A school board in San Fransisco has voted to spend $600,000 to remove a mural painted during the Depression by Victor Arnautoff, a Russian immigrant and the most important muralist in the Bay area at the time. It was a WPA project. The WPA commissioned fine public art all across the country during the Depression. The WPA hired talented local artists for local projects. Here in San Antonio, there is a beautiful mural at the old U.S. Courthouse building, now known as the Hippo Garcia bui

Mr. Arnautoff was a committed Communist. He rejected the traditional depiction of George Washington in thoughtful prayer at Valley Forge. He sought to capture the viewer’s attention by showing the Father of our country in daily life with slaves picking cotton and a dead Indian laying nearby, as colonists walk by. At the time, high school history books generally overlooked the incongruity of Founding Fathers who had owned slaves, wrote Robert W. Cherny in “Victor Arnautoff and the Politics of Art.”

The school board could have simply voted to cover the mural it found offensive. But, instead, despite vocal opposition, it voted to paint over the 13 panels. The pictures offend the children, noted the board members. The murals glorify slavery, genocide, and colonization, said an advisory group, the Reflection and Action Working Group. The committee is composed of activists, students and artists. Yet, according to the New York Times, 49 freshmen at the school were asked to write about the murals. Only four advocated that the murals be covered or removed.

The Board Vice-President, Mark Sanchez, said simply covering the murals was not enough, because they could be uncovered sometime in the future. He also said it was a grave mistake to paint the mural 80 years ago with no imput from Native Americans or African-Americans. Its a hurtful thing, an aggressive thing and it is too much for our young children to bear, he insisted.. See New York Times editorial here. The title of the editorial: “San Fransisco Will Spend $600,000 to Erase History.”

It is ironic. In 1956, Mr. Arnautoff was interrogated by the House Un-American Activities Committee, the House version of Sen. Joe McCarthy’s notorious committee,  because he drew a caricature of Richard Nixon. Today, we have a new generation of persons protecting us feeble persons from more un-American activities.

Oberlin College is a small private, liberal arts college in rural Ohio. It is one of the more liberal colleges in Ohio and in the Midwest – located in one of the more liberal towns in Ohio and the Midwest. In 2016, Gibson’s Bakery, a small business in Oberlin, caught a student trying to shoplift two bottles of wine. Allyn Gibson, white, confronted a black student. Two of his companions then assaulted Mr. Gibson.

Oberlin students started to protest the 100 year old business. The Student senate passed a resolution saying the bakery had a history of racial profiling and discrimination. The students accused the Bakery of racial profiling. The college suspended a long held contract with the bakery. Gibson’s felt like they had been tried and found guilty of racism on the streets. In three years, the  income of the business was cut in half.

Conservatives from outside the area flocked to the town to counter the student protests. The sidewalks were full of protestors, for and against.

And, in the midst of all this, the student and his two companions pleaded guilty to shoplifting that day at Gibson’s Bakery. They said they did not believe Gibson’s was discriminatory. Gibson’s laid off workers and stopped paying themselves due to decreased income.

Oberlin representatives appeared at the protests. The college says the Dean attended the protests to keep the students safe and the protests lawful. But, it looked like they were supporting the protests. The Bakery asked the college to issue a statement saying the bakery was not racist, but it refused.

Gibson’s Bakery sued the college for defamation. The trial judge kept the focus not on the protests, but on how actions by the college aided the protestors in various ways that harmed the income of the Bakery. The judge allowed a jury instruction that provide that if the jury finds Oberlin acted as a support group to the protestors, then they could be liable under Ohio law. There was some evidence that the school helped the students issue a flyer which called Gibson’s racist.

After a six week long trial, an Ohio jury found the college guilty of demafation. It awarded the Bakery 11.2 million in compensatory (i.e., emotional suffering) damages and punitive damages of $33.2 million. Ohio law has caps on punitive damages, so the amount will be reduced. See ABA Bar Journal news report here. Oberlin College will appeal. But, it is very difficult to overcome a jury verdict.

To award punitive damages, the jury had to find the college acted with “ill will” and malice. The college will also have to pay attorney’s fees for Gibson’s attorneys. In her closing statement, one of the attorneys for the college said the college had learned from the incident and would make changes to programs and admissions to make the school more respectful of local businesses. If true, this will become a very expensive lesson for a small liberal arts college.

In this day, when so many people see themselves as experts on racism, we should all pause. I wrote a post here about how we as a society have become so expert on racism that some of us even detected racism in Mary Poppins. Today, Joe Biden is criticized not because he supported segregation. He did not. Far from it. He simply said he worked with segregationists to get bills passed that benefited minorities. Yet, he too has been deemed by the “experts” to be racist. I just wish these so-called experts on a racism would end up on a jury in one of my cases.

War memorials are close to the heart of every veteran, especially those of us who have served in a time of conflict. You do not really appreciate war memorials until you have lost a buddy or two and then come home. In American Legion v. American Humanist Assoc., No. 17-1717 (6/20/2019), the U.S. Supreme Court addressed a World War I memorial in Maryand that was erected in 1925. The memorial is a large Latin cross, meaning the traditional Cristian cross, with the names of 49 Prince Goerge veterans who were lost in the war. It is situated on state owned land. It is known locally as the peace cross.

The American Humanists argue that the cross represents Christianity. The government supports the monument by maintaining the grounds and allowing the cross to remain. The district court granted summary judgment in favor of the American Legion. The Fourth Circuit Court of Appeals then reversed, saying the cross was clearly a Christian symbol. The Fourth Circuit suggested the arms be cut off, to make it simply an up and down pillar.

The Supreme Court reversed the Fourth Circuit. The court, Justice Alito writing the mostly majority opinion, made the point that 90 years later, it is inherently difficult to ascertain the purpose behind selecting a Latin cross. Too, over hundreds of years, the Cristian cross has taken on secular meaning. One finds the Christian cross everywhere from the Swiss flag, to the Red Cross symbol, to military awards, such as the Distinguished Cross and the Navy Cross. The simple Christian cross came to symbolize the WW I cemeteries. Even the poem, “Flander’s Field,” the well-known poem from WW I, has this refrain:

“In Flander’s fields the poppies blow

Between the crosses, row on row.”

The court makes the point that the Latin cross has taken on a secular meaning. And, notes the court, it makes sense that we would use symbols that were important to the deceased to memorialize those same deceased veterans. As one mother said when she donated $25 to the cross fund in the 1920’s, that cross symbolizes to her her son’s grave stone. Her son who was killed in France during the war. See the opinion here.

In this day when we seem to anxious to pull down veteran memorials relating to the Civil War, we note the court’s remark that a host of motivations play a role when a memorial is erected. The motives of the builders, of the entity that accepts the monument, of those who make donations. It is difficult to ascertain the motives behind these ancient memorials.

Lawsuits are generally emotional. Both sides feel strong emotions as the lawsuit progresses. It is tempting to seek a megaphone of some sort and proclaim to the world the injustice being foisted upon us. But, only a few of us have the megaphone Alex Jones has. Alex Jones, the infamous Infowars host has been sued by family members of the Sandy Hook massacre. Mr. Jones incredibly proclaimed for months and years that the Sandy Hook massacre was staged and not real. Some family member sued him for defamation. Eventually, Mr. Jones admitted the Sandy Hook massacre was not staged.

Alex Jones after a long protracted fight over documents finally produced large stacks of emails and other documents. Part of those documents included child pornography. Mr. Jones accused one of the lead lawyers of trying to frame Mr. Jones with the child porn. The district judge sanctioned Mr. Jones for that conduct. She called it indefensible, unconscionable and possibly criminal. She ruled that the sanctions would include an order that the Jones defense could not seek certain types of motions to dismiss, and that Mr. Jones must pay attorney’s fees for the Sandy Hook families. See CNN news report here.

There is never a good time to comment publicly on a lawsuit. Any comments should be reserved for later, after the lawsuit is over. But, Alex Jones is not a “later” sort of guy. The child porn may have simply been sent to Infowars by listeners. This could all be quite inadvertent. But, in making an issue of it, this defendant made things much worse for himself.

Depositions are usually pretty mild. But, sometimes they include some drama. Jonathan Langley sued IBM for age discrimination. He alleged that a reduction in force was used to pare the number of older workers. At his deposition, he relied in part on some documents given him by current employees of IBM. These documents included slides from a “high level” presentation made to decision makers. During his deposition, he was asked to provide the names of the employees who leaked the documents. Mr. Langley refused to provide names, knowing they would be subject to reprisal.

IBM then filed a motion to compel his answer to that question. It also sought sanctions against the employee for refusing to answer the question. The employer argued that knowing the source of the information was essential to its defenses. IBM argued that it was important to know if the leakers uttered the information themselves. The Court rejected that argument., The court noted that IBM did not contest the authenticity of the documents. It found that IBM could easily find out who wrote the slides if it wished. The court saw no relevance of the identity of the leakers to any defense.

In conclusion, the court noted that IBM was on “thin ice” already due to discovery issues. IBM, said the court, had not cooperated fully during discovery. The employer also could have contacted the plaintiff lawyer prior to the deposition, noting that it would ask for the identity of the leakers. Instead, the employer waited to surprise the plaintiff and his attorney at deposition. The court was also troubled by the fact that IBM had yet to produce the offending documents themselves. See the decision in Langley v. IBM, No. 18-cv-433, 2019 WL 1559146 (W.D. Tex. 4/10/2019) here.

The documents are described only in general terms. They were filed with the court under seal. So, they were apparently sensitive documents. Yet, they were also relevant, or the court would have said so. So, the failure of IBM to produce them is stark. It is an old axiom that one cannot come into court seeking equity (i.e., sanctions) if one has not acted with equity. The court was troubled by IBM’s conduct. Technically, a lawyer cannot instruct his client to refuse to answer a question based on lack of relevance. But, I expect the Judge was annoyed with IBM’s conduct throughout the litigation, including hiding these sensitive, but relevant documents.

Too, asking for the names of current employees who have provided help to a former longtime employee is a very sensitive topic. It is likely the leakers would suffer some reprisal for their conduct. The court had to know this. The IBM lawyers clearly wanted to apply the greatest amount of pressure they could at the plaintiff’s deposition.

 

Many employers in Texas are trying to save a few dollars by carrying their employees as independent contractors. As an independent contractor, the employer need not provide medical benefits or other types of benefits. But, as an independent contractor, the injured employee can sue the employer for tort injuries. In Stevenson v. Waste Management of Texas, Inc., No. 14-17-00433 (Tex.App. Hou. 2/21/2019), the employer tries to have it both ways. Waste Management wants employee status to avoid a tort lawsuit, yet an agreement provides that the worker was an independent contractor.

The employee was hired by a staffing company. The staffing company then sent the worker to Waste Management. The agreement between Waste Management and the staffing company clearly said the worker was an independent contractor. Yet, the agreement implied the worker had no right to control how he performed his work. The lower court granted summary judgment regarding the negligence claim, finding the worker was an employee. The Houston Court of Appeals reversed that decision.

The higher court found the agreement was not the determinative factor regarding the worker’s status. It was one factor. Some deposition testimony supported the contention that once the worker was on the premises of Waste Management, Waste Management controlled his work completely. There were some workers which Waste Management said could not return to work. In effect, Waste Management fired them. But, other deposition testimony supported the claim that the worker was an independent contractor. The Court of Appeals found this was not an appropriate issue for summary judgment. Whether the plaintiff was an employee should be decided by the jury. See the decision here.

Mandatory arbitration agreements have become very common in a wide variety of jobs. Typically, the newly hired employee signs a raft of documents, one of which may include an arbitration agreement. Often, the employee has no recollection that s/he signed an arbitration agreement. One plaintiff attorney, recognizing that the employee may not know whether he signed an arbitration agreement, sent a pre-suit letter to the former employer asking if the employee signed a mandatory arbitration agreement. The lawyer’s letter provided that if the employer did not respond within one month with a signed arbitration agreement, then the plaintiff would file suit in state court. The plaintiff would presume that if there was a mandatory agreement, then failing to provide it would constitute assent to a lawsuit field in state court.

The employer did not respond. Neither did it provide a signed mandatory arbitration agreement. Yet, it moved to compel arbitration. So, was the plaintiff lawyer’s letter a new agreement which essentially overrode the mandatory arbitration agreement? Yes, said the Fourth Court of Appeals in San Antonio. In Adcock v. Five Star Rentals, No. 04-17-00531 (San Antonio App. 4/18/2018), found that the pre-suit letter amounted to an agreement to proceed in state court with this employment related lawsuit. The court noted that the lawsuit commenced, and written discovery was propounded. It was not until the employer noticed the mandatory arbitration agreement when producing documents that it invoked arbitration. The lawsuit was six months old at that point. But, the court did not rest on the possibility that the employer may have invoked arbitration too late. It found the parties entered into a new agreement when Five Star did not provide a copy of the mandatory arbitration agreement.

See the decision here.

 

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Saenz had a huge laugh and a booming voice. He laughed a lot.

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did best, serving others.

We should all serve our country half as well as 1SGT Saenz. There is a nice tribute to 1SGT Saenz here. As John Bear Ross mentions on his website, do not mourn that a man like 1SGT Saenz died. Rejoice that a man like 1SGT Saenz lived.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here. Like many of us, he returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, we remember the fallen – but not the Confederate fallen. They were removed from the list a few years ago.

Once again, the President has attacked a federal judge, claiming the judge is based. Judge Amit Mehta found that it was “simply unfathomable” that a Congress that is constitutionally authorized to remove the president cannot investigate that that same president. The judge was denying a request from the White House to stop a subpoena to Pres. Trump’s accounting firm for his financial records. It ought to be self-evident that a body that can remove a president from office can also investigate that president. See CNN news report. But, Pres. Trump is one of the most litigious presidents we have ever had. He has often pursued frivolous legal theories.

And, as he has been doing since 2016, he again attacks Judge Mehta saying he is biased because he was appointed by Pres. Obama. After 20 plus years dealing with that same judiciary, I can say with some authority that yes, who appoints a particular judge does give some clues to how that judge may rule. But, that possible political leaning never works 100% or even 90% of the time.

More importantly, a person of reponsibility like the president should never engage in acts which undermine the judiciary. These attacks on the judiciary have become a running theme in the ABA Bar Journal. That concern reflects the concern for all judges that their authority is often tenuous. In the courtroom, there can be 30 criminal defendants and just one or two bailiffs. What keeps folks in line is often the perception of authority. If we lose that perception, then the safety of many judges is placed at risk. Responsible persons do not talk that way about judges.

In 2002, in reaction to the Enron scandal, Congress passed the Sarbanes-Oxley Act. The Act protects whistleblowers who report violations of securities regulations regarding accurate reporting. See National Whistleblower Center post regarding the act here. There was a whistleblower at Enron who did try to report the violations of securities regulations. And, here in San Antonio, we see a Sarbanes Oxley whistleblower who was fired by Spectrum. Hether McCullar has filed a federal lawsuit saying Spectrum fired her after she tried to tell management they were mis-classifying renewed accounts as completely new accounts. It looked better to have new accounts than to record simple renewals. Ms. McCullar tried to tell her supervisors this mis-classification was occurring.

The result of the mis-classification was to overstate the number of renewals. The number of renewed accounts would then appear on the mandatory SEC filings.

In response, alleges the employee, the company took away from Ms. McCullar a valuable account, the HEB account. The account was given to another sales executive in Austin, despite the fact that Ms. McCullar was here in San Antonio. Months later, Ms. McCullar was given a final warning, even though she had never received any prior written warnings. The final warning appeared to link her report of mis-classification to some sort of policy violation.

Spectrum later fired Ms. McCullar with no reason. See San Antonio Express News report here. Yes, at least based on these allegations, that does indeed sound like a whistleblower claim.