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.

One of the aspects unique to employment suits is the simple fact that a fired person will, one hopes, soon find new employment. Generally, for most folks, one job will follow another. That presents new sources of evidence. In Mesa v. City of San Antonio, No. 16-CV-870 (W.D. Tex. 1/23/2018), Abel Mesa worked for City Public Service for some 26 years. Mr. Mesa sued CPS saying he was forced out due to age and disabilities. CPS defended saying Mr. Mesa had indicated he would retire early. The Plaintiff said he was forced to retire early. Mr. Mesa did in fact find a new job relatively soon after leaving CPS.

The Defendant then thought it should find out what the Plaintiff told the new employer regarding his reasons for leaving CPS. The employer wanted to see how he described his departure. Did he say he had been fired, or did he say he had retired? We can see how the latter description might help the Defendant. Plaintiff moved to quash the request for records from the new employer. The Defendant claimed it was entitled to see information regarding Plaintiff’s performance at his new place of employment, disciplinary records, and whether he had refused any promotions that would have paid a higher wage or salary. CPS argued that such information might be relevant to whether Plaintiff has adequately mitigated his damages. But, the concern for the newly employed worker is that the new employer may not like finding out that this wonderful new employee has sued his former employer. The new employer might fire Mr. Mesa when they hear about the lawsuit.

The court pointed out that the employer was using the old standard for discovery. The new standard requires that evidence be relevant and proportional. The court tried to balance the concerns of both parties, by ordering the new request to proceed. But, the documents produced would first be produced to the Plaintiff. The Plaintiff will then provide to the Defendant any statement by Mr. Mesa about why he left CPS. The Plaintiff must also provide to the Defendant any indication that the Plaintiff told the new employer about his disability. The Plaintiff must also provide any wage history to the Defendant. Otherwise, the remainder of the request for documents was denied.

Certainly, the court addressed the true potential need for discovery. The subject matters the court allowed address actual needs. But, this solution will not protect the newly employed Plaintiff from being fired. Some employer do not like to learn the new employee has filed a lawsuit against a prior employer.

It is required of every business and government in the country to hire an American Sign Language interpreter if a hearing impaired person requests one. That requirement of the Americans with Disabilities Act has been around since the law was passed in 1991. It is remarkable how few businesses and governments realize that. When I worked at Disability Rights of Texas, some of the worst offenders were doctor’s offices. The doctors were simply not aware of the requirement. But, deaf persons are aware. The average deaf person will not make an issue of it, except when the service involves something important like medical issues. See one of my prior posts on the subject here.

Every hearing impaired person is entitled to the method of communication s/he prefers. For technical topics like law and medicine, most hearing impaired persons prefer an actual ASL interpreter. Writing notes back and forth will work for more simple, routine discussions. And, what about school? Will a school district be required to provide an ASL interpreter if requested? The answer is surely yes. One young student in San Antonio was denied an interpreter. His family has now filed suit against the San Antonio Independent School District over that denial. See San Antonio Express News report here.

There are video devices which will provide translations. The San Antonio ISD apparently tried to rely on those video devices. But, even so, if the hearing impaired person requests an actual, live interpreter, the school or business must provide it.

My Cousin Vinny was a wonderful movie in many respects. One of those respects involves the cross examination by Vinny of a so-called eye witness. After close questioning, the “eye witness” admitted he had made eggs and grits while the two defendants were supposedly robbing a small, rural store. As Vinny explained, the witness could not have possibly cooked his 20 minute grits and eggs during the five minutes he said he saw the defendants enter and rob the store. His time estimate was way off. As cross examinations go, it was actually good.

In Novato Healthcare Center v. National Labor Relations Board, No. 17-1221 (D.C.Cir. 3/5/2019), the employer fired four union organizers two days before the election to unionize. Like Vinny’s two defendants, the case here turned on the testimony of one person, a supervisor who allegedly saw the four organizers sleeping on the job. In reaching its result, the District of Columbia Court of Appeals could not help but point to Vinny as precedent for skilled cross-examination. The supervisor testified that she saw the four workers asleep and then 21 minutes later, the workers were still asleep. The supervisor then took she took a picture of two of the workers/organizers. If they slept more than 10 minutes, the maximum time allowed for a personal break, then they committed a fireable offense.

The four workers were working the night shift at a healthcare facility. The job duties slow down a great deal at 4:00 a.m., but they still cannot sleep while on duty. So, the question becomes were they on duty when the supervisor took the picture of them sleeping? The supervisor said she saw them asleep at about 4:00 a.m. and then still asleep at 4:21 a.m., the time of her photo. So, that would mean they had slept 21 minutes or longer.

The supervisor, however, lost her credibility when under cross-examination, she admitted to performing the following tasks during that alleged 5-10 minutes:

  • drove three blocks to the healthcare facility, stopping at one stop sign about mid-way
  • parked her car and went into the facility
  • walked to her office where she logged onto her computer and checked email
  • walked to the facility kitchen, where she checked the temperature logs for a refrigerator and for a walk-in freezer, and checked the labels and dates of the items in the refrigerator
  • walked to and through the break room, where she used the rest room and collected anti-union organizing material
  • gone back to her office and read the anti-union flyers
  • walked down the hallway, peeking into rooms along the way, checking on patients
  • and then arrived at a nurse’s station where she claims she saw the two workers (organizers/employees) asleep

And, she had already admitted under direct examination that she also opened the oven doors, inspected the stove and tidied up the kitchen. As the court of appeals recognized, that was just too many tasks for 15-20 minutes. At another portion of her cross-examination, she estimated the time it took for these various activities, one-by-one. Those time estimates pushed the time period even longer. It did not help her testimony that she denied knowing the workers were union organizers, when testimony had already established they were wearing union lanyards.Or, that she had initially denied wearing an anti-union lanyard that day and later had to retract her denial.

Too, she said all four employees were asleep at 4:21. Yet, she only took pictures of two of the sleeping workers. And, she made no attempt to wake them up. It strains credulity to think a supervisor would not wake a sleeping employee at a healthcare facility. The D.C. Court of Appeals would not buy it. After all, neither would Vinny if he were writing the opinion.

See the decision here.