In Lindsley v. TRT Holdings, Inc., 984 F.3d 460 (5th Cir.  1/7/2021), the Fifth Circuit reversed a grant of summary judgment regarding the plaintiff’s claim that she was paid less than her three male predecessors. Writing for the majority, Judge Ho said it was apparent that she was paid less than the men who previously held the same position. The pay difference was substantial, ranging from $11,000 to $4,000 less than her predecessors. The court noted that the lower court erred in expecting Lindsley to show that her duties were the same as the duties held by predecessors. Judge Ho said it was enough to show she held the same job title at the same hotel and that she was paid less.

Same Job Title

The plaintiff based her case on Title VII, the Texas Labor Code Sec. 21.001, and on the Equal Pay Act. The court added that for purposes of the Equal Pay Act, the lower court may not consider the pay for other persons holding the position of Food and Beverage Director. But, for purposes of Title VII and Sec. 21.001, the lower court may consider the pay of Food and Beverage Directors at other hotels. The Fifth Circuit ordered the lower court to consider the pay disparity on remand and to look specifically at the non-discriminatory reason put forth by Omni Hotels.

Second Bite at the Apple

The court could have simply reversed the district court on this issue. But, instead, it essentially gives Omni Hotels a second bite at the apple by letting them put forth a better non-discriminatory reason – if they can. If the employer dd not put forth a non-discriminatory reason in its initial motion for summary judgment, then I wonder why they are given a second chance to to do so.

Retaliation

Regarding a second issue, whether Lindsley suffered retaliation, the court finds there is no issue of fact and affirms summary judgment. The employee claimed her boss became hostile toward her after she filed her EEOC charge. But, the court excuses the boss’ anger, saying he “said” he was angry about something other than her charge. (Well, okay then, that settles it). The court also noted correctly that being mean in the work place is not in itself an adverse personnel action. (No, but it can and should serve as evidence of intent).

Subjective Belief

HR threatened Lindsley with no job if she left on FMLA leave. The court rejects Lindsley’s claim that in making this threat, HR created a hostile work environment. The court finds this simply represents the employee’s “subjective” belief that this act amounted to discrimination. (Courts often reject the witness’ perception as a “subjective belief,” while accepting the supervisor’s perception). And, it rejects the employee’s contention that a lowered, but still not negative, performance evaluation addressed the time period before Lindsley’s EEOC Charge.

At this point the court is weighing evidence. It decided that a bad, but still satisfactory performance evaluation addressed a time period before the EEOC Charge. Yet, that performance evaluation was issued after the EEOC charge. A jury should decide if that performance evaluation amounted to reprisal. Just as a jury should determine whether the HR threat of Lindsley losing her job amounted to reprisal.

See the decision here.

This really is not how to manage a lawsuit. A Connecticut judge has ordered that Alex Jones be sanctioned $25,000  per weekday until he appears for his deposition. The Judge found Mr. Jones in contempt of court for missing two deposition dates. It is very odd that Jones has totally failed to cooperate in discovery with the opposition. Every party to a lawsuit – especially the defendant – finds the process annoying. But, the parties must appear for depositions. The Sandy Hook plaintiffs have all been deposed. Only Mr. Jones has so far avoided the normal process.

The Judge also ordered that Mr. Jones’ deposition occur in Connecticut. The plaintiffs had been trying to depose Mr. Jones in Austin, where Jones lives. That is a normal practice. But, the Judge has rightly recognized that Mr. Jones has taken advantage of that practice.

Jones offered $120,000 per plaintiff to settle their claims on Monday. But, the plaintiffs rejected his offer. And, they should reject it. With his obstinate conduct and now, already in default, the jury may go well above normal limits. See Politico news report here.

Too, Mr. Jones has made this a very personal sort of lawsuit. Spewing lies about one’s young children is completely cruel. I expect there is much bad blood between the parties.

I am an Iraq veteran. I served in Iraq from 2005 to 2006. Some 140,000 other brothers and sisters served in Iraq with me. I am told there were some 1.5 million total who served in Iraq. Wherever I go, I find a bond with fellow Iraq and Afghanistan vets. We share the bond of having pledged our lives to each other.

When I was in Iraq, I would travel by ground convoy or by helicopter, whichever was available. On Many helicopter taxis, I could not help but notice that I was traveling with some 10-12 soldiers completely unknown to me, but for whom, in a pinch, I would lay down my life. Those days have not entirely ended. When I ask a bartender for “military discount,” he apologizes, even though we have never met and I am 1000 miles from home. The bartender assures me he will give me a free beer on the next round. I do not know the bartender anymore than I knew those nameless folks with whom I once shared a helicopter ride. But, he served in Iraq. We trade stories about the heat.

Even now, years later, I would risk much for a bartender I had just met. He is not just a bartender. He represents my buddies, the folks I knew so well for 18 months. He represents the buddies I lost to an IED or an indirect round. People lament the veterans at Memorial Day and appreciate our service on Veteran’s Day. But, will they ever appreciate the singular experience of risking everything for the brother on your right, or the sister on your left?

I previously talked about Alex Jones missing his first deposition date here.The Judge expressed deep skepticism about his absence that first day. Now, he has missed a second day set for his deposition. This is just a crazy litigation tactic. Unless Mr. Jones is in the hospital, he really needs to attend his own deposition. The man who cooperated very little in discovery, and has now missed the first day of his deposition, is really digging a deep hole for himself. There is almost no way to avoid sanctions, at this point.

The Connecticut Judge ordered him to sit for his deposition on March 24 after he missed his first date on March 23. Mr. Jones claimed through his lawyer that a sinus infection prevented his attendance on March 23. But, as the Judge noted, he hosted his podcast on March 23 just fine. And, seriously, a sinus infection? His story is very thin. But, now he missed a second date set by the Judge herself.

Scheduling deposition dates typically is done weeks ahead. Lawyers for both sides must agree on a  date. Missing the first day is bad enough. But, now he has missed a second day set by the Judge herself.

So, the plaintiffs have apparently asked that he be found in contempt and arrested. See AP New story here. This may well become one of those very rare occasions when a party in a civil lawsuit is found in contempt. Mr. Jones’ conduct is extremely bizarre.

I have written before about Alex Jones here and here. The Infowars broadcaster and purveyor of conspiracy theories was found in default against Sandy Hook Elementary plaintiffs in 2021. Now, the parties appear to be engaging in discovery about his income. In the Connecticut lawsuit, they appear to be preparing for a trial just on damages to be awarded to the families. The plaintiffs scheduled a deposition for Mr. Jones. But, he failed to appear. His lawyer appeared for the deposition and told the parties that Mr. Jones was at a medical appointment. Yet, he had just broadcast his show the day before from his studio near his home.

The plaintiffs then filed a motion to compel, apparently. The Connecticut judge addressed a defense claim by Jones that a medical note showed he was confined to his home due to “medical conditions.” At the hearing, the Judge said the medical note was not sufficient evidence for such a claim. As the hearing progressed on March 22, it became apparent that Jones was at that moment broadcasting his show from his studio. The judge then ordered Jones’ attorney to submit a notice indicating from where exactly Jones was broadcasting his show this week.

Alex Jones lost both the Austin and the Connecticut lawsuit because he would not cooperate in discovery. Time after time, he failed to provide requested information. It appears his odd, obstreperous conduct will continue. Usually, parties who act so strangely in a lawsuit will drop out. Those sorts of difficult parties to a lawsuit cannot pay their lawyers. But, so far, Mr. Jones is still paying his lawyers. His conduct is very odd indeed.

See San Antonio Express News report here.

 

Million dollar verdicts in employment cases are rare. But, they do occur. In one lawsuit against Glow Networks, Inc., nine African-American employees sued the company for racial discrimination. The jury not only agreed, they awarded $70 million to the nine workers. Glow Networks, Inc. is a telecommunications firm.

Among the evidence was the experience of one employee who noticed a video camera set up in the office where he worked. Yet, in the office area where only white workers sat, there were no cameras. Joshua Yarbrough and another black employee were reprimanded for checking their phones during work hours. How would management know they had checked their phones except for the camera? Of 11 rooms in the work space, two had cameras. Those were the same two rooms where the black engineers had been advised to sit.

When Mr. Yarbrough was replaced and demoted to simple engineer, he quit. Later when the company went through some layoffs, they laid off many of the African-American workers. One supervisor testified that when the layoffs were occurring, a Human Resources representative said not to lay off any white workers. The white supervisor apparently testified at the trial. He said he nominated two engineers for promotion. Neither was promoted.

Mr. Yarbrough and eight other black plaintiffs filed suit. They filed suit under 42 U.S.C. Sec. 1983. So, the plaintiffs do not have to contend with caps on the compensatory and punitive damage awards. I do not know what the employer offered to settle the matter. But, I imagine they wish they had offered more.

See Dallas Morning News report.

Freshub sued Amazon in 2019 for patent infringement. Freshub produces smart kitchen appliances. But, in 2021, Freshub lost its trial in Waco federal court. Freshub’s lawyers then filed a motion seeking a new trial. Freshub alleged the evidence did not support the jury’s verdict. As part of its motion, it accused Amazon’s lawyers of engaging in anti-Jewish stereotypes during trial. The Plaintiff claimed Amazon’s lawyers created an “us versus them” mentality during trial.

Motion for New Trial

Judge Albright wrote a detailed decision explaining why there was indeed evidence to support the jury’s verdict. The court then discusses the allegation that Amazon’s lawyers played on “greedy Jewish” stereotypes of an Israeli company. The court noted that Amazon referred to Freshub as an Israeli company during the trial. But, it did so only when necessary. And, it is in fact an Israeli company. Yes, said the court, Defendant’s lawyer, also Jewish herself, did indeed ask about Freshet’s profits in terms of Israeli shekels. But, noted the court, Freshub, did in fact report its profits in terms of shekels.

Never Objected

During trial, Freshub never objected to any alleged stereotyping. During a hearing on Plaintiff’s motion, Freshub’s lawyers could not point to any evidence that Amazon’s lawyers played to Jewish stereotypes. The judge finds the Plaintiff’s lawyers “essentially accuse the Court of turning a blind eye” to Defendant’s prejudicial statements. The court then finds the attacks to impugn the lawyers for Amazon and the integrity of the court. Losing, said the court, is never a proper basis for making allegations of racism and anti-Semitism. The court said it was offended at these baseless allegations. The court finds the lawyers for Freshub have breached their duty to the court. The court notes the same three lawyers were previously found to have committed mis-conduct in another federal court.

Sanctions

Judge Albright then sanctions the three lawyers for Freshub. He orders them to attend 30 hours of Continuing Legal Education in ethics. It is an extraordinary remedy for extraordinary allegations. Sometimes, as advocates, we simply go too far.

See the decision in Freshub v. Amazon.com, No. 21-CV-00511, 2021 WL 598106 (W.D. Tex. 12/17/2021) here.

So, AG Ken Paxton is in trouble with the Texas Bar Association for filing a frivolous lawsuit. And, so is Sidney Powell. I previously wrote about Ms. Powell’s many frivolous election lawsuits here and here. I mentioned then that it seemed like she was playing dice with her law license. It turns out she was in fact playing dice with her law license. The Texas Bar has found merit to ten complaints filed about Ms. Powell’s frivolous lawsuits. The Dallas lawyer has already been sanctioned by one federal judge.

A Bar Association committee has found that Ms. Powell had no “reassemble basis” to deny that her lawsuits were frivolous. Filing frivolous lawsuits violates federal court procedure and state professional ethical rules, added the Committee. The Committee also found that she “unreasonably increased” the costs of those lawsuits. That means she filed suits lacking in evidence which required the opponent to hire lawyers and incur expense in defending. Those are the criteria for finding the lawsuits to be frivolous.

The Committee also found that Ms. Powell filed a certification of Dominion voting equipment in which she cropped out the date. She did this to make the document appear to be undated. If true, that is a very serious action for a lawyer to take. See San Antonio Express News report here.

So, yes, incredibly, Ms. Powell did indeed make bets with her law license. One wonders why. Elections are fleeting. A law license is a lifetime achievement.

Attorney General Ken Paxton is in trouble, again. The AG filed that silly, weak lawsuit in 2020 over Donald Trump’s election loss. The suit lacked any evidence. Some 16 Texas lawyers filed a complaint about that frivolous lawsuit with the Texas Bar Association. Among the many lawyers who joined in filing the complaint are four former Presidents of the Texas Bar Association. AG Paxton says liberal lawyers filed the complaint. Some might be liberal. But, its safe to assume the four former Presidents are not. Few President of the Texas Bar have even been liberal.

The Bar committee investigating the complaint have just recently affirmed there is merit to the complaint. It is very unlikely that “liberal” lawyers on the Bar committee reached that result. There just are not many “liberal” lawyers active in bar committees. The next step is for Mr. Paxton to decide if he wishes the complaint to be decided by a trial in state district court or by a committee composed of Bar members.

Frivolous Lawsuit

AG Paxton insists the lawsuit was not frivolous, because 19 state Attorney Generals joined the lawsuit and two Supreme Court justices voted to accept an appeal regarding the suit. But, Mr. Paxton surely appreciates that all 19 of those Attorney Generals were Republicans seeking to support former Pres. Trump. Too, those 19 Attorneys General did not join the lawsuit. They simply submitted briefs in support.

No Standing

It was a silly lawsuit. The suit argued that changes in election procedures in Pennsylvania, Michigan, Georgia and Ohio (which Trump won) somehow affected voters in Texas. The courts found that the AG lacked standing. Meaning the voters in Texas were not actually affected by changes in voting procedures which were enacted by those other states. See Axios report here.

And in the end, there was simply zero evidence supporting a claim that the 2020 election was stolen. Some 60 lawsuits filed by Trump allies also failed. Most lawyers who advance a lawsuit so lacking even colorable standing would at least be fussed at by the Judge, or at worst, be sanctioned by the Judge.

As a first offense, it is unlikely Paxton would lose his law license. The first offense often results in a private reprimand by the Bar Association. Although, any discipline would be significant, just because AG Paxton is the AG. It is unheard of for Attorneys General to be reprimanded. See San Antonio Express News report for more information.