July 30, 2014

Change Without Judgment — Beware: Reasons Always Win (Part 4)

This is Part 4 of a series called “Change Without Judgment.” If you have not read Part 1, Part 2, or Part 3, go back and read them now. We’ll wait, and you’ll be glad you did.

Suppose we get past all those judgments and accusations and start moving toward the change we want. Does that mean we’ve put the negativity behind us for good?

Unfortunately, no. In fact, be warned: the longer we keep moving forward, the more we’ll hear those judgments again and again. At first, they’re bombastic and in your face. Over time, they get sneakier, camouflaging themselves as just plain reasonable and prudent common sense. Maybe you’ve heard some of those already: “Hasn’t this gone on long enough?” “Isn’t it about time you gave up this nonsense and got a real job?” “Haven’t you made your spouse/ family/ friends suffer enough?” Talk about a guilt trip.

I do an exercise in my workshops where I ask people to list all the reasons why they can’t have the change they want in their lives. It’s always the same list: not enough money, not enough time, I’m too old, I’m too young… and on it goes. You might take a moment and list your own reasons. Go ahead, we’ll wait. Done? Okay, I can’t see your list, but I guarantee you haven’t come up with anything that someone else doesn’t have on their list. I know that, because I’ve got a master list compiled from dozens of workshops to prove it.

If we all have the same list, then why do any of us ever even bother? What makes all these reasons so powerful that they take the wind out of our sails? Because they come with the full force of judgment. They’re right, we’re wrong. They’re reasonable, we’re crazy. And so it goes. Judgment is a powerful negative energy; it wins by making us feel bad until we plead guilty and quit trying to make the change we want.

How do we get past all these reasons and the judgment that makes them so strong? We can start by remembering three things. First, there will always be reasons why it’s wrong for us to pursue our dreams and visions and big ideas. Always. They come with the territory. Second, they’re always the same reasons, no matter what we’re trying to do. And third, they’re indisputable. They come with the full force of reason, and we can’t argue with them.

In other words, these reasons are part of the landscape of change. Which means that, if they’re filling your head, you’re right where you’re supposed to be! You wouldn’t be hearing them if you weren’t moving toward the change you want. You can quiet them by quitting, but you don’t want to do that. So what do you do about them?

The answer will surprise you.

To be continued…

Five years ago, Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. He recently gave himself the title “Change Guru” to describe his work helping individuals and organizations to make transformative changes. He leads lead workshops on that topic for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. To learn more, see http://kevin-rhodes.com/.

Seniors Holiday Luncheon — Thursday, December 6, 2012

Join the Denver Bar Association Seniors Committee at noon on Thursday, December 6, to share holiday cheer at its annual Holiday Luncheon.

The luncheon is a great opportunity to connect with familiar faces, enjoy tasty fare, and ring in the holiday season. Though the committee is for those “65 or better,” the committee welcomes all attorneys to the event. The luncheon will be held at the DBA offices, 1900 Grant St., Suite 900. Cost to attend is $12.

Please RSVP online or to Sara Crocker at scrocker@cobar.org.

Tenth Circuit: Barton Doctrine Prohibited Suit Against Bankruptcy Trustee By Debtor

The Tenth Circuit issued its opinion in Satterfield v. Malloy on Wednesday, November 28, 2012.

William Satterfield brought suit against Patrick J. Malloy III, the court-appointed trustee of Satterfield’s Chapter 7 bankruptcy estate. The district court concluded that the suit was barred by Barton v. Barbour, 104 U.S. 126 (1881), because Satterfield’s claims were based on actions Malloy took as trustee and Satterfield did not first obtain permission from the bankruptcy court. The Tenth Circuit agreed with the district court and its sister circuits and held that “Barton precludes suit against a bankruptcy trustee for claims based on alleged misconduct in the discharge of a trustee’s official duties absent approval from the appointing bankruptcy court.”

Satterfield argued that Barton did not apply because the trustee’s actions fell within Barton’s exception for ultra vires acts. The court found that even if a trustee acted with improper motives, Barton applied. The ultra vires exception applies to a trustee wrongfully seizing an outside party’s assets, not acts involving the debtor’s estate. The court also rejected Satterfield’s arguments that the Barton doctrine was inapplicable because 1) he sued the trustee in his individual capacity for tort actions, and 2) his bankruptcy proceedings had concluded. Courts applying Barton look to the substantive allegations to see if the claim is related to the trustee’s duties, not to whether the trustee is sued in his or her individual capacity. Also, the Barton doctrine continues to apply after a bankruptcy case is closed.

The Tenth Circuit  also rejected Satterfield’s claim that he was permitted to bring suit against Malloy under 28 U.S.C. § 959 as its exception to the Barton doctrine applies only to actions taken while “carrying on business.”

Tenth Circuit: Summary Judgment for Employer Affirmed on FMLA and FLSA Claims

The Tenth Circuit issued its opinion in Brown v. ScriptPro, LLC on Tuesday, November 27, 2012.

The plaintiff, Frank Brown, brought Fair Labor Standards Act (FLSA) and Family Medical Leave Act claims against his former employer, ScriptPro, who had terminated him. The district court granted summary judgment to ScriptPro.

Brown brought both FMLA interference and FMLA retaliation claims. Brown was fired only two days after his emails and meeting with supervisors about taking time off to care for his wife and new baby. While the court agreed that timing can be particularly suggestive in determining whether termination relates to the exercise of FMLA rights, it found that Brown would have been terminated regardless of his FMLA request. The court based this determination on a partially unfavorable performance evaluation and strong evidence of continuing performance issues after the evaluation. Because an employer’s intent is not necessary to FMLA interference claims and there is no burden-shifting McDonnell Douglas analysis, the court analyzed Brown’s arguments regarding ScriptPro’s proffered reason for firing him not as pretext, but rather as attempting to show a genuine dispute regarding its affirmative defense.

Regarding Brown’s FMLA retaliation claim, the court did use a burden-shifting McDonnell Douglas analysis. The court held that “‘[t]o raise a fact issue of pretext,’ Mr. Brown must ‘present evidence of temporal proximity plus circumstantial evidence of retaliatory motive.’” The court held that Brown had not raised a triable issue of fact on this claim either.

The Tenth Circuit also affirmed summary judgment on Brown’s FLSA claim. While he had shown he actually worked overtime, he failed to prove the amount of overtime he worked. The burden would have been on ScriptPro to show the amount of overtime worked only if it failed to keep accurate records. Because Brown failed to enter his time in ScriptPro’s timekeeping system as required, the failure to pay him overtime was not an FLSA violation.

Tenth Circuit: Unpublished Opinions, 11/29/12

On Thursday, November 29, 2012, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

Baker v. Allied Chemical Corp.

Weeks v. McLaughlin

 Leoff v. S and J Land Co.

McClelland v. Communitycare HMO, Inc.

Shrader v. Beann

United States v. Sanchez

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

Colorado Supreme Court: Reinstatement of License to Practice Law Inappropriate While Still Serving Parole as Part of Felony Conviction

The Colorado Supreme Court issued its opinion in In the Matter of Miranda on Tuesday, November 27, 2012.

Attorney Discipline—Reinstatement to Practice Law After Suspension for Felony Criminal Conviction—Parole—CRS § 18-1.3-401(3)—CRCP 251.29.

In this appeal, the Supreme Court considered whether the Hearing Board erred in reinstating Michael Miranda to the practice of law. Miranda is currently serving the mandatory parole portion of his felony criminal sentence for vehicular homicide/DUI.

The Hearing Board reinstated Miranda after concluding he had proven by clear and convincing evidence his rehabilitation, fitness to practice law, and compliance with disciplinary orders, as required by CRCP 251.29. However, the Court held that § 18-1.3-401(3) of the Criminal Code bars convicted felons from practicing law while they serve out all components of their sentences, including parole. Therefore, the Court reversed the Hearing Board’s order reinstating Miranda to the practice of law.

Summary and full case available here.

Colorado Supreme Court: Trial Court Did Not Properly Apply UCCJEA Test When Determining It Had Jurisdiction

The Colorado Supreme Court issued its opinion in In the Interest of Madrone on Tuesday, November 27, 2012.

Family Law—Uniform Child-Custody Jurisdiction and Enforcement Act—Initial Child-Custody Determination.

The Supreme Court held that the trial court failed to properly analyze jurisdiction under Colorado’s Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) when it exercised jurisdiction over minor child R.M. Contrary to the trial court’s ruling, the intent of the parties to remain in Colorado is not the test for whether a court has jurisdiction to determine initial custody matters. Rather, the trial court must analyze whether it has jurisdiction in this initial custody determination under Colorado’s UCCJEA as codified at CRS § 14-13-201.

Because the trial court applied the incorrect legal standard in determining jurisdiction, it erred when it held that Colorado had jurisdiction to determine the custody dispute concerning R.M. Accordingly, the Court vacated the trial court’s order assuming jurisdiction, made the rule absolute, and remanded the case for the trial court to conduct a full analysis under Colorado’s UCCJEA.

Summary and full case available here.

Tenth Circuit: In Forma Pauperis Motions Do Not Require Claims Be Screened for Merit Before IFP Granted

The Tenth Circuit issued its opinion in Buchheit v. Green on Tuesday, November 27, 2012.

Mr. Buchheit sued Carol Green, the clerk of the Kansas state appellate courts, and Shawnee County Court Judge Daniel Mitchell, alleging that the Kansas state appellate courts had denied his request to proceed in forma pauperis (IFP) and had refused to docket his state appeals. A magistrate judge granted Mr. Buchheit’s motion to proceed IFP in federal court. Ms. Green objected on the grounds that the magistrate judge failed to screen the complaint under 28 U.S.C. § 1915(e)(2). The district court overruled the objection but dismissed the complaint for lack of subject matter jurisdiction, finding that Mr. Buchheit sought retrospective relief against the state that is barred by sovereign immunity. The Tenth Circuit affirmed.

Ms. Green argued in her cross-appeal that the language of the IFP statute, 28 U.S.C. § 1915(e)(2), requires a magistrate judge to screen cases for merit before granting IFP because the statute states in part that “the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal (i) is frivolous or malicious.” While the purpose of the IFP statute is to discourage the filing of baseless lawsuits that a paying litigant generally would not file, the court held that the statute does not require IFP cases be screened for merit before the grant of IFP.

ICCES Implementation Delayed in 8th Judicial District

The implementation of the pilot transition to the Integrated Colorado Courts E-Filing System (ICCES) has been delayed in the 8th Judicial District, which encompasses Larimer and Jackson counties. Originally scheduled for December 3rd, the ICCES pilot program will now begin there on December 19th. All electronic case filing must be done through ICCES once a pilot district goes live. ICCES has already begun in the 14th, 17th, and 20th Judicial Districts, and will go statewide January 1, 2013. For more information on ICCES, go to the State Court Administrator’s Office website.

Tenth Circuit: Unpublished Opinions, 11/28/12

On Wednesday, November 28, 2012, the Tenth Circuit Court of Appeals issued two published opinions and seven unpublished opinions.

United States v. Solarin

Davis v. Zavaras

Castro v. Kondaur Capital Corp.

Heartland Animal Clinic v. Heartland SPCA Animal Medical

Branham v. Standifird

Jackson v. Standifird

United States v. E.V.

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

Colorado Court of Appeals: Announcement Sheet, 11/29/12

On Thursday, November 29, 2012, the Colorado Court of Appeals released no published and 26 unpublished opinions.

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

Loren M. Brown Named Outstanding Young Lawyer of the Year

The Colorado Bar Association Young Lawyers Division announced Tuesday that Loren M. Brown is this year’s recipient of the Gary L. MacPherson Outstanding Young Lawyer of the Year Award. Mr. Brown is a shareholder with Donelson, Ciancio & Grant, P.C., in Broomfield.

Mr. Brown, age 35, has already shown great leadership skills in both the legal community and the community at large. He serves on the Board of Directors for Metro Volunteer Lawyers, an organization that provides access to justice for those who could not otherwise afford it; CASA of Adams and Broomfield Counties, which trains and organizes court-appointed special advocates for child victims of abuse or neglect; and the 17th Judicial District Access to Justice Committee, which provides the public with legal resources.

The Gary L. McPherson Outstanding Lawyer of the Year award is given annually to a young lawyer with an outstanding record of professional success, community service achievements, a strong commitment to civic participation and inspiring others. Mr. McPherson was honored with the award in 1993; he went on to serve three terms in the state legislature. The award was renamed in his honor following his death in 2000.

Mr. Brown will be honored at the Young Lawyers Division holiday party on December 12 and at the Colorado Bar Foundation Annual Bar Fellows Dinner in January.