For those of us who deal with the Equal Employment Opportunity Commission regularly, that can be a lesson in futility. Like too many agencies, they are assigned too many cases and are expected to do too much with too little. So, it is not surprising that the EEOC folks do make their share of errors. But, the thing is their errors may deprive some hard-working victim of discrimination his or her day in court.

In Alvarado v. Mine Service, Ltd., No. 14-50668 (5th Cir. 7/30/2015), that victim of discrimination came very close to losing his day in court because the EEOC made a mistake. The EEOC let Mr. Alvarado’s complaint sit around for two years before his lawyer noticed and asked for the right-to-sue letter. The EEOC issued a letter dated June 14, 2013 allowing Mr. Alvarado to file suit. Mr. Alvarado had complained about a noose that was left on the foreman’s desk. The worker asked about the noose, and set up meetings for his Hispanic fellow workers to discuss issues with the supervisor. Mr. Alvarado was later fired for “stirring up” racial problems. Mr. Alvarado’s complaint was based on race. Yet, the June 14 notice from the EEOC referred to an age discrimination claim. The plaintiff’s claim was based on Title VII. Yet, the EEOC checked the block for ADEA.

And, even though it had a space for an EEOC official to sign it, the space was blank. It was not signed by the EEOC. And, the notice said the charge had been on file for less than 180 days, even though it actually had been on file for two years.

The plaintiff’s lawyer called the EEOC. The EEOC said they would send a new corrected notice of right-to-sue. They sent a second correct notice on July 8. The plaintiff then filed suit within 90 days of the second letter, not the first notice. Mine Service moved to dismiss saying the proper deadline started June 14 with the first letter, not the second letter. The district court agreed, finding the first letter conveyed all the necessary information, so that is when the 90 day deadline started. The lower court made an oblique reference to tolling, saying the EEOC did not mis-lead the plaintiff because the first letter was valid.

But, the court of appeals disagreed. It did find equitable tolling. The lower court had rejected the office administrator’s testimony as hearsay. She testified that the EEOC told her the first letter was incorrect. The Fifth Circuit said no, that was not offered to prove the matter asserted. It was not offered to show the letter was incorrect. It was actually offered to show the law office relied on what they were told by the EEOC. That reliance constitutes a “hornbook” law exception to the hearsay rule. Alvarado, at 7 (slip opinion). Too, noted the court, the July 8 letter said the plaintiff could file suit within 90 days of this letter.

So, now with the evidence regarding what they were told by the EEOC, the case falls within the line of cases which hold equitable tolling will extend a deadline. And, noted the court, extending the deadline 20 days will not cause any prejudice to the employer. And, this was not a case in which the lawyer was slow to act. The law firm was generally quick to react to the EEOC errors, seeking clarification and at one point, contacting the agency again when the EEOC was slow to send the second letter.

The EEOC makes plenty of clerical errors every year. They process thousands and thousands of claims every year. The courts should not allow a person’s claim to be subverted by clerical errors, especially when that claimant has been as diligent as this plaintiff was. It is refreshing to see a higher court bring some degree of common sense to the discussion.

Pen

In a recent ruling, the National Labor Relations Board has adopted a new standard regarding joint employers. Joint employers is a relatively new creation in the area of labor and employment law. Joint employers, as the name suggests, refers to separate employers both being employers of the same employee. Many years ago, I worked on a case in which a large office supply house contracted out its drivers to a third party. One day the drivers worked for Acme Office Supply. The next day, they worked for Speedy Delivery Service. Based on many factors, the drivers were eventually found to be employees of both entities. Yet, both entities had completely different ownership structures.

That situation was more apparent. It was obvious the large office supply company was trying to avoid liability when it switched to a third party. And, since the large office supply business still actually supervised the drivers in every way, it was easy to see that Acme Office Supply was still an employer, at least in part. But, what if Speedy Delivery hired some of the old drivers, but not all? What if Speedy Delivery had its own human resources department? And, what if Acme had some employees on-site, but so did Speedy Delivery? That is much like the case in Browning-Ferris Industries, 362 NLRB 186 (8/27/2015). BFI operated a recycling center. BFI hired and supervised the employees who worked outside the center. But, to perform the functions of sorting and cleaning the items inside the center, BFI contracted with Leadpoint Business Services. The chief Leadpoint person reports to his corporate office in Arizona.

The Board noted that the common law test for joint employers up to now has focused on control. Who controls the employee? If both entities control, then both entities are employers. The Board then looked to the test for independent contractors, which does look at who may control the employee, not necessarily who actually does control the employee. There was some evidence that BFI exercised control over some Leadpoint employees. But, the Regional Director found these instances were too infrequent to establish control. The national level Board, however, focused not on actual control but on the degree to which the second entity could control. So, the Board by a 3-2 vote, decided that no longer will it be necessary to show that the second entity must actually exercise that authority which it possesses over the employee. Browning-Ferris, at p. 15-16 (slip opinion).

The Board then noted that BFI though its agreement with Leadpoint, possessed “significant” control over who Leadpoint hired. Although BFI did not participate in Leadpoint’s day-to-day hiring decisions, it “codetermined” the outcome of that process by imposing specific conditions on Leadpoint’s ability to make hiring decisions. Even after Leadpoint has determined that an applicant meets the required qualifications, BFI still retains the authority to reject that employee “for any or no reason.” BFI retained the authority to “discontinue” any of the personnel assigned by Leadpoint. Two BFI managers testified that BFI has never discontinued any employee or has ever been involved in discipline. But, said the Board, two such incidents occurred in which BFI requested the immediate dismissal of two workers.

So, the Board determined that BFI was mis-leading. Prevarication to a tribunal always leads to problems for that entity.

The Board also found that BFI exercised indirect control over the speed and methods of Leadpoint’s work. The speed of the conveyor belts has been a source of constant tension between BFI and Leadpoint. Apparently on their own, BFI personnel have coached Leadpoint personnel on how to work smarter, faster – with no apparent involvement of Leadpoint managers. Since BFI retained “ultimate control” over the sorting and sifting lines, the Board found it difficult to see how Leadpoint could bargain with a union over issues involving work speed and breaks. BFI also assigned work positions, and assigned specific tasks that need to be completed. It dictated the number of workers needed and the timing of the work shifts.

Regarding wages, BFI played a significant role in the rates of pay and how the Leadpoint workers were paid. Under the terms of the agreement, Leadpoint may not pay its employees more than BFI pays its employees.

So, yes, this decision is possibly far-reaching. The standard for many principles of employment and contract law start with NLRB decisions. If the NLRB finds that indirect control is “control” for purposes of the National Labor Relations Act, then that certainly could spread to other employment statutes. The other day, I heard one reporter say this could affect franchises and their corporate headquarters. Yes, indeed. If McDonald’s requires its franchisees to establish certain work schedules, pay certain wages and even positions the workers in the work area, then that would certainly make them a joint employer of the local McDonald’s employees. See decision here.

This is a 3-2 decision. That means when the next President comes into office and points his two new members of the board, this decision could change. But, until then, we have a very new standard that will change the outcome of many cases. This decision is a game;changer.

 

Now, Attorney General Paxton wants to cancel the hearing in front of Judge Garcia in U.S. District Court. Judge Garcia ordered Ken Paxton and Kirk Cole, the interim head of the Texas Department of Health, to explain why they chose to violate the U.S. Supreme Court decision regarding gay marriage. Judge Garcia has essentially asked the two agency heads to explain why they should not be found in contempt. I previously wrote about AG Paxton’s problems here and here. He chose to give unlawful legal advice. He did see the error of his ways later, however, and changed policies. As I mentioned before, political posturing will only carry you so far…..

Well, it is hardly a surprise. The Fourth Court of Appeals has affirmed the district court and found that the University of the Incarnate Word Police Department is not an “arm of the state.” It is not a government. I previously wrote about this frivolous appeal  here. See San Antonio Express News report.

UIW says they will appeal to the state Supreme Court. Who knows what the Texas Supreme Curt will do. They will go to great lengths to assist defendants in personal injury lawsuits.

In Burton v. Freescale Semiconductor Inc. and Manpower of Texas, LP, No. 14-50944 (5th Cir. 8/10/2015), the Fifth Circuit overruled the district court’s summary judgment. The court addressed a frequent issue, who is responsible for the termination of temporary employees? But, in so doing, the higher court also addressed a more frequent issue, how to apply the summary judgment standard.

Nicole Burton was placed at Freescale by Manpower, a temporary employment agency. Freescale relies on temps. It increases hiring in good times and scales back in the slow times. Ms. Burton received good performance evaluations in 2009 and 2010. In 2011, she broke a wafer. She was counseled for that error. In March, she inhaled chemical fumes at work. She sought  medical treatment. Her health problems continued and she filed a worker’s compensation claim in June. About two weeks after the filing, Freescale decided to fire her. Supposedly, an incident in late June when she was allegedly using the internet was the final straw. But, the evidence was ambiguous regarding whether the supervisor actually knew about the internet incident when he decided to terminate.

The decision to terminate was made in late June. But, the plaintiff was not terminated until late July. In the meantime, Freescale hired and trained her replacement. So, in that one month period, Freescale started collecting documentation of performance problems. Manpower asked for any such documentation. Manpower recommended against termination due to the small amount of documentation and the recent filing of her worker’s compensation complaint. The day after Manpower’s initial reluctance, representatives from Manpower and Freescale, including the supervisor and HR persons, conducted a telephone conference. They established a “communication plan” regarding her termination. They decided Ms. Burton would be fired for four separate incidents, at least two of which occurred after the decision to terminate had already been made. Ms. Burton was then told she was fired. She sued under the ADA. She claimed she was fired because of she was perceived as having a disability and because she filed a worker’s compensation claim.

The district court granted summary judgment. Unlike the court of appeals, the district court accepted Freescale’s accusations at face value with little discussion. The lower court agreed that at least one incident did occur post-termination, but the court simply pointed to “additional” transgressions which were not otherwise included as basis for the termination. The court seemed to think that showing some of the employer’s reasons, or even one reason, were false did not matter if the employer had “fall back” reasons for termination. Order re MSJ, p. 23. The district court also made the remarkable factual conclusion that the decision-maker’s testimony was not inconsistent. The court accorded no inferences in favor of the plaintiff when the decision maker could not recall when he first learned about the internet incident. The burden is on the emplayer to articulate its reasons for termination. If it cannot do so, there are many cases which would afford the plaintiff favorable inferences. Yet, the district court here afforded the plaintiff no such inferences when the employer’s story sputtered. The district court, it seems, did draw factual inferences against the plaintiff.

The plaintiff pointed to deposition testimony regarding the termination, when the supervisor changed her answer completely. At first she said she did not know who first recommended termination. Soon after, she said she was the one who first recommended termination. The plaintiff pointed to that very substantial change as indicating doubts about her testimony. No, said the lower court, the supervisor was simply trying to get her answer straight. But, of course, if the supervisor has trouble getting her story straight, that suggests a trial should be held. “Trying” to get her story straight is the very definition of shaky testimony. Summary judgment is not appropriate when there are questions about such evidence.

The higher court disagreed with the trial court. It found that the district court credited some testimony, while discounting other testimony. It noted that the district court flat ignored the supervisor changing her answer. This was in contravention of the decision a year ago in Tolan v. Cotton, 134 S.Ct. 1861 (2014). Burton, at p. 20 (slip opinion).

The district court even defended the managers, saying they were deposed two years after the incidents in question. “A person cannot be expected to be able to recall every single detail from two-and-one half years prior.” Order re MSJ, p. 26. But, really, that is why summary judgment should be denied. Summary judgment means “quick” judgment. A quick judgment should not be granted if there are doubts about the evidence. That is the point of summary judgment.

But, even so, the higher court seemed annoyed a bit with the language used by the employer’s attorney. At one point discussing pretext, the court noted that Freescale conceded that there was some evidence showing that the Freescale supervisor was aware of the medical treatment. The court noted the truth of that statement and remarked  that it just “scratches” the surface. Burton, p. 11 (slip opinion). Later, in a footnote, the court took a rare direct swipe at the language used by Freescale’s attorney.

  “Disparaging the evidence is a theme throughout Freescale’s brief. In addition to labelling Burton’s accounts of deposition testimony as ‘creative slicing and dicing’ and writing off the testimony regarding the defendants’ policies as ‘generic.’ Freescale also complained that ‘Burton attempts to pick apart verbiage used in Manpower’s EEOC Position Statement.’ We do not find this sort of dismissive bluster compelling in the slightest.”

Burton, p. 26 n.16 (slip opinion). That is judge speak indicating the judges were annoyed by the over-the-top language used by the attorney. Courts of appeals prefer more thoughtful analysis.

The higher court would not agree with the lower court that the employer simply provided “additional” reasons to the EEOC. The stories provided to the EEOC and provided to the court do differ regarding the reasons for the termination. The employers “peddled” the July reasons for termination only until discovery revealed the decision had already been made in June, noted the court. The higher court did what the lower court would not, it looked behind the defenses offered by the employer and found they did not hold up.

Regarding the joint employer issue, the court rightly noted that the critical factor is control of the employee. Evidence indicated Freescale had the greater degree of control by far. Manpower then argued that it was not involved in the decision, so it should be granted summary judgment. The court noted, however, that there was evidence that Manpower knew this termination was questionable. The temporary agency should have done more than simply acquiesce in the decision. And, said the higher court, that the placement agency “had no choice” contractually but to comply with a discriminatory decision is no defense at all. Its contract with Freescale also required it to follow all state and federal laws, including the Americans with Disabilities Act.

Regarding the “perceived as disabled” issue, the court explained that the plaintiff only needs to show that she was perceived as impaired and that the employer discriminated against her on that basis. Freescale urged that it was not aware of any disability. The court commented simply that there was no shortage of contrary evidence. See the decision here.

 

Sid Miller, Texas’ new head of the Department of Agriculture, is kind of amusing. At the beginning of his term, he announced with apparent relish that cupcakes were now allowed back onto school menus. He made his announcement while biting into a very tasty looking chocolate cupcake. A few months later, he announced the fryer was allowed back into school cafeterias. I did not even know fried food had been banned. His department changes the rules, to allow fryers back. Imagine the relief I felt….

Now, he has posted on Facebook a cartoon suggesting that we should “nuke” the Moslem world. See CBS news report. Not that nuking anyone has anything to do with the Agriculture department. But, really, the whole Moslem world? What about those tens of thousands of Moslems who helped us in the wars in Iraq and Afghanistan? As I have mentioned here before, we could not have done what we did in those wars without some dedicated, very able Moslem interpreters. They did more than just interpret. They were cultural guides for us Americans. We knew so little about these societies we had to work so closely with. Truly, a few unknowing mis-steps here and there, and we would have had many more Americans killed by insurgents.Those interpreters saved many American lives.

And, now the cupcake guy wants to nuke every single Moslem?

Well, the National Labor Relations Board (NLRB) has reversed the regional director in Chicago who had ruled that Northwestern University football players could form a union. The ruling from the national level found, instead that allowing union organizing could lead to imbalances in competitive football. See CBS news report. The ruling did not address the Chicago regional director’s finding that the players were employees for purposes of the National Labor Relations Act.

I previously wrote about this issue here and here. The unanimous five-member board in Washington, D.C. found that allowing the players to organize could lead to different standards at different schools. The national ruling cited federal caselaw that promotes stability and uniformity between management and workers.

Sure, but sooner or later, the schools will have to recognize these players are more employees than students. The movement is toward greater and greater renumeration for the players, not less.

Frivolous lawsuits and frivolous defenses have always been around. We see one such frivolous defense in the appeal filed by University of the Incarnate Word. UIW is being sued by the family of Cameron Redus. Mr. Redus was shot by a UIW police officer in 2013 after a traffic stop. The family sued UIW. Now, UIW is making a silly claim. The university is claiming the UIW police department is a state entity, so as to be protected by “qualified immunity.” Qualified immunity means the state, which is normally immune from suit, has not passed a statute removing that immunity. If the UIW police department is immune from suit, then the lawsuit will be dismissed.

But, wait, isn’t UIW a private school? Yes, it is. It would be a huge stretch to turn the UIW police department into an arm of the state government. This is a frivolous appeal in the sense that the chances of success are extremely small. Very likely, this is simply an attempt to delay the lawsuit. UIW, like most defendants, hope to delay and just wear down the plaintiff. For better or for worse, that is our adversarial system of justice works.

So, now AG Paxton and Mr. Cole, head of the Department of Health Services, have agreed to implement policies which will ensure no other gay or lesbian citizens will be denied requests to amend death certificates. The state officers say they will implement these new policies within just a couple of days. In turn, Judge Garcia agreed to postpone the hearing until Sept. 10. Ken Paxton will not have to appear and explain his legal advice. The state officials must now confer with the lawyers for John Allen Stone-Hoskins regarding those policies. Mr. Stone-Hoskins is the plaintiff in the lawsuit.

Mr. Paxton had asked to be excused from the hearing, saying a lower ranking official would be more familiar with the issues. See San Antonio Express News report. That is not good leadership. Asking subordinates to fall on their sword for the big boss does not set a good example.

I think this counts as one of those “oops” moments. AG Paxton issued legal advice to county clerks, allowing them to disregard the Supreme Court decision, if they chose. Judge Garcia then reminded the AG that no, Supreme Court decisions must be followed. Now, the AG seems to be in agreement with the judge. I previously wrote about this unfolding legal drama here and here.

Well, Ken Paxton and Kirk Cole, the head of the Department of Health, reconsidered. They allowed the spouse of a gay man to amend the death certificate to list him as the spouse. It took about a day for Mr. Paxton and Mr. Cole to reconsider and do as they were were compelled to do under the new law. See San Antonio Express News report.

AG Paxton and Mr. Cole are still ordered to appear at a hearing in front of Judge Garcia. But, now that they have issued the requested death certificate, one can expect the hearing to proceed relatively smoothly.