Herman Cain says the ten year old sex harassment allegations against him are baseless.  He denies any wrongdoing.  See CBS news report.  Yet, he admits the National Restuarant Association paid a settlement on the two separate chareges against him.  One news report said the two settlements were in the five figures.  

Who truly knows what happened.  But, I find it doubtful any employer would pay out settlements in the five figures if the claims truly lacked any basis.  Discrimination cases are always emotional and difficult.  A breakdown of the employment relationship causes both sides to feel much anger and resentment.  Employers are angry anyway, but especially so if they believe the charges truly lack basis.  Settlements in discrimination cases are rare compared to other sorts of lawsuits.  

Virtually all settlements require the complaining party to agree to keep the terms of the settlement confidential.  So, I am sure whoever accused Mr. Cain of sex harassment agreed they would not discuss the terms of any settlement.  So, we will probably not hear their side of the story. 

But, as I have told my employee clients many times, the employer would not be paying out large sums of money if the claim truly had no merit.  

A St. Phillip’s College professor was denied tenure.  Angela Wilson then filed charges of racism and retaliation against the president of St. Phillip’s College, Adena Loston.  See San Antonio Express News report.  Ms. Wilson, a professor of radiography, was also involved in a dispute with the Veterans Administration Hospital.  St. Phillip’s had an internship program with the VA hospital’s radiography department.  Ms. Wilson felt the St. Phillip’s students were being mis-treated, so she pulled them out of the program.  In the following school year, she tried to place new students in the program.  The VA then said they had no room for student interns.  

Mr. Loston learned of the snafu after the internship program was essentially shut down by the VA.  He found Ms. Wilson, Donna Laird and Jerry Narvaez, another professor at fault.  Ms. Wilson was given a final warning at the time.  About the same time, Ms. Wilson filed a sex harassment charge against a fellow male professor, Warren Parker.  She was denied tenure soon afterward.  She appealed and lost her hearing before the Alamo Community College District trustees.  St. Phillip’s College is a part of the ACCD system. 

I previously wrote about the radiography department at St. Phillip’s here and here.  Ms. Wilson filed her complaint against the same Warren Parker described in my prior posts.  It does appear that the radiography department at St. Phillip’s is dysfunctional.  As many of my employee clients have found, termination, even when involuntary, is often the best result possible.  Some jobs just require too much emotional investment. 

My colleague and friend, Mike Maslanka, at Work Matters, pens a nice post about questions to pose to the employee plaintiff.  See post.  Mike’s post discusses good questions to ask the plaintiff.  Mike generally represents employers.  These questions would usually come during the deposition or the trial.  His point is that the better questions for the employer to ask are not "home run" type questions, but the doubles and triples.  "is this a fair summary?"  As Mike points out, this question, often in a deposition, is not all that fair.  The question often is slanted just a bit to favor the employer.  The goal is to elicit testimony the employer can use to seek dismissal of the case or summary judgment. 

 "Take it to the limit one more time."  Mike makes a valuable point here.  He means the employer’s lawyer should look for ways to press the issue regarding personality conflicts.  If he can show the employee was fired due to personality issues, then that undercuts discrimination or some other illegal motive playing a role.  And, he hopes to show that the employee is unreasonable. 

The plaintiff employee who cannot set aside his/her anger will surely lose. The employee needs to show some appreciation for the opposing point of view.   "Niceness" does count in litigation.  Ultimately, we all answer to a judge and jury for everything we do in a lawsuit.  An employe (or employer) who comes across as unforgiving or unreasonable will lose.  The jury does not understand the law very well, but they tend to understand human nature very well.  They do not sympathize with plaintiffs who cannot get past the emotional pain. 

Its a fine line the plaintiff employee must walk.  S/he must be firm, but not cross.  S/he must be "nice" but not easily pushed around during questioning.  It is a difficult task.  But, the employee who cannot set aside anger to some degree loses credibility. 

Its a truism that applies elsewhere.  In my time in the Army, some  28 years in the Army, Army Reserve and National Guard, personnel issues occurred with some frequency.  "He said, she said" disputes were not unheard of.  If one side could discuss the issues with some balance, that soldier gained credibility.  Litigation is no different…….

 A former employee of the City of Kerrville, Texas has settled her lawsuit against the City for $12,500.  She had sued the City of Kerrville for sex discrimination.  She had alleged she was fired for conduct that would have resulted in much less severe punishment for men.  See San Antonio Express News report. I previously wrote about her lawsuit here.  Very many discrimination lawsuits settle for less than $20,000.  In this area of law, any settlement should be considered a win for the employee.  She was fired after ten years working as an administrative assistant for the City of Kerrville. 

Your average county courthouse sees more genuine drama and pathos than any television show can ever capture.  So, perhaps it is not surprising when one courthouse becomes the scene of partying French Moroccans.  Five French citizens of Moroccan background were traveling across country in a rented RV.  After a night of drinking at Coyote Ugly, a Riverwalk establishment, capped off by more drinks at the famous Esquire bar, two of them spied the Bexar County Courthouse.  Apparently, not realizing it was a courthouse, they climbed up the fire escape and broke in.  Coming across a closet in the San Antonio Bar Association offices, they found a couple of the over-sized, wide, straw sombreros used for skits.  The donned the sombreros, played judge in some courtrooms and strolled the halls sipping more beer.  See San Antonio Express News report. 

Litle did they know, that due to Post-9/11 funding the courthouse has alarms and security cameras thoughout.  They were observed during most of their courthouse party.  Within minutes the courthouse was surrounded and the two partiers were arrested.  The three remaining travelers, asleep in their RV, were rousted out of bed and dragged to jail.  

Initially, they were suspected of being terrorists.  Two were even reported initially to be on an FBI watch list.  The FBI became involved as well as the Sheriff’s office.  After a few days in jail, authorities decided they were just errant partiers.  But, the two partiers remain locked up accused of burglary and intent to commit criminal mischief.  The three RV’ers worry about their friends in jail and are concerned because they have run out of money and must return home – if they hope to help their friends in jail.  They express affection foe the USA, saying we have a lot of good people here.  The French travelers speak French and Spanish and broken English. 

So, this time the courthouse sees more humor than drama.  Two young Frenchmen learn some valuable lessons.  May life always be this peaceful. 

The City of Austin, Texas settled a discrimination lawsuit against the Fire Department for $850,000.  See Austin American Statesman report.  The lawsuit had been filed by two white Fire Battalion chiefs who complained that two minority candidates who ranked lower were selected over them for promotion to Assistant Chief.  The lawsuit claimed the selections were based on race.  The suit claimed that the City Council had asked that the Fire Department achieve greater diversity.  That request apparently prompted the Fire Department to reach four ranks down to select the two minority candidates. 

In Texas, unemployment benefits are awarded to employees who lose their job through no fault of their own.  That is the general rule.  It is one area in Texas employment law where fairness carries some weight.  The process starts when the employee files a claim for benefits.  Texas Workforce Commission will then request a statement from the employer.  Some employers choose not to respond, in which case TWC will award benefits. 

If the employer responds with information indicating that the employee’s termination was due to some misconduct by the employee, then TWC will set the claim for a telephone hearing.  The employee may have evidence corroborating key points.  If so, s/he must provide copies of the evidence to the employer and to the TWC judge prior to the hearing.  The hearing notice should include contact information for the employer or the employer’s representative. 

The employer may hire a lawyer for the hearing.  More often, the employer will rely on its Human Resources department to serve as representative.  

The employee must satisfy some technical requirements to be awarded benefits.  I am not aware of the specific requirements.  The website, Can My Boss do That? contains some general information regarding those requirements.  In General, the employee must have worked for the employer for some period of time and must have earned a certain level of money to qualify for benefits.  TWC states on its website that the applicant must have earned sufficient amounts of pay in four of the five preceding quarters.  

Can my boss do that? discusses one situation where they suggest you will be disqualified for benefits: if you testify that you quit due to stress, then you will lose benefits.  That may be true, since resignation usually does disqualify a person for unemployment benefits.  But, if you can show that you quit for medical reasons, you might still win benefits.  TWC judges are sometimes sensitive to disability issues.  

It is difficult to find a lawyer to represent an employee at a TWC hearing.  Employers and, I suspect, TWC do not want employees to be represented at such hearings.  There is no mechanism for lawyers to be paid if they represent an employee.  And, of course, an employee who has just lost his job will have little money available to hire a lawyer. 

In fact, even keeping benefits once they have been awarded is a challenge.  The employee is required to call in once a week to certify s/he has looked for work that week.  If you do not call in, you will not receive benefits for that week.  The phone line is very busy.  I have heard from a couple of clients that they could not get through the busy signal for one or more weeks.  So, they missed benefits one or more weeks.  It i almost as if TWC was trying to keep the employe from receiving his/hr benefits once they have been awarded. 

And, of course, it is hard to believe but the former head of appeals for TWC was offering advice to employers in 2010 on how to deceive employes and avoid paying benefits.  See my prior post.  The Texas unemployment benefit process is not employee friendly.  But, it is possible to appear at a hearing and win.  The employee will have to plan ahead and think carefully about what you want to to tell the judge at the hearing.  You also need to consider carefully the questions which you wish to ask key witnesses. 

 

Six years ago, I was sitting at a desk at FOB Danger, Iraq processing applications for CERP funds.  Periodically, I would go "outside the wire" to look at ongoing reconstruction projects.  I was one of some 150,000 soldiers, sailors, Marines and Airmen serving our country.  We served on a large team, my brothers and sisters in the service.  Now, we lose another, LCPL Ben Schmidt.  Cheered at football games long after graduation, he apparently charmed many.  He designated Texas Christian University to receive his military life insurance money – to set up a scholarship.  He was an extraordinary young man.  See San Antonio Express News report. 

He shunned killing, yet returned for another tour with his fellow Marines.  He went, as many of us did, to look out for our brothers and sisters on the big team.  

Some 140,000 men and women are serving in Afghanistan.  Another 40,000 or so in Iraq.  Men and women die everyday in one of those two wars.  Does anyone notice?  Here in San Antonio, we notice the passing and huge loss of LCPL Schmidt.  But, even here in Military City, USA, will we notice the loss of other Marines next week from some other town?  Some time back, a First Lieutenant asked if we cared.  See my prior post.  He just wanted us to take notice of the troops serving overseas.  I hope we do……

A Georgia school teacher lost her job over Facebook photos of her holding an alcoholic drink during a European vacation.  A parent supposedly complained and she was forced out.  Now, she is suing for damages.  The district judge granted summary judgment to the employer.  See Atalanta Journal-Constitution report. 

The school teacher, Ashley Payne, claims someone claiming to be a parent sent an email regarding the Facebook photos.  Ms. Payne says there is no evidence the sender was truly a parent.  She claims she was denied the right to a hearing prior to her forced resignation.