I often wonder why more defendants do not try the “we discriminate against everyone” defense. In theory, if a supervisor discriminated against all genders and all races, then he could not be guilty of treating one nationality or one gender better than another. In  Clark v. Alamo Heights Independent School District, No. 04-14-00746 (Tex.App. San Antonio 10/21/2015), the Fourth Court of Appeals here in San Antonio addressed a defense much like that. Catherine Clark was a coach at Alamo Heights Junior High School. From her first day, she was harassed on the basis of her gender by a co-worker, Coach Anne Monterrubio, and later also by her supervisor, Michelle Boyer. As the Fourth Court explained, there are various ways in which a person can be prove harassment on the basis of gender by same sex persons. A litigant is not limited to the method used in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the seminal case regarding same sex harassment. In Ms. Clark’s case, Coach Monterrubio constantly made comments to Coach Clark about her breasts and her buttocks. When Coach Clark complained to the Athletic Coordinator, Coach Boyer, the supervisor joined in on the harassment herself.

Coach Clark later complained to the school principal. But, the Principal failed to report the harassment up the chain of command. The harassment persisted for two years, at which point Coach Clark was fired. That is, her contract was not renewed.

The employer tried to argue that Coach Monterrubio also harassed all her co-workers, including men. The court was not impressed, finding that by far, most of the reported comments were female oriented and pointed at Coach Clark. But, really, anytime an employer has to argue the “equal opportunity discriminator” defense, it is starting at a deficit. Do you really want to argue that the harasser is so bad that she harasses everyone?

Since the employer had submitted a plea to the jurisdiction, the court did not have to address any issues regarding pretext. The only issue was whether Coach Clark could make out a prima facie case. The Court found the comments, the touching and the bumping were frequent enough that it reached the level of severe or pervasive. It helped the plaintiff’s case that the school violated a great many of its internal procedures, apparently never viewing the same sex harassment as harassment that had to be reported. This is an important lesson for employers: same sex harassment must follow the same protocols as male on female harassment. See decision here.

Many white folks just do not see the biases in our society that minorities see. Survey after survey reflect this lack of vision. We see that dichotomy again in the situation involving the University of Missouri football team. The team is threatening to “strike” a game not because the University President has been racist or because he said racist things. No, they are threatening because he is not hearing them. he refused to speak with the dissenting group when they surrounded his car at a Homecoming game. Apparently, in the days after the Homecoming parade, he made no effort to listen to their views. See CBS news report.

The fuss started when the student body president, an African-American young man was hurled the n-word a few times by white students he did not know. Later, a black graduate student started a huger strike – until the University President leaves. The football players skipped practice this past weekend. The head coach later sent a tweet indicating the entire team stands behind the dissenting members. Now, some faculty groups have indicated their support for the student group known as Concerned Students 1950. The name reflects the year the first black student was allowed at Missouri.

I do not know the beleaguered President, Tim Wolf. But, I know a great many white guys who have no concept that African-Americans suffer discrimination. My Facebook friends include many folks who hold different political views than I. Recently, one of my white FB friends commented about that young Dallas Moslem boy who left the US after he was treated like a criminal for making a homemade clock. My FB friend was not sympathetic. “What did he expect?” commented my friend.

It is easy to say such things when you are not the middle schooler arrested because you made a clock. It is also easy for Tim Wolfe to ignore concerns that in his mind are simply not real. When I was in the Army, we could not acquire a target until it was “on our radar.” That is, the target had to be within our area of vision before we could even hope to engage. It appears that racism just is not on Tim Wolfe’s radar….

The Fifth Circuit issued a strained interpretation of events in the recent case of Norbach v. Woodland Village Nursing Center, Inc., No. 13-60378 (5th Cir. 6/18/2015). In Norbach, the employee at a nursing home refused to pray the rosary with a resident. She was asked to do so by a co-worker. She was then called into the office by a supervisor. The boss told her that refusal amounted to insubordination. Ms. Norbach then said she could not pray the rosary. It would be against her religion. The supervisor said it did not matter. It was insubordination to refuse the request. She was fired. Ms. Norbach filed suit and eventually lost before the Fifth Circuit. The court of appeals found that the decision to terminate had been made before the employee raised her religious freedom as a motive. So, said, the court, the decision to terminate could not have been based on Ms. Norbach’s religion. See decision here.

Say what? The employee told the employer she was refusing based on her religion. He then replied that to refuse was insubordination for which termination was the appropriate response. If the decision had already been made, it was surely subject to recall when the employee explained her actions. And, it was surely just a matter of minutes before she explained her motivation. Strained interpretations make bad precedent.

I am reminded of the Norbach case, with its minute-buy-minute analysis regarding when a decision to terminate is made when I hear about the employee who nodded off at work. She was on medications for MS. The medications cause drowsiness. The employee tried to explain, but her boss would not listen. Her boss decided to fire her. She filed an EEOC charge, but like the Fifth Circuit in Norbach, the EEOC investigator decided the matter with that nano-second analysis. The investigator argued that the decision to terminate was made before the supervisor knew about the medications and the impairment. Well, wait a minute. If the supervisor made the decision to terminate before she learned about the medications, it was just barely before. It was seconds before. Yet, the EEOC investigator was prepared to dismiss the charge based on nano-second analysis.

This time, the employee had a lawyer, who argued no, the discussion was more complicated than that. The decision to terminate was not clearly made. And, really, the employer could have withdrawn its decision once it learned about the medications.

The EEOC investigator backed off his initial decision to dismiss. A few months later, the employer settled for a substantial amount. But, for a nano-second, the EEOC was prepared to engage in some injustice based on strained analysis.

Donald Trump makes racist comments about Hispanics and seems to suffer no repercussions. He is set to host Saturday Night Live on Nov. 7. The Congressional Hispanic Caucus has asked NBC to rescind the invitation to Mr. Trump to host SNL. See CBS news report. If this were a lawsuit, his remarks about Hispanics immigrants bringing disease would be very good evidence of racial bias. Yet, here he is hosting one of the most popular shows in the country. You gotta love this election season. And, you know, I bet I find myself watching the train wreck myself….

Hilda Gonzalez Garza, an Assistant District Attorney in Starr County told her boss she intended to run for the local elected school board. Her boss, D.A. Victor Canales apparently opposed her candidacy. The D.A. fired the assistant with no warning a couple of days later. Ms. Garza later filed suit under Sec. 1983 alleging infringement of her First Amendment rights and under the Texas Constitution. Pleading municipal immunity, the County successfully moved for summary judgment as to claims against the county. But, the judge denied summary judgment as to D.A. Canales in his individual capacity and for equitable relief under the Texas Constitution. The matter then proceeded to trial.

In his Jury Charge, the judge included language asking the jury to assess future lost pay. Future lost pay or “front pay” is an equitable remedy. That means the judge should decide whether to grant future lost pay, not the jury. But, neither party objected and the question went to the jury. The jury found in favor of Ms. Garza. The jury awarded $68,400 in lost back pay and $1,4 million in lost future pay. The jury awarded 22 years of lost pay to the plaintiff.

My clients often ask me about lost pay in the future and always I tell them how rare it is for a judge to grant front pay. But, here a federal jury awarded 22 years worth of lost future pay. After the trial, the employer moved to reinstate Ms. Garza in lieu of lost future pay. Front pay is simply an alternative to reinstatement. Normally, front pay is awarded only after a finding that reinstatement would not be feasible. The judge granted the motion and ordered reinstatement. That order removed the award of lost future pay. He described the jury finding as advisory. The plaintiff then appealed.

On appeal, Ms. Garza argued that the judge disregarded the jury verdict when he ordered reinstatement. The Fifth Circuit agreed. It found the parties had agreed to submit the issue to the jury. Under Federal Rule 39(c), the parties are bound if they agree to submit an issue to the jury. The Fifth Circuit said the jury ruling on front pay was not simply an “advisory” opinion, since the parties did not object to the charge allowing that issue to be decided by the jury. The court then hinted that the County should have objected to the size of the award. Instead, the County relied on appealing only the fact of the award itself. Now, said the court, it is too late to raise a new issue concerning the size of the front pay.

Since the court ordered reversal of the reinstatement, it did not reach Ms. Garza’s other issue that reinstatement was not feasible. See the decision here in Garza v. Starr County, No. 14-41343, 2015 WL 6152893 (5th Cir. 10/20/2015).

A couple of years ago, a client told me she was happy with how discovery was going in her case. We had, she assured me, “extremely strong evidence.” My initial reaction was what, what are you drinking?? It seems many folks new to the legal system expect much more. They expect a jury that listens thoughtfully, rationally. They expect a judge always sober, always calm. The reality is often different. In my experience, individual jurors are very busy with kids, school, sports, etc. They do not have time for jury duty! How many times have I been at a cocktail party and someone, upon learning I practice law and go to court, ask me how they can get out of jury duty. The reality is that jurors listen for a few minutes, but they really just want the trial to end.

Criminal trials might keep their attention longer. But, generally, in a civil trial, we can see they just want to get the trial over with. But, the TV reality is far different. In movies or on television, the juries always listen respectfully. They appear sober and attentive. Their eyes never wander. The TV juries never nod off. TV juries are so much better than the real juries. So, it is not surprising that a client might tell me with no sense of irony that we have “extremely good evidence.” I repressed a chuckle and explained to her that there are still a few holes in our case….

Work place harassment is still with us. And, courts still struggle with the term “severe or pervasive.” To rise to the level of work place harassment, conduct must be “severe or pervasive.” In Sanders v. Christus Santa Rosa PASC, 995 F.Supp. 2d 626 (W.D. Tex. 2014), the court looked at the totality of the circumstances and found there was issue of fact whether the harassment was severe or pervasive. Stephanie Sanders worked as a nurse at Christus Santa Rosa Hospitak. Dr. Michael Decherd made numerous sexual comments to the nurse. He showed her a video of a horse sodomizing a woman. He frequently sought her out, hugged her, showed a picture of her to a subordinate, and asked her to friend him on Facebook. He showed her a picture of a man performing oral sex on a woman and said he had changed his mind about oral sex.

The hospital filed a motion for summary judgment. It argued that Dr. Decherd did not follow her into a utility room, but was invited by the nurse. The court correctly pointed out that whether she invited him into the room is for a jury to resolve. The employer pointed out that once in the room, he did not attempt to accost her or kiss her.

The employer pointed to cases which found isolated teasing or banter did not rise to the level of sexual harassment. In those cases, male supervisors engaged in some 5 or 6 incidents of questionable behavior. Yet, the Fifth Circuit in those two cases found them to be isolated or somewhere less than “severe or pervasive.” The Western District observed that the higher court seemed almost to be counting incidents within a certain amount of time to see if there were enough incidents to qualify as severe or pervasive. And, the Western District pointed to a more recent case from the Fifth Circuit, Royal v. CCC & R Tres Arboles, LLC, 737 F.3d 396 (5th Cir. 2013), in which the court found hovering by two men over a woman in a confined space and sniffing could constitute severe or pervasive, such that a jury should resolve the issue. The Western District found these incidents severe or pervasive such that a jury should resolve the issue. It denied the motion for summary judgment.

The employer also argued that because Ms. Sanders continued working after this harassment occurred, that continued working precluded severity as a matter of law. The court rightly noted there is no authority for such an argument. The court then referred to the “aggressive” questioning of Plaintiff during her deposition. It noted that Nurse Sanders had asked Dr. Decherd a medical question about her breast implants.  Apparently based on that question, at Plaintiff’s deposition, the defense asked such questions as did Ms. Sanders flirt with Dr. Decherd, whether she took any responsibility for how Dr. Decherd acted around the nurse, and whether Plaintiff “brought it on at all.” Sanders, supra, at 634. The court rightly seemed troubled by the nature of these questions. I think any defense lawyer asking these sorts of questions without much better basis, is indeed risking judicial ire.

And, in its motion for summary judgment, the defendant had argued that there was nothing sexual or objectively offensive about asking for a cell phone number, being followed into a room and told you are “sexy.” The court did not appear to agree. At that point, the court found that based on the totality of the circumstances, these statements do raise a fact issue regarding whether this conduct was severe or pervasive and constituted harassment. Sanders, supra, at p. 633, n.9. In my opinion, in trying to argue that these sorts of statements are not sexual at all, the defense lawyer lost much credibility with the court.

So, the nurse defeated the employer’s motion for summary judgment. But, it was all for naught. In the end, the jury found Nurse Sanders was not harassed based on her gender. A jury in U.S. District Court essentially sided with the hospital, despite this evidence. Fortunately, the plaintiff had settled with the doctor before the hospital filed its motion for summary judgment. Indeed, with the doctor absent from the trial, the plaintiff may have found it more difficult to use some evidence. The jury did submit one note during its deliberations, suggesting it did at least have some discussion about the merits. This is a note of caution to all plaintiffs: even if you win the motion for summary judgment, that is no guarantee of victory last trial.

Are college football players employees? The NLRB, at least on the regional level, said yes. See my prior post regarding that ruling here. In a similar case, one former college basketball player, Ed O’Bannon, sued the NCAA for using his name and image in marketing. The NCAA has long used the names and images of current and former players in marketing efforts. A lower court had found in favor of the former players. The district court had ordered deferred payments for current student athletes.

But, the Ninth Circuit Court of Appeals saw things differently. The higher court opinion said offering payments to students not related to education expenses would go too far. That would be a “quantum leap” over the current system which bases payments on education expenses. The higher court did agree that the NCAA rules are subject to anti-trust scrutiny, indicating future challenges are likely. See CBS news report.

Well, two dancers won their trial last March. So, now Tiffany’s Cabaret has settled with the remaining dancers. I previously wrote about this case and trial here. The dancers sought a collective action, which is the name for a class action under the Fair Labor Standards Act. About half the dancers could not join the collective action because they had previously signed arbitration agreements. But, the rest of the dancers, about half of the 45 who asked to join, were allowed to join the collective action. They settled their claims after the Magistrate Judge denied the employer’s motion to dismiss. See San Antonio Express News report here.

It looks like the employer realized it should settle. The two dancers who went to trial last March, after all, were awarded $250,000, plus attorney’s fees. At the time, Tiffany’s Cabaret said they would appeal. But, I expect a more sober assessment has changed that plan, as well,

In one recent case, the employer did not move for summary judgment or otherwise seek to dismiss. The case was filed by Jamel Blanton, Arica-American, and alleged racial and sexual discrimination. The female restaurant manager was accused of saying such things as: “do all black guys have big penises?” “What I would do for you if you were well endowed.” She made some rather graphic comments.

Mr. Blanton said he complained to various lower level managers, but nothing was done. Later, he complained to the owner of the Pizza Hut restaurant, and the offending manager was fired. Later, Mr. Blanton had to become a cook, because it was found his driver’s license had expired. His hours as a cook were reduced and he felt he had to quit. The jury found he was subjected to racial and sex based discrimination by the female manager. But, found the jury, the employer took prompt action regarding his complaint. The jury also found that the employee did not take advantage of the complaint procedure. So, they found in favor of the employer. The trial lasted three days.

After the jury verdict, the plaintiff moved for a judgment notwithstanding the verdict (meaning that the verdict was simply wrong and not supported by the evidence), arguing that Pizza Hut failed to show its anti-discrimination policy was effective. There was no evidence of any training regarding the policy. The employer simply provided a copy of the policy at trial and no evidence regarding its effectiveness. But, the court disagreed, saying there is no authority for a requirement that there be more to a policy than the fact of its existence. The plaintiff also argued there was no evidence of training on the policy. Training would be wise, said the court, but there is no authority requiring training on anti-harassment policies. And, since the restaurant did fire the manager soon after the complaint, the jury could find that the policy was effective. And, while the plaintiff delayed reporting the harassment to persons higher than his manager, for fear of retaliation, the jury could find that his delay was not warranted. See Blanton v. Pizza Hut of San Antonio, No. 12-CV-1103, 2014 WL 888344 (W.D. Tex. 1/14/2014).

The jury did submit one note to the court, suggesting it was engaging in active deliberations. It did award the Plaintiff $1500 in compensatory (emotional suffering) damages. That award had no legal effect since the jury had already found the employer took prompt remedial action regarding Mr. Blanton’s complaint. But, it helps show the conservative tendencies of juries in federal court. Even when they award compensatory damages, the amounts are very low.

The result highlights the difficult of quitting a job when you may have a discrimination lawsuit. Title VII and the Texas Commission on Human Rights Act both provide for lost back pay if a worker is fired or suffers some adverse personnel action. Caselaw finds that voluntary quitting is not an adverse personnel action. Yes, there are times when a worker must quit or thinks s/he must quit. But, courts generally view those sorts of resignations skeptically. Here, the employer never moved for dismissal or for summary judgment. So, the court’s skepticism was not tested. But, the jury was essentially asked if Mr. Blanton had to quit and in general terms, the jury said no.

The trial also highlights the benefit of prompt remedial action. The employee delayed reporting to any significant level due to his fear of reprisal. The jury was not persuaded that his fear was well-founded. Federal juries are rather conservative. Juries in general prefer not be at the courthouse. They live busy lives. So, if you keep them in trial, you need to persuade them first that you have a very good reason.