August 24, 2019

Mental Health Bill Vetoed; Restaurant Safety Bill Sent to Secretary of State Without Signature

On Thursday, June 9, 2016, Governor Hickenlooper vetoed SB 16-169, “Concerning Changes Related to the Seventy-Two-Hour Emergency Mental Health Procedure.” SB 16-169 would have made several changes to the procedures for 72 hour mental health holds for people who are dangerous to themselves or others, including allowing them to be detained in law enforcement facilities instead of hospitals. The governor vetoed the bill, citing concerns about due process protections for persons having mental health emergencies.

Governor Hickenlooper also sent a bill to the Secretary of State without a signature on Thursday. HB 16-1401, “Concerning the Regulation of Retail Food Establishments,” will become law at 12:01 a.m. on June 11, 2016, and will take effect on August 10, 2016. The bill increases the annual licensing fees paid by retail food establishments beginning January 1, 2017, with provisions for additional fee increases in 2018 and 2019. The bill also creates a new license for a limited retail food establishment that prepares or serves food that does not require time or temperature control for safety, provides self-service beverages, offers prepackaged commercially prepared food and beverages requiring time or temperature control or only reheating commercially prepared foods that require time or temperature control for safety for retail sale to consumers, and requires the CDPHE to ensure significant statewide compliance with the federal Food and Drug Administration’s voluntary National Retail Food Regulatory Program standards. Governor Hickenlooper cited concerns raised by county governments among his reasons for neither signing nor vetoing the bill.

For a complete list of Governor Hickenlooper’s 2016 legislative actions, click here.

Tenth Circuit: Summary Judgment in Favor of IBM on Age Discrimination Claims Affirmed

The Tenth Circuit Court of Appeals published its opinion in Roberts v. International Business Machines Corporation on Tuesday, November 5, 2013.

George Roberts said IBM fired him because of his age. He argued an instant messaging conversation between two of the company’s human resources managers proved as much. The pair were discussing whether to eliminate Mr. Roberts’s position on the ground that he didn’t have enough billable work to justify the expense of paying him. By the conversation’s end, the two HR managers agreed to retain him, but also to reevaluate him a few months if his performance continued to decline. On the way to these conclusions, one of the managers asked about Mr. Roberts’s “shelf life.” And it was this question, Mr. Roberts contended, that showed age played a direct role in his eventual discharge.

Any fair reading of the conversation, though, reveals that the “shelf life” here had nothing to do with Mr. Roberts’s age and everything to do with his workload, just as the district court held when granting IBM’s motion for summary judgment.  Mr. Roberts appealed.

The Tenth Circuit held that the instant message conversation unmistakably suggested that “shelf life” was nothing worse than an inartful reference to Mr. Roberts’s queue of billable work. And that was more than enough to preclude it from amounting to direct evidence of discrimination in violation of the federal Age Discrimination in Employment Act. The “shelf life” comment, qualified at most, as circumstantial evidence of an ADEA violation. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013) (“[I]f the content and context of a statement allow it to be plausibly interpreted in two different ways — one discriminatory and the other benign — the statement does not qualify as direct evidence.”)

Nor could Mr. Roberts amass sufficient circumstantial evidence to suggest IBM fired him on account of his age. When a plaintiff seeks to prove age discrimination under the ADEA using circumstantial rather than direct evidence, the court  evaluates the claim using the McDonnell Douglas burden-shifting approach: If a terminated employee can make a prima facie case of discrimination, the burden shifts to the employer to articulate a nondiscriminatory reason for firing the employee. If the employer can do that, the employee picks up the burden once more and can survive summary judgment by identifying evidence that could support a reasonable jury’s concluding that the employer’s proffered rationale is a mere pretext for discrimination. Tabor, 703 F.3d at 1216-17 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

Mr. Roberts alleged that IBM’s stated reason for firing him — poor performance — was implausible because the company didn’t consistently express negative views of his job performance: even though it criticized his work on occasion, at other times it told him he was improving. But changes in an employer’s estimation of its employee’s job performance, without more, cannot establish pretext as a matter of law. To suggest pretext, Mr. Roberts would have had to advance evidence that IBM’s changed evaluation of his performance wasn’t honestly arrived at. That he did not do, and the Tenth Circuit concluded he could not do with this record.

Mr. Roberts made state law claims based on Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989). First, the court concluded there were simply no facts in the record to support the conclusion that age was either a significantly motivating or a but-for factor behind Mr. Roberts’s discharge. Second, Roberts argued his termination came about as retaliation for his decision to voice concerns about his supervisors’ attitude toward his age. Even assuming for argument’s sake a retaliation claim under Burk is not in some way preempted by federal law, the Tenth Circuit saw no evidence in the record that could persuade a rational trier of fact that Mr. Roberts should prevail. Finally, nothing in the record suggested IBM’s conduct came anywhere close to conduct that met Oklahoma’s requirements for intentional infliction of emotional distress.

The district court’s grant of summary judgment was AFFIRMED.

Tenth Circuit: Employment Discrimination Settlement Agreement Enforceable; Extended Time to File Notice of Appeal Applies When Judgment Not Entered in Separate Document

The Tenth Circuit published its opinion in Walters v. Wal-Mart Stores, Inc. on Tuesday, January 8, 2013.

Bennie Walters brought employment discrimination claims against his former employer, Wal-Mart Stores, Inc. (“Wal-Mart”). The parties reached an apparent settlement during a settlement conference and signed a document entitled “Settlement Terms,” that set forth the key terms of the agreement, indicating a fuller agreement was to be prepared within 20 days. Walters later refused to sign the final agreement. The district court granted Wal-Mart’s motion to enforce the agreement and denied Walters’ motion for reconsideration but did not enter the judgment in a separate document. The court did, however, enter a “Minute Sheet” on the docket, but that unsigned document did not indicate that Wal-Mart’s motion had been granted.

Wal-Mart argued that Walters’ appeal was untimely because it was filed more than 30 days after the minute sheet entry and F.R.A.P. 4(a) requires a notice of appeal be filed within 30 days after a judgment is entered. F.R.C.P. 58(a) requires that a judgment must be set out in a separate document. The Tenth Circuit held that the unsigned minute sheet was not a separate judgment so Walters’ time for appeal was governed by F.R.C.P. 58(c)(2), which gave him 150 days to file a notice of appeal. The denial of Walters’ motion for reconsideration also did not start the clock. When no separate judgment has been entered, “an appellant remains entitled to the extended deadline for filing a notice of appeal even if he files a motion for reconsideration before the judgment is deemed ‘entered’ under F.R.C.P. 58(c).”

Once the court determined it had jurisdiction, it reviewed the district court’s decision to enforce the settlement agreement for abuse of discretion and found none. Under Oklahoma contract law, “[a] party generally may not repudiate a settlement agreement absent fraud, duress, undue influence, or mistake.” The court found no duress. The court also rejected Walters’ claim that he was improperly denied the 21 days to consider the settlement included in the final agreement. The provision was included in order to comply with the Older Workers Benefit Protection Act (“OWBPA”). Because the OWBPA 21-day consideration period for a valid waiver of an age discrimination claim does not apply to settlement of court cases, the agreement was not unenforceable on that basis. Because Walters did not challenge Wal-Mart’s compliance with OWBPA’s requirements that do apply to court cases, he waived that argument. The court affirmed the district court.

Tenth Circuit: Individual Plaintiffs Barred From Bringing Title VII Pattern-or-Practice Claims

The Tenth Circuit issued its opinion in Daniels v. United Parcel Service, Inc. on Tuesday, December 11, 2012.

Regina Daniels worked for United Parcel Service (UPS) as a dispatch specialist in a position that covered different shifts. She applied for promotions in 2005 and 2006 but, contrary to UPS policy, her manager never assessed her for the positions and UPS never followed up with her. She also had been training for the busiest shift, the “twilight window,” when a new policy was instituted that only full-time supervisors could work that shift. Her training ended. In 2008, Daniels met with UPS Human Resources to complain about her replacement in the cover position and assignment permanently to one shift and UPS’s lack of follow up to her promotion applications. In November 2008, Daniels filed an EEOC charge. The district court granted UPS’s motion for summary judgment on Daniels’s Title VII, ADEA, and Kansas state law claims.

The Tenth Circuit held that Daniels did not file her EEOC charge in a timely manner. Regarding the failure to promote claim, her conversation with human resources was not the relevant trigger date because it did not inform her of an adverse employment action. The court also rejected her arguments that 1) the futility doctrine applied, 2) the failure to promote was a compensation decision so a cause of action accrued with each paycheck and 3) the Morgan decision was overruled by the Fair Pay Act.

The court also held that individual plaintiffs may not bring pattern-or-practice claims so her denial of training claim also failed. Thus, she could only bring it in 2008 if the denial of training was a continuing violation and the court held it was not.

The court held that Daniels’s permanent assignment to night shift and replacement by a younger male in the cover position was not discrimination because it was not an adverse employment action. It also rejected her wage discrimination claim. The court held that to make out a prima facie case of wage discrimination, she would have had to perform substantially similar duties to full-time supervisors and because there were significant duties she did not perform, she failed. Finally the court held Daniels failed to establish a prima facie case of retaliation and affirmed summary judgment for UPS.

Tenth Circuit: Employment Age Discrimination Claims Filed Beyond Limitations Period; Ledbetter Act Not Applicable

The Tenth Circuit Court of Appeals issued its opinion in Almond, III v. Unified School Dist. #501 on Tuesday, November 29, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioners were employed by Respondent school district. Facing budget restraints, their positions were eliminated, but both accepted other positions with decreased pay taking effect in two years. Upon the two year mark when their pay decreased as agreed upon, Petitioners filed suit alleging unlawful age discrimination. However, the district court determined that Petitioners had waited too long to seek administrative review — and that the delay had the effect of barring their lawsuits altogether.

While Petitioners’ appeal of the district court’s summary judgment decision was pending, Congress passed the Ledbetter Act – a law specifically aimed at effecting changes to limitations law in the employment discrimination field. “To allow the district court the opportunity to consider whether the Act rescued [Petitioners]’ claims, rendering their otherwise untimely claims timely, the parties agreed to dismiss the appeal. In the end, though, the district court concluded that the Act offered the [Petitioners] no help and now the case is back on appeal.

The Court considered the timeliness of the Petitioners’ claims in light of both preexisting law and the Ledbetter Act. The Court found that “whether the adverse consequences flowing from the challenged employment action hit the employee straight away or only much later, the [300-day] ‘limitations period normally commences when the employer’s decision is made’ and ‘communicated’ to the employee;” Petitioners both filed their claims outside that window. Additionally, “by its express terms, the [Ledbetter] Act applies only to claims alleging ‘discrimination in compensation’ — or, put another way, claims of unequal pay for equal work.” The Petitioners did not bring such claims and so the Ledbetter Act does not apply to their situation.

Tenth Circuit: ERISA Does Not Require Notification of Wear-Away Periods During Pension Transition So Long As Employees are Informed of Plan Changes

The Tenth Circuit Court of Appeals issued its opinion in Tomlinson vs. El Paso Corp. on Wednesday, August 10, 2011.

The Tenth Circuit affirmed the district court’s decision. The case is a putative class action in which Petitioners appeal the dismissal of their claims against Respondent and the El Paso Pension Plan brought under the Age Discrimination in Employment Act (ADEA) and the Employee Retirement Income Security Act (ERISA). Petitioners’ claims concern “wear-away periods” that occurred during Respondent’s transition to a new pension plan; they contend that the wear-away periods violate the ADEA’s prohibition on age discrimination and the anti-backloading and notice provisions of ERISA.

However, the Court disagreed and found that Respondent’s transition favored, rather than discriminated against, older employees. Also, the plan was frontloaded, rather than backloaded. The Court held that ERISA does not require notification of wear-away periods so long as employees are informed and forewarned of plan changes. Because Respondent provided sufficient notice and warning to Petitioners, the district court’s decision was upheld.

Tenth Circuit: Absent Alleged Age Discrimination, Petitioner Still Would Have Been Fired for Violation of Company Policy

The Tenth Circuit Court of Appeals issued its opinion in Simmons v. Sykes Enterprises, Incorp. on Thursday, June 2, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner appeals the district court’s grant of summary judgment in favor of her former employer, Respondent, on her claim of discrimination in violation of the Age Discrimination in Employment Act of 1967. The district court concluded that Petitioner failed to establish that Respondent’s reason for terminating her employment was pretextual.

The Court determined that Respondent honestly relied in good faith upon the reported inconsistencies both in Petitioner’s statements and between her statements and the statements of others regarding the disclosure of confidential information. Petitioner’s position “as an HR assistant carried with it a special duty to safeguard and maintain confidential employee information”; facts suggest that Respondent’s decision to terminate Petitioner stemmed from a desire for greater confidence in its HR staff, further evinced by its decision to also terminate another younger employee “who allegedly violated similar rules of confidentiality and investigatory protocol and was fired at the same time as Petitioner.” Ultimately, absent the alleged discriminatory bias, Respondent would still have fired Petitioner because she “violated company policy and could not be trusted with confidential information.”

Case Law: Tenth Circuit Opinions, 5/5/10 [Updated]

[Update: this post has been updated as the 10th Circuit release a published opinion on May 5, 2010, after this post was published.]

The Tenth Circuit on Wednesday issued one published opinion and four unpublished opinions, as described below.


In Jensen v. Wagner, the Court reversed in part and affirmed in part the district court’s decision, determining that the Jensen’s failed to demonstrate that state actors violated their constitutional rights by interfering with their parental authority and that it did not have jurisdiction under the Rooker-Feldman doctrine to consider the Jensens’ claim premised on malicious prosecution.


In United States v. Delgadillo-Gallegos, the court affirmed the sentence of a defendant who illegally re-entered the country, rejecting defendant’s claims that the sentence was unreasonable and based on a prior offense.

In Barfoot v. Public Service Company of Colorado (D/B/A Xcel Energy), the court affirmed the district court’s grant of summary judgment to Xcel on an employee’s ADA and ADEA claims.

In United States v. Rubio, the defendant appealed the district court’s denial of his motion for a reduced sentence, based on its lack of jurisdiction under then-Federal Rule of Criminal Procedure 11(e)(1)(C) (now 11(c)(1)(C)). The court affirmed the district court’s decision.

In Martin v. Cornell Companies, Inc., the court denied Martin’s appeal of  a district court’s orders granting defendants’ motions to dismiss and for summary judgment on his claims brought under 42 U.S.C. § 1983.