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Texas Digest: Toddler missing for 24 hours in forest found safe

SOUTHEAST TEXAS

3-year-old missing in forest found safe

A 3-year-old boy missing for 24 hours in the Sam Houston National Forest was found safe Sunday afternoon. Jimmy Williams of the New Waverly Fire Department said the child was alert and smiling. The boy, identified only by his first name, Ezra, was found by searchers in heavy brush about 400 yards from his family s campsite. The family was setting up camp in a remote part of the forest Saturday about 50 miles north of Houston when he disappeared.

More than 200 people from several agencies had been looking for him in the forest, which covers parts of three counties between Huntsville and Conroe. The boy was taken to a hospital for examination. Daytime temperatures had been in the 90s with high humidity. HARRIS COUNTY

Gunman killed outside eatery

A security guard at a Houston-area fast-food restaurant shot and killed a man the guard says pointed a gun at him, Harris County authorities say. The guard told deputies a man driving a car opened fire in the parking lot just before midnight Saturday, then turned the gun on him. The guard responded with multiple shots.

The driver tried to flee but crashed his car. When police arrived, they found him dead inside the vehicle. Authorities said the case will be referred to a grand jury to determine whether any charges are warranted.

Witness recalls deadly train crash

A witness to a head-on train collision 11 months ago in the Texas Panhandle told federal investigators the ensuing blast looked like the Hindenburg airship famous in film and photos when it blew up in 1937. The Amarillo Globe-News reported that documents released by the National Transportation Safety Board include witness comments and an interview with a Burlington Northern Santa Fe investigator who spoke with the only crew member to survive the crash on June 28.

The crew member thought the train conductor was behind him when he jumped from the train after it collided with another Burlington Northern Santa Fe train. The conductor was among three people killed. The NTSB has yet to release its final report. A preliminary report says the train ignored light signals before striking the oncoming train.

SOUTH TEXAS

Cemetery being searched for migrant remains

The remains of more than 10 unidentified people have been removed from a Rio Grande Valley cemetery along the Texas-Mexico border as part of a continuing project to identify migrants who died and were buried for years without any markers. More than 20 students from Texas State University in San Marcos and the University of Indianapolis have been at the Starr County Cemetery in Rio Grande City, where the director of the South Texas Human Rights Center, Eddie Canales, says the county has failed to comply with Texas law and provide DNA samples of unidentified remains.

Texas State anthropology professor Kate Spradley told The Brownsville Herald that no one has kept track of burials and that those most familiar with the cemetery rely only on memory to determine where remains might be buried.

GULF COAST

Beach drivers warned to watch for turtles

Marine animal experts are asking drivers on Texas Gulf Coast beaches to be watching for sea turtles now in the middle of their nesting season. Turtle Patrol members have found at least two of the animals dead in recent days near Surfside Beach and near San Luis Pass in Brazoria County. They believe both were hit by vehicles. Henry Peker of the Turtle Patrol told Houston television station KHOU that the turtles nesting season runs from early April through the middle of July, meaning this is prime nesting time.

Experts are anticipating the number of nests this year along the Texas coast to reach historic numbers. The Turtle Island Restoration Project has reported 295 nests so far, up significantly from the 209 found during the entire nesting season last year.

Chicago inmates can order fancy Italian pizza made in jail

CHICAGO (AP) How can you get a gourmet Italian pizza delivered right to your door for no more than $7? Get locked up at Cook County Jail in Chicago. Inmates in the jail s medium-security Division 11 can now order pizzas made with the finest ingredients in the kind of ovens found in pizzerias. It s all part of Sheriff Tom Dart s ongoing effort to make jail a bit more humane while providing inmates skills that might help keep them from returning once they re set free. Pizzas have been served and prepared behind bars before. A few institutions allow inmates to order from nearby restaurants. At one Massachusetts jail, inmates make pizzas that guards can buy and take home and heat themselves.

But it s safe to say Dart is the first jail administrator to bring into his facility an Italian chef to oversee an operation in which inmates bake a couple hundred pizzas a week in a $16,000 oven and deliver them piping hot to the cells of captive customers.

We re teaching skills to make them more marketable when they get out of here, Dart said. At the same time, by giving inmates a break from the bland jail food, he s employing what experts say is an effective tactic to keep inmates in line.

If any detainee assaults staff or engages in misconduct they re moved out of that division, and they re not able to purchase the pizzas, said Cara Smith, the department s chief policy officer. So it s an incentive to behave. Other programs Dart has introduced include using chess to teach inmates about problem-solving and patience, and sending inmates from the jail s boot camp to tear down abandoned buildings.

The pizza delivery service is an outgrowth of a program called Recipe for Change that s run by Bruno Abate, a chef and owner of trendy Chicago restaurant Tocco , that teaches inmates about cooking and nutrition. Abate said there s no overstating the effect gourmet pizza has in a place where the drab food only reminds inmates of where and what they are.

This is treating people with dignity and respect as a human and not (an) animal, he said. The pizza also might be the best food some of the desperately poor inmates have ever eaten.

How many of them even get to go to a decent restaurant? asked Ron Gidwitz, a prominent Republican fundraiser who donated money to buy the oven and raised the rest. When the inmates bring the pizzas to the cells, the effect, inmates say, is immediate.

Their eyes light up like it s Christmas, said Jonathan Scott, whose nametag reads Chef Jonathan, as he waits for trial on an armed robbery charge.

Dart said he decided to sell the pizzas to raise money for the program. Initially, he planned to have the inmates sell them to correctional officers. But the jailers weren t interested in buying food prepared by inmates who might take the opportunity to add something to the recipe. Dart said they also groused that inmates were being coddled. So the sheriff decided to give the inmates, who can already use their own money to buy things like chips, a chance to purchase pizzas. Dart now hopes he can get his hands on a food truck and sell his pizza outside the jail and nearby courthouse, where good food is hard to find.

Gidwitz is game to raise money for the truck, too. But he wonders why Dart would stop there.

Maybe, he said, you could get trustees to sit right outside the jail and sell pizzas from there.

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Circuit Split: Expansion of Title VII Protections and Sexual Orientation as a Subset of a Protected Class

Circuit Split: Expansion Of Title VII Protections And Sexual Orientation As A Subset Of A Protected Class

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex or national origin. Title VII has been supplemented via legislative action to also prohibit discrimination due to pregnancy (Pregnancy Discrimination Act of 1978), age (Age Discrimination in Employment Act) and disability (Americans with Disabilities Act of 1990). Now the question is whether sexual orientation should be considered a “protected class” and/or a subset of one of the aforementioned already-protected classes. At present, there is no determinative legislative guidance on this specific question, while two federal circuit courts have addressed this exact issue in the last 60 days and reached conflicting results.

No Cause of Action: Evans v. Georgia Regional Hospital

Jameka Evans was a security officer at Georgia Regional Hospital from August 1, 2012, to October 11, 2013. After leaving the hospital voluntarily, Ms. Evans maintained that she was denied equal pay, harassed and physically battered. She also alleged discrimination because she did not carry herself in a “traditional womanly manner,” she was homosexual and she identified with the male gender. Ultimately, Ms. Evans sued Georgia Regional (among other defendants) for such alleged discriminatory actions. The United States District Court for the Southern District of Georgia dismissed Ms. Evans’ Title VII claims, determining that then-established case law from all of the federal circuits “was not intended to cover discrimination against homosexuals.” Reasoning that a claim of discrimination based on gender, non-conformity was really “just another way to claim discrimination based on sexual orientation” regardless of the way it was characterized, her case was dismissed. Ms. Evans timely appealed the district court’s ruling and the U.S. Equal Employment Opportunity Commission (EEOC) filed an amicus curiae brief in support of her position. The EEOC took the position that Ms. Evans presented two cognizable causes of action for discrimination under Title VII based upon her sexual orientation and gender identity/non-conformity.

The Eleventh Circuit disagreed, relying upon its prior opinion holding that Title VII does not prohibit discharge for homosexuality. Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. Mar. 10, 2017). The court also distinguished two decisions issued by the United States Supreme Court, holding that, while these decisions may allow a plaintiff to bring a claim under Title VII due to discrimination arising from gender non-conformity and sexual orientation, the Eleventh Circuit nonetheless is not permitted to deviate from precedent established in its prior rulings. At the time the opinion was issued, on March 10, 2017, the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth and Tenth Circuits had all similarly held that sexual orientation was not a prohibited basis for discriminatory acts under Title VII. Such uniformity among the circuit courts lasted less than a month after the Eleventh Circuit issued its opinion in Evans.

Cause of Action: Hively v. Ivy Tech Community College of Indiana

On April 4, 2017, the Seventh Circuit issued an opinion holding that a person who alleges they experienced employment discrimination based on their sexual orientation has put forth a claim of sex discrimination for Title VII purposes. Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017). Kimberly Hively was openly homosexual and began teaching as an adjunct professor at Ivy Tech Community College in 2000. From 2009 to 2014, Ms. Hively applied for six full-time positions, however she was not chosen for any of these opportunities. In July 2014, she was notified that her part-time contract was not being renewed, effectively terminating her employment with the College. Ms. Hively filed a complaint with the EEOC, followed by a complaint in the United States District Court for the Northern District of Indiana. The District Court promptly dismissed Ms. Hively’s complaint, relying on a line of previous Seventh Circuit holdings that stand for the proposition that sexual orientation is not a protected class under Title VII. An appeal to the Seventh Circuit followed. The court initially affirmed the lower court’s decision, reasoning that in enacting Title VII, “Congress had nothing more than the traditional notion of ‘sex’ in mind when it voted to outlaw sex discrimination. ” In essence, sexual orientation did not legally equate to “sex” as a protected class as specifically identified in Title VII. However, “[i]n light of the importance of the issue,” a majority of the judges voted to rehear the case en banc.

The task before the Seventh Circuit on rehearing was not to establish a new protected class, but rather one of statutory interpretation to determine whether sexual orientation should be considered a subset of the protected class of sex. In evaluating the legislative intent of Title VII and a number of Supreme Court cases addressing similar, though not controlling issues, the full panel of judges determined that “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'” Accordingly, the Seventh Circuit concluded that a person who alleges that they experienced employment discrimination based on their sexual orientation has put forth a case of sex discrimination for Title VII purposes.

What Do These Opinions Mean for You as an Employer?

As it currently stands, the law applicable to any employer will be determined by their physical location. Since there is currently a split among the federal circuits and this appears to be a rapidly changing area of the law, employers should stay up-to-date on opinions issued by their controlling courts. This may include an ultimate opinion by the Supreme Court, as well as legislative guidance that may be issued on the topic. Even those employers located in a geographic footprint encompassed by a federal circuit that does not recognize a cause of action for sexual orientation discrimination under Title VII should expect fierce opposition from not only the aggrieved employee, but also entities such as the EEOC, should a similar legal issue arise within their place of employment.

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