When I was a young warehouseman working my way through college, my job was to pick orders – that means gathering the products and items for a given order. I was tempted more than once to climb those 20 foot high shelves to grab a quick item. Climbing the shelves would have saved me the two or three minutes necessary to find a ladder and position it in place. The thing that kept me from shimmying up a 20 foot high industrial shelf was an OSHA sign that prevented general risky work practices. That sign and my employer’s emphasis on workplace safety kept me from taking unnecessary risks. So, imagine my surprise at reading a concurrence from Justices Alito, Gorsuch and Thomas suggesting that OSHA only addresses unique workplace situations involving asbestos and “rare chemicals.” National Federation, concurrence, slip op., p. 3.

A three Justice majority opinion ruled in National Federation of Independent Business v. OSHA that the administration’s vaccine mandate for employers of 100 or more employees was not allowed under the Occupational Safety and Health Act of 1970. The three judge majority found the vaccine mandate was not tailored to actual occupational risks. The COVID19, said the majority, was too general. The risk applied to the population as a whole, not simply to the workplace. That means the vaccine mandate was not tailored to occupational related risks.

No Control

But, as the dissent noted, the workplace endures the COVOD19 in a unique way. It is only in the workplace that workers encounter the risk with no control. Employees cannot control their workplace, as they can control the risk of infection at home or at sporting events. The three judge majority’s opinion more addresses the vast powers allowed under the 1970 act and less addresses the 100 employee mandate. The majority opinion mentions that the risk of infection occurs at home and at sporting events. But, the average worker has no control over the risk at work. The occupation related risk is different.

The reach of the OSH Act is broad. The majority justices seem more concerned with that broad reach. But, their job is to interpret the statute, not re-word the statute.

Three justices, Gorsuch, Thomas and Alito then concur based on the so-called “major questions doctrine.” Their concern is that  something that affects 84 million workers ought be be instituted by Congress or by elected officials, not by OSHA. But, again their real complaint is with the broad mandate of the Occupational Safety and Health Act of 1970, not with the 100 employee mandate. The fact is that OSHA has the authority for such a broad mandate. OSHA already regulates much more than asbestos and “rare chemicals.” And, this former warehouseman is grateful for that broad mandate.

See the decision in National Federation of Independent Business v. OSHA, No. 21A244 (1/13/2022) here.

The plaintiff, Mary Pearce, worked for Universal Lubricants for 16 years selling lubricants. In 2016, Petrochoice acquired Universal. Petrochoice told Pierce and the other employees they must sign a non-compete agreement. A few months later, Petrochoice fired Pearce. Because of the non-compete agreement, Pearce had trouble finding work. A few months later, she found a new job working in the same field. {Pearce filed a decartary action asking a court to declare then-compete null and void. Pearce alleged in her lawsuit that Petrochoice did not provide any consideration in exchange for execution of the non-compete.

General Allegations

Caselaw on non-competes says that if an employer provides confidential information to an employee in exchange for the employee signing the non-compete, then that confidential information serves as consideration. Petrochoice argued on appeal that it provided confidential information to Pearce in return for her signing the con-compete agreement. That confidential information included, said the employer, names of clients, volume and history of purchases, accounts receivable information, information concerning the Petrochoice products, profit margins, sale information, etc. But, it provided no specific information in its affidavit. The former employer was essentially simply submitting a boiler plate affidavit, with no specific information that was allegedly provided to this one specific salesperson.

Laundry List

The court described this as a “laundry list” of alleged information with no specifics. It included no evidence that it had actually provided that information to Pearce. We have to wonder what Petrochoice might have provided to Pearce, a 16 year salesperson, within the few months she worked there. In fact, Pearce testified that she herself provided confidential information about pricing to Petrochoice.

The court found the affidavit was conclusory and rejected it. Without evidence that Petrochoice had actually provided confidential information to Pearce, the court of appeals found in favor of the employee. See the decision Petrochoice Holdings v. Pearce, No. 12-20-00106, 2021 LEXIS 272  (Tex.App. Tyler 1/13/2021) here.

It’s just a simple thing to provide actual evidence, instead of a laundry list of standard types of information. But, it may be that Petrochoice did not have such evidence.

 

Albert Lara, a 21 year employee with the Texas Department of Transportation, suffered some stomach issues which required surgery. He went home to recover. he used up all his sick leave and personal leave. Under DOT’s leave without pay policy, he requested extended leave as an accommodation. DOT had a policy which allowed up to one year’s leave without pay as an accommodation. Lara requested additional leave twice. A few months after his second request, DOT fired the 21 year employee. Lara sued DOT for failure to accommodate, retaliation and for discrimination based on his disability. The district court granted the employer’s Plea to the Jurisdiction.

On appeal, the court of appeals granted in part and reversed in part the Plea to Jurisdiction. On appeal to the Texas Supreme Court, the higher court found that the employee need not submit his request for an accommodation on a particular form. That Mr. Lara submitted his request for accommodation as a memo did not violate any statute, said the higher court.

Indefinite Leave

DOT also argued that Lara’s request for leave amounted to a request for indefinite leave. Such a request would render Mr. Lara unqualified for his job. The employer essentially asked the court to adopt a bright line rule that a request for several months leave was never reasonable. But, the Texas Supreme Court did not agree. It noted that the cases cited by the defendant were distinguishable on their facts. The court noted that unlike the case cited by the employer, DOT did have a 12 month policy in place which expressly allowed leave for a disability.

Daily Attendance

The court also rejected DOT’s argument that daily attendance was a job requirement for every job. The higher court said no, whether daily attendance is required is not the relevant inquiry when the issue concerns leave as an accommodation. The issue then becomes what sort of leave policy the employer actually has. The Supreme Court was troubled by DOT’s refusal to specifically acknowledge the existence of its 12 month leave policy. The attorney for Texas DOT claimed the policy allowed the employer to deny the leave, based on circumstances. But, noted the court, that was not what the policy actually said.

Too, Lara’s last request for leave said he could return to work on Oct. 21, just a few weeks before DOT terminated him. The Plaintiff’s testimony that his leave request was not a request for indefinite leave sufficed for purposes of a Plea to Jurisdiction. There was no evidence to indicate he would not return on Oct. 21, as his doctor said. See the opinion in Dept. of Transportation v. Lara, 625 S.W.3d 46 (Tex 2021)  here.

I first wrote this a few Christmases ago. It still seems to resonate. Every Christmas, I look back to my Christmas in Iraq, some six years ago.  I served as a Civil Affairs officer supervising a staff of 3.  In the war zone, everyday is a work day. On Christmas Eve, we worked a full day.  After duty hours, my unit attended a barbacue put on by our sister Psychological Operations Company. Our unit theme was Pirates, so we all wore our Pirate accoutrements.  For most of us, that meant simply wearing an eye patch. But, our unit First Sergeant, supported by a resourceful spouse back home, came in full Pirate regalia, from mock boots to a beard and plastic sword. Santa appeared, looking quite jolly. The beverage of choice was some tasty fake beer from Germany. We enjoyed each other’s company. We were a family away from our real families. We, some 40 of us, shared a bond forged in training and honed going outside the wire, knowing who we could rely on and who we could not. We had made it this far, with no casualties.  It was a small celebration of life and duty in a far away country.

Some of our Iraqi interpreters joined us, not needing to understand the occasion. Even though they were mostly Moslem, they all seemed to understand the spirit of the celebration.

Christmas day 2005 was quiet fortunately.  My staff section was able to take most of the day off. I checked email and then went to Mass.   Mass in a war zone is sublime.  Life is reduced to its essentials. Church was warm and comforting. The Christian spirit filled the generic old Iraqi government building. Light streamed into our little chapel, our rifles at our feet. The Army priest was one of us, sharing our risks and hopes.

Later, I joined some friends to watch a movie (Christmas Vacation) set up on a laptop and screen. We split among the four of us a box of chocolate liqueurs, the first alcoholic “drink” I had had in many months.

But, the best part was simply being off for much of the day. No responsibility, no fires to put out, no urgent issues, no staff sections to cross swords with.  It was a lovely day, amidst stress, worry and fear.

I love Christmas and all it stands for. But, that Christmas in a war zone, Iraq, will always stand out.

Taking depositions by phone or Zoom invites abuse. In one 2018 deposition, the defense lawyer texted advice to the witness and was caught. The witness was an insurance adjuster who was testifying about a worker’s compensation case. Derek Vashon James, a Florida lawyer, represented the employer. The court reporter refused to swear in the adjuster, because she was testifying via phone, not on video.

The opposing lawyer, Toni Villaverde heard typing noises during the deposition. Villaverde asked the witness and James if they were texting. James said he received a text from his daughter. Villaverde asked James to put the phone away and stop texting. James agreed to do so. But, James continued to text and accidentally sent the texts to Villaverde:

“11:53 (James): Just say it anyway

11:53 (James): Just say 03/28

11:54 (James): In addition to the 03/28/2018 email containing the signed release I show…..

11:55 (James): Don’t give an absolute answer

11:55 (James): It’s a trap

11:56 (James): Then say that is my best answer at this time”

These text messages obviously are coaching the witness. Ms. Villaverde stopped the deposition when she noticed the text messages on her phone. Mr. James tried to convince her that the text messages were sent while on break. Ms. Villaverde then sought production of the texts and review by the worker’s compensation judge.

The judge found the texts were sent during the deposition and were not protected by attorney-client privilege. At a hearing before the worker’s compensation judge, Mr. James refused to admit he had sent the texts during the deposition. Later, during his discipline proceedings, he admitted he sent the texts because Villaverde was talking over the witness and interrupting the adjuster.

In a disciplinary proceeding, the Florida Supreme Court found the lawyer had lied during the hearing before the worker’s compensation judge. It placed Jame’s license on suspension for 91 days. It said James’ dishonesty was clear from the record. His actions obstructed access to evidence. James’ lawyer for the disciplinary proceedings said James was sorry for what he did. The lawyer said James believes this shows that we need to observe the ethical rules even during electronic proceedings. Yep…..

See ABA Bar Journal report here.

The death penalty sanction is very rare in litigation, but it does happen. In Hornady v. Outokumpu Stainless U.S., No. 18-00317-JB-N (S.D. Ala. 11/18/2021), the court specifically found the defendant had obstructed discovery for years. The lawsuit concerned a Fair Labor Standards Act collective action – a class action lawsuit. As part of every FLSA lawsuit, the employee and employer must exchange their records regarding work schedules and pay. The employee may have only a few records. But, the employer will have all the pay records. The FLSA requires the employer to maintain those pay records. In most cases, it is a simple discovery request to see those payroll records.

But, in Hornady, that discovery process stretched on an on. Six months after discovery had closed, the defendant still had not produced those pay records. At a show cause hearing in March, 2021, the defense lawyer essentially tried to assign blame to the payroll processor, ADP. But, as the Judge noted, the defendant is the defendant.

Lamentable

As the court said in the opening paragraph of its sanction order:

“This case is lamentable. Mercifully, it is rare. Here, the Court is compelled to protect not only the plaintiffs but the Court itself from a defendant’s pervasive bad faith.”

Mid-way through discovery, the Magistrate Judge addressed the failure to produce the pay records. The Defendant blamed Automatic Data Processing (ADP). The Magistrate Judge ordered the Defendant to submit a subpoena to ADP.  Outokumpu served the subpoena, but then told the court that ADP had not complied with he subpoena. When, in fact, ADP had complied. In any event, Defendant still did not provide the pay records. The Magistrate Judge, not knowing that ADP had actually complied, recommended sanctions lesser than default.

Erroneous Testimony

At that point, Defendant changed course. It argued that the request for the pay records was based on faulty testimony from its own corporate representative. Outokumpu said it would submit an affidavit “correcting” the corporate representative’s testimony. It argued that the records already provided were accurate enough. The defendant also argued that the ADP records were no longer needed. Both parties objected to the Magistrate’s recommendation. The defendant never submitted that “correcting” affidavit. So, the issue then went to the Judge. It is the Judge’s role to review the Magistrate’s recommendation.

The Judge looked at the lawsuit record himself and found five motions to compel had been filed. Two motions for sanctions had been filed. Twelve orders had bene issued telling the defendant to produce the pay records. Yet, each time, the defendant told the Magistrate it would comply with the Magistrate’s latest order. But, it never did comply.

ADP did not Attend

So, in February, 2021, the Court held a hearing. The defendant again represented that ADP had failed to to provide the requested records. ADP was not cooperating, said the employer. The Court then set a show cause hearing. It ordered the defendant to serve ADP with a copy of the order. ADP was to appear with a chronology detailing its attempts to satisfy the subpoena. Defendant was to give ADP ten days notice of the hearing. Instead it gave them only four days. Contrary to the Court’s order, Outokumpu told ADP it need not attend the hearing if it produced the pay records. ADP then failed to appear for the show cause hearing. The court then re-set the show cause hearing. In litigation, a “show cause” hearing has no formal definition, but it usually means bring your stuff or else.

ADP did Comply

At the second show cause hearing, ADP presented evidence indicating it had in fact produced many of the requested records some seven months prior – after it received the subpoena. The Court found Outokumpu did not deny that it had doctored spreadsheets and produced false pay records. The employer then blamed the plaintiff and ADP. Outokumpu never offered a substantive explanation for why it had failed to provide the records it had previously agreed to provide. At the March 12, 20201 hearing, the degree of the defendant’s obfuscation and delay became apparent, The Court found that the employer had “sabotaged” the judicial process for over two years.

Bad Faith

The employer knew from October, 2018 which records Plaintiff was reasonably requesting. Yet, the employer did not engage with ADP about these records until the summer of 2020. That was when Outokumpu was ordered to subpoena the records from ADP. Throughout the litigation, as the plaintiff submitted motions to compel, the defendant would meet with the plaintiff and agree to provide documents and information. But, each time, it would produce little or nothing. When the plaintiff would file a motion to compel, the defendant would plead confusion and inadvertent oversight. The defendant would claim that it acquired valuable new information at the meeting with the plaintiff about what was requested. The parties held two settlement conferences, both of which were based on inaccurate pay records. At a deposition of the corporate representative, it became clear that that the accurate records were in color. The various colors indicated critical aspects of the pay protocols. All Defendant had produced up to that point were black and white spreadsheets. All of this amounted to bad faith, said the court.

At the show cause chairing, the Judge had some parting words for the defendant. The Judge quoted the plaintiff’s remark: “At every step, plaintiffs have been pleasantly, professionally, and civilly stonewalled.” The lawyer for the defendant was Gavin Appleby. He was from Georgia, not Alabama. So, he appeared in the Alabama lawsuit on a pro hoc basis. The Judge suspended that pro hoc admission at the close of the hearing.

The Court then imposed the ultimate sanction, finding Outokumpu in default. The court issued a 94 page opinion. See the decision here.

I wrote about the Judge’s initial decision here. Judge Linda Parker, a federal judge in Detroit, found lawyers Sidney Powell, Lin Wood and others guilty of filing a frivolous lawsuit. Their weak lawsuit claimed there was election fraud in the Michigan 2020 election. Their allegations were just silly. Worse, they had no evidence with which to support their half-baked allegations. The lawyers even mis-represented to the court the qualifications of their so-called expert.

Well, now the Judge has announced what those sanctions will include. Those nine lawyers will have to pay $175,000 to the City of Detroit and to the state of Michigan. See That money will reimburse those entities for the attorney’s fees they had to spend defending the frivolous allegations. The Hill report here. It just amazes me that nine otherwise sober, talented lawyers will play dice with their law licenses.

Every few years, we have to re-litigate the so-called self-serving affidavit doctrine. I have written about that silly doctrine here and here. The self-serving affidavit more or less, provides that a person making a claim myst have some evidence to corroborate his/her factual statement. That does not make much sense. The U.S. Supreme Court expressly overruled the Fifth Circuit in Tolan v. Cotton, 134 S.Ct. 1861 (2014), because the Fifth Circuit disregarded competent testimony from a witness who also happened to be the plaintiff. And in Salazar v. Lubbock County Hospital District, No. 20-10322 (5th Cir. 12/7/2020), the Fifth Circuit again rejected the plaintiff’s testimony about her job performance because it was not corroborated. The Fifth Circuit has been making decisions which are best left to the jury.

This issue of which affidavits matter and which ones do not matters only because federal court litigation has become so mired in summary judgment practice. If the courts would reserve summary judgment for the lawsuits with little or no merit, this would not even be an issue.

Logical Fallacy

In the case of Guzman v. Allstate Assurance Co., No. 20-11247, 2021 WL 522810 (5th Cir. 11/10/2021), the Fifth Circuit re-visits the self-serving doctrine again. But, this the time the appellate court overrules the lower court because the lower court applied that old fallacy. In this case, Allstate denied insurance coverage for a deceased male, because he allegedly smoked. On his application for life insurance, Saul Guzman said he did not smoke. But, on his medical records, many of them described Saul as a smoker. But, Saul’s wife, Mirna, and his sister, Martha, both said Saul did not smoke. They testified via affidavits as part of Allstate’s motion for summary judgment. The lower court found the two affidavit to be self-serving.

The appellate court disagreed. The higher court noted that in a lawsuit, the two sides will always be interested in the outcome. “Inevitably,” evidence offered by one side or the other regarding summary judgment will appear to be self-serving. But, such evidence should not be discounted on that basis alone. Self-serving may affect the weight to be given that testimony. But, the particular weight some evidence ought to carry is a decision for the jury, not the court. The court then pointed to some prior Fifth Circuit decisions which found self-serving affidavits were not sufficient, but those cases actually involved affidavits which were conclusory, vague or lacked personal knowledge.

First-Hand Knowledge

In this case, Martha’s and Mirna’s affidavits were based on first-hand knowledge.  The two affidavits include fact based information, not conclusions. Competent testimony suffices for purposes of summary judgment.

Too, Allstate received medical records from Saul before his death which described him as a non-smoker. One of the three records in Allstate’s possession described Saul as a former smoker. All this is enough, said the Fifth Circuit, to deny summary judgment and let the jury decide the matter. See the decision here.

Clients and others sometimes ask me what “sanctions” are in the lawsuit business. This decision shows what the worst sanctions look like. In one of those frivolous election lawsuits filed late in 2020, the two lawyers have been sanctioned $180,000. U.S. District Magistrate Judge N. Reid Neureiter sanctioned two lawyers, Gary D. Fielder and Ernest John Walker. The Denber Judge ordered them to pay $50,000 to Facebook, $63,000 to Dominion Voting Systems and about $63,000 to a non-profit, Center for Tech and Civic Life, $5,000 to the state of Pennsylvania, and almost $5,000 to the state of Michigan. These amounts likely represent the attorney’s fees paid by those individual defendants in defending this frivolous lawsuit.

The two lawyers filed a class action lawsuit in December, 2020 claiming to represent American voters. The Magistrate Judge wrote a blistering opinion, finding that the lawyers sought to “manipulate gullible members of the public and foment public unrest.” The Judge labeled the lawsuit one large conspiracy theory. The lawsuit was used to manipulate a gullible public. The lawsuit had no experts or witnesses who could support their allegations of switched votes and government conspiracies.

Judge’s opinions will never castigate worse than this opinion. This is very strong language from a federal judge. As I have mentioned here before, most lawyers go through their entire career and never see a sanction. Now, these two lawyers have very large sanctions. See the Politico news report here for more information.

The decision in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.ed.2d 633 (1998), set up a framework for employers to avoid liability. An employer can avoid liability for harassment of an employee if the employer has a robust system in place for reporting on-the-job harassment. Once such a reporting system is in place, an employer will have an affirmative defense to sexual harassment if: 1) the employer exercises reasonable care to prevent sexual harassment, and 2) if the plaintiff employee unreasonably fails to take advantage of that reporting system. One can fuss about whether a reporting system works as well for victims of sexual harassment as it might for other sorts of harassment. Women find it harder to report abuse than victims of other sorts of abuse. But, even so, the affirmative defense exists.

Prompt, Remedial Action

In Rivas v. Estech Systems, Inc., No. 06-20-00058-CV, 2021 WL 2231262 (Tex.App. Texarkana 6/3/2021), the female plaintiff sued alleging her supervisor had placed a camera beneath her desk aimed at her seat. The employer fired the supervisor within minutes of Ms. Rivas’ complaint. The employee then sued for sexual harassment. The trial judge granted summary judgment.

Under the decision in Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir. 1999), the employer would be absolved of liability because it took prompt, remedial action in response to the complaint. Judge Edith Jones, in an over-wrought opinion, found that prompt remedial action would prevent liability on the part of the employer. Judge Jones reached that result, so as to square the Ellerth decision with the decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). The Meritor decision held that under Title VII, an employer is never “automatically” liable for harassment by a supervisor who creates a hostile working environment. Indest, at p. 267. Judge Jones argued that even though Ellerth modified Title VII in important respects, it did not affect the decision in Meritor Savings.

Only One Judge

The Texarkana court did not agree. Judge Morriss, writing for the majority, noted that Judge Jones was alone in her belief that the Ellerth case did not affect the decision in Meritor Savings. One Judge on the panel with Judge Jones strongly disagreed with her on the continued vitality of Meritor Savings. The other judge on the panel with Judge Jones concurred in the result only and did not join with either opinion.

And, Judge Morriss on the Texarkana Court of Appeals simply noted that allowing an exception for instances when an employer takes prompt, remedial action undermines the holding in Ellerth. It adds an exception that does not otherwise exist in that decision. The Judge is saying it simply contravenes the law of agency to craft an exception for times when the employer takes prompt action. That prompt action will still inure to the benefit of the employer. A plaintiff’s damages will be considerably reduced because the employer took that prompt, remedial action. But, the supervisor is still the supervisor.

See the decision in Rivas here.