Back in the 1850’s, religion became a large part of the national debate in all elections, state, local and national. The Know Nothings opposed immigrants in general and Roman Catholics in particular. They were called Know Nothings, because they were instructed to reply “I know nothing” when asked about their party. The party was officially known as the American party. It was a political party that often met in secret.

Today, we again see issues about religion. In one San Antonio race for the state Legislature, Jeff Judson has invoked religion. He claims to be a God- honoring, Christian conservative running against Joe Strauss, who is Jewish. He claims the state Legislature is disconnected from God, because Mr. Strauss, the Speaker of the House, killed statutes that would protect “religious liberty” and life.  When asked, Mr. Judson would not explain how Mr. Strauss is not connected to God. As Cal Jillson, the SMU professor explained, candidates like Mr. Judson do not raise the religion issue directly, but they do invite voters to make the comparison. Mr. Judson wants voters to compare his religious beliefs with those of Speaker Strauss. See column by Brian Chasnoff of the San Antonio Express News.

As the Texas Gazette warned in 1859, “Should we begin to apply a religious test, how many others, besides Catholics, might we war against?” The article named a dozen or more obscure or not so obscure Protestant religious faiths. Any of these faiths could have been next in 1859. See Austin Texas Gazette, Oct. 28, 1854, p. 76. 2016 is no different. The 1859 newspaper was warning that if we attack one sect or one faith, which faith is next? Religious discrimination in any age is unattractive. In this age, in employment situations, it would also be unlawful.

So, back in 2012, the presidential election was between Barack Obama, son of a black father and white mother, and Mitt Romney, whose father was born in Mexico. Don Trump’s spokesperson tweeted at the time: “Perfect Obama’s dad born in Africa, Mitt Romney’s dad born in Mexico. Any pure breeds left?” See CBS news report. J.K. Rowling, the author of the Harry Potter series, compared Mr. Trump to the Death Eaters in a recent tweet. The Death Eaters in her recent books also preferred “pure bloods.”

All I can say is I cannot believe Don Trump has not been sued by someone for racial discrimination. His comments are ready made for a discrimination lawsuit.

The arbitration system is harmful to employees. ERISA is often harmful to employees. So, what happens when a case involves both arbitration and ERISA? Mucho harm to employees. That is the subject of a NPR report that address the ERISA law and worker’s compensation. See NPR report. As the report explains, Kevin Schiller was a building engineer for Macy’s in Texas. After 21 years with Macy’s, he suffered a bad fall at work. He suffered a Traumatic Brain Injury. For some time, the injury remained undiagnosed. He experienced bad headaches, memory loss, disorientation and extreme sensitivity to bright light. Macy’s thought he was faking it. One doctor said he was psychosomatic. Other doctors told him they were there to observe him, not treat him.

Like many employers in Texas, Macy’s opted out of the state worker’s compensation system. It relied on private, employer provided medical insurance. Mr. Schiller, however, could not get treatment. No one believed he had an actual illness. He lost his job, his house and his pickup. He spent $90,000 of his own money seeking treatment and eventually was diagnosed with TBI.

Because Macy’s employees were required to sign a mandatory arbitration agreement, his appeals for ERISA benefits were heard by arbitrators who were paid by Macy’s. Not surprisingly, he lost his early appeals. Eventually, in a separate proceeding, he was awarded Social Security Disability benefits.

[All I can say is big deal. Social Security disability benefits generally amount to less than $15,000 per year. So, he went from $80,000 to about $12,000 per year.]

Eventually in his appeals, he succeeded, sort of. An arbitrator did eventually award him $713,000. But, that was only because he had the resources to obtain fair and impartial medical opinions. Too, he would have received at least twice that in a lawsuit against his employer, said Ted Lyon, a Dallas attorney. Since, he was injured at the age of 52 and he would have worked until he was 65, Mr. Lyon thinks $5 million would have been possible with the right jury. He means that because of how Mr. Schiller was treated by his employer and the long delay, a jury might have awarded millions of dollars.

Much of the $713,000 award went to legal and medical bills. The rest remains in a trust. But, as Mr. Schiller adds, most of the award will be gone before he is gone.

20 years ago, Kevin Schiller would have filed a worker’s compensation claim. He would have received very little benefits, but he would;d have receive medical coverage and a very reduced income for a few years. The policy since 1901 or so has been that if an employer does not have worker’s compensation, that it can be sued for negligence. Personal injury lawsuits or worker’s compensation was always the choice for employers in the state. Now, they have a third choice: medical insurance plans that can be corrupted to avoid paying anything.

And, medical insurance, unlike worker’s compensation, pays nothing to replace lost income. Worker’s compensation would pay some small amount as lost income.

Now, with the opt-out provisions we have in Texas, the Kevin Schillers gets little to nothing. Jeff Dahl, a San Antonio lawyer, explains. The ERISA statute was originally passed on 1974 to protect fringe benefits. But, it has now become a “shield” for the employer.

Great Hall

The point of summary judgment is to dismiss cases that have no genuine chance of winning in front of a jury, or cases that a jury should not even hear. Summary judgment should result in dismissal of  cases that lack any real issue of fact. Why have a trial if there is no genuine issue? “Summary” means quick. So, if there is no real issue of fact, then it makes sense for the judge to decide the case quickly. But, at some point, some judges have hijacked the summary judgment motion to serve as a vehicle for judicial fact-finding. We see such an example in Wheat v. Florida Parish Juvenile Justice Commission, No. 14-30788 (5th Cir. 1/5/2016).

Lillie Wheat worked as a detention officer at a juvenile detention facility operated by the Florida Parish Juvenile Justice Commission. She rose through the ranks to Assistant Director of Female Services in 2008. In 2009, she took time off under the Family Medical Leave Act for surgery. She was terminated after her leave ran out. She filed suit for FMLA retaliation. She settled her claim and was reinstated to her old job in 2011. The Assistant Director position was filled, so she returned as regular officer but at her old, higher salary. After a couple of issues with juvenile inmates, Ms. Wheat was fired in 2012. She filed suit saying she was fired due to her gender – regarding an issues with a female juvenile inmate – and for FMLA retaliation.

Ms. Wheat advanced several claims for retaliation, a missed raise, the assignment of janitorial duties upon her return, and her request to be transferred away from a difficult juvenile inmate. The majority opinion actually refused to consider many of the retaliation incidents, but did address these three identified acts of retaliation. The majority opinion rejected the janitorial duties claim. Said the court, an “unsupported,” “bare bones” claim that janitorial duties is materially adverse to her career is not enough. The court was saying that her own claim that being assigned janitorial duties was harmful to her career was not enough. The claim lacks “contextual” detail to make that an adverse claim. That finding is counter-intuitive. If a relatively long-term employee like Lillie Wheat cannot testify to what is harmful to her career, who can?

Responding to the dissent, the majority added that there was no evidence that being assigned janitorial duties after being an Assistant Director constituted treating her differently than other detention officers. “Properly read, the record does not exclude the possibility that some ‘janitorial duties’ were expected of JDS officers generally – but especially those, like Wheat, who had just recently been hired or reinstated.” And, in that sentence, the court finds there is no way Ms. Wheat can allege the assignment was adverse.

The court then addressed her positive but late performance evaluations. Although it was positive, it stated that she would not receive a 4% pay raise. Noted the majority opinion, Ms. Wheat checked the box saying she reviewed and agreed with this rating. Ms. Wheat did not appeal this rating at the time. Again in responding to the dissent, the majority argued that the raise “may” have been affected by the lateness of the evaluation. So, that means the dissent agrees she might not meet her burden at trial regarding that factual issue. This possibility is not enough to create a dispute fact, said the majority.

The majority did agree that the termination itself is materially adverse. So, yes, that act does constitute actionable retaliation. Ms. Wheat did show she was treated differently regarding her prior issues with juvenile inmates. Some detention officers were discharged for mis-treating inmates, while others were not. So, the court reversed summary judgment regarding the termination itself.

In dissent, Judge Reeves of the Southern District of Mississippi noted that the majority opinion essentially draws available factual issues against the Plaintiff. For example, regarding the assignment of janitorial duties, Judge Reeves points out that her “bare bones” assertion should be enough. This is summary judgment, not trial. Ms. Wheat is a witness like any other. She also has a relatively long period of working at the detention facility. She is in a position to identify what is harmful to her career. Judge Reeves suggests that simple “common sense” suggests that being assigned janitorial duties when she is senior to many other workers is retaliatory. Or, as the judge explains, whether the janitorial duties were adverse to her is a strong enough issue that a jury should decide it. The dissent pointed to some decisions which explicitly found that a senior person being assigned janitorial duties constitutes negative treatment of that worker.

[Indeed, the majority opinion, seems to countenance that some persons would perceive this assignment as materially adverse when it acknowledges the “possibility.” The court’s use of the word “possibility” suggests a new standard for summary judgment, one that disregards “possible” factual issues. If “possible” facts are now excluded from summary judgment consideration, few cases will pass muster. Too, the disregard of her “unsupported” allegation ignores several cases that find plaintiffs are indeed competent to testify to their own observations. See, e.g. Tolan v. Cotton, 572 U.S. ___, 134 S.Ct. 1861, 1863 (2014); Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Burton v. Freescale Semiconductor, LP, No. 14-50944 (5th Cir. 8/10/2015).]

The dissent pointed out that the Fifth Circuit in Wilson v. Monarch Paper Co., 939 F.2d 1138, 1145 (5th Cir. 1991), found the assignment of a white collar executive to janitorial duties to be retaliatory. But, now, when  this same issue concerns a blue collar executive, the same court finds that no, this treatment was not retaliatory. In a judicial version of a snit, the dissent described the majority’s view as “we-don’t-know-what-janitorial-duties-really” means.

I have to say that phrase is accurate. What sort of evidence is needed to address what janitorial duties mean? Some judges appear to lack experience with real jobs, with real consequences. I am also concerned that the Fifth Circuit seemed to fault the employee in some way for not objecting to her performance evaluation or for not appealing it. Workers who have returned to work as she returned are under a magnifying glass as it is. The majority opinion seems to expect her to disregard the scrutiny and pretend she is a normal worker. That is asking too much from someone who must bring the bread home everyday. All workers tolerate difficult issues from their bosses. Workers who return to work after a lawsuit may have to tolerate even more abuse. It flies in the face of economic reality to expect Ms. Wheat to object to every possible issue. This is a poorly reasoned opinion. See decision here.

What happens when an employer affords a right of redress to its employees, but not really? The large counties in Texas have the statutory right to create civil service commissions. The commissions provide a measure of job protection to county employees. In providing these protections,  politics is removed from job issues, in theory. See generally Tex.Loc.Govt. C. Sec. 158.001, et seq. In the case of Guerrero v. Bexar County Civil Service Commission, No. 04-15-00341 (Tex. App. San Antonio), Carmella Guerrero appealed her demotion. She had been the IT Services Manager for Bexar County in 2010, when she was demoted. Her salary went from $80,000 per year to $58,000. She was a 20 year employee at the time. All her performance evaluations are positive. The reasons for the demotion are not explained, but she did receive a new boss shortly before the demotion.

She appealed her demotion to the Civil Service Commission. The Commission consists of three persons appointed by the Bexar County Commissioner’s Court. The Civil Service Commission found in favor of Ms. Guerrero in 2012. They found the demotion to be wrongful. They ordered back pay and reinstatement to her demoted position, not her former position as Services Manager. In 2011, Bexar County eliminated that Services Manager position. They eliminated 15 other positions at the same time. But, the only position which was actually arguably held by anyone was Ms. Guerrero’s position. The other 15 positions were vacant. The Civil Service Commission refused to reinstate her to her former position as Services Manager. The Civil Service Commission shrugged and said they did not have the authority to order Bexar County to create a position.

The Civil Service Commission is appointed by the Commissioner’s Court. One can presume the members would not wish to rock the boat, too much. But, clearly, the employer’s actions looked questionable. In deposition, the former budget Director for the County admitted that his understanding was that Ms. Guerrero’s position was eliminated because she had become a “problem” for the County due to her appeal. In our business, we would consider that “smoking gun” type evidence. Ms. Guerrero appealed to civil district court and won. The Civil Service Commission then appealed the trial court’s decision. Her matter is now on appeal to the Fourth Court of Appeals in San Antonio.

The Civil Service Commission appealed, saying it lacks the authority to order the County to create a position. But, the court has express authority in the statute to order “appropriate relief.” Tex.Loc.Govt.C. Sec. 158.012(c). Surely, appropriate relief would include lost pay into the future. The district court also found that the Civil Service Commission, after finding she had been wrongfully demoted, should have reinstated the Plaintiff to her prior position, not to the demoted position. Indeed. If the employer can “eliminate” a position during an appeal because of that appeal, then there really is no civil service protection.

Yesterday, the U.S. Supreme Court heard oral arguments in a challenge to the long accepted rule that when public sector unions negotiate, they negotiate on behalf of all employees, not just those who are members. A person can work at a union work place, but not be a member of the union. If a worker chooses not to join the union, however, s/he still pays a fee to the union. A Teacher in California, Rebecca Friedrichs, filed the lawsuit over some $650 deducted from her pay per year for the union fee. Actual members pay about $1,000 per year. The theory, as explained in the 1977 case, Abood v. Detroit Board of Education, 431 U.S. 209 (1977), is that “free-loaders,” those who receive the benefits, should pay some of the load. See the Abood decision here.

The difficulty for some workers is that the election to form a union might occur decades before a particular worker starts work. Ms. Frieedrichs probably became a teacher decades after the California schools were first unionized. She has no memory of an election, much less losing the election. So, she must feel, why should she have to pay for something that she had no hand in, especially when that union takes stands on issues with which she disagrees?

Her lawsuit targets not the lobbying or political contributions, but the simple fact of the union’s existence. The reduced fee is supposed to account for the political actions of the union. Her $650 does not go toward lobbying. Her lawsuit is more specific. It attacks the fact of the union itself. She argues that the union’s mere existence is political.

The Abood decision rests on contract principles, that an employer should not have to negotiate with more than one entity. If every non-member negotiated his/her own salary and conditions, the employer would be in constant negotiations over some issue. And, said the 1977 court, negotiations, resolving grievances, etc. all requires time and money. The unions need income to survive and to process grievances. Concluded the majority decision, a member or non-member cannot withdraw his/her financial support just because she disagrees with the strategy for that group. So long as the group leader (i.e., union leaders) press forward on issues generally applicable to all members, then the purpose of the National Labor Relations Act is still served.

But, in the past few years, in dissents, Justice Alito has hinted to labor union opponents that the court would re-consider its decision in Abood. So, now we have this appeal. Some observers would call Justice Alito’s hints judicial activism. But, a true conservative would never engage in judicial activism, would he?

A theory being discussed in academic circles is that discrimination is often implicit. According to this theory, we tend to filter out certain information based on our preconceived notions about peoples and ethnicities. The academicians refer to this as “implicit bias.” Justice Kennedy recently recognized some validity in the theory in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. __, 135 S.Ct. 2517 (2015). The court recognized that in the context of the Fair Housing Act, certain prejudice does exist at the unconscious level. In finding that disparate impact cause of action does exist under the FHA, Justice Kennedy wrote that disparate impact allows the plaintiff to counteract the “unconscious prejudice and disguised animus that escape easy classification as disparate treatment.” The justice suggests that disparate treatment analysis may not deal effectively with implicit bias. But, implicit bias might help understand or show disparate impact. See decision here.

Disparate impact refers to rules or policies that apply to broad groups of persons. Disparate treatment refers to how one particular individual is treated. In the Inclusive Communities case, for example, the plaintiffs alleged that the Texas Department of Housing gave tax credits to developers of low income housing more in minority areas of Dallas and not in middle class neighborhoods. The Texas DH appeared to have some policy that favored middle class areas over low-income areas of town. The plaintiffs then filed suit saying the tax credits lead to de facto segregation. The majority opinion found that the FHA focused on outcomes of nations, instead of intent.

One Missouri law professor believes the implicit bias may be a leading factor in situations involving disparate impact. See ABA Bar Journal report. And, it does make sense to use the theory in housing cases where the violations are often based on some systemic rule. Title VII and its progeny typically focus on individual intent, so it is still unclear what impact the theory of unconscious bias would have employment discrimination cases. A plaintiff can bring a disparate impact case. But, much more common are the individual discrimination cases.

Many lay persons have this idyllic view of the judicial system that judges are sober, thoughtful and the jury members even more so. But, judges and jury members are human, after all. Indeed, many members of the jury, like many citizens at large, are skeptical about claims of discrimination. Judges are no different. In fact, some judges are harassers themselves. Judge Sam Kent in Houston was forced out as judge after he harassed two female clerks. That investigation lasted years. I wrote about that legal odyssey here and here.

Judge Walter Smith in Waco has also been found guilty of harassing a female deputy clerk. In 1998, he groped and tried to kiss an unidentified female deputy clerk. See Austin American-Statesman report. Judge Smith has been serving as judge since 1984. Now, he has been sanctioned in the sense that he will not be assigned any new cases for a year. See San Antonio Express News report. It was just a few years before 1998 when he granted a motion for summary judgment in one of my cases. I do not recall the details. I only recall that he seemed to take some delight in granting the motion against my client, thinking perhaps that our case was frivolous.

It is one thing to have a judge who is skeptical about discrimination cases. It is another thing entirely to have a judge who himself harasses members of a minority.

1998 is too far back for any clerk to file a discrimination complaint. It is far too late to file any sort of civil action. In fact, the lawyer who filed the complaint regarding Judge Smith only learned about the harassment as part of his own legal problems. Judge Smith had granted sanctions against a lawyer for allegedly filing a frivolous lawsuit. As part of defending himself, the lawyer, Ty Clevenger, deposed that deputy clerk and learned about the harassment. See ABA Bar Journal report.

Judges are human, too. Our legal system is flawed. Some clients refuse any settlement discussions.  They do so at their peril.

While we rush around searching for last minute Christmas presents and securing the last of the tamales, some few Americans are still fighting their wars. They fight their wars right here in San Antonio at the excellent Army hospital at Ft. Sam Houston. Gunnery Sergeant Eden Pearl was such a warrior. On a patrol in Afghanistan in 2009, his platoon rushed out of an Afghan village. They decided to avoid an unnecessary gun fight with some local fighters. The convoy hit a huge IED. The explosion sent GySgt Pearl’s HUMMWV 30 feet into the air. The truck was engulfed in flames. He survived the blast. But, he suffered Traumatic Brain Injury and burns over 90% of his body. Later, he lost both legs and an arm due to infection. The interpreter and the driver in the truck were killed. For the last six years, GYSgt Pearl has battled his wounds in treatment and a series of operations and skin grafts. He was said to be the most severely wounded service member to survive.

Those who knew him say he was a legend among the fraternity known as Marine Corps Forces Special Operations Command (MARSOC). He was tough and fearless. Yet, he was also devoted to his family. With his numerous skull tattoos, muscular physique, and red beard he grew during deployments, he was known as the “Viking Warrior.” He was the classic Gunny – he made the Marines around him better. He raised their level of preparation and competence. He trained the way he fought: with attention to detail. He joined the Marines from Monroe, New York in 1994. As one staff sergeant who served under him said, “He had this aura where you just wanted to follow him. You just wanted to please him.”

Even when his HUMMWV was in flames in Afghanistan and GySgt Pearl was under the burn blanket, he was asking his soldiers about tasks that needed to be accomplished. He was always the leader looking out for the welfare of his men. His call sign was “Mosh Pit” from the area at concerts where fans dance.

In the past six years, he was moved from hospital to hospital for his next level of treatment. He ended up here in San Antonio at Ft. Sam. The Gary Sinise foundation and the Brothers in Arms foundation gave a home to his family here in the Alamo City. He passed away a couple of days ago. He was 40 years old. He could barely communicate due to the TBI. While you rush around this busy day, take a moment to silently thank GySgt Pearl for his service.

See Washington Post report.

One of the essential tools in any lawsuit or EEOC charge is the affidavit. The employee typically will sign a couple of different affidavits at various stages of a lawsuit. The affidavit is supposed to represent the witnesses’ testimony. An affidavit should mirror the employee’s actual testimony.  But, the rough draft of an affidavit is often prepared by legal personnel, whether it is the Equal Employment Opportunity Commission or the employee’s own law firm. So, some affidavits, if not closely vetted, sound wrong or they are just flat inaccurate. It is up to the witness to ensure any statement is accurate before signing.

In Green v. MOBIS Alabama, LLC, No. 12-CV-277 (M.D. Ala. 3/25/2014), we see what can go wrong with the process of preparing an affidavit. Noria Green applied for unemployment benefits after she was fired. She was denied benefits. Assisted by an associate attorney with Haynes & Haynes, Ms. Green appealed the denial. There was a telephone hearing on Dec. 16, 2011. Ms. Green had been accused of forging a doctor’s notes. At the Dec. 16 telephone hearing, the employer still had not provided the employee or the agency a copy of those allegedly forged notes. The hearing officer postponed the hearing to an unspecified date. Later, the agency sent notices that the hearing would re-convene via telephone on Jan. 4, 2012. The notice was sent in late December when MOBIS’ plant was shut down. So, MOBIS did not receive the notice in time to appear for the telephone hearing.

During the hearing on Jan 4, the hearing officer tried three times to contact MOBIS , but could reach no one. Even though MOBIS was not present for the hearing and they still did not have the alleged notes, the hearing officer found in favor of the employee, Noria Green. The notice sent later about the hearing indicated that MOBIS had attended – even though MOBIS did not attend. The state unemployment agency erred.

Later, in the resulting lawsuit, the employee’s firm argued that the employer was judicially estopped from arguing the doctor’s notes had been forged. The employee via Haynes & Haynes argued that the issue had been previously addressed in the unemployment hearing. Attached to the plaintiff’s response to the motion for summary judgment was an affidavit signed by Ms. Green. The statement claimed that MOBIS had attended the Jan. 4 unemployment hearing. At the time of her response, there was no transcript of the unemployment hearing.

The defendant submitted an affidavit from the MOBIS representative saying he had not been present at the Jan. 4 hearing. He also referred to the newly acquired audio recording of the Jan. 4 hearing as proof. MOBIS provided a transcript of the hearing showing that MOBIS had not attended the Jan. 4 hearing. The plaintiff via the firm of Haynes & Haynes moved to strike this new evidence as untimely. The court refused to strike the evidence and granted summary judgment. It pointed out that Haynes and Haynes law firm was present for the Jan. 4 hearing and should know the affidavit of Mr. Green was false. The court found that Plaintiff’s lawyer misrepresented facts to the court.

MOBIS then asked for attorney’s fees as a sanction, arguing the plaintiff’s law firm had attempted to perpetuate fraud on the court. I did not see the attorney’s fees request, but typically that would involve tens of thousands of dollars.

Ms. Haynes responded that she relied on the notice sent after the hearing. That notice indicated that MOBIS had been present for the Jan. 4 hearing. In the court’s view, however, Ms. Haynes, the lawyer, changed her story about the false affidavit. She tried to argue that MOBIS had an opportunity to litigate the issue at the initial Dec. 16 hearing. She argued other factual issues. But, said the court, in the end, Ms. Haynes’ principal argument was that under agency rules, there is actually only one unemployment hearing date. Any other hearings are considered as part of the one hearing. The court was not persuaded by this specious argument.

At the oral hearing on the motion for sanctions, Ms. Haynes indicated the real problem, said the court. She first became aware that MOBIS had not been present at the Jan. 4 hearing when she read the court’s decision on summary judgment. In effect, the lawyer admitted she had submitted an affidavit without making sure the affidavit was accurate. Ms. Haynes had the audio recordings of the two unemployment hearings. But, said the court, she did not listen to them until after summary judgment had been granted. The court found this incredible.

I don’t know. If the witness agrees to an affidavit, is the lawyer responsible? Perhaps, the court reasoned that whether MOBIS actually attended the Jan. 4 hearing was less a factual issue than a legal issue.

In any event, the employer admitted it did not comply with Fed.R.Civ.Pro. Rule 11. It did not provide the motion for sanctions to the Plaintiff before filing it. That is, it did not offer the plaintiff the “safe harbor” option by which sanctions could be avoided. Therefore, it is barred form seeking attorney’s fees. The court could still award sanctions for unethical behavior. The court noted that eleven attorneys attended the Rule 11 oral hearing. Much effort was invested in the motion for sanctions when the two parties simply refused to talk to each other.

So, the court ordered the parties’ respective lawyers to share two meals together. They would each pay their own expenses. The court imposed a 30 day deadline in which to file a certification with the judge indicating they had done so.

Or as my judge in rural Louisiana would say, “Let’s agree everyone in this room is a sunavabitch and go on from there . . .” See decision here.