The National Labor Board enforces the National Labor Relations Act.  The NLRB is essentially the Supreme Court for unions.  The NLRB is comprised of board members appointed by the President.  NLRB appointments are very political.  It is not unusual for the NLRB to be unable to act because the administration in power will not or cannot get its appointments through the Senate.  Indeed, Mr. Obama had to appoint new board members as recess appointments, because the Republicans blocked his candidates. 

Board member Terence Flynn, a Republican appointee has been found guilty of serious ethical lapses.  The IG for the NLRB has found evidence of breaches of confidentiality.  See Workplace Blog.  Mr. Flynn provided confidential information to a law firm with pending litigation before the Board – the information included likely votes of other board members regarding that pending litigation.  Mr. Flynn was also found guilty of lying to investigators about his actions.  Mr. Flynn told lawyers with clients appearing before the board about pre-decisional votes, the early positions of board members, and the status of cases.  

That is pretty extreme.  It would be comparable to a Supreme Court justice providing early opinions of other justices about a case that had not yet been decided.  In the legal world, this is as clear a breach of ethics as it gets.  

Friending Facebook Blog reports that a teacher’s aide in Michigan was fired when she refused to hand over her Facebook login information.  Kimberly Hester worked for Lewis Cass Intermediate School District in Cassopolis, Michigan.  On her own time, away from school, she posted what she believed to be a humorous picture of a co-worker with her pants around her ankles and the caption, "Thinking of you."  A parent and friend of Ms. Hester’s saw the picture and notified the school. 

The school asked Ms. Hester for her login info.  The district superintendent asked three times for her info.  Each time, Ms. Hester refused.  Finally, the district sent her a letter saying that if she would not provide the information, then they would presume the "worst" and act accordingly.  They placed the aide on administrative leave and eventually suspension.  Ms. Hester vowed to fight the action.  She says she did nothing wrong and will not disclose her Facebook information. See Friending Facebook Blog.  She believes an employer should not ask for Facebook information.  Her case is set for arbitration in May. 

Two Michigan state representatives have introduced a bill to prevent an employer from requesting this information.  They said they would include Ms. Hester’s story in the bill. 

Many of my discrimination clients go into settlement talks with the expectation they will receive enough in settlement to retire.  No, not hardly.  Most cases settle for less than $30,000.  Settlement discussions are supposed to reflect the reality of jury verdicts.  And, the reality of jury verdicts is that even when the plaintiff employee wins, s/he is only awarded the amount of their lost income.  Most folks obtain a new job after a discriminatory termination.  So, the lost income is relatively modest.  And, juries usually do *not* award damages for emotional suffering.  If they do award such damages, they typically award an amount based on the lost income.  

A couple of years ago, a local state district court jury returned a verdict of $20,000 in lost income and $18,000 in compensatory damages.  Many jury verdicts come back for less than $30,000.  A couple of weeks ago, a jury in San Antonio federal court awarded some $29,000 in lost wages in a wage case.  These smaller verdicts do not appear on the front page of the local newspaper.  But, they occur regularly.  

I worked for a state district judge in rural Louisiana many years ago.  Judge Jackson was known as a fair judge, someone who did not particularly favor plaintiff or defendant.  He had tried more cases in his lifetime than some entire law firms.  He used to say many times, "the worst settlement is better than the best trial."  He meant that any negotiated agreement was better than risking one’s future on a jury trial.  Juries are difficult to predict, probably impossible to predict.  I tell many clients they would get better odds in Las Vegas than with a jury.  Judges can also be very unpredictable.  My former judge meant that parties should accept whatever halfway reasonable agreement they could reach.  Anything would be better than relying on a jury, he believed. 

Many discrimination cases that go to trial reach that point because the employer offered nothing to settle the case.  Many million dollar cases were offered nothing to settle the case.  Most discrimination cases that go to trial do so because they have to.  If the plaintiff is offered nothing, then s/he has nothing to lose at trial.  A client once told me during settlement discussions that she was sure the jury would do the right thing in her case – meaning she should hold out for a higher settlement amount.  I responded less kindly than I should have.  But, I did tell her she was the only one who was sure of that. 

Alcohol use and drug use are specifically exempted from coverage under the Americans with Disabilities Act.  See Americans with Disabilities Act, Sec. 12114.  This section provides that a person who is abusing alcohol or drugs may not qualify for coverage under the ADA. 

But, alcoholism is a disease.  So, treatment for alcoholism is covered under the ADA.  See Williams v. Las Vegas Police Dept., 18 A.D.Cases (BNA) 457 (D.Nev. 7/25/06).  In this case, Police Officer Ron Williams took time off off from work for a 30 day residential treatment program.  He told his supervisor he was being treated for alcoholism, but asked that it be kept confidential.  But, his diagnosis was not kept confidential.  Two years later, Officer Williams went to a local bar to have a drink with a co-worker.  The co-worker, a police sergeant, had a one car accident on the way home.  Mr. Williams was also investigated.  He was found at fault for driving after drinking, driving while intoxicated, and  for misleading the internal affairs investigation.  Mr. Wiiliams denied being intoxicated.  Despite his denial, he was suspended for 120 hours. 

A few months later, Officer Williams applied for a captain position and was turned down.  Officer Williams filed suit under the ADA.  The department moved to dismiss his claims.  Officer Williams argued that his suspension was out of line when compared to similar offenses by other officers.  The officer pointed to a discipline matrix that specifically said that the appropriate punishment for driving after drinking was a written reprimand.  Mr. Williams pointed out that when he appealed his misconduct suspension, the labor board found that the Deputy Chief acted out of prejudice due to the officer’s alcoholism diagnosis.  Based on this evidence, the district court found that the department may have taken this action due to his disability, not due to misconduct.  So, the court denied the motion to dismiss. 

An employer may, however, require an employee who has taken time off for alcohol treatment to take subsequent alcohol tests.  The employer may require such tests only if the employer has a reasonable belief based on objective evidence that the employee will pose a direct threat in the absence of such testing.  See EEOC Enforcement Guidance on ADA, at  question 19.  That is, the employer must believe there is some danger involved before requiring such tests.  Such testing should occur often enough to address valid concerns, but they should not occur so frequently that they become harassing or intimidating.  Id.  In the Enforcement Guidance, the EEOC provides an example of a lawyer who returns to work after attending a residential treatment program.  Upon his return, the employer may not require periodic testing without some basis to believe the lawyer has relapsed, says the EEOC.  Id.  So, at least according to the EEOC Enforcement Guidance, an employer cannot require alcohol testing after residential treatment – unless the employer has something more than mere suspicion. 

The Fifth Circuit issued a decision in the case of Turner v. Kansas City Southern Railway Co., No. 09-30558, 2012 US App. LEXIS 6079 (5th Cir. 3/26/12).  See decision.  The opinion discusses the requirements for a circumstantial case of discrimination which relies on comparators.  Four Kansas City employees sued their employer for discrimination under Title VII.  The district court granted summary judgment regarding all four African-American plaintiffs.  The plaintiffs had been fired for offenses, which, they alleged, were not appropriate for termination – when compared to non-black employees.  The Court of Appeals overturns summary judgment for Thomas Turner and Lester Thomas, but sustains summary judgment for the other two plaintiffs. 

The majority opinion, written by Judge Dennis, looked at the available evidence in detail.  The opinion notes that when compared to a white co-worker, Thomas Turner was treated differently.  Mr. Turner was ostensibly fired for causing a derailment.  But, a white co-worker caused a sideswipe incident.  The white co-worker received a 45 day suspension, while Plaintiff Turner was fired.  The court noted that the correct standard when comparing to co-workers is not that the co-workers are "identical," a virtually impossible standard.  But, said the opinion, the proper standard is that the co-workers be "nearly identical."  The person to whom Thomas Turner compared himself was very close indeed to Mr. Turner’s job situation.  As the court noted, at the summary judgment stage, the issue is not whether the two co-workers are good comparators.  The issue, is rather, whether they are close enough that the jury should decide the issue.  The employer still has the opportunity at trial to argue the white co-worker is not "nearly identical" to Thomas Turner’s situation. 

The majority opinion also focused on the inability of the employer to identify the person who decided that the four plaintiffs would be terminated.  For four years, Kansas City had said the decision maker was the two men who investigated the derailment.  They two investigators decided that Thomas Turner should be fired, according to the employer.  But, after four years and three requests for admissions by the plaintiff, the employer responded that the General Superintendent (GS) made the decision to terminate Plaintiff Turner.  The employer then provided an affidavit by the GS in which he said that he had made hundreds of termination decisions in his time with Kansas City Southern and he could not recall any one of them.  He was not certain he had made the decision to terminate Thomas Turner and he could not recall what the reasons for choosing termination might have been.  In his affidavit, he even said he might have delegated the decision to an Assistant Superintendent.  The Assistant Superintendent, accused of racist comments, had passed away.  So, neither the General Superintendent nor the Assistant Superintendent were available to explain why they decided to terminate Mr. Turner, instead of some lesser punishment.  

Indeed, the investigator of the derailment actually said the opposite.  He testified in deposition that he did not believe the derailment incident was sufficient cause for termination. 

Under the burden shifting formula of McDonnel-Douglas, the employer could not then rebut the employee’s claim of Title VII discrimination.  If the decision-maker cannot recall the decision to terminate, then no one is available to explain why Mr. Turner was fired and not simply suspended.  The defense appears to have responded that there were subsequent internal appeals which found that Mr. Turner deserved some punishment.  But, again, those appeals actually found that termination was not warranted.  

The court did not say so explicitly, but it must have been troubled by the last minute "memory" regarding who decided to terminate Mr. Turner.  There is some caselaw holding that changing explanations for a termination suggest some dissembling has occurred.  If there is any question about veracity, then the issue should be decided by the jury.

The interesting thing about this decision is that one of the three judges dissented regarding the Turner portion of the case.  Judge Owen presents the more conservative or pro-employer view.  She argues that the majority opinion places a heavy burden on the employer.  In her view, the majority opinion is asking the employer to provide too much evidence at the rebuttal stage.  She says the employer does not have the burden of rebutting pretext.  She would keep that burden on the employer.  But, the problem with her analysis is that this opinion addresses summary judgment, not trial.  The judge should not be trying to arrive at some actual "truth" during summary judgment.  Rather, the judge should simply be weeding out those cases where the plaintiff lacks the evidence to show actual factual issues.  

In the Army, we have an expression known as "ground truth."  In a typical maneuver unit, the plans for a battle or for some movement are drawn up by a Battalion or Brigade staff far from the ground itself.  The staff bases the plans on maps, maps which almost always omit important details.  The lowest level unit, the company must execute those plans and make them work.  The first thing the company must do is look at the actual ground on which the movement or action will occur.  Often, the Captains, the sergeants who make the company run must adjust the battle plans based on the actual ground they encounter.  We call that the "ground truth."  Judge Owen is trying to arrive at the ground truth regarding the claimed discriminatory event.  

But, that is not her job.  Arriving at the actual "truth" of some event is the province of the jury.  Summary (or quick) judgment is a poor vehicle indeed for arriving at the "ground truth" of an event. 

 

The Department of Justice has filed suit against the City of Selma for violation of Title VII of the Civil Rights Act of 1964.  Adam Sadler filed a charge with the EEOC claiming he had been demoted to firefighter after he complained about the Chief of the Fire Department.  The former lieutenant complained that the Chief uttered racial slurs.  See San Antonio Express News report.  The former lieutenant was demoted within a month of complaining about the racial slurs. 

Mr. Sadler’s EEOC complaint was referred to the DOJ, according to the news report.  That probably means the EEOC found in favor of Adam Sadler, something the EEOC very rarely does.  Once an employee receives a favorable finding, it must go to DOJ for review when the employer is a governmental entity.  DOJ then decided to file suit here in San Antonio.  It is also very rare that DOJ finds a case worth pursuing.  I guess it will snow this coming July……

To join the US Army, a person must be be smart enough, in sufficient physical condition, free of drug use and free of criminal history.  These requirements mean only two out of ten teenagers qualify.  Those who do enlist are often the best in other ways.  The Stars and Stripes news report about one such young soldier.  SP4 Dennis P. Weichel from Providence, Rhode Island.  Sp. Weichel served as an Infantryman in the Rhode Island National Guard.  On duty in Afghanistan, he was working on a convoy.  A basic rule of convoys in Iraq, where I served, was that they should never stop.  I am sure the same rule applies in the similar combat zone of Afghanistan.

SP4 Weichel’s convoy came upon Afghan children gathering spent artillery shells.  They can sell them for scrap.  The convoy stopped to move the children out of the way.  As the convoy started to move forward, a 10 year old boy darted forward to grab another shell casing.  Sp. Weichel jumped in to pull him back and was sruck by the moving MRAP.  MRAP’s sit very high.  The driver has little visibility close to the vehicle.  The boy was not harmed.  Sp. Weichel was run over and killed.  A fellow soldier in his unit told a reporter, "he would have done it for anybody.  That was the way he was."

When I was in Iraq, I rode with a security detail a few times.  This security detail had conducted many convoys during their twelve months in Iraq.  They went outside the wire 5-6 times a week.  On one such run, we became entangled with an Iraqi truck, full of workers in the bed of the little truck.  Two Iraqis died in that collision.  Our HMMWV was almost overturned.  After we emerged from our vehicle, we saw the prostrate Iraqi driver, obviously dead, another close to death.  The driver of our HMMWV looked around and then collapsed.  He profoundly blamed himself for the injuries and deaths to the Iraqi locals.  Later when things were more calm and we were back at our base, I told him the opposite.  I told him we would probably have died ourselves if it were not for his skillful driving and split second timing.  HMMWV’s are top heavy.  They topple easily.  The turret gunner would have been severely injured or worse if we had turned over.  To me, SFC Hernandez was a hero. 

These are the people I served with.  These are the people serving still. 

Defamation refers to uspeaking an untruthful statement about someone.  "Libel" refers to written defamation.  "Slander" refers to oral defamation.  In the employment context, defamation has an extra hurdle.  In Texas, to charge an employer with defamation, the defamation must be made in the course and scope of his/her employment.  That is, the defamatory statement must be related to the speaker’s job.  So long as the speaker makes the statement to persons with a duty or need to know, then the speaker will be protected by a qualified privilege.  For example, if a manager makes a statement to someone in Human Resources about an employee, even if that statement is not truthful, then the qualified privilege would probably apply.

An employee can overcome the qualified privilege only be showing that the speaker acted with actual malice.  Showing malice is a high burden.  Malice refers to a person knowingly and deliberately causing harm.  Malice is more than a mistake or a misunderstanding.  To show malice, an employee would have to show the speaker knew or should have known the statement was not true and that the speaker sought to cause harm of some sort.  Many employees have come to me seeking redress for defamation. Rarely have I seen sufficient evidence to make a case of malice.  

For example, an employer fires a person for alleged stealing.  The employee did not steal.  But, how do we show malice?  That is, how do we show the employer knew or should have known the theft allegations were not true?  Most times, we cannot.  

Many of the normal principles of defamation law apply to the workplace: the statement must be clear and unambiguous.  It cannot be capable of two different meanings, one of which might be non-defamatory.  Truth is always an absolute defense to defamation.  But, for most people charged wrongly with theft, there is little anyone can do about that sort of termination.  Defamation lawsuits in the workplace are just too difficult. 

I keep reading reports that the so-called tort reform movement is much exaggerated.  Many of these so-called "reforms" keep folks from getting to the courthouse and seeking true relief.  One more such report appears in the form of Blocking the Courthouse Door, by Stephanie Mencimer, reviewed by Washington Monthly.  The author recounts various examples of tort reform blocking the courthouse door.   A Republican homeowner in Houston finds his brand new home needs $199,000 in repairs.  But, since he is forced into binding arbitration, Jordan Fogal and his wife, are offered a mere $5,000 by the builder.  

Alvin Berry voted for Proposition 12, a Texas medical malpractice "reform" in 2003.  Now, Mr. Berry finds himself shortchanged by his doctor.  Mr. Berry will lose his life in five years, because his doctor ignored some clearly dangerous lab results.  But, with the cap on medical malpractice damages, his case has relatively little value.  He cannot find a lawyer interested in his case. 

Juan Martinez was killed in 1999 when a reactor exploded at a Phillips Chemical Plant in Pasadena, Texas.  The jury stuck it to the Phillips with a large amount of punitive damages.  But, under the tort "reform" championed by Gov. George Bush in 1995, the jury award was reduced 97%.  For more details, see the book review of Blocking the Courthouse Door here by Washington Monthly. 

The book suggests part of the change in access to the courts lies with the demise of unions.  Back when unions were a larger part of the work place, many work issues were resolved quietly as part of the grievance process.  But, with unions so diminished, most workers now have no other recourse than lawsuits.  And,  know much of the change started with changes in the federal rules.  Dismissal of cases and summary judgment are much easier to obtain in the late 1980’s. 

The much-maligned spilled coffee case actually had some good facts to support the large verdict.  And, that large verdict was reduced on appeal.  I previously discussed the McDonald’s spilled coffee case here.  The plaintiff in the spilled coffee case was found 20% at fault.  The initial $2.7 million verdict was reduced by the trial judge to $480,000.  It was reduced again while on appeal.  See ‘lectric law library for more details about the McDonalds spilled coffee case. 

 

 

District courts and appellate courts frequently parse evidence in discrimination cases.  There is ample precedent saying they should not.  But, they do.  Workplace Prof blog discusses a case in which the Eighth Circuit picked and chose which evidence it would consider and found for the employer.  See Workplace Prof blog post. Courts are supposed to look at the evidence in discrimination cases as a whole.  But, as my old ROTC instructor, a big, burly NCO, used to say, "If a bullfrog had wings, it would not bump its tail every time it hopped!"

In this lawsuit, EEOC v. CRST Van, the EEOC sued one of the largest transportation companies in the nation for gender based discrimination.  CRST has a training program in which new drivers must successfully complete a 28 day ride with an experienced driver.

In close quarters, this would present many problems for women in a male dominated industry.  The court found that 67 claims were from women who were not identified during the EEOC conilication and investigation stage.  The court denied those claims outright.  The lower court and the appellate court found no liability by lead drivers because they were supposedly not "supervisors."  That means acts of discrimination are not chargeable to the employer unless it can be shown that some manager was aware of the abuse.  If the lead driver were a "supervisor," then the new driver would simply need to show an act of abuse.  The court has imposed a significant burden on an employee far from co-workers or other managers.

The appellate court upheld summary judgment as to 9 of 11 women because the abuse was not "pervasive" enough (mere "offensive utterances" were deemed not enough).  Regarding 21 women, the abuse was found to be by co-workers (since Lead Drivers are supposedly not supervisors).  Of the remaining 11 women, the employer had no liability because the employer supposedly acted promptly. 

The appellate court did reverse an award of $4 million in attorney’s fees to the employer.  The appellate court did reverse summary judgment regarding the named party and another woman.  So, said the court, the employer is not a prevailing party, after all, for now.  See post by Undercover Lawyer. 

So, as Workplace Prof points out, what should have been a pretty clear case of widespread abuse was nickle and dimed to a couple of cases of possible discrimination.  And, gender based discrimination will likely continue at CRST Van…….