The courts have struggled with the wording in Title VII for a couple of decades. Title VII clearly prohibits discrimination based on sex. Does that mean Title VII prohibits discrimination based on sex orientation? If an employer terminate someone because he is gay, how is that not discrimination based on sex?

The challenge is that the legislative history expressly says Congress did not intend for Title VII to apply to homosexual persons. But, sex is sex, right? I wrote about this challenge here, when the Fifth Circuit recently declined to stray from the decision in Oncale v. Sundowner Offshore Services, Inc., 523 US 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Oncale allows a plaintiff to proceed with a claim based on gender stereotyping. But, gender stereotyping will not apply to cases of explicit homosexual discrimination. Last Fall, the U.S. Supreme Court accepted two cases addressing whether “sex” really means sex, Bostock v. Clayton County and Altitude Express v. Zarda. In both cases, the employers clearly fired two employees due to their sexual orientation. See SCOTUS blog for more information here.

Perhaps, the best argument the employers can make is that the plaintiff’s case is best addressed by Congress. But, until Congress addresses it, the “sex means sex” argument will continue to persist.

SFC Javier J. Gutierrez was killed in Afghanistan last Saturday. SFC Gutierrez was a graduate of Burbank High School, where he participated in Junior ROTC. After graduating from high school in 2009, SFC Gutierrez joined the Army. His father, a Desert Storm veteran, had joined the Marines. The young Gutierrez had a stellar career in the Army. He went from the 82d Airborne Division to Special Forces. He was a Communications Specialist in the 7th SF Group. He had deployed before to Iraq.

SFC Gutierrez was bright and hard-working. He just came back to San Antonio this past Christmas with his wife and four children. They visited Kiddie Park and enjoyed a traditional Hispanic Christmas with the Gutierrez family, with tamales and pinatas. The senior Gutierrez explains that his son was humble about his achievements and experiences. He would talk about it quietly and calmly. And, he loved his country.  See San Antonio Express News report here.

How does a person show racial discrimination? Two ways come to mind: 1) a person must show he was fired and replaced by a person of a different race, or 2) show he was disciplined differently than persons of a different race. There is more to it than those two methods, but one of those two methods is essential. In Ross v. Judson ISD, No. 18-CA-269 (W.D.Tex. 12/19/2019), the plaintiff, African-American, argued that yes, she was replaced by an African-American initially, then by another African-American and then finally by a white person. As we might expect, the court did not accept her argument. Ms. Ross was fired after 18 years with Judson ISD. Anytime a person is fired after 18 years, we should get a little suspicious.

Ms. Ross also claimed that when the prior Superintendent, Dr. Mackey, left, things changed. Dr. Mackey, said the plaintiff, was seen as favoring African-Americans like Ms. Ross. When he left, certain officials at Judson started to take reprisals against high-ranking black employees, like Ms. Ross. She insisted this was the true reason for her non-renewal. One witness supported Ms. Ross’ claims. The witness said initially, certain officials planned to replace Ms. Ross with a white or Hispanic principal. But, to make things look better, they appointed an African-American principal on an interim basis.

But, the court noted that the third replacement, a white principal, was not made until three years after Ms. Ross’ termination. That time period was just too far for the court. The court noted that there is no caselaw or authority for the proposition that choosing a replacement to avoid the appearance of discrimination is itself discrimination. And that makes some sense. If an employer replaces a minority with a person of the same race to avoid the appearance of discrimination, that will indeed avoid the appearance of discrimination.

The plaintiff also claimed she was fired because she voiced support for naming a school after Dr. Mackey, an African-American. But, said the court, she could point to no proof that she did in fact express support for naming a school after Dr. Mackey at a board meeting. And, noted the court, there was no evidence to indicate the School District took reprisal against her for supporting renaming a school after Mackey. The plaintiff asserted various other theories of discrimination. But, as I have mentioned on this blog before, it is better to rely on just one or two good causes of action than to assert several. The several will often bring down the one or two good causes of action.


William Hurt plays a character, Thomas Tulley in the movie, The Last Full Measure. Near the end of the flick, MSGT Tulley admits that he felt this guilt when he discovered the body of his friend, William H. Pitsenbarger. Tully felt guilty because his first reaction at seeing the bullet riddled body of his mate was relief that it was not Tulley himself lying there. After the Viet Nam War, Tulley become close friends with Pitsenbarger’s parents. We see Pitsenbarger’s exploits and life through the eyes of a non-veteran, Scott Hoffman, a career bureaucrat in the Department of Defense.

To non-veterans, the guilt felt by MSGT Tulley probably seems trivial and perhaps, over-blown. But, for this veteran, it seems spot on. All of us combat veterans take away from the war these little nuggets of guilt. Those little moments when you were not perfect.

All through training, we are taught to place the needs of the unit above our own, to be selfless. In Infantry talk, we knew the worst thing was to be a buddy f***cker. That is the guilt MSGT Tulley is dealing with. For just a second, he was capable of f***cking his buddy. Just for a second. Yet, that second haunts Tulley all his life. Tulley was a young pararescue medic in that helicopter with Pitsenbarger. He was, just for a moment, glad Pitsenbarger went down into that jungle, so he, Tully, would not have to.

These are the things we bring home with us from the war. The knowledge that we are in the end, human.You can read more about Airman First Class Pitsenbarger here.

The Fifth Circuit has again applied a “pretext plus” formula to affirm a grant of summary judgment. In Harville v. City of Houston, Mississippi, No. 18-60117 (5th Cir. 8/16/2019), the City fired a deputy clerk. The City Clerk, Margaret Futral, testified that Mary Harville was an essential deputy clerk who worked on taxes. The Board of Aldermen made the decision to lay off Ms. Harville, saying the City was facing a funding shortage. The Board testified they believed working on taxes was seasonal, so they selected Ms. Harville, from among four deputy clerks for the layoff.

The plaintiff, however, countered that Ms. Futral testified that taxes were not a seasonal need. She was the City Clerk. She ought to know. But, the court pointed to one question in her deposition in which she was asked if the Board believed taxes were seasonal work. Ms. Futral’s answer was “You know, I don’t know. I guess they did. They said it.” The court found this ambiguous response showed that the Board believed the job was seasonal, even if they were wrong. The court did not explain how a City Clerk can speak for the entire Board. On re-hearing, the panel reached the same conclusion, that the Board sincerely believed, however wrongly, that Ms. Harville’s job was seasonal. If true, that seasonal rationale would present a non-discriminatory reason for the layoff.

But, the context here is summary judgment. The court should not be engaging in fact-finding. It should simply determine some minimal level of factual dispute. The plaintiff presented some evidence of pretext on the part of the employer. But, the Fifth Circuit is asking for something more than pretext. It is asking for pretext plus. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) specifically provided that showing the falsity of the employer’s explanation would require that the jury decide the case, not the judge. This decision in Harville betrays a fundamental lack of understanding of the Reeves decision.

See the initial Harville decision here and the decision on rehearing here.

When I did my twelve months in Iraq, I knew my law license was at some small risk. Even though I was in the Army in a non-lawyer role. I knew I could not lie or violate any law. Non-soldiers may not realize this, but in a war zone, there is some pressure to violate laws to win the war. My job in Iraq dealt with this money fund known as CERP. CERP money included hundreds of thousands of dollars. There was incentive to use that money for improper purposes, for everything from influencing local sheiks to funding some lieutenant’s holiday fund. My predecessor was threatened when he resisted one commander’s insistence on using CERP money for a favorite project. Sitting at my desk one day in dusty Iraq, I heard the JAG lawyer who sat behind me say she was not willing to risk her law license for some dubious proposition by a combat commander. The one thing no lawyer wants to hear: “I will not risk my law license for this.” I wanted to win the war, too. We all wanted to win the war. (Well, most of us anyway). But, not at the expense of my law license.

Yet, Pres. Trump’s lawyer appears willing to risk his law license. During the impeachment proceedings, Pat Cipollone has uttered falsehoods, things he has to know are false. Such as, he said no one other than Democrats were allowed in the SCIF when three House committees interviewed witnesses. He knows the Republican members and their staffs were in that same room asking their own questions of the witnesses.

Indeed, Pat Cipollone is a witness to the Ukraine shenanigans. He knows he is surely a witness. Yet, he is appearing in front of the Senate making his arguments. He must know someone, anyone can lodge a complaint against him with his local bar association. A lawyer cannot appear as an advocate if he is also a witness. Every lawyer knows this. That is Lawyer 101. The normal practice when a lawyer is a witness is for the opposing counsel to seek his dis-qualification. But, if no one seeks to have the offending lawyer disqualified, what happens? Who knows. It is the rare lawyer who will knowingly disregard ethical rules.

Mr. Cippolone supervises John Eisenberg, to whom several federal workers reported their concerns about Pres. Trump’s conduct. See Politico news report. Mr. Cipollone is a witness on so many issues. As I would say when I was in Iraq, no decision is worth my law license. Mr. Trump’s lawyer appears to feel differently.

So, what did Mr. Brodesky do when he considered Confederate memorials and what should be done with them? I previously wrote about his opinion piece here. He contacted this author. He interviewed me. He met with the ladies he mentions in his April 20 piece and listened and watched their slide show. The slide show recounts the history behind the Confederate memorial which formerly resided in our Travis Park. He met with Richard Brewer, a member of the Sons of Confederate Veterans. And, we know from his piece that he also spoke with Mario Salas, a well-known civil rights icon and former City Councilperson.

(Mr. Salas has justly earned a reputation for advancing civil rights in our city. But, his opinion is not representative of the city. He used to routinely refer to former Mayor Ivy Taylor as “Uncle Tom.” Regarding two Confederate markers formerly in downtown, he castigated their supporters as “Confederate Nazis” defending “racist history.” He referred to former Councilperson Joe Krier as a “political; scumbag” when Mr. Krier appeared at a black church seeking support for Mayor Taylor. According to Wikipedia, Mr. Salas believes American history is best explained by the Foundation Myth – in which history consists of lies, distortions, omissions and half-truths. The Texas Revolution was the first war for slavery. Etc., etc. Mr. Brodesky has chosen an unrepresentative person to represent the views of persons opposed to Confederate memorials in San Antonio).

Mr. Brodesky’s piece relates details about Mr. Brewer’s Irish immigrants. The piece also mentions Ms. Schimpff’s views on the causes of the U.S. Civil War. It appears in considering this public policy debate, what to do with Confederate memorials, Mr. Brodesky strayed into more personal issues with proponents of Confederate memorials. He delved into their views on other topics.

Not so with Mario Salas. At least according to Brodesky’s piece, the journalist confined his inquiry to Mr. Salas’ prior experience with the memorial in Travis Park. He tested Schimpff and Brewer, but not Mr. Salas. There is nothing to indicate Mr. Brodesky asked Mr. Salas for his views on veteran memorials or for his prior experiences with other veteran memorials. He appears not to have asked Mr. Salas if he opposed other veteran memorials. He appears not to have asked Mr. Salas if he has opposed other women designed monuments. He appears not to have asked Mr. Salas if he has opposed other historical monuments. These sorts of questions would at least relate to veteran memorials. Discussing a person’s view on the causes of the Civil War or another person’s views on discrimination endured by Irish ancestors do not directly relate to Confederate memorials or to veteran monuments.

In the discrimination lawsuit business, we call that disparate treatment. He treated the proponents different than he treated the opponents. He scrutinized the views of the proponents, but gave a pass to the opponent.

In a discrimination lawsuit, Joe Manager might scrutinize the job performance of a Hispanic worker and watch his time sheets very closely. But, regarding the Caucasian worker, Joe Manager gives him a pass. He does not look at the Caucasian worker’s time sheets at all. That is disparate treatment. The employer treats workers differently even thought their situations are comparable. Mr. Brodesky appears to have betrayed his bias, despite his professed intent to consider fairly possible options for Confederate memorials.

In a column last April. Josh Brodesky suggests the Confederate memorial which formerly resided in downtown San Antonio should be placed in a museum. In his April 20, 2019 piece, he questions the motivations of supporters of the memorial. Yet, even though his piece is ostensibly about the memorial, he never discusses the motivations of the persons who actually built the memorial. I previously wrote about the two women who conceptualized and designed the Travis Park memorial here. Mr. Brodesky’s opinion piece can be found here.

Mr. Brodesky takes some offense at remarks by Ms. Schimpff and Mr. Brewer. He does not say, but it appears he believes Schimpff and Brewer were insufficiently sensitive to the racism of the Civil War. He is clearly looking closely at the motives of Brewer and Schimpff. He tested Brewer and Schimpff and found them wanting.

But, he does not appear to have similarly tested the motives of Mario Salas in wanting the memorial removed. He simply points to Mr. Salas’ perception that he had found the memorial to be absurd and offensive. Did he ask Mr. Salas if it had ever considered that the builders of the Memorial might have been motivated by a desire to remember lost loved ones? Mr. Brodsky might have challenged Mr. Salas. But, if he did so, there is no indication in his April 20 piece. It appears Mr. Brodesky gave Mr. Salas a pass.

Mr. Brodesky conflated the motivations of the Southern soldiers, and perhaps even those of Brewer and Schimpff with those of the women who built that memorial. Mr. Brodesky’s piece is supposed to discuss the memorial, but it never actually discusses the motives of the builders.

I can sympathize. I did the same thing in my first discrimination lawsuit. Racism is not an easy thing to show in court. It is complicated. I have practiced employment law in San Antonio since 1991, with a couple of breaks for military service. In my first lawsuit, my client, African-American, had been fired by Manager Robert (not his real name). Manager Robert was good friends with two men who worked with my client. They would all visit in Manager Robert’s office, laugh and joke. The two co-workers would emerge from that office and joke about my client as that “pinche negro.” That was as good evidence of racist intent as we get.

But, I made a fundamental mistake in that lawsuit. I conflated the bias of the two co-workers with the possible bias of Manager Robert. There was no indication that Manager Robert had used that racial slur. So, on appeal, the great jurist, John Minor Wisdom, asked me the simple question, “what evidence did I have that Manager Robert had racial bias?” I forget my reply, but the answer was none. Just as Mr. Brodesky has conflated racial intent on the part of Southern soldiers with alleged racial intent of the women who erected the Travis Park memorial.

Did those ladies have racial intent? Some historians say yes, since most white Southerners had racist intent in those days in 1900. But, as Judge Wisdom would ask, what evidence is there of that racist intent? This is a more difficult question since all the women who raised that $4,000 in the late 1890’s had lost loved ones in the war. How can Mr. Salas and Mr. Brodesky conclude those women were motivated only or primarily by racial intent, if they all lost loved ones?

The designer of the memorial was Virginia Montgomery. Her father was lost some years after the war. He just disappeared from public record. But, it is clear he could not hold a job after the war. Jenny’s family – as she was known – was scattered to the four winds after John Montgomery’s death. Jenny Montgomery portrayed African-Americans in everyday life, a rare subject for white artists in the 1920’s era South. How can Mr. Brodesky and Mr. Salas be so certain those women were motivated by Jim Crow? Mr. Brodesky trades in stereotypes, when he should be showing us evidence. Evidence of the builders, not the friends.

But, neither Mr. Brodsky or Mr. Salas are veterans.

So, there will be an impeachment trial in the U.S. Senate starting next week. Chief Justice Roberts will preside over the trial. What does that mean to “preside”? In a normal trial, the judge would rule on disputes about evidence. He would admit or not admit evidence. At the end of the trial, he would tell the jury what the law is regarding the lawsuit or crime. None of this applies in an impeachment trial. Justice Roberts’ role is prescribed by the Constitution, Art. I, Sec. 3. But, the Constitution provides no details.

In the first impeachment trial in 1868, Chief Justice Chase essentially insisted on more than a ceremonial role. He insisted that he could rule on admissibility of evidence and on reliability of witnesses subject to being overturned by vote of the Senate. The rules in an impeachment trial are the Senate rules. There are no rules of evidence or rule of procedure. At the 1998 impeachment trial, Chief Justice Rehnquist accepted a more limited role. But, he did rule on one issue. One of the House managers referred to the Senate as “jurors.” Sen. Harkin objected that they were more than just jurors. Chief Justice Rehnquist sustained the objection, saying the Senate was also the court.

This upcoming trial finds Chief Justice Roberts in more lime light than he prefers. Pres. Trump routinely criticizes judges as partisan. He readily criticizes a ruling because it was issued by an “Obama judge.” I wrote a post here about Pres. Trump’s regular attacks on the judiciary. It really is extraordinary that the President would attack judges so publicly. Decorum in any court hangs by a thread. That thread hangs on the belief that judges are above partisanship. Yet, the Chief Executive of the country punctures that belief every day.

Chief Justice Roberts has been public in his defense of the federal judiciary. In 2018, Roberts responded to a Presidential criticism. The chief justice insisted  there are no Obama judges, no Bush judges, no Clinton judges. There are only dedicated judges trying to do their level best to do equal right to persons appearing before them. See NPR news report here and New York Times report here for more information.

It will be interesting to see if Chief Justice Roberts will be more involved like Chase or or more reserved like Rehnquist.

Alex Jones and InfoWars provide a good lesson in how not to conduct a lawsuit. Alex Jones and InfoWars are being sued for making false claims that the Sandy Hook Elementary school massacre was not real. One of the parents of the murdered children, Neil Heslin, sued Mr. Jones for defamation in Travis County, Texas. Another lawsuit is pending in Connecticut. The Texas judge, Scott Jenkins recently issued sanctions against Mr. Jones and InfoWars. Judge Jenkins sanctioned the Defendants for sending a corporate representative to a deposition who could not testify to a critical issue, on what basis did Alex Jones and InfoWars claim the Sandy Hook parents were “crisis actors.” The Defendants also failed to preserve many social media posts regarding its frivolous claims about the Sandy Hook shooting.

Among the violations cited in Plaintiff’s motion (Cause No. D-1-GN-19-004651, Travis County) for sanctions:

  • the Defendants failed to issue a litigation preservation hold until a year after the lawsuit had been filed
  • the Defendants failed to preserve relevant videos
  •  the Defendants destroyed tens of thousands of emails
  • Mr. Jones fired his lawyer the evening before he was to be deposed
  • Before the corporate representative testified in his deposition, he admitted he essentially did nothing to prepare for the deposition. He spoke with no InfoWars employee other than Mr. Jones. Yet, this was a deposition in which he was expected to testify about critical issues.
  • In answer to an interrogatory asking Mr. Jones for his sources for 18 different claims about the Sandy Hook massacre, he simply responded various news sources. But, in his deposition, he said he did not recall the sources, but if he had known to look, he could have found the sources.
  • And, the same Defendants were previously sanctioned in three earlier lawsuits.

It is remarkable that the plaintiff submitted a very detailed 47 page motion for sanctions. While the Defendants responded with a six page response that did not respond to many of he allegations in Plaintiff’s motion. Alex Jones and InfoWars are clearly engaging in dilatory tactics.

State court judges do not issue sanctions lightly. One could say, and I have said this many times, that it is very difficult to get sanctions in state court. That Judge Jenkins issued sanctions indicates Alex Jones and InfoWars have disregarded the rules of civil procedure several times. The judge sanctioned the Defendants $65,825. The judge also sanctioned the Defendants another $34,323 on the same day. All this just due to discovery issues. Trial is still a long way away. It appears Alex Jones and InfoWars are not taking this lawsuit seriously. See Daily Beast report here.

And, this all comes just a few months after the Defendants sent child porn to the Plaintiff as part of its discovery documents. The Defendants claimed an internet troll sent the porn. But, it certainly shows negligence or incompetence on the part of the Defendants.