Three former employees of the Lion & Rose restaurant sued their employer for violating the Emergency Paid Sick Leave Act of 2020. The lawsuit came known as Summers v. Olde England’s Lion & Rose Rim, No. 20-CV-00929 (W.D.Tex.). The EPSLA ended in December, 2020. It provided for paid sick leave for persons who contracted the coronavirus. The three employees, manager Gary Bruce, and bartenders Spencer Cox and Michael Summers, claimed they were fired for taking time off from work to quarantine in 2020. The Lion & Rose, as employers always do, claimed they were fired due to poor work performance.

Retaliation

Mr. Bruce came down ill and took the coronavirus test. He then quarantined for tend ays, as he was required to do. Bruce complained to the owner, Allen Tharp, that he was not paid his sick leave, as required under the EPSLA. Mr. Bruce says Mr. Allen then said he would pay him when he works.

Regarding Mr. Summers, the plaintiff entered into evidence an email from Mr. Tharp saying Summers’ absence had cost him thousands of dollars in sales.

Jury Verdict

The matter was tried to a jury in February, 2022. Mr. Bruce sought $8,333, Mr. Cox requested $58,300 and Mr. Summer sought $68,400, all in lost wages and benefits. The first question the jury had to answer was whether the Lion & Rose was an integrated enterprise. The Lion & Rose had 40 employees at the restaurant. But, it had some 600 employees at Lackland AFB and Camp Bullis dining facilities. If the employer has 500 or more employees, then the EPSLA would not apply. So, to the first question, the jury answered no, the restaurant was not integrated wit the two military dining facilities.

Regarding liability, the jury found Bruce and Summers were not fired due to taking emergency sick leave. The jury found in favor of Mr. Cox, but only awarded $2,500. See San Antonio Express News report here.

Juries can be hard to explain. Why would a jury find in favor of Plaintiff Cox, but only award some 5% of his lost wages. We do not know, but perhaps Cox had some interim earnings that the jury took into account. The jury only deliberated about 90 minutes. There was certainly sufficient evidence on which the jury could have found reprisal.

See the Department of Labor website for more information about the EPSLA and the Families First Coronavirus Response Act here.

The death penalty sanction is very rare in litigation, but it does happen. In Hornady v. Outokumpu Stainless U.S., No. 18-00317-JB-N (S.D. Ala. 11/18/2021), the court specifically found the defendant had obstructed discovery for years. The lawsuit concerned a Fair Labor Standards Act collective action – a class action lawsuit. As part of every FLSA lawsuit, the employee and employer must exchange their records regarding work schedules and pay. The employee may have only a few records. But, the employer will have all the pay records. The FLSA requires the employer to maintain those pay records. In most cases, it is a simple discovery request to see those payroll records.

But, in Hornady, that discovery process stretched on an on. Six months after discovery had closed, the defendant still had not produced those pay records. At a show cause hearing in March, 2021, the defense lawyer essentially tried to assign blame to the payroll processor, ADP. But, as the Judge noted, the defendant is the defendant.

Lamentable

As the court said in the opening paragraph of its sanction order:

“This case is lamentable. Mercifully, it is rare. Here, the Court is compelled to protect not only the plaintiffs but the Court itself from a defendant’s pervasive bad faith.”

Mid-way through discovery, the Magistrate Judge addressed the failure to produce the pay records. The Defendant blamed Automatic Data Processing (ADP). The Magistrate Judge ordered the Defendant to submit a subpoena to ADP.  Outokumpu served the subpoena, but then told the court that ADP had not complied with he subpoena. When, in fact, ADP had complied. In any event, Defendant still did not provide the pay records. The Magistrate Judge, not knowing that ADP had actually complied, recommended sanctions lesser than default.

Erroneous Testimony

At that point, Defendant changed course. It argued that the request for the pay records was based on faulty testimony from its own corporate representative. Outokumpu said it would submit an affidavit “correcting” the corporate representative’s testimony. It argued that the records already provided were accurate enough. The defendant also argued that the ADP records were no longer needed. Both parties objected to the Magistrate’s recommendation. The defendant never submitted that “correcting” affidavit. So, the issue then went to the Judge. It is the Judge’s role to review the Magistrate’s recommendation.

The Judge looked at the lawsuit record himself and found five motions to compel had been filed. Two motions for sanctions had been filed. Twelve orders had bene issued telling the defendant to produce the pay records. Yet, each time, the defendant told the Magistrate it would comply with the Magistrate’s latest order. But, it never did comply.

ADP did not Attend

So, in February, 2021, the Court held a hearing. The defendant again represented that ADP had failed to to provide the requested records. ADP was not cooperating, said the employer. The Court then set a show cause hearing. It ordered the defendant to serve ADP with a copy of the order. ADP was to appear with a chronology detailing its attempts to satisfy the subpoena. Defendant was to give ADP ten days notice of the hearing. Instead it gave them only four days. Contrary to the Court’s order, Outokumpu told ADP it need not attend the hearing if it produced the pay records. ADP then failed to appear for the show cause hearing. The court then re-set the show cause hearing. In litigation, a “show cause” hearing has no formal definition, but it usually means bring your stuff or else.

ADP did Comply

At the second show cause hearing, ADP presented evidence indicating it had in fact produced many of the requested records some seven months prior – after it received the subpoena. The Court found Outokumpu did not deny that it had doctored spreadsheets and produced false pay records. The employer then blamed the plaintiff and ADP. Outokumpu never offered a substantive explanation for why it had failed to provide the records it had previously agreed to provide. At the March 12, 20201 hearing, the degree of the defendant’s obfuscation and delay became apparent, The Court found that the employer had “sabotaged” the judicial process for over two years.

Bad Faith

The employer knew from October, 2018 which records Plaintiff was reasonably requesting. Yet, the employer did not engage with ADP about these records until the summer of 2020. That was when Outokumpu was ordered to subpoena the records from ADP. Throughout the litigation, as the plaintiff submitted motions to compel, the defendant would meet with the plaintiff and agree to provide documents and information. But, each time, it would produce little or nothing. When the plaintiff would file a motion to compel, the defendant would plead confusion and inadvertent oversight. The defendant would claim that it acquired valuable new information at the meeting with the plaintiff about what was requested. The parties held two settlement conferences, both of which were based on inaccurate pay records. At a deposition of the corporate representative, it became clear that that the accurate records were in color. The various colors indicated critical aspects of the pay protocols. All Defendant had produced up to that point were black and white spreadsheets. All of this amounted to bad faith, said the court.

At the show cause chairing, the Judge had some parting words for the defendant. The Judge quoted the plaintiff’s remark: “At every step, plaintiffs have been pleasantly, professionally, and civilly stonewalled.” The lawyer for the defendant was Gavin Appleby. He was from Georgia, not Alabama. So, he appeared in the Alabama lawsuit on a pro hoc basis. The Judge suspended that pro hoc admission at the close of the hearing.

The Court then imposed the ultimate sanction, finding Outokumpu in default. The court issued a 94 page opinion. See the decision here.

We are in the middle of a pandemic. Obviously. How will that work in closely confined spaces? Not well. Tyson Foods published a warning this last weekend, stating the nation’s food supply was at risk due to infections. The Trump Administration responded within days by issuing an order under the Defense Production Act that all meat plants remain open. Ok, that’s nice. But, if the workers call in sick, then what? Some workers have already indicated they are afraid to return to work unless Tyson institutes some protections. Many workers have already tested positive for the COVID-19. See CNN news report.

It is ironic that the ICE conducted major raids on meat packing plants last Summer apprehending hundreds of undocumented workers.

One of the challenges with the coronavirus is what protections can the worker ask for in response to a general fear of the virus? The Tyson workers have a more specific concern, because many workers have actually tested positive. A couple dozen workers have died. But, absent actual tests, what can a worker ask for? Not much. OSHA requires employers to provide a safe working environment in regard to known dangers. But, if no one has tested positive, it will be hard to argue in court that the virus presents a known danger in the work place.

The Tyson situation is different. The worker can and should demand some level of protection. The question will be how much protection can they expect OSHA to enforce? On Sunday, the Center for Disease Control and OSHA issued guidelines for meat packing plants to protect workers. See those CDC guidelines here. But, the guidelines are just that, guidelines. Tyson Foods can honor those guidelines, or not. Workers can make demands, but they can then be terminated. And, the larger question is do we want COVID-19 in our food supply? I think most consumers would prefer sick workers and possibly sick workers not come to work. No one wants to buy bacon that was packed at an infected plant.

One worker asks what will the administration do if no one comes to work? Surely, the administration will get them protective gear or whatever they need. If not, as I have advised other workers when the law does not help,  form a union. Unions started at a time when employers were not responsive to safety concerns. We may be re-visiting that time, soon.

Be Safe.

A jury in Taylor County (Abilene), awarded $2.5 in a whistle blower lawsuit. Chad Carter, the former City Engineer for the City of Abilene, complained to the Texas Board of Engineers about the City of Abilene’s failure to follow the Texas Engineering Practice Act when it built several roads. The jury awarded some $100,000 in lost pay and benefits and $2 million in compensatory damages (emotional suffering type damages), and $500,000 in attorney’s fees.

City Engineer Carter said the City did not have an engineer oversee various road construction projects, in violation of the Texas Engineering Practice Act. The City did hire an engineering firm after the roads had already been built to inspect the roads and after Mr. Carter complained. The engineers found no deficiencies. (Ok, I am not an engineer, but if there was a problem with the base of the road, how would an engineer know that after the fact? Way back when, when I worked summers on road construction projects, the engineer was out there everyday with us watching and doing whatever engineers do). Mr. Carter filed suit based on the Texas Whistleblower Act.

Mr. Carter’s employment was terminated within 90 days after he filed his first complaint. See reports by KTAB news herehere and here. That 90 days does create a presumption that he was fired due to his whistle blowing activity.

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…….

 

Every discrimination case involves some amount of he said/she said. Most acts of discrimination occur behind closed doors. So, the testimony will be all about a swearing match. But, that does not mean the two stories cannot be confirmed or denied. In a discrimination case, we would want to know, for example, the circumstances behind a demotion or a firing. Does the story make sense? Do the surrounding details support or undermine the main story line?

It is the same with Judge Brett Kavanaugh and Dr. Christine Blasey Ford. The fact that no witness appears able or competent to confirm or deny their respective stories does not mean either story is false. The details become more important in such situations. Dr. Blasey Ford remembers very few details, other than the actual assault. She does recalls, however, that she saw Mark Judge at a nearby Safeway grocery store weeks after the incident. When we look at the book written by Mark Judge, we do indeed see that he worked at a Safeway in the Summer of 1982. Mark Judge wrote a book about his recovery from alcohol abuse. It goes into great detail about his excessive drinking in high school.  So, again, Dr. Blasey Ford’s story is confirmed in another respect, that a young Brett Kavanaugh drank a lot. And, in another important detail, Mark Judge mentions that he and his friend, “Bart O’Kavanaugh” partied hard in high school. See Rolling Stone news report here. “Bart” appears several times in Mark Judge’s book.

That is how a discrimination story is confirmed or denied, on the edges, around the periphery. It is circumstantial proof. But, sometimes circumstantial proof is more trustworthy than someone’s hazy memory.

When you look at a termination, you start with the reasons provided by the employer. In Donald Trump’s letter to former Director Comey, he starts by stating the Attorney General recommended that the Director be replaced. He thanks him for telling him three times that he was not the subject of the Russia investigation. See Trump’s letter here. Then,w e learn the Attorney General provided a memo to Pres. Trump upon which the President supposedly based his decision to terminate. That Memo describes Dir. Comey’s conducts regarding Hillary Clinton emails last Summer and last October.

Those two documents become the employer’s articulated response. Those are the reasons offered by the employer for the termination. As in any discrimination case, we then ask do those reasons make sense? In this case, not really. Pres. Trump has praised Dir. Comey many times for making public the investigation into Ms. Clinton’s emails. It strains credulity to believe he now sees those actions as performance deficiencies.

In employment cases, circumstantial science is admissible, If the employer has violated its normal procedures, that can help show an improper termination. Many, perhaps most cabinet level officials are asked to resign. It is actually quite rare to “fire” a cabinet level official. It is more common to ask an official to resign. Too, the fact that Mr. Comey was not notified prior to his dismissal arouses concern. If this was a performance based decision, why was he not notified first? If the employer truly wants improvement, why would it not notify the employee of performance issues? Why was a replacement not discussed and perhaps even vetted with Congress first?

So, the administration has not followed normal protocol in firing a cabinet level official in two ways, not personally discussing the termination with the official beforehand and not allowing him to resign. The White Hosue has not followed basic White House protocol. The employer could then argue that this is not a typical White House. There might be some merit to that argument. But, few employers are willing to state publicly that it violated protocol because it is not competent. Most employers just will not go there.

Then, we come to the mention of the Russia investigation in the letter actually firing Mr. Comey. That suggests the true reason was the Russian investigation. So, in the end, this would be a case in which the judge is not likely to dismiss or grant a motion for summary judgment. So, yes, this would be a case which most plaintiff lawyers would accept.

 

Not unlike former Pres. Bill Clinton, Pres. Trump has a reputation that will attract lawsuits. One such lawsuit filed by Summer Zervos, accuses the Celebrity Apprentice star of groping her when she was a contestant on his show. She accuses him of groping her and kissing her. She filed suit three days before Pres. Trump’s inauguration. She says he defamed her by denying her accusations. The President has claimed immunity. As some may recall, Pres. Clinton also tried to claim presidential immunity for a sexual harassment lawsuit, but he lost that claim. Ms. Zervos’ lawsuit, however is in state court. This time, the President is claiming immunity in state court, not in federal court. See Politico news report. We will see if that makes a difference.

I previously wrote about Ms. Zervos’ lawsuit here. Earlier, she offered to drop her lawsuit if the President would acknowledge the truth of her claims. Apparently, he decided not to take her up on her offer.

People in public life have to be careful about they say and do. Pres. Bill Clinton was sued by several women during the last couple of years of his administration. Pres. Trump appears headed toward those same troubled waters. During the campaign a former Apprentice contestant, Summer Zervos, accused Mr. Trump of groping her and assaulting her. The candidate denied it. Now, she has sued the soon-to-be President. Her attorney is the celebrity lawyer, Gloria Allred of Los Angeles. See CBS news report. Ms. Zervos says she will drop the lawsuit if Pres. Trump will simply acknowledge the truth of her claims. That does not seem likely. Mr. Trump enters office already a party to several lawsuits. It looks like his tally will only increase.

But, the President-Elect did settle his Trump University lawsuit. He agreed to pay the victims of his fraud $25 million. See CNN news report.

McDonald’s hamburger chain is facing the first test of a new approach to franchise workers. The new approach started with a NLRB decision last Summer that found in certain cases, the parent franchisor could be responsible for employment decisions made by the franchisee. See my comment about that decision here.

The McDonald’s case started when some McDonald’s workers walked off the job to rally for higher wages. The NLRB received many complaints after workers suffered reprisal for their labor activity. The NLRB will hold hearings about McDonald’s workers in New York City and later in Chicago and Los Angeles. The NLRB has not explained why it believes this is a joint employer situation. But, lawyers representing individual claimants point to the larger corporation monitoring and deciding working conditions of workers. See Chicago Tribune report.

If that is all the evidence the NLRB has, that may not be enough. In the BFI Industries case that established this new standard, there was more evidence of control by the larger corporation. That case concerned a supposed independent contractor, Leadpoint, and a client employer. BFI was the larger, client employer. In that case, BFI had an agreement with Leadpoint that in effect allowed BFI to “codetermine” employment decisions. Leadpoint conducted its operations on BFI property surrounded by BFI personnel. BFI set the conditions of work that determined which Leadpoint workers would stay and who would be fired. Under the agreement, BFI retained authority to “discontinue” any of Leadpoint’s employees. There were two instances in which BFI did indeed discontinue two Leadpoint workers. See my prior post about that decision.

Joint employer under the BFI decision does not mean franchisees and franchisors are automatically joint employers. First, there must e evidence that the parent or larger corporation actually exercises some control over employees of the franchisee. As they teach us in first year of law school, its all about the evidence.