Pres. Trump has attacked judges since 2016. His broadside against a sitting U.S. District Judge was remarkable, saying Judge Amy Berman Jackson was biased in some unspecified way against Roger Stone. He also attacked the foreperson of the Stone trial jury. He accused Tomeka Hart of being biased because she had previously run as a Democrat. Even though, Ms. Hart’s background was known to all before she was selected for jury duty.

A second juror has come to Ms. Hart’s defense. Seth Cousins sat on that jury. He says Ms. Hart was one of the last members to vote for conviction. He says Ms. Hart was one of the persons insisting that the rights of Defendants be respected. Mr. Cousins points out that Pres. Trump is attacking all members of the jury when he attacks Ms. Hart. The members of the jury set aside their personal lives for weeks, made arrangements with day care, just so they could perform their civic duty. And, then a public official attacks them for it. Indeed.

See The Hill report here.

What happens in mediations stays in mediations – or should. Dennis Duffy, a lawyer who has practiced in San Antonio, El Paso and now in Houston, attended a mediation in Houston in 2019. According to Above the Law blog, he tried a new tactic at the mediation. The plaintiff’s lawyer was Alfonso Kennard. Mr. Duffy represented the defendant. Mr. Duffy, shook his “booty” in front of Mr. Kennard and mocked Mr. Kennard’s ponytail. Mr. Duffy suggested that he, Mr. Kennard, wanted to have sex with Mr. Duffy, because he has a ponytail.

In response, Mr. Kennard submitted a motion seeking sanctions and the disqualification of Mr. Duffy. The two lawyers oppose each other in a discrimination lawsuit against Chevron Phillips Chemical Co., LP. Mr. Duffy has worked at large law firms most of his career. He currently is a partner at Baker Hostetler in Houston. See Above the Law post here. According to the motion for sanctions and for disqualification, Mr. Duffy said to Mr. Kennard: “Do you want to f— me? You have a ponytail haircut. I figured you want to f— me…..” See ABA Bar Journal report. As Mr. Kennard mentions in his motion, litigation is tough enough when the lawyers work together. Litigation becomes almost impossible when the two opposing lawyers are not working together. See White v. Chevron Phillips, No. 19-CV-00187 (S.D. Tex.).

This is the same Dennis Duffy who once said at a CLE that he is an unreconstructed Rambo lawyer. That  description appears to be accurate.

As it turns out, Mr. Duffy and his law firm were replaced as counsel for Chevron the week after the motion was filed. The new law firm, Norton Rose Fulbright, apologized for “the encounter” at the mediation, while denying that the “encounter” was described accurately by Mr. Kennard.

 

Forced arbitration has become more and more prevalent. In the work place, many employers provide an orientation which occurs online. So, forced arbitration often requires the new employee to agree (or not) to forced arbitration online. What happens if the employee does not sign the forced arbitration agreement? And, what happens if an employee does not recall if s/he signed the forced arbitration agreement? In Aerotek, Inc. v. Boyd, the district court denied a motion to compel arbitration. On appeal, the Dallas court of appeals found that was not error. The four employees denied having seen or consented to any forced arbitration agreement. The employer submitted forced arbitration agreements with claimed digital signatures for each of the four employees. But, the four plaintiffs insisted they never saw the agreement. The employer’s IT experts could not testify that it was impossible to complete the in “onboarding” process without signing the forced arbitration agreement. According to the IT experts, it was not impossible for an employee to not sign the forced arbitration agreements.

The Dallas court of appeals noted the decision in Kmart Stores of Texas v. Ramirez, 510 S.W.3d 559, 565 (Tex.App. El Paso 2016), which found that an electronic signature does not conclusive show agreement, especially when confronted by sworn denials. And, Aerotek admitted that a third party vendor created the onboarding process and it did not produce a witness from that third party vendor.

See the decision in Aerotek, Inc. v. Boyd, No. 05-18-00579 (Tex.App. Dallas 8/27/2019), here.

 

The courts have struggled with the wording in Title VII for a couple of decades. Title VII clearly prohibits discrimination based on sex. Does that mean Title VII prohibits discrimination based on sex orientation? If an employer terminate someone because he is gay, how is that not discrimination based on sex?

The challenge is that the legislative history expressly says Congress did not intend for Title VII to apply to homosexual persons. But, sex is sex, right? I wrote about this challenge here, when the Fifth Circuit recently declined to stray from the decision in Oncale v. Sundowner Offshore Services, Inc., 523 US 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Oncale allows a plaintiff to proceed with a claim based on gender stereotyping. But, gender stereotyping will not apply to cases of explicit homosexual discrimination. Last Fall, the U.S. Supreme Court accepted two cases addressing whether “sex” really means sex, Bostock v. Clayton County and Altitude Express v. Zarda. In both cases, the employers clearly fired two employees due to their sexual orientation. See SCOTUS blog for more information here.

Perhaps, the best argument the employers can make is that the plaintiff’s case is best addressed by Congress. But, until Congress addresses it, the “sex means sex” argument will continue to persist.

SFC Javier J. Gutierrez was killed in Afghanistan last Saturday. SFC Gutierrez was a graduate of Burbank High School, where he participated in Junior ROTC. After graduating from high school in 2009, SFC Gutierrez joined the Army. His father, a Desert Storm veteran, had joined the Marines. The young Gutierrez had a stellar career in the Army. He went from the 82d Airborne Division to Special Forces. He was a Communications Specialist in the 7th SF Group. He had deployed before to Iraq.

SFC Gutierrez was bright and hard-working. He just came back to San Antonio this past Christmas with his wife and four children. They visited Kiddie Park and enjoyed a traditional Hispanic Christmas with the Gutierrez family, with tamales and pinatas. The senior Gutierrez explains that his son was humble about his achievements and experiences. He would talk about it quietly and calmly. And, he loved his country.  See San Antonio Express News report here.

How does a person show racial discrimination? Two ways come to mind: 1) a person must show he was fired and replaced by a person of a different race, or 2) show he was disciplined differently than persons of a different race. There is more to it than those two methods, but one of those two methods is essential. In Ross v. Judson ISD, No. 18-CA-269 (W.D.Tex. 12/19/2019), the plaintiff, African-American, argued that yes, she was replaced by an African-American initially, then by another African-American and then finally by a white person. As we might expect, the court did not accept her argument. Ms. Ross was fired after 18 years with Judson ISD. Anytime a person is fired after 18 years, we should get a little suspicious.

Ms. Ross also claimed that when the prior Superintendent, Dr. Mackey, left, things changed. Dr. Mackey, said the plaintiff, was seen as favoring African-Americans like Ms. Ross. When he left, certain officials at Judson started to take reprisals against high-ranking black employees, like Ms. Ross. She insisted this was the true reason for her non-renewal. One witness supported Ms. Ross’ claims. The witness said initially, certain officials planned to replace Ms. Ross with a white or Hispanic principal. But, to make things look better, they appointed an African-American principal on an interim basis.

But, the court noted that the third replacement, a white principal, was not made until three years after Ms. Ross’ termination. That time period was just too far for the court. The court noted that there is no caselaw or authority for the proposition that choosing a replacement to avoid the appearance of discrimination is itself discrimination. And that makes some sense. If an employer replaces a minority with a person of the same race to avoid the appearance of discrimination, that will indeed avoid the appearance of discrimination.

The plaintiff also claimed she was fired because she voiced support for naming a school after Dr. Mackey, an African-American. But, said the court, she could point to no proof that she did in fact express support for naming a school after Dr. Mackey at a board meeting. And, noted the court, there was no evidence to indicate the School District took reprisal against her for supporting renaming a school after Mackey. The plaintiff asserted various other theories of discrimination. But, as I have mentioned on this blog before, it is better to rely on just one or two good causes of action than to assert several. The several will often bring down the one or two good causes of action.

 

William Hurt plays a character, Thomas Tulley in the movie, The Last Full Measure. Near the end of the flick, MSGT Tulley admits that he felt this guilt when he discovered the body of his friend, William H. Pitsenbarger. Tully felt guilty because his first reaction at seeing the bullet riddled body of his mate was relief that it was not Tulley himself lying there. After the Viet Nam War, Tulley become close friends with Pitsenbarger’s parents. We see Pitsenbarger’s exploits and life through the eyes of a non-veteran, Scott Hoffman, a career bureaucrat in the Department of Defense.

To non-veterans, the guilt felt by MSGT Tulley probably seems trivial and perhaps, over-blown. But, for this veteran, it seems spot on. All of us combat veterans take away from the war these little nuggets of guilt. Those little moments when you were not perfect.

All through training, we are taught to place the needs of the unit above our own, to be selfless. In Infantry talk, we knew the worst thing was to be a buddy f***cker. That is the guilt MSGT Tulley is dealing with. For just a second, he was capable of f***cking his buddy. Just for a second. Yet, that second haunts Tulley all his life. Tulley was a young pararescue medic in that helicopter with Pitsenbarger. He was, just for a moment, glad Pitsenbarger went down into that jungle, so he, Tully, would not have to.

These are the things we bring home with us from the war. The knowledge that we are in the end, human.You can read more about Airman First Class Pitsenbarger here.

The Fifth Circuit has again applied a “pretext plus” formula to affirm a grant of summary judgment. In Harville v. City of Houston, Mississippi, No. 18-60117 (5th Cir. 8/16/2019), the City fired a deputy clerk. The City Clerk, Margaret Futral, testified that Mary Harville was an essential deputy clerk who worked on taxes. The Board of Aldermen made the decision to lay off Ms. Harville, saying the City was facing a funding shortage. The Board testified they believed working on taxes was seasonal, so they selected Ms. Harville, from among four deputy clerks for the layoff.

The plaintiff, however, countered that Ms. Futral testified that taxes were not a seasonal need. She was the City Clerk. She ought to know. But, the court pointed to one question in her deposition in which she was asked if the Board believed taxes were seasonal work. Ms. Futral’s answer was “You know, I don’t know. I guess they did. They said it.” The court found this ambiguous response showed that the Board believed the job was seasonal, even if they were wrong. The court did not explain how a City Clerk can speak for the entire Board. On re-hearing, the panel reached the same conclusion, that the Board sincerely believed, however wrongly, that Ms. Harville’s job was seasonal. If true, that seasonal rationale would present a non-discriminatory reason for the layoff.

But, the context here is summary judgment. The court should not be engaging in fact-finding. It should simply determine some minimal level of factual dispute. The plaintiff presented some evidence of pretext on the part of the employer. But, the Fifth Circuit is asking for something more than pretext. It is asking for pretext plus. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) specifically provided that showing the falsity of the employer’s explanation would require that the jury decide the case, not the judge. This decision in Harville betrays a fundamental lack of understanding of the Reeves decision.

See the initial Harville decision here and the decision on rehearing here.

When I did my twelve months in Iraq, I knew my law license was at some small risk. Even though I was in the Army in a non-lawyer role. I knew I could not lie or violate any law. Non-soldiers may not realize this, but in a war zone, there is some pressure to violate laws to win the war. My job in Iraq dealt with this money fund known as CERP. CERP money included hundreds of thousands of dollars. There was incentive to use that money for improper purposes, for everything from influencing local sheiks to funding some lieutenant’s holiday fund. My predecessor was threatened when he resisted one commander’s insistence on using CERP money for a favorite project. Sitting at my desk one day in dusty Iraq, I heard the JAG lawyer who sat behind me say she was not willing to risk her law license for some dubious proposition by a combat commander. The one thing no lawyer wants to hear: “I will not risk my law license for this.” I wanted to win the war, too. We all wanted to win the war. (Well, most of us anyway). But, not at the expense of my law license.

Yet, Pres. Trump’s lawyer appears willing to risk his law license. During the impeachment proceedings, Pat Cipollone has uttered falsehoods, things he has to know are false. Such as, he said no one other than Democrats were allowed in the SCIF when three House committees interviewed witnesses. He knows the Republican members and their staffs were in that same room asking their own questions of the witnesses.

Indeed, Pat Cipollone is a witness to the Ukraine shenanigans. He knows he is surely a witness. Yet, he is appearing in front of the Senate making his arguments. He must know someone, anyone can lodge a complaint against him with his local bar association. A lawyer cannot appear as an advocate if he is also a witness. Every lawyer knows this. That is Lawyer 101. The normal practice when a lawyer is a witness is for the opposing counsel to seek his dis-qualification. But, if no one seeks to have the offending lawyer disqualified, what happens? Who knows. It is the rare lawyer who will knowingly disregard ethical rules.

Mr. Cippolone supervises John Eisenberg, to whom several federal workers reported their concerns about Pres. Trump’s conduct. See Politico news report. Mr. Cipollone is a witness on so many issues. As I would say when I was in Iraq, no decision is worth my law license. Mr. Trump’s lawyer appears to feel differently.

So, what did Mr. Brodesky do when he considered Confederate memorials and what should be done with them? I previously wrote about his opinion piece here. He contacted this author. He interviewed me. He met with the ladies he mentions in his April 20 piece and listened and watched their slide show. The slide show recounts the history behind the Confederate memorial which formerly resided in our Travis Park. He met with Richard Brewer, a member of the Sons of Confederate Veterans. And, we know from his piece that he also spoke with Mario Salas, a well-known civil rights icon and former City Councilperson.

(Mr. Salas has justly earned a reputation for advancing civil rights in our city. But, his opinion is not representative of the city. He used to routinely refer to former Mayor Ivy Taylor as “Uncle Tom.” Regarding two Confederate markers formerly in downtown, he castigated their supporters as “Confederate Nazis” defending “racist history.” He referred to former Councilperson Joe Krier as a “political; scumbag” when Mr. Krier appeared at a black church seeking support for Mayor Taylor. According to Wikipedia, Mr. Salas believes American history is best explained by the Foundation Myth – in which history consists of lies, distortions, omissions and half-truths. The Texas Revolution was the first war for slavery. Etc., etc. Mr. Brodesky has chosen an unrepresentative person to represent the views of persons opposed to Confederate memorials in San Antonio).

Mr. Brodesky’s piece relates details about Mr. Brewer’s Irish immigrants. The piece also mentions Ms. Schimpff’s views on the causes of the U.S. Civil War. It appears in considering this public policy debate, what to do with Confederate memorials, Mr. Brodesky strayed into more personal issues with proponents of Confederate memorials. He delved into their views on other topics.

Not so with Mario Salas. At least according to Brodesky’s piece, the journalist confined his inquiry to Mr. Salas’ prior experience with the memorial in Travis Park. He tested Schimpff and Brewer, but not Mr. Salas. There is nothing to indicate Mr. Brodesky asked Mr. Salas for his views on veteran memorials or for his prior experiences with other veteran memorials. He appears not to have asked Mr. Salas if he opposed other veteran memorials. He appears not to have asked Mr. Salas if he has opposed other women designed monuments. He appears not to have asked Mr. Salas if he has opposed other historical monuments. These sorts of questions would at least relate to veteran memorials. Discussing a person’s view on the causes of the Civil War or another person’s views on discrimination endured by Irish ancestors do not directly relate to Confederate memorials or to veteran monuments.

In the discrimination lawsuit business, we call that disparate treatment. He treated the proponents different than he treated the opponents. He scrutinized the views of the proponents, but gave a pass to the opponent.

In a discrimination lawsuit, Joe Manager might scrutinize the job performance of a Hispanic worker and watch his time sheets very closely. But, regarding the Caucasian worker, Joe Manager gives him a pass. He does not look at the Caucasian worker’s time sheets at all. That is disparate treatment. The employer treats workers differently even thought their situations are comparable. Mr. Brodesky appears to have betrayed his bias, despite his professed intent to consider fairly possible options for Confederate memorials.