I love the free enterprise system. But, it only works well if we are smart consumers. There are many sellers out there who will try to sell us things we do not need. My girlfriend was looking at a new car, recently. She asked for a breakdown of the total cost. She was quite surprised to see an extended warranty already included in the price. She had not asked for the extended warranty, and no one had asked her about the warranty. They just kind of slipped it in when she wasn’t looking.

The litigation business is like that, sometimes. I was reminded of that recently when I attended a mixer at a local business. When I told a smart business woman that I represent mostly employees in employment lawsuits, she made the cross symbol with her fingers like she was warding off evil spirits. She explained later that I was the reason small businesses shy away from actual employees. Some small business owners prefer to contract out their support needs. She provided the example of employee manuals that “have to” cover all situations and permutations. . . .  Sigh.

When I got a chance to explain, I told her that no, these employee manuals only matter if someone is promoted or selected for hire in suspicious circumstances. They might also apply when a manager has not documented objective performance problems. It takes two things to create grounds for a discrimination lawsuit: 1) a “fishy” looking personnel action, and yes, 2) some evidence of discrimination. Would an employee manual ever lead to evidence showing discrimination? Maybe, but that would be extremely rare. What is really going on here, I am sure, is that some defense lawyers who specialize in employment law like to beat the drum for updating those employee manuals and prevent lawsuits. I recall one well known local defense lawyer posting on his blog a post titled, “The EEOC is on the Hunt, Are you the Prey?” See my prior post here. I found the title very funny. I, like most people familiar with he EEOC, do not think of them as a predator. The EEOC means well, but it rarely files suit. It rarely even conducts an actual investigation. Few employers are concerned about an EEOC investigation, because they know how superficial their investigations are and how rarely they conduct an actual investigation. But, by suggesting a sense of urgency, defense lawyers increase the number of calls for their services. Defense lawyers have to beat the drums a bit to acquire business. They have incentive to “puff” a little. Most defense lawyers, in my experience, are wonderful lawyers and excellent counselors at law. But, a very few are not too different from the salesman who tried to slip in that extended warranty on my girlfriend.

I tried to explain all this to the smart business woman I had just met. But, there are surely many, many more who fret much more than they should over the contents of an employee manual.

In the legal business, lawsuits are governed by deadlines referred to as “statutes of limitation.”  A lawsuit must be filed within the applicable statute of limitation.  A suit based on personal injury must be filed within two years of the act complained of.  If the last day of the two year period falls on a weekend or a holiday, then the statute of limitations period is extended until the next business day.  A lawsuit based on the state statute which prohibits discrimination must be filed within two years.  This statute is known as the Texas Commission on Human Rights Act.

A suit based on defamation, libel or slander must be filed within one year of the act complained about.  A suit based on breach of an oral contract must be filed within two years of the alleged breach.  Suit on a written contract must be filed within four years of the alleged breach.

Of course, there are many exceptions to these statutes of limitation.  If you have questions, you should speak with a qualified lawyer.

I previously wrote about the attack at Ft. Hood by Major Hassan here and here. Now, the victims of that attack have received some recogntion. The military service members received Purple Hearts and the civilian victims received the civilian Defense of Freedom Medal. The widow of CW2 (Ret) Michael Cahill received the Defense of Freedom medal. The same Michael Cahill who raised a chair over his head to strike the Major, before Hassan poured several rounds into the retired warrant officer. The soldiers and retired soldiers were unarmed, but that did not keep them from attacking their attacker. See San Antonio Express News report.

These “victims” were not true victims. Until the very end, they were attacking a murderer. As service members are trained to do, they were defending the defenseless.

I have been to the Tejeda VA Clinic here in San Antonio many times and have always treated well and with respect. But, not every veteran is treated well. One veteran was fussed at in a condescending tone by the nurse when he sought a second prescription, because the first prescription had been mis-delivered. See KENS 5 news report. The nurse seemed to be insisting the prescription had indeed been delivered to him. This video made the rounds on social media several days before someone sent it to KENS.

In a high profile lawsuit, a young female lawyer sued her former employer, Faruqi and Faruqi, a large national law firm, for sex harassment. Alexandra Marchuk obviously hoped for more, but the jury only awarded her $140,000. The award included $90,000 in compensatory damages (i.e, emotional suffering), and $50,000 in punitive damages. See Above the Law post. As one juror explains, some women did not accept Ms. Marchuk’s story. Some jurors did not believe it was as bad as she claimed. A key issue in a sexual harassment case is whether the sexual attention was unwelcome. The jurors apparently felt it was not unwelcome, or if the advances were unwelcome, they were not “severe,” as the law requires. (Note that some lawyers disagree that the caselaw requires “severe and pervasive.” Some of us believe the law requires the harassment to be severe or pervasive). Regarding a sexual encounter, the jurors essentially did not accept her story or his story completely about the incident.

It turns out that Ms. Marchuk turned down an offer of judgment of $425,001. See Above the Law post. An offer of judgment is essentially a bet by the defendant. The defendant offers $425,001. If the plaintiff turns it down, then the plaintiff must secure an award greater than $425,001 or she become liable for the defendant’s attorney’s fees and costs of court occurring after the date of the offer. Plus, as in this case, she walked away from a certain amount, $425,001 in return for $140,000 from the jury.  Oops.

Of course, Ms. Marchuk’s lawyers will submit a large request for attorney’s fees. But, that is not likely to benefit her. This is why sexual harassment cases are tough.

 

So, the other shoe drops. Bowe Bergdahl may not have been appropriate for Army service, at all. It turns out that he had been in the Coast Guard before entering the Army. The Coast Guard kicked him out after 90 days. He was removed administratively. As most veterans know, that typically means he had some problem that kept him from being a good member of the service. Every arm of the military has an “early out” option for those members who may have appropriate motivation, but just cannot get the job done. A discharge for psychological reasons would render him generally unfit for the Army.

He left the Coast Guard after only 26 days of basic training. That is about as “early” as it gets when someone leaves the service early. As such, he would have needed a waiver to enter the Army. He joined the Army in 2008, when recruiting was not going well for the active Army. The Army was not meeting its recruiting goals at all in 2008. At the time, it was questionable whether the Army could rely on an all-volunteer Army for wars like those in Iraq and Afghanistan. The Army would not comment on whether he needed a waiver, but I am sure he did. See San Antonio Express-News report.

There is no excuse for leaving his post in a combat zone. But, it was also close to suicidal to walk out the gate with no weapon or helmet in Afghanistan. Sgt. Bergdahl was simply not mentally stable. As we would say in the Army, Sgt. Bergdahl appears to have been set up to fail.

The Fifth Circuit has apparently decided that an employer will get a free pass when a supervisor makes one and only one racist comment. The supervisor was a co-worker of Courtney Satterwhite when he made the comment. Harry Singh, according to Mr. Satterwhite, uttered “Heil Hitler” during a conversation, at which a Jewish worker was also present. Mr. Singh claims he merely said “we are not in Hitler court.” Regardless of what was said, Mr. Satterwhite reported what he heard to City of Houston Human Resources. Mr.Singh apologized to the Jewish co-worker. A higher level manager verbally reprimanded Mr. Singh. Mr. Singh approached the Jewish co-worker to ask him why he had reported the statement. The co-worker said he did not report the comment. Mr. Satterwhite reported the statement to HR, said the co-worker.

A few months later, Harry Singh is promoted and now becomes Mr. Satterwhite’s boss. About that time, the Jewish Anti-Defamation League sent two letters to the Office of Inspector General for the City complaining about the “Heil Hitler” comment. The OIG investigated and also found Harry Singh at fault. Over the next few months, Mr. Singh disciplined Mr. Satterwhite on several occasions. In an email, Courtney Satterwhite accused Mr. Singh of singling him out for reprisal because he reported the Hitler comment. A short time later, Mr.Singh sought the demotion of Mr. Satterwhite. At a hearing within the City of Houston, Mr. Satterwhite said this was reprisal because he complained about Mr. Singh’s statement. Nevertheless, Mr. Satterwhite was demoted two grades. Mr. Satterwhite then filed a complaint with the EEOC.

At the trial level, the district court granted summary judgment for the employer. The Fifth Circuit affirmed. The higher court found that the issue was whether the statement, “Heil Hitler,” created a hostile work environment. The court correctly noted that whether a hostile work environment is created depends on the nature of the harassment, including its severity. But, this is not a hostile work environment case. Mr. Satterwhite did not report the statement because he believed Mr. Singh was harassing him. He reported the statement because he thought it was harassing, or potentially harassing toward the Jewish co-worker. This is a straight retaliation case, not a hostile work environment case. The court cites a 2007 case, Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 349 (5th Cir. 2007) for the holding that a remark by a supervisor could not “reasonably” have been perceived as a racist comment. The phrase “ghetto children” was an isolated comment, said the court in Turner. And in Turner, there were other observations by the plaintiff suggesting that race was a motive on the part of her supervisor. The Fifth Circuit was wrong in Turner. The jury should have construed that one remark, not the court.

The higher court is also wrong in Satterwhite. The jury should construe the remark and its context, not the court. The Satterwhite opinion adds that one “isolated” discriminatory comment will not create a hostile work environment. The court found that a person could not “reasonably” believe that one statement will create a hostile work environment.

Well, that depends, doesn’t it? It depends on the context of the one statement. And, who determines the value of context? The jury should. The purpose of jury is to establish community values and context. The Fifth Circuit is wrong to apply its version of “reasonable” and disregard the value of a jury. See decision in Satterwhite v. City of Houston here.

 

The U.S. Supreme Court has issued its decision in Young v. UPS. Young concerned a female driver who became pregnant and was then refused an accommodation involving lifting restrictions. She could not lift over a certain weight limit. The plaintiff argued that she was treated differently than non-pregnant drivers with disabilities who could receive an accommodation involving weight limits. The Supreme Court surprised both parties by adopting a middle-of-the-road approach. The court overruled the Fourth Court of Appeals’ affirmance of summary judgment. That alone is rare enough.

The Supreme Court pointed out that a worker can always show her case through circumstantial evidence. It went further and ruled that pregnant worker can show that she was treated differently than other workers who were similarly unable to work. That is, the court allows comparison to workers injured off the job, but who suffer limitations similar to that of pregnant workers. The decision, therefore, overturns cases which find a distinction between off the job injuries and those incurred on the job. In that sense, the decision has been criticized as conflating disparate treatment type cases (i.e., treated differently on a personal level) and disparate impact type cases (treated badly due to some rule that impacts a broad group of workers). Since, the court specifically adds that to show pretext, an employee can show disparate impact by some employment policy. For example, said the court, a worker could show that a large percentage of non-pregnant workers were accommodated while a large percentage of pregnant workers were not accommodated.

The decision does clears up one area of confusion in finding that yes, pregnant workers are entitled to some sort of accommodation under the right circumstances. See Supreme Court decision here.

SGT Bowe Bergdahl has been charged with desertion with intent to shirk important or hazardous duty. The charges will go before an Art. 32 hearing, which is equivalent to a grand jury. He may not spend any time in prison, since he served five years as prisoner of the Taliban. Many members of any court-martial board will find that to be punishment enough. See CBS news report. I previously wrote about Bowe Bergdahl here.

Sgt. Begddahl simply walked away from his FOB. He had done that before when he was training here in the US. Sitting from afar, I have to wonder if his mental faculties are all there. When I was in Iraq, I heard about one solider who simply walked out the front gate, with no weapon or helmet. He simply walked out like he was back home. Serving in a combat zone imposes considerable stress. Those of us who are not completely stable anyway will do crazy things. I do not know, sitting miles way from any real knowledge about the case, whether Sgt. Bergdahl knew what he was doing when he walked away from his FOB. But, leaving the FOB with no weapon, no helmet and no body armor was not a rational act.

The jury in Alonzo-Miranda v. Schlumberger Technology has returned a verdict. The jury found in favor of the veteran and awarded him $29,000 in total damages. That amount includes $5,386.50 in lost overtime wages and $23,205 in compensatory damages (emotional suffering type damages). The jury declined to award punitive damages. The jury deliberated for about two hours on Thursday, all day on Friday, and much of the day on Monday.

As the lawyer for the plaintiff said,” Today is a blue-ribbon day for America and the veterans who have protected us. San Antonio can be proud to be the place that lit the way for our veterans who suffer PTSD and who served us so well in war, and now want to serve us in peace.” From this Iraq veteran, “Dang right!”

See San Antonio Express News report (account required).

This was a very difficult case for the plaintiff. There is no caselaw or regulation that prescribes how long an employer can take in resolving a request for an accommodation. Schlumberger took over six months to resolve Mr. Alonzo-Moranda’s request. And, even then, it was his email direct to the CEO that resulted in a resolution. And, in the meantime, persons with disabilities can suffer significantly while they wait for an employer to reach a decision. Judges and juries are generally sympathetic to employers, since request for accommodation can be complicated. But, this time, the jury was not sympathetic with the long wait.

The amount awarded is funny. I can see the $5,386.50. That was probably based on actual calculation of the plaintiff’s lost pay. But, the rest, I think, is a response to the fact that Schlumberger hired a psychiatrist for $30,000.

This is a very significant victory for veterans. So many have experienced PTSD in the two recent wars. There are more and more service dogs out there. Goldie is far from the only service dog assisting Iraq and Afghanistan veterans. And, I can speak from personal knowledge. Those dogs perform very well.

Next will come the application for attorney’s fees. The plaintiff’s lawyer, John Griffin, is nationally known and respected. He will seek a significant amount per hour. And, since these accommodation cases are very complicated, I am sure he invested a great dal of time on this case. 200 hours of attorney time is not unusual. All this when the employer could have, I am sure, settled the matter for much less than $30,000 long ago.