August 23, 2019

Archives for September 20, 2012

Tenth Circuit: Job Transfer for Purpose of Medical Treatment May be Reasonable Accommodation under the Rehabilitation Act

The Tenth Circuit Court of Appeals published its opinion in Sanchez v. Vilsack on Wednesday, September 19, 2012.

Clarice Sanchez was a secretary for the U.S. Forest Service in Texas who had fallen down stairs at work, which resulted in a brain injury that impaired her vision. Her vision loss was permanent and uncorrectable. She sought a hardship transfer to Albuquerque, where she had family and friends who could assist her and where she could receive medical treatment that was unavailable in her Texas location. Sanchez was not given a permanent transfer to Albuquerque, despite two open positions with equivalent pay that she was qualified for. After experiencing a hostile work environment, Sanchez took a pay cut to take a lower level Forest Service job in Albuquerque.

Sanchez sued her employer for failure to accommodate and hostile work environment under the Rehabilitation Act. The district court granted summary judgment for the Forest Service on both claims, after deciding the plaintiff was not disabled. Whether a person is disabled under the Rehabilitation Act is analyzed under the same standards as the Americans with Disabilities Act (ADA). Because this was a pre-ADA Amendments Act case, the Tenth Circuit decided it under the former ADA. The court considered her hostile environment claim waived. The court rejected the district court’s focus on Sanchez’s ability to do many things non-visually impaired people can do. Summary judgment was reversed because “Sanchez has produced ample evidence that “the manner in which” she sees is substantially limited as compared to the average individual. 29 C.F.R. § 1630.2(j)(4)(i).”

The court also disagreed with the Forest Service’s contention that the district court did not have to accept as true Sanchez’s “self-serving” affidavit. “So long as an affidavit is ‘based upon personal knowledge and set[s] forth facts that would be admissible in evidence,’ Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991), it is legally competent to oppose summary judgment, irrespective of its self-serving nature.”

The Forest Service also argued that it was not required to transfer the plaintiff because “accommodations are required only if an employee cannot perform the essential functions of her job.” After noting EEOC regulations and several other circuits that have held that accommodations are not limited to situations where they are necessary to allow the individual to perform the essential functions of the job, the Tenth Circuit held “as a matter of law that transferring an employee for the purposes of treatment or therapy may be a reasonable accommodation under the Rehabilitation Act.”

Tenth Circuit: To Prove Conspiracy, Agreement and Interdependence Elements May Be Inferred

The Tenth Circuit Court of Appeals published its opinion in United States v. Cornelius on Tuesday, September 18, 2012.

Corey Cornelius, a member of the Crips gang, was convicted of conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act (RICO), conspiracy to distribute crack cocaine, and conspiracy to distribute marijuana. Cornelius appealed on several grounds; the government cross-appealed the district court’s failure to impose the mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A) because he had a former felony drug conviction.

Cornelius argued there was insufficient evidence to convict him of RICO conspiracy because the jury acquitted him of a substantive RICO charge so therefore, they could not have found an enterprise existed. The Tenth Circuit rejected this argument, as it did in United States v. Harris.

The court also rejected his argument that the government failed to prove the interdependence among co-conspirators element of conspiracy on his crack cocaine charge and marijuana charge. There was ample evidence from which to infer interdependence and agreement between Cornelius and other drug distributors, including that he was a leader in the gang. “The jury did not need to find that the conspiracy could not have functioned without Cornelius; rather, it is sufficient that Cornelius was an operational link within it.”

After the jury informed the court it could not reach a decision on some of the counts, the court issued an Allen instruction urging jurors to reconsider their views and try to reach consensus on the remaining counts. Cornelius argued the Allen instruction was improperly coercive. The court found the language and timing of the instruction, the fact that it referred the jurors to instructions already given, and that jurors deliberated six more days after getting the Allen instruction, all indicated it was not impermissibly coercive. The court also found no abuse of discretion in the trial court’s failure to give Cornelius’s requested duress instruction.

After the trial was over, while the attorneys were speaking to the jury, one of the jurors gave a prosecutor a letter saying “he would be ‘willing to sit down and discuss . . . anything else that may help you in an effort to rid this cancer in our society.’” Cornelius argued he should receive a new trial or have his conviction reversed to this alleged juror impartiality. The trial court refused to hold an evidentiary hearing on this issue. Under FRE 606(b), the trial court’s decision was not an abuse of discretion. Jurors mental processes may not be inquired into, and internal juror partiality is inevitable to some extent.

Regarding the district court’s failure to impose the mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A), the Tenth Circuit held that district courts lack discretion to depart below applicable statutory mandatory minimum sentences, so the sentence on that count was vacated and remanded. The court also rejected Cornelius’s arguments that because of the disparity in crack cocaine versus powdered cocaine sentences, the mandatory minimum is unconstitutional. Additionally, the court held the Fairness Sentencing Act of 2010 is not retroactive.

Tenth Circuit: Unpublished Opinions, 9/19/12

On Wednesday, September 19, 2012, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Heaton v. American Brokers Conduit

United States v. Lancaster

Pinkey v. Adams County Sheriff Dep’t

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