I admire the litigation process very much.  The strength of our system here in the US is that virtually anyone can file suit for any perceived wrong.  But, the strength is also the weakness.  Anyone can file suit over anything.  People for the Ethical Treatment of Animals (PETA) has sued Seaworld in San Diego to free the slaves.. err… the whales.  PETA’s lawyer has argued in U.S. district court that the whales are subject to the Thirteenth Amendment, which prohibits slavery.  The whales should be free, they argue.  The killer whales are forced to live in tanks and perform daily.  

Seaworld filed a motion to dismiss the claims.  The judge asked for an oral hearing and will rule later.  See San Antonio Express News report.  PETA claims victory already simply because such an argument has now been made in court.  This case is on the "frontier of civil rights," said their lawyer. This is not about poor treatment.  It is about something more.   ". . .  we heard arguments as to whether living, breathing, feeling beings have rights and can be enslaved simply because they happen to not have been born human,"  said Jeffrey Kerr, the lawyer for PETA. 

And, sure, when you look at the text of the Tirteenth Amenment, it does not refer to slavery among humans.  See Thirteenth Amendment.  But, the Thirteenth Amendment merely amends the document.  The U.S. Constitution starts with these words, "We the people."  See Constitution.  Not, "we the mammals" or "we the sentient beings."  PETA faces a huge obstacle in this lawsuit. 

So, the next time, Rover begs you for crumbs from the table.  Remember, he could sue you…..

 My clients often tell me some horrible deed by the employer and quickly ask me "can they do that?"  To me the real question is "will the employer’s act and his explanation pass muster with the judge and jury?"  I usually answer by "guestimating" what how a jury would respond.  If the client really presses me, I will tell them they should ask their friends and neighbors.  Friends and neighbors do not represent a scientific sampling of a jury pool.  But, it is a starting point. 

We see some of this credibility assessment at work in the redistricting lawsuit against the state of Texas.  One of the state’s witnesses testified that when they worked on the Republican favored districts, they did not consult with any government official.  I have never worked in state government.  But, it does not seem credible to me that state employees working on redistricting had little guidance from Republican lawmakers in charge of the redistricting process.  That assertion struck one of the judges the same way.  Washington D.C. District Judge Beryl Howell had the same reaction.  He commented during the trial that he had to "scratch his head" over that testimony.  See San Antonio Express News report.  Whenever a federal judge offers an opinion, the listener should pay close attention.  Judge Howell’s comment is judge-speak for "I do not believe you."  

As I have explained to clients many times, what we say in court must be believable on some level.  If an employer claims he fired someone only because s/he was late one time one minute, that just stretches the limits of credibility.  So, yes, we can all say whatever we want in court.  But, it must pass "the smell test."  I heard a report today that Judge Howell’s reaction prompted the state, in part, to discuss possible settlement in the lawsuit.  Yes, comments from judges do have that effect. 

When I was a young lawyer in rural Louisiana, I clerked for a smart state district judge.  He would routinely pull the lawyers for both parties into the back room to hear the "skinny" on whatever motion they were in court on that day.  He always asked if the parties had talked about settlement.  If there was a stumbling bock to settlement, he wanted to hear about it.  Once in a while the stumbling block was some motion that one of the parties was sure they would win.  After a lot of careful language, my judge would tell the lawyers that based on what he heard, he would rule in a particular way.  He was telling them in judge-speak how he would probably rule on the disputed motion.  Dropping that heavy hint always brought about an agreement or settlement.  Judge Howell dropped his hint, I think. 

Financing discrimination lawsuits is difficult.  The plaintiffs often are unemployed by the time they even find a lawyer.  Many potential plaintiffs do not find a lawyer, at all.  So, it is not surprising to see three women who are suing DePaul University have set up a website seeking donations for their lawsuit.  See their website here.  Melissa Bradshaw, Penny Silvers, and Jennifer Holtz have sued the school claiming they were denied tenure because of their gender.  Of 33 persons up for tenure, seven were denied.  Of those seven, five were women. 

A case based on tenure might cost more, since the plaintiff may find it necessary to depose each member of the tenure committee – in addiition to the usual depositions of the final decision-makers and any supervisors. 

In Carey v. 24 Hour Fitness, USA, Inc., No. 10-20945, (5th Cir. 1/25/12),we have another caes regarding an arbitration clause in an employee handbook.  But, this time, the court of appeals found that the arbitration clause was not binding. The cause prohibited entering into any class actions based on the Fair Labor Standards act.  The employee, John Carey, however, did enter into an FLSA class action. 24 Hour Fitness sought to stay the class action and force arbitration.  The district court denied the stay and found the arbitration agreement to be illusory.  The Fifth Circuit sustained the lower court.

Under Texas contract law, an agreement which allows one party to unilaterally make changes to the agreement retroactively is considered illusory.  Such an agreement is not a genuine agreement.  In this case, the Fifth Circuit found that 24 Hour Fitness retained the right to amend the employee handbook, including the arbitration clause, at any time with no limit.  The court fiound the 24 Hour Fitness arbitration agreement different from that in other cases, in which the handbook was subject to change, but not if any complaint had already been lodged. 

The arbitration agreement in the 24 Hour Fitness case allowed the employer to "revise, delete, and add to" the employee handbook at any time.  There was no limit on its ability to do so.  the agreement, thus, applied to the employee but allowed the employer to slip out of it if it chose.  This failure to make the agreement truly binding rendered the agreement "illusory,: said the court.

24 Hour Fitness argued that it did not have an express ability to make changes retroactively.  But, noted the court, Texas law presumes retroactive application if the agreement is silent on the subject.  See the opinion here. 

The Fifth Circuit has overruled similar arguments made here by the plaintiff in other cases.  It seems that the law of arbitration agreements is still evolving. 

This decision also reflects the challenge of using employee handbooks.  Employee handbooks benefit employers because they prescribe procedures for counseling or terminating employees.  Such procedures make it far easier for employers to win claims for unemployment benefits.  But, employee handbooks can become contracts – meaning the failure to follow discipline procedures in the book may give rise to breach of contract claims by an employee.  The employer then responds with clauses providing that the employee handbook is not a contract and can be changed at any time.  So, how does the employer insert an arbitration clause without making the rest of the handbook a contract?  This decision suggests that the employer should at least make it clear that it can change the handbook, but such changes would not apply to any pending claims of discrimination or FLSA violations. 

But, in the end, it is hard to eat your cake and eat it too.  There are limits to how much we can squeeze into any one contract. 

Judges are easy targets.  They rule on issues that affect everyone.  They are limited by ethical rules in how or even if they can respond to political attacks.  So, sure, Newt Gingrich attacks Judge Fred Biery as part of his campaign for president.  Mr. Gingrich says he would "do no more than eliminate Judge Biery in San Antonio and the Ninth Circuit."   See San Antonio Express News report.  That’s all he would do.  How comforting. 

Mr. Gingrich and others refer to Judge Biery ruling in the Medina Valley High School case.  He found that the school was sponsoring prayer at a graduation ceremony.  I previously wrote about the attacks on Judge Biery here.  Mr. Gingrich refers to Judge Biery as an "anti-religious, dictatorial bigot."  Apart from Speaker Gingrich’s grandiose rhetoric, he is flat wrong.  Judge Biery’s opinion offered advice, something judges are loath to do, to help the school get through the crisis.  He suggested removing language asking the audience to join in the prayer, so as to avoid the constitutional issues.  He wrote a paragraph suggesting the school district look at this issue as a "teachable" moment in tolerating different views.  In the judge world, he bent over backwards to avoid conflict.  Yet, he suffered threats.

There is a reason why we have independent judges under the US Constitution.  State judges must seek re-election every few years.  Federal judges have a job for life.  Every so often, some politician seeks to restrict that independence.  President Roosevelt attempted to pack the Supreme Court in the 1930’s.  President Tom Jefferson sought to remove President Adams’ judges and install his own.  Politicians in Florida are trying even now to limit the terms of the state judges in that state. 

But, without an independent federal judiciary, most of the civil rights gains of the 1960’s and 1970’s would not have occurred.  Judge John Minor Wisdom in New Orleans had to leave New Orleans to avoid the threats.  Without his courage, the schools in New Orleans would not integrated.  Without  a few brave judges in the South, we would still have separate but so-called equal facilities in stores, schools and government buildings. 

I believe Speaker Gingrich does not truly seek to diminish the independence of the federal judiciary.  Some of his rhetoric is often "over the top."    But, if he were to succeed in removing particular judges due to perceived judicial activism, he would indeed curtail the independence that makes he federal judiciary unique and vital to out form of democracy. 

 Filing charges of EEOC complaints has reached an all-time high.  Though just a small increase over 2010, the filings reflect the state of the economy.  Filings generally rise when the economy worsens.  That is due, I believe, to employers taking advantage of the economic "cover" to get rid of employees and more terminations simply cause more complaints.  See MSNBC report.  

The EEOC said it received 99,947 complaints in Fiscal Year 2011.  35% of these complaints were based on race; 29% alleged gender discrimination; and 24% of the complaints were based on age discrimination.  26% of those complaints were based on disability discrimination.  The EEOC says 18% of those complaints received a "merit resolution," which means they achieved some sort of settlement. 

Judge Montalvo issued a decision for the Western District of Texas regarding the Americans with Disabilities act.  In Molina v. DSI Renal Inc., 2012 WL 29348 (W.D.Tex. 1/4/12) the court deneid the employer’s motion for summary judgment.  The case was filed under the Texas Commission on Human Rights act, but the court interpreted based on the ADA Amendments Act.  Ms. Molina had suffered from back problems for years.  Her employer, however, suddenly decided it could no longer accommodate her.   The employer would not honor her lifting restrictions, saying they would no longer allow anyone to work unless they were fully released by their doctor.  On summary judgment, the employer argued that her back impairment was not a disability.  

But, the judge correctly stated that under the ADA amendments, to determine whether someone is "substantially limited," he must look not to the outcomes that the person can achieve.  Since, an impairment need not restrict or significantly restrict the individual from performing a major life activity in order to be considered "substantially limited."  Instead, as the EEOC guidance points out, the court should "compare the condition under which the individual performs the major life activity" or "the manner in which the individual performs the major life activity" as compared to the general population.  This comparison, said the court, could include the pain with which the individual performs the major life activity.  

As the court noted, the employee learned to work through her pain.  She was able to perform many of the same tasks after her back injury as she did before the injury.  The court noted that she was without pain mostly because she took pain medication.  She still suffered from a disability, concluded the court. 

Under the old ADA, Ms. Molina would have lost with this evidence.  It is the ADAAA’s requirement that a judge look at her disability without the benefit of medication that made a substantial difference in her outcome.  The court found that a 20 lb lifting restriction was a substantial limitation on a major life activity of lifting.  He rejected pre-ADAAA decisions which had specifically found that a 20 lb lifting restriction was not a substantial limitation. See additional comments at Disability Blog. 

I served in the US Army, National Guard and Army Reserve for 28 years.  I served as an Infantry officer for most of that time.  As young Infantry officers, we studied leadership and group dynamics over and over.  Studying leadership has become a favorite past-time for me.  One fundamental principle of Army leadership is that a leader never takes advantage of his position.  He always places his soldiers’ welfare ahead of his own.  For example, in the field during training, we should never eat before our men eat.  We should never "sneak off" to get a shower if our men could not do the same. 

This principle was violated, sometimes.  But, even in the violation, it helped confirm the rule.  We, my colleagues and friends, always avoided serving in military units that violated this basic leadership principle.  We knew leaders who placed their own comfort before that of their soldiers.  We always found it shameful and abhorrent. 

In a war zone, I saw leaders again place their own welfare ahead of the troops they commanded.  It was, fortunately, rare, but it did occur.  I understand that the Cruise Ship Captain who abandoned his ship before his passengers evacuated violated several laws of the sea.  He had a duty to see to their evacuation before securing his own safety.  Cpt Schettino was ordered by a Coast Guard commander back to his cruise ship to coordinate the evacuation.  Cpt Schettino merely responded that it was too dark to go back to his ship. 

It is easy to criticize the captain.  The word "cowardice" has emerged.  But, I prefer to wait a little longer to learn more about what happened.  One of the wonderful tools provided by the Army is the Center for Army Lessons Learned (CALL).  The CALL Center historians and writers research and write up the best war vignettes and battles – most of these stories concern leadership in many different contexts.  At one time, i was sure that I had read them all.  CALL produces more every year, so now, I am long behind.  One paper I recall looked solely at what leadership traits made effective combat leaders.  That is, what could we look to in training or education to help mold good leaders under stress.  Physical conditioning perhaps?  Knowledge of weapon systems?  Surely, prior combat experience would make a big difference.  No, in the end, it was none of these things. 

The paper’s conclusion was that closeness to your buddies, a sense of comraderie was the only reasonably good predictor of success in that most stressful of situations, combat.  Readers may be familiar with the Mel Gibson movie, "We Were Soldiers."  The movie concerned an Infantry battalion during a pivotal battle in the Viet Nam War.  The movie was based on a book with the same name.  Then Lt.-Col. Hal Moore commanded the Infantry troops.  LTC Moore’s battle turned out well against overwhelming odds.  His battalion survived when sheer force of numbers should have decimated his soldiers.

But, those who have not read the book do not know that the second half ot the book concerned a second battle with an entirely different Infantry battalion.  That second battle was a disaster.  The second battalion walked into a well planned and well-executed ambush.  The commander was a seasoned veteran with solid combat experience.  But, as the battle unfolded, the commander was said to have been dis-engaged.  In effect, he withdrew from the carnage and let his subordinate leaders react on their own.  The battalion commander was new to the unit.  He had just joined them shortly before the battle.  Emotionally, he was not really a part of the unit.  When the situation devolved to gut instinct, the new commander’s instinct was to sit under a tree during the horrific ambush. 

Did Cpt. Schettino just join the ship before the cruise?  Did he have reason to feel disaffected from his crew and passengers?  Nothing can justify running away from a situation that demanded the ship’s captain more than ever.  He is still a "dirtbag," in my opinion.  But, still, i prefer to wait and hear the rest of the story.  How many office managers have a reason to feel dis-affected from their subordinate employees?  How many employees suffer because a manager is ill-trained for the task at hand?  

In the Army, we call this phenomenon "sh– rolls downhill."  The leader at the top sets the standard for everyone s/he supervises.  They set the tone for the rest of the company.   In the business world, we call this phenomenon poor training and poorly run companies result in many lawsuits. 

 "Cease and Desist" letters can be rather assertive.  By definition, they assert someone’s rights.  But, they need not always frighten the recipient.  See this link for a response to one such cease and desist letter.  San Antonio’s own Freetail Brewing Company received a cease and desisist letter regarding its use of the name "Hoposaurus Rex."  Freetail used it for a beer or a beer process.  Receiving a threatening letter, the owner responded with a thank you, said he loves to hear from peoiple all over the country.  As Scott Metzger explained, his company did not use the name enough to care about it.  He offered his total "acquiescence" to their demand to stop using the name.

He requested (but did not demand) that the lawyer tell his client that Freetail would have been happy to give up the name if they had simply asked nicely.  Mr. Metzger asked (but did not demand) the lawyer to please tell his client that he would like to try their beer at the next beer festival, but would probably not give him a hug.  Mr. Metzger even included a nice drawing of a Tyranosaurus Rex waving a white flag……

A lesson we can all learn.  When next you consider a lawsuit, first consider what is the harm?  What damage have you suffered?  Then, ask yourself is that damage enough to justify time, expenses and energy.  If the lawsuit has no harm or the harm cannot justify a lawsuit, then simply consider the experience to be one of life’s educational opportunities. 

You work for a company for 30 years, acquire a skill, and then join a new, smaller company doing the same job.  You think you have reached a certain level of success.  But, no, you have not.  That is Teresa Jackson’s exprience.  She worked for the Scooter Store in Newe Braunfels, Texas for over 31 years as a sales representative.  She left to join Patient’s Choice, LLP of Arlington Heights, Illinois.  Patient’s Choice is a competitor of the Scooter Store. 

The Scooter Store sent a cease and desist letter to Ms. jackson and filed suit.  They later added Patient’s Choice to the lawsuit.  So, Patient’s Choice fired Ms. Jackson to get out of the lawsuit.  Patient’s Choice offered to rehire Ms. Jackson if she settled the case with the Scooter Store.  But, she reached an agreement with Scooter Store not to work for any competitors for two years.  She said she tried to find a lawyer to help her.  She spoke to 17 lawyers but could not find anyone to help her.  

The Scooter Store said it would suffer irreparable injury if Ms. Jackson was not stopped.  Meaning apparently, that the Scooter Store sought a temporary restraining order stopping her from selling scooters for any competitors.  Ms. Jackson denies the Store’s claims.  She says she has no trade secrets.  She just knocks on doctor’s doors until someone buys a scooter.  Ms. Jackson says she was railroaded.  

I am sure she is correct.  Ms. Jackson must have signed a non-compete agreement with the Scooter Store.  Texas has a statute that addresses the permissible limits of a non-compete agreement.  Judges impose some limits.  But, still a valid non-compete agreement will impose a time limit and a geographic limit on a worker going to work for a competitor.  Two years is about as long as any court will allow such an agreement. The geographic limits can include states or regions.  The law, in effect, recognizes a temporary, local sort of slavery.  It is part of the price we pay to support businesses and "job growth." 

As I have explained to many potential clients, there is no guarantee that the law will be fair.  Ms. Jackson cannot work for a competitor for two years.  She cannot do work in which she has surely found some success.  But, in the meantime, she must pay her bills and will likely end up in a new industry doing some new job for much less pay.  In two years, employers like People’s Choice may not want her skills.  See San Antonio Express News report. 

Yes, its is hard to find an employment lawyer.  We are out here.  But, even if Ms. Jackson did find one of us, there may have ben nothing anyone could do.  Most employers know how to draft a non-compete agreement to make it binding.  The NFL has free agency.  Local business does not.