Lawyer Paul MacNeal Davis of Dallas decided to go to the demonstrations in Washington, D.C., to show his support for Pres. Trump. He posted a video of himself on Instagram outside the Capitol building. He said he had been tear-gassed. He said it was not acceptable to tear-gas the protestors. He said “we” were trying to get into the capitol to stop the certification of votes and to make sure the voting machines were inspected. The politicians, he said, could make all this go away if they would just allow an audit of the votes and inspection of the machines.

Within a day of his posts, he was fired by his employer, Goosehead Insurance Co. He was an associate general counsel. He is a 2011 graduate of the U.T. School of law. See ABA Bar Journal report.

Mr. Davis’ video was posted here on Twitter.

Lawyer Jerome Marcus has asked to be allowed to withdraw from his lawsuit against the state of Pennsylvania. In that suit, he represents Pres. Trump. The suit alleges voting irregularities. Lawyer Marcus is known for his statement in court several weeks ago that he is alleging “a non-zero” number of Republicans observing the vote tallies. In other words, he told the judge there were one or more Republicans observing the vote counting. He made the “non-zero” remark after initially claiming Republicans were excluded from the room. His claim directly contradicted Pres. Trump, who at the time was saying Republicans were totally excluded from the vote counting process.

Mr. Marcus submitted a motion to withdraw after the mob rioted in the nation’s capitol last week. His motion to withdraw was remarkable because it explicitly said he his client was asking him to commit a “repugnant” act. He said he and his client, Pres. Trump, had a fundamental disagreement regarding how to proceed with the lawsuit. That is lawyer-speak for “my client wants me to do something I believe violates the code of ethics.” He later told Politico that he believed the lawsuit was used to help incite the Washington, D.C. riot. He said the President had asked him to come to Washington to be part of a “wild” protest. He said he wanted no part of that. See ABA Bar Journal report. See his very brief motion to withdraw above.

 

Pres. Trump’s lawyers filed dozens of what can only described as “frivolous” lawsuits. Yet, so far, no lawyer has been sanctioned. Most of us would expect some sort of sanction if we had filed a lawsuit completely lacking in evidence. But, in one of the lawsuits, Judge Boasberg did indicate he would consider sanctions. That lawsuit was filed seeking to block Congress from declaring Joe Biden the duly elected President. The suit asked that various federal statutes regarding the selection of electors be declared unconstitutional. It was filed in Washington, D.C. on behalf of voters in Wisconsin, Pennsylvania, Georgia, Michigan and Arizona.

The court noted the plaintiffs all lacked standing. For some of the state defendants, it was filed in the wrong court. He said the lawsuit would be amusing if it did not seek to disenfranchise millions of voters. Their allegations amounted to nothing more than a generalized grievance that did not affect the plaintiffs individually. That is a clear and long rejected basis for standing. The lawyers had to know better. Even if they did not know better, any lawsuit that seeks such draconian remedies requires far stronger evidence.

But, worse, the plaintiffs never tried to serve the lawsuit on any of the named defendants. Judge Boasberg had issued a reminder that service had not yet been attempted. But, the plaintiffs did not respond. It appeared to the Judge that{ Pres. Trump filed the lawsuit simply to file the lawsuit. Courts, said the judge, “are not instruments through which parties engage in such gamesmanship or symbolic political gestures.” See ABA Bar Journal report. The judge said he would consider referring the matter to the appropriate bar grievance committee.

This is as clear a case of frivolous lawsuits as it gets. This lawsuit exhibits a remarkable level of cynicism about the judicial system.

With a nod to the research of Steve Vladeck, a University of Texas School of Law professor, the coming vote on Jan. 6, 2021 is over-stated in one key respect. Under Sec. 1 of the 20th Amendment, the current Presidential term ends on Jan. 20, no matter what. If no President then is qualified to assume the position going forward on Jan. 20, then the Vice-President elect will serve in the office until a President is qualified. If neither the President elect or the Vice-President elect is qualified, then Congress shall pass a law which declares who shall act as President. See Sec. 1 and 3 of the 20th Amendment here.

3 U.S. Code Sec. 19 then provides that if neither the President or Vice-President qualify for the office of President, then the Speaker of the House shall serve in the office until a President or Vice-President does qualify for the position.

Some eleven senators have indicated they will object to the vote certification on Jan. 6. Some 140 House Republicans have indicated likewise. If they get their wish, that move may well lead to the Speaker of the House becoming President. The House Representatives and the Senators can engage in public theater as they wish. If their goal is to perpetuate Republican power, they will be disappointed. But, in any event, this latest drama is more political than legal.

The Fifth Circuit has resurrected the self-serving affidavit theory. The theory makes no sense. The so-called self-serving affidavit refers to persons who submit testimony in the form of an affidavit. If the affidavit supports the witness, then that testimony carries less weight – or no weight. In Salazar v. Lubbock County Hospital District, No. 20-10322 (5th Cir. 12/7/2020), for example, the court rejected the plaintiff’s testimony, because it was the only evidence disputing Defendant’s evidence. In that case, the supervisor said Ms. Salazar’s job performance was unsatisfactory. Ms. Salazar insisted, no, she was performing just fine in her job. She received raises, after all. The court said that factual dispute did not count, because the only evidence supporting it was Ms. Salazar’s affidavit. And, that just seems like nonsense. One could just as easily say that the supervisor’s testimony should be rejected, because that is the only evidence showing Ms. Salazar was performing badly.

The Fifth Circuit appears to be conflicted about so-called “self-serving affidavits.” In reality, most affidavits contain some measure of self-interest. The supervisor wants to protect his job just as much as the employee. In Heinsohn v. Carabin and Shaw, 832 F.3d 224 (5th 2017), the Fifth Circuit expressly overruled a district court for relying on the self-serving affidavit fallacy. I wrote about the Heinsohn decision here.

In Credeur v. State of Louisiana, 860 F.3d 785 (5th Cir. 2017), the Fifth Circuit did not use the phrase, “self-serving affidavit,” but it was troubled by the lack of corroboration for Ms. Credeur’s testimony. I wrote about the Credeur decision here. Yet, the decision in Tolan v. Cotton, 134 S.Ct. 1861 (2014) specifically overruled the Fifth Circuit because it disregarded a plaintiff’s testimony on the basis that it was “self-serving.” And, of course, the decision in Salazar relies on Fifth Circuit precedent all of which pre-date the decision in Tolan.

 

Pro se cases (i.e., for self) typically result in dismissal. These are lawsuits filed by a layperson on his/her own behalf – without a lawyer. I previously posted about a pro se lawsuit here. In another such case, Wynne v. Jubilee Academy, No. 19-CV-00739 (W.D. Tex.), the plaintiff filed the suit herself. Although Ms. Wynne prepared professional looking pleadings and even successfully sought to amend her Complaint, her case was dismissed. The employer filed a motion for summary judgment, which the court granted.

The plaintiff alleged she was fired in violation of the Family Medical Leave Act, when she needed time off to care for a family member. Jubilee Academy was a charter school. The Department of Labor, Employment Standards Division, had issued a letter finding she had indeed been fired in violation of the FMLA. That is a rare event in itself. But, in court, a finding by an agency may or may not be admissible. Ms. Wynne tried to use that DOL notice as an exhibit, but the employer objected. The employer argued the finding was “conclusory.”

Ms. Wynne was fired seven days after requesting FMLA leave. That short span of time would suggest retaliatory intent. But, as with most pro se litigants, the plaintiff did not make her arguments on the merits clear. The court found that caring for her adult sister was not the sort of care protected by the FMLA. The court did not address the possibility that Ms. Wynne may have missed the statute of limitations. She was fired in August, 2016, but did not file suit until July, 2019. The court may have afforded the plaintiff substantial latitude since she was pro se.

As I have mentioned before, employment cases is one of these few areas of law where pro se litigants appear with some regularity. It can be difficult to find a lawyer willing to accept an employment case. Some pro se parties do prevail, at least for a time. But, unfortunately, this time, it was not to be.

Four former top aides to Attorney General Ken Paxton are suing him for violating state whistle blower laws. I wrote about that lawsuit here. AG Paxton has hired Bill Helfand, a well-known Houston employment lawyer, to defend him. Mr. Helfand will be paid $540 per hour for his services. In answer to the lawsuit, AG Paxton says the four were fired due to their incompetence, misconduct and/or disloyalty.

The four former top aides include Blake Brickman, Ryan Vassar, Mark Penley and David Maxwell. Mr. Vassar was simply on forced leave when the lawsuit was filed on Nov. 12. Three days after the alsuit was filed, Vassar ws also fired. Mr. Vassar says the reasons he was given were “made-up, nonsense” reasons. As the plaintiff lawyers point out, it was a poor choice of words to accuse whistle blowers of being “disloyal.” Whistle blowers are indeed “disloyal” in a sense. That the employer would make the accusation suggests the real reason for the termination was, well, … blowing the whistle. Mr. Helfand is an experienced employment attorney. It is not likely he would respond to a whistle blower lawsuit with such a poor choice of words.

The plaintiff lawyers also point out that the Texas whistle blower statute provides that if a worker is fired within 90 days of blowing the whistle, then there is a presumption that they were fired because they blew the whistle. AG Paxton has a very hard row to hoe in defending this lawsuit.

He accused four former top aides of incompetence. That suggests he knowingly hired incompetent attorneys. This is a poor start to his defense. That poor choice of words suggests AG Paxton may have had some involvement in drafting the Answer to his lawsuit. It is more the language we would expect from a partisan defendant than from an experienced employment attorney.

If you work for a company for a few years and maintain your LinkedIn account, you will build up a set of contacts based on your employment. What happens if those contacts are customers? Do they belong to you or to your employer? That was the issue in Cellular Accessories for Less, Inc. v. Trinitas, 2014 WL 4627090 (C.D. Calif. 9/16/2014). David Oakes worked for Cellular Accessories for several years. He built up a lengthy list of contacts on his Linkedin account. Many of those contacts were his customers. He was fired. After his termination, he maintained his same Linkedin account. When he was first hired, he signed a confidentiality agreement, in which he agreed to not use or disclose confidential property belonging to the company. Mr. Oakes took with him his ACT list. That list derived from his list of Linkedin contacts. Later, he started his own company, known as Trinitas. Trinitas competed directly with Cellular Accessories for corporate mobile phone accounts.

Cellular Accessories sued Mr. Oakes for violating his agreement. Both parties submitted dueling motions for summary judgment.

California has a trade secret law that protects confidential information if it is difficult to produce or develop. Texas has an equivalent statute. See Tex.Civ.Pra.&Rem.C. Sec. 134A.002. The Texas statute requires that for such information to be protected, it must be both valuable and secret. It is hard to argue that information on a Linkedin account is secret.

In reviewing the two motions for summary judgment, the court looked at the ACT list. Much of that list derived from his Linkedin list of contacts. The parties disputed whether the information on the ACT list was difficult to develop. Mr. Oakes said it was all publicly available information and could be easily reproduced. Oakes also said that Linkedin suggested new contacts to him, which names would later be added to his ACT list. The court was concerned that the ACT list was perhaps not so easily developed.

Mr. Oakes reponded that any of his contacts could view his contact list on Linkedin. It is readily available. So, it is not secret or confidential. On the other hand, some of the information on the ACT list included buying preferences of some customers is confidential. In the end, the court denied Cellular’s motion for summary judgment, finding there was substantial dispute of material fact. The court wisely let the jury decide this complicated fact situation. See the decision here.

Those of us who work with the Equal Employment Opportunity Commission know how difficult it is for folks to convey to the EEOC their complaints. The EEOC is always in a hurry. They do not always take the time necessary to understand an employee’s complaint. So, it is not surprising that in Apache Corp. v. Davis, 573 S.W.3d 475 (Tex.App. Hou. 2019), the employee’s complaint was not completely expressed in her charge. She fully conveyed one claim, sex discrimination, only later, sometime after she submitted the initial charge.

Ms. Davis first submitted an EEOC charge alleging age discrimination and retaliation. She did not check the box for sex discrimination. She did not mention gender discrimination or retaliation for opposing gender discrimination in her charge. She did mention in her charge a Dec. 3 email. She sent that email to HR on Dec. 3 alleging age and sex discrimination. She was then fired weeks after that Dec. 3 email. At trial, the jury found she was not the victim of age discrimination, but she was the victim of retaliation for complaining about age or sex discrimination in her Dec. 3 email. So, on appeal, the question became did she complain to the EEOC about sex discrimination and reprisal for complaining about sex discrimination? Did she exhaust her administrative remedies regarding her claim of sex discrimination?

On appeal, the Houston court noted that the charge included no description of sex discrimination, and no mention that she believed she was retaliated against for complaining about sex discrimination. But, the court noted that Ms. Davis’ charge did mention the Dec. 3 email to HR. And, Apache included a copy of the Dec. 3 email when it responded to Ms. Davis’ charge. And, it noted that Ms. Davis replied to the TWC saying she had been fired because she complained about sex and age discrimination. The court of appeals did not explain the nature of Ms. Davis’ response to the Texas Workforce Commission. It could have simply concerned her application for unemployment benefits. Even so, that response became summary judgment evidence. And, the court saw it as evidence of Ms. Davis’ claim, even if not directly submitted to the EEOC. Id. at 491.

The court found this evidence was enough to support a finding that retaliation for complaining about age or sex discrimination could have developed form the EEOC investigation. See the opinion here.

On Oct. 2, the Texas Supreme Court denied a petition to review the decision. Apache Corp. v. Davis, No. 19-0410 (Tex. 10/2/2020).

The name Joe McCarthy has been coming up, lately. Who was Joe McCarthy?

Senator McCarthy was a bully. In his zeal to uproot all vestiges of Communism or Communist sympathizers, he bullied, scared and threatened his way across Washington, D.C. Everyone was afraid of Joe McCarthy, because they feared being branded as “soft” on Communism. Like Donald Trump, Joe McCarthy shot from the hip. For example, he stated flatly, with no explanation, that there were dozens of Communists in the federal government. He claimed in one speech to have a list in his hands of 205 known Communists in the State Department. Later, in the Senate, he said the number was actually 57. Still later, he claimed it was 81. That alleged list lead to Senate hearings looking for Commies anywhere in the federal government. Overnight, Joe McCarthy became a household name. He became an albatross for the Republicans. Gen. Eisenhower, while campaigning, said he supported Mr. McCarthy’s goals, but not his methods. According to some accounts, in actuality, the President had planned a sharper attack on Sen. McCarthy, but backed down at the last minute.

When the Senator ran his own committee, he destroyed people, based on little more than suspicion. His browbeating tactics in Senate hearings offended his colleagues. But, afraid of what he would do or say, the other Senators said nothing.

In looking into the U.S. Army, he could find no evidence of subversion after weeks of investigation. But, he was convinced the Army had been “soft” on Communists. Frustrated, he started focusing on the case of Irving Peress, a New York dentist. Mr. Peress had been drafted in 1952. In his papers, he had disclosed a former membership in the American Labor Party, a leftist organization. When asked about his political affiliations, he had left that portion blank.

Capt. Peress was promoted to Major in 1953. Sen. McCarthy started a campaign to find out who had promoted Maj. Peress. The question, “Who promoted Peress?” became a conservative rallying cry. All this time, Sen. McCarthy knew that the major had been promoted automatically by the provisions of the Draft Doctor’s Act, a recently passed law which Sen. McCarthy had supported.

When called before the committee, Capt. Peress invoked the 5th Amendment numerous times. He insisted that citing the 5th Amendment did not amount to guilt. Later, Sen. McCarthy demanded that the Army court-martial Capt. Peress. The pressure eventually forced the captain to request a discharge. He was discharged honorably with a promotion to major.

The committee then called on his commander, Brigadier-General Wicker to explain how he was promoted and discharged without a court-martial. BG Wicker, a West Point graduate, had been at Normandy. He had led an Infantry battalion at the key Battle of Brest. He was a hero. He was asked about his approval of the discharge orders for Maj. Peress. Based on advice from the Army counsel, he refused to answer certain questions. The Senator badgered him, and accused him of perjury. He said the general was not fit to wear the uniform.

“Tail-Gunner” Joe had been an enlisted man in the Army during WW II. His abuse of BG Wicker caused many people to turn against Sen. McCarthy. All the general did was approve discharge for an officer who had committed no transgression while in service. As BG Wicker said many years later, he was initially not unsympathetic to Sen. McCarthy. But, as soon as the hearing began, he quickly became disillusioned. Sen. McCarthy, said the general, was an opportunist. The Senator’s abuse postponed Zwicker’s promotion to Major General.

The debacle with BG Zwicker lead to the Army hearings. Sen. McCarthy would hold hearings on live television, the new medium, digging deeper into so-called Army tolerance of Communism. Millions watched as he browbeat and interrogated various Army officials. In one such hearing, the chief legal representative for the Army, Joseph N. Welch pressed the committee about some supposed 130 persons who worked in defense plants and supported the Communist party. Sen. McCarthy jumped into the conversation. He insisted Mr. Welch explain the case of Fred Fisher, a young lawyer who worked in Mr. Welch’s law firm. Mr. Fisher, insisted the Senator, had once belonged to the National Lawyer’s Guild, the “mouthpiece” of the Communist party.

The National lawyers Guild is still around. It is indeed liberal leaning, but it is also independent of any political affiliation. Sen. McCarthy had to know this.

Joseph Welch accused the senator of cruelty. The Senator persisted, demanding to know about Mr. Fisher’s former membership. Mr. Welch famously replied, “Senator, may we not drop this? We know he belonged to the National Lawyer’s Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir, at long last? Have you no sense of decency??” When Sen. McCarthy persisted, Mr. Welch cut him off. He reminded him that he could have asked about Fred Fisher any time that day. He sat within six feet of Mr. Welch. He told the chairman of the committee to call the next witness. The gallery then erupted in applause and a recess was called. Sen. McCarthy’s decline began soon after.

Fred Fisher did indeed once belong to the NLG during law school. But, as Mr. Welch pointed out, this was needless trashing of a man at a time when membership in liberal organizations could ruin a man’s career. This line of inquiry served no purpose, other than advancing Sen. McCarthy’s political goals. It was cold-blooded political opportunism and Mr. Welch called it.

So, when persons accuse another of McCarthyism, that is indeed a deep insult. Sixty years ago, the end for “Tail-Gunner” Joe started with one decent man, representing the U.S. Army.