zoo. The senior HR tells you that you have 24 hours to contact EAP. You are suspended for one week with pay. They send you home.

You cannot imagine going back there after your boss saw you crying. A co-worker saw you leaving the room and shoots a questioning look..

The junior HR rep calls you the next day at home. He asks if you contacted EAP, yet. You tell him no.  You explain again you have a psychiatrist. Why do I need a counselor? He says you are fired for not contacting EAP within 24 hours and for refusing a drug test. You never refused any drug test. You think back to those days in Baghdad when you were never sure who and where the enemy was. You think things have not changed so much.

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Saenz had a huge laugh and a booming voice. He laughed a lot.

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did best, serving others.

We should all serve our country half as well as 1SGT Saenz. There is a nice tribute to 1SGT Saenz here. As John Bear Ross mentions on his website, do not mourn that a man like 1SGT Saenz died. Rejoice that a man like 1SGT Saenz lived.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here. Like many of us, he returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, we remember the fallen – but not the Confederate fallen. They were removed from the list a few years ago.

The white SUV hurtled toward the Guardsmen. The young soldiers reacted. “Suicide bomber!” yelled one. Two others took up defensive positions as if they were armed. But, they had no weapons. They were simply cleaning up the gravel parking lot at their National Guard Armory. They saw two young boys doing doughnuts in the parking lot with their SUV and told them to stop. The boys reacted by racing the engine and hurrying toward the Guardsmen.

The boys did not realize they picked a group of vets from Iraq and Afghanistan.  SGM Benavides was older. He was angry, too, but he knew he had to keep order. Like the younger vets, he wanted to beat the snot out of the boys. But, he wanted to maintain order more.

Other Guardsmen, who had not deployed to a combat zone, stared in amazement.

One boy emerged from the SUV with a swagger. “You think you can scare me?” responded one young vet.  “I came from a place where they tried to kill me everyday,” he said evenly.

SGM Benavides chewed the two boys out and let them go. He talked to his young vets about whether they were experiencing any PTSD.

 

 

 

Zoom hearings have become common place. Those court hearings also see appearances by lay persons. As with any busy court house pre-pandemic, some lay persons do not appreciate the serious ness of the courtroom. One recent non-lawyer appeared at a district court hearing in Centreville, Michigan. His screen name was “buttf—er 3000.” The judge was not amused. He immediately asked the man to identify himself, as soon as he logged in. The judge referred to the apparent party to a lawsuit as an “idiot.”

His name was Nathaniel Saxon or Saxton, he said. The judge asked him why his screen name said “buttf—er 3000”? Nathaniel apologized. But, Judge Middleton still sent him to a Zoom waiting room, “to think about what you call yourself online.”

It turns out the Zoom account was set up for him by his sister. He did manage to change the screen name before the hearing ended. This is a remarkable story,  but not so remarkable when compared to live hearings. At live hearings, some litigants come to court wearing strange things and carrying strange things. Its just another day in court.

See ABA Bar Journal report for more information.

The Fifth Circuit reversed a grant of summary judgment in Lindsley v. TRT Holdings, Inc., No. 20-10263 (5th Cir. 1/7/2021). In an opinion written by Judge Ho, the court found that the plaintiff showed that she was paid much less than similarly situated male employees of Onmi hotels. The lower court had found that the same job title was not enough to show the jobs were the same. One would think that the same job title at the same hotel would suffice to show an issue of facts. But, the lower court did not agree. Fortunately for the employee, the Fifth Circuit disagreed.

Indeed, the Fifth Circuit panel ruled that the plaintiff need not show anymore than the the job titles were identical and the comparative employees were employed just a few years apart. The court found that situation was sufficient to make a prima facie case. It was then up to the employer to offer a non-discriminatory reason for the pay disparity. The employer did not make such a showing. So, the appellate court reversed the summary judgment.

The court also noted the difference between the Equal Pay Act and Title VII and Texas Labor Code Sec. 21. The EPA mandates each location of an employer be reviewed independent of other locations. The plaintiff cannot, therefore, compare herself to persons employed at other locations. But, Title VII and Sec. 21 do not have a similar requirement. The district court erred in not recognizing that difference.

See the decision here.

He served as a mechanic, the chief mechanic for his battalion. He loved his job and was devoted to his unit. As they trained and prepared to deploy to Iraq, he promised them. He guaranteed no HMMWV would break down outside the wire. That is a big promise to make. He was an E7, a Sergeant First Class with over ten years in the Army. He knew the HMMWV’s in Iraq were hand-me-down’s from five previous rotations. They came with all sorts of mechanical issues. But, the SFC knew his skills and he knew the capabilities of the mechanics he supervised. He promised and he meant it.

The SFC was dedicated. He performed much of the work himself, based on the firm belief that he would ask nothing of his soldiers he was not willing to do himself. So, he lifted the 55 gallon drums with no hesitation. He heard the disc pop when he incurred three herniated discs. He was out of action for months, if not forever. They took him to Germany, the nearest base with back specialists.

Two weeks after he left Iraq, two of his HMMWV’s broke down. Two were killed. Two were evacuated to Germany, where all the worst cases go. It wasn’t his promise anymore. But, he felt responsible all the same.One of the KIA’s was his buddy, Achmed, the Iraqi interpreter. The E7 was angry, angry at the war, angry with himself for getting hurt when his unit needed him.

The E7 worked hard everyday to recover at BAMC, Ft. Sam Houston. The promise was never far from his mind. The doctors said he had more determination than anyone they had ever seen. He should be a medical retirement, but he worked so hard. The doctors did not know about the promise. They did not know about Achmed. The E7 never forgot either.

A year later, he was close to full rehabilitation. The doctors thought he was a medical miracle. The wife knew. She knew about the promise and about Achmed. She wanted to shake him when he said he would transfer to the 101st or the 82d Divisions. Both divisions would deploy very soon to Iraq and Afghanistan. The wife knew why he wanted to transfer, why he wanted to deploy again. She wanted to shake him, sometimes. But, she also understood. That was why she loved him, because he always kept his promises.

All discrimination lawsuits start with the Equal Employment Opportunity Commission. By statute, all complaints of discrimination must be filed with the EEOC or a state equivalent agency. Since Texas has only one state equivalent agency in Austin, most folks have to start by filing a complaint with the EEOC. USA Today published an article discussing some problems at the EEOC in Dallas. That matters, because the Dallas office oversees the San Antonio and El Paso EEOC offices. Some EEOC workers have complained that the EEOC itself is discriminatory.

The article also provides some revealing information. For the time period 2015-2019, black persons submitted 7,100 complaints of discrimination to the EEOC. Of that number, only 13 were substantiated. That means the EEOC found evidence of discrimination in only 13 cases. So, in only about one on 550 cases did the EEOC substantiate claims of discrimination made by a black person. Compare that to all types of discrimination, including black discrimination. In 2019, the EEOC as a national level saw 83,500 claims of discrimination, filed by all sorts of victims including black persons.  Of those 83,500, some 1,200 resulted in the EEOC substantiating claims of discrimination. Or, about one in 70. So, it appears the chances of the EEOC finding discrimination is much higher if you are a non-black claimant.

The EEOC responds that these numbers do not reflect cases that settled early. Sure, but all cases, black or non-black, have the same opportunity to settle early. These numbers suggest the EEOC cuts more effort into non-black claims of discrimination.

The EEOC has always walked a fine line between rooting out discrimination, while appearing to remain neutral. The EEOC is also often attacked by Republican presidents. Ronald Reagan reduced their budget substantially in the 1980’s. Pres. Trump’s Commissioner, Janet Dhilon, sought to make the EEOC more friendly to business. Under Ms. Dhilon’s watch, the EEOC filed only 93 lawsuits in 2020, down from 144, 199, and 184 in the prior three years. The agency now has 2,000 employees, the smallest number of workers in 30 years.

The Dallas office has seen 20 internally filed complaints of discrimination since 2011. The most recent complaint concerned the Black Lives Matter movement. One investigator sent an email supporting the BLM. That email resulted in substantial pushback. See USA Today report here.

 

The Americans with Disabilities Act prohibits public places of accommodation from erecting barriers to persons with disabilities. This portion of the ADA is known as Title III. This is the provision that requires, for example, entrance ramps at restaurants and stores. Does Title III also apply to websites? The Eleventh Circuit Court of Appeals in Atlanta says no.

The court notes there is a split among the circuits. Not every court of appeals agrees with the Eleventh Circuit. The case was brought by Juan Carlos Gil, who tried to order prescription drugs online from Winn-Dixie. Mr. Gil is blind. He was not able to place the order. The Winn-Dixie website does not use software compatible with his screen reader software.

The Eleventh Circuit found that since the plaintiff can place the order in person, Winn-Dixie did not erect any barriers to its goods or services. The court noted that Title III does not require a public place to offer an accommodation if doing so would alter the nature of its goods and services. Its ruling also finds that Title III applies to tangible, physical places. It does not apply to intangible places such as a website. See the decision in Gil v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Cir. 4/7/2021) here. See the story in the ABA Bar Journal here.But, as the dissent noted, this decision disregards the words “privileges” and “advantages” also found in the ADA. A place of public accommodation, says the ADA, shall not erect barriers to privilege and advantage, not just goods and services.

We wonder how much burden would have been imposed on Winn-Dixie to make its software more accessible. But, undue burden was apparently not litigated as an issue. As the plaintiffs lawyer said, this ruling essentially shuts the internet door to persons who are blind. I think any person who knows someone who is blind would understand that a physical trip to the drug store is substantially more onerous than placing an online order.