We are seeing in real time what happens when an employee blows the whistle on his/her employer or when s/he complains about discrimination. Pres. Donald Trump has reportedly discussed firing the White House employees who have testified against him. He has discussed returning LTC Vindman to the Pentagon and firing Ambassador Bill Taylor after they testified against him. See CNN news report here. For a military officer, sending LTC Alexander Vindman back to the Army would amount to being relieved.

The President has also considered firing state department employees, George Kent and Marie Yovanavitch.

All employers consider responding to complaints in this way, to some degree. The difference between other government employers or many corporate employers is that Pres. Trump has likely received no training in values. Most government employers and many corporations utilize some form of training on values. One of those values is that persons who complain about discrimination or about violations of the law are protected. Even if you do not agree with their complaints, most managers agree their right to complain should be protected.

The President is famously resistant to legal advice. He will be even more resistant when he feels in real time the press of persons submitting public complaints about him. There is a reason why the better run organizations provide that training before the crisis, not during the crisis.

Of course, the larger issue for Pres. Trump is that one of those employees. Marie Yovanavitch has accused him os smearing her. If he actually fires her and others who support her, such an action would only corroborate the charges against him. That presents a different topic: clients who do not listen to advice from their lawyers.

A court in New Jersey struck the entire closing argument made by the defense attorney in a lawsuit against Johnson & Johnson. Several plaintiffs are suing Johnson and Johnson on the basis that asbestos in talcum powder decades ago caused them to contract mesothelioma in the plaintiffs’ stomach linings. Mesothelioma is a type of cancer. The defense lawyer, Diane Sullivan with Weil, Gotshal & Manges, argued in her closing argument that the experts for the plaintiffs had created evidence. Ms. Sullivan said the experts did not find a connection between the talcum powder and mesothelioma until they were hired by the plaintiffs. The defense attorney said the plaintiffs and/or the experts had created their evidence.

Judge Ana Viscomi said she she had warned Ms. Sullivan about her conduct. The judge said it would not be possible to strike only the offensive portion of her argument. It is unusual to strike an entire closing argument. Typically, a judge will simply strike the one or two portions that violate some rule. Ms. Sullivan was previously recognized for her success in defending Johnson & Johnson in a prior lawsuit. She was named a winning litigator for 2019 by the National Law Journal. See ABA Bar Journal news report. But, this time, it appears she was not a winning litigator.

 

The Western District of Texas granted summary judgment involving a CPS worker. The City Public Service worker, Gabriel Sanchez, was employed as a cable splicer for CPS Energy. He was out on medical leave for PTSD when he was fired in 2016. The worker was involved in a second “flash” incident in which he cut through the wrong cable. This was his second flash incident, the causing PTSD. CPS defended the case saying Mr. Sanchez had a “pattern” of safety violations.

The Western District accepted Defendant’s characterization of the so-called “pattern” of safety violations. Even though, management level employees indicated that the decision was made during a meeting  in February, 2016. At that meeting, just one of the flash incidents was discussed. At the same meeting, the managers also discussed Plaintiff’s PTSD diagnosis. The Plaintiff was scheduled to return to work at CPS the day before he was fired on March 8.

The Court found the testimony was clear that no manager discussed Plaintiff’s PTSD at the February, 2016 meeting. Though the court’s opinion is well documented, it appears the Court disregarded inferences that some managers likely did discuss Plaintiff’s PTSD diagnosis at that critical meeting. If the managers did discuss the diagnosis, that suggests the diagnosis played some role in the decision to terminate the 16 year worker. Even if it is only a possibility that the mangers discussed the PTSD diagnosis, summary judgment was not appropriate.

The Court noted that Mr. Sanchez was not released back to work by March 7, 2016. But, CPS did not know his status on March 8. The decision to fire him was not based on not being qualified to work. It was based on his alleged pattern of safety violations. His TWC work status said he would return to work on March 21, 2016. But, CPS had no knowledge of that recommendation when it made the decision to fire him on Feb. 16, 2016. CPS then conveyed the termination decision to Mr. Sanchez on Match 8. So, even though there might be a factual issue regarding his ability to work on March 8, his ability – or not – did not apparently factor into the decision to fire him.

It did not help his cause that the Plaintiff testified that he did not consider himself to be disabled, but his doctors believe he has a disability. The Court was troubled by the worker’s status as of March 8. It found that he was not qualified to work as a cable splicer as of March 8. The Court noted the recommendation that he not do electrical work. But, as Plaintiff noted, a recommendation does not mean he cannot do electrical work. The case shows the difficulty in prosecuting cases in which the medical evidence is not 100% supportive of returning to work. But, in the real world, medical advice is often inconsistent. The Western District has again reviewed factual issues and weighed evidence. See the decision in Sanchez v. City of San Antonio here.

Many potential clients, friends and some folks I barely know share their knowledge with me about employment law.  Unfortunately, many of them are flat wrong. Here are a few of the more common employment law myths I encounter.

  • At will

“At will” employment means an employee can be fired for anything.” Texas is an at-will state. An employee can indeed be fired for a lot of things, but not for sex, religion, race, national origin, disability, violation of laws, etc. So, yes, an employer can fire you for wearing a blue tie to work, but not because you are too old.  The anti-discrimination statutes provide several exceptions to the at-will doctrine.

  • Probation period

“Probation periods means an employee can be fired for anything.” Not quite. A probation period means an employe can be fired for anything except sex, religion, race, national origin, disability, violation of laws, etc.  See above paragraph.

  • Copy of file

“Employees have a right to a copy of his/her personnel file.”  That depends on whether the employee is public sector or private. There is no authority in Texas law which says employees of private businesses can obtain a copy of their personnel file. As a public sector employee, an employe’s rights are governed by the Freedom of Information Act for federal employees and the Open Records Act for state employees. I can find no authority providing that a private sector employee has a right to a copy of his/her personnel file.

  • Rest breaks

“Employees get periodic breaks during the work day.”  I was told as a young warehouseman that we had a right to a 10:00 o’clock break and another at 3:00 pm.  The times could vary slightly, but that was the idea. Since then, I have looked for the authority for those breaks. There is no such authority. Most likely, that is or was part of the influence of collective bargaining agreements (union agreements). CBA’s do often provide for such breaks. But, for non-union employees, there is no authority for a mid-morning break and a mid-afternoon break. There is no state law or regulation on rest breaks or meal breaks. Federal regulations do not require a meal break. But, Federal regulations used to encourage work places to provide rest breaks, but notes a requirement. That provision was formerly found in 29 CFR Sec. 758.18 as recently as 2016. But, today, the term “rest break” is nowhere to be found in the federal regulations.

  • Non-compete agreements 

Some folks outside and inside Texas believes non-compete agreements are not enforceable in Texas. Yes, they are and have always been enforceable. They more enforceable with the decision in Marsh USA Inc. v. Cook, 354 S.W.3d 764 (Tex. 2010). But, then the Texas Supreme Court issued the decision in Exxon Mobil Corp. v. Drennen, 452 S.W.3rd 319 (Tex. 2014) which stated that the Marsh decision did not involve a “covenant not to compete.”

  • Free speech

The right to free speech exists only for government workers. There is no general right to free speech in a private workplace. But, there is protection for employees who discuss “terms and conditions” of employment. Those sorts of discussions are protected by the National Labor Relations Act. But, as far as discussing politics, football or cooking, there is no right to discuss whatever a worker wishes in the private workplace. I previously discussed the NLRA protections here.

  • Whistleblowing

There is no general whistle blower protection in Texas. I think most people think of whistleblowing as reporting wrongdoing to some law enforcement type entity. Employees in the private sector do not have protection against whistleblowing. But, there is a protection against requiring employees from violating criminal statutes. This sort of lawsuit is known as a Sabine Pilot type action. I discussed Sabine Pilot actions here. So, merely reporting administrative violations which do not have a criminal punishment, there are no such protections.

  • Not Written up before termination

People still ask me or tell me that the employer did not write them up before firing them. Well, employers do not have to do that. Yes, most large employers have nice looking employee manuals which state that employees must be written up before termination. But, these manuals are not binding. They have not even been arguanbly binding since about the early 1990’s. This is one employment myth that may never go away.

  • Privacy

Some folks still think they have some degree of privacy at work. Email is a frequent issue. Generally, email produced with use of the employer’s equipment and server belongs to the employer.  The employer may review your email anytime. I wrote about workplace email here and here.  The one exception appears to be when the employee accesses his/her private email server which is password protected.

There is no prohibition on private sector employers searching desks to my knowledge. But, the U.S. Constitution Bill of Rights applies to state governments. So, in the public sector, a worker has some protection from unreasonable searches if s/he has a reasonable expectation of privacy” that society is prepared to recognize as reasonable. See O’Connor v. Ortega, 480 U.S. 709 (1987), on remand, Ortega v. O’Connor, 817 F.2d 1408 (9th Cir. 1987).  But, the “expectation of privacy” can be limited by office practices and by legitimate regulation. And, HIPAA does protect medical information in most work situations.

So, as I tell folks on occasion, if you want fairness at work, then form a union.  Or, persuade your state legislature to make a few changes in the law, so all workers will benefit.

A no-Spanish rule is very problematic for any employer, but especially so in San Antonio. Yet, that is the rule allegedly imposed by the La Cantera resort. So, it is not surprising that La Cantera is settling the EEOC lawsuit against it for $2.6 million. La Cantera claims it did not have a no-Spanish policy. But, the evidence is substantial. If the evidence was weak, it is certain La Cantera would not settle for such a large amount. I previously wrote about that lawsuit here.

The lawsuit alleged discrimination based on speaking Spanish. The lawsuit alleged retaliation for opposing that policy. Destination Hotels and Resorts formerly operated La Cantera. Destination was the named defendant. Twenty-five plaintiff employees will share in the settlement. According to the lawsuit, Destination imposed the no Spanish policy soon after it assumed control of the resort in 2013. One employee said he and his co-workers were disciplined as often as every week for speaking Spanish.

One employee, Sergio Vitela, was fired after he complained about the policy. He had been working at the resort for 12 years when he was fired. Yes, settling this lawsuit was a wise move by Destination. See the San Antonio Express News report here.

 

At an en banc hearing before the Second Circuit Court of Appeals, Trump lawyer William Consovoy said if the President shot someone on Fifth Avenue in New York City, he would be immune from criminal investigation. I was not there, but am sure Judge Denny Chin was not impressed by that assertion. There is limited law on Presidential limits, but there is substantial caselaw providing that there are indeed limits on Presidential authority.

As early as the prosecution of Aaron Burr in 1807, Justice John Marshall found that a subpoena duces tecum (a subpoena requesting production of documents) could indeed be served on the President. In 1952, Pres. Truman reacted to an imminent strike by steel workers by seizing the steel companies. The Supreme Court found that act amounted to an over-reach by the President. The court found Pres. Truman was trying to make law through an executive order.

In 1974, the Supreme Court ruled that Pres. Nixon had to obey a subpoena for the infamous Watergate tapes. In 1997, the Supreme Court found that Pres. Clinton must sit for a deposition in a civil lawsuit. See ABA Legal Fact Check here.

Lawyer Consovoy was surely aware of this precedent when he appeared in front of the Second Circuit. And, he knew the Second Circuit judges would also be aware of that precedent. It appears he was trying to please his client, at the expense of losing his credibility with the court.

Many veterans have returned from the two wars with some degree of PTSD. I myself have some low level PTSD in limited situations. But, that does not mean we cannot perform our jobs. In Alviar v. Macy’s Inc., No. 17-1130 (5th Cir. 8/15/2019), the Fifth Circuit reversed an award of summary judgment. Plaintiff Alviar served three tours in Iraq and Afghanistan as an Infantryman. At Macy’s, he was assigned a new boss, John Lillard. Mr. Lillard spoke with the employee about his lack of emotion. The Asset Protection Manager explained that his medication for PTSD resulted in a lack of visible emotion. After that conversation, Mr. Lilliard asked Mr. Alviar if he could handle the store in Irving. He asked Mr. Alviar five times whether he was able to handle the demands of the Irving store. Mr. Alviar testified that his relationship with Mr. Lillard took a bad turn after he disclosed his PTSD diagnosis.

Those comments by the District Manger of Asset Protection should have been enough to prevent summary judgment. Yet, the Northern District of Texas granted the employer’s motion for summary judgment. On appeal, Macy’s said the employee was fired because his performance was deficient. The appellate court noted the comments by Mr.Lillard might qualify as direct evidence of discriminatory bias. But, noting the final decision was made at higher levels than Mr. Lillard, the Court found that under the burden shifting frame work, the plaintiff met his burden.

The Fifth Circuit panel found the remarks by Mr. Lillard were sufficient basis on which a jury could infer the District Asset Protection Manager was biased against persons with PTSD. One of his questions to the former soldier was whether with his “medical disability,” he could “even handle” the Irving store. The evidence showed that Lillard was the central source of information for the higher level managers who decided to terminate Mr. Alviar. Mr. Lillard was involved in the decision to terminate Alviar throughout the process. A reasonable jury could conclude that Lillard’s concern about Mr. Alviar’s PTSD was a leading basis for the termination. See the decision here.

It is unfortunate that folks still stereotype veterans with PTSD. Those employers are losing some wonderful talent.

I served in the Iraq war 2005 to 2006. My job was to approve (or not) reconstruction projects. My post was at division level. We had some $90 million dollars each fiscal year to spend on projects inside Iraq. There were various civil affairs constraints on how to spend that money. It was my job to make sure these reconstruction projects adhered to civil affairs doctrine. I go outside the wire and  visit each of our four brigades and look at one project. Each month, I visited a Brigade headquarters to go look at one project.

In Mosul, the Civl Affairs Team had to rely on an Infantry platoon for bodies sufficient to man a patrol. As we went out to look at one project, the Infantry guys were also going to deliver school supplies to a nearby school. We ended up at an all-girls school. The teachers and all the students were female. But, this being Iraq, there was one adult male to act as chaperone. His only job, as we understood it later, was to help with small jobs and to chaperone the women when they encounter men.

The chaperone was a pain in the neck. There were some dozen officers and Non-Commissioned Officers taking school supplies to various classrooms. Going here and going there. The small school was filled with Americans in uniform and helmet handing out boxes of school supplies. The male chaperone followed every single person like a puppy dog. Later, we learned the reason. He wanted his share of the loot. To us, it was just school supplies. But, to him, part of his pay was some portion of whatever the school received.

We, as the Army guys, knew none of this during the visit. Only in leaving did the interpreter explain to us what had occurred. As the visit was concluding and we were saying good bye to these wonderful teachers and sweet, polite kids, the chaperone asked the interpreter for his share.

One thing about a counter-insurgency, you do not make unnecessary enemies. We had enough people wanting to kill us. We did not need more. The Interpreter knew this. He had worked with this Infantry Major many times before. The interpreter did mot want to offend the chaperone, but neither did he want to give him anything. Not to mention all the school supplies were handed out, already. Without consulting with the Infantry major in charge, the interpreter knew what to do. He told the chaperone he would get something when we come back. There would be no return trip. The interpreter knew that. But, he found a polite way to say no.

In Iraq and Afghanistan, no one messed with our interpreters. In countless ways, they saved many U.S. Army lives. That experience makes it hard to watch Pres. Trump say the Kurds are not worth our support and that we owe them nothing. I did not work with the Syrian Kurds, but  did work indirectly with Kurds in northern Iraq. The Iraqi Kurds were wonderful to work with. They had many Western values. I am very doubtful the Syrian Kurds are not worth our support. I expect they were, as many Special Forces soldiers have said, exceptional allies who deserve serve our support.

In what industry are both white collar and blue collar managers and leaders trained each time they are promoted? In the military. In the military services, we have to lead and manage persons from all sorts of backgrounds. So, for decades, the U.S. military has required attendance and graduation from various schools for promotion to the next rank. As a young lieutenant in the Infantry Officer Basic Course, we role played leaders and rank and file soldiers in various counseling situations. Upon graduation, we were not licensed counselors, but we knew enough to listen to our soldiers and understand how to help them find solutions to problems, such as divorce, child rearing and substance abuse. As we often say in the Army, “In the Army, we are in the people business.” That is our way of explaining that we focus on our most important inventory, the men and women who make up our forces.

Yet, a recent study by the Duke University Fuqua School of Business shows many employers in the U.S. see military veterans as a poor fit for emotional social jobs. In one study, conducted in the restaurant industry, employers rated military veterans as much more suitable for low feeling positions, such as dish washers and prep cooks than for servers. See Army Times report here.

That is ironic since every Sergeant has graduated from at least one NCO leadership school which typically last 4-8 weeks, in addition to the experience of leading and managing men and women in garrison and in combat.

I could write a book on the combat experience. But, I can say that there is no greater pressure cooker than a combat zone. In a war zone, every decision, no matter how trivial, presents life or death consequences. Stress is never greater. Leadership ability, including the simple ability to work well with others, is at a premium. I wondered, when I was in Iraq sometimes, about the Morale, Welfare, Recreation Centers. At the MWR center, a soldier could check out a movie or read a book. Would it set someone off if their favorite move was not available? In a war zone, everyone needs to be performing his/her job at top efficiency.

U.S. employers clearly do not appreciate the sort of training we have had in the military. In my lawsuits, I often encounter businesses that provide no training for its mid-level managers. None. I find that simply astounding. Don’t you know that a young Sergeant with a couple of tours in Iraq could handle a busy night at a popular restaurant?

The President’s counsel, Pat Cipollone, sent a letter to the House of Representatives objecting to the impeachment inquiry. It is a five page letter which recounts the many perceived problems with the House investigation. It is signed by Pat Cipollone as counsel to Pres. Trump. But, it appears to have also been edited heavily by the client. In every lawsuit, the client wants to write a letter like this. It contains over-the-top language like this: “Given that your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections, the Executive Branch cannot be expected to participate in it.” See The White House letter here.

The letter does point to perceived problems and points to caselaw for authority. For example, the letter points to the decision in Watkins v. United States, 354 US 178, 188 (1957), a decision by Earl Warren regarding the House Committee on Un-American Activities. It is a very well-written decision which traces the history of Congressional contempt to Parliaments during  the anti-Catholic crusades in 1700 England. The letter insists the House conform to recognized standards of due process.

What was the Watkins decision about? The case concerned a witness, Mr. Watkins, who appeared in front of the Un-American Committee. The witness refused to answer certain questions. The Supreme Court decision found the refusal to answer lacked adequate basis for contempt. The witness refused to answer questions about any persons who had formerly belonged to the Communist party, but who had left the party. He was willing to answer and did answer questions about his involvement with the Communist party. He also answered questions about persons who were still involved with the Communist party. But, he refused to answer questions about persons who had once been party members, but had quit. For that refusal, the committee and the House referred him to the U.S. Attorney for prosecution for contempt of Congress. In Chief  Justice Warren’s decision, the Supreme Court found that contempt failed to conform to due process requirements. See the Watkins decision here.

So, yes, the Watkins decision requires Congressional investigations to conform to the Due Process clause of the Fifth Amendment. The decision mentions these particular requirement for due process: “Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged.” Watkins, 354 US at 188. Mr. Cipollone’s letter correctly nots the decision recounts the due process requirements of House investigations.

But, the problem here is that the White House has flat refused to allow witnesses to appear. It is difficult to be compelled to give testimony against oneself if one is not actually testifying. So, claiming your witnesses are being abused rings hollow when your witnesses do not actually appear.

Mr. Cipollone’s letter also notes that an accused has the right to call his/her own witnesses, present evidence and respond to one’s accuser. That is indeed fundamental due process. But, the problem is that so far, this is still just an investigation. There is no right to present evidence to an investigator or to an investigative body. Presentation of evidence and witnesses occurs at the trial stage, not during the investigatory stage. Mr. Cipollone, an experienced trial lawyer, doubtless knows this.

As simple legal reasoning, Mr. Cipollone’s letter makes no sense. And, that is what happens when a lawyer allows the client to edit a letter.