The courts have been struggling with the meaning of “sex” in Title VII for a couple of decades. Title VII prohibits discrimination based on “sex.” Does that include discrimination based on sexual orientation? In Oncale v. Sundowner Offshore Services, Inc., 523 US 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), the court tried to walk a tightrope and found that stereotyping a person based on gender was prohibited by  Tile VII, while discrimination based on sexual orientation was not. The problem was that Title VII was passed in 1964. It is clear from the public record that Congress did not intend to protect homosexual persons from discrimination when it passed Title VII. But, society has changed. Now, most folks recognize some protection is needed. And, it just makes sense that “sex” means “sex,” not some forms of sex, while excluding other forms of sex based discrimination.

In Wittmer v. Phillips 66 Co., 2019 WL 458405 (5th Cir. 2/6/2019), the issue returns to the Fifth Circuit. The court chose to follow its precedent from 1979, Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) and hold that Title VII does not apply to sexual orientation. The Court noted that three courts of appeal have found that Title VII does protect discrimination based on sexual orientation. But, the court tried to avoid the subject by finding that the plaintiff did not make out a prima facie case of discrimination anyway. Even with this narrow holding, the panel of three judges produced two concurrences.

Judge Higginbotham concurred saying that the decision need not re-affirm the holding in Blum. Judge Ho wrote a much longer concurrence, arguing that we should look at the meaning of  “sex” in 1964, not what it might mean today. In Judge Ho’s view, “sex” in 1964 meant biologically female or male. To an average person in 1964, “sex” would not include sexual orientation. The judge asks the reader to return to the meaning of “sex” to its meaning in 1964. If Judge Ho relied on some evidence for his view that “sex” meant different things than it does today, he did not indicate what evidence that would be. His concurrence includes no actual evidence that the word has taken on a new meaning, today.

Judge Ho tries to apply “originalism” thinking to his opinion. But, in the end, there needs to be some evidence for his belief that the meaning of “sex” has changed since 1964. It seems to me he is trying too hard to reach a particular result. There is value in using “originalism” when looking at laws written 200 years ago. It has much less utility when the statue being discussed is just some 55 years old. See the decision here.

A woman who sued Southwest Research Institute was awarded $410,000 by a federal court jury here in San Antonio. The jury found in her favor. I previously wrote about her case here. It was a remarkable case. She was fired within just a few days after she filed a complaint of discrimination with the EEOC. Ordinarily, that would appear to be a strong case of retaliation. I noted then that the employer’s case appeared to be weak. It seems the jury agreed. The case is styled Johnson v. Southwest Research Institute, No. 15-CV-297.

SWRI fired her after 12 years, saying she failed to keep accurate time keeping records. But, it is hard to believe that after 12 years, she still had not figured out how to keep track of her hours. Texas Public Radio says she was awarded $410,000 in lost wages, pain and suffering and damages to her career. See TPR report.

One of the aspects unique to employment suits is the simple fact that a fired person will, one hopes, soon find new employment. Generally, for most folks, one job will follow another. That presents new sources of evidence. In Mesa v. City of San Antonio, No. 16-CV-870 (W.D. Tex. 1/23/2018), Abel Mesa worked for City Public Service for some 26 years. Mr. Mesa sued CPS saying he was forced out due to age and disabilities. CPS defended saying Mr. Mesa had indicated he would retire early. The Plaintiff said he was forced to retire early. Mr. Mesa did in fact find a new job relatively soon after leaving CPS.

The Defendant then thought it should find out what the Plaintiff told the new employer regarding his reasons for leaving CPS. The employer wanted to see how he described his departure. Did he say he had been fired, or did he say he had retired? We can see how the latter description might help the Defendant. Plaintiff moved to quash the request for records from the new employer. The Defendant claimed it was entitled to see information regarding Plaintiff’s performance at his new place of employment, disciplinary records, and whether he had refused any promotions that would have paid a higher wage or salary. CPS argued that such information might be relevant to whether Plaintiff has adequately mitigated his damages. But, the concern for the newly employed worker is that the new employer may not like finding out that this wonderful new employee has sued his former employer. The new employer might fire Mr. Mesa when they hear about the lawsuit.

The court pointed out that the employer was using the old standard for discovery. The new standard requires that evidence be relevant and proportional. The court tried to balance the concerns of both parties, by ordering the new request to proceed. But, the documents produced would first be produced to the Plaintiff. The Plaintiff will then provide to the Defendant any statement by Mr. Mesa about why he left CPS. The Plaintiff must also provide to the Defendant any indication that the Plaintiff told the new employer about his disability. The Plaintiff must also provide any wage history to the Defendant. Otherwise, the remainder of the request for documents was denied.

Certainly, the court addressed the true potential need for discovery. The subject matters the court allowed address actual needs. But, this solution will not protect the newly employed Plaintiff from being fired. Some employer do not like to learn the new employee has filed a lawsuit against a prior employer.

It is required of every business and government in the country to hire an American Sign Language interpreter if a hearing impaired person requests one. That requirement of the Americans with Disabilities Act has been around since the law was passed in 1991. It is remarkable how few businesses and governments realize that. When I worked at Disability Rights of Texas, some of the worst offenders were doctor’s offices. The doctors were simply not aware of the requirement. But, deaf persons are aware. The average deaf person will not make an issue of it, except when the service involves something important like medical issues. See one of my prior posts on the subject here.

Every hearing impaired person is entitled to the method of communication s/he prefers. For technical topics like law and medicine, most hearing impaired persons prefer an actual ASL interpreter. Writing notes back and forth will work for more simple, routine discussions. And, what about school? Will a school district be required to provide an ASL interpreter if requested? The answer is surely yes. One young student in San Antonio was denied an interpreter. His family has now filed suit against the San Antonio Independent School District over that denial. See San Antonio Express News report here.

There are video devices which will provide translations. The San Antonio ISD apparently tried to rely on those video devices. But, even so, if the hearing impaired person requests an actual, live interpreter, the school or business must provide it.

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.