To mark Memorial Day, let us recall two area San Antonio heroes. They were both friends 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.

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 Carlos 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. See a tribute to 1SGT Saenz at the Arlington cemetery website here.

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, PVT Clevenger 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, let us recall the fallen – including the Confederate fallen.

Gov. Ron DeSantis has seen fit to attack Mickey Moue and Disney World. He then found a way to revoke their unusual status of essentially operating their own county government over a wide swath of Florida land. Disney World responded by filing a lawsuit accusing Gov. DeSantis of violating free speech rights for a corporation. Yes, corporations, like persons have free speech protections.

So, what is the legal basis for Disney World’s lawsuit? Disney alleges five different causes of action:

  • Desantis’ new oversight board violates the two contracts Disney signed decades ago. That means the state government violated the contracts clause without an “important governmental interest.”
  • Abrogating the two contracts from decades ago amounts to a “taking” in violation of the Fifth Amendment to the U.S. Constitution.
  • That same abrogation violated the 14th Amendment to the U.S. Constitution, because the taking was “arbitrary and irrational.”
  • The new oversight board amounts to “retaliatory interference” with Disney’s decades old agreements and, therefore, chills Disney’s First Amendment rights.
  • Changes in the oversight board constitute another violation of Disney’s 1st Amendment rights.

There is no doubt Gov. DeSantis took this actions in response to Disney’s opposition to his so-called “Don’t Say Gay” bill. The hardest part of most free speech lawsuits is essentially already shown. It will be interesting to see how the Florida government defends itself in this suit. See ABA Bar Journal report here for more information.

Lawyers do not like to be deposed in a civil suit. So, when Baker Hostetler partner Lee H. Rosebush was deposed, he provided evasive answers. Or, as Special Master, retired Judge Dennis Cavanaugh said, ” he spoke words, but did not provide answers.” Mr. Rosebush sits on the board of Alliance Medical Holdings. Alliance Medical was sued by Roche Diagnostics Corp., because it allegedly billed insurers for more expensive strips, instead of the less expensive mail-order strips it had actually purchased.

Mr. Rosebush was deposed for seven hours, which means his deposition lasted most of the work day. The Special Master responded to simple, yes or no questions, with frequent objections such as “asked and answered.” He asked the court reporter to read back a previous answer, instead of providing an actual answer. The Special Master said that Rosebush continually provide a rote answer or answered a question that had not been asked.

Later, when responding to the motion to compel, Rosebush claimed he was harassed with repetitive questions. (Well, all seven hour depositions involve some degree of repetition. Hello!).

The Master issued an order that Rosebush sit for a second deposition and provide responsive and concise answers. Judge Cavanaugh said he would make himself available for phone calls during the second deposition regarding any evasive answers. See ABA Bar Journal report here.

And, that is how a big firm partner puts his law license art risk.

An issue that has percolated for many years is whether an employer must offer a transfer to an open position as an accommodation to a person with a disability. Adrianna Cook worked for the Methodist Hospital for several years when she injured her back in 2012. She then worked in a light duty position for several months at the Methodist. Ms. Cook went out on FMLA leave for a few months. While out on FMLA leave, she asked her boss for accommodation in performing her duties several times. Eventually her boss talked to HR and told Ms. Cook she should seek other jobs. Cook applied for a vacant position in another part of the Methodist, but she was not selected.

The Methodist offered Plaintiff six months of unpaid leave. HR told her she could accept the leave. If she did not accept it, she would be considered to have abandoned her job. In the meantime, if her position was filled, she would have to find another position with the hospital. Cook did not wish to go that route, since she believed she could work in a clerical position. She did not respond to the hospital’s letter. The Methodist then terminated her.

Most-Qualified Policy

Ms. Cook filed suit. The Methodist filed a motion for summary judgment, saying it had a “most qualified” policy” and that policy was not discriminatory. The district court granted the motion.

On appeal the Fifth Circuit looked at the decision in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). In that decision, the Supreme Court held that in some circumstances, an employer is required to allow reassignment to a vacant position as an accommodation. But, the Supreme Court added that this requirement does not apply when an employer has a legitimate seniority system. If an employer could show valid undue hardship, the employer need not be required to allow reassignment.

The Fifth Circuit made quick work of the EEOC’s argument. It found that the request for reassignment would conflict with an employer’s most-qualified policy. The appellate court noted the split in the circuits on this issue. But, it found that to find otherwise would “impose substantial costs” on the employer. It would cast to the side the reasonable expectations of the other employees.

See the decision in EEOC v. Methodist Hospitals, No. 17-10539, 2023 WL 2553910 (5th Cir. 3/17/2023) here. The court’s ruling really has little meaning. It suggests the “most qualified policy” has some meaning at the hospital. But, really, every employer would claim to have such a policy. As such, every employer will have a right to reject a reassignment request. Comparing the most qualified policy to a seniority system is a false comparison.

Even so, the appellate court vacated summary judgment on this issue. It found that the lower court should also assess whether there might be “special circumstances” that might in this one instance justify disregarding the most qualified policy.

Failure to Accommodate

The decision addressed another issue that occurs in many situations. After her injury, Ms. Cook tried to engage in the interactive process to arrive at an accommodation. She requested and was granted FMLA leave five times. The Hospital assigned her to light duty work for a period of time. At some point, Methodist HR told Ms. Cook that there was nothing more they could do for her and she should resign. Ms. Cook believed this meant the employer was terminating any discussion about additional accommodations. Certainly, to most of us, that sounds like the end of the discussion.

But, the Fifth Circuit said no. The court agreed the employer should not have said that. But the court noted that the hospital continued to offer Ms. Cook additional personal leave as an accommodation. The court said there was no indication that the statement was a “final and unreviewable” decision regarding Ms. Cook’s disability. Now, the higher court is engaging in fact-finding. A jury should make this determination.

The court said that Ms. Cook continued to send medical updates to the hospital and she continued to apply for vacant positions. Sure, but none of those applications resulted in an actual job offer. The Fifth Circuit’s statement reflects a lack of experience in the real world. Most of us would agree that when HR tells you after months pf discussion they will not offer anything more, that such a statement is as final as it gets. In any even, whether that statement reflects a final offer of accommodation ought to be determined by a jury, not by a judge. It is a question of fact.

Stony Silence

The court relies on a prior decision, Loulseged v. Akko Noble, Inc., 178 F.3d 731, 738 (5th Cir. 1999 (for its conclusion). But, in Loulseged, the interactive process ended when the emoplyee did not respond to the employer’s offer of an accommodation. The employers offer was met with “stony silence,” said the court. That fact situation is much different from an employer telling an employee she should resign.

The interactive process is complicated for many reasons. One very large complication occurs when the employee believes s/he has been rebuffed. This ruling shows employees must be very careful when they believe the employer has said no.

Colorado will start issuing licenses to non-lawyer paraprofessionals. These paraprofessionals will be allowed to complete and file standard pleadings, represent clients in mediation, accompany their clients to court and answer a court’s factual questions. But, they may not question witnesses or make oral arguments in court. The new law takes effect July 1.

The paraprofessionals will be required to pass a written, legal exam, pass an ethics class, and submit to a character and fitness review. They will be allowed to perform legal work in divorce and child-custody matters. They will need to complete 1500 hours of practical experience, including 500 hours in Colorado family law. They will be subject to a discipline process similar to that of lawyers.

Other states with limited paraprofessionals include Arizona, Minnesota, Oregon and Utah. The state of Washington had such a program, but ended it. See ABA Bar Journal report here for more information.

Something like this is long overdue. In civil law countries, such as most European countries there are similar entities. Notaries in civil law countries draft contracts and other legal documents. They are paid much less than actual attorneys. Paraprofessionals will fill an important need.

I think as lawyers and advocates, we are always tempted to engage in some hyperbole and take a potshot or two at the judge. But, after a couple of years, most of us learn how to deal with that temptation. Not one lawyer in Chicago named Calvita Frederick. Ms. Frederick represented a woman who failed the Illinois medical school exam. Her lawsuit alleged that the medical school did not give her time to request accommodations for her disability. Judge Steven C. Seeger of the Northern District of Illinois dismissed the lawsuit, finding that the plaintiff had sued the wrong entity. The National Board of Medical Examiners actually has the responsibility for granting accommodations, not the medical school, said the judge.

Ms. Frederick then filed a motion to amend the judgment, essentially asking the court to re-consider its ruling. The motion started with an expression of “all due and maximum respect” for the court. But, the lawyer then took several potshots at the judge. Such as:

  • Seeger was “mistaken and/or deliberately chose to disregard the evidence in the record”
  • Someone else, perhaps a court clerk, actually wrote the decision and made “manifest errors of facts and law”
  • Seeger did not recognize the need to “do adequate research on the topic before issuing a ruling”
  • Any litigant is entitled to a “presiding officer who knows the law”

Ms. Frederick was accusing the judge of incompetence. In his decision, Judge Seeger said he could go on with more examples. Counsel certainly did, added Judge Seeger. “After 28 pages, Counsel finally ran out of gas.”

Judge Seeger noted that sometimes we say things in our head that we would not say out loud. And, some of us say things out loud which we would not say in court. The judge then noted that Ms. Frederick threw more punches than she pulled. He said he was not so much offended. Judges do not become federal judges by lacking a tough hide. But, standards of civility exist for a reason. He said some words came to his mind about her motion, but he would keep them to himself.

The Judge suggested Ms. Frederick re-draft her motion n and re-file it. He said some people do better after a good night’s sleep with the opportunity to re-think what they have said. His opinion was dated March 9. By March 20, Ms. Frederick had filed nothing. See ABA Bar Journal report here.

It is also very likely that Ms. Frederick will find herself the subject of a sanctions order. Some, not many, federal judges would not have given her a second chance. It never ceases to amaze me that some folks think insults are persuasive.

Lawyers can be sanctioned by the court for “unreasonably and vexatiously” multiplying a lawsuit. That means the lawyer can be sanctioned for creating unnecessary work. In the lawsuit Vaughan v. Lewisville ISD, the plaintiff claimed his vote as a white voter was diluted by some measure taken by the Lewisville ISD. The judge sanctioned the lawyer and his law firm for unreasonably and vexatiously multiplying the proceedings. The district judge said Vaughan did not have standing because he was white and because the lawsuit was frivolous.

On appeal, however, the Fifth Circuit found that standing is a changing concept and the plaintiff simply was seeking to extend voting rights laws. The higher court overturned the sanction of $50,000. It also found that a law firm cannot be sanctioned. Section 1927 of Title 28 applies to lawyers, not to law firms. But, said the Fifth Circuit, the various lawyers from the law firm could be sanctioned for their conduct during depositions of school officials. The lawyers asked about a range of issues not related to voting rights, such as Title IX compliance, standardized testing, mental health accommodations, and individual board member’s personal opinions on various topics, such as allowing teachers to carry guns.

See the ABA Bar Journal report here.

The Dallas County Jail routinely assigned the female detention officers to work the weekend shifts. The supervisors claimed it was safer for the male detention officers to be off on the weekends. Not surprisingly, the female officers did not appreciate this policy. They filed a complaint with the EEOC alleging gender bias. In the resulting lawsuit the district court granted Dallas County’s motion to dismiss. The caselaw clearly says discriminatory acts are limited to “ultimate adverse employment actions.” Ultimate adverse employment actions generally include hiring, granting leave, discharging, promoting, or compensating an employee. In other words, money needs to be involved.

On appeal the Fifth Circuit agreed that the jail’s policy expressly discriminates based on gender. But, under long-standing caselaw, discrimination in assigning shifts is not an ultimate adverse employment action. The court was sympathetic, but simply said they were limited by precedent. The court noted that some, not all, circuits define ultimate adverse employment action broadly enough to include shift assignments. The court suggested the female detention officers seek an en banc hearing to consider changing Fifth Circuit precedent.

See the decision in Hamilton v. Dallas County, 42 4th 550 (2022) here.

Well, the four whistleblowers who thought they had settled their claims with Ken Paxton perhaps did not. The four plaintiffs reacted to a statement from AG Ken Paxton’s office that if the state legislature does not authorize payment of the $3.3 million then they can try again next session – in two years. I previously wrote about that settlement here. The ink on that agreement was barely dry when Paxton’s office said the four plaintiffs may have to wait until the next legislative session which occurs in two years. The four plaintiffs then announced they would seek a return to the lawsuit.

The four whistleblowers said it was a “fundamental premise” that the agreement only pertained to this legislative session. If the state legislature would not pass the necessary appropriation, then they could return to court. That probably means the settlement agreement does not specifically address how long they would have to wait. Every settlement with the state is contingent on approval by some entity. But, how long do you wait? See San Antonio Express News report here.

Likely, the four plaintiffs are familiar with the whistleblower lawsuit from the 1990’s in which the plaintiff, George Green, had to repeatedly lobby the state legislature each session to pass the necessary appropriation. That plaintiff had to lobby the legislators himself for multiple sessions. Mr. Green won his trial, but still had to lobby himself state legislators to appropriate the funds necessary for the $10 million judgment.