The ADA Amendments Act was passed in 2008 and became effective in 2009. Only now are we seeing cases interpreting those important changes. One significant change concerns the “regarded as” claim. The old ADA protected persons who were fired because they were “regarded as” disabled. But, the old ADA also required that to merit that protection, the person had to suffer from an actual impairment. That ruling meant many persons in the early stages of an illness or impairment were not protected. Their disability simply had not progressed far enough. So, the ADA Amendments Act broadened the requirement of “regarded as” to also include persons who were simply perceived as impaired. The ADAAA removed the requirement that a person suffer from an actual impairment that limits a major life activity.

In Mesa v. City of San Antonio, No. SA-17-CV-654 (W.D. Tex. 8/16/2018), the Court addressed a critical component of this new “regarded as” claim. How serious does the impairment have to be before the impairment can become the subject of a “regarded as” claim? In Mesa, the worker suffered from a shoulder injury. He recovered from that shoulder injury within eight days. In moving for summary judgment, the employer argued that the condition was “transitory and minor.” The ADAAA provides that the protections of the “regarded as” claim do not extend to conditions which are transitory and minor. The court in Mesa first addressed the question regarding who must show that an impairment is transitory and minor. The court reviewed the pertinent regulations and found this status to be a defense, so the burden lay with the defendant to show a condition was transitory or minor. So, in moving for summary judgment, the employer must show no genuine issue of material fact regarding the status of transitory and minor.

The Act defines an impairment as one which lasts six months or longer. Mr. Mesa’s condition apparently lasted less than six months. But, what is “minor”? The court noted that the employer focused on the wrong analysis in its motion for summary judgment. The employer argued in its motion for summary judgment that there was no evidence that any person at CPS Energy, the employer, viewed Mr. Mesa’s impairment as anything but transitory and minor. That was the wrong inquiry, said the Court.

The proper question was whether the employer believed the employee had an impairment which objectively could be viewed as transitory and minor. That is, was the employer aware of an impairment, which objectively could constitute a brief illness or injury? The court was saying that the employee must show not that the employer viewed the health condition as transitory and minor, but must instead show 1) that the employer viewed the impairment as a particular diagnosis, 2) which objectively may last longer than six months or is otherwise not minor.

The court engaged in detailed review of the facts and noted that CPS Energy took actions which did show they believed the employee had a shoulder injury which persisted, even after apparent treatment. They required him to take a fitness-for-duty examination, for example, even after receiving a medical report. Management also considered requiring the employee to undergo an MRI. Management took several steps even after initial assurances of his recovery. And, as the court noted, the employee was removed from work via an ambulance when the injury first occurred. All those facts suggest an impairment which was something more than minor.So, even though the condition may have lasted less than six months, it was something more than minor.

The court then noted that shoulder injuries as a matter of course, are unpredictable. It found that the plaintiff had presented adequate evidence to show genuine issue of fact whether the injury was not “minor” and whether he had been placed on unpaid leave due to his perceived injury. See the decision here.

If it was not so serious, the story in Tarrant County, Texas would be humorous. A small community near Ft. Worth has a City Councilman who is Muslim. Shahid Shafi has served as a Republican Councilman in Southlake since 2014. He is a doctor. He has served as delegate to state Republican conventions. In July, 2018, he was appointed vice chairman of the Tarrant County Republican Party. Within days of that appointment, a couple of precinct chairs have sought his removal. Dorrie O’Brien and others believe Dr. Shafi represents an attempt by the Muslim Brotherhood organization to infiltrate the Republican Party. Based on no evidence, these precinct chairpersons believe Dr. Shafi seeks too impose the dreaded Sharia law in Texas (and the hordes will multiply!) and that he has some unspecified connection to Jihadi groups. I previously wrote about this story here.

In Facebook posts, Ms. O’Brien has complained often about his appointment as Vice-chairman. She has offered no evidence, says the Texas Tribune, of her assertions about Dr. Shafi. Ms. O’Brien and another precinct chair, Dale Attebery, have asked an anti-Muslim activist, John Guandolo, to come to Tarrant County and conduct training on the dangers of Sharia law. His training will occur on Dec. 29. A vote regarding Dr. Shafi will be held on Jan. 10, 2019. See Texas Tribune story here.

Dr. Shafi came to this country from Pakistan. He has been here 29 years. He says the Republican Party’s belief in small government appeals to him, especially after coming from a country like Pakistan. Leading Republicans in the state have affirmed their support for the doctor. It is ironic that the Muslims who come here are probably the ones most familiar with the horror of actual jihadis. Persons like Ms. O’Brien are attacking the wrong Moslems.

As I have mentioned here, I am continually appalled at the bigotry applied to persons who happen to be Moslem. It is comparable to blaming Presbyterians for acts committed by Methodists. Yes, they are all Moslem, but within the very large Muslim faith, there are infinite variations of adherence to one’s faith and one’s interpretation of that faith. It is silly to generalize all some 1.5 billion Moslems based on the actions of some hundreds in Iraq and Afghanistan. That sort of ignorance would be laughable, were it not so serious.

In a Harris Poll survey a few years ago, researchers found that 20% of hiring managers have asked unlawful questions in interviews. They asked these unlawful questions not realizing at the time that such questions could lead to legal liability. CareerBuilder commissioned the survey. A CareerBuilder representative said an interviewee who is asked these sorts of questions could decline to answer. If the hiring manager insisted on an answer, then that insistence suggests this might not be a good place to work. Those questions include:

  • What is your political affiliation?
  • What is your race, color, or ethnicity?
  • How old are you?
  • Are you disabled?
  • Are you married?
  • Do you have children or plan to?
  • Are you in debt?
  • Do you social drink or smoke?

Some of these questions are clearly unlawful. But, I do not see a legal problem in asking someone if s/he smokes or drinks. And, just to remind my readers, these questions only become an issue if some adverse personnel actions develops later for which there is no good, objective rationale. The best defense to a lawsuit or complaint remains simple: document problems and base that documentation on objective reasons.

Lawyers are not supposed to make things worse for their clients and we definitely are not supposed to wager our law licenses on a particular outcome.  Yet, in the Paul Manafort legal melodrama, that seems to be exactly what has occurred. Paul Manafort entered into a plea bargain agreement with the Special Prosecutor, Robert Mueller. Yet, at the same time, his lawyers also talked with the Trump legal team. Rudy Giuliani said the Manafort lawyers discussed the Mueller probe with Trump’s lawyers. They gained valuable insights, added the former New York City mayor. That is a remarkable admission.

Mr. Giuliani said the Trump lawyers “grilled” Kevin Downing, lawyer for Mr. Manafort, about whether the President knew about the 2016 meeting with the Russians at Trump Tower. See Axios report. And, in fact, that was one of the areas of questions posed to the President by the Mueller team.

Mr. Manafort’s lawyers engaged in those discussions with persons who could grant Manafort a pardon. That suggests the Manafort lawyers were motivated by a desire for a pardon. That suggests the President and his legal team may have suborned perjury. Suborning perjury means to bribe or somehow induce a person to commit perjury. It is a crime. Legal experts have expressed surprise that the lawyers for Manaofort and Mueller would put their law licenses at risk that way. See The Hill news report.

And, of course, at about the same time as all this information emerges, Pres. Trump said he would not rule out granting Manafort a pardon, making it clear a pardon was possible. The president has in effect dangled a dog bone of a pardon before the panting Manafort. Yet, Pres. Trump’s lawyers must realize how that looks. A good prosecutor, even one without the competence of Bob Mueller, would almost certainly look into what was said between the Manafort and Trump legal team. As a class, us lawyers hate to become witnesses. As a witness, we become burdened with a conflict of interest and must withdraw from the legal matter. The lawyers for Pres. Trump have remarkably exposed themselves to legal liability on so many levels. They have likely made themselves witnesses to possible perjury.

Regardless of what was actually discussed, these developments have opened the door to deeper, more extensive investigation. Like doctors, lawyers are expected to if nothing else, do no harm to your client (or to your law license). Yet, these lawyers appear to have done exactly that, harm to the President’s case and to their own law licenses. This is a bizarre turn of events.

 

In every civil lawsuit, we have this process known as “discovery.” One side can ask the other side for the evidence or potential evidence it possesses. For the discovery process to work, there must be some minimal level of cooperation between the two sides. That requirement allows some room for unscrupulous lawyers to ignore or manipulate the discovery process. In one discrimination lawsuit in Massachusetts, that is exactly what happened.

The plaintiff’s lawyer ignored the written discovery. He then ignored two notices of deposition. The defense lawyer traveled from Massachusetts to Cleveland to depose the plaintiff, but the neither the witness nor the attorney appeared for the deposition. Only then did the plaintiff lawyer tell his client what he had been doing. In preparing the plaintiff for his deposition, he told him to lie and say he had been told by his lawyer about the two prior deposition settings. Unknown to the lawyer, Steven Jerome Moody, the plaintiff recorded the conversation. The client was offended that he was asked to lie for the lawyer. Someone filed a complaint with the Ohio Bar association.

The Ohio Bar Association suspended Mr. Moody’s license indefinitely. The lawyer claimed he was transitioning from a paper office to paper-less and had missed entering some entries into his cell phone. He said he was “puffing” to bolster his client’s confidence. The bar association and the Ohio Supreme Court did not believe him. Among Mr. Moody’s comments to his client:

  • “She sent me an interrogatory, request for production of documents, I completely ignored her ass for a few months. And I made her file a motion to compel, and then I called her and said, oh, yeah, I’ll get them to you in two weeks. And then I completely ignored her ass again.”
  • “She’s an arrogant bitch, okay?” and, “I made that bitch fly into town” for the missed deposition.
  • “Obviously, you know, you don’t want to discuss that I played a game with her, you know. But that’s basically it.”
  • “She might ask you, do you know that your attorney didn’t send any discovery, do you know that you were supposed to be here on, whatever the—she had one or two dates. Did your attorney tell you that you were supposed to be present for those depositions? Yes.”

Of course, lawyers are expected not to lie. Perhaps, it needs to be said that we also cannot ask our clients to lie for us. See ABA Bar Journal report for more information.

It is extremely rare for a Chief Justice of the United States Supreme Court to fuss at the President. Yet, that is what Chief Justice Roberts has done. Pres. Trump complained that an “Obama judge” ruled against him. The next day, Chief Justice Roberts said we do not have Obama judges, Bush judges, or Clinton judges. Instead, we have an independent judiciary for which we should all be thankful.  The Chief Justice was trying to tell the President that these frequent attacks on judges makes it harder for judges to remain independent. But, the same day, the President responded, indicating he was not impressed by the Chief’s comment. See CBS news report here.   

It is not unusual for litigants to a lawsuit to complain at the end of an unsuccessful trial that they lost due to the judge. But, for the President to say that is very irresponsible. An important element of democracy is the rule of law. The rule of law replaced the rule of men centuries ago. Perhaps, every few generations, we have to re-learn that lesson.

There are some fundamental requirements in United States jurisprudence. There are some things we just do not do as a matter of fundamental due process. One of those things we do not do is ask minors to make important legal decisions. Yet, that is exactly the slippery slope upon which the Trump administration has embarked. A five year old Honduran who as seeking asylum was separated from her grandmother. She was then asked to sign away her right to a bond hearing. The ABA Bar Journal is relying on a New Yorker magazine article for the story.

Helen arrived in Texas with her grandmother, Noehmi and her teenage uncle, Christian in July. The Trump administration had supposedly ended the practice of separating children from their families weeks before Helen arrived. Yet, Helen was separated from her family.

All immigrants have the right to a hearing to determine whether they are entitled to bond. If the court finds they are likely to appear for their hearing, then the court allows them to post bond and go free until his/her hearing. Little Helen checked the box indicating she wanted a bond hearing. Later, someone handed her a form, with adult language and in English, asking if she wanted to waive her right to a bond hearing. The form was checked that she wished to withdraw her request for a bond hearing. Her signature appeared in typical kindergarten scrawl, just one word, “Helen.” There was no last name.

In Texas, the age at which one may enter into a contract is 18. But, in reality, many businesses require an older age, 21. My son cannot rent a car in his own name until he turns 21. Five years old is definitely below the minimum.

The age of consent affects countless areas of law, everything from marriage, to a driver’s license to voting. It is, or was, a fundamental precept of American law. See the ABA Bar Journal report here.

Later, Noehmi and Christian were re-united. But, at the hearing, the immigration judge and the Department of Homeland Defense lawyer did not appear to realize Helen existed. The lawyer for Noehmi and Christian tracked down Helen and found her. Helen was returned to her family on Sept. 10, 2018. But, now, she is afraid to go to sleep at night for fear her family will leave her in the night.

It is safe to say no one ethnic or religious group has a monopoly on patriotism. Yet, some Republican precinct chairs in Tarrant County believe just the opposite. Some Tarrant County Republican precinct chairs are trying to remove Shahid Shafi as Vice Chairman of the GOP party in Tarrant County. The chairman, Darl Easton, appointed Mr. Shafid to the post last Summer. Some Republicans have been trying since August to remove Mr. Shafid. Said one of the leaders, Dorrie O’Brien, “We’re patriots who don’t allow jihadists to play in the fields of the Lord.”

In August, some members of the board posted messages on social media claiming Mr. Shafid did know what sharia was, even though he would claim otherwise. They claimed he is a practicing Moslem. (Oh no!)  Many Republicans in Tarrant County oppose the move. Mr. Easton has rightly noted this is pure religious discrimination. Mr. O’Brien insists they did not oppose Mr. Shafid because he is Muslim, but because they oppose the global jihad to conquer nations and make them subject to sharia law. See Ft. Worth Star Telegram report for more information.

Ok, I get that. We should all oppose jihadis who seeks to impose anything on unwilling persons. I served in one war to help stop them from killing people in Iraq. But, what does global jihadism have to do with Dr. Shafid? He is a doctor in Southlake and sits on the City Council there. Somehow, I doubt he has spent time in the forces of ISIS or Al Queda…….

 

We often hear about the Magna Carta and how that great document eventually led to our Declaration of Independence. But, what was the Magna Carta all about? In 2015, San Antonio’s own Prof. Vincent R.  Johnson at St. Mary’s Law School wrote a nice piece about the Magna Carta. He explained in his article what was so new and ground-breaking about the “Great Charter.”

One of the problems with the Magna Carta, he explains, is that it is not organized by topics. One must study the whole document to understand it.

One of the first topics Prof. Johnson mentions is due process. The bad King John would frequently take action “by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.” In some cases, noblemen were deprived of their estates not by their peers, but entirely by Crown nominees. So, Clause 39 states: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Without due process, nothing else matters. No right can be protected without due process. This clause ensured the king could not seize property aided and abetted by his cronies.

Today, we often cite the Magna Carta as the basis for trial by jury. Prof. Johnson explains that some historians disagree. Clause 39 refers to judgment by one’s equal peers. But, one historian says the “judgment” refers to the initial decision regarding how trial would be conducted. The jury of peers would decide whether trial would be by ordeal, by hot iron or by water, compurgation, wager of law, trial by battle, or production of charter. Judgment, according to this view, did not refer to the final decision, but to the method to reach that final decision. The men of the time believed that God would render the final decision after one of these trial methods.

“Compurgation” refers to the medieval practice of of allowing the accused to swear an oath regarding his innocence. The accused would then need an oath from a certain number, often 12, other persons saying they believed the oath of the accused person.

But, added the professor, regarding a dispute between then King John and King Alexander of Scotland, the Magna Carta provided that a dispute over hostages should be resolved by judgment of his equals in “our court.” So, at least when trial by combat or by ordeal was not possible, the signers of the Magna Carta believed that trial by peers was the solution. So, suggests Prof. Johnson, some portions of the Carta did indeed refer to the trial itself, not simply the means by which trial would be conducted.

Clause 39 also presented a new form of evidence. It required that in the future, no official shall place a man on trial upon his own unsupported statement. He must produce credible witnesses to support his own “official” assertion. Officials at the time were generally lords. So, this clause removed from the lords the power to imprison a common man simply on his own, unsupported word.

A well-known provision, Clause 40 provides simply, “To no one will we sell, to no one deny or delay right or justice.” In a time when the Catholic Church would routinely “sell” dispensations, many judges were bribed to rule one way or the other. This provision set a new standard, by which justice was (mostly) not for sale. We take judicial independence for granted today, but once, that was not so.

Clause 36: “In [the] future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs.” The writ of inquisition allowed a criminal defendant to avoid or delay trial – which was often trial by combat. Some call trial by combat “legalized private revenge,” because the accuser could exact the combat. The writ of inquisition involved a procedure in which one’s neighbors could could exonerate a defendant. The writ, however, was used as a revenue device by King John and was sold only to those with deep pockets. Making this writ freely available decreased the numbers of trials by combat.

The Magna Carta addressed proportionality in sentencing. Clause 20  provided. “For a trivial offense, a free man shall be fined only in proportion to the degree of his offense, and for a serious offense correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein (a feudal tenant) the implements of his husbandry, if they fall upon the mercy  of a royal court . . . ” The goal was to not reduce a criminal to beggary. There were similar provisions for earls, barons and clergy. The concept, which was new at the time, was to make punishment “fit the crime.” We see this concern still resonating on our modern time when some seek reforms regarding bail. Bail for misdemeanors often result sin persons staying in jail for months before they see a trial.

Widows could be married to any man willing to pay the going rate. The payment would be made to the widow’s feudal overlord. But, some widows were wealthy enough to outbid suitors and buy a charter guaranteeing she would not have to remarry. King John did a fruitful business in selling these charters to women who wished to marry their own choice, or not remarry at all. Clause 8 provides, “No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without consent of whatever the lord she may hold them of.” This provision created new legal rights for women. This was not true freedom, but it was a step.

Clause 1 was addressed “TO ALL FREE MEN OF OUR KINGDOM.” Clearly, the rights in the Magna Carta were guaranteed to all free men, meaning not to vassals and the like. Clause 40, which guaranteed access to justice, was not limited to free men. It simply said “to no one will we sell, to no one deny or delay right or justice.” So, Clause 40 was much broader in scope than just the free men. And, Clause 60 asked that regarding all these rights, “let men of our kingdom . . . observe them similarly in their relations with their own men.” Clause 60 then expressed the hope that these rights would be extended by the free men to to those not free.

The treatment of debtors was addressed. Clause 9 provided that the King would not seize any land or or rent in payment of a debt, so long as the debtor had movable goods with which to pay the debt. That means the creditor could not seize land when smaller goods would suffice to pay the debt. That provision provided some protection in an agrarian society, so the debtor could still earn a living.

The Magna Carta was not a perfect document. But, it was ahead of its time. The protections afforded the common free man far surpassed that found in other countries of the time. It was to these protections that the Founding Fathers looked in 1776.

As I have mentioned here before, I served 12 months in Iraq during the Iraq war. It was one of the most wonderful experience of my life – except when it was not! ….   Seriously, it was a searing and very positive sort of experience, overall. The big fear in the war was the IED’s, also known as roadside bombs. A large IED, and by the time I was there in 2005-2006, most IED’s were large – a large IED would obliterate a HMMWV. One sailor, a Navy SEAL, Dan Crenshaw, lost an eye to an IED. He probably lost more than that, but not that he can discuss.

I knew a few soldiers who drove through IED’s and lived to tell the tale. Even when you live, the IED does things to your brain. There is something about the concussion effect on the brain in a close confined space, lined with armor, that harms your brain. Doubtless, Dan Crenshaw suffers other, unseen effects. Mr. Crenshaw is running for Congress as a Republican in Texas.

So, when Pete Davidson makes a joke about his eye patch and comments, “I’m sorry, I know he lost his eye in war or whatever…..  whatever,” I do not get the joke. In fact, I find his comment pretty offensive. See CBS news report. I like SNL fine. But, jokes about losing body parts to an IED just are not funny to me.

I knew a soldier, a National Guardsman who went outside the wire often. It was his job to leave the relatively safe confines of the FOB several times a week. He drove through a couple of IED’s. He said the ringing in hs ears would last for days afterward. He wrote the name of all the soldiers his unit lost on his helmet. He wanted to remember them.

Pete Davidson lost his father in the 9/11 attack. He should understand “sacrifice,” we would think. Losing a dad who was a fire fighter is similar to sacrificing in a war zone.

A female comrade was a truck driver in Baghdad. They were told the terrorists were using kids to stop convoys. “Do not stop to help kids!” she was told. If she stops, the entire convoy has to stop. When you stop, you get attacked. She did not stop for kids. Years later, she was still dealing with deep PTSD because she might have run over a child.

A young soldier was in a Reserve unit. He thought he got out of the Reserves. He should have been, but was not processed out. About a year after he thought he was out of his Reserve unit, he received a phone call, “Chin, get over here in 30 minutes, or you will be court-martialed!” Chin did get there in 30 minutes, barefoot and without a shirt. Chin served his 12 months in Iraq and never complained.

Another major went home on his six month break. He found his wife was dating someone. That someone was reading bedtime stories to his children. That major came back after his break and did his second six months, knowing he would need a divorce lawyer when he got back home. Yet, that same major had to make major decisions, like who leads the convoy when his unit has to travel 2-3 hours in pitch black darkness with no headlights, or who mans the turret gun in his vehicle when the main guy is hurt. He has to focus, or people get hurt. There is no time for self-pity.

I am sure Pete Davidson faced some huge emotional issues in losing his father. You have to respect his experience. But, that does not give him space to minimize the service and sacrifice of others. None of these war experiences deserve a “whatever.” Neither does a sailor who lost his eye.