A deposition is when one side has the opportunity to cross-examine an opposing witness prior to trial.  It is a key event in the discovery process.  Lady Gaga, whose real name is Stefani Germanotta, is being sued for unpaid overtime by a former legal assistant.  Jennifer O’Neill claims she is owed $393,000 for 7,168 hours of overtime pay.  That is a lot of overtime.  Lady Gaga claims Ms. O’Neill was paid $75,000/year in salary.  Apparently, Lady Gaga is claiming that Ms. O’Neill was on salary and exempt from overtime pay. 

During her deposition, Lady Gaga insisted this lawsuit was "bulls—t" and the lawyer knows it.  She (Ms. O’Neill) thinks she is the "queen of the universe," and she did not want to be a slave to one, because, said the Lady, "I’m the queen of the universe everyday."  

Lady Gaga insisted her employees work no more than eight hours per day, although the time is spaced throughout the day. You don’t get a schedule you can like "play f—ing Tetris at your desk for hours."  "This is — when I need you, you’re available."  See ABA Bar Journal report. 

In a deposition, the witness should always remember that everything said can and probably will end up in front of a judge and jury.  It is easy to forget during a deposition that the real audience is the judge and jury, not the opposing party and her lawyer.  These statements will likely haunt Lady Gaga during her lawsuit.  And, if she cannot document her assistant’s time better than when "I need you," she may well lose this lawsuit. 

 The Family Medical Leave Act was passed twenty years ago this week.  To learn a little more about the FMLA, see this overview.  Or, you can see the Department of Labor’s summary of what the FMLA has done for American workers.  Its hard to believe now, but there was a time when workers could be fired for too many absences. 

Most jobs require daily attendance, but is daily attendance always required?  Don’t most jobs allow time off for workers with good reasons?  Under the Americans with Disabilities Act, workers are entitled to time off as part of treatment for a disability.  Yet, there are cases that state otherwise.  See, e.g., Rogers v. Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996).  But, the facts behind the Rogers decision indicates something different.  Mr. Rogers was terminated when he had been out of work for three months and still had a year of disability leave remaining.  Even at the conclusion of the year long leave, there was no certainty that he could return to work.  His leave was much closer to indefinite leave.  The Rogers court was not addressing a definite leave time with clear end points.  

The ADA requires an analysis unique to each person with a disability.  Some persons do require leave as part of their treatment.  Numerous cases find that such persons are entitled to that leave.  In the U.S. Supreme Court decision, U.S. Airways, Inc. v. Barnett, 553 U.S. 391, 397-398 (2002), the court expressly found that persons with a disability were entitled to leave as an accommodation.  

So, the decision by the Western District of Texas in Carter v. Northside Independent School District, No. SA–11-CV-492 (8/10/12) is wrong or at least, mis-leading in one respect.  In that decision, finding summary judgment to be appropriate, the court found job attendance to be an "essential element" of any job.  if the person with a disability cannot appear for work everyday, the Court ruled, then the plaintiff is not qualified for the position.  And, in the Carter case, the teacher missed work some 60% of the time. 

But, the NISD posted the job description for the plaintiff.  The job description includes no reference to daily attendance or to how many hours per day a teacher must work.  And, speaking from personal experience, I have known one or two part-time teachers or co-teachers.  The summary judgment in Carter may be supported on other grounds.  In fact, the court also noted that the employee was out on "indefinite" leave.  Indefinite leave, noted the court, is not an accommodation an employee must grant. 

But, the court was not correct in its assumption that daily attendance is always an essential function of every job. 

A federal judge has a job for life.  They are generally more professional and more careful than a state district judge.  But, not always.  Judge Lynn Hughes of the Southern District of Texas is not so careful.  Sitting in Houston, he was just recently criticized by the Fifth Circuit Court of Appeals for not recognizing an obviously discriminatory remark in a case.  See my prior post discussing Judge Hughes here.  

Now, Judge Hughes has attracted further attention.  In a discrimination case, he has been asked to recuse himself.  Recusal in the litigation world is the nuclear option.  Rarely, very rarely does a lawyer seek recusal.  Since, if the lawyer fails, s/he will be stuck with one unhappy judge.
 
In Shah v. Texas Dept. of Criminal Justice, No. 12-CV-02126, the plaintiff’s lawyer has asked Judge Hughes to recuse himself.  The plaintiff’s lawyer, Jo Miller, came down ill just before a hearing before Judge Hughes.  Ms. Miller could not attend the hearing. She notified the court. But, the Judge held the hearing anyway.
 
At the hearing, he discussed her illness briefly, saying Ms. Miller needs a new doctor.  He discussed the merits of the case, even though Ms. Miller was absent.  He engaged in ex parte discussions about the case, a breach of judicial ethics.  He poked fun at directors of diversity, suggesting directors of diversity should just hire people based on ability and paint workers a different color.  He questioned the need for a director of diversity.
 
The Judge suggested that the plaintiff, Mr. Shah, while not disciplined at work, had been "obnoxious" in some way during his employment.  The judge said that would make him similar to every state worker. 
 
The Judge asked about the plaintiff’s race.  The attorney for the state said he was perhaps Indian.  Judge Hughes responded that the plaintiff is Caucasian then?  The attorney for the state said no, he is Indian.  The Judge insisted, they are Caucasian, apparently meaning all people from India. 
 
The Judge mentioned the swastika symbol came from India. The Aryans came from India. He said "they" act a lot like Germans. 
 
The Judge mentioned that Eleanor Roosevelt said staffs of all one color performed better. 
 
The Judge then told the Defendant’s attorney it was time he moved for summary judgment. 
In another recent case, Judge Hughes noticed the two lawyers representing the plaintiff were Vietnamese-American.  Apparently just because the two lawyers looked Asian, he commented that the two lawyers should move to North Korea and practice labor law there.
 
Federal judges are not perfect and we should not expect perfection.  But, to discuss the merits of the case with one lawyer while the other lawyer is absent is too much.  To profess controversial views on race is much too much.  See Above the Law’s take on Judge Hughes’ latest incident. 

When I was a young lawyer, fresh out of law school, I worked as a law clerk for a state district judge in small town Louisiana.  My judge had sat on the bench for close to 20 years.  Prior to serving as a judge, he had worked as a prosecutor for 10 years or so.  So, he had a lot of court room experience.  We had a certain day each week dedicated to motions hearings.  We had all sorts of cases come through for their one day in court on some motion.  One day, he asked me about a case he had heard that day.  

He asked me what was the story behind this child support case?  I had no idea what he was talking about.  He quickly rattled off the "back story" to what seemed like a routine request for an increase in child support.  He said the husband had cheated on his wife and was now married to his mistress.  I asked him if he knew the family.  No, he said.  How did he "know" these things?  the answer is he did not know.  But, he was drawing inferences based on what he had seen during a 20 minute hearing.  His message to a young lawyer then was to look deeper than just the pleadings.  I did not realize it then, but he was just starting to teach me to draw inferences where it makes sense to do so. 

So, today, I find it a little surprising when judges do not draw inferences, when they seem to insist on some higher level of proof.  A lawsuit has been winding its way through the system regarding some property owned by the state south of downtown San Antonio.  The parties had their trial this week.  The trial lasted for several days. 

The facts concern Lisa Wong, owner of Rosario’s Cafe, who was bidding on the former so-called DPS museum.  The former museum sits across from her restaurant.  She offered $1.69 million, a full $90,000 more than the successful bidder.  Karl Johnson, a lawyer, was tasked by the state to sell the property.  Mr. Johnson hired David Held to work as real estate agent.  Testimony in trial showed that Mr. Johnson would receive $22,000 more in commission if he sold to the second highest bidder, Paul Covey and his son.  Mr. Johnson insisted that difference did not affect his decision.  He testified that he was concerned that the Wong bid would require a 90 day hold on the property before its conclusion.  But, the Covey bid would only involve a 30 day hold.  

The Attorney General sided with Ms. Wong and was asking the judge to rescind the sale and to have the sale start all over.

The testimony near the end of the trial showed that Ms. Wong submitted a back-up bid in case the Covey deal fell through.  Mr. Held, the real estate agent retained by Mr. johnson, altered a material term of the back-up offer.  He "whited out" a provision he did not like.  Going into the trial, no one knew who did this or why.  The Judge asked about the change.  

In the legal world, it is not kosher to change material portions of any agreement without making the change obvious.  We usually make "pen and ink" changes.  In the legal business, it would be considered unethical to use "white out" and tell no one.  

After the judge insisted on getting to the bottom of this change, Mr. Held took the stand and admitted he had made the change.  Ms. Wong’s lawyer asked incredulously why Held had not spoken up when he heard Mr. Johnson say he thought Ms. Wong was up to some "trickery" when he saw the alteration?  Mr. Held responded that he did not recall Mr. Johnson blaming Ms. Wong for the deletion.  He said it might sound crazy, but he mistakenly thought Wong or her agent had deleted that section – the section Held himself had deleted.   He said he had forgotten that he had deleted it with white-out.  He said he knew that sounded crazy.  See San Antonio Express news report. 

Yes, that sounds crazy.  In fact, it sounds like Mr. Held was impeached – that is, his testimony was shown to be less than credible.  Yet, Mr. Held and Mr. Johnson won the trial. 

It is very rare to get damaging testimony like this in trial.  "Gotcha" moments are actually quite rare in court.  One would think the Judge would consider Mr. Held to be far from truthful or very forgetful.  Since he was employed by the lawyer Johnson, one would expect Mr. Johnson to suffer a similar evaluation.  But, Mr. Johnson and the sale to the Coveys won

Even now, I can see Judge Jackson from small town Louisiana shaking his head.  

This may be where many employers will be heading.  Athletic departments at The University of Texas at Austin and Texas Tech University have been using a service to monitor social media of their players.  Texas A&M University also used a service from 2008 until 2012.  The service monitors the social media accounts of the players.  The players are required to agree to such monitoring.  The social media monitored by the service includes Twitter, Facebook, MySpace and YouTube.  See San Antonio Express News report. 

The schools deny they are acting as big brother.  They insist they are simply trying to protect their players.  One service filters comments for profanity, alcohol, drugs, race and sex.  A proposed state bill would prohibit requiring athletes from being required to this sort of monitoring. 

If this is what the larger universities are doing with student athletes, how long will it be before large employers start doing the same with key employees? 

The likelihood that the U.S. Supreme Court will accept an appeal are less than 1%.  So, when the Supreme Court accepts a new petition, that is news.  The Supreme Court accepted cert in the case of Nassar v. University of Texas Southwestern Medical Center.  See the court’s website.  Nassar concerns a plaintiff who won at the trial level.  Dr. Nassar alleged he was forced to resign because he complained about discrimination.  He alleged retaliation.  The district court had issued a mixed-motive instruction to the jury.  That means the court instructed the jury that if they found that one of the motives for his constructive termination was Dr. Nassar’s complaint, then the jury should find in the employee’s favor.  

The Fifth Circuit Court of Appeals, not usually a pro-employee court, affirmed the instruction.  See Fifth Circuit opinion. 

The issue accepted by the U.S. Supreme Court is whether mixed-motive is the proper analysis for retaliation cases.  Some circuits use a "but-for" analysis.  "But-for" is often mis-understood in the courts.  Some courts have erroneously interpreted but-for to mean sole or only cause of an adverse personnel action.  But, the U.S. Supreme Court has held in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) that but-for means determinative influence.  That is, "but-for" asks what motivation was the final cause or reason for the termination.  There may have been other causes, but what was the ultimate reason?

In interpreting statutes, we are supposed to start with the language of of the statute.  Tile VII provides that a person may not suffer adverse action "because" that person has opposed discriminatory practices.  See 42 U.S.C. §2000e-3.  The statute simply says "because."  How did we get from "because" to but-for?  Title VII was amended in 1991 to provide, among other things, that a plaintiff may show discrimination by showing that discrimination was one of many motives.  The 1991 amendment did not expressly apply to retaliation claims – it mentioned discrimination claims, not retaliation claims.  This was probably an oversight by Congress.  But, it remains.  So, some circuits have found that retaliation claims require proof like "but-for" analysis. 

Does this distinction really matter?  Does the average juror really appreciate the difference?  Some commentators say no.  But, Mike Maslanka, a defense lawyer, is sure he won one case because of this difference.   See Mike’s post.  In any event, the but-for analysis does make granting summary judgment easier.  And, as we all should know, many federal judges look for any reason to dismiss an employment case. 

Following up on my post on the subject, I had the opportunity to speak with Colin O’Keefe of LXBN regarding Nelson v. Knight, the case where the Iowa Supreme Court ruled that a dentist was not wrong in firing his assistant for being irresistible. In the interview, I explain the basics of the case and why I think the Court erred in its ruling. 

Some phrases are simply racist.  That is, some phrases indicate discriminatory bias with no need for additional inferences.  But, sometimes it requires a federal court of appeals to make that clear.  The blog at Above the Law discusses the case of Autry v. Ft. Bend independent School District, 2013 WL 68370 (5th Cir. 1/7/13).  Mr. Autry alleged discrimination on the basis of his race, black.  Judge Lynn Hughes, a Houston federal court judge, discussed some key evidence in this case.

Mr. Autry had applied for a position at Ft. Bend ISD.  He was turned down.  Later, he was told that one of the key decision-makers had commented about the then candidate Barack Obama, "if Obama is elected president, they’re going to have to take the Statue of Liberty and put a piece of fried chicken in his [sic] hand."  Judge Hughes granted summary judgment in favor of the employer.   Judge Hughes said no black individual and no black collectively owns the "sensitivity rights" to "fried chicken or anything else."  

Mr. Autry’s lawyer suggested the fried chicken statement was a well-known racial slur in regard to blacks.  But, Judge Hughes responded that was a surprise to Col. Sanders.  As the blog explains, a statement assumes racial animus if one can substitute a different person and the statement loses its value.  For example, if we substitute Bill Clinton, a known lover of fried chicken, for Mr. Obama, the statement would lose its value completely.  The statement would have no meaning if it referred to Bill Clinton. 

Judge Hughes missed that critical understanding completely.  Some phrases convey implicit racial bias.  That returns me to my post from Jan. 15 when I mentioned research shows many Americans cannot see anything but the most obvious forms of discrimination. 

As Above the Law points out, Judge Hughes, a federal judge, ignores completely the racial component of the statement in this context.  The Fifth Circuit rightly reproved him – even as the higher court affirmed the summary judgment on other grounds. 

Discrimination is still with us.  Some folks disagree.  Some folks only see the most blatant forms of discrimination, preferring to minimize the more subtle forms.  Katie Eyer, at Workplace Prof Blog, mentions that psychology research shows some people just do not see anything but the most obvious forms of discrimination.  See her post. 

As if in confirmation of Prof. Eyer’s point, Gen.Colin Powell talks about a "dark vein of intolerance" in the Republican party.  Sarah Palin used racist terminology to criticize President Obama ("shucking and jiving").  Gen. Powell mentioned the barely rational "birther" movement in the party.  Gen. Powell asks why the Republican party would tolerate their wacky theories?  He suggests some Republicans tolerate the birthers because they treat a black Democratic President differently than they would a white Democratic President.  

That is the core of many discrimination cases.  Often, a minority worker is treated differently than a white worker for the same offense.  And, yes, sometimes, an employer will believe something wacky about a minority employee that he would never consider about a similar white worker. 

Ms. Eyer’s paper finds that many people in American prefer to believe our society is based on merit.  Experiments by psychology researchers show a deep-seated belief by Americans that people get ahead through hard work.  Such a belief will minimize facts showing clear bias.  Just a year ago, there was a rather well-known case in the 11th Circuit in which the court find that the use of the term "boy" in regard to a African-American employee did not necessarily show discriminatory bias.   Yes, even judges will minimize clear cases of discriminatory bias.