In a rare victory for the worker, the Fifth Circuit reversed summary judgment for the employer.  In Schirle v. Sokudo USA, Inc., No. 11-10788 (5th Cir. 7/31/12), the plaintiff alleged he was discriminated against because he was non-Japanese.  Sokudo and the other defendants are Japanese owned corporations.  Mr. Schirle also claimed that he suffered an adverse personnel action after he complained about the discrimination.  Mr. Schirle said he lost valuable sales territory after his complaint.  The employer argued that diminished responsibility was not an adverse personnel action under Title VII.  The Fifth Circuit correctly rejected that argument.  

Significant reduction of "material responsibilities" or a demotion constitute adverse personnel actions, said the court.  Mr. Schirle lost responsibility for European sales.  He retained responsibility for the USA, but lost significant authority.  The court found this loss of authority sufficient to create a fact issue regarding the existence of an adverse personnel action.  The court noted that the employer admitted in response to a Request for Admissions that the European sales responsibility was moved to a Japanese manager.  So, yes, he was replaced by a Japanese manager in charge of of European sales.  See the decision here. 

I find it remarkable that given these facts, the district court granted summary judgment in the first place.  Too many judges use summary judgment to determine facts.  But, summary (or "quick") judgment is supposed to only apply to cases that lack any real hope of success at trial.  Summary judgment should apply only when there is no genuine issue regarding key facts. 

Instead, a tool to screen out weak cases has become a vehicle for judges to decide cases better decided by juries.  Juries should draw factual conclusions, not judges.  Credit goes to the Fifth Circuit for recognizing the true meaning of summary judgment in this case.  If there are factual issues of real import, then that is a case that is better decided by a jury of our peers, not by someone who has never had to worry about his next paycheck. 

It does not happen often, but once in a blue moon, a lawyer is recognized for civility.  Christy Susman, a lawyer for Jack Daniels Whiskey, wrote a very polite cease-and-desist letter to the publisher of a book which used a facsimile of the famous Jack Daniels label on the cover of a book.  

The letter starts with the remark that the company feels flattered by the use of the label and appreciates that the Jack Daniels label is part of pop culture.  Surely you can see how, the letter adds, that if we allow this incorrect use of the label, the brand will be weakened.  Because the author is a Louisville "neighbor" and a fan of the brand, please change the book cover when you next re-print it, concludes the letter.  If the author would be willing to change the book cover sooner (including  the digital version), then the company would be willing to share the expense. 

The letter has become very popular on the internet.  Above the Law blog did a post titled "Cease and Desist Letter of the Day: Captain Jack Doesn’t Need mean Lawyers."  See Above the Law blog post. 

The letter apparently worked.  The publisher has said he would revise the book cover when it is re-printed. See ABA Bar Journal report.  Anytime a lawyer can get the needed result without expensive litigation, then that is a good day. 

Its a fact of life in San Antonio that many restaurants hire illegal immigrants.  The illegal immigrants work hard and ask few questions.  But, when ICE performs an I-9 audit, these restaurants suddenly lose their workforce.  Sushi Zushi has closed its doors after a recent I-9 audit.  See San Antonio Express News report.  Sushi Zushi reports that after the audit, many employees chose not to report to work.  The state wide chain has restaurants in San Antonio, Austin and Dallas.  The I-9 form is the form in which the citizenship status of an employee is recorded by the employer. 

The Obama administration has moved away from the ICE raids and instead focused on I-9 audits.  In effect, ICE is forcing the employer to fire the possibly illegal immigrants.  And, many loyal customers will have to do without their fresh sushi….

Clients always ask me about settlement and trials.  If we do not accept $XX, what will happen at trial, they essentially ask.  There is little or no empirical data for that process and how it plays out.  Every client must often rely on the judgment of his/her lawyer. 

A good rule of thumb is that most trials occur because the employer offered little or nothing to settle the case.  We see this in the case of Ransom v. Patel Enterprises, No. 10-CA-857 in the Western District of Texas.  In Ransom, the employees sued for overtime, arguing they were mis-classified as exempt from overtime wages.  The two parties both filed motions for summary judgment.

At some point, the plaintiffs offered to settle their claims for $120,000 total.  That amount included $65,000 for actual damages, i.e. wage violations.  The rest included attorney’s fees and court costs.  The jury later awarded $135,000 in wage violations. 

While, the Defendant never offered more than $10,000 to settle the case. Unfortunately for the employer, the court later awarded $332,000 in attorney’s fees, and another $9,000 in court costs.  As often occurs in civil rights cases, the attorney’s fees portion of the case is worth as much or more than the actual violation.

So, yes, if the employer offers a low amount to settle – i.e., low in relation to the hoped for recovery – then it makes sense to proceed to trial.  $10,000 when you are seeking $467,000 (135,000 + $332,000) is a pretty low amount.  It makes sense to wait and hope for more from the judge and jury.  It is easy when the employer offers so little.  But, if they offer 80-90% of what you hope to recover at trial, then the decision whether to accept becomes much more difficult. 

An employer can modify the at-will relationship.  An employer can agree to terminate an employee only for "just cause."  Many employers agree to do so so for key employees.  But, how does an employer modify the at-will status of an employee?  in Crystal City v. Palacios, 2012 WL 1431354 (Tex.App. San Antonio 201012) (not for pubication), the employer made "just cause" one of its policies.  The just cause policy appeared to apply to all employees.  The policy provided that an employee would only be fired for just cause.  The San Antonio Court of Appeals, found that language was not binding on the employer.  The policy was too general, said the court.  The court relied on another decision, Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998).  But, the Brown decision was different.  In Brown, the Texas Supreme Court found that an oral promise to terminate for just cause could not modify the at-will doctrine.  In the Palacios decision, the policy is in writing. 

Indeed, the Palacios decision conflicts directly with County of Dallas v. Wiland, 216 S.W.3d 344 (Tex. 2007), where the Texas Supreme Court found that a written policy of Just cause would modify the at-will status of an employee. 

The San Antonio Court of Appeals designated its decision as not for publication.  That designation is supposed to mean the court believes the decision only applies to this one specific fact situation and should not apply to other situations.  The decision will not appear in the official reporter of court decisions.  But, in these days of ready access to Westlaw, not appearing in Southwestern Reporter does not mean much.  See the Palacios decision here. 

Changing sex is now a protected classification in the eyes of the EEOC.  In Macy v. Eric Holder, a federal employee tried to file a complaint alleging discrimination against her because of her sex – that is, her gender as related to her transgender status.  The federal EEO officer refused to accept her charge.  The employee appealed to the Equal Employment Opportunity Commission.  The EEOC ruled that transgender status was related to her sex and her complaint should be accepted for investigation.  See Work Matters blog post. 

Justice Scalia wrote the decision that extended Title VII to apply to same sex harassment, Oncale v. Sundowner Offshore Servics, Inc.  The drafters of Title VII almost certainly did not intend for that statute to apply to discrimination against gay men and women.  But, as Justice Scalia explained in Oncale, Title VII forbids discrimination based on a person’s gender.  That is the plain language of the statute.  So, if discrimination is based on a person’s gender, Title VII will apply.  In a strained decision, the Oncale decision also held, however, that Title VII does not apply to discrimination against gay persons.  So, the end result of Oncale is if someone is suffering discrimination because s/he is gay, Title VII will not apply.  But, if that same worker is suffering discrimination from a member of the same sex and the discrimination is related to her/her gender, then Title VII may apply.  

Recall that the oil rig worker in Oncale was suffering brutal harassment from co-workers who were clearly engaging in sex based harassment – harassing him in the shower, threatening to rape him, etc. – but none of the workers were gay.  The victim’s harassment was related to his gender, but it was not because he or the perpetrators were gay. 

I expect we will see the same sort of strained reasoning regarding transgender discrimination.  

We always hear about the million dollar judgment in an employment case.  But, in reality, far more cases result in $30,000 judgments or less.  This is especially true in federal court.  In the case of Barney v. Hill Country Shooting Sports Center, No. SA-11-CV-268, a jury found in favor of the plaintiff regarding her wage claim.  The lawsuit, filed in U.S. district court, concerned overtime wages.  The San Antonio jury awarded $29,500 in unpaid overtime wages.  The judge later awarded another $29,500 in liquidated damages and $10,000 in attorney’s fees.  

So, no, contrary to what many plaintiffs expect, the jury did not get mad and award the maximum amount allowed.  They simply, calmly awarded the amount which the plaintiff was owed.  The trial result, like many, did not appear in the San Antonio Express News.  The jury quietly did its job and then went home.  That is how the judicial system is supposed to work. 

Judge Sam Sparks, known for straight talk, has dismissed Lance Armstrong’s lawsuit against the US Anti-Doping Agency.  Mr. Armstrong filed an 80 page Complaint – versus a typical five page Complaint for a complicated lawsuit.  The judge compared the Complaint to a blog post or a press release.  Judge Sparks wrote that the court was not inclined to indulge in Mr. Armstrong’s desire for publicity, self-aggrandizement, or vilification of defendants by sifting through 80 "mostly unnecessary" pages for the few kernels of factual material relevant to his case.  See ABA Bar Journal report. 

The judge gave the plaintiff 20 days to re-file its complaint.  Mr. Armstrong’s lawyer indicated that he listened to Judge Saprks’ opinion and would comply.  What no one discusses is that Mr. Armstrong has already started wrong in his lawsuit and will have to overcome Judge Saprks’ skepticism regarding his new Complaint.  Once a party or a lawyer lose their credibility with a judge, it can be hard to regain.  It is very unlikely that any party needs 80 pages to describe his/her lawsuit.  My guess is that the law firm indulged Lance Armstrong’s desire to make public his feelings – which is not a good start to any lawsuit.  

Jurors in San Antonio federal court rejected an African-American’s claim that she was subjected to discrimination.  The EEOC represented Mary Johnson in her suit against A.A. Foundries, makers of components for water wells.  The employee had a picture of a noose she was exposed to, but that was not enough for the jury.  The plaintiff and others claimed that management did nothing about the noose.  She also claimed that a supervisor frequently used the n- word. The jury found against the plaintiff. 

The suit started as a larger lawsuit on behalf of four workers.  But, the judge separated Ms. Johnson’s suit since she was the only one to see the noose. There were no blacks on the jury of six persons and one alternate.  See San Antonio Express News report. 

The lawyer for the company said the noose was a "joke" and the worker who did that was an "idiot."  He said the noose was taken down as soon as management became aware of it. Trial on behalf of three other workers is still to come.

I am not surprised that a jury with no blacks found against an African-American employee.  Many federal court juries do not have any African-Americans.  Federal juries can be anti-plaintiff anyway, but only more so when they lack a member of the aggrieved minority. .  

The New York City Bar Associaition has isssued an ethics opinion finding that lawyers may research potential jurors’ backgrounds on social media sites.  But, the lawyer or his staff may not contact the juror and must avoid actions that might allow the juror to know the research is being conducted.  For example, a law office cannot friend request a potential juror.  Or, if in reviewing a juror’s social media page, if the social media site sends an automatic message to the juror that a potential contact has viewed her page, then the lawyer has arguably communicated with the potential juror.  Inadvertent contact would not be allowed under this decision.  See ABA Bar Journal news report.