Parties to a lawsuit rarely discuss sanctions, but at least in federal court, sanctions are a real, if rare, possibility. Secretary of State for the state of Kansas, Kris Kobach, learned about sanctions. Mr. Kobach was advocating for the state’s voter ID law. The federal judge hearing the matter struck it down, finding that there were only 67 instances of non-citizens registering or attempting to vote in 19 years. The court found that the state of Kansas did not show an actual problem existed.

Secretary Kobach represented the state in the lawsuit. He was the responsible party. The state of Kansas failed to comply with discovery rules several times. The Judge said Secretary Kobach chose to represent himself in this matter. As such, the responsibility is his. The judge had previously found the Secretary of State in contempt for failing to follow court orders regarding voter notices. He had also been ordered to pay the plaintiff’s attorney fees.

Mr. Kobach excluded evidence which had been requested, yet he tried to use the same evidence during trial. That is as clear a violation of the discovery rules as it gets. The judge ordered the Secretary of State to take an extra six hours of Continuing Legal Education credit hours. The case is styled Fisher v. Kobach. See ABA Bar Journal report.

You know you messed up when the judge orders you to take CLE. Most of would suffer acute embarassment over being sent to Sunday school.  But, in the midst of the culture wars, Mr. Kobach may use this as a springboard to higher office. This is the same Kris Kobach who formerly chaired the President’s so-called Commission on Voter Fraud.

A frequent issue in discrimination cases concerns when does the time for filing a complaint start? The answer can be complicated when a teacher, for example, is notified her contract will not be renewed the next school year. Do her six months to file start when she is told she will not be re-hired, or does it start at the end of the school year, when the decision takes effect? In Reyes v. San Felipe Del Rio Consolidated ISD, No. 14-17-00488, 2018 WL 1176487 (Tex.App. San Antonio 3/7/2018), the Court said the time to file started when the school district board told the teacher it had accepted the Superintendent’s proposal to terminate her employment.

Situations involving public school teachers are particularly confusing, because they are entitled to a hearing before the school board. Before a teacher’s termination becomes final, she can ask for a hearing before the school board. Ms. Reyes had such a hearing. She lost, as do most teachers. She was the told by letter dated Jan. 18, 2012 that her employment would be terminated. According to the letter, her employment was terminated effective Jan. 11, 2012. She then filed her charge of discrimination on May 23, 2012. She later filed suit. The district filed a plea to the jurisdiction, which is comparable to a motion to dismiss. It is based on the pleadings. The district argued that she had missed her deadline to file her charge. The district argued that her deadline started not in January, 2012, but in August, 2011 whene was first told the board had accepted the Superintendent’s recommendation that she be terminated.

The court looked at the Texas Education Code which explains the appeal process for public school teachers. The court found that under the Texas Commission on Human Rights Act, Tex. Lab.C. Sec. 21.202, the key event occurred when a decision was made, not when that decision took effect. The focus of the statute, said the court, is on the unlawful decision. So, her six months started in August, 2011, not in January, 2012. And, the court affirmed the dismissal of her case. See the decision here.

Ouch. The plaintiff made a rational decision to look to the result of her hearing before the school board. And, she lost because she relied on the wrong event. She might have the possibility of filing in federal court. But, because she filed her charge some ten months after August, 2011, that possibility would also would be problematic.

When I was a young lawyer, I did child abuse cases. I represented children who had been abused or neglected. In one of those cases, I represented two children. The mostly absent father came to my office and made threats to almost everyone he encountered there. I was gone, so I missed the drama. One of the lawyers present practiced family law. He confronted the father and told him he needed to leave. That same lawyer was involved in many difficult divorces. He shared with me several stories of spouses following him or thereatening him. He said he once pulled up to a traffic light in his car. He glanced to his right to see a husband in a car pulled up next to him pointing a pistol at him.

In Georgia, a husband apparently objected to how the lawyer representing his wife conducted himself. Within hours of the divorce becoming final, the man went to the lawyer’s office, shot him and then shot himself. See CBS news report.

The lawyer, Antonio Benjamin Mari, was said to have told colleagues he thought the ex-husband might try to harm him. The lawyer business can be very dangerous.

Well, the Supreme Court disagreed with me. But, only by a 5-4 vote. The Supreme Court ruled in favor of the President’s travel ban and rejected the appeal of the state of Hawaii. See the opinion in Trump v. Hawaii, No. 17-965 (6/26/2018) here. I previously wrote about that travel ban and its apparent religious bias here and here. The Supreme Court found that the President had broad authority to restrict immigration. And, this was after all the third version, the one the President referred to as a “watered down” version.

Chief Justice Roberts wrote the majority opinion. The President relied on 8 USC Sec. 1182(f), which allows the President broad authority to restrict immigration. Justice Roberts noted that the Proclamation implementing the travel ban is 12 pages long. It provided detailed reasons for the exclusions it sought.

Regarding the allegation that the executive order sought to exclude Muslims, the court noted that the Constitution provides that the government shall take no measure respecting the establishment of a religion. The court noted the many statements by Candidate and President Trump attacking the Muslim faith. In his first week as President, he referred to the first version of the ban as the “Muslim ban.” When the current immigration ban was implemented, he said it was “watered down” and that he wanted something stronger. Justice Roberts then recounted a long history, starting with George Washington, of presidents espousing religious tolerance and freedom. The Justice was clearly calling the current President to a higher standard than to espouse “Muslim bans.”

But, the court would not go so far as to assign bias to the executive order itself. Wearing blinders a bit, the Justice claimed the executive order itself is neutral in regard to the Muslim faith. Of coarse, that conclusion strikes me as naive. The court chose to ignore the President’s own stated bias in effecting this travel ban.

Justice Kennedy issued a concurring opinion, simply to remind the Prudent that he, like all federal officials, took an oath to defend and support the Constitution. Without naming Pres. Trump by name, he was clearly warning the President that he must adhere to the principle of the Constitution even in regard to travel restrictions.

Four justices dissented. This was a close vote. But, the vote to watch belongs to Justice Kennedy. He is the swing vote. He supported the President’s executive order, this time. But, he sent a warning to the executive branch. I am doubtful the President will notice. But, his lawyers will.

 

Well, the Texas Supreme Court surprisd me. They rejected the City of San Antonio’s appeal regarding the fire fighter’s union contract. I mentioned in 2015 that the City seemed to be relying on an appeal to the Texas Supreme Court. See my prior post here. The Supreme Court rejected the City’s appeal with no comment. That can mean the Supreme Court did not believe the issue was worthy of their time. Or, it could mean it did not disagree with the Fourth Court of Appeals decision. We do not know what the denial of the appeal means. When a Supreme Court rejects an appeal, the rules do not require an explanation.

The issue concerned the evergreen clause in the firefighter’s contract. When the Collective Bargaining Agreement ends, the provisions stay in effect for another ten years. That sort of clause is known as an “evergreen clause.”

For the City, whatever the meaning of the denial, the result is the same. They must now deal with a fire fighter union that feels vindicated. See San Antonio Express News report.

Recently, it emerged that Pres. Trump’s lawyers have advanced the theory that as the nation’s chief executive officer, the President cannot obstruct justice. The theory is the President has complete authority to start or stop investigations. Rudy Giuliani said the only remedy if the president committed a murder was impeachment. Mr. Giuliani also said the President has the power to pardon himself.

Legal scholars mostly disagree. The bedrock of the U.S. Constitution is that no person is above the law, they point out. Former acting Solicitor General Neal Katyal flatly said the idea that someone could be immune from obstruction of justice died with George III, with a brief attempt at revival by former Pres. Nixon. The opinion of any former Solicitor General, acting or not, carries a lot of weight. Solicitors General represent the U.S. government before the U.S. Supreme Court. Any Solicitor General is considered to be a top flight lawyer. They are the lawyer’s lawyer. Mr. Katyal derided Mr. Giulinai’s suggestion as a “ludicrous legal theory.” If a careful lawyer pokes fun at Mr. Giuliani’s argument, then we can conclude the argument is weak.

The decision in the Paula Jones lawsuit against then Pres. Clinton is instructive. The courts universally found that a sitting President was still subject to the normal civil legal process. Former Pres. Clinton tried to argue that as President, a civil lawsuit should be postponed until his term has ended. He lost at every level of appeal. If civil cases still apply to sitting presidents, it is very likely that criminal legal process will also still apply. The ABA Legal Fact Check noted that in ruling on a subpoena issued to then Pres. Nixon, Chief Justice Warren Burger wrote that yes, a President does enjoy special consideration. But, that special consideration does not include an “unqualified presidential privilege of immunity from all judicial process under all circumstances.” See ABA Bar Journal report.

But, for a president who famously provides his own legal counsel, these legal opinions may not matter.

In Myles v. UT Health Science Center at San Antonio, No. 17-00871-XR, 2018 US Dist. LEXIS 5080 (W.D. Tex.), we see an instance in which the state employee successfully sued the state employer for a violation of the Family Medical Leave Act. Normally, a state employer is immune to a suit based on the FMLA, if the allegation is the employee had to stay home to care for herself. The state employer can simply cite its Eleventh Amendment immunity, and the lawsuit would end. But, in this case, the employee also sued the individual managers who were responsible for her termination.

Loretta Myles worked for UTHSC for many years, eventually rising to the manager level in the Human Resources department in 2009. In 2015, she requested FMLA leave to care for her ill husband. He suffered from prostrate cancer. But, Plaintiff’s supervisor, Ann Gaeke told her not to use FMLA leave. At one point, Ms. Gaeke warned Ms. Myles she should start looking for another job. The Plaintiff then took several weeks leave, saying she needed a break from harassment by her supervisor. On her first day back at work, Ms. Gaeke presented the employee with written discipline. Three days later, she was fired.

At the outset, the employer submitted a motion to dismisses citing Eleventh Amendment immunity. The Agency also argued that the two named defendants, Ann Gaeke and Heather Kobbe, are not “employers” as defined in the FMLA. But, the district court pointed to caselaw which did find that “employer” could include a public employee. Looking at Ms. Myles’ leave request as “self-care,” the court rightly noted that the Supreme Court has held that state employees cannot sue the state under the FMLA for taking care of oneself. But, the district court noted that Ms. Gaeke took sufficient actions against the plaintiff that her actions were in controversy. This was more than a supervisor simply carrying out state mandated requirements.

In its reply brief, the state raised the issue of qualified immunity regarding Ms. Gaeke. But, accepting the Plaintiff’s allegations as true, as the court must, the plaintiff has shown sufficient facts to indicate Ms. Gaeke violated clear statutory rights. Therefore, qualified immunity does not apply.

The Eleventh Circuit recently overturned summary judgment in a discrimination case. In Vinson v. Koch Foods, No. 17-10075 (11th Cir. 5/23/2018), the plaintiff sued for discrimination based on her national origin, Puerto Rican and based on race. She had worked for the employer a couple of years in Human Resources as a clerk and as a translator.  Ms. Vinson and two white co-workers took time off to visit a sick co-worker in the hospital. All three workers were placed on suspension when they returned to work. Of the three women, only Ms. Vinson’s duties were changed dramatically afterward. The plaintiff was required to work on the production line, processing chickens and operating machinery. Another Puerto Rican woman filled her job in HR. Later, Ms. Vinson was fired. The explanation varied. Some said her position was eliminated. Some said she was not producing enough.

The lower court granted summary judgment remarkably in part because Ms. Vinson did not mind being on the production line. She received a raise. But, as the Eleventh Circuit noted, her subjective view of the job change is not controlling. That she received a pay raise one month before being fired does not remove the adverse personnel action.

Her new duties included pulling guts from chicken carcasses, sawing chicken carcasses, hanging dead chickens on shackles, cutting and removing damaged meat from chicken carcasses, using sealing machines for packaging, and weighing boxes of meat. This was a major change in her duties. Too, the new job did not exist on any organizational chart for the employer. She had no job description. The job did not exist at other plants. Her supervisor did not know what she was supposed to be doing on the production floor. A jury could conclude, said the court, that the job was created just for Ms. Vinson.

Regarding the termination, the plaintiff presented a mixed motive case for the termination. Among the reasons for the summary judgment was that Ms. Vinson did not discredit the employer’s reasons for firing the woman. This amounted to a requirement that the plaintiff show pretext, said the court. But, this is a mixed motive case, in which the standard is a motivating factor. That is, the standard is whether the improper motive played a motivating role in the decision. So, the plaintiff did not need to show pretext. She only needed to show that there was genuine issue of fact regarding whether race or national origin was one motivating factor in the decision. Even so, the plaintiff did present evidence of pretext. The supervisors’ accounts of the termination did not match.

The lower court also found that the plaintiff presented no evidence that race or national origin played a role in the decision to terminate. But, a union supervisor expressly said he had observed Ms. Vinson’s supervisor disciplining Hispanics more harshly than white workers. The court noted that Ms. Vinson was replaced by another Puerto Rican female. But, that in itself does not show a lack of racial or national origin motive. The court reversed summary judgment regarding this claim. See the decision here.

Pres. Trump has dis-invited the Philadelphia Eagles to the White House. The reigning Super Bowl champs are typically invited to the White House. The President indicated it was because of a disagreement over whether to stand for the national anthem at football games. See CBS news report. The President issued a statement that said:

“They disagree with their president because he insists that they proudly stand for the National Anthem, hand on heart, in honor of the great men and women of our military and the people of our country,”

As a retired member of that great military, all I can say is that is what I believed when I was in first grade, too. In fact, I attended a military school in first grade and absolutely believed that standing straight and tall during the national anthem meant I was a good patriot. Now, I know better. I grew up during the 60’s and 70’s. I was perfectly okay with protests for the right reason. Now, a lifelong student of history, I can point to dozens of examples of great patriots who protested in favor of sincere beliefs. Many of those protests would later go on to be vindicated. But, I guess it is better politics to think like a first grader……

P.S. You have not lived until you have sung the national anthem in a war zone. It was a surreal experience. Singing it at football games now almost seems to trivialize the song.

In a recent decision, the Fifth Circuit addressed the turbulent area of non-solicitation agreements. Michelle Moffitt-Johnston used to work for GE Betz, Inc. GE Betz applied chemicals to fuel prior to export. Ms. Moffitt-Johnston signed a non-solicitation agreement with GE Betz during her employment, in which she agreed to not solicit Betz’ customers for up to 18 months after any resignation or termination. After some ten years with GE Betz, Ms. Moffitt-Johnston resigned in 2012. Soon after, she started working for AmSpec Services, a competitor of GE Betz.

GE Betz had installed monitoring software on its worker’s computers. Monitoring logs on Ms. Moffitt-Johnston’s computer showed suspicious activity in the weeks leading up to her resignation. Days after she had announced her departure, someone using her computer downloaded some 27,000 files to an external hard drive. The evidence regarding this download was disputed. Plaintiff Moffitt-Johnston said this was the GE Betz IT department doing back-up, while the employer claimed Ms. Moffitt-Johnston had use of the computer at the time.

GE Betz admitted it had no smoking gun evidence that Ms. Moffitt-Johnston had solicited customers. Instead, it relied on a “mosaic” of evidence. The “mosaic” essentially consisted of AmSpec’s success with the customers who were included in an email from Moffitt-Jounston to AmSpec on her last day at work. But, as the court noted, it is just as likely that those customers worked with AmSpec because their cost was lower. “Many” but not all of Moffitt-Johnston’s former clients went with AmSpec. The Fifth Circuit affirmed the grant of summary judgment on the mis-appropriation of trade secrets claim. For similar reasons, the court also affirmed summary judgment regarding GE Betz’ claim for tortious interference with prospective business relationships.

To recover her attorney fees, Ms. Moffitt-Johnston relied on the Texas Covenants not to Compete Act (Tex.Bus.&Com.C. Sec. 15.50). The act requires several factors before a court could award attorney’s fees to the employee. One of those factors involved whether the employer knew the non-solicitation agreement included no geographic limitation. The GE Betz non-solicitation agreement was silent regarding any geographic limits. And, Texas jurisprudence provides, said the Fifth Circuit, that a limit regarding one’s customer base is reasonable – even if no geographic limit is specified. So, found the appellate court, it was not clear that the employer knew its non-solicitation agreement had no geographic limit. The Fifth Circuit then agreed the employee was not entitled to recover her attorney fees. See the decision in GE Betz, Inc. v. Moffitt-Johnston; AmSpec Services, LLC, No. 15-20008 (5th Cir. 3/13/2-18)  here.