April 27, 2017

Archives for May 13, 2016

Governor Signs Rain Barrel and Rule Review Bills

This week, Governor Hickenlooper signed two bills into law. To date, the governor has signed 169 bills this legislative session.

On Monday, May 9, he signed HB 16-1257, “Concerning Implementation of Recommendations of the Committee on Legal Services in Connection With Legislative Review of Rules and Regulations of State Agencies,” by Rep. Beth McCann and Sen. Mark Scheffel. The bill provides for the continuation of certain state agency rules and regulations and the expiration of others, reflecting a review of state agency rules and regulations that were adopted or amended on or after November 1, 2014, and before November 1, 2015.

On Thursday, May 12, the governor signed HB 16-1005, “Concerning the Use of Rain Barrels to Collect Precipitation from a Residential Rooftop for Nonpotable Outdoor Uses,” by Reps. Daneya Esgar & Jessie Danielson and Sen. Michael Merrifield. The bill allows the collection of precipitation from the roof of a home in up to two rain barrels subject to certain conditions, including that the building is a single-family residence or a multi-family residence with up to four units; the precipitation collected is used for outdoor purposes on the residential property where the precipitation is collected, including irrigation of lawns and gardens; the precipitation must not be used for drinking water or indoor household purposes; and the State Engineer may curtail rain barrel usage if the diversion of water is causing or will cause material injury to senior water rights.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

Tenth Circuit: District Court Legally Erred in Evaluating Whether Workplace Harassers had Hostile Animus

The Tenth Circuit Court of Appeals issued its opinion in Lounds v. Lincare, Inc. on Tuesday, December 22, 2015.

Shawron Lounds was hired at Lincare’s Wichita facility to be a customer service representative in September 2011. She was the only African-American employee at the office, and was frequently subjected to offensive and racially-motivated comments. When company vice president Greg McCarthy visited the Wichita facility in January 2012, Ms. Lounds reported her concerns to him about the offensive and racially-charged statements. Mr. McCarthy asked Paula Adams, Lincare’s director of employee relations, to follow up with Ms. Lounds.

Later that day, Ms. Adams called the district manager to discuss Ms. Lounds’ concerns, and the district manager held a conference call with Ms. Lounds and her supervisor. Ms. Lounds relayed to the district manager the offensive statements and actions of her coworkers. Ms. Adams and the district manager mutually agreed that the employees who had participated in the offensive behavior would be disciplined, and issued final written warnings to the involved employees.

Ms. Lounds submitted a document to Lincare’s human resources department in February 2012, in which she commented that she felt “bombarded with racial slurs and comments” and detailing several specific instances. She further alleged that “nothing had changed” since her January 2012 meeting with Mr. McCarthy. However, in a conference call with Ms. Adams in March 2012, Ms. Adams inferred that the discipline of the three employees had been effective because Ms. Lounds did not allege any new instances of harassment.

In April 2012, Ms. Lounds filed a complaint with the Kansas Human Rights Commission (KHRC). That same month, she was disciplined for “excessive absenteeism,” specifically 16 unscheduled absences since September 2011. She was also reminded of the company’s policy against reporting absences via text message. Ms. Lounds responded by sending Lincare’s human resources department a “letter of rebuttal” detailing how the discipline was retaliatory. Between April and September 2012, Ms. Lounds continued to miss work, citing the racially charged environment as her reason for absenteeism. She was discharged in September 2012 for “ongoing, excessive absenteeism.” In October 2012, Ms. Lounds sent another letter to HR, alleging she had been the target of racial discrimination and retaliation and citing specific examples. She timely filed charges of discrimination with the EEOC and received a right to sue.

In March 2013, Ms. Lounds filed suit in district court, alleging unlawful discrimination and retaliation. In her deposition testimony in August 2013, Ms. Lounds cited several specific examples of discriminatory conduct and retaliation. After close of discovery and briefing, the district court granted summary judgment to Lincare, finding that no reasonable jury could have found the race discrimination sufficiently severe or pervasive to support a hostile work environment claim, and further finding that Ms. Lounds’ allegations of retaliation were either not materially adverse or not protected activity. Ms. Lounds timely appealed.

The Tenth Circuit evaluated whether there was sufficient evidence to support a hostile work environment claim under 42 U.S.C. § 1981 and found that there was. The Tenth Circuit found that Ms. Lounds had carried her burden to create a jury question regarding whether the harassment was sufficiently pervasive or severe. The Tenth Circuit noted that to support a claim, it is not enough that a plaintiff considers the work environment hostile; it must also be of the character that a reasonable person would view it hostile. Further, the plaintiff must show more than a few isolated incidents of hostility; the plaintiff must show a “steady barrage of opprobrious racial comments.” The Tenth Circuit evaluated the district court’s assertion that none of the offensive remarks were directed at Ms. Lounds and they were not made with scorn or animosity. Ms. Lounds argued the district court incorrectly applied summary judgment standards by failing to construe evidence in the light most favorable to her and by resolving factual disputes in Lincare’s favor. The Tenth Circuit agreed.

The Tenth Circuit found the district court committed reversible error by resolving the merits of the hostile work environment claim in Lincare’s favor at summary judgment. By evaluating whether the subjective intent of the specific remarks was benign, the district court legally erred because it should have instead focused on whether a reasonable jury could find the subjective and objective effect of the conduct was to pollute the work environment with harassing conduct. The Tenth Circuit specifically found that the repeated references to “nigga” and “lynching” were enough to racially charge the work environment. The Tenth Circuit reiterated that the district court committed legal error by focusing on whether the alleged harassers intended to cause harm, rather than whether a reasonable jury could find that the subjective or objective effect of the conduct was to pollute the environment with harassing conduct.

The Tenth Circuit affirmed the district court’s grant of summary judgment against Ms. Lounds on her Title VII retaliation claim, discerning no reversible error. The Tenth Circuit evaluated the parties’ arguments regarding pretext and discipline, and found that the district court correctly determined that Ms. Lounds’ theory that Lincare’s discipline and termination were pretextual was insufficient as a matter of law.

The Tenth Circuit reversed the district court’s grant of summary judgment on the discrimination claims and affirmed summary judgment on the retaliation claims, and remanded for further proceedings.

Colorado Court of Appeals: Announcement Sheet, 5/12/2016

On Thursday, May 12, 2016, the Colorado Court of Appeals issued no published opinion and 40 unpublished opinions.

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

Tenth Circuit: Unpublished Opinions, 5/12/2016

On Thursday, May 12, 2016, the Tenth Circuit Court of Appeals issued no published opinion and seven unpublished opinions.

Glapion v. Castro

United States v. Montaño

Frane v. JP Morgan Chase Bank, N.A.

Winger v. Meade District Hospital

United States v. Serrato

United States v. Sarber

United States v. Patterson

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.