May 24, 2017

Archives for August 1, 2016

Tenth Circuit: A Reasonable Jury Could Credit Plaintiff’s Version of Events, So Summary Judgment Inappropriate

The Tenth Circuit Court of Appeals issued its opinion in Foster v. Mountain Coal Co., LLC on Tuesday, July 26, 2016.

Eugene Foster worked at Mountain Coal’s West Elk Mine in Colorado when he turned his head suddenly on February 5, 2008, and injured his neck. He sought treatment the following day at a local ER and received a return-to-work form from the ER doctor saying he could return on February 8. However, due to a previously scheduled hernia repair surgery, he did not return to work until March 31. Mountain Coal held a meeting with Foster on February 10 to discuss the injury where his managers rejected the ER doctor’s return to work form and instead told Foster that he needed to have a doctor complete Mountain Coal’s return to work form. Foster said he would try to have it completed during his hernia surgery.

Foster was unable to have a hospital doctor complete the Mountain Coal return to work form, so he dropped it off with his regular doctor. Foster testified in his deposition that sometime in early March, he delivered the form to the Mountain Coal offices, where he left it on the HR person’s desk. When she told Foster she did not receive the form, he obtained another form from his personal doctor and delivered it to Mountain Coal on March 18. Foster continued to receive care for his neck injury at Mountain Coal’s direction.

On March 31, Foster returned to work with a Mountain Coal return to work form completed by his hernia doctor. On April 3, the general manager of Mountain Coal held a meeting with Foster and an HR employee. During the meeting, the manager confronted Foster about not seeing his personal physician for the neck injury. Foster confirmed that he hadn’t seen his personal physician, and averred that he told the managers that but they continued to request that he have the personal physician complete the return to work form. Foster was supposed to have retraining the following day but requested at the April 3 meeting that it be rescheduled to accommodate his appointment with a doctor about scheduling surgery for his neck. Foster was suspended indefinitely during the meeting. According to his account, it was for not seeing the personal physician before receiving the return to work form. According to Mountain Coal, it was because Foster lied about delivering the earlier return to work form.

Foster saw the specialist on April 4, who opined that he would not recommend surgery because Foster’s work was aggravating the neck condition. On April 9, Foster saw his personal physician, who opined that Foster should not return to his regular work activities. Foster received a letter from his personal physician on April 11 memorializing the doctor’s conclusions that Foster was unable to return to work, and immediately called Mountain Coal to inform them of the letter. He spoke to his direct supervisor.

Two Mountain Coal managers testified that they had decided to terminate Foster on April 9 because he had lied about leaving a return to work form on the HR person’s desk, while a third testified that Foster had not provided a return to work form with the correct dates for his release “and stuff.” On April 14, Foster received a letter advising him of his termination. Although the letter was dated April 11, it stated that the termination was effective April 9. The letter advised that Foster was being terminated for false information regarding a return to work slip.

After Mountain Coal terminated his employment, Foster filed a charge of discrimination with the EEOC and Colorado Civil Rights Division. He received a right-to-sue letter from the EEOC, and filed a complaint in district court in December 2012, seeking relief under the ADA and Colorado law. The district court entered summary judgment for Mountain Coal, and Foster appealed.

The Tenth Circuit first concluded that genuine issues of material fact existed regarding whether Foster had proved his ADA retaliation claim. Foster claimed that his requests for accommodation on April 3 and April 11 were protected activity, and his termination was a retaliatory adverse employment action. The Tenth Circuit evaluated Foster’s claims of requests for accommodation and found them sufficient to apprise Mountain Coal of his needs. Although the district court held that Foster’s April 3 remarks were not sufficiently direct and specific to constitute a request for accommodation, the Tenth Circuit found that the remarks conveyed a need to meet with the doctor in order to schedule surgery, which was sufficiently specific to trigger accommodations. The Tenth Circuit noted that Foster’s deposition testimony could be clearer, but it was clear enough to survive summary judgment. The Tenth Circuit also found that Foster’s April 11 request was clear, and found Mountain Coal’s attempt to retroactively terminate Foster disingenuous. The Tenth Circuit noted the discrepancies between Mountain Coal’s stated reasons for suspending and terminating Foster, and found that the suspicious timing could lead a reasonable fact-finder to infer that Mountain Coal learned of Foster’s request for accommodation and terminated him because of it.

The Tenth Circuit reversed the district court’s grant of summary judgment to Mountain Coal.

Tenth Circuit: Unpublished Opinions, 8/1/2016

On Monday, August 1, 2016, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Covalt v. Inmate Services Corp.

United States v. Sanchez

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

Hon. Francis C. Wasserman to Retire from 17th Judicial District Court

Wasserman (Formatted)On Friday, July 29, 2016, the Colorado State Judicial Branch announced the retirement of Hon. Francis C. Wasserman from the Seventeenth Judicial District Court, effective October 17, 2016. Judge Wasserman was appointed to the district court bench in July 2005, where he presides over a mixed docket of civil, criminal, juvenile, and domestic relations cases. Prior to his appointment, he was a Chief Trial Deputy District Attorney in the Seventeenth Judicial District and an adjunct professor of law at the University of Denver. He also served as a Merchant Marine and in the Navy, and had Top Secret security clearance. He received his undergraduate degree from the University of Florida in Gainesville and his law degree from the University of Florida Law School.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of the Seventeenth Judicial District and must have been admitted to practice law in Colorado for five years. Application forms are available from the State Judicial website or from the ex officio chair of the Seventeenth Judicial District Nominating Commission, Justice Nathan Coats. Applications must be received no later than 4 p.m. on September 1, 2016, and anyone wishing to nominate another must do so no later than 4 p.m. on August 25, 2016.

For more information about the vacancy, click here.

Colorado Court of Appeals: Defendant’s Request for Jury Instruction on Lesser Nonincluded Offense Does Not Concede Guilt

The Colorado Court of Appeals issued its opinion in People v. Geisick on Thursday, July 28, 2016.

Benjamin Geisick got into an argument with his girlfriend at a motel, and the motel manager called the police. The motel manager pointed Geisick out to an officer, who called to Geisick and tried to talk to him. Geisick attempted to flee, and the officer and Geisick engaged in a struggle. Geisick was ultimately arrested and charged with second degree assault on a peace officer and attempting to disarm a peace officer. He was also charged with possession of drug paraphernalia based on a methamphetamine pipe officers found in his pocket.

At trial, the officer and Geisick offered very different accounts of the altercation. At the close of evidence, Geisick asked the trial court to instruct the jury on two lesser non-included offenses, resisting arrest and obstructing a peace officer. The jury found Geisick not guilty of assault and attempting to disarm but guilty of resisting arrest, obstructing a peace officer, and possession of drug paraphernalia. He was convicted and sentenced, and he appealed.

On appeal, Geisick first argued that the trial court erred in denying his challenge for cause of one potential juror, forcing him to use a peremptory challenge. The Colorado Court of Appeals, following the Colorado Supreme Court’s opinion in People v. Novotny, determined that Geisick failed to show prejudice since the juror was dismissed and did not contribute to the guilty verdict.

Next, Geisick argued that the trial court erred in admitting hearsay evidence about the physical altercation with the officer. An officer who interviewed the officer involved in the altercation testified as to what he heard in the interview. The court of appeals concluded that any error in admitting the testimony was harmless. At trial, Geisick objected to the interviewing officer’s testimony, and the trial court agreed that the testimony was potentially impermissible hearsay because the officer was testifying as to the other officer’s truthfulness. However, the court allowed the testimony under the excited utterance and prior consistent statement exceptions to the hearsay rule. The court of appeals expressed doubt that the entirety of the altercating officer’s interview could be admitted as an excited utterance, and, because the altercating officer was not cross-examined about the interview, it could not be admitted as a prior inconsistent statement. Nevertheless, the court found that any error was harmless because the altercating officer described the incident in detail, the interviewing officer was not an eyewitness, the jury was aware that the interviewing officer was only testifying as to what happened in the interview, and it was unlikely that the interviewing officer’s testimony rendered the altercating officer’s account of the incident more credible since the jury acquitted Geisick on the assault and attempting to disarm charges.

Geisick next contended that the evidence was insufficient to support the convictions on the lesser non-included offenses. The court of appeals found that by proffering the lesser charges, he impliedly assented to the sufficiency of the evidence to support those charges. The court disagreed with a prior panel ruling on the same issue, which decided that the defendant had invited any error. The court of appeals found that by offering the instructions on the lesser non-included offenses, the defendant did not admit guilt on the charges, so invited error was inappropriate. However, because the defendant had to represent to the court that the non-included charges could be applicable, he affirmatively waived any argument about the sufficiency of the evidence.

The court of appeals found no error to support Geisick’s cumulative error arguments, and affirmed his convictions and sentence.

Colorado Court of Appeals: “For Sale” Sign Only Invites Viewer to Contact Listing Agent, Not Enter Property

The Colorado Court of Appeals issued its opinion in Rucker v. Federal National Mortgage Association on Thursday, July 28, 2016.

Ellyn and David Rucker decided to purchase a house that their daughter, Kristin, would rent from them. David placed an offer on a house for which Kristin had had a showing with a Heter & Co. listing agent, but Ellyn had not seen the property, so Kristin took Ellyn to the house. There was a “For Sale” sign in the yard and a small notice on the door warning that trespassers would be prosecuted. After walking around the house and looking through some windows, Ellyn started walking from the house down the paved walkway to return to the car. She fell and sustained injuries.

Ellyn sued Federal National Mortgage Association (FNMA) and Heter for damages, alleging she was an invitee under the Premises Liability Act (PLA) because the “For Sale” sign constituted an implied invitation to the public. She also argued that she was an invitee because she was present on the property for purposes of a business transaction. The trial court disagreed and concluded Ellyn was a trespasser, finding that because she never obtained the express or implied consent of the landowner, she did not have an invitation to enter the property. The court did not address Ellyn’s business transaction argument. Upon Ellyn’s request, the court certified its “For Sale” sign order for immediate appeal. The court of appeals dismissed her appeal without prejudice, finding the issues were not ripe. Ellyn again raised the “For Sale” sign and business transaction issues in the trial court, and again the court ruled that Ellyn was not an invitee and rejected her arguments. She again requested the court to certify its order for immediate appeal.

Ellyn filed a second interlocutory appeal, seeking review of both the “For Sale” and business transaction orders. The court of appeals limited its review to the “For Sale” sign issue because the trial court declined to certify the business transaction issue for interlocutory appeal. On appeal, Ellyn contended that the “For Sale” sign created an implied representation that the public was requested, expected, or intended to enter the premises. The court of appeals disagreed. After examining case law from other jurisdictions, the court of appeals found that the “For Sale” sign created only an invitation to contact the listing agent, not to enter the property. Because the listing agent or landowner did not have a practice of allowing others to enter the property without express permission, Ellyn could not show that her entrance on the property was as an invitee.

The court of appeals affirmed the trial court.

Tenth Circuit: Unpublished Opinions, 7/29/2016

On Friday, July 29, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Cowan v. State of Oklahoma

Williams v. State of Oklahoma

United States v. Edmondson

Shepard v. Rangel

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