An engineer worked for Texas Commission on Environmental Quality or 23 years. Shiyan Jiang was never in any trouble until in 2014, he was assigned a new boss, Kim Wilson. The new boss believed Mr. Jiang placed some papers in a permit folder that did not belong there. The plaintiff then filed a complaint alleging discrimination based on age and ethnic origin. The supervisor then found many more things wrong with the long-time engineer, including raising his voice and disputing settled policy matters. Ms. Wilson placed the engineer on probation. During the probation, he had two meetings with supervisors. No incident occurred after the second meeting, yet, the supervisor recommended termination.

Mr. Jiang filed suit as Jiang v. Texas Commission on Environmental Quality, No. 17-CV-00739 (W.D. Tex. 8/13/2018). The TCEQ moved for summary judgment. The Western District court noted that there was evidence that some other co-workers raised their voices on occasion. Other co-workers sometimes placed draft documents into a permit folder. And, others debated policy with their supervisors. Mr. Jiang submitted a statement on his behalf in responding to the motion for summary judgment. The employer tried to argue that Jiang’s Declaration was based on subjective belief. But, his testimony was corroborated by co-workers. The employer then argued that the co-worker affidavits were based on subjective belief. But, noted the court, the co-workers presented facts to support their beliefs.

The court also noted that two other senior employees were placed on probation or issued written warnings after they complained about age discrimination. And, the court noted  that Mr. Jiang complained about race discrimination at the second probation meeting. The very next day, the supervisor recommended he be terminated. That is a very close nexus indeed between opposing discrimination and then suffering an adverse personnel action. The court found that viewing all this evidence in totality, a jury could infer a pattern of behavior of retaliation against persons who complaint about discrimination. It found that there were issues of fact regarding the employer’s articulated reasons for the termination. So, the court denied the employer’s motion for summary judgment. See the decision here.

The judge ruled correctly. The affidavits of co-workers, if supported by factual observations, are much more than mere “subjective” belief.

Judge Fred Biery is a wonderful asset to the San Antonio legal community. Recently, he demonstrated again why he is the right judge at the right time. One of the costliest and most time-consuming lawsuits in recent memory is the House Canary v. Quicken Loans, Inc., No. SA-18-CV-0519 (W.D. Tex. 8/14/2018) lawsuit. A few months ago, a Bexar County jury awarded $700 million to the tech startup, House Canary. The lawsuit stems from a subsidiary of Quicken Loans which had asked House Canary to develop software. The subsidiary sued for fraud and breach of contract. Quicken Loans lost in one of the largest jury verdicts in Bexar County ever. See San Antonio Business Journal report here.

Quicken Loans then filed a related lawsuit in federal court. House Canary moved to dismiss or to transfer the suit to Michigan. At issue are jurisdiction, venue, and opposition to injunctive relief, all the normal requisites for time-consuming and expensive litigation. Judge Biery often speaks to the increased cost of lawsuits. His father and uncle were well known trial lawyers in San Antonio. Judge Biery is qualified to speak to the increased litigation costs in today’s society.

So, he called for a status conference, likely anticipating yet another drawn out legal battle. He wanted the parties to act in a civil manner. He expects zealous advocacy, he said, but no “elementary school behavior.” He expects the parties to produce all information requested in discovery. Lay the cards on the table, he ordered. The Court observed, and the respective lawyers surely know, that all would be revealed anyway if the case is appealed and then remanded. It would be more efficient to first produce what you have.

He asked the parties (i.e. the respective lawyers) to avoid “shrill” pleadings. He warned them that he has in past lawsuits ordered opposing lawyers who violated his rules to sit in timeout in the rotunda of the courthouse. He ordered another set of lawyers to kiss each other on the lips in front of the Alamo with cameras present. He discussed indirectly the change in litigation in San Antonio. Once the city was home to some 300 lawyers, all of whom, knew each other. They did not need court orders, because once they reached an agreement, they would abide by that agreement. He seemed then to point the finger at “Yankee” lawyers, that is lawyers moving into the state from the north and western regions of the country. He helped to make his point by including a map of Texas with arrows pointing at the state boundaries from Oklahoma and New Mexico, indicating migration from those states and beyond. He reminded us of a saying by Hobart Huson, a former San Antonio lawyer and historian, “Texans, you are guarding the wrong river.”

The Judge is certainly correct that us lawyers are more litigious than our predecessors. But, perhaps, if we start guarding the right river, we can find a balance. See Judge Biery’s order here.

Within just a few days, Admiral William McRaven accused Pres. Trump of engaging in Joe McCarthy tactics and the President accused the Mueller investigation of engaging in Joe McCarthy tactics. They are referring to former Sen. Joe McCarthy who conducted anti-Communist hearings in the Senate. Let us look back for a moment at that disgraceful episode in U.S. history

Senator McCarthy was a bully. In his zeal to uproot all vestiges of Communism or Communist sympathizers, he bullied, scared and threatened his way across Washington, D.C. Everyone was afraid of Joe McCarthy, because they feared being branded as “soft” on Communism. Like Donald Trump, Joe McCarthy shot from the hip. For example, he stated flatly, like he knew and only he knew, that there were dozens of Communists in the federal government. He claimed in one speech to have a list in his hands of 205 known Communists in the State Department. Later, in the Senate, he said the number was actually 57. Still later, he claimed it was 81. That alleged list led to Senate hearings looking for Commies anywhere in the federal government. Overnight, Joe McCarthy became a household name. He became an albatross for the Republicans. Gen. Eisenhower, while campaigning, said he supported Mr. McCarthy’s goals, but not his methods. According to some accounts, in actuality, the President had planned a sharper attack on Sen. McCarthy, but backed down at the last minute.

When the Senator ran his own committee, he destroyed people, based on little more than suspicion. His browbeating tactics in Senate hearings offended his colleagues. But, afraid of what he would do or say, the other Senators said nothing.

In looking into the U.S. Army, he could find no evidence of subversion after weeks of investigation. But, he was convinced the Army had been “soft” on Communists. Frustrated, he started focusing on the case of Irving Peress, a New York dentist. Mr. Peress had been drafted in 1952. In his papers, he had disclosed a former membership in the American Labor Party, a leftist organization. When asked about his political affiliations, he had left that portion blank.

Capt. Peress was promoted to Major in 1953. Sen. McCarthy started a campaign  to find out who had promoted Maj. Peress. The question, “Who promoted Peress?” became a conservative rallying cry. All this time, Sen. McCarthy knew that the major had been promoted automatically by the provisions of the Draft Doctor’s Act, a recently passed law which Sen. McCarthy had supported.

When called before the committee, Capt. Peress invoked the 5th Amendment numerous times. He insisted that citing the 5th Amendment did not amount to guilt. Later, Sen. McCarthy demanded that the Army court-martial Capt. Peress. The pressure eventually forced Capt. Peress to request a discharge. He was discharged honorably with a promotion to major.

The committee then called on his commander, Brigadier-General Wicker to explain how he was promoted and discharged without a court-martial. BG Wicker, a West Point graduate, had been at Normandy. He had led an Infantry battalion at the key Battle of Brest. He was a hero. He was asked about his approval of the discharge orders for Maj. Peress. Based on advice from the Army counsel, he refused to answer certain questions. The Senator badgered him, and accused him of perjury. He said the general was not fit to wear the uniform.

“Tail-Gunner” Joe had been an enlisted man in the Army during WW II. His abuse of BG Wicker caused many people to turn against Sen. McCarthy. All the general did was approve discharge for an officer who had committed no transgression while in service. As BG Wicker said many years later, he was initially not unsympathetic to Sen. McCarthy. But, as soon as the hearing began, he quickly became disillusioned. Sen. McCarthy, said the general, was an opportunist. The Senator’s abuse postponed Zwicker’s promotion to Major General.

The debacle with BG Wicker lead to the Army hearings. Sen. McCarthy would hold hearings on live television, the new medium, digging deeper into so-called Army tolerance of Communism. Millions watched as he browbeat and interrogated various Army officials. In one such hearing, the chief legal representative for the Army, Joseph N. Welch pressed the committee about some supposed 130 persons who worked in defense plants and supported the Communist party. Sen. McCarthy jumped into the conversation. He insisted Mr. Welch explain the case of Fred Fisher, a young lawyer who worked in Mr. Welch’s law firm. Mr. Fisher, insisted the Senator, had once belonged to the National Lawyer’s Guild, the “mouthpiece” of the Communist party.

The National lawyers Guild is still around. It is indeed liberal leaning, but it is also independent of any political affiliation. Sen. McCarthy had to know this.

Joseph Welch accused the senator of cruelty. The Senator persisted, demanding to know about Mr. Fisher’s former membership. Mr. Welch famously replied, “Senator, may we not drop this? We know he belonged to the National Lawyer’s Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir, at long last? Have you no sense of decency??” When Sen. McCarthy persisted, Mr. Welch cut him off. He reminded him that he could have asked about Fred Fisher any time that day. He sat within six feet of Mr. Welch. He told the chairman of the committee to call the next witness. The gallery then erupted in applause and a recess was called. Sen. McCarthy’s decline began soon after.

Fred Fisher did indeed once belong to the NLG during law school. But, as Mr. Welch pointed out, this was needless trashing of a man at a time when membership in liberal organizations could ruin a man’s career. This line of inquiry served no purpose, other than advancing Sen. McCarthy’s political goals. It was cold-blooded political opportunism and Mr. Welch called it.

So, when persons accuse another of McCarthyism, that is indeed a deep insult. Sixty years ago, the end for “Tail-Gunner” Joe started with one decent man, representing the U.S. Army.

“You get a rest break every four hours,” the seasoned warehouseman told me back in the 1970’s.  He knew everything. I just assumed he was right about this, too. But, since then, I have never seen anything in law or regulation stating that workers were entitled to a 15 minute break every 4 hours. But, there is a regulation encouraging employers to provide a rest break every so often. See 29 C.F.R. Sec. 785.18.This regulation tells employers that rest breaks improve efficiency. The regulation states that rest breaks of 5 to 20 minutes are common in industry. Any such rest break must be compensated. But, no rest break is required.

The regulations do provide that if a meal break is provided, it must be free of work duties. See 29 C.F.R. Sec. 785.19. Federal regulations do not require meal breaks. See Department of Labor’s Questions and Answers about the Fair Labor Standards Act here.

Its a pretty clear First Amendment violation, firing Peter Strzok. The President and Rep. Meadows have made some hay about Agent Strzok supposedly using influence in regard to the Mueller investigation into Pres. Trump. But, there has been no evidence of Strzok allegedly using his influence to affect the investigation. Agent Strzok specifically said “we will stop” the election of Pres, Trump in 2016. He said he was talking about “we” the voters. That was protected speech by a federal employee. See CBS news report here.

In firing the FBI agent and linking the firing to his comments about the President, the employer has set up a lawsuit nicely for the agent, if he wishes to pursue it. It was very unwise of the FBI to fire him for unsupported reasons. If the President and others could show actual influence over the investigation, my opinion would change. But, for now, there is no evidence of him exerting any actual influence over the investigation. Too, as he pointed out when he testified to Congress, if he wanted to affect the outcome of the 2016 election, he could have leaked the fact that the Trump campaign was being investigated in 2016.

Firing the agent may have placated some folks in the Executive branch, but that short-term gain may result in long-term pain.

it happens more and more. A jilted lover posts pictures of his former girlfriend on the internet. Only this former lover kept doing it over and over. Mark J. Uhlenbrock was a pilot for United Airlines. He formed a relationship with a stewardess who uses the name Jane Doe. The relationship started in 2002 and lasted about four years. He took some pictures of her in the nude with her permission – and some pictures without permission. The stewardess obtained restraining orders against him here in Bexar County in 2009 and again in 2011. He just kept posting the pictures. The pilot settled her case against him for $110,000. But, the harassment did not stop.

In 2013, the stewardess went to their mutual employer, United Airlines. But, the employer failed to take appropriate action, says the EEOC. The EEOC filed suit recently against United Airlines for failing to do something about the pilot’s conduct. In 2015, Mr. Uhlenbrock was arrested by the FBI and his computers were seized. United granted him ing-term disability in January, 2016. He received the long-term disability payments until July, 2016. In June, 2016, he pleaded guilty in federal court to internet stalking. He was sentenced to 41 months in prison for the offense.

Mr. Uhlenbrock said he had an addiction to posting nude photos on the internet. See San Antonio Express News report here. The EEOC appears to be arguing that United kept the pilot on its payroll several months after he pleaded guilty to stalking and that the employer took no steps to stop him from posting the pictures. The challenge in these sorts of cases is showing the employer had a duty to address behavior which occurred off-premises. This may become the exemplar for such cases, since the relationship clearly started on company premises on company time. At least one of the pictures was of Ms. Doe in her flight attendant uniform.

Even worse, the federal violations continued long after the stewardess complained. Ms. Doe filed suit in state court in Bexar County, and complained to management long before the EEOC filed this new lawsuit. At one point, United said it could not take action because the harassment was not related to work. The captain never received any discipline for his conduct. See Texas Lawyer report. The lawsuit is filed as Suit No. 18-CV-817 in the Western District.

I wrote about a pushy judge in the Paul Manafort trial here. The judge was fussing at the prosecutor and the prosecutor fussed back a bit. Now, the judge has apologized and explained to the jury that he was “probably wrong” for criticizing the prosecutor regarding one of the witnesses. IRS agent Michael Welch had been allowed earlier to sit in the court room and observe testimony. Perhaps forgetting his previous order, Judge Ellis fussed at the prosecutors for allowing a witness to sit in the court room prior to his testimony. So, later the prosecutorial team asked the judge to explain his oversight to the jury. See The Hill news report here.

It is probably symptomatic of the poor working relationship between the judge and the prosecutors that this inadvertent mistake occurred. The judge had fussed at them so much that he assumed they had erred. He spoke too soon, apparently.

Trials are not what we see on television. The judges and juries are not always somber, listening closely and making no mistakes. This is real life. The prosecutors saw the error and asked the judge to fix it. The judge is acting strangely. When relating a ruling that the prosecutor, Greg Andres did not like. Judge Ellis said Mr. Andres should not cry. The prosecutor said he was not crying. Judge Ellis remarked that well, his eyes were watery. There was no need for that retort.

Many plaintiffs complain they are treated differently than other co-workers in some way. It might be about pay, promotion opportunities, etc. In one case, two plaintiffs said they were treated differently than other peers and that they were subjected to derogatory comments about Italians. In Cicalese v. University of Texas Medical Branch, No. 17-CV-0067, 2018 US Dist. LEXIS 46796 (S.D. Tex. 3/22/2018), the employer filed a Rule 12(b)(6) motion to dismiss. Rule 12(b)(6) addresses the failure to state a claim. Dr. Cicalese was born in Italy. He and his wife both worked for UTMB. His wife, Dr. Rastellini, was also born in Italy and was also a medical doctor. Things went well for the couple the first five years at UTMB. But, when a new dean started working there, things went downhill. The doctors say the new dean targeted them based on their heritage as Italians. The dean, said the plaintiffs, when he first met them, told them they should go back to Italy. He made additional negative comments about Italians.

The dean removed some positions from the two doctors. But, it appears the adverse personnel action which forms the basis of their suit is denial of tenure.

The Plaintiffs’ allegations were not specific. Dr. Rastellini alleged other, unnamed comparators were granted tenure with lesser credentials. But, she did not name them. She did not describe what those lesser credentials looked like. She did name others, but not in the context of comparative employees. The court resurrected the so-called four-part test found in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996), regarding so-called stray remarks. I previously discussed the stray remarks doctrine here regarding a 2015 Fifth Circuit decision. In that decision in Goudeau v. National Oilwell Varco, LP,793 F.3d 470 (5th Cir. 2-15), the court tried to clear up the confusion surrounding the stray remarks doctrine. The point of the 2015 decision was that a remark which shows discriminatory bias on its face has some value, even if they may be old. Even older remarks can serve as evidence of pretext, said the court in 2015.

But in Cicalese, the court relied on Brown to find the remarks too remote in time. But, as the Goudeau court explained, even remarks that might be old in time, provide some relevance to the circumstantial evidence case. They might well be relevant to help show pretext. “In a circumstantial case like this one, in which the discriminatory remarks are just one ingredient in the overall evidentiary mix, we consider the remarks under a “more flexible” standard.” Goodeau, at p. 475.

But, the Southern District (Hanks) made no reference to Goudeau. It did not discuss a more flexible standard. Instead, it relied on the old strict formula that makes little sense. The complaint apparently did not mention the time period in which the three purported remarks were made. But, if a decision-maker makes a remark which shows bias on its face, such a remark would hold some relevance for a very long time period. This decision does appear to be oriented toward reaching a particular result. See the Cicalese decision here.

In federal court, all lawyers run into the challenge of an overbearing judge. It can happen in state court. But, generally, pushy judges are mot likely to be encountered in federal court. In the Paul Manafort trial, the judge is not necessary overbearing, but he constantly presses the two sides to avoid lengthy, tedious testimony. That pressure has led to verbal fencing between the judge and the prosecutor.

For example, there was this exchange between Greg Andres, the prosecutor and Judge T.S. Ellis:

“The day’s first significant altercation came as Andres sought to question Manafort’s former  deputy, Rick Gates,            about his travels, using his passport as a visual aid.

“Let’s go to the heart of the matter,” Ellis said.

“Judge, we’ve been at the heart. …” Andres replied, before the judge cut him off.

“Just listen to me. … Don’t speak while I’m speaking,” the judge said, sharply. He added that he didn’t see how the testimony on travel “amounts to a hill of beans” with regard to the charges against Manafort, the former Trump campaign chairman.

See Politico news report.

There have been several such instances of Mr. Andres sniping at the judge and the judge fussing at him for perceived lack of respect, not looking at the judge, rolling his eyes, etc. In a criminal trial, the prosecutor can sometimes take the judge on like that. But, in a civil trial. the jury will perceive it as bad that the judge is fussing at a lawyer. So, usually in civil trials, we do not fuss back. In any event, it is frustrating that some judges will not let you provide testimony you believe essential to your case.

Pres. Trump and AG Sessions started a policy separating children from their parents at the border last April. It lasted just a few weeks, but resulted in some 2500 children separated form their children. The policy was changed and the federal government was able to re-unify most of the families. But, there are still several hundred children who are apart from some 500 parents.A federal judge in San Diego has presided over a lawsuit filed by the American Civil Liberties Union, the ACLU. The challenge now is those 500 parents were deported. This is a transient, mobile population. It will be very difficult to find them.

In a recent filing, the Department of Justice unwisely said the ACLU could locate these parents. DOJ said with their network of NGO’s. volunteers and other resources, the ACLU could find the parents. The DOJ was apparently trying to make a joke. The ACLU has no such network. It is more or less a national law firm, composed of individual lawyers in various cities. “NGO” refers to non-governmental organizations. The ACLU has no “network” of NGO’s. DOJ knows that. I can only think they intended the comment as a joke of some sort.

The judge, Dana Sabraw, said to be a dignified sort of judge, did not rise to the bait. He simply told the DOJ that this problem, created by the Trump administration must be solved by the Trump Administration. Judge Sabraw said that sort of plan was not “acceptable.”

It is never wise to make jokes about major problems. The judge will remember that callous humor later when DOJ might wish to be taken seriously. See AP news report here.