I go to Starbucks sometimes. In my experience, they always fill my coffee cup with too much coffee. It is hard to add cream., because there is so much coffee. But, I choose to live with it. Some folks have chosen not to live with it. Drinkers of lattes objected because Starbucks under-filled their cups. The latte drinkers filed suit. They argued Starbucks under-filled the cup by filling the top 1/4 inch with foam. Foam is not part of the drink, they argued.

The court disagreed. A federal judge in California dismissed the lawsuit. The plaintiffs essentially conceded that milk foam is indeed part of the drink. No reasonable consumer, wrote Judge Yvonne Gonzalez Rogers, would be deceived into thinking the foam was not part of the drink. Too, Starbucks pointed out their cups are slightly bigger than advertised to make up for that 1/4 inch of foam. See ABA Bar Journal report.

Yes, justice lives…….

More and more, Texas employers rely on non-compete agreements. More and more, those agreements are permeating down below to blue collar jobs. In Elite Auto Body v. Autocraft, No. 03-15-00064 (Tex.App. Austin 5/5/2017), Autocraft sued Elite Auto Body and three former employees of Autocraft. Autocraft claimed the three employees took trade secrets with them when they left Autocraft, including financial and personnel information. Autocraft operated a body repair shop. The three employees included a production manager, and two other employees. A fourth former employee was an Office manager for Autocraft. The former employer accused three of the former employees of using confidential information gained from Autocraft to solicit business and to persuade other Autocraft employees to join the new business.

The Defendants then counter-sued for violation of the Texas Citizens Participation Act (TCPA), also known as a SLAPP suit. Relying on the TCPA, the three defendants sought to dismiss the lawsuit saying it infringed on their right to free association or the exercise of free speech. Relying on affidavits from two of the former employees, the three defendants said the lawsuit lacked basis and was intended to chill their rights to free association. The court of appeals agreed that the Autocraft suit was based on actions which include the exercise of the right to free association. The exercise of free association is defined under the TCPA, said the court, as the right to communication between individuals to collectively promote or pursue common interests.

Autocraft claimed one defendant, David Damian, did not engage in communication under the TCPA because he breached a fiduciary duty by misappropriating confidential and proprietary information from Autocraft. But, the court noted that the communication between the three former employees includes that alleged confidential information. Since the TCPA protects communication between the three employees, they can in fact discuss confidential information. Autocraft then argued that the state legislature envisioned the TCPA would apply to public participation in government, not in the private sector. No, said the Austin court of appeals, the Texas Supreme Court has already made it clear the TCPA applies to the private sector.

Autocraft then argued that certain types of speech are not implicated by the First Amendment, such as speech regarding illegal activity. The court was more troubled by this argument. It found that the burden shifting analysis of the TCPA requires the TCPA movant to show how free speech is involved in the lawsuit by the former employer. After reviewing recent state Supreme Court decision, the Third Court of Appeals found that private speech which is restricted among the three new employees can rise to the level of free speech. Therefore, their speech relates to a matter of public concern, because the language of the TCPA itself is broad enough to include First Amendment protections.The higher court specifically noted that the TCPA does not necessarily protect only First Amendment communications. The provisions of the TCPA apply to more than free speech communications. The act applies to all communications that fit the TCPA definition, whether the communication pertains to free speech, trade secrets or not. The court found the initial question for a TCPA-based motion is whether the employees engaged in communication that fits the TCPA definition of communication and whether those individuals joined together collectively to promote or pursue common interests.

So, the court found the district court improperly failed to grant the three defendants’ motion to dismiss based on the three defendants’ “communications.” Bottom line: as long as the employees discuss so-called confidential information among themselves, it should be protected by the TCPA.  See the decision here.

Among the provisions employed increasingly by employers is the “claw back” provision. Under the typical claw back provision, the employee agrees to a certain salary or wage. The employer then requires the employee to agree that if the employee fails to provide a notice of resignation within a certain amount of time, or if the employee leaves the job before a certain amount of time, then the employee must return some portion of his pay. In Rieves v. Buc-ee’s, Ltd., No. 14-15-01061 (Tex.App. Hou. 10/12/2017), the employer offered an agreement of a certain salary if the assistant manager would agree to work at least 48 months. The pay was based in part on 1.2% of the store’s net revenue. The employee, an assistant manager named Kelly Rieves, agreed to return 1.2% of the store’s net proceeds if she did not provide a six month notice of resignation. Ms. Rieves left, and did not provide six months notice. Buc-ees responded with a letter demanding payment of $66,000, plus attorney’s fees.

Ms. Rieves sued seeking a declaratory judgment that these provisions function as unlawful restraints on trade. Buc-ees moved for summary judgment, which was granted.

The Houston court of appeals disagreed. It found the provisions did indeed act as restraints on an employee’s ability to move to a different job. The provisions set unreasonable limits and imposed a substantial penalty on Ms. Rieves for exercising her right as an at-will employee to quit a job. The court pointed to the Free Enterprise and Antitrust Act, Tex.Bus.&Com.C. Sec. 15.05, which declares that contracts may not restrain trade. The court said that unless a contract fits within the exception found within the Texas Covenants Not to Compete Act, covenants limiting an employee’s mobility are unlawful restraints on trade. Under the Texas Covenants Not to Compete Act, Tex. Bus.& Com.C. Sec. 15.50(a), covenants must be reasonable as to time and geography.

The court found the payment retention provisions in the Buc-ees employment agreement to be unreasonable. The provisions did not include any limit in geography or time. It did not even limit Ms. Rieves to employment with a competitor. The assistant manager did not move to a competitor. Her new job was not with a competitor of Buc-ees. Too, the provisions required her to re-pay the money even if she left the job through no fault of hers, or even if she did not take a new job. This agreement, said the court, goes far beyond any legitimate need of Buc-ees in regard to competition in the market place. See the decision here.

The court reversed the decision to grant summary judgment. It also ordered that Buc-ees take nothing from its suit. And, it found that the provision did indeed act as an unlawful restraint on trade.

Thank goodness. One might think that Texas courts never saw an employer friendly agreement they did not like. Let’s hope the employer does not appeal to the Texas Supreme Court.

Many federal judges avoid employment cases partly because they involve so much detail. But, it is in those details that a circumstantial case is won or lost. And, most employment cases depend on circumstantial evidence. in Robinson v. Jackson State, No. 16-60760 (5th Cir. 12/4/2017) (unpublished), the Fifth Circuit dived into those details and provided some helpful lessons. The lower court granted a motion JNOV (not withstanding the verdict) after the close of jury trial. That means the judge overturned the jury verdict.

Fredrick Robinson noticed a supervisor, Dr. Fuller, eyeing a secretary in a provocative way. Dr. Fuller, the new athletic director, fired the secretary. The athletic director then fired Mr. Robinson and another employee about  month after they were both interviewed by the EEOC. Robinson and the other employee were the only employees to corroborate the secretary’s allegations.

At trial, Dr. Fuller did not admit to knowing that Robinson had been interviewed by the EEOC. The school attorney who was present for the EEOC interviews denied telling Dr. Fuller about the witnesses and who they were. So, it was a classic case. The official who terminated Mr. Robinson denied she knew Mr. Robinson assisted with the EEOC investigation. If the supervisor does not know you assisted the EEOC, then that supervisor cannot be guilty of reprisal because you assisted the EEOC. So, Mr. Robinson’s case hinged on what Dr. Fuller knew and when she knew it.  The jury found in favor of Plaintiff Robinson and awarded $7,100 in lost pay, $25,000 in compensatory damages, and $75,000 in punitive damages.

The district judge then granted JNOV on that issue, finding there was no evidence that Dr. Fuller knew about the participation in the EEOC process before she decided to fire the two employees.

On appeal, the Fifth Circuit noted the timing. Robinson and the other witness were both fired one month after testifying to the EEOC. Jackson State attorneys knew about Robinson and the other worker. And, the purported reasons for firing Robinson were weak. Mr. Robinson was a trainer. The department was already below the require number of trainers when she fired Mr. Robinson. Dr. Fuller’s explanation shifted over time. And, Dr. Fuller did not comply with procedures for terminating an employee.

In reviewing the matter, the higher court noted that the McDonnell-Douglas burden shifting paradigms did not apply, once the jury heard the case. The court noted that in a relation case, it is important to show the decision maker had knowledge of the opposition to discrimination conduct. If Dr. Fuller truly did not know Mr. Robinson had spoken its the EEOC, then her action is firing the trainer could not have been retaliation. The plaintiff argued that the court should accept a “general; corporate knowledge” test as used in the Second Circuit. The Fifth Circuit, however, declined, noting that the circuit had always required “actual” knowledge by the decision maker. The court noted that the plaintiff provided some evidence of the Dr. Fuller’s knowledge. He attitude toward the trainer changed dramatically after he spoke with the EEOC. Prior to the EEOC interviews, the president of the university has explicitly threatened anyone who opposed Dr. Fuller with termination. The school’s two lawyers were aware of the interviews. Dr. Fuller met with both attorneys prior to her own interview with the EEOC and she continued to meet with them afterward. It wasps aid the court, not unreasonable for the jury to infer that Dr. Fuller knew about Robinson’s testimony.

The court noted rightly that it relied on Robinson’s testimony that Dr. Fuller started avoiding him after the interview with the EEOC. But, his testimony that he believed she was aware of his interview solely because of that change toward him was speculation. That is, his observation of her behavior was admissible. But, his conclusions about that behavior was not admissible.

The parties disputed whether the attorney’s knowledge should be imputed to the school. The court would not go there. But, it did note  in a footnote that there was sufficient evidence to infer knowledge on the art of Dr. Fuller from the school’s attorneys.

The court makes an important point that a change in attitude is relevant. But, for the plaintiff to infer the motive for that change is speculation on his part. When the jury makes the inference, that is traditional fact-finding. It is a shame this decision is not published, because that is an important point, rarely made. See the decision here.

According to a May 28, 2017 article in the Austin American-Statesman, members of Congress, including Lloyd Doggett, asked the Department of Labor to change rules that shield frequent violators of USERRA. USERRA is the law that protects Guardsmen, Reservists and other service members from discrimination in their civilian jobs. Some employers just do not get it. They do discriminate frequently. Dept. of Labor knows who they are because DOL processes with administrative complaints filed by the Reservists.

In 2016, the House Veterans Affairs Committee opened an inquiry into the ,matter after the newspaper reported several employers in Texas frequently discriminated against Reserve members in their civilian jobs. DOL initially agreed to change their rules, but have not cooperated since. In Texas, some 16 different employers have had multiple complaints filed which DOL investigated. Those investigations resulted in a settlement or a finding of discrimination.

In 2016, the American-Statesman submitted FOIA requests to DOL seeking the names of the employers. But, the DOL refused, saying they need to protect the privacy of the service member. Lloyd Doggett met with DOL officials in December, 2016. They told him they feared that outing these employers would cause them to hire veterans less.

A review by the newspaper suggests some 40% of lawsuit filed based on USERRA are against state and federal agencies. Texas lead the nation in 2015 with 230 USERRA complaints filed with DOL.

The Trump administration has reportedly instructed departments to refuse requests from Democratic members of Congress, further obstructing Rep. Doggett’s efforts to seek transparency. See Austin American-Statesman report.

One would expect that a case involving direct evidence of age bias would not be granted summary judgment. Yet, that is what happened in Lopez v. Exxon Mobil Development Co., No. 14-16-00826, 2017 WL 4018359 (Tex.App. Houston 9/12/2017). Plaintiff David Lopez worked for Exxon for over ten years when he was terminated in 2014. He was 56 years old at the time. He worked at various positions, mostly in management. He was told he would have to move from Texas to Canada. He complained about the assignment and the lack of a housing waiver. Not having a housing waiver, his family would have to move with him. Plaintiff Lopez spoke with his senior supervisor, Don Moe, about the transfer. Mr. Moe said higher-ups were concerned that someone of Lopez’ age was complaining about a move. He said older guys should just shut up. It was clear, said Mr. Moe, that Lopez was not on the “fast track.”

Plaintiff Lopez did not mention the ageist remarks for another six months. He finally mentioned them to his functional supervisor, Irfan Khan. Mr. Lopez said his transfer was discriminatory. The employee said Mr. Khan said he would look into the matter. Mr. Lopez received a poor evaluation after complaining. He was placed on a PIP. Mr. Khan and two other supervisors decided to terminate Mr. Lopez. The two other managers said Mr.Lopez was “old and stubborn.”The employee filed suit based on the Texas Commission on Human Rights Act. Exxon moved for summary judgment, which was granted.

On appeal, the court of appeals claimed the “old and stubborn” comment was not direct evidence. Without explaining its reasoning, the court simply said the court would have to draw an inference or make an assumption to determine whether the comment indicated motive. If the comment was direct evidence, then no inference or presumption would be necessary to see its discriminatory bias.

Reviewing the case as one of circumstantial proof, the court noted that Mr. Lopez had been ranked in the bottom third of his peers for the last four or five years. Acknowledging the many good performance reviews received by the plaintiff, the court of appeals simply found his testimony conclusory and subjective. Yet, at the same time the court made that observation that Lopez was describing the subjective evaluation process that resulted in his PIP. It then remarkably concluded that showing good performance evaluations simply shows the plaintiff might show the employer provided a false reason – that is not competent summary judgment evidence, claimed the court. Of course, that flies in the face of Reeves v, Sanderson Plumbing Products, 530 U.S. 133, 147 (2000), which expressly had that evidence of falsity of the reasons alone may support a finding of improper motive. The court actually accused the plaintiff of drawing a subjective conclusion when he argued that Exxon’s process was “highly subjective.” The court apparently never heard the phrase “what is good for the goose is good for the gander.”

The Fourteenth Court has imposed a doctrine known as pretext plus. It required the plaintiff to show more than pretext. It has held the plaintiff to a different standard than that set for the employer. The employer may engage in a subjective process, but the employee may not. Too, it has engaged in fact-finding. It finds the ageist remarks by Moe, and others to be too distant in time. That should be a jury finding. The jury should determine whether six months was too long. Certainly, the comments about “old and stubborn” were not distant in time. This is a motion for summary judgment, not a trial. Summary judgment exists to test the evidence, not to resolve it. See the decision here.

The Fourteenth Court has issued a poorly thought decision. It is decisions like this that have come to undermine our jury system. Decisions like this take away from the jury assessments which serve as bedrock for our judicial system.

Matthew Spencer Petersen has withdraw his nomination for a federal judicial post. See CBS news report. I wrote about his awful testimony before the Senate Judiciary Committee here. Mr. Petersen essentially admitted that he had no background in litigation or criminal law. Being a judge, he would need to know a bit about trials, lawsuits and criminal law. We can assume the Trump administration asked him to withdraw his nomination after his terrible performance before the committee last week.

But, one has to wonder why his name went forward, at all. It is rare enough for the ABA standing committee on federal judiciary nominations to award an “unqualified” rating. That fact alone should have raised a red flag. But, then the administration apparently did nothing to prepare Mr. Petersen for his committee appearance. The administration threw him to the wolves with little or no preparation.

Pres. Trump has nominated some crazy folks for lifetime federal judgeships. Four have been rated unqualified by the ABA’s volunteer committee of some 160 lawyers on federal judicial nominations. One such nominee, Matthew Spencer Petersen was questioned by Sen. Kennedy (R-La). Mr. Petersen could not answer the most basic litigation questions. Mr. Petersen is just not qualified for a federal judgeship, or any judicial post. He admitted he has never tried a case, meaning never appeared in court as attorney for a client for a trial, has never conducted a bench trial (i.e. no jury), or a jury trial. He attended some 5 depositions, but did not conduct those depositions himself. He is just not qualified to deal with litigation. As a judge, he deals with litigation every day. He has never argued a motion in federal or state court. He has not reviewed the federal rules of evidence since law school.

He is not familiar with basic litigation devices, such as a motion in limine, a Daubert challenge, abstention doctrine, all basic litigation concepts.

He is currently working as a commissioner at the Federal Election Commission. Matthew Spencer Petersen. He admits up front his back ground is not in litigation. He was rated “not qualified” by the ABA, a rare enough event. See CBS news report.

I previously wrote about Pres. Trump’s questionable nominees here. We expect some degree of political advocacy when judges are nominated. But, this administration could not even find someone who could find his/her way to the court room?

Some work places are just so toxic. When my unit was deployed to Iraq, we inherited work and living space from the unhappiest, most dysfunctional Army unit I have ever come into contact with. The living space was filthy. They never cleaned it up. The members of this unit, some 50 persons, had filed about a dozen Congressional complaints. Dozens of Article 15’s had been processed. IG investigations were common. And, their work was the worst. They accomplished nothing in their 12 months in Iraq. Work place atmosphere matters. We see a pretty bad place in Congressman Farenthold’s office.

One former Communications Director says he often vomited on the way to work. Rep. Farenthold was abusive and degrading. Just before Michael Rekola left for two weeks to get married, Mr. Farenthold called out to him, “Better have your fiancee blow you before she walks down the aisle – it will be the last time.” He then joked about whether his wife would wear white at the wedding. When Mr. Rekola returned from his two week vacation, he turned in his resignation.

Mr. Rekola explains that Congressman Farenthold was often abusive, with screaming fits of rage, fists pounding on the desk. He often referred to aides as f***tards. Congressman Farenthold admits to using the term f***tards regarding employee, but says he meant it in jest. See CNN news report.

When my buddies and I replaced that Civil Affairs unit in Iraq in 2005, we met with and worked with our predecessors for two weeks. We got to know some of them. Some few officers and NCO’s hated their work environment. I will never forget their dismay, their disgust at the low quality of work they had to endure for 12 months. Congressman Farenthold was not in Iraq. But, he apparently knows something about low quality of work.

There are some places a woman should not work. Places that are so offensive, most women would not survive long enough to make the job worthwhile. A Congressman’s office should not be one of those places. Yet, Congressman Farenthold’s office has been very disrespectful toward women. Laurene Greene field her lawsuit against the Congressman in 2014. When she filed her suit against the Mr. Farenthold, she accused him of suggesting she participate in threesome with the Congressman and a female lobbyist. In response to the accusation, Mr. Farenthold simply replied the third person was not a lobbyist. Rep. Farenthold had an explosive temper. he would loudly sweep his arm across his desk when angry.

The office refrigerator was filled with beer. Happy hour would begin at 4:30, “beer-thirty,” said his aides. Male and female aides would discuss strip clubs. The female aides would discuss who had sent them pictures of their genitals that day. Talk about female reporter’s breast sizes were common. The talk was lewd, angry at times or simply rude. Congressman Farenthold lead the way in the discussions. The Congressman would often drink to excess. When he would attend government functions, staff would have to accompany him on “redhead patrol,” to keep him out of trouble. He told another aide that he was having sexual fantasies about Ms. Greene. Lauren Greene was then another aide. She complained and was soon afterward fired. See New York Times report.

Prior to becoming a Congressman in 2010, Rep. Farenthold had been a conservative radio talk show host. He would also buy domain names and re-sell them. In 2014, the same year as Ms. Greene’s lawsuit, he sold a domain that included a sexually explicit act in the name. He was photographed at a party wearing a duck print costume standing next to scantily clad women.

Yes, that is a good example of how not to run professional office, that respects the rights of female workers.