In a column last April. Josh Brodesky suggests the Confederate memorial which formerly resided in downtown San Antonio should be placed in a museum. In his April 20, 2019 piece, he questions the motivations of supporters of the memorial. Yet, even though his piece is ostensibly about the memorial, he never discusses the motivations of the persons who actually built the memorial. I previously wrote about the two women who conceptualized and designed the Travis Park memorial here. Mr. Brodesky’s opinion piece can be found here.

Mr. Brodesky takes some offense at remarks by Ms. Schimpff and Mr. Brewer. He does not say, but it appears he believes Schimpff and Brewer were insufficiently sensitive to the racism of the Civil War. He is clearly looking closely at the motives of Brewer and Schimpff. He tested Brewer and Schimpff and found them wanting.

But, he does not appear to have similarly tested the motives of Mario Salas in wanting the memorial removed. He simply points to Mr. Salas’ perception that he had found the memorial to be absurd and offensive. Did he ask Mr. Salas if it had ever considered that the builders of the Memorial might have been motivated by a desire to remember lost loved ones? Mr. Brodsky might have challenged Mr. Salas. But, if he did so, there is no indication in his April 20 piece. It appears Mr. Brodesky gave Mr. Salas a pass.

Mr. Brodesky conflated the motivations of the Southern soldiers, and perhaps even those of Brewer and Schimpff with those of the women who built that memorial. Mr. Brodesky’s piece is supposed to discuss the memorial, but it never actually discusses the motives of the builders.

I can sympathize. I did the same thing in my first discrimination lawsuit. Racism is not an easy thing to show in court. It is complicated. I have practiced employment law in San Antonio since 1991, with a couple of breaks for military service. In my first lawsuit, my client, African-American, had been fired by Manager Robert (not his real name). Manager Robert was good friends with two men who worked with my client. They would all visit in Manager Robert’s office, laugh and joke. The two co-workers would emerge from that office and joke about my client as that “pinche negro.” That was as good evidence of racist intent as we get.

But, I made a fundamental mistake in that lawsuit. I conflated the bias of the two co-workers with the possible bias of Manager Robert. There was no indication that Manager Robert had used that racial slur. So, on appeal, the great jurist, John Minor Wisdom, asked me the simple question, “what evidence did I have that Manager Robert had racial bias?” I forget my reply, but the answer was none. Just as Mr. Brodesky has conflated racial intent on the part of Southern soldiers with alleged racial intent of the women who erected the Travis Park memorial.

Did those ladies have racial intent? Some historians say yes, since most white Southerners had racist intent in those days in 1900. But, as Judge Wisdom would ask, what evidence is there of that racist intent? This is a more difficult question since all the women who raised that $4,000 in the late 1890’s had lost loved ones in the war. How can Mr. Salas and Mr. Brodesky conclude those women were motivated only or primarily by racial intent, if they all lost loved ones?

The designer of the memorial was Virginia Montgomery. Her father was lost some years after the war. He just disappeared from public record. But, it is clear he could not hold a job after the war. Jenny’s family – as she was known – was scattered to the four winds after John Montgomery’s death. Jenny Montgomery portrayed African-Americans in everyday life, a rare subject for white artists in the 1920’s era South. How can Mr. Brodesky and Mr. Salas be so certain those women were motivated by Jim Crow? Mr. Brodesky trades in stereotypes, when he should be showing us evidence. Evidence of the builders, not the friends.

But, neither Mr. Brodsky or Mr. Salas are veterans.

So, there will be an impeachment trial in the U.S. Senate starting next week. Chief Justice Roberts will preside over the trial. What does that mean to “preside”? In a normal trial, the judge would rule on disputes about evidence. He would admit or not admit evidence. At the end of the trial, he would tell the jury what the law is regarding the lawsuit or crime. None of this applies in an impeachment trial. Justice Roberts’ role is prescribed by the Constitution, Art. I, Sec. 3. But, the Constitution provides no details.

In the first impeachment trial in 1868, Chief Justice Chase essentially insisted on more than a ceremonial role. He insisted that he could rule on admissibility of evidence and on reliability of witnesses subject to being overturned by vote of the Senate. The rules in an impeachment trial are the Senate rules. There are no rules of evidence or rule of procedure. At the 1998 impeachment trial, Chief Justice Rehnquist accepted a more limited role. But, he did rule on one issue. One of the House managers referred to the Senate as “jurors.” Sen. Harkin objected that they were more than just jurors. Chief Justice Rehnquist sustained the objection, saying the Senate was also the court.

This upcoming trial finds Chief Justice Roberts in more lime light than he prefers. Pres. Trump routinely criticizes judges as partisan. He readily criticizes a ruling because it was issued by an “Obama judge.” I wrote a post here about Pres. Trump’s regular attacks on the judiciary. It really is extraordinary that the President would attack judges so publicly. Decorum in any court hangs by a thread. That thread hangs on the belief that judges are above partisanship. Yet, the Chief Executive of the country punctures that belief every day.

Chief Justice Roberts has been public in his defense of the federal judiciary. In 2018, Roberts responded to a Presidential criticism. The chief justice insisted  there are no Obama judges, no Bush judges, no Clinton judges. There are only dedicated judges trying to do their level best to do equal right to persons appearing before them. See NPR news report here and New York Times report here for more information.

It will be interesting to see if Chief Justice Roberts will be more involved like Chase or or more reserved like Rehnquist.

Alex Jones and InfoWars provide a good lesson in how not to conduct a lawsuit. Alex Jones and InfoWars are being sued for making false claims that the Sandy Hook Elementary school massacre was not real. One of the parents of the murdered children, Neil Heslin, sued Mr. Jones for defamation in Travis County, Texas. Another lawsuit is pending in Connecticut. The Texas judge, Scott Jenkins recently issued sanctions against Mr. Jones and InfoWars. Judge Jenkins sanctioned the Defendants for sending a corporate representative to a deposition who could not testify to a critical issue, on what basis did Alex Jones and InfoWars claim the Sandy Hook parents were “crisis actors.” The Defendants also failed to preserve many social media posts regarding its frivolous claims about the Sandy Hook shooting.

Among the violations cited in Plaintiff’s motion (Cause No. D-1-GN-19-004651, Travis County) for sanctions:

  • the Defendants failed to issue a litigation preservation hold until a year after the lawsuit had been filed
  • the Defendants failed to preserve relevant videos
  •  the Defendants destroyed tens of thousands of emails
  • Mr. Jones fired his lawyer the evening before he was to be deposed
  • Before the corporate representative testified in his deposition, he admitted he essentially did nothing to prepare for the deposition. He spoke with no InfoWars employee other than Mr. Jones. Yet, this was a deposition in which he was expected to testify about critical issues.
  • In answer to an interrogatory asking Mr. Jones for his sources for 18 different claims about the Sandy Hook massacre, he simply responded various news sources. But, in his deposition, he said he did not recall the sources, but if he had known to look, he could have found the sources.
  • And, the same Defendants were previously sanctioned in three earlier lawsuits.

It is remarkable that the plaintiff submitted a very detailed 47 page motion for sanctions. While the Defendants responded with a six page response that did not respond to many of he allegations in Plaintiff’s motion. Alex Jones and InfoWars are clearly engaging in dilatory tactics.

State court judges do not issue sanctions lightly. One could say, and I have said this many times, that it is very difficult to get sanctions in state court. That Judge Jenkins issued sanctions indicates Alex Jones and InfoWars have disregarded the rules of civil procedure several times. The judge sanctioned the Defendants $65,825. The judge also sanctioned the Defendants another $34,323 on the same day. All this just due to discovery issues. Trial is still a long way away. It appears Alex Jones and InfoWars are not taking this lawsuit seriously. See Daily Beast report here.

And, this all comes just a few months after the Defendants sent child porn to the Plaintiff as part of its discovery documents. The Defendants claimed an internet troll sent the porn. But, it certainly shows negligence or incompetence on the part of the Defendants.

Pres. Trump and others are trying to “out” the Ukraine whistle blower. If they do name the whistle blower, they will violate the Intelligence Community Whistleblower Protection Act. The ICWPA does not provide a private right of action. The only mechanism available to a whistle blower is to submit an internal complaint. The Ukraine whistleblower did just that. He submitted an internal complaint to the Intelligence Community Inspector General. The statute specifically provides that the IG cannot publicly name the whistle blower. See 50 U.S.C. Sec. 3033(g)(3)(A). The statute does not specifically state that someone else cannot name the whistle blower. Does that omission mean that someone else can publicly disclose the Ukraine whistle blower?

No, it does not. The President of the United States must enforce the ICWPA. The President is specifically charged with enforcing the ICWPA act and all intelligence laws. The act specifically states that a whistle blower will not suffer reprisal. Caselaw, the Department of Labor, and the Securities Exchange Commission have all found that disclosing the name of a whistleblower constitutes retaliation.  See National Law Review piece by Stephen M. Kohn of the National Whistleblower Center here. The National Whistleblower Center is a non-profit which supports whistle blowers. I have used them as a resource for years. See the NWC site here.

The ICWPA provides that “employees” in a position to take reprisal may not take reprisal against a whistleblower. See 50 U.S.C. Sec. 3033(g)(3)(B) (“no action constituting a reprisal, or threat of reprisal, for making such complaint or disclosing such information to the Inspector General may be taken by any employee in a position to take such actions”). Once a person makes a complaint to the IG, then Sec.    3033(g)(3)(B) kicks in.

It is ironic, but it is Pres. Trump’s statutory duty to protect the identity of the Ukraine whistleblower. And, that makes sense. It would be non-sensical if the IG was prohibited from breaching the confidentiality of a whistleblower, while management was not similarly constrained.

There is a federal statute which prohibits the naming of an Intelligence Community whistleblower. I previously wrote about that federal statute here.  The statute specifically prohibits the Inspector General for the Intelligence Community from naming any whistleblower. See 50 U.S.C. Sec. 3033(g)(3)(A). But, the law probably also prevents any federal official from naming a whistleblower. Since, if a particular  whistleblower is named, that will serve to chill other potential whistleblowers in the future.

Yet, the President of the United States, the chief executive, who is charged with enforcing all federal statutes, published the supposed name of the Ukraine scandal whistleblower in a tweet this last weekend. Twitter took down the tweet. See NPR news report here. The President does not even know for sure the name of the whistleblower. But, in his frustration, he may not care. If the leader of the free world cannot be persuaded to observe the law, how can we expect a mid-level manager to obey the same statute?

There is a famous passage from the play, A Man for All Seasons. William Roper suggests to Thomas More that in certain circumstances, a person should disregard the law. He can, suggests Roper, disregard the law in order to cause harm to the Devil. St. Thomas More responds, angrily:

“Oh, and when the last law was down, and the Devil turned around on you–where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast–man’s laws, not God’s–and if you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”

Laws exist for a reason. If we ignore them, we must have a better reason than mere annoyance and impulse.

A jury in Taylor County (Abilene), awarded $2.5 in a whistle blower lawsuit. Chad Carter, the former City Engineer for the City of Abilene, complained to the Texas Board of Engineers about the City of Abilene’s failure to follow the Texas Engineering Practice Act when it built several roads. The jury awarded some $100,000 in lost pay and benefits and $2 million in compensatory damages (emotional suffering type damages), and $500,000 in attorney’s fees.

City Engineer Carter said the City did not have an engineer oversee various road construction projects, in violation of the Texas Engineering Practice Act. The City did hire an engineering firm after the roads had already been built to inspect the roads and after Mr. Carter complained. The engineers found no deficiencies. (Ok, I am not an engineer, but if there was a problem with the base of the road, how would an engineer know that after the fact? Way back when, when I worked summers on road construction projects, the engineer was out there everyday with us watching and doing whatever engineers do). Mr. Carter filed suit based on the Texas Whistleblower Act.

Mr. Carter’s employment was terminated within 90 days after he filed his first complaint. See reports by KTAB news herehere and here. That 90 days does create a presumption that he was fired due to his whistle blowing activity.

What happens when an employee files suit, perhaps unaware of the existence of a forced arbitration agreement? How long might a lawsuit progress before the employer mentions the supposed arbitration agreement? In Vectra Infosys v. Adema, No. 05-18-01371 (Tex.App. Dallas 8/28/2019), the employer responded to the lawsuit and conducted extensive discovery. The employer filed a motion to quash a deposition. It submitted a no evidence motion for summary judgment. This all occurred before Vectra invoked the forced arbitration agreement nine months into the lawsuit. Has the employer waived the right to invoke the alleged forced arbitration agreement? The Dallas court of appeals no, it did not waive its right to bring up the purported agreement.

The employer did not move sooner to compel arbitration, because it had just bought the company and was not aware of the alleged agreement. Plaintiff Adema claimed this late date would “inherently” cause him prejudice. But, said the court, the plaintiff offered no evidence of that prejudice. The court felt the plaintiff could use the same discovery in the arbitration. The plaintiff argued that he would be responsible for half the arbitration fees. But, again, the court noted that the plaintiff did not offer evidence showing he would be responsible for half the fees. The court distinguished the result in Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008). That case did indeed find waiver and did find harm to the plaintiff. But, said the Dallas court of appeals, the plaintiff in Perry did include the very extensive docket sheet for that case in opposing the motion to compel arbitration. The court could see the lengthy litigation prior to the defendant invoked arbitration. The plaintiff in Perry asked the trial court to take judicial notice of the many motions and discovery instruments submitted before Perry Homes invoked arbitration.

In Vectra, the dissent was concerned about the clear manipulation by the employer. Vectra Infosys invoked arbitration shortly before trial and just before a hearing regarding the president’s refusal to answer certain questions at his deposition. See the decision here.

Despite what the Dallas court of appeals says, it is not at all certain that the arbitration will allow the plaintiff to make use of the already completed discovery. Some arbitrators just flat do not allow discovery, or they substantially curtail the sort of discovery an employee may pursue.

We are seeing in real time what happens when an employee blows the whistle on his/her employer or when s/he complains about discrimination. Pres. Donald Trump has reportedly discussed firing the White House employees who have testified against him. He has discussed returning LTC Vindman to the Pentagon and firing Ambassador Bill Taylor after they testified against him. See CNN news report here. For a military officer, sending LTC Alexander Vindman back to the Army would amount to being relieved.

The President has also considered firing state department employees, George Kent and Marie Yovanavitch.

All employers consider responding to complaints in this way, to some degree. The difference between other government employers or many corporate employers is that Pres. Trump has likely received no training in values. Most government employers and many corporations utilize some form of training on values. One of those values is that persons who complain about discrimination or about violations of the law are protected. Even if you do not agree with their complaints, most managers agree their right to complain should be protected.

The President is famously resistant to legal advice. He will be even more resistant when he feels in real time the press of persons submitting public complaints about him. There is a reason why the better run organizations provide that training before the crisis, not during the crisis.

Of course, the larger issue for Pres. Trump is that one of those employees. Marie Yovanavitch has accused him os smearing her. If he actually fires her and others who support her, such an action would only corroborate the charges against him. That presents a different topic: clients who do not listen to advice from their lawyers.

A court in New Jersey struck the entire closing argument made by the defense attorney in a lawsuit against Johnson & Johnson. Several plaintiffs are suing Johnson and Johnson on the basis that asbestos in talcum powder decades ago caused them to contract mesothelioma in the plaintiffs’ stomach linings. Mesothelioma is a type of cancer. The defense lawyer, Diane Sullivan with Weil, Gotshal & Manges, argued in her closing argument that the experts for the plaintiffs had created evidence. Ms. Sullivan said the experts did not find a connection between the talcum powder and mesothelioma until they were hired by the plaintiffs. The defense attorney said the plaintiffs and/or the experts had created their evidence.

Judge Ana Viscomi said she she had warned Ms. Sullivan about her conduct. The judge said it would not be possible to strike only the offensive portion of her argument. It is unusual to strike an entire closing argument. Typically, a judge will simply strike the one or two portions that violate some rule. Ms. Sullivan was previously recognized for her success in defending Johnson & Johnson in a prior lawsuit. She was named a winning litigator for 2019 by the National Law Journal. See ABA Bar Journal news report. But, this time, it appears she was not a winning litigator.

 

The Western District of Texas granted summary judgment involving a CPS worker. The City Public Service worker, Gabriel Sanchez, was employed as a cable splicer for CPS Energy. He was out on medical leave for PTSD when he was fired in 2016. The worker was involved in a second “flash” incident in which he cut through the wrong cable. This was his second flash incident, the causing PTSD. CPS defended the case saying Mr. Sanchez had a “pattern” of safety violations.

The Western District accepted Defendant’s characterization of the so-called “pattern” of safety violations. Even though, management level employees indicated that the decision was made during a meeting  in February, 2016. At that meeting, just one of the flash incidents was discussed. At the same meeting, the managers also discussed Plaintiff’s PTSD diagnosis. The Plaintiff was scheduled to return to work at CPS the day before he was fired on March 8.

The Court found the testimony was clear that no manager discussed Plaintiff’s PTSD at the February, 2016 meeting. Though the court’s opinion is well documented, it appears the Court disregarded inferences that some managers likely did discuss Plaintiff’s PTSD diagnosis at that critical meeting. If the managers did discuss the diagnosis, that suggests the diagnosis played some role in the decision to terminate the 16 year worker. Even if it is only a possibility that the mangers discussed the PTSD diagnosis, summary judgment was not appropriate.

The Court noted that Mr. Sanchez was not released back to work by March 7, 2016. But, CPS did not know his status on March 8. The decision to fire him was not based on not being qualified to work. It was based on his alleged pattern of safety violations. His TWC work status said he would return to work on March 21, 2016. But, CPS had no knowledge of that recommendation when it made the decision to fire him on Feb. 16, 2016. CPS then conveyed the termination decision to Mr. Sanchez on Match 8. So, even though there might be a factual issue regarding his ability to work on March 8, his ability – or not – did not apparently factor into the decision to fire him.

It did not help his cause that the Plaintiff testified that he did not consider himself to be disabled, but his doctors believe he has a disability. The Court was troubled by the worker’s status as of March 8. It found that he was not qualified to work as a cable splicer as of March 8. The Court noted the recommendation that he not do electrical work. But, as Plaintiff noted, a recommendation does not mean he cannot do electrical work. The case shows the difficulty in prosecuting cases in which the medical evidence is not 100% supportive of returning to work. But, in the real world, medical advice is often inconsistent. The Western District has again reviewed factual issues and weighed evidence. See the decision in Sanchez v. City of San Antonio here.