Some judges are exceedingly difficult. Judge Lynn Hughes in Houston seems to consistently press folks’ buttons. Most recently, he has barred a female Assistant U.S. Attorney from his court. Tina Ansari has appeared in Judge Hughes’ court twice in the past few weeks. She was excused from the court by Judge Hughes both times right after she announced her name for the court reporter. Meaning right after saying hello, the judge told her to leave. The U.S. Attorney himself then appeared before Judge Hughes and insisted he must assign prosecutors, not the Judge. The Judge then insisted he had been slighted in an appeal regarding Judge Hughes a few years ago.

A few years ago, the U.S. Attorney appealed a ruling by the Judge and mentioned his remarks about women. In those remarks, the Judge had apparently said in the old days, they did not allow “girls” to practice law in the courtroom. His remark could have been interpreted in a couple of different ways. In any event, Judge Hughes took offense at how his remark was mentioned by the US Attorney’s Office. See Houston Chronicle report here.

These issues seem to follow Judge Hughes. Litigation is difficult enough. To be fair, in every lawsuit, we work with people. And, the judge is human, after all. … Judge Hughes, it seems, is more human than many of his peers.

The recent government shutdown can have a profound impact on federal workers. Research by management experts shows that the threat of imminent uncertainty, such as furlough or layoff, can be just as stressful as the furlough or layoff itself. A management professor at West Chester University, Anthony Wheeler, says psychologically, they are the same, the threat to one’s sense of security is the same. The more often the worker hears the threat, such as Presidential tweets, the greater the stress.

The studies looked at furloughs of state employees and layoffs of nurses before and after  hospital mergers. The studies found that high performers who had options would leave for other jobs elsewhere. And, they tend to leave quickly.

Another professor, Lisa Baranik at the University of Albany in New York, studied the 13 day shutdown in 2013. For up to five weeks after the shutdown ends, the effects lingered among the workers. Furloughs, she explained, are about much more than financial considerations. For most workers, the job is also a source of social interaction. They can discuss families and positive accomplishments at work. When they lose those bonds, they lose much of the positive effects of the job. Those positive effects take time to re-build.

Some folks suggest that the effect on federal workers is different, because they tend to have more of a sense of mission. They serve a cause, something larger than themselves. But, said one expert, this most recent shutdown and the threat of a second shutdown soon afterward makes this experience much more like layoffs in the private sector. See the Feb. 12, 201 edition of the San Antonio Express News for more information about these studies.

Most large employers have employee handbooks, those set of policies that explain things like vacation and sick leave, discipline, etc. Employers will often describe how they are “binding” and must be followed. But, legally, they are not binding, at all. They look thorough and professional and provide some comfort to employees in an uncertain world.

They are generally not binding on the employer. They are nothing more than a guideline.  If the employer included a phrase providing they are not contractual, then they will not be binding. And, most, perhaps all employers do include non-binding type language in the handbook.

You know, there is nothing good about racism. Of course. But, we seem to have become lynching parties whenever the least evidence of racism rears its ugly head. The new Mary Poppins movie has been attacked because it supposedly revives a racist portion of the famous Julie Andrews version. In the original movie, Mary Poppins dons a bit of black on her face when she dances with the chimney sweeps. I have always assumed that was soot from chimneys. Chimney sweeps, after all, probably accumulate a good bit of soot when sweeping out nineteenth century chimneys.

But, apparently I was wrong. A professor wrote an opinion piece, published by the New York Times which asserts that  Mary Poppins donned blackface. See USA Today article here. Those of us who regularly seek to prove actual racism in court cringe. The very start of showing racism requires a showing that there is no other explanation for the racist act other than racism. Yet, here is Ms. Poppins dancing with chimney sweeps. Obviously, she might have soot on her face due to chimneys, not due to mocking black persons.

Gov. Northam provides an additional example. Someone appeared in some vile pictures. But, until we know the rest of the story, we do not know if it was racism or not. It is not likely, but possible that someone was mocking a Klansman, not admiring a Klansman. It is possible, perhaps likely that Gov. Northam was donning blackface to imitate Michael Jackson in a dance contest. He says he did. Until we hear why the man was wearing the blackface, we do not know … why he was wearing blackface. I think some folks assume wearing blackface means mocking black persons. That does seem a likely explanation, but until we hear some more definitive proof, other explanations remain viable.

Liam Neeson has recently been accused of being racist when he recounted the story of his reaction when a close female friend was raped by a black man 40 years ago. The actor went roaming the streets for a week with a crowbar hoping to get into a fight with a “black bastard.” Neeson hoped, it seems, some evil black man would reveal himself by starting a fight. Good Morning America’s Robin Roberts suggested he was racist for asking his friend 40 years ago the man’s skin color. No, he responded, he asked other questions about the rapist, other than just his skin color. See CNN news report.

Racists are just everywhere, some folks believe. But, those apparent racist actions are the beginning of the conversation, not the end. We need more information. Like Northam, Poppins, and now Neeson, we must first ask for that alternative explanation for what otherwise appears to be a racist act.

That alternative explanation is the heart of every discrimination case. Will it hold water, or not? We need more information. Otherwise, we risk making it so easy to show discrimination in the public arena, that no one will believe actual racism in the court arena.

In 1700 to about 1750, the English authorities offered bounties for Catholic priests and bishops. Bishops were flat against the law. There could be no Catholic bishop in Ireland. Regarding priests, the law was that if they violated any of the many restrictions on priests, then they could be arrested and punished. The English authorities offered 25£ for priests and 50£ for a bishop. Those were princely sums in those days. Persons known as priest-hunters became well-known. The priest-hunter would have to travel to Dublin to collect his bounty. Some priest-hunters became well known.

Toward the end of the priest bounties, the Catholic parishioners reached a point where if they would see one of the well-known priest-hunters on the streets of Dublin, one would shout, “There’s a priest-hunter!” Instantly, a crowd would form. The hunter became the hunted. He had to sprint for his very life. Crowds of angry Catholics would spring after the vile priest hunter.

We have become that crowd on the streets of Dublin. Someone shouts, “There’s a racist!” and instantly, a crowd of pursuers forms. But, unlike the priest-hunters, the racist has not identified himself by collecting a bounty from the Dublin authorities. We think the person is a racist. We do not know the person is a racist.

I am glad racism has incurred the opprobrium it deserves. But, a racist is just not that apparent. Proving racism is complicated and it should probably remain complicated.

Defamation refers to uttering an untruthful statement about someone. “Libel” refers to written defamation. “Slander” refers to oral defamation. In the employment context, defamation has an extra hurdle. In Texas, to constitute defamation at work, the defamation must be made in the course and scope of employment. That is, the defamatory statement must be related to the speaker’s job. So long as the speaker makes the statement to persons with a duty or need to know, then the speaker will be protected by a qualified privilege. To qualify as workplace related defamation, the statement must be made as part of one’s job. If the statement is part of someone’s job, then it will be protected by a “qualified privilege.”

For example, if a manager makes a statement to someone in Human Resources about an employee, even if that statement is not truthful, then the qualified privilege would probably apply. The manager’s statement would be protected by this qualified privilege. If the manager makes a statement to a potential employer, then again that statement will be deemed to have been made in the course and scope of employment. So, the manager’s statement will be protected by the qualified privilege.

An employee can overcome the qualified privilege only be showing that the speaker acted with actual malice. Showing malice is a high burden. Malice refers to a person knowingly and deliberately causing harm. Malice is more than a mistake or a misunderstanding. To show malice, an employee would have to show the speaker knew or should have known the statement was not true and that the speaker sought to cause harm of some sort. Many employees have come to me seeking redress for defamation. Rarely have I seen sufficient evidence to make a case of malice.  It is quite difficult to get inside a person’s head and show what the manager was thinking. That sort of evidence is rare.

For example, an employer fires a person for alleged stealing. The employee did not steal.  But, how do we show malice? That is, how do we show the employer knew or should have known the theft allegations were not true? Most times, we cannot. How do we show the manager made the statement hoping to cause harm to the employee? Again, it is rare that an employee would have that sort of evidence.

Many of the normal principles of defamation law apply to the workplace: the statement must be clear and unambiguous. It cannot be capable of two different meanings, one of which might be non-defamatory. Truth is always an absolute defense to defamation. But, for most people charged wrongly with theft, there is little anyone can do about that sort of termination. Defamation lawsuits in the workplace are just too difficult.

Luis Cristain sustained an injury at work. His employer, Hunter Buildings and Manufacturing, fired him soon after he fell from scaffolding. Eight days later and a few days after filing a claim for worker’s compensation benefits, the employer moved him to a position where he would be supervised by Kevin Edmonds. Mr. Edmonds had already been scrutinizing Mr. Cristain’s performance. Now, he would have direct supervision.

The job was a new job, which did not otherwise exist before. Cristain went from being a general helper to a “Flow Monitor,” a job for which he had no training or experience. Immediately, Edmonds accused Cristain of taking unnecessary breaks. Three days later, the supervisor gave the worker a written warning for allegedly not picking up some paperwork. Mr. Edmonds investigated the scaffolding incident and found Cristain at fault.

Two weeks after the accident, Mr. Edmonds met with Mr. Cristain about the scaffolding fall and fired him. Mr. Edmonds claims Mr. Cristain became loud and profane at the meeting.

Mr. Cristain filed suit for worker’s compensation retaliation and age discrimination. The district court denied the motion for summary judgment. At trial, the court initially denied the defendant’s motion for judgment as a matter of law. But, when the employer renewed the motion for judgment as a matter of law, the court granted the motion in regard to the worker’s compensation claim. It let the age discrimination claim proceed to the jury. The jury found for the defendant on the age claim.

On appeal, the Fifth Circuit panel noted that proximity in time can support a showing of worker’s compensation retaliation. The Texas caselaw notes proximity of weeks or months will support a filing of retaliation. Here, Mr. Cristain was fired two weeks after his injury. That is a “stark temporal proximity,” said the appellate court. The employer did not follow its own internal procedures for disciplining a worker. It skipped steps. Supervisor Edmonds openly suggested Cristain did not truly suffer an injury. During trial, the employee presented evidence of other workers who submitted worker’s compensation claims. Of eleven such workers, two were fired within 30 days of the injury and four others were terminated within 90 days of their injuries. Too, the employer’s explanation for the termination shifted over time. These facts amounted to “considerable” evidence supporting his claim, said the court.

The panel reversed the granting of the motion for judgment as a matter of law in regard to worker’s compensation reprisal claim. The Court then ordered a new trial regarding that claim. See the opinion in Cristain v. Hunter Building and Manufacturing, LP, No. 17-20667 (5th Cir. 11/14/2018) here.

One of the more difficult problems for employers is harassment by unknown co-workers. The law was designed for harassment by supervisors. It functions not so well when the harassment is caused by co-workers. In Tolliver v. YRC, Inc., No. 17-10294, 2018 US LEXIS 17806 (5th Cir. 6/28/2018), African-American workers were harassed in various ways for over 15 years. The black workers encountered racist graffiti, nooses, and other incidents. The district court refused to allow evidence of incidents which occurred beyond the 300 day limitations period. So, the court only addressed two incidents, a noose left in YRC facilities and racist graffiti left on a YRC truck. It was not known who committed these acts.

The court found these two incidents were not sufficiently pervasive or severe to amount to a hostile work environment. The court noted that the plaintiffs did not contend that the two incidents were directed toward them. And, said the court, “for the most part,” the plaintiffs learned of the two incidents second-hand.

But, even if the two incidents were sufficiently severe or pervasive, management took prompt and remedial action. The company posted a $25,000 reward for information about the incidents. It interviewed hundreds of employees. It hired security guards, and it contacted law enforcement. The employer also provided weekly reminders about its non-discrimination policies. The employer did not discipline anyone, because the perpetrators were not found.

As the court added, Title VII is not a behavior code. It prohibits discrimination. Essentially the court is saying Title VII does not require the employer to deeply investigate acts of apparent racism. Most courts require reasonably swift action, and not much more than asking employees if they know who committed the acts. This decision is in line with those prior authorities. The Fifth Circuit affirmed the grant of summary judgment. See the decision here.

Well, the Tarrant County (Ft. Worth) Republican party voted to keep Dr. Shafi in his position as Vice-Chairman of the party. By a vote of 139-49, the precinct chairpersons voted to keep the doctor in his position. I previously wrote about this vote here. A lady named Dorrie O’Brien and others had pushed the idea that because he was Moslem, he had some connection to jihadists. That notion would be humorous if it was not so serious. See CNN news report here.

Dr. Shahid Shafi is finding much support among the Republican party in his quest to remain vice-chairman of the Tarrant County Republican Party. Gov. Greg Abbott and Sen. Ted Cruz have both issue statements supporting the doctor. The vote to remove Dr. Shafi is set for next week. I previously rote about this discriminatory attempt to remove the doctor here. See CNN report about this attempted removal here.

That really is the silliest thing, thinking just because he is Moslem that he must be a jihadist. I fought jihadists in Iraq. Trust me, Dr. Shafi is not a jihadi person.

The battle over whether individual arbitration agreements can prevent class actions was settled with the decision in Epic Systems v. Lewis, 138 S.Ct. 1612 (2018). That decision found that workers who signed individual arbitration agreements with his/her employer could not later file suit as a class or collective action. Employers viewed this decision favorably. But, now, maybe not so much.

See what has happened with what was intended to be a collective action against Chipotle. In 2014, Chipotle started requiring workers to sign arbitration agreements. Some 2800 Chipotle workers signed mandatory arbitration agreements. They tried to file a collective action in Denver based U.S. district court. Chipotle invoked the individual arbitration agreements. The judge agreed the claims should be heard in arbitration. But, then Chipotle tried to bar the plaintiff law firm from representing the individual plaintiffs in arbitration. The employer’s rationale was that since the workers received notices of a collective action from the law firm, that law firm should not represent them. In some way, argued the Chioptle lawyers, the plaintiff law firm had compromised the interests of the potential plaintiffs. The court quickly dispensed with that specious argument. See Reuters news report.

The defense lawyers warned the judge that there may be thousands of follow-on arbitrations. The lawyers suggested the plaintiff law firm had tried to leverage thousands of arbitrations to protect its lawsuit. But, replied, the judge, “Absent more concrete evidence of legal incompetence or evidence demonstrating a clear pattern of abuse of the judicial process, I will not interfere with the arbitration plaintiffs’ right to choice of counsel.” In other words, the judge said the employees can pick the counsel they desire.

Chipotle incurs a fee of $1100 per employee, just to file the arbitration. JAMS is providing the arbitration services and their rules require the employer to pay the fees. That ruling in Denver federal court occurred in April, 2018.

Now, in December, 2018 some 150 of those workers dropped their attempted collective action and re-filed individual arbitration claims. So far, Chipotle has refused to pay much of those fees. The plaintiff law firm notes the individual claims amount to no more than about $1,000 per worker. Ordinarily, the plaintiff lawyers would not be interested in pursuing those claims. But, since they worked up much of the evidence for what they thought would be a collective action, they have pursued these 150 claims. See Huffington post here.

And look what happened to a Florida paving contractor in 2018. There were three claimants in that arbitration. The contractor was eventually hit with a bill for $100,000 in arbitral fees. Those three former employees also tried to sue in federal court first. The employer refused to pay the fees and tried to go back to federal court. Be careful what you ask for, because you just might get it.