Mediation Ordered in|Sandra Bland Death Case

     HOUSTON (CN) — A federal judge has ordered mediation for a lawsuit filed by the mother of Sandra Bland, the black woman whose death in a Texas jail cell last summer incited months of protests.
     Though Bland’s name had faded into the background of the national conversation on police-black community relations since her July 2015 death, it resurfaced on signs at recent Black Lives Matter protests spurred by the shooting deaths of Alton Sterling and Philando Castile by police early this month.
     As in those cases, outrage over Bland’s death was fueled by online footage that went viral.
     In a separate case, Houston Mayor Sylvester Turner on Thursday took the unusual step of releasing Houston Police bodycam footage of the aftermath of the death of Alva Braziel, a 38-year-old black man.
     Turner said he wanted the public to see that Braziel died holding his gun, to show that police were justified in shooting him on July 9.
     The mayor told the Houston Chronicle that false information is spreading on social media that Braziel was unarmed, and, fearing that those reports could fuel violence against police, he released the video.
     The mediation order in Bland’s case came a week after the first anniversary of her death.
     Guards found Bland dead in her cell in the Waller County Jail on July 13, 2015, three days after former Texas state Trooper Brian Encinia pulled her over for failing to signal a lane change and arrested her after they argued and tussled.
     The dashcam in Encinia’s patrol car filmed the encounter, which has been viewed more than 1.5 million times on YouTube.
     The jail is in the county seat Hempstead, an hour northwest of Houston.
     Waller County officials say Bland hanged herself with a plastic garbage bag, but Bland’s mother Geneva Reed-Veal disputes that story, saying her daughter had no history of depression, and was excited about getting a new job.
     She sued the Texas Department of Public Safety, Encinia, Waller County and two of its jailers on Aug. 4, 2015.
     The 18-count lawsuit seeks punitive damages for wrongful death, willful and wanton conduct, assault and battery and civil rights violations.
     In her third amended complaint, filed on Jan. 19, Reed-Veal dropped the Department of Public Safety as a defendant and added 10 employees of the Waller County Sheriff’s Department, whom she claims were negligent or committed civil rights violations by “failing to provide adequate monitoring of Sandra Bland to keep her safe and secure” in the county jail.
     U.S. District Judge David Hittner has set trial for Jan. 23, 2017.
     That may be unnecessary, however, as Hittner on Wednesday ordered the parties to start mediation within 30 days .
     “Following the mediation, the mediator will advise the court only that the case did or did not settle. No other information concerning the mediation may be given to the court by the mediator or any other party,” the 3-page order states.
     Hittner in April granted Encinia’s motion to stay the case until a criminal perjury case against Encinia is wrapped up. Hittner agreed that Encinia’s Fifth Amendment right against self-incrimination would be imperiled if he had to give deposition testimony.
     A Waller County grand jury indicted Encinia on Jan. 6 on a misdemeanor perjury charge.
     That one-count indictment states that Encinia attested under oath in an arrest report that he “had Sandra Bland exit the vehicle to further conduct a safe traffic investigation … such false statement being false in that [Encinia] removed Sandra Bland from her vehicle because he was angry that she would not put out her cigarette.”
     The next hearing in his criminal case is set for Oct. 11.
     He faces up to a year in jail and a $4,000 fine if convicted of the Class A misdemeanor.
     
     
     Outlook Grim for McDonald’s Wage Class
     Maria Dinzeo
     SAN FRANCISCO (CN) – A federal judge Thursday told attorneys for a class of fast-food workers he does not believe McDonald’s can be held liable for claims of wage theft.
     Led by cashiers Guadalupe Salazar, Genoveva Lopez and Judith Zarate the class sued McDonald’s and franchise owner Bobby Haynes in March 2014, saying they were denied meal and rest breaks and were not paid for all the hours they worked because McDonald’s computer system killed overtime from their time cards.
     But U.S. District Judge Richard Seeborg said the class failed to show that McDonalds exercises enough control over the day-to-day operation of its franchisees to be considered their employer. Seeborg said at the Thursday hearing that he was inclined to grant McDonald’s’ motion for summary judgment on vicarious liability.
     “McDonald’s is simply not a joint employer. I think the undisputed facts are pretty clear. The basic working condition arrangements are with Haynes and not McDonald’s,” Seeborg said.
     The Haynes Partnership has owned eight franchises in Oakland and San Leandro since 2010. Seeborg noted that Haynes controlled hiring, firing, discipline, wages and general working conditions, much like the franchisees in Ochoa v. McDonald’s Corp., another wage and hour class action in the Northern District of California.
     In Ochoa, U.S. District Judge James Donato found that McDonald’s did not directly employ the plaintiffs, as all staffing decisions were made by franchise owner Edward J. Smith and Valerie S. Smith Family Limited Partnership.
     “The Ochoa case, while not binding on me, is quite persuasive,” Seeborg said.
     Class attorney Barbara Chisholm disagreed.
     “The court got it wrong in Ochoa,” she told Seeborg. Chisholm said McDonald’s is indeed a joint employer, and that it exercised, at the very least, indirect control over the Haynes restaurants by setting requirements for staffing and scheduling. A business consultant visited the restaurants every so often, and in their depositions, Chisholm said, both Salazar and Zarate said they saw the consultant correct employees and shift managers on how to do their jobs. They also allegedly told Haynes not to let employees take breaks during busy times.
     Seeborg seemed unpersuaded. As to hiring, firing, supervision and discipline of employees — the factors that create a direct employer relationship — Seeborg said: “At the end of the day, the Haynes get to make the choice.”
     But Chisholm said there are unresolved questions about whom the plaintiffs believed they were working for. She said that when Salazar was asked about Haynes, she was told that Haynes is part of McDonald’s.
     “The confusion as to who really is their employer and whether Haynes is part of McDonald’s is highly reasonable,” Chisholm said. “These are low-wage workers we’re talking about.”
     McDonald’s attorney Lawrence DiNardo said that the Haynes family viewed McDonald’s training programs and operating procedures as suggestions, not requirements.
     DiNardo said McDonalds did not have the kind of power to be considered a joint employer with Haynes.
     “The notion of indirect control here is that by some device you still have the power to hire fire, set wages, etc. It’s not just that you have an influence on those matters,” he said. “That’s not enough to make you an employer under the Labor Code.”
     Seeborg did not indicate when he would rule.

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