Now, they want Bowe Bergdahl to face a general court martial. The investigating officer had recommended a special court-martial instead. The level of punishment is higher at the general court-martial level. The “convening authority” (i.e., the general responsible for the investigation) overruled his investigating officer. The general appointed the investigating officer, so normally, the general would accept the recommendation. But, with so much publicity, this is not a normal case. I previously wrote about SGT Bergdahl here and here. See CNN News report.

I think this decision is unfortunate, but can see how some officers would see his situation as requiring something more serious. I think he was less than intelligent in his actions, but not deliberately avoiding his soldierly responsibilities. Now, it will be up to a military tribunal.

National Public Radio and Propublica have been running a series on worker’s compensation systems in various states. One such state is Texas. Billy Shawn Walkup worked for Tysons Foods in Vernon, Texas. Tyson is self-insured, meaning they do not carry worker’s compensation insurance. Instead, the company itself pays for the medical care of workers injured on the job. Billy Shawn was one such worker. He fell on wet stairs at the Vernon plant in 2011. He sustained injuries to his back. About two weeks after the fall, a manager approached him with a waiver and asked him to sign it. The waiver would prevent any lawsuit against Tyson. Wanting to protect his job, Billy Shawn signed the waiver. He continued working with restrictions. The pain worsened and he missed too many days. So, the company fired him. Tyson, did, however, continue paying for his medical care for another year.

But, then his doctor determined that he had multiple disc potrusions and numbness in his legs. The numbness would cause him to collapse on occasion. So, Tyson sent him for a so-called independent medical exam. The doctor, selected by Tyson, was a 77 year old doctor who had once been disciplined for not documenting a physical exam. After a 35 minute exam and reviewing his medical records, the doctor found that his back was simply strained. No further medical care was necessary. Tyson cut off Mr. Walkup’s medical benefits. The doctor did not return Propublica’s attempts to discuss the Walkup case.

Billy Shawn now gets around with a cane a motorized wheelchair. He has applied for social security disability benefits and hopes to get surgery someday.

And, of course Tyson Foods lobbied in Texas for the law that allows employers tho offer a waiver after an injury. Previously, a waiver could not apply to prior injuries. Under the old law, the sort of waiver signed by Billy Shawn would not have applied to any injury incurred before the date of the waiver. But, in 2005, a deal was struck in which an injured worker could have ten days to see a doctor and then decide whether to sign  a waiver. The problem with that law, however, is that many injuries do not manifest themselves until long after ten days. This was Tyson’s law and it worked when the corporation needed it.

Tyson Foods is headquartered in Arkansas. Arkansas is where the worker’s compensation reform train first started back in the 1990’s. Now, Texas and Arkansas are seen by worker’s compensation opponents as the models of so-called reform. But, as I have heard from many workers, the worker’s compensation system in Texas is now heavily weighed in favor of the employer. Billy Shawn found that out the hard way.

See Propublica report.

The case of Abigail Fisher is once again back before the United States Supreme Court. Ms. Fisher sued the University of Texas when she was first denied admission. She is attacking the affirmative action program at UT. UT allowed the top ten percent of each graduating class at the time. Ms. Fisher argues that that top ten percent allows a sufficient amount of minorities. UT responds that no, they cannot achieve adequate diversity with just the top ten percent. So, they use additional factors to allow more minorities.

Ms. Fisher graduated from Louisiana State University in 2012, but she is still pursuing her case. It has come back to the US Supreme Court. The high court first heard her case in 2012, but it simply remanded for additional information.

At the oral hearing yesterday, Justice Scalia seemed to be arguing for “separate but equal” schools. He said many minorities do not do well at the flagship campus of UT. They do better at less competitive schools in which minorities are not pressed to go faster than they are able. He said some minorities are being pushed “ahead in classes that are too fast for them” at schools like UT. He said there are those persons who believe it does not benefit African-Americans to get into the UT flagship campus where they do not do well.

Okay. . . .  That does sound like Plessy v. Ferguson, 162 U.S. 537 (1896). Plessy famously held that separate coaches on a railway did not deprive black Americans of any property rights. After all, said the court, being placed in the black coach did not deprive the black man of any property, since he was not entitled to the reputation of a white man. The plaintiff’s lawyer argued that such laws requiring separate facilities would lead to houses painted a certain color for whites, a certain color for blacks and other colors for other nationalities. Responded the court, well, such laws would have to “reasonably” serve the public good.

Justice Scalia seems to believe separate schools for minorities would reasonably serve the public good.

Its an “open” secret in Texas jurisprudence: it does not matter what happens in the lower courts, an employer’s or large corporation’s best chance lies in the Texas Supreme Court. The Texas Supreme Court routinely overrules jury verdicts. See my prior post about the high court taking away jury verdicts here and here.

Gilbert Garcia of the San Antonio Express News acknowledges this reality when he talks about the city’s lawsuit against the police and firefighter unions. The city, no surprise here, is relying on appeals to win the lawsuit. See Mr. Garcia’s column here.

In the Nicholas v. SAWS case earlier this year, the Supreme Court actually changed law to reach its desired result. It changed the requirements for showing retaliation cases. Retaliation cases require that a person opposed discrimination in some way before retaliation could occur. Federal courts had required that a person “reasonably” believe his/her conduct opposed discrimination. The Texas Supreme Court added a new requirement that the opposition be tied to actual discrimination, not merely opposing conduct that could become discrimination. It is the difference between opposing possibly discriminatory conduct and actually discriminatory conduct. The higher court essentially chose to protect the latter and not the former.

In the Mission ISD v. Garcia case in 2012, the Texas Supreme Court imposed a new requirement, that a worker must be replaced by someone younger than 40 years old in an age discrimination case. The long-standing precedent in federal court had been that a person need only allege that the replacement worker was “substantially” younger, or that age was a factor in some way. The higher court’s new requirement is very simplistic – or result oriented.

So, sure, as the city seems to realize, the best trial tactic is to appeal.

In times of war or fear, we turn to our baser instincts. Unfortunately, lately that means many Americans blame all Moslems for the acts of a few. As I have mentioned here before, my experience is different than many Americans. I had the privilege of serving in Iraq with some wonderful persons who happened to be Moslem. I found them to be the very antithesis of terrorists. Indeed, the Iraqi interpreters were subject to threats themselves from terrorists. And, the Iraqi interpreter who worked for me, Salma, was later killed by Ansar al-Sunah.

And, now, Don Trump calls for the exclusion of all Muslims from immigration to the U.S. Any exclusion based on race or religion would violate the Constitution. As I have mentioned here before, we could not have done as well as we did in Iraq and Afghanistan if we did not have those brave, decent Moslem interpreters risking their lives with us. Indeed, they risked more than we did. They risked the lives of their families, as well as their own lives.

Here in America, we cannot win this war without the aid of brave, decent Moslems. This is indeed a war. But, bombing the bleep out of them will not win the war. Don Trump is wrong, again. We win a war like this by, yes, bombing them, but also by winning the public relations part of the war. Yes, the war must be won on the internet and among public perception. Much as it was in Iraq, the battle ground lies in the mind of those moderate Moslem citizens. If we win them, then we win the war.

Osama bin Laden was convinced that in attacking us, he would demonstrate to the world that we as a country are anti-Moslem. He believed that we would respond to the attacks by harassing Moslems. We did not. Partly because Pres. Bush was careful to stress that good, decent Moslems would not commit terrorism.

If Salma were here, she would say, “sir, these people are crazy!” And, they are.

Well, the saga of the Cain brothers is over. I previously wrote about Ronnie Cain’s efforts to obtain severance pay after being terminated from his position as City Manager for Windcrest. See my prior posts here and here. Gary Cain and Ronnie Cain were accused of embezzling $2.8 million. I thought Ron Cain’s demand for severance pay was rather “nervy” under the circumstances. But, at trial recently, Gary Cain was acquitted by a jury after deliberating for 11 hours. And, now the special prosecutor has elected to dismiss the charges against Ronnie. See San Antonio Express News report. I do not know if Mr. Cain ever obtained any severance, but the two brothers have now been through bankruptcy and a five year legal ordeal.

Eleven hours is a very long time for any jury to deliberate. The case must have been close.

The right to confront one’s accusers in trial is a fundamental principle of our judicial system. Or, is it? One lawyer learned that confronting one’s accusers is not so fundamental, after all.

Ernesto Martinez, Jr. was accused of double billing. That is, he was accused of billing two different sets of clients for the same 17.5 hours of work in one day. So, he was in effect boiling for 35 hours of work in one normal 24 hour day. At least according to Wikipedia, there are only 24 hours in an average day…..

Mr. Martinez was found guilty of unethical billing practices. The matter went to arbitration. The arbitrator, Phyllis Speedlin, ordered him to pay back $633,000 to his former clients. The clients had hired Mr. Martinez regarding some failed investments on the South side near the Toyota plant. Mr. Martinez was found guilty of taking hours from a junior lawyer and billing them at his higher rate per hour. He was found guilty of many violations of lawyer ethics. See San Antonio Express News report.

But, as Mr. Martinez’ lawyer, Jesse Castillo, pointed out, was the process fair? Arbitration allows for no appeals. So, there is no process by which the arbitral hearing can be tested or examined. That one hearing is all a person gets. Mr. Castillo faults the system because the arbitrator did not allow him to cross examine the clients who alleged these violations. Mr. Castillo says the former clients signed “copy cat” affidavits. Those affidavits were admitted into evidence, apparently instead of live testimony from the clients. “Copy cat” affidavits refers to affidavits that contain the same language. If they are all worded the same, that similarity suggests someone other than the witness drafted the statements. Those sorts of affidavits are questionable.

Some cases may not require testimony from the clients themselves. This case sounds like it relied more on an audit of Mr. Martinez’ invoices. That may have been the critical evidence. But, still, anytime witness statements are admitted instead of live witnesses, we have to question the process.

Or, as Jesse Castillo says, he and the lawyers he knows are removing arbitration provisions form their future client agreements. At least courts will follow the rules of civil procedure, he explained. That sounds like wise advice to me. Arbitration is a private remedy with no appeal and no oversight.

I used to work at Disability Rights of Texas. I learned that some folks have some very obscure disabilities. One such disability is arthrogryposis. The impairment causes a person to have paralyzed arms. A reporter, Serge Kovaleski, suffers from arthrogryposis. The reporter wrote a story just after 9/11 quoting some law enforcement officials that some folks celebrated the 9/11 attacks with tailgating. Donald Trump has relied on that report to assert that thousands of Arabs in Jersey City celebrated the 9/11 attacks. Mr. Trump insists that celebration occurred even though that reporter today says he never did find any corroboration for that story. See CBS news report.

So, Donald Trump being Donald Trump mocked Mr. Kovaleski . The candidate did not like it that that the reporter backtracked hiss tory from 2001. He mocked the reporter’s physical appearance by holding his arms like jello – while attacking the reporter.  He said the report might be an athlete like Mohammed Ali or J.J. Watt.  ….  It is not enough to simply disagree with the reporter. The presidential contender has to also mock his physical appearance? This from the same man who mocked one female news reporter for asking, in his opinion, inappropriate questions at a debate and who poked fun at the physical appearance of Carly Florina.

Disabilities are not funny. Physical impairments are not funny. If Donald Trump were to become president, I predict persons with disabilities will not have a friend in the White House.

Almost always, a pro se plaintiff loses. Pro se describes a plaintiff who represents herself. Many folks are forced to represent themselves when issued a 90 day right-to-sue letter. Ninety days is very little time in which to find an employment lawyer. Most persons with a right-to-sue letter start by calling personal injury firms. It may take weeks before the potential plaintiff is referred to someone who practices employment law.

Arlice J. Randolph apparently could not find a lawyer. She filed suit herself. She succeeded where other pro se plaintiffs have failed. She survived a motion to dismiss her claims. The Eastern District of Texas rightly construed her claims liberally, because she is a pro se plaintiff. The court looked not just to the Complaint which she filed, but also her response to the motion to dismiss. See Randolph v. Pinecrest Retirement Communities, No. 15-CV-39, 2015 LEXIS 149660 (9/17/2015).  Ms. Randolph was fired when she brought a tape recorder to a meeting with HR. She placed it in the middle of the table where everyone could see it. An hour and a half into the meeting, the HR Director asked her why she was recording the meeting. Ms. Randolph, the Assistant Director of Nursing, explained she is hard of hearing and wanted to play back the recording later. She was 70 years old and was asking for an accommodation. She wanted to be sure she heard the HR guidance correctly. See decision here (account required).

But, the employer took umbrage at the recorder. After the meeting, the employer told her she could resign or be fired, because she brought the tape recorder to the meeting.

Employers are usually offended when an employee brings a tape recording device to a meeting. But, really, what is the harm? Some employees do want to be sure they hear the employer correctly. Ms. Randolph was fortunate. Almost always the pro se plaintiff loses at the motion to dismiss stage.

In the world of litigation, we see some pretty strange lawsuits. One such lawsuit concerns Monique Rathbun and the Church of Scientology. Monique and Marty Rathbun moved to the Texas Gulf Coast some ten years ago. Marty was the former second-in-charge for the Church of Scientology. The Church followed them to the small town in which they were living. Allegedly, they began to harass Marty. The Rathbuns then moved to Comal County, just north of San Antonio. The harassment continued. But, now they were also harassing Monique. Monique Rathbun was not a former administration official for the Church. The harassers are known as “squirrel busters” in the Church of Scientology.

The squirrel busters followed her to work, at home, made telephonic and electronic threats, contacted co-workers, family members and friends of Mrs. Rathbun. Monique filed suit, alleging intentional infliction of emotional distress, invasion of privacy by disclosure of private facts and by intrusion on seclusion, and tortious interference with contract rights. The Church then moved to dismiss based on the Texas version of a SLAPP statute. The Texas version is known as the “Texas Citizen Participation Act.” It is intended to protect lone citizens who speak about corporate or larger entities. See Tex. Civ.Pera.& Rem.C. Sec. 27.001-.11.

Depending one one’s point of view, the Church’s motion to dismiss is either gutsy or arrogant. The SLAPP statutes are intended to protect a lone citizen or two, not the Church of Scientology which has considerable assets. The Texas version, the TCPA, is the same. To succeed in its motion, the Church would have to show that Ms. Rathbun’s lawsuit was filed in response to the Church’s exercise of the right to free speech. Essentially, the Church was arguing that Mrs. Rathbun’s lawsuit infringed on its right to harass the wife of a former member of the church. It requires some arrogance to file such a motion. That may have been a tactical error. Because in filing that motion, the Church opened the door for Mrs. Rathbun to describe in detail the harassment which she endured:

  • The squirrel busters would pop out of the bushes at night firing questions at her and then disappear when she calls the police
  • Persons would follow her when walking her dog – they would be in a golf cart and start filming her as they drew closer – they would shout insults and rude questions about Scientology
  • Scientology agents would follow the Rathbuns to the beach and to restaurants
  • Persons would contact friends and family members of Mrs. Rathbun telling them she is in danger so long as she remained married to Marty Rathbun
  • The agents sent a sex toy to Mrs. Rathbun at her work place – they sent flowers to a female co-worker while Mrs. Rathbun was away from work – the flowers had a romantic message
  • When the Rathbuns moved to their wooded lot in Comal County, one of the Church defendants leased the house next door and aimed a surveillance camera at the Rathbun home

It is strange stuff. In filing their motion, they made it necessary for Mrs. Rathbun to describe in detail her allegations much earlier in the lawsuit than normal. Thus, she was able to cast the church in a bad light from the start. Or, as the court found, construing the allegations in favor of the non-movant, Ms. Rathbun’s allegations show the Squirrel Busters “plainly” were doing much more than simply standing in protest holding signs and attempting to speak to passers-by.

In its motion, said the court, the Church simply did not address the plaintiff’s allegations of stalking, intrusion at dinner with friends, filming, etc. That is always a tactical error, to ignore the more dramatic allegations.

And, of course, addressing the substance of the motion, there is no area of public concern – i.e. the “squirreling” of their religion – involved with the Church’s communications. Following someone, intruding on her dinner with friends, sending a sex toy to work and all the rest do not connect to protecting a religion.

The Church also argued that Monique Rathbun is a public figure because she entered into the controversy between the Church and Marty Rathbun. But, construing the allegations in favor of the non-movant, as the court must, any controversy between Marty Rathbun and the Church grew out of the Church’s harassment of Marty. If he was a public figure, that grew out of the Church’s harassment of him.

The TCPA allows an award of attorney’s fees if the TCPA motion is filed so as to delay a lawsuit. The trial court found the Church filed the motion to delay Monique Rathbun’s lawsuit. The trial court found the motion itself was not frivolous, but the way it was litigated was frivolous. It did award attorney’s fees to Ms. Rathbun. The Third Court of Appeals, however, found that such a ruling is not enough. There would need to be a finding that the motion was frivolous before it could award attorney’s fees. So, the appellate court overruled the trial court regarding the award of attorney’s fees.

This crazy lawsuit now goes back to the beginning. If this is what the Church filed early in the suit, one can only imagine what the Church might file next.

See decision here.