employment discrimination attorneys

I used to get referrals from the San Antonio Bar Association. These referrals included many clients who had never spoken to a lawyer anywhere. Many of them would call complaining basically about unfair treatment. I still get calls like that, sometimes. They might say, “my employer fired me because they say I did not call in, but I did call in sick.” I have to explain to such potential clients that in Texas, an employer can fire you for the wrong reason or even for a stupid reason.

We have what is known as “at-will” employment. An employer can fire you for any reason (other than various types of discrimination). Just as the employee can quit for any reason. So, yes, even when the employer is wrong, even when you did call in sick and the employer just flat messed up and did not record your call, they can still fire you. I wish that was not true. I wish our state laws were different, that they required some sort of “just cause” for termination. But, most states do not require just cause for a termination. Only some 10 states require a good reason for a termination. In the rest of the states, such as Texas, an employer can fire you for the wrong reason.

College football players are the very definition of the “Big Man on Campus.” But, some football coaches do not want their players thinking they are so big. At Texas Christian University, a football player wanted to cut in line at the on-campus Chick-Fil-A, saying he was a football player. The student tweeted about it. Tasla said she and Lexee did not care and did not let him cut in line. “do we LOOOOK like we care???” she said. Tasla tweeted about it on a TCU twitter feed. Head Coach Gary Patterson saw the tweet and responded, “I agree! Who was it?” See  Ft. Worth Star Telegram report here.

Coach Patterson is known for being strict and for preferring his players conducting themselves accordingly. My guess is some player is running wide sprints after practice today. Probably a freshman player……..

Many plaintiffs complain they are treated differently than other co-workers in some way. It might be about pay, promotion opportunities, etc. In one case, two plaintiffs said they were treated differently than other peers and that they were subjected to derogatory comments about Italians. In Cicalese v. University of Texas Medical Branch, No. 17-CV-0067, 2018 US Dist. LEXIS 46796 (S.D. Tex. 3/22/2018), the employer filed a Rule 12(b)(6) motion to dismiss. Rule 12(b)(6) addresses the failure to state a claim. Dr. Cicalese was born in Italy. He and his wife both worked for UTMB. His wife, Dr. Rastellini, was also born in Italy and was also a medical doctor. Things went well for the couple the first five years at UTMB. But, when a new dean started working there, things went downhill. The doctors say the new dean targeted them based on their heritage as Italians. The dean, said the plaintiffs, when he first met them, told them they should go back to Italy. He made additional negative comments about Italians.

The dean removed some positions from the two doctors. But, it appears the adverse personnel action which forms the basis of their suit is denial of tenure.

The Plaintiffs’ allegations were not specific. Dr. Rastellini alleged other, unnamed comparators were granted tenure with lesser credentials. But, she did not name them. She did not describe what those lesser credentials looked like. She did name others, but not in the context of comparative employees. The court resurrected the so-called four-part test found in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996), regarding so-called stray remarks. I previously discussed the stray remarks doctrine here regarding a 2015 Fifth Circuit decision. In that decision in Goudeau v. National Oilwell Varco, LP,793 F.3d 470 (5th Cir. 2-15), the court tried to clear up the confusion surrounding the stray remarks doctrine. The point of the 2015 decision was that a remark which shows discriminatory bias on its face has some value, even if they may be old. Even older remarks can serve as evidence of pretext, said the court in 2015.

But in Cicalese, the court relied on Brown to find the remarks too remote in time. But, as the Goudeau court explained, even remarks that might be old in time, provide some relevance to the circumstantial evidence case. They might well be relevant to help show pretext. “In a circumstantial case like this one, in which the discriminatory remarks are just one ingredient in the overall evidentiary mix, we consider the remarks under a “more flexible” standard.” Goodeau, at p. 475.

But, the Southern District (Hanks) made no reference to Goudeau. It did not discuss a more flexible standard. Instead, it relied on the old strict formula that makes little sense. The complaint apparently did not mention the time period in which the three purported remarks were made. But, if a decision-maker makes a remark which shows bias on its face, such a remark would hold some relevance for a very long time period. This decision does appear to be oriented toward reaching a particular result. See the Cicalese decision here.

If a person needs an extended leave for treatment for a bad back, would the ADA require an employer to allow him an extra few months? The Seventh Circuit in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. 9/20/2017), said no. Ray Severson, left work for his full 12 weeks of unpaid leave under the FMLA. He then told his employer he would have to undergo surgery on his back. He needed disc decompression surgery. He would need at least two months off from work for recovery. HR told him his last day would be the last day of FMLA. HR added that he could reapply for his position when his treatment ended. In effect, he was fired. Later, when Mr. Severson recovered and was cleared to return to work, he sued is employer, saying the employer had failed to accommodate him.

The plaintiff argued on appeal that the company could have offered him long-term leave, a light duty job, or reassignment to a vacant job. The Seventh Circuit, however, simply ruled that a long-term leave is not viable/ Not working, said the court, is not a means to fulfill the essential functions of the job. If the employee cannot perform the essential functions of the job, then he is not qualified for the job. The court noted that EEOC guidance expressly states long-term leave is a possible alternative under the ADA, if the leave is of definite duration, is requested in advance, and is likely to enable the worker to return to work. But, the court insists if the EEOC’s position as correct, then the ADA would become a medical leave act. It would supplant the FMLA.

The decision contravenes caselaw in other circuits which have found long-term leave to be a viable option. See, e.g., Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000) (reasserting requirement for individualized analysis but not requiring accommodation because even after one year’s paid leave, followed by five months unpaid leave, plaintiff’s homeopathic physician only offered the vague possibility of returning in one to three more years, and suggested no other work he could do); Cleveland v Fed. Express Corp, No 02-3172, 2003 US App LEXIS 24786, at *13 (6th Cir Nov 28, 2003) (unpublished) (finding leave from August 20, 1997 to February 1998, extended to March of 1998 (6 months total) not unreasonable).

The court did not ask whether long-term leave would have presented an undue hardship for the employer. It found, instead, as a blanket rule, that leave longer than the FMLA leave of three months is per se too long. A blanket rule does not satisfy the individual assessment requirement of the ADA.

Donald Trump’s campaign rally in Louisville, Kentucky in 2016 is again in the news. As I have mentioned here previously here and here, the President and his campaign have been sued for roughing up protesters at that rally. One of the defendants with the President is Mathew Heimbach, a white nationalist. He is chairman of the Traditionalist Worker Party in Indiana. He was charged with assault for his actions at that campaign rally. He plead a form of “no contest” to a charge of disorderly conduct. See CBS news report.The Traditionalist Worker Party describes itself as “fighting” to secure the future of white children. As part of his plea deal, Mr. Heimbach was ordered to attend anger management classes, a suspended jail sentence and ordered to pay a fine.

In the civil lawsuit against Mr. trump. Mr. Heimbach has claimed he was indeed encouraged by Mr. Trump to rough protesters up.

When a person asks for an accommodation, s/he must be specific. A general request to “reduce stress” at the work place will not suffice. In Murray v. Warren Pumps, 821 F.3d 77 (1st Cir. 2016), the plaintiff had a bad back. His work restrictions included not lifting anything over 10 pounds and not sitting, walking or standing too long. The employer and the employee agreed that the employer would not ask him to violate these restrictions and Mr. Murray would monitor the restrictions. The plaintiff believed the employer asked him to violate the work restrictions. Sometimes, he would complain. Sometimes, he would not.

The plaintiff’s job was monitoring work place safety. He had some issues with the employer’s observance work safety. He also expressed dissatisfaction with the things they had asked him to do. He complained that sometimes, he was asked to perform physical activities that violated his work restrictions. The company met with Mr. Murray and suggested he was not happy there. The employer offered him a severance package. He refused to resign and was fired.

The employee filed suit. He argued among other things that the employer failed to accommodate him. The court dismissed Mr. Murray’s claim that he sought breaks “from time to time” as an accommodation. The court found the request to be vague. And, the employee did not explain in what way the employer refused those requests for accommodation.The employee also pointed to an incident when his supervisor asked him to help paint. When the plaintiff said he could not, the supervisor walked away, apparently not happy. But, acknowledged the employee, he was not forced to do the painting and he did in fact do the painting. The employee also discussed a time when the supervisor told him to perform some wiring. Murray said he could not physically do that. The supervisor told him to “get it done somehow.” The employee found someone to perform the wiring. Mr. Murray did not do the wiring himself. Mr. Murray carried the toolbox, which did weigh more than ten pounds.

Another time, the supervisor asked him to oversee a project that involved a lot of walking. Murray acknowledged that he did not complain about this request, and he did not inform the supervisor that this request would require him to violate his work restrictions. Mr. Murray also did seek help from anyone. The supervisor had left for the day. But, Mr. Murray did not seek out any other supervisor for help. In responding to a motion for summary judgment, the plaintiff said he did not have to show he was actually required to violate his work restrictions. It was enough, he argued, that he was “deliberately requested” to violate his work restrictions.

The court found these incidents did not amount to failure to accommodate. The worker, said the court, must alert the employer that its request would require him to violate his medical restrictions. The employer has no duty to “divine” the requested accommodation when the employee makes a “mundane” request for change at the work place. The court felt that the employee understood he was to monitor the requests and let the employer know when something might exceed his capabilities. The employer did provide many accommodations, added the court.

The court makes a good point. In some circumstances, it will not be clear to the employer that a requested action might stress the employee’s work restrictions. Some supervisors will simply forget. They have many things to consider, other than one employee’s physical limitations. It seems to me that often when a situation is confusing, the courts will defer to the employer, especially where, as here, the employer did clearly provide some accommodations. See the decision here.

A critical issue for many persons who suffer any illness is recovery and treatment. That comes as no surprise. Yet, it seems to surprise many courts. The issue often arises when the employee asks to work from home. The employee and his/her doctor may not know to any degree of certainty how long the recovery will last or how the patient will react to particular forms of treatment. In Credeur v. State of Louisiana, No. 16-30658 (5th. Cir. 6/23/2017), the employee was an Assistant Attorney General for the state of Louisiana. Renee Credeur had a kidney transplant. That resulted in complications. She worked from home for several months, apparently without any problem. She then needed more time, so she used her FMLA leave, 12 weeks of unpaid leave on an intermittent basis.

When she still had not recovered, she asked to work from home as an ADA accommodation. A few months later in October, 2013, the employer said she could work from home. Yet, in January, 2014, the AG’s office asked for an accounting of her work hours and certification of her illness. Her three doctors gave different opinions, one stating she could work at the office no more than 3-4 hours per day, a second doctor saying she could work at the office “as tolerated,” and a third doctor saying she should not work at the office for another six months. Ms. Credeur told her employer her endurance was improving and she could now travel via airplane to depositions and attend hearings.

Later,  in February, 2014, Ms. Credeur’s supervisor transferred some of her files due to her reduced work load. And, she was told to use leave time to work from home. That requirement essentially meant she could no longer work from home. In March, 2014, she was given a “last chance” agreement to sign. She had to improve her performance, which referred to her attendance issues and other new, subjective performance issues, or suffer consequences. The “last chance” agreement specifically said she could not work from home.

Ms. Credeur’s condition worsened and she requested to work from home, again. The AG denied her request in August, 2014. At this point, her doctors had said she could not attend hearings, depositions and the like. She provided a medical note for her absences and then returned to work in late August, 2014. Reading between the lines, I interpret that to mean she returned to work because she had to. She worked until December and then resigned. She later filed suit against the AG’s office.

This is one of those rare cases that addresses working from home head on. The court credited the employer’s claim that to work as a litigation attorney, she had to work at the office. The plaintiff responded that she worked from home successfully for many months. She disputed the employer’s claim that face-to-face meetings with co-workers were essential. One supervisor said it was possible to work from home on a temporary basis. While another supervisor testified that to work as part of a team, she needed to work at the office frequently “to bounce ideas” off other members of the team. The court mentioned that Credeur “unilaterally” declared she had no problems when she worked from home earlier. The court also noted that she offered her own “unsupported” testimony that she need not work from the office every day. The panel cited EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc) for the proposition that a plaintiff’s unsupported testimony that she could work from home does not create an issue of material fact. The panel also cited an unpublished decision, Rodriguez v. Mrs. Baird’s Bakery, 111 F.3d 893 (5th Cir. 1997) for the holding that subjective belief that discrimination occurred cannot create a material issue of fact.

The court was troubled by the lack of support for Ms. Credeur’s claims about her job. It also may be that the court felt qualified to discuss the possible limitations for the job of medical malpractice litigation attorney. But, this requirement that Ms. Credeur provide some corroboration of her observations about her job violates most rules of evidence. It also conflicts with the court’s recent decision in recent cases, such as  Heinsohn v. Carabin & Shaw, 832 F.3d 224 (5th Cir. 2016) (cautioning against requiring greater credibility from the plaintiff than from the defendant); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015); Tolan v. Cotton, 134 S.Ct. 1861 (2014) (finding it to be error to disregard the plaintiff’s testimony simply because it is “self-serving”).

A plaintiff is a witness like any other. There is nor rule of evidence that requires the plaintiff to have corroboration. If the court wa snot sure, it should have denied the motion for summary judgment. What the essential functions of a job are is a question for the jury.

The panel devoted much of its opinion to discussing whether the job was capable of working from home or not. It discussed testimony from co-workers that they or others had previously worked from home for brief times. Surely, so much discussion regarding what the testimony says about that issue would suggest that this is a fact question best decided by the jury.

The Fifth Circuit affirmed the grant of summary judgment. There are few cases finding working from home to be a viable accommodation. The few that do find telecommuting to be viable almost always involve a situation in which the telecommuting worked previously for some period of time, but was then cancelled by a new supervisor. See, e.g., DeRosa v. National Envelope Corp., 595 F.3d 99, 104 (2d Cir. 2010) (Acknowledging the employee’s prior accommodation of two years working from home). See the Credeur v. State of Louisiana decision here.

Pres. Trump seriously undercuts his own case when he states publicly that the travel ban currently on appeal is a “watered down” version of the first travel ban. See CNN news report. That is a problem because the first travel ban made specific references to establishing a religion. The second ban removed that language. I wrote about the Fourth Circuit decision here. The DOJ lawyers tried to argue that the travel ban did not target Moslems. The Fourth Circuit were not impressed. They noted the President’s many public statement syndicating the travel ban did indeed target Moslems. The administration has also consistently claimed it was not a “travel ban.”

With his latest remarks, the President has once again undermined his own case.

People new to lawsuits do not appreciate how depositions work. No judge is present at a deposition. So, the lawyers’ behavior, good or bad, depends entirely on them. We see this regarding objections. In front of a jury, we lawyers avoid objections, because the jury will not understand. They may think we are trying to hide something – which sometimes we are. But, with no judge and no jury, its “katy bar the door.” Some lawyers go crazy objecting at depositions. In one case, a lawyer was sanctioned by a New York federal court because she objected some 600 times in one deposition. At some point during the eight hour deposition, the parties called the judge’s office, but the judge could not take the call. He told them to make concise objections that only address the form of the question. But, the lawyer, Amatullah Booth, continued to make frequent objections that appeared to affect the testimony of the witness. Her objections appeared on 400 pages and 83% of the transcript.

Later, the lawyers contacted the judge’s office again. The judge’s instructed Ms. Booth to just mark questions in the transcript which she felt should not be answered. Despite that instruction, Ms. Booth later instructed the witness, a police officer, not to answer those questions. Ms. Booth, an assistant corporate counsel, instructed the witness not to answer 20 times. Magistrate Judge Pollack ordered the City of New York to pay for the deposition. The judge found that Ms. Booth sometimes objected “asked and answered” even thought the question had not been answered. Sometimes, she objected based on relevance and harassment, even though the question was relevant.

Magistrate Judge Pollack cited some examples:

Opposing Counsel: “Did you see yourself on the video?”

Witness: “Yes”

Opposing counsel: “What were you doing?

Booth: “Objection. Vague”

Witness: “What — where?”

Another example:

Booth: “Objection. Asked and answered.”

Opposing counsel: “Asked and answered is not an appropriate objection.”

Booth: “Harassment.”

Opposing counsel: “None of those are.”

Booth: “It is harassment.”

See ABA Bar Journal report. It is harder to behave when no judge and no jury are present.

You know things are serious when advocacy groups and non-profits as diverse as the Christopher & Dana Reeve Foundation, National Disability Rights Network, the NAACP, and the National Association of Social Workers all oppose a bill now pending in Congress. The ADA Education and Reform Act of 2017, sponsored principally by Rep. Ted Poe, (R-Tex), would require a person with a disability who encounters an obstacle to allow 180 days for a business owner or government building to even start to fix an obstacle. Under this proposed bill, if a man in a wheelchair cannot get into a local restaurant because there is no ramp, he must wait 60 days before the restaurant owner to respond to his complaint and then another 120 days before the owner has a legal duty to start to fix the ramp. As if there are not enough delays already. When I worked at Disability Rights of Texas, we had several of these sorts of lawsuits at any given time. Every business owner had plenty of time to correct the access issue. DR Texas would file suit only if the business owner had plenty of time to comply and just refused.

The reality is that the access portion of the ADA has little teeth. A successful plaintiff can win nothing more than fixing the problem and attorney’s fees. Rep. Poe just gained a few new co-sponsors, making passage more likely.

Congressman Poe claims there are abusive lawsuits filed by persons with disabilities. It is true that some persons with disabilities have filed many access lawsuits across the country. But, the Americans with Disabilities Act has been in force since 1990. Business owners have had ample time to comply. If some business still has a doorway that is too narrow, it is because it has chosen to ignore the ADA. And, any such lawsuit results only in improved access. The plaintiffs in access lawsuits cannot sue for damages. There is no provision for damages under the access provisions (known as Title III) of the ADA. Plaintiffs can only sue for fixing the problem and attorney’s fees. See letter opposing the bill by the Consortium for Citizens with Disabilities here.