Texas Employment Law Blog : San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

The Fifth Circuit out with a case this week that should have all employers and employment defense counsel not walking but running to check the language in their EPLI policies. In Coleman v. School Board of Richland Parish, No. 04-30445 (5th Cir. July 25, 2005), Mid-Continent Casualty Insurance Company issued an EPLI policy to insure the Richland Parish School Board against various risks, including loss resulting from claims based on actual or alleged racial discrimination, racial harassment, and breach of contract. Following execution of this agreement, a lawsuit was filed against the School Board alleging federal claims for intentional racial discrimination, and state claims for breach of contract and abuse of rights.

Mid-Continent refused to defend the suit on grounds that the policy excluded from coverage acts committed "with knowledge of their wrongful nature or with intent to cause damage." the district argued that because discrimination and harassment are by their very nature intentional acts, the exclusion would eclipse all coverage and make the policy all but a nullity. The Fifth Circuit disagreed and held that b/c the policy could be read to cover only disparate impact claims (no showing of intent required), the policy is not completely useless and therefore it should stand.

You really do have to be impressed with the audacity of the insurance company in this case. The policy that the school board purchased from Mid-Continent stated that coverage was provided for any:

?wrongful act? as ?any actual or allegedact, error, omission, misstatement, misleading statement, neglector breach of duty? committed by an insured party in the dischargeof his duties, including:(1) actual or alleged discrimination, whether basedupon race, sex, age, national origin, religion,disability or sexual orientation;(2) actual or alleged sexual or racial harassment;(3) actual or alleged libel, slander or otherdefamation;(4) actual or alleged invasion of privacy; or(5) actual or alleged interference with or breach ofany employment contract, whether oral, written,express or implied.

To then argue that a later general exclusion against "intentional" conduct reduces this stated coverage to such a degree that it does not provide any protection in 98% of employment cases is bold to say the least. The fact that the insurance company prevailed with such a patently dishonest and ridiculous argument would be absolutely amazing if this case were in any other Circuit other than the Fifth.

Just as an aside I note that blogger's spell check engine just attempted to substitute "EVIL" for "EPLI".

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George's Employment Blawg has put together a number of links to Roberts' decisions and analysis of these decisions from various perspectives. Some of the ones I liked the best were Selected D.C Circuit opinions by Judge Roberts , from Supreme Court Nomination Blog and "Roberts' Place On The Ideological Spectrum of the D.C. Circuit".All Deliberate Speed also has a great review specific to employment law: "Roberts By The Numbers."

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The Houston 1st Court of Appeals has issued a rather scary opinion attempting to raise the bar for future mental anguish damages to near unreachable heights.N.N. vs. Institute for Rehabilitation and Research ("TIRR") involved a physically disabled and brain-injured female plaintiff, who was raped by another brain-injured patient while she lay, "quite literally helpless, in her own feces after bowel movement." The majority, consisting of Justice Sam Nuchia and Justice Elsa Alcala held that the following evidence constitute "no evidence" of mental anguish:

(1) on the night of the assault, A.B. was visibly upset, had a flushed face, and used finger gestures that indicated a sexual assault;(2) when questioned by a police officer shortly after the incident, A.B. began to weep and asked for her ?mommy?;(3) in the immediate months following the assault, A.B. had sleeping problems, a fear of going to TIRR, a fear of seeing the man who assaulted her, and a goal to stay awake at night, and was Â?very muchÂ? upset about the assault;(4) A.B. was embarrassed about telling her former boyfriend about the incident because he would think she was dirty; and(5) A.B. felt uncomfortable at the hospital, uncomfortable with sexual relationships, and dirty.

The Court disagreed with the jury that actually sat in the court room and heard all of the evidence and testimony presented live and decided to penalize the plaintiff for not being sufficiently articulate due to her brain injury. Here is the majority opinion. If you practice in Texas, you better take a look at the language to see the strict direction some Courts are going in their efforts to continue chipping away at mental anguish damages.The dissent, authored by Justice Terry Jennings pointed out how ridiculous it is that a plaintiff who suffered the type of trauma inflicted on the plaintiff in this case would even need to bringindependentdant evidence that suchoccurrenceance would cause mental anguish. Here's the money quote:

Here, there is ample direct evidence in the record that A.B., while disabled, was the victim of an aggravated sexual assault?raped by a brain-injured patient as A.B. lay, quite literally helpless, in her own feces after a bowel movement. It is difficult to imagine a more shocking or particularly disturbing event than what A.B., while helpless, had to endure at the hands of her assailant. Under these circumstances, mental anguish damages are not at all ?hard to justify,? and A.B.?s mental suffering, including future mental anguish, should be presumed to flow from such a horrific act.A sexual-assault victim should not have to provide expert testimony or jump through formulaic, rhetorical hoops to prove the obvious?that she will carry the burden of having been raped with her for the rest of her life, especially here, given A.B.?s previous brain injury and the grotesque circumstances. This simple fact should be beyond dispute by people of good will in a civilized society as ?an acknowledged result of human experience.?

Here is the dissenting opinion.

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It is unquestionable that the labor movement needed a serious overhaul. Certainly its structure and its methods, if not some of its objectives, have become so outdated that they have threatened to make the entire movement irrelevant. This week the overhaul began when the Service Employees International Union and the International Brotherhood of Teamsters announced that they were quitting the AFL-CIO. More will certainly follow. Here is the Chicago Tribune story on the breakup.

The ultimate ramifications of this realignment are yet to be seen. If the unions use this opportunity to really make themselves over from the top down and start addressing the real needs of the modern worker and seek to have a voice for working people both here and overseas, then this will undoubtedly be the best thing to happen to the labor movement in many a decade. Unfortunately, there is certainly a good chance that a power struggle between the unions will ensue, further weakening what is left of their political muscle and relevance. Here is a good story on the possible ramifications of the split from the Washington Post. And here is an op-ed piece by Robert Kuttner at the Boston Globe.

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Cynthia Papageorge claims she was fired because of her pregnancy. Her former employer? A maternity clothing retailer. Jury selection is scheduled to begin today in Papageorge's discrimination suit against Mothers Work Inc., a Philadelphia-based company with more than 1,100 stores under the names Motherhood Maternity, A Pea in the Pod, Mimi Maternity and Destination Maternity.

Papageorge was approaching her due date in October 1999 when one of the company's vice presidents, Frank Mullay, made a surprise inspection of four stores in Papageorge's sales district. She claims Mullay questioned whether she was capable of doing her job in her "condition" and in her "state."See the story in the Boston Globe.We will let you know how it turns out.

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The federal standing committee on rules of practice and procedure recently approved the amendments submitted by the civil rules advisory committee addressing discovery of electronically stored information. You can see a copy of the proposed new rules here. Next they go to the Judicial Conference and then on to the Supreme Court.

Comment or email us your opinions of the proposed rules and we will do our best to summarize people's comments in a later post.

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In University of Houston v. Barth, Cause No. 01-04-00828-CV (Houston [1st Dist.] July 18, 2005), the Houston Court of Appeals again holds that the limitations provisions of the Whistleblower Act (involving exercise of internal government appeal processes) is jurisdictional. The Court holds that Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000) ("holding that failure to allege and prove a statutory prerequisite to a statutory cause of action are not jurisdictional defects") is inapplicable in the Whistleblower context (or at least has not been applied in the Whistleblower context by the Texas Supreme Court) and that the Houston Court will therefore follow its own previous precedent in this area until the Supreme Court speaks to the issue.

In doing so, the Court acknowledges that:

"[O]ther appellate courts have held that the limitations and grievance provisions of the Whistleblower Act are not jurisdictional, but the court points out that none of those cases has been approved by the Texas Supreme Court. Furthermore, this court has specifically held otherwise in Tex. S. Univ. v. Carter, 84 S.W. 3d 787 (Tex.App. Houston [1st Dist.] 2002, no pet.). The court adds that the Whistleblower Act requires initiation of remedies through a government's grievance or appeal process, but it does not require exhaustion of those remedies. "Thus, whether the Act's requirements are jurisdictional is open to question..."

The concurring opinion states:

"This case presents the question of whether a plaintiff's failure to comply with the Texas Whistleblower Act's statutory requirements deprives a trial court of its subject matter jurisdiction. . . . The emerging jurisprudence of the Texas Supreme Court, however, strongly signals that it does not. Instead, absent a framework in which statutory requirements expressly define a trial court's power to hear the subject matter, such requirements are not jurisdictional, but rather operate only as elements necessary to a recovery."

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Goodness knows we can't depend on the media to give us a thoughtful or thorough analysis of John Robert's past judicial decisions. But you can always count on the bloggers! Mike Fox over at Jottings does not disappoint with this initial Report on Robert's employment-related decisions. Fox indicates he is a little surprised with how often Roberts sided with the employee side of the case.

Donald Caster over at All Deliberate Speed provides an excellent Analysis of each employment opinion authored by Roberts during his brief tenure on the D.C. Circuit Court of Appeals. He also provides an analysis of the employment cases Roberts argued as a litigator prior to becoming a judge, however, those cases obviously provide less insight into Robert's own feelings on those issues.

Meanwhile, the Supreme Court Nomination Blog has a more general analysis of Robert's opinions in various catagories.

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I guess no one should be very surprised that President Bush has decided to forgo choosing a moderate or just right of moderate candidate in favor of the starkly conservative John Roberts for his first nominee to the Supreme Court. Other than the fact that he pretty clearly would like to overturn Roe v. Wade, however, the news media has not apparently gathered all that much real background information on Roberts or his likely position on the multitude of issues he would be ruling on if confirmed.

Here is a good starting point: the Transcript of his confirmation hearings to the D.C. Circuit. It contains all of the materials that were made a part of the record during the hearings, including Robert's Financial Disclosure Statement, his completed judicial questionnaire from the Senate, articles and outside statements both for and against his confirmation that were attached by the Senators on the committee, and very likely all of the same questions and answers that you are likely to hear in his upcoming confirmation hearing. My cursory review indicates that Roberts is excellent at giving vague and meaningless answers to tough questions. Unfortunately, in these contentious times, this probably makes him the perfect candidate.

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Well we were all set to provide a two-volume tome full of information on any number of the Fifth Circuit judges said to be the front runners to be nominated by President Bush to the Supreme Court vacancy created by the retirement of Justice O'Connor. Then the White House pulled one of its famous head fakes this afternoon and suddenly we have a nominee that we, here in Texas, know very little about.

For the time being, here is the Washington Post's profile of Judge Roberts.

And here is an initial report from the Alliance for Justice organization.

We will begin gathering research regarding Judge Robert's past opinions and other legal work on employment-related cases.

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OK, I'm no great fan of illegal immigration. It is a complicated issue and I know there are jobs in this country that, frankly, most Americans won't do. But I believe there is a right way and a wrong way to do things and I agree that illegal immigrants (and the employers that hire them) take jobs away from Americans who desperately need them.

All that being said, this story from the North Carolina NewsObserver is simply appalling. According to the story, illegal immigrants were lured by the federal Bureau of Immigration and Customs Enforcement into a trap and arrested through the use of fake flyers that announced a mandatory Occupational Safety and Health Administration meeting. The flyer was printed in English and Spanish. It tells all contract workers to attend an OSHA briefing at the base theater and promises free coffee and doughnuts.

Seems to me it is hard enough to enforce safety regulations in companies that hire illegal workers without making the workers afraid of the very enforcement agencies set up to promote safe working environments. The N.C. Department of Labor was mighty upset at the Feds over this "sting" operation. According to the article the state has made an effort in recent years to reach out to the North Carolina's thousands of immigrant workers, especially those in construction, because they are among the most likely to be killed or injured at work.

"We are dealing with a population of workers who need to know about safety," said Allen McNeely, head of the state Labor Department's Occupational Safety and Health division. "Now they're going to identify us as entrappers."

Those arrested were employees of private contractors doing roofing, electrical, masonry and other construction work on the base.

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Happy Birthday to Jottings of an Employer's Lawyer and its creator, Mike Fox. Jottings has been going strong for three years now and today is certainly one of the finest legal blogs on the web. Keep up the good work Mike.

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If you haven't seen it already, Ross Runkel has an full roundup of all of the Supreme Court's employment-related decisions from this past term here. It provides a ready reference if you would like to make sure you didn't miss anything over the past year.

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Humana Inc. has agreed to pay 2,510 call-center employees more than $1 million in back wages after reaching an agreement with the U.S. Labor Department. Labor Department investigators found that the Louisville health-services company "failed to record and properly compensate" the employees for certain work-related tasks, the department said in a press release.

The workers were not paid for time spent powering up computer equipment, logging on to the network and bringing up programs necessary for their work. "They can't do their job" without performing those duties, "so that's considered work time," said Jo Anne Burgoyne, a spokeswoman for the Labor Department's office in Atlanta.

Here's the story.

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Enron employees whose retirement plans vanished when the company imploded may be getting some compensation after all, thanks to a settlement announced Monday by the government.

Here's the story from the New York TimesMeanwhile, Ken Lay continues in his efforts to mount the "I'm not evil and greedy; I'm just wildly incompetent" defense at his website here. Lay says:

"The collapse of Enron and the subsequent collapse of Arthur Andersen were tremendous tragedies. But as I stated at the time of my indictment on July 8, 2004, failure does not equate to a crime. I sincerely hope that the Enron Task Force will reign in its prosecutorial zeal and excess and work to convict people for committing actual crimes, not for making mistakes that the Task Force attempts to recast as criminal activity."

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Jotting's of an Employer's Lawyer has a write up of a case out of Texas' Austin Court of Appeals from last month that drives home an important point. Often in an employment case...in fact more often than not...the employer's deposition or trial testimony regarding the plaintiff's poor job performance prior to termination does not jive with the written evaluations of the plaintiff given by the same employer prior to termination.

In Ancira Enterprises, Inc. v Fischer (Tx. App. - Austin 6/16/05), in upholding the jury's finding on liability and punitive damages, the court noted the following about the plaintiff's performance evaluations:

A performance review dated March 30, 1999 reflected that Fischer's "performance of duties" and "knowledge of duties" was "excellent"; that she had "good" punctuality, and a "very good" attitude. The review noted that Fischer was on the safety committee and "works well with other employees and strives to be a 'Team Player.'" It recommended that she continue with her current position, but "be available for consideration to a position of more responsibility and advancement within the company."

Jottings points out that "when the rationale for the termination and the performance appraisals diverge is when they become Plaintiff's Exhibit #1."

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Interesting article in the New York Times today covering an analysis done to determine who really is the most "activist" judge on the high court. The study looked at all of the justices' votes to tally the number of times each had voted to overturn a law passed by Congress. "Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism."The results were a little surprising: Thomas 65.63 %Kennedy 64.06 %Scalia 56.25 %Rehnquist 46.88 %O'Connor 46.77 %Souter 42.19 %Stevens 39.34 %Ginsburg 39.06 %Breyer 28.13 %So, as it turns out, the more conservative jusutices on the Court are more activist by far than those considered to be liberal jurists. Unfortunately, this probably will not stop partisans from declaring the exact opposite to be true. This is because, obviously, "activist" really means makes rulings we don't like.

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In Medina v. Income Support Division (ISD) of the State of New Mexico, No. 04-2166 (10th Cir. June 28, 2005) Plaintiff-Appellant Rebecca Medina sued her former employer for a gender-based hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964. The District Court granted summary judgment in favor of ISD on both claims, reasoning as to the harassment claim that Ms. Medina was not discriminated against "because of sex"Plaintiff alleged that she was harassed by her supervisor and several co-employees who are all (according to the court's opinion) lesbians. The harassment included receiving an e-mail from her supervisor depicting a woman in an aisle at K-Mart bending over in a skirt and exposing her genitals. The e-mail stated that if more women had engaged in similar behavior, K-Mart might not be in financial straits. After receiving the e-mail, the Plaintiff complained to her supervisor that it was offensive but was only met with laughter. The plaintiff suffered several similar incidents of harassment for which she complained and was ignored.

In bringing her same-sex harassment claim, the Plaintiff relied on Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 263-64 (3d Cir. 2001)in arguing that the harassment was actionable because it was based on gender stereotypes. In rejecting her claim, the court responded: "Here, however, there is no evidence--and no claim--that Ms. Medina did not dress or behave like a stereotypical woman. Instead, Ms. Medina apparently argues that she was punished for not acting like a stereotypical woman who worked at ISD--which, according to her, is a lesbian. We construe Ms. Medina's argument as alleging she was discriminated against because she is a heterosexual. Title VII's protections, however, do not extend to harassment due to a person's sexuality [sexual orientation.]"The circuits have really begun to split hairs in this area as to what is same-sex harassment based on sex, what is based on sexual stereotype, and what is based on sexual orientation. These are awfully fine shades of motive to attempt to properly address in a summary proceeding.

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