Words have meaning.  If a person uses a racial slur and an otherwise inexplicable adverse personnel action occurs, then we may have pretty good circumstantial evidence of racial discrimintion.  So, what is a racial slur?  One candidate for the Texas Senate seat, Chris Mapp, said "wetbacks" should be shot.  Mr. Mapp hails from Port O’Connor, deep in South Texas.  He insists that word is a "normal" term in South Texas.  See San Antonio Express News report.  He used the term when he met with the editorial board of the Dallas Morning News.  He later defended his use of the term when he met with the San Antonio Express News editorial board.  He said the term is as normal as "breathing air" in South Texas. 

I have spent much of my life in South Texas and can say that sometimes, "wetback" is normal.  Ii is a phrase often used by persons with little or no respect for illegal immigrants.  I once served as commander of a National Guard company in Robstown, Texas for three years.  Co. D, 2/141 was perhaps 98% Hispanic.  I am sure I never heard the "wetback" term during my tenure.  So, sure, his use of the term in certain circumstances would be good evidence of racial discrimination.  If there was an otherwise unexplained personnel action toward a Hispanic employee, Mr. Mapp’s use of the term "wetback" would be key evidence.  A jury makes the ultimate decision regarding what is or is not a racial slur.  But, I would bet my money that Mr. Mapp would lose in front of most South Texas juries. 

Even big name clients and well known lawyers have problems with their clients.  Sen. Rand Paul of Kentucky, filed suit against the National Security Agency regarding its spying on Americans’ phone records.  Buit, he may not have paid his lawyer.  According to an ABA Bar Journal report, Bruce Fein wrote the Complaint, the legal document that starts the lawsuit.  But, the Complaint was signed by Ken Cuccinelli, former Virginia Attorney General.  Bruce Fein is a nationally known lawyer who specializes in individual rights.  I just heard him speak on National Public Radio last week about gay marriages.  He is also representing Ed Snowden’s father pro bono.  

Bruce Fein’s former wife and spokesperson is Mattie Fein.  She has expressed concern that Mr. Cuccinelli does not acknowledge that the Complaint was drafted by Mr. Fein.  She says Sen. Paul still owes Mr. Fein for his work on the case.  See ABA Bar Journal report. 

It is indeed unusual for the lawyer who drafted the Complaint to not sign the Complaint.  His absence from the Complaint suggests he quit or was fired from the case very early in the lawsuit.   Perhaps even U.S. senators have trouble paying their bills.  And, perhaps even nationally prominent lawyers do not ask for large enough retainers sometimes.  Well, many of us make that mistake on occasion…..

The report regarding the harassment of Jonathan Martin has been issued.  It finds that he was bullied.  That is not a surprise.  I previously wrote about the harassment of the NFL player  here.  The NFL investigator found that guard John Perry and center Mike Pouncey followed Richie Incognito’s lead in harassing Mr. Martin.  Mr. Martin never did return to the Dolphins after he left the team last October.  The three linemen threatened to rape Mr. Martin’s sister, called him a long list of names, and bullied him for not being "black enough."  Mr. Martin, a Stanford graduate, was more of a quiet person when compared to the outgoing Richie Incognito.  Mr. Martin is biracial.  Mr. Incognito is white.  Mr. Pouncey and Mr. Perry are black. 

Mr. Incognito was suspended last November, but the other two linemen started throughout the season.  The report mentioned another player and a trainer who came under attack from the three linemen.  The report described Mr. Martin’s attempt to deal with the bullying, including emotional text exchanges with his parents and a crying episode in the bathroom after one particualrly difficult bout of harassment.  

Mr. Martin was taunted or ridiculed almost daily.  After he left the team in October, Mr. Incognito "boasted" about "breaking Jmart" in a notebook used by the linemen.    The assistant trainer, born in Japan, was harassed on the basis of his national origin.  See Sporting News report. 

This may be a more high profile example of harassment, but unfortunately, it is not particularly rare.  Bullying takes many forms and occurs in blue collar and white collar work places.  These players were up front about using race as a basis for the harassment on occasion.  Some co-workers are not that obvious.  But, in the end, don’t all instances of bullying start with some perception that the victim is different in some way?  

The report states that there is no evidence that the head coach or the General Manger were aware of the harassment.  But, I have heard several commentators suggest that the coaches had to know.  In most workplaces, doesn’t management always have some awareness of bullying and racial harassment? 

P.S.: To his credit, Richie Incognito apologized to Mr. Martin and the Dolphins a few days after this report was issued.  See CBS news report. 

The Americans with Disabilities Act applies to most employers and public buildings.  State agencies can claim sovereign immunity and avoid an ADA lawsuit entirely.  But, states waive that sovereign immunity if the agency accepts federal funding.  In the past ten years or so, there have been a surge of ADA lawsuits seeking access to public buildings on behalf of folks with disabilities.  Even when Greg Abbott was first appointed to the Texas Supreme Court in 1995, there was such a lawsuit pending against the Texas Supreme Court.  The Texas Supreme Court wisely settled that suit when Mr. Abbott was appointed to the court.  Wheelchair ramps were quickly installed to the Supreme Court building.  Greg Abbott, as most Texans know, is confined to a wheelchair.  He sustained a bad back injury some thirty years ago. 

In 1995, the new Supreme Court justice even said that people with disabilities must sometimes secure access via lawsuits.  Mr. Abbott approved of lawsuits in such circumstances.  But, now he sings a different tune.  

In some nine lawsuits seeking public access, the Attorney General asserted sovereign immunity as a defense.  He lost each time.  One former Texas Tech professor simply wanted reflective tape on the stairs in her building.  Elaine King Miller was suffering from a degenerative eye disease.  The AG’s office fought that one issue regarding state immunity five years before the Fifth Circuit Court of Appeals in New Orleans finally rejected the defense in 2005.  The AG lost.  Yet, even after that loss, the Attorney General has continued to plead state immunity to public access lawsuits. 

In 2003, the new AG inherited an old lawsuit against the state regarding services not provided by the state to persons with mental retardation.  Regarding that lawsuit, AG Abbott claimed state immunity.  My former employer, Advocacy, Inc. and the Arc of Texas were forced to appeal to the Fifth Circuit.  A federal court rejected that claim also, saying in 2003 that there was plenty of precedent for waiver of state immunity.  See Austin Chronicle report.  

And, now, in his campaign for governor, the Attorney General often points to his disability to show how how he has had to overcome great obstacles.  

The Deputy AG defends the use of this meritless defense on the grounds that a lawyer should use all tools available.  The AG’s office points to one case that says whether state immunity is waived must be decided on a case by case basis.  So, with a wink, the AG’s office persists in asserting a defense it knows will lose simply because one cases suggests case by case review is necessary.  This defense has barely enough merit to avoid the "frivolous" label and sanctions from the judge.  

But, what this "tool" does do is delay public access lawsuits.  While the plaintiff is forced to appeal a preliminary issue that has no relationship to the merits of a case, the person with a disability must wait even longer for necessary accommodations.  One appeal to the Fifth Circuit will typically take one to two years.  In the meantime, to a professor with failing vision who fears falling own the stairs, that one to two years for a mere preliminary issue must seem like an eternity.  

See Dallas Morning News report. 

A recent decision by the Fifth Circuit Court of Appeals illustrates one of the many challenges in showing discrimination.  In Lawson v. Graphic Packaging International, Inc., No. 13-30205 (5th Cir. 12/13/13), the plaintiff (a Human Resources manager at a paper mill) attempted to show a pattern and practice of discrimination by testifying about other co-workers and how they were discriminated against on the basis of age.  They had all been discriminated against by the same mill manager.  The district court did allow Mr. Lawson to discuss the experience of one particular co-worker regarding the mill manager.  But, the lower court did not allow testimony about the adverse personnel actions endured by other co-workers.  The Fifth Circuit affirmed this refusal to allow some of the plaintiff’s evidence, but not regarding the one worker.  

An employee has long had the right to show discrimination by showing that the employer engaged in a modus operandi of getting rid of older workers.  That method of proof has been around since Title VII was first passed in 1964.  So, sure, testimony from "similarly situated" workers is relevant to show discrimination against the plaintiff.  See, e.g., Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 (1984); Harpring v. Continental Oil Co., 628 F.2d 406, 409 (5th Cir. 1980).  The lower court in Lawson did allow the plaintiff to testify about discriminatory conduct toward other workers by the same mill manager, despite objections from the employer’s lawyer.   The court also allowed the plaintiff’s lawyer to cross-examine the mill manager about his discriminatory comments toward other older workers.  

So, the court did allow a substantial amount of pattern and practice evidence.  What the lower court did not allow was "detailed" testimony about one particular co-worker and how he was treated.  The Fifth Circuit found that the lower court struck a considered balance between allowing pattern and practice evidence while not allowing cumulative evidence.  In effect, the appellate court simply "blessed off" on the lower court’s approach.  The appellate court did not get into specifics about why one story was admissible while another was not.  The Lawson opinion does not change the law regarding pattern and practice evidence.  District courts may still allow pattern and practice evidence.  But, they may also disallow cumulative evidence.  The real issue is when is pattern and practice evidence cumulative?  The Lawson opinion makes no attempt to address that critical issue.  See decision here. 

So, it would be an over-statement to suggest the Fifth Circuit will no longer allow "mini-trials" within a trial, as one blog suggests.  See Ogletree Deakins blog post.  The Lawson decision does not "level" the playing field.  Instead, the opinion simply leaves the playing field much as the court found it, ambiguous and subject to interpretation. 

I frequently tell my clients or potential clients that if they want fairness at work, then they need to form a union.  The case of Lt. Joseph Salvaggio of the San Antonio Police Department illustrates why.  Lt. Salvaggio took the exam for promotion to captain in 2010.  One of the instructions was that if a candidate needed a restroom break, s/he should cover the answer sheet and not take any test materials with him to the restroom.  No definition of "test materials" was offered.  Between the morning and afternoon test sessions, the candidates were allowed to study for the test.  In past exams, the test proctors had allowed the candidates to use scratch paper during the exam and did not collect the scratch paper at the end of the same.

Lt. Salvaggio had a post-it note the day of the test with notes on it.  He had recorded topics he wanted to review during the mid-day break.  As he left to go to the restroom, he took the post-it note with him.  The proctor noticed the post-it note.  He told the on-site San Antonio PD officer.  The officer told a higher-up who eventually told the Chief of Police, William McManus.  Several months later, a scandal developed regarding a detective exam.  Some detective candidates had removed a test booklet from the testing site.  During the subsequent Internal Affairs investigation, the post-it note with Lt. Salvaggio was mentioned and a separate investigation was launched.  A couple of months later, the Lieutenant was notified that he was accused of violating a Civil Service Commission rule prohibiting a police officer from bringing discredit upon himself or the department.  He was accused of removing test materials from the test site. 

The Chief is advised by two advisory boards, one civilian and one composed of police officers appointed by the Chief of Police.  The civilian board advised that no action should be taken against Lt. Salvaggio.  The police advisory board recommended a thirty day suspension.  The Chief, however, chose to place the lieutenant on indefinite suspension, tantamount to termination.  

Under the terms of the Collective Bargaining Agreement, the captain candidate filed a grievance.  The grievance was heard by an arbitrator in December, 2010 and the lieutenant won.   The arbitrator found that Lt. Salvaggio did not violate any established rule.  The city filed suit as its appeal.  Arbitral findings are difficult to overturn.  The whole point of union arbitration is to reach a quick, decisive result.  The city challenged the finding based on a lack of jurisdiction, arguing that the arbitrator was enforcing a rule created not by the Civil Service Commission, but by the arbitrator himself.  That is, the City seems to be arguing that since there was no rule regarding what was test materials, the arbitrator in effect created one in some way.  I find their argument confusing. 

The City lost in district court.  It lost again before the Fourth Court of Appeals.  The Fourth Court found that the arbitrator did not create a rule.  Only the Civil Service Commission could define "test materials."  And, the Commission did not promulgate any such definition.  So, the Chief cannot then employ his particular definition.  Indeed, said the Fourth Court, the Chief had effectively created a new rule by defining post-it notes as "test materials."  

Now, the City has filed an appeal with the Texas Supreme Court making essentially the same argument.  See notice and petition for review.  The Texas Supreme Court is rather friendly to employers, so perhaps this appeal is not completely futile.  But, the City’s argument is based on logic that seems to make little sense.  It is unfortunate that this employer has chosen to spend tens of thousands of dollars on what some would describe as a "frivolous" appeal. 

And, it all started with a chief executive who did not accept the recommendation of his own advisory boards.  Yes, we should terminate employees who break the rules, even 23 year employees like Lt. Salvaggio.  But, we, as employers, should be very certain that our rules are clear before we end a 23 year career.  

If the lieutenant was not a union member, he would have no recourse.  Under the at-will doctrine, an employer can indeed terminate an employee for a silly reason or for a mis-perception.  Lt. Salvaggio must really appreciate his union membership, now. 

A potential client recently assured me she could make me "wealthy" if I would accept her case for discrimination.  She was responding to my gentle declination of her case.  How do I explain to a potential client that what they see on television or in the movies is not real life?  Sure, Erin Brockovich did well in their class action two decades ago because they found "smoking gun" type evidence.  But, in the average discrimination case, direct evidence of intent to discriminate is "few and far between."  

To show intent, we have to produce evidence of what a person was thinking when they committed the adverse personnel action.  How do we get inside someone’s head?  We can only rely on the statements by that person.  And, these days, most folks know not to say what they are thinking.  

The other part of my answer would concern motions for summary judgment and the jury system.  Motions for summary judgment end in the dismissal of many decent cases of discrimination, everyday.  I wrote about one study that found plaintiffs in discrimination cases have the lowest percentage of success among major lawsuits.  The chances of success for disability, race and national origin, sex discrimination and age discrimination and FMLA reprisal range between 9 and 20%.  See my post here.  

And, the jury system.  I appreciate the jury system.  In my view, serving on a jury and casting a vote are the two major ways we preserve our democracy.  The jury system allows any person the opportunity to enforce community standards.  No special training is required.  But, truly, many jurors get the result wrong.  Many juries do not appreciate what they do and rush through the process.  I tell clients that they can throw the dice at Las Vegas or take their matter to a jury.  The chances of success are about the same.  

So, no, Ms. Potential Client, I do not expect to become wealthy through your case.  But,  I do appreciate the offer……

Richard Sherman, the cornerback for the Seattle Seahawks, stopped the potential winning touchdown pass in the closing seconds of a playoff game with the Forty-Niners.  He was interviewed immediately after and exclaimed that is what happens when you try the "best cornerback in the game!"  When you try me with a "sorry receiver like Crabtree."  See espn.com report.   Within days, Richard Sherman became the most hated cornerback in the game.  

But, to his credit he has apologized.  In fact, he was quoted in the Feb. 3, 2014 edition of Sports Illustrated as saying to kids in particular,  "You don’t have to put anybody else down to make yourself bigger."  Je urged kids not to follow his example.  Richard Sherman embarrassed himself on a national stage.  He has since made efforts to apologize on a national stage.  That shows character.  

How many lawsuits could be avoided if folks in the workplace would own up to their mistakes and apologize on a much smaller stage.  In the workplace, a worker’s actions are viewed by so many, so close.  The office, the warehouse, the job site can be such "small towns."  But, being a virtual small town, examples of character also go very far indeed.  You do not have to be a Richard Sherman to make a mistake.  And, you do not have to be one of the best, if not the best cornerback in the league to show character.   

In a recent opinion, the Fourth Circuit Court of Appeals has found that a sufficiently severe temporary impairment may constitute a disability under the Americans with Disabilities Act, as amended.  Carl Summers hurt himself on the job.  He was carrying a large bag and injured both legs.  With a torn meniscus and a leg fracture, the employee suggested to the employer that he take some time off, work part-time and then return with an accommodation.  Altogether, this plan would take about a year.  But, the employer decided they would simply terminate Mr. Summers.  The employer chose not to engage in the interactive process to arrive at a mutually agreeable accommodation, perhaps because the employer believed Mr. Summers was not covered by the ADA.  As a temporary impairment, he would normally not be covered by the ADA. 

In the resulting lawsuit, the court granted the employer’s motion to dismiss on the grounds that a temporary impairment, even for as long as one year, does not fall within the ambit of the ADA.  But, on appeal, the Fourth Circuit found that Mr. Summers would not be able to walk for seven months.  Without surgery, pain medication, and physical therapy, he would not be able to walk for a far longer period than seven months. Under the broadened coverage of the ADA Amendments Act, this was sufficient to make a claim of impairment.  The court explained that the ADAAA was passed specifically to overrule the strict holding in Toyota Motor Manufacturing, Kentucky, Inc.v. Williams, 534 U.S. 184, 199 (2002), and its progeny.  

The Toyota decision suggested that a temporary disability could never be protected by the ADA.  The ADA Amendments Act did not provide one way or the other whether a temporary impairment would be protected, noted the Fourth Circuit.  But, the regulations drafted by the EEOC do provide coverage for temporary disabilities that are "severe." 

The EEOC regulations do not state that an "injury" cannot also be an impairment.  Indeed, under the new ADAAA, an impairment of the "muscoskeletal" system can be a disability.  And, the regulations use the terms "injury" and "impairment" interchangeably, said the court.  See Summers v. Altarum Institute Corp., No. 13-1645 (4th Cir. 1/23/2014) opinion.  

The court reversed the dismissal.  This is the first appellate decision to address the temporary injury issue under the ADAAA.  It will surely lead to additional temporary injury claims. 

For more comments, see Robin Shea’s post at Employment and Labor Insider blog and Jon Hyman’s post at Ohio Employer’s Law Blog post. 

Every so often, I talk with an employee who has been treated badly by his employer, but for whom there is no lawsuit available.  S/he has no discrimination claim.  The employee is simply treated unfairly, for which there is no remedy in Texas.  So, I typically tell such clients they should form a union if they want fair treatment in the workplace.  They look back at me like I had just told them they should take a vacation on the moon.  

Well, some football players at Northwestern University have accepted that advice.  A group of players at Northwestern have filed papers with the Chicago office of the National Labor Relations Board seeking recognition as a union.  An organization known as the National College Players Association is helping the players with the process.  The Northwestern quarterback, Kain Colter, reached out to the NCPA for help last Summer.  Mr. Colter says the problem is not Northwestern.  Its the NCAA.  The NCAA is a dictatorship and the players want a seat at the table, says the quarterback.  

Of course, a critical issue will be whether the players are "employees" or student athletes.  To form a union under the National Labor Relations act, the football layers must be employees.  In various games this past football season, players on several teams wore arm bands that said "#APU."  APU stands for All Players United.  See ESPN news report.  I doubt any forum is ready to find that athletes are employees.  But, some players want to be heard on issues that affect them.