Defamation is hard to win in Texas.  See my prior post about a recent defamation case here in San Antonio.  This nurse had what should have been good evidence, yet she lost.  Employers enjoy a "qualified privilege" in Texas.  That means the employee must show actual malice by the employer.  Dakota Meyer, a very recent Medal of Honor recipient, has filed suit against his former employer, BAE Systems for defamation.  See San Antonio Express News report.  He filed his suit here in San Antonio. 

According to his suit, BAE defamed him in seeking new employment.  The world of defense contractors can be close knit.  Verbal discussions about prospective employees do happen.  The Express News article describes an employer who appeared to diminish Mr. Meyer’s achievements in Afghanistan.  His supervisor referred to his then pending MOH as "pending star status."  His supervisor was a former Marine himself.  The harassment apparently started soon after Mr. Meyer complained that his employer was sending top flight equipment to the Pakistan armed forces.  While, the Marines were using inferior equipment.  

"Anti-hero" treatment is not unheard of.  The news report reflects some surprise at this.  Back when I was attending the Infantry Officers Advance Course at Ft. Benning, I worked for a few days for a Lieutenant-Colonel.  I was a captain at the time.  The LTC told me about his time at the IOAC in the late 1960’s.  In the Infantry world, we have a pecking order of our own.  Infantry officers with Ranger tabs, and other "hooah" badges sometimes believe they are at the top of the pyramid.  Some of the young officers at the IOAC in the 1960’s looked down a bit at one student officer because he lacked the hooah badges.  Then at some function where everyone wears their medals, the officer wore his own MOH.  The "hooah" officers then started belittling his achievements, saying his MOH was not as deserving. 

There will always be those who minimize even tremendous achievements.  But, they should not impair one’s ability to find work.  According to the news report, when President Obama called Mr. Meyer to congratulate him for being awarded the MOH, Mr. Meyer asked him to call him on his lunch break.  The Medal of Honor winner did not even feel secure enough in his job to allow the President of the United States to call him during work hours. 

The truth is some folks just need to be sued. 

The Texas Bar Association was sued for discrimination.  Montgomery Miller, a 15 year employee for the bar, complained to his supervisor about problems with his foot.  He said he suffered from several maladies causing foot pain.  Two weeks later, he was fired.  See Texas Lawyer report.  The suit has now settled within just a few months of filing.  Mr. Miller sued on the basis of disability discrimination. 

The Bar’s chief counsel said the suit was settled for just less than $50,000.  I bet it did.  Whenever a 15 year employee is fired two weeks after mentioning health problems, that strongly suggests discrimination. 

Readers should note again, that a case settled for what probably amounts to one year’s pay, more or less.  The myth that discrimination claims, even strong ones, result in million dollar verdicts is just that, a myth. 

Legal scholars are becoming more aware that actual trials in federal courts have decreased dramatically since the 1960’s.  Suja Thomas discussed this trend in a recent speech at Seattle University to mark the 25th anniversary of the summary judgment trilogy.  See Workplace Prof report.  Prof. Thomas mentions a couple of developments leading to this trend: the rise in arbitration and the summary judgment emphasis in federal courts.  See her paper.  

She mentions her own experience with arbitration when she and her husband purchased a house.  The sale agreement included an arbitration clause.  The house had some serious flaws (like no sewer connection).  The repairs would cost about $5,600.  Yet, the arbitration clause would require them to pay for three arbitrators, typically lawyers, and numerous fees that ranged from hundreds to thousands of dollars.  The arbitrator’s fees alone would run into the hundreds of dollars per day.  All for a $5,600 problem.  Because Ms. Thomas is a lawyer, she was able to resolve it much simpler and more direct.  She could do her own research into the legal issues.  But, for the average homeowner, this would have been a minor catastrophe.  

Ms. Thomas mentions a good point regarding these major changes in how we resolve disputes: now, many disputes are not resolved at all and when they are, they are resolved by lawyers and other professionals, not by average citizens.  She mentions her own problem with a home builder.  She also mentions the case of AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011), a U.S. Supreme Court case.  The Concepcions had a $30 dispute with AT&T regarding their cell phone bill.  The cell phone agreement required them to take it to arbitration.  The agreement prevented them from seeking class actions.  The agreement allowed them to file suit in small claims court, but the filing fee for small claims court far exceeded the amount of the $30 dispute.

The California Supreme Court found that the e provision preventing them from seeking class action status was unconscionable and not enforceable.  AT&T appealed to the US Supreme Court, which affirmed the class action provision, saying that federal law favors arbitration.  

This is a crazy result.  The $30 dispute would have little value to anyone other than the Concepcions abd possible class action lawsuits.  Arbitration would require the Concepcions to pay fees in the hundreds of dollars – just to have their case heard by an arbitrator.  

The trilogy of summary judgment cases started the trend toward judicial resolution of cases.  As Prof. Thomas points out, summary (or "quick") judgment has become the tool to dismiss cases.  The trilogy includes Matsushita v. Zenith, 475 U.S. 574 (1986), Anderson v. Liberty Lobby, 477 U.S. 242 (1986), and Celotex v. Catrett, 477 U.S. 317 (1986).  These three decisions made it easier for employers and other to obtain summary judgments, an event that was formerly somewhat rare.  Summary judgment means the judge decides the case lacks merit and no jury ever hears the issues. It is resolution by judges. 

The Federal Judicial Center has found that summary judgment is granted more often in employment cases than any other type of case.  73% of employment cases result in summary judgment.  Other cases see summary judgment 60% of the time.  So, judges decide 73% of employment cases.  Judges are lawyers.  So, like arbitration, we have critical decisions made by lawyers. 

Prof. Thomas discusses remittitur.  If a federal judge is not happy with a jury decision, he can order remittitur, which is a reduction in the jury verdict.  More employment cases see remittitur than any other case.  In a study conducted by Prof. Thomas, 63% of the cases ordered to remittitur were civil rights cases. 

Prof. Thomas cites one estimate that one-third of all nonunion disputes end up in arbitration.  

The trend is toward disputes being resolved by a select, trained but biased dispute "clergy."  They are biased in the sense that this "clergy" will know and feel more comfortable with the employer who brings them business.  It is an institutional bias.  The problem with this arrangement is both constitutional and social.  The Seventh Amendment was intended to garauntee each citizen the right to a jury trial.  Now, by simply buying a house or applying for a job, we waive that right.

The social problem, says Ms. Thomas, is we are working toward having lawyers and judges decide all important disputes in our lives.   I think we all can agree that lawyers look at problems differently than others with different training.  I think we lose something when the average citizen is removed from this process. 

 

The party hardy guys from France are going home.  The two French brothers were arrested because they broke into the Bexar County Courthouse after a night partying on the Riverwalk and elsewhere.  The initial concern was that they were terrorists – apparently because they were of Moroccan descent and their motive for breaking in was not clear, at first.  See San Antonio Express News report.  As it turned out, they were just party guys who displayed the bad judgment to break into the County Courthouse.  See my prior post.  

The two brothers plead guilty to burglary of a building.  With credit for time served, they will soon be leaving San Antonio and the U.S. 

I have talked about this before, but it needs repeating.  See my prior post.  The plaintiff employee deposition is critical to success for any employment lawsuit.  The plaintiff employee must be able to show the opposing attorney and the employer that the employee can testify, can present well to a jury and can tell a coherent story.  

The employee has to get past some of the pain.  S/he must be able to testify without breaking down.  Too many tears will impede a story.  A clever defense lawyer will test the employee in many different ways.  Most defense lawyers do not seek confrontation.  But, they do seek evidence or answers they can use against the plaintiff employee.  Some of the defense questions will call on the employee to show some objectivity.  The employee who cannot step back a bit from the emotions of his/her case will suffer. 

For example, many defense lawyers will ask the employee what errors s/he committed.  The employe who cannot admit errors will betray weakness the defense lawyer can exploit at trial.  The employee who admits to no errors may appear to be dishonest.  The employee who admits to too many errors may undercut his entire case. 

Many defense lawyers will ask the employee to list "all" instances of discrimination.  Failure to include everything could result in the court dismissing claims based on that one omitted incident. 

The plaintiff employee deposition will go as long as several hours and as short as a couple of hours.  It is emotionally draining for every employee.  It can get intense.  The plaintiff employee must re-live the very horrible experience of losing a job through no fault of his or hers.  I have had many clients cry either during the deposition itself or during a break.  

Some clients do not hold up well over a lengthy deposition.  Some plaintiff employees suffer from health or other issues that cause them to be easily lead by opposing counsel.  One former client admitted to opposing counsel that he complained about discrimination on Tuesday, even though he and I both knew it was Monday.  if it was Monday, then he had a good retaliation claim.  If it was Tuesday, then he had no retaliation claim.  Why would he say Tuesday?  I may never know, other than he was simply easily lead on cross-examination.  

Another "catch-22" is that nice is important,  Any witness risks offending the jury if the witness is too rude or pushy.  Niceness does count.  But, if the witness or plaintiff employee do not "fight" for their position in a deposition, then they risk the opposing lawyer defining their story.  The plaintiff employee must be "nice" to some degree, but s/he also needs to fight for her answer, sometimes. 

Some plaintiff employees fret over dates.  They think they must recall the exact date of significant events that occurred years before.  Few witnesses recall specific dates.  But, most people do recall events in relation to some other event.  For example, most people will recall that they requested an accommodation "just before Christmas" or "just after Easter."  Yes, witnesses, especially plaintiff witnesses should recall events that lead to termination.  But, that does not mean the witness must recall the specific date for each termination event. 

Cross examination is all about one word answers.  Opposing counsel generally want the plaintiff employee to answer yes or no.  But, some questions require explanation.  The plaintiff employee must fight for his/her answer, sometimes.  For example,  "Isn’t it true you never called in when you were sick?"  "Yes," answers the employee.

But, "yes" does not explain the situation.  The better answer is, "Yes, but the employer did not require employees to call in if they were ill more than one day.  We did not have to call in everyday if we were out more than one day."    The first answer suggests the employee is admitting s/he erred in not calling in.  But, the second answer explains just the opposite, that the employee satisfied the requirements as they were understood.  

The explanation fills in a big gap regarding why the employee did not call in.  Without the explanation for why he did not call in, the employer can use that information to seek dismissal of the plaintiff’s claims. 

So, yes, the plaintiff employee deposition is very important.  

On this Veteran’s Day, we stop for a minute to honor those who have served in our nation’s armed forces.  During the two wars, the day assumes greater significance.  I have written in this space about my friend, 1SGT Carlos Saenz who was killed in Iraq when I was serving there.  I know to some people, the Veteran’s day thing and Memorial Day both can seem likes days of sadness and mourning.  Yes, these days call for some mourning.  But, I have to say to those civilians with little or no military experience, it is terrible to lose someone.  But, we gain something, too. 

For most of us, serving overseas in a war zone is one of the most positive experiences we will ever have.  My friend, 1SGT Saenz was a very fine soldier.  He inspired all who worked with him.  If we measure success in life by making a difference, 1SGT Saenz lead a very fulfilling life his last 12 months on this earth.  I do not doubt that 1SGT Saenz and the other 4500 casualties of the two wars are looking down now on us with some satisfaction.  They gave their all up to the very last minute of their lives.  How many of us can claim we truly gave our very best effort in toward some great endeavor?  

Back when I played high school football, the coach was always fussing at us to give 110% every game and every practice.  The thing about serving in a war zone is that 99.9% of the players on our team do give 110% everyday.  My time in the war zone was intense and tense, everyday.  No job was too trivial, no job too small.  It all counted.  I am proud to say that we gave our all.  Everyone of us. 

HBO produced a wonderful series several years ago, Band of Brothers.  It recounted the experience of one infantry company from training in the US to deployment to the European theater.  The show captured the strong sense of comraderie and selflessness in a good military unit.  It was based on the book of the same name written by Stephen Ambrose.  The book captured one detail that spoke to me.  One soldier in the Band of Brothers was "Popeye" Wynn.  Popeye Wynn served with distinction during the war.  He was the soldier who apologized to his commander for getting wounded.  After the warm he returned home to Virginia.  His post-war life did not live up to his wartime success.  He said himself that the war brought out the best in him.  

The remarkable thing about good military service is that it will bring out the best in men and women.  Serving others makes you better than you are.  In Iraq, we served on a team of 150,000.  For a great many of us, it will be best thing we will ever do.  

Many potential plaintiff employees come see me about a discrimination case and first thing they say is they don’t have evidence.  Really?  No evidence to show they suffered discrimination?  Often, they have evidence but do not realize it.

Yes, discrimination cases are the epitome of "he said, she said."  But, there are many forms of evidence that can buttress a claim.  Let’s look at the claim against Herman Cain by Sharon Bialek.  She met with him to obtain help in finding a job.  If she was applying for a job with the National Restaurant Association, then she would meet the definition of an employee under Title VII.  In any event, let us assume she meets the requirements of Title VII and could have filed a claim back in 1997 when Mr. Cain allegedly abused her.  What evidence could she have have gathered to support her claims?  If she had mentioned the harassment soon after it occurred to close friends, that testimony would be admissible.  

Ms. Bialek claims Mr. Cain upgraded her room after her boyfriend made the reservation.  Anything, a receipt, a note from hotel management corroborating that upgrade would support her claim.  Evidence that other women had filed claims against Mr. Cain would be admissible.  This evidence would not be admissible to show Mr. Cain abuses women frequently.  Rather, it would be admissible to show that Herman Cain understands sex harassment and has discriminatory intent. 

Ms. Bialek claims Mr. Cain made advances, she resisted and he then responded, "you want a jpb, right?"  Simple testimony by Ms. Bialek regarding Mr. Cain’s telling remark would be admissible.  His statement would not be hearsay.  It would fit an exception to hearsay.  Statements by supervisors which reflect sexist bias are admissible as statements against interest.  In fact, such statements are considered to be direct evidence of discrimination.  Since, such statements show discriminatory bias without need of any inference.  His statement has the legal effect of saying,I am treating you differently because you are a woman."  

Yes, these situations are "he said, she said."  They occur in closed rooms with no witnesses.  But, yes, these situations can be supported by circumstantial evidence and direct evidence.  

 A fourth woman has accused Herman Cain of sexually inappropriate conduct in 1997.  See CBS news report.  The woman, Sharon Bialek, says the then head of the National Restaurant Association touched her inappropriately and suggested she cooperate if she wanted a job. 

She had contacted Mr. Cain after she was laid off from a part of the Restaurant Association.  She suggested they meet for coffee, so she could talk to him about helping her find employment.  Coffee lead to a drink and then dinner.  After dinner, he touched her inappropriately.  He slipped his hand under her skirt and pushed her head toward his crotch.  According to Ms. Bialek, she asked him what he was doing.  He responded, "you want a job, right?"  Mr. Cain has denied the accusation.   

Ms. Bialek asks that Mr. Cain "come clean" about the complaints against him.  It is long past time for her to file a complaint with any government agency.  She was not an employee at the time, so she probably could not have filed a complaint with the EEOC.  Ms. Bialek says she is a registered Republican. 

These allegations are dramatic.  If true, this conduct is the extreme sort of sex harassment we see.  Once you get to four complainants, the evidence begins to look rather strong.  In any discrimination case, similar allegations would be admissible – not to show that Mr. Cain is a serial harasser.  But, they would be admissible to show that Mr. Cain understands sexual harassment law and procedures better than he admits.  

Indeed, Mr. Cain has responded to the general allegations saying they are the result of a long, successful career.  He mentions that he has engaged in "banter" many times in many situations over the decades of his business career.  Anyone seeking complaints about him will surely find them, he adds.  See CBS news report.  Interesting.  Mr. Cain is accused of sex harassment because he was so successful.  I suppose Bill Gates and Warren Buffett have ten times as many similar accusations against them……

 A Stanford management expert reports that jerks and slackers can cost a company in productivity.  See ABA Bar Journal report.  Stanford professor, Robert Sutton finds that negative workers, pessimists, jerks, or angry, nasty people bring the rest of the work force down.  Negative people can reduce enthusiasm and change the mood, reports the researcher.  In one experiment, researchers found that just one slacker or jerk can bring down productivity by 30 or 40%.  

A clothing retailer fired a top-producing salesman but found that overall productivity increased after the difficult personality left.  Sales overall actually increased 30% after the bad apple left.  

Workplace frustration boiled over in a westside San Antonio restaurant last month.  A waitress reacted badly when her work hours were reduced.  Maria Benavidez expressed frustration at her reduced hours.  She looked at the manager’s stepson’s paycheck – who also worked there.  Her manager told her to leave and called the police.  Ms. Benavidez then tossed a pot at the manager.  The manager then tried to walk away.  The irate waitress then threw a cleaver at him and threatened to kill him.  The cleaver left a large cut in the back of his head. 

Ms. Benavidez was arrested and charged with aggravated assault with a deadly weapon.  See San Antonio Express News report. 

How do we prevent workplace violence?  My friend and colleague, Dan Schwarz at Connecticut Employment Blog suggests these steps: 

  • provide training to employees regarding workplace violence.  Teach employees about the warning signs of workplace violence.
  • encourage an open door policy.  Encourge employees to report safety issues or unusual behavior.
  • Do not hesitate to contact the police.  resist the urge to try to deal with a "situation" internally.
  • Take incidents seriously.  Address each situation on a case-by-case basis.  

See more at Dan’s post.