A no-Spanish rule is very problematic for any employer, but especially so in San Antonio. Yet, that is the rule allegedly imposed by the La Cantera resort. So, it is not surprising that La Cantera is settling the EEOC lawsuit against it for $2.6 million. La Cantera claims it did not have a no-Spanish policy. But, the evidence is substantial. If the evidence was weak, it is certain La Cantera would not settle for such a large amount. I previously wrote about that lawsuit here.

The lawsuit alleged discrimination based on speaking Spanish. The lawsuit alleged retaliation for opposing that policy. Destination Hotels and Resorts formerly operated La Cantera. Destination was the named defendant. Twenty-five plaintiff employees will share in the settlement. According to the lawsuit, Destination imposed the no Spanish policy soon after it assumed control of the resort in 2013. One employee said he and his co-workers were disciplined as often as every week for speaking Spanish.

One employee, Sergio Vitela, was fired after he complained about the policy. He had been working at the resort for 12 years when he was fired. Yes, settling this lawsuit was a wise move by Destination. See the San Antonio Express News report here.

 

At an en banc hearing before the Second Circuit Court of Appeals, Trump lawyer William Consovoy said if the President shot someone on Fifth Avenue in New York City, he would be immune from criminal investigation. I was not there, but am sure Judge Denny Chin was not impressed by that assertion. There is limited law on Presidential limits, but there is substantial caselaw providing that there are indeed limits on Presidential authority.

As early as the prosecution of Aaron Burr in 1807, Justice John Marshall found that a subpoena duces tecum (a subpoena requesting production of documents) could indeed be served on the President. In 1952, Pres. Truman reacted to an imminent strike by steel workers by seizing the steel companies. The Supreme Court found that act amounted to an over-reach by the President. The court found Pres. Truman was trying to make law through an executive order.

In 1974, the Supreme Court ruled that Pres. Nixon had to obey a subpoena for the infamous Watergate tapes. In 1997, the Supreme Court found that Pres. Clinton must sit for a deposition in a civil lawsuit. See ABA Legal Fact Check here.

Lawyer Consovoy was surely aware of this precedent when he appeared in front of the Second Circuit. And, he knew the Second Circuit judges would also be aware of that precedent. It appears he was trying to please his client, at the expense of losing his credibility with the court.

Many veterans have returned from the two wars with some degree of PTSD. I myself have some low level PTSD in limited situations. But, that does not mean we cannot perform our jobs. In Alviar v. Macy’s Inc., No. 17-1130 (5th Cir. 8/15/2019), the Fifth Circuit reversed an award of summary judgment. Plaintiff Alviar served three tours in Iraq and Afghanistan as an Infantryman. At Macy’s, he was assigned a new boss, John Lillard. Mr. Lillard spoke with the employee about his lack of emotion. The Asset Protection Manager explained that his medication for PTSD resulted in a lack of visible emotion. After that conversation, Mr. Lilliard asked Mr. Alviar if he could handle the store in Irving. He asked Mr. Alviar five times whether he was able to handle the demands of the Irving store. Mr. Alviar testified that his relationship with Mr. Lillard took a bad turn after he disclosed his PTSD diagnosis.

Those comments by the District Manger of Asset Protection should have been enough to prevent summary judgment. Yet, the Northern District of Texas granted the employer’s motion for summary judgment. On appeal, Macy’s said the employee was fired because his performance was deficient. The appellate court noted the comments by Mr.Lillard might qualify as direct evidence of discriminatory bias. But, noting the final decision was made at higher levels than Mr. Lillard, the Court found that under the burden shifting frame work, the plaintiff met his burden.

The Fifth Circuit panel found the remarks by Mr. Lillard were sufficient basis on which a jury could infer the District Asset Protection Manager was biased against persons with PTSD. One of his questions to the former soldier was whether with his “medical disability,” he could “even handle” the Irving store. The evidence showed that Lillard was the central source of information for the higher level managers who decided to terminate Mr. Alviar. Mr. Lillard was involved in the decision to terminate Alviar throughout the process. A reasonable jury could conclude that Lillard’s concern about Mr. Alviar’s PTSD was a leading basis for the termination. See the decision here.

It is unfortunate that folks still stereotype veterans with PTSD. Those employers are losing some wonderful talent.

I served in the Iraq war 2005 to 2006. My job was to approve (or not) reconstruction projects. My post was at division level. We had some $90 million dollars each fiscal year to spend on projects inside Iraq. There were various civil affairs constraints on how to spend that money. It was my job to make sure these reconstruction projects adhered to civil affairs doctrine. I go outside the wire and  visit each of our four brigades and look at one project. Each month, I visited a Brigade headquarters to go look at one project.

In Mosul, the Civl Affairs Team had to rely on an Infantry platoon for bodies sufficient to man a patrol. As we went out to look at one project, the Infantry guys were also going to deliver school supplies to a nearby school. We ended up at an all-girls school. The teachers and all the students were female. But, this being Iraq, there was one adult male to act as chaperone. His only job, as we understood it later, was to help with small jobs and to chaperone the women when they encounter men.

The chaperone was a pain in the neck. There were some dozen officers and Non-Commissioned Officers taking school supplies to various classrooms. Going here and going there. The small school was filled with Americans in uniform and helmet handing out boxes of school supplies. The male chaperone followed every single person like a puppy dog. Later, we learned the reason. He wanted his share of the loot. To us, it was just school supplies. But, to him, part of his pay was some portion of whatever the school received.

We, as the Army guys, knew none of this during the visit. Only in leaving did the interpreter explain to us what had occurred. As the visit was concluding and we were saying good bye to these wonderful teachers and sweet, polite kids, the chaperone asked the interpreter for his share.

One thing about a counter-insurgency, you do not make unnecessary enemies. We had enough people wanting to kill us. We did not need more. The Interpreter knew this. He had worked with this Infantry Major many times before. The interpreter did mot want to offend the chaperone, but neither did he want to give him anything. Not to mention all the school supplies were handed out, already. Without consulting with the Infantry major in charge, the interpreter knew what to do. He told the chaperone he would get something when we come back. There would be no return trip. The interpreter knew that. But, he found a polite way to say no.

In Iraq and Afghanistan, no one messed with our interpreters. In countless ways, they saved many U.S. Army lives. That experience makes it hard to watch Pres. Trump say the Kurds are not worth our support and that we owe them nothing. I did not work with the Syrian Kurds, but  did work indirectly with Kurds in northern Iraq. The Iraqi Kurds were wonderful to work with. They had many Western values. I am very doubtful the Syrian Kurds are not worth our support. I expect they were, as many Special Forces soldiers have said, exceptional allies who deserve serve our support.

In what industry are both white collar and blue collar managers and leaders trained each time they are promoted? In the military. In the military services, we have to lead and manage persons from all sorts of backgrounds. So, for decades, the U.S. military has required attendance and graduation from various schools for promotion to the next rank. As a young lieutenant in the Infantry Officer Basic Course, we role played leaders and rank and file soldiers in various counseling situations. Upon graduation, we were not licensed counselors, but we knew enough to listen to our soldiers and understand how to help them find solutions to problems, such as divorce, child rearing and substance abuse. As we often say in the Army, “In the Army, we are in the people business.” That is our way of explaining that we focus on our most important inventory, the men and women who make up our forces.

Yet, a recent study by the Duke University Fuqua School of Business shows many employers in the U.S. see military veterans as a poor fit for emotional social jobs. In one study, conducted in the restaurant industry, employers rated military veterans as much more suitable for low feeling positions, such as dish washers and prep cooks than for servers. See Army Times report here.

That is ironic since every Sergeant has graduated from at least one NCO leadership school which typically last 4-8 weeks, in addition to the experience of leading and managing men and women in garrison and in combat.

I could write a book on the combat experience. But, I can say that there is no greater pressure cooker than a combat zone. In a war zone, every decision, no matter how trivial, presents life or death consequences. Stress is never greater. Leadership ability, including the simple ability to work well with others, is at a premium. I wondered, when I was in Iraq sometimes, about the Morale, Welfare, Recreation Centers. At the MWR center, a soldier could check out a movie or read a book. Would it set someone off if their favorite move was not available? In a war zone, everyone needs to be performing his/her job at top efficiency.

U.S. employers clearly do not appreciate the sort of training we have had in the military. In my lawsuits, I often encounter businesses that provide no training for its mid-level managers. None. I find that simply astounding. Don’t you know that a young Sergeant with a couple of tours in Iraq could handle a busy night at a popular restaurant?

The President’s counsel, Pat Cipollone, sent a letter to the House of Representatives objecting to the impeachment inquiry. It is a five page letter which recounts the many perceived problems with the House investigation. It is signed by Pat Cipollone as counsel to Pres. Trump. But, it appears to have also been edited heavily by the client. In every lawsuit, the client wants to write a letter like this. It contains over-the-top language like this: “Given that your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections, the Executive Branch cannot be expected to participate in it.” See The White House letter here.

The letter does point to perceived problems and points to caselaw for authority. For example, the letter points to the decision in Watkins v. United States, 354 US 178, 188 (1957), a decision by Earl Warren regarding the House Committee on Un-American Activities. It is a very well-written decision which traces the history of Congressional contempt to Parliaments during  the anti-Catholic crusades in 1700 England. The letter insists the House conform to recognized standards of due process.

What was the Watkins decision about? The case concerned a witness, Mr. Watkins, who appeared in front of the Un-American Committee. The witness refused to answer certain questions. The Supreme Court decision found the refusal to answer lacked adequate basis for contempt. The witness refused to answer questions about any persons who had formerly belonged to the Communist party, but who had left the party. He was willing to answer and did answer questions about his involvement with the Communist party. He also answered questions about persons who were still involved with the Communist party. But, he refused to answer questions about persons who had once been party members, but had quit. For that refusal, the committee and the House referred him to the U.S. Attorney for prosecution for contempt of Congress. In Chief  Justice Warren’s decision, the Supreme Court found that contempt failed to conform to due process requirements. See the Watkins decision here.

So, yes, the Watkins decision requires Congressional investigations to conform to the Due Process clause of the Fifth Amendment. The decision mentions these particular requirement for due process: “Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged.” Watkins, 354 US at 188. Mr. Cipollone’s letter correctly nots the decision recounts the due process requirements of House investigations.

But, the problem here is that the White House has flat refused to allow witnesses to appear. It is difficult to be compelled to give testimony against oneself if one is not actually testifying. So, claiming your witnesses are being abused rings hollow when your witnesses do not actually appear.

Mr. Cipollone’s letter also notes that an accused has the right to call his/her own witnesses, present evidence and respond to one’s accuser. That is indeed fundamental due process. But, the problem is that so far, this is still just an investigation. There is no right to present evidence to an investigator or to an investigative body. Presentation of evidence and witnesses occurs at the trial stage, not during the investigatory stage. Mr. Cipollone, an experienced trial lawyer, doubtless knows this.

As simple legal reasoning, Mr. Cipollone’s letter makes no sense. And, that is what happens when a lawyer allows the client to edit a letter.

The Intelligence Community Whistleblower Protection Act of 1998 was passed to cover persons in the intelligence community, as the name suggests.  It applies to the 17 various federal intelligence agencies.  It defines an “urgent” concern as one that represents a “serious or flagrant problem, abuse, violation of law or executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information. It does not apply to differenses of opnion about policy matters. See Congressional Research Service information paper here. The Act is codified in three statutes: 5 U.S.C. App. §8H, which applies to Inspector Generals (IGs) for Intelligence Community elements generally; 50 U.S.C. §3517 which applies to the CIA IG; and 50 U.S.C. §3033 which is specific to the Intelligence Community IG.

The Ukraine whistleblower submitted a complaint which the IG found to be urgent and credible. Certainly, the President’s actions in attempting to trade a personal favor for military aid violates various national security laws and regulations. As a mid-level employee, if he were a mid-level manager, he would lose his security clearance for that violation.

The Act also applies to acts of reprisal or threats of reprisal. The Act specifically provides that the Inspector General of the Intelligence Community may not disclose the identity of a whistleblower without that person’s consent. 50 U.S.C. Sec. 3033(g)(3)(A). This is a protection unique among the various federal whistleblower statutes.

The President attacks the report as based on second-hand information. That is not accurate. The report is based on first-hand and second-hand information. Even so, no whistleblower statute, and there are some 20 different federal whistleblower statutes, requires first-hand information. As Sen. Chuck Grassley said, if a whistleblower complaint is based on second-hand information, then more leg work is required and the whistleblower needs to be sure of his/her information. But, there is no specific statutory requirement that a whistleblower complaint be based on first-hand information.

Pres. Trump has again insisted he should know the identity of the Ukraine whistleblower. He says he wants to talk to him and ask questions. See The Hill report. The President says the whistleblower is a “fraud” who was given false information by others. Certainly, these remarks constitute evidence of an intention to take reprisal against the whistleblower. This is the reaction of most employers to a whistleblower report. Aren’t all employers of a whistleblower convinced their actions were nice and warm, as the President claims? I have yet to meet a whistleblower who did not endure vicious blowback for even questioning his/her employer’s actions.

We can, it seems, count on the President to reflect our worse natures……..

There are various whistle blower statutes that apply to federal and state employees. The federal intelligence community has a unique statute. A whsitle blower in the intelligence community can make an anonymous complaint. A whistle blower in the intelligence community has complaiend that Pres. Trump has committed certain acts. Those acts, if committed by an average mid-level manager type federal worker would have resulted in the loss of his security clearance. One of the requirements in the security clearance world is that if you see a person committing some act which imperils his security clearance, you as a co-worker must report that breach. That person who has committed some unlawful act becomes subject to manipulation by a hostile government. The President, in offering a quid pro quo to Mr. Zelensky, engaged in behavior which is unlawful or potentially unlawful. A hostile foreign power could use that quid pro quo against the President. If he were a mid-level manager, he would surely lose his security clearance for that act.

In the Army, it occurs rarely, but it does occur that an Intelligence officer or NCO will report some perceived breach of security protocol. The whistle blower who has complained about Pres. Trump has done what any person with a security clearance is required to do.

But, the President does not like that. He has suggested publicly that the whistle blower is “like a spy” and should suffer the consequences of a spy. He has threatened “big consequences” to any person who provided information to the whistle blower. That threat alone violates the pertinent whistle blower statute.

The President has also insisted he has a right to confront his accuser. No, he does not. The statute that applies to the federal intelligence community was passed soon after the Watergate scandal in the 1970’s. The point of the statute is to provide a way for members of the intelligence community to voice concerns without exposing himself to reprisal.

David Gergen, counselor to Presidents Nixon, Reagan and Clinton, has pointed out that Pres. Trump has placed the well-being of the whistle blower in some danger. Some crazy person could over-react to Pres. Trump’s threats. Too, as Mr. Gergen mentions, it is just nuts to spout off like this. See CNN news report here.

Regardless of the President’s instincts, we are a nation of laws. The law currently in place prevents him from confronting his accuser, for the near-term.  . . . . So long as we remain a nation of laws.

Even on Pres. Nixon’s worst day, he did not threaten Alexander Butterfield, who revealed the existence of the taping system in the Oval Office, or John Dean, who revealed many illegal activities by the Nixon administration. Let us hope we remain a nation of laws.

The Western District Court recently awarded attorney’s fees and costs of court in the Johnson v. Southwest Research Institute, No. 15-CV-297, matter. I previously wrote about that trial here and here. The judge awarded $535,609 in attorney’s fees and costs of the lawsuit. Included in that attorney fee figure are attorney fees ranging from $125 to $585 per hour, for five lawyers. As I mentioned perviously, the jury already awarded $550,914 in lost pay and benefits and emotional suffering type damages. The Judge previously awarded $45,000 in lost pay in the future, and $74,000 in past interest.

Remarkably, the defense again tried to re-argue the evidence at trial. The judge, however, pointed to substantial evidence supporting the plaintiff’s claims. The judge seemed annoyed that the Defendant was once again re-urging arguments already rejected three times previously.

And, all this started because one woman complained about discrimination. All the employer had to do was listen to her complaint. But, one has to add that during the litigation, SWRI fussed about things it did not need to oppose. We have to wonder how much the trial and the judge were affected by needless fussing over security clearances.

The U.S. Congress passed the Uniform Services Employment and Reemployment Rights Act in 1994. Congress based the act on the “necessary and proper” clause of Article I, Section 8 of the U.S. Constitution. That means, said the Corpus Christi court of appeals, that the act did not waive sovereign immunity of the states. See Texas Dept. of Public Safety v. Torres, No. 17-000659 (Tex.App. Corpus Christi 11/20/2018). All governments, state and federal, start with sovereign immunity. Governments start from a default position that they cannot be sued. Over the couple hundred years of our existence, various state and federal laws have been passed which expressly waive sovereign immunity. That is, those statutes expressly provided the government could be sued in certain circumstances. See the decision by the Corpus Christi court of appeals here.

But, according to various courts, including the Corpus Christi court of appeals, the USERRA did not waive state law immunity. That means Leroy Torres’ lawsuit was dismissed before the merits of his lawsuit could even be addressed. See the San Antonio Express News report about his appeal here. Mr. Torres suffered discrimination by his employer, the Department of Public Safety, when he returned from a deployment to Iraq. He lived near the burn pits and his health suffered. Upon his return, he asked for an accommodation. DPS told him no. He was forced to resign early, before he could qualify for retirement. He filed suit in state court under the USERRA. That suit was dismissed.

The Attorney General’s Office defended the lawsuit. The AG filed a motion to dismiss. Ken Paxton’s office did not have to file that motion. On appeal, the AG has been arguing that there is a state law equivalent statute. Chap. 437 of the Texas Government Code allows members of the military to sue for discrimination based on membership in the military. But, the time frame for filing that suit is very brief, only 60 days. Too, the state law is simply not known, at all. I practice employment law and have served in the military for 28 years. I have never heard of this state law before. Some states, such as Tennessee, have passed laws which expressly state they are waiving state law immunity for the USERRA act. If Texas wants to support veterans, it should do the same.

Sixty days is remarkably short. Victims of discrimination often suffer from delibitating depression that prevents a quick response. It is not realistic to expect many victims of discrimination to file suit within 60 days of a termination.

Mr. Torres has appealed his case to the Texas Supreme Court. But, the Texas Supreme Court is notoriously anti-plaintiff. At least one plaintiff has already sought a writ of certiorari from the U.S. Supreme Court regarding this issue and was turned down. Some ten percent of state workers serve in the Reserve forces, and another ten percent serve in local governments. I know from my own experience in the Reserves and National Guard that a very large percentage of Reservists and Guardsmen are employees of state and local governments. These court rulings by the Corpus Christi court of appeals and others virtually guarantee that state and local government employees will have no recourse when they suffer discrimination. Texas should do what Tennessee did, pass a law that expressly waives state immunity for the USERRA act.

And, really, the AG does not need to file motions to dismiss based on sovereign immunity. Many persons say they support veterans. Some of those folks actually mean it.