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Sebastien De La Cruz sang at the NBA Finals in San Antonio, just as he did a year ago. The little boy who wears a charro outfit while singing. Charros are Mexican cowboys. Sebastien is a Mexican-American. He is as American as you and I. Yet, when he sings the national anthem at the NBA Final games, folks from around the country tweeted that he was an "illegal" and asked why a Mexican was singing the national anthem. No, he is no more a Mexican than I am Irish, German or French. See San Antonio Express News report (account required).

"San Antonio’s Little Mariachi," as he is sometimes called, was a semifinalist on America’s Got Talent in 2012. He was a last-minute replacement at last year’s NBA Finals. He likes to wear the charro outfit. Why not? He was subjected to racist tweets last year. After he sang last night, more racist tweets followed. Now more experienced, Sebastien sighs, and suggests people stop being childish. The 12 year old responds, "I am who I am, and nobody can tell me different." That is wise advice for anyone subjected to racism. 

I talked previously about the City of San Antonio filing an appeal regarding Lt. Salvaggio. See my prior post here. The City lost before an arbitrator, in front of district court and in front of the court of appeals. Yet, they appealed again to the Texas Supreme Court. And, now they have lost, again. See San Antonio Express News report. 

Can anyone say "frivolous appeal"? 

I frequently tell my clients or potential clients that if they want fairness at work, then they need to form a union.  The case of Lt. Joseph Salvaggio of the San Antonio Police Department illustrates why.  Lt. Salvaggio took the exam for promotion to captain in 2010.  One of the instructions was that if a candidate needed a restroom break, s/he should cover the answer sheet and not take any test materials with him to the restroom.  No definition of "test materials" was offered.  Between the morning and afternoon test sessions, the candidates were allowed to study for the test.  In past exams, the test proctors had allowed the candidates to use scratch paper during the exam and did not collect the scratch paper at the end of the same.

Lt. Salvaggio had a post-it note the day of the test with notes on it.  He had recorded topics he wanted to review during the mid-day break.  As he left to go to the restroom, he took the post-it note with him.  The proctor noticed the post-it note.  He told the on-site San Antonio PD officer.  The officer told a higher-up who eventually told the Chief of Police, William McManus.  Several months later, a scandal developed regarding a detective exam.  Some detective candidates had removed a test booklet from the testing site.  During the subsequent Internal Affairs investigation, the post-it note with Lt. Salvaggio was mentioned and a separate investigation was launched.  A couple of months later, the Lieutenant was notified that he was accused of violating a Civil Service Commission rule prohibiting a police officer from bringing discredit upon himself or the department.  He was accused of removing test materials from the test site. 

The Chief is advised by two advisory boards, one civilian and one composed of police officers appointed by the Chief of Police.  The civilian board advised that no action should be taken against Lt. Salvaggio.  The police advisory board recommended a thirty day suspension.  The Chief, however, chose to place the lieutenant on indefinite suspension, tantamount to termination.  

Under the terms of the Collective Bargaining Agreement, the captain candidate filed a grievance.  The grievance was heard by an arbitrator in December, 2010 and the lieutenant won.   The arbitrator found that Lt. Salvaggio did not violate any established rule.  The city filed suit as its appeal.  Arbitral findings are difficult to overturn.  The whole point of union arbitration is to reach a quick, decisive result.  The city challenged the finding based on a lack of jurisdiction, arguing that the arbitrator was enforcing a rule created not by the Civil Service Commission, but by the arbitrator himself.  That is, the City seems to be arguing that since there was no rule regarding what was test materials, the arbitrator in effect created one in some way.  I find their argument confusing. 

The City lost in district court.  It lost again before the Fourth Court of Appeals.  The Fourth Court found that the arbitrator did not create a rule.  Only the Civil Service Commission could define "test materials."  And, the Commission did not promulgate any such definition.  So, the Chief cannot then employ his particular definition.  Indeed, said the Fourth Court, the Chief had effectively created a new rule by defining post-it notes as "test materials."  

Now, the City has filed an appeal with the Texas Supreme Court making essentially the same argument.  See notice and petition for review.  The Texas Supreme Court is rather friendly to employers, so perhaps this appeal is not completely futile.  But, the City’s argument is based on logic that seems to make little sense.  It is unfortunate that this employer has chosen to spend tens of thousands of dollars on what some would describe as a "frivolous" appeal. 

And, it all started with a chief executive who did not accept the recommendation of his own advisory boards.  Yes, we should terminate employees who break the rules, even 23 year employees like Lt. Salvaggio.  But, we, as employers, should be very certain that our rules are clear before we end a 23 year career.  

If the lieutenant was not a union member, he would have no recourse.  Under the at-will doctrine, an employer can indeed terminate an employee for a silly reason or for a mis-perception.  Lt. Salvaggio must really appreciate his union membership, now. 

The City of San Antonio runs the city’s airport.  But, the Airport has its own police department.  Until 2009, the airport police department was separate from the San Antonio Police Department.  Airport Police Officer Russell Martin complained about Sgt. Orlandop Battles’ time entries.  In 2008, Officer Martin, a veteran of some 30 plus years in law enforcement, said Sgt. Battles was recording his time inaccurately.  Four days after his complaint, Officer Martin was assigned to work with Sgt. Battles.  A remarkable coincidence.  

Officer Martin asked to not work with Sgt. Battles.  He said working with him would result in "fiscticuffs or shooting."  The officer explained later that he meant the statement as a shock statement to get his supervisor’s attention, not as a threat.  The pairing was changed.  He would not work with Sgt. Battles.  Six months later, having forgotten about the statement, Officer Martin was told he would be terminated for making threats.  As a city employee, Officer Martin appealed the decision to a semi-independent board, the city’s civil commission.  The commission found in favor of the veteran officer, by a vote of 2-1.  But, the City Manager, Sheryl Sculley, overruled the commission’s finding.  She upheld the termination.  Officer Martin filed suit in state district court.  

A year and a half later, he amended his petition to add a federal claim based on 42 U.S.C. §1983.  Sec. 1983 requires that states and local governments provide basic procedural due process when terminating public employees.  The Plaintiff argued that when the City Manager overturned the civil commission’s finding, she did so without affording him a hearing.  She made a paper decision.  She did not first conduct her own hearing before reaching her decision. . 

Some four years after filing suit, the parties have now reached a settlement.  Gilbert Garcia, a San Antonio Express news columinst says it is the largest settlement by the city in recent memory, $225,000.  All because the City Manager ignored the recommendation of her own commission.  And, all because the airport police could not accept one veteran officer making fairly routine complaints about a co-worker.  See San Antonio Express News report here (requires an account).

According to the court’s file, the settlement was actually reached in late July.  It took some three months for the San Antonio City Council to finally address the settlement. The City Council will vote on the settlement the week of Oct. 1.  Settling with public entities takes longer, but the plaintiff does not need to fear the public entity will declare bankruptcy.  Mostly anyway….

A federal court here in San Antonio has found in favor of employees who sued AA Foundries.  i first wrote about the lawsuit here.  A manager was accused of using the n- word frequently.  A hangman’s noose was found in the breakroom.  The Equal Employment Opportunity Commission filed suit on behalf of four former workers.  A year ago, the defense lawyer merely commented that the noose was a one-time incident by an "idiot."

Well, the San Antonio jury agreed – sort of.  They found the company guilty of discriminatory acts.  The jury awarded punitive damages of $100,000 to one worker, $60,000 to a second worker and $40,000 to a third worker.  Regarding a fourth worker, Kathy White, the jury found she did not suffer any discrimination.  No worker was awarded compensatory damages.  See San Antonio Express News report.  The Superintendent, Ronnie Hunt, was accused of referring to black workers as "you people" and using the term "boy," as well as using the n- word. 

AA Foundries has 20 employees.  So, the amounts will be reduced to the cap on damages, which is limited to $50,000.  Compensatory and punitive  damages are limited to $50,000 for employers with 100 or fewer employes.  The company’s attorney indicates they will request a new trial and file an appeal if necessary. 

A separate, prior trial in July found in favor of AA Foundries and against a fifth employee, Mary L. Johnson. 

The EEOC did good work in this case, apparently conducting a thorough investigation and prosecuting the lawsuit. 

A San Antonio warrant officer was killed in a helicopter crash in Logar Province, Afghanistan.  CW2 Thalia S. Ramirez and another soldier from the Rio Grande Valley were piloting a OH-58D Kiowa Warrior helicopter, a scout helicopter when they crashed.  CW2 Ramirez was assigned to the 82d Airborne Division.  There are indications the helicopter may have been shot down. Both soldiers were near the end of their deployments.

CW2 Ramirez was originally from Nairobi, Kenya.  She was on her second deployment.  She joined as a water purification specialist in 2003.  In 2008, she became a pilot.  She leaves behind her husband, Jesse Belbeck.  See San Antonio Express News report. 

Title VII of the Civil Rights Act of 1964 prohibits discrimination.  Evidence of discrimination typically includes direct evidence of discriminatiuon (e.g. use of the n- word) or circumstantial proof.  Circumstantial proof can include proof that the employer lied or mis-lead regarding its reason for termination.  Does the mere act of lying equal proof of discrimination?

For some years, courts of appeals, especially the Fifth Circuit in New Orleans applied a "pretext plus" standard.  These courts required something more than evidence of pretext.  They required some additional evidence that the employer was motivated by improper motive.  But, the United States Supreme Court overruled the Fifth Circuit and other courts who adhere to "pretext plus" in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. (2000).  

In the Reeves decision, the Supreme Court held that mere evidence of pretext will suffice as evidence upon which the jury can infer discrimination.  See Reeves decision here.  The court found that the falsity of the employer’s explanation alone can support a finding that the employer is attempting  to cover up a discriminatory purpose.  Plaintiff Reeves had shown, said the Supreme Court, that he had maintained complete records of his attendance – even though he had been fired for allegedly failing to keep accurate attendance records. 

In Swenson v. Schwan’s Consumer Brands North America, No. SA-10-CA-00602 (W.D. Tex. 4/24/12), a San Antonio federal court court was presented with such evidence of the falsity of the employer’s explanation.   Yet, the court applied a "pretext plus" analysis and faulted the employee for not also providing evidence that the employer was motivated by discrimination.  The court should have ruled that evidence indicating the employer’s explanation was false requires that a jury determine the key factual issues.  So, the district court granted summary judgment. 

The Swenson court correctly found that the issue is not whether the employer is correct in perceiving the employee is in violation of a rule.  The key issue is whether the employer truly believes the reason is true.  Schwan’s claimed that they fired Swenson because one of his employee violated the vacation policy.  Mr. Swenson responded that the alleged policy was not a true policy, that the payroll department would implement any such policy and they did not dispute the vacation pay.  The  Plaintiff also presented evidence that the employer’s explanation for Swenson’s termination had changed several times.  This should have been enough evidence to show sufficient question regarding whether the employer’s explanation was false.  The judge should have allowed the jury to determine the truth of the matter. 

But, instead, the court disregarded this evidence and found that the employer sincerely believed the employee violated the policy.  The court required the employee to put on evidence that the employer did not truly believe its explanation.  A changing explanation ought to satisfy that sort of burden.  But, more fundamentally,  once the employee shows an explanation is false or is possibly false, then a jury should decide the truth.  Summary judgment is not appropriate when factual issues exist.  In requiring something more than mere pretext, the court is applying the discredited "pretext plus" analysis. 

The employer was accused of making several age related remarks about Mr. Swenson.  Comments referred to the Plaintiff as "my disabled dad" or requesting a "senior citizen’s menu" for the 48 year old worker.  But, the court also applied the largely discredited "stray remarks" doctrine – which requires the ageist remark to be made by the decision-maker close in time to the termination.  

The plaintiff also provided evidence that the employer did not follow its own disciplinary policies and that younger workers were treated better than the plaintiff in similar situations.  The court disregarded this evidence, essentially finding that those facts alone did not require a denial of summary judgment. 

So, even though Plaintiff Swenson provided ample evidence to justify denial of summary judgment, the court found against him.  And, jury trials become more and more rare. 

An employer can modify the at-will relationship.  An employer can agree to terminate an employee only for "just cause."  Many employers agree to do so so for key employees.  But, how does an employer modify the at-will status of an employee?  in Crystal City v. Palacios, 2012 WL 1431354 (Tex.App. San Antonio 201012) (not for pubication), the employer made "just cause" one of its policies.  The just cause policy appeared to apply to all employees.  The policy provided that an employee would only be fired for just cause.  The San Antonio Court of Appeals, found that language was not binding on the employer.  The policy was too general, said the court.  The court relied on another decision, Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998).  But, the Brown decision was different.  In Brown, the Texas Supreme Court found that an oral promise to terminate for just cause could not modify the at-will doctrine.  In the Palacios decision, the policy is in writing. 

Indeed, the Palacios decision conflicts directly with County of Dallas v. Wiland, 216 S.W.3d 344 (Tex. 2007), where the Texas Supreme Court found that a written policy of Just cause would modify the at-will status of an employee. 

The San Antonio Court of Appeals designated its decision as not for publication.  That designation is supposed to mean the court believes the decision only applies to this one specific fact situation and should not apply to other situations.  The decision will not appear in the official reporter of court decisions.  But, in these days of ready access to Westlaw, not appearing in Southwestern Reporter does not mean much.  See the Palacios decision here. 

We always hear about the million dollar judgment in an employment case.  But, in reality, far more cases result in $30,000 judgments or less.  This is especially true in federal court.  In the case of Barney v. Hill Country Shooting Sports Center, No. SA-11-CV-268, a jury found in favor of the plaintiff regarding her wage claim.  The lawsuit, filed in U.S. district court, concerned overtime wages.  The San Antonio jury awarded $29,500 in unpaid overtime wages.  The judge later awarded another $29,500 in liquidated damages and $10,000 in attorney’s fees.  

So, no, contrary to what many plaintiffs expect, the jury did not get mad and award the maximum amount allowed.  They simply, calmly awarded the amount which the plaintiff was owed.  The trial result, like many, did not appear in the San Antonio Express News.  The jury quietly did its job and then went home.  That is how the judicial system is supposed to work. 

I do not understand why some service members feel the need to exaggerate their military service.  I suppose some of that has long occurred.  Once, I was in the Officers Club at Ft. Sam Houston, Texas enjoying a drink with another service member.  Some guy we did not know, sitting at the bar started telling us about his "dog-fight’ during the Granada invasion.  This would have been around the early 90’s.  The man claimed he was a Navy pilot and engaged in aerial combat during the Granada invasion, which occurred in the early 1980’s.  At the time in the early 1990’s, the Granada invasion or the Panama invasion were the only significant combat actions in recent U.S. history.  

Problem was there was no aerial combat during the Granada thing.  Even the ground combat was pretty limited.  My military friend and I did not call the man out on his fabrication.  His beliefs did not cause us harm.  And, if he was drinking a beverage at the Ft. Sam Officers Club, then he probably had some service connection. 

Fifteen years later, I was serving in Iraq.  As we headed home at the end of a 12 month tour, we learned that someone we thought was a First Sergeant with multiple parachute school badges, a Special Forces badge, and more was also a fraud.  Perhaps none of his "hooah" badges were valid.  Yet, he wore a great many on his uniform.  The crazy thing was that he was actually a fairly effective First Sergeant.  

Now, we learn that San Antonio singer Timothy Poe might not have the medals or combat wounds he has claimed.  Mr. Poe appeared on "America’s Got Talent" earlier this week.  He claimed to have suffered wounds from a grenade in Afghanistan and from being shot in the leg in Iraq.  Spokesmen for the Minnesota National Guard, with whom he claims to have served, however, say he did not deploy to Iraq.  And, there are questions about his supposed wounds from Afghanistan. See San Antonio Express News report.  

Why the need to embellish?  We may never know why.  But, i am sure there once was some Roman veteran who claimed to have conquered Gaul with Julius Ceasar – even though he was actually stuck in some Roman boot camp in Podunk, Rome plucking chickens for the camp dinner.