Donald Trump famously said Mexican immigrants are rapists and criminals. This was early in his campaign. The chef at his then new hotel in Washington, D.C., found those remarks offensive. Chef Jose Andres backed out of his written agreement planning the new hotel. Mr. Trump filed suit for breach of contract. Now, the chef has insisted on an opportunity to depose Mr. Trump. Mr. Andres is Spanish-American. He was born in Spain. He owns restaurants all across the U.S. He is a celebrity in his own right.

The President elect has been trying to avoid the deposition. But, the judge refused. He ordered the new President to appear for his deposition. The judge ruled he must appear for his deposition the first week of January. In a lawsuit of this sort, Mr. Trump’s remarks are center piece of the lawsuit. Of course, he must be deposed.

And, really, it is Mr. Trump’s lawsuit. As I sometimes have to remind my clients, if you pick the forum, then you must abide by the forum’s rules. See CNN news report.

Mr. Andres has suggested they settle their differences and make a donation to a charity. Mr. Andres tweeted his suggestion. But, so far, the incoming world leader insists on going to trial.

Coach Bev Kearney was placed on suspension in 2012 when it was discovered she had a long-term relationship with a student. Even though she had won six national track titles at the University of Texas, she was disciplined when the administration learned of the affair. She was then fired. See my prior posts here and here about her lawsuit.  She filed suit claiming retaliation after complaining about discrimination. She also alleged that she had been treated differently than other white, male coaches and teachers who also had relationships with students. Coach Kearney is African-American. She compared herself to Major Applewhite who had a brief affair with a student in 2009 and to an unnamed volleyball coach. As I mentioned in this post, her case based on disparate treatment would be difficult.

It is difficult to show disparate treatment. Every department is different. Every boss has different standards. Coach Kearney’s affair occurred in 2002. Coach Applewhite’s one-night stand occurred in 2009. But, the trial court and the court of appeals were satisfied that Coach Kearney had alleged sufficient allegations to indicate she could show disparate treatment. The employer had filed a plea to the jurisdiction, which is comparable to a motion for summary judgment. As I mentioned, Coach Applewhite’s affair with a student lasted only one night and he was disciplined for it. A volleyball coach from the late 90’s and Major Applewhite’s treatment, said the court, sufficed to show allegations of disparate treatment. The court noted, however, that the employer mentioned for the first time in its reply brief that the situations involving the volleyball coach or Coach Applewhite were not similar enough to Coach Kearney’s situation.

But, as most courts of appeals would, it declined to consider allegations raised for the first time in UT’s reply brief. From the employee’s perspective, that is fortunate. It is difficult to argue that different supervisors were applying the same standards, or that one infraction is truly similar to another infraction. The employer might well have succeeded in arguing that Major Applewhite’s offense was short-lived, lasting just one night, and that he did receive discipline for it. He may not have been fired, as Coach Kearney was, but the employer could argue that his offense was not as bad. Coach Kearney’s offense was a long-term relationship. I think the plaintiff dodged a bullet in their appeal. Lawyers do make mistakes, and this may have been significant. See the decision in University of Texas at Austin v. Kearney, No. 14-00500, 2016 WL 2659993 (Tex.App. Austin 2016), here.

UT, however, has requested an appeal. It will be interesting to see if the employer can squeeze in its argument that the situations of the other white, male coaches should not apply.

Coach Kearney also alleged she suffered retaliation. The Court of Appeals, however, noted that she cannot both claim to have been singled out for unique treatment and that she suffered reprisal for prior complaints of discrimination. The court of Appeals essentially finds that her pleadings negate the retaliation theory of recovery. That ruling strikes me as overly formalistic. But, the Texas Supreme Court is almost certain to affirm this pro-employer finding.

Coach Art Briles has filed suit against Baylor University. He filed suit for libel, saying Baylor is spreading false allegations that he knew of sexual assaults and did not report them. See Dallas Morning News report. “Libel” refers to defaming someone verbally. Slander refers to defaming someone in writing. Baylor has been very careful about what it says about Coach Briles. There have been a few stories just recently that Coach Briles was aware of an alleged gang rape incident and did not report it to Baylor authorities. See SB nation report. Coach Briles claims that what Baylor is saying about him is keeping him from finding a new coaching position. He was just recently overlooked for an open head coaching job at the University of Houston, He had formerly coached at U of H before he started working for Baylor.

The sad truth is that defamation claims in Texas are very difficult for the plaintiff. What an employer says about an employee is accorded extra protection in Texas. The employer receives a qualified privilege when it discusses an employee or former employee. That means Coach Briles would have to show Baylor acted with actual malice when it said those things about the coach. To show malice, the plaintiff must show the employer knew or should have known what it said was false and that it did so with intent to cause harm. Simply showing an employer knew something was false, as opposed to simple mistake, is a very high obstacle. But, to also show the employer made that false statement with the intent to cause harm is huge. Unless Coach Briles has an inside witness who can attest that the Baylor spokesperson wanted to be sure Coach Briles never worked again, the coach will lose his defamation lawsuit.

That is why lawsuits alleging defamation in the work place are so rare. Who would ever have that sort of evidence? Many clients have asked me about suing their former employer for something the employer has said. Yes, many employers do defame former employees. But, unless the law changes, those sorts of lawsuits will remain exceedingly rare.

It seems almost silly to argue, as the University of the Incarnate Word does, that UIW’s police force is a governmental body. Yet, that is the very argument the school made to the Texas Supreme Court yesterday. I previously wrote about this appeal here and here. UIW seeks the status of “qualified immunity.” With the sort of qualified immunity of a governmental entity, the lawsuit by the family of Cameron Redus would be dismissed. Young Mr. Redus was shot and killed by UIW police in 2013. He was killed by a UIW police officer.

The district court and the Fourth Court of Appeals sided with the Redus family. They found that UIW was not an arm of the government. But, the reality of the Texas Supreme Court is that no matter how silly the argument is, if that argument is made by the employer or by the defendant in a claim for damages, that argument might win. The Texas Supreme Court is remarkably biased in favor of the defendant, these days.

The heart of the argument appears not to have changed. UIW is still arguing that since their small police force must be licensed by the state, then it must be a governmental body. The attorney did specific that the school only argues the police force is a governmental body, not UIW in its entirety. See San Antonio Express News report.  . . .  Well, ok, glad that is cleared up. But, still, if state licensing makes a private sector entity public, then every licensed barber is equally an arm of the state government.

I written before about the complicated decisions regarding whether Title VII prohibits discrimination based on sexual orientation. Ever since the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), courts have been grappling with same sex harassment. Does Title VII prohibit discrimination based on sex or not? See my post here and here. The challenge for all judges is that Congress has considered amending Title VII to add protections based on sexual orientation, but ultimately has chosen not to do so. So, the court in Oncale tried to walk a fine line, determining that Title VII did prohibit harassment based on gender stereotypes, but not based on sexual orientation. So, as in Oncale, male on male harassment does violate Title VII so long as they harasser is not motivated by sexual interest.

But, the Seventh Circuit in Chicago appears to be prepared to upend that interpretation of Title VII. In Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir.), many members of the en banc panel expressed misgivings about the current state of the law. Even the more conservative members of the panel shared concerns with precedent. See Slate post here about that en banc hearing. Title VII states plainly that it prohibits discrimination based on sex. If discrimination is based on sexual orientation, how is that not discrimination based on sex? Judges, left of center or right of center are inherently conservative. They much prefer to interpret the written law as it is written. It is increasingly difficult to ignore the wording of Title VII. It does, after all, prohibit discrimination based on sex.

The EEOC has already issued opinions supporting the view that Title VII prohibits discrimination based on sexual orientation. Courts are generally not far behind the EEOC. Even the well respected Judge Posner pointed out that statutory interpretation is not frozen in time. The Civil Rights Act of 1964, what we know as Title VII, was after all, passed in 1964. That was some time ago. Things have changed, pointed out Judge Posner. Judge Bauer, 90 years old, joined with Judge Posner to laugh at the outdated notion that lesbian women are a reaction to ugly men. You know when the judges are joking, the case is really already decided.

As noted at the end of the hearing, the Seventh Circuit is not a particularly liberal circuit. But, its judges tend to be thoughtful judges dedicated to a high standard of judicial scholarship. If they see the law certain way, one can expect them to adhere to their principles.

Donald Trump advocated torture during his campaign. He even advocated targeting the families of alleged terrorists. “Task & Purpose,” a nice veterans website, discusses the legal ramifications for soldiers during a Trump administration. As the post explains, Mr. Trump argued in favor of water boarding “and a helluva lot worse than waterboarding” during the campaign. Recently, he walked his comments back a bit. But, then Mike Pence, the new Vice-President, said the administration would never discuss what it would never do. So, torture and unlawful killing may still be on the agenda. The post points out that the USA did not agree to the international agreement that created the International Criminal Court. So, the only enforcement power for a soldier refusing to obey an unlawful order would be the same executive branch that would order the torture. US military members are not subject to the International Criminal Court.

The Trump administration could redefine noncombatant to include families of terrorists. The 2016 National Defense Authorization Act limits interrogations to practices found in the Army Field Manual. But, the administration could allow for “extraordinary rendition,” as the Bush administration did. That is, the Trump administration could out-source torture. But, some of these directive to interrogate with extreme methods could be directed toward the ordinary soldier. Those sorts of orders are rarely written. The average soldier might have the opportunity to consult with a JAG lawyer. One could expect the military chain-of-command to support whatever legal cover the White House offers. During the Bush Administration, the White House Legal Counsel wrote a memo authorizing torture. Most JAG lawyers would surely defer to legal opinions from some other entity. So, even if a practice were considered illegal right up to the day of some memo, it would then magically be considered lawful afterward.

I have to add as an aside, however, that many JAG lawyers were troubled by that White House memo. Many JAG lawyers would explain the difficulties involved in changing the definition of “torture” and provide pretty good counsel regarding any possible unlawful order.

One Navy nurse at Guantanamo Bay refused to force feed a detainee. Legal proceedings dragged on against him for two years before the medical community supported him. Then, the Navy dropped its investigation. Force feeding is not torture, but the incident indicates the sort of actions that one can expect for refusing an order sen as unlawful. As I have mentioned on this website before, military members are required to refuse unlawful orders. The question is is such an order unlawful if there is some sort of legal cover? The Task & Purpose post does not address how a soldier might ascertain whether a given order is unlawful or not. Instead, it recommends that members of the military understand the rule of engagement, any protocols regarding detainees, and pay attention to those Law of Armed Conflicts briefings we receive each year. This is serious business. No one wants to risk his/her career over an unlawful order. See Task & Purpose post here.

Arbitration of legal disputes has become so common that now it has even invaded the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Navy Lt. Kevin Ziober filed suit against his former employer after it fired him. BLB Resources, Inc. fired him on his last day of work before just before he deployed to Afghanistan in 2012. Lt. Ziober was a Naval Reservist. Lt. Ziober filed suit. But, the employer, a real estate management company in California, invoked the arbitration agreement he had signed. See Military Times report here. The lieutenant argued before the Ninth Circuit that the history of the USERRA indicated that Congress had intended that the USERRA be exempt from arbitration. The Ninth Circuit Court of Appeals did not agree.

The plaintiff pointed to the clause in the USERRA that prohibits the waiver any right the consumer might have under the statute. But, replied the Ninth Circuit, the Supreme Court addressed essentially the same clause in the Credit Repair Organizations Act in CompuCredit Corp. v. Greenwood, 132 S.Ct. 665 (2012). In the CompuCredit case, the Supreme Court held that the Federal Arbitration Act merely provided a different forum. It did not waive any right to pursue a claim. The employee also argued that the courts afforded liberal interpretation for veterans. The court did not disagree, but in agreeing to arbitration, the veteran did not give up any rights. See decision here.

In dissent, Judge Watford, pointed out that the USERRA does not follow the provisions of the Credit Repair Organizations Act closely enough. The USERRA, he pointed out, prohibits any contract that would limit any right under the USERRA. The right to sue in federal court is one such right. Unlike the Age Discrimination in Employment Act and other statutes, the USERRA includes the right to sue and also includes a non-waiver provision. This is the only employment statute to be considered for arbitration that contains both a provision conferring the right to file a suit and a non-waiver provision.

As I have mentioned previously on this forum, the premise that arbitration is just another forum is false. At least one study has found institutional bias in favor of repeat players in the arbitral system. Employers will be repeat players, not employees. The right we give up in signing those agreements is the right to a system over which we have some degree of control. In theory, if a judge performs badly, we can vote him out or vote out of office. Or, we could vote out of the office the president who appointed that particular judge. But, in arbitration, we have no control over who becomes an arbitrator. We do not have a vote.

A group calling itself the National Policy Institute at a popular Washington, D.C. restaurant. The owner of Magliano’s Little Italy says he did not know the folks at the NPI would engage in Nazi style salutes. They also proclaimed “Hail Trump, hail our people, hail victory.” Ok. Well then.

See CBS news report. It is a strange sight to see Americans engaging in Nazi salutes with no trace of a smile in their faces.

The restaurant owner apologized, saying the group made the reservation under a different name. I think this presidency is going to be bumpy ride. Bigotry does not get any bigger than self-styled Nazis.

Well, Donald Trump has decided to settle the case against him and Trump University. That is wise. It would look very bad for him to have this going on while he is trying to get his government together. I previously wrote about that lawsuit here. He had no choice really. That he would settle is a significant turn. According to the New York State Attorney General, he would not even offer small amounts to settle before he was elected President.

He agreed to settle these claims for $25 million. Trial was set for Monday, Nov. 28. They settled ten days before trial. Mr. Trump said he rarely settle cases, because he believes that only encourages additional lawsuits against him. The settlement benefits some 7,000 class members. The trial would have lasted weeks. See AP news report here.

A few days later, Mr. Trump tweeted that he would have easily won the trial. He only settled because he needed to focus on organizing his government. Don’t they all say much the same.

Donald Trump and Trump University have been the defendants in a class action lawsuit for some six years, now. The trial was postponed from last Spring to Nov. 28, 2016. Bu, in the meantime, Mr. Trump campaigned and he made statements about the lawsuit. His lawyers tried to exclude those statements from the trial. Judge Curiel, the now well know Hispanic judge, said no, the lawyers must specify to which statement they are referring. A blanket request for all such statements will not work, said the judge. I previously wrote about Judge Curiel here.

That is right. In trials, context is everything. The judge would need to know which particular statement they are seeking to exclude before he could rule on the motion. See political dig website regarding this ruling. The judge did allow Mr. Trump to testify by video and allowed him to not appear at the trial. The trial is pending in San Diego. Since the election results, Mr. Trump’s lawyers have indicated they are interested in settling. I suspect they would offer a generous amount to avoid a trial at this sensitive time for Pres. Elect Trump.

Daniel Petrocelli, Mr. Trump’s lawyer, also asked to postpone the trial to January. He described Pres. Elect Trump’s tasks at the moment as “monumental.” But, the judge said he was not inclined to grant a delay. Apparently, Mr. Petrocelli has not yet filed a motion asking for a postponement. Because, the judge said he would consider such a motion but that he was not inclined to grant it. As a six year old case, it is very old, as lawsuits go.

Federal judges are required to submit a listing of their pending cases every month. It is much like a report card. The older the lawsuits are, the worse they look. So, federal judges generally feel some pressure to keep cases moving.

The political dig report suggests that Mr. Trump could be impeached if he is found to have committed fraud in the lawsuit. I myself am doubtful. To be impeached, he must be accused of “high crimes and misdemeanors.” As some of us learned in 1999, when Bill Clinton was impeached, “high crimes and misdemeanors” generally refers to criminal violations. The Trump University lawsuit is civil in nature.