Clients and potential clients sometimes ask me about possible conflicts of interest.  For purposes of a lawsuit, a conflict of interest occurs when someone has a financial conflict of interest.  That "someone" is usually the lawyer for one side or the other.  For example, if I own partial interest in a company but then represent someone in a lawsuit against that company, I would have a clear conflict of interest.  That is, I would have a financial interest in the lawsuit losing. 

Something similar applies to members of the Texas legislature.  State legislators are prohibited by the Texas Constitution from voting on statutes in which they have a financial interest.  Gary Elkins, R-Houston, does not understand conflicts of interest.  Mr. Elkins owns a payday lending business with twelve locations.  When a proposed blll came before the state legislature, he spoke against it.  When he was asked if he had a financial inerest in the bill, he replied that he knows a lot about the business – apparently suggesting that his opinion had some value regardless of his financial interest.  See San Antonio Express News report.  

But, that is the point of conflict of interests: your opinion has little value because it is tainted by finances.  His interest is clear, so we cannot take anything he says at face value.  Just as if a lawyer represents a plaintiff against a company in which the lawyer is a partial owner: whatever the lawyer does will be tainted by his partial ownership interest. 

Mr. Elkins has brought disrepute upon the state legislature.  Eventually the bill failed.  It would have imposed modest requirements on the payday loan business.  I just hope the other legislators understood that Mr. Elkins was either disingenuous or has no understanding of what a conflict of interest is. 

 The Texas legislature sent a bill to the governor for his signature that would allow employees to take guns to work.  The bill allows workers to keep any guns they are legally allowed to possess in their vehicles at work.  The bill’s sponsor, Rep. Tim Kleinschmidt, R-Lexington, said many companies do not understand the sporting culture in Texas that leads many Texans to leave guns in their car.  The bill extends immunity to employers regarding any guns brought by an employee. 

 Title VII of the Civil Rights act of 1964 prohibits discrimination based on sex, color, religion, and national (ethnic) origin.   Other statutes prohibit discrimination based on age and disability.  For Title VII to apply to your company, you must have 15 or more employees.  For the Age Discrimination in Employment Act to apply, you must have 20 or more employees.  Think about that.  Thousands of employers are not covered by Title VII or the other discrimination statutes.  

The intent was to avoid placing too great a burden on smaller employers, the "mom and pop" businesses out there who employ a huge percentage of workers.  I am sure this employee limitation was intended as early tort reform.  But, it also means some employers can discriminate based on factors most of us would not support. 

If Title VII does not apply, then the "Reconstruction statutes," laws passed during Reconstruction in the 1870’s, might apply.  42 USC Sec. 1981 and 1983 apply regardless of the number of employees. These statutes protect racial and ethnic minorities from discrimination in the formation of contracts. Employment can be a type of contract.  If you have a question, you should discuss your situation with an employment lawyer. 

 Facebook has become such a part of the daily lives for many of us that we post without much thought.  Perhaps, that is why one Guadalupe County (near San Antonio) prosecutor violated a court order.  Assistant District Attorney Larry Bloomquist posted an update on a manslaughter trial he was prosecuting.  Mr. Bloomquist had posted an update on Facebook when the trial first started.  The presiding judge then warned both parties against anymore Facebook updates.  See San Antonio Express News report.  

But, when the jury returned a verdict against the defendants, Prosecutor Bloomquist posted the jury result.  "Happy ending," he added.  District Judge Gary Steel was not happy. He found Mr, Bloomquist in contempt and fined the prosecutor $400. 

 An Eastern District of Texas recently addressed the effect of the ADA amendments Act.  In Norton v. Assisted Living Concepts, Inc., an employee suffered from cancer.  He returned to work and was fired within a month of his return.  The cancer was in remission.  Under the old Americans with Disabilities Act, he would have to show that he had a disability.  To show he had a disability, he would have to establish that the cancer while in remission affected a daily function of living.  This is known as a "major life activity."  Showing that an illness affects a major life activity while in remission would be a high burden for the plaintiff.  

The employer moved for partial summary judgment arguing the employee did not have a disability.  The court rejected that argument.  The judge found that cell growth was affected and under the ADAA, that was enough to show a disability.  The court expanded the former "major life activity" to include "major bodily functions."  The court ruled that "substantially limits" a major life activity should be interpreted as broadly as possible. 

The court not only rejected the employer’s motion, but it granted partial summary judgment to the plaintiff on this issue under the new Fed.R.Civ.Pro. Rule 56(f)(1).  

This ruling brings the ADAA comes more closely to the original intent of the ADA.  This decision is reported at:  2011 WL 1832952 (E.D.Tex. 5/13/2011).   

You would think people would know better, by now.  St. Phillip’s College, a junior college, part of the Alamo Community College District system, is investigating an administrator at St. Phillip’s for sending hundreds of bawdy emails.  See San Antonio Express News report.  Warren Parker, an instructor at St. Phillip’s, filed a complaint with the EEOC about allegedly hundreds of emails sent him by Program Director Donna Laird.  Mr. Parker claims that Ms. Laird cc’ed so many people, including her own supervisors, that he presumed these emails were the norm.  He failed to complain until he was recently turned down for tenure.  Mr. parker claims these emails evidence sexual harassment. 

The Complainant says Ms. Laird has been forwarding these emails to him since he started working at St. Phillip’s in 2005.  He retained some 100 of these mails, but claims there have been 400 or more.  The emails include scantily clad vaginas, pictures mocking young blacks dressed up for prom as "ghetto," a woman simulating oral sex on the stick shift of a car, and more.  

For those of you who do not know, you should not forward such emails.  Racy emails contribute nothing to your work and could place you in a position similar to that which Ms. Laird now finds herself.  Not surprisingly, the Express News reporter tried to contact other recipients of the email and could find no one willing to speak to her.  

The day after the Express News published this initial report, St. Phillip’s College fired Warren Parker. See San Antonio Express News report.  The letter firing Mr. Parker was apparently mailed before the news report was published.  St. Phillips better have a good reason for the termination.  Anytime an employer fires an employee after they have filed an EEOC charge, the employer needs to have a very good reason.  Without a good reason, the termination will look like retaliation for EEO activity.  

St. Phillip’s claims it fired Mr. Parker because he used a sick day to take care of his side-busines, providing education for radiography users.  But, St. Phillip’s will need to show that it has fired other employees with similar transgressions.  

About a month ago, a lawyer in Washington DC represented a man charged with a felony. Apparently, the lawyer ran into some problems.  The judge berated him for being inexperienced and unprepared for the case.  A private investigator claimed that the lawyer told him to trick a witness into testifying that she did not see the defendant at the murder scene.  The judge declared a mistrial. The incident became the subject of a Washington Post story.  The story ran in the ABA Bar Journal. Several legal blogs discussed it.  

Well, now that lawyer, Joseph Rakofsky, has sued everyone involved.  He has filed suit in New York Superior court against the Washington Post, the ABA Bar Journal and dozens of lawyers who dared to discuss his case in public.  See Petition here.  Mr. Rakofsky was a 2009 graduate of Touro Law School.  Perhaps, some law school snobbery was at play here.  In any event, he was much criticized in the blogosphere.  He sued persons such as J-Dog84@yahoo.com, Accident Lawyer, Thomson Reuters, the large legal publishing firm, Tarrant84, the University of St. Thomas Law School, and other more traditional defendants.  He sued some 74 defendants, all apparently because they criticized him and, as he alleged, repeated mis-statements about his felony case.  These defendants reside and work in many different states and the District of Columbia.   The petition is some 70 pages long with few details regarding the alleged defamation by the 74 defendants.  The petition mostly contains ample detail explaining why he did what he did during the trial. 

Blogging is still a new creature.  Many still confuse a blog with a news source.  We do not report news.  We comment on the news.  My comment regarding this suit is he must have a large budget for effecting service on Defendants…..

A San Antonio whistle blower has settled her claim against JP Morgan Chase Bank.  Linda Almonte, who had been a Team Leader in the local office reported wrongdoing to higher-ups and was subsequently fired.  See San Antonio Express News report.  She was fired Nov. 30, 2009 after she made her report.  A year later, she filed a whistle blower complaint with the Securities Exchange Commission.  She had accused Chase of fraud and gross neglect in the packaging and selling of delinquent credit card accounts.  She found that the information used to process the claims and start collection efforts was not accurate.  Affidavits are required to be based on personal knowledge and these affidavits were not.  She found that she could not verify the amounts owed or verify some of the judgments. 

The Express News report says whistle blowers can gain up to 30% of any government recovery.  

As with many whistle blowers and others who file suit against an employer, she lost her home here in San Antonio.  She and her family had to move to Florida to stay with friends.  She still has not found employment and is performing volunteer work.  She has been interviewed by 60 Minutes – that segment has not yet appeared on the television.  She has been interviewed by other news outlets.  

The Express News report says her lawsuit was settled.  The suit was based on Ms. Almonte being asked to commit an illegal act – that suit sounds like a Sabine Pilot lawsuit.  But, recovering 30% if the government recovers some money suggests a qui tam lawsuit.  So, Ms. Almonte may have more than one claim on file.  

Job Accommodation Network, a government (DOL) sponsored website, is an excellent place to start assessing what accommodations an employee may need to perform his/her job.  The website breaks down the possible accommodations by each particular diagnosis.  It provides a separate web page for employers to review what their requirements may be regarding certain diagnoses.  

For some diagnoses, the appropriate accommodation cane be obvious.  Someone using a cane will have a clear need for stair handrails.  But, what about someone suffering from stress?  Or a worker suffering from bipolar disorder or sleep disorders?  JAN can help with all these diagnoses.  Any good accommodation will be based on medical opinion, but JAN may help the worker and the employer understand what questions to ask. 

Discrimination lawsuits, like many lawsuits, rely heavily on discovery.  Discovery is the process by which we seek the other sides’ evidence.  In employment cases, the discovery process takes on added importance because the employer has most of the key evidence.  The employer, for example, posses personnel records regarding other employee who were terminated for similar offenses, regarding personnel policies, and so on.  So, adequate discovery is critical to any employment lawsuit.  

A Houston lawyer failed to cooperate regarding discovery recently and eventually, his client’s case was dismissed.  See Worrell v. Houston Can! Academy, No. 10-20102 (5th Cir. 5/5/2011).  See opinion.  The plaintiff’s lawyer in a discrimination case completely failed to provide initial disclosures.  Melvin Houston also failed to respond to written discovery requests.  The lawyer then failed to respond to the motion to compel filed by the defense lawyer.  

When the lawyer did finally respond to the discovery, he did not respond adequately.  For example, in listing names of potential witnesses, we must provide address and phone numbers, if we have them.  But, Mr. Houston simply listed the address and the phone number of the defense lawyer for each witness, even though most of the witnesses no longer worked for the employer.  Thus, he included the defense lawyer’s phone and address for each witness – apparently because Mr. Houston presumed the defense lawyer controlled each witness.  But, these witnesses no longer worked for the employer.  

Mr. Houston also failed to provide a calculation for the damages he was claiming.  

The defense charged the plaintiff with numerous other omissions, but those are the omissions cited by the district court and later relied on by the Fifth Circuit.  The appellate court would note dryly on appeal that the witnesses did not reside at the defense lawyer’s office. 

The plaintiff lawyer defended his tardiness in responding at all on the grounds that Hurricane Ike had cut off his power for some period of time.  But, the defense lawyer produced an email he received from Mr. Houston fore that time period – suggesting he had power much sooner than he claimed.  

The court provided ample opportunity for the plaintiff to get her act together.  The court stayed the proceedings at one point for 60 days after a show cause hearing.  The court required the plaintiff to amend her responses within the 60 days.  When the plaintiff still did not comply with the Court’s orders, it dismissed the case.  Dismissal is the "death penalty" of sanctions.  The Court noted the response to Interrogatories still lacked contact information for the listed witnesses and lacked calculation for her claimed damages.  The court also noted the Plaintiff’s lack of a response regarding the plaintiff’s emotional suffering and Plaintiff’s failure to state whether her leaving her other employers was voluntary or not.  And, her amended response to the request for production was actually submitted one day after the 60 day deadline.  The plaintiff also failed to explain why she waited one month to ask that the case be re-opened.  

And, of course, even before getting to the "death penalty," the Court had ordered the plaintiff to pay the defendant’s expenses in filing motions to compel a couple of times.  So, yes, the Court used a progressive system, giving the plaintiff opportunity to correct her deficiencies.  Ultimately, the plaintiff simply did not respond.

As I have explained to clients many times, the real battle is often about discovery.  It is very important to craft discovery responses as part of an overall strategy.  It is not enough to simply respond to discovery.  One must respond in a way that displays confidence in your case. and in a way that displays no weakness.  The lawyer must work very closely with the client to ensure the very best responses are made.  The lawyer cannot win without the client and the client certainly needs the lawyer.    

Many of the above errors sound like they are lawyer driven, but we will never know the full story.  No one, no one should ever have their case dismissed due to inadequate discovery responses.