My Cousin Vinny was a wonderful movie in many respects. One of those respects involves the cross examination by Vinny of a so-called eye witness. After close questioning, the “eye witness” admitted he had made eggs and grits while the two defendants were supposedly robbing a small, rural store. As Vinny explained, the witness could not have possibly cooked his 20 minute grits and eggs during the five minutes he said he saw the defendants enter and rob the store. His time estimate was way off. As cross examinations go, it was actually good.

In Novato Healthcare Center v. National Labor Relations Board, No. 17-1221 (D.C.Cir. 3/5/2019), the employer fired four union organizers two days before the election to unionize. Like Vinny’s two defendants, the case here turned on the testimony of one person, a supervisor who allegedly saw the four organizers sleeping on the job. In reaching its result, the District of Columbia Court of Appeals could not help but point to Vinny as precedent for skilled cross-examination. The supervisor testified that she saw the four workers asleep and then 21 minutes later, the workers were still asleep. The supervisor then took she took a picture of two of the workers/organizers. If they slept more than 10 minutes, the maximum time allowed for a personal break, then they committed a fireable offense.

The four workers were working the night shift at a healthcare facility. The job duties slow down a great deal at 4:00 a.m., but they still cannot sleep while on duty. So, the question becomes were they on duty when the supervisor took the picture of them sleeping? The supervisor said she saw them asleep at about 4:00 a.m. and then still asleep at 4:21 a.m., the time of her photo. So, that would mean they had slept 21 minutes or longer.

The supervisor, however, lost her credibility when under cross-examination, she admitted to performing the following tasks during that alleged 5-10 minutes:

  • drove three blocks to the healthcare facility, stopping at one stop sign about mid-way
  • parked her car and went into the facility
  • walked to her office where she logged onto her computer and checked email
  • walked to the facility kitchen, where she checked the temperature logs for a refrigerator and for a walk-in freezer, and checked the labels and dates of the items in the refrigerator
  • walked to and through the break room, where she used the rest room and collected anti-union organizing material
  • gone back to her office and read the anti-union flyers
  • walked down the hallway, peeking into rooms along the way, checking on patients
  • and then arrived at a nurse’s station where she claims she saw the two workers (organizers/employees) asleep

And, she had already admitted under direct examination that she also opened the oven doors, inspected the stove and tidied up the kitchen. As the court of appeals recognized, that was just too many tasks for 15-20 minutes. At another portion of her cross-examination, she estimated the time it took for these various activities, one-by-one. Those time estimates pushed the time period even longer. It did not help her testimony that she denied knowing the workers were union organizers, when testimony had already established they were wearing union lanyards.Or, that she had initially denied wearing an anti-union lanyard that day and later had to retract her denial.

Too, she said all four employees were asleep at 4:21. Yet, she only took pictures of two of the sleeping workers. And, she made no attempt to wake them up. It strains credulity to think a supervisor would not wake a sleeping employee at a healthcare facility. The D.C. Court of Appeals would not buy it. After all, neither would Vinny if he were writing the opinion.

See the decision here.

 

In a recent case, the Ft. Worth Court of Appeals addressed the question, does the Texas age discrimination statute require that the plaintiff be over 40 years old during the discrimination? The court said no. In Bell Helicopter Textron, Inc. v. Burnett, 552 S.W.3d 901 (2018), the employee was harassed due to his age. The harassment started while he was still 39 years old. The harassment continued after he turned 40. There was also evidence that a younger employee suffered similar problems at work, but received no discipline. That same younger co-worker attended training which the plaintiff had already requested.

The court found that the Texas Commission on Human Rights Act addresses discrimination “because of age,” not necessarily because the worker is over 40 years old. Mr. Burnett was at least 40 years old when the ultimate act of discrimination occurred, the termination.

The court of appeals also affirmed the lower court’s granting of lost pay in the future. The district court found that reinstatement was not feasible, due to his psychological injuries and because he made a career change after being fired. The appellate court affirmed the district court allowing $565,000 in lost future pay. The district court may have based this amount on his pay at Bell Helicopter during his last few years of employment. See the decision here.

One thing you do not do when you file a lawsuit is antagonize the judge – without a very good reason. Roger Stone just cannot dial down his personality. On the same day a federal judge issued a gag order on him, he re-issued a book from two years ago with a new introduction. The new introduction criticizes Robert Mueller and the Mueller investigation. On Tuesday, the judge said the book was not in compliance with her gag order.

For now, the judge is just asking for more information about the book from Mr. Stone. But, soon, he will be appearing in front of her for a criminal trial. Does he want her to be thinking about how he disregarded her orders during that trial? Lawsuit 101: do not poke the bear without a very good reason……

 

There is no statute (i.e., a law passed by the state legislature) in Texas protecting workers from being forced to commit illegal acts.  So, prior to 1985, if your employer told you to rob the local bank and you refused, you could have been fired.  But, now there is judge-made law in the form of Sabine Pilot v. Hauck, 687 S.W.2d 733 (1985) that found protection for a worker being forced by an employer to commit an illegal act.  See decision.  In the 20 years plus since the decision was issued, the courts have established that a Sabine Pilot action applies to laws involving criminal actions.  If an employee is asked to commit a criminally illegal act, then that employee is protected from adverse action by the employer.

According to the Texas Supreme Court decision in Safeshred v. Martinez, No. 10-0426 (Tex. 4/20/12), the Sabine Pilot action is based on tort or personal injury actions.  So, punitive damages are available.  See decision. The Supreme Court, never friendly to plaintiffs, found that to award punitive damages, a plaintiff must show more than the termination was based the refusal to commit an illegal act. The plaintiff must show specific intent to cause harm to the plaintiff apart from the termination itself.  The court provides an example where the employer circulates false rumors about the employee so as to prevent him from finding future employment or makes looking for future employment more difficult than it ought to be.  In those situations, says the Supreme Court, the employee would be entitled to seek punitive damages.

So, that means firing an employee for refusing to commit an illegal act is not in itself enough to justify punishment.  The Supreme Court is saying there must be something more.  For example, in the Martinez case, Louis Martinez drove a truck between San Antonio, Austin, Dallas and Houston everyday for Safeshred.  Prior to each haul, he was required to conduct pre-inspections of his truck.  He consistently discovered safety violations of his vehicle.  But, he was always told to drive the truck anyway. On one trip, he was cited by DPS for improperly secured cargo – because the straps were worn or cut.  DPS told him not to drive the truck again. Mr. Martinez explained what happened and showed the citation to Safeshred. But, again he was told to drive. Finally, prior to a fourth trip with the defective truck, the driver objected again to driving with an unsafe load. Mr. Martinez was told to drive the truck or go home. He went home.

The Supreme Court found this evidence of disregard for public safety by Safeshred was not enough for punitive damages. Title VII discrimination cases would require some evidence of malice or “reckless indifference” to the law.  I would think Safeshred’s repeated indifference to public safety would be enough to justify punitive damages. A jury clearly thought so.

Louis Martinez filed suit. The jury found for the truck driver and awarded him $7,569 in lost wags; $10,000 in mental anguish; and $250,000 in punitive damages. The trial judge reduced the $250,000 to $200,000 due to caps on such damages. The court of appeals reversed the mental anguish finding.

Due to this Texas Supreme Court decision, the $200,000 is removed from the verdict. It is as if the $200,000 was never awarded. A company that committed some dangerous acts, putting motorists in some peril on the highway at least three times will in the end, pay no more that $7,569.

 

Employers do some crazy things, sometimes. One employer in New Braunfels has been paying “volunteers” with gift cards and fabric. Quilt Haus and Way to Sew have been paying some workers with gift cards payable to the store itself. The workers would receive one gift card valued at $8 for each hour of work. The worker could then use the card to buy fabric. The store referred to the workers as “volunteers.” But, as I understand the Fair Labor Standards act, there is no such thing as a volunteer worker. If the employer accepts your work, then the employer must pay for it.

Apparently, some of the workers complained. Because, the Department of Labor investigated. DOL then found violations. And, now, DOL has now filed suit. See San Antonio Express News report.

It is not that hard to get legal advice about wages. The DOL and Texas Workforce Commission both provide free advice regarding how to pay employees. A person might have to wait on the phone a bit, but it is free. And, an employer can point to that advice later if the business is investigated. I expect these two businesses did not seek legal advice. This method of payment is nowhere close to kosher.

Public discourse has taken a turn for the worse. Things are so bad that criticism of federal judges has become common place. Last week, Pres. Trump spoke about the Ninth Circuit in demeaning terms, clearly saying the Ninth Circuit attracts lawsuits against his policies and is likely to rule against him. A few days later, Roger Stone, a long-time adviser to Mr. Trump, posts a photo of U.S. District Judge Amy Berman Jackson with cross hairs in the background. He posts the photo on his Instagram account. He later deleted the photo.

Mr. Stone posted the picture the same day the judge issued a ruling against one of his motions, and a few days after the judge imposed a gag order on the political consultant. Mr. Stone and his lawyer submitted a filing apologizing for the incident. Mr. Stone claims a “volunteer” posted the photo. See Politico news report.

How does a person “accidentally” post a threatening picture of a judge? Indeed, why would a person deliberately antagonize a judge who will decide your future? I suspect Mr. Stone sees this as strategy, as a way to provoke the judge into making a mistake. Or, perhaps it is just his nature to poke the bear. Regardless, we can be certain his lawyer did not recommend posting any picture of the judge for any reason.

The President has been attacking federal judges for years. It started when Pres. Trump started attacking U.S. District Judge Gonzalo Paul Curiel in 2016, saying the “Mexican” judge could not be impartial regardingTrump University. Later, the same judge heard arguments regarding environmental restrictions in regard to the wall. The President atacked Judge Curiel, not once, not twice, but several times at his rallies. Eventually, the judge did indeed allow the environmental restrictions to be lifted for the precious wall. But, the President did not apologize. Neither dd he ever mention that Judge Curiel was born in Indiana, not in Mexico.

As we said in the Army, it all starts with the guy at the top.

Some judges are exceedingly difficult. Judge Lynn Hughes in Houston seems to consistently press folks’ buttons. Most recently, he has barred a female Assistant U.S. Attorney from his court. Tina Ansari has appeared in Judge Hughes’ court twice in the past few weeks. She was excused from the court by Judge Hughes both times right after she announced her name for the court reporter. Meaning right after saying hello, the judge told her to leave. The U.S. Attorney himself then appeared before Judge Hughes and insisted he must assign prosecutors, not the Judge. The Judge then insisted he had been slighted in an appeal regarding Judge Hughes a few years ago.

A few years ago, the U.S. Attorney appealed a ruling by the Judge and mentioned his remarks about women. In those remarks, the Judge had apparently said in the old days, they did not allow “girls” to practice law in the courtroom. His remark could have been interpreted in a couple of different ways. In any event, Judge Hughes took offense at how his remark was mentioned by the US Attorney’s Office. See Houston Chronicle report here.

These issues seem to follow Judge Hughes. Litigation is difficult enough. To be fair, in every lawsuit, we work with people. And, the judge is human, after all. … Judge Hughes, it seems, is more human than many of his peers.

The recent government shutdown can have a profound impact on federal workers. Research by management experts shows that the threat of imminent uncertainty, such as furlough or layoff, can be just as stressful as the furlough or layoff itself. A management professor at West Chester University, Anthony Wheeler, says psychologically, they are the same, the threat to one’s sense of security is the same. The more often the worker hears the threat, such as Presidential tweets, the greater the stress.

The studies looked at furloughs of state employees and layoffs of nurses before and after  hospital mergers. The studies found that high performers who had options would leave for other jobs elsewhere. And, they tend to leave quickly.

Another professor, Lisa Baranik at the University of Albany in New York, studied the 13 day shutdown in 2013. For up to five weeks after the shutdown ends, the effects lingered among the workers. Furloughs, she explained, are about much more than financial considerations. For most workers, the job is also a source of social interaction. They can discuss families and positive accomplishments at work. When they lose those bonds, they lose much of the positive effects of the job. Those positive effects take time to re-build.

Some folks suggest that the effect on federal workers is different, because they tend to have more of a sense of mission. They serve a cause, something larger than themselves. But, said one expert, this most recent shutdown and the threat of a second shutdown soon afterward makes this experience much more like layoffs in the private sector. See the Feb. 12, 201 edition of the San Antonio Express News for more information about these studies.

Most large employers have employee handbooks, those set of policies that explain things like vacation and sick leave, discipline, etc. Employers will often describe how they are “binding” and must be followed. But, legally, they are not binding, at all. They look thorough and professional and provide some comfort to employees in an uncertain world.

They are generally not binding on the employer. They are nothing more than a guideline.  If the employer included a phrase providing they are not contractual, then they will not be binding. And, most, perhaps all employers do include non-binding type language in the handbook.

You know, there is nothing good about racism. Of course. But, we seem to have become lynching parties whenever the least evidence of racism rears its ugly head. The new Mary Poppins movie has been attacked because it supposedly revives a racist portion of the famous Julie Andrews version. In the original movie, Mary Poppins dons a bit of black on her face when she dances with the chimney sweeps. I have always assumed that was soot from chimneys. Chimney sweeps, after all, probably accumulate a good bit of soot when sweeping out nineteenth century chimneys.

But, apparently I was wrong. A professor wrote an opinion piece, published by the New York Times which asserts that  Mary Poppins donned blackface. See USA Today article here. Those of us who regularly seek to prove actual racism in court cringe. The very start of showing racism requires a showing that there is no other explanation for the racist act other than racism. Yet, here is Ms. Poppins dancing with chimney sweeps. Obviously, she might have soot on her face due to chimneys, not due to mocking black persons.

Gov. Northam provides an additional example. Someone appeared in some vile pictures. But, until we know the rest of the story, we do not know if it was racism or not. It is not likely, but possible that someone was mocking a Klansman, not admiring a Klansman. It is possible, perhaps likely that Gov. Northam was donning blackface to imitate Michael Jackson in a dance contest. He says he did. Until we hear why the man was wearing the blackface, we do not know … why he was wearing blackface. I think some folks assume wearing blackface means mocking black persons. That does seem a likely explanation, but until we hear some more definitive proof, other explanations remain viable.

Liam Neeson has recently been accused of being racist when he recounted the story of his reaction when a close female friend was raped by a black man 40 years ago. The actor went roaming the streets for a week with a crowbar hoping to get into a fight with a “black bastard.” Neeson hoped, it seems, some evil black man would reveal himself by starting a fight. Good Morning America’s Robin Roberts suggested he was racist for asking his friend 40 years ago the man’s skin color. No, he responded, he asked other questions about the rapist, other than just his skin color. See CNN news report.

Racists are just everywhere, some folks believe. But, those apparent racist actions are the beginning of the conversation, not the end. We need more information. Like Northam, Poppins, and now Neeson, we must first ask for that alternative explanation for what otherwise appears to be a racist act.

That alternative explanation is the heart of every discrimination case. Will it hold water, or not? We need more information. Otherwise, we risk making it so easy to show discrimination in the public arena, that no one will believe actual racism in the court arena.

In 1700 to about 1750, the English authorities offered bounties for Catholic priests and bishops. Bishops were flat against the law. There could be no Catholic bishop in Ireland. Regarding priests, the law was that if they violated any of the many restrictions on priests, then they could be arrested and punished. The English authorities offered 25£ for priests and 50£ for a bishop. Those were princely sums in those days. Persons known as priest-hunters became well-known. The priest-hunter would have to travel to Dublin to collect his bounty. Some priest-hunters became well known.

Toward the end of the priest bounties, the Catholic parishioners reached a point where if they would see one of the well-known priest-hunters on the streets of Dublin, one would shout, “There’s a priest-hunter!” Instantly, a crowd would form. The hunter became the hunted. He had to sprint for his very life. Crowds of angry Catholics would spring after the vile priest hunter.

We have become that crowd on the streets of Dublin. Someone shouts, “There’s a racist!” and instantly, a crowd of pursuers forms. But, unlike the priest-hunters, the racist has not identified himself by collecting a bounty from the Dublin authorities. We think the person is a racist. We do not know the person is a racist.

I am glad racism has incurred the opprobrium it deserves. But, a racist is just not that apparent. Proving racism is complicated and it should probably remain complicated.