A couple of years ago, Ron Cain was demanding severance pay.  See my prior blog post.  Now, Ronnie Cain and his brother, Gary Cain are facing efforts by the City of Windcrest to seize the office condo they purchased.  Windcrest alleges they purchased the condo with money stolen from the city.  See San Antonio Express News report. 

The brothers have gone into bankruptcy.  Windcrest is seeking title to the condo, valued at $274,000.  The two brothers have been accused of embezzling $2.8 million given to the city by Rackspace  to upgrade infrastructure.  Ronnie Cain was indicted in 2010, sometime after he"demanded" his severance pay.  I thought it was a "nervy" request then, only more so now. 

Not in Texas, sort of.  In other states, workers may have no such protection, at all.  See the website, Can My Boss Do That? here.

Mitt Romney has been quoted as encouraging employers to tell their employees how to vote.   See Mike Elk’s blog post.  In this time of secret ballots, it would be hard for any employer to enforce such guidance.  The U.S. Constitution via the First Amendment would not protect most employees from coercion, assuming the employee does not speaking out to others about how s/he would vote.  

According to Mike Elk, the Citizens United decision a couple of years ago overturned Federal Election Commission rules which formerly prevented employers from political campaigning among their employees.  In a phone call with small business owners, Gov. Romney assured the business owners that there is nothing illegal about campaigning among their employees.  He may be right in most states.  But in Texas, the Texas Election Code, Art. 276.001 prohibits anyone from directing another person how to vote and from asking how the person voted.  The statute specifically prohibits one who has "authority in the scope of employment" from telling another how to vote.  That means employers. 

Of course, the Texas statute is a criminal offense, not a civil offense.  It is not likely that a busy District Attorney’s office would take the time to deal with a relatively minor crime like like voter intimidation. So, if the D.A. does nothing, the average worker is out of options.  But, shoot, we’ll take whatever we can get…..

 

Part of the problem in identifying racism is we as a country do not agree on what "racism" is.  I remember back when I was in college in Ft. Worth, Texas in the 1970’s, a local federal judge was accused of racism because he sometimes used the n-word.  Today, most of us would agree that using the n-word indicates a racist bias.  But, back then, one or two of my more moderate friends argued no, that is just the way the judge was raised.  He came from a time when "everyone" used the n-word.  Well, that is not true.  Not everyone who grew up in the 1920’s and 1930’s used the n-word.  But, regardless, times have changed and most people recognize today that use of the n-word reflects some racist bias. 

Under Title VII, racism generally includes any action that cannot be adequately explained.  If someone is fired for no apparaent reason, a jury may conclude that the termination was motivarted by improper reason, such as racism.  In Louisiana, one of my favorite places, the state Supreme Court has been engaged in a fuss fight over whether Bernette Johnson should become its Chief Justice.  Judge Johnson has seniority.  Judge Johnson is black.

Under court rules and the state Constitution, she should ascend to the Chief Justice position based on years of service.  The justice with the next highest seniority, Jeff Victory, argued he should be the Chief.  Judge Victory is white.  He claimed that Judge Johnson served 4 years as an appointed justice and that appointed time should not count.

Her appointment is a story in itself.  Her appointment came about after protracted litigation itself.  

Judge Johnson, Victory and a second justice recused themselves from the decision.  The four remaining justices and three more designated district court judges resolved the dispute and ruled that Judge Johnson should be the chief judge.  See CBS news report. 

Judge Johnson filed suit in federal court last July.  The U.S. District Court found that Judge Johnson had more seniority under the Louisiana Constitution.  But, the federal court did not order that she be instituted as chief judge.  The Louisiana Supreme Court came to their own conclusion.  If they had found differently, would that have reflected racism?  Perhaps.  But, in the end, they did the right thing.  Chief Justice Johnson becomes the first black Chief Justice in Louisiana history.  And, the state will be better for it. 

As I have discussed before, the National Labor Relations Board has waded deep into the Facebook waters.  See my post here and here.  

The Board recognizes that under the National Labor Relations Act, employees have the right to discuss terms and conditions of their job.  So, when employees post comments on Facebook about work, they are involving the NLRA, a 1930’s era statute.  One employee at a BMW dealership suggested a dealership picnic for customers was poor marketing.  Since, the dealership served hot dogs and bottled water (that’s not champagne or wine, noted the salesman).  The salesman also posted a mocking comments ("Oops") when a customer’s son drove a Land Rover into a brick wall and into a pond.  The salesman was fired.  He claimed he was fire due to these comments.  he argued the comments were protected speech under the NLRA, since they concerned work. 

But, the NLRB then found that the comments about the marketing event (i.e., the picnic) did not cause the salesman’s termination.  The hot dog comments did not cause the termination, said the Board.  So, it did not address that issue.  But, the comment about the son driving the Land Rover into a wall was not protected speech. That was not about work.  So, the salesman could have been fired for posting those comments. 

The Board found that the dealership’s "Courtesy" rule regarding employee communications was overbroad and could inhibit communication regarding working conditions.  The Board ordered the dealer to issue new policies regarding employee communications.  See Workplace Prof blog for more.

The NLRB normally deals with labor union issues.  But, we are finding significant guidance for the non-labor union world regarding Facebook. 

The average middle class homeowner comes into contact with the legal system in a couple of ways.  One way is the dreaded homeowners association.  Ed and Billye Simmons took on the homeowners association and won.  But, it took them 11 years and $220,000 in legal fees to do so.  It all started when the Florida couple received a bill for $2,212 for resodding their lawn.  The homeowners association imposed a lien on the Simmons home, apparently when they failed to pay for the resodding. 

The trial court found that the association did not follow its own governing rules.  The court awarded the couple $85,000 in damages.  The court will hold a hearing soon regarding how much attorney’s fees might be awarded.  See ABA Bar Journal report.  But, one has to wonder how many assets any homeowner’s association might have.  The Simmons may never get all their money back.  But, at least, they have now received some vindication. 

LCPL Benjamin Schmidt was killed in Afghanistan last year by friendly fire.  Before he joined the Marines, he was studying at Texas Christian University.  After his Marine service, he had planned to return to TCU to study history.  He enjoyed TCU so much that he designated TCU to receive one-half of his $200,000 life insurance policy.  His father was surprised at first.  But, he and his wife told Ben they would match the $100,000 if anything happened to his son.   

Now, there is a $500,000 endowed professorship at TCU in Ben Schmidt’s name.  See San Antonio Express News report.  People sometimes wonder why I served 28 years in the Army and Army Reserve.  This is why: so I could serve with young men and women like LCPL Ben Schmidt.  

Dr. Schmidt, Ben’s father, and his wife plan to raise another $500,000.  How can they do otherwise?  They are following their son’s example. 

When I was a young ROTC cadet at TCU in the late 1970’s, I was concerned about the morality of war.  The TCU library afforded me some fine books on the subject.  One of my religion professors served in World War II.  I mentioned my concerns to him once.  He told me how when he served in the Army during World War II as a chaplain, he sometimes had to fuss with field grade officers over the proper place of chaplains and religion in the men’s lives.  I knew then that morality and the Army could co-exist and even thrive together.  

Yes, TCU is a good place for Ben Schmidt’s memory.  

Its a quote I appreciated from the first time I heard it: "I come in peace. I didn’t bring artillery. But, I am pleading with you, with tears in my eyes: If you f— with me, I’ll kill you all."  Marine Gen. James M. Mattis said this to several Iraqi tribal leaders in 2003 during the violent aftermath of the Iraq invasion.  Marine Carl Newman used this quote as a tattoo.  Later, working for Union Pacific Railroad, he ran into job problems.  Mr. Newman complained about several safety issues at the railroad.  He was fired, he alleges in a lawsuit, for whistle-blowing.

But, Union Pacific claims he was fired because the tattoo violates the company’s violence in the workplace policy.  The latest issue of Army Times refers to the tattoo to warn soldiers about having too many visible tattoos.  I find it unlikely any employer would truly believe a tattoo like that promotes violence in the workplace.  But, there is some prejudice among some civilians against Iraq and Afghanistan veterans.  Who knows what truly motivates an employer.  But, I will will be pulling for former Marine Carl Newman…….

Judicial interpretation is art, not science.  Judicial interpretation depends entirely on the individual judgment of the judge.  So, it is quite remarkable when a sitting Justice of the Supreme Court calls a justice on the Seventh Circuit Court of Appeals a "liar."  Judge Antonin Scalia recently penned a book with another author regarding judicial interpretation.  Judge Richard Posner, who sits on the Seventh Circuit and is also known as a jurist who writes scholarly opinions, wrote a review of the book in which he said Judge Scalia was engaging in legislative history regarding the Second Amendment.  

Judge Posner wrote the review for New Republic.  Judge Posner’s essay criticized Justice Scalia’s use of the term "textual originalism," saying it was just another method for a judge to arrive at pre-determined rulings.  Judge Posner argued in his essay that judges are not good historians and that history itself is very imprecise. 

Justice Scalia replied that Posner was wrong.  If Judge Posner had written his review for a legal audience, they would know it not be true.  This all started with Justice Scalia’s use of colonial history in a Second Amendment case.  Justice Scalia said legislative history refers only to discussions of a legislative body during the enactment of a statute.  He feels that Judge Posner should know this.  Sure, usually, legislative history does indeed refer to actual deliberations during enactment of a law.  Justice Scalia has a valid point.  But, surely Judge Posner does, as well.  See ABA Bar Journal report. 

In any event, it is most unfortunate when judges of the caliber of these two scholarly judges engage in name-calling.  I suppose it is a sign of these polarized times.  When asked for comment, Judge Posner said, "Responding to to a Supreme Court justice who calls one a liar requires special care in expression."  I am sure…..

A federal court here in San Antonio has found in favor of employees who sued AA Foundries.  i first wrote about the lawsuit here.  A manager was accused of using the n- word frequently.  A hangman’s noose was found in the breakroom.  The Equal Employment Opportunity Commission filed suit on behalf of four former workers.  A year ago, the defense lawyer merely commented that the noose was a one-time incident by an "idiot."

Well, the San Antonio jury agreed – sort of.  They found the company guilty of discriminatory acts.  The jury awarded punitive damages of $100,000 to one worker, $60,000 to a second worker and $40,000 to a third worker.  Regarding a fourth worker, Kathy White, the jury found she did not suffer any discrimination.  No worker was awarded compensatory damages.  See San Antonio Express News report.  The Superintendent, Ronnie Hunt, was accused of referring to black workers as "you people" and using the term "boy," as well as using the n- word. 

AA Foundries has 20 employees.  So, the amounts will be reduced to the cap on damages, which is limited to $50,000.  Compensatory and punitive  damages are limited to $50,000 for employers with 100 or fewer employes.  The company’s attorney indicates they will request a new trial and file an appeal if necessary. 

A separate, prior trial in July found in favor of AA Foundries and against a fifth employee, Mary L. Johnson. 

The EEOC did good work in this case, apparently conducting a thorough investigation and prosecuting the lawsuit. 

The City of Selma, Texas has settled a discrimination lawsuit for $37,500.  Capt. Jeff Moczygemba sued after he was fired.  Capt. Moczygemba was one of the few firefighters to confirm to Human Resource investigators that the Fire Chief, Ric Braun, had made anti-Hispanic comments.  Chief Braun had referred to "wetbacks" who used to clean up the work area.  The lawsuit was filed in U.S. District Court.  The lawyer for the city indicates most of the settlement proceeds will be paid by insurance.  Capt. Moczygemba had worked for the Selma Fire Department for ten years when he was fired in 2011.  The Fire Department Chief remains employed by Selma. See San Antonio Express News report. 

According to the Plaintiff’s Complaint, the Chief called Capt. Moczygemba into his office several times after the Captain met with the HR representative looking into the Fire Chief.  The Chief berated him for cooperating with the investigation.  The Chief threatened the Captain with termination.  A few months later, the Chief fired Plaintiff Moczygemba a few months later for reasons that appeared to be false.  Persons who cooperate in investigations of discrimination are protected from reprisal under Title VII of the Civil Rights Act. 

Discrimination is difficult to prove.  Retaliation for opposing discrimination is much easier.  The Chief and, perhaps the City of Selma, Texas have learned a valuable lesson.