The fundamental principle of USERRA (Uniformed Services Employment and Reemployment Act) is that a person should not suffer because s/he participates in the National Guard or Reserve duty. I wrote previously about one Reservist, Cpt. Nicole Mitchell, who very likely lost her job as anchor for the Weather Channel due to her Reserve duty. See that post here. She filed suit in 2012 and I said then her evidence sounded strong. 

Well, that was before I knew she had signed an arbitration clause with her employer. Her case has been stuck in limbo since then waiting for arbitration issues to play out. See Chris McKinney’s blog about her case here. She did not realize, as most workers do not, that she had signed an arbitration clause. She has not been able to secure new employment and has been waiting for an arbitrator to hear her case. Such is the world of arbitration: workers have rights but they may never get a chance to exercise them. And, in the meantime, they may remain unemployed. 

Note Chris’ comments that compared to traditional courts of law, those workers who take their cases to arbitration win about half the time they win in court (which itself is very low anyway) and when they win, they obtain about half the remedies they would in traditional courts. 

Its a heck of a way to say "thanks for your service, Cpt. Mitchell."

Since my time in Iraq, I have noticed many instances of anti-Muslim discrimination. It was surprising to me back in 2006 and 2007, when I first returned how often we castigate all Muslims.  Rick Casey discusses a T.J. Fabby of Red Oak, near Dallas, who accuses his political opponent of accepting money from an "admitted" Muslim. Say what? Businessman Ali Sharaf has given to many Republicans. Mr. Fabby, however, sees Mr. Sharaf as the "enemy." Mr. Fabby says Rick Perry, for one, is an "enemy of the state, ours" because he accepted money from Ali Sharaf. Mr. Fabby is running for the Texas House of Representatives. See KLRN Rick Casey post. 

I disagree with Rick Perry on many issues. But, I always appreciate that he served in the U.S. Air Force. Looking at Mr. Fabby’s website, it appears that he has never served in the U.S. military. He has apparently never learned the value of serving with someone who might have a strange last name, but is rock solid when the moment counts. So, perhaps, it is not too surprising that Mr. Fabby lost his election. 

As I have mentioned on this blog, I do not understand this prevalent prejudice against Muslims. It continues to surprise me. See my prior post here. I served in Iraq with many, devout, wonderful Muslims. Some were fine, humble, very decent persons. One, my own Salma, was a pain-in-the-neck. But, none of them were terrorists. Indeed, they risked their lives and those of their families to work with U.S. forces and to improve their country. Salma, who worked for me, was kidnapped, tortured and killed, only because she worked with U.S. forces. Her brother visited her once at our base and was almost kidnapped only because he was suspected of working for U.S. forces. 

So, where do we get that all Muslims are bad? Rick Casey says its a leftover from the Crusades. I do not know. But, I know my comrades-in-arms. And, they were alright. In a combat situation, there is no higher praise. 

Many, if not all discrimination cases, require that the employee compare him/herself to other employees. It is simply the nature of employment lawsuits that a victim alleges s/he was treated differently than others. To make that allegation, the employee must seek documents and records concerning his/her fellow employees. So, it is no surprise that Coach Bev Kearney was successful in her efforts to obtain records concerning other coaches and employees at the University of Texas. See San Antonio Express News report. Those records will include those of Coach Major Applewhite. I previously wrote about Coach Kearney’s lawsuit here. 

UT opposed the motion. But, they surely knew they would lose. Yes, records from other employees might include sensitive information. But, both sides usually agree to a "protective order" which makes it clear that such records can only be used for purposes of the lawsuit. In perhaps all of my discrimination lawsuits, we ask for records of other employees who are accused of the same offense as my client. Often, the employer will agree to produce those records without the necessity of a court order, because they know most, if not all courts will order the production of such records. That UT might oppose a motion they would surely lose suggests this is 1) a high profile case, and 2) this is a very high profile case. 

I guess the only real surprise in Coach Kearney’s case is that the Express News seems a bit surprised UT was ordered to produce these records…..

Donald Sterling responded to the NBA’s attempt to force him to sell his team. Mr. Sterling insists the "illegal" recording made during a "lover’ quarrel" should not be used to oust him as owner. Mr. Sterling did not intend the recording to ever see the "light of day," said his lawyers. The lawyers’ statement, instead, attacked the NBA’s charge for lacking the "courage" to acknowledge the circumstances of Mr. Sterling’s "jealous rant." See CBS news report. 

Mr. Sterling’s lawyers miss the point. Mr. Sterling clearly holds racist views. It does not matter how those views were revealed. An employer of so many black athletes cannot be expected to act without some degree of racism. Three civil rights lawsuits against the owner confirm that simple reality.  

But, heck, no one expected the famously litigious Mr. Sterling to go quietly into the night. 

We lawyers do some crazy things. But, when i see escapades like the one in Tampa Bay in movies or on TV, my first reaction is "no way." Well, yes, way. Three lawyers in Tampa Bay are facing ethics charges by the Florida Bar Association because they colluded to get an opposing counsel arrested for DUI. The firm of Adams & Diaco sent an attractive young, paralegal to flirt with an opposing counsel in a major trial. 

In January, 2013, Phillip Campbell was in a defamation trial against lawyers from Adams & Diaco. Mr. Campbell was the lead trial lawyer for the plaintiff. The trial concerned radio shock jocks Todd "MJ" Schnitt and Bubba the Love Sponge Clem. See the Tampa Bay Times report to see that I am not making this up. 

After trial one day, the paralegal, who lied about her employment, sat next to Mr. Campbell at a bar. She flirted and drank with him. Mr. Campbell was later arrested while driving her in her car. At the time, Stephen Diaco was quoted expressing shame at the arrest. He said he was "ashamed" to be an attorney to see the opposing lawyer in his trial be arrested. 

Later, investigators learned that Adam Filthaut, of the Adams & Diaco firm, tipped off a close family friend at the Tampa Bat Police Department. That Police Sergeant has since been fired for his role in the scheme. The revelation came when numerous cell phone calls and texts between the paralegal, her supervisor at Adams & Diaco and the police sergeant were discovered during that night. 

 Mr. Filthaut, Mr. Diaco and Robert Adams all face ethics charges.The bar recently found probable cause to believe they violated the Florida ethical rules. 

And the original defamation trial? The plaintiff, Todd Schnitt, lost the trial and owes his lawyers $1 million in legal fees. He refused to pay and his lawyer firm sued "MJ" for its fees. See ABA Bar Journal report. 

And, perhaps, now I will look at those outrageous TV shows with a bit more credence……

Donald Sterling has apologized for making racist remarks. I previously wrote about his racist remarks here. He says his comments were "terrible" things to say. But, he adds in the CNN interview, he was "baited" into making them. He suggests he should be entitled to one mistake in his 35 years as owner. He said he did not know why "the girl had me say those things." See CBS news report. 

Ok, he did not actually say those things, after all. His half-Hispanc, half-black girlfriend "made" him say those things. . . .  This is a story with a lot of twists and turns. His girlfriend, V. Stiviano, is a minority herself. She grew up in San Antonio, Texas. Would a white man who dates a minority hold racist views? Well, the statements about avoiding blacks speak for themselves. Racism is rarely neat and tidy. Racism is rarely as clear and apparent as white hooded robes. 

I am glad Mr. Sterling apologized. But, he does not sound ready to accept full responsibility for his statements. And, this is not his first "mistake." He has been sued in two major lawsuits for housing discrimination. Housing discrimination lawsuits are quite rare. I am sure those two lawsuits were only filed because the evidence was overwhelming. His former coach, Elgin Baylor, sued him for discrimination. Mr. Sterling’s statements are simply his latest "mistake." 

Summary judgment (i.e., "quick" judgment) has become the bugaboo for employment lawsuits over the past 20 years. I have discussed how the over-use of summary judgment has been particularly difficult for employment cases. Well, that same analysis applies to all civil rights cases. In Tolan v. Jeffrey Wayne Cotton, No. 13-551 (2014), the U.S. Supreme Court essentially fussed at the Fifth Circuit for not following precedent regarding summary judgment. In Tolan, the plaintiff accused a Bellaire, Texas policeman of abusing his civil rights. Sgt Cotton shot Robert Tolan when the officer mistakenly thought Mr. Tolan was driving a stolen vehicle. A second officer entered the wrong license plate number (off by one digit) and the police wrongly assumed Mr. Tolan and his companion, both black, were driving a stolen SUV. Yet, the pair of alleged thieves pulled up to their own driveway in suburban Houston.

The two Bellaire police officers accosted the young Mr. Tolan and his companion ( cousin) in Mr. Tolan’s driveway, where he lived with his parents. The two boys came home late. The parents came out of the house and proclaimed the younger Tolan’s innocence. But, Sgt Cotton allegedly wrestled Mrs. Tolan against the garage door, at which point, Robert Tolan told him to get his "f—ing hands off his mom." Sgt. Tolan then shot Robert Tolan three times. 

Like all civil rights cases, the devil is in the details. Mrs. Tolan says she was shoved against the garage door. Sgt. Cotton says he "escorted" her to the garage door. Sgt Cotton says the porch where the elder Mr. Tolan stood was "dimly lit." Mr. Tolan disagreed and ponted out the two floodlights on the driveway. The second officer says the younger Robert Tolan was crouching, ready to jump when he told the officer to take his hands off his mother. Robert Tolan, however, says he was kneeling and "wasn’t going anywhere." Both officers says Robert Tolan shouted. The younger Tolan denies that he raised his voice. 

These are critical facts necessary to any understanding of what happened that night in a middle class neighborhood.  One cannot know to any degree whether Sgt Cotton felt legitimate fear or not unless one first determines who is telling the truth about the atmosphere that night. That is why summary judgment should not be granted in such a situation. The differences in facts are material to the case and the differences are stark. Yet, the Fifth Circuit did just that. The appellate court affirmed the finding of summary judgment in a decision written by Judge Barksdale. The appellate court essentially weighed the evidence and viewed them in the light most favorable to the movant. That approach violates fundamental summary judgment law. 

The Supreme Court overturned the Fifth Circuit result, saying there is too great a difference in the facts to justify summary judgment. In a per curiam decision (usually reserved only for apparent or obvious decisions), the court rightly told the Fifth Circuit it was abusing summary judgment law in reaching this result. 

Justice Scalia wrote a concurrence saying that while he did not think this case justified Supreme Court attention, yes, the Fifth Circuit did not draw available inferences in favor of the non-movant, as it should have. Justice Scalia pointed out that most civil appeals address whether the evidence for or against summary judgment was sufficient. I cannot disagree with Justice Scalia, but surely the widespread abuse of summary judgment precedent must be addressed sometime. See U.S. Supreme decision here.

Far too many cases have been decided by the Fifth Circuit (and other courts) weighing evidence and giving no credence to plaintiff oriented witnesses, including the plaintiff. Yes, the plaintiff him/herself is a witness just as much as anyone else. I have read too many case summaries where it was apparent the court failed to credit the non-movant’s version of events. 

As the Supreme Court pointed out, that is why we have jury trials – to address differences in key factual details. 

One of the wonderful things about employment law is that employers have several ways to avoid liability for "stupid" things management might do. One big tool in the employer’s arsenal is the prompt remedial action. If an employee complains about harassment, the employer can investigate and then take "prompt remedial" action. If the employer does so, then it will avoid liability entirely. In Williams-Boldware v. Denton County, 741 F.3d 635 (5th Cir. 2014), that is what the employer did. Denton County took prompt action. The employee might have preferred other steps, but the employer did take some action right after the plaintiff complained. 

The plaintiff, an African-American female, was subjected to racist comments by a co-worker. A accused felon had made several racist statements toward the white policemen who arrested her. The incident made a male Assistant District Attorney understand why "people hung people from trees" and made him want to go home and put on his "white pointy hat." Ms. Williams-Boldware, also an Assistant District Attorney, complained to County officials. Within 24 hours of her complaint, the higher officials met with the plaintiff and the offending employee. The offending attorney was made to apologize to the African-American attorney. They also required the offending attorney to take diversity training. The offending attorney received a verbal reprimand.

The plaintiff did not experience any additional harassment. The male attorney did make one joke later about the training he was forced to take.

Even so, the jury found in favor of the plaintiff. The jury awarded Ms. Williams-Boldware $170,000 for past emotional suffering, another $170,000 for physical pain and suffering, and $170,000 for future emotional suffering. 

The Fifth Circuit overturned the jury decision. It found that the County’s response to her complaint could not have been more prompt. The County allowed Ms. Willimas-Boldware to fully explain what she experienced. It consulted with her regarding what should be done. The County took the plaintiff’s concerns seriously and its remedial efforts did effectively end the harassment. 

See decision here. www.ca5.uscourts.gov/opinions/pub/13/13-40044-CV0.pdf  

So, now the NBA Commissioner, Adam Silver, has announced that Don Sterling will be forced to sell his team, the San Diego Clippers. The NBA relies on entertainment dollars. It cannot afford a team with such a despised owner. But, can the NBA force him to sell his team? What happened to free enterprise?

The NBA’s constitution provides that by a vote of three-fourths of the owners, the organization can indeed terminate an owner’s interest. But, the constitution is also very specific about what transgressions can trigger that provision. And, Mr. Sterling’s racist comments do not fit that provision. See ABA Bar Journal report. Mr. Silver indicated he had the three-fourths support he needed. 

In response to such a lawsuit, the famously litigious Don Sterling could argue that the NBA has colluded against him in violation of anti-trust laws. Generally, says one expert, businesses may not cooperate to force a competitor out of business. But, the other owners could overcome that anti-trust protection if it could show that association with Mr. Stirling was causing harm to their businesses.

Gary Roberts, a well known sports attorney at Indiana University School of Law, says categorically that if Mr. Stirling challenges the ban, then he will lose. He cannot operate his business if no one plays for him. He cannot operate a bankrupt business. What Mr. Silver meant, said Mr.Roberts, is that the NBA owners will make his life so miserable and unprofitable that he will have no choice but to sell. Lawsuits may not help the litigious Don Sterling, after all. 

Shoppers at the Wal-Mart in Toronto can now purchase a will for $99. Notarized documents cost $25, a second notarized document would cost $19. The two lawyer partners say their busiest times are between 5 and 8 pm on weekdays and on Saturdays and Sundays. The lawyers admit up front that they only accept simple wills. Churning out high volume prevents them from devoting a lot of attention to unique estate situations. That also means they will not have to deal with suspicious situations, such as a 95 year old coming in to leave everything to a stranger. See Toronto Star report. 

I am always suspicious of the mass production of any legal product. But, if these "law offices" can avoid the complicated situations, I do see how they might be able to offer a decent product to folks who might not otherwise have this opportunity. But, still, a will at Wal-Mart? Perhaps, soon, we will have teeth cleanings at McDonald’s and vision checks at Starbuck’s….