When I was called to active duty in 2003, we had exactly 5 days notice. But, our leadership had dropped heavy hints two months prior. And, that activation was classified. It was “super secret.” Still, we had those precious two months to change our lives.

Many soldiers in Operation Lone Star just had two days notice. In Sept, 2021, Gov. Abbott expanded what had been a  volunteer mission. He called for an additional 1500 troops in September. In October, he called for another 2500 Guardsmen. On Sept. 22, 2021, Tucker Carlson demanded the governor come on his show and explain why Gov. Abbott had not called out the Texas Guard. The Governor responded by calling up the equivalent of one Brigade. A brigade generally includes about 5,000 soldiers. Gov. Abbott went all in to protect our border.  Later, Gov. Abbott said they would have 10,000 Guardsmen on the border. That number comes near the size of an entire Division.

Yes, there is a problem on the border. Does it really need 10,000 Guardsmen?

“Sat on His Ass”

What do those soldiers do? Many report they have simply sat around doing nothing. One unidentified soldier had his own business when he was called up. During the two wars in the 2000’s, the Guard and Reserve typically received 1-2 year’s notice for an activation. This young soldier with his own business received three day’s notice. Three days to drop his life and start a new one. He said that when he arrived at the border, he sat on his “ass” for days doing nothing. Then, he was sent home after three weeks. In other words, he was deactivated. But, as the Army Times explains, “. . .it may be too late to save his business. He says he still hasn’t found a new project and had to sell his company’s van to pay his mortgage, car payments and business loans.”

One member of the elite Air Force cyber operations unit said they are “sitting at a watch point for hours on end with their thumbs up their ass doing nothing,” a member of the cyber unit said.

Impacts Families Forever

Gov. Abbott gains some political cover with this activation. But, it impacts these families forever. Unlike every state activation since probably World War II, this activation was mandatory. The Texas Adjutant General treats this activation like a war zone activation. If a soldier does not appear when called, they are subject to arrest. Two soldiers committed suicide almost certainly due to the family hardships caused by this mandatory activation.

Lack Essential Equipment

Even today, many Guardsmen on the border lack body armor and helmets. Some lack ammunition. The Governor apparently wants to downplay the dangerous aspects of the mission. Narco-terrorists fire a few rounds at the Guardsmen every so often. See Army Times news report here.

Many Guardsmen still lack cold weather gear. That means they lack cold weather boots, parkas and underwear. When I went to Iraq in 2005, cold weather gear was a large part of my two duffel bags. Unlike the Federal call-ups during the 2000’s, the Texas Guard folks were not activated through a U.S. Army post. They have not had and still do not have access to the post facilities that issue everything from cold weather gear to IBA’s (Individual Body Armor). The Texas Guard is just not set up to maintain large stocks of personal gear.

Lack of Leadership at the Top

The Texas Adjutant General, MG Tracy Norris, ought to have warned the Governor about this. It is her job to tell him that his expectations are not realistic and may cause unnecessary harm to soldiers. When we take that oath, we assume there will be privation. But, hardship to work a psuedo-mission is incredibly deceptive. Worse, it will cause the retention rates for the Texas Guard to plummet. The Texas Guard may never recover from this blow to recruiting and retention. In the October – December, 2021 time frame, the retention rate dropped to 65%. Compare that to a normal 90-95% retention rate for the Army National Guard. But, as the complete lack of leadership has become apparent, even that low retention rate will surely drop much further.

In all my time in the Reserves and National Guard, we often said this like a mantra, “the civilian job comes first.” The Texas Guard has turned that motto on its head.

And, all this, so Gov. Abbot will win his next election.

It used to be that chief law enforcement officers respected the courts and and the laws they must enforce. But, Ken Paxton sees things differently. The chief law enforcement officer for the state recently went on Mike Lindell’s website, Frank, and urged his supporters to contact the judges on the Texas Court of Criminal Appeals and pressure them to change a recent decision. It started when AG Paxton started prosecuting low level voter fraud cases. One such prosecution resulted in an appeal to the Texas Court of Criminal Appeals. The CCA overturned a provision in the Texas Penal Code that allowed the AG’s office to prosecute voter fraud cases. The CCA voted 8-1 to strike down that provision. The CCA consists of all Republican judges. See Texas Tribune report about that decision here.

Of course, the decision did not say the AG can never prosecute such cases. The decision said the AG can prosecute such cases only at the request of the local District Attorney. The AG’s office has asked the CCA to reconsider its decision.

On Mike Lindell’s website, AG Paxton called on his supporters to contact the eight judges on the CCA and pressure them to accept his motion to reconsider. He urged his supporters to do so in a “calm” manner. Send them mail, send them email, call them, urged the chief law enforcement officer of the state. AG Paxton even included contact information for all eight judges. See Business Insider report here.

So, this is first for me. A party litigant who lost his case is trying to force judges to reconsider their decision based not on the facts or on the law, but on political persuasion. We can imagine how this would work if everyone who has a case pending at the Bexar County Courthouse calls on his/her neighbors and family to pressure the state court judges. And, this from the chief law enforcement officer of the state of Texas?

Ralph Bolado settled a discrimination suit against the San Antonio River Authority. SARA maintains water control features in the San Antonio River watershed. The parties agreed to settle the matter for $210,000. That amount includes $83,000 in lost pay, $41,000 in compensatory damages, $85,000 in attorney’s fees and six months of medical benefits for Mr. Bolado and his family. It is rare for a plaintiff to receive money for compensatory (emotional suffering) damages. That suggests Bold had some good evidence.

Mr. Bolado worked at the Converse location for SARA. The allegations include that Bolado and a Black female worker were subjected to racial comments by their supervisor. When Bolado complained, he was assigned to menial tasks, such as picking up trash and pulling weeds.

In 2018, the supervisor called Bolado an obscenity. Bolado replied that his name was Ralph. The supervisor then threw a PVC pipe at Bolado. The pipe broke Bolado’s nose. His injuries required surgery. Bolado then complained to HR about his supervisors racial comments. But, HR told Bolado he was pushing every one under the bus. SARS took no action against the supervisor. But, later the supervisor resigned in lieu of termination after the PVC pipe incident.

See San Antonio Express News report.

When I was a young warehouseman working my way through college, my job was to pick orders – that means gathering the products and items for a given order. I was tempted more than once to climb those 20 foot high shelves to grab a quick item. Climbing the shelves would have saved me the two or three minutes necessary to find a ladder and position it in place. The thing that kept me from shimmying up a 20 foot high industrial shelf was an OSHA sign that prevented general risky work practices. That sign and my employer’s emphasis on workplace safety kept me from taking unnecessary risks. So, imagine my surprise at reading a concurrence from Justices Alito, Gorsuch and Thomas suggesting that OSHA only addresses unique workplace situations involving asbestos and “rare chemicals.” National Federation, concurrence, slip op., p. 3.

A three Justice majority opinion ruled in National Federation of Independent Business v. OSHA that the administration’s vaccine mandate for employers of 100 or more employees was not allowed under the Occupational Safety and Health Act of 1970. The three judge majority found the vaccine mandate was not tailored to actual occupational risks. The COVID19, said the majority, was too general. The risk applied to the population as a whole, not simply to the workplace. That means the vaccine mandate was not tailored to occupational related risks.

No Control

But, as the dissent noted, the workplace endures the COVOD19 in a unique way. It is only in the workplace that workers encounter the risk with no control. Employees cannot control their workplace, as they can control the risk of infection at home or at sporting events. The three judge majority’s opinion more addresses the vast powers allowed under the 1970 act and less addresses the 100 employee mandate. The majority opinion mentions that the risk of infection occurs at home and at sporting events. But, the average worker has no control over the risk at work. The occupation related risk is different.

The reach of the OSH Act is broad. The majority justices seem more concerned with that broad reach. But, their job is to interpret the statute, not re-word the statute.

Three justices, Gorsuch, Thomas and Alito then concur based on the so-called “major questions doctrine.” Their concern is that  something that affects 84 million workers ought be be instituted by Congress or by elected officials, not by OSHA. But, again their real complaint is with the broad mandate of the Occupational Safety and Health Act of 1970, not with the 100 employee mandate. The fact is that OSHA has the authority for such a broad mandate. OSHA already regulates much more than asbestos and “rare chemicals.” And, this former warehouseman is grateful for that broad mandate.

See the decision in National Federation of Independent Business v. OSHA, No. 21A244 (1/13/2022) here.

The plaintiff, Mary Pearce, worked for Universal Lubricants for 16 years selling lubricants. In 2016, Petrochoice acquired Universal. Petrochoice told Pierce and the other employees they must sign a non-compete agreement. A few months later, Petrochoice fired Pearce. Because of the non-compete agreement, Pearce had trouble finding work. A few months later, she found a new job working in the same field. {Pearce filed a decartary action asking a court to declare then-compete null and void. Pearce alleged in her lawsuit that Petrochoice did not provide any consideration in exchange for execution of the non-compete.

General Allegations

Caselaw on non-competes says that if an employer provides confidential information to an employee in exchange for the employee signing the non-compete, then that confidential information serves as consideration. Petrochoice argued on appeal that it provided confidential information to Pearce in return for her signing the con-compete agreement. That confidential information included, said the employer, names of clients, volume and history of purchases, accounts receivable information, information concerning the Petrochoice products, profit margins, sale information, etc. But, it provided no specific information in its affidavit. The former employer was essentially simply submitting a boiler plate affidavit, with no specific information that was allegedly provided to this one specific salesperson.

Laundry List

The court described this as a “laundry list” of alleged information with no specifics. It included no evidence that it had actually provided that information to Pearce. We have to wonder what Petrochoice might have provided to Pearce, a 16 year salesperson, within the few months she worked there. In fact, Pearce testified that she herself provided confidential information about pricing to Petrochoice.

The court found the affidavit was conclusory and rejected it. Without evidence that Petrochoice had actually provided confidential information to Pearce, the court of appeals found in favor of the employee. See the decision Petrochoice Holdings v. Pearce, No. 12-20-00106, 2021 LEXIS 272  (Tex.App. Tyler 1/13/2021) here.

It’s just a simple thing to provide actual evidence, instead of a laundry list of standard types of information. But, it may be that Petrochoice did not have such evidence.

 

Albert Lara, a 21 year employee with the Texas Department of Transportation, suffered some stomach issues which required surgery. He went home to recover. he used up all his sick leave and personal leave. Under DOT’s leave without pay policy, he requested extended leave as an accommodation. DOT had a policy which allowed up to one year’s leave without pay as an accommodation. Lara requested additional leave twice. A few months after his second request, DOT fired the 21 year employee. Lara sued DOT for failure to accommodate, retaliation and for discrimination based on his disability. The district court granted the employer’s Plea to the Jurisdiction.

On appeal, the court of appeals granted in part and reversed in part the Plea to Jurisdiction. On appeal to the Texas Supreme Court, the higher court found that the employee need not submit his request for an accommodation on a particular form. That Mr. Lara submitted his request for accommodation as a memo did not violate any statute, said the higher court.

Indefinite Leave

DOT also argued that Lara’s request for leave amounted to a request for indefinite leave. Such a request would render Mr. Lara unqualified for his job. The employer essentially asked the court to adopt a bright line rule that a request for several months leave was never reasonable. But, the Texas Supreme Court did not agree. It noted that the cases cited by the defendant were distinguishable on their facts. The court noted that unlike the case cited by the employer, DOT did have a 12 month policy in place which expressly allowed leave for a disability.

Daily Attendance

The court also rejected DOT’s argument that daily attendance was a job requirement for every job. The higher court said no, whether daily attendance is required is not the relevant inquiry when the issue concerns leave as an accommodation. The issue then becomes what sort of leave policy the employer actually has. The Supreme Court was troubled by DOT’s refusal to specifically acknowledge the existence of its 12 month leave policy. The attorney for Texas DOT claimed the policy allowed the employer to deny the leave, based on circumstances. But, noted the court, that was not what the policy actually said.

Too, Lara’s last request for leave said he could return to work on Oct. 21, just a few weeks before DOT terminated him. The Plaintiff’s testimony that his leave request was not a request for indefinite leave sufficed for purposes of a Plea to Jurisdiction. There was no evidence to indicate he would not return on Oct. 21, as his doctor said. See the opinion in Dept. of Transportation v. Lara, 625 S.W.3d 46 (Tex 2021)  here.

Taking depositions by phone or Zoom invites abuse. In one 2018 deposition, the defense lawyer texted advice to the witness and was caught. The witness was an insurance adjuster who was testifying about a worker’s compensation case. Derek Vashon James, a Florida lawyer, represented the employer. The court reporter refused to swear in the adjuster, because she was testifying via phone, not on video.

The opposing lawyer, Toni Villaverde heard typing noises during the deposition. Villaverde asked the witness and James if they were texting. James said he received a text from his daughter. Villaverde asked James to put the phone away and stop texting. James agreed to do so. But, James continued to text and accidentally sent the texts to Villaverde:

“11:53 (James): Just say it anyway

11:53 (James): Just say 03/28

11:54 (James): In addition to the 03/28/2018 email containing the signed release I show…..

11:55 (James): Don’t give an absolute answer

11:55 (James): It’s a trap

11:56 (James): Then say that is my best answer at this time”

These text messages obviously are coaching the witness. Ms. Villaverde stopped the deposition when she noticed the text messages on her phone. Mr. James tried to convince her that the text messages were sent while on break. Ms. Villaverde then sought production of the texts and review by the worker’s compensation judge.

The judge found the texts were sent during the deposition and were not protected by attorney-client privilege. At a hearing before the worker’s compensation judge, Mr. James refused to admit he had sent the texts during the deposition. Later, during his discipline proceedings, he admitted he sent the texts because Villaverde was talking over the witness and interrupting the adjuster.

In a disciplinary proceeding, the Florida Supreme Court found the lawyer had lied during the hearing before the worker’s compensation judge. It placed Jame’s license on suspension for 91 days. It said James’ dishonesty was clear from the record. His actions obstructed access to evidence. James’ lawyer for the disciplinary proceedings said James was sorry for what he did. The lawyer said James believes this shows that we need to observe the ethical rules even during electronic proceedings. Yep…..

See ABA Bar Journal report here.

The death penalty sanction is very rare in litigation, but it does happen. In Hornady v. Outokumpu Stainless U.S., No. 18-00317-JB-N (S.D. Ala. 11/18/2021), the court specifically found the defendant had obstructed discovery for years. The lawsuit concerned a Fair Labor Standards Act collective action – a class action lawsuit. As part of every FLSA lawsuit, the employee and employer must exchange their records regarding work schedules and pay. The employee may have only a few records. But, the employer will have all the pay records. The FLSA requires the employer to maintain those pay records. In most cases, it is a simple discovery request to see those payroll records.

But, in Hornady, that discovery process stretched on an on. Six months after discovery had closed, the defendant still had not produced those pay records. At a show cause hearing in March, 2021, the defense lawyer essentially tried to assign blame to the payroll processor, ADP. But, as the Judge noted, the defendant is the defendant.

Lamentable

As the court said in the opening paragraph of its sanction order:

“This case is lamentable. Mercifully, it is rare. Here, the Court is compelled to protect not only the plaintiffs but the Court itself from a defendant’s pervasive bad faith.”

Mid-way through discovery, the Magistrate Judge addressed the failure to produce the pay records. The Defendant blamed Automatic Data Processing (ADP). The Magistrate Judge ordered the Defendant to submit a subpoena to ADP.  Outokumpu served the subpoena, but then told the court that ADP had not complied with he subpoena. When, in fact, ADP had complied. In any event, Defendant still did not provide the pay records. The Magistrate Judge, not knowing that ADP had actually complied, recommended sanctions lesser than default.

Erroneous Testimony

At that point, Defendant changed course. It argued that the request for the pay records was based on faulty testimony from its own corporate representative. Outokumpu said it would submit an affidavit “correcting” the corporate representative’s testimony. It argued that the records already provided were accurate enough. The defendant also argued that the ADP records were no longer needed. Both parties objected to the Magistrate’s recommendation. The defendant never submitted that “correcting” affidavit. So, the issue then went to the Judge. It is the Judge’s role to review the Magistrate’s recommendation.

The Judge looked at the lawsuit record himself and found five motions to compel had been filed. Two motions for sanctions had been filed. Twelve orders had bene issued telling the defendant to produce the pay records. Yet, each time, the defendant told the Magistrate it would comply with the Magistrate’s latest order. But, it never did comply.

ADP did not Attend

So, in February, 2021, the Court held a hearing. The defendant again represented that ADP had failed to to provide the requested records. ADP was not cooperating, said the employer. The Court then set a show cause hearing. It ordered the defendant to serve ADP with a copy of the order. ADP was to appear with a chronology detailing its attempts to satisfy the subpoena. Defendant was to give ADP ten days notice of the hearing. Instead it gave them only four days. Contrary to the Court’s order, Outokumpu told ADP it need not attend the hearing if it produced the pay records. ADP then failed to appear for the show cause hearing. The court then re-set the show cause hearing. In litigation, a “show cause” hearing has no formal definition, but it usually means bring your stuff or else.

ADP did Comply

At the second show cause hearing, ADP presented evidence indicating it had in fact produced many of the requested records some seven months prior – after it received the subpoena. The Court found Outokumpu did not deny that it had doctored spreadsheets and produced false pay records. The employer then blamed the plaintiff and ADP. Outokumpu never offered a substantive explanation for why it had failed to provide the records it had previously agreed to provide. At the March 12, 20201 hearing, the degree of the defendant’s obfuscation and delay became apparent, The Court found that the employer had “sabotaged” the judicial process for over two years.

Bad Faith

The employer knew from October, 2018 which records Plaintiff was reasonably requesting. Yet, the employer did not engage with ADP about these records until the summer of 2020. That was when Outokumpu was ordered to subpoena the records from ADP. Throughout the litigation, as the plaintiff submitted motions to compel, the defendant would meet with the plaintiff and agree to provide documents and information. But, each time, it would produce little or nothing. When the plaintiff would file a motion to compel, the defendant would plead confusion and inadvertent oversight. The defendant would claim that it acquired valuable new information at the meeting with the plaintiff about what was requested. The parties held two settlement conferences, both of which were based on inaccurate pay records. At a deposition of the corporate representative, it became clear that that the accurate records were in color. The various colors indicated critical aspects of the pay protocols. All Defendant had produced up to that point were black and white spreadsheets. All of this amounted to bad faith, said the court.

At the show cause chairing, the Judge had some parting words for the defendant. The Judge quoted the plaintiff’s remark: “At every step, plaintiffs have been pleasantly, professionally, and civilly stonewalled.” The lawyer for the defendant was Gavin Appleby. He was from Georgia, not Alabama. So, he appeared in the Alabama lawsuit on a pro hoc basis. The Judge suspended that pro hoc admission at the close of the hearing.

The Court then imposed the ultimate sanction, finding Outokumpu in default. The court issued a 94 page opinion. See the decision here.

I wrote about the Judge’s initial decision here. Judge Linda Parker, a federal judge in Detroit, found lawyers Sidney Powell, Lin Wood and others guilty of filing a frivolous lawsuit. Their weak lawsuit claimed there was election fraud in the Michigan 2020 election. Their allegations were just silly. Worse, they had no evidence with which to support their half-baked allegations. The lawyers even mis-represented to the court the qualifications of their so-called expert.

Well, now the Judge has announced what those sanctions will include. Those nine lawyers will have to pay $175,000 to the City of Detroit and to the state of Michigan. See That money will reimburse those entities for the attorney’s fees they had to spend defending the frivolous allegations. The Hill report here. It just amazes me that nine otherwise sober, talented lawyers will play dice with their law licenses.

Every few years, we have to re-litigate the so-called self-serving affidavit doctrine. I have written about that silly doctrine here and here. The self-serving affidavit more or less, provides that a person making a claim myst have some evidence to corroborate his/her factual statement. That does not make much sense. The U.S. Supreme Court expressly overruled the Fifth Circuit in Tolan v. Cotton, 134 S.Ct. 1861 (2014), because the Fifth Circuit disregarded competent testimony from a witness who also happened to be the plaintiff. And in Salazar v. Lubbock County Hospital District, No. 20-10322 (5th Cir. 12/7/2020), the Fifth Circuit again rejected the plaintiff’s testimony about her job performance because it was not corroborated. The Fifth Circuit has been making decisions which are best left to the jury.

This issue of which affidavits matter and which ones do not matters only because federal court litigation has become so mired in summary judgment practice. If the courts would reserve summary judgment for the lawsuits with little or no merit, this would not even be an issue.

Logical Fallacy

In the case of Guzman v. Allstate Assurance Co., No. 20-11247, 2021 WL 522810 (5th Cir. 11/10/2021), the Fifth Circuit re-visits the self-serving doctrine again. But, this the time the appellate court overrules the lower court because the lower court applied that old fallacy. In this case, Allstate denied insurance coverage for a deceased male, because he allegedly smoked. On his application for life insurance, Saul Guzman said he did not smoke. But, on his medical records, many of them described Saul as a smoker. But, Saul’s wife, Mirna, and his sister, Martha, both said Saul did not smoke. They testified via affidavits as part of Allstate’s motion for summary judgment. The lower court found the two affidavit to be self-serving.

The appellate court disagreed. The higher court noted that in a lawsuit, the two sides will always be interested in the outcome. “Inevitably,” evidence offered by one side or the other regarding summary judgment will appear to be self-serving. But, such evidence should not be discounted on that basis alone. Self-serving may affect the weight to be given that testimony. But, the particular weight some evidence ought to carry is a decision for the jury, not the court. The court then pointed to some prior Fifth Circuit decisions which found self-serving affidavits were not sufficient, but those cases actually involved affidavits which were conclusory, vague or lacked personal knowledge.

First-Hand Knowledge

In this case, Martha’s and Mirna’s affidavits were based on first-hand knowledge.  The two affidavits include fact based information, not conclusions. Competent testimony suffices for purposes of summary judgment.

Too, Allstate received medical records from Saul before his death which described him as a non-smoker. One of the three records in Allstate’s possession described Saul as a former smoker. All this is enough, said the Fifth Circuit, to deny summary judgment and let the jury decide the matter. See the decision here.