Many defendants do this to some degree in a lawsuit: they exaggerate the testimony of the plaintiff or other witnesses. There is sometimes a fine line between advocating a position and outright fabricating evidence. In Flores v. DISH Network, the defense firm, Littler Mendelson, crossed that line. Littler Mendelson primarily practices employment law across the country.

In Phoenix, Melin Flores sought FMLA leave and was fired. He sued for FMLA violations. Littler Mendelson moved for summary judgment, as most defendants do. But, this time, the firm said things that were mis-leading or flat untrue.

  • In “statement 9,” the defense firm claimed Ms. Flores had conceded that she did not think she needed leave. But, it turns out that Flores made that statement at a different point in time, not related to her requests for FMLA leave.
  • In “statement 12,” Littler Mendelson said Flores admitted the pain did not affect her daily living until after she had been fired. But, it turns out, said the Judge, that Flores simply said she could take care of herself for much of the time before she was fired.
  • In “statement 13,” the Littler attorney claimed Flores had said the pain never affected her ability to work and she never mentioned the pain to her supervisor. In reality, said the Judge, Flores actually said her pain did affect her sometimes at work and she mentioned that to her supervisor.

Judge Roslyn Silver said the blatant falsehoods in statements 12 and 13 are unusual in pleadings filed by attorneys. “These statements are not subject to reasonable debate or interpretation,” said the court.

The Judge said she could go on with more examples of falsehoods and mis-statements, but that would serve no useful purpose. The judge reprimanded the firm and found they violated Fed.R.Civ.Pro. Rule 11. Rule 11 requires attorneys to verify that factual contentions are supported by evidence. Violations of Rule 11 will result in sanctions. Doubtless, the law firm will see sanctions in its inbox very soon. See ABA Bar Journal report.

When I mention “sanctions” to clients, their eyes get big. They ask me what are sanctions? Sanctions are whatever a judge thinks is appropriate for folks who abuse our judicial system. Most abuse is pretty minor. So, sanctions will be minor. One client refused to disclose a medical care provider, because the medical care was embarrassing. I warned her about sanctions. Later, we did provide the name of the medical care provider. But, by the time we actually provided the name, the opposing party could legitimately say we provided the name late. So, the judge fined my client $500.

What happens in those very rare times when a party fails to provide requested documents? What happens when that tardiness extends over years? Alex Jones can tell us. He was sued in 2018 in Travis County for saying untrue things about the massacre at Sandy Hook Elementary in 2012. His constant accusations that the shooting did not actually occur upset the families a great deal. The families sued him for defamation. Jones appealed on frivolous grounds. See my prior post about that appeal here. Judge Scott Jenkins sanctioned Alex Jones $100,000 in 2019.

But, still Jones failed to produce the requested documents. So, now Judge Maya Guerra Gamble has issued the ultimate sanction. He has found Alex Jones and Infowars in default. That means the judge has found Jones and his business liable to the families who filed the suit. Only because they would not cooperate in discovery for years. It is incredibly rare for a judge to assess the nuclear option of sanctions. Such a move reflects the great frustration the judge must have felt. Under the system used in Travis County, a different judge hears each motion. So, this ultimate sanction reflects the frustration of several judges. What would motivate a party to incur such a result? It’s hard to say. The next step is for a jury to assess damages.

See Daily Beast article here.

Ninoshka Matias tested positive for the coronavirus. She asked her employer for leave from work under the Families First Coronavirus Response Act (FFCRA). Plaintiff Matias told her employer about her positive test. That same day, her employer fired her. The employer said Matias was not a “good fit.” Matias sued for discrimination under the ADA. The employer filed a motion to dismiss for failure to state a claim. The employer, Terrapin House, said the illness was minor and transitory.

The court rejected the motion. It found the employee had made supportable allegations that she was regarded as disabled. The Department of Health and Human Services has issued medical guidance stating that the covid-19 virus may affect one or more body systems. Therefore, it may be a physical impairment under the ADA. And, certain forms of the virus can “substantially limit major life activity,” including respiratory function, gastrointestinal function and brain function, for periods lasting months after the initial infection. The court also described the phenomenon known as “long covid,” in which can carry longer erm effects of the virus.

Given the close proximity between the day on which she notified her employer and when she was then fired, the plaintiff has stated a viable cause of action, said the court. The employer argued that that Ms. Matias did not suffer any symptoms of the virus. But, the court noted that she said she lost her sense of taste and smell.

See the decision in Matias v. Terrapin House, Inc., No. 5:21-cv-02288 (E.D. Penn. 9/16/2021) here.

 

In Austgen v. Allied Barton Security Services, LLC,  No. 19-20613, 2020 U.S. App. LEXIS 20085 (5th Cir. 6/26/2020), a security officer, working for the Port of Houston, encountered back pain in inspecting vehicles. The pain was chronic and had been aggravated by climbing around vehicles. His employer told him to stay home on unpaid leave for a few weeks until some alternative could be found. Some weeks later, he was offered and accepted a supervisory position that was better for his back. Austgen requested transfer to a paid position, but was denied.

The Fifth Circuit found the unpaid time off was a reasonable accommodation. The ADA, noted the court, entitles a worker to a reasonable accommodation, not necessarily to the employee’s preferred accommodation. The plaintiff also accused the employer of not engaging in the interactive process to arrive at a reasonable accommodation. The court dismissed that claim with little discussion. It simply found the employer did offer an accommodation. Failing to engage in the interactive process only matters when the interactive process fails. See the decision here.

The court has a fair point. The interactive process is designed to arrive at an accommodation that meets the needs of the person with a disability. If the employer offered an accommodation, even if with little discussion, that meets the medical needs, then the employer has satisfied the requirement.

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.