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.

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.