san antonio employment lawyers

Judge Fred Biery is a wonderful asset to the San Antonio legal community. Recently, he demonstrated again why he is the right judge at the right time. One of the costliest and most time-consuming lawsuits in recent memory is the House Canary v. Quicken Loans, Inc., No. SA-18-CV-0519 (W.D. Tex. 8/14/2018) lawsuit. A few months ago, a Bexar County jury awarded $700 million to the tech startup, House Canary. The lawsuit stems from a subsidiary of Quicken Loans which had asked House Canary to develop software. The subsidiary sued for fraud and breach of contract. Quicken Loans lost in one of the largest jury verdicts in Bexar County ever. See San Antonio Business Journal report here.

Quicken Loans then filed a related lawsuit in federal court. House Canary moved to dismiss or to transfer the suit to Michigan. At issue are jurisdiction, venue, and opposition to injunctive relief, all the normal requisites for time-consuming and expensive litigation. Judge Biery often speaks to the increased cost of lawsuits. His father and uncle were well known trial lawyers in San Antonio. Judge Biery is qualified to speak to the increased litigation costs in today’s society.

So, he called for a status conference, likely anticipating yet another drawn out legal battle. He wanted the parties to act in a civil manner. He expects zealous advocacy, he said, but no “elementary school behavior.” He expects the parties to produce all information requested in discovery. Lay the cards on the table, he ordered. The Court observed, and the respective lawyers surely know, that all would be revealed anyway if the case is appealed and then remanded. It would be more efficient to first produce what you have.

He asked the parties (i.e. the respective lawyers) to avoid “shrill” pleadings. He warned them that he has in past lawsuits ordered opposing lawyers who violated his rules to sit in timeout in the rotunda of the courthouse. He ordered another set of lawyers to kiss each other on the lips in front of the Alamo with cameras present. He discussed indirectly the change in litigation in San Antonio. Once the city was home to some 300 lawyers, all of whom, knew each other. They did not need court orders, because once they reached an agreement, they would abide by that agreement. He seemed then to point the finger at “Yankee” lawyers, that is lawyers moving into the state from the north and western regions of the country. He helped to make his point by including a map of Texas with arrows pointing at the state boundaries from Oklahoma and New Mexico, indicating migration from those states and beyond. He reminded us of a saying by Hobart Huson, a former San Antonio lawyer and historian, “Texans, you are guarding the wrong river.”

The Judge is certainly correct that us lawyers are more litigious than our predecessors. But, perhaps, if we start guarding the right river, we can find a balance. See Judge Biery’s order here.

A frequent issue in discrimination cases concerns when does the time for filing a complaint start? The answer can be complicated when a teacher, for example, is notified her contract will not be renewed the next school year. Do her six months to file start when she is told she will not be re-hired, or does it start at the end of the school year, when the decision takes effect? In Reyes v. San Felipe Del Rio Consolidated ISD, No. 14-17-00488, 2018 WL 1176487 (Tex.App. San Antonio 3/7/2018), the Court said the time to file started when the school district board told the teacher it had accepted the Superintendent’s proposal to terminate her employment.

Situations involving public school teachers are particularly confusing, because they are entitled to a hearing before the school board. Before a teacher’s termination becomes final, she can ask for a hearing before the school board. Ms. Reyes had such a hearing. She lost, as do most teachers. She was the told by letter dated Jan. 18, 2012 that her employment would be terminated. According to the letter, her employment was terminated effective Jan. 11, 2012. She then filed her charge of discrimination on May 23, 2012. She later filed suit. The district filed a plea to the jurisdiction, which is comparable to a motion to dismiss. It is based on the pleadings. The district argued that she had missed her deadline to file her charge. The district argued that her deadline started not in January, 2012, but in August, 2011 whene was first told the board had accepted the Superintendent’s recommendation that she be terminated.

The court looked at the Texas Education Code which explains the appeal process for public school teachers. The court found that under the Texas Commission on Human Rights Act, Tex. Lab.C. Sec. 21.202, the key event occurred when a decision was made, not when that decision took effect. The focus of the statute, said the court, is on the unlawful decision. So, her six months started in August, 2011, not in January, 2012. And, the court affirmed the dismissal of her case. See the decision here.

Ouch. The plaintiff made a rational decision to look to the result of her hearing before the school board. And, she lost because she relied on the wrong event. She might have the possibility of filing in federal court. But, because she filed her charge some ten months after August, 2011, that possibility would also would be problematic.

Plaintiffs in employment cases often contend they are paid less than other, similarly situated co-workers. The Defendant then argues no, the plaintiff does not truly know that. Many times, the court will side with the employer and find that the employee is relying on speculation when s/he claims to “know.” Since, many plaintiffs are relying on hearsay when they make that sort of a claim. They often rely on water cooler talk.

In Sims v. Wells Fargo Bank, N.A., No. H-16-3212, 2018 U.S. Distilled. LEXIS 19896 (S.D. Tex. 2018), the court sided with the employee. Rochelle Sims was an African-American branch manager. A male business banking specialist transferred into Ms. Sims’ branch. In reviewing his performance, the plaintiff realized the male subordinate was paid more than she was. She did some research and saw that other male, non-African-American  branch managers were paid more than she was.

Ms. Sims spoke with HR and her supervisor about the pay gap. Her supervisor told her she should step down from the manager position. If not, Wells Fargo would “eat her lunch.” The plaintiff did that and transferred to a different branch. Soon, the male business banking specialist who had come into her old branch was promoted to branch manager. Ms. Sims filed a complaint with he EEOC and filed suit. The employer moved for summary judgment. Wells Fargo argued that Ms. Sim’s claim that she had been paid less than male, non-African-American branch managers had been based on speculation.

The court, however, noted that the employer relied on a conclusory assertion in claiming Sims was not paid more than her counter-parts. The bank offered no evidence, said the court. It relied on inadmissible hearsay to claim her pay was comparable to her male counter-parts. So, it denied summary judgment on the plaintiff’s claim regarding a pay gap. See the decision here.

Texas, like most states, adopted the worker’s compensation scheme decades ago. Worker’s compensation essentially provides coverage for workers for on-the-job injuries. In return for workers compensation, workers give up the right to sue for simple negligence. But, worker’s compensation does not apply to gross negligence if death results. Gross negligence is worse than simple negligence. Gross negligence involves an employer proceeding with a known risk. It requires the employer to have some knowledge and awareness of the dangerous condition. To show gross negligence, a plaintiff must prove by clear and convincing evidence that: (1) when viewed objectively from the defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.

In Goodyear Tire & Rubber Co. v. Rogers, 2017 WL 3776837 (Tex.App. Dallas 8/31/2017), the court addressed the question whether the presence of asbestos was known to the employer. The jury found the asbestos was an extreme risk known to the employer. The jury fund the employer grossly negligent in exposing its workers to asbestos. Carl Rogers, who worked at the Goodyear plant from 1994 to 2004 contracted mesothelioma, from which he died in 2008 at the age of 60. Goodyear argued that the probability of developing mesothelioma under these circumstances was only 1 in 45,000. The employer agreed that that low probability was too remote to qualify as gross negligence. The court disagreed. The court found that statistical evidence of  serious injury is not necessary to show the objective element of gross negligence. In any event, added the court, there was some evidence that the probability was much higher.

Too, the jury need not consider only the probability. It can also consider the employer’s acts and omissions. In this case, there was evidence that the employer turned a “blind eye” to the risk of mesothelioma and the magnitude of  the risk was great because mesothelioma leads to certain death. See the decision here.

 

The Texas State Office of Administrative Hearings provides a critical function to our state. The SOAH provides administrative judges in cases involving certifications and licenses for doctors, police officers and others. It is essential that the SOAH judges appear to be impartial for the process to work. But, recently, the SOAH process broke down completely. The Texas Medical Board licenses physicians in Texas. The TMB brought a case against a Dr. Robert Van Boven. The Administrative Judge, Hunter Burkhalter, found in favor of the doctor. It does not occur often that TMB loses, but this time, they did.

The accusations concerned three patients who accused Dr. Van Boven of improper touching. Judge Burkhalter found the evidence lacking. The TMB could have appealed, or it could accept the decision. TMB chose to accept the decision. But, while accepting the decision, the TMB chair read a statement stating that different judge might have reached a different result. Duh. That seems obvious. Different judges will indeed reach different results in close cases. The chair probably meant he believed Judge Burkhalter had a bias. And as part of his statement, the chair, Sharif Zaafran, questioned Judge Burkhalter’s impartiality.

But, the TMB was not satisfied. It sent a letter to SOAH accusing Judge Burkhalter of bias and questioned his ability to decide cases involving sexual misconduct impartially. The letter cited an overheard conversation between Judge Burkhalter during an unrelated hearing that super model Kate Upton was attractive. TMB argued in the letter that Judge Burkhalter’s decision in the Van Boven case was wrong, that it disregard certain evidence, even though they chose not to appeal the decision.

The CEO of TMB asked to meet with the Chief Administrative Judge of SOAH. The TMB and the SOAH are both state agencies. The meeting took place. Soon after, the Chief Judge of SOAH issued a letter to Judge Burkhalter reciting the concerns expressed by the head of TMB. In short, the SOAH questioned the judge’s ability and impartiality, even though the TMB chose not to appeal his decision.

Judge Burkhalter was fired soon after. See Austin Chronicle report. So much for an independent judiciary.

 

The Equal Employment Opportunity Commission has field suit agains Zachry Industrial for discriminating against persons with disabilities. According to the San Antonio Express News, Zachry Industrial operates a refinery in Pascagoula, Mississippi and it has fired workers after they notified their employer of a disability. Zachry Industrial is headquartered here in San Antonio. See San Antonio Express News report. Zachry Industrial employs 900 employees here in San Antonio and some 22,000 employees world wide.

At least three workers were fired after notifying their employer they suffered from some impairment. Of course, the employer should not fire persons who report a new impairment. Instead, the employer is required to engage in a discussion about accommodations the person might need and what accommodations the employer can provide. The lawsuit was filed in the Southern District of Mississippi.

Zachry Industrial was previously sued for discrimination based on gender. See EEOC press release here. In that lawsuit, the EEOC said the employer fired a woman after she complained about discrimination. Zachry Industrial was formerly known as Zachary Construction Corporation.

In an employment lawsuit, can a lawyer representing an employee contact employees who no longer work for the employer? What if the former employees are former managers? This is important since in most employment cases, the only witnesses are current or former employees.

The answer is yes. The Northern District of Texas so decided in Orchestrate HR v. Trombetta, 178 F.Supp.3d 476, 486 (N.D.Tex. 4/18/2016). In this suit, Orchestrate HR sued its former employee, Anthony Trombetta and his new employer, The Borden-Perlman Insurance Agency, Inc., for claims arising from a non-compete agreement. Mr. Trombetta’s lawyer asked Plaintiff’s lawyer if she could contact certain employees, who no longer worked for Orchestrate. The Plaintiff’s lawyer said no. Defendant’s lawyer contacted them anyway. Plaintiff moved for sanctions. The court found that no disciplinary or ethical rule prohibits a lawyer from contacting a former employee. The court noted this finding applies to management as well as lower ranking employees.

But, because the attorney violated her agreement not to contact the witnesses, the court still sanctioned the lawyer and her client. The court ruled that certain information must be provided to the Plaintiffs and he ordered the parties to confer regarding how much would be necessary for an award of attorney’s fees.

There are some places a woman should not work. Places that are so offensive, most women would not survive long enough to make the job worthwhile. A Congressman’s office should not be one of those places. Yet, Congressman Farenthold’s office has been very disrespectful toward women. Laurene Greene field her lawsuit against the Congressman in 2014. When she filed her suit against the Mr. Farenthold, she accused him of suggesting she participate in threesome with the Congressman and a female lobbyist. In response to the accusation, Mr. Farenthold simply replied the third person was not a lobbyist. Rep. Farenthold had an explosive temper. he would loudly sweep his arm across his desk when angry.

The office refrigerator was filled with beer. Happy hour would begin at 4:30, “beer-thirty,” said his aides. Male and female aides would discuss strip clubs. The female aides would discuss who had sent them pictures of their genitals that day. Talk about female reporter’s breast sizes were common. The talk was lewd, angry at times or simply rude. Congressman Farenthold lead the way in the discussions. The Congressman would often drink to excess. When he would attend government functions, staff would have to accompany him on “redhead patrol,” to keep him out of trouble. He told another aide that he was having sexual fantasies about Ms. Greene. Lauren Greene was then another aide. She complained and was soon afterward fired. See New York Times report.

Prior to becoming a Congressman in 2010, Rep. Farenthold had been a conservative radio talk show host. He would also buy domain names and re-sell them. In 2014, the same year as Ms. Greene’s lawsuit, he sold a domain that included a sexually explicit act in the name. He was photographed at a party wearing a duck print costume standing next to scantily clad women.

Yes, that is a good example of how not to run professional office, that respects the rights of female workers.

Ummmmm, no. Don Trump. Jr. has claimed attorney client privilege in refusing to answer questions about a conversation he had with then Candidate Trump in 2016. There was a meeting at Trump Tower in June 2016 between Donald Trump, Sr., Donald, Jr., and a lawyer. Early on, Donald, Jr. said it was a brief meeting between just the three of them. Now, it turns out there were eight folks present, including Paul Manafort and Jared Kushner. Now we know the meeting occurred only because Donald, Jr. expected to receive dirt on Hillary Clinton from Russian operatives. Donald, Jr. refused to answer questions about the meeting, citing attorney client privilege. He was appearing before the House Intelligence Committee, this week. See Politico report.

There are a few problems with his claim of attorney client privilege. First, he is not a lawyer. The attorney is bound by the attorney client privilege, not the client. The client, assuming it was Donald Jr. (but it would have been any of the eight persons in the room), can say whatever he wishes about what was said. Second, when a second person is in the room – in addition to the lawyer – then the attorney client privilege is waived. It is gone. It does not exist. If you as a client allow a second person to hear what you have to say to your lawyer, then you have waived the attorney client privilege. The point of the attorney client privilege is to ensure free flow of communication from the client to the lawyer, not the other way around. The client can share what he said to his lawyer anytime.

That Donald, Jr. would cite a bogus privilege in response to questions suggests ) he did not actually consult with a lawyer before deciding to cite the attorney client privilege, and 2) he has something to hide.

Coach Bev Kearney’s lawsuit has returned back to the trial court. She will soon start deposing various officials, including former Coach Mack Brown. She also plans to depose former school president, Bill Powers and former Athletic Director, DeLoss Dodds.

I previously wrote about her lawsuit here. Coach Kearney alleges she received harsher discipline in 2013 because she is black. Coach Kearney claims that other white coaches were given second chances for a similar offense. The coach was fired when a relationship with a student came to light. The university has spent $500,000 defending against the lawsuit so far. That is a shame, since the lawyers appear to have committed a serious error during the appeal. But, the university will have additional opportunities to make their point, that comparing discipline will not work when the supervisor in each situation as different.