Jamie Lee Jones, the KBR employee who claimed she was raped in Iraq and subjected to a hostile work environment has been ordered to pay $145,000 in court costs to KBR.  See Houston Chronicle report.  Ms. Jones acquired some fame when she testified before Congress about the need for reform regarding employment arbitration agreements.  Ms. Jones’ lawsuit was initially barred by an arbitration agreement.  She eventually won her right to file suit, after appealing to the Fifth Circuit.  See my post here.  But, she lost her trial.  See my post about her trial here. 

The judge denied the motion by KBR’s lawyers to assess attorney’s fees of $2 million against Ms. Jones.  The judge found that Ms. Jones’ case was not frivolous.  To obtain an award of lawyers fees, the defendant would have to show the employee’s case was frivolous.  The judge pointed out that Ms. Jones did articulate a prima facie claim of sex harassment and hostile work environment.  That is, she did provide evidence of the basic elements of such claims.  In reality, she did more than provide bare bones evidence of her claims.  She had what appeared to be a strong case.  Her case was probably undermined by her prior mental health history.  

The result is unfortunate.  But, this should serve as a lesson to potential claimants (which I am sure is KBR’s goal) that good cases can lose and if you lose, you will certainly be liable for the employer’s costs of defending the lawsuit.  And, those costs could include the attorney’s fees.  In federal court, the loser is automatically assessed the costs of the lawsuit.  

As I have described here a few times here, here and here, employees may make negative comments on Facebook about their job.  So long as the employee is deemed to be discussing "terms and conditions" of employment with other employees, then yes, the employee can say things the employer would prefer not to hear.  They may do so pursuant to the National Labor Relations Act which protects workers’ right to form or merely consider forming a union.  

According to a San Antonio Express News report, there have been some 100 complaints filed with the National Labor Relations Board regarding Facebook comments about work.  See news report.  Employees do not win every case.  I am sure the outcome often depends on the diligence of a particular NLRB investigator and whether the employee can show s/he shared these concerns with co-workers.  

If the employee merely gripes to himself, the comment would not be protected by the NLRA. In one case, the employee complained about pay and poor quality of services provided by the employer.  The NLRB found that with no indication that the employee discussed these problems with co-workers or that she tried to take these complaints to management, then her gripes were not protected by the NLRA.  If the employee cannot show "concerted" activity, then the activity will not fall under the ambit of the NLRA. 

Employers should note one comment by the NLRB’s general counsel: many company media policies are overbroad prohibiting any negative comment about the employer on social media.  Such a policy conflicts with the NLRA and should be avoided.  

The San Antonio regional office of the EEOC has filed two discrimination lawsuits here in the Alamo City.  One suit is against AA Foundries, Inc. alleging racial discrimination.  The lawsuit claims that a AA Foundries supervisor routinely used the "n" word and that a hangman’s noose was displayed.  The breakroom also displayed racially offensive materials.  

According to the EEOC, when asked about the noose, an AA manager simply laughed it off.  When asked about the breakroom materials, the same supervisor simply responded that no one was required to read the materials.  The AA Foundries defense lawyer now suggests that the noose was a one-time incident by an "idiot."  AA Foundries employs some 20 persons.  The lawsuit is filed on behalf of four former employees. 

The EEOC also filed suit against Universal Toyota for age discrimination.  Universal Toyota is owned by Red McCombs.  The suit claims Univeral Toyota would not allow older salesman to sell the Scion.  The Scion is marketed to a younger customer.  According to the suit, several salesmen were told flatly they were too old to sell the Scion. One salesman was terminated after he complained about the discrimination. 

The San Antonio office includes a wide geographic area extending into New Mexico.  Only rarely do they file suits here in San Antonio.  I would expect they have good evidence before filing these two lawsuits.  

The EEOC has filed suit against Bass Pro Shops.  The suit claims that Bass Pro discriminates against Hispanic and black applicants.  The suit appears to be built on testimony from various managers and assistant managers.  See San Antonio Express News report.  The lawsuit started with a complaint by a fomer Houston manager who says she was fired when she complained about how black employees and applicants were treated.  

The EEOC eventually found the discrimination to be nation wide.  Jim Sacher, the EEOC Regional Attorney in Houston said managers routinely used racial slurs, told managers not to hire Hispanic and black applicants, and told employees to follow black and Hispanic customers through the store.  The suit alleges that in 2005, the manager at the Houston store told the human resources manager that it was "getting dark in here" and that the store needed to hire more white employees. 

Federal trials have become as rare as hen’s teeth.  In the appeal of a jury verdict in Phillips v. Leggett & Platt, Inc., we see part of the reason why.  A Mississippi jury found that the defendant had discriminated against Jean Phillips on the basis of her age.  Ms. Philips was 66 years old when Leggett & Platt closed a manufacturing facility in one town and told Ms. Phillips she alone could not transfer to a neighboring community.  The accounts payable clerk was thus out of a job after 24 years with the defendant. Within four days, her managers called her back to work saying they would need her for a temporary job at the nearby facility.  The temporary job would would have no end date.  The job included the same pay and benefits and the same job duties.  Ms. Phillips hoped now she would essentially have her old job back. 

A younger woman was allowed to transfer to the nearby facility and she would perform the accounts payable clerk duties formerly performed by Ms. Phillips.  That woman left and another younger woman was hired to fill the position.  Still, Ms. Phillips continued in her temporary position hoping she would be awarded a permanent position.  After six months, her temporary position came to an end.  She then filed a complaint with the EEOC alleging age discrimination.  

At trial, the employee won and was awarded $48,000 in lost pay and benefits.  The employer appealed.  An age complaint must be filed within 180 days of the act of discrimination.   Leggett & Platt argued that the plaintiff should have filed her EEOC complaint within six months of first being notified that she would not have a position at the other plant, not within six months of the end of her temporary position.  The Fifth Circuit agreed with the employer and overturned the jury verdict.  The two judge majority found that equitable tolling did not apply.  That is, the court rejected the employee’s argument that the employer’s actions mis-lead her into postponing any complaint of age bias.  

The dissent points out that the two judge majority ignores Fifth Circuit precedent that whether to apply the doctrine of equitable tolling should be left up to the trial judge’s discretion.  The trial judge is in a much better position to assess credibility issues.  Indeed, as the dissent adds, the facts supporting employer deception are much stronger in this Phillips case than the 1991 case relied on by the court.  Legget & Platt coincedentally, let Ms. Phillips go the second time within days of her 180 day deadline to file an EEOC complaint.  Ms. Phillips was called back to work for an indefinite job just as any at-will employee at the same pay as her old job.  She did not file a complaint earlier because she thought and hoped she now had her old job back. 

The majority opinion finds that the employer’s actions ere not deceptive.  Their actions ere not intended to mis-lead the plaintiff.  The majority’s fact conclusion might be appropriate, says the dissent.  But, it is simply a decision better left to the trier of fact.  "The bite of such inconsistencies – and the cld fact that the indefinite period of the recall lastd just over 180 days – is better entrusted to the better-informed discretion of the district [trial] judge." 

And, that is part of the reason why trials in US district court have become so rare.  As I mentioned here, federal appeal rates heavily favor employers.  Employers succesfully obtain reversal of jury verdicts about 41% of the time they seek such reversals.  While, employees only succeed 9% of the time.  And, among the 11 federal appellate courts, the Fifth Circuit is one of the circuits most likely to overturn a jury verdict.  Federal appeals courts as a whole simply do not respect jury verdicts. 

Potential clients almost always want to know, "Do I have a case?"  Unfortunately, the best I can say is "maybe"  or "it depends."  Until I can hear how the employer defends its actions, I can only "shoot in the dark."  The other side of the story is critical to an employment case.  A recent post by Russ Cawyer at Texas Employment Law Update illustrates this truism.  A worker at Walgreen’s was fired when she ‘stole" a $1.39 bag of chips and consumed them.  

One employment lawyer, Jon Hyman, at Ohio Employer law Blog, described this is a simple case of theft.  But, then fellow San Antonio lawyer, Chris McKinney at Texas Employment Law Blog, said no, the lady needed something to eat.  Her blood sugar was low.  She had the choice of leaving her work station to get food from her locker, which was likely a terminable offense, or going into diabetic shock.  She paid for the chips as soon as she could.  Russ Cawyer points out, without drawing any conclusions that these additional facts shed new light on the so-called "theft."  

The best defense an employer can mount to a charge of discrimination is written discipline.  If an employer can show contemporary, written discipline, they will have a strong defense to any complaint of discrimination.  I spoke with a man once who said he had been written up only 2-3 times – all after he had initially complained about discrimination.  As the case progressed, I learned that he had actually been disciplined six times in writing, two of which were before the complaint of discrimination.  Some of those write-ups were objective, several were subjective.  

Every case has another side.  No lawyer can intelligently assess the possibilities of a case without first developing some understanding of the other side.

So, at least in the Fifth Circuit, sidewalks are now a "service" of the city such that the city must make sidewalks accessible to persons with disabiliuties.  The Fifth Circuit so ruled in the case of Frame v. City of Arlington.  The district court had dismssed the plaintffs’ suit because, said the court, the two year statute of limitations had long since passed from the date the sidewalks had been built.  A three judge panel of the Fifth Circuit overturned the lower court decision, saying that yes, sidewalks are a service of the city.  Both sides then sought an en banc hearing before the entire Fifth Circuit appellate court.  The three judge panel then withdrew its decision and issued a new decision, saying no, sidewalks are not a service of the city.  I discussed that decision here. 

The Court has now rendered a close 8-7 decision, finding that providing sidewalks is a service of the city which must comply with Title II of the Americans with Disabilities Act.  See decision.  The decision is limited to sidewalks built or modified since January 26, 1992, the effective date of the ADA.  The decision specifically notes that the statute of limitations or time period in which the person must complain starts not when the sidewalks was built but when the person first encounters the sidewalk.  So, in effect, the statute of limitation will vary from person to person. Cities will now have much stronger incentive to make sidewalks repairs a higher priority. 

This is a huge issue for all municipalities.  There are miles and miles of sidewalks all across the country that are not accessible to persons in wheel chairs.  I still see too many wheel chair bound folks trying to traverse road shoulders just to get to the grocery store.  The cost is huge, but the danger of doing nothing is also very large. 

A big man has sued White Castle hamburgers in New York because the booth was too small for him and he limped out of the restaurant.  The lawsuit claims he smacked his knee into a metal post on one visit in 2009.  He filed suit under the Americans with Disabilities Act.  See MSNBC story.  "I’m not humongous, but I am a big guy," said the stockbroker.  The 290 pound man says he has no such problems at other fast-food establishments.  He loves White Castle burgers.  Even after the 2009 visit, he asks his wife to purchase the burgers for him.  

Title II of the ADA does require public facilities to accommodate persons with disabilities.  Being overweight is not a disability, but a diagnosis that leads to being overweight might constitute a disability.  

The Fifth Circuit has recognized that a hostile work environment claim can exist under the Age Discrimination in Employment Act.  The Fifth Circuit has never reached such a conclusion before now.  In Dediol v. Best Chevrolet, Inc., the Federal appellate court reversed a grant of summary judgment in favor of the employer.  

The Court found that such a claim would include the following elements: 1) the employee is over the age of 40, 2) the employee was subject to harassment based on age – either through actions or words, 3) the harassment is severe enough that it  creates an objectively intimidating, hostile, or offensive work environment, and 4) the employer is liable in some way.  See decision.  Mr. Dediol was 65 years old while he worked for Best Chevrolet.  Typically, the employer would be liable if it became aware of the harassment and failed to take action or if a supervisor conducted the harassment against the worker. 

In this case, Mr. Dediol showed that his supervisor called him names such as "Old mother f*****," "old man," and "pops" several times everyday for eight weeks.  The manager also made negative comments about the employee’s faith.  Mr. Dediol was a born-again Christian.  The plaintiff eventually quit coming to work. 

Evidence showed that that the supervisor charged at the plaintiff at a staff meeting, threatened to "kick his a**."  He removed his shirt saying, "You don’t know who you’re talking to.  See these scars.  I was shot and in jail"  

Mr. Dediol quit coming to work and was then terminated.  The Fifth Circuit found that this was sufficient evidence to support a claim for constructive discharge.  That is unusual.  The Fifth Circuit rarely sees a situation it considers sufficiently severe to justify an employee resignation. 

A judge has ordered that five employees who voiced complaints on Facebook be reinstated to their jobs and be awarded backpay.  The five employees of Hispanics United of Buffalo complained about the workloads and other conditions of their job.  HUB is a non-profit agency in Buffalo, New York.  Their supervisor then fired them, saying their Facebook posts were harassing a co-worker.  The Director, however, did not fire his secretary who also posted a complaint.  

One of the five filed a complaint with the National Labor Relations Board.  The NLRB enforces the National Labor Relations Act.  The NLRA comntains a provision that prohibits employers from taking action against employees who discuss "terms and conditions" of their job.  Discussing terms and conditions of a job is seen as leading up to forming a union, which is protected activity.  The NLRB judge eventually agreed with the employees.  See NLRB decision.  

There have been many complaints like this one regarding web based complaints.  I discussed some of them here and here.