December 12, 2017

Archives for August 31, 2012

Tenth Circuit: Unpublished Opinions, 8/30/12

On Thursday, August 30, 2012, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

Hassoun v. Holder, Jr.

United States v. Perry

Pinson v. Berkebile

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Failure to Swear in Jury Not Plain Error

The Tenth Circuit published its opinion in United States v. Turrietta on August 29, 2012.

Turrietta’s attorney knew the jury was not sworn in but deliberately failed to object until after the verdict convicting his client was in and the jury had been excused. The failure to contemporaneously object meant the court analyzed the unsworn jury issue for plain error. The court did not decide whether failure to give the oath violated the defendant’s Sixth Amendment right to a jury trial as alleged because even if it did, it was not plain error. There is “no binding authority, whether in the form of a constitutional provision, statute, rule, or judicial decision, addressing whether the Sixth Amendment right to trial by jury necessarily requires the jury be sworn.” Therefore, failure to give the oath could not be an “obvious” error.

Tenth Circuit: Leave of Absence as ADA Reasonable Accommodation Has Limits

The Tenth Circuit published its opinion in Robert v. Board of County Commissioners on August 29, 2012.

Catherine Robert was terminated from her offender supervision officer position after being out on FMLA leave for surgery. She sued the county, its commissioners, and her supervisor for FMLA leave retaliation, ADA discrimination, breach of contract, and violation of due process rights. Summary judgment was granted on all claims in favor of all defendants and the Tenth Circuit affirmed.

At the time of her termination, the plaintiff was unable to perform an essential function of her job: offender site visits. A few weeks after her FMLA leave expired, she was still unable to walk unassisted. The Tenth Circuit stated that a leave of absence can be a reasonable accommodation under the ADA, but an open-ended leave may not be reasonable. “The employee must provide the employer an estimated date when she can resume her essential duties.” A second limitation on leaves is duration. “A leave request must assure an employer that an employee can perform the essential functions of her position in the ‘near future.’” The court did not define a reasonable duration , but did reference an Eighth Circuit case that held six months to be unreasonable. The court mentioned the small size of the plaintiff’s department and the strain her inability to perform site visits and other duties put on her co-workers.

The Tenth Circuit held Robert’s prima facie FMLA retaliation claim had been overcome by the employer’s legitimate reason for her termination: she failed to return to work with a required release at the end of her FMLA leave. Robert’s other claims failed because public employees in Kansas are at-will.

Tenth Circuit: Unpublished Opinions, 8/29/12

On Wednesday, August 29, 2012, the Tenth Circuit Court of Appeals issued three published opinions and five unpublished opinions.

United States v. Bell

United States v. De Lucio-Olvera

United States v. Herget

Ramsey v. Citibank

Tilley v. Maier

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Announcement Sheet, 8/30/12

On Thursday, the Colorado Court of Appeals issued eight published opinions and thirty-one unpublished opinions.

Published

People v. Doubleday

In re the Parental Responsibilities of D.T., a Child, and Concerning Lavattiata

Hanson v. Colorado Department of Revenue

Stulp v. Schuman

Progressive Casualty Insurance Company v. Moore

Colorado Off-Highway Vehicle Coalition v. Colorado Board of Parks and Outdoor Recreation

Colorado Common Cause v. Gessler

Communications Workers of America 7717 v. Industrial Claim Appeals Office

Summaries of published cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.