Rosemary Flammia rose to Deputy Police Chief.  Then, a new Police Chief, William McManus, arrived and he demoted her down to Captain in 2007.  Capt. Flammia was the highest ranked female, I am sure, in San Antonio history.  She was also passed over for two promotions to Assistant Police Chief. Why was she demoted?  According to a recent San Antonio Express News article, the City’s attorney said in 2007 the Chief could pick whoever he pleased for his staff.  See Express News story.  So, Capt. Flammia sued for sex discrimination. 

I am sure the Chief can indeed pick whoever he wishes for his staff.  But, he cannot do so if motivated by discriminatory bias.  I presume that if he had a non-discriminatory reason in 2007, he would have provided it.  If the best reason they can articulate is "cause he wanted to," then the City should settle this case.   

 A Marine from San Antonio was killed in Afghanistan.  CPL Jorge Villareal was killed while on foot patrol in Helmand Province.  He graduated in 2006 from Kennedy High School.   See San Antonio Express News report.  CPL Villareal was part of a close knit group of friends who grew up together.  He served as class Treasurer and was a member of the National Honor Society at Kennedy High.  

I talked about the school issued missing computers last May.  See blog post.  The Philadelphia school district then activated the webcams on the laptops in the hopes of finding them.  But, as it turns out, most were not stolen, at all.  So, the district inadvertently downloaded thousands of pictures of various families in their homes.  It was a huge invasion of privacy.  

Well, now the district has settled one case for $610,000.  See Chicago Tribune story.  The tracking program was accidentally left on months after the laptops were located.  Some 56,000 unnecessary images were taken by the district.  The student who settled his case, Blake Robbins, then 15 years old, said he never reported the laptop was stolen and did not understand why the tracking program was activated.  The webcam system took some 400 pictures of him over a two week period.  

Blake received $175,000 to be placed in a trust for him.  The lawyer received $425,000.  The article does not explain, but I assume that was the lawyer’s attorney’s fees.  Most civil rights statutes contain an attorney’s fees provision. 

The district no longer uses the web tracking program.  With this case, we start getting some idea of the limits on computer technology and privacy concerns. 

In employment law, former employees frequently must represent themselves in court.  There simply are not enough lawyers for employees to meet the demand.  And, of course, many former employees by definition lack income and resources.  In one recent case, a former salesman for Wyndham Vacation Resorts, Inc. lost his lawyer but persisted and won.  See San Antonio Express News report.  

James F. Faucett was fired from Wyndham in 2008.  He started a website called mywyndhamlawsuit.com where he posted a Wyndham manual which revealed that salespersons were taught to essentially lie about the benefits Wyndham would provide regarding the sale of timeshares across the country.  Wyndham is the largest seller of timeshares in the country.  After leaving Wyndham, he started a business called Advocates Against Timeshare Fraud, in which he helped customers avoid contracts to purchase timeshares.  Wyndham then sued him in 2009 to stop him from using his documents.  The former sales rep obtained some documents from the trash bin before he left Wyndham.  In January, 2010, Wyndham obtained a temporary restraining order (TRO) prohibiting Mr. Faucett from using the documents. TRO’s by nature are based on quick evidence, often within just a few weeks of filing suit. TRO’s are intended to be temporary until the parties can have a more complete hearing later. 

But, as many former employees must, he filed for bankruptcy.  Wyndham’s state court lawsuit then was removed to federal bankruptcy court.   So, the employer’s lawsuit was essentially transferred to federal bankruptcy court.  Wyndham then moved to permanently seal the employee manual and other documents.  Customers, to whom Mr. Faucett had provided the documents, intervened to make their own arguments in support of using the "smoking gun" manual.  

This time, representing himself, Mr. Faucett won.  Judge Leif Clark, the federal bankruptcy judge, found that Wyndham had not explained how Mr. Faucett’s use of the documents could cause harm to Wyndham.  The former employer failed to explain how its competitors could use the information in the documents against Wyndham.  So, the court denied Wyndham’s motion to seal the documents.  

The judge opined that Wyndham’s "real interest in seeking to have this document filed under seal seems to be to keep it out of the hands of Wyndham’s customers."   In fact, the court noted that the Wyndham representative who testified said they would prefer this information not be provided to customers who could use the information against Wyndham.  

Pro se plaintiffs do sometimes win.  Mr. Faucett had help from customers who joined the bankruptcy proceeding apparently on this one issue.  But, still, defeating Wyndham’s team of lawyers is no small feat.  

 Well, sanctions were dismissed against Judge Sharon Keller, after all.  See San Antonio Express News story.  A special panel appointed by the Texas Supreme Court agreed with Judge Keller’s lawyer that the Judicial Commission could only issue a censure, recommendation for removal or dismissal of the case.  No public warning was possible, said the special panel.  So, the public warning issued by the Judicial Commission was null and void.  

Go figure.  I predicted different results.  See prior post.  One would think that a panel empowered to recommend removal would have the implied power to issue a public warning, a step short of censure or removal.  But, the panel disagreed.  . 

Judge Keller will go forward with a cloud over her head, unfortunately.  She will always be known as the judge who performed imperfectly one time.  The standard for Judges and lawyers is no mistakes. We do err on occasion.  Most mistakes are "fixable" in some way.  Refusing a late filed motion for a man’s execution is not. 

We now know that many people are found guilty who were actually innocent.  DNA evidence has overturned too many supposed murder and rape convictions in the past 20 years.  One can only hope that the inmate Judge Keller allowed to be executed was not such a person. 

 

In a recent lawsuit, three former teachers claim their First Amendment rights were violated after they told a KENS 5 reporter that their principal kept some sex toys in her office.  See San Antonio Express News report.    The three teachers formerly taught at Gabriel Tafollla charter school in Uvalde.  They had complained to a reporter that a teacher who sold the sex toys was not renewed for the following school year, while the principal with some of the sex toys in her office was promoted.  The three teachers supposedly made their complaints anonymously.  See KENS 5 news story.  But, they were subsequently fired, suggesiting the school learned their identities.  

First Amendment rights apply to governmental employers.  So, I have to assume the lawyer, Ed Pina, can show that the charter school is a governmental entity.  Otherwise, this sort of suit is exactly what the First Amendment is intended to protect: discourse about issues of public concern.  Some members of the community would possibly be concerned that a principal has sex toys at school or that a charter school is terminating some employees for selling sex toys, while promoting others involved with sex toys. 

 Michael Fox (not the actor) writes a nice blog on employment law from the employer’s perspective at: http://employerslawyer.blogspot.com/.  He wrote recently about a jury result in Madison, Wisconsin.  A jury awarded $2 million to a teacher who sought the simple accommodation of a class room with a window.  Otherwise, she was subject to crying spells, fatigue, anxiety, hypervigilance and a host of other emotional maladies.  See post.  All this for a first grade teacher. 

Mike’s point is that we should beware of cases reported in the newspaper.  He suggests this report that all the teacher needed was a room with a window may have more to it than that.  I am sure he is right about that.  Not because reporters lack ability, but more because it is difficult to report on an unfamiliar area.  Many movies get all aspects of a trial wrong.  The same would follow with news reports.  I have noticed this with my other career, the US Army.  I have heard reporters describe 100 soldiers as "brigade" sized (no way), Bradley Fighting Vehicles referred to as tanks (not even close), and platoon leaders referred to as commanders (not really).  

The newspaper report and Mike are right about one thing, the jury was upset when they awarded $2 million to the teacher.  They had to believe the school district wasted their time with a weak case in order to award that much money.  The award will be reduced by a big chunk – the Americans with Disabilities Act is subject to caps on damage awards.  The highest cap for emotional suffering type damages is $300,000.  The newspaper reports that the teacher, Renae Ekstrand, suffered from seasonal affective disorder, a form of depression.  See Leagle report.  The employer initially won on summary judgment.  The summary judgment in favor of the employer was overturned on appeal in 2009.  In 2010, the trial resulted with this $2 million award. 

Ms. Ekstrand suffered a nervous breakdown after having to teach in a windowless room.  There was apparently an empty classroom available with a window. 

The point of the newspaper story is that everything could have been avoided if the school had offered her a room with a window.  One room was apparently available with no effort.  

In most private sector jobs, if you were suspended 17 times by your employer, you would be out of a job.  But, Officer Lee Rakun is still appealing his latest suspension from the San Antonio Police Department.  See San Antonio Express-News story.  In fact, Officer Rakun received his first suspension within a year of starting with the police force.  The SAPD has an active union and a strong Collective Bargaining Agreement (CBA).  So, that helps explain Officer Rakun’s tenacity.

The advantage of CBA’s is that they typically require some form of "good cause" for termination.  An employee can only be fired for good cause.  Without a CBA, the rest of us are subject to Texas’ "at will" employment.  "At will" employment means the employer can terminate anyone for any reason (other than discrimination and a few other exceptions).  The employee handbook so many of us have at our jobs say an employee will be fired for certain infractions.  But, employee handbooks are not binding and they are often violated by the employer. 

So, the next time you are fired for "excessive absences" or because after 14 years of no errors, you are accused of failing to account for one $15 expense, think about unions and Officer Rakun’s appeal of his 17th suspension.  

 A man in Dallas has worked at Jack in the Box for 32 years.  Robert Williams worked his way up to Area Coach, just a few steps below President and Chief Operating Officer.  Burt, he was not rewarded for his loyalty.  Instead, at meetings, a supervisor would ask if it was time for Mr. Williams’ "nap"  and would refer to Mr. Williams as "old man."  He was fired, due to his age, he claims.  See report about Williams v. Jack in the Box.  

Yes, those remarks are classic examples of evidence showing age bias. 

Scroll down to a July 23, 2010 entry and you will see a blog post by Michael Fox, the employer’s lawyer, about a whistle blower case in Maine.  See post.  A supervisor complained about several unsafe situations regarding the men he supervised.  They worked in a warehouse with wooden pallets. The supervisor eventually lost his job after his complaints.  The whistle blower complained about a lack of ventilation, and about the change from leather gloves to cotton gloves.  Leather gloves are more resistant to splinters, as any backyard gardener knows.  The employees who spent their days repairing pallets were getting many more splinters than they had before the switch.  

A Maine jury agreed with the employee and awarded $1.15 million in damages.  No doubt, the employer now sees the value in leather gloves, after all. 

Fifty years ago, these leather gloves would have been the subject of a union grievance.  With the decrease of union membership, there are more whistle blower actions than ever.  Texas does not have an equivalent to the Maine whistle blower statute.  We do not even have a private sector employment whistle blower statute.  But, I bet we have some employers who switch from leather work gloves to cotton gloves.