The jury in Iraq veteran Juan Alonzo-Miranda’s case deliberated all day Friday and still could not reach a verdict. At one point, they sent the judge a note saying they could not reach a unanimous agreement. Judge Lamberth, however, told them to continue deliberating. The two opposing lawyers agreed they would accept a 7-1 verdict. There are eight members on the jury. See San Antonio Express-News report (account required).

It is unusual for a jury to deliberate this long in a civil case. There must be some strong views among the members of this jury.

The jury will decide whether Juan Alonzo-Miranda needed a dog at work to deal with his PTSD. The testimony wrapped up yesterday in the trial regarding his request for an accommodation. Schlumberger hired a psychiatrist to testify. Dr. Seth Silverman never examined Mr. Alonzo-Miranda. All he knows is what he learned by reading documents. But, he decided that Mr. Alonzo-Miranda is narcissistic and has histrionic traits. He described the mechanic as having a “Cluster B” personality disorder. The doctor also said Mr. Alonzo-Miranda is someone who likes “to beat the system” and believes he is smarter and better than others. Dr. Silverman said a dog would not have done the veteran any good at work. That does seem like a sharp observation for a doctor who has never met this patient.

The parties made closing arguments yesterday. The lawyer for Schlumberger, William Davis, said the employer provided various accommodations for the veteran, such as allowing him to work only on the day shift. He said there was no dispute that the dog made Mr. Alonzo-Miranda feel better. But, there was no clear recommendation that he must have this dog at work. See San Antonio Express-News report.

The dog is with the plaintiff everyday at trial. As most service dogs do, “Goldie” is probably quiet and remains in place for hours at a time. I would expect Goldie’s behavior in trial to be quite apparent to the jury. If Goldie was not necessary, why would the plaintiff bring it to the courthouse everyday?

The employer spent $30,000 on the psychiatrist. They could have spent one percent of that simply to arrive at an effective accommodation for the young veteran.

On the third day of Juan Alonzo-Miranda’s trial, he was cross-examined by the defense lawyer. The lawyer elicited testimony from the mechanic that when he was evacuated by ambulance to the VA hospital in May, 2012, the emergency room examination revealed problems with his wife and that he was contemplating suicide. But, the report did not mention any problems with work. Didn’t he mention problems at work, asked the lawyer? Mr. Alonzo-Miranda said the report might have been less than complete.

The defense attorney also elicited testimony that the young worker had a concealed handgun permit. He obtained the permit about a year after he had been diagnosed with PTSD. I am not sure about the point of this line of questioning, unless it is simply to show that despite his diagnosis, he was able to function and expose himself to a dangerous weapon.

At the close of the plaintiff’s case, the defense asked for a directed verdict. If granted, a directed verdict would indicate the judge did not believe there was sufficient evidence for a jury to find in favor of the plaintiff. It is a routine motion, even if the evidence for the plaintiff is strong. Judge Lamberth denied the motion.

So, with the motion denied, it was time for the defense to put on its case. The Schlumberger Human Resources representative testified. She said she did all she could to address the request for a service dog. She was not familiar with that sort of request. She was looking for some link between the service dog and Mr. Alonzo-Miranda’s ability to work. She wanted to see some reason why the dog would help him work.

If Mr. Alonzo-Miranda was blind and was asking to use a cane at work, she would not have asked that question. The need for a cane would be apparent. Emotional or mental illnesses are different. It is harder to explain the nature of the illness and the utility of the requested accommodation. But, the HR representative should have asked. She could have called the doctor or the cousnelor. Or, she simply could have asked Mr. Alonzo-Miranda.

Much will depend on how the jury sees this. Will they see a duty on the part of the HR representative to seek more information? Will the jury themselves doubt the need for a service dog at work? I had a trial just a year ago regarding a mental illness. I was struck then that the jury just did not appreciate the debilitating nature of a mental illness.

Trial will continue for a fourth day. See San Antonio Express-News report.

Every victim of discrimination experiences what Juan Alonzo-Miranda experienced. After he requested the use of a service dog at work, his employer treated him like the “enemy.” Instead of helping him become a better worker, the employer treated him like the enemy. Crying at times, he described his ordeal in trying to satisfy the employer’s request. Schlumberger Technology wanted a form signed by a treating physician. But, the service dog was recommended by a counselor, not a physician. His psychiatrist would not sign the form because he does not prescribe service dogs. The Psychologist would not sign the form because psychologists cannot prescribe medication. Finally, the counselor at the San Antonio Vet Center-Readjustment Counseling Service signed the form. But, the Clinical Social Worker noted on the form that he was not a physician. The Center is part of the Veterans Administration. See the Center’s website here.

The employer pointed out that the plaintiff worked for Schlumberger for 17 months with no incidents of PTSD. But, as the veteran explained, the thing about PTSD is you can carry it around for years with no incident. But, then one flashback flares up and you have incidents for the rest of your life.

Mr. Alonzo-Miranda had already filled out a form allowing Schlumberger access to all of his medical records. The employer could have called his medical care providers and asked for explanations. In May, 2012, he suffered a severe enough episode of PTSD that he had to be evacuated by an ambulance. But, still, the company questioned the sincerity of his accommodation request. And, in the meantime, the flashbacks continue. The stress of dealing with everyday life persists. And, now, added to the PTSD stress is the stress that you might lose your job. See San Antonio Express-News report.

They were exotic dancers, but they were also workers, just like the rest of us. Alexis Alex and Nicolette Prieto formerly danced at Tiffany’s Cabaret, a gentleman’s club. They claimed they were not paid minimum wage. The employer’s records did not record their time. But, the club’s strongest defense was that the money paid them by patrons during table dances was a “service charge.” The club sought to count that as part of their wages. But, the dancers believed that money was tips. During the trial, the judge agreed with the dancers, a critical legal victory for the two ladies. The club’s second defense was that the two dancers were paid a few hundred dollars every night by patrons. But, countered the two workers, that money was paid directly by the customers, not by the club. Basic Fair Labor Standards Act law requires the employer to pay minimum wage, not the customers.

After a three day trial, the jury agreed with the two women and awarded $125,000 in lost wages. The judge then awarded liquidated damages of another $125,000. In awarding liquidated damages, the judge explained that the club’s actions were intentional. The club owners relied on 20 year advice from its accountants regarding the money paid during the table dances. Later, the court will also award attorney’s fees and court costs. I am sure the club owners now wish they had been more serious about trying to settle this case. A class action against the same club is still pending. See San Antonio Express News report here (account required).

Apparently at the conclusion of the trial, the lawyer for the club said the club would appeal the verdict. Replied Judge Lamberth, visiting from Washington, D.C., “I’ll offer you at least a beer” if the attorney is able to win an appeal.

There are more and more veteran needing the use of a service dog. A trained service dog will perform several tasks of a veteran suffering from PTSD:

  • Watch your back. This is critical to a veteran who constantly looks over his/her shoulder for perceived danger.
  • Place himself between the veteran and others who come too close. This is also essential for veterans with PTSD who cannot tolerate crowds or persons standing too close
  • Provide simple comfort. Dogs can “read” a person’s emotions and provide critical warmth when the veteran is suffering an anxiety attack

The federal regulations regarding the use service animals require that service animals be trained to perform some task it would not normally do. These are some of those tasks. To a veteran with PTSD, these are no small tasks.

So, it is a little surprising that one major employer, Schlumberger Technology, will disregard a request to bring a service animal to work for some six months. But, in the case of Juan Alonzo-Miranda, that is what his employer did when the Iraq veteran asked to bring his service dog to work. Schlumberger finally approved his request in November, 2012. The veteran of three tours had to wait six months until he appealed the request to the CEO. He was working at the Von Ormy facility repairing pieces of large oil-field equipment. The employer said it was asking for medical documentation from the physician during that six months. It wanted to hear from the physician who prescribed the use of the service animal. But, there was no doctor who prescribed it. Mr. Alonzo-Miranda’s physician eventually completed a form in which he said the veteran could not function without the dog. But, no one actually prescribed the dog, so no physician could explain why it was prescribed. Some service animals are not prescribed by a physician. Often, the veteran requests a dog on his or her own, or a veterans counseling group suggest the use of a dog.

Even so, the use of a dog can still be mandated under the ADA. The Americans with Disabilities Act does not require a physician suggested accommodation. That has become a customary practice, but the statute does not require a prescription for any accommodation. Schlumberger only allowed the dog after Mr. Alonzo-Miranda personally appealed to the CEO. Most plaintiffs support their request or accommodation with medical documentation. But, that medical documentation is more to explain the nature of the accommodation. If the employer understands the nature of the medical condition, then medical documentation is actually not required.

Mr. Alonzo-Miranda sued the company. About a year later, he was fired for reasons that sound suspicious. But, the plaintiff’s claim for retaliation was dismissed from his lawsuit, presumably because he filed the EEOC charge too late. See San Antonio Express-News report (account required).

The trial has begun in federal court here in San Antonio, Texas. The first day’s testimony included a company Human Resources representative, Jean-Remy Bellanger. Mr. Bellanger said the company required Mr. Alonzo-Miranda to bring the dog through a side door, not the front door. The HR representative explained they did not want visiting company officials or investors to see the dog “wandering around.”

That observation suggests the company did not make a genuine attempt to discuss the matter with the employee. Most, perhaps all, service dogs stay very close to the veteran. That is the whole point of any service animal, to stay close and provide necessary protections. If the HR representative was not aware that a service animal is always close to the veteran, that suggests to me that the company did not engage in a discussion to understand the nature of a service animal. An employer is required to engage in an “interactive process” to discuss the accommodation. If the company did not understand something as basic as where the animal would be, that suggests the company did not engage in that interactive process. So, it is little wonder that mis-communication might result.

The reporter noted that the dog stayed by the plaintiff’s feet during the first day of trial. Yes, indeed, that is what service animals do. See a second San Antonio Express News report.

Under the Family Medical Leave Act, a mother or father can take 12 weeks of unpaid leave to care for a sick child. But, the FMLA does not apply to employers with less than 50 workers and it does not apply to part-time workers. The FMLA has limits. It does not apply to many workers. Actual paid parental leave is even more rare. Only some 12% of American employees work for a company that offers paid parental leave.

Unfortunately, when compared to other countries, the USA is way behind. Huffington Post has produced a handy chart that shows the disparity. See the Huffington Post here. In fact, just looking at maternity leave, the USA rates as the worst in the world, tied with Lesotho and Swaziland. Wow.

There is a lot of fuss kicking up over the Sigma Alpha Epsilon fraternity video. The video depicts fraternity members chanting anti-black lyrics. The video is gross and repulsive. See CBS news report. The President of the university shut down the fraternity and gave them just a couple of days to move out. The fraternity is being shamed in a very public way. Certainly, what they did and how they did it was a very shameful thing. But, really, don’t we all have some version of prejudice inside us? The school administrators were very quick to point the finger and essentially move the instigators away from the campus. But, could they not require the fraternity to make it up? Would those very young men agree to become big brothers to disadvantaged young, African-American boys?

Bias and prejudice can be addressed. History is full of times when bitter antagonists became cordial, if not friends, after simple exposure to each other. The University of Oklahoma could have turned a negative into a positive. Prejudice is not simply guys in white sheets and conical hats. It is more common than we realize. Some ten years ago, I was coming back from an Army Reserve exercise near Memphis. My Army buddies, about half of whom were African-American, and I were all on the same plane heading back to Texas. Dressed in civilian clothes, it was not apparent who we were, apart from short haircuts. I was sitting next to a woman who lived in Dallas, but who grew up in Memphis.

The lady told me she left Memphis because it got “too dark.” … I had to think about that. It took me awhile to catch her meaning. When I realized she was referring to black Americans, I felt pretty offended. My Army buddies were on that very plane. But, prejudice is more common than we might like to think. OU took some good steps. But, they could have turned an ugly incident into a positive incident even for some very young, uneducated white men.

Texas requires lobbyists to register. But, what happens when a political activist lobbies members of the state legislature? Does that political activist now have to register as a lobbyist? Michael Quinn Sullivan, a conservative political activist, lobbied members of the state legislature in 2010-2011, but did not register. The Texas Ethics Commission fined Mr. Sullivan $10,000 and found him in violation of the registration requirement. Mr. Sullivan appealed the ruling in a Denton district court, perhaps because he expected the judge to be friendly. Well, Judge Steven Burgess was friendly. In fact, he followed Mr. Sullivan’s twitter account. Michael Q. Sullivan was one of his 34 twitter follows.

Judge Burgess verbally found in favor of Mr. Sullivan. He verbally granted Mr. Sullivan’s motion to dismiss the complaint. But, the judge had not yet signed the appropriate order, when a recusal motion was filed. A Ft. Worth Star-Telegram journalist first revealed the twitter relationship, which cast the Judge’s objectivity into question. Oops. Yes, following someone in Twitter suggests the appearance of impropriety. So, now the oral ruling will not be reduced writing. The Ethics Commission gets a second chance to beat back Mr. Sullivan’s challenge. See San Antonio Express-News report (account required).

One of the things about litigation is that strategy often takes precedence over substance. In the Redus family lawsuit against University of the Incarnate Word, the university asked to dismiss the lawsuit. UIW claimed to be an “arm of the government” such that they would be immune to suits for personal injury. Cough, cough. Yes, that is surely a frivolous defense. How could a private university possibly be considered an arm of any government? In reality, that sort of finding would be about 99.9% impossible. UIW claims the police force is an arm of the government because its officers have to be licensed. But, if that were true, then every barber would be an NSA agent. Its a silly argument. But, it is just cognizable enough to be filed and argued. The state district judge rejected that argument. But, now UIW can appeal and therefore, postpone the lawsuit. Like I said, strategy often is more important than substance in any lawsuit. If the defendant can prolong the lawsuit, then perhaps, a key witness will move away, evidence might be lost, or the family might give up. Delay favors the defendant.

See San Antonio Express-News report here.