April 21, 2019

Archives for January 5, 2015

Tenth Circuit: Surmise and Conjecture Insufficient to Establish Causal Connection Between Discrimination Claim and Refusal to Promote

The Tenth Circuit Court of Appeals issued its opinion in Ward v. Jewell on Monday, November 24, 2014.

Mike Ward was once a supervisor for the Department of the Interior, Bureau of Reclamation. After another employee filed a charge of discrimination against Mr. Ward, he was demoted and Mr. Durrant took over his supervisory role. Mr. Ward complained to the EEOC about the reorganization, and a few years later, he tried unsuccessfully to get his old job back. Later, he applied for a managerial position in Provo, Utah, but was not selected. He invoked Title VII, blaming his employer for retaliation for failing to give him his old job back and passing over him for the Provo position. To survive summary judgment, he had to show a connection between the protected activity and the refusal to give him his old job back or hire him for the other supervisory position.

The Tenth Circuit analyzed Mr. Ward’s Title VII claims and found that he did not show a connection between the protected activity and the employment actions. Because of the remoteness in time between Mr. Ward’s EEOC claim and the Department’s refusal to terminate or demote Mr. Durrant and give Mr. Ward his old job back, Mr. Ward needed to use additional evidence to establish a causal connection between the two events. Mr. Ward could only produce evidence of a causal connection using surmise and conjecture, which was insufficient to be probative of retaliation, and a reasonable fact-finder could not infer retaliation from the decision to keep another employee in his job.

As to the second claim, the Tenth Circuit again found causation lacking in the failure to hire Mr. Ward for the Provo position. Mr. Ward would have had to prove retaliation through a “cat’s paw” theory, imputing the biased motive of a subordinate to the final decision-maker. Mr. Ward could not advance any evidence to show that the final decision-maker relied on information from subordinates. An initial panel recommended two candidates (Mr. Ward was not one of the two) to the final hiring agent, Mr. Walkoviak, but Mr. Walkoviak instead interviewed all five applicants for the Provo position and decided to hire an applicant based on his experience. The panel ultimately had little to no input on Mr. Walkoviak’s hiring decision, and the “cat’s paw” theory failed. Mr. Ward was unable to show any retaliation based on Mr. Walkoviak’s failure to hire him for the Provo position.

The Tenth Circuit found Mr. Ward unable to show discriminatory motive for either of the employment decisions, and affirmed the district court’s summary judgment in favor of the Department.

Tenth Circuit: District Court Judgment Affirmed Despite Multiple Assertions of Error

The Tenth Circuit Court of Appeals issued its opinion in United States v. Brinson on Monday, December 8, 2014.

An undercover officer in Oklahoma solicited prostitution from a website called Backpage.com, and agreed to meet a prostitute at a motel in room 123. At the motel, Officer Osterdyk met C.H., who appeared much younger than 21, and she agreed to perform oral sex on him. She had a cell phone open on the bed, and received text messages during the exchange saying “Don’t do nothing. It’s the cops.” After receiving these messages, C.H.’s demeanor changed, and Officer Osterdyk arrested her.

Other officers were in the parking lot of the motel and observed a black SUV approaching room 123. One of the officers spoke to the hotel desk clerk, who reported that room 123 was rented out to Tarran Brinson, a young black male with dreadlocks or braids wearing a red shirt and a red Chicago Bulls hat. The clerk told the officer that Brinson was a “regular” at the hotel and had rented out four other rooms that week, always paying cash. The clerk said that Brinson drove a black SUV and pointed it out in the parking lot. It was the same SUV the officers saw approaching room 123. Roughly 45 minutes later, the officers found Brinson in the parking lot of a nearby motel and arrested him.

Brinson was charged with conspiracy to engage in sex trafficking, sex trafficking of children, attempted sex trafficking of children, use of a facility in interstate commerce in aid of racketeering enterprise, coercion and enticement, obstruction of justice, and obstruction of justice by threat or corruption. After the government presented its case, Brinson moved for a judgment of acquittal on all charges. The court granted his motion as to the obstruction of justice by threat or corruption charge and denied it as to all other counts. A jury convicted Brinson on the remaining six counts. He appealed on six points of error.

Brinson first argued the district court erred by allowing expert witness testimony on child prostitution, arguing the testimony would not have aided the jury’s assessment and it was not reliable because the expert officer was not familiar with the facts of the case. The Tenth Circuit disagreed. The officer presented testimony on certain terms of the child prostitution trade, which proved helpful to the jury because other witnesses used these terms in testimony. Brinson also argued the testimony was not reliable because the expert officer was not familiar with the facts of the instant case. However, his testimony was used to define terms of the prostitution trade, not to verify the facts of the instant case, and there was no error in its admission.

Next, Brinson argued the admission of certain Facebook and text messages violated his Sixth Amendment Confrontation Clause rights. Ample evidence suggested Brinson had authored the Facebook messages, and they were therefore properly admitted as statements of a party opponent, not implicating the Sixth Amendment. As for the text messages, Brinson failed to specify which messages violated his Sixth Amendment rights, so his argument failed.

Brinson also argued the district court erred in allowing introduction of hearsay statements to Officer Osterdyk during his undercover investigation. The statements did not constitute hearsay, as they were not offered to prove the truth of the matter asserted, but rather to explain why Officer Osterdyk was in room 123, why he knew the price of the sexual act, and why he agreed to pay for oral sex. The statements were not hearsay, and the Tenth Circuit found that even if they had been, they were not “testimonial” and therefore no Confrontation Clause violation occurred.

Brinson next argued the district court erred by admitting a certificate authenticating debit card records. The prosecution admitted the certificate to authenticate the records as business records under FRE 902(11). The Tenth Circuit has previously held that such certificates are non-testimonial and therefore do not implicate the Sixth Amendment. Brinson argued that the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), was dispositive, but the Tenth Circuit disagreed, finding instead that the records in Brinson’s case differed from those offered in Melendez-Diaz because the certificate did not contain any “analysis” that would constitute out-of-court testimony.

Brinson argued the evidence obtained after his arrest should have been suppressed, since the police lacked probable cause to arrest him. However, the police had ample reason to arrest Brinson, and there was no error in allowing the evidence obtained after his arrest.

Finally, Brinson argued the evidence was insufficient to support his conviction on each of the six counts. The Tenth Circuit analyzed each count individually and found a reasonable jury could have found Brinson guilty beyond a reasonable doubt of each count.

The Tenth Circuit found that the district court committed no error, and Brinson’s convictions were affirmed.

Colorado Court of Appeals: Announcement Sheet, 12/31/2014

On Wednesday, December 31, 2014, the Colorado Court of Appeals issued 10 published opinions and 6 unpublished opinions.

People v. Wingfield

People v. Delsordo

People v. Vicente-Sontay

Gonzales v. Windlan

Long v. Cordain

Long v. Cordain (consolidated appeals)

People v. Archuleta-Ferales

People v. Cruz-Velasquez

In re Estate of Runyon

People in Interest of J.G.

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

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

Electronic Filing and Service Rule of Criminal Procedure Updated

On December 29, 2014, the Colorado Supreme Court approved and adopted Rule Change 2014(17), amending the Colorado Rules of Criminal Procedure. Rule Change 2014(17) amended C.R. Crim. P. 49.5, “Electronic Filing and Service System.” The changes were minor, including updating the web address for the e-filing system, changing capitalization and punctuation, and moving the rule about nunc pro tunc orders. The rule change also added a Committee Comment. A redline of the changes is available here.

For all of State Judicial’s adopted and proposed rule changes, click here.

Tenth Circuit: Unpublished Opinions, 12/31/2014

On Wednesday, December 31, 2014, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Porter v. Graves

Dixon v. Hartley

Wollnick v. Benson

American National Property & Casualty Co. v. United Specialty Insurance Co.

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