San Antonio Employment Law Blog

Badgering a Party During Deposition Raises the Stakes

Tom Crane — Thu, 17 May 2012 09:28:46 -0600

Depositions of the employee victim in a discrimination case is a key event. The employee must demonstrate that s/he can tell a coherent story and maintain some composure about one of the most difficult events in his/her life. Deposition strategy for the employer's lawyer essentially is to obtain information from the employee. Often, the defense lawyer specifically seeks information from the employee that is damaging to the employee's case. The defense attorney wants information he can use against you. See Pitts Law comments regarding what to expect at a deposition of the plaintiff.

So, there should be no reason to ask the same question more than once or twice. Asking the same question continuously is "badgering." Badgering is defined in the American Dictionary as asking the same question repeatedly. To ask the same question over and over, knowing what the answer will be is surely someone's definition of insanity. Yet, so many of us do exactly that in a deposition.

More importantly from the defense lawyer's perspective, when you ask overly harassing questions, you remove any hope of eliciting cooperative testimony. Many employees expect some degree of cooperation with their employer in a lawsuit. All bounds may have been crossed, but there will still be some residual expectation for some mininal cooperation. Once even the slightest cooperation appears foregone, the plaintiff will hedge on every question, no matter how innocent. And, in these days when settlement is such a part of every lawsuit, the amount necessary to settle will rise exponentially.

As Mike Maslanka says, the deposition is about the forest, not about the trees. So, us attorney types, we need to relax a little and "take a breather."

No General Right to Copy of Personnel Files

Tom Crane — Tue, 15 May 2012 07:39:03 -0600

In Texas, an employee does not have a right to a copy of one's personnel file once the employee leaves a job. It is not that there is a law prohibiting obtaining a copy. There simply is not a law providing one way or the other. Texas is an at-will state. So, if there is no statute, then private employers can do as they please.

But, if the employee worked for a state, county or local government, the employee could submit a Public Information request pursuant to Texas Government Code Chapter 552. The Public Information Act is the state equivalent of the Freedom of Information Act. If the former state, county or local government employee submits a Public Information Act request, then he/she can obtain a copy of his/her personnel file.

Hard to Explain Jury Verdicts

Tom Crane — Thu, 10 May 2012 10:04:09 -0600

Juries do the craziest things, sometimes. In a trial a few years ago in the Rio Grande Valley, a jury returned a verdict following several days of testimony. The verdict said yes, the employer violated anti-discrimination laws. But, the jury said no, the employee did not suffer any lost pay or compensatory damages (emotional suffering). But, regarding punitive damages, the jury awarded $200,000. The employee apparently suffered from some Depression, so there was some issue regarding whether he truly mitigated his damages - that is, whether he actually could have and did look for comparable employment. But, even with the possible failure to look for work, he should have been awarded well over $50,000 in lost pay.

To award punitive damages but no lost pay or benefits goes against the trend of most juries. In fact, most juries do just the opposite: they might award lost pay but nothing else. And, under some federal caselaw, punitive damages with no emotional suffering type damages may not be supportable. A court of appeals might find the award of punitive damages lacking in evidence and then take away the entire judgment. So, it is a crazy jury verdict.

The jury was deliberating a relatively long time - over two days, so they were probably deadlocked. The crazy verdict may have resulted from compromises to break the deadlock. I do not know what was offered to settle the case - if anything. But, as my former judge used to say, "the worst settlement is better than the best trial." Because, juries do the craziest things....

Texas State Law Claims for Retaliation

Tom Crane — Tue, 08 May 2012 10:08:33 -0600

Many laypersons people are familiar with the retaliation part of Title VII of the Civil Rights Act of 1964. That anti-retaliation provision prohibits retaliation against someone who opposes discrimination. Title VII is a federal statute. Texas is an at-will state. But, even so, Texas does have a few state anti-retaliation statutes.

Texas prohibits reprisal against an employee who reports abuse or neglect of a resident at a nursing home. Texas Health & Safety Code Sec. 242.133. Such a lawsuit must be filed within 90 days of the alleged reprisal.

An employee is protected against being ordered to commit an illegal act. This claim is known as a Sabine Pilot claim, after Sabine Pilot v. Hauck, 687 SW 2d 733( Tex. 1985). The refusal to commit an illegal act must be the sole cause of the termination. I previously discussed an important case regarding the Sabine Pilot action here.

An employee is also protected because he/she served on a jury. Texas Civil Practice & Remedies Code Sec. 122.001. An employee who believes he/she has suffered retaliation due to jury service has two years in which to bring such a claim. The damages are limited, but still, this statute does offer some protection.

Also, state or local government employees are protected if they report violations of law by their employer. See Texas Government Code Sec. 554. The good faith report of the violation of law would need to be made to an appropriate law enforcement agency. This statute is known as the Texas Whistle Blower Statute. It is only available to government employees.

While this list is not completely exhaustive, these are the few protections we Texas employees have which actually have some teeth.

Muslims Served with Distinction

Tom Crane — Fri, 04 May 2012 09:20:58 -0600

I first published this post in 2009. It seems only more relevant now. Anti-Muslim bias is more prevalent than it ought to be. I appreciate who and what attacked us on Sept. 1, 2001. But, my experience has taught me something a bit different.

I served one year in Iraq as an Army officer. I and many of my comrades could not have survived without the service of hard-working Iraqi Muslims. Since returning home, I have been a little surprised to hear the folks here at home denigrate all Muslims. i find that hard to accept. Some Moslems perhaps, but not all. The Moslems I knew in Iraq were wonderful persons, who, I believe, were made better by their faith. Not all, of course. But, some yes. I knew a few Muslims who displayed a pronounced humility and strong sense of decency. It is no more true to say all Muslims do this or all Muslims do that than it is to say all Christians do this or all Christians do that.

I do comment on the state of Iraq and Afghan vets. It would not be fair to fail to mention the hard-working, devout Muslims I knew and enjoyed when I was there. Those Iraqi interpreters were devoted to improving their country. But, unlike us, the Iraqi interpreters could not leave the violence after a year. They would go home to it everyday. Iraqi interpreters often had to sneak their way home to avoid being discovered as US employees. Those Iraqis serving with us were targeted like the US soldiers. But, unlike us, they could not escape the violence. They were paid well. But, no one risks his/her life time and again for mere money. And, no one risks the lives of their families time and again for mere money.

My former translator, Salma, was captured, tortured and killed. Her only crime was that she worked for us. Other interpreters I knew were targeted in their homes and in their neighborhoods. Almost all of our interpreters were Muslim. None tried to kill me or any US soldier. None of our interpreters ever tried to kill anyone. Indirectly, however, they fought the good fight simply by interpreting for us and providing desperately needed cultural advice. They risked all.

The "bad guys" in Iraq, what we referred to as Anti-Iraq Forces, earnestly sought the names of our interpreters. They hated the interpreters. The extremists viewed the interpreters as collaborators. Ansar Al-Sunna captured Salma in 2006 and killed her. Salma was careful, but not careful enough. They posted a picture of myself with Salma, almost gloating over their uncovering of an interpreter. It is ironic that many in the US denigrate all Muslims, while many of the Muslims I knew in Iraq were forced from their jobs, their families and their country due to threats from the Muslim extremists. But, as Salma would say, salam alaikam, "peace be with you."

Hays, McConn Lawyer Files EEOC Charge

Tom Crane — Thu, 03 May 2012 08:01:12 -0600

When faced with harassment of any sort, an employee should complain about it. That bit of advice seems obvious. But, if you are a single mother, or if you simply like your job other than the harassment, that advice is not so simple. Ruth Piller worked as a lawyer at a large Houston law firm. She was the subject of photo-shopped pictures of herself over women wearing bikinis, and sushi. She did not complain abut the emails. She eventually was terminated in October, 2011. See Texas Lawyer report. She has now filed a complaint with the Equal Employment Opportunity Commission regarding her former employer, Hays, McConn, Rice and Pickering.

Her EEOC complaint alleges that Hays, McConn allowed a practice of exposing female partners and associates to sexually harassing conduct. The chief harasser was shareholder Staton M. Childers, says the complaint. Ms. Piller also claims the firm did not provide accommodations for her disability, a neurological disorder. She says she was asked to go out on long-term disabilty leave, when her billable hours became low. She did so and was then terminated after 90 days.

The firm issued a statement saying they wished she had complained during her employment. The firm assures they would have taken some action. They also claim that Ms. Piller joined in the emails and even initiated the conduct about which she now complains. The firm claims they hired an outside investigator to look into the emails and photos. The outside investigator found no violation of law firm policy.

I find it hard to believe any investigator would not find these photos and comments in violation of something. See Houston Press blogs for more detail. According to Houston Press, Mr. Childers sent out salacious, photo-shopped emails about other female employees at the firm.

Victims of discrimination do often try to "go along to get along." It would have been better had she complained at the time. But, much will depend on the context in which she supposedly participated in the objectionable conduct. It is remarkable that the newspaper obtained a copy of her charge. Only the EEOC, the employee and the employer would have a copy. EEOC charges are not public record.

Former Football Players Sue NFL

Tom Crane — Thu, 03 May 2012 07:23:08 -0600

They were household names in the 1960's, 70's and 80's. Now, they are suing the National Football League. Walt Garrison, Bob Lilly, Rayfield Wright, LeeRoy Jordan, Randy White, and others have all joined in a lawsuit against the NFL alleging the league failed to warn them about the risks of head injuries they suffered.

An NFL spokesman denies the allegations, saying they did not mislead anyone about the dangers of professional football. See Texas Lawyer report. Many former players across the country have recently sued the NFL for head injuries.

Employer Cannot Require a Worker to Commit an Illegal Act

Tom Crane — Tue, 01 May 2012 20:09:24 -0600

There is no statute in Texas protecting workers from being forced to commit illegal acts. So, prior to 1985, if your employer told you to rob the local bank and you refused, you could have been fired. But, now there is judge-made law in the form of Sabine Pilot v. Hauck, 687 S.W.2d 733 (1985) that found protection for a worker being forced by an employer to commit an illegal act. See decision. In the 20 years plus since the decision was issued, the courts have established that a Sabine Pilot action applies to laws involving criminal actions. If an employee is asked to commit a criminally illegal act, then that employee is protected from adverse action by the employer. But, we did not know whether this protection would be based on contract or tort law. If it is based on tort, then it would provide for emotional suffering type damages and punitive damages.

Now, we learn that a Sabine Pilot lawsuit is indeed based on tort. According to the recent Texas Supreme Court decision in Safeshred v. Martinez, No. 10-0426 (Tex. 4/20/12), it is based on tort or personal injury actions. So, punitive damages are available. See decision. The Supreme Court, never friendly to plaintiffs, found that to award punitive damages, a plaintiff must show more than the termination for refusal to commit an illegal act. The plaintiff must show specific intent to cause harm to the plaintiff apart from the termination itself. The court provides an example where the employer circulates false rumors about the employee so as to prevent him from finding future employment or makes looking for future employment more difficult than it ought to be. In those situations, says the Supreme Court, the employee would be entitled to seek punitive damages.

So, that means firing an employee for refusing to commit an illegal act is not in itself enough to justify punishment. The Supreme Court is saying there must be something more. For example, in the Martinez case, Louis Martinez drove a truck between San Antonio, Austin, Dallas and Houston everyday for Safeshred. Prior to each haul, he was required to conduct pre-inspections of his truck. He consistently discovered safety violations of his vehicle. But, he was always told to drive the truck anyway. On one trip, he was cited by DPS for improperly secured cargo - because the straps were worn or cut. DPS told him not to drive the truck again. Mr. Martinez explained what happened and showed the citation to Safeshred. But, again he was told to drive. Finally, prior to a fourth trip with the defective truck, the driver objected again to driving with an unsafe load. Mr. Martinez was told to drive the truck or go home. He went home.

The Supreme Court found this evidence of disregard for public safety by Safeshred was not enough. Title VII discrimination cases would require some evidence of malice or "reckless indifference" to the law. I would think Safeshred's repeated indifference to public safety would be enough to justify punitive damages. A jury clearly thought so.

Louis Martinez filed suit. The jury found for the truck driver and awarded him $7,569 in lost wags; $10,000 in mental anguish; and $250,000 in punitive damages. The trial judge reduced the $250,000 to $200,000 due to caps on such damages. The court of appeals reversed the mental anguish finding.

Due to this Texas Supreme Court decision, the $200,000 is removed from the verdict. It is as if the $200,000 was never awarded. A company that committed some dangerous acts, putting motorists in some peril on the highway at least three times will in the end, pay no more that $7,569.

Woman Fired After Donating Kidney

Tom Crane — Thu, 26 Apr 2012 07:02:16 -0600

The facts are dramatic: a woman is fired after she donates a kidney for her boss. But, the situation also describes pretty well how an employment relationship deteriorates. Debbie Stevens, 47 and a mother of two, worked for Atlantic Automotive Group, a large dealership group in New York. Her boss, Jackie Brucia, 61, is a Controller for the Group. Ms. Stevens donated her kidney, so that Ms. Brucia could move up higher on the donee list. Ms. Brucia got her kidney, thanks to Ms. Stevens.

Ms. Stevens went through the surgery in August, 2011. The doctors hit a nerve in her leg, causing complications. She suffered discomfort and digestive problems.. Ms. Stevens returned to work four weeks later. At that time, Ms. Brucia started harassing Ms. Stevens. The boss accused Ms. Stevens of things she did not do. The supervisor became angry when Ms. Stevens took sick leave three days after her return. See News Net5 report. Ms. Brucia accused the employee of being an "actress" apparently regarding her pain. She screamed at her with some frequency.

Ms. Stevens was then demoted and forced to work at a dealership 50 miles away. Ms. Stevens hired lawyers who sent a letter to Atlantic Automotive Group. She was fired days later. See ABC News report.

And, that is how it often goes. The employee misses substantial time, then misses more work and the employer over-reacts.

Consider the Reputation of the Employer's Lawyer

Tom Crane — Tue, 24 Apr 2012 09:49:00 -0600

Dan Schwartz pens an interesitng post at Connecticut Employment Law Blog. He notes that an employer controls the discipline process. The employer decides when or whether to terminate an employee. But, the employer has no control over what lawyer the employee hires. Dan suggests good questions regarding the employee's lawyer: does the lawyer typically accept good cases, or does he accept weaker cases and then puff them up? Does s/he accept cases on pure contingency, or some blended rate, suggesting less than a winner-take-all strategy? Does the plaintiff attorney have a reputation for accepting a quick settlement? These are all valid questions that can affect whether the lawsuit is long and extended or relatively quick and painless.

Speaking as a plaintiff lawyer (mostly), I can say Dan's questions are pertinent. Some plaintiff lawyers are more strident than others. Personalities do matter. Some do accept accept weaker cases. Some (very few) are paid by the hour. Some are paid on a pure contingency basis. And, some do a combination of the two forms of payment.

What questions should the employee ask about the employer's lawyer? Does the defense lawyer drag out the discovery process, so as to bill every last drop of billable hours from the employer? Does the defense lawyer have a reputation for recognizing valid cases and offering reasonable settlement value prior to a summary judgment motion? Does the defense lawyer accept that some discrimination claims have merit? Surprisingly, some defense lawyers do not believe there are claims with merit. That makes a lawsuit extremely difficult. Every small request can lead to unnecessary friction.

The lawsuit process will last at least a year. Two years is more likely. The fundamental component of damages is lost pay. So, an employer or an employer's lawyer who settles early will pay less. Lost pay early in a lawsuit is a manageable number. But, as trial comes closer and the months pass, lost pay increases. The bigger the amount of lost pay, the harder it is to settle a case. I have known several defense lawyers who will offer reasonable settlement amounts without ever filing a motion for summary judgment. That makes sense. Why devote time to a case that will probably lose for them? It makes sense to settle an employment case sooner than later.

Yet, far too many defense lawyers drag out a case, squeezing out every possible billable hour until the bitter end. Worse in my opinion are the few defense lawyers who believe all or most discrimination claims are weak or frivolous. Yes, as Dan says, in the law business, reputations do matter.

State Jobless Rate Falls Again

Tom Crane — Mon, 23 Apr 2012 07:46:12 -0600

The Texas jobless rate fell again for the seventh month in a row. The rate now stands at 7%. The San Antonio jobless rate also fell to 6.7%. See San Antonio Express News report. Of course, the rate fell due to increased hiring in the hotel and restaurant sectors, a low wage sector. And, many people still remain unemployed, but at this point, any improvement is good.

Recipient of Secret NLRB Info Advises Mitt Romney

Tom Crane — Thu, 19 Apr 2012 08:48:45 -0600

Last week, I commented about an NLRB Board member who provided confidential information to a law firm. See my prior post. Little did I know then that the "law firm" receiving this very privileged information was Peter Schaumber. Mr. Schaumber advises Mitt Romney on labor issues and the NLRB. Candidate Romney's website includes an essay by Mr. Schaumber saying the governor will pursue "flexible" and "cooperative" policies on labor. See Workplace Prof blog. I hope he does not mean so cooperative that sharing secret information will become the norm....

What to do When Mugged in Daylight

Tom Crane — Wed, 18 Apr 2012 11:05:58 -0600

One San Fransisco lawyer's response to a daylight mugging was to simply follow his thieves. David Newdorf, a former marathon runner, was walking in downtown San Francisco talking on his cellphone, when one teenager grabbed him in a headlock. An accomplice then grabbed Mr. Newdorf's cell phone out of his hand. As Mr. Newdorf noted, they grabbed the two year old Motorola, but not the iPad 2 in his other hand. The thives ran off. Mr. Newdorf followed. They tried to lose him but could not. The chase ended when one thief circled a park bench with Mr. Newdorf circling around. The teen eventually handed back the cell phone. Mr. Newdorf responded by snapping pictures of the now three thieves. See Ginny Larae's blog post with pictures.

He continued to follow the thieves and phone in updates to the the police. At some point, the largest of the bunch threatened the lawyer, "stop following my homies or I'll f--- you up." Undeterred, Mr. Newdorf continued to update the police until all three were caught. The lawyer identified the purported thieves, and even suggested particular criminal defense lawyers for the them.

Fired For Wearing Orange, Now they File NLRB Complaint

Tom Crane — Tue, 17 Apr 2012 19:53:38 -0600

They were fired for wearing orange shirts to work. I previously wrote about that here. Now, they have filed a complaint with the National Labor Relations Board. See ABA Bar Journal report. They say they wore the shirts simply to show they were part of the same group when they went out for drinks after work. But, management thought the orange shirts were some form of protest. If so, then, yes their actions would be protected by the National Labor Relations Act. Employees can protest management actions.

Maryland Prevents Employers from Requesting Login Information

Tom Crane — Fri, 13 Apr 2012 07:42:25 -0600

The Maryland legislature has passed a bill preventing employers from requiring Facebook login information of employees. See Huffington post. It was a Maryland employer who attracted attention when it requested login information from some employees. See my prior post about this topic. If the Maryland governor signs the bill, then it will become law in that state.

NLRB Board Member Found Guilty of Breach of Confidentiality

Tom Crane — Thu, 12 Apr 2012 20:32:07 -0600

The National Labor Board enforces the National Labor Relations Act. The NLRB is essentially the Supreme Court for unions. The NLRB is comprised of board members appointed by the President. NLRB appointments are very political. It is not unusual for the NLRB to be unable to act because the administration in power will not or cannot get its appointments through the Senate. Indeed, Mr. Obama had to appoint new board members as recess appointments, because the Republicans blocked his candidates.

Board member Terence Flynn, a Republican appointee has been found guilty of serious ethical lapses. The IG for the NLRB has found evidence of breaches of confidentiality. See Workplace Blog. Mr. Flynn provided confidential information to a law firm with pending litigation before the Board - the information included likely votes of other board members regarding that pending litigation. Mr. Flynn was also found guilty of lying to investigators about his actions. Mr. Flynn told lawyers with clients appearing before the board about pre-decisional votes, the early positions of board members, and the status of cases.

That is pretty extreme. It would be comparable to a Supreme Court justice providing early opinions of other justices about a case that had not yet been decided. In the legal world, this is as clear a breach of ethics as it gets.

Teacher's Aide Fired for Refusing to Provide Facebook Information

Tom Crane — Wed, 11 Apr 2012 08:02:28 -0600

Friending Facebook Blog reports that a teacher's aide in Michigan was fired when she refused to hand over her Facebook login information. Kimberly Hester worked for Lewis Cass Intermediate School District in Cassopolis, Michigan. On her own time, away from school, she posted what she believed to be a humorous picture of a co-worker with her pants around her ankles and the caption, "Thinking of you." A parent and friend of Ms. Hester's saw the picture and notified the school.

The school asked Ms. Hester for her login info. The district superintendent asked three times for her info. Each time, Ms. Hester refused. Finally, the district sent her a letter saying that if she would not provide the information, then they would presume the "worst" and act accordingly. They placed the aide on administrative leave and eventually suspension. Ms. Hester vowed to fight the action. She says she did nothing wrong and will not disclose her Facebook information. See Friending Facebook Blog. She believes an employer should not ask for Facebook information. Her case is set for arbitration in May.

Two Michigan state representatives have introduced a bill to prevent an employer from requesting this information. They said they would include Ms. Hester's story in the bill.

Settlement Should Reflect Jury Reality

Tom Crane — Tue, 10 Apr 2012 10:28:03 -0600

Many of my discrimination clients go into settlement talks with the expectation they will receive enough in settlement to retire. No, not hardly. Most cases settle for less than $30,000. Settlement discussions are supposed to reflect the reality of jury verdicts. And, the reality of jury verdicts is that even when the plaintiff employee wins, s/he is only awarded the amount of their lost income. Most folks obtain a new job after a discriminatory termination. So, the lost income is relatively modest. And, juries usually do *not* award damages for emotional suffering. If they do award such damages, they typically award an amount based on the lost income.

A couple of years ago, a local state district court jury returned a verdict of $20,000 in lost income and $18,000 in compensatory damages. Many jury verdicts come back for less than $30,000. A couple of weeks ago, a jury in San Antonio federal court awarded some $29,000 in lost wages in a wage case. These smaller verdicts do not appear on the front page of the local newspaper. But, they occur regularly.

I worked for a state district judge in rural Louisiana many years ago. Judge Jackson was known as a fair judge, someone who did not particularly favor plaintiff or defendant. He had tried more cases in his lifetime than some entire law firms. He used to say many times, "the worst settlement is better than the best trial." He meant that any negotiated agreement was better than risking one's future on a jury trial. Juries are difficult to predict, probably impossible to predict. I tell many clients they would get better odds in Las Vegas than with a jury. Judges can also be very unpredictable. My former judge meant that parties should accept whatever halfway reasonable agreement they could reach. Anything would be better than relying on a jury, he believed.

Many discrimination cases that go to trial reach that point because the employer offered nothing to settle the case. Many million dollar cases were offered nothing to settle the case. Most discrimination cases that go to trial do so because they have to. If the plaintiff is offered nothing, then s/he has nothing to lose at trial. A client once told me during settlement discussions that she was sure the jury would do the right thing in her case - meaning she should hold out for a higher settlement amount. I responded less kindly than I should have. But, I did tell her she was the only one who was sure of that.

Treatment for Alcoholism Is Protected under the ADA

Tom Crane — Fri, 06 Apr 2012 09:32:34 -0600

Alcohol use and drug use are specifically exempted from coverage under the Americans with Disabilities Act. See Americans with Disabilities Act, Sec. 12114. This section provides that a person who is abusing alcohol or drugs may not qualify for coverage under the ADA.

But, alcoholism is a disease. So, treatment for alcoholism is covered under the ADA. See Williams v. Las Vegas Police Dept., 18 A.D.Cases (BNA) 457 (D.Nev. 7/25/06). In this case, Police Officer Ron Williams took time off off from work for a 30 day residential treatment program. He told his supervisor he was being treated for alcoholism, but asked that it be kept confidential. But, his diagnosis was not kept confidential. Two years later, Officer Williams went to a local bar to have a drink with a co-worker. The co-worker, a police sergeant, had a one car accident on the way home. Mr. Williams was also investigated. He was found at fault for driving after drinking, driving while intoxicated, and for misleading the internal affairs investigation. Mr. Wiiliams denied being intoxicated. Despite his denial, he was suspended for 120 hours.

A few months later, Officer Williams applied for a captain position and was turned down. Officer Williams filed suit under the ADA. The department moved to dismiss his claims. Officer Williams argued that his suspension was out of line when compared to similar offenses by other officers. The officer pointed to a discipline matrix that specifically said that the appropriate punishment for driving after drinking was a written reprimand. Mr. Williams pointed out that when he appealed his misconduct suspension, the labor board found that the Deputy Chief acted out of prejudice due to the officer's alcoholism diagnosis. Based on this evidence, the district court found that the department may have taken this action due to his disability, not due to misconduct. So, the court denied the motion to dismiss.

An employer may, however, require an employee who has taken time off for alcohol treatment to take subsequent alcohol tests. The employer may require such tests only if the employer has a reasonable belief based on objective evidence that the employee will pose a direct threat in the absence of such testing. See EEOC Enforcement Guidance on ADA, at question 19. That is, the employer must believe there is some danger involved before requiring such tests. Such testing should occur often enough to address valid concerns, but they should not occur so frequently that they become harassing or intimidating. Id. In the Enforcement Guidance, the EEOC provides an example of a lawyer who returns to work after attending a residential treatment program. Upon his return, the employer may not require periodic testing without some basis to believe the lawyer has relapsed, says the EEOC. Id. So, at least according to the EEOC Enforcement Guidance, an employer cannot require alcohol testing after residential treatment - unless the employer has something more than mere suspicion.

Fifth Circuit Finds Sufficient Comparative Evidence

Tom Crane — Thu, 05 Apr 2012 14:05:01 -0600

The Fifth Circuit issued a decision in the case of Turner v. Kansas City Southern Railway Co., No. 09-30558, 2012 US App. LEXIS 6079 (5th Cir. 3/26/12). See decision. The opinion discusses the requirements for a circumstantial case of discrimination which relies on comparators. Four Kansas City employees sued their employer for discrimination under Title VII. The district court granted summary judgment regarding all four African-American plaintiffs. The plaintiffs had been fired for offenses, which, they alleged, were not appropriate for termination - when compared to non-black employees. The Court of Appeals overturns summary judgment for Thomas Turner and Lester Thomas, but sustains summary judgment for the other two plaintiffs.

The majority opinion, written by Judge Dennis, looked at the available evidence in detail. The opinion notes that when compared to a white co-worker, Thomas Turner was treated differently. Mr. Turner was ostensibly fired for causing a derailment. But, a white co-worker caused a sideswipe incident. The white co-worker received a 45 day suspension, while Plaintiff Turner was fired. The court noted that the correct standard when comparing to co-workers is not that the co-workers are "identical," a virtually impossible standard. But, said the opinion, the proper standard is that the co-workers be "nearly identical." The person to whom Thomas Turner compared himself was very close indeed to Mr. Turner's job situation. As the court noted, at the summary judgment stage, the issue is not whether the two co-workers are good comparators. The issue, is rather, whether they are close enough that the jury should decide the issue. The employer still has the opportunity at trial to argue the white co-worker is not "nearly identical" to Thomas Turner's situation.

The majority opinion also focused on the inability of the employer to identify the person who decided that the four plaintiffs would be terminated. For four years, Kansas City had said the decision maker was the two men who investigated the derailment. They two investigators decided that Thomas Turner should be fired, according to the employer. But, after four years and three requests for admissions by the plaintiff, the employer responded that the General Superintendent (GS) made the decision to terminate Plaintiff Turner. The employer then provided an affidavit by the GS in which he said that he had made hundreds of termination decisions in his time with Kansas City Southern and he could not recall any one of them. He was not certain he had made the decision to terminate Thomas Turner and he could not recall what the reasons for choosing termination might have been. In his affidavit, he even said he might have delegated the decision to an Assistant Superintendent. The Assistant Superintendent, accused of racist comments, had passed away. So, neither the General Superintendent nor the Assistant Superintendent were available to explain why they decided to terminate Mr. Turner, instead of some lesser punishment.

Indeed, the investigator of the derailment actually said the opposite. He testified in deposition that he did not believe the derailment incident was sufficient cause for termination.

Under the burden shifting formula of McDonnel-Douglas, the employer could not then rebut the employee's claim of Title VII discrimination. If the decision-maker cannot recall the decision to terminate, then no one is available to explain why Mr. Turner was fired and not simply suspended. The defense appears to have responded that there were subsequent internal appeals which found that Mr. Turner deserved some punishment. But, again, those appeals actually found that termination was not warranted.

The court did not say so explicitly, but it must have been troubled by the last minute "memory" regarding who decided to terminate Mr. Turner. There is some caselaw holding that changing explanations for a termination suggest some dissembling has occurred. If there is any question about veracity, then the issue should be decided by the jury.

The interesting thing about this decision is that one of the three judges dissented regarding the Turner portion of the case. Judge Owen presents the more conservative or pro-employer view. She argues that the majority opinion places a heavy burden on the employer. In her view, the majority opinion is asking the employer to provide too much evidence at the rebuttal stage. She says the employer does not have the burden of rebutting pretext. She would keep that burden on the employer. But, the problem with her analysis is that this opinion addresses summary judgment, not trial. The judge should not be trying to arrive at some actual "truth" during summary judgment. Rather, the judge should simply be weeding out those cases where the plaintiff lacks the evidence to show actual factual issues.

In the Army, we have an expression known as "ground truth." In a typical maneuver unit, the plans for a battle or for some movement are drawn up by a Battalion or Brigade staff far from the ground itself. The staff bases the plans on maps, maps which almost always omit important details. The lowest level unit, the company must execute those plans and make them work. The first thing the company must do is look at the actual ground on which the movement or action will occur. Often, the Captains, the sergeants who make the company run must adjust the battle plans based on the actual ground they encounter. We call that the "ground truth." Judge Owen is trying to arrive at the ground truth regarding the claimed discriminatory event.

But, that is not her job. Arriving at the actual "truth" of some event is the province of the jury. Summary (or quick) judgment is a poor vehicle indeed for arriving at the "ground truth" of an event.