Judges have employed principles of decision-making since time immemorial. One such principle is “judicial restraint.” This principle assumes what should be obvious: courts and judges retain their authority only so long as their decisions are perceived as mostly fair. Pres. Andy Jackson once remarked about a decision by the Supreme Court which he did not like, “the Supreme Court has made its decision, now let them enforce its decision.” Jackson refused to enforce a ruling by the Supreme Court that favored the Cherokees Indian tribe. A court can easily and quickly lose its credibility. The principle of judicial restraint provides that if a judge can avoid making a decision, s/he should. Or, as Justice Roberts explained,  “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” The principle calls for a certain level of judicial humility and for recognition of a court’s limits.

Judicial Restraint

The majority opinion in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022), lacks judicial restraint. The majority opinion does not accept limits. Indeed, at the tail end of a exceedingly long opinion, stretching over 100 pages with two appendices, the majority opinion expresses disdain for public opinion. Numerous partial concurrences are interspersed throughout the majority opinion. The opinion was joined by concurrences from three different Justices. The majority opinion is complicated. The Dobbs court compares its opinion to the decision in Brown v. Board of Education, 347 U. S. 483 (1954).

No “Extraneous Influences”

But, the Brown decision, which also overruled long-standing precedent, was a 9-0 decision and only required 11 pages. The Brown court had some sense of the import of its decision. Unlike the Dobbs court, no member of the Brown court solicited integration lawsuits. But, both Justice Thomas and Justice Alito have dropped hints in their dissents and concurrences over the years that they were open to overturning Roe. Thomas and Alito were essentially issue shopping, just as some party litigants shop for the right judge. If two justices have been issue-shopping, the resulting decision will necessarily be seen as political. 

In the Dobbs decision, Justice Alito displays little interest in the ramifications of its decision. The court insists it must not allow “extraneous influences” such as public opinion to affect their work. Dobbs, slip op., at 67. The court insists that it derives its legitimacy not from public opinion, but from following the “best lights” regarding adherence to the Constitution. Dobbs, slip op., at 67. The court displays no understanding of the effect this opinion will have on the American public. Taking away a right of 50 years precedence is very different from adding a right not previously enjoyed. This Dobbs court will be perceived as much more political since . . . well, since the Roe v Wade, 410 U.S. 113 (1973), decision in 1973. But, this will be worse, because this time, the court is removing a right. And, this time, the court is issuing a decision which the author of that opinion has solicited for years.

Judicial Humility

Justice Roberts wrote in his concurrence that this decision could have been decided by simply affirming the Mississippi statute. The court did not need to overturn 50 years of precedent to decide this case. Wiser judges, Justice Roberts cautions, would have exercised restraint. As Justice Jackson observed in 1943, an attitude of judicial humility reflects acknowledgment of judicial limits. Justice Jackson himself pointed to Justice John Marshall who observed later in life that he never sought to enlarge judicial power beyond its proper boundaries. West Virginia Board of Education. v. Barnette, 319 U.S. 624, 668 (1943). Justices Jackson and Marshall recognized judicial restraint. Justice Alito does not.

See the decision in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022) here.

The Fifth Circuit giveth and the Fifth Circuit taketh away. We just talked about a poorly drafted decision in Owens v. Circassia Pharmaceuticals, No. 21-10760 (5th Cir. 5/13/2022) regarding an important employment law decision. See that post here. This Owens decision turned Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) on its head and required proof of pretext, plus proof of discrimination. And. now in Sears v. Zions Bancorporation, No. 21-10448 (5th Cir. 6/2/2022), the same Fifth Circuit essentially does the opposite, it finds that evidence of pretext alone may support a finding of discrimination.

The judge who wrote the Owens case also wrote the opinion for the Sears case. In Sears, the Fifth Circuit overturned the lower court’s summary judgment. Plaintiff Sears alleged age discrimination. Like the plaintiff in Owens, Sears had generally good performance evaluations. The worst evaluation came some months after the Board had already apparently decided to “transition” Mr. Sears out of his job as Senior Vice-President.

The District Court had found that Sears had failed to make out a prima facie case of discrimination. The lower court found that Sears could not show he was replaced by a younger person. But, Judge Englehardt, who also wrote the Owens decision, noted that Sears claims the had been replaced by the much younger, Askew. The employer, however, claimed Sears had not actually been replaced. But, as the three judge panel noted, the court prong of the prima facie case can also be satisfied if the plaintiff simply shows he was otherwise treated less favorably than others in his class. And, there was evince that Sears was treated much differently than the other Senior Vice-Presidents. Askew, after all, was mot only not fired, but he was promoted.

Judge Englehardt also noted that there was sufficient evidence to case doubt on the employer’s proffered explanation for the firing. Sears was fired, said the employer, so it could hire a manager for the Dallas energy banking department. But, the bank never hired such a manager. The bank claimed it made the decision to terminate Sears in the Spring of 2018. But, there was an email from January, 2018 in which the board discussed “transitioning” Sears out of his job. Plaintiff Sears’ boss also testified that he was not sure if he had complied with the bank’s performance review policies regarding Mr. Sears. The court noted that failure to follow its own internal rules supports a finding of pretext.

The court then noted that taking all this evidence “cumulatively,” there was sufficient evidence on which a jury could find age discrimination. See the decision in Sears here. Yes, every court is required to consider the evidence cumulatively. But, precious few do so.

The Fifth Circuit has again tried to rein in Judge Lynn Hughes of the Southern District in Houston. In Bailey v. KS Management Services, No. 21-20335 (5th Cir. 5/26/2022), Judge Hughes again prohibited discovery by the plaintiff. As the Fifth Circuit noted, this is the third time some plaintiff has appealed a no-discovery order from Judge Hughes. Judge Hughes did require the employer to provide certain information to the plaintiff. He also ordered the plaintiff and the defendant to file a joint chronology of events. He told the parties to make the chronology objective and factual. “Legal posturing, abstractions and quibbling will be crushed,” said Judge Hughes.

Of course, such orders totally subvert the Federal rules of civil procedure which allow discovery by both parties in accordance with each parties’ view of the case. The Fifth Circuit criticized Judge Hughes’ one-size fits all paradigm of “rough justice.” The judge flat said he would “crush” efforts to implement more focused discovery.

Judge Hughes refused to allow Bailey to conduct any discovery until she had been deposed. KS Management did not depose Bailey, likely to avoid the discovery which would follow. Bailey could not conduct any depositions of her own. The employer moved for summary judgment. With no real evidence, Bailey lost, as was fore-ordained.

The higher court noted that this decision is “deja vu all over again.” It is indeed. Judge Hughes’ orders prohibiting discovery and casting such narrow limits approach whacko rulings. These Judge Roy Bean type rulings do not work in the modern world. Yet, he persists. The Fifth Circuit has removed Judge Hughes from lawsuits six times. It has now reversed his no-discovery orders three times.

See ABA Bar Journal report here.

 

Lawyer Lin Wood, who filed several frivolous lawsuits on behalf of former Pres. Trump, was ordered to seek a mental exam. The Georgia Bar Association ordered him to sit for the exam. Mr. Wood then filed a lawsuit seeking to overturn that order. The Eleventh Circuit Court of Appeals in Atlanta rejected Mr. Wood’s appeal.

Mr. Wood had argued that the Georgia Bar Associations order was due to his political activities as reflected in his tweets saying Mike Pence should be executed. In other tweets, the lawyer also said Hillary Clinton had tried to arrange the assassination of federal judges, and that Chief Justice John Roberts had ties to pedophilia. But, the Bar said its investigation of Lawyer Wood looked at 1700 pages of evidence. This evidence showed that Mr. Wood:

  • engaged in erratic behavior, including incoherent phone calls, voice messages and texts
  • physically attacked one former colleague in an elevator
  • attacked another colleague who came to his house checking on his welfare
  • offered to fight his former colleagues to the death in one phone call

The lower Georgia court had dismissed Wood’s lawsuit based on the Younger abstention doctrine. That  doctrine provides that a federal court may not interfere with state court proceedings if those state court proceedings allow opportunity to address the constitutional questions. The Eleventh Circuit noted that the Georgia Bar’s disciplinary proceedings were still ongoing. See ABA Bar Journal report here.

Apparently just for political points, Gov. Ron DeSantis pressured the Special Olympics to withdraw its vaccine requirement. The state of Florida threatened the Special Olympics with a $27.5 fine if the Olympics were to persist with its vaccine requirement. Special Olympics then withdrew its vaccine requirement. See Politico news report.

This is a remarkable occurrence. Persons with disabilities have much lower levels of immunity than the non-disabled population. Persons with intellectual disabilities (aka “mentally retarded”) for reasons still not understood generally have suppressed immune systems. See Univ. of Hertforshire report here. Persons with Down’s Syndrome routinely suffer from serious illnesses, such as pneumonia, other respiratory infections and gastrointestinal infections. This is especially true of younger persons with Down’s Syndrome. And, it is those younger people with their families who attend the Special Olympics in large numbers.

Persons with intellectual disabilities are three times more likely to suffer from diabetes, heart disease, strokes and cancer. Gov. DeSantis’ very political decision is remarkably cold and selfish. He offered no medical rationale, other than claiming that “most” people have contracted the covid19 virus by now. But, that rationale does not address the fact that persons with disabilities are a particularly vulnerable population.

 

The Fifth Circuit has resurrected the old pretext plus formula which we had once been dispensed with in Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000). Reeves itself over-ruled a prior decision by the same Fifth Circuit. Some lessons, it seems, are never truly learned.

In the recent case of Owens v. Circassia Pharmaceuticals, No. 21-10760 (5th Cir. 5/13/2022), the Fifth Circuit issued addressed the case of a senior female manager who complained about gender discrimination at Circassia. The plaintiff claimed to have reported sex discrimination to her boss. The boss and an HR representative deny that Ms. Owens mentioned sex discrimination. The Court does not take a side, but it did not cite the familiar refrain that in addressing summary judgment, the court should always accept the facts posed by the non-movant. This suggests the court did take a side, but refrained from mentioning which persons it believed.

Highly Ranked

About six weeks after Ms. Owens’ complaint, she was placed on a Performance Improvement Plan (PIP). Yet, she had “solid” performance reviews at this point. And, her sales team consistently ranked among the best in the company. The court adds that the company did not consider sales be the “ultimate” metric for success. Which is an odd comment to make at  the summary judgment stage. The court, it seems, is again accepting the word of the employer’s witnesses over that of the employee. Indeed, in what company is it normal that revenue is not the “ultimate” metric of success? The court appears to have accepted the employer’s assertion at face value. It does not question an assertion that stretches credulity.

Owens later re-asserted again to HR that she believed she was being discriminated against – via this PIP based on her gender. Not surprisingly, the PIP did not go well. The boss said Owens’ performance was sub-par. Owens asked for examples of how her performance was low. Owens again emailed HR, saying she was being discriminated against. Her subordinates were being promoted. Her team still ranked high in the sales goals. Yet, the boss claimed she did not develop her subordinates. She told HR she was being evaluated based on subjective criteria. The boss continued to insist she was performing poorly.

But, the opinion recounts no examples of her supposed poor performance. Neither does it explain the nature of the criteria against which she was being judged. If the boss’ criteria was not subjective, what were his standards? The opinion ignores important points of this case. That omission suggests this evidence does not support the court’s opinion. Owens was then fired three days before the planned end date of her PIP.

Pretext Plus

The Fifth Circuit rightly views this as a circumstantial evidence case. It noted that Owens was replaced by a white male, even though the employer denied that assertion. The court argues that showing falsity of the employer’s explanation for the termination is not “necessarily” enough to show pretext on the part of the employer. Yet, Reeves says:

 ” . . . a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”

Reeves, at p. 148. That passage does indeed provide that a jury “may” find discrimination solely based on the employer’s false explanation. The employer is in the best position to know why it fired someone, said the Reeves court. The Owens court even cites to this particular passage. Yet, it somehow concludes that the word “may” means the Judge can preclude the jury from making this determination. That is, the Fifth Court claims the court can make a factual determination regarding how strong the evidence of pretext is. But, in so doing, the court necessarily substitutes its judgment of the evidence for that of the jury.

The decision in Reeves does indeed allow that there will be instances in which the evidence of pretext is “weak.” That is, there will be cases in which the evidence that the employer was lying is weak. But, it meant not some sort of qualitative analysis, but more the wrong evdience.  The Reeves court mentions such instances as when the employer gives false testimony about something other than discrimination. Reeves, at 148.

But, here, Owens’ evidence does indeed address the alleged discriminatory motive. She claims, for example, that comparing her to the other managers, she conducted more field rides with her team. Her team performed well compared to other teams. The court, however, rejects this testimony, because, says the Court, Owens’ testimony is “conclusory.” Conclusory usually means a statement which lacks supporting facts for its assertion. But, in this instance, that seems silly. What more supporting facts would we need to show that Owens’ team performed well compared to other teams? Is the court insisting the plaintiff attach sales reports to her statement? Firsthand observation is always competent testimony. To show she conducted more field rides, should Owens have attached copies of the field ride reports to her statement? No, these facts, as presented by Owens, are sufficient. They are facts which the employer can rebut, or not.

Remarkably, the court notes that the HR representative conceded that Owens’ team outranked other teams, whose managers were not placed on a PIP. But, the court discounts this testimony, saying there is no evidence those other managers were comparable to Owens. Say what? They are managers of a team as Owens was, yet, that is somehow not necessarily comparable? That is an argument for the employer to make, not for the court. This was the HR representative’s testimony, after all. The HR person believed the comparison to be valid. But, the Fifth Circuit, who has never worked for Circassia Pharmaceuticals, does not. In addressing summary judgment, the court ought to be able to rely on comparisons made by the employer’s own HR person.

Plaintiff’s Best Argument

The plaintiff also pointed out the frequent praise of Owens’ team, all while claiming Owens herself was deficient in developing her team. Her team members were promoted, after all. The Fifth Circuit admits this was her strongest argument. But, the Court then asserts that while this evidence may allow the jury to find pretext on the part of the employer, that evidence is still not strong enough to conclude discrimination motivated the employer’s decision. This assertion simply turns Reeves on its head. It adds a wrinkle to Reeves by requiring not simple pretext, but pretext which would also support an inference of discrimination. Yet, Reeves said explicitly that falsity of that very explanation alone can support a jury finding of discrimination. Anything more than validity of the explanation is pretext plus.

“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”

And,

” . . . it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.”

Reeves, at p. 147.

The Overruled Decision

Consider the Fifth Circuit’s language in Reeves v. Sanderson Plumbing Products, 197 F.3d 688 (5th Cir. 1999), the decision which the Reeves Supreme Court overturned:

” . . . Because Reeves failed to offer evidence sufficient to prove both that this [articulated] reason is untrue and that age is what really triggered Reeves’s discharge . . “

Reeves, at 692. That sentence is pretext plus. Asking for both pretext and some evidence of discrimination is pretext plus. The Supreme Court explicitly said this language was wrong, because it required something more than simple falsity of the employer’s explanation. Yet, this language is very similar to that used in the Owens decision. The Owens decision is adding new requirements to the central holding of Reeves. See the Owens decision here. As Yogi Berra once said, its deja vu all over again.

 

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Saenz had a huge laugh and a booming voice. He laughed a lot.

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did best, serving others.

We should all serve our country half as well as 1SGT Saenz. There is a nice tribute to 1SGT Saenz here. As John Bear Ross mentions on his website, do not mourn that a man like 1SGT Saenz died. Rejoice that a man like 1SGT Saenz lived.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here. Like many of us, he returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, we remember the fallen – but not the Confederate fallen. They were removed from the list a few years ago.

To mark Memorial Day, I would also like to recall two area San Antonio heroes. They were both fiends of mine. They both died in war zones back in 2005 and 2006 when I was deployed myself.

SSGT Clinton Newman was a fine soldier. He was a bright young man in the 321st Civil Affairs Brigade during my brief time with the 321st here in San Antonio. One of the nice things about being in your hometown unit is that I actually ran into a member of my unit at a movie. I ran into SSGT Newman when he was at a movie with his girl and I was with mine. He was one of the few 321st soldiers still here back in late 2003 and early 2004, while most of the unit was deployed. See a biographical sketch to learn more about someone who would have been a fine citizen of San Antonio and was already an excellent soldier.

I served with Albert E. Smart way back in the 2/141 Infantry Battalion in Corpus Christi. We were young company commanders together. Albert was gung-ho and always smiling. Years later, I was quite surprised to see him in the 321st CA Brigade here in San Antonio. He deployed in 2005 and passed away in Kuwait on the way to Afghanistan. It was such a shock that someone so young, in such good physical shape would pass away from an illness. I think Heaven is in much better physical shape now that Albert is there. And, I expect there are a great many more smiles among its citizens. See a memorial here to learn more about my buddy, Albert.

Well, Attorney General Ken Paxton cannot say he is surprised. The Texas Bar Association has taken action against his bar license. Just a couple of weeks ago, the Texas Bar first sued Paxton’s First Assistant, Brent Webster. Mr. Webster signed the same very weak lawsuit that AG Paxton filed in 2021. I previously wrote about that bar action against Mr. Webster here. First Asst. Webster signed the same frivolous pleading, so it was 100% likely Paxton himself would also be sued.

The lawsuit against AG Paxton explains that contrary to Paxton’s assertions in his frivolous lawsuit, he uncovered no evidence of election fraud. The suit claims AG Paxton made dishonest representations that there was enough voting malfeasance to make a difference in the election result. AG Paxton claims this action is being brought by “leftists” See Texas Tribune report here.

But, I can assure you that there are no leftists active on State Bar Committees. This action has been filed by a standing committee known as the Collin County Commission for Lawyer Discipline. Every Texas County has the same committee comprised of local volunteer attorneys. They would not have filed this action unless they were quite certain of the evidence – or in this case, the absence of evidence of voter fraud.

It was AG Paxton’s choice to let this process go this far. The normal process in all of these grievance committees is to allow the accused attoney to accept review by the committee or for the attorney to seek trial in open curt. Normally, the committee only issues a private reprimand for the first offense. Paxton knew if he chose to proceed with the committee only, then all he would see was a private reprimand. But, It seems that AG Paxton and First Asst. Webster both chose a full-blown trial in open court.

AG Paxton has proven to be adept at delaying legal actions against him. That may be his current plan, as well. These grievance committees will sometimes impose additional discipline if they are forced to file suit. AG Paxton is playing with fire.

 

Congress passed the Families First Coronavirus Response Act (FFCRA) in March, 2020 in response to the coronavirus pandemic. Soon afterward, Congress also passed the Emergency Paid Sick Leave Act (EPSLA). As the name suggests, the EPSLA allowed employees to take time off from work to quarantine due a possible covid19 infection. The leave requirements portion of the statute expired in December, 2020. But, prior to that expiration, Enny Alvarado was working for The Valcap Group, LLC. In November, 2020, a co-worker tested positive for the covid19. Alvarado had been working closely with that co-worker. Ms.  Alvarado called her doctor, who told her she should take a covid19 test and quarantine until she received the results. Valcap had no policies then in place for the pandemic. Ms. Alvarado asked for and received medical leave to quarantine at home. Later that same day, the company fired her.  Her employer said anyone who takes covid19 leave would be fired.

EPSLA

Ms. Alvarado sued under the Americans with Disabilities Act, alleging “regarded as” discrimination and under the EPSLA. Valcap moved to dismiss saying the EPSLA did not have a provision similar to the Family Medical Leave Act stating that an employer may not “interfere” with a worker’s right under the statute. The court agreed with the Defendant. But, it noted that to the extent Alvarado claims in her suit that Valcap disciplined or discharged her for pursuing her rights under the EPSLA, she may indeed maintain such a suit. The EPSLA does in fact provide that an employer may not discipline or discharge an employee for seeking her rights under the statute.

The employer also argued that because Ms. Alvarado did not take her leave, she could not allege she was fired for taking that leave. She had simply requested it. The court rejected this argument, saying that requesting leave amounted to taking leave under the EPSLA. And, at least on this blog, this employer gets an “F” for making a silly argument. The only reason she did not actually take her leave was because she was fired before she could take that same leave – which had already been approved by the employer.

ADA

The court granted the motion to dismiss regarding the worker’s ADA claim. It found that at most, she had pleaded that she was fired for seeking to quarantine, not because her employer perceived her as having an impairment.

See the decision in Alvarado v. The Valcap Group, LLC, No. 21-CV-1830 (N.D. Tex. 1/30/2022) here.