A podiatrist from the Hondo, Texas area tried to cancel his own hearing in US District Court.  See San Antonio Express News report.  Donald E. Robinson faxed papers to the federal courthouse announcing that his hearing had been canceled and naming himself as a surety for a $300 million bond, I presume to guarantee his appearance in court.  (So that’s how you get federal hearings   canceled…..)

Dr. Robinson explained to the Express News that he had tried to work things out with the federal prosecutors, but they would not return his phone calls.  He had asked them about reaching a settlement of his case.  He hoped that the papers he faxed would help resolve things.  He was indicted in August for failing to pay his US taxes.  He says he relied on advice from an accountant.  He did not attend his hearing because he thought he was working things out with the prosecutor. 

It sounds like this time, he is not relying on the advice of a lawyer.  I do not practice criminal law, but I do not think that filing false documents will help his case.  

 

The EEOC has held public hearings on an employer’s use of credit reports as a tool with which to screen applicants.  Jon Hyman at Ohio Employment Blog discussed one such hearing.  See Jon’s blog post.  Employers say credit histories help them screen clients and protect against fraud. Employees, especially in this economy, are concerned that poor credti history may unfairly keep them from a job.  The representative from the US Chamber of Commrece says employers take individual situations into account and do not abuse the practice.   

According to one credit agency, Experian, employers never see credit scores, just the histories.  See Jon’s post for more info. 

 

Many discrimination cases are focused on whether the employer’s supposed reasons for termination are sincere.  Few employers explain that they have fired so-and-so because of the employee’s race, color or whatever.  So, very often, cases are all about whether the employer’s articulated reasons for a firing or demotion are sincere.  And, caselaw or precedent holds that evidence of the employer’s false reasons support a finding of discrimination. 

So, what is the employer’s reason?  Must the employer’s reason include ample detail?  Not according to a recent Fifth Circuit decision.  In Jackson v. Watkins, et al, the federal Fifth Circuit found that conclusory reasons are enough.  As Mike Maslanka at Work Matters blog points out, that is surprising.  See Work Matters blog post.   Since, as happened in the Jackson case, an employer can offer very little which the employee cannot rebut.  In Jackson, a long time prosecutor for the Dallas County DA’s office was fired.  The new District Attorney said nothing more than that he had had "negative" experiences with the prosecutor.  No examples.  No incidents.  That was it.  And, Mr. Jackson did not offer any rebuttal to this reason.  Mr. Jackson’s lawyer simply argued that they did not have to present evidence rebutting that reason because it was so general.  The employee relied on evidence that Mr. Watkins fired four white top prosecutors and replaced them all with black prosecutors.  As the court suggested, statistical evidence is rarely persuasive and is not helpful without better analysis.  

Too, Plaintiff Jackson relied on his good job evaluations and good work record over the years.  But, as the court explained, none of this responds to the DA’s claim to have had personal negative interactions with the employee. 

It is difficult for any employee to rebut that sort of statement.  But, the Fifth Circuit said that is good enough to amount to a legitimate non-discriminatory reason.  Therefore, the employee must rebut that, or the employee will lose.  As Mike points out, an employee who offers a conclusory basis for a claim of discrimination will get his claim tossed out of court.  But, the employer who does the same will win – at least according to this decision. 

But, employer do have incentive for providing detailed explanations in more frequent situations.  Discrimination lawsuits are pretty rare.  But, claims for unemployment are common.  An employer will not win a claim for unemployment benefits with conclusory statements about any personnel action.  Indeed, many TWC hearing officers will expect to hear about how the employer notified the employee s/he had a problem and how the employer gave the employee time to improve.  

So, from the employer’s perspective, its darned if you do, darned if you don’t…..

There is computer software which allows a person to record key strokes made on a computer.  A parent or an employer can use it to see where someone is going on the internet.  Richard Renner at Whistleblower Protection Blog describes one way to find out if your employer is using ley logging software.  Update your motor vehicle registration.  One employee updated his motor vehicle registration.  He then received a letter from the United States Computer Emergency Readiness Team (US-CERT).   Apparently, US-CERT monitors the use of keystroke logging software.  So, they will notify you if they observe the use of such software. 

But, as Richard mentions, the best practice is not to use office computer equipment for sensitive information.  Employers have a legal right to much information transmistted over company owned servers and hardware. See Whistleblower Protection Blog post.  

 Molly Dibianca at Delaware Employment Blog describes a person she knows who was passed over for promotion at a large company in the private sector.  The difficult thing for the friend was that the manager who apparently tried to get her the promotion broke the news to her quickly with no elaboration.  See Delaware Employment Law Blog blog post.  The manager felt terrible about the news.  He thought the friend had been done wrong in not getting the promotion.  

In the end what bothered the friend the most was that she felt unappreciated.  Molly is trying to make the point that a well placed compliment can mean so much to an employee.  In the Army, we were trained to appreciate our subordinates and to let them know they were appreciated.  We received leadership training at several key junctures in our career.  We practiced various counseling sessions regarding subpar performance.  Where was this manager’s training?  Did no one tell him the value of a compliment?  

I have questioned and reviewed documents regarding many companies.  Manager training is not universal.  Many managers conduct counseling sessions exactly the opposite of how it ought to be done.  In one of my own prior jobs, managers received no training.  So, it is not surprising that manager turnover was very high.  

The costs of poor training roll down hill.  Employees who should grow into senior management become, instead discouraged employees and sometimes leave.  And, over time, as other things go wrong, discouraged employees often become plaintiffs in a lawsuit.  So, what is the value of a compliment?  What is the value of a proper counseling session?

Some of our best and brightest join the military.  Some of the best of the best are lost to the war.  SGT Cesar Ruiz was one such Marine.  He joined, did his four years and got out.  He left the Marines because his wife, Kimberly, wanted him to avoid another tour in the two wars.  See San Antonio Express News report.  He went from active duty to the Individual Ready Reserve.  The IRR is subject to call-ups.  In 2008, Cesar Ruiz was called up.  Kimberly was not happy.  Soon afterward, he received a second letter providing him the opportunity to avoid this call-up.  

This second letter was the answer to her prayers, says Kimberly.  She was thrilled.  Until she saw Cesar’s face when he read it.  She saw in his face his desire to go and serve his country.  He would say later that he wanted to go so his young son would not have to go.  

She could not hold him back.  He went, a Combat Engineer.  He was killed in Afghanistan within a month.  Now, Kimberly will jog in the Marine Corps marathon in Washington, D.C.  Not an athlete at all, she perseveres because, as she says, no matter how bad it will be it will not be as bad as the pain SGT Ruiz felt. 

Military service is not for everyone.  It is for those who will not stand by while others do nothing.  A hero is really nothing more than someone who does something because others do nothing. 

 A Detroit law firm requires secretaries to wear heels.  Until just a few years ago, they used teacups and saucers for coffee.  This is a traditional law firm.  One woman injured herself wearing heels.  Her heel caught on the carpet.  She hurt her back.  She had to take medical four times as part of her treatement. So, her employer, Honigman, Schwatrz, and Cohn refused to let her come back to work after her fourth medical leave.  See ABA Journal report.  They fired her. 

Denise Fitzhenry injured her back.  Now, she has sued for violations of the Americans with Disabilities act and the Family Medical Leave Act.  99% of the secretaries at Honigman are female.  She also alleges a hostile and degrading work environment for secretaries.  Her lawyer, Deborah Gordon, describes the law firm as very traditional.  They are like the "Mad Men," the television show, the lawyer explains.  Yes, I am sure…..

Facebook has many uses.  Now, it has helped solve a crime.  A San Antonio child wrote on her mother’s Facebook wall that she had been molested.  See San Antonio Express News report.  The message alleged that a man had touched her under her clothes twice in August.  The mother confronted the man.  He then attacked the mother and the child.  Police were called.  The man was arrested.  But for the message on the Facebook wall, the police might never have learned of the sexual assault.  The man has been charged with sexual assault of a child. 

Jorge Pena, an assistant professor at University of Texas at San Antonio in communications, explains that the girls’ outcry should not be unexpected.  Most people "friend" people they know, leading to the creation of a tightly knit community online.  

San Antonio police have already had some success with Facebook.  They captured a criminal suspect on their Top Ten list when a Facebook wall posting suggested that he would appear at a particular night club for his birthday.   Eric Dishong was wanted for suspicion of theft, theft of a firearm and burglary of a vehicle.  Now, he sits in a San Antonio jail. 

Texas Supreme Court does the right thing, for a change.  A provision in the Texas Civil Practice and Remedies Code contains a retroactive prohibition against asbestos lawsuits in regard to one particular company.  Retroactive prohibitions of any kind are very rare.  This provision was passed as part of several tort reform amendments in 2003.  See Texas Civ.Pra. & Rem. Code Sec. 149.  It is even more rare for a provision to ever say as Sec. 149 says, "The limitations in Section 149.003 shall apply to a domestic corporation or a foreign corporation that has had a certificate of authority to transact business in this state or has done business in this state and that is a successor which became a successor prior to May 13, 1968. . . "

It does read like a statute designed to protect one particular company.  The Texas Supreme Court appears to agree.  See Texas Lawyer report.  The court found this provision unconstitutional (ie, the Texas Constitution).  Retroactive provisions are scrutinized more closely than normal statutes.  A typical statute would limit or prohibit something in the future, not the past.   A retroactive application is seen as depriving someone of a particular right of some sort.  The court found that Sec. 149 does not satisfy the requirements of a retroactive law.  

This issue matters to Barbara Robinson.  A normal or prospective statute would have had no effect on Barbara Robinson’s lawsuit.  Her lawsuit was already filed when the tort reforms were passed in 2003.  Only a retroactive statute could affect her lawsuit. 

Barbara and John Robinson sued a company, Crown Cork in 2002.  Crown Cork fit the definition in Sec. 149.  Sec. 149 protected Crown Cork.  John Robinson was exposed to asbestos with the Navy from 1956 to 1976.  The predecessor corporation to Crown Cork manufactured the asbestos to which John had been exposed.  Sec. 149 passed into effect on June 11, 2003.  Crown Cork promptly moved for summary judgment .  John Robinson died days later.   His widow, Barbara, appealed and lost at the Houston Court of Appeals.  Now, the Texas Supreme Court, years later, has overturned the Houston Court of Appeals. 

Sec. 149 was passed while the Robinson suit was pending.  It is likely that whoever sponsored Sec. 149 amendment knew its effect.  Former Chief Justice Tom Phillips represents Crown Cork.  The company is well-connected on several levels.  

The City of San Antonio settled a case filed by Capt. Rosemary Flammia alleging sex discrimination. See San Antonio Express News report.  I mentioned this case last week.  See prior post.  Capt. Flammia, a female officer, sued the City when she was demoted in 2007 from the post of Deputy Chief of Police.  The settlement will include reinstatement to the Deputy Chief position for one day before retiring and payment of $249,000.  

She had been Deputy Chief for seven years when she was demoted.  One has to wonder what the new Chief was thinking when he demoted someone with no better reason than he wanted to.  If he did not speak with Human Resources for that sort of decision, then he did not do his job.  He was also involved somehow in another sex discrimination case from another city.  

She would have been paid $124,000 as Deputy Chief instead of the $93,000 she received as captain.  So, it appears she got her lost pay and more in her settlement.  That is a good settlement for her.  The City continues to deny liability.  But, no one pays that much money if they believe they have a viable defense.