This past week, the US Supreme Court addressed a nagging question, how far does the ministerial exception to Title VII go? The problem occurs in religious schools. A teacher may teach a wide range of subjects, with only 10% of her time devoted to teaching religious subjects. Is that teacher subject to the minister exception of Title VII? In Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (7/8/2020), the U.S. Supreme Court found that two fifth grade teachers were subject to the religious exception of Title VII. Therefore, they could not bring a suit for age discrimination. Both teachers taught religion as part of their duties. Both attended worship with their students. Both prayed with their students. And, both were required to model certain behavior for their students.

The Supreme Court found the Ninth Circuit erred in focusing on a rigid formula, such as the lack of clerical job titles and the lack of formal religious training for both women. The court held it did not matter if the teacher espoused the religion of the school. Too, said the higher court, the Ninth Circuit placed too much weight on whether the teachers simply taught from a book or applied “close” spiritual guidance to their students.

These two teachers were the only teachers for their fifth grade classes. That meant they taught every class for those students. The case might have turned out differently if the class was at a higher grade level and the teachers did not teach religion, at all.

See the decision here.

Be Safe.

In Hill v. Kerr County, No. 18-CV-00897 (W.D. Tex.), we see a classic he-said-she-said case. Plaintiff, Beverly Hill got into a fracas with her husband at home. Ms. Hill and her husband, Tommy Hill, both worked for the Kerr County Sheriff’s Department. Ms. Hill submitted a crime report about the altercation with her husband. The altercation involved alleged assault by Tommy Hill. The Sheriff, Rusty Heirholzer, conducted the investigation.

The Sheriff’s Department had two policies, one prohibiting dating between employees and one prohibiting lying to supervisors. The Sheriff asked Beverly if she had an affair with another deputy. She said yes, but they slept together just once and it was while she was separated from her husband, Tommy. The deputy involved agreed with this story, at first. But, later the deputy said the affair lasted much longer. Allegations then arose that Beverly had affairs with two other deputies, which Beverly denied. But, the second deputy submitted a statement to Sheriff Heirholzer admitting to a brief affair. He said Tommy was okay with it, because Tommy had had his own affair.

In the end, Sheriff Heirholzer fired Beverly for lying to him. The second deputy with whom she admitted to a brief affair, was also fired. Nothing happened to Tommy. At his deposition, Sheriff Heirholzer said he had asked Tommy if he had an affair with someone. The Sheriff said Tommy denied any affairs. Tommy, however, testified in his depositions that Sheriff Heirholzer never asked him about any affairs. This evidence suggests the Sheriff asked Beverly about other affairs, but did not ask Tommy.

Judge Rodriguez noticed the disparity in testimony. Tommy, still employed by the sheriff, denied the Sheriff had asked him about any affairs. Yet, the Sheriff said he did ask Tommy. Of course, at this point in the lawsuit, it was in the Sheriff’s interest to lie. He would want to show he had treated both Beverly and Tommy the same. Credit the judge for picking up on a small but important fact. Tommy had every reason to lie to avoid reprisal. So, his testimony appears to be truthful. Even if it was not truthful, the facts are so muddled that summary judgment was not appropriate. The court denied Defendant’s motion for summary judgment. See the decision here.

The court noted in a footnote that the Defense attorney went to “great lengths” asking Ms. Hill about her sexual history after her termination. Those relationships were not relevant, so the Court disregarded them. But, in mentioning those “great lengths,” the court appeared to disapprove of that line of questioning. Let us all keep in mind that good behavior counts in lawsuits.

Be Safe.

 

SPC Vincent Ibarria, 21 years old, died in Afghanistan recently. SPC Ibarria was assigned to the 10th Mountain Division. He died in a vehicle rollover accident. SPC Ibarria joined the Army in 2017. He was described as a soldier who always volunteered. He believed firmly in the motto, “Choose the harder right over the easier wrong.”

He liked soccer and track and field. His buddies said he also liked boxing and golf. SPC Ibarria’s awards include the National Defense Service Medal, the Global War on Terrorism Service Medal, the Afghanistan Campaign Medal with Campaign Star, the Army Achievement Medal and the Army Service Ribbon. See San Antonio Express News report here.

Cary Clack, usually a careful and thoughtful writer, penned a piece recently regarding Confederate memorials. His piece betrays a superficial understanding of Confederate memorials. See his opinion piece here in the San Antonio Express News. Mr.  Clack argues that the Civil War was primarily caused by slavery, as though someone disagrees with him. Not even Pres. Trump has claimed the civil war was not about slavery.

The Confederate memorials were largely erected by women. According to Kelly McMichaels’ book, “Sacred Memories,” of the 65 Confederate memorials which used to stand in Texas, about 50 were erected by women. A couple of those were started by male veterans of the war, but they could not get it done. The women had to step in and raise the necessary funds. Why were women so successful at a project the men could not accomplish? Dr. McMichaels suggests women were the “rememberers.” They were the ones most likely to safeguard the small things of a lost loved one.

The money for these memorials was raised ten, twenty-five, and fifty cents at a time over years. Mr. Clack engages in stereotypes to suggest the memorials were erected in the early 1900’s when Jim Crow laws were becoming common. Mr. Clack essentially suggests all white folks were trying to diminish the black man. So, these statues must share the same motive. Mr. Clack does not mention that this was also a time when many Civil War veterans on both sides were dying. The union veterans erected their memorials about the same time. Both sides generally purchased their memorials and statues from the same sources.

Neither does Mr. Clack mention that in a time when women could not work, could not vote, and often could not own property, they were raising the equivalent of hundreds of thousands of dollars in today’s money.

These memorials sometimes depict generals, sometimes the common soldier. Yet, they always call on the viewer to recall those who fell. This veteran cannot forget those who fell in any war. Mr. Clack looks at the statues with no notice of the message at the foot of the statue.

During the Civil War, armies did not collect and bury the dead. There were no funerals back home. There were no honor guarded processions. There were no gifts of a flag to the grieving family. After the war, hundreds of families, North and South, wandered these battle fields looking for lost loved ones. One historian estimated there were 35,000 dead, lying unburied, unmarked between Baton Rouge and Vicksburg. That was just one small corner of the war.

Mr. Clack conflates respect for those who fell with respect for secession. He suggests the cause was unjust because contemporary documents pointed to slavery. I deployed to Iraq in 2005. I did not consult the Congressional Resolution that authorized the war. It is very unlikely any Confederate soldier reviewed Alexander Stephens’ “Cornerstone Speech” before enlisting. Soldiers don’t do that. They just serve.

Mr. Clack never addresses the words which actually appear on every memorial: “Lest we forget.”

Mr. Clack ends his piece by asking where is the statue that honors his enslaved ancestor? Indeed. Where are the memorials to our country’s enslaved ancestors? Why remove Confederate memorials, when Mr. Clack could just as easily raise the funds for a memorial to his enslaved ancestor? Removal is relatively easy. Erecting is much the harder task. Those Southern women who could not vote and could not work, however, showed it can be done.

What happens when a large employer first learns it is being sued for discrimination? How does that first phone call with counsel go? In most lawsuits, we never know. But, we get some clues in the case of Brian Collister v. KXAN. Mr. Collister, an investigative reporter who has worked in various Texas cities, was fired in early 2018 by the Austin news station, KXAN. Before he was fired, he filed a complaint with the EEOC. After filing with the EEOC, Mr. Collister was called to his supervisor’s office. While waiting outside the office, he heard loud voices, including his manager, talking with attorney Bill Davis in Dallas on speaker phone. The sound, said Mr. Collister, was as loud as a Led Zeppelin concert. He clearly heard Mr. Davis instructing KXAN management how to fire Mr. Collister in a way that would improve their case.

At the point of this conversation, Mr. Collister had already filed a complaint of discrimination with the EEOC. He apparently claimed discrimination based on his disability, ADHD. He had also by the time of this conversation already filed a claim for arbitration with AAA.

Mr. Collister says he heard Mr. Davis clearly say KXAN needs to create a narrative of poor performance:

  • “What you’re looking for are performance issues with no connection to ADHD, this is our biggest opportunity.”
  • “Yeah he has the right to bring a claim, but we have to build better proof.”

The lawyer’s advice suggests the employer had some interest in creating evidence. Or, something. The testimony also suggests that  the employer was starting to scrutinize Mr. Collister’s performance – after h submitted a complaint to the EEOC.

In any event, Mr. Collister lost his claim at arbitration. He then filed suit in U.S. district court representing himself. Mr. Collsiter sought to disqualify Mr. Davis from representing KXAN in that lawsuit. The federal court dismissed his lawsuit, citing a lack of jurisdiction. That makes sense. He had already received a ruling in arbitration. See Cause No. 19-CV-00350. Regarding the motion to disqualify, if Mr. Davis was a witness, he should indeed be disqualified. A lawyer cannot represent a party to a lawsuit if that lawyer is a witness. Management did indeed take some disciplinary action against Mr. Collister after the conversation with Mr. Davis. But, the court did not address Mr. Collister’s motion.

Collister has now re-filed his lawsuit in Travis County district court, where he has again sought to disqualify Mr. Davis. See Collister v. KXAN, Cause No. D-1-GN-19-001138. He claims to have an audio recording of Mr. Davis’ conversation that day outside his manager’s office. And, Mr. Davis continuers to represent KXAN to this day.

In the Iraq war, like all wars, we lost a few buddies. Each death carries with it these tremendous ripple effects. For every death, 5, 6 soldiers or more say, “If I had been there SGT Saenz would still be with us. I should have gone out on that patrol.” The guilt, as irrational as it might be, can be devastating. Multiply those ripple effects some 20 or 30 times and you get the U.S. Civil war. The casualty rate in that war was 20-50% in combat units, compared to .02% in the Iraq war for all units. During the Civil War, armies did not collect and bury the dead. There were no funerals back home. There were no honor guarded processions. There were no gifts of a flag to the grieving family. After the war, hundreds of families, North and South, wandered these battle fields looking for lost loved ones. One historian estimated there were 35,000 dead, lying unburied, unmarked between Baton Rouge and Vicksburg. That was just one small corner of the war.

So, after the war, communities across America built memorials to the confederate dead. Northern communities did the same. Those memorials applied a much needed salve to deep, emotional wounds. But, how did a South with its economy in shambles raise the money for memorials?

In her book (“Sacred Memories”), Kelly McMichaels describes the process employed by male veterans and the female United Daughters of the Confederacy in erecting hundreds of veteran memorials across America. Overwhelmingly, most were built by the women. Dr. McMichaels attributes that to the nature or role of women in the 1890-1930 time frame when most of these memorials were built. Women were often the “rememberers.” They tended the graves. They laid aside the old baby slippers and the old worn hat from lost loved ones.

One of the first memorials was the Robert E. Lee statue in New Orleans. Fund-raising started the year of Mr. Lee’s death in 1870. The fund-raising committee included bankers and leading merchants of the city. But, these were banks and merchants who had no money. The economy was reeling. The committee came close to disbanding in 1876. But, they re-organized and added many more merchants and former Gen. P.G.T. Beauregard. By 1884, the committee raised the $36,000 necessary for a very large, beautiful Lee statue.

But, to reach that huge figure, they held hundreds of bake sales and public entertainments. The public entertainments included militias performing close order drill, a play titled “Cinderella,” for the children; lectures on Robert E. Lee and his life. Admission was generally .25 cents for children and .50 cents for adults. In 1877, 98 persons pledged $100 each which brought them close to the stated goal of $30,000. Contributors included Sen. Charles Furlong, a Republican Senator from Mississippi and union veteran.

My ancestor, George P. Crane, supported one such public entertainment as part of his social club. He recorded in his diary for May 16, 1878, that the old Opera House had never seen such a “jam.” Thousands, he said, had to be turned away. From a building that could seat 1,600 souls. Even allowing for some exaggeration, the white folks of New Orleans supported their Confederate memorials.

But, the Lee monument in New Orleans was unique. Most memorials were erected by women, usually the United Daughters of the Confederacy. In a time when women could not work, could not vote, often could not own property, they got the job done. Among the 65 Confederate monuments in Texas, two were started by men, but finished by the women. Of the 65 Confederate memorials, twelve were erected by the male veterans. The remaining 50 or so were erected by the UDC. The San Antonio chapter of the UDC relied on hundreds of bake sales and quilting bees to raise the $3,000 necessary for their memorial in 1899. The San Antonio memorial depicted the common soldier. The Grand Army of the Republic, the veterans organization for union veterans, contributed to the San Antonio monument and participated in the unveiling ceremony. The Grand Army of the Republic followed right behind the United Confederate Veterans in the lengthy procession.

Both Union and Confederate veterans generally supported each other’s memorials and attended each other’s reunions. The replacement cost of the San Antonio memorial has been valued at $450,000 in today’s dollars.

Some of the monuments, typically those found in the larger cities, depicted Confederate generals, but most Texas memorials depicted the common solder. All included some words on the pedestal asking the community to remember those who fell. “Lest We forget,” a then recent poem by Rudyard Kipling, was a familiar refrain carved into the base. These memorials filled a void. These were the funerals those families never had.

Dr. McMichael states in her book that the statues were also intended to support white supremacy. But, her citation does not support her assertion. Dr. McMichael points to John J. Winberry’s article, “Lest We Forget: The Confederate Monument and the Southern Townscape.”  Mr. Winberry offered four reasons for the erection of Confederate monuments across the South. None of his reasons include sending a message of white supremacy.

Even when the men erected the monument, it was often the women who did the actual work. To some folks today, those memorials represent vestiges of racism. But, in reality, they represent hundreds of bake sales, bazaars (similar to yard sales), public entertainments and thousands of ten, twenty-five and fifty cent contributions. Seeing those beautiful memorials spat on, spray-painted and pulled down unceremoniously deeply saddens this Iraq war veteran.

 

 

The U.S. Supreme Court has held that title VII of the Civil Rights Act of 1964 does include discrimination against gay persons. I have discussed this issue a few times, that the decision in Oncale v. SundownerOffshore Services, Inc., 523 US 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), was a very parsed decision. See my prior posts here and here.

Now, the Supreme Court has agreed. Looking at the plain meaning of Title VII, which prohibits discrimination based on sex, Justice Gorsuch finds the statute clearly prohibits homosexual based discrimination. The language of Title VII says it prohibits discrimination based on sex. In its decision, the court essentially says a statute says what it says. The decision admits that back in 1964, when Title VII was enacted, no one involved expected it would include discrimination against gay persons, including the members go Congress who passed the statute. But, as the court noted, if a statute is plain, then the job of the court is at an end. Sex, said the majority decision, plays a “necessary and undisguisable” role on a decision based on a person’s homosexuality. The court added that if the stature is clear, then the wishes expressed by individual legislators are of no consequence.

See the decision on Bostock v. Clayton County, No. 17-1618 (2020)  here.

I previously wrote about a butt-shaking lawyer here. Attorney Dennis Duffy shook his “booty” to the opposing attorney at a mediation. He mocked the attorney’s ponytail. Dennis Duffy was a  big firm lawyer at the time. The opposing attorney, Alfonso Kennard filed a motion asking the judge to disqualify Mr. Duffy from representing the Defendant. He sought sanctions. The Defendant, Chevron Oil, wisely changed lawyers soon after the motion was filed. But, the motion remained.

Judge Lee Rosenthal in Houston denied the motion for sanctions. The judge was clearly unhappy with Mr. Duffy’s antics. She accepts that Mr. Duffy was guilty of the conduct of which he was accused. She accepted sealed statements from Mr. Kennard and the mediator. She said Mr. Kennard’s conduct was also imperfect. She noted that the story has gone viral. Mr. Duffy’s reputation and ability to attract new business have suffered, which it should, noted he judge. The judge also noted that Chevron replaced Mr. Duffy with new lawyers and a new law firm.

And, indeed, Mr. Duffy left his former law firm and is now working for a different law firm. We should all know better than to engage in such unprofessional behavior. Certainly, Mr. Duffy, the self-professed Rambo lawyer, should know better.

Be Safe.

A lot of folks are upset about the killing of George Floyd. With good reason. How far would you go to protest his death? Two lawyers in New York City decided they should fire bomb police cruisers to show their feelings. An associate lawyer at Pryor Cashman, a large firm in New York, named Colinford Mattis, and a second lawyer named Urooj Rahman, decided to toss a Molotov cocktail trough the broken window of a police car during protests. Mr. Mattis was on furlough from his firm.

The two terrorists were seen driving away. Officers pursued and apprehended the pair. They had more materials in their van to make more Molotov cocktails. Mr. Mattis, African-American, graduated from NYU law school and attended Princeton University undergraduate. Ms. Rahman attended Fordham University law school. Her building superintendent described her as an “angel” who recently lost her job.  She formerly worked at Bronx Legal Services. See ABA Bar Journal report here.

There are other, less violent ways to protest the very unjust killing of Mr. Floyd.

Be Safe. The pandemic is not over.

I previously wrote about the federal court’s interpretation of the Texas Election Code here. In that decision, the Western District of Texas found that fear of contracting the coronavirus does indeed constitute a disability. Now, the Texas Supreme Court has weighed in. TheTexas Supreme Court reached the opposite conclusion, that fear of the virus does not amount to a disability. The Texas Election Code provides that “disability” is a physical condition that prevents a voter from appearing at a polling place without a likelihood of injuring the voter’s health. It does not require any consideration of how the impairment affects a major life activity. It is a more broad definition than that found in the ADA.

And, unlike the ADA, there is no practical way for some person or entity to question a voter’s claim of disability. There is no employer or EEOC to argue that the claimed disability is not that serious. On appeal, the Harris County Clerk argued that lack of immunity to the virus is a physical condition protected by the statute. The Western District opinion accepted that argument. But, the Supreme Court said no. “Disabled,” said the court, means incapacitated. In no way, can lack of immunity be considered to be incapacitated. As i mentioned in my prior post, the caselaw supports the Supreme Court’s conclusion.

The court found that lack of immunity does not amount to a “physical condition” that would harm a person at a polling site. Two justices concurred in the decision. Justices Bland and Boyd found that lack of immunity is indeed a physical condition for purposes of Tex.Elec.C. Sec. 82.002, but that a showing of “likelihood” of harm has not been made. Those two justices also suggested with a wink, that if a voter falsely claims a disability, no one would know. Said the concurrence:

“We agree, of course, that a voter can take into consideration aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability.”

See the Texas Supreme Court decision in the matter of In Re Texas, No. 20-0394 (Tex. 5/27/2020) here.

Even the Supreme Court shows more humanity than the Texas Attorney General is prosecuting this lawsuit.