December 7, 2016

Courthouse of the U.S. District Court Closed on Friday, December 9, 2016

The U.S. District Court for the District of Colorado announced a courthouse closure. On Friday, December 9, 2016, from 12:45 to 6 p.m., the courthouse will be closed for business due to a law enforcement training exercise. The Alfred A. Arraj Courthouse will be closed to the public. The Byron G. Rogers Courthouse will remain open, but no court business will be conducted. Court business in the Durango and Grand Junction courthouses will be conducted as scheduled. All electronic systems to include CM/ECF and PACER will remain in operation during this time period. For more information, click here.

Colorado Court of Appeals: Cafeteria Plan Deductions Should Not Be Included in Unemployment Compensation Calculations

The Colorado Court of Appeals issued its opinion in Meyer v. Industrial Claim Appeals Office on Thursday, November 17, 2016.

Lizabeth A. Meyer (Claimant) received unemployment compensation benefits in the amount of $500 per week, effective March 11, 2012, and continuing until May 19, 2012, when she obtained full-time employment. During the majority of that period, she worked part-time at Coach, and for the last two weeks she worked full-time at Sutrak. A deputy for the Division of Unemployment Insurance conducted an audit of Claimant’s file and determined that she had been overpaid unemployment compensation benefits in the amount of $1,712 for the period from March 18, 2012, through May 19, 2012. The deputy found that claimant had underreported her hours and earnings for certain weeks during that period, and assessed a monetary penalty of $1,112.80 against her.

Claimant appealed the deputy’s determination and an evidentiary hearing was held, at which Claimant conceded that the hours reported on her paystubs, rather than those she reported online, accurately reflected the hours she worked. However, she asserted that she was only required to report her taxable earnings, not her gross earnings. The Division’s hearing officer accepted Claimant’s concessions about the hours worked but held that she was required to report her gross earnings. The hearing officer found that because Claimant knowingly misrepresented her gross earnings, she was overpaid $1,890.64 in unemployment compensation, and assessed a monetary penalty of $1,228.91. Claimant appealed to the Industrial Claim Appeals Office, and the Panel affirmed. Claimant then appealed to the Colorado Court of Appeals.

Claimant contended the Panel erred in determining she was required to report her gross earnings rather than her taxable earnings, arguing she was not required to report any contributions to her 26 U.S.C. § 125 cafeteria plan. The court of appeals agreed. The court found that the Division required Claimant to report her gross earnings, but that was in contravention of the definition of “wages” in C.R.S. § 8-70-142. The court held the Division erred in requiring Claimant to report her gross wages without deducting contributions to her § 125 cafeteria plan.

Claimant next contended that the Panel erred in upholding the hearing officer’s determination that she knowingly failed to report her earnings accurately, and that both the Panel and hearing officer erred in determining she had received an overpayment and imposing a monetary penalty. The court of appeals agreed in part. The court found that, for the period from May 6 through May 21, 2012, Claimant was not eligible for unemployment compensation benefits and therefore was overpaid $1,000 for this period. The court found the Division did not err in imposing the 65% penalty for this period, in the amount of $650. However, for the period for which Claimant worked for Coach, she was eligible for benefits. Because the Division calculated Claimant’s overpayment based on her gross earnings rather than her taxable wages, the Division erred in its calculations. The court of appeals analyzed Claimant’s taxable wages and found an overpayment of $76 for the period in which she worked for Coach. The 65% penalty for this amount is $49.40, for a total of $125.40 owed for the period in which Claimant worked for Coach.

The court of appeals affirmed in part, reversed in part, and remanded with directions for the Panel to issue a new order regarding the $76 overpayment.

District of Colorado Local Rules Amended, Effective December 1, 2016

The U.S. District Court for the District of Colorado has adopted changes to its local rules, effective December 1, 2016. The changes include a new Rule 2.1, “Forms of Action,” and an entire section on Local Patent Rules.

New Rule 2.1 clarifies that a proceeding not defined as a civil action under F.R.C.P. 2 should be filed as a civil miscellaneous (“mc”) or registered judgment (“rj”) action only if included in the List of Miscellaneous Cases. Rule 5.3 was amended by the addition of a subparagraph (c) dealing with written discovery requests or responses. The subparagraph specifies that other than in prisoner cases or as otherwise ordered, discovery requests shall be submitted by email or in other non-paper form. There were several other minor changes to various rules.

Section III on the Local Patent Rules is a comprehensive section dealing with the handling of patent claims in the U.S. District Court. The local rules are to be cited as D.C.Colo.LPtR _. The rules are to be known as the Local Rules of Practice of the United States District Court for the District of Colorado – Patent Rules. The rules specify that the civil local rules apply except as inconsistent with the patent rules. Topics addressed in the local patent rules include scheduling conferences and orders, discovery and confidentiality, infringement, invalidity, declaratory judgment, reliance on counsel’s opinion, claim construction, final infringement and invalidity contentions, and word limits. The remaining sections were renumbered accordingly.

Comments about the local rules may be submitted to the Advisory Committee on the Local Rules via email. For more information about the local rule changes, click here. For a redline of the changes, click here.

Tenth Circuit: Employer’s Payment of Food Expenses Exempt from FLSA Overtime Compensation Rate

The Tenth Circuit Court of Appeals issued its opinion in Sharp v. CGG Land (USA), Inc. on Friday, November 4, 2016.

CGG is a company that provides seismic mapping services at remote locations throughout the United States. CGG employees are required to travel away from home for several weeks to the remote locations. Generally, employees travel for four-to-eight week intervals, then return home for two-to-four week intervals before returning to the field. While traveling, CGG provides a $35 per diem for meals, except when food is provided. A group of employees filed suit against CGG, arguing CGG violated the Fair Labor Standards Act (FLSA) by not including in their regular reimbursement rates the $35 per diem for food during travel periods.

After stipulating to material facts in district court, including that $35 was a reasonable amount for daily meals, each party moved for summary judgment. The district court granted summary judgment to CGG. The district court agreed with CGG that the per diem payments were exempt travel expenses under 29 U.S.C. § 207(e)(2). The employees appealed.

On appeal, the employees argued the payments were not exempt for days when they traveled to and from remote job sites, because they did not do any work on those days. Employees further claimed the payments were not exempt for days they spent at the job sites because they were no longer traveling over the road. Employees also claimed CGG waived all defenses except its claim that the payments were exempt under § 207(e)(2). The Tenth Circuit rejected each contention in turn.

The Tenth Circuit noted that the Department of Labor rejected the argument that food costs may not be included as “living expenses.” The Tenth Circuit agreed with the DOL that the cost of food is an expense the employee incurs for the employer’s benefit and therefore is an exempt living expense. Employees argued they were not “traveling over the road” once they reached the job site, but the Tenth Circuit characterized this as a hyper-literal construction of the word “traveling.” The Tenth Circuit read “traveling” as all time away from home, not just time in transit. Employees also suggested CGG paid the $35 as part of a scheme to set an artificially low hourly pay rate to underpay overtime pay. The Tenth Circuit found the parties’ stipulation that the $35 per diem was reasonable defeated this argument.

The Tenth Circuit affirmed the district court’s grant of summary judgment to CGG.

Colorado Court of Appeals: Denver’s Civil Service Commission May Impose Burden on Employee in Adverse Personnel Action

The Colorado Court of Appeals issued its opinion in Marshall v. Civil Service Commission of the City & County of Denver on Thursday, October 20, 2016.

Burden of Proof—Adverse Personnel Action.

Police officer Marshall was suspended by the Executive Director of Safety (Director). He appealed the Director’s decision, and a hearing officer found that he proved the Director’s actions to have been clearly erroneous. The Director appealed to the Civil Service Commission of the City and County of Denver (Commission), which reversed the hearing officer’s decision. Marshall then challenged the Commission’s decision in district court, and the court upheld the Commission’s decision. Marshall appealed.

Marshall’s sole contention on appeal was that the Commission violated the Denver City Charter (Charter) by imposing, by rule, the burden on him to show that the Director’s action was clearly erroneous.

The Court of Appeals noted that the Charter does not expressly address the burden of proof and it delegates unlimited rulemaking authority to the Commission regarding hearing procedures. The burden of proof in a hearing is a matter of procedure. The Commission may place the burden of proof on the employee by rule as long as the rule is consistent with the Charter. Here, the Court discerned no inconsistency.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Truth-in-Leasing Act Prohibits Trucking Company Charging Independent Truckers for Satellite System

The Tenth Circuit Court of Appeals issued its opinion in Fox v. TransAm Leasing, Inc. on Tuesday, October 18, 2016.

Plaintiffs, three independent truckers representing themselves and a class of similarly situated truck drivers (“truckers”), contend that Defendants TransAm Trucking, Inc. and TransAm Leasing, Inc. (collectively “TransAm”) violated the Department of Transportation’s truth-in-leasing regulations by requiring the truckers, who lease their trucks and driving services to TransAm, to pay TransAm $15 each week to use TransAm’s satellite communications system. This $15 usage fee violates 49 C.F.R. § 376.12(i), which precludes a motor carrier like TransAm from requiring a trucker “to purchase or rent any products, equipment, or services from the authorized carrier as a condition of entering into the lease arrangement.” The Tenth Circuit, therefore, affirmed partial summary judgment for the truckers. That ruling will support the truckers’ requests for injunctive and declaratory relief. But the truckers also asserted a claim for damages, which the district court certified as a class action. Because the truckers failed to present any evidence of their damages resulting from the unlawful usage fee, however, the district court should have entered summary judgment for TransAm on that damages claim. Having jurisdiction under 28 U.S.C. § 1292(b), therefore, The Tenth Circuit AFFIRMED the district court in part and REVERSED in part.

Happy Labor Day from CBA-CLE!

flagHappy Labor Day! The CBA and CLE offices will be closed on Monday, September 5, 2016, in observance of Labor Day.

Labor Day is always celebrated on the first Monday in September. It was established to honor the American labor movement and the social and economic achievements of American workers.

There is some debate as to who first proposed Labor Day. Many credit Matthew Maguire, a machinist who later became the secretary of Local 344 of the International Association of Machinists in Paterson, N.J. Others contend Labor Day was proposed by Peter J. McGuire, general secretary of the Brotherhood of Carpenters and Joiners and a cofounder of the American Federation of Labor. Regardless of whose idea it was, though, the first Labor Day was celebrated in New York City on Tuesday, September 5, 1882.

The Colorado legislature enacted Labor Day in 1887, and on June 28, 1894, Congress enacted a bill making the first Monday in September a national holiday, signed by President Grover Cleveland after the end of a bloody strike, the Pullman Strike.

Today, Labor Day is generally celebrated with barbecues and picnics, but the original plan for Labor Day was outlined in the first proposal as a street parade to exhibit to the public the strength and esprit de corps of the trade and labor organizations of the community, followed by a festival for the recreation and amusement of the workers and their families. Later, the day included speeches by prominent figures in the labor movement, although that has largely been abandoned today.

Denver celebrates Labor Day weekend with the Taste of Colorado festival, held in Civic Center Park. Additionally, the Colorado State Fair will take place in Pueblo this weekend, Colorado Springs will host its annual Labor Day Liftoff Hot Air Balloon festival, and the Buffs and Rams will have their annual showdown at Sports Authority Field at Mile High Stadium tonight.

No matter what your plans for the weekend include, we hope you have a happy and safe weekend, and a great Labor Day.

Public Comment Period Open for Changes to 10th Circuit Local Rules

On Friday, August 26, 2016, the Tenth Circuit Court of Appeals released proposed changes to the Tenth Circuit Rules, effective January 1, 2017. These rule changes are in addition to the changes to the Federal Rules of Appellate Procedure that take effect December 1, 2016. The changes include a reduction in word count for briefs; primary brief word limits have been reduced from 14,000 to 13,000 and reply brief word limits have been reduced from 7,000 to 6,500. The word limit changes are summarized in a new Appendix to the Federal Rules of Appellate Procedure. The changes to the rules also address when filings are timely under F.R.A.P. 4, clarify service dates when filings are completed electronically, and require attorneys to explain the criminal process and right to object in a defendant’s native language.

Comments regarding any of the changes may be submitted via email to clerk@ca10.uscourts.gov. For a memo outlining the various amendments, click here. For a redline of the changes, click here.

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: Findings of Fact Needed to Determine Whether Termination Caused by Employer’s Belief that Employee Engaged in Protected Activity

The Tenth Circuit Court of Appeals issued its opinion in Bird v. West Valley City on Monday, August 8, 2016.

Karen Bird was hired at West Valley City’s animal shelter in 2001, and was promoted to manager by Kelly Davis, her direct supervisor, in 2002. In 2005, West Valley City’s human resources manager, Shirlayne George, investigated the shelter and reported several negative comments about Ms. Bird by fellow employees. Mr. Davis was also the subject of several complaints, especially by women, and Ms. George investigated him in 2009. Most of the women who complained about Mr. Davis were either fired or voluntarily left the animal shelter shortly after complaining. Ms. Bird and Mr. Davis had a disagreement in 2009, and their already strained relationship deteriorated thereafter, to the point where Ms. Bird would not look Mr. Davis in the eye and could not stand to be in the same room as him.

In October 2011, the Salt Lake Tribune published an article about a cat that had endured two failed euthanasia attempts in the shelter’s gas chamber. About a week later, a reporter called the shelter after receiving an anonymous tip about a planned mass-euthanasia due to overpopulation. Both Layne Morris, the Community Preservation Department Director and Mr. Davis’s direct supervisor, and Mr. Davis believed that the anonymous tip had come from Ms. Bird, although she denied it. Ms. Bird was notoriously against using the gas chamber for euthanasia and was one of the few individuals privy to the information about the shelter’s overpopulation. Shortly after this incident, Ms. Bird emailed Ms. George that she could not take any more of Mr. Davis’s harassment. She filed a formal complaint on November 3, 2011.

Less than a week later, Mr. Davis issued two letters of reprimand to Ms. Bird regarding unauthorized use of overtime pay, despite the shelter’s usual practice of issuing less formal warnings before the letters of reprimand. On November 14, in response to Ms. Bird’s complaint, Ms. George undertook an investigation of the entire shelter. She received several complaints regarding both Ms. Bird and Mr. Davis, but more against Ms. Bird. Mr. Morris reviewed the results of the investigation and decided to discipline Ms. Bird for insubordination and failure to be courteous to the public or other shelter employees. He sent Ms. Bird a letter advising of the discipline on November 16, and ultimately terminated her employment on November 29. Mr. Morris testified that his decision to terminate Ms. Bird was not only based on the November 2011 investigation, but rather because of the deterioration of the relationship between Ms. Bird and Mr. Davis. Mr. Morris also testified that he had considered terminating Ms. Bird in December 2010 but Mr. Davis stayed his hand.

Ms. Bird unsuccessfully appealed her termination to Ms. George, then the city’s human resources director, and finally to the West Valley City Appeals Board. When all three appeals were unsuccessful, Ms. Bird filed a complaint in district court, alleging the city terminated her in violation of Title VII as a result of gender discrimination and subjected her to a hostile work environment; the city violated § 1983 because it terminated her as a result of gender discrimination in violation of the Equal Protection Clause; and both the city and Mr. Davis violated § 1983 because they terminated her in retaliation for exercising her First Amendment rights concerning the anonymous tip to the reporter. Ms. Bird maintained that she did not provide the anonymous tip, but because she was perceived as doing so, the termination in retaliation violated her First Amendment rights. Ms. Bird also brought state law claims for breach of contract and breach of the covenant of good faith and fair dealing. The district court granted summary judgment to defendants on all claims.

On appeal, the Tenth Circuit first considered Ms. Bird’s Title VII gender discrimination and hostile work environment claims. Applying the McDonnell Douglas burden-shifting framework, the Tenth Circuit evaluated Ms. Bird’s claim that the shelter had a pattern and practice of discriminating against female employees. However, Mr. Morris provided two legitimate, non-discriminatory reasons for terminating Ms. Bird: insubordination and failure to be courteous and cooperative with fellow employees. The Tenth Circuit evaluated Ms. Bird’s proffered reasons why Mr. Morris’s explanation was pretextual. She first contended that the reasons he outlined for terminating her differed from those offered in his deposition. The Tenth Circuit disagreed; the Circuit noted that Mr. Morris had offered specific examples in his deposition but his stated reasons for Ms. Bird’s termination were always insubordination and failure to be courteous. Ms. Bird also contended that the individuals to whom she appealed her termination offered different reasons, but the Tenth Circuit found that they merely offered different instances of her conduct. The Tenth Circuit held that no reasonable juror could determine that the city’s reason for terminating her was pretextual.

The Tenth Circuit similarly disposed of Ms. Bird’s hostile work environment claims. Although Mr. Davis’s conduct was deplorable, the Circuit did not find any evidence that his behavior was gender-based. Ms. Bird pointed to several statements, but the statements were generalized and did not point to specific instances. The Tenth Circuit refused to consider vague and conclusory statements as evidence of gender discrimination.

Turning next to the § 1983 Equal Protection claims, the Tenth Circuit found that because Ms. Bird alleged the same facts to prove her Equal Protection claim as she asserted to prove her Title VII claims, the Equal Protection argument failed for the same reasons. The Tenth Circuit also disposed of Ms. Bird’s state law breach of contract and breach of fiduciary duty claims. Ms. Bird relied on the employee handbook to argue her claims based on violation of the “Workplace Violence” section and the unwritten anti-retaliation policy. The Tenth Circuit found that the large disclaimer on the handbook eliminated all contractual liability for the city.

Finally, the Tenth Circuit evaluated Ms. Bird’s § 1983 First Amendment retaliation claims. Although Ms. Bird continued to argue that she did not make the anonymous tips to the reporters, she alleged that she was terminated in retaliation because the city believed she had made the tips. The Tenth Circuit found that the Supreme Court’s decision in Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016), controlled its analysis. The lower court did not evaluate Ms. Bird’s First Amendment claims because she could not show that she engaged in protected activity. The Tenth Circuit remanded for a determination of whether Ms. Bird raised a genuine issue of material fact that the city’s belief motivated its decision to terminate her employment.

The Tenth Circuit affirmed the district court’s grant of summary judgment on the Title VII gender discrimination and retaliation claims, the § 1983 Equal Protection Claims, and the state law contractual claims. The Tenth Circuit reversed and remanded on the § 1983 First Amendment claims.

Tenth Circuit: ERISA Plan Consultant Did Not Act as ERISA Fiduciary When Calculating Benefits

The Tenth Circuit Court of Appeals issued its opinion in Lebahn v. National Farmers Union Uniform Pension Plan on Monday, July 11, 2016.

Trent Lebahn contacted a consultant hired by his company’s employee pension plan for information regarding his monthly distribution amount. The consultant told Mr. Lebahn that he would receive $8,444.18 per month and verified the amount when Mr. Lebahn asked her to double-check. He retired and began receiving the monthly payments, only to be informed a few months later that he had been being overpayed by nearly $5,000 per month. The plan’s attorney told Mr. Lebahn that he would need to return over $43,000 in overpayments. Unable to retire on the plan’s true monthly distribution, Mr. Lebahn tried to go back to work, but could not find a job. Mr. Lebahn and his wife sued under ERISA, arguing that the plan, the pension committee, and the consultant’s employer incurred liability under theories of breach of fiduciary duty and equitable estoppel. The defendants moved for dismissal based on failure to state a claim, which the district court granted, and the Lebahns appealed.

On appeal, the Tenth Circuit first addressed the Lebahns’ claims for breach of fiduciary duty. The district court dismissed the claims because the consultant had not acted as an ERISA fiduciary when calculating the pension benefits. The Tenth Circuit agreed, finding that because the consultant lacked discretionary authority in administering the pension plan, she was not a plan fiduciary and therefore the district court properly dismissed the claims.

The Tenth Circuit found that the district court also correctly dismissed the Lebahns’ equitable estoppel claims. The district court found that the Lebahns had failed to plead facts to satisfy two of the five prongs of equitable estoppel: awareness of the true facts and justifiable reliance. The Lebahns failed to adequately address justifiable reliance on appeal and therefore forfeited their argument.

The Tenth Circuit affirmed the district court’s dismissal of the Lebahns’ claims.

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.