Some judges are exceedingly difficult. Judge Lynn Hughes in Houston seems to consistently press folks’ buttons. Most recently, he has barred a female Assistant U.S. Attorney from his court. Tina Ansari has appeared in Judge Hughes’ court twice in the past few weeks. She was excused from the court by Judge Hughes both times right after she announced her name for the court reporter. Meaning right after saying hello, the judge told her to leave. The U.S. Attorney himself then appeared before Judge Hughes and insisted he must assign prosecutors, not the Judge. The Judge then insisted he had been slighted in an appeal regarding Judge Hughes a few years ago.

A few years ago, the U.S. Attorney appealed a ruling by the Judge and mentioned his remarks about women. In those remarks, the Judge had apparently said in the old days, they did not allow “girls” to practice law in the courtroom. His remark could have been interpreted in a couple of different ways. In any event, Judge Hughes took offense at how his remark was mentioned by the US Attorney’s Office. See Houston Chronicle report here.

These issues seem to follow Judge Hughes. Litigation is difficult enough. To be fair, in every lawsuit, we work with people. And, the judge is human, after all. … Judge Hughes, it seems, is more human than many of his peers.

Judge Lynn Hughes in the Southern District of Texas is a difficult judge. He harangues attorneys who appear before him. He cancels discovery, even though the federal rules of civil procedure provide otherwise. He is a difficult judge on several levels. In the case of USA v. Swenson, No. 17-20131 (5th Cir. 7/3/2018), the US Attorney prosecuted an adoption agency for fraud. Shortly before trial, the US Attorney dumped thousands of documents on the defense. There were indications that the prosecution had been hiding or withholding documents until the defense knew to ask for those specific documents. The day before trial, the parties had another conference in front of Judge Hughes. The prosecution brought yet another large pdf file of documents to the hearing. The prosecutor apologized to the court, saying she had overlooked the documents.

Judge Hughes fussed at the prosecutor. He said she is supposed to know what she is doing. He said it was better in the old days, because the prosecutors wore dark suits and blue ties. They did not let “girls” do this in the old days. The case had been continued three time already. So, the judge dismissed the case with prejudice.

On appeal, the Fifth Circuit panel found there was no Brady violation here, meaning the prosecutor did not intentionally withhold material that would have helped the defense. It noted that the district court did not explain why one more continuance – the first continuance to be requested by the prosecutor  – would not suffice. The Fifth Circuit reversed the dismissal and remanded the matter back to the district court. But, remarkably, the appellate court remanded the case not back to the same judge, but to the chief judge to re-assign the case to a different judge. That is, the court remanded the case to a different judge, not back to Judge Hughes. See the decision here.

Reassigning to a different judge is as clear a rebuke as judges get. I expect it was the comment about “girls” that concerned the court of appeals. But, Judge Hughes is always a concern for the Fifth Circuit.

In a recent decision, the Fifth Circuit overruled Judge Lynn Hughes, again. The Fifth Circuit reversed Judge Hughes’ grant of summary judgment on several claims. The claims started when Karen D’Onofrio left Vacations to Go, the largest seller of ocean-going cruises in the world. Karen was a sales representative for Vacations. After a couple of years with Vacations. Karen’s husband sustained an injury to his back. About that same time, Michael, her husband, decided he would purchase a franchise with OneCruise, a competitor of Vacations. Karen took some time off to care for Michael. While she was out, she attended a training for OneCruise. She had planned to service her customers while out on FMLA leave. But, she failed to respond to emails. Customers complained. So, Vacations moved her customers to in-house sales reps.

Vacations then erroneously sent an email to customers, including Michael, that Karen no longer worked for Vacations. She had in fact been locked out of her online customer accounts. Karen, believing she had been fired applied for unemployment benefits. After several months, Vacations emailed Karen asking when she would return to work. Karen replied that she would not return, because she thought she had been fired.

Karen sued Vacations in state court for FMLA violations and hostile work envfironment. Vacations counter-sued for breach of a non-compete agreement and added Michael as a defendant. Vacations also sued for fraud, conversion of confidential information, and tortious interference with existing and prospective business relations. The company also removed the suit to federal court and Judge Hughes. Karen moved to voluntarily dismiss her FMLA claims, which Vacations opposed. The district court denied her motion to dismiss. Michael moved to be dismissed form the case, which motion the judge never addressed. Judge Hughes stayed discovery, as he often does. Vacations then moved for summary judgment, which the district court granted.

On appeal, the Fifth Circuit first addressed the evidence for the motion for summary judgment. The employer’s affidavits, noted the appellate court, were conclusory. Various Vacations employees submitted affidavits that concluded Karen had a valid non-compete agreement in place and she had violated it. That was a legal conclusion, said the court. Employees also speculated as to the damages, and did not explain how they arrived at their assessment of the damages. The employees did not even claim to have firsthand knowledge of the damages. The plaintiff’s objections to the affidavits should have been sustained, said the court. They were not competent evidence for summary judgment.

The Fifth Circuit found the district court had granted summary judgment on Karen’s hostile work environment claim without giving her notice that such a claim was before the court. The distrioct court granted summary judgment as to her hostile work environment claim sue sponte from the bench.

The district court quashed discovery, but would allow discovery by specific order. There was no order in which Judge Hughes allowed Karen to conduct discovery as to her hostile work environment claim. With no discovery on the claim, she was not prepared when the court ruled from the bench that it would grant summary judgment as to her hostile work environment claim. The court reversed the granting of summary judgment as to Karen’s hostile work environment claim.

The appellate court did affirm summary judgment as to Karen’s FMLA claim. Vacations had given her a choice. She could work from home and service existing customers or she could take a straight FMLA leave with no work. She chose to work from home. That choice prevents any claim that Vacations interfered with her FMLA rights.

Regarding the breach of a non-compete agreement, the Fifth Circuit found the agreement to be overbroad. The agreement had no limits, which means it was, in effect an industry wide agreement. Texas law forbids industry wide non-compete agreements. It had no geographic limit and it applied to any job for any competitor. The agreement would apply not just to any other cruise line, but to any travel company. The non-compete agreement applied too broadly, said the Fifth Circuit. The Fifth Circuit remanded this claim back to the district court for proceedings to determine the geographic limits Karen worked and the customers she serviced. The court could not determine what the limitations of the non-compete agreement were without more information about to whom she sold the product.

Regarding Vacations’ other claims, the Fifth Circuit found there was substantial issue of fact, such that summary judgment was not appropriate. The district court also incredibly awarded attorney’s fees against the D’Onofrios in the amount of $174,000. The higher court reversed that award. Judge Hughes has been reversed yet again.

See the decision in D’Onofrio v. Vacation Publications, No. 16-20628 (4/23/2018) here.

The Fifth Circuit reversed a summary judgment, but the district court ruling was by Judge Lynn Hughes in Houston. So, perhaps that is not so surprising, after all. I have written about Judge Hughes before here and here. In the case of Cannon v. Jacobs Field Services North America, Inc., No. 15-20127 (5th Cir. 1/13/2016), Michael A. Cannon was an engineer. He applied for a job as a field engineer with Jacobs Field Services. He was offered a job, at which point, the company sent him for a pre-employment physical exam. Mr. Cannon told the company doctor about his inoperable form rotator cuff. The injury prevented him from lifting his right arm above his head. He was given a drug test which he passed. he had taken the pain killer, Tramadol in the past but not recently. The doctor cleared Mr. Cannon for the job, so long as he did not drive any company vehicles, did not lift or push anything heavier than 10 pounds, and he did not work with his hands above shoulder level.

Jacobs did not accept these limitations. Instead, it decided that he was not physically capable of performing the duties of the position. HR contacted the work site, where the technical services manager said Mr. Cannon could not perform the functions of the job. Yet, at the same time, HR also notified Mr. Cannon that Jacobs only had concerns that he could not raise his right hand above his head. He would have difficulty climbing ladders, he was told. Mr. Cannon contacted OSHA to see if there might be a problem. He also made a video showing him climbing a ladder with three point contact. He also provided medical information about his condition.

No one at Jacobs contacted his doctors to ask for clarification. Instead, the company rescinded the job offer. Mr. Cannon filed suit. He alleged he was fired for disability based discrimination and because he was regarded as impaired. The employer moved for summary judgment. Judge Hughes granted the motion. Judge Hughes, however, relied on pre-Amercans with Disabilities Amendment Act decisions to find he was not regarded as disabled. As the Fifth Circuit pointed out, the new standard is not whether a person is regarded as having a major life activity which is impaired, but whether he is is simply regarded as having a physical impairment. The new standard sets a lower bar. The ADAAA has been in effect since September, 2009. It is surprising indeed that Judge Hughes would not catch this error.

The lower court construed Mr. Cannon’s testimony that he compensates for his weak right arm with greater use of his left arm to mean that the engineer was not impaired at all. The court rightly noted that is an extreme interpretation of his testimony and not in keeping with summary judgment analysis.

The lower court also said Mr. Cannon did not suffer from a disability. Yet, there was substantial evidence that he could not lift heavy objects. Lifting and reaching are major life activities, said the court. The plaintiff was clearly impaired in those areas. As the court noted, this was not even disputed.

The lower court even disregarded the fact that he passed the drug test with the observation that he passed the test “this time.” Noted the court, there was no evidence that 1) he was still using the pain killer, and 2) that even if he used it, that he used it conjunction with work or on a work site. The district court assumed facts in favor of the movant, not against the movant.

Judge Hughes found that driving was an essential function of the job. He ruled that Mr. Cannon could not perform this essential function. The work sites were spread out over the countryside. But, Mr. Cannon disputed that driving was an essential function.  Even so, there was adequate evidence that he could indeed drive.

There was a factual dispute about whether Mr. Cannon could climb a ladder with accommodation. But, said the court, since the company ended the interactive process early, there was a “thin”record regarding his ability to do so or not.

Regarding the issue of pretext, the court noted that Jacobs offered no nondiscriminatory reason for withdrawing the job offer. It never claimed, for example, that it had to reduce its work force or that income had decreased. The simple timing suggests the job offer was withdrawn due to concerns about his impairment.

And, so Judge Hughes is again reversed.

I have written about Judge Lynn Hughes a couple of times. See my prior posts here and here. It is unfortunate, but some judges, even U.S. District Judges, just do not understand their duties. He has been overruled again. This time, the suit is a large qui tam lawsuit. In the case of Little v. Shell Exploration, No. 14-20156 (5th Cir. 2.23.2015), the Fifth Circuit had previously ruled that Judge Hughes applied an overly broad definition of public disclosure.The higher court found that in using this over broad analysis,  Judge Hughes improperly ruled that plaintiffs (known as “relators” in qui tam actions) could not claim to have brought to light fraud by Shell. The lower court ruled that the fraud had already become part of the public discourse through prior public disclosures. In qui tam actions, the relators must be the first to expose fraud, waste or abuse.

The higher court ruled in that first appeal that Judge Hughes should re-look that analysis in light of a more narrow definition of public disclocures.

On remand following the first appeal, Judge Hughes essentially sat on Shell’s motion for summary judgment for a year and then issued a brief, five page opinion granting the motion, again. On appeal, for the second appeal, the higher court concludes that Judge Hughes did not follow its guidance in its first opinion regarding the False Claims Act and improperly granted summary judgment in favor of Shell. So, on this the second appeal, the Fifth Circuit re-assignes the matter to another judge. In the world of courts and litigation, that is as substantial a knock on a judge as we will see.

Remarkably, the lower court ignored a legal finding by the higher court. It reached the same result it did the first time and on the same grounds as the first time. The Fifth Circuit expressly found that evidence in two categories was not in the public domain. That is, for purposes of the False Claims Act (FCA), that information was not part of the public discussion and the persons bringing the FCA claim should be recognized for bringing to light unlawful activities by Shell. And, in construing a motion for summary judgment, the lower court should have looked at the facts in the light most favorable to Relators (plaintiffs) Little and Arnold. It should have concluded this information was not part of the public domain. Not only did the district court not observe a legal finding by the higher court, it also disregarded summary judgment law. It is quite unusual for any judge to ignore a clear legal finding from a higher court.

The Fifth Circuit noted that the district court’s summary judgment findings were very brief when compared to the lengthy briefing submitted by both sides. Judge Hughes’ order included few citations to the record or to legal precedent. And, he did not follow the clear legal guidance on how to assess whether information is truly in the public domain or not. So, the higher court took the extraordinary remedy of re-assigning the case to a different district judge. After eight years, the case is still not past the point at which public disclosure is recognized as such, or not. The Fifth Circuit is not happy with Judge Hughes. See the decision here.

I previously wrote about Judge Lynn Hughes of the Southern District of Texas here and here.  Again, he has ordered no discovery in a lawsuit that could not function without discovery.  And, again, he has been overruled by the Fifth Circuit Court of Appeals.  See opinion here.  The Fifth Circuit seems to be very familiar with Judge Hughes’ "extra-legal" orders.  But, they seem unable to deal with his strange orders, other than overruling them. 

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. 

Lilly Ledbetter sued her employer for pay disparities which had occurred over years.   She worked for Goodyear Tire and Rubber for decades.  She sued based on the Equal Pay Act, a federal statute.  She lost.  The U.S. Supreme Court found that she sued too late.  The statute of limitations required her to sue within 180 days of each violation.  See opinion.  The Court could have simply required her to sue within 180 days of the last violation.  The problem for victims of pay disparities is that they, like Ms. Ledbetter, may not know until the very end of their career that that have been paid less for the same work.  So, in response to the Ledbetter v. Goodyear decision, Congress passed the Lilly Ledbetter Fair Pay Act to make it easier for women to file suit if they learn late about a pay disparity.  

Pay rates are remarkably difficult to investigate.  Co-workers rarely discuss their pay.  The employer will never publish pay rates.  So, if a victim learns about pay issues, it is  often accidental.  Congress understood this when it passed the statute. 

Since that act was passed, some 40 states have passed laws amending their state version of the Equal Pay Act to allow for late discoveries of pay disparities.  Texas was set to become the 43rd state to pass such a law.  Bipartisan support moved a bill through the recent Texas legislature seeking to amend the Texas version of the Equal Pay Act.   But, Gov. Perry vetoed the bill.  Disingenuously, he said there was already a federal law in place.  

Yes, there is a federal law already in effect.  But, for various reasons, many workers are unable or prefer not file suit in federal court.  Federal court can be very unfriendly to discrimination victims.  Federal deadlines to file suit are tighter.  Just three years ago, there was the long drawn-out case of Judge Kent in Houston and Galveston, who was sexually assaulting his own female employees.  See my post about Judge Kent.  Now, there is Judge Hughes in Houston who made possibly  racist comments about a plaintiff in a discrimination case.  See my post about Judge Hughes.  So, yes, federal court can be very unfriendly to discrimination claims.  State venue provides an important option. 

But, Gov. Perry has seen fit to limit options for victims of pay discrimination. 

In a poorly thought out opinion, Judge Lynnn Hughes of the Southern District of Texas ruled earlier this year that breastfeeding is not related to pregnancy.  See my prior post on this ruling.  A female employee had been fired because she was planning to breastfeed at work.  Women are protected from discrimination based on pregnancy.  But, Judge Hughes found that breastfeeding is not related to pregnancy or any particular gender.  His decision was met with some derision at the time.

Well, the Fifth Circuit Court of Appeals has overruled Judge Hughes.  The higher court found that lactation is a medical condition related to pregnancy.  See the Fifth Circuit decision in EEOC v. Houston Funding II  here.  The upper court looked at various dictionaries to reach its conclusion.  Yea, they had to some deep legal research to work this out…..

Judge Hughes is the same Houston judge who previously said that a reference to Pres. Obama and fried chicken was not related to race.  See my prior post about that case.  Judge Hughes was also overturned regarding that decision.  In that Fifth Circuit decision, the appellate court chastised Judge Hughes for his ruling. 

The Texas Civil Rights Project, a civil rights advocacy law firm, has filed a complaint about Judge Lynn Hughes.  I previously wrote about Judge Hughes here and here.  The TCRP filed a complaint with the Fifth Circuit Court of Appeals alleging Judge Hughes uttered racist statements when he discussed a case filed by an Indian-American.  See ABA Bar Journal report