Autism is becoming more and more common. Folks disagree about why, but all agree we see more and more of the diagnosis. The remarkable thing about persons with autism is they can display brilliance in a wide variety of subjects. Yet, many employers resist hiring persons with autism. The employer who do hire them really appreciate them. Microsoft is one. They hired Christopher with a degree in computer science. They wanted to hire persons with a diagnosis of autism. As one of the hiring managers mentioned, persons with autism are one of the great un-tapped niches in hiring. But, Jenny Lay-Lurie herself also has an impairment. She is deaf.

Ms. Lay-Lurie helped create a different sort of hiring process, one that relies less on the traditional job interview. Job interviews are hard for persons with autism. One symptom of autism is a lack of social skills. For a orson with limited social skills, job interviews reveal little about the person. So, she helped create a hiring program that relies on team building exercises and a vetting process that lasts weeks.

Christopher was hired soon after going through that process. He was not self-concious while performing a set of tasks, rather than the traditional interview. Christopher’s manager was soon impressed with his ability to think outside the box. That is no small skill in the software world.

In April, 2017, 50 large corporations came together to determine how to bring more persons with autism into the work force. The meeting was hosted at SAP in Silicon Valley, California. SAP started its Autism at Work program five years ago and has hired some 128 persons on the spectrum since then. SAP has experienced a 90% retention rate for its employees with autism. One technique that worked for SAP was to assign a onsite mentor for each person on the spectrum. That person has provided the one-on-one coaching persons with autism need. Microsoft also employs mentors for each person on the spectrum.

See CBS news report.

We see more and more service animals. Setvice animals have become a critical tool in dealing with the PTSD suffered by many soldiers. Many public places do not understand the rules regarding service animals. In one recent instance, American Airlines refused to allow a veteran on board with her service dog. Lisa McCombs of Mississippi filed suit in 2016 and just recently settled her case. A veteran of both Iraq and Afghanistan, Ms. McCombs, like most veterans with PTSDS, relies on the service dog to provide trained skills. Those skills include shielding Ms. McCombs from other persons when she is feeling trauma and to moving closer to the veteran when she is feeling stress. Those are not small skills when a person suffers from PTSD.

Ms. MCombs was not allowed to board with her service dog, despite having documentation that her dog, Jake, was a trained animal. The AA clerk upon seeing the dog, said, “Ummmmm are you trying to fly with that?”

Ms. McCombs apparently sued under the Air Carrier Access Act. American Airlines argued that the ACA Act does not allow a private right of action. See Task & Purpose report.

Regulations define a service animal as one that has received specialized training to perform skills it would not otherwise possess. It helps that the service animal display some rig or vest to indicate it is a service animal.

The district judge in Gulfport, Mississippi rejected the Airlines’ motion to dismiss. It also allowed the Plaintiff to amend the complaint to add other veterans who were also denied boarding by American Airlines with their service animals. See Miami Herald report. One of the other female veterans had a full blown panic attack after some American Airlines employees surrounded her and asked her why she needed a dog since she was not blind.

The requirements of the ADA are not well known,. But, in each the instances mentioned in the lawsuit, the veteran called ahead and had his/her papers with them. They did their part to educate AA employees. The Airline needs to do its part. On a personal level, if that happened while I was about, I would find it very difficult to not get in someone’s face.

Defamation is that cause of action many people consider, but which is very difficult to prosecute. To show defamation, you have to show what the other person was thinking. You have to show a bad intent. In Hawbecker v. Hall, No. SA-14-CV-1010 (W.D. Tex.), the plaintiff did show defamation. It was a strange case. A woman in Colorado became convinced that Paul Hawbecker, who stayed with her and her daughter one night many years before, had molested her daughter and taken photos of the daughter. Michelle Marie Hall started a Facebook web page called, “Please help me stop a child molester!” Ms. Hall lives in Colorado and Mr. Hawbecker lives here in San Antonio. The mother messaged Hawbecker’s friends, family and others to warn them about him. She liked his employer, which apparently gave his employer access to the webpage.

The Plaintiff was a karate instructor. Customers started avoiding him. He was removed from teaching children and girls. Soon, he was fired. His romantic life suffered. So, the instructor sued Ms. Hall for defamation. Ms. Hall could not afford a lawyer, but she argued that a court in San Antonio would not have jursidiction over her. She lived in Colorado. The court disagreed. It looked at various factors, the essence of which was her attempts to contact persons in Texas on Facebook to tell them about Mr. Hawbecker supposedly molesting young girls. Those contacts gave the court jurisdiction.

The plaintiff moved for summary judgment, which the court granted. Ms. Hall’s story was contradictory. She claimed there was a Sheriff’s investigation, but there was not. She claimed to have pictures, but the provenance of the alleged picture was very dubious. It was not clear what the picture even represented, said the court. Worse for the defendant, Ms. Hall claimed she did not try to contact anyone on Facebook, but her FB posts showed different. In any lawsuit, credibility is critical. If you lose it, you are done. And, then the judge noted this: “the affidavit was replete with strange, conflicting and changing versions of events from Ms. Hall and her daughter.” The judge is saying the defendant’s story simply was not credible. So, the court granted summary judgment. It later held a trial just to determine damages.

It noted that accusing someone of molesting a child is probably the greatest harm a person can inflict, short of violence. Even though the court recognized that Ms. Hall had limited financial resources, it found general damages of $250,000. It also awarded $100,000 in punitive damages. The court found this sort of defamation was defamation per se. That is, it was so defamatory that no evidence of the harm of the slander was necessary. The harm was readily apparent, said the court. It turned Mr. Hawbecker’s life upside down and cost him at least one job. The defendant’s conduct, said the court, was deplorable and unacceptable. “In the age of social media, what we say on the Internet matters, and accusations of severe misconduct carry potentially severe consequences,” concluded the court. Yes, indeed.

For federal employees, they have a different process to trial. A federal employee can file a verbal complaint with his/her local EEO office. When that process is completed, the federal employee then has 45 days to submit a written complaint. The Agency then conducts an investigation. The Agency does not come to any conclusions about whether discrimination occurred. But, the EEO investigator does gather statements from all (or most of) the pertinent witnesses. When that process is completed, the federal employee can file suit in U.S. district court, or request a less formal hearing in front of an EEOC Administrative Law judge. In theory, the EEOC judge process should be quicker and cheaper than U.S. district court. But, the EEOC process is not quick anymore.

According to statistics provided by the EEOC, for the time period FY 2009-FY 2017, the total time of the EEOC process has increased every year. The numbers below apply to the San Antonio Field Office. The Texas region has been short of a few judges for several years now. But, much of the country is also short of Administrative Judges. Median processing time refers to one-half being greater than that number and one-half being smaller than that number. The first category addresses those rare cases in which a federal employee reaches the point of having a trial in front of an EEOC judge and wins.

Written Decision/Finding of Discrimination

  • 2009: 5 cases/ 285 days median processing time
  • 2010: 2/626 days
  • 2011: 0
  • 2012: 0
  • 2013: 1/612 days
  • 2014: 0
  • 2015: 1/1128
  • 2016: 0
  • 2017: 0

The next category applies to the majority of cases. These are the federal EEOC complaints that have proceeded to a trial in front of an EEOC Administrative Judge in which the employee lost.

  • 2009: 68 cases/296 days median processing time
  • 2010: 4/227
  • 2011: 27/199
  • 2012: 28/221
  • 2013: 14/332
  • 2014: 6/279
  • 2015: 1/146
  • 2016: 2/1644
  • 2017: 3/1181

So, the median processing time for employees who lose their trial in front of an EEOC Administrative Judge has increased from 227 days in 2010 to 1181 days in 2017. And, since 2013, there has been significant drop-off in the number of EEOC complaints that have reached the trial stage. And, starting in 2016, the length of time to reach a trial and lose has exploded.

Some cases do settle. The number of settlements is not as significant as they might seem. In many federal settlements, no money changes hands. Many federal employees are happy to settle for nothing more than a transfer to a new department or to a new job. These numbers reflect how many cases settled and how many days it took to reach that settlement.

  • 2009: 81 cases/210 days median processing time
  • 2010: 55/137
  • 2011: 54/134
  • 2012: 69/182
  • 2013: 77/241
  • 2014: 57/246
  • 2015: 56/177
  • 2016: 78/215
  • 2017: 40/294

So, many cases settle within the first 7-10 months of the life of a written complaint. That suggests if your case does not settle within that time, then the process will require  years before reaching a resolution.

 

Two managers at the state Department of Health and Human Services Commission were fired weeks after they complained about possible violations of law at the agency. Before they were fired, they were excluded from important meetings. These are the allegations in a whistle blower lawsuit filed by Dimitria Pope and Shannon Pickett. Ms. Pope and Ms. Pickett were in charge of the Medical Transportation Program until last October. They were fired with no notice.

According to the lawsuit, the two women were subjected to unfair performance valuations and useless investigations which found no wrongdoing after they made their complaints. See San Antonio Express News report.

Unfortunately, under current whistle blower law, that may not be enough. What is critical in whistle blower lawsuits is that the employees reported their concerns to persons in a position to enforce the laws that are being violated. The news report does not indicate to whom they made their initial report. It does mention that later they reported their concerns to the Austin Police Department. But, we do not know if that report led to their termination, or if it was the report to their supervisors.

Federal employees have a wide range of options when they run into problems at work. One of those options is the Office of Special Counsel. OSC has the mandate to investigate fraud and violations of law. But they receive too many complaints and lack enough staff to investigate all those complaints. But, one San Antonio federal worker succeeded in attracting the attention of OSC. A Veterans Affairs worker named Jamie McBride complained about the process for transplants at the V.A. hospital.

He said veterans were being short-changed because they were being required to travel to distant V.A. hospitals in Houston and Nashville for heart, lung, liver and kidney transplants. Yet, when the veteran travels to these distant locales, they were actually being treated in non-VA hospitals. Mr. McBride pointed out that several San Antonio area hospitals performed these transplants. For unknown reasons, the V.A. refused to enter into contracts with those local hospitals.

After hearing the V.A.’s explanation, the OSC found Mr. McBride was correct. The V.A. imposed unreasonable eligibility criteria for persons seeking transplants under the Choice program. The OSC found that requiring families to re-locate to distant centers caused financial stress for those families. The V.A. argued that the local hospitals would not accept Medicare rates, which is a V.A. requirement. But,. Mr. McBride showed that some 50% of San Antonio hospitals would indeed accept medicare rates for those transplants.

The OSC agreed that the V.A. satisfied the requirements of the statute, but the V.A.’s actions were still unreasonable.

Mr. McBride submitted a complaint to the V.A. Inspector General’s office in 2013. Three years ago, the IG found in his favor. The worker then submitted a complaint to the Office of Special Counsel in Washington, D.C. See San Antonio Express-News report.

Yes, this is the first time I have experienced the OSC finding in favor of a local employee. Indeed, at least in my experience, they accept very few complaints for investigation.

In an employment lawsuit, can a lawyer representing an employee contact employees who no longer work for the employer? What if the former employees are former managers? This is important since in most employment cases, the only witnesses are current or former employees.

The answer is yes. The Northern District of Texas so decided in Orchestrate HR v. Trombetta, 178 F.Supp.3d 476, 486 (N.D.Tex. 4/18/2016). In this suit, Orchestrate HR sued its former employee, Anthony Trombetta and his new employer, The Borden-Perlman Insurance Agency, Inc., for claims arising from a non-compete agreement. Mr. Trombetta’s lawyer asked Plaintiff’s lawyer if she could contact certain employees, who no longer worked for Orchestrate. The Plaintiff’s lawyer said no. Defendant’s lawyer contacted them anyway. Plaintiff moved for sanctions. The court found that no disciplinary or ethical rule prohibits a lawyer from contacting a former employee. The court noted this finding applies to management as well as lower ranking employees.

But, because the attorney violated her agreement not to contact the witnesses, the court still sanctioned the lawyer and her client. The court ruled that certain information must be provided to the Plaintiffs and he ordered the parties to confer regarding how much would be necessary for an award of attorney’s fees.

There are a few law firms that specialize in representing employers in employment cases. A very few of those firms operate nationally. One such law firm is Ogletree, Deakins, Nash, Smoak and Stewart, PC. Ogletree Deakins represents employers everyday regarding employment matters. They have offices across the country. Yet, that firm is the defendant in a $300 million claiming the law firm discriminates against female partners in regard to pay. Shareholder Dawn Knepper, once a resident of San Antonio, accused the law firm of substantial pay disparities when she moved to California and found herself paid considerably less than her male counterparts.

According to the lawsuit, the firm does not give female partners credit for the business they bring in, does not give them the same opportunities to develop, and does not select women to represent the firm at business meetings as much as the firm chooses male partners. The lawsuit notes that pay is based on a vote of the equity shareholders, 80% of whom are male. The suit seeks $100 million in lost pay, $100 million in compensatory damages and $100 million in punitive damages. See ABA Bar Journal report.

A separate suit seeks a declaratory judgment that Ms. Knepper is not limited by an arbitration agreement she signed with the law firm. Ahhh yes, those pesky arbitration agreements.

Comal County is adjacent to Bexar County. The County seat for Comal is New Braunfels. Recently, a woman was charged with trafficking a girl for sex. While the jury was out deliberating, Judge Jack Robison interrupted them and told them God had told him the woman, Gloria Romero Perez, was not guilty. The jury ignored the judge and found the woman guilty. Judge Robison recused himself before sentencing. the Defendant asked for a mistrial, but was denied. See Austin American-Statesman report.

Judge Robison explained to the jury that he could not ignore God’s wishes. No, he should not. But, that interruption does provide the Defendant with a basis for an appeal.The defense attorney explained that she submitted a motion for directed verdict at the close of the prosecutor’s case. The judge could have simply granted that motion and avoid a lot of drama. See San Antonio Express News report.

Judge Robison has been previously sanctioned by the State Commission on Judicial Conduct. I think I see a another visit from the State Commission in the judge’s future. Usually, the jury room is sacrosanct. No one may enter.

The jury later sentenced the defendant to 25 years. They gave Ms. Perez the lightest sentence possible. She was accused of bringing her under-age niece to the U.S. and selling her to a 32 year old man. The man then impregnated the niece. The jury foreman said some jurors felt the Defendant should be released and given credit for the time she has already served.

Online legal help has grown tremendously in the past 10 years. But, the truth is many of those websites are providing legal advice – without a law license. In lawyer talk, we call that unauthorized practice of law. Unauthorized practice of law was developed to protect consumers from charlatans, person who claim legal knowledge, but lack it. I am not sure what to think about the online legal service providers.

But, Raj Abhyanker knows what to think. He has sued several of those legal service providers, LegalZoom, FileMyLLC, and others. Mr. Abhyanker practices patent and copyright law. As he points out, those online providers can provide services without incurring expenses for continuing legal education, for malpractice insurance, and the many other expenses actual lawyers incur. The online legal providers have an advantage. Mr. Abhyanker says bar associations are unwilling to push the issue. But, the bar associations all know these providers are providing legal advice, meaning they could be prosecuted. See ABA Bar Journal report.

I think bar associations are holding back also because at least so far, there have been no significant scandals arising from these providers. Until or unless they cause harm to consumers, it is hard to criticize them. They are indeed providing legal advice, but much more cheaply than seeing a lawyer. In most of the world, civil law countries have an institution known as “notaries.” In a civil law country, a notary provides the more routine and mundane legal services more cheaply. In France or Mexico, you can see a notary to draw up a contract for you, and it will cost much less than seeing a solicitor. In the U.S., we do not have an equivalent of the notary. We have notaries, but they cannot draw up legal, binding contracts. There ought to be a cheaper way to obtain the more mundane, routine, legal services.

Part of the reason bar associations hang back from going after these online providers is that they do fill a niche.