There is a reason why we lawyers prefer judges who can keep their cool.  We call it "judicial temperament."   It describes the ability to keep one’s cool even when very irritated by the inevitable human foibles in court.   The judge in this Youtube video lacks judicial temperament.  The judge "goes off" on a pastor who is trying to complete a divorce.  Rev. Arthur D. Hage spoke to the press, apparently when he was not supposed to.  The judge yells so loud that his words are had to understand.  See video and ABA Bar Journal report.  

The wife is attempting to sell a house, which is necessary to complete the property settlement.  But, Rev. Hage objects to selling a house that has some termite damage and mold issues.  Judge Watkins accuses the Reverend of lying regarding his income or lack of income and has another meltdown.  The judge invites the opposing counsel to seek attorney’s fees.  

Rev, Hage submitted a copy of the tape to the West Virginia Judicial Investigation Commission and posted a copy to Youtube. 

The Texas Supreme Court has issued another decision which undercuts the rights of consumers.  In Mission ISD v. Garcia, the Supreme Court looked at the prima facie case necessary for age discrimination.  The Court found that a plaintiff must be able to show that s/he was replaced by someone younger.  In Garcia, the plaintiff was replaced by someone who was about three years older.  The majority decision found that unless the plaintiff can plead that s/he was replaced by a younger person, then s/he cannot go forward with his case.  The case arose on Defendant’s plea to the jurisdiction.  A "plea to jurisdiction" is the Texas equivalent of the Federal 12(b)(6) motion to dismiss, which focuses on what the plaintiff has plead in the initial Complaint.  

The minority decision was authored by Chief Justice Jefferson, who is generally one of the more moderate justices.  He pointed out that the prima face case is not intended to be a pleading requirement.  It is meant only to show how discrimination may be proved.  The Chief Justice added, a plaintiff may well have other evidence of discrimination, separate and apart from the age of the replacement worker.  

The pertinent Fifth Circuit standard provides that a plaintiff may show discrimination if s/he can show s/he was replaced by a younger person or otherwise show that s/he was discharged because of age.  So, the Thirteenth Court of Appeals found in favor of the employee.  Numerous cases since McDonnell Douglas have held that the prima facie case formula is flexible and must be flexible.  The Texas Commission  Human Rights Act is modeled on Title VII.  So, Texas caselaw holds that Texas decisions should follow federal precedent. 

For example, as the AARP pointed in its amicus brief, in Walther v. Lone Star Gas, 952 F.2d 119 (5th Cir. 1992), a 50 year old manager won his age discrimination trial.  On appeal, the employer argued that he had been replaced by someone older and, therefore, the jury verdict should be reversed.  But, said the Fifth Circuit, the plaintiff had been terminated as part of a RIF.  That he had been replacd by someone older does not necessarily mean age was not the basis for his termination.  Too, it is just reality that in some cases, we do not know who replaced the terminated worker.  New hires may occur long after the termination.  Or, in a given situation, there may be so many terminations and so many new hires that it cannot be determined who the replacement employee is. 

In Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996) and in Wright v. Southland Corp., 187 F.3d 1287 (11th Cir. 1999), these two courts of appeals reversed summary rulings for the employers and found that due to the strong evidence of age bias, that the plaintiff’s case should go forward – despite the fact that the employees were replaced by someone older. The evidence for age bias was simply so strong in both cases.  If a plaintiff has direct evidence of discrimination, then the prima facie case analysis does not apply.  That is why the court in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002), found that the prima facie case analysis is an evidentiary standard, not a pleading requirement. 

As the Chief Justice explains in his dissent, an email could turn up during discovery which shows conclusively that age was the reason for the termination.  The employer should not be "absolved" of its sins because it later hired someone older.  As the Chief Justice concluded, the Texas Supreme Court has established a new and "oppressive burden in the employment setting: a plaintiff must prove her case to establish jurisdiction."  That is, the Supreme Court is requiring the plaintiff to have her evidence prior to filing suit.  

This is a remarkably poor decision.  To lose because a judge disagrees with the plaintiff’s facts is one thing.  But, to lose because a judge displays poor reasoning and ignorance of the law is irresponsible.  See majority decision.  See dissenting opinion here. 


 Alma Guzman, the Southside ISD board member, has filed suit against Southside ISD for discimination.  She filed the lawsuit in federal court.  Her lawsuit was then removed to federal court.   I previously wrote about her discrimination claim here.  Her lowest settlement offer has been $600,000.

That amount strikes me as quite high, but I do not know the strength of the evidence against the employer.  Nor do I know the value of Ms. Guzman’s lost income and benefits.  Trial is set for Dec. 3, 2012.  See San Antonio Express News report. 

When I was a young captain in the Texas National Guard, I had to miss Annual Training, our annual two weeks at Ft. Hood.  So, I was temporarily assigned to help the folks at the Texas National Guard Officer candidate School.  Their AT came later in the Summer.  At state OCS, we trained and commissioned young officers out of the enlisted ranks.  I was only there for two weeks, but I still recall the disparities.  Some of the OCS candidates were scared, very fearful regarding whether they would graduate.  One or two of the scared candidates were attractive young women.  I remember one of them looking at me imploringly, apparently looking for some emotional support.  I resisted the brief temptation to help her "one-on-one."  Later, another member of the staff found himself in trouble for helping that one young woman.  That male Second Lieutenant did not resist the temptation.

There is a special place in Hades for folks who take advantage of the vulnerable.  In the legal business, we have long had rules against lawyers, who used to be mostly male, from taking advantage of women going through a divorce.  Now, we see a large scandal growing at the central Basic Training facility for the Air Force: Lackland Air Force Base.  

The Basic Training Instructors are supposed to be the best.  They are all young Non-Commissioned Officers who score the highest on a wide range of measures.  They do more than just teach military skills.  They teach the Basic Trainees about life in the military.   If they suffer moral lapses, then the military as a whole suffers.  See CBS News report.

He dumped dead raccoons in their driveways.  He hung signs in trees with vulgar racist sayings.  He frequently blocked a bus for Special Education students with a tractor.  Danny Eldridge did all this to drive a family which included a Jewish mother and the couple’s nine adopted black children out of their subdivision.  Mr. Eldridge objected to the Risenmay family moving into their private development in Comal County.  The Risenmays sued Mr. Eldridge in federal court, alleging race based harassment.  

With the trial date approaching in a few months, Mr. Eldridge decided to settle his claims against the family and cease his activities.  See San Antonio Express News report.  Mr. Eldridge was a director of the Flying R Ranch Property Association, a homeowner’s association.  The Texas Civil Rights Project represented the Risenmays. 

The lawsuit claims that Mr. Eldridge is an admirer of the Ku Klux Klan. 

It was a landmark ruling  a year ago when the US Supreme Court reversed class certification in Wal–Mart v. Dukes.  See Workplace Prof.  If allowed to stand, that class action would have been the largest ever.  But, the US Supreme Court reversed.  Now, Wal-Mart got what it wanted, perhaps.  Some 2,000 individual lawsuits have now been filed all across the country as the former class members entered into individual lawsuits instead.  

The lawsuits all allege gender based discrimination at Wal-Marts.  The point of class actions is to consoildiate similar cases, so the courts will not be swamped with multiple lawsuits all alleging the same thing.  Many employers would object to similar lawsuits all appearing in many different forums all at about the same time.  But, this is what Wal-Mart said they wanted.  They worked hard for years to overturn that class certification.  As Chris McKinney says at Texas Employment Law Blog, be careful what you seek because you just might get it….

You just cannot make this stuff up.  Dean Ernst, a Canadian software executive worked from home in Alberta.  He was from Calgary, so his two year employment contract anticipated he would move to Calgary at some point and work from there.  But, he changed that just a bit.  The business moved to Vancouver, while he stayed in Alberta saying now his family had ties there. 

He took his family to a newly purchased vacation home in Cabo San Lucas, Mexico.  He called in sick a few times while he was actually vacationing at their home in Mexico.  Eventually, he made the move to Mexico permanent.  He redirectd his Aberta home number to make it seem as if he was still in Alberta.  One month later he told his boss.  Mr. Ernst explained that he was now working from home in Mexico and it seemed to be working…  The boss was not happy.  But, fearful of losing a key contract, the boss waited several more months and then fired Mr. Ernst.  

Mr. Ernst sued for wrongful dismissal and lost.  See Moneyville blog for the full report. 

I do not understand why some service members feel the need to exaggerate their military service.  I suppose some of that has long occurred.  Once, I was in the Officers Club at Ft. Sam Houston, Texas enjoying a drink with another service member.  Some guy we did not know, sitting at the bar started telling us about his "dog-fight’ during the Granada invasion.  This would have been around the early 90’s.  The man claimed he was a Navy pilot and engaged in aerial combat during the Granada invasion, which occurred in the early 1980’s.  At the time in the early 1990’s, the Granada invasion or the Panama invasion were the only significant combat actions in recent U.S. history.  

Problem was there was no aerial combat during the Granada thing.  Even the ground combat was pretty limited.  My military friend and I did not call the man out on his fabrication.  His beliefs did not cause us harm.  And, if he was drinking a beverage at the Ft. Sam Officers Club, then he probably had some service connection. 

Fifteen years later, I was serving in Iraq.  As we headed home at the end of a 12 month tour, we learned that someone we thought was a First Sergeant with multiple parachute school badges, a Special Forces badge, and more was also a fraud.  Perhaps none of his "hooah" badges were valid.  Yet, he wore a great many on his uniform.  The crazy thing was that he was actually a fairly effective First Sergeant.  

Now, we learn that San Antonio singer Timothy Poe might not have the medals or combat wounds he has claimed.  Mr. Poe appeared on "America’s Got Talent" earlier this week.  He claimed to have suffered wounds from a grenade in Afghanistan and from being shot in the leg in Iraq.  Spokesmen for the Minnesota National Guard, with whom he claims to have served, however, say he did not deploy to Iraq.  And, there are questions about his supposed wounds from Afghanistan. See San Antonio Express News report.  

Why the need to embellish?  We may never know why.  But, i am sure there once was some Roman veteran who claimed to have conquered Gaul with Julius Ceasar – even though he was actually stuck in some Roman boot camp in Podunk, Rome plucking chickens for the camp dinner.  

The San Antonio chain of car washes, known as the "Wash Tub," has agreed with the Department of Labor to pay $246,438 in back wages.  The chain deducted so many items from some workers’ checks that their wages came to less than minimum wage.  They failed to pay overtime wages and failed to record time worked.  The back wages amount to about $800 per worker. 

The DOL investigation found that the chain was deducting charges for uniforms, cash register shortages, and insurance claims.  The deductions brought the amount paid per hour to less than the minimum wage of $7.25 per hour.  See San Antonio Express News report.  The DOL also found that some employees were not paid the minimum wage of $7.25/hour when their commissions fell short. 

The Wash Tub typically employs younger workers, who are often less likely to complain.  It appears that practice has caught up with this employer. 

All the big employers have them: employee handbooks.  They love their handbooks.  Human Resource departments spend so much time and money putting them together.  So, of course, many employees come see me and first thing they say is the Employer did not follow their own policy.  The employee says it like that simple fact should answer all my questions.  But, not following their own employee policies tells me nothing.  Because, most employers do not follow their own handbook when it suits them. 

Employee handbooks are almost never binding on the employer.  This issue arises often when an employee is fired and they complain that they were not written up three times before they were fired.  Sure, many employer policies state that an employee must be written up three times before being fired.  But, almost every employee handbook will also contain a provision that the handbook is not binding on the employer.  That provision renders the handbook non-contractual. 

The confusion arises when the Human Resources office indicates that the manual is binding.  It may be binding informally, but if it has a non-contract type provision, it is not binding legally.

The employee handbook is helpful to the employer regardless of its legal effect.  Every good employer wants to provide opportunity for employees to improve.  The handbook provides a mechanism for employees to improve and to avoid disciplinary issues.  Many employees do improve after a verbal or written counseling.  

There was a brief time when employee handbooks were found to be binding on the employer as a contract.  There were one or two court decisions in the late 1980’s and early 1990’s that found employee handbooks to carry contractual effect under certain circumstances.  Employers then started putting a clause in the handbook that states the handbook is not a contract.  so, today the overwhelming majority of employers have non-binding employee handbooks – despite what you may hear at Human Resource presentations.