san antonio employment lawyer

In Myles v. UT Health Science Center at San Antonio, No. 17-00871-XR, 2018 US Dist. LEXIS 5080 (W.D. Tex.), we see an instance in which the state employee successfully sued the state employer for a violation of the Family Medical Leave Act. Normally, a state employer is immune to a suit based on the FMLA, if the allegation is the employee had to stay home to care for herself. The state employer can simply cite its Eleventh Amendment immunity, and the lawsuit would end. But, in this case, the employee also sued the individual managers who were responsible for her termination.

Loretta Myles worked for UTHSC for many years, eventually rising to the manager level in the Human Resources department in 2009. In 2015, she requested FMLA leave to care for her ill husband. He suffered from prostrate cancer. But, Plaintiff’s supervisor, Ann Gaeke told her not to use FMLA leave. At one point, Ms. Gaeke warned Ms. Myles she should start looking for another job. The Plaintiff then took several weeks leave, saying she needed a break from harassment by her supervisor. On her first day back at work, Ms. Gaeke presented the employee with written discipline. Three days later, she was fired.

At the outset, the employer submitted a motion to dismisses citing Eleventh Amendment immunity. The Agency also argued that the two named defendants, Ann Gaeke and Heather Kobbe, are not “employers” as defined in the FMLA. But, the district court pointed to caselaw which did find that “employer” could include a public employee. Looking at Ms. Myles’ leave request as “self-care,” the court rightly noted that the Supreme Court has held that state employees cannot sue the state under the FMLA for taking care of oneself. But, the district court noted that Ms. Gaeke took sufficient actions against the plaintiff that her actions were in controversy. This was more than a supervisor simply carrying out state mandated requirements.

In its reply brief, the state raised the issue of qualified immunity regarding Ms. Gaeke. But, accepting the Plaintiff’s allegations as true, as the court must, the plaintiff has shown sufficient facts to indicate Ms. Gaeke violated clear statutory rights. Therefore, qualified immunity does not apply.

In a recent decision, the Fifth Circuit addressed the turbulent area of non-solicitation agreements. Michelle Moffitt-Johnston used to work for GE Betz, Inc. GE Betz applied chemicals to fuel prior to export. Ms. Moffitt-Johnston signed a non-solicitation agreement with GE Betz during her employment, in which she agreed to not solicit Betz’ customers for up to 18 months after any resignation or termination. After some ten years with GE Betz, Ms. Moffitt-Johnston resigned in 2012. Soon after, she started working for AmSpec Services, a competitor of GE Betz.

GE Betz had installed monitoring software on its worker’s computers. Monitoring logs on Ms. Moffitt-Johnston’s computer showed suspicious activity in the weeks leading up to her resignation. Days after she had announced her departure, someone using her computer downloaded some 27,000 files to an external hard drive. The evidence regarding this download was disputed. Plaintiff Moffitt-Johnston said this was the GE Betz IT department doing back-up, while the employer claimed Ms. Moffitt-Johnston had use of the computer at the time.

GE Betz admitted it had no smoking gun evidence that Ms. Moffitt-Johnston had solicited customers. Instead, it relied on a “mosaic” of evidence. The “mosaic” essentially consisted of AmSpec’s success with the customers who were included in an email from Moffitt-Jounston to AmSpec on her last day at work. But, as the court noted, it is just as likely that those customers worked with AmSpec because their cost was lower. “Many” but not all of Moffitt-Johnston’s former clients went with AmSpec. The Fifth Circuit affirmed the grant of summary judgment on the mis-appropriation of trade secrets claim. For similar reasons, the court also affirmed summary judgment regarding GE Betz’ claim for tortious interference with prospective business relationships.

To recover her attorney fees, Ms. Moffitt-Johnston relied on the Texas Covenants not to Compete Act (Tex.Bus.&Com.C. Sec. 15.50). The act requires several factors before a court could award attorney’s fees to the employee. One of those factors involved whether the employer knew the non-solicitation agreement included no geographic limitation. The GE Betz non-solicitation agreement was silent regarding any geographic limits. And, Texas jurisprudence provides, said the Fifth Circuit, that a limit regarding one’s customer base is reasonable – even if no geographic limit is specified. So, found the appellate court, it was not clear that the employer knew its non-solicitation agreement had no geographic limit. The Fifth Circuit then agreed the employee was not entitled to recover her attorney fees. See the decision in GE Betz, Inc. v. Moffitt-Johnston; AmSpec Services, LLC, No. 15-20008 (5th Cir. 3/13/2-18)  here.

I first wrote about Kolby Listenbee’s lawsuit here. He is suing Texas Christian University because he claims the football staff, including the head coach, bullied him into playing even though he was hurt. Mr. Listenbee was recently cut by the Indianapolis Colts. A website, frogswire.com then posted a satirical post suggesting Mr. Listenbee is fragile and made of glass. Listenbee lashed out in a tweet accusing the TCU Horned Frog fans of being fake fans. His tweet claims that TCU fans only support the team when it is winning. He later deleted that tweet.

Frowgswire appears to be an independent website devoted to Horned Frog sports. See the frogswire post here.

As I mentioned earlier, this is a difficult lawsuit for the plaintiff. Mr. Listenbee is trying to argue the coaches’ conduct toward him harmed his athletic ability. But, here he is competing for a spot on a professional football team. Too, he is basically suing football for being football. To some degree, all coaches apply pressure to players to play with some injuries. To win his lawsuit, Mr. Listenbee will have to show that the TCU coaches went beyond the normal conduct of the average football coach.

A few years ago, Coach Mike Leach was fired by Texas Tech University in part because he sent a player suffering from a concussion to go stand in a dark shed on the practice field. And, of course, many years ago, the famous coach, Woody Hayes was fired after he struck a player. In every field or industry, the norm will vary. Compared to these two cases, the TCU coaching staff was relatively benign. Mr. Listenbee will have to have something better than simple verbal pressure or a guilt trip.

Full disclosure: I graduated from TCU with the class of 1980. Yes, it is true that attendance at games is way up compared to the late 1970’s. But, his lawsuit is not about the fans. It is about football.

Yes, shifting explanations alone can show pretext. A changing explanation for a firing can serve as evidence of lying. Numerous courts have so held. See, e.g., Henderson v. AT&T Corp., 939 F.Supp. 1326, 1338 (S.D. Tex. 1996); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 238-239 (5th Cir. 2015). So, when Pres. Trump initially said he knew nothing about payments to Stormy Daniels and that reporters should ask his lawyer Michael Cohen about those payments, that was one explanation. And, now a month later, he says he did know about the payment of $130,000 to Stormy Daniels and it was not a campaign contribution. This is a new explanation. Now, this is a shifting explanation. As the Fifth Circuit said in Burton, a jury can infer pretext from shifting explanations. Burton, 798 F.3d at 236. A jury need not draw that inference. But, it can do so.

And, as lawyers around the country are saying at this moment, Pres. Trump just made his defense much more difficult.

Mandatory arbitration clauses have become an accepted part of many contracts, when we buy cars, open bank accounts and when we apply for jobs. The mandatory arbitration clauses block employees and consumers from their day in court. But, those clauses are increasingly under attack, according to a recent story in the San Antonio Express News. Arbitration clauses are criticized by the #metoo movement because they are used to hide sexual harassment.

They were also used by Wells Fargo to shield complaints by customers when the bank abused customer data and opened bogus accounts. One state, California, passed a law preventing financial services companies from using arbitration clauses in cases of fraud.

Some companies are re-thinking the use of mandatory arbitration clauses altogether. Microsoft has dropped mandatory arbitration clauses in cases of sexual harassment. Some lawyers here in Texas are advising their corporate clients that mandatory arbitration clauses are not wise. One Dallas lawyer told about a client who lost an arbitration with a supplier. The company then had no avenue for appeal. The losing company was then hit with an arbitration bill of $200,000. Yes, in arbitration, the loser generally pays the expenses of the arbitration. AAA has rules for employment arbitrations in which the employee will not pay the expenses even if s/he loses. But, in most arbitrations, the loser pays the expenses of the arbitration. We tend to think of a lawsuit being free, more or less. The loser in a lawsuit will not be expected to pay the salary of the judge, the court reporter, the court clerk and the bailiff. The losing party will not have to pay for the use of the court room. But, in most arbitrations, someone has to pay those expenses.

One Houston lawyer who advises small automobile dealerships advises his clients to avoid arbitration clauses. He says in the judicial process, you know what to expect. With an arbitrator, you never know quite what to expect. See San Antonio Express News report.

 

Well, the San Antonio court of appeals recognized same sex harassment in Alamo Heights ISD v. Clark and now the Texas Supreme Court has overruled that decision. This has long been a difficult area of law for courts. In the federal court system, the Supreme Court reached a compromise of sorts. It recognized that harassment can be based on gender stereotypes, even if the harassers are not homosexual. See the decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). The Fourth Court of Appeals in Alamo Heights ISD v. Clark reached a similar result. The Fourth Court found there could be harassment under the state version of Title VII based on gender stereotypes that did not involve apparent homosexual conduct or desire.

I previously wrote about the Fourth Court’s decision here. As I noted then, the harassment by Coach Monterrubio included non-stop comments about Coach Clark’s buttocks and breasts. Coach Monterrubio discussed sexual intercourse frequently with Coach Clark and discussed her breasts almost daily. A second coach often joined in. The appeal concerns a plea to the jurisdiction. So, the issue is not whether Coach Clark can win her case, but whether she can simply advance a claim based on gender stereotyping. The Texas Supreme Court gets the last word and they say no, she cannot advance such a claim.

During the oral argument, Justice Guzman was troubled by the lack of obvious homosexual intent by Coach Monterrubio. Justice Guzman claims the jokes and bullying were not based on Coach Clark’s gender. The judge pointed out that Monterrubio’s remarks also suggested Coach Clark should be a stay-at-home mom where she could be “smug, wealthy and snotty.” But, it is disingenuous to argue that comments like these could not be linked to the plaintiff’s gender: “Wow, Coach, I think your boobs are going to pop out of your shirt!” Telling her that her thong underwear and the dimples on her buttocks were visible. And, upon receiving a candle from Coach Clark, Coach Monterrubio said she would make love next to her candle and think about Coach Clark. To claim these sorts of comments are not linked to her gender is a big stretch. This claim concerns a plea to the jurisdiction. The issue is not who wins at trial, but whether the plaintiff advance the claim.

The Texas Supreme Court rightly noted that courts which follow Oncale are divided regarding whether homosexual motive by the harasser is required. But, the Texas Supreme Court found it did not matter whether Coach Monterrubio was motivated by homosexual desire or not. The majority decision finds a paragraph in Oncale to provide two different methods of proof. Although, I read the same paragraph and do not see any sort of proscriptive injunction to lower courts. It is simply the Oncale court providing two possible examples of how a plaintiff could show same sex harassment under Title VII. They are examples, not rules.

The court is then troubled by the lack of any allegation on Coach Clark’s EEOC charge or in her lawsuit that Coach Monterrubio was motivated by homosexual desire. But, really, that was the point of Oncale, that a man could harass another man even though there was no homosexual desire on the part of either man. The Court claims that Oncale says a claim of homosexuality must be “credible.” But, the Oncale court was simply providing one example of how a person could allege same sex harassment and still be protected by Title VII. Indeed, in Oncale, there was no evidence or claim that the harassing men were homosexual. There was no evidence that the male victim was homosexual. Justice Guzman has found a requirement in Oncale that simply is not present.

Yet, there is ample evidence that the female harasser in Alamo Heights ISD v. Clark was focused on the victim’s gender, which is indeed a requirement of Oncale. Justice Guzman has completely mis-interpreted the decision on Oncale. The majority decision also fails to interpret the evidence in the light most favorable to the non-movant. It explicitly looks at the evidence in ways detrimental to her case. It looks for comments that do not suggest sexual motivation. In the end, this is yet another result-oriented decision from the Texas Supreme Court.

The majority decision is quite long, some 66 pages. Any decision that requires those many pages to make a point is stretching credulity. The majority decision devotes some 15 of those 66 pages to rebutting the dissent. See the majority decision here.

The minority decision makes a good point. If a male coach had said those same things to Coach Clark, there would be no doubt he was sexually harassing the young coach. But, because the harasser was female, the employer gets a pass. The dissent also noted that the majority decision fails to construe the facts in favor of the non-movant. It pointed to an incident in which Coach Monterrubio grabbed Clark’s buttocks during a photo shoot. That sort of incident does tend to show possible lesbian behavior. Yet, the majority decision dismissed it as “horseplay.” Justice Guzman drew conclusions when she should have simply allowed this created a factual issue. See the dissent here.

 

You can file a lawsuit about anything. But, that does not mean you should. Yet, it appears a former TCU football player has done just that. Kolby Listenbee, a talented receiver for the TCU football team from 2012 to 2015, has filed suit against Texas Christian University for supposedly pressuring him to play while he was hurt. Mr. Listenbee says Coach Gary Patterson bullied him into playing while he was hurt. Many former TCU players have come to the defense of Coach Patterson, insisting they also played hurt but did not feel forced. See Ft. Worth Star Telegram column by Mac Engel.

Coach Patterson indicates he feels a little hurt by the lawsuit. But, he cannot discuss the lawsuit in any detail. See Star Telegram report. He insists it has always been about the 40 years after graduation, not the 4 years in college. Mr. Listenbee says the coaches forced him to play before he was fully healed. See Ft Worth Star Telegram report. He said his problem was with some coaches, not all of them.

As Mr. Engel explains, this is really a lawsuit against football itself. All football coaches bully to some degree. But, in the world of lawsuits and courts, Mr. Listenbee will have to show someone pointed a gun at his head and made him don his pads. Otherwise, no. Subtle or even not-so-subtle pressure does not count as “forced” to play. If that were true, there would be millions of lawsuits literally overnight against football coaches across the country. In fact, now that I think about it, I have this trick thumb I got when a coach “forced” me to play little league baseball when I was 12…….

What control does an employer have over a worker after work hours and away from the job? In Texas, as in most states, the employer can have a great deal of control, if it wishes. We are an “at will” state in Texas, as are most states. In an at-will state, an employer can fire a worker for any reason, so long as the reason does not violate any discrimination statute. Unless some law exists to limit what the employer can do, the employer can do as it pleases. There is no law that prevents an employer from requiring a worker to do or not do something on his/her own time. So, when Capt. Shawn Ury says the City of San Antonio was wrong to tell him he cannot work a second job after hours, that does not make a lot of sense.

As a union member, he may have different rights. The Collective Bargaining Agreement may have some limitation on what the City can do or not do regarding union member after hours. But, absent some provision in the CBA, the City can indeed tell him he cannot work a second job. The only enforcement mechanism is to discipline him and perhaps, terminate him. But, sure, they an ask him to do anything that does not conflict with discrimination statutes or various penal statutes. According to the San Antonio Express-News, Capt. Ury has had a hearing in front of an arbitrator regarding this issue. The ultimate decision is up to the arbitrator. But, in Texas, yes indeed, an employer can tell an employee not to work a second job – or not to wear a green shirt or whatever-  on his/her off-time. The employee, after all, can always choose to quit. See San Antonio Express News report.

In a recent decision, the Texas Supreme Court found in favor of an employee. And, as far as I know it did not snow last July. In Green v. Dallas County Schools, No. 16-0214 (Tex. 5/12/2017), Paul Green a bus monitor, urinated on himself while on the bus. He was fired and sued. The jury awarded him $41,000 in lost pay and $125,000 in compensatory (emotional suffering) damages. He had been battling congestive heart failure and was taking medications which made him incontinent. Mr. Green had told the bus driver he needed to use a restroom but the driver ignored him. There were no students on the bus. Yet, the driver would not stop a a restroom. He eventually urinated into a bottle and got his pants wet. Three weeks later, he took a week off from work and was fired when he returned. The school said he put the safety of students at risk by peeing into a bottle and was unprofessional.

At trial, the parties agreed the plaintiff suffered from a disability. The only question at trial was whether he was fired because of his disability. The jury found he was. The Court of Appeals reversed and issued a take-nothing judgment, saying there was no evidence the disability caused the incontinence. The Texas Supreme Court, however, found  that the urinary incontinence itself was a disability, because it was a side effect of the underlying condition. The Court noted that at trial, the Plaintiff might not have argued that clearly to the court of appeals, that the incontinence itself was an impairment. But, the plaintiff certainly did mention to the court of appeals that the incontinence was part of his disability.

Dallas County Schools then argued that there was no evidence that the supervisors knew Green suffered from incontinence. But, noted the Supreme Court, Green himself testified that he told the decision-maker that he was taking a “fluid pill” that made him incontinent and that he suffered from a condition that made him urinate involuntarily. In reading the Fifth District’s opinion, the court did seem concerned that there was no “undisputed” evidence connecting the medication to incontinence. It seemed overly concerned about whether the evidence was disputed at trial – as if the evidence might not be disputed at trial. The court of appeals seems more concerned about re-weighing the evidence than in allowing the jury to draw an inference. This appeal strikes me as almost frivolous. It should have been an easy decision to uphold the jury. Some courts of appeals just seem determined to undermine a jury finding. See the Texas Supreme Court decision here.

Autism is becoming more and more common. Folks disagree about why, but all agree we see more and more of the diagnosis. The remarkable thing about persons with autism is they can display brilliance in a wide variety of subjects. Yet, many employers resist hiring persons with autism. The employer who do hire them really appreciate them. Microsoft is one. They hired Christopher with a degree in computer science. They wanted to hire persons with a diagnosis of autism. As one of the hiring managers mentioned, persons with autism are one of the great un-tapped niches in hiring. But, Jenny Lay-Lurie herself also has an impairment. She is deaf.

Ms. Lay-Lurie helped create a different sort of hiring process, one that relies less on the traditional job interview. Job interviews are hard for persons with autism. One symptom of autism is a lack of social skills. For a orson with limited social skills, job interviews reveal little about the person. So, she helped create a hiring program that relies on team building exercises and a vetting process that lasts weeks.

Christopher was hired soon after going through that process. He was not self-concious while performing a set of tasks, rather than the traditional interview. Christopher’s manager was soon impressed with his ability to think outside the box. That is no small skill in the software world.

In April, 2017, 50 large corporations came together to determine how to bring more persons with autism into the work force. The meeting was hosted at SAP in Silicon Valley, California. SAP started its Autism at Work program five years ago and has hired some 128 persons on the spectrum since then. SAP has experienced a 90% retention rate for its employees with autism. One technique that worked for SAP was to assign a onsite mentor for each person on the spectrum. That person has provided the one-on-one coaching persons with autism need. Microsoft also employs mentors for each person on the spectrum.

See CBS news report.