in a recent decision, the Fifth Circuit in New Orleans reversed summary judgment.  In Johnson v. Maestri-Murrell Property Management, LLC, No. 11-30914 (5th Cir. 8/14/12), the EEOC found in favor of the employee, a very rare event.  Yet, the lower court granted summary judgment in favor of the employer.  

The Plaintiff had direct evidence of discriminatory bias.  Ms. Johnson applied for a job as an assistant manager for an apartment property.  Ms. Johnson was black.  According to an employee of the apartment complex, the manager commented that she did not think the owners would want a black assistant manager.  The manager made notes on all the resumes, other than Ms. Johnson’s, an indication that she did not consider Ms. Johnson’s resume.  The property manager never interviewed Ms. Johnson.  The manager later hired a Caucasian woman for the position.  

That is strong evidence of discrimination.  Ms. Johnson was fortunate to have such evidence.  Only rarely does an applicant learn why they were not selected for a particular position.  It is remarkable that the district court would grant summary judgment in the face of this sort of evidence.  The property owners defended themselves, saying Ms. Johnson did not have experience in the field.  But, the person actually selected also lacked experience in managing apartments.  The lower court rejected the discriminatory comments because, said the district court, it is not clear whether they were made before or after the decision to hire the Caucasian applicant.   But, as the Fifth Circuit explained, the timing is less important than the content of the remarks.  They show a clear discriminatory intent regardless of when they were uttered. 

Viewing the evidence in favor of the non-movant, the court finds sufficient evidence upon which the jury could find in favor of the employee.  That means summary judgment is not appropriate. 

The Fifth Circuit correctly noted that on appeal, the court reviews the evidence de novo (i.e., without giving weight to what the lower court decided).  The court did not decide whether this evidence was direct or circumstantial, noting that either way, the Plaintiff had established a prima facie case of discrimination.  The district court should have denied the employer’s motion for summary judgment.  The Fifth Circuit did not mention the now discredited "stray remarks" doctrine in the decision. 

The Fifth Circuit got it right.  This decision is all the more remarkable since one of the more conservative judges, Edith Jones, sat on the panel.  See decision here. 

Last week, a federal court jury found that Corpus Christi Army Depot discriminated against and retaliated against Muprhy Junaid during his employment at CCAD.  The federal court jury awarded $150,000 in lost wages and benefits and another $500,000 in emotional pain type damages.  Mr. Junaid complained about discrimination by CCAD and then suffered discipline for what the jury found to be false allegations.  He was written up for various offenses and then fired.  

The amounts awarded will be subject to a statutory cap.  So, the emotional suffering damages will be reduced to $300,000.  See Junaid v. Department of the Army, No. 2:11-CV-226 (S.D.Tex. 2012). 

The total amount of the plaintiff’s recovery will increase.  Since, under Title VII, the successful plaintiff can also seek an award for attorney’s fees.  The average discrimination case will result in 100-200 hours of attorney time, or more. 

As with many such federal EEO complaints, Mr. Junaid had lost during the administrative complaint process – even at at an administrative trial before a judge.  He also lost before the Merit Systems Protection Board.  I am afraid this case shows how ineffective those processes can be for federal employees.  Federal sector employees are fortunate that they have access to bodies like the MSPB and a formal EEO process.  But, often, those processes offer little real protection. 

It is remarkable that he lost before the MSPB and in his EEO appeal.  He had evidence that his supervisor at the time lied and fabricated an incident which lead to his termination.  His former supervisor claimed Mr. Junaid met with him but walked out in an act of insubordination.  But, according to the Plaintiff’s response to Defendant’s Motion for Summary Judgment, four witnesses testified that Mr. Junaid was not at that meeting with his supervisor.  In other words, the supervisor fabricated a final incident to get Mr. Junaid fired.  The supervisor did this in the face of contrary evidence from four co-workers.  Probably not a smart move by the supervisor. 

The trial result also shows what can happen when management decides to discipline someone who has filed an EEO complaint.  Management can and should impose discipline in appropriate circumstances.  But, any discipline, while an EEO charge is pending, needs to be very objective and supported with solid evidence.  

Social media has spawned new sorts of litigation.  An Assistant Attorney General in Michigan learned that the hard way.  Andrew Shirwell started a blog titled the "Chris Armstrong Watch" blog.  Chris Armstrong is a former student leader at the University of Michigan and is openly gay.  Mr. Shirwell, the former Assistant AG, describes himself as a "right-wing guy."  In his blog, he said such things as Mr. Armstrong is a "gay Nazi" and that he is promoting a "radical homosexual agenda."  Mr. Shirwell was eventually fired for his posts.  See Michigan Employment Law Advisor.  Mr. Armstrong sued the former Assistant AG for defamation, invasion of privacy, stalking, abuse of process, and others.  

A jury returned a verdict recently for Mr. Armstrong for $4.5 million.  See Michigan Employment Law Advisor.  Yes, those Social Media posts can bring harm to the person posting the entry.  Or, as I warn my clients when they are about to do something stupid, "you may feel good for a few minutes, but long-term, there will be a lot of pain."

If he had not been fired, would Mr. Shirwell’s employer possibly be liable also?  Perhaps, especially if Mr. Armstrong had complained to the Michigan AG and the AG did nothing.  

Way back when, newspapers were very partisan.  They often represented a particular political party or a particular group of politicians.  Feuds and worse often resulted from the mean, personal attacks uttered in newspapers 150 years ago.  Social media may bring some of that partisan bickering back. 

Its hard to believe there is a war on.  We are in the middle of a cantankerous presidential debate, but the war in Afghanistan never comes up.  According to a San Antonio Express News columnist, we have had the highest number of casualties since last September.  According to statistics, the number of attacks on American and Coalition forces is up 11% over this time, last year. 

In a traditional war, we measure the success or strength of the enemy by ground gained or lost.  In a counter-insurgency or terrorism war, we tend to measure the strength of the enemy by the quantity and quality of attacks.  So, in Iraq, we tracked how many attacks the Anti-Iraq forces were able to muster.  An increase in number of attacks suggests strength.  If the war were receding, then the attacks should be decreasing. 

The President and others claim the war is winding down.  On the contrary, says the columnist, the Taliban seems to be gaining strength.  See San Antonio Express News report.  Leon Panetta, Secretary of defense testified before Congress, yesterday.  He said the upsurge in attacks reflects the increasing Coalition attacks on the Taliban.  Interesting.  The metric tracks unprovoked attacks by the insurgents.  Yet, somehow, according to Mr. Panetta, the metric now tracks unprovoked attacks by the Taliban that we somehow provoked.  That sounds more like marketing than analysis. 

Mitt Romney never mentions the war, apparently in tacit agreement with the President.  Last presidential election, the two wars were a large part of the debate.  

Unfortunately, today, the war seems an after-thought.  The website, www.icasualties.org, tracks the Afghanistan War.  I find it troubling that we have had 224 U.S. deaths in 2012.  Yet, those deaths rarely seem to be reported.  Speaking from experience, it is disheartening to find yourself in a war zone and wonder if the folks back home remember your service.  I hope that we as a nation have not forgotten. 

I get calls now and then from folks who are the subject of a discrimination investigation.  The best thing you can do is cooperate with the investigation.  You are still an employee and could be terminated for failing to cooperate with an investigation.  Do not expect fairness or even high quality.  There is no duty on the part of a Texas employer to conduct a "fair" investigation.  In Texas Farm Bureau Insurance Co. v. Sears, 84 S.W.23d 604 (Tex. 2002), the Texas Supreme Court refused to recognize a claim for negligent investigation of an employee’s misconduct.  A claim for negligent investigation would damage the at-will relationship, said the court. 

Indeed, the employer does not necessarily need to conduct a "quality" investigation.  In a "he said/ she said" scenario, the employer can believe anyone it chooses.  The only exception would be for someone who is a member of a union or who has an employment agreement which assures some degree of "just cause" for termination.  But these situations apply to few workers in Texas.   

An employer is required to conduct a "reasonable" investigation into allegations of harassment in regard to discrimination.  Bu, the reasonable requirement is based on its effects in stopping or curbing harassment that might violate Title VII.  The reasonable requirement is focused on the victim of the alleged harassment, not the alleged perpetrator. 

I have spoken with a few managers who were unjustly accused of discriminatory conduct.  Unfortunately, there is little remedy for such persons.  Defamation is at least a possible lawsuit.  But, defamation has an extra high burden in the workplace.  So, yes, if you want fairness at work, form a union…..

Illinois has become the second state to enact a law preventing employers from seeking an employee’s Facebook password.  See Texas Employment Law blog post.  Illinois follows Maryland in enacting such a law.  The Illinois statute does not affect whether an employer can restrict an employee from accessing Facebook during work hours. 

This is good to hear for many workers.  Requesting Facebook passwords is becoming more and more common in the job application process. 

Defense lawyers are welcoming the decision in Martin v. Spring Break Productions, LLC, No. 30671 (5th Cir. 6/24/12).  The decision, says Mike Maslanka and Russ Cawyer, allows an individual claimant to settle his/her FLSA claim.  Until this decision was issued, the most common belief that an individual employee could settle a wage claim only with court or Department of Justice approval.  With this ruling, as Mike says, the courts are treating employees like adults and letting them settle claims on their own.  But, is that really what the decision says? 

The case concerns some members of a union who worked on a movie set in Louisiana.  They filed a claim through their union for non-paid wages.  They worked on a movie called Spring Break ’83, which has not yet been released.  The union negotiated a settlement with the producers in November, 2009.  But, before signing the settlement agreement, the claimants filed suit in June, 2009 in California via privately hired lawyers.  The trial judge granted summary judgment because of the settlement agreement.  The employees filed suit, saying the settlement agreement was not approved of by the DOJ.  Therefore, said the employees, the settlement agreement was not valid. 

The Fifth Circuit in this decision affirmed the summary judgment, finding that there was a bona fide dispute regarding the rate of pay and the compensation owed.  The court distinguished a contrary holding from the 11th Circuit, finding that decision concerned a DOJ investigation.  The court concluded that here, the employees were represented by their union.  They were also represented by private counsel in California prior to the settlement agreement. 

The union did not waive their FLSA rights, but did arrive at a negotiated agreement.  In fact, the employees received settlement checks and cashed them while their lawsuit was pending.  Their lawsuit was for additional claimed compensation. 

The point of requiring DOJ approval is to equalize the playing field between employee and employer.  The playing field is more level when a union is involved.  I think it more likely that this decision will be limited to those few situations when a union member has a bona fide dispute regarding the compensation owed.  It is a stretch to now claim that all employees can settle their wage claims without DOJ or court approval.  See the Martin decision here. 

People file complaints with the Equal Employment Opportunity Commission everyday.  In the 2011 fiscal year, some 9,900 charges were filed in Texas.  The charge starts with a questionnaire filled out by the employee.  An EEOC worker then prepares a charge for the complainant based on the questionnaire.  In theory, the complainant would review the proposed charge and make any necessary corrections before signing.  But, in reality, the complainant does not understand the legal import of the charge and does not make corrections or suggestions.  Many times, the EEOC intake worker overlooks key facts.

In Lopez v. Texas State University, __ S.W.3d __, 2012 WL 1403247 (Tex.App. Austin 2012), the EEOC did indeed omit key facts from the charge.  The complainant apparently did not object.  The employee did not check the box to indicate her charge was based on race.  The narrative portion did set forth that she believed she was discriminated against because she was Hispanic.  Hispanic ethnic origin is not necessarily the same as race.  But, the court found that Ms. Lopez did sufficiently raise the potential race issue.   It allowed her claim based on race to proceed.  

But, her charge did not include some important facts regarding her allegation of reprisal for opposing discriminatory practices.  These facts did appear in her questionnaire, but not the charge.  The EEOC apparently omitted these facts from the charge.  The court found that flaw to be fatal.  Ms.Lopez did not allege sufficient facts in her charge regarding retaliation to support a lawsuit based on retaliation, found the court. 

All too often, the complaining worker does not review the charge adequately before signing.  They frequently do not question omissions later – apparently not realizing the legal significance until much too late.  The EEOC exists as an early form of tort reform.  When The Civil Rights Act of 1964 was passed, Congress sought to reduce the number of lawsuits by creating the EEOC.  The EEOC, envisioned the 1964 Congress, would investigate many complains and render lawsuits largely unnecessary.  By the mid-1970’s, it became clear that the EEOC could never keep up with the great many charges being filed.  But, these little procedural minefields still remain.  They obsruct many otherwise valid lawsuits.  See Lopez decision here. 

The City of Houston Mayor’s Office of Public Safety and Homeland Security has produced a YouTube video describing what you should do if a shooter enters your work place or some other public space.  Always have a plan, says the video.  Be aware of your surroundings.  

The video, called "Ride, Hide, Fight" says if a shooter enters, first try to leave.  Leave your belongings behind.  Encourage others to leave with you, but do not wait for indecision.  Call 911. 

If you cannot get out safely, hide.  Act quickly and quietly.  Turn out lights.  Lock doors.  Remain quiet and as calm as possible.  Silence cell phones. 

As a last resort, if your life is at risk, fight.  Act with physical aggression.  Improvise weapons.  Commit to taking down the shooter no matter what.  Act aggressively. 

Keep in mind, says the video, that victims are generally random.  The event will evolve quickly. Expect the unexpected. 

Let’s hope no one ever needs this information.  But, be prepared.  The Mayor of Houston says the video was in production prior to the Aurora, Colorado incident.  But, her office released it early after the Colorado shooting.  See video.  See CBS News report. 

A Bexar County jury has awarded a former police officer $1.28 million.  Tomas Padilla was a police officer for the University Health System.  He was terminated in 2009 shortly after complaining that the officer he had replaced was trying to recruit patients and visitors to the hospital to make false claims about Officer Padilla.  Officer Padilla was a supervisor at the time.  The report by Mr. Padilla amounted to a whistle blowing claim.  Government workers in Texas have the right to report violations of law. 

The trial lasted six days.  The jury award includes lost back pay and lost future pay.  Mr. Padilla can now try to regain his peace officer certification.  See San Antonio Express News report.