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.

We all know that age discrimination is an issue when an older worker is replaced by a younger worker. But, can we still show age discrimination when an older worker is replaced by someone who is also older? The Firth Circuit says yes, sometimes. In the case of Alaniz v. U.S. Renal Care, Inc., No. 19040043, 2020 U.S. App. LEXIS 40266 (5yh Cir. 12.23.2020) (unpublished), Juan Alaniz was a Licensed Social Worker at a medical clinic. His supervisor, Rebecca Perez, who hired Mr. Alaniz, told him younger workers can work more quickly and more quickly be molded. Another time, she said a younger persons as waiting to be called in for his position. A co-worker told Alaniz that it was a joke for older persons to continue to work.

Co-workers, who were younger, would call him for specious reasons to come to the office. They would then tell him to hurry up. The younger co-workers would walk into his office without knocking, while Alaniz was with a patient, and take papers from his desk. patients complained about the lack of respect shown toward Mr. Alaniz. Mr. Alaniz complained to HR. A regional director came to the clinic and told him he sided with Ms. Perez. he said he would fire Mr. Alaniz if he had to come back to the clinic.

A fe months later, Mr. Alaniz filed a complaint with the EEOC. A doctor came into Mr. Alaniz’ office. He asked Alaniz if he had filed a complaint with the EEOC. Upon hearing Mr. Alaniz’ response, the doctor stormed out. The clinic accused Mr. Alaniz of forging patient signatures and fired him. he was 53 years old. The clinic re-hired a former Social Worker, who was 60 years old, to replace Mr. Alaniz. It also hired a second, younger Social Worker, 26 years old.

In the resulting lawsuit, the clinic moved for summary judgment. The district court granted the motion.

But, on appeal, the Fifth Circuit noted that just because an older replacement was hired, that does not establish a lack of age discrimination. The supervisor made several ageist comments to Mr. Alaniz. The clinic may have hired the older Social Worker simply as cover for a lawsuit while also hiring a younger Social Worker for the future. The 60 year old Social Worker may been intended as a temporary replacement. The court noted the lack of organization in the employee’s brief. But, stills aid, the court summary judgment should not have been granted. The court then reversed the grant of summary judgment. See the decision here.

 

 

Glenn Hamer claims the pending bill known as “Protecting the Right to Organize” will stop gig workers from working in the gig economy. In a recent opinion piece with the San Antonio Express News, Mr. Hamer claims the PRO, which is pending in the U.S. Senate, will make all gig workers traditional employees and not independent contractors. If true, such a result would indeed stop gig employment.

The CEO of the Texas Association of Business points to no authority for his claim. My reading of the bill reveals nothing that applies to independent contractors in general. The bill does have a provision that applies to joint employer situations. Joint employers are those situations in which an employer contracts out some of its hiring to a third party staffing agency. There are valid questions regarding these sorts of independent contractors. Are they true independent contractors, or are they traditional employees masquerading as independent contractors? The joint employer situations are growing, but they are still rare. See the pending bill here.

What the bill does do is over-rule so-called right to work laws in various states, including Texas. These laws allow a worker who is not a union member to not pay union dues. You might call these the “Protect the Freeloader” statutes. The PRO would stop the Protect the Freeloader statutes. The PRO also prevents employers from requiring attendance at anti-union organizing meetings. For more information about the bill, see the NPR report.

The bill amends the National Labor Relations Act. So, even if someone wants to change gig employment, this bill could not do that. The NLRA is one part of U.S. labor laws. It is not the entire labor law across all areas of the economy. The NLRA only applies to union workplaces and workplaces that are considering forming a union. Even if Mr. Hamer or someone wanted to change the law regarding gig workers, this law just physically could not accomplish that sort of a goal.

The PRO is legally impossible of effecting the changes Mr. Hamer assigns to it. We just hope he made this large error accidentally, and not deliberately. See his piece here.

Every lawsuit has some small but critical detail. One critical element for any defense is the number of workers employed by the employer. If the Defendant employer wants to take advantage of the caps on damages, it must show the number of employees. In THF Management Houston Corp. v. Gideon, No. 14-18-01103-CV, 2020 WL 771332 (Tex. App. Amarillo 1/6/20201), the jury found for the employee and found she suffered discrimination. The jury awarded $225,000 in compensatory damages. TJF Management had enough employees that the lowest cap would apply, $50,000. But, the $50,000 cap would only apply if the employer plead the caps, and if the employer then showed the number of employees at trial. But, the employer did not plead the cap and did not seek a finding by the jury about the number of employees.

But, said the court, THF Management did raise the issue in a motion for new trial. A motion for new trial is not trial evidence. The appellate court found testimony by one of the THF witnesses that it had less than 50 employees, so the FMLA did not apply. The court of appeals also pointed to the plaintiffs EEOC charge that indicated the defendant had 15-100 employees. The court of appeals then relied on those two pieces of evidence to find the cap should apply. See the decision here. That is pretty thin evidence, but it satisfied the court.


In a new decision on the issue, a federal judge in Chicago has ruled that reduced seating does amount to an “interruption” in business for purposes of insurance coverage. The insurance carrier, Society Insurance, had submitted a motion to dismiss the lawsuit. Judge Edmond Chang said capacity limits can constitute “direct physical loss” for “business interruption” policies.

Society Insurance had argued that the tables, chairs, walls and floors remained in working condition. But, the restaurants argued that the virus pandemic had created a dangerous condition in the restaurant. The judge said a reasonable jury could conclude the pandemic effected direct physical loss tot he restaurants.

See ABA Bar Journal report.

In Union Pacific RR Co. v. American Railway & Airway Supervisors Assoc., No. 18-50110 (5th Cir. 12/16/2020), the Fifth Circuit reversed a grant of summary judgment in favor of the employer. A railroad employee, Roland Beltran, twice tested positive on a drug test. Aided by the union, he appealed to arbitration. He presented evidence that prescription drugs likely caused the false positive. The arbitration delivered a decision overturning Mr. Beltran’s termination. Union Pacific Railroad Company then sued seeking to overturn the arbitration result.

The case turned on the meaning of 49 C.F.R. Sec. 40.149, which provides that only the medical testing review board can overturn a drug test result.  The district court held that an arbitration panel does not have the authority to reverse the drug test result. The district court faulted the employee for not providing information about his prescription drugs when asked by the medical review board.

But, the Fifth Circuit saw the role of the medical review board as more  narrow. Its sole function was to verify the drug test’s validity for purposes of personnel procedures, not to implement federal safety regulations. At bottom, said the court, transportation safety policy and labor policy are driven by different concerns. That means the arbitration panel decision did not conflict with the medical review board result. Therefore, no public policy has been violated.

Too, noted the court, the employer did not challenge the jurisdiction of the arbitration board when that mater was still pending. That means the employer waived its jurisdictional argument in front of the arbitration panel. Union Pacific did not raise the issue concerning 49 C.F.R. Sec. 40.149 before the arbitration panel. See the Fifth Circuit decision here.

Well, a recent study confirms what many of us expected. Joanna Shepherd, law professor at Emory University, conducted a study of employment discrimination lawsuits.The study looked at whether backgrounds of individual federal judges had an impact on the outcome of a discrimination lawsuit. The study asks whether the professional background of some judges makes them more likely to rule against workers. The study found the answer to be yes.

The study found that judges appointed by Presidents Obama with corporate backgrounds are 36% less likely to rule on behalf of employees. Obama judges who have a background as prosecutors are 56% less likely to decide in favor of employees in those cases compared with non-prosecutors.

The study looked at federal court decisions in 2016 to 2019. It focused on judges appointed by Pres. Obama and Pres. Trump. Nearly 25% of Trump’s picks came from the 200 largest law firms in the country. About 45% of Obama’s choices had previously served as prosecutors at the state or federal level. The study found similar results whether the judge was appointed by a Republican or Democratic President.

The study looked at the rulings in regard to motions for summary judgment, motions for judgments on the pleadings and motions for judgments as a matter f law. It did not look behind the decisions. It did not attempt to assess whether the judge made the “right” decision in a given case. It simply noted that judges of a coporare or prosecutorial background were more likely to grant anti-employee motions.

See NPR news report here. See the report here.

 

The case of the mysterious Ken Paxton machinations continues to develop. I previously wrote here and here about the whistleblower allegations against him. Four of his fired aides filed a lawsuit. Their lawsuit papers provide further details about their allegations. They allege that real estate developer Nate Paul was helping Mr. Paxton remodel his house and agreed to hire Paxton’s mistress. In return, AG Paxton helped Mr. Paul settle a lawsuit and investigate Paul’s business adversaries. The lawsuit describes Paxton’s “bizarre, obsessive use of power.”

In January, the AG’s office filed a motion to dismiss the whistleblower lawsuit. The motion claimed that the AG was not a public figure under the Whistleblower Act. Good luck with that argument.

The lawsuit also alleges that AG Paxton issued a legal opinion helpful to Mr. Paul’s business. Mr. Paul’s business was able to use that legal opinion to avoid foreclosure on several of his properties. See Texas Tribune report here.

It is always risky to predict lawsuits. But, as I mentioned previously, these four aides were top level AG officials. It is very unlikely they lack evidence for their allegations.