In a recent decision, the Western District of Texas granted the employer’s motion for summary judgment in a case alleging discrimination based on gender (male), age (age 55), race (Hispanic) and disability (morbid obesity). In his EEOC complaint, the employee also alleged national origin. As I have mentioned here before, it is very unwise to allege more than one basis of discrimination. It is not impossible that persons would discriminate based on multiple reasons, but it does look like the employee is throwing everything out there that might work. Lawsuits, especially in federal court, need to be based on more than “maybe” reasons. In Beltran v. Union Pacific RR. Co., No. 15-CV-1019 (W.D. Tex. 2017), the plaintiff argued age, national origin (Hispanic, and disability when it responded to the employer’s motion for summary judgment. He argued he had reported racial slurs at work in the past, but provided no details. He pointed out the obvious fact that he was replaced by someone in his 20’s.

But, most of his efforts were devoted to arguing that his disability played a role in his termination. And, that focus largely attacked the drug test to which Mr. Beltran was subjected. The employer argued that Mr. Beltran was  fired because he failed a drug test. The plaintiff responded that prior to his termination, he had passed some 55 drug tests over the prior 4 years. The plaintiff pointed to testimony from a doctor saying that the prescription medication he was taking likely caused a “false positive” on his test. During the lawsuit, the plaintiff moved that the judge allow a re-test of the same sample. The judge ordered the re-test to proceed. The parties knew the re-test could result in the same result, which it did.

Regarding summary judgment, the court noted that it does not matter whether the drug test was valid or not. Even if the third re-test had produced a different result, that would still not create a fact so as to avoid summary judgment. Citing Little v. Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991), the court noted that the existence of competing evidence about the objective truth of a fact supporting the employer’s preferred reason does not in itself make it reasonable to believe the employer was not truly motivated by its proffered reason. The plaintiff presented evidence that the doctor certifying the initial drug test had a felony conviction did not create a fact issue either. The court was saying that just because the drug test had issues does not indicate the employer did not sincerely believe the results were genuine. Something more would be needed to show that Union Pacific had doubts about the drug test.

The employee also argued that the employer had shifted its explanation over time. But, said the court, the shift was not perceptible to it. So, the judge granted the motion for summary judgment. See the decision here.

And, we are reminded that it is never wise to allege too many bases for discrimination.

A group calling itself the National Policy Institute at a popular Washington, D.C. restaurant. The owner of Magliano’s Little Italy says he did not know the folks at the NPI would engage in Nazi style salutes. They also proclaimed “Hail Trump, hail our people, hail victory.” Ok. Well then.

See CBS news report. It is a strange sight to see Americans engaging in Nazi salutes with no trace of a smile in their faces.

The restaurant owner apologized, saying the group made the reservation under a different name. I think this presidency is going to be bumpy ride. Bigotry does not get any bigger than self-styled Nazis.

Threats of a lawsuit are always a little dubious. It is easy to make threats. Filing an actual lawsuit requires much more work. Donald Trump fired off such a threat the day after the New York Times published a piece describing his sexual assault of two women. Mr. Trump’s lawyer threatened to sue the Times for libel. The in-house counsel for the Times quickly fired back with his own letter. But, his lawyer contained actual legal reasoning. Libel, explained the Times‘ lawyer, indicates someone’s reputation has been harmed. The essence of libel is protection of one’s reputation. Mr. Trump has bragged about his nonconsensual touching of women. Mr. Trump let a radio DJ refer to his daughter as a “piece of ass.” He said publicly that he would walk in on beauty pageant contestants in a state of undress. Several other women, apart form the Times article, have come forward to report on Mr. Trump’s sexual shenanigans. The in-house counsel concluded, this reputation was created by Donald Trump himself through his words and actions. Nothing in the Times article had any effect on the reputation he created.

Exactly. Libel only applies if the reputation has been harmed. If a person proclaims he has robbed stores, then a newspaper article that describes him as a robber does not harm his reputation. It is no wonder that a few lawyers on my Facebook page described the Times response as drafted by a “real” lawyer. Threats to sue only work if they convey some minimal legal ability to follow through. See ABA Bar Journal report.

 

Andrea Tantaros, has sued Fox News for sexual harassment. I wrote about that suit here. Now, Fox News has asked that her case be sent to arbitration with the American Arbitration Association. In effect, it is asking that her case be sent to the secret, Star chamber of American society. But, in so doing, they first lodge some pretty strong attacks against her. In its motion to refer to arbitration, the news outlet accuses her of not recalling the specific instances of sexual harassment; it claims the men involved all denied her claims; it claims she did not allow Fox News to review the cover of her book before she published it; and it claims her lawsuit is littered with falsehoods. It is ironic that a major employer seeks the privacy of arbitration, but only after first lodging accusations which she can only defend in private. See Vanity Fair report about the allegations against her and the move to arbitration.

Sheriff Joe Arpaio, who claims to be the toughest sheriff in America, has received the first step in the contempt process of federal court. The court found him in contempt last year. See my prior post about Sheriff Joe here. Judge Snow in Maricopa County, or Phoenix, Arizona, has ordered a re-organization of the internal affairs department at the Sheriff’s office. The Sheriff’s office has already been found in civil contempt. Civil contempt simply means jail time is not an option.

It seems that someone in the internal affairs department kept a set of video tapes showing racial profiling in some traffic stops. Those tapes were expected to be used at trial. But, suddenly, they went missing. Ok.  . .  no one said Sheriff Arpaio is subtle. Of course, hiring a private investigator to investigate Judge Snow’s wife was not subtle other.

Still unresolved is the possibility that the Sheriff and his top aide, Jerry Sheridan, will be found in criminal contempt. They did violate the Judge’s orders. Criminal contempt would involve fines or jail time. See CBS news report.

According to the report, the citizens of Phoenix will have to pay another $13 million over the next year to pay for this case. They have already paid $41 million. All this just so Sheriff Joe can profile Hispanics.

Gretchen Carlson has filed suit against Fox News and Roger Ailes for sex discrimination. Ms. Carlson was Miss America in 1989 and is attractive. In her lawsuit, she accuses Mr. Ailes of ogling her, repeatedly commenting about her legs, and once told her she was sexy but “too much hard work.” Nine months ago, he told her she should have had a sexual relationship with him long ago. Things would have been better for her, he assured, if she had. Mr. Ailes is 76 years old. Ms. Carlson is 50.

As the suit points out, Ms. Carlson anchored her own show until a few weeks ago. She was demoted three years ago from a position as host of the morning show when she complained about sexual harassment. She had apparently complained about one of her co-workers, Steve Doocy, who, she said, condescended toward her and treated her in a sexist way. She should, said Mr. Ailes at the time, learn to get along with “the boys.” Mr. Ailes also accused her at the time of being a “man hater.” See CBS news report. I bet Fox’ lawyer really cringes over that last statement.

An employer should not say things like that. The chief executive officer should not bring sex or gender into a discussion when someone complains about sex harassment. That should be a basic principle for avoiding lawsuits. Sex harassment is subjective. It is hard to show. Mr. Ailes gained nothing by making comments suggesting she was not “one of the boys.” If Fox did not then conduct some sort of investigation about her complaints, it will start out in this lawsuit with a deficit. Sex harassment is hard to prove. Retaliation is much easier. At least so far, Ms. Carlson’s case looks pretty good.

 

John Owens’ information apparently hit a nerve. Within a day of the news report regarding the AG’s refusal to sue Trump University, Ken Paxton’s office has issued a “cease and desist” letter to Mr. Owens. I wrote about that investigation here. The cease and desist letter warns the former head of the consumer protection division not to use documents from the Trump University investigation. The letter claims the information is privileged and confidential. But, Mr. Owens insisted he has not violated any ethical rules or laws. See San Antonio Express News report.

The Express-News report states that records from investigations are usually public after the investigation has concluded. It is strange that years after the investigation has concluded, someone argues that the records are confidential for some reason. What would be the reason? Trump University is closed. It no longer exists. So, it is quite unlikely it might return to Texas and then be re-investigated. So, the cease and desist letter suggests the real concern is more political than legal.

Obesity is sometimes referred to as a growing epidemic. There is more obesity today. But, obesity in itself does not rise to the level of a disability, according to a recent Eighth Circuit Court of Appeals decision. In Morriss v. BNSF Railway Company, No. 14-3858 (8th Cir. 4/5/2016), the plaintiff was 5’10” and weighed 285 pounds. He was at one time “pre-diabetic,” but as of the time when he applied for a job with BNSF, he suffered from no particular diagnosis. Mr. Morriss had a body mass index of 40.9 for one physical exam and 40.4 at another physical exam. BNSF had a policy against hiring anyone for a safety position with a BMI greater than 40. The plaintiff lost on summary judgment at the district court level.

The plaintiff appealed on the grounds that he was regarded as having a disability. The Eighth Circuit disagreed. It said to qualify as a disability under the ADA, there must be a physical impairment that falls outside the normal range and that impairment occurs as a result of a physiological disorder. The plaintiff cited more recent cases based on the ADA Amendments Act that found there need be a physiological disorder only when the weight falls within the normal range. But, said the court, Congress did not change the definition of physical impairment when it amended the ADA. It did change the legal standard, but did not change the definition of physical impairment. And, that definition requires there be some underlying physiological disorder.

The court then found that the employer did not regard Plaintiff as having a disability. Instead, it regarded him as having physical characteristic. So, yes the employer could regard him as having a physical characteristic that could lead to future medical problems. See decision here. The Eighth Circuit joins the Second and Sixth Circuit in finding that obesity alone does not qualify as a disability under the ADA.

Regardless of this decision, as the population becomes heavier, I expect we will see more litigation over this issue.

Are college football players employees? The NLRB, at least on the regional level, said yes. See my prior post regarding that ruling here. In a similar case, one former college basketball player, Ed O’Bannon, sued the NCAA for using his name and image in marketing. The NCAA has long used the names and images of current and former players in marketing efforts. A lower court had found in favor of the former players. The district court had ordered deferred payments for current student athletes.

But, the Ninth Circuit Court of Appeals saw things differently. The higher court opinion said offering payments to students not related to education expenses would go too far. That would be a “quantum leap” over the current system which bases payments on education expenses. The higher court did agree that the NCAA rules are subject to anti-trust scrutiny, indicating future challenges are likely. See CBS news report.

In a recent ruling, the National Labor Relations Board has adopted a new standard regarding joint employers. Joint employers is a relatively new creation in the area of labor and employment law. Joint employers, as the name suggests, refers to separate employers both being employers of the same employee. Many years ago, I worked on a case in which a large office supply house contracted out its drivers to a third party. One day the drivers worked for Acme Office Supply. The next day, they worked for Speedy Delivery Service. Based on many factors, the drivers were eventually found to be employees of both entities. Yet, both entities had completely different ownership structures.

That situation was more apparent. It was obvious the large office supply company was trying to avoid liability when it switched to a third party. And, since the large office supply business still actually supervised the drivers in every way, it was easy to see that Acme Office Supply was still an employer, at least in part. But, what if Speedy Delivery hired some of the old drivers, but not all? What if Speedy Delivery had its own human resources department? And, what if Acme had some employees on-site, but so did Speedy Delivery? That is much like the case in Browning-Ferris Industries, 362 NLRB 186 (8/27/2015). BFI operated a recycling center. BFI hired and supervised the employees who worked outside the center. But, to perform the functions of sorting and cleaning the items inside the center, BFI contracted with Leadpoint Business Services. The chief Leadpoint person reports to his corporate office in Arizona.

The Board noted that the common law test for joint employers up to now has focused on control. Who controls the employee? If both entities control, then both entities are employers. The Board then looked to the test for independent contractors, which does look at who may control the employee, not necessarily who actually does control the employee. There was some evidence that BFI exercised control over some Leadpoint employees. But, the Regional Director found these instances were too infrequent to establish control. The national level Board, however, focused not on actual control but on the degree to which the second entity could control. So, the Board by a 3-2 vote, decided that no longer will it be necessary to show that the second entity must actually exercise that authority which it possesses over the employee. Browning-Ferris, at p. 15-16 (slip opinion).

The Board then noted that BFI though its agreement with Leadpoint, possessed “significant” control over who Leadpoint hired. Although BFI did not participate in Leadpoint’s day-to-day hiring decisions, it “codetermined” the outcome of that process by imposing specific conditions on Leadpoint’s ability to make hiring decisions. Even after Leadpoint has determined that an applicant meets the required qualifications, BFI still retains the authority to reject that employee “for any or no reason.” BFI retained the authority to “discontinue” any of the personnel assigned by Leadpoint. Two BFI managers testified that BFI has never discontinued any employee or has ever been involved in discipline. But, said the Board, two such incidents occurred in which BFI requested the immediate dismissal of two workers.

So, the Board determined that BFI was mis-leading. Prevarication to a tribunal always leads to problems for that entity.

The Board also found that BFI exercised indirect control over the speed and methods of Leadpoint’s work. The speed of the conveyor belts has been a source of constant tension between BFI and Leadpoint. Apparently on their own, BFI personnel have coached Leadpoint personnel on how to work smarter, faster – with no apparent involvement of Leadpoint managers. Since BFI retained “ultimate control” over the sorting and sifting lines, the Board found it difficult to see how Leadpoint could bargain with a union over issues involving work speed and breaks. BFI also assigned work positions, and assigned specific tasks that need to be completed. It dictated the number of workers needed and the timing of the work shifts.

Regarding wages, BFI played a significant role in the rates of pay and how the Leadpoint workers were paid. Under the terms of the agreement, Leadpoint may not pay its employees more than BFI pays its employees.

So, yes, this decision is possibly far-reaching. The standard for many principles of employment and contract law start with NLRB decisions. If the NLRB finds that indirect control is “control” for purposes of the National Labor Relations Act, then that certainly could spread to other employment statutes. The other day, I heard one reporter say this could affect franchises and their corporate headquarters. Yes, indeed. If McDonald’s requires its franchisees to establish certain work schedules, pay certain wages and even positions the workers in the work area, then that would certainly make them a joint employer of the local McDonald’s employees. See decision here.

This is a 3-2 decision. That means when the next President comes into office and points his two new members of the board, this decision could change. But, until then, we have a very new standard that will change the outcome of many cases. This decision is a game;changer.