Are women different when they serve in managerial capacities? One former City Manager apparently thinks so. Jonathan Allen, former City Manager of Lauderdale Lakes, Florida, addressed the group and said plainly that women in government do not read the research prior to meetings and ask too many questions. “They don’t process things the same way,” he said. Mr. Allen was City Manager when Ft. Lauderdale had an all-female city commission. Austin, Texas has a majority female City Council. Apparently, the seminar was organized by the Austin City Manager.

Mr. Allen later issued a statement saying his remarks were mis-construed and he apologized for any mis-communication. See CBS news report. I think Mr. Allen does not process things the same way either….

Well, the state Senate passed a measure that would restrict Hazlewood recipients to veterans who served six years or longer. That means the average veteran who does his or her 3 years and leaves would not qualify. And, the benefits must be used within 15 years of service, according to the Senate version. That means many, perhaps most children of veterans will be too young to use the college benefits. The Hazlewood Act allows veterans to attend a state college free of tuition and some fees. The current act allows veterans to pass the benefit to his/her children if the veteran cannot use it. I previously wrote about this attack on the Hazlewood Act benefits here.

And, at about the same time as the Senate version, the state House passed a measure that would limit the credit hours to 60 hours, a big reduction from 150 hours. Both measures apply immediately, with no “grandfather clause” for veterans who have already left the service. So, either way, Texas veterans are kicked to the curb, because the state could not get its financial estimates straight. All this despite the fact that the state has a large surplus and will cut taxes substantially, this year. See Texas Tribune report.

Pen

People lie in civil cases. They really do. Unlike what you see on TV, witnesses can usually lie in non-criminal cases and get away with it. Prosecutors just are not interested in going after folks who lie in a civil case. They have too many more serious cases to deal with. But, one woman in Houston learned that sometimes, the prosecutor will take notice when proving the lie is easy enough.

Amy Fisher lied for her employer in a wage lawsuit. The case went to court in federal court in Houston. A key issue was whether salespersons were outside sales or inside sales. If they were outside salespersons, they they would be exempt from overtime requirements. Ms. Fisher must have exaggerated some amount regarding the extent to which sales persons conducted sales outside. She was the only sales associate to testify at trial for Meritage Homes Corp. She apparently testified in deposition earlier the same day in which she testified at trial. The plaintiff was alleging that sales associates spend most of their time selling homes inside a model home. Ms. Fisher apparently disagreed. But, her testimony was shaky enough that the trial ended soon after she testified.

The Defendant had planned to call some six witnesses on the following day after Ms. Fisher testified. That would have been the seventh day of a lengthy class action trial. Yet, parties suddenly settled the next day without Meritage calling any of those six witnesses. See Lipnicki v. Meritage Homes Corp., No. 10-CV-605 (S.D. Tex. 11/18/2014). One can assume Ms. Fisher was caught in some pretty clear lies forcing the employer to settle much sooner than it had intended. Yes, those things do happen. But, catching a witness in a lie is so rare that it makes the news. See KSTAR news report. Whatever the evidence was against Amy Fisher, it must have been pretty clear for the U.S. Attorney to take notice.

Mike Leach was fired by Texas Tech over five years ago. He filed suit over that termination, saying it violated his contract. I previously wrote about his lawsuit here and here. He sued to force the state to honor its contract hiring him. But, his initial appeal was denied. And, now the Texas Supreme Court has also denied his appeal. See Fox Sports report.

Consider what the former Texas Tech Chancellor said about the firing of Coach Leach: “If you tell your boss to go f— themselves, then you will probably be dealing with your boss.” Kent Hance said he learned that in 3rd grade growing up in the Texas Panhandle. That does sound like good employer-employee advice. See Lubbock Avalanche-Journal news report. The administration asked Coach Leach to apologize to that student he punished. Coach Leach refused.

Schlumberger cannot accept its loss in a recent jury trial. The large oil field service company has asked U.S. District Judge Lamberth for a judgment notwithstanding the verdict. That is, it has asked the judge to toss the jury verdict saying the verdict lacked evidentiary support. See San Antonio Express News report (account required). The plaintiff’s lawyer earlier filed a motion seeking $350,000 in an award of attorney’s fees. That is a very high amount. That large amount probably reflects the great amount of work the plaintiff’s lawyers had to invest to get to trial. The jury verdict was a relatively small amount, some $29,000 in total damages. See my prior post here.

Regarding Schlumberger’s request to toss the jury verdict, the plaintiff’s lawyer said the employer is setting up the case for appeal. The appeal will likely cost more than the entire jury award. As many employers do, Schlumberger just cannot accept that it lost. It will spend more than  the case is worth to prove its point.

The request is a little silly. Gov. Abbott has asked the Texas National Guard to “monitor” the U.S. Army Special Forces as it performs some training at Camp Swift, near Bastrop. The Camp Swift exercise is part of a seven state training exercise for the SF guys. Some folks in Bastrop were concerned. They seem to think Pres. Obama is about to take over Texas. Special Forces Command says some 1200 SF soldiers will take part in the exercise at some 17 locations in Texas. Special Forces does this periodically. They need new training areas, preferably in urban areas. SF guys train so often that the mock urban villages at Ft. Bragg, Ft. Hood and elsewhere become stale and predictable. The Bastrop citizens were not satisfied with the Special Forces Command spokesman explanation of the training. So, the Governor’s office announced it had asked the Texas Guard to monitor.

As one senator said, that is a bit like asking the Marines to monitor training by the Army. What would be the purpose? Gov. Abbott is giving in to strange conspiracy theories instead of addressing the lack of foundation for such theories. As the SF spokesman said, the Bastrop folks are concerned with the training and the Obama administration. But, the spokesman, a lieutenant-colonel, has served through five different administrations over 27 years. This institution, the U.S. Army has been around for 200 years, he added. He indicated they could trust him and the Special Forces Command. But, the folks in attendance at the briefing were not satisfied.

But, I think it is safe to say, there are no plans to take over Texas, or even Bastrop. See San Antonio Express-News report (account required).

The Texas Supreme Court reversed the jury decision in Nicholas v. SAWS. See decision here. The result is not surprising. The Texas Supreme Court frequently reverses jury verdicts in favor of victims of discrimination. The court found that Debra Nicholas did not have a reasonable belief that she was opposing discrimination when she warned a SAWS executive about asking two younger staffers to lunch. I previously wrote about this case here and here. The decision omits some facts, such as it was the SAWS General Counsel who first believed Greg Flores’ actions amounted to possible sexual harassment. The General Counsel asked Debra Nicholas to get involved. One of the junior staffers said she would file a sexual harassment complaint if the invitations did not stop. I wrote earlier that SAWS’ argument on appeal would be difficult to win.  See my prior post here. Yet, it is that every basis on which the Texas Supreme Court rests its decision. Indeed, SAWS came up with that argument after its earlier appeal to the Fourth Court of Appeals. The Supreme Court, nevertheless, accepted the argument because it involves SAWS’ immunity from suit. Cough, cough. That is a slim reed on which to allow a new argument on appeal. Partis are not supposed to be bring up new arguments on appeal. But, the Supreme Court allowed this new argument. So, now, an element of a case will be part of a governmental entity’s immunity from suit, and most new arguments would be acceptable on the second or third appeal. That is the Supreme Court second error.

The first error is found in the substance of the opinion. The Texas Supreme Court has imposed a new, high burden for retaliation cases. The high court rightly states that sexual harassment must be severe or pervasive to constitute an actionable complaint. And, the court is right that offhand comments or incidents alone will not suffice. But, that reasoning addresses a different issue, whether certain actions rise to the level of sexual harassment. This issue is different. This case asks what constitutes “good faith” belief that a person is opposing discriminatory conduct. There is a gray area, such as here, where a potential victim seeks to stop harassment before it becomes severe or pervasive. Protection from reprisal was intended to protect persons who believe in good faith that some conduct is discriminatory. The Texas Supreme Court seems to have conflated two different issues.

The courts have long held that there need not be an actual underlying violation of law by the harasser. See, e.g. Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1138-39 (5th Cir. 1981) (employee is protected under the participation clause “regardless of the truth or falsity of the contents of the charge”); Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1004-05 (5th Cir. 1969) (fact that employee made false and malicious statements before EEOC is irrelevant to protection under participation clause); Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994) (Nothing in wording of participation clause even implies a requirement that the underlying claim be reasonable). There are many more cases all finding that the underlying complaint must be in “good faith,” but not necessarily an actual violation.

The Texas Supreme Court has now added a new requirement for participation in opposition to discrimination: the person must reasonably believe the claim is valid. That will stifle great many complaints. Requiring reasonableness is tantamount to requiring the underlying complaint constitute a valid complaint of discrimination.

As the Fifth Circuit said in 1969, “. . . a single poor, ignorant employee with a grievance, not a sling shot in his hand, faces a huge industrial employer in this modern David and Goliath confrontation . . ” Pettway, id, at 1005. Protection must be afforded to those who seek the benefit of Title VII to equalize, said the Fifth Circuit in 1969. Pettway, id. The Texas Supreme Court is undoing decades of precedent in this decision.

 

This is the ugly side of at-will employment. Under at-will employment, a worker can be fired for any reason, so long as the reason does not involve discrimination and a few other rare exceptions. Marissa Holcomb was fired from her job as manager at the Popeye’s in Channel View, a Houston suburb after the place was robbed. The robber took $400 from the cash register. Ms. Holcomb was told to pay back the $400 or be fired. The pregnant mother of three chose to be fired. She could not afford to pay $400, especially after risking her life for her employer. The robber pointed a pistol at her and others during the incident.

Ms. Holcomb was fired less than 36 hours after the robbery. A franchise spokeman said she was fired because she left too much money in the register. She had been warned about that previously. But, responded Ms. Holcomb, they had a very busy hour in which they took in $400. Popeye’s was running a $1.19 two chicken special. See CBS news report.

Popeye’s is out $400 and Ms. Holcomb is out of a job. As she explains, who is going to hire a five month pregnant employee? And, under the at-will doctrine, there is nothing she can do about it.

Just a few years ago, most Texans were anxious to help veterans. The Texas legislature passed an amendment to the Hazelwood Act which would allow free tuition at state schools for veterans. The veteran could pass that benefit to his/her children. The Texas act did not require service after the amendment was passed. While, the federal version did require service after the act went into effect. That difference harmed veterans like myself who deployed but retired or who left military service afterward. Under the federal GI Bill, I cannot pass my unused benefits to my children. But, under the state version, I could pass those benefits to my children.

But, now, the Texas legislature is considering rescinding that benefit. A state Senate committee approved a measure which would require six years of service after the act was passed. It would also reduce the number of credit hours from 150 to 60. See Texas Tribune report. Sen. Brian Birdwell said the measure would be too costly otherwise. When I and my fellow veterans deployed, we did not stop and say, “wait, its too costly to go to war.” We just went.

Texas has limited whistleblower protection. Texas Government Code Sec. 554 protects public employees who report violations of law to the appropriate law enforcement agency.  See statute. The Texas Whistleblower Act provides for a 90 days deadline in which to file suit. It also requires an employee to first file a grievance if the state or local agency provides for a grievance procedure. If the employee files a grievance, then the duration of the grievance will toll the statute of limitations (ie, toll the deadline).

The good faith report of the violation of law would need to be made to the appropriate law enforcement agency. Note that provision means simply reporting to a supervisor at work will not suffice.

There is no equivalent statute for private employees. There is no whistleblower type protection for private sector employees. But, as I wrote earlier,  a private employee would be protected if s/he were required to violate a criminal statute. See my prior post.

So, if you are a private employee, if you report your employer for violating some criminal law and get fired, then you have no protection.  If you are a state or local government employee and are fired because you reported your employer for violating some law, then you may have the right to file a lawsuit. See a qualified Texas lawyer to discuss any such lawsuit.