Discrimination lawsuits are hard to win.  I have written many blog posts about that difficulty.  One federal judge recently even wrote that Judges are killing Title VII.  See my blog post about Judge Kopf’s blog post.  Prosecuting a discrimination case is an uphill climb.  So, it is important that any plaintiff do nothing to add to an already difficult endeavor.  In a recent Western District of Texas case, we see how an employee can make her case worse.  in Overton v. Seaborn Health Care, Inc., No. 12-CV-635, 2013 WL 6198227  (W.D. Tex. 11/272013), a female phlebotomist (a person who draws blood) sustained an on-rhe-job injury, tendinitis in her elbow and pain in her shoulder.  The Judge characterized it as old-fashioned tennis elbow.  

Ms. Overton’s doctor limited her ability to work, eventually recommending that she not work with her arm or hand more than two hours per day.  This latest restriction came after prior restrictions.  Seaborn did not have an on-site supervisor.  But, Ms. Overton was effectively supervised by the Air Force personnel who worked at her facility.  Seaborn had the contract to provide blood draws for the Air Force.  

Upon seeing this newest restriction, TSGT Furlough told her she must go home after two hours, apparently suggesting she was of no use after she could no longer draw blood.  According to the employer, Ms. Overton then went into a tirade, waving her hands in the air, raising her voice, and jabbing her finger at the sergeant.  Allegedly, this outburst was in full view of the patients and workers who were present.  MSGT Rea then arrived on the scene and was unable to calm Ms. Overton.  MSGT Rea, according to the plaintiff, asked her why the doctor would release her to work if she could only work two hours a day.  Ms. Overton said she could perform other duties for the rest of the day, but MSGT Rea was not interested.  The Master Sergeant did not offer any other possible accommodations (other than going home after two hours – presumably without pay). 

Ms. Overton admits she was upset.  But, she denies she was angry and denies waving her arms.  The Air Force then contacted Ms. Amadio, the President of Seaborn on the telephone.  Ms. Amadio was Ms. Overton’s actual supervisor.  The two Air Force sergeants invited Ms. Overton to come into an office and  talk to Ms. Amadio on the phone.  Ms. Overton declined to talk with her supervisor while the two sergeants were present.  The phlebotomist told the two AF sergeants she did not trust them and would not talk to her supervisor while MSGT Rea and TSGT Furlough were present.  

The Judge found her refusal to be a problem, because the Air Force was her client.  And, they did in some ways act as virtual on-site supervisors.  The Court noted that Ms. Overton denied going into a tirade but she did admit to being upset.  The Court seems to suggest he does not believe her denial about the outburst.  The judge, Xavier Rodriguez, granted the employer’s motion for summary judgment on all claims.  See decision here. 

One could argue with his interpretation of evidence and that he may have drawn fact inferences in favor of the movant, which he should not do.   But, I have to note that refusing a phone call – even if only while the two sergeants are present – is not good for a lawsuit.  And, really, what right does an employee have to deny speaking on the phone when requested by an actual supervisor or a client? 

And, the judge noted that the employer was offering an accommodation, that she could go home after two hours.  Yes, it was probably in a non-paid status.  But, I cannot find a reason why that is not one possible accommodation.  

So, after she declined the phone call, the Air Force personnel sent her home and Seaborn terminated her employment.  The employer argued in its motion that she was fired for her behavior, not due to her disability.  

The court acknowledged a difference in the facts, indicating that summary judgment might not be appropriate.  Yet, he did grant summary judgment.  Can you blame him?  The plaintiff did not engage in a high level of respect toward her supervisors or her clients prior to her termination.  That lack of respect alone will undermine even the best case.   

Emails can reveal so much.  In an ongoing dispute between the Texas Windstorm Insurance Association and the Brownsville Independent School District, the plaintiff obtained thousands of emails between various quasi-state officials.  The emails concerned Brownsville ISD’s requests for insurance coverage for damage caused by Hurricane Dolly in 2008.  The emails reveal frequent racist comments that surely affected the denlal of claims submitted by the predominantly Hispanic school district.  The TWIA is a quasi-govermental agency.  The comments were directed at Hispanics, Arab Americans and African-Americans.  The TWIA provides insurance to coastal areas. 

Several of the email contain the "most offensive" terms for African-Americans, Hispanics and other minorities.  Many emails included a supposed joke petition opposing immigration.  The plaintiff’s lawyer, Steve Mostyn, has filed a complaint with the Texas Insurance Agency regarding the race based comments at TWIA.  See Austin American Statesman report (account required). 

Yes, emails can say so much……

One of the unique aspects of employment law is that many persons enter into the judicial system representing themselves.  An old saying holds that a lawyer who would represent himself has a fool for a client.  That is, someone who tries to represent himself will make many mistakes, because that person is too emotionally involved in his/her lawsuit.

But, these pro se (for himself) persons are forced by circumstance into representing himself.  Most folks who file a discrimination claim go to the EEOC.  In Texas, the only alternative to the EEOC is the Texas Workfroce Commission, Civil Rights Division which has only one office.  That office is in Austin.  Everyone else ends up at the EEOC.  

Typically, the EEOC concludes its "investigation" with no finding or resolution.  The charging party, which is how the EEOC describes the complaining party, must go find a lawyer.  In my community, as in most communities, there are far more discrimination claims than there are lawyers willing to accept them.  Most charging parties start with Personal Injury lawyers who blanket our highways and air waves with their ads.  Many, perhaps most cases are turned down by the first few lawyers.  and, many lawyers do not refer the charging party to an employment lawyer.  The person with a right-to-sue letter in his/her hand often sees a half dozen lawyers with none expressing interest in his/her case.

So, the more enterprising (or determined) charging parties end up at federal court only because the U.S. District Clerk has a check list complaint which the pro se person can file.  The plaintiff merely fills in the blanks and then they can file their lawsuit.  One recent study found that pro se cases comprised some 20% of all employment lawsuits.  Employment lawsuits have by far the higher number of pro se claimants.  See Theodore Eisenberg article, "Four Decades of Civil Rights Legislation," p. 19.  

A small percentage of these plaintiffs will, however, receive some "unofficial" assistance from an employment lawyer.  Some well-meaning lawyers will help the charging party draft his/her first document for the lawsuit, the complaint.  The lawyer cannot accept the case, but they still wish to help in some small way.  So, they help draft the first legal document. 

 But, is that ethical?  The federal rules of civil procedure require that the lawyers and their parties effect no dishonesty on the court.  Is it dishonest to help draft one document and then silently recede away from the courthouse?  U.S. District Court in New Jersey addressed this question in Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co., Inc., No. 04-3009, 2007 WL 766349 (D.N.J. 3/6/2007).  

In this case, a widow of a union member filed suit regarding retirement benefits.  The plaintiff’s law firm later had to withdraw due to a conflict of interest.  The widow met with Richard Shapiro to see if he could then represent her.  Mr. Shapiro also had a conflict of interest and could not accept her case.  The court allowed the plaintiff additional time to find a lawyer.  But, she later said she would proceed with the lawsuit.  That is, she said she would proceed pro se.  

Seizing its opportunity, the defendant then moved for summary judgment, probably hoping to take advantage of the pro se party.  Mr. Shapiro then began to assist Ms. Delso "informally."  She filed a response to the motion for summary judgment that was clearly assisted or drafted by a lawyer.  More pleadings followed, which the defendant claimed to reflect knowledge of law and litigation.  During a phone conference with the court, Ms. Delso admitted with some reluctance that she was receiving assistance from Mr. Shapiro.  About this time, the defendant’s lawyer received a letter purportedly from Ms. Delso – but the envelope bore Richard Shapiro’s return address. 

Months later, the defendant moved to disqualify Richard Shapiro as Ms. Delso’s lawyer, even though technically he was not part of the lawsuit, officially, sort of, whatever.  The defendant argued that "ghost writing" violates the New Jersey ethical rules and conflicts with the lawyer’s duty as an officer of the court.  

For purposes of the motion to disqualify on the grounds of conflict of interest, the court did find an attorney client relationship between Ms. Delso and Mr. Shapiro.  But, the court found no conflict of interest itself.  After reviewing many cases on the issue of ghostwriting and the pertinent portions of the New jersey ethical rules and Rule 11, the court found that Mr. Shapiro’s involvement violated the duty of candor owed to the court.  The court acknowledged that Mr. Shapiro told Ms. Delso to be honest with the court.  But, that was not enough.  His actions violated the spirit of Fed.R.Civ.Pro. Rule 11 and Local Rule 11.1 (apparently similar to Rule 11).  

The court mentioned that otherwise, a pro se party is entitled to liberal construction of pleadings.  And, liberal construction of pleadings actually drafted or assisted by a trained lawyer presents an unfair advantage to the plaintiff. 

The court noted the recent trend of offering "unbundled" legal services, in which a lawyer will represent a client on a discrete portion of a lawsuit. but not the entire lawsuit.  But, said, the court, the rules currently contemplate traditional representation.  The court said it had to decide based the rules as they currently exist.  The court suggested that its ruling might be different if unbundled legal services were expressly allowed.  See the March 6, 2007 decision here.  

SAWS has decided to appeal the ruling by the Fourth Court of Appeals regarding its million dollar jury verdict.  I wrote about that appellate ruling here.  SAWS has hired former Chief Justice Wallace Jefferson to represent it before the Texas Supreme Court.  Even before he became Chief Justice, Mr. Jefferson was one of the best appellate lawyers in San Antonio.  Now with his connections and credibility with the current members of the Supreme Court, some might think the former Chief Justice cannot lose.  See San Antonio Express News report (account required). 

SAWS has spent close to $500,000 defending itself against this lawsuit, already.  I previously wrote about its high defense costs here.  A former Chief Justice will demand equally high rates for this one appeal.  I would not be surprised to see him charging $100,000 or more for this one appeal.  All this when the employer could surely have settled for far less, long ago.  

As I have explained to some clients, some employers find allegations of discrimination very hard to accept.  Discrimination cases are not like car accidents.  "Discrimination" implies some level of deliberate intent.  Many employers know "ole Joe" and refuse to believe ole Joe would deliberately discriminate.  But, more recent sociology theory suggests that bias is more subtle than that.  Discrimination is less Ku Klux Klanners in a white robe and more people who grow up with a set of expectations.  This mindset is often latent until some issue develops.  

This case is about retaliation for opposing discriminatory conduct.  Debra Nicholas warned Greg Flores about his conduct which was perceived as gender based discrimination.  He was hitting on a lower level female employee.  Did Ms. Nicholas’ opposition change the way Greg Flores looked at her in subtle ways?  Possibly.  

In any event, SAWS’ lawyer surely explained to the employer that defending their beliefs could run into the hundreds of thousands of dollars.  In the end, it is the client’s decision to move forward, regardless of the cost. 

A federal judge writes a nice blog on federal judges.  See herculesandtheumpire.com.  He discusses the studies on employment cases in the Northern District of Georgia.  I wrote about that study here.  

Judge Richard Kopf titles his blog post, "Judges are Killing Title VII of the Civil Rights Act of 1964."  The judge wrote about that Georgia study, because he found the results to be "stunning."  He then asked that the authors do a similar study of his own summary judgment results in employment cases.  The judge learned that his rate of granting summary judgment in his Nebraska court was even higher than the Northern District of Georgia.  His rate was 86% to 82% for the Georgia court. 

Judge Kopf states flatly that summary judgment law in employment cases favors the granting of summary judgment.  He is right.  I am sure he is referring to everything from the stray remarks doctrine to adverse credibility inferences in affidavits to the caselaw favoring the use of summary judgment.  These doctrines are all judicial creations.  They are not found in any statutes.  Yet, they impact plaintiffs in employment cases a great deal.  

In Judge Kopf’s blog post dated Oct. 23, 2013, he quotes a federal law clerk describing her experience working in two different federal district courts.  See the Judge’s post.  The law clerk makes a valid point that many cases were dismissed because the plaintiff did not exhaust administrative remedies.  I presume she means one or more claims were not filed with the EEOC.  if the claim is not first filed with the EEOC, then the plaintiff cannot later file suit on that claim. 

The law clerk also states that many times, the district court’s hands are tied.  They are limited by circuit court precedent.  For example, one of the cases dismissed in the Georgia study concerned a gender discrimination lawsuit in which a man grabbed a woman’s crotch.  That case was granted summary judgment.  The law clerk argues that if there is precedent that grabbing a crotch alone is not sufficient evidence to make out a claim of sex harassment, then grabbing a crotch may not be sufficiently severe or pervasive.  

I cannot disagree with that argument.  Each lawsuit has such unique facts that one cannot quantify crotch grabbing for all lawsuits.  But, surely the argument does not end there.  The point of summary judgment is not to weigh evidence but to determine where there is a minimal level of evidence to make out a factual dispute.  Surely, grabbing a crotch and nothing else may be enough in some cases to satisfy the requirement that sex harassment be severe or pervasive.  Surely, the judge could have reached a different result, even if court of appeals precedent might offer some obstacle.  

In fact, among the comments to this law clerk post is a comment by another federal law clerk.  Another long-term law clerk explains that he has read many affirmations of summary judgment, where, he says, his judge would have denied sumamry judgment.  Yes, I said that right.  This law clerk states that his judge disagrees with many summary judgment rulings by other federal judges. 

There is sufficient discretion in any motion for summary judgment for a judge to allow a plaintiff his/her day in court.  That is all any plaintiff can hope for.  

This is a blog.  Blogs are growing in popularity.  On this blog, you can find my name and contact information easily.  But, a few blogs are anonymous for various reasons.  One such blog, "Reynolds News & Information," was started by an anonymous blogger known as "Trooper."  The blog attacked an Ohio based software developer, Reynolds & Reynolds.  The blog described R&R’s products as "crap" and accused its new CEO of being a thief.  R&R sued Google seeking the identity of the blogger.  The software developer says it needs the identity so they can sue the blogger for defamation and business disparagement.  R&R filed suit in Houston, Texas.  Trooper hired a lawyer, Shelly Skeen, to defend his interests.  Trooper stands on the First Amendment to block the attempt to secure his identity.

Google offered to provide the identity to the judge and let the judge decide if his identity should be revealed.  The judge, instead, ordered that the identity be revealed completely.  The First Circuit in Houston affirmed the lower court ruling.  Trooper then appealed to the Texas Supreme Court.  Meanwhile, the blogger took down his blog.  

R&R believes the blogger is an employee.  The employer claims the U.S. Supreme Court has held there is no right of anonymity for an employee who is criticizing his employer.  Trooper denies being an employee of R&R.  Indeed, Trooper claims he is a citizen of Ohio and that rulings by a Texas court do not apply to him.  Oral arguments before the Texas Supreme Court were held in November.  The Supreme Court’s decision is now pending.   See Austin American Statesman report. 

If Trooper is using his blog to discuss problems at work with co-workers, then his comments would probably be protected under the National Labor Relations Act.  But, even in that situation, I cannot imagine how he would have a right to anonymity.  Google is trying to steer a middle ground, not willingly giving up the identity.  But, I am sure that is based more on Google’s respect for the internet than on legal grounds.  

But, if Trooper’s blog is a simple straight ahead attack on R&R, his comments would not receive any particular protection under Texas law.  See my other post about a disaffected employee who who set up a wesbite to attack his former employee.  A blog must follow the same laws regarding defamation as any other public forum.  

People like to joke about a "hostile work environment."  But, what is an actual hostile work environment?  Essentially, hostile work environment means the discrimination is perpetrated by co-workers, not by supervisors.  A finding of a hostile work environment requires that 1) the employee belong to a protected group, 2) s/he was subjected to unwelcome harassment, 3) the harassment was based on the protected factor (i.e., sex, color, national origin, etc.), 4) the harassment affected a term or condition of employment, and 5) the employer should have known or did know of the harassment and failed to take action.  

In Royal v. CCC&R Tres Arboles, L.L.C., No. 12-11022 (5th Cir. 11/21/13), the court addressed alleged sex harassment.  The employer argued that the harassment was not based on sex.  Tonia Royal worked briefly for the employer in an apartment leasing office.  She started working on Monday, Aug. 3, 2009.  She worked at a small desk in a small office.  Starting on her first day, the two maintenance men would come in about twelve times each and stand over and sniff her.  They did this everyday.  She told them the conduct was not welcome, but they persisted.  They would sometimes sniff when she left the bathroom.  One of the men sat facing her, with visible arousal and engaged in a staring contest with her.  Once, Ms. Royal was gathering some files, she turned and walked into the Assistant Manager, Robin Granger, who had been silently standing behind her.  Asia Brazil, the manager, was present when this happened.   

Ms. Royal reported the harassment to Mr. Granger.  The Assistant Manager told her to let it "slide."  He added something like she knows how men are when they first get out of prison.

At a meeting held to address concerns, Ms. Royal complained about the sniffing.  One of the maintenance men said he had a medical condition.  The other said he needed to get a "release."  Another coworker said the maintenance man had the "wrong thing" on his mind.  Later that day, Ms. Royal, Mr. Granger and Ms. Brazil met for another time to discuss the new leasing manager’s concerns.  The leasing manager was fired later that day, Aug. 6, Thursday.  The alleged basis was that she swatted a fly too hard and that she slammed a door.  She was fired just four days after starting her job. 

The employer argued this harassment was not based on Ms. Royal’s gender, but offered no alternative motive.  The lower court had found that the harassment was not "serious" enough.  The lower court granted the employer’s motion for summary judgment.

The conduct, said the trial court, consisted of several, isolated incidents.  See lower court opinion here.  The district court even observed about the incident in which the maintenance man had sat facing her with an erection for several minutes, that he did not touch her or say anything to her.  But, in so doing, the court is clearly drawing its own factual conclusions, in contravention of every summary judgment precedent.  Indeed, one could argue that a man sitting with an erection, silently staring at a woman and saying nothing is more threatening than a grope or physical assault.  

And, as the appellate court pointed out, two men would not stand over a male worker and sniff some twelve times a day.  Their behavior was surely related to Ms. Royal’s gender.  Or, as the appellate court should have pointed out, there is ample basis for a jury to conclude the men’s behavior was related to the plaintiff’s gender.  

The lower court found that the "need a release" statement did not necessarily refer to sex, and it was not said directly to Ms. Royal at that meeting.  But, noted the Fifth Circuit, the remark was clearly aimed at the situation presented at the meeting.  More importantly, the lower court was inherently drawing factual conclusions in making such a finding.  The purpose of summary judgment is not to make factual conclusions but to ascertain whether there is any factual support for a particular allegation. 

The challenge in making out a harassment case is showing that the harassment is "pervasive."  In this case, the lower court said it was not pervasive, while the upper court disagreed.  The lower court relied on older cases which incorrectly used a "severe and pervasive" standard.  The Fifth Circuit says, however, the correct standard is "severe or pervasive."   As the Fifth Circuit noted, here the time frame is much compressed.  Ms. Royal worked for the apartment complex only four days.  Yet, there was were many incidents in this mere four days.  This harassment was pervasive.  

The Fifth Circuit has conveyed some expression on this issue.  In two cases, it used the severe and pervasive standard.  In one other case, it said the harassment had to be severe or pervasive.  Now, it has issued a second decision using the "severe or pervasive" standard.  This is confusing since the seminal case, Meritor Savings Bank v. Vinson, 477 U.S. 57. 67 (1986), used the severe or pervasive standard.  It appears the Fifth Circuit made a simple, but critical typographical error in the two earlier decisions. 

So, the Fifth Circuit reversed the summary judgment.  And, we must wonder how a trial judge and magistrate judge could find this conduct in a small, confined space, some twelve times or more per day to be anything but "serious."  That is, how could a judge and a magistrate judge find there to be no genuine factual issue whether this harassment was not serious?  How could the magistrate judge and trial judge find these incidents to be "isolated?"  Such a finding suggests a result-oriented decision.  

Justin Slaby has walked a long road.  He lost his left hand in an Army training accident in 2004.  He applied for and was accepted by the FBI.  He was then kicked out of the FBI Special Agent academy.  He filed suit based on disability discrimination and won. The court ruled that he should not have been dismissed from the academy.   I wrote about his odyssey here and here.  Well, it seems the FBI balked at how and when Mr. Slaby should get his second shot at the academy.  The U.S. District Judge who heard the case had to enter an order imposing a deadline of April 1, 2014 or no later than June 1, 2014.  The Judge ordered the FBI to get him into a class by June 1 if they can find a class that soon.  Otherwise, they must get him into a class of just himself no later than April 1.  See Washington Post report.  

The FBI argued among many claims, that they did not have the money for another training class.  At that point, Mr. Slaby offered to contribute the money awarded by the jury.  The FBI, however, demurred.  

Amazing.  Even after the employer lost, the FBI stalled to the point that a federal judge had to intervene.  Much like the Republicans who lost when the Affordable Care Act was initially passed in 2010 and then a few years later, they shut down the government in one more vain attempt to stop the law.  The FBI just cannot seem to accept their initial loss.  Hooah to a soldier who will not give up. 

Well, she said she would and now she has.  Coach Bev Kearney filed suit against the University of Texas alleging race discrimination.  She has filed suit alleging discrimination based on race and gender.  I previously wrote about her EEOC charge here and here.  In her lawsuit, she claims that she was treated differently than other UT employees.  Her complaint refers specifically to Coach Major Applewhite and his known relationship with a student trainer.  Coach Applewhite was not placed on suspension or fired, as Coach Kearney was.  The complaint also refers to Jim Moore, former volleyball coach, who married a former student-athelete at Northern Michigan in the 1990’s.  And, the complaint refers to a "high level administrator" within the Athletic Department who has carried on a prolonged relationsip with a employee for about three years.  See Austin American-Statesman report. 

As I mentioned before, the challenge in making out lawsuits based on disparate treatment is that the plaintiff must show that the deciding official was the same in all cases and the offenses are truly comparable.  Here, Coach Kearney adds the additional factor, that of disclosing potential dirt on current employees.  The unnamed administrator’s situation would be relevant only if Coach Kearney can show the relationship was known to the deciding official(s).  This lawsuit should be interesting on many levels. 

SAWS (San Antonio Water System) recently lost the apeal of their million dollar loss in Bexar County distirict court.  I previously wrote about that appellate decision here.  

That defense has cost SAWS $492,000 over four years.  This amount includes the trial, the appeal and the EEOC charge.  See San Antonio Express News report (account needed).  That is the cost of defense.  That amount is over and beyond the amount of the trial verdict.  As Councilwoman Ivy Taylor asked, they lost that suit twice, "what were the SAWS lawyers thinking?"  The suit was defended by Cox & Smith.  SAWS in-house attorneys would have been heavily involved, as well.  Responding to the EEOC charge is minimal indeed.  Typically, responding to an EEOC charge includes nothing more than gathering a few statements from witnesses and drafting a letter to the EEOC.  It is all attorney or paralegal time.  So, the amount per hour is high.  But, still, responding to an EEOC charge is minimal when compard to the hundreds of hours necessary for the lawsuit itself. 

Councilwoman Taylor’s better question would be what, if anything, was offered to settle the case and avoid the $492,000?  My guess is little or nothing was offered.  Most plaintiffs will accept something, which is sometimes a very small "something," rather than incur the uncertainty of trial.  I do not know what Ms. Nicholas’ lost income was, but many cases settle for one year’s lost pay, more or less.  I am sure the defense could have settled this case for much less than $492,000 at several different points in the EEOC process or during the lawsuit.  Indeed, they could have settled the case after the trial verdict. 

Mediation would have been offered by the EEOC during the EEOC portion.  Bexar County district court then requires that all parties state whether they would consider mediation.  This case has not settled, but not due to lack of opportunity.