It is not surprising that Ken Paxton is being called to appear in U.S. District Court. He gave poor legal advice to Texas’ 254 County Clerks when he suggested they could possibly ignore the Supreme Court ruling regarding gay marriage. I wrote about that inaccurate legal advice here. There is nothing wrong with sincerely held political views. But, when you are serving as the state’s Attorney General and you claim to offer legal advice to local governments, you have to remove the political hat and wear the legal hat. Judge Orlando Garcia, of San Antonio, ordered Ken Paxton and Kirk Cole, the head of the Texas Department of Health, to appear in court and explain why they will not issue a death certificate to reflect a gay marriage.

A spokesman for the Attorney General’s office said the AG will file a response to the motion. But, he will have to do more than that. Political posturing will only carry you so far. See San Antonio Express-Newsa report.

With an aging population, we are already seeing more medical care issues in the work place. There will be more, not fewer, requests for accommodation. Since the ADA was amended effective in 2009, we are just now seeing the increase in requests for accommodation cases. Some folks just get the whole request for accommodation thing wrong. I am as guilty as anyone. A few years ago, I prosecuted a case alleging that failure to accommodate an older person whose doctor prescribed “reduce stress.” As I learned the hard way, that sort of accommodation is too ambiguous to enforce. Judges sympathize with employers trying to navigate confusing regulations.

We see some of this ambiguity in a case in which the employee was diagnosed with edema, also known as dropsy. Edema involves swelling of the extremities. The treatment involves medication which requires frequent urination. Jeffrey Gordon worked as a retail coverage merchandiser (RCM). His job was to drive around town stopping at various grocery stores to track sales, promote certain products, and talk to store managers about the product. In October, Plaintiff Gordon told his boss he had been diagnosed with edema and that he would be seeking alternative employment. He asked to be transferred to an office position, to allow greater access to bathroom facilities. The court granted summary judgment in Mr. Gordon’s case. But, the court does not acknowledge this alleged request for accommodation in October, 2012. See Gordon v. Acosta Sales and Marketing, Inc., No. 13-CV-662 (W.D. Tex. 2015). Instead, in its order granting the motion for summary judge, the court simply finds that the plaintiff sought reduced hours in October, 1012 and informed his boss that he would seek alternative employment within Acosta Sales. The court does not appear to acknowledge that with the change in employment would come greater access to a bathroom.  Gordon, 12/22/2014 Order, p. 2-3.

Acosta Sales then hired someone to replace Mr. Gordon. In its response to the MSJ, the Plaintiff complained that this was part of an effort to force him to quit. But, the court disagreed. The judge found the employer was simply complying with the request of Kraft Foods that its RCM focus on only its products. In response to the email requesting fewer hours, the boss approached Mr. Gordon at a store and publicly berated him, “I am your f—ing supervisor. I can tell you to do whatever I want!” The plaintiff complained to the supervisor’s supervisor. At that meeting, Mr. Gordon said he wanted an accommodation of being moved away from his supervisor. Acosta Sales did investigate the incident. It disciplined the supervisor. But, it did not move Mr. Gordon away from the supervisor. Instead, it simply reassured him that the supervisor would not retaliate against him.

The court seemed to find it significant that the supervisor did not mention Mr. Gordon’s disability in his rant.The court also glossed over the Plaintiff’s allegation that the email was actually a complaint that he was being replaced regarding the Kraft foods – in addition to complaining that his hours were being reduced..

In its response to the MSJ, the Plaintiff argued that he suffered additional retaliation after the meeting with the Human Resources and the higher supervisor. But, the court found there was no real reprisal and that in his deposition, the plaintiff essentially admitted there was no genuine reprisal after the meeting with HR.

During the meeting with HR and the chain-of-command, the higher supervisor accused Mr. Gordon of lying and not disclosing his disability when he was hired. He had been hired just a month before October, 2012. Mr. Gordon took offense and walked out of the meeting. The Plaintiff did not address that allegation in its response. It is quite serious for any employee to walk out of a meeting with management. This is particularly so when asking for an accommodation. If the employee fails to cooperate in a discussion about accommodation, then the employer is relieved of the duty to provide any accommodation.

Later, the plaintiff submitted additional information from his doctor expressing the need for more frequent bathroom breaks. The employer responded that it would allow him more frequent breaks while driving around. The employee felt that was not enough. He believed that he was given a “Hobson’s chose” of his health or his job. So, he quit in March, 2013. In its response, the plaintiff alleged “constructive termination,” meaning that he was forced to quit. So, apparently, instead of responding to Acosta’s email regarding more frequent bathroom breaks and explaining why that would not work, the plaintiff simply quit. He said he had lost faith in the employer’s “system. ” Order, p. 5.

The burden to show work conditions are so bad that a person must quit is very high, indeed. Rarely does the Fifth Circuit find a situation so bad that a person was justified in quitting. Any plaintiff who alleges constructive termination will be toiling uphill. But, the bigger problem with this case is the poorly defined accommodation of “more frequent” bathroom breaks. The employer can request more information if it does not understand a particular request. But, here, here was little discussion. The employee walked out of one meeting regarding his accommodation. Mr. Gordon then did not respond to an email offering one alleged accommodation. At least in its response to MSJ, the plaintiff has not explained specifically how many more bathroom breaks he needed, why only an inside office job would offer the right amount of bathroom breaks, or why the accommodation offered by the employer, more frequent breaks, would not suffice.

Employers have a burden, too. They are generally not medical care providers. “More frequent” can mean one thing to one person and something entirely different to someone else. The court found that Acosta did offer a reasonable accommodation as a matter of law.

The court could and should have construed the facts more in favor of the non-movant. I find it remarkable that the judge expects the supervisor to include a reference to the disability during his yelling session, in order to connect the rant to this disability. This is summary judgment, after all, not an actual trial.

But, the request for accommodation is ambiguous. This request is vague, not too different from my old case of “reduce stress.” Requests do need to be specific, especially if the “requester” ends the discussion early.

 

 

The U.S. Supreme Court issued its decision Tolan v. Cotton, 572 US __, 134 S.Ct. 1861, 188 L.Ed.2d 895  a year ago. But, many courts still do not appreciate its holding. I wrote about the decision in Tolan v. Cotton here. The decision in Tolan essentially fusses at lower courts for not reviewing motions for summary judgment properly. The lower courts should credit the testimony of the plaintiff employee in discrimination cases. Often, lower courts have essentially applied a standard requiring something more than just the plaintiff’s testimony. They have required some corroboration of the plantiff employee. The challenge in every discrimination case is that discrimination rarely occurs in the open. Discriminatory conduct typically takes place quietly behind closed doors. The reality is there often is no direct corroboration of the plaintiff’s testimony.  Tolan sought to address that reality.

The majority opinion in the Fifth Circuit’s recent decision ignored Tolan. The dissent in Valderaz v. Lubbock County Hospital District, No. 14-10761, 2015 WL 3877788 (5th Cir. 6/24/2015), cited Tolan, but the majority opinion affirmed the grant of summary judgment. In Valderaz, the parties disputed what occurred at a meeting between management and the plaintiff. The defendant, and ultimately the court, claimed that the employee said he intended to leave his job no matter what happened at that that meeting. But, Mr. Valderaz claimed he thought management had agreed to transfer him at that meeting.

The plaintiff had complained about perceived discrimination. He was a male nurse and complained that the female nurses stereotyped him in his unit. They made his job difficult. He asked for a meeting with management. He wanted a transfer. At the meeting, management claimed he agreed to leave his old job, knowing he would have to apply for new positions within the hospital system. The plaintiff, however, claimed he thought the hospital was offering him a transfer to any department. He claimed to have no idea he would have to re-apply for a new job.

The majority opinion found the plaintiff to not be credible because his affidavit said he thought there would be a transfer, while his deposition testimony indicated that he insisted he would leave his job no matter what – indicating he was quitting. Based on that supposed inconsistency, the majority opinion finds there is no evidence to support Plaintiff’s claim that he was terminated after that meeting. The hospital required Mr. Valderaz to apply for a new job within the hospital. No such jobs were available. So, the plaintiff said he was effectively fired after the meeting. The majority opinion disregarded Plaintiff’s own testimony and that of his wife (who also attended the meeting).

The dissent points out that Plaintiff’s deposition testimony was more nuanced than a simple statement that he was leaving no matter what. Indeed, it was the questions posed by the hospital’s lawyer that actually suggested he would leave that unit regardless of any transfer:

Q: And you made that determination that you were not going back into that [unit where he was being harassed]?

A: That unless the situation, that the unsafe situation was resolved, in an effective manner for me to practice in a safe environment, that is correct.

Q: Oaky. So your decision on April 11th not to go back was not dependent upon any promise that you be transferred someplace else, it was based on your feeling that that was not a place that you could thrive and not a place that you could be safe and not a place that you were going to take the risk of going back to, correct?

A: Unless the situation was — the hostile work environment situation was resolved.

The employer’s lawyer argued this chain of questions showed the employee was resolved not go back to the department no matter what. But, as the dissent pointed out, no he was saying he would go back to that department if the situation was resolved. It is the questions that suggest he was prepared to leave no matter what, not the answers. In fact, immediately after this chain of questions, he was asked if he believed he was promised that he would be transferred. “Absolutely, ” he replied. The majority opinion did not construe the plaintiff’s deposition testimony in his favor. It ignored the testimony of his wife, who also attended the same meeting. The majority opinion ignored the holding in Tolan.

The Supreme Court reversed the lower court’s decision in Tolan, because the appellate court’s opinion reflected a “clear misapprehension of summary judgment standards.” Tolan, 134 S.Ct. at 1868. That lower court was the Fifth Circuit. Not much has changed…..

See the unpublished decision here.

There are some theories of law that some courts and most defense lawyers rely on to undermine otherwise good discrimination cases. One of those theories is the “stray remarks” doctrine. In general, the stray remarks doctrine holds that some remarks by management are so remote from the adverse personnel action that they are not relevant. Such remarks are said to be “stray.” I find some of these cases to be result oriented. They are produced by judges who seem to be looking for ways to dismiss a discrimination case. After all, if a remark is truly “stray,” does not that pertain more to the weight of the evidence than to its admissibility? If Jim Bob made a racial remark 20 years ago, does not that still have some relevance, however small?

The decision in Goudeau v. National Oilwell Varco, LP, No. 14-20241 (5th Cir. 7/16/2015) helps clear up some of the confusion regarding the stray remarks doctrine. As recently as 2000, the Fifth Circuit warned that the stray remarks doctrine must be viewed “cautiously.” Russell v. McKinney Hospital Venture, 235 F.3d 219, 229 (5th Cir. 2000). In 2012, the Fifth Circuit acknowledged that the circuit’s application of the doctrine has been “somewhat messy.” Reed v. Neopost USA, Inc., 701 F.3d 434, 441, n.5 (5th Cir. 2012). Goudeau attempts to clear up some of that mess. It finds that there are two different situations in which the doctrine would apply. First, the doctrine would apply to a case in which the plaintiff alleges pure direct evidence and in which the McDonnell-Douglas burden shifting paradigm does not apply. In such situations, said the Goudeau court, the stray remarks doctrine would apply. The remark must connect closely to the termination itself in time and to the person who effected the termination.

Second, the doctrine would also apply to cases in which the evidence is circumstantial. Most discrimination cases are based on circumstantial evidence, noted the court. In this second situation, the courts will look at alleged remarks under a “more flexible” standard. To be relevant as part of a circumstantial evidence case, the comments must show: 1) discriminatory animus, 2) on the part of the person that is either primarily responsible for the challenged employment action or by a person with influence or leverage over the relevant decision maker. Goodeau, p. 7 (slip opinion). So, as in this case, the supervisor made comments about the “old farts” working there and asked about the age of two older employees. The supervisor later fired two of the three “old farts.” These comments, said the panel, serve as part of circumstantial evidence case. Such remarks are relevant at the prima facie stage. These remarks along with the doubts about the written warnings serve as evidence of pretext. The higher court reversed the district court’s summary judgment regarding the claim of age based discrimination.

Too, one has to wonder how a district court could grant summary judgment when there are comments like “old farts” made by supervisory officials.

The Department of Labor, Wage and Hour Division, has issued new interpretative guidance regarding independent contractors. As I have mentioned before, many employers are trying to stretch the limits of independent contractors to include as many employees as possible. See my post here. This trend has been ongoing for a decade or more. The Administrator’s Interpretation No. 2015-1 can be found here. The guidance makes it clear that the old common law test will not apply to cases under the Fair Labor Standards Act. Courts applying the FLSA should apply the “economic realities” test. DOL adds in a footnote that while many cases involve alleged independent contractors, many other cases involve purported “partners,” “owners,” or members of a limited liability company. In such instances, the economic realities test will still apply. The economic realities test essentially asks whether the worker is economically dependent on the employer. The Guidance addresses each factor in detail:

  • Is the work an integral part of the employer’s business? That is, if the employer is a grocery and it hires an electrician, then the electrician is likely to be found to be an independent contractor
  • Does the worker’s managerial skill affect the worker’s opportunity for profit or loss? If the employer schedules the hours and work time for the worker, that indicates the worker depends on the employer for profit. But, if the work, such as a cleaning company, schedules its own workers based on its own needs, that suggests the worker is independent.
  • How does the worker’s investment compare to the employer’s investment? Essentially, this factor addresses who provides the material and equipment for the work. For example in one case, farm workers provided their own gloves. That investment did not compare to the farm owner’s investment in tools and equipment.
  • Does the work performed require special skills or expertise? Permanency or indefinite work assignment suggest the worker is an employee.
  • What is the nature of the employer’s control of the work? If the employer merely assigns work goals or end products allowing the worker to determine how to create or effect that end product, then that lack of control indicates the worker is acting with some independence. Who decides the goal and who decides how to reach that goal?

These factors are not new. But, the Guidance does pull together the better caselaw on this critical test.

Wayne Wright, LLP, whose motto is the law firm demands “respect and justice” for its clients, was sued for pregnancy based discrimination in 2015. The EEOC filed suit after Kendra Taylor-Andrews filed a complaint with the EEOC. Ms. Taylor-Andrews had been employed by Wayne Wright in Houston since 2004. She received favorable performance reviews during her employment. But, in 2011, she told her employer that she was pregnant. The law firm told her it could not accommodate her pregnancy and told her to choose her last day on the job. When she asked for clarification, the firm placed her on a personal improvement plan. Within a week, the firm fired her. Ms. Taylor-Andrews then filed a charge with the EEOC in June.

The employer would have received the charge by July. On August 19, 2011, it filed suit against Ms. Taylor-Andrews in County Court in Bexar County. The law firm sought a declaratory judgment stating it was justified in firing her, court costs and attorney fees. See Wayne Wright, LLP v. Taylor-Andrews, No. 371467. The former case manager was served with the lawsuit in September. The law firm then wisely dropped the lawsuit a week or so after it served the employee. Suing the employee in an EEOC charge constitutes pretty strong evidence of retaliation. Filing a lawsuit regarding civil rights violations should not subject a person to a counter-lawsuit.

The EEOC then filed suit against Wayne Wright, LLP in March, 2015. The EEOC does not file many cases. They can afford to be picky. That the agency was interested in filing this suit indicates it was a strong lawsuit.

A month later, Wayne Wright signed a consent decree agreeing to pay $15,000 in lost wages and $45,000 in compensatory and punitive damages. The law firm also agreed to post notices at all five Texas locations apprising workers of their rights regarding pregnancy discrimination.  See EEOC v. Wayne Wright, LLP, No. 14-CV-00970 (S.D. Tex. 2014).

Donald Trump, who apparently has a reputation for saying strange things, has said Sen. McCain was not a war hero because he was captured. Later, he qualified his comments, saying the senator was a hero but suggesting that being captured diminished his service. His comments are beyond silly. Donald Trump never served. He is far from an expert on military service. According to one report, Donald Trump received five deferments during the Viet Nam War. See ABC news report regarding some of his deferments.

And, I have to say, anyone who did time in a Vietnamese POW camp or in a Japanese POW camp served far above the normal requirements of military service. See CBS news report. And, as most folks probably know, John McCain performed better than most in those camps. He could have left the camp much sooner than he did. He chose to remain imprisoned because he refused preferential treatment based on his father being an Admiral at the time.

To use Sen. McCain’s words regarding Ted Cruz a couple of years ago, Donald Trump is a wacko bird.

San Antonio based restaurant China Sea, agreed to pay $504,577 to 82 former workers for minimum wage, overtime and record-keeping violations. China Sea used two sets of books, one real, one not so real. Some kitchen workers were paid a salary that did not equate to minimum wage. And some workers worked 60 hours per week, but their hours were not recorded. And, servers were not properly paid. The Department of Labor filed suit against the corporate owner, PCXAC LLC and WKHK Investment LLC, which own three China Sea restaurants. The suit originally sought over $1 million in damages on behalf of 164 workers.

The lawsuit was filed in 2012. The parties completed discovery and apparently agreed to a settlement after a mediation session. See Cause No. 12-CV-1210. See San Antonio Express News report.

Gov. Abbott has asked the Texas State Guard to “monitor” the training known as Jade Helm 15. I previously wrote about that silly request here. I was wrong in describing the entity as the Texas National Guard. The Governor actually asked the “Texas State Guard” to watch the Special Forces soldiers traipse around conducting their training exercise. The Texas State Guard is a different entity than the National Guard. The State Guard is a voluntary position. They undergo very limited training. But, many former service members serve in the State Guard. I knew or saw a few State Guard members when I served in the Texas National Guard. My impression then was that they were basically adult boy scouts. But, now I know better. Some of them do good work. Others are slightly more effective than boy scouts.

The Governor made a strange request. Fortunately, not much is required. The State Guard members merely need to attend briefings that would already occur and then report back to the Governor. See San Antonio Express News report.

The exercise started yesterday. Another organization, Counter Jade Helm, has taken it upon itself to also monitor Jade Helm. One of the CJH volunteers followed a truck in the town of Bastrop which he thought was military. The truck turned out to be a civilian water truck. See Stars and Stripes report. That is such a relief…..

If a lawyer said what Ken Paxton said about disregarding A Supreme Court decision, then that lawyer would indeed face disbarment. So, it is perhaps not surprising that some 150 Texas lawyers have threatened to file a complaint about the Texas Attorney General. Ken Paxton issued legal guidance soon after the Supreme Court decision finding that gay marriages enjoyed protection under the U.S. Constitution. The day after the decision, the AG issued guidance that County Clerks could choose to ignore the decision if it violated their religious beliefs. But, warned, the AG, such County Clerks could face litigation if they refused to issue marriage licenses to gay persons.

Some 150 Texas lawyers have indicated they would file a complaint with the Texas bar about his unlawful legal guidance. See Texas Tribune report. The letter mentions the oath we lawyers take to uphold the U.S. Constitution.

Too, one must question the advice that County Clerks can even have religious beliefs. Acting as officers of the state or local government, much of what an official can do is limited. The Fourteenth Amendment applies the terms of the U.S. Constitution to all local and state government officials. State and local officials are the government for purposes of the U.S. Constitution. One can only assume Mr. Paxton’s advice was more political than legal.