So, you’re diagnosed with depression.  It will not get better.  You are unemployed for a year and a half.  Your problems mount.  You live in Canada, so you see see gray skies everyday.  Then, your doctor tells you to get away to some sunny climate for a brief time.  You take a trip, take some photos and then you post them on Facebook.  Oh oh.  An insurance company is paying you what are described as sick leave payments.  The insurance company sees those pictures and concludes your depression is over and cuts off your benefits.  That is what happened to one former IBM employee according to Delaware Employment Law Blog.  

The former employee says she is happy in the moment but that before and after she continues to suffer from Depression.  Her lawyer has asked for a new psychiatric evaluation.  Good idea……

 What does it take to show discrimination, if this is not enough?  The best evidence to show discrimination is almost always what we call direct evidence.  The "n" word, for example,  is always good evidence to show racial prejudice.  Using the term "old man" is very good evidence to show age bias.  So, this case where an employer refers to an African-American as "boy" several times over a two year period is very good evidence.  Yet, inexplicably, the 11th Circuit Court of Appeals affirmed the grant of summary judgment.  See Alexander v. Opelika City Schools. 

Summary judgment is where a judge essentially finds that a plaintiff (employee) does not have adequate evidence to justify having a trial.  To say that "boy" is not enough evidence to justify a trial is very hard to believe.  Frankly, many appellate courts apply an unrealistic standard for evidence.  

 Sometimes, management lawyers like to scare potential clients and sometimes, they are simply concerned.  But, either way, they over-state the effect EEOC has.  The EEOC means well, but they simply have too many cases to perform an actual investigation.  Each investigator carries 75-80 cases per investigator.  Their budget was cut way back in the 1980’s and has seen little relief since.  One local San Antonio management lawyer actually suggests business owners should be wary of the EEOC.  ("The EEOC Is On The Hunt. Are You The Prey?")  Is he kidding??

He must understand, as we all do who deal with the EEOC, that the EEOC very rarely finds in favor the employee.  Unfortunately, the EEOC is often a paper tiger.  

I was in federal court once when a federal judge chastised a government lawyer for suggesting that since the EEOC did not find in favor of the employee, there was something wrong with the employee’s case.  The judge fussed at the lawyer and told him the EEOC does little or nothing in almost every case they get.  The EEOC means well.  They really do want to do right by the employee and the employer.  But, unfortunately, they accomplish very little in 99 out of 100 cases. 

 To show same sex harassment, one must show: 1) the alleged harasser made explicit or implicit proposals of sexual activity and that the sexual harasser was homosexual, 2) the harasser was motivated by general hostility toward members of the same sex, or 3) direct, comparative evidence showing different treatment for members of the same sex than for members of the opposite sex.  See:  Love v. Motive Enterprises, LLC.     In Love, the employee alleged several acts of discrimination by a female supervisor: the female supervisor would rub her breasts against Ms. Love many times; the female supervisor locked Ms. Love in the bathroom and said she would not unlock it until Ms. Love was "nice" to her; the supervisor rubbed her groin against Ms. Love’s leg; and more.  But, the Fifth Circuit found that Ms. Love had not presented evidence that the female supervisor was homosexual.  

Actually, Ms. Love did present such evidence.  But, she provided recollections of the supervisor’s homosexual acts after she had been deposed.  She provided an affidavit recalling homosexual acts by the supervisor.  But, this was after she had already testified in her deposition that she could not recall homosexual activity by the female supervisor.  

To some people, this late, new evidence would seem to still be evidence.  But, the to the Fifth Circuit, that is late evidence.  In the minds of some judges on the Fifth Circuit, if such evidence comes late, then it is suspect.  That is because some Fifth Circuit judges try to ascertain the facts or the truth behind allegations.  But, this matter was before the Fifth Circuit on appeal from a grant of summary judgment.  So, the judges should not have been weighing the evidence. 

Summary (or quick)  judgment occurs when the court essentially kicks a case out of court saying they have no case.  But, here, Ms. love does have a case.  She remembered a key fact late, but she recalled it all the same.  She ought ot have her day in court.  The fact that she remembered something after her deposition would be a good question for cross-examination.  But, it really is not enough reason to grant summary judgment.  

That is why Judge Dennis concurred in part and dissented in part.  He agreed with some things but disagreed with the part of the main decision which was weighing evidence.  When considering summary judgment, judges should not weigh evidence.  They should, instead, be giving the the employee the benefit of the doubt regarding all evidence.  

I have to say, I really am appalled at the many conclusions of fact the court reached in this decision.  They should not be resolving factual issues at all when deciding on summary judgment.  The court should give the employee the benefit of the doubt regarding all factual issues and then determine if she has a case.  

 Is San Antonio far behind?  Ft. Worth passed a broad anti-homosexual discrimination ordnance.  The ordnance applies to transgender folks, as well as to gay or lesbian persons.  This ordnance only applies to the city of Ft. Worth.  This ordnance was passed in response to an incident at a gay bar where the police allegedly harassed some gay men.  So, it is not likely that other Texas cities will follow suit.  

 The Genetic Information Nondiscrimination Act (GINA) takes effect  Nov. 21.   GINA prohibits discrimination based on genetic information.  Among its provisions, it will prohibit insurance companies and employers from requesting family medical history from employees except for a few circcumstances.  It will prohibit insurance companies from using family history information to set premiums or deny coverage. 

 Cathy McBroom is headed back to Galveston with a promotion.  See Texas Lawyer story.  Ms. McBroom was one of the ladies complaining about Sam Kent’s sexual  harassment.  Judge Kent later accepted a plea bargain and is doing 33 months in a federal penitentiary.  Ms. McBroom had been Judge Kent’s Case Manager.  She was transferred to the Houston Division in 2007 when she made her complaints.  That is, she was transferred to Houston to work for other federal judges.  She will now go back to Galveston as deputy clerk in charge of the Galveston Division where she will serve as Case Manager for another federal judge. 

If only all sexual harassment complaints could turn out so well……