Ken Paxton fired five of his senior assistants in 2020. Four of those five then filed suit alleging whistle blowing. I wrote then that it appeared to be a classic case of whistle blowing. Whistle blowing occurs when a worker reports a violation of criminal law by the employer and then suffers reprisal from that same employer. See my prior post here. It appears the AG’s office filed a plea to the jurisdiction. A plea to the jurisdiction is like a motion for summary judgment or motion to dismiss. The plea claims the plaintiffs lack sufficient proof to justify taking the case to trial.

It appears one piece of that evidentiary issue concerns Jeff Mateer, one of the senior assistants who was involved in the whistle blowing. Mr. Mateer resigned. He was not fired. And, he did not join the lawsuit. So, that would make him a critical witness. He probably knows things, but he lacks financial interest in the lawsuit. The AG’s office claims Mateer said in his deposition that he did not see any violation of law by Paxton. But, the lawyers for the whistle blowers argue the press release and the appeal filed by the AG’s office takes Mateer’s words out of context. What he said was that three months prior to contacting the FBI, he did not see any criminal activity by Paxton. But, he definitely believed and still believes Paxton based his office. See Texas Tribune report here.

Yes, it turns out the AG’s office filed a Plea to the Jurisdiction and lost. Now, they have appealed that denial to the Third Court of Appeals in Austin. The AG’s office has the right to an interlocutory appeal when a plea to the jurisdiction is denied. That means they can delay the lawsuit, even if the appeal is weak or frivolous.

The AG’s office offers several argument. But, the key substantive argument is that the seven senior assistants complained to the FBI and Human Resources that the AG had asked them to commit illegal acts. The AG’s office seems to argue that since those seven employees refused to commit those illegal acts and, instead reported them, then no illegal act occurred. See here for access to their appeal brief. But, the whistle blower act does not require that the employee first agree to perform an illegal act before blowing the whistle.

 

Many folks will ask me when they are experiencing serious trouble at work, can they simply quit? Things have become so bad at work that just have to leave. Some victims of job harassment will experience headaches, nausea while driving to work, and worse symptoms. I sympathize, but have to tell them that quitting may undermine their case. The challenge with a bad situation at work is that, we can perhaps show discrimination or reprisal occurred. But, showing the work situation was so bad that the employee really had to quit is hugely difficult. In the employment law business, that is known as constructive discharge. The situation at work becomes so bad that the employee is, in effect, forced to quit. Many litigants file such claims. Rare is the constructive discharge that is  upheld by the courts of appeal.

But, in Carter v. California Grill, LLC, No. 19-CV-00588 (W.D. Tex. 5/11/2021), we  see the rare case in which the employee successfully claimed she was forced to quit. Plaintiff Carter worked at Foxy’s Cabaret as a waitress. She was African-American. Co-workers and management routinely used the n-word in referring to her, to other black workers and customers. During her few weeks at Foxy’s, the manager said, “what’s up [n-word]?” When Ms. Carter complained about the use of the n-word, the manager said he was only kidding. Plaintiff complained to General Manager Perkins about the manager’s use of the n-word. GM Perkins told the manager not to use that word. Yet, later that day and many times afterward, Ms. Carter was present when the manger used the n-word. Perkins was present, but said nothing.

Two white co-workers often used the n-word in Carter’s presence. Plaintiff Carter complained. But, nothing changed.

After Ms. Carter reported the racist comments to GM Perkins, her hours were reduced and she was assigned to less lucrative areas of the night club. The situation reached a point where Plaintiff Carter had “almost no work at all.” Customers told Ms. Carter that they were told that if a black waitress came to them, they should say they were being helped by someone else. GM Perkins started to behave differently toward Carter. He would not talk to her. Once, he bumped into her, knocking her cell phone out of her hand.  Ms. Carter came to work one day to find there were no tables for her. They had all been assigned to white waitresses. When she attempted to wait on someone she knew in the VIP section, she was prevented from entering by two security guards. But, two white waitresses were allowed to enter that same VIP section. The court decision does not explain when, but she filed a charge of discrimination with the EEOC at some point.

Ms. Carter told two managers that there was no point in her coming to work, if there were no tables for her to wait on. One manager replied that if she did not come work work, she would be abandoning her job. Carter then said she was resigning from her job. She amended her EEOC charge to show she quit because she had no work.

Plaintiff Carter filed suit. Foxy’s Cabaret filed a motion for summary judgment. The court noted that a constructive discharge occurs when the employer makes working conditions so intolerable that an employee feels compelled to resign. Foxy’s argued that constructive discharge cannot occur when an employee receives reduced work one night, or a series of nights. But, said the court, Carter’s hours were reduced starting when she complained to GM Perkins. The night club removed her from the bar and assigned her to tables. Carter said her hours were reduced and she was removed from the bar after she first complained about racism. The court rightly noted the discrepancy in testimony, making this not appropriate for summary judgment. The court denied the motion for summary judgment. 

 

 

In the decision of Apache Corp. v. Davis, 573 S.W.3d 475 (Tex.App. Hou. 2019), the court of appeals affirmed a jury verdict in favor of Cathryn Davis, a former paralegal at Apache Corporation. The jury found she had complained about gender discrimination and then suffered reprisal because of that opposition. The jury awarded her $150,000 in past compensatory damages. I previously wrote about that decision here. Apache appealed that decision. At first, the Texas Supreme Court denied the company’s petition for review. The company then filed a request for rehearing. In March, the Texas Supreme Court granted the petition for rehearing, a very rare event.

Now, Justice Hecht has written an opinion which overrules the court of appeals decision and takes away the jury verdict. In the case of Apache Corp. v. Davis, No. 19-0410 (Tex. 2021), the justice found that there was insufficient evidence to support the jury decision. The court establishes that the standard of proof for a retaliation case is the but-for standard. The court noted that Davis was fired 8 weeks after her lengthy email complaining about discrimination. But, said the court, that does not mean she was not fired for some other reason. Side note: yes, but a jury believed otherwise.

Alleged Insubordination

The court points to instances of insubordination by Ms. Davis. Yet, the court of appeals looked at the same evidence. It found that one supervisor viewed her suggested work schedule as insubordination. But, otherwise, said the court of appeals, her tardies were comparable to mis-conduct by other co-workers.

But, Justice Hecht saw the evidence differently. He said Ms. Davis was guilty of numerous acts of insubordination, because she “repeatedly” refused to submit a work schedule in line with Apache policies. Here, the judge is talking about Ms. Davis’ request to continue what she had been doing for months, arriving after 9:00 a.m. She wanted to continue taking her daughter to school before work. She would then stay late to make up the time. Justice Hecht describes her repeated insubordination as “undisputed.” Yet, obviously, the court of appeals and the jury did indeed dispute whether Dacvis’ desired work schedule amounted to insubordination. Just because one supervisor says it is insubordination does not make it so, especially after she has complained about discrimination. Too, nothing in the Supreme Court decision or the court of appeals decision indicates Ms. Davis refused to submit a schedule showing an earlier start time more than once. It is not clear how Justice Hecht arrived at “repeated” instances of refusing to submit a work schedule.

Comparable Employees

The judge also reaches the remarkable conclusion, that two paralegals who falsified time cards but were not fired, were not comparable employees. Davis had argued that the paralegals had committed a much more serious offense, falsifying time cards and had not been fired. The judge said this was not comparable conduct. The jury could not look at that and conclude Davis was fired for something less serious. The two paralegals had arrived late several times, but changed their time cards to show they had arrived on time. Yet, they were not fired. The court of appeals also had considered that issue and found that a jury could indeed conclude that falsifying time records was less serious than not turning in a schedule with an earlier start time.

At this point, the opinion becomes rather nonsensical. Most decisions finding that employee discipline is not comparable do so because the employees work for different supervisors or in different departments. Even if we accept the theory that some company-wide discipline is not comparable, the thinking is that supervisors are accused of discrimination. So, if the supervisor in question applies different discipline for white or brown employees, then that would be relevant. If they are different supervisors in different departments, that thinking goes, then different discipline is not relevant.

But, here, Justice Hecht is saying something very few courts have ever said before, that to be comparable, the different employees must be accused of the same offense. Usually courts focus on offenses which are of comparable seriousness for offenses which are similar, not the same. See, e.g., Graham v Long Island RR, 230 F.3d 34, 40 (2d Cir. 2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, at 804, 93 S.Ct. 1817 (1973) (“Especially relevant” to a showing of pretext “would be evidence that white employees involved in acts against petitioner of comparable seriousness . . .  were nevertheless retained or rehired”).

It is very rare for different employees to be accused of the exact same offense. Discrimination cases are never that neat and tidy. But, more importantly, requiring that the different employees be accused of the very same transgression begs the question. The question is does the supervisor apply different discipline based on impermissible factors? That is a classic fact question suited to a jury. A judge applies the law, not social standards. Justice Hecht has exceeded his mandate as a judge. A jury should determine what discipline is relevant.

It appears Judge Hecht is weighing the evidence to arrive at a particular result. See the decision here. It does not help with the optics that the largest non-Republican party contributor to Justice Hecht’s campaign in 2020 was the Vinson & Elkins PAC. Vinson & Elkins represents Apache Corporation in this lawsuit. See Justice Hecht campaign contributions here.


On June 12, Judge Hughes dismissed the lawsuit filed by 178 employees of the Houston Methodist hospital. I wrote about that dismissal here. Those employees have already submitted their notice of appeal.

Now, more than 150 employees of that same hospital have quit or been fired, because they refused to take the vaccine. See CBS news report here. The Methodist Hospital had set June 7 as the deadline to take the vaccine. On June 8, 178 employees were placed on two weeks suspension without pay, because they refused to accept the COVID19 vaccine. Jennifer Brodges, the lead plaintiff, said the Director of the hospital called her on June 21 and asked if she had taken the vaccine, yet. She said absolutely not. So, the Dorector fired her. Ms. Bridges has already started a new job.

Judge Hughes warned that if the employees did not like the vaccine requirement, then they could quit. He meant that Texas is an at-will state. Most states have employment at-will. At-will employment means an employee can quit whenever s/he wishes, and that an employer can fire an employee for any reason, short of discrimination. The Equal Employment Opportunity Commission has issued guidance saying that an employer can require the COVID19 vaccine, so long as the vaccine does not impinge on a legitimate religious belief or so long as the requirement does not present some health risk.

I have had a few phone calls about this vaccine requirement. Yes, an employer can require an employee to take the vaccine, so long as it does not interfere with religious beliefs or create some health risk. As Judge Hughes said, the employee who does not want the vaccine can quit. Or, such an employee can form a union and then negotiate terms of the job like vaccines.

Proving discrimination is never easy. Discrimination requires proof of intent. The plaintiff must prove or show what some manager was thinking. In Thompson v. Zinke, 795 Fed. Appdx. 294 (5th Cir. 2/27/2020), the plaintiff alleged he was discriminated against when he was passed over for promotion. Mr. Thompson noted that a white applicant with less seniority was chosen over him. Plaintiff Thompson had 32 years experience with the Bureau of Safety and Environmental Enforcement. The hiring agency was the Commingling and Measurement Approval Unit, a sub-agency within the BSEE. The opinion does not identify the race of Mr. Thompson, but he is apparently not Caucasian. The appellate court noted, however, that the plaintiff had no pipeline experience. While, the white female engineer technician actually chosen, had eight years experience in the “Pipeline Section.” The white engineer also had experience using a particular software system, which Thompson lacked.

The lower court granted the Bureau’s motion for summary judgment. The appellate court noted that Thompson had some pipeline experience, but it was less relevant. His pipeline experience was offshore, said the court, and it, was less relevant to a position that required more data management. The court does not explain why pipeline experience is important in one context, but not in another. The white engineer’s pipeline experience mattered until it did not.

Too, the extent to which pipeline experience mattered or not ought to be decided by a jury. Simply based on the court decision, it seems there were important questions of fact that are not appropriate for summary judgment. See the decision here. But, this decision reminds us that non-promotion cases are very difficult. There are many possible non-discriminatory justifications for a particular selection.

The Houston Methodist Hospital required all of its employees to get a vaccine against the COVID19 virus. Some 178 employees sued. They argued, among other things, that requiring employees to accept a vaccine not fully approved by the FDA amounted to Nazi science experiments in a concentration camp. Note to future advocates: avoid over-the top rhetoric.

Judge Lynn Hughes, a federal judge, dismissed that sort of rhetoric. He noted correctly that no law prohibits an employer from requiring a vaccine for employment. He described the plaintiffs argument that the vaccine was “experimental and dangerous” as both false and irrelevant.  Texas law, noted the court, only prohibits asking employees to violate criminal law. There is no prohibition for so-called “dangerous and experimental” vaccines. The judge, known for his mercurial decisions and descriptions, described the plaintiff’s complaint as “press release style.” The complaint, he noted, did not identify what specific illegal acts the employees were required to perform. Accepting a vaccine is not an illegal act.

The judge is essentially explaining at-will employment. An employer can require anything, short of asking the employee to engage in illegal acts. The remedy in Texas to unwelcome requests is to quit, or form a union. If there are 178 hospital employees upset about taking a vaccine, then they may have enough to start organizing a union.

The judge took offense at comparing the vaccine requirement to Nazi doctors. “Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability, and in many cases, death.” See NPR new report.

The plaintiffs say they will appeal. Good luck. The law is not on their side. They will need some luck.

In a small town police force, one officer is going through some serious emotional issues. His former girlfriend and mother of their child is seeing a senior officer on the same small police force. In March, 2018, the chief of the police force referred Office Michael Grelle to a clinical psychologist for an evaluation. The chief mentioned that Officer Grelle had said he could not control his emotions. The young officer had handled various calls in a haphazard way, said the chief. The officer had cried during a meeting with his supervisors. On March 21, 2018, the psychologist found that Grelle could continue to perform his duties, if he obtained counseling. Yet, on April 3, the chief started an investigation concerning a remark made by Grelle in 2017. On April 17, 2018, the chief submitted Officer Grelle for termination.

In the case of Grelle v. City of Windcrest, No. SA-19-CV-00125-XR, 2021 WL 1910783 (W.D. Tex. May 12, 2021), Officer Grelle sued for discrimination based on his ethnic origin (white) and for ADA “regarded as” discrimination. The City moved for summary judgment. The Western District denied the motion. Regarding the ethnic origins claim, the court noted that the city claimed it fired Grelle solely because during an arrest, he asked to remove a bandage from a suspect before taking him to jail. Officer Grelle did not want the Magistrate to become alarmed at seeing a bandaged prisoner. The request to remove the bandage was approved by three supervisors at the scene of the arrest.

Yet, the City claimed Officer Grelle violated requirements of honesty in removing the bandage. It did not help the City’s case that a lieutenant claimed he withdrew his permission to remove the bandage after that discussion at the scene of the arrest. The body cam video from Officer Grelle clearly showed the three supervisors approving the bandage removal. Yet, the lieutenant claimed later after that discussion, he withdrew his permission. The court did not accuse the lieutenant of lying, but that change in his testimony had to hurt his credibility. Too, noted the court, in the termination documents, little mention is made of this supposed breach of honesty by Officer Grelle.

ADA

The City claimed Officer Grelle’s depression and emotional issues was not a factor in his termination. The City argued there was no evidence that the City viewed the officer as disabled. But, as the Court noted, the chief specifically referred Officer Grelle to a psychological evaluation. The chief noted at the time that Grelle had been suffering from depression for about a year. The Court noted that the timing was suspicious. The police department initiated an investigation into Officer Grelle regarding taking the bandaged prisoner to jail . That investigation started the day after the psychologists report was issued, and six weeks after the ride to jail. As the court noted, a reasonable jury could conclude that after the psychological evaluation did not remove Officer Grelle from the force, the investigation was initiated. See the decision here.

You served in Iraq twice. Both times, you served in a combat role, kicking in doors. You lost a few members of your Army family, but you accepted that. It is part of the deal you made with Uncle Sam. You were commissioned through ROTC at one of the Ivy league schools. You get out of the Army when your time expires and feel like you have earned a rest. After several months of looking for work, you get a job at a national bank on the East Coast.  Everything seems perfect. The civilian boss loves your work. Your co-workers appreciate having that Ivy league finance degree. You get two raises in the first six months.

Then, the day after Veteran’s Day, one of your former soldiers commits suicide. That brings back a flood of memories. You were his platoon leader. You spent almost 3 years taking care of this kid and keeping him straight. You knew his very young wife. You start having those bad dreams again. Its hard to sleep.

Your boss stops you in the hallway and asks if everything is ok. She has noticed you do not speak at meetings. You were late with that report. You tell her about that kid, who shot himself. She says “this is not the Army. Take a day off.” Then, she walks away.

Your sleeplessness worsens. At work, others are noticing your red eyes and nodding off at meetings. You take a day off. You get some work done at home. The boss fusses at you for taking a day off when your report was not turned in yet.

Weeks pass. The boss says accusingly that your speech is slurred and your eyes are drooping. The boss walks away, looking at you like you are a child molester.

Walking down the hallway, you find your desk. A minute later, Human Resources calls you in for a meeting. The boss is there. The HR person and the boss ask if you are using drugs. “No,” you look incredulous. They have no idea that in the Army, you were tested for drug use every other year. You think how ironic, the boss and the HR rep could probably not pass a drug test every other year for eight years.

The boss and HR representative accuse you, the former Ranger captain of PTSD. “No-o-o,” you stammer out.  You think back to all those times you encouraged other soldiers to see a counselor about possible PTSD. You recall asking the kid if he had seen a counselor – just a couple of years year before he committed suicide. “No,” you say, “I do not have PTSD.” But, you add, “I have been seeing a psychiatrist for Depression. The medication causes some drowsiness.” You tell them you will talk to your psychiatrist about adjusting the dosage.

They press you to go take a drug test, now. The clinic will be open for another hour, they insist. They ask if you want to talk to the EAP counselor, Employee Assistance Program. You recall the orientation explaining that EAP will assist employees with drug alcohol problems. You know that the EAP program is a good way to end a promising career.

A more senior HR person comes in. She rattles off some statistics about all the employees who were helped by the EAP program. You continue to deny any drug use or alcohol abuse. The senior HR rep again asks about PTSD.

You break down and weep. The questions stop. They look at you like a monkey in a zoo. The senior HR tells you that you have 24 hours to contact EAP. You are suspended for one week with pay. They send you home.

You cannot imagine going back there after your boss saw you crying. A co-worker saw you leaving the room and shoots a questioning look..

The junior HR rep calls you the next day at home. He asks if you contacted EAP, yet. You tell him no.  You explain again you have a psychiatrist. Why do I need a counselor? He says you are fired for not contacting EAP within 24 hours and for refusing a drug test. You never refused any drug test. You think back to those days in Baghdad when you were never sure who and where the enemy was. You think things have not changed so much.

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Saenz had a huge laugh and a booming voice. He laughed a lot.

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did best, serving others.

We should all serve our country half as well as 1SGT Saenz. There is a nice tribute to 1SGT Saenz here. As John Bear Ross mentions on his website, do not mourn that a man like 1SGT Saenz died. Rejoice that a man like 1SGT Saenz lived.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here. Like many of us, he returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, we remember the fallen – but not the Confederate fallen. They were removed from the list a few years ago.

The white SUV hurtled toward the Guardsmen. The young soldiers reacted. “Suicide bomber!” yelled one. Two others took up defensive positions as if they were armed. But, they had no weapons. They were simply cleaning up the gravel parking lot at their National Guard Armory. They saw two young boys doing doughnuts in the parking lot with their SUV and told them to stop. The boys reacted by racing the engine and hurrying toward the Guardsmen.

The boys did not realize they picked a group of vets from Iraq and Afghanistan.  SGM Benavides was older. He was angry, too, but he knew he had to keep order. Like the younger vets, he wanted to beat the snot out of the boys. But, he wanted to maintain order more.

Other Guardsmen, who had not deployed to a combat zone, stared in amazement.

One boy emerged from the SUV with a swagger. “You think you can scare me?” responded one young vet.  “I came from a place where they tried to kill me everyday,” he said evenly.

SGM Benavides chewed the two boys out and let them go. He talked to his young vets about whether they were experiencing any PTSD.