As I have mentioned here before, I served 12 months in Iraq during the Iraq war. It was one of the most wonderful experience of my life – except when it was not! ….   Seriously, it was a searing and very positive sort of experience, overall. The big fear in the war was the IED’s, also known as roadside bombs. A large IED, and by the time I was there in 2005-2006, most IED’s were large – a large IED would obliterate a HMMWV. One sailor, a Navy SEAL, Dan Crenshaw, lost an eye to an IED. He probably lost more than that, but not that he can discuss.

I knew a few soldiers who drove through IED’s and lived to tell the tale. Even when you live, the IED does things to your brain. There is something about the concussion effect on the brain in a close confined space, lined with armor, that harms your brain. Doubtless, Dan Crenshaw suffers other, unseen effects. Mr. Crenshaw is running for Congress as a Republican in Texas.

So, when Pete Davidson makes a joke about his eye patch and comments, “I’m sorry, I know he lost his eye in war or whatever…..  whatever,” I do not get the joke. In fact, I find his comment pretty offensive. See CBS news report. I like SNL fine. But, jokes about losing body parts to an IED just are not funny to me.

I knew a soldier, a National Guardsman who went outside the wire often. It was his job to leave the relatively safe confines of the FOB several times a week. He drove through a couple of IED’s. He said the ringing in hs ears would last for days afterward. He wrote the name of all the soldiers his unit lost on his helmet. He wanted to remember them.

Pete Davidson lost his father in the 9/11 attack. He should understand “sacrifice,” we would think. Losing a dad who was a fire fighter is similar to sacrificing in a war zone.

A female comrade was a truck driver in Baghdad. They were told the terrorists were using kids to stop convoys. “Do not stop to help kids!” she was told. If she stops, the entire convoy has to stop. When you stop, you get attacked. She did not stop for kids. Years later, she was still dealing with deep PTSD because she might have run over a child.

A young soldier was in a Reserve unit. He thought he got out of the Reserves. He should have been, but was not processed out. About a year after he thought he was out of his Reserve unit, he received a phone call, “Chin, get over here in 30 minutes, or you will be court-martialed!” Chin did get there in 30 minutes, barefoot and without a shirt. Chin served his 12 months in Iraq and never complained.

Another major went home on his six month break. He found his wife was dating someone. That someone was reading bedtime stories to his children. That major came back after his break and did his second six months, knowing he would need a divorce lawyer when he got back home. Yet, that same major had to make major decisions, like who leads the convoy when his unit has to travel 2-3 hours in pitch black darkness with no headlights, or who mans the turret gun in his vehicle when the main guy is hurt. He has to focus, or people get hurt. There is no time for self-pity.

I am sure Pete Davidson faced some huge emotional issues in losing his father. You have to respect his experience. But, that does not give him space to minimize the service and sacrifice of others. None of these war experiences deserve a “whatever.” Neither does a sailor who lost his eye.

A non-compete clause for physicians requires adherence to certain criteria to be effective in Texas. Texas has a state law applicable to physician noncompete agreements.

  •  A physician noncompete must not impinge on a doctor’s access to a list of his/her patients upon his/her departure
  • The departing doctor must have access to the patients’ records when authorized by the patient
  • The physician must not be prevented from providing treatment to an acutely ill patient
  • The agreement must provide for a “reasonable” amount for a buy-out clause, or allow an arbitrator to make a decision on a reasonable amount

See Texas Business & Commerce Code Sec. 15.50 for additional information.

If you are a person with an impairment, should you volunteer information about your impairment during an interview? When I worked at Disability Rights of Texas, we advised persons with disabilities to not discuss their impairment until necessary. An employer cannot lawfully ask about an impairment until a job offer has been made. And even in that situation, the employer should simply state these are the job functions, can you perform them?

Dr. Daniel Ryan, author of the Job Search Handbook for Persons with Disabilities, agrees. He says resumes are often used to screen pout people. So, it is better to provide information about an impairment later in the application process. The problem may come if you have a large gap in your resume, due to some disability. In that case, says Dr. Ryan, you should have a filler – something that explains the gap. Dr. Ryan advises to use the resume to open the door and use the interview process to tell who you are. See Military Times report.

In civil lawsuits, we do these things known as “depositions.” We depose a witness with no judge present. The depositions usually occur in lawyer’s offices, but they can take place anywhere. The two warring sides meet up and the only brake on poor behavior are social norms. In a deposition in Las Vegas, a lawyer was deposing the person who had accused him of defamation. The lawyer, James Pengilly, was sued for defamation. Mr. Pengilly represented himself in the lawsuit. He was deposing the person who had filed the lawsuit. He used various vulgar terms, interrupted the witness and his attorney, made inappropriate statements and was generally aggressive.

Then, apparently not liking an answer by the witness, he move this hand near a pistol he wore on his belt and asked the witness if he was “ready for it.” The witness left the room. When he returned, Mr. Pengilly displayed his weapon to the witness and the opposing attorney. The two were frightened by this odd conduct and called the police.

The Nevada Supreme Court has suspended Mr. Pengilly. It said there was serious risk of harm to all who were present. Interviewed by the local newspaper, Mr. Pengilly said he always carried a weapon, because his father had worked at a law firm in San Fransisco where a gunman killed eight people. He has the pistol with him everyday, he explained. “I always carry a gun because I’m attorney and people don’t like me.” See ABA Bar Journal news report. I suppose they don’t…….

In your average lawsuit, this is not supposed to happen. Key witnesses are not supposed to suddenly recall something they have previously denied. Yet, that is what happened in the 2020 Census lawsuit. Wilbur Ross, the head of the Commerce department, now suddenly does recall conversations with then advisor Steve Bannon and Attorney General Jeff Sessions about the citizenship question. The Commerce department is responsible for the census in 2020. Secretary Ross added a question asking whether each person is a U.S. citizen. The plaintiffs in the lawsuit contend the question is designed to intimidate persons into not completing the census.

Earlier, when he testified before Congress, Secretary Ross denied any such conversation. The Department of Justice said it could neither confirm or deny involvement by AG Sessions. But, now he remembers. Secretary Ross says he recalls a phone call from Steve Bannon in March, 2017 asking him to speak with Kris Kobach, the Secretary of State of Kansas, and immigration hard-liner. Mr. Ross also now remembers speaking with AG Sessions in the Spring of 2017 and later. See Politico news report here.

The Secretary has been resisting attempts to take his deposition. This latest court pleading apparently seeks to prevent the depositions by admitting to some things the plaintiffs might ask. We can see why he would prefer not to remember these discussions with Mr. Bannon and Mr. Kobach. If this decision to ask about citizenship was based solely on best practices, why would he need to discuss the question with a political advisor like Steve Bannon?

Now, suddenly he remembers things he did not recall months ago. Typically, the memory works in just the opposite way. Usually, we recall things better when asked closer to the event. But, in Mr. Ross’ case, he remembers things better the further away he gets from the event. Uh huh. That’s the ticket…….

The Americans with Disabilities Act provides that a person is entitled to an accommodation if needed. But, sometimes the need for accommodation is not so apparent. Back injuries are notorious for being unpredictable. Russell Holt applied for a job with BNSF railway. He received a job offer conditional on passing a physical exam. Mr. Holt had a history of back surgery. His medical doctor and medical information supported a positive result. But, the employer’s doctor, Dr. Jarrard, refused to certify the applicant unless he received an MRI. Mr. Holt could not afford an MRI. The Equal Employment Opportunity Commission filed suit, alleging that requiring the job applicant to pay represented discrimination against a person with a disability. That lawsuit became EEOC v. BNSF Railway Co., No. 16-35447, 2018 WL 4100185 (9th Cir. 8/29/2018).

The applicant’s insurance company would not pay for the MRI, because he was not in any pain, at present. The MRI would then cost over $2500.

The Ninth Circuit Court of Appeals asked the question, who must pay for a medical exam. The court viewed the claim as a “regarded as” disabled claim, noting that Mr. Holt suffered from permanent disc damage. BNSF tried to argue that it did not consider him impaired. It just wanted to be “sure.” The court was not persuaded. The employer pointed to a case that was in effect overruled by the ADA Amendments Act. But, more importantly, in requesting more information about Mr. Holt’s back condition, BNSF had made an assumption that the applicant had a back condition which prevented him from performing the duties. That presumption would persist unless the applicant could overcome it. The employer, said the court, cannot hide behind the level of uncertainty about the precise nature of his back condition. A “perceived impairment” is consistent with the ADAAA’s broad coverage.

The court then addressed the requirement that the applicant pay for the physical exam. The court had no trouble in finding that requiring a job applicant to pay the cost of a physical exam is a condition of employment which is based on a perceived impairment. An employer can only impose a condition of the job if it imposes the same requirement as all applicants. BNSF, however, only imposed this requirement to pay for an MRI on the job applicant who was perceived as impaired. That condition amounts to a violation of the ADA. And, noted the court, if the employer was not required to pay for such tests, then the test would act as a screening criteria for persons with a disability. That would also amount to a violation of the ADA. The court affirmed summary judgment in favor of the plaintiff.

See the decision here.

Every discrimination case involves some amount of he said/she said. Most acts of discrimination occur behind closed doors. So, the testimony will be all about a swearing match. But, that does not mean the two stories cannot be confirmed or denied. In a discrimination case, we would want to know, for example, the circumstances behind a demotion or a firing. Does the story make sense? Do the surrounding details support or undermine the main story line?

It is the same with Judge Brett Kavanaugh and Dr. Christine Blasey Ford. The fact that no witness appears able or competent to confirm or deny their respective stories does not mean either story is false. The details become more important in such situations. Dr. Blasey Ford remembers very few details, other than the actual assault. She does recalls, however, that she saw Mark Judge at a nearby Safeway grocery store weeks after the incident. When we look at the book written by Mark Judge, we do indeed see that he worked at a Safeway in the Summer of 1982. Mark Judge wrote a book about his recovery from alcohol abuse. It goes into great detail about his excessive drinking in high school.  So, again, Dr. Blasey Ford’s story is confirmed in another respect, that a young Brett Kavanaugh drank a lot. And, in another important detail, Mark Judge mentions that he and his friend, “Bart O’Kavanaugh” partied hard in high school. See Rolling Stone news report here. “Bart” appears several times in Mark Judge’s book.

That is how a discrimination story is confirmed or denied, on the edges, around the periphery. It is circumstantial proof. But, sometimes circumstantial proof is more trustworthy than someone’s hazy memory.

In another case about immigrants, Pres. Trump’s racist remarks about immigrants were used as evidence against him. This judge, Edward Chen in San Fransisco, ruled in favor of the immigrants partly based on the President’s comments about Mexican immigrants, about Muslims and about immigrants from some African countries. Judge Chen ruled that to the extent the President had influence on the head of Homeland Security Department may have implemented certain restrictions due to the President’s wishes.

The lawsuit seeks to stop Homeland Security from ending provisions allowing immigrations from from El Salvador, Sudan, Nicaragua, and Haiti. Judge Chen found there was evidence that Pres. Trump harbors animus against non-white, non-European immigrants.  See CBS news report here.

I previously wrote about Pres. Trump’s racist comments here. It is exceedingly unwise to make comments like that. Some court decisions have chosen to overlook his comments, finding most of them were made during the campaign. But, in every lawsuit about immigration, those comments become key issues.

Those racist comments may help his election chances, but they undermine his immigration policies. But, I suppose he knows all this and has chosen to emphasize election viability.

 

College football players are the very definition of the “Big Man on Campus.” But, some football coaches do not want their players thinking they are so big. At Texas Christian University, a football player wanted to cut in line at the on-campus Chick-Fil-A, saying he was a football player. The student tweeted about it. Tasla said she and Lexee did not care and did not let him cut in line. “do we LOOOOK like we care???” she said. Tasla tweeted about it on a TCU twitter feed. Head Coach Gary Patterson saw the tweet and responded, “I agree! Who was it?” See  Ft. Worth Star Telegram report here.

Coach Patterson is known for being strict and for preferring his players conducting themselves accordingly. My guess is some player is running wide sprints after practice today. Probably a freshman player……..

English-only policies are acceptable if they are related to safety concerns. Otherwise, they are generally viewed by most courts as evidence of discrimination. English-only policies are also rare as hen’s teeth in San Antonio. Yet, according to a recently filed lawsuit, La Cantera imposed an English-only work rule for its workers. But, if the allegations are to be believed, the policy only applied to Spanish speakers. Farsi  speakers could speak in Farsi at work.

The Equal Employment Opportunity Commission filed suit against La Cantera alleging the resort imposed the policy and then fired some employees when they violated the new rule. One worker of 12 years was fired after he complained about the rule against speaking Spanish. One worker who spoke Spanish at an orientation meeting was escorted rom the room after he spoke Spanish.

One supervisor poked fun at a Spanish accent. One worker was fired with a notation in his personnel file that he spoke Spanish while using his personal cell phone.

In October, 2014, a worker went to Human Resources to complain and was told, “This is America, so speak English! What’s the problem?” When even HR does not see a problem with that sort of rule, then the employer has a serious problem. See the San Antonio Express News report here. And, imposing a rule like that in the San Antonio area suggests management is simply tone deaf.