If I said one day, " I go to work, I sue the federal government, and then I go home," I would be accused of filing frivolous lawsuits.  When Greg Abbott says the same thing, that he goes to work, sues the federal government, and then goes home, he is accused of effective politics.  The Federal Rules of Civil Procedure provide that we may not present to the court any motion or pleading for the purposes of delay, harassment or to needlessly increase the costs of litigation.  Any claim or defense should be warranted by existing law or by a non-frivolous extension or reversal of current law.  Fed.R.Civ.Pro. Rule 11.  Papers filed in court should be well-grounded in fact and legally tenable.  Primus Automotive Financial Svcs v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997).  "Frivolous" speaks to the motive for filing a particular lawsuit. 

Mr. Abbott, as Attorney General, has sued the Obama administration 27 times and the Bush administration 3 times.  Of these 27, his office declares ten as outright wins, two were clear losses and four were dismissed.  Well, where I sit, a dismissal is a loss.  Eight cases are still pending, but among those, four have been dismissed and are on appeal.  See Texas on the Potomac blog.  Well, again, where I sit, a dismissal is a loss.  Yes, sometimes, dismissals are overturned, but appeals are always an uphill climb.  Mr. Abbott has served as Attorney General since 2002 when he was first elected.  

Is this the best the Attorney General’s office can do?  Ten wins out of 27 would get most District Attorneys dismissed from office.  Like the local County District Attorney, the Attorney General can pick and choose his cases.  The AG, like the local DA, should have a win rate of 90% or better.  

Sure, some cases are filed to change the law, or to seek equity of some sort.  All lawyers should support such lawsuits from time to time.  But, 37% is a lot of "let’s improve the law" sort of cases.  Any private lawyer would be out of business doing that many Don Quixote cases.  

The Attorney General has spent close to $4 million on these Quixotic lawsuits.  He has hired outside counsel for many of these lawsuits.  Nearly half this amount, or $2.4 million was spent on two lawsuits regarding voting rights changes which affected minority voters.  Another $1.9 million has been spent on defending the state against minority concerns regarding re-districting.  That $1.9 million is not included in the almost $4 million, because Mr. Abbott did not initiate that lawsuit.  But, one could argue that defense represents another frivolous defense.  

More than half of his lawsuits have been brought against the EPA.  Other lawsuits were filed regarding the federal health care law, a lawsuit in response to the federal government’s cut of funding after Texas defunded Planned Parenthood, a lawsuit regarding red snapper regulations, and a provision that kept $830 million in education funding from reaching Texas.  See San Antonio Express News report.  And, lawsuits regarding pollution regulations and re-districting laws will require the use of expert witnesses.  So, litigation expenses will double.  

And, one of his claimed wins, the lawsuit regarding redistricting is suspect.  The AG filed two lawsuits to avoid the pre-clearance requirement and lost both.  Two separate courts found evidence of discriminatory motive by the state Legislature.  One would think the AG lost those lawsuits.  But, in a separate suit, the Supreme Court struck down the pre-clearance requirement.  

As lawyers, we are expected to educate our clients regarding the risk of a lawsuit and sometimes to even tell the client their lawsuit will not fly.  Indeed, most lawyers want to avoid a reputation for filing weak cases.  I myself have had to decline a case to many sincere, well-intentioned persons. …  But, not many lawyers have the luxury of a very large litigation budget, regardless of the outcome of any one particular lawsuit. 

There are a number of institutional obstacles placed in the way of plaintiffs in employment lawsuits.  One of those obstacles is the "self-serving" affidavit principle.  Numerous cases have held that a plaintiff must have more than a "self-serving" affidavit on which to base his claim . . .  as though there was such a thing as affidavits which were not "self-serving."  Actually, there are affidavits by impartial witnesses in all cases, but such witnesses are rare.  Third party witnesses are especially rare in employment actions, because any current employee who testifies in support of a plaintiff does so at the risk of his/her job.  

In a motion for summary judgment, the plaintiff’s affidavit is often the only affidavit supporting the plaintiff.  While, the employer will have an affidavit from the alleged wrong-doer and perhaps one or two other employees.  Any current employee who testifies for the plaintiff does so at the risk of his/her job.  So, very few come forward.  Yet, the alleged wrong-doer, always a supervisor, has as much to lose as a terminated employee.  So, is not his affidavit just as "self-serving" as the terminated employee’s? 

The Seventh Circuit has recognized this disparity.  In Hill v. Tangherlini, No. 12-3447 (7th Cir. 8/1/13), the court expressly overruled precedent that found against a plaintiff who relied on his/her own affidavit to tell his side of the story in a motion for summary judgment.  The plaintiff still lost his appeal.  But, the court went to some length to clear up this area of law that did no make sense.  

See the court’s opinion.  

Ok, Texas workers do not have many rights, but they do surely have the right to work in a reasonably safe environment.  A Houston man has sued his former employer for allowing and encouraging tasering of the plaintiff.  Apparently, Bradley Jones was tasered some 24 times in his last nine months at Fred Fincher Motors.  The supervisor, Sam Harless, provided the stun gun.  He would film the incidents and then post them to YouTube.  See KSAT news report.  State Rep. Patricia Harless is a co-owner of the business. 

Mr. Jones has filed suit for assault and battery.  Mr. Harless responded that this was a frivolous lawsuit.  And, I am thinking Fred Fincher Motors must not have an HR department…..

The racial discrimination allegations against Paula Deen and her brother have been dismissed.  The claims which remain include sexual discrimination claims.  I previously wrote about the lawsuit against Ms. Deen here.  Apparently, the plaintiff in the lawsuit is a white female, who alleged she was offended by discrimination against black workers.  The judge noted there was no evidence that Bubba Hiers’ (Ms. Deen’s brother) offensive comments were directed toward Lisa Jackson or were intended to harass her.  See NPR news report.  So, the Judge dismissed those racial discrimination allegations. 

That reasoning makes some sense.  Yes, a white worker is entitled to freedom from discrimination toward minority co-workers.  But, unless a white worker has complained about discrimination against minorities and then suffered some retaliation, there is no claim.  Unless Ms. Jackson complained about discrimination against some minority person and then suffered some reprisal, she has no claim against the restaurant.  

The news report also explains that the restaurant was primarily run by Bubba Hiers.  So, any discrimination on Ms. Deen’s part would probably not have been admissible anyway.  

In the life’s-not-fair category, the allegations against Paula Deen received top of the page attention.  While, the news that the racial discrimination claim has been dismissed rendering Ms. Deen’s alleged prejudice irrelevant has received little attention. 

Mediation is now a common part of any lawsuit.  The EEOC has also embraced mediation.  Mediation is the process by which a nuetral third person explores the possibility of settlement.  When the EEOC performs mediation, it provides its own mediator.  The EEOC mediators are not active investigators.  Usually, at a mediation, the two parties remain in different rooms, as the mediator shuttles back and forth. 

Emotions run high at most mediations.  The litigants re-live the events as they explain, make offers and respond with counter-offers.  In one such EEOC mediation, the plaintiff employee did not care for the offer made by the employer.  The employee was still employed.  He left his room and went to the employer’s room.  he shouted: "You can take your proposal and shove it up your ass and fire me and I’ll see you in court!"  According to the Seventh Circuit, the employee "stalked" out of the room, leaving the employer and his representative "shaken."  

The employer, A.B. Data Ltd., took Mr. Benes up on his offer and fired him.  Mr. Benes then sued for retaliation.  He was after all engaged in the EEOC process and had filed a charge.  In the lawsuit, A.B. Data moved for summary judgment, arguing that Michael Benes had been fired for disrupting the mediation, not because he filed a charge with the EEOC.   The district court agreed and granted summary judgment.  The Seventh Circuit agreed.  Said the court, Mr. Benes "sabotaged" the mediation.  Benes v. A.B. Data Ltd., No. 13-1166 (7/26/13), p. 3.  See decision.  The court compared his actions to barging into the boss’s office and shouting. 

The court said the plaintiff has cited no case holding that misconduct during a mediation "must be ignored."  The court described Mr. Benes’ action as an "egregious" violation of a mediator’s protocols.  Id., at p. 3.  It looked at the decision in Burlington Northern & Santa Fe Railroad v. White, 548 U.S. 53 (2006) which held that retaliation included any response by an employer which would dissuade a reasonable person from making or supporting a charge of discrimination.  Said the court, sanctions in court for misconduct would not discourage a person from complaining about discrimination.  And, neither do sanctions for misconduct during a mediation.  

But, of course, the problem with the Court’s reasoning is that only very rarely would sanctions in court include the "nuclear option" of complete dismissal of the plaintiff’s case.  In affirming the grant of summary judgment, the court has employed the nuclear option.  Or, more precisely, the court has sanctioned the employer’s use of the nuclear option. 

As Prof. Secunda noted in his blog, compare the result in 1969 when an employee filed a false and malicious charge with the EEOC.  The court in that case protected the employee’s right to do so under the Title VII retaliation clause.  See Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969).  The Fifth Circuit said then that the intent of Title VII would be frustrated if any employer could determine the truth or falsity of an employee’s complaint. 

The problem with this 2013 decision is that many, perhaps all mediation sessions in employment cases involve raised tempers and plenty of emotion.  Yes, we need to be civil.  But, like sanctions in court, the consequences should not include complete dismissal of one’s case.  After all, as I have explained here before, when a person loses a job or may lose his job through no fault of his, emotions get very high.  See Workplace Prof blog.  

In a remarkable advance for persons with disabilities, Justin Slaby won his discrimination lawsuit against the FBI.  The jury returned a verdict awarding Mr. Slaby $75,000 in compensatory (emotional suffering) damages.  Because the government is the defendant, punitive damages are not available.  The court will determine the details regarding whether Mr. Slaby should be reinstated to the FBI Academy, lost pay, and such at a subsequent hearing.  See Washington Post news report.  I previously wrote about this lawsuit here. 

The important lesson for employers is to document the truly "essential" job functions.  Too many employers leave open what are truly essential functions of a job.  In this case, there was some evidence that the FBI fabricated the supposed requirement that all Special Agents be able to fire with their non-dominant hand.  This result should serve as a warning to employers who "cook up" such new job requirements. 

The FBI fought this case very hard.  When I looked at the docket sheet a week or so ago, it was perhaps three times longer than the average federal lawsuit.  The employer filed very many motions and contested many, many issues.  If some lawsuits are frivolous, then many defenses are also very frivolous.  So, now, the attorney’s fee request by the employee will also be very large.  With three plaintiff lawyers doing a great deal of research and dealing with unnecessary work by the defense, I would expect the attorney fee request to double or triple the $75,000 awarded to the plaintiff. 

The lesson I hope we all take from this is that persons with disabilities should be assessed based on their abilities, not on some stereotype.  The former Army Ranger deserved much better than what he got. 

And, for all Iraq and Afghanistan veterans out there, Hooah!

So, the proposed bill vetoed by Gov. Perry was the subject of lobbying efforts by some retailers.  The bill, passed in both houses of the Legislature, would have allowed women and others to file suit when they learn of pay discrimination.  Now, they must file suit even though they may not learn of a pay discrimination violation until years too late.  I previously wrote about this veto here.  This veto leaves women and others in the position that to file suit, they must learn of the pay disparity within 180 days of the disparity.  But, since employees rarely discuss their pay, such knowledge will come far too late to allow any such lawsuit.  The U.S. Congress passed a statute to allow such lawsuits.  But, when Texas tried to pass an equivalent bill, Gov. Perry exercised his veto  power. 

It turns out that the governor was lobbied by Kroger’s, Macy’s, Brookshire Grocery Company, a Houston based grocer, Market Basket and the Texas Association of Business and the National Federation of Independent Businesses.  HEB, a San Antonio grocer, did not participate in the lobbying effort.  See Aug. 6, 2013 edition of the San Antonio Express-News.  Thanks to an open records request by the Houston Chronicle, we have better a idea regarding what actually motivated Gov. Perry’s veto.  As the bill’s sponsorrs mentioned, they had no idea the Governor was opposed to the bill.  The bill passed with bipartisan support.  

If the Governor had some particular issue with the bill, he could have made his intentions known.  But, in doing this stealth veto, the Governor ensured the bill would not pass in any form. 

At the time, Gov. perry said he opposed the bill to maintain Texas’ positive business support.  He also claimed that federal law provided an adequate remedy.  But, as I explained previously, federal courts are unfriendly to employees in many parts of the state. 

And, now, we know the rest of the story……

As regular readers may recall, I served in Iraq from 2005-06.   I was an Army Reserve officer at the time.  So, I am a bit sensitive to veterans issues.  One such case concerns Justin Slaby, a veteran of two tours in Iraq and one tour in Afghanistan.  Mr. Slaby was about to deploy again when he lost a hand in a grenade accident while training in Georgia.  He lost his "non-dominant" left hand.  That means he retained the hand he primarily shoots with.  He applied for and was eventually accepted by the FBI Special Agent Academy.  I know simply submitting his application must have been a difficult step for Mr. Slaby.  It is hard for disabled veterans to step into non-disabled society, much less compete with folks without a disability.  

He attended the FBI Academy, but it did not go well.  Some instructors were offended that a person with a disability was allowed to attend the academy.  One said, "what’s next, guys in wheelchairs?"

The firearms instructor, however, supported Mr. Slaby and felt he could handle firearms effectively.  The instructor, Mark Crider, noted that Mr. Slaby did not lose his dominant hand.  Eventually, Mr. Slaby was dismissed from the Academy.  A key witness was Agent Crider.  Agent Crider’s supervisor, Teresa Carlson, called the firearms instructor into her office.  Agent Carlson was the head of the Milwaukee, Wisconsin office.  She went into a "protracted dialogue" about why Mr. Slaby should never be an agent because he was handicapped, said Agent Crider.  Special-Agent-in-Charge Carlson indicated the FBI headquarters was upset about the lawsuit and that Agent Crider should support the FBI position.  Agent Crider felt his career was being threatened.  Yea, I am sure it was threatened. 

In the lawsuit, the federal judge found that this conversation was intended to sway Agent Crider’s testimony.  The judge described the conversation as "wholly inappropriate."  See Washington Post report.   I think that is tame.  Her conversation clearly violated the Americans with Disabilities Act and Title VII.  As a federal law enforcement officer, she should be setting the example, not seeking ways to violate the two statutes. 

The jury will hear such a ruling during the trial (now ongoing).  See Milwaukee Journal-Sentinel report.  Now, Agent Carlson has lost her job as head of the Milwaukee office and has been transferred to Washington, D.C. – shortly after she refused to testify in the trial.  The newspaper report says she refused to testify at trial, but I am sure that was probably a deposition.  That is, she probably refused to testify at her deposition, once she learned the FBI was investigating her regarding her attempt to suborn perjury. 

I have to say, I find it appalling that an FBI agent, a representative of perhaps the finest law enforcement agency in the world, refuses to testify in a lawsuit regarding a federal statute, such as the Americans with Disabilities Act.  If she committed errors, she should have the fortitude to admit to those errors.  This is only more true because those errors concern a young veteran who lost his hand defending her and other citizens.  I would hope law enforcement officers would recognize such a duty. 

Mr. Slaby is still employer by the FBA in a non-Special Agent capacity.  

in its motion for summary judgment, the FBI argued that Mr. Slaby could not shoot safely with his non-dominant hand, meaning his left hand which now consists of a prosthesis.  Yet, the FBI was also fighting the release of evidence that some Special Agents graduated from the Academy even though they also could not apparently shoot well with their non-dominant hand.  The FBI appears to rely on the argument that Mr. Slaby could not safely fire his weapon with his prosthetic hand.  Yet, the firearms instructor, Agent Crider, should know more than anyone else how limited or not Mr. Slaby would be.  At least in the Army, the firearms instructor is expected to prepare candidates for all scenarios.  I find it hard to believe Agent Crider would not have taken all this into consideration.

And, of course, since Agent Crider now appears to testify at the risk of his career, his testimony will be exceptionally credible.  

The lawsuit appears to concern what are the true "essential functions of the job."  This is a key issue in many a disability discrimination case, these days.  Mr. Slaby’s attorney, Kathy Butler, who I happen to know, was quoted as saying people who go off in defense of their country should get a "fair shake" when they return.  Yea, no kidding.  It is unfortunate that some of us, especially some of us who should know better, do not realize that. 

In employment cases, it is very difficult to not take things personally.  When a person works for a company for 20 years and then gets fired because s/he comes down with some illness or because a new boss does not like minorities, then it does get personal.  I know.  But, once the lawsuit is filed, a plaintiff needs to step back a bit.  A lawsuit requires some hard business decisions up to and including settlement.  PI lawyer Philip Thomas in Mississippi reminds us that lawyers, if no one else, should not take the "take it personal route."  Philip talks about a demand letter sent in a California case that came close to extortion.  That is, a letter requesting early settlement in a case contained enough impied threats of legal action that it came close to extortion.  See Philip Thomas’ blog post. 

Ultimately, a California appeals court ruled that the demand letter by a prominent Hollywood lawyer did not amount to extortion.  Close call, sort of.  As lawyers, should we be sending letters that come close to extortion? 

As Philip explains, too many times, a defendant dislikes the plaintiff and the plaintiff’s lawyer so much that a lawsuit becomes a street brawl.  Letters like the 2011 Marty Singer letter to a prominent defendant ("Big Brother" winner Mike Malin) help fuel those sorts of perceptions.  Too, often such letters are themselves fueled by the plaintiff himself who feels strong animosity toward the defendant.  Too many plaintiffs overestimate the importance of a lawsuit to the defendant.  I hear that many, many times: the [company] will never let these claims go before the public.  

Oh yes, they will.  Many companies will allow allegations to go to the public in order to avoid the perception that  XYZ company settles cases too easily.  

And, as Philip says, isn’t it time for the grown-ups to step in?  When a lawsuit is filed its time to behave, or attempt to behave.  

And, what happened after Mr. Singer sent this threatening demand letter?  Mike Malin sued the lawyer, Marty Singer, and his client, "Top Chef Canada" Judge, Shereem Arazm and alleged extortion among other claims.  A day later, Mr. Arazm filed his lawsuit – without the sensational allegations promised in the initial demand letter.  So, the original demand letter lead to a street brawl.  And, the lawyer becomes just another street thug. 

 

Jon Hyman writes about a potential fake doctor’s note in his blog, Ohio Employer Blog.  He noticed this doctor’s note at another blog, Buzzfeed.  Buzzfeed seemed to enjoy pointing out the alleged discrpancies in the note.  "Take notes of this note, people, "warned the website.  But, as Jon points out, the employer should not fire the employee simply based on this note.  Sure, there may be some reason to question the note.  But, heck, most doctors are very busy and find it hard to find the time to write these notes.  I know.  Many of my clients have described to me having to wait hours at a doctor’s office for just this sort of note, or worse, they had to wait weeks for the doctor’s staff to provide them with such a note.  Doctors do not always invest a great deal of time in drafting notes for their patients’ employer. 

So, take notes about Jon’s advice.  Double check before you fire anyone over a possible fake medical note.  It might just be a busy doctor, doing what s/he can for his patient.