It is not often that the Fifth Circuit overturns summary judgment.  The chances of that happening are about ten percent, according to one study.  I previously discussed that study here.  in Haverda v. Hays County, No. 12-51008 (5th Cir. 7/17/13), the 20 year employee Richard Haverda supported the incumbent in his race for re-election as County Sheriff.  Capt. Haverda published a letter supporting the incumbent describing his efforts regarding running the County Jail.  The incumbent lost.  So, as often happens after an election, the winning Sheriff sought to remove supporters of the opponent, in this case, the Captain of the Jail.  The new Sheriff cited problems in the jail as grounds for terminating Capt. Haverda.

 The employer moved for summary judgment and won, citing the alleged work deficiencies claimed by the new Sheriff.  On appeal, the court noted the alleged deficiencies but rejected the lower court’s finding that the employee was simply disagreeing with the employer’s assessment of his work performance.  The employee had actually asserted pretext regarding the employer’s claims, said the higher court.  If all the employee had done was to deny the allegations, that might not have been enough to create a genuine issue of fact.  But, said the Fifth Circuit, the employee also provided testimony from a co-worker that the allegations regarding Capt. Haverda’s work performance were not true.  The plaintiff also offered evidence of 20 years of positive work evaluations and an alternative explanation for a separate issue.  Such evidence, said the court, was enough to create a fact issue, whether the fact issue be "weak or strong.  Too, no jail personnel other than Mr. Haverda were terminated.   

Even though this was a First Amendment case, the same analysis would apply in any discrimination case.  The issue is whether the plaintiff can create fact issue based on more than mere conclusory allegations.  Here, the plaintiff did so, and this one time perhaps, the court was listening. 

Southside Board Trustee, Alma Guzman, has settled her claim against the Southside Independent School District.  I previously wrote about her lawsuit here, here, here and here.  Ms. Guzman lost her trial regarding the retaliation claim, earlier this year.  Her other claim for sex discrimination had been dismissed by the judge.  After the trial, she appealed to the Fifth Circuit in New Orleans.  As I explained earlier, her settlement offers were way too high.  And, based on the court’s decision, it sounded to me like her evidence for retaliation was weak.  

So, if the employee is appealing to the Fifth Circuit, a notoriously pro-employer venue, why would the board settle with her, at all?  The chances of her winning her appeal were less than ten percent, according to one recent study.  And, hers was a judge trial.  The opportunities for judicial errors go way down when the judge is the ultimate fact-finder.  The answer is beyond me.  But, political cases are very hard to predict.   See San Antonio Express News report. 

President Obama has articulated the black experience for many Americans, but his words really speak to all minorities.  "There are very few African-American men in this country who have not had the experience of being followed when they were shopping at a department store, and that includes me."  He described walking across a street and hearing the click of car doors locking.  Or, seeing a woman clutching her purse when a young black male enters an elevator.  See CBS news report.  These experiences are part of our life, a life unique to minorities.  

I remember a black law school classmate telling me how, back in New Orleans where he and I both attended law school, he would see white women crossing the street whenever they saw him coming their way.  Yet, as I looked closely at Greg, he dressed exactly as I did, jeans, nice t-shirts and tennis shoes. 

What George Zimmerman did was racist.  He profiled a young man and eventually killed him for little more than a perception.  And, that is what happens everyday in American work places.  Caucasian managers, completely oblivious to this "other" experience in America, perceives problems that are not there and then takes actions based on that five minute perception. 

So, just a few days after their first warning to an employer, the Ninth Circuit issues another "show cause order"  to a second employer about filing a frivolous petition for writ of mandamus.  The court again states it will impose monetary sanctions unless the employer can show good cause for its appeal.  In In Re Con-Way Freight Inc., No. 13-71160, (9th Cir. 6/27/13), the Court found the petition for writ of mandamus to be "frivolous and wholly without merit."  In the appellate world, that is as direct as judges get.  And, again, the employer was appealing from a denial of its motion for summary judgment.

Again, the law firm representing the employer was Littler Mendelson P.C.  The individual defense lawyers are different, but the same law firm is involved.  So, now the petition for writ of mandamus is starting to look more like a defense tactic than an upset and surprised defendant. 

There is this device known as a "writ of mandamus" by which a party to a lawsuit can seek to force a U.S. District Court to change a ruling.  It is an "extraordinary" write reserved for "drastic" situations.  That is judge-speak for saying a writ of mandamus applies only to situations which are not "fixable" by a normal appeal and in which a lower court judge is clearly wrong.  See, e.g., Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977).  So, when a defense lawyer sought mandamus in a situation not meeting these requirements, the Ninth Circuit took offense.  See In Re Nordstrom, Inc., No. 13-71163 (9th Cir. 6/17/13).  In this case, the Ninth Circuit issued an order regarding the employer’s writ of mandamus.  The Court found the petition for a write of mandamus to be "frivolous and wholly without merit."  It ordered the employer (represented by Littler Medelson P.C.) to explain within 21 days why monetary sanctions should not be imposed. 

The employer’s Petition for Writ of Mandamus sought relief because the lower court denied the employer’s motion for summary judgment.  In the employer’s view, the district court failed to construe a pertinent decision correctly and did not adequately weigh the possible inferences.  Regarding the need for immediate relief, the employer simply claimed that it would be exposed to class certification and possibly losing at trial.  In other words, if the employer did not seek this extraordinary relief, it might lose at trial and it might lose a motion for class certification.  The Ninth Circuit rightly finds this petition to be frivolous.  Class certification is not at all a "sure thing."  Many times, the employees lose a motion for class certification.  And, I know many of us have forgotten what it was like to try a case in federal court, but back when we still had trials, plaintiffs do lose sometimes.  So, being exposed to possible loss at trial comes nowhere near the extraordinary requirements for a writ of mandamus. 

More likely, the employer and their attorneys simply could not accept losing their motion for summary judgment.  Their attorneys might have even assured the employer of a strong likelihood of winning.  According to the employer’s Petition, the court expressed some ambivalence in its decision – not an unusual result in a close case.  But, in litigation, we are expected to accept a loss with some grace – even in a close case.  The Ninth Circuit was right to issue a warning to the employer.  It has unreasonably added to the litigation costs for all concerned.  

Some employees might file a weak appeal, but certainly, the incentive lies more with the employer.  The employer’s lawyer is generally paid by the hour and has some incentive to perform unnecessary work.  I am sure Nordstrom is not the first and will not be the last employer to file a frivolous appeal. 

There has been much talk in law review articles and some seminars about the disappearing jury trial in federal courts.  The courts are granting dismissals and summary judgments more and more.  So, these days, the true battle is often over the employer’s motion for summary judgment.  Mike Maslanka recognizes that new dymanic when he pens his post regarding a 2d Circuit Court of Appeals case.  

The decision in McMillan v. City of New York is important because it sheds some light on the accommodation process.  In McMillan, a worker was allowed a window between 9 and 10:00 a.m. in which to report for work.  Due to his disability, he took medication which caused drowsiness.  The drowsiness caused him to arrive late for work, as late as 11:00 a.m.  He was disciplined and received a 30 day suspension without pay.  he sued.  

The district court granted the employer’s motion for summary judgment.  It found that arriving for work on  time was an essential function of the job.  With his medication, the worker could not satisfy this essential function.  But, the 2d Circuit reversed and said the court needed to engage in a "penetrating" factual analysis.  The court noted that if the window lasted an hour, then perhaps arriving on time was not truly an essential function of this job.  The district court should first look at that issue before granting summary judgment, said the court of appeals.  The appellate court rightly noted that the issue is not pretext.  No one disputed that the worker was late.  The issue was whether he could perform the essential functions of the job and whether arriving timely was an essential function of this job.  See the court’s decision here. 

The appellate court is right in this decision.  But, note Mike’s reaction.  Mike Maslanka represents primarily employers.  He describes this decision as a win for the plaintiff, which it is.  But, should it be a win for the plaintiff?  The plaintiff must still try his case before a jury.  There is no guarantee he will win.  Things have changed so much in the past 30 years that now, winning summary judgment is seen as a win – by both sides of the docket.  See Mike’s post. 

The trial regarding George Zimmerman has been going on until 10 p.m.  That is a very long day, when you consider that both sets of lawyers will need to complete several tasks every night after a trial.  During a trial, both sets of lawyers will spend anywhere from 2 – 4 hours, or more preparing for the next day.  Trials are grueling even when they end at the more traditional time of 5 or 6 pm.  The defense lawyer tried to move to end the trial day earlier.  He mentioned they had all been working very long hours.  But, the trial judge shot back, "So have I!"  The other defense lawyer pressed the motion, saying they had to do depositions at night and on weekends – as the judge simply packed up her reading materials and left the courtroom.  See ABA Bar Journal report. 

Yes, trials get very tense – completely apart from the merits of a particular case.  And, sure, the judges get tense, like any human would.  Not like those always calm, wise TV judges.  So, when clients tell me they "just want their day in court," I try to explain that sometimes, you do not get the day you want in court, even when you get there……

When a person is fired through no fault of their own, it is a huge psychological blow.  That emotional setback is compounded when the Texas Workforce Commission denies the newly unemployed person’s claim for unemployment benefits, or worse, shows bias toward the employer.  One poor woman worked for a very demanding person.  The male CEO was abusive, demanding his employees work 60, 70 and even 80 hours per week.  "F— you all!"  "I give up!!"  "You all are f—ups!" he would frequently shout to his employees.  Since he was the owner of the small business, the employees had no recourse.  When the woman asked for time off for a brief vacation, the male manager said yes.  At first.  He later rescinded his permission, insisting the nine year employee work all month before taking a break.  

The nine year female employee threatened to quit.  The male manager said she cannot quit, because she was fired – but not until the end of the month.  

In the end, the female employee was fired.  She applied for unemployment benefits.  In the interview, the TWC investigator repeatedly asked questions indicating the investigator believed the male CEO’s story that the woman quit because she could not get those two days off for a brief break.  The TWC officer accepted the supervisor’s story completely.  Now, the nine year employee is appealing her denial of benefits.  I talked previously how TWC seems designed to frustrate employee claims.  See my prior post.  In another post, I talked about how the head of the appeals division at TWC counseled employers on how to "game" the system and avoid paying benefits.  

Nothing, it seems, has changed. 

When I was a young law student, the professors loved to talk about the erudite opinions of Judge so-and-so.  Judge Learned Hand of the Second Circuit was one such judge.  Justice Brandeis was another.  I suppose if any such judges are around today, Judge Posner of the Seventh Circuit would qualify.  His opinions frequently distills the law in ways us regular folks can understand.  Surely, that is a fundamental requirement for any appellate jurist.  In Cook v. IPC International Corporation, 673 F.3d 625 (7th Cir. 2012), the lower court judge muddled the case a bit.  Judge Posner addresses one issue by  explaining the "cats paw" analysis.  He refers the reader to the original fable.  In the original story, a monkey persuades a cat to stick his paw in the fire and pull out some roasting chestnuts, so the monkey can eat them.  The cat’s paw is singed, but the monkey gets his nuts.  The cat was acting at the behest of the monkey.  

Well, much the same occurs when a discriminatory supervisor persuades a higher ranking supervisor to terminate an employee.  The cat’s paw analysis arises in a case in which a female security guard was fired by a male supervisor who wanted an all male force.  But, as Judge Posner points out, the employer did not actually argue cat’s paw.  The employer actually argued that the female security guard had not been fired, at all. She merely misunderstood a transfer to be a termination.   It was the district court that erroneously injected the cat’s paw theory into the case.  as Judge Posner explained, the plaintiff simply claims the monkey fired her, not the cat.  That is, the monkey acted directly, not through some other person.  

The appellate opinion also explains the lower court’s error in imposing a sole decision-maker requirement for the jury’s verdict.  No one suggested there was more than one decision-maker.  The employer argued all along that the employee had not been fired.  Yet, the district court required the jury to find that the male supervisor was the "sole decision maker" in the termination, the termination which the employer denied ever occurred.  

Since the employee had the burden of proof, requiring her to show something that was not an issue amounted to a directed verdict for the employer, said the Judge.  Yes, it did.  Requiring her to prove something for which there was no evidence imposed a burden she could not meet.  And, so Judge Posner cleared up some baggage to reach the heart of the case.  See the opinion here. 

As much as I appreciate Judge Posner’s insight sometimes, at other times, in my opinion, he totally misses critical caselaw.  For example in Nicholson v. Pulte Homes, 690 F.3d 819 (7th Cir. 2012), he was presented with the termination of an employee who took FMLA leave.  Donna Nicholson had to take one day off to take her father to the oncologist.  When asked why the the female employee was fired, an HR representative said it was because she was dealing with "personal family issues."  The employee’s lawyer argued this statement showed the reason for her termination was related to her FMLA leave.  But, in oral argument, Judge Posner said he did not believe the HR representative was referring to Ms. Nicholson caring for her father.  He believed the HR person was simply trying to offer a polite response in his deposition.  

The Judge might be correct.  But, that is a decision for the jury.  Judge Posner, a bright judge in many ways, had no hesitation in substituting his judgment for that of the the jury.  He violated basis summary judgment principles.  The oral recording is available here.  Look for case No. 11-2238. 

Is a person a racist if s/he uses racist epithets?  Paula Deen admitted to using the n- word to describe African-Americans many times in her deposition.  On NBC’s "Today" show, she admitted to using the n- word just once in her life.  Ms. Deen is from the South.  Despite what the Supreme Court may say, many folks in the USA still believe us Southerners are racist or more likely to be racist.  See CBS news report. 

Certainly, the use of the n- word is considered direct evidence of discriminatory bias in discrimination lawsuits.  Numerous cases so hold.  Matt Lauer is right to ask Ms. Deen if she is a racist.  I think the better view is that we all carry some potential for racism.  It is those who recognize that persistent human weakness who better avoid actual racism. 

Back in the 1970’s when I was a student at Texas Christian University in Ft. Worth, Texas, one of the federal judges was accused of racism when he was said to use the n- word with some frequency and he was a member of an all-white country club.  His supporters, a few of my fellow students, defended him, saying, "well, he is older, he talks like people used to."  The problem with that logic is that if he talks like "they used to," then maybe he still acts like "they used to."  The language we use has meaning.  It does reflect who we are.  I think we all could improve our language and who we really are.  And, I know that in improving how one talks, employers will significantly improve their chances in a discrimination lawsuit.