Sometimes, during an employment lawsuit, the employer will subpoena records from employers before the defendant employer even hired the plaintiff. What relevance would employment records have which date to before the job where the discrimination occurred? Maybe not much. Some defense lawyers seek prior records as much to intimidate the employee as to obtain actual, usable evidence. In Cunningham v. Concentrix Solutions Corp., No. 20-CV-00661, 2021 WL 425099 (E.D. Tex. 2/8/2021), the employee sued saying he had been passed over for promotion for discriminatory reasons. The employer issued a subpoena seeking job information from Alorica, Cuningham’s employer before Concentix.

A few days later, the plaintiff responded in kind. Mr. Cunningham, the plaintiff issued a subpoena seeking prior job information for the employee who was selected for the promotion over Cunningham. Thus, there were dueling subpoenas, both seeking information from employers other than Concentrix. Without engaging in a lot of analysis, the court essentially allowed both subpoenas. The court notes that this is discovery and discovery is generally broad. The court did note that the information sought by Concentrix does pertain to Cunningham’s qualification for the promotion.

The court issued two decisions, both dated Feb. 8. One decision addresses the employer’s subpoena. The second address the employee’s subpoena. See the Feb. 8 decision regarding the employee’s motion to quash here. The second Feb. 8 decision regarding the employer’s motion to quash is here.

Every school boy and school girl knows the preamble to the U.S. Constotution:

“We the People of the United States … and secure the Blessings of Liberty to Ourselves and our Posterity”

On that phrase, Henning Jacobson largely based his challenge to the smallpox vaccination in 1904. The state of Massachussetts imposed a smallpox vaccine requirement on every resident. If the residents refused the vaccine, they would incur a $5 fine. Smallpox had been the scourge of America and Europe for decades. But, by 1904, it was common knowledge that the vaccine would save your life. Rev.  Jacobson, an immigrant from Sweden, had taken the smallpox vaccine as a small boy in his native country. Ever since, he had suffered a debilitating rash. His son also resisted the vaccine until it was required of him by his employer. His son then had to carry his arm in a sling for six months after the shot. The Jacobsons had firm evidence that they would suffer harm if they took the vaccine. Rev. Henning Jacobson insisted the state was taking away his right to medical liberty without due process.

Justice John Marshall Harlan, one of the great jurists, wrote a 7-2 decision affirming that a well-ordered society may require its members to take a vaccine. The Supreme Court, the judge pointed out, had often affirmed that persons and property are subject to all sorts of restraints and burdens to secure the general health, comfort and prosperity of the state. “Even liberty itself, the greatest of all rights is not unrestricted license to act according to one’s own will. In the face of great danger, a state may indeed impose restraints on one’s liberty.”

An American traveler arriving at one of America’s ports on a ship that saw some great fever could be quarantined against his will, noted the court. This traveler could be held until the ship could be inspected or until the danger to the community had been abated.

“. . .  in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

Justice Harlan is saying the rights of the individual may indeed me trumped by rights of the community when the community is pressed by great danger.

Jacobson made some of the same arguments that we hear today, that he had freedom to decide his own medical needs. He also argued that the smallpox vaccine was said to actually spread the disease or that it made persons ill. But, the court was not impressed.

“But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”

See the decision in Jacobson v Massachusetts, 197 US 11 (1905) here.

Now that the FDA has given final approval to the Pfizer vaccine, many employers have started requiring employees to get the covid vaccine. Can employers require employees to get a coronavirus vaccine? It is very likely that they can. We start with the general OSHA requirement of all employers to maintain a safe workplace. Every employer must take steps to prevent known dangers in the workplace. Employers do need to make allowances for religious beliefs and medical requirements. But, otherwise, there is no law or regulation preventing employers from requiring the vaccine.

One state, Montana, has passed a statute preventing employers from requiring the vaccine. But, in every other state, there is no obstacle to employers requiring a vaccine. And, the rule in some 40 states is at-will employment. At-will employment means an employer can generally do as it wishes. If an employee objects, then s/he is free to quit.

See ABA Bar association article here.

Back in the 90’s, I recall folks, pundits and the like, asking if the kids of the time would step up the way prior generations did in WW II and even in the Viet Nam War. Folks doubted the young people, spoiled as they seemed, would step up. I was in the Texas National Guard at the time and had no doubts they would step up. Heck, they already were participating and sacrificing for their part-time job in the armed forces. Starting in 2001, those kids, born in the 1980’s and 90’s, stepped up in a big way. They are still stepping up. I was Battalion Commander of a drill Sergeant unit in 2006 and 2007. The Drill Sergeants scaled back their harassment during the two wars. The Sergeants felt that folks who enlisted voluntarily derived some extra respect. They did deserve some extra respect.

Young Marines

In a dusty Kabul airport, 11 Marines, one soldier and one Navy Corpsman were blown to bits by a fanatic suicide bomber. Those kids were as young as the war itself. LCPL Rylee McCollum was 20 years old. Two Marines in their dress uniform knocked on the door of LCPL McCollum’s parents at 0330 in the morning to tell them about their son. That dreaded knock.

Maxton Soviak grew up in northern Ohio playing football. His sister, Marilyn, said his death left a Maxton sized hole in the lives of those who knew him. Maxton was a Corpsman, or Navy medic. He graduated from high school in 2017. His football coach said everyone looked to Maxton in tough situations. He was passionate, energetic. He held nothing back.

Nicole Gee was promoted to Sergeant 24 days before her last day in uniform. Just days before that last day, she posted a picture of herself holding an Afghan baby. She said, “I love my job.” She was at the airport, escorting women and children to freedom and safety, when she was killed.

One in Ten

These were America’s best. Only one in ten kids qualifies for the Army. And, once they are in, they are scrutinized, harassed and pressed over and over. These boys become young men within days and weeks.

The mission at the Kabul airport is to process Americans and Afghans. For the first time in over a decade, soldiers must get on the ground, out of our armored vehicles and talk face-to-face with Afghans and possible terrorists. The soldiers can feel the breath of the folks they are talking to. Thirteen died. More were wounded. But, the mission continues. Those young, brave boys must still face the elephant. The CENTCOM commander, Gen. Kenneth McKenzie says in the end, “there’s no substitute for a young man or woman standing up there conducting a search of that person before we let him in” [to the airport]. The next day after the blast, other young Marines, soldiers and Corpsmen were back at it, searching and escorting.

War has not changed. There is never a substitute for a young man or woman who is willing to stand up there doing their duty. Thank God we still have young men and women who believe our country is worth that devotion. Let us hope we will continue to be worthy of their devotion.

Well, it is hardly surprising that Sidney Powell, Lin Wood and seven other lawyers have been sanctioned for their lawsuit alleging election fraud in Detroit. I previously wrote about the court hearing regarding the sanction motion here. In response to that motion for sanctions, Ms. Powell argued, apparently with a straight face, that “/s/Sidney Powell” was not a genuine signature. Making such an argument amounts to a virtual concession that she has no defense.

Judge Linda Parker found the lawyers had filed their lawsuit in bad faith for an improper purpose. In other words, she says their lawsuit was frivolous. The judge ordered the lawyers to pay the lawyer’s fees of the state and city lawyers who were forced to file a motion for sanctions. The judge required the plaintiff lawyers to take legal classes regarding pleading standards and state election laws. And, she referred all of them to the Michigan bar association and to their own state bar associations for investigation. See Politico news report here.

Outlandish and Easily Debunked Allegations

The lawsuit was based on affidavits filed by persons claiming knowledge of election fraud. In the lengthy court order, Judge Parker points to specific instances of the lawyers ignoring or not looking deeper into “outlandish” and easily debunked allegations by the the experts. For example, Russell J. Ramsland claimed 6,000 votes in Antrim County were switched from Trump to Biden. He also claimed 643 precincts in Michigan showed 80% or better voter turnout. One township, said Ramsland, showed 460% voter turnout. But, actually, the Antrim County officials issued a state bulletin well before the lawsuit explaining that a user error had caused the mis-count in Antrim County. And, the official election results for Michigan were published – prior to the lawsuit – which showed numbers way below those reports by Ramsland.

Even the most basic internet search, noted the Judge, would have showed the actual voter turnout for Detroit as being 50%, not the 139% claimed by Ramsland. And, instead of the enormous 781% turnout in the city of North Muskegon claimed by Ramsland, the actual turnout was 77%.

Ramsland Lied

And, of course, Ramsland, a designated expert, famously relied on some statistics for counties which were not even located in Michigan. Some of the counties he relied were located in Minnesota, not Michigan. But, even for Minnesota, those numbers were wildly inaccurate. The court states flatly that Ramsland lied in his affidavit. The lawyers then failed completely to verify his allegations.

Joshua Merritt

Another alleged expert, Joshua Merritt, claimed to have been an electronic Intelligence Analyst with the 305th Military Intelligence Battalion. Later, the lawyers learned Merritt had never completed his initial intelligence training. He kept “washing out of courses” and never became an analyst, said an Army spokesman. Yet, the lawyers never corrected that mis-representation. And, the plaintiff lawyers did not dispute this allegation at the hearing.

On Jan.5, the lawyers for the City provided a newspaper article saying Merritt was not a military intelligence expert and actually lacked intelligence training. At the January hearing, the court asked if anyone had suggested to the plaintiff lawyers that Merritt was not a military intelligence expert. Ms. Powell said no. By their silence, the other plaintiff lawyers agreed with her, said the court.

The plaintiff lawyers claimed Merritt had “year and years” of cyber security. Yet, Merritt’s affidavit made no such claim. The court went on and on with additional examples of prevarication and exaggerations by the plaintiff lawyers, and by their experts.

It is very rare for a lawyer to be sanctioned. As lawyers, we are required to verify our allegations in court. Normally, we know very little and have only small opportunity to verify our client’s allegations. But, in a high profile lawsuit, which seeks enormous remedies, more is expected. These lawyers failed to rise to the occasion. Instead, they relied on allegations they had to know were wildly incorrect. The court is saying these lawyers had to know the allegations were not just wrong, but very inaccurate. It is very likely that the state bar associations will follow the court’s findings. These lawyers incurred huge risk with this one lawsuit.

In most employment lawsuits, the defense has all the pertinent records. So, as one might expect, some defendants resist producing those documents. In Hernandez v. Clearwater Transportation Ltd., No. 18-CV-00319, 2021 WL 148053 (W.D. Tex. 1/15/2021), the defendant objected to several requests seeking information about other employees who were pregnant. The plaintiff herself was fired soon after complications with her pregnancy. She was alleging pregnancy discrimination in her lawsuit. So, it ought to be obvious that information about other pregnant employees would be discoverable, and probably admissible.

The defendant first argued that Plaintiff’s counsel did not confer before filing her motion to compel. The court dispensed with that argument quickly, noting that the employee’s attorney sent a letter seeking to confer. The letter called on the defendant to respond within about 12 days, or she would file a motion to compel.

The defense attorney also argued that the interrogatories and requests for production were overbroad and that the information was protected by HIPAA. But, as the court noted, privacy concerns could be addressed with a protective order. Regarding over breadth, the court simply noted it was apparent that information about other pregnant employees was relevant.

The employer also argued the requested time period was overbroad. The employee sought records dating back between four and five years. The court said, no, that time period was reasonable. The court noted other court decisions have approved of time periods of three to five years. The court noted that discovery regarding possible victims of the same type of discrimination have been found to be relevant by other courts. See the decision here.

It could happen to anyone. But, when it happens to a lawyer, problems will follow. An email was sent to attorney Aaron Allison notifying him that a motion for summary judgment had been filed. Unknown to Allison, the email was caught in an obscure spam folder. Mr. Allison did not see the email. he did not now a motion for summary judgment had been filed. So, he did not know he needed to file a response within 14 days. His lawsuit had been removed from state court. He may not have realized he had only 14 days in which to submit a response. But, the Fifth Circuit said that did not mater.

In Rollins v. Home Depot USA, Inc., No. 20-50736 (5th Cir. 8/9/2021) Judge Ho wrote that Allison knew the MSJ deadline was May 11. He should have checked the docket online to see if a motion had been filed. But, sometimes defendants submit their motions for summary judgment early. In this case, Home Depot submitted its motion on May 7. If we follow Judge Ho’s recommendation to check the docket on May 11, the actual due date, then Mr. Allison would have learned about the filing four days late. He would have lost 4 days out of his precious 14 days to submit a response. And, if a defendant submitted his dispositive motion a week early, then the plaintiff will lose a week. Fourteen days is a very short time indeed in which to respond. That deadline will shrink and shrink as defendants realize they can take advantage of an errant email.

Defense Counsel Likely Knew

Ironically, Allison had spoken with the opposing counsel twice during the 14 days about settlement. The Defense attorney likely realized Allison was not aware of the MSJ, but said nothing.

When the plaintiff did not file a response, the trial court granted the motion for summary judgment. Mr. Allison then filed a Rule 59(e) motion to amend the judgment. The trial court rejected that motion. The Fifth circuit affirmed. The court of appeals cited Trevino v. City of of Ft. Worth, 944 F.3d 567 (5th Cir. 2019). In that case, a lawyer missed the deadline regarding a motion to dismiss. The law firm had been using antivirus software which they knew caused problems with receipt of emails. In the Trevino case, the court said the fault lay with the law firm. The Rollins court cited that opinion. Mr. Allison argued that unlike that law firm, his office had no reason to know the court’s email might be diverted.

Wrangling Software

But, Judge Ho simply found that Mr. Allison and his firm were in the best position to know whether their email was working properly. This strikes me as the comment of a judge who has never had to wrangle his own software. In reality, emails sometimes simply do not arrive, for reasons that escape scrutiny. In my experience, about once a year, an email sent to me or sent by me does not arrive at its destination, for no apparent reason. Back in 2003, I was on active duty at Ft. Sam Houston. My Army unit was in Houston, Texas. My unit would send me urgent emails with vital information for the staff at Ft. Sam Houston. My job was to make sure that information arrived at the correct staff section. I would know beyond any doubt the email had been sent. Yet, some emails would arrive within seconds. Others would take hours to arrive.

Email is not certain, for reasons that evade all but the best trained computer scientists. With this decision, the court has imposed a very harsh requirement. In the days before email, there was some protection for the law firm that could affirmatively show problems with the U.S. mail. Now, we are left to scrutinizing the court’s docket on a regular basis. And when such a situation occurs with an opposing counsel who was likely aware of the oversight and said nothing, then our judicial system sinks further into a game of gotcha.

See the decision in Rollins here.

 

Election lawsuits proliferated like mushrooms back in November and December, 2020. One such lawsuit was even filed as a class action on behalf of “all U.S. registered voters” alleging a coordinated effort to change voting laws and use unreliable voting machines to interfere with the presidential election. The two lawyers, Gary Fielder and Ernest Walker, filed the lawsuit in Colorado federal court. It turns out the two lawyers conducted no actual investigation of their very broad allegations. They simply compiled all the allegations from other failed lawsuits and from news reports asserting fraud, but no information from news reports which refuted claims of fraud. As the Magistrate Judge points out, relying on other failed lawsuits should have been a huge red flag.

Yet, the two lawyers claimed governors, election officials in four states, a voting technology company, Facebook and a nonprofit seeking more secure elections were all involved in this massive conspiracy. The suit sought $160 billion in damages. The court noted that is an amount larger than the GDP of Hungary. So, the court assessed sanctions against the two lawyers. The sanctions amount to enough to cover the costs of the opposing attorneys in filing a motions to dismiss and opposing an attempted amended complaint.

Height of Recklessness

The court noted that the lawsuit engaged in inflammatory language that could place the persons involved in danger. To engage in such language without a firm basis was the “height of recklessness.”

The plaintiffs used affidavits comprised mostly of a general fear and suspicion that the system was rigged, and that democracy no longer works, said the Magistrate Judge. Those affidavits showed that the plaintiffs had no first-hand knowledge about their supposed information, said the court.  Indeed, lack of first-hand knowledge seems to have been a hallmark of those 2020 election lawsuits. See ABA Bar Journal report here.

Magistrate Judge Reid Neureiter’s takedown of this lawsuit is as complete as judges get. He was clearly perturbed by this very frivolous and dangerous lawsuit. We have to wonder why some lawyers were so willing to play poker with their law license. Sanctions are very rare. But, these election lawsuits from late 2020 seem to be reversing that trend.

A Bexar County jury found in favor of the employee in a retaliation lawsuit. Joseph Sifuentes, an 18 year employee of Bill Miller’s Barbacue, told a female manager to go to Human Resources regarding a male supervisor who was harassing her. The male harasser was a friend of Sifuentes’ boss. The male harasser was fired. Sifuentes’ supervisor, Edward Chagoya, was not happy his friend had been fired.

Later, Mr. Chagoya began to harass Sifuentes. When Sifuentes asked Mr. Chagoya about work issues, Mr. Chagoya said management wanted to hang Mr. Sifuentes. In November, 2018, Mr. Sifuentes went to HR himself. A week later, he was fired.

Bill Millers claimed it caught Mr. Sifuentes gambling. They apparently based this allegation on a piece of paper on which Sifuentes had written down various point spreads. Bill Millers did not conduct an actual investigation into the matter, said Sifuentes’ attorney. The company fired the 18 year employee within days of learning of the alleged gambling.

Last week, the jury found – by a vote of 10 to 2 – this firing amounted to reprisal and awarded Sifuentes $689,000 in lost pay and benefits. The jury declined to award lost pay in the future or compensatory (emotional suffering) damages.

The jury did award $300,000 in punitive damages. But, state law requires a verdict be unanimous in awarding punitive damages. A 10-2 verdict is not unanimous. So, that punitive damage award is void. Mr. Sifuentes had started as a $24,000 trainee in 2000 and rose to the post of assistant operations director overseeing 17 district managers and some 76 restaurants. See San Antonio Express News report here.

I wrote previously about the Apache Corp. v. Davis, No. 19-0410 (Tex. 2021), decision here. I mentioned then that Justice Hecht’s largest campaign donor was the law firm, Vinson & Elkins. Vinson & Elkins represented Apache Corporation during its appeal. This controversy started in October, 2020, when the Supreme Court denied Apache’s request for an appeal. In February, 2021, the Texas Supreme Court reversed its prior decision and granted a motion for rehearing. The San Antonio Express News explains that normally, the Texas Supreme Court only grants a petition for rehearing about 2% out of the total number of requests. Three weeks after that initial denial by the Supreme Court in October, 2020, Apache Corporation contributed $250,000 to a new judicial PAC, Judicial Fairness PAC.

That PAC then spent some $750,000 over the next several days on behalf of the four Justice candidates running for re-election. The last time Apache donated to Texas Supreme Court candidates was almost ten years ago when it donated $2,500.

On Nov. 3, 2020, those four Justice candidates won their campaigns. Two weeks later, Apache submitted its petition for rehearing. As mentioned above, despite only a 2% chance of it being granted, Apache’s petition for rehearing was granted in February of this year. As the name suggests, a petition for rehearing essentially asks the judges to please reconsider a decision already made. As one might expect, normally, absent some grievous error, judges do not reconsider. In fact, some judges are often annoyed at being asked to review a decision already made.

Remarkably, the Vinson & Elkins law firm also donated $75,000 to Justice Hecht’s campaign after he won his Nov. 3 election. Justice Hecht cannot run for re-election due to age restrictions. So, we might wonder why Justice Hecht needs more campaign funds, if he will never campaign again. Former Chief Justice Tom Phillips says justices need campaign money to cover office expenses. But, Apache also donated $15,000 to Justice Hecht after he had already won his election – while the petition for rehearing was pending. Necessary for office expenses or not, it just looks bad to accept campaign donations during or soon after a case is pending. See Houston Chronicle report.

And, thus, in the space of  just eight months, an appeal denied somehow becomes an appeal win for Apache Corp.