The City of San Antonio runs the city’s airport.  But, the Airport has its own police department.  Until 2009, the airport police department was separate from the San Antonio Police Department.  Airport Police Officer Russell Martin complained about Sgt. Orlandop Battles’ time entries.  In 2008, Officer Martin, a veteran of some 30 plus years in law enforcement, said Sgt. Battles was recording his time inaccurately.  Four days after his complaint, Officer Martin was assigned to work with Sgt. Battles.  A remarkable coincidence.  

Officer Martin asked to not work with Sgt. Battles.  He said working with him would result in "fiscticuffs or shooting."  The officer explained later that he meant the statement as a shock statement to get his supervisor’s attention, not as a threat.  The pairing was changed.  He would not work with Sgt. Battles.  Six months later, having forgotten about the statement, Officer Martin was told he would be terminated for making threats.  As a city employee, Officer Martin appealed the decision to a semi-independent board, the city’s civil commission.  The commission found in favor of the veteran officer, by a vote of 2-1.  But, the City Manager, Sheryl Sculley, overruled the commission’s finding.  She upheld the termination.  Officer Martin filed suit in state district court.  

A year and a half later, he amended his petition to add a federal claim based on 42 U.S.C. §1983.  Sec. 1983 requires that states and local governments provide basic procedural due process when terminating public employees.  The Plaintiff argued that when the City Manager overturned the civil commission’s finding, she did so without affording him a hearing.  She made a paper decision.  She did not first conduct her own hearing before reaching her decision. . 

Some four years after filing suit, the parties have now reached a settlement.  Gilbert Garcia, a San Antonio Express news columinst says it is the largest settlement by the city in recent memory, $225,000.  All because the City Manager ignored the recommendation of her own commission.  And, all because the airport police could not accept one veteran officer making fairly routine complaints about a co-worker.  See San Antonio Express News report here (requires an account).

According to the court’s file, the settlement was actually reached in late July.  It took some three months for the San Antonio City Council to finally address the settlement. The City Council will vote on the settlement the week of Oct. 1.  Settling with public entities takes longer, but the plaintiff does not need to fear the public entity will declare bankruptcy.  Mostly anyway….

The law must reflect the everyday reality of all Americans.  If the law is not grounded in reality, it is no longer "the law."  It becomes something oppressive.  Judge Tate, a long-time judge on the Fifth Circuit, used to say that an appellate decision should make sense to a barber in Ville Platte, Louisiana.  He meant that any decision should be "explainable" to an average person.  The recent decision in EEOC v. Boh Brothers Construction Co., L.L.C., No. 11-30770 (5th Cir. 9/27/13), reflects the reality I understand.  But, I am struck by the two dissents.  The decision is en banc, meaning the entire court heard the case.  The en banc decision overturns the previous decision by a smaller panel of judges.  

In EEOC v. Boh Brothers, the EEOC represented Kerry Woods, an iron worker in New Orleans.  His supervisor, Chuck Wolfe, harassed Mr. Woods because, in Mr. Wolfe’s view, Mr. Woods was not masculine enough.  The EEOC accused the employer of creating a hostile work environment.  The jury found in favor of the plaintiff and awarded compensatory and punitive damages.  Mr. Wolfe supervised a crew of five.  He was vulgar and ribbed his men constantly.  Within a year, Mr. Woods became the supervisor’s primary target.  Mr. Wolfe referred to Woods as "pu–y," "princess," "fa-ot," to or three times a day.  About two or three times a week, when Mr. Woods would bend down to pick something up, supervisor Wolfe would approach him from behind and simulate anal sex.  Mr. Woods felt embarrassed and humiliated.  The supervisor would urinate during work and wave to Woods and smile while doing so.  

According to Mr. Wolfe, some of the teasing started when Mr. Woods said he brought wet wipes with him for lunch.  According to the supervisor, the co-workers teased him about that.  Mr. Wolfe said if you bring that to work, then you should not tell anyone.  He said it was feminine to use wet ones. 

The iron worker complained to the foreman who did nothing.  Within a few months, Mr. Woods asked to see a co-workers’ time sheets.  Mr. Wolfe said that was a terminable offense.  He said Mr. Woods did not fit in.  He was "different."  The supervisor said he was "done with" Mr. Woods.  The iron worker was then transferred.  Mr. Woods then complained to the general superintendent.  The superintendent investigated, found the supervisor’s conduct to be unprofessional, but did not rise to the level of sex harassment.  

A few months later, Boh Brothers laid off Mr. Woods.  He filed a complaint with the EEOC alleging sex harassment.  The jury found in his favor.  The employer appealed.  The first panel overturned the jury verdict, saying there was insufficient evidence to support the jury result.  

The plaintiff then appealed to the en banc court, which upheld the jury verdict.  The majority found that there was sufficient evidence to show that the supervisor harassed Mr. Woods because of his sex, because he was not "manly" enough.  The supervisor, said the majority,  was engaging in sex stereotyping.  Supervisor Wolfe specifically said he targeted Mr. Woods’ masculinity.  The majority opinion noted it had to draw all inferences in favor of the plaintiff.  The majority noted that the seminal decision regarding same sex harassment, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), states that the courts cannot impose a "code of civility" on the workplace.  The court must also display some sensitivity to the social context of the alleged harassment.  But, as the majority noted, this analysis is necessarily fact specific.  Social context is a jury issue, not a judge issue.  

There are three dissents to this decision, but two which cause me some concern.  Two dissents reflect a lack of respect for the role of the jury.  And, in my opinion, these two dissents seek to impose on the jury a wrong-headed view of the all-male workplace.  

In Judge Jones’ dissent, she acknowledges the supervisor’s vulgar and crude remarks.  She claims there is no "hard" proof that the supervisor’s conduct was motivated by gender.  Okay, but the jury was persuaded there was just such evidence.  Judge Jones is drawing no inference in favor of the jury verdict.  In the judge’s view, the majority decision imposes a "speech code" on the public.  In her view, these epithets were not related to sex.  The judge persists in according no deference to the jury’s view that the speech did indeed concern sex.  The judge adds that "everyone" knows what sex stereotyping is.  Opinion, at 48.  She argues that in Mr. Woods’ workplace, crude sexual epithets are very common.  Again, the judge is substituting her opinion for that of the jury.  In our legal system, the jury has the responsibility to find or recognize social norms.  In the civil legal system, used in such countries as France and most of Europe, a well-trained judge has the duty to recognize social norms.  But, in our legal system, inherited from England, that duty belongs to a jury of our peers.  

And, on a personal level, I find her contention to be simply wrong.  I served in the U.S. Army and Army Reserve for 28 years, most of that time in the Infantry.  The Infantry is definitely an all-male environment.  I also worked in several civilian all-male workplaces, from warehouses, to road crews to one month digging ditches for a sprinkler company.  "Crude sexual epithets" were not the norm, at all.  In fact, the sort of harassing exhibited by Chuck Wolfe would get him "run off" or fired from any construction crew I was a part of.  The judge is right that things are more crude on a work crew.  But, too much harassing causes tension.  Tension decreases efficiency.  Decreased efficiency on a work crew will not be tolerated.  Judge Jones displays a simplistic, paternalistic view of the all-male work environment.  Worse, she minimizes the evidence presented at trial.  

For one week, I once worked for Sears delivering major appliances.  My driver and my boss was one of those "crude" persons Judge Jones describes.  His name was Robert or Roberto.  It was hard to hear him in the loud truck.  The cab was not air conditioned, so the windows were always down.  Being the college kid I was, I would always respond with "pardon me" when the noise was too loud.  He loved that.  He would guffaw loudly and proclaim, "no pardon needed!"  I knew even then that, if I had made crude sexual epithets toward other workers, Robert would have "run" me off or had me  fired.  He just would not have tolerated unnecessary tension.  Tension decreases efficiency.  And, yes, even blue collar folks have some manners. 

Judge Smith’s dissent is similar.  He ascribes the majority’s opinion to the realm of "political correctness and social engineering."  Opinion, at 62.  Judge Smith remarkably cites evidence to contradict the jury’s finding.  Judge Smith states that according to certain NFL players, using wet ones is not feminine.  Judge Smith misses the point.  The point is not what is "truly" masculine, but what Chuck Wolfe believed was masculine.  His information is not pertinent.  This information was not part of the trial.  Judge Smith’s dissent strikes me as more political than legal.  The judge concludes that the "hypersensitivity" exhibited by the trial verdict will hasten "cultural decay" and undermines at-will employment.  Again, I do not understand how we get to "cultural decay" in a Title VII lawsuit.  This sounds more like a political argument than a legal one.  See opinion here. 

But, in the end, neither Judge Jones or Judge Smith can explain how a jury, with no apparent stake in the outcome of the trial, arrived at a completely different conclusions about all-male workplaces and blue collar manners. 

The Fourth Circuit overruled a lower court decision and found that "liking" a candidate is protected free speech.  A public sector employee "liked" the losing candidate for Sheriff.  The winning candidate then cleaned house of his opponent’s supporters.  He fired the "likers,"  See ABA Bar Journal report.  But, now the appellate court has overturned the lower court.  The Fourth Circuit noted that "liking" someone on Facebook is the same as typing out the words of support.  See Workplace Prof blog post.  

Yea, no kidding.  I wonder if  the lower court judge has a Facebook account and knows what "like" does on FB…..  

In the recent case of Feist v. State of Louisiana, No. 12-31065, 2013 WL 5178846  (5th Cir. 9/16/13), the appellate court reversed summary judgment in favor of the employer.  The case concerned a lawyer employee who asked for a closer parking space, instead of a space some blocks distant.  Ms. Feist experienced pain in her knee due to osteoarthritis when she would walk to work so far from her car.  The issue on appeal was whether an accommodation should or could address a need not directly related to an essential function of the job.  

The Fifth Circuit found that an accommodation could indeed be required for a need not directly related to an essential function.  The court noted that the language of the ADA states an accommodation can be provided to make the workplace "readily accessible to and usable" by the employee.  29 U.S.C.§12111(9)(A).  EEOC Guidance specifically says that a parking space may constitute a reasonable accommodation.  See 29 C.F.R. Part 1630 App., §1630.2(o).  

The appellate court noted that the lower court incorrectly required the employee to show how the denial of the closer parking space limited her ability to perform her job.  That analysis, said the Feist court, applied the wrong standard.  The ADA is more expansive that that standard.  See the Fifth Circuit opinion here. 

One must wonder indeed how the lower court could ignore such clear statutory language.  

Judge Hughes spoke in a discriminatory way about Jitendra Shah and his lawsuit.  I previously wrote about Judge Hughes’ ex parte  discussion here and here.  The Judge discussed the merits of a lawsuit even though the plaintiff’s lawyer was absent.  And, he made some stereotypical comments about Indians, Caucasians, state government workers and Indian engineers.  And, as I mentioned, the plaintiff asked the judge to recuse himself from the lawsuit.  So, now several months later, the judge had not ruled on the motion to recuse.  No judge likes a motion to recuse.  I am sure Judge Hughes liked it much less when the motion stated his comments were racist. 

So, the plaintiff’s lawyers filed a request with the Fifth Circuit Court of Appeals to remove him from the lawsuit.  The plaintiff went from exercising the "nuclear option" to doubling down on the nuclear option.  See Houston Chronicle report.  Filing a motion to recuse is an extraordinary move to make for any lawyer or party.  

So, a couple of weeks after the plaintiffs filed their request with the Fifth Circuit, Judge Hughes finally ruled on the motion to recuse.  He denied the motion, saying his remarks were taken out of context.  In his order, the Judge discusses his remarks in detail explaining why they were reasonable.   He says he has Indian friends, Indian doctors, law clerks and interns.  It takes him six pages to explain his remarks and justify his decision not to recuse himself.  All this from a judge recently censured by the Fifth Circuit for a racially insensitive remark.  In another lawsuit, Judge Hughes recently made racially insensitive remarks about Koreans.  He explains that remark, suggesting it too was taken out of context. 

The more he tries to explain, the more he indicts himself.  Judge Hughes sounds more and more like the folks I have been required to sue for discrimination.  None of us are perfect.  I believe that none of us are without some bigotry.  But, perhaps, someone with this lack of judgment or self-control should not preside over a discrimination lawsuit. 

I recently wrote about the Texas Attorney General who has filed several high-profile frivolous lawsuits.  See my post here.  He spent close to $4 million on his political lawsuits.  If that was not enough, the Attorney General also lost big in a big lawsuit.  The winning party in a civil rights lawsuit has the right to seek attorney’s fees.  Most civil rights lawsuits include an attorney’s fees provision.  Greg Abbott did not file the re-districting lawsuit arising from the 2011 legislature.  But, he was in charge of defending against that huge lawsuit.  Now, the winners, several civil rights groups and some politicians whose districts were gerrymandered, are said to be requesting some $6 million in attorney’s fees.  See San Antonio Express News report. 

According to the Express News, the AG is attacking the fee requests based on the usual grounds, some fees are repetitive, some fees are connected to losing arguments.  But, in the end, most plaintiffs get 80-90% of what they seek.  The news report also suggests the AG’s office is making yet another frivolous claim: that the victory in a separate lawsuit, one involving a redistricting issue in Alabama represents a win by the AG’s office.  If true, then the AG could supposedly argue that claims related to the Alabama lawsuit failed and the Texas civil rights groups should not receive an award for any work on that lawsuit.  The AG’s office is referring to a separate lawsuit that was appealed to the U.S. Supreme Court, known as Shelby County, Alabama v. Holder.  In this separate lawsuit, the U.S. Supreme Court did strike down the pre-clearance requirement of the Voting Rights Act.  

But, this argument makes no sense.  That decision in Shelby County, Alabama v. Holder, No. 12-96 (2013) is called "Shelby County, Alabama" because it started with a lawsuit against Shelby County, Alabama.  See Supreme Court opinion.  The lawsuit was not against Texas and it was not filed by the Texas civil rights groups.  No plaintiff from Texas can ask that the Texas Attorney General pay attorney fees arising from the Alabama case.  

But, I suspect those arguments are for the public.  In reviewing the recent pleadings in the Texas lawsuit, there is no fee request on file yet.  So, there is no AG response, yet.  The only recent pleading is a judgment by the court finding that the plaintiff prevailed on three key issues.  Such a ruling is necessary before the plaintiffs can submit an attorney fee request.  There must first be some finding that they did prevail before they can request an award of attorney fees.

So, the cost of Mr. Abbott’s weak lawsuits and weak defenses will rise to some $10 million.  But, his chances for the governorship have risen in proportion to his costly lawsuits and defenses. 

The lawyer for Bev Kearney, former track coach at the University of Texas, says they will file suit, soon regarding her EEOC complaint.  Coach Kearney won six national titles in track at UT.  Her EEOC complaint alleges discrimination based on race, gender and retaliation.  She was suspended because school officials discovered she had had a relationship with a studenty some ten years prior.  Ms. Mearney then resigned when the school told her they were prepared to terminate her employment.  Coach Kearney alleges she was disciplined for an offense for which other coaches have not suffered similar discipline.  See San Antonio Express news report.  I previously wrote about her EEOC charge here.  

As I mentioned before, Ms. Kearney’s case is higher profile than most EEOC charges, but many discrimination suits follow the same pattern of proof: a minority person is treated differently in how discipline is imposed.  Her case will depend on the extent to which she can show other coaches or other staff members committed the same or similar offense and were treated with more leniency.  These sorts of cases can be difficult.  The employee must show 1) the comparator is truly comparable, and 2) the offense is the same or similar.  And, her case has another twist.  She resigned.  So, there will surely be an issue regarding the extent to which her termination was truly imminent or likely.  I always advise persons not to resign if at all possible.  

Yes, the caselaw recognizes that some situations are so intolerable that a person must quit.  But, the situation must be so bad that a person’s health is at stake, or the treatment is so degrading.  I have seen many cases in which the working conditions became very bad, but the court still found that it was not so bad that the employee truly had to quit.  And, under Title VII, a person is not entitled to any remedies if s/he voluntarily quits.  

So, now her lawyer says they will file suit because the initial six months has elapsed.  After six months, an employee can ask the EEOC for permission to file suit.  

I have written about this before, but it happens so often that it requires emphasis.  As lawyers and a judicial system, some of us just do not "get" summary judgment.  Summary judgment is not about who wins or loses, or rather, it should not be about who wins or loses the lawsuit.  After all, if the plaintiff wins a motion for summary judgment, that simply means the lawsuit will not be dismissed.  The plaintiff mist still put on his/her evidence and persuade a jury.  

Employment & Labor Law Insider, written by Robin Shea, discusses the case of Ray v. Ropes and Gray, a prominent Boston law firm.  Mr. Ray, African-American, was denied partnership at the firm.  Under the firm’s rules, he had to leave the firm after nine years if he was not asked to become a partner.  The firm let him stay in his office for some time while he looked for new employment.  He asked two partners for letters of recommendation, which they agreed to provide.  Mr. Ray then filed a complaint with the EEOC.  Mr. Ray, a Harvard Law School graduate, also told Harvard not to deal with Ropes & Gray in recruiting, because they discrimnated.  

Ropes & Gray released the EEOC determination finding that the firm was not guilty of discrimination.  The two partners then refused to produce the two letters of recommendation.  The EEOC issued a separate finding that there appeared to be evidence of retaliation by the firm.  The blog, Above the Law, reported Mr. Ray’s allegations and his request that Harvard cease allowing Ropes & Gray to recruit Harvard graduates.  The firm sent a copy of the first finding about discrimination (but not the second finding about retaliation) to Above the Law.  Etc.  Etc.  

Long story short, the judge granted summary judgment regarding the discrimination claim, but denied summary judgment regarding the retaliation claim.  Employment & Labor Law Insider then discusses whether the judge’s decision was correct or not.  Ms. Shea essentially disagrees with the judge’s finding.  She believes the discrimination claim and the retaliation claim should have been dismissed.  

Ms. Shea discusses the findings as though they were final.  See her blog post here.  Indeed, she discusses the evidence in such detail that she is almost weighing the evidence.  She even finds this case to be a "close call" but ultimately siding with the employer.  But, Ms. Shea misses the point of summary judgment, as I believe many lawyers and judges do.  The court should not weigh evidence when reviewing a motion for summary judgment.  On the contrary, the court should indulge every available inference in favor of the non-movant.  As in baseball where ties favor the runner, in summary judgment any close calls should favor the non-movant.  Summary judgment as originally envisioned, is to dismiss the clearly weak cases, not those which are merely "close calls."   "Summary" means quick, as in "let’s avoid a needless trial." 

Summary judgment has become so common, so prevalent, that it has in many ways replaced the importance of a jury finding.  Where once a jury finding was newsworthy, now a judge’s denial of summary judgment is worthy of discussion and analysis.  And, yet, the plaintiff must still win his trial.  Mr. Ray is not at all assured of success at trial.  But, since jury trials have become so rare, winning summary judgment motions are often now the mark of success.   

Tom Brown, confined to a wheel chair, formerly taught sociology at Northeast Lakeview College.  He sued ACCD and settled his case for $95,000.  Mr. Brown alleged that the district required him to teach in a classroom that was not accessible to his wheel chair and the school would not provide him help to move a heavy computer cart.  The district denied him tenure in 2010 and then terminated him.   He had worked at the college from 2006 to 2011.  See San Antonio Express News report. 

Mr. Brown filed suit himself (known as suing pro se), but acquired a lawyer later during his lawsuit.  Mr. Brown sued Alamo Community College District along with the individual managers, who he believed violated the Americans with Disabilities Act.  The court rightly dismissed the individual managers as defendants.  There is no need to sue the individual manager.  A Title VII or an ADA lawsuit is against the entity itself.  That makes sense, since an individual manager can be overruled by a higher level manager.  Instead of guessing who made the ultimate decision, a plaintiff in a Title VII or ADA lawsuit only needs to sue the entity as a whole.

During the lawsuit, the plaintiff asked the judge for permission to file an amended Complaint.  He wrote the motion himself, without apparent aid of a lawyer.  He mentions how difficult it is to find employment lawyers in San Antonio.  True.  There are only a handful of us who do employment cases on a regular basis.  It would have even even more difficutl for Mr. Brown, now living in Virginia, to locate a lawyer.  I presume he moved there for a job, after being terminated by ACCD.  His situation is emblematic of what many plaintiffs experience as they simulatenously try to find new work and find a lawyer in a relatively obscure area of law. 

The court did not dismiss the ADA claims.  Presumably when the employer saw those claims remained, they decided to speak to the plaintiff about settling.  And, the plaintiff wisely continued his search for a lawyer and found someone out of town.   So, one pro se plaintiff succeeded, but most do not.  

Maj. Nidal Hasan killed a dozen soldiers and one civilian as they worked on paperwork or waited for their turn in preparation for a deployment to Afghanistan.  I previously wrote about the incident here and here.  A jury of senior Army officers deliberated for two hours and found that he should be put to death, that he should forfeit all pay and allowances and that he be dismissed from the service.  See San Antonio Express news report.  

In his attack, Maj. Hasan expended hundreds of rounds.  He shot many victims multiple times.  There was hatred behind his actions.  He targeted persons in uniform, but shot Michael Cahill, a civilian worker, when Mr. Cahill attacked the shooter with a chair.   That was the sort of people Maj. Hasan killed, people selfless enough to risk everything for one slim chance at helping another soldier.  The victims were much the better persons than their killer.  Maj. Hasan, however he cloaks his actions, was just another thug with a pistol.  As Maj. Hasan’s Imam said, his actions were not the actions of a good Moslem.  Or, as Salma would have said, this was not "islam."  Salma would say that the same way we would describe some heinous act as "not Christian."  The names change, but the values remain the same. 

Months before the trial, the Army psychiatrist insisted on growing a beard in accordance with his interpretation of Islamic rules.  He was, however, still a member of the US Army.  The Army does not allow full beards.  So, that turned into one long battle over a beard.  Eventually the judge who ordered that Maj. Hasan be forcibly shaven, was replaced.  Maj. Hasan was then allowed to grow his beard. 

Maj. Hasan represented himself during his trial.  He fired his lawyers just a couple of weeks before the trial.  This was his second or third set of lawyers.  His lawyers said he was trying to become a martyr.  He did not put up much of a defense.  He never cross-examined a witness.  He proclaimed himself the shooter on the first day of trial.  When his turn came to put on evidence, he called no witness.  He may have been trying to lose.  Or, he may be narcissistic enough that he would not bother himself with the actions of persons he considers beneath him.  

Automatic appeals will follow that will take years.  The military form of criminal justice provides substantial safeguards for criminal service members.  Indeed, unless a jury finds different, convicted service members retain their rank and pay until their sentence is concluded.  Maj. Hasan’s jury would take that away.  The man who swore an oath to help his fellow soldier will lose all benefits of that oath.  Even if he retains his life.