August 22, 2017

Archives for August 15, 2016

Colorado Court of Appeals: Extended Proportionality Review Needed to Determine Whether Defendant’s Sentence Appropriate

The Colorado Court of Appeals issued its opinion in People v. McRae on Thursday, August 11, 2016.

Clifton McRae was convicted of distribution of methamphetamine. Due to his habitual offender status, his sentence was calculated at 64 years. He requested a proportionality review. After conducting an abbreviated proportionality review, the trial court determined that the sentence was grossly disproportionate to the crime and reduced it to 16 years. The People appealed.

The Colorado Court of Appeals noted first that if an abbreviated proportionality review gives rise to an inference of gross disproportionality, the court should engage in an extended proportionality review, comparing the sentence to that of similarly situated defendants.

Prior to the commission of McRae’s offenses, the Colorado General Assembly passed SB 13-250, which drastically decreased the sentences for certain crimes, including McRae’s, but the effective date was after the date from which his convictions arose. The People argued that the trial court entered an illegal sentence by retroactively applying SB 13-250. The trial court had noted that a defendant who committed the same crime a few months after McRae would be subject to only a 16 year sentence, although it did not rely on the not yet effective legislation in its determination of disproportionality. The Colorado Court of Appeals found no error.

The People also argued that because McRae’s triggering offenses and five of his prior convictions are per se grave or serious, the 64-year sentence failed to raise an inference of disproportionality. The court of appeals disagreed but remanded for an extended proportionality review. Although the court had made findings about the serious nature of the offenses, the court also noted that they were for personal consumption and not for substantial monetary gain. The court of appeals found the trial court did not err in considering these factors. The court noted that although it was tempted to approve of the trial court’s sentence, it should have conducted the further extended review to justify its sentence.

The court of appeals remanded for further proceedings.

Tenth Circuit: Refusal to Operate Vehicle in Manner Directed by Supervisor Qualifies as Refusal to Operate

The Tenth Circuit Court of Appeals issued its opinion in TransAm Trucking, Inc. v. Administrative Review Board on Monday, August 8, 2016.

Alphonse Maddin was driving a tractor-trailer for TransAm in sub-zero temperatures on I-88 in Illinois. He could not find the TransAm-approved gas station and his truck’s fuel meter was below E, so he pulled to the side of the highway. When he tried to pull back onto the road about 10 minutes later, he discovered his brakes were frozen and had locked up. He radioed TransAm’s road assist department and was advised that a repairperson would be sent to his location. He then discovered that his bunk heater was not working and there was no heat in the cab of the truck. He fell asleep while waiting for the repair person.

Approximately two hours later, Maddin’s cousin called him and woke him up. According to the cousin, Maddin’s speech was slurred and he sounded confused. When Maddin sat up, he realized his torso was numb and he could not feel his feet. He called road assist again to report that his bunk heater was not working, telling the dispatcher about his physical condition. The road assist dispatcher told him to stay where he was. About thirty minutes later, Maddin became concerned about continuing to wait in the freezing temperatures with no heat. He unhitched the trailer from the truck, pulled a few feet away, and called his supervisor, Larry Cluck, telling him he couldn’t feel his feet and was having trouble breathing because of the cold. Cluck told him not to abandon the trailer. Cluck advised Maddin that he could either drive off with the trailer or stay there and wait for the repairperson. Maddin drove off without the trailer. About 15 minutes later, the repairperson showed up and Maddin drove back to the trailer. When the truck was repaired, Maddin called Cluck for directions to the fuel stop. Cluck threatened to write Maddin up for missing his fuel stop or a late load. Later, Cluck informed Maddin that he was being written up for abandoning his trailer. He was terminated less than a week later for violating company policy by abandoning his load.

Maddin filed a complaint with OSHA, asserting TransAm violated the whistleblower provisions of the Surface Transportation Assistance Act (STAA) when it terminated him. After OSHA dismissed his complaint, Maddin requested a hearing with a Department of Labor ALJ. The ALJ concluded Maddin engaged in protected activity when he reported his defective vehicle to TransAm and again when he refused to obey Cluck’s order to either drive the defective vehicle or stay put. The ALJ found that the protected activity was inextricably intertwined with TransAm’s decision to terminate Maddin, and eventually awarded back pay from the date of discharge to the date of reinstatement, including a per diem allowance provided by TransAm. TransAm appealed the ALJ’s decision to the Administrative Review Board (ARB), which upheld the ALJ’s findings and backpay award. TransAm filed a petition for review in the Tenth Circuit.

TransAm first argued that frozen brakes are not the type of vehicle complaint contemplated by the STAA. The Tenth Circuit declined to resolve the question because the ARB’s decision could be affirmed under another aspect of the STAA also relied on by the ARB. The alternative provision makes it unlawful for an employer to discharge an employee who refuses to operate a vehicle due to safety concerns. TransAm argued that Maddin did not refuse to operate the vehicle since he drove away. The Tenth Circuit applied Chevron deference to the agency’s interpretation of the word “operate,” and found no authority to support that Congress intended to limit the word “operate” solely to driving. The ARB interpreted “operate” to encompass situations in which an employee refused to use a vehicle in the manner directed by the employer, and the Tenth Circuit majority approved of this definition. TransAm argued it would have been impossible for Maddin to drive off while the trailer’s brakes were frozen, so his refusal to drag the trailer could not have contributed to his termination because he could not “defy the laws of physics,” therefore it was not protected activity. The Tenth Circuit majority disagreed. The Tenth Circuit found ample evidence supporting the ARB’s causation finding.

TransAm also raised three challenges to the backpay award. First, it contended that the per diem allowances should not have been included, but the ARB found that because the allowances were paid whenever Maddin drove for TransAm and did not appear to be intended to offset expenses, they were properly included as lost earnings. TransAm argued that the per diems were intended to reimburse Maddin for expenses, but no record evidence supported its assertion. TransAm also challenged the ARB’s refusal to offset the backpay award for earnings from 2010 to 2012, arguing no evidence supported the ALJ’s finding that the income was less than Maddin’s incurred business expenses. The Tenth Circuit, however, noted that the ARB specifically referenced Maddin’s IRS tax records and a personal statement, both of which supported the ALJ’s finding. The Tenth Circuit also rejected TransAm’s argument that Maddin was not entitled to backpay with interest for the entire period between his termination and reinstatement, finding TransAm’s statements conclusory, self-serving, and unsupported.

The Tenth Circuit denied TransAm’s petition for review. Judge Gorsuch dissented; he would not have applied Chevron and instead would have relied on the dictionary definition of “operate” in determining whether Maddin operated the vehicle in defiance of his supervisor’s orders.

Tenth Circuit: Unpublished Opinions, 8/12/2016

On Friday, August 12, 2016, the Tenth Circuit Court of Appeals issued four published opinions and two unpublished opinions.

Vinez v. Sky Chefs, Inc.

United States v. Gruver

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