Green Smurfs and Yellow Cops
JUDGES TO JURIES: DROP DEAD!
In February of last year, a Panhandle jury sent a message to IBP, the giant Amarillo meatpacker, about its routine abuse of employees, with a $10.8 million award in a wrongful termination suit. The following July, Federal Judge Mary Lou Robinson set the jurors straight about who runs Amarillo, overruling the judgment and tossing out the award. Earlier this month, the Fifth Circuit Court of Appeals affirmed Robinson’s ruling.
The case involved–surprise–a dismemberment on the butchering line, a fairly frequent occurrence in the most dangerous industry in America. Chris Escamilla chopped off three of his fingers with a hock-cutter in April of 1997. (An earlier injury on the same device had led IBP to install an automated cutter, but they didn’t like the performance, so the manually-operated machine was brought back.) In the days following the injury, a plant supervisor pressed Escamilla’s stepfather, Steven Klumpe, a fellow IPB employee, to get Chris to sign a waiver promising not to sue the company. (“He told me that I will get that waiver signed or … I will fire your F–ing ass,” Klumpe said he was told.) Klumpe declined, and his f–ing ass was fired. Nothing wrong with firing someone for no good reason in Texas, but you are prohibited from forcing an employee to do something illegal as a condition of employment. In suing IBP for wrongfully firing him, Klumpe argued that the waiver was so deceptive it was illegal, and that the company was therefore coercing him into breaking the law by obtaining his stepson’s signature. The jury agreed that the waiver was deceptive. The jury may also have found the idea of forcing someone to dupe his own kid into signing away his rights while still in his hospital bed after he’s been maimed for life somewhat off-putting. We can’t be sure–but $10 million of the award was for punitive damages.
In any case, it was all for naught. Judge Robinson found that no reasonable jury could have come to that conclusion and exercised a judge’s rarely-used prerogative to throw out a jury award. She also ordered Mr. Klumpe to pay IBP’s court costs. Klumpe appealed to the Fifth Circuit, but no dice. A dissent by Judge Ellison in the decision summed up what’s at stake here: “If judges are willing to set aside jury verdicts as readily as was done in this case, the entire rationale for the civil jury system is sharply attenuated. … This case is peculiarly ill-suited to have judges substitute their opinions in place of the jurors’ verdict. We can leave aside for the moment the fact that the jury listened to nine days of testimony and deliberated for one more day. We can likewise discount the obvious fact that all jurors were able to judge the demeanor of the witnesses and then had the opportunity to compare their reactions. The key point is even more fundamental. Whether an employer’s explanation of specific employee benefits is or is not deceptive is something that should be determined by men and women who are chosen from the community in which the conduct occurred and who likely have had relevant and diverse experiences in receiving explanations of employment benefits and subsequently trying to realize those benefits. In other words, such a determination is one for which a jury is quintessentially appropriate.”
Chris Escamilla never did sign the waiver, by the way, and eventually settled for $1.9 million. With Robinson on the bench, maybe IBP will take the next dismemberment to trial.
THE BURQA’S BACK
Remember the Afghan women? Remember the burqa? Well, the burqa was very much in evidence this month–right here in Austin. We’re not talking about the head-to-toe covering imposed on women during the Taliban regime–the source of so much commentary by politicos and pundits last fall, as they assured us that bombs were falling over downtown Kabul to allow Afghan women to shed their burqas, dress as they please, and live free forever. No, no, no. We’re talking about the heavy-handed muzzling imposed by U.S. State Department handlers on a distinguished group of Afghan visitors and Austin journalists. After a trip to Washington, D.C., where they met with President Bush and members of Congress, a delegation of 14 women, including a judge, a speech writer for President Hamid Karzai, and a member of the nation’s new Ministry of Women, came to town for a little Texas hospitality, courtesy of the International Hospitality Council of Austin. During their stay here they were invited to a dinner at the home of attorney D’Ann Johnson and photographer Alan Pogue. [Note: Johnson is a member of the Observer’s Board of Directors. Pogue is the Observer’s longtime photographer, whose photographs of Afghan refugees have appeared in these pages]. Joining the Afghans at the luncheon was a group of Austin—area women, including Alberta Phillips, editorial writer and columnist for the Austin-American Statesman. Phillips did what any good reporter would do, given the opportunity: After listening to several of the women describe their remarkable lives, she decided to do a few interviews. That’s when the handlers went into Taliban-like ballistic mode, barking that no interviews were allowed. Phillips, struck by the irony of the situation, tried to remind them that this was, after all, still a free country with a free press. A male interpreter insisted that the women were too tired to deal with interviews, but were too shy to tell Phillips themselves–a peculiar conclusion, since one of the women in particular, Kabul judge Marzia Bazul, had expressed a definite interest in talking to Phillips. (Hardly the shy type, Bazul had managed to keep alive a clandestine school for girls during the Taliban regime.)Then Helen Mobley, a former Bush scheduler who currently works in the State Department, proceeded to ask Pogue what he planned to do with the photos that he was shooting of the Aghan women–in his own home. Meanwhile, during a conference at the University of Texas at Austin, Karen Hughes–one of George W’s handlers and a recent returnee to Central Texas–referred to the visiting delegation of Afghan women. She also referred to the Iraqi people, hoping someday they would be free, just as the Afghans were now free. Except at Austin-area dinners, that is.
HERE COME THE GREEN SMURFS
Could it be a new era for environmental protection in Texas? The old state environmental agency, the one aptly nick-named Trainwreck (a pseudacronym for TNRCC) has a new, harder to ridicule name, the Texas Commission on Environmental Quality, and a new director, Margaret Hoffman, and in early October they found themselves discussing something new under the sun in Texas: A permit seeking to leave water in a river. You know, for fish. As reported in our June 21 issue (“Does a River Have a Right to Flow?,” by Jake Bernstein), the San Marcos River Foundation (SMRF, or Smurf) filed a permit seeking a little over 1 million acre feet per year of Guadalupe River water, or about the same amount the Texas Parks and Wildlife Department estimated was necessary to keep healthy the coastal estuary fed by the river. Permits are usually filed by people–cities, farmers, industry–seeking to take water out of a river, not leave it in place, and the move caused more than a little consternation at the agency. They sat on it for two years, and they still seem a little unsure about the Smurfs, but they are moving the draft permit along toward a hearing. The biggest threat to the Guadalupe, and hence to the permit, are the cities and towns up and down the river. Some are rapidly growing, others will be soon, if developers and city councils (same thing, in some cases) have their way, and all will be requesting more and more water from the Guadalupe’s annual flow, which is already dangerously low from the point of view of estuary-dwelling critters and the people who make their living off of them, like Gulf Coast shrimpers. This should be an interesting fight and a long one.
CAMERAS OR COMPLIANCE
The new racial profiling law forces every law enforcement agency in the state to collect data on the race of a suspect in a traffic stop if a citation is issued. But a loophole in the law may leave many cities exempt from the law’s more stringent requirements, which go into effect this January. Starting next year, officers will have to collect data on every stop, regardless of whether a citation is issued, and report their findings regularly, which civil rights groups hope will drastically reduce the number of harassment (or “Driving While Black”) stops in Texas. As an alternative to the more stringent reporting requirements, however, agencies can opt to install video cameras in all of their traffic enforcement vehicles, so that a record of each stop is made.
Cameras in cars are a good thing as far as civil rights advocates are concerned–they hold cops accountable for police brutality, for one thing–but in hindsight these two reforms might have been better left uncoupled. It now appears that the vast majority of agencies will be going the camera route, meaning hardly any of them will be obligated to collect data on stops without citations. (Compiling comparable racial profiling data from video recordings would be time consuming, if not impossible.) Kelvin Bass, who works for one of the bill’s authors, Senator Royce West (D-Dallas), estimated that the new law applies to roughly 1,100 to 1,300 agencies in Texas. According to records obtained by the Observer, over 1,000 of these eligible agencies requested cameras from the Department of Public Safety. The legislature appropriated $18.5 million for the cameras, and every bit of that money has now been spent, according to Bass. Fortunately, according to Will Harrell of the Texas ACLU, some small departments–and some large ones, like Houston–have promised to collect data on all stops anyway, even though they requested cameras and technically don’t have to. Of course, should they not like what they see in those figures–or if, for example, Houston gets a new mayor and police chief–there would be nothing to stop them from simply ending the data collection any time they choose.