When I was a young Company Commander, we had this lieutenant who was even younger than I was. He had been to Airborne school. He had his jump wings and he thought he was special. He disparaged Battalion staff the few times he dealt with them. He talked big about what he would do as Platoon Leader. We were training up for a rotation to the National Training Center. That was a big deal for any Infantry unit, but especially for a National Guard Infantry unit. We would be the second Guard unit ever to rotate through the NTC. During our train-up, we had active duty soldiers watching us and training us. The pressure to succeed was strong. One weekend, the training consisted of lane training by platoon. The three platoons in  my company would take their turn going through a lane set up in the Louisiana woods attacking and seizing an objective. There would be smoke, grenade simulators, etc. It would look and sound very real.

As the platoon advanced, the brash, young lieutenant froze. He just flat froze. Like all of us at one time or another, he was suddenly seized with paralyzing fear as he realized he was in total control. Unlike when we practiced drills, the NCO’s were not running things. He was. And, he was too scared to speak and direct his some 30 soldiers. I had to step in just to keep the platoon advancing. The young lieutenant never did recover. He left our unit soon after.

I thought of that young officer when I read that Donald Trump visited with Pres. Obama yesterday and he said little. Gone was the braggadocio. Gone were the loud promises of victory and success. It is not easy being in charge. It is not easy being handed the keys to a 30 man Infantry platoon with smoke and explosions all around you. Assuming the keys to the White House are not any easier.

In the Band of Brothers book, 1Lt. Dyke was given the keys to an Infantry company. Like my young lieutenant, 1Lt. Dyke froze in the midst of his first attack. The movie portrayed him as confused and spouting incoherent instructions. But, in reality, he just froze in the midst of a complicated attack. While he sat there, his men were getting shot badly. The enormity of controlling people’s lives, even if just in training is just too much when you are not prepared. My young liuetant was too young. He was still in college. He was an early commissioned officer under a program unique to the Guard. He had not even been to the Officer Basic course, yet. Too much was expected of him. 1Lt. Dyke was a commissioned officer and was older. But, he had previously served on Regimental staff, which is much further back from the front. He was in charge of just a handful of men. When he came to Easy Company, he often disappeared. In combat a soldier can just walk off in the woods and hide. Usually, your superiors will find you and bring you back, or replace you. But, when you are the superior, you can get away with disappearing.

He did not bond with his men. He never chatted with them. He had no stake in their successes or failure. So, in the midst of an attack, he suddenly found himself in charge of 150 strangers and did not have the desire to deal with it. He just froze. He was not ready. He was not invested in his men. My young lieutenant never got to know his own soldiers, either. To him, they were just pawns on a chess board.

Donald Trump will get the hang of his new job. He is invested in some of us, perhaps not all of us. But, it will take time. He needs training and education. 1Lt. Dyke served honorably through the rest of the war in staff roles. He was apparently deemed not suited for a front line unit, again. My young lieutenant, I never heard from him. But, I am sure with time and military education, he did much better later. As for Pres. Elect Trump, I am sure he will get the hang of this new car, soon.

Yet another challenge to arbitration is found in the class action complaint against Uber, the ride sharing platform. The case is known as Meyer v. Kalanick and Uber Technologies, Inc., No. 15-CV-9796 (E.D. N.Y. 7/25/16). While the ruling on class action status will break new ground, the ruling on investigating the plaintiffs’ counsel breaks new ground of a different sort. In this matter, the defendant’s General Counsel was quite upset about the suit. He called the Chief Security Officer for the company and asked what they could learn about the plaintiffs and the plaintiffs’ counsel. The Chief then forward the email to Uber’s Director of Investigations. The Director responded simply by asking if this needed to be done in-house or out-sourced. The Director of Investigation was not troubled by the possible ethical issues of such an investigation. The Chief replied, just keep it under the radar. Uber then hired an outside investigator to look into the background of the plaintiffs and their counsel.

It is common for a defendant to investigate a plaintiff or a set of plaintiffs. It is quite unusual, so far as I know, to investigate the plaintiff’s attorney. Yet, that is what Uber did. The plaintiff law firm became aware of someone asking questions. The lawyer asked Uber’s lawyer if the company was investigating him. Uber’s lawyer denied it, at first. Later, the Uber attorney admitted they were investigating the Plaintiff’s attorney. The judge who was presiding over the case not happy. Within a week of learning about the investigation, he allowed the plaintiff law firm to depose the principals, the investigator and the Director of Investigations. The investigator misrepresented himself to acquaintances of the plaintiff and the attorney. He lied about who we was so he could ask questions about them. The investigation firm tried to cloak its investigation materials in work-product privilege. The court said no.

Uber tried to argue that its investigation was to make sure the plaintiff was not a safety threat to Mr. Kalanick. The judge was “profoundly” skeptical about that claim. The judge was concerned with the investigation of both the plaintiff and the plaintiff’s attorney. The investigation of the both persons went into everything from living arrangements, to family life to career prospects. The court pointed out there is a “crime-fraud” exception to the work product privilege and the attorney-client privilege. The deceptive nature of the investigation meant Uber engaged in fraudulent, if not criminal conduct. When investigating the attorney, the investigator claimed he was reviewing top “up and coming” labor lawyers or conducting real estate market research for a client. Regarding the plaintiff himself, the investigator claimed to be investigating environmental researchers. The plaintiff was a college professor.

The court pointed out that in acting for Uber, the private investigator was acting for the General Counsel. It does violate the code of ethics in New York , as in most states, for a lawyer to condone or employ deceptive practices in investigating a matter. The court added that litigation is by definition a truth-seeking endeavor. It would contradict this truth-seeking aspect to engage in deceptive practices. The private investigator firm tried to argue that it was not involved in the litigation. The judge did not take that argument seriously. So, the judge denied the motion of Uber and the private investigator firm to keep these investigation materials privileged.

As relief, the judge agreed that any information collected by the investigation could not be used during the lawsuit, and the court enjoined any further investigations of any persons involved in the lawsuit. The plaintiff did seek sanctions, but the parties resolved that issue in a private agreement. That probably means they agreed on some dollar value for the Plaintiff firm having to pursue this motion. But, in the end, the court bemoaned the dismal state of legal process that would lead to this sort of an investigation. As the court noted at the outset of its ruling:

“It is a sad day when, in response to the filing of a commercial lawsuit, a corporate defendant feels compelled to hire unlicensed private investigators to conduct secret personal background investigations of both the plaintiff and his counsel. It is sadder yet when these investigators flagrantly lie to friends and acquaintances of the plaintiff and his counsel in an (ultimately unsuccessful) attempt to obtain derogatory information about them.”

And, in the end, the investigator found nothing it could use. See the court’s ruling here.

 

The Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010), decision was issued a few years ago. In that decision, the Texas Supreme Court decided that a lawsuit based on a tort claim of sexual assault was actually subsumed by the Texas Commission on Human Rights Act. I wrote about that decision here. That meant a claim for sexual assault was turned into one for sexual harassment under the TCHRA. Claims under the TCHRA are limited to $300,000 for emotional suffering type a damages and for punitive damages. That $3000,000 works for sexual harassment claims. But, that limit does not work well for sexual assault claims that involve severe trauma for females who have been abused or raped.

The TCHRA is the Texas version of Title VII. Texas is still one of the very few states to reach that result where sexual assault is somehow subsumed into sexual harassment. Like Title VII, a person complaining of a TCHRA type complaint would have to file her complaint with the EEOC. But, if she filed her suit as a personal injury or tort, then she could go straight to district court. She could skip the EEOC. There would be no caps on her damages, if she won her lawsuit.

A personal injury sexual harassment type lawsuit was pretty rare, even before the Waffle House decision. But, it allowed some women who might have missed the TCHRA deadline to still file suit. A TCHRA type complaint must be filed within 6 months (more or less depending on circumstances) of the incident. But, like many victims, some women are just too overwhelmed with losing her job or suffering some adverse action, or even more likely, they just have a hard time finding an employment law lawyer. So, some women would miss that six month deadline. In such cases, the personal injury sexual harassment was seen as a possible avenue, if a bit risky. The deadline for any personal injury claim in Texas is two years. So, a woman could miss the EEOC deadline and still have a legal option, if her case had personal injury type facts.

But, after Waffle House, that option ended. Now, the Texas Supreme Court re-visits that issue. In B.C. v. Steak ‘n Shake, No. 15-0404, the woman, identified as “B.C.” to protect her identity, was assaulted by a co-worker in the bathroom of a Steak ‘n Shake. As the dissent in Waffle House pointed out, what happens when the assault is just that, an assault and nothing more? In B.C., the attacker simply grabbed her and tried to force her to kiss him and touch his genitals. It was a one-time attack. It would be very hard to argue that was sexual harassment within the definition of the TCHRA. Every definition of sexual harassment requires overt acts over an extended period of time. Yet, the Waffle House decision did not allow for that variation in facts. It issued a broad rule that made little sense.

B.C. v. Steak ‘n Shake is now on appeal to the Texas Supreme Court. See Dallas Morning News report. Oral arguments are set for Nov. 7, 2016.

The Waffle House decision made a silly distinction, that a sexual incident at work would always amount to sexual harassment. There are similarities between the two causes of action, but within the wide variety of the human experience, there are many variations. A blanket rule makes no sense. And, that is why so few states have reached that sort of result. In the lower court, the now Attorney General Ken Paxton defended Steak ‘N Shake. Somehow, that is not surprising.

Bias is often not clear. Once, we considered a biased person anyone who wore a white, linen sheets. Now, we know better. Bias is usually not clear. Donald Trump clearly has some bias against women. But, that does not necessarily mean he treats all women the same. CBS News reached out to 84 women who used to work for Mr. Trump or one of his businesses. 43 did not respond, at all. Another 19 women said they would not respond on or off the record, positive or negative. Of the remaining 19 women, some had positive experiences, some had negative experiences. One woman mentioned that when Mr. Trump came to the building, they had to make sure they had a blonde woman, an attractive blonde woman at the front desk. Several women noted that promotion opportunities for women were limited at any Trump business, while a few said the glass ceiling was more for women who were not deemed attractive.

One woman tried to report sexual harassment by a male co-worker. But, she was told essentially that “boys will be boys.” She left her job soon afterward.

Many women had positive experiences. And, Donald Trump did start hiring some women early in the 1970’s when women still had trouble securing good jobs. A few women indicated his coarse comments about women in the Access Hollywood video was not surprising. See CBS News report here.

Like many discrimination lawsuits, Mr. Trump’s bias against women is not always clear.

It benefits a business to hire persons with disabilities. As David Hendricks, columnist with the San Antonio Express News points out, persons with disabilities are loyal workers. Mr. Hendricks recounts the time when Marriott Global Reservations hired a person with blindness. The hiring manager was nervous simply about interviewing a person who was blind. But, once hired, the new reservation taker did very well. He would use the tab key to move through the on-screen reservation form. He could not see to use the mouse, as other workers did. Using the tab was faster. Soon, all the reservation takers were using the tab key.

H-E-B has hired persons with disabilities for years. They have found disabled workers to be much more loyal than more traditional workers. They have found persons with disabilities to work well in certain jobs. A new regulation, Mr. Hendricks adds, requires federal contractors and sub-contractors to employ at least 7% persons with disabilities. The contractors can establish plans to work toward those goals. Texas Workforce Solutions, a state agency, will help Texas employers reach those goals.

Typically, it costs the company nothing or very little to accommodate most persons with disabilities. The rest of the time, it costs less than $500. It just makes sense to hire persons with disabilities. Whatever his/her impairment, the disabled worker still must be able to perform the essential functions of the job. See column by Mr. Hendricks.

One often overlooked aspect of Americans with Disabilities Act is that this statute also protects persons who have an association or relationship with a person who has a disability. See 42 U.S.C. §12112(b)(4). 20 C.F.R. §1630.8 defines the association as relationships based on family, business, social or other sorts of relationships.  The statute and regulation appear to recognize that persons with disabilities often have informal support groups. As one client with blindness once explained to me, he left his home for a job in a distant state. In that distant state, his colleagues at work became in effect his support network. He could not really survive without an informal  support group.

If a person suffers discrimination because he or she assists someone with a disability, how does that person show discrimination? There is no specific test for associational discrimination under the ADA. So, rightly or wrongly, the courts have adopted a test based on certain situations. The seminal case is Larimer v. IBM Corp., 370 F.3d 698 (7th Cir. 2004), cert. den. 543 U.S. 984 (2004). Judge Posner is the author. The court found three types of situations that fall within the protections of Sec. 12112(b)(4):

  • Expense – such as when the spouse of an employee will cause additional expense to the employer. This might happen when a spouse will cause health insurance premiums to rise, so the employee is fired.
  • Disability by association – the court focused on possible genetic pre-dispostion to certain impairments, or an employee with contagious impairment like HIV
  • Distraction – such as when an employee is distracted at work due to the impairment of a family member

The problem with this list is that courts inevitably see the list as exclusive. The Larimer court in no way suggested this list is a final list. In fact, the court set forth this list simply to help explain why Mr. Larimer would not be protected by the ADA. Mr. Larimer, said the court, lacked evidence showing the employer was concerned about the health care costs of his daughter, or that her condition was somehow communicable to others. Therefore, he was not entitled to coverage.

Judge Posner pointed out a “quirk” in the statute. By the literal wording of the statute, a person who alleges s/he was fired because s/he was associated with a person with a disability must show that s/he was a “qualified individual.” That is, the wording requires the family member to have a disability, just as the person s/he is assisting must also have a disability. That would make no sense. The purpose of the provision is to protect persons providing assistance, not those who have impairments themselves. So, Judge Posner interpreted this provision to mean the assisting person must be qualified for the position from which s/he has been fired. See the Larimer decision here.

The prima face elements for an associational discrimination claim would include that the person: 1) was qualified for the job, 2) was subjected to adverse personnel action, 3) was known by the employer at the time to have a relative or associate with a disability, and 4) suffered an adverse action in circumstances that suggest a reasonable inference that the disability of the relative or associate was the determining factor in the employer’s decision. See, Graziadio v. Culinary Institute of America, 817 F.3d 415, 32 A.D. Cases 1117 (2d Cir. 2016); Hilburn v. Murata Electronics N. America, Inc., 181 F.3d 1220, 1230-31 (11th Cir. 1999).

The caselaw is not perfect. But, the statute recognizes a fact of life in the world of persons with disabilities: many persons involved in their lives are not relatives. They often have an informal network of supporters who make their working lives possible.

Faith Gonzales worked at a Bill Miller barbecue restaurant. As any San Antonian would know, Bill Miller’s is a fast-food version of barbecue and is a local institution. She complained about discriminatory conduct and was fired in 2008. She filed her charge with the EEOC. The matter did not go to trial until January, 2013. After a two day trial, the Bexar County Court-at-law jury awarded $30,000 in lost pay and emotional suffering damages. Most juries award relatively small amounts for lost pay and emotional suffering type damages.

As often happens with civil rights lawsuits, the larger money is in the attorney’s fees. Ms. Gonzales’ lawyers submitted an attorney fee request for $65,000. They submitted the request to the judge after the trial, not to the jury and not during trial. The employer, Bill Miller, argued the fee request should have been made to the jury. The judge disagreed and awarded $60,000 in attorney’s fees.

On appeal, the Fourth Court of Appeals in San Antonio agreed with the defendant. It said attorney’s fees must be decided by a jury, even though at least one Texas Supreme Court case, El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012), indicates that judges should decide attorney fees. See the decision in Gonzales v. Bill Miller  here. The Fourth Court noted that two other Texas courts of appeals have found that attorney’s fees should be determined by the court, not by a jury. The Fourth Court noted that the reasonableness of an attorney fee is a fact issue. The court also noted correctly that El Apple I did not state clearly that a court should determine attorney’s fees. It did refer generally describe the lower court’s role as reviewing attorney fee requests for reasonableness. El Apple I, pp. 763-64. It would be impossible for a jury to perform that role. Nevertheless, the Fourth Court added, the Supreme Court in El Apple I was not presented with the question of who should decide the question of attorney’s fees. That is true. The Texas Supreme Court did not address who specifically should determine a jury fee award.

So, the appellate court returned the case to Bexar County Court-at-Law No. 7 for trial simply on the issue of attorney’s fees. The jury then awarded some $127,000 in attorney’s fees. The Defendant may be wishing it had not sought this appeal, after all.

In federal court, sanctions are a real possibility. A state court can also award sanctions if a lawsuit is found to be frivolous. But, state court judges are more reticent about awarding sanctions than federal judges. In federal court, sanctions rarely occur, but they do occur. The law firm representing the plaintiffs in Elfoulki v. Brannons Sandwich Shop, No. 14-cv-5964 (S.D.N.Y. 6/22/16),  found that to be true. They filed the lawsuit alleging failure to pay minimum wage at a small sandwich shop. They filed suit on behalf of two named plaintiffs and sought collective action certification. The court approved the collective action. But, no other employees opted in to the lawsuit. So, the collective action was later decertified.

The employer then asked for sanctions. The employer did not actually gross more than $500,000 in sales and had not grossed more than $159,000 in sales since it opened about ten months before the lawsuit. Grossing more than $500,000 in one of the way a business qualifies for coverage under the FLSA. The employees would still be covered by the Fair Labor Standards Act if they could show the employees were directly involved in interstate commerce. But, the plaintiffs did not make such an allegation. In accordance with federal rules, the Defendant submitted a notice to the Plaintiffs declaring their gross revenues were way below the $500,000 threshold and invited the plaintiffs to dismiss their lawsuit. The plaintiffs did not respond. The Defendant moved for summary judgment.

To award sanctions, there must be a showing of “objective unreasonableness.” The court does not want to chill any future FLSA lawsuits. So, it asked the question, in a run-of-the-mill wage lawsuit, how would the plaintiffs find out how much the employer had in gross sales? The court suggested the plaintiff firm could have simply looked at the menu and interviewed customers. The law firm could also look at other shop locations, review court filings of similar businesses, review plans for expansion, etc. The court would not limit the inquiry and did not expect the investigation to be perfect. The plaintiff law firm explained various factors that the court found unpersuasive. The defendant had not submitted its “safe harbor” notice until a year into the lawsuit. The lawyers had assumed the employer was interested in settling. The two attorneys could not be sure the owner’s gross income was below $500,000 until he had been deposed. But, the court noted it was the pre-lawsuit investigation that was at issue, not what transpired after they filed the lawsuit.

So, the court sanctioned the law firm $4,000 under Fed.R.Civ.Pro. Rule 11. The defense attorneys had billed its client some $8,500.  See decision here. There are some things every lawyer should be sure of before filing suit. Whether the lawsuit will survive a motion for summary judgment is critically important.

Wow, I am speechless. In a 2013 interview, Donald Trump, Jr. said women who cannot handle life in a big corporation should go teach kindergarten. He was speaking about sexual harassment in the workforce. According to the Huffingtonpost report. First, as the proud parent of two sons, I have spent my share of time with kindergarteners. That is no easy task. But, really, women should be able to “handle” sexual harassment? That is wrong on so many levels. How does a woman “handle” it when she is held to higher standards and only finds out about those higher sales goals when she is being escorted out the door? How does a woman “handle” it when she is fired while out on pregnancy leave? How does anyone “handle” it when upper management engages in biased evaluations of your work?

What to think about a young man who has those views at such an early age? We are accustomed to older men holding onto out-dated views. Perhaps, those views are not as out-dated as we would wish.

Threats of a lawsuit are always a little dubious. It is easy to make threats. Filing an actual lawsuit requires much more work. Donald Trump fired off such a threat the day after the New York Times published a piece describing his sexual assault of two women. Mr. Trump’s lawyer threatened to sue the Times for libel. The in-house counsel for the Times quickly fired back with his own letter. But, his lawyer contained actual legal reasoning. Libel, explained the Times‘ lawyer, indicates someone’s reputation has been harmed. The essence of libel is protection of one’s reputation. Mr. Trump has bragged about his nonconsensual touching of women. Mr. Trump let a radio DJ refer to his daughter as a “piece of ass.” He said publicly that he would walk in on beauty pageant contestants in a state of undress. Several other women, apart form the Times article, have come forward to report on Mr. Trump’s sexual shenanigans. The in-house counsel concluded, this reputation was created by Donald Trump himself through his words and actions. Nothing in the Times article had any effect on the reputation he created.

Exactly. Libel only applies if the reputation has been harmed. If a person proclaims he has robbed stores, then a newspaper article that describes him as a robber does not harm his reputation. It is no wonder that a few lawyers on my Facebook page described the Times response as drafted by a “real” lawyer. Threats to sue only work if they convey some minimal legal ability to follow through. See ABA Bar Journal report.