In Johnson v PRIDE Industries, Inc., 7 F.4th 392 (5th Cir. 2021), a co-worker referred to Michael Johnson, a black worker as “mijo” (son) and “manos” (hands) several times.  The same co-worker, Juan Palomares, also referred to Mr. Johnson as “es mayate” (this n—–) on some occasions. Mr. Palomares also used the term “pinches mayates” (f—— n—–) and “pinches negroes” (damn black)when referring to Mr. Johnson. Johnson filed suit for racial discrimination under 42 U.S.C. Sec. 1981.  Mr. Johnson complained to his supervisor and to other company officials, but the harassment continued. Johnson filed a complaint with the EEOC. About the time he received the right-to-sue notice, PRIDE approached Johnson about his many absences. The employer suggested and Johnson agreed that he would resign. His resignation letter said he had missed many work days. The letter said he missed so much work, because going to work was too stressful.

Later, Johnson filed suit. The employer moved for summary judgment, which the court granted. On appeal, the Fifth Circuit disagreed. It reversed the summary judgment. The higher court said that the use of this terms, even if in Spanish, amounted to “severe or pervasive” harassment. There was substantial factual dispute regarding whether these words created a hostile working environment. The court had no problem finding the use of terms like “mayate” to be discriminatory. Regarding the term, mijo, the court said the term could indicate racial bias. It would depend on the context. Mijo is often used in Hispanic culture as a term of endearment. But, in this context toward a black man, perhaps it was intended as something else, said the court.

But, said the court, the constructive termination came seven months after the harassment ended. The court found that summary judgment was proper regarding the constructive discharge. The court noted that PRIDE did not appear to take any concrete steps regarding Mr. Johnson’s complaints of discrimination. But, even so, the harassment appeared to have ended about the time Mr. Johnson filed his EEOC complaint. So, regarding the claim of constructive discharge, the court found summary judgment was appropriate.

See the decision here.



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.

I had a dream a couple of nights ago in which I visited the netherworld. Felt this overwhelming desire to assure those brave men buried at the Aisne-Marne American cemetery in France that the President’s comments were wrong, all wrong. For those of us with a modest bit of PTSD, Pres. Trump’s comments stung. Those comments remind us that there are some folks in this country who do not understand and do not respect our service. Those comments by the President ring true partly because they are consistent with how the President has treated veterans and their families in the past. In the public past, with no need for anonymous sources.

In 2015, he famously said John McCain was not a hero, because he was captured. As though we always have a choice about being captured.

In 2016, he attacked a Gold Star family for days because Kizr Khan dared to criticize then Candidate Trump. In 2017, He called the widow of SGT La David Johnson, who had just been killed in Africa. Clumsily, he told her that SGT Johnson knew what he signed up for. Even worse, he struggled to recall SGT Johnson’s name. …. If you cannot recall the name of the fallen, do not bother to make the call. SGT Johnson and his widow were black. Let us hope that did not make a difference.

In June, 2017, Pres. Trump called the family of SGT Dillon Balridge after he was killed in Afghanistan. Chris Balridge, the father, mentioned they were having trouble obtaining SGT Balridge’s death benefits. Pres. Trump said he would personally send a check. The President said, more or less, that no other president had ever done this before. Three months later, the check still had not arrived and was mentioned in the Washington Post. Then the President finally made good on this odd promise.

Only some 4 or 5 times has Pres. Trump met the remains of fallen soldiers at Dover AFB. Dover is the place they come form overseas. It is not necessary that he attend the ceremony at Dover, but he has bragged that he has done so “many” times.  In 2017, he was there when the remains of SEAL Ryan Owens arrived. The father, Bill Owens refused to shake the President’s hand and told him he got Ryan killed for no reason. In a recent ad for Vote Vets, Bill Owens says the President made the decision to launch that raid over dinner with political advisors, not in any sort of situation room.  He made  approved the raid for no large tactical purpose, but to simply be a “big man at war,” said the Gold Star father. Bill Owens warns the country not to trust Pres. Trump. See Bill Owens’ ad here.

And, sure enough, in a State of the Union address soon after that raid, Pres. Trump had Ryan Owens’ widow attend. He sensationalized her presence in the midst of her grief.

In 2018, he sent active duty troops to the border to emplace concertina wire and paint the wall. Neither duty requires military expertise. He kept them there through Christmas. Again for no apparent strategic purpose.

In 2019, 11 U.S. soldiers suffered concussions after missile attacks in  Iran. The President minimized their injuries, saying they simply had headaches. But, of course, we know today that concussions do sometimes lead to traumatic brain injuries.

When the captain of the U.S. Theodore Roosevelt took extreme actions to protect his crew from the coronavirus, the president disparaged the captain in a series of tweets. The captain was soon relieved of command. Relived from command generally ends a career.

The President has disparaged the service of John McCain over and over. He disparaged American heroes, like Adm. Bill McRaven, Gen. James Mattis, Gen. John Kelly, Gen. Stanley McChrystal. See The Atlantic story here for more information. This is a President who pays lip service, but little else.



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 Court recently awarded attorney’s fees and costs of court in the Johnson v. Southwest Research Institute, No. 15-CV-297, matter. I previously wrote about that trial here and here. The judge awarded $535,609 in attorney’s fees and costs of the lawsuit. Included in that attorney fee figure are attorney fees ranging from $125 to $585 per hour, for five lawyers. As I mentioned perviously, the jury already awarded $550,914 in lost pay and benefits and emotional suffering type damages. The Judge previously awarded $45,000 in lost pay in the future, and $74,000 in past interest.

Remarkably, the defense again tried to re-argue the evidence at trial. The judge, however, pointed to substantial evidence supporting the plaintiff’s claims. The judge seemed annoyed that the Defendant was once again re-urging arguments already rejected three times previously.

And, all this started because one woman complained about discrimination. All the employer had to do was listen to her complaint. But, one has to add that during the litigation, SWRI fussed about things it did not need to oppose. We have to wonder how much the trial and the judge were affected by needless fussing over security clearances.

A recent jury in the Western District found Southwest Research Institute, one of the largest employers in San Antonio, guilty of retaliating against a female worker who complained about discrimination. The jury awarded her $410,000. I previously wrote about that jury result here. The jury awarded $335,624 in lost pay and $260,000 in compensatory (i.e., emotional suffering types) damages. The amount of lost pay was then reduced by $185,000 because, said the jury, Ms. Johnson did not adequately look for and maintain employment. The plaintiff then requested interest on these amounts, lost pay in the future, and to seek a rescission of issues regarding the plaintiff’s security clearance.

In response, the Western District awarded $74,000 in interest. It found that reinstatement was not feasible. So, it awarded $45,000 in lost future pay. It also ordered SWRI to send a letter to the government agency that processes security clearances. The letter, said the court, must withdraw its earlier report about Ms. Johnson’s termination, and instead, state that SWRI fired Ms. Johnson because she complained about sex discrimination. With the caps on compensatory damages, the total award to Ms. Johnson then totaled $300,000 in compensatory damages, $55,828 in interest on the back pay, and $45,000 in lost future pay. See Texas Public Radio report here.

Remarkably, the employer opposed the request to withdraw or countermand in some way its previous negative report regarding Ms. Johnson’s security clearance.

Courts often refuse to award lost future pay. This court evidently thought the discrimination endured by Ms. Johnson was egregious. Still to come is the plaintiff lawyer’s application for an award of attorney fees. The amount owed will only increase.

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.

In a recent decision, the Fifth Circuit reversed the award of attorney fees to a prevailing plaintiff. In Cervantes v. Cotter, the lower court severely reduced the plaintiff’s fee request by some 75% because the plaintiff’s success was, in the view of the trial court, small. The plaintiffs, noted the trial court, were only warded $409 in lost overtime payments. The district court rejected the plaintiffs’ claim for liquidated damages and their claim for retaliation. So, their recovery was just the $409. Yet, the plaintiffs’ attorneys sought $14,000 in attorney fees. The trial court considered that to be an “extraordinary” amount in light of the relief obtained.

But, the purpose of the attorney fee provision in the Fair Labor Standard Act is to to encourage attorneys to accept these small cases. No attorney would accept a case in which the hard, economic damages was a mere $409. And, as the Fifth Circuit noted on appeal, there are twelve factors in assessing attorney’s fees, not just the one factor involving success at trial. See the Fifth Circuit decision here.

The lower court’s decision is not well thought out. The Magistrate discussed the settlement offers and lack of counter-offers by the parties. The Magistrate then concluded that the plaintiff lawyers were “greedy” and the defense attorney was “penny-pinching.” It is an extraordinary decision. The district court ignored eleven of the twelve factors in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Johnson requires lower courts to look at twelve factors, including the success of the plaintiff, when it assesses a request for attorney’s fees.

The lower court in Cervantes looked just at one factor, the success of the plaintiffs. Then, it went beyond that and looked at the relative settlement success of the two parties. It mentioned one offer of $17,000 in attorney fees and a second offer of $22,000 in attorney fees. It noted the response by the employer of $210 in overtime pay and $1,000 in attorney fees. It almost seemed like the judge was annoyed at having to hear a small case when the parties could have easily settled the matter. I find that unfortunate. These “small” cases are quite large to those involved. The Fair Labor Standards Act is a federal law. If federal courts will not enforce federal laws, who will? In truth, these apparently small cases are not small, at all. These relatively small cases reflect a wider problem with many employers underpaying their employees and generally getting away with it. The Department of Labor can enforce the FLSA, but it rarely does. It is left to these “small” lawsuits to stand up for the little guy whose pay is being stolen by employers. If there is one plaintiff filing a case for a lost overtime of $210, then there are ten others who also suffered similar losses, but chose not to file suit. There was a time when I was working my way through college and law school. In those days, $210 was a very large amount to me indeed.

In effect, the trial court imposed some new requirement that appears to involve second-guessing settlement strategy. I think it was this that caught the eye of the Fifth Circuit. It vacated the trial court’s ruling in a per curiam, unpublished decision. “Per curiam” decisions are those which the court views as simple, routine, not needing extensive explanation. The higher court is saying this should be a simple issue. Courts cannot truly second-guess settlement strategy. There are just too many unknowns.

Mary Ellen Johnson worked at Southwest Research Institute for many years before she was fired. Some time before her termination, she complained about possible discrimination against her due to her gender. She filed an internal complaint with SWRI in June, 2012. She then filed a complaint with the EEOC on Aug. 3, 2012. Several days later, she was fired on Aug. 15, 2012. She was told the reason was failure to observe timekeeping requirements. She had a security clearance in her former position. She lost the clearance when she was fired. The timing of the termination alone suggests the employer was motivated by reprisal because she went to the EEOC.

The employer moved to dismiss the retaliation claim. It claimed she was fired because she lost her security clearance and only because she lost her clearance. If any employer is not motivated by retaliatory intent, but by something neutral, then she could not claim reprisal. When reviewing a motion to dismiss, a judge must look at what the plaintiff says she can show. To dismiss a lawsuit, the judge would have to find there was no set of facts that could support her claim. The employer must show “beyond doubt” that she cannot prove a plausible fact scenario for her retaliation claim.

The court reviewed the papers concerning her termination. It found that the documents were not clear. Neither the memo recommending dismissal or the email concurring in termination mentioned any loss of a security clearance. The letter to the Plaintiff notifying her of her termination does mention a lack of “trustworthiness.” That term matches terminology used for loss of a security clearance. But, said the court, it would be a stretch to conclude from the use of that term that her termination was based on the loss of access to classified material. The letter itself did not otherwise mention the loss of her security clearance.

She might have lost her clearance because she was fired. Or, she might have been fired immediately after losing her clearance. The clearance issue could have come before the termination, or after. The records submitted by the employer did not show one way or the other which came first.

Because the documents are not clear, the motion should be denied. A fact-finder, a jury, should determine what happened. See Johnson v. Southwest Research Institute, No. 15-297-FB (W.D. Tex. 9/28/2016). And, seriously, if the employer makes a claim regarding why someone was fired, but it cannot produce better evidence than the use of one term, with no apparent connection to the decision-making process, then it is either rather very unorganized or it is trying to mis-lead the court. Either way, the employer loses some credibility with the court when it makes an argument based on fairly weak evidence.





The Supreme Court must take some delight in reversing the Fifth Circuit. In a recent decision, the U.S. Supreme Court has once again reversed the Fifth Circuit. In Johnson v. City of Shelby, No. 13-1318 (5th Cir. 11/10/2014), the Supreme Court found that the Fifth Circuit applied the recent decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), too rigorously. In Johnson, the Fifth Circuit had dismissed a civil rights claim for failure to plead the claim with adequate particularity. The Supreme Court found that the pleading was adequate regarding its legal theories of recovery. The Fifth Circuit, said the Supreme Court, had applied standards that were intended for factual pleadings to the legal statement of the cause of action.

Having informed the city of its factual basis, the plaintiff need do nothing more than “stave off threshold dismissal for want of adequate statement of their claim,” said the higher court. See the Supreme Court opinion here. See the pleading at issue here. Note that the Complaint does not even cite a particular statute regarding the theory of recovery. The Complaint refers to Title VII as basis for jurisdiction. But, the right of action could just as well include 42 U.S.C. §1983 or Title VII itself. Both statutes provide for protection from employment discrimination. The Complaint does discuss denial of procedural due process, suggesting the basis is intended to be §1983.

The higher court does explain that the federal rules do not countenance dismissal for imperfectly pleaded legal theories of the claim. The Supreme Court suggests the Fifth Circuit panel was “confused” by the Complaint. That is judge-speak for the Fifth Circuit panel mis-understood the Complaint. And, later in the brief opinion, the Supreme Court indicates the Fifth Circuit panel was too “punctilious” in dismissing this claim and should have allowed the plaintiff to amend his pleading. See Fifth Circuit opinion here.

The Supremes reached this result in a 9-0 per curium decision, indicating the Fifth Circuit’s opinion had little basis. It is strange that the appellate court did not allow amendment of the Complaint. The lower court granted summary judgment, apparently finding the claim should have been prosecuted under §1983. Instead, the plaintiffs had pressed their claim as a direct violation of the Fourteenth Amendment. After losing the summary judgment motion, the plaintiffs asked to amend their complaint to specifically plead §1983. In short, the plaintiff asked for a re-start. The district court said no. The Fifth Circuit agreed.

And, among the warnings that citing §1983 is not a mere formality, justice was lost. The courts essentially allowed the two individual plaintiffs to suffer because their lawyer overlooked a formalistic requirement.