I previously wrote about the federal court’s interpretation of the Texas Election Code here. In that decision, the Western District of Texas found that fear of contracting the coronavirus does indeed constitute a disability. Now, the Texas Supreme Court has weighed in. TheTexas Supreme Court reached the opposite conclusion, that fear of the virus does not amount to a disability. The Texas Election Code provides that “disability” is a physical condition that prevents a voter from appearing at a polling place without a likelihood of injuring the voter’s health. It does not require any consideration of how the impairment affects a major life activity. It is a more broad definition than that found in the ADA.

And, unlike the ADA, there is no practical way for some person or entity to question a voter’s claim of disability. There is no employer or EEOC to argue that the claimed disability is not that serious. On appeal, the Harris County Clerk argued that lack of immunity to the virus is a physical condition protected by the statute. The Western District opinion accepted that argument. But, the Supreme Court said no. “Disabled,” said the court, means incapacitated. In no way, can lack of immunity be considered to be incapacitated. As i mentioned in my prior post, the caselaw supports the Supreme Court’s conclusion.

The court found that lack of immunity does not amount to a “physical condition” that would harm a person at a polling site. Two justices concurred in the decision. Justices Bland and Boyd found that lack of immunity is indeed a physical condition for purposes of Tex.Elec.C. Sec. 82.002, but that a showing of “likelihood” of harm has not been made. Those two justices also suggested with a wink, that if a voter falsely claims a disability, no one would know. Said the concurrence:

“We agree, of course, that a voter can take into consideration aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability.”

See the Texas Supreme Court decision in the matter of In Re Texas, No. 20-0394 (Tex. 5/27/2020) here.

Even the Supreme Court shows more humanity than the Texas Attorney General is prosecuting this lawsuit.

Several years ago, in a federal courthouse here in Texas, a lawyer friend tried a case of white discrimination. A white man was fired under suspicious circumstances. His boss had used the term “gringo,” often. If the man’s race had been Hispanic and the term used was “greaser,” then most persons in Texas would agree that the very offensive term showed discriminatory bias. Yet, during the trial, the Hispanic judge pushed back, saying that when he was a young boy playing basketball, they often used the term “gringo.” He was saying that if he and his friends used a discriminatory term, then it was okay.

I recall a  federal judge in the 1970’s. Published reports indicated he used the n—- word on occasion. The judge’s supporters said, well, he grew up using that term. He was from a different generation.

Today, we have a new term, “Karen” to describe white women who feel entitled. Elliot Williams, a former DOJ lawyer, discusses the recent incident in New York’s Central Park. He wrote a piece finding Amy Cooper’s actions to amount to racism. She brought up race early in her encounter with Christian Cooper in Central Park, notes Mr. Williams. In his view, that indicates her racism.What Lawyer Williams wholly omits is that also early in their interaction, Christian Cooper, African-American, told her to release her “inner Karen.” See the opinion piece here. Mr. Cooper was taunting Ms. Cooper. He told the woman he would start doing “something” and she would not like it. Mr. Cooper apparently meant he would start videotaping her. But, she had no way to know what his intentions were. Christian Cooper engaged in his own provocation. It seems neither party emerges from this altercation with clean hands.

“Karen” refers to white women who feel privileged. See Wikipedia post here. Who came first with their respective racial stereotype, Amy Cooper or Christian Cooper? Does it even matter?

Ms. Cooper is now referred to as the “Central Park Karen” on Twitter and on the internet. Even CBS news used that phrase in a headline. See that news report here. But, if the situation was reversed, if someone tried to refer to her as the “Central Park Greaser,” that would never fly. Racial stereotypes applied to white persons remain racial stereotypes.

I forget who, but some wise person once remarked that we all bear some level of racism inside ourselves. We all have some sense of “other.” The smart ones, he noted, understand that and adjust their behavior accordingly. Racism is exceedingly difficult to prove in court. Let us all start from a position that stressful situations are what? Stressful. A white woman alone in the bushes is vulnerable, as is a black man anywhere in today’s time. A little more understanding and less finger-pointing would help us all.

 

So, it appears after all that the police force of a private entity is not an arm of the state. I mis-read the Texas Supreme Court’s 2017 decision. I wrote about that 2017 decision here. The Texas Supreme Court has now resolved the issue in University of the Incarnate Word v. Redus, No. 18-0351 (Tex. 5/22/20202), and found that UIW’s small police force is not entitled to sovereign immunity. The Super Court found there were some factors which suggest the small police force compared to other police force. But, in the end, the court noted that its small police force is governed by the UIW Board of Trustees. It is not accountable to the taxpayers or to any state official.

This matter has been on appeal since 2016. See the most recent decision here. It was a silly argument. Yet, it took years to resolve. The 2017 decision suggested that since charter schools have been found to be an arm of the state,  perhaps the UIW police force should also be considered an arm of the state. That such a flimsy argument was considered reflects on the very conservative nature of the Texas Supreme Court.

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.

I wrote a post the other day stating that mere fear of contracting the COVID19 virus is not a disability for purposes of the Americans with Disabilities Act. See that post here. But, in a similar lawsuit concerning mail-in balloting, the Western District of Texas has found that anxiety over the coronavirus does indeed amount to a disability for purposes of voting. See that decision here in the case of Texas Democratic Party v. Abbott, No. 20-CA-438 (W.D.Tex. 5/19/2020).  The court noted that in the past few years, the Texas Attorney General Ken Paxton has authored contradictory AG opinions regarding voting. He issued an opinion in 2015 saying that no particular definition of disability is required for mail-in voting. In 2017, he issued an AG opinion stating that sexual deviancy qualified as disabled under the Texas Election Code. These decisions contrast to the same AG now claiming fear of infection does not qualify as a disability. The court rightly noted the apparent hypocrisy in AG Paxton’s positions.

The court also noted the lack of voter fraud in Texas. And, the court noted that under the Texas Election Code, persons over the age of 65 can vote by mail regardless of disability. If vote by mail has so much fraud, why is that possible?

The Texas Election Code defines “disability” as a physical condition that prevents a voter from appearing at a polling place without a likelihood of injuring the voter’s health. This definition is more broad than the definition found in the ADA. The ADA definition focuses on how an impairment affects a person’s major life activities. The court points to the documented stress and anxiety currently among the U.S. population due to the coronavirus. The court then finds that fear and anxiety are intertwined with the health of voters. The lack of immunity is a physical condition, says the court. The court then grants a temporary restraining order allowing voters, Democratic and Republican, to cite the coronavirus and fear as basis for voting by mail.

Judge Biery’s decision is not scholarly. He points to no precedent for his ruling. There probably is no precedent. The decision will surely be appealed. Fear of infection has been held in federal courts as not a disability under the ADA. The Texas Election Code definition of disability is broader. But, I am doubtful that lack of immunity will be held to constitute a “physical condition.” Although, as a matter of policy, it ought to be. We should institute policies that encourage voting, not discourage it. But, it is true that the current AG has taken contradictory positions in the past.

In a very brief order on May 20, the Fifth Circuit issued a stay stopping Judge Biery’s decision. See that decision here. The stay does not overrule the lower court’s decision.

Be Safe.

So, a friend called me. She is a lawyer in small town Louisiana. She has been working a few years for a Public Defender’s office in a parish seat. She has been working from home, but now they want her back by next Monday. My friend has been diagnosed with Diabetes Type II. She also suffers from asthma. Does she have to return to work, she asks me. She mentions that the state of Louisiana offered to install plexiglass shields in courtrooms, but the judges in her parish declined the offer. Several of the judges are up for election in the Fall and they fear voter backlash If they spend money on something deemed non-essential by the voters. The state would pay for the shields. But, the judges still fear a negative reaction from the voters.

Oh, and by the way, the parish jail has many cases of the COVID19 virus. Jail inmates appear in court everyday. This is the new reality. COVID19 is never far from most work places. Unfortunately, my friend, like many workers, suffers from various ailments which make the virus very serious. She is in the Public Defender’s office. But, the District attorney’s office is even worse. In an office with perhaps ten lawyers, two have suffered from heart disease and two have survived cancer. And, that is just the lawyers.

I had to tell my friend that at least per federal statutes, there is no protection for workers who fear possible infection. She would probably be entitled to some accommodation, if she was infected herself. But, in regard to possible infection, there is unfortunately no protection, yet.

The AFL-CIO labor union filed suit in the District of Columbia court of appeals against OSHA asking OSHA to issue guidance protecting workers. See Axios report here. According to the report, OSHA has received 3,800 complaints from workers, but has yet to issue any citations to employers. OSHA has guidelines now for the virus, but those are only guidelines. The AFL-CIO is seeking actual requirements to protect workers.

Be Safe.

Pres. Trump  fired the IG for the State Department late Friday. He is required by statute to explain why. But, his letter to Congress simply said he lost confidence in Steve Linick. Yes, the old “lost confidence” rationale. The refuge of all retaliating employers. Later, when asked about the termination, Pres. Trump minimized one of the complaints the IG’s office was investigating, that Secretary of State Pompeo was using government workers to walk Sec’y Pompeo’s dog and wash his dishes. Indeed, Mr. Pompeo’s security personnel have been joking they are “Uber Eats” with guns, because they have been sent out for take-out so often.

The President said Sec’y Pompeo “might” have been on important phone calls with world leaders when he asked government workers to wash his dishes. …. Perhaps, but wouldn’t the dishes have waited until he found world peace? It violates various regulations and statutes to call on public servants to perform personal tasks. The President is wrong on several levels.

But, more importantly, his answer suggests Sec’y Pompeo was seeking reprisal against Mr. Linick. The President even said someone needs to deal with this “whole whistle blower racket.” See Politico news report. And, the President was only too willing to deal with it.

The American Bar Association periodically publishes brief papers on topics of popular interest. They call the papers “Fact Check” papers. The ABA has published a Fact Check paper on whether and to what extent an employee can refuse to work at unsafe work places. See that paper here. The paper points to the general requirement imposed by OSHA that work places be protected from “recognized hazards” that can cause death or serious injury.

New OSHA guidelines also require employers to keep employees six feet apart when possible, take temperatures, disinfect surfaces and to provide face masks. The paper notes that already, several thousand complaints have been filed with OSHA regarding employers not following these guidelines.

But, the paper finds only limited support for workers who are simply afraid to return to work. The paper points to the decision in Bragdon v. Abbott, in which the U.S. Supreme Court found that an asymptomatic HIV person did have a disability for purposes of the Americans with Disabilities Act. The problem, the paper notes, is how to address persons with no COVID19 diagnosis, but who are simply afraid to go to work. There is little relief for such folks. There is no legal requirement that employers address fears which do not involve a disability. In 2019, the Eleventh Circuit found that the ADA only applies to persons who already have a diagnosis, not healthy persons who sometime in the future might experience a disability later. EEOC v STME, LLC, No. 18-1121 (11th Cir. 9/12/2019). That case involved an employee who refused to fly to Ghana during the Eboloa epidemic.

As the paper notes,  looking at state law, employment at will means an employer can fire a person for any non-discriminatory reason. Fear of possible infection is not protected by any law in Texas, unfortunately.

Be Safe.

The Office of Special Counsel has found in favor of Dr. Bright. I previously wrote about Dr. Bright here. The quickness of the finding underscores the strength of Dr. Bright’s case. I have yet to get the OSC to even conduct an actual investigation in any of my cases. OSC has recommended that Dr. Bright be reinstated to his job as head of Biomedical Advanced Research and Development Authority. He previously held that position for ten years. One would think at a time like this, we would hang onto persons with that sort of experience.

Dr. Bright has spoken in an interview for CBS News. He said his persistent warnings about the coming pandemic lead to a breaking point with his supervisors. That breaking point was his view of hydroxychloroquine. He expressed frustration with the lack of leadership at the White House. See CBS news report.

So, as I guessed, Dr. Bright is claiming to be a whistleblower. I previously wrote about Dr. Bright here. Dr. Bright submitted a whistleblower complaint with attachments. See NPR news report here. He filed his complaint with the Office of Special Counsel. OSC has the power to investigate whistleblower complaints submitted by federal employees. He accuses his boss and Asst. Secretary of DHHS, Dr. Robert Kadlec, and the Secretary of DHHS, Alex Azar, of showing lack of ignoring Dr. Bright’s concerns about shortages of medical equipment.

In the complaint, Dr. Bright says he raised concerns early on about the lack of preparation by our federal government for the coronavirus. Then, later the administration, Pres. Trump, in particular began pushing hydroxychloroquine as a treatment option. Dr. Bright resisted that push. He alleges n his complaint that he was demoted due to his resistance. In looking at his complaint, he is also alleging fraud, waste and abuse of government funds. See the NPR website for a pdf of his OSC complaint.

Either complaint, the whistleblower complaint or the allegation of fraud, waste and abuse could be strong claims. In his last performance evaluation, Dr. Bright received a good rating with no criticism. DHHS’ claim that Dr. Bright was a problem employee will hold little water. DHHS also transferred Dr. Bright to his new job at the National Institute of Health with no warning. Indeed, Dr. Bright learned of the transfer from the media. He tried to call his boss, Dr. Kadlec, about the transfer, but the Assistant Secretary would not return his calls. Whenever the employer fails to follow its own procedures in carrying out a termination only helps show reprisal.

Whistleblowers receive extensive protections. Alleging abuse of federal funds constitutes a violation of the False Claims Act. That is a relatively new sort of claim. The OSC has the power to conduct a thorough investigation. It will be interesting to see if they do so here.

Dr. Bright claims his new job is “less impactful.” It appears he did not suffer a loss in pay. Normally, most lawyers would not accept a case with no lost pay. But, if he can show some direct impact on his career, that will help.

And, of course, alleging high profile violations represents a high stakes type of lawsuit.