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In Austgen v. Allied Barton Security Services, LLC,  No. 19-20613, 2020 U.S. App. LEXIS 20085 (5th Cir. 6/26/2020), a security officer, working for the Port of Houston, encountered back pain in inspecting vehicles. The pain was chronic and had been aggravated by climbing around vehicles. His employer told him to stay home on unpaid leave for a few weeks until some alternative could be found. Some weeks later, he was offered and accepted a supervisory position that was better for his back. Austgen requested transfer to a paid position, but was denied. The Fifth Circuit found the unpaid time off…
Sometimes, during an employment lawsuit, the employer will subpoena records from employers before the defendant employer even hired the plaintiff. What relevance would employment records have which date to before the job where the discrimination occurred? Maybe not much. Some defense lawyers seek prior records as much to intimidate the employee as to obtain actual, usable evidence. In Cunningham v. Concentrix Solutions Corp., No. 20-CV-00661, 2021 WL 425099 (E.D. Tex. 2/8/2021), the employee sued saying he had been passed over for promotion for discriminatory reasons. The employer issued a subpoena seeking job information from Alorica, Cuningham’s employer before Concentix. A…
Every school boy and school girl knows the preamble to the U.S. Constotution: “We the People of the United States … and secure the Blessings of Liberty to Ourselves and our Posterity” On that phrase, Henning Jacobson largely based his challenge to the smallpox vaccination in 1904. The state of Massachussetts imposed a smallpox vaccine requirement on every resident. If the residents refused the vaccine, they would incur a $5 fine. Smallpox had been the scourge of America and Europe for decades. But, by 1904, it was common knowledge that the vaccine would save your life. Rev.  Jacobson, an immigrant…
Now that the FDA has given final approval to the Pfizer vaccine, many employers have started requiring employees to get the covid vaccine. Can employers require employees to get a coronavirus vaccine? It is very likely that they can. We start with the general OSHA requirement of all employers to maintain a safe workplace. Every employer must take steps to prevent known dangers in the workplace. Employers do need to make allowances for religious beliefs and medical requirements. But, otherwise, there is no law or regulation preventing employers from requiring the vaccine. One state, Montana, has passed a statute preventing…
In most employment lawsuits, the defense has all the pertinent records. So, as one might expect, some defendants resist producing those documents. In Hernandez v. Clearwater Transportation Ltd., No. 18-CV-00319, 2021 WL 148053 (W.D. Tex. 1/15/2021), the defendant objected to several requests seeking information about other employees who were pregnant. The plaintiff herself was fired soon after complications with her pregnancy. She was alleging pregnancy discrimination in her lawsuit. So, it ought to be obvious that information about other pregnant employees would be discoverable, and probably admissible. The defendant first argued that Plaintiff’s counsel did not confer before filing her…
It could happen to anyone. But when it happens to a lawyer problems will follow. An email was sent to attorney Aaron Allison notifying him that a motion for summary judgment had been filed. Unknown to Allison, the email was caught in an obscure spam folder. Mr. Allison did not see the email. he did not now a motion for summary judgment had been filed. So, he did not know he needed to file a response within 14 days. His lawsuit had been removed from state court. He may not have realized he had only 14 days in which to…
Election lawsuits proliferated like mushrooms back in November and December, 2020. One such lawsuit was even filed as a class action on behalf of “all U.S. registered voters” alleging a coordinated effort to change voting laws and use unreliable voting machines to interfere with the presidential election. The two lawyers, Gary Fielder and Ernest Walker, filed the lawsuit in Colorado federal court. It turns out the two lawyers conducted no actual investigation of their very broad allegations. They simply compiled all the allegations from other failed lawsuits and from news reports asserting fraud, but no information from news reports which refuted claims…
A Bexar County jury found in favor of the employee in a retaliation lawsuit. Joseph Sifuentes, an 18 year employee of Bill Miller’s Barbacue, told a female manager to go to Human Resources regarding a male supervisor who was harassing her. The male harasser was a friend of Sifuentes’ boss. The male harasser was fired. Sifuentes’ supervisor, Edward Chagoya, was not happy his friend had been fired. Later, Mr. Chagoya began to harass Sifuentes. When Sifuentes asked Mr. Chagoya about work issues, Mr. Chagoya said management wanted to hang Mr. Sifuentes. In November, 2018, Mr. Sifuentes went to HR himself.…
I wrote previously about the Apache Corp. v. Davis, No. 19-0410 (Tex. 2021), decision here. I mentioned then that Justice Hecht’s largest campaign donor was the law firm, Vinson & Elkins. Vinson & Elkins represented Apache Corporation during its appeal. This controversy started in October, 2020, when the Supreme Court denied Apache’s request for an appeal. In February, 2021, the Texas Supreme Court reversed its prior decision and granted a motion for rehearing. The San Antonio Express News explains that normally, the Texas Supreme Court only grants a petition for rehearing about 2% out of the total number of…
Ken Paxton fired five of his senior assistants in 2020. Four of those five then filed suit alleging whistle blowing. I wrote then that it appeared to be a classic case of whistle blowing. Whistle blowing occurs when a worker reports a violation of criminal law by the employer and then suffers reprisal from that same employer. See my prior post here. It appears the AG’s office filed a plea to the jurisdiction. A plea to the jurisdiction is like a motion for summary judgment or motion to dismiss. The plea claims the plaintiffs lack sufficient proof to justify…