San Antonio employment law

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Employers do some crazy things, sometimes. One employer in New Braunfels has been paying “volunteers” with gift cards and fabric. Quilt Haus and Way to Sew have been paying some workers with gift cards payable to the store itself. The workers would receive one gift card valued at $8 for each hour of work. The worker could then use the card to buy fabric. The store referred to the workers as “volunteers.” But, as I understand the Fair Labor Standards act, there is no such thing as a volunteer worker. If the employer accepts your work, then the employer must pay for it.

Apparently, some of the workers complained. Because, the Department of Labor investigated. DOL then found violations. And, now, DOL has now filed suit. See San Antonio Express News report.

It is not that hard to get legal advice about wages. The DOL and Texas Workforce Commission both provide free advice regarding how to pay employees. A person might have to wait on the phone a bit, but it is free. And, an employer can point to that advice later if the business is investigated. I expect these two businesses did not seek legal advice. This method of payment is nowhere close to kosher.

You know, there is nothing good about racism. Of course. But, we seem to have become lynching parties whenever the least evidence of racism rears its ugly head. The new Mary Poppins movie has been attacked because it supposedly revives a racist portion of the famous Julie Andrews version. In the original movie, Mary Poppins dons a bit of black on her face when she dances with the chimney sweeps. I have always assumed that was soot from chimneys. Chimney sweeps, after all, probably accumulate a good bit of soot when sweeping out nineteenth century chimneys.

But, apparently I was wrong. A professor wrote an opinion piece, published by the New York Times which asserts that  Mary Poppins donned blackface. See USA Today article here. Those of us who regularly seek to prove actual racism in court cringe. The very start of showing racism requires a showing that there is no other explanation for the racist act other than racism. Yet, here is Ms. Poppins dancing with chimney sweeps. Obviously, she might have soot on her face due to chimneys, not due to mocking black persons.

Gov. Northam provides an additional example. Someone appeared in some vile pictures. But, until we know the rest of the story, we do not know if it was racism or not. It is not likely, but possible that someone was mocking a Klansman, not admiring a Klansman. It is possible, perhaps likely that Gov. Northam was donning blackface to imitate Michael Jackson in a dance contest. He says he did. Until we hear why the man was wearing the blackface, we do not know … why he was wearing blackface. I think some folks assume wearing blackface means mocking black persons. That does seem a likely explanation, but until we hear some more definitive proof, other explanations remain viable.

Liam Neeson has recently been accused of being racist when he recounted the story of his reaction when a close female friend was raped by a black man 40 years ago. The actor went roaming the streets for a week with a crowbar hoping to get into a fight with a “black bastard.” Neeson hoped, it seems, some evil black man would reveal himself by starting a fight. Good Morning America’s Robin Roberts suggested he was racist for asking his friend 40 years ago the man’s skin color. No, he responded, he asked other questions about the rapist, other than just his skin color. See CNN news report.

Racists are just everywhere, some folks believe. But, those apparent racist actions are the beginning of the conversation, not the end. We need more information. Like Northam, Poppins, and now Neeson, we must first ask for that alternative explanation for what otherwise appears to be a racist act.

That alternative explanation is the heart of every discrimination case. Will it hold water, or not? We need more information. Otherwise, we risk making it so easy to show discrimination in the public arena, that no one will believe actual racism in the court arena.

In 1700 to about 1750, the English authorities offered bounties for Catholic priests and bishops. Bishops were flat against the law. There could be no Catholic bishop in Ireland. Regarding priests, the law was that if they violated any of the many restrictions on priests, then they could be arrested and punished. The English authorities offered 25£ for priests and 50£ for a bishop. Those were princely sums in those days. Persons known as priest-hunters became well-known. The priest-hunter would have to travel to Dublin to collect his bounty. Some priest-hunters became well known.

Toward the end of the priest bounties, the Catholic parishioners reached a point where if they would see one of the well-known priest-hunters on the streets of Dublin, one would shout, “There’s a priest-hunter!” Instantly, a crowd would form. The hunter became the hunted. He had to sprint for his very life. Crowds of angry Catholics would spring after the vile priest hunter.

We have become that crowd on the streets of Dublin. Someone shouts, “There’s a racist!” and instantly, a crowd of pursuers forms. But, unlike the priest-hunters, the racist has not identified himself by collecting a bounty from the Dublin authorities. We think the person is a racist. We do not know the person is a racist.

I am glad racism has incurred the opprobrium it deserves. But, a racist is just not that apparent. Proving racism is complicated and it should probably remain complicated.

Clients and potential clients often ask me at some point what is the value of his/her case? What little they know of its value is colored by the ubiquitous Personal Injury lawyer ads. Or, sometimes, their knowledge is influenced by what some brother-in-law knows, or thinks he knows. So, some clients, a small percentage, expect wealth and riches.

Employment cases are not car wreck cases. The employment discrimination statutes provide for specific types of damages. Title VII and the Texas law equivalent, Texas Commission on Human Rights Act, provide for lost pay and benefits, compensatory damages, punitive damages and costs of prosecuting the lawsuit which includes attorney’s fees. There is nothing more. There is not, for example, such a thing as an award for the value of the home you lost or the divorce the job loss caused. Those sorts of losses do help show emotional suffering. But, no, there will be no dollar for dollar award regarding a lost home. I wish there were. The judge cannot award anything not allowed by statute.

Lost pay and benefits include more than may meet the eye. It includes lost pay of course. It includes all lost benefits. So, save that COBRA letter that records the dollar amount paid by the employer for your medical insurance. You need a record of what the employer paid for your insurance, not for what you paid.

Lost benefits include retirement benefits. Terminations involve different calculations than failure to promote. Lost promotions or raises can affect how much a 401K would grow. Some workers can “guesstimate” how much their retirement would have grown if they had received a particular step increase. If the client cannot make an estimate, then an economist may be necessary.

Lost bonuses count. Of course, the employer will claim bonuses are never guaranteed. They may even point to policies which provide bonuses are never certain and depend on financial success each fiscal year. But, if the actual practice suggests that bonuses are likely and that failure to pay a bonus may have been motivated by discriminatory animus, then there will be a fact issue regarding bonuses. If there is a factual issue, then the issue should be be decided by a judge or jury.

Arriving at an amount for compensatory damages is complicated. Compensatory damages describes damages intended to compensate a person for emotional suffering. There is no simple way to measure emotional suffering. The actual amount to be awarded is up to a jury. Most juries do not award anything for emotional suffering.

Punitive damages are even more rare than emotional suffering type damages.

Of course, all these amounts are subject to caps. Title VII and the the TCHR Act are capped at various levels based on number of employees. The highest cap is $300,000. So, even the largest employer in the country will never see a larger award than $300,000 in compensatory damages.

Once in a blue moon, we might see a jury award a million dollars for compensatory damages. But, that amount will be reduced by a judge to the appropriate cap level.

But, no matter how small, surely it is better that an errant employer pay something for violating the law and causing so much harm.

The ADA Amendments Act was passed in 2008 and became effective in 2009. Only now are we seeing cases interpreting those important changes. One significant change concerns the “regarded as” claim. The old ADA protected persons who were fired because they were “regarded as” disabled. But, the old ADA also required that to merit that protection, the person had to suffer from an actual impairment. That ruling meant many persons in the early stages of an illness or impairment were not protected. Their disability simply had not progressed far enough. So, the ADA Amendments Act broadened the requirement of “regarded as” to also include persons who were simply perceived as impaired. The ADAAA removed the requirement that a person suffer from an actual impairment that limits a major life activity.

In Mesa v. City of San Antonio, No. SA-17-CV-654 (W.D. Tex. 8/16/2018), the Court addressed a critical component of this new “regarded as” claim. How serious does the impairment have to be before the impairment can become the subject of a “regarded as” claim? In Mesa, the worker suffered from a shoulder injury. He recovered from that shoulder injury within eight days. In moving for summary judgment, the employer argued that the condition was “transitory and minor.” The ADAAA provides that the protections of the “regarded as” claim do not extend to conditions which are transitory and minor. The court in Mesa first addressed the question regarding who must show that an impairment is transitory and minor. The court reviewed the pertinent regulations and found this status to be a defense, so the burden lay with the defendant to show a condition was transitory or minor. So, in moving for summary judgment, the employer must show no genuine issue of material fact regarding the status of transitory and minor.

The Act defines an impairment as one which lasts six months or longer. Mr. Mesa’s condition apparently lasted less than six months. But, what is “minor”? The court noted that the employer focused on the wrong analysis in its motion for summary judgment. The employer argued in its motion for summary judgment that there was no evidence that any person at CPS Energy, the employer, viewed Mr. Mesa’s impairment as anything but transitory and minor. That was the wrong inquiry, said the Court.

The proper question was whether the employer believed the employee had an impairment which objectively could be viewed as transitory and minor. That is, was the employer aware of an impairment, which objectively could constitute a brief illness or injury? The court was saying that the employee must show not that the employer viewed the health condition as transitory and minor, but must instead show 1) that the employer viewed the impairment as a particular diagnosis, 2) which objectively may last longer than six months or is otherwise not minor.

The court engaged in detailed review of the facts and noted that CPS Energy took actions which did show they believed the employee had a shoulder injury which persisted, even after apparent treatment. They required him to take a fitness-for-duty examination, for example, even after receiving a medical report. Management also considered requiring the employee to undergo an MRI. Management took several steps even after initial assurances of his recovery. And, as the court noted, the employee was removed from work via an ambulance when the injury first occurred. All those facts suggest an impairment which was something more than minor.So, even though the condition may have lasted less than six months, it was something more than minor.

The court then noted that shoulder injuries as a matter of course, are unpredictable. It found that the plaintiff had presented adequate evidence to show genuine issue of fact whether the injury was not “minor” and whether he had been placed on unpaid leave due to his perceived injury. See the decision here.

If it was not so serious, the story in Tarrant County, Texas would be humorous. A small community near Ft. Worth has a City Councilman who is Muslim. Shahid Shafi has served as a Republican Councilman in Southlake since 2014. He is a doctor. He has served as delegate to state Republican conventions. In July, 2018, he was appointed vice chairman of the Tarrant County Republican Party. Within days of that appointment, a couple of precinct chairs have sought his removal. Dorrie O’Brien and others believe Dr. Shafi represents an attempt by the Muslim Brotherhood organization to infiltrate the Republican Party. Based on no evidence, these precinct chairpersons believe Dr. Shafi seeks too impose the dreaded Sharia law in Texas (and the hordes will multiply!) and that he has some unspecified connection to Jihadi groups. I previously wrote about this story here.

In Facebook posts, Ms. O’Brien has complained often about his appointment as Vice-chairman. She has offered no evidence, says the Texas Tribune, of her assertions about Dr. Shafi. Ms. O’Brien and another precinct chair, Dale Attebery, have asked an anti-Muslim activist, John Guandolo, to come to Tarrant County and conduct training on the dangers of Sharia law. His training will occur on Dec. 29. A vote regarding Dr. Shafi will be held on Jan. 10, 2019. See Texas Tribune story here.

Dr. Shafi came to this country from Pakistan. He has been here 29 years. He says the Republican Party’s belief in small government appeals to him, especially after coming from a country like Pakistan. Leading Republicans in the state have affirmed their support for the doctor. It is ironic that the Muslims who come here are probably the ones most familiar with the horror of actual jihadis. Persons like Ms. O’Brien are attacking the wrong Moslems.

As I have mentioned here, I am continually appalled at the bigotry applied to persons who happen to be Moslem. It is comparable to blaming Presbyterians for acts committed by Methodists. Yes, they are all Moslem, but within the very large Muslim faith, there are infinite variations of adherence to one’s faith and one’s interpretation of that faith. It is silly to generalize all some 1.5 billion Moslems based on the actions of some hundreds in Iraq and Afghanistan. That sort of ignorance would be laughable, were it not so serious.

it happens more and more. A jilted lover posts pictures of his former girlfriend on the internet. Only this former lover kept doing it over and over. Mark J. Uhlenbrock was a pilot for United Airlines. He formed a relationship with a stewardess who uses the name Jane Doe. The relationship started in 2002 and lasted about four years. He took some pictures of her in the nude with her permission – and some pictures without permission. The stewardess obtained restraining orders against him here in Bexar County in 2009 and again in 2011. He just kept posting the pictures. The pilot settled her case against him for $110,000. But, the harassment did not stop.

In 2013, the stewardess went to their mutual employer, United Airlines. But, the employer failed to take appropriate action, says the EEOC. The EEOC filed suit recently against United Airlines for failing to do something about the pilot’s conduct. In 2015, Mr. Uhlenbrock was arrested by the FBI and his computers were seized. United granted him ing-term disability in January, 2016. He received the long-term disability payments until July, 2016. In June, 2016, he pleaded guilty in federal court to internet stalking. He was sentenced to 41 months in prison for the offense.

Mr. Uhlenbrock said he had an addiction to posting nude photos on the internet. See San Antonio Express News report here. The EEOC appears to be arguing that United kept the pilot on its payroll several months after he pleaded guilty to stalking and that the employer took no steps to stop him from posting the pictures. The challenge in these sorts of cases is showing the employer had a duty to address behavior which occurred off-premises. This may become the exemplar for such cases, since the relationship clearly started on company premises on company time. At least one of the pictures was of Ms. Doe in her flight attendant uniform.

Even worse, the federal violations continued long after the stewardess complained. Ms. Doe filed suit in state court in Bexar County, and complained to management long before the EEOC filed this new lawsuit. At one point, United said it could not take action because the harassment was not related to work. The captain never received any discipline for his conduct. See Texas Lawyer report. The lawsuit is filed as Suit No. 18-CV-817 in the Western District.

Pres. Trump and AG Sessions started a policy separating children from their parents at the border last April. It lasted just a few weeks, but resulted in some 2500 children separated form their children. The policy was changed and the federal government was able to re-unify most of the families. But, there are still several hundred children who are apart from some 500 parents.A federal judge in San Diego has presided over a lawsuit filed by the American Civil Liberties Union, the ACLU. The challenge now is those 500 parents were deported. This is a transient, mobile population. It will be very difficult to find them.

In a recent filing, the Department of Justice unwisely said the ACLU could locate these parents. DOJ said with their network of NGO’s. volunteers and other resources, the ACLU could find the parents. The DOJ was apparently trying to make a joke. The ACLU has no such network. It is more or less a national law firm, composed of individual lawyers in various cities. “NGO” refers to non-governmental organizations. The ACLU has no “network” of NGO’s. DOJ knows that. I can only think they intended the comment as a joke of some sort.

The judge, Dana Sabraw, said to be a dignified sort of judge, did not rise to the bait. He simply told the DOJ that this problem, created by the Trump administration must be solved by the Trump Administration. Judge Sabraw said that sort of plan was not “acceptable.”

It is never wise to make jokes about major problems. The judge will remember that callous humor later when DOJ might wish to be taken seriously. See AP news report here.

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.

Pres. Trump has dis-invited the Philadelphia Eagles to the White House. The reigning Super Bowl champs are typically invited to the White House. The President indicated it was because of a disagreement over whether to stand for the national anthem at football games. See CBS news report. The President issued a statement that said:

“They disagree with their president because he insists that they proudly stand for the National Anthem, hand on heart, in honor of the great men and women of our military and the people of our country,”

As a retired member of that great military, all I can say is that is what I believed when I was in first grade, too. In fact, I attended a military school in first grade and absolutely believed that standing straight and tall during the national anthem meant I was a good patriot. Now, I know better. I grew up during the 60’s and 70’s. I was perfectly okay with protests for the right reason. Now, a lifelong student of history, I can point to dozens of examples of great patriots who protested in favor of sincere beliefs. Many of those protests would later go on to be vindicated. But, I guess it is better politics to think like a first grader……

P.S. You have not lived until you have sung the national anthem in a war zone. It was a surreal experience. Singing it at football games now almost seems to trivialize the song.

To mark Memorial Day, I would also like to recall two area San Antonio heroes. They were both fiends of mine. They both died in war zones back in 2005 and 2006 when I was deployed myself.

SSGT Clinton Newman was a fine soldier. He was a bright young man in the 321st Civil Affairs Brigade during my brief time with the 321st here in San Antonio. One of the nice things about being in your hometown unit is that I actually ran into a member of my unit at a movie. I ran into SSGT Newman when he was at a movie with his girl and I was with mine. He was one of the few 321st soldiers still here back in late 2003 and early 2004, while most of the unit was deployed. See a biographical sketch to learn more about someone who would have been a fine citizen of San Antonio and was already an excellent soldier.

I served with Albert E. Smart way back in the 2/141 Infantry Battalion in Corpus Christi. We were young company commanders together. Albert was gung-ho and always smiling. Years later, I was quite surprised to see him in the 321st CA Brigade here in San Antonio. He deployed in 2005 and passed away in Kuwait on the way to Afghanistan. It was such a shock that someone so young, in such good physical shape would pass away from an illness. I think Heaven is in much better physical shape now that Albert is there. And, I expect there are a great many more smiles among its citizens. See a memorial here to learn more about my buddy, Albert.