Depositions are usually pretty mild. But, sometimes they include some drama. Jonathan Langley sued IBM for age discrimination. He alleged that a reduction in force was used to pare the number of older workers. At his deposition, he relied in part on some documents given him by current employees of IBM. These documents included slides from a “high level” presentation made to decision makers. During his deposition, he was asked to provide the names of the employees who leaked the documents. Mr. Langley refused to provide names, knowing they would be subject to reprisal.

IBM then filed a motion to compel his answer to that question. It also sought sanctions against the employee for refusing to answer the question. The employer argued that knowing the source of the information was essential to its defenses. IBM argued that it was important to know if the leakers uttered the information themselves. The Court rejected that argument., The court noted that IBM did not contest the authenticity of the documents. It found that IBM could easily find out who wrote the slides if it wished. The court saw no relevance of the identity of the leakers to any defense.

In conclusion, the court noted that IBM was on “thin ice” already due to discovery issues. IBM, said the court, had not cooperated fully during discovery. The employer also could have contacted the plaintiff lawyer prior to the deposition, noting that it would ask for the identity of the leakers. Instead, the employer waited to surprise the plaintiff and his attorney at deposition. The court was also troubled by the fact that IBM had yet to produce the offending documents themselves. See the decision in Langley v. IBM, No. 18-cv-433, 2019 WL 1559146 (W.D. Tex. 4/10/2019) here.

The documents are described only in general terms. They were filed with the court under seal. So, they were apparently sensitive documents. Yet, they were also relevant, or the court would have said so. So, the failure of IBM to produce them is stark. It is an old axiom that one cannot come into court seeking equity (i.e., sanctions) if one has not acted with equity. The court was troubled by IBM’s conduct. Technically, a lawyer cannot instruct his client to refuse to answer a question based on lack of relevance. But, I expect the Judge was annoyed with IBM’s conduct throughout the litigation, including hiding these sensitive, but relevant documents.

Too, asking for the names of current employees who have provided help to a former longtime employee is a very sensitive topic. It is likely the leakers would suffer some reprisal for their conduct. The court had to know this. The IBM lawyers clearly wanted to apply the greatest amount of pressure they could at the plaintiff’s deposition.

 

Many employers in Texas are trying to save a few dollars by carrying their employees as independent contractors. As an independent contractor, the employer need not provide medical benefits or other types of benefits. But, as an independent contractor, the injured employee can sue the employer for tort injuries. In Stevenson v. Waste Management of Texas, Inc., No. 14-17-00433 (Tex.App. Hou. 2/21/2019), the employer tries to have it both ways. Waste Management wants employee status to avoid a tort lawsuit, yet an agreement provides that the worker was an independent contractor.

The employee was hired by a staffing company. The staffing company then sent the worker to Waste Management. The agreement between Waste Management and the staffing company clearly said the worker was an independent contractor. Yet, the agreement implied the worker had no right to control how he performed his work. The lower court granted summary judgment regarding the negligence claim, finding the worker was an employee. The Houston Court of Appeals reversed that decision.

The higher court found the agreement was not the determinative factor regarding the worker’s status. It was one factor. Some deposition testimony supported the contention that once the worker was on the premises of Waste Management, Waste Management controlled his work completely. There were some workers which Waste Management said could not return to work. In effect, Waste Management fired them. But, other deposition testimony supported the claim that the worker was an independent contractor. The Court of Appeals found this was not an appropriate issue for summary judgment. Whether the plaintiff was an employee should be decided by the jury. See the decision here.

Mandatory arbitration agreements have become very common in a wide variety of jobs. Typically, the newly hired employee signs a raft of documents, one of which may include an arbitration agreement. Often, the employee has no recollection that s/he signed an arbitration agreement. One plaintiff attorney, recognizing that the employee may not know whether he signed an arbitration agreement, sent a pre-suit letter to the former employer asking if the employee signed a mandatory arbitration agreement. The lawyer’s letter provided that if the employer did not respond within one month with a signed arbitration agreement, then the plaintiff would file suit in state court. The plaintiff would presume that if there was a mandatory agreement, then failing to provide it would constitute assent to a lawsuit field in state court.

The employer did not respond. Neither did it provide a signed mandatory arbitration agreement. Yet, it moved to compel arbitration. So, was the plaintiff lawyer’s letter a new agreement which essentially overrode the mandatory arbitration agreement? Yes, said the Fourth Court of Appeals in San Antonio. In Adcock v. Five Star Rentals, No. 04-17-00531 (San Antonio App. 4/18/2018), found that the pre-suit letter amounted to an agreement to proceed in state court with this employment related lawsuit. The court noted that the lawsuit commenced, and written discovery was propounded. It was not until the employer noticed the mandatory arbitration agreement when producing documents that it invoked arbitration. The lawsuit was six months old at that point. But, the court did not rest on the possibility that the employer may have invoked arbitration too late. It found the parties entered into a new agreement when Five Star did not provide a copy of the mandatory arbitration agreement.

See the decision here.

 

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Saenz had a huge laugh and a booming voice. He laughed a lot.

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did best, serving others.

We should all serve our country half as well as 1SGT Saenz. There is a nice tribute to 1SGT Saenz here. As John Bear Ross mentions on his website, do not mourn that a man like 1SGT Saenz died. Rejoice that a man like 1SGT Saenz lived.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here. Like many of us, he returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, we remember the fallen – but not the Confederate fallen. They were removed from the list a few years ago.

Once again, the President has attacked a federal judge, claiming the judge is based. Judge Amit Mehta found that it was “simply unfathomable” that a Congress that is constitutionally authorized to remove the president cannot investigate that that same president. The judge was denying a request from the White House to stop a subpoena to Pres. Trump’s accounting firm for his financial records. It ought to be self-evident that a body that can remove a president from office can also investigate that president. See CNN news report. But, Pres. Trump is one of the most litigious presidents we have ever had. He has often pursued frivolous legal theories.

And, as he has been doing since 2016, he again attacks Judge Mehta saying he is biased because he was appointed by Pres. Obama. After 20 plus years dealing with that same judiciary, I can say with some authority that yes, who appoints a particular judge does give some clues to how that judge may rule. But, that possible political leaning never works 100% or even 90% of the time.

More importantly, a person of reponsibility like the president should never engage in acts which undermine the judiciary. These attacks on the judiciary have become a running theme in the ABA Bar Journal. That concern reflects the concern for all judges that their authority is often tenuous. In the courtroom, there can be 30 criminal defendants and just one or two bailiffs. What keeps folks in line is often the perception of authority. If we lose that perception, then the safety of many judges is placed at risk. Responsible persons do not talk that way about judges.

In 2002, in reaction to the Enron scandal, Congress passed the Sarbanes-Oxley Act. The Act protects whistleblowers who report violations of securities regulations regarding accurate reporting. See National Whistleblower Center post regarding the act here. There was a whistleblower at Enron who did try to report the violations of securities regulations. And, here in San Antonio, we see a Sarbanes Oxley whistleblower who was fired by Spectrum. Hether McCullar has filed a federal lawsuit saying Spectrum fired her after she tried to tell management they were mis-classifying renewed accounts as completely new accounts. It looked better to have new accounts than to record simple renewals. Ms. McCullar tried to tell her supervisors this mis-classification was occurring.

The result of the mis-classification was to overstate the number of renewals. The number of renewed accounts would then appear on the mandatory SEC filings.

In response, alleges the employee, the company took away from Ms. McCullar a valuable account, the HEB account. The account was given to another sales executive in Austin, despite the fact that Ms. McCullar was here in San Antonio. Months later, Ms. McCullar was given a final warning, even though she had never received any prior written warnings. The final warning appeared to link her report of mis-classification to some sort of policy violation.

Spectrum later fired Ms. McCullar with no reason. See San Antonio Express News report here. Yes, at least based on these allegations, that does indeed sound like a whistleblower claim.

 

 

California started a new rule requiring lawyers to submit finger prints to the bar association. All lawyers receive a background check when they first apply to the bar association in most states. But, what happens after admission to the bar? Do lawyers generally stay clean? Well, so far the California Bar Association has learned of 2200 convictions which were unknown to the bar. Among those are 20 previously unknown felony convictions. Ooops. See ABA Bar Journal report here.

One thing an employer must not do when an employee files an EEOC charge is to seek criminal charges against that employee. Yet, that is exactly what the San Antonio area Precinct 2 Constable has done. Constable Michelle Barrientes Vela has tried to persuade the District Attorney to prosecute Leonicio Moreno for tampering with a government record and aggravated perjury. Deputy Moreno filed a couple of EEOC charges. Constable Vela believes Deputy Moreno filed a false EEOC charge, so she wants to prosecute him for submitting false complaints. ….  ummm, hello. That is what a lawsuit is for, to determine truthfulness of allegations.

The District Attorney, Joe Gonzalez, has wisely declined such a prosecution. Deputy Moreno accused Constable Vela of harassing him on the basis of gender. Deputy Moreno claims he rebuffed sexual advances by the Constable and has suffered retaliation because he rejected her. And, how does the Constable react to these charges? By trying to relaliate further, it seems. See the San Antonio Express News report here.

The courts have been struggling with the meaning of “sex” in Title VII for a couple of decades. Title VII prohibits discrimination based on “sex.” Does that include discrimination based on sexual orientation? In Oncale v. Sundowner Offshore Services, Inc., 523 US 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), the court tried to walk a tightrope and found that stereotyping a person based on gender was prohibited by  Tile VII, while discrimination based on sexual orientation was not. The problem was that Title VII was passed in 1964. It is clear from the public record that Congress did not intend to protect homosexual persons from discrimination when it passed Title VII. But, society has changed. Now, most folks recognize some protection is needed. And, it just makes sense that “sex” means “sex,” not some forms of sex, while excluding other forms of sex based discrimination.

In Wittmer v. Phillips 66 Co., 2019 WL 458405 (5th Cir. 2/6/2019), the issue returns to the Fifth Circuit. The court chose to follow its precedent from 1979, Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) and hold that Title VII does not apply to sexual orientation. The Court noted that three courts of appeal have found that Title VII does protect discrimination based on sexual orientation. But, the court tried to avoid the subject by finding that the plaintiff did not make out a prima facie case of discrimination anyway. Even with this narrow holding, the panel of three judges produced two concurrences.

Judge Higginbotham concurred saying that the decision need not re-affirm the holding in Blum. Judge Ho wrote a much longer concurrence, arguing that we should look at the meaning of  “sex” in 1964, not what it might mean today. In Judge Ho’s view, “sex” in 1964 meant biologically female or male. To an average person in 1964, “sex” would not include sexual orientation. The judge asks the reader to return to the meaning of “sex” to its meaning in 1964. If Judge Ho relied on some evidence for his view that “sex” meant different things than it does today, he did not indicate what evidence that would be. His concurrence includes no actual evidence that the word has taken on a new meaning, today.

Judge Ho tries to apply “originalism” thinking to his opinion. But, in the end, there needs to be some evidence for his belief that the meaning of “sex” has changed since 1964. It seems to me he is trying too hard to reach a particular result. There is value in using “originalism” when looking at laws written 200 years ago. It has much less utility when the statue being discussed is just some 55 years old. See the decision here.

A woman who sued Southwest Research Institute was awarded $410,000 by a federal court jury here in San Antonio. The jury found in her favor. I previously wrote about her case here. It was a remarkable case. She was fired within just a few days after she filed a complaint of discrimination with the EEOC. Ordinarily, that would appear to be a strong case of retaliation. I noted then that the employer’s case appeared to be weak. It seems the jury agreed. The case is styled Johnson v. Southwest Research Institute, No. 15-CV-297.

SWRI fired her after 12 years, saying she failed to keep accurate time keeping records. But, it is hard to believe that after 12 years, she still had not figured out how to keep track of her hours. Texas Public Radio says she was awarded $410,000 in lost wages, pain and suffering and damages to her career. See TPR report.