A Seguin man has died from his wounds suffered in Afghanistan.  SSGT Richard Vazquez served in the Special Forces (i.e., the Green Berets).  His wounds were inflicted by an IED (roadside bomb).  SSGT Vazquez graduated from Seguin High School in 2004, where he played on the football team.  He was the quarterback his senior year.  A former teacher said he always came to class with a smile on his face.  He made the whole classroom happy, added the teacher, Gerry Richardson.  

A member of the 7th Special Forces Group, this was his fifth deployment to the war zones.  So far this year, 117 Americans have been killed in Afghanistan.  See San Antonio Express News report. 

Many employees are falsely accused of transgression at work.  There is very little any worker can do about a false accusation.  Defamation is very difficult to prove in the workplace.  I wrote about defamation under Texas law here.  As I mentioned in that post, to overcome the qualified privilege in the workplace, one would have to show that the speaker acted with actual malice.  Mere mistaken belief or merely relying on someone else would not overcome the qualified privilege.

But, defamation other than the workplace may be less difficult, but it is still challenging.  Traditional defamation occurs in regard to the workplace sometimes.  We see that in the case of Cullum v. White, 399 S.W.3d 173 (Tex.App. San Antonio 2011).   See that decision here.  In this case Dell Cullum worked for the Diamond A Ranch and Dalene White for about a year.  He worked as a ranch hand, but also took photos of the ranch.  The ranch relied on hunting for income.  His photos appeared on the ranch website.  After he left, they took his pohotos down.

Mr. Cullum was not happy about his work there, apparently.  He started a website, www.diamondalcoholicranch. com.  He sent a couple of emails to businesses who had been filming hunts at the ranch.  In these emails, he accused the owner, Ms White, of various dishonest acts and accused the ranch of criminal activities.  He suggested the FBI was about to make arrests.  The two companies ceased their connection to the ranch.  Ms. White was quite upset about all the accusations and the website.  While the website did not refer to Ms. White by name, it did include numerous references to her life and interests.  The appellate court found there was sufficient evidence for the jury to conclude the website was an attack on Ms. White and the Diammond A ranch.

The appellate court applied the test adopted by the U.S. Supreme Court and the Texas Supreme Court regarding whether a statement is actionable.  To be actionable, the statement must expressly or impliedly assert facts which are objectively verifiable.  The defamatory meaning will appear to a reasonable person’s understanding.

Mr. Cullum tried to argue that his website referred to a book he was writing, not to Ms. White and the Diamond A ranch.  But, he did admit some of the ideas came from his time working at the ranch.

The jury awarded $50,000 for damage to Ms. White’s reputation and $100,000 in exemplary damages.  The court of appeals upheld the first award, but overturned the exemplary damage award.  Ms. White was elderly, which made her a sympathetic party.  But, Mr. Cullum even violated a temporary restraining order by posting information on the internet about the ranch when he had agreed not to do so.  He and his lawyer offended the trial judge enough that sanctions were issued.

So, this was a rare case where there was a reckless former employee and a sympathetic employer.  These sorts of cases are rare.  As I have explained to many potential clients, defamation is ordinarily very hard to prove, especially in the workplace.

I previously wrote here about the lawsuit against Lady Gaga for overtime pay.  Lady G did not do well in her deposition.  Now, the federal district court denied her ladyship’s motion for summary judgment (or some motion like that).  See New York Post report.  So, Lady G settled.  That is wise.  She would not have testified well.  Lady Gaga is the sort of defendant juries get upset with.  See Employment and Labor Insider post.  

In the NFL, the older players haze the rookies.  It has been that way at least as long as there has been an NFL.  Like most rookies on the Miami Dolphin football team, Jonathan Martin, an African-American player was hazed.  Unlike most rookies (and now a second year player), he walked away from his NFL job apparently because of the hazing.  Mr. Martin disappeared last week with no explanation.  

Nine year pro Richie Incognito was one of the players harassing Mr. Martin.  Most hazing consists of rookies singing their almer mater during meals for the enjoyment of the senior players, or paying for dinner when they eat out.  But, according to one report, Mr. Incognito sent racist and threatening texts to Mr. Martin, refrring to the young player as a "half n—–."  Mr. Incognito is white.  In other texts, he apparently threatened to kill Mr. Martin, to find him and to find his mother.  

The older player was placed on suspension on Monday.  Mr. Martin is still absent without explanation.  See CBS news report.  His co-workers on the team largely support the locker room culture which encourages harassment of younger players.  See Miami Herald report.  It is said that the incident which sparked Mr. Martin’s walkout occurred when he sat down for lunch, Mr. Incognito and others all rose and left the table.  

Most jobs would not allow hazing.  But, even hazing that is allowed cannot rise to the level of racial harassment.  And, any hazing surely could not involve threats of physical violence.  I am sure Mr. Incognito would explain his actions by arguing that they should be placed in some sort of context.  But, racism and threats of violence have no place in any workplace.  

Not to mention work efficiency.  Both players are offensive tackles.  It is their job to protect the quarterback.  As the news report notes, the Dolphins’ quarterback has a league high 35 sacks midway through the season.  How can workers cooperate and work together if they are threatening each other and making racist comments? 

In 2012, a Bexar County jury awarded a former SAWS employee $1.6 million in damages in a retaliation lawsuit.  Debra Nicholas had opposed possible discrimination by her employer, San Antonio Water System in 2006.  Her job was eliminated in 2009.  SAWS claimed her job was eliminated as part of a re-organization.  But, her job was the only one eliminated.  I previously wrote about this jury verdict here.  The employer appealed.  On appeal, the Fourth Court of Appeals here in San Antonio affirmed the jury verdict.  The last large verdict employment case that went to the Fourth Court was overturned entirely.  I wrote about that decision also in the same post.  But, this time, the appellate court accorded the jury the deference it deserves.

Ms. Nicholas re-applied to SAWS after her position was eliminated.  So, she lodged two claims of retaliation, one based on the initial dismissal and one based on her re-application.  The jury found in her favor on both claims.  SAWS’ principal argument was that three years passed between Ms. Nicholas’ involvement in opposing discrimination and her initial dismissal.  SAWS cited numerous cases finding that more than a year between the opposition and the adverse personnel action would not support a presumption of reprisal.

But, as the court noted, those cases involve facts different than this case.  In this case, the supervisor, Greg Flores did not have a reasonable opportunity to exact reprisal until two to three years later.  The former CEO, David Chardovoyne, testified that some board members did not like Debra Nicholas and might have targeted her, but Greg Flores did not have such an opportunity.  And, noted the court, the plaintiff was moved under Greg Flores’ supervision in 2008, at which point she experienced a pattern of harassment form him.  She believed Mr. Flores was starting to set her up to fail from the very beginning of her time working for him.  At this point, Robert Puente was the CEO.  Greg Flores testified that it was Mr. Puente’s decision to terminate Debra Nicholas.  The plaintiff was terminated in 2009, just a year after being assigned to work under Greg Flores.  

But, noted the court, it may have been the CEO’s decision to terminate the plaintiff.  But he did so based on Mr. Flores’ recommendation.  And, Ms. Nicholas was the only person to lose her job in the re-organization.  Within a few days, the plaintiff sent a letter to SAWS accusing the agency of retaliating against her for her opposition to discrimination in 2006.  

After reviewing the testimony from all the major players, the court simply found that there was more than a "scintilla" of evidence to support the jury verdict.  The court applied the correct legal standard and viewed the evidence in a light favorable to the verdict, as it should have.  The evidence is circumstantial.  But, this is a discrimination case.  Circumstantial evidence is often the only available evidence in discrimination cases.  Yes, Mr. Puente testified he was not influenced by Mr. Flores’ recommendation.  But, the jury was entitled to disregard his testimony. 

In a lengthy, detailed portion of the decision, the court also affirmed the award of future compensatory pay in the amount of $759,000.  The Fourth Court agreed with the lower court that the statutory caps on compensatory damages (i.e., emotional suffering damages) does not apply to future or front pay.  This may be the first state decision which reaches that holding under the Texas Commission on Human Rights Act.  The court set forth the major decisions on future pay found under Title VII and explained its history. 

SAWS will probably appeal to the Texas Supreme Court, which tends to support employers and large corporations.  See the report in the Oct. 29, 2013 edition of the San Antonio Express News. 

But, on this day, in this state court, the viability of jury trials still lives. 

Two Atlanta area lawyers researched discrimination cases in the Northern District of Georgia.  They found among the cases filed in federal court, 80% were dismissed without a trial.  In a report published in the Oct. 20, 2013 edition of the Atlanta Journal Constotution, the lawyers looked at 181 discrimination cases alleging race, sex harassment, national origin, and pregnancy related discrimination.  Nationally, discrimination cases are dismissed about 70% of the time, according to the report. 

In one case, an hourly worker at Bojangles, 17 years old, was repeatedly told by a male worker in graphic terms how he wanted to have sex with her.  The female worker, Morgan Cramer, reported it to her boss, who said the male worker was harmless.  One day, the male co-worker pinned Ms. Cramer to the wall, tried to kiss her and groped her crotch.  Again, she reported it.  Again, the manager was unconcerned.  The young worker quit and later filed suit.  The court dismissed the case on summary judgment saying no reasonable jury could conclude this was a hostile work environment.  The court noted that the woman suffered no more harassment after that last act.  Ms. Cramer complained three days after quitting, at which point the employer investigated.  The man was eventually terminated.  The court said under these facts, no reasonable jury could conclude this was a hostile work environment.  The young worker appealed, but the decision was upheld. 

The problem with a court arriving at this conclusion is that whether a workplace is "hostile" is a fact question.  Fact questions should be resolved by a jury.  The court is saying that no "reasonable" jury could conclude these facts support a finding that this workplace was hostile to female workers.  But, even in making that thresshold finding, the court is essentially making a fact finding.  And, surely, many reasonable jurors could conclude this was a hostile work environment.  

The reporters for the Journal Constitution also found cases in which managers and owners routinely used the n-word in referring to African-American workers.  Yet, the court still granted summary judgment.  

As one plaintiff lawyer commented, it is almost as if the courts are imposing a higher burden on discrimination claimants.  There is almost a presumption that discrimination cases lack merit and need to show more than other cases.  Ms. Cramer says today that she feels like she was robbed when her case was dismissed without a trial.  Yes, indeed.  That is exactly what many of my clients have said. 

Capt. William Swenson received the Medal of Honor this week from Pres. Obama.  Capt. Swenson received his award for the same battle in which LCPL Dakota Meyer received his Medal of Honor.  I previously wrote about Dakota Meyer here.  Capt. Swenson exposed himself to enemy fire repeatedly to bring back soldiers trapped in an ambush.  Capt. Swenson even draped the orange panel marker across his body to signal to the helicopter where to land.  I am sure he did that because that was the only way to secure the panel marker against the fierce draft of the helicopter blades.  Panel markers are a brightly colored cloth measuring some 3 feet by 5 feet.  See CBS news story.  

That is the good news.  The bad news is that Capt. Swenson and Dakota Meyer received little support from their battalion headquarters.  Various military publications have been writing about this battle for a couple of years, now.  Two members of the battalion staff received written reprimands.  Letters of reprimand will generally end careers.  

Capt. Swenson criticized the lack of support.  He tried to call for air support (presumably air strikes of some sort) and artillery support but he received none for some 90 minutes.  Capt. Swenson later criticized the rules of engagement which he felt limited better support for his men.  Probably due to his criticism, his Medal of Honor paperwork was "lost."  I do not believe it was lost.  Medal of Honor packets are very rare.  Such a packet would have very high visibility at every staff level.  Simply applying for a MOH award is a big deal.  But, the Army is not monolithic, as some might think.  The wrong done Capt. Swenson was fixed and he has now received his much deserved award.  

William Swenson, retired since 2011, remains unemployed.  I am amazed a Medal of Honor winner cannot find employment.  Who would not want to hire someone with the character of a Capt. Swenson?

Lawyers are not the best negotiators, even though we are always negotiating something.  When I get into settlement talks, I am often surprised at how many folks do not ever negotiate.  I often use the example of yard sales and tell clients a settlement is like a yard sale, but with bigger numbers.  Some clients then tell me they always pay the asking price at a yard sale.  Ok…..

The Republicans, the Democrats and the President may not be skilled negotiators either.  Since, we are now in Day X of the shutdown.  The Republican position will worsen everyday as the shut down more and more affects everyday folks.  It is hard to hold to principle when folks are visibly suffering due to one’s principle.

In a settlement once, the opening "offer" from the employer’s lawyer was that they would "only" seek $15,000 in attorney’s fees when they win.  That is, they were saying they would seek $15,000 in sanctions when they win.  . . .   The employer wanted drama, but that sort of bullying negotiation tactic only offended the mediator and indicated I was wasting my time.  We left and received a refund on the mediator fee.  In the end, I suppose, the employer was right because we did not settle and we ultimately lost in a motion for summary judgment.  

But, I learned then that negative offers do not fly very far.  The Republican Congress has essentially offered to Pres. Obama that they would not shut down the government if he would agree to negotiate with them about Obamacare.  And, now we are in a shut down.  The Republican’s negative offer did not fly very far.  Bullying tactics do not work well in negotiation.  They tend to invite an equal response. 

In the litigation business, us lawyers should avoid hyperbole.  Unlike the lawyers on television, exagerration is often counter-productive in a real court.  Avoiding hyperbole is even more important when prosecuting an appeal.  The lawyers for State Farm in Bennett v. State Farm Mut. Automobile Ins. Co., No. 13-3047 (6th Cir. 9/24/13) overlooked that basic law school lesson.  

The lawsuit began when Barbara Bennett was walking her dog along a road in Ohio.  She was hit by a car driven by Robert Pastel.  The impact threw her on the hood of the vehicle where she sustained further injuries.  The plaintiff made an argument which the insurance company described as "ridiculous."  Ridiculous or not, the insurance company should have kept its thoughts to itself.  Or better yet, the defendant should have presented its facts and allow the court to draw its own conclusions about the strength of the plaintiff’s arguments.  

Was Ms. Bennett an "occupant" of the vehicle when she sustained the further injuries?  if so, then she would be entitled to coverage for those additional injuries.   If not an occupant, then she would not receive coverage for those further injuries.  State Farm branded the argument that she was an occupant of the vehicle as "ridiculous."  Well, as the court noted, there are several reasons not to use that term, ranging from civility to not turning off the reader of the brief.  But, said the court, the best reason is that the "ridiculous" argument is actually the correct argument. 

An insurance policy is interpreted according to its terms.  The policy in this case defines "occupying" as "in, on, or entering or alighting from" the vehicle.  The parties stipulated that Ms. Bennett was "on" the hood of the vehicle when she sustained her further injuries.  So, according to the policy, Ms. Bennett was an "occupant" of the vehicle when she sustained her additional injuries.  See the court’s opinion here.  The lower court had granted summary judgment in favor of State Farm on this issue.  So, the Sixth Circuit reversed that decision. 

Apart from the technical interpretation of the insurance policy, it is apparent to me that the Sixth Circuit was offended by the use of the term "ridiculous."  As I explain to my clients from time to time, the words we use may provide temporary satisfaction, but they may well lead to long-term pain.  I am sure some State Farm executive enjoyed seeing that phrase in the brief.  But, now the insurance company must feel some pain which will not go away.  I do not know what Ms. Bennett’s additional injuries included, but they must have been extensive to justify all this litigation.  State Farm will likely be paying out some money for their over-zealousness. 

I previously wrote here about Alma Guzman and how she settled her claims against Southside Independent School District.  This is the first time to my knowledge that an employee loses a motion for summary judgment and then reaches a settlement.  I wondered how that was possible, especially since it sounded like her evidence for retaliation was weak.  The amount was not disclosed then, even though it should be open record.  

Well, I still wonder.  But, now we know she settled for $120,000.  See San Antonio Express News report.  The board said it voted for the settlement to avoid having to defend the appeal.  Sure, an appeal that would cost the board perhaps $10,000 to defend and which the board was very likely to win.  

$120,000 is a very high amount for someone who lost on summary judgment and would then appeal to the pro-employer Fifth Circuit Court of Appeals.  Or, perhaps we should not wonder.  Ms. Guzman was and still is a trustee on the Southside ISD school board.