March 24, 2019

Colorado Court of Appeals: Victim Intimidation Statute Applies only to Criminal Cases, not Civil Actions

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, January 26, 2017.

RetaliationWitnessCivilOther Bad ActsJury DeliberationsLimiting Instruction.

The Colorado Department of Human Services (DHS) took custody of Johnson’s two children based on information from Ranals. Later, Johnson and his girlfriend drove to a DHS office, but the office was closed. Before leaving, Johnson fired shots into a vehicle in the parking lot that appeared similar to the vehicle driven by the DHS employees who had removed the children. Johnson then drove to Ranals’s home and fired several shots into her house.

At trial, Johnson moved for a mistrial and later a new trial, based on Ranals’s testimony. Both motions were denied. A jury convicted Johnson of several counts, including retaliation against a witness or victim. The prosecution’s theory in support of the witness retaliation charge was that Johnson shot into Ranals’s home because she had reported him to DHS and he believed she might be a witness in the dependency and neglect proceedings against him.

On appeal, Johnson contended that the C.R.S. § 18-8-706 offense of retaliation against a witness applies only to retaliation against a witness because of the witness’s relationship to a criminal proceeding. The Colorado Court of Appeals examined the statute and its legislative history and concluded that C.R.S. § 18-8-706 applies only to retaliation against witnesses or victims because of their relationship to criminal, and not civil, proceedings. Because the prosecution only presented evidence regarding Ranals’s perceived involvement in a dependency and neglect proceeding, Johnson’s conduct could not have constituted witness retaliation under this statute.

Johnson also contended that the trial court erroneously denied his motion for a mistrial and erroneously denied his post-verdict motion for a new trial. At trial, Ranals made a statement referencing Johnson’s acts of domestic violence, despite the trial court’s prior ruling that evidence of Johnson’s other bad acts was inadmissible. The court properly exercised its discretion by directing the jury to disregard Ranals’s statement to ensure that Johnson would not be unfairly prejudiced. Further, Ranals’s statement was part of her trial testimony; the jury was not exposed to information or influences outside of the trial process. Thus, it was not extraneous information as contemplated by CRE 606(b).

The witness retaliation conviction was vacated and the judgment of conviction on the remaining convictions was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Officer, School Officials Entitled to Qualified Immunity for Arresting “Class Clown” for Burping in Class

The Tenth Circuit Court of Appeals issued its opinion in A.M. v. Holmes on Monday, July 26, 2016.

In May 2011, F.M. was a student at Cleveland Middle School in Albuquerque when his teacher radioed a request for assistance over her school-issued radio because F.M. was burping loudly in class and disrupting the other students. Officer Acosta, an Albuquerque police officer who was assigned to the school, answered the teacher’s radioed call for help. When Officer Acosta approached the classroom, he saw F.M. sitting on the floor in the hallway while the teacher stood in the classroom doorway. The teacher informed Officer Acosta that F.M. had interrupted class by burping loudly, and even when she ejected him from the room, he continued to lean into the class and burp, making the other students laugh and stopping the teacher from continuing her planned lessons. Officer Acosta escorted F.M. to the office, where he arrested F.M. under N.M. Stat. Ann. § 30-20-13(D), which provides that interfering with the educational process is a petty misdemeanor offense. Officer Acosta informed the principal, Ms. LaBarge, of his intent to arrest F.M., and Ms. LaBarge attempted to contact F.M.’s mother and also prepared a slip for a one-day suspension of F.M. Officer Acosta then transported F.M. to a juvenile detention facility, where he was picked up by his mother. F.M. did not argue with Officer Acosta and was rated a -2 out of 10 on the detention center’s risk assessment. F.M. did not return to Cleveland Middle School for the rest of the year. A.M. spoke publicly about F.M.’s arrest, and there was a good deal of publicity about the incident.

The following year, A.M., F.M.’s mother, re-enrolled him at Cleveland. On November 8, 2011, a student approached a teacher to report witnessing a drug transaction. Officer Acosta retrieved the school’s surveillance videos and, with Ms. LaBarge and an assistance principal, identified the five students involved in the transaction. F.M. was identified as one of the students. All of the students were searched individually in a conference room next to Ms. LaBarge’s office with several adults presents. All of the searches except F.M.’s were audio recorded.

None of the students had drugs on them, but F.M. had $200 cash. He relayed to the adults present that the cash was a birthday present. The assistant principal asked F.M. if he had anything he was not supposed to have, and he said he had a belt buckle in his bag with a marijuana leaf imprint. A search of his backpack revealed the belt buckle and a red bandanna, among other things. F.M. was wearing several layers of clothing, which he removed at the request of the school officials. A male teacher flipped down the waistband of F.M.’s athletic shorts, which revealed a pair of boxers underneath. The teacher did not touch F.M.’s boxers. During the search, A.M. contacted the school and was informed of the events of the morning. A.M. confirmed that F.M. had left the house carrying $200 in cash that morning. F.M. received a three-day suspension for the bandanna and belt buckle because they violated the school’s policies against “gang-related” clothing and “inappropriate messages or symbols.” Later that day, A.M. met with Ms. LaBarge, but according to Ms. LaBarge, A.M. “stormed out” of the office and said her attorney would contact the school.

A.M. sued Officer Acosta, Ms. LaBarge, and the assistant principal in state court, alleging Fourth Amendment violations relating to the May 2011 and November 2011 incidents. A.M. objected to F.M.’s handcuffing in May 2011, opining that a reasonable officer should have known that burping was not a crime and no force was necessary to effectuate an arrest of the compliant child. A.M. also alleged that Ms. LaBarge’s strip search of F.M. in November 2011 was unreasonable. Defendants removed the action to federal court and moved for summary judgment, asserting qualified immunity. The district court granted summary judgment to Ms. LaBarge, agreeing that she was entitled to qualified immunity. While the claims were still pending, A.M. filed another state court lawsuit against the assistant principal, alleging Fourth and First Amendment violations related to the strip search and retaliation for A.M.’s speaking to the media. The assistant principal removed the action to district court and argued collateral estoppel. The court granted summary judgment to the assistant principal. The district court also granted summary judgment to Officer Acosta, finding qualified immunity applicable. A.M. appealed.

The Tenth Circuit addressed A.M.’s claims regarding Officer Acosta first. A.M. contended that the district court sua sponte granted qualified immunity to Officer Acosta, but the Tenth Circuit noted that A.M. devoted most of her reply brief to the issue of qualified immunity and therefore was on notice that the defense had been raised. A.M. also contended she was deprived of the opportunity to present evidence of injuries F.M. suffered by being handcuffed, but the Circuit noted that in Officer Acosta’s response brief, he noted that any injury suffered would have been de minimus, therefore affording A.M. a chance to respond.

The Tenth Circuit next addressed the district court’s grant of qualified immunity to Officer Acosta on the claim that he arrested F.M. without probable cause in violation of the Fourth Amendment. The Tenth Circuit evaluated the New Mexico statute in question and found that Officer Acosta had arguable probable cause to arrest F.M. under the statute banning interference with the educational process. A.M. argued that burping in class did not rise to the level of seriousness contemplated by the statute, and F.M. was at worst being a class clown, conduct that “would have subjected generations of school boys to an after-school detention, writing lines, or a call to his parents.” The Tenth Circuit rejected A.M.’s contentions and determined that the broad language of the statute seemed to encompass F.M.’s conduct. The Tenth Circuit found that A.M. could not carry her burden regarding clearly established law, since the statute appeared to condemn F.M.’s conduct. The Tenth Circuit found that Officer Acosta possessed reasonable probable cause when he arrested F.M. Likewise, the Tenth Circuit agreed with the district court’s reasoning that A.M. had not shown that Officer Acosta committed a constitutional violation when he arrested F.M. The district court determined that A.M. failed to present evidence of an actual physical or psychological injury.

The Tenth Circuit next turned to A.M.’s claims against the assistant principal. The district court found that the assistant principal was entitled to qualified immunity on A.M.’s First, Fourth, and Fourteenth Amendment claims, and the Tenth Circuit agreed. Because the November 2011 search of F.M. was arguably justified at its inception, the assistant principal did not violate the Fourth Amendment by beginning the search of F.M. Likewise, because the search continued to be reasonable in its scope, it was within the strictures of the Fourth Amendment. The Tenth Circuit also dismissed A.M.’s claim that the assistant principal executed the search in retaliation for A.M.’s protected First Amendment activity, referring to its first finding that the search was reasonable at its inception and throughout its duration. A.M. also alleged a Fourteenth Amendment Equal Protection violation because the assistant principal searched F.M. more extensively than the other four students. The Tenth Circuit found that A.M. failed to set forth a legally cognizable Fourteenth Amendment claim because F.M. was not similarly situated to the other students.

Finally, A.M. argued the district court committed reversible error by granting qualified immunity to Ms. LaBarge on A.M.’s unreasonable search claim. A.M. incorporated her arguments against the assistant principal into the brief on Ms. LaBarge’s claim, and the Tenth Circuit decided to follow its previous reasoning in rejecting A.M.’s position.

The Tenth Circuit upheld the grants of qualified immunity as to all three defendants. Judge Gorsuch wrote a compelling dissent; he would have followed a previous New Mexico opinion that limited the statute in question to behavior much more serious than burping in class.

Tenth Circuit: District Court Legally Erred in Evaluating Whether Workplace Harassers had Hostile Animus

The Tenth Circuit Court of Appeals issued its opinion in Lounds v. Lincare, Inc. on Tuesday, December 22, 2015.

Shawron Lounds was hired at Lincare’s Wichita facility to be a customer service representative in September 2011. She was the only African-American employee at the office, and was frequently subjected to offensive and racially-motivated comments. When company vice president Greg McCarthy visited the Wichita facility in January 2012, Ms. Lounds reported her concerns to him about the offensive and racially-charged statements. Mr. McCarthy asked Paula Adams, Lincare’s director of employee relations, to follow up with Ms. Lounds.

Later that day, Ms. Adams called the district manager to discuss Ms. Lounds’ concerns, and the district manager held a conference call with Ms. Lounds and her supervisor. Ms. Lounds relayed to the district manager the offensive statements and actions of her coworkers. Ms. Adams and the district manager mutually agreed that the employees who had participated in the offensive behavior would be disciplined, and issued final written warnings to the involved employees.

Ms. Lounds submitted a document to Lincare’s human resources department in February 2012, in which she commented that she felt “bombarded with racial slurs and comments” and detailing several specific instances. She further alleged that “nothing had changed” since her January 2012 meeting with Mr. McCarthy. However, in a conference call with Ms. Adams in March 2012, Ms. Adams inferred that the discipline of the three employees had been effective because Ms. Lounds did not allege any new instances of harassment.

In April 2012, Ms. Lounds filed a complaint with the Kansas Human Rights Commission (KHRC). That same month, she was disciplined for “excessive absenteeism,” specifically 16 unscheduled absences since September 2011. She was also reminded of the company’s policy against reporting absences via text message. Ms. Lounds responded by sending Lincare’s human resources department a “letter of rebuttal” detailing how the discipline was retaliatory. Between April and September 2012, Ms. Lounds continued to miss work, citing the racially charged environment as her reason for absenteeism. She was discharged in September 2012 for “ongoing, excessive absenteeism.” In October 2012, Ms. Lounds sent another letter to HR, alleging she had been the target of racial discrimination and retaliation and citing specific examples. She timely filed charges of discrimination with the EEOC and received a right to sue.

In March 2013, Ms. Lounds filed suit in district court, alleging unlawful discrimination and retaliation. In her deposition testimony in August 2013, Ms. Lounds cited several specific examples of discriminatory conduct and retaliation. After close of discovery and briefing, the district court granted summary judgment to Lincare, finding that no reasonable jury could have found the race discrimination sufficiently severe or pervasive to support a hostile work environment claim, and further finding that Ms. Lounds’ allegations of retaliation were either not materially adverse or not protected activity. Ms. Lounds timely appealed.

The Tenth Circuit evaluated whether there was sufficient evidence to support a hostile work environment claim under 42 U.S.C. § 1981 and found that there was. The Tenth Circuit found that Ms. Lounds had carried her burden to create a jury question regarding whether the harassment was sufficiently pervasive or severe. The Tenth Circuit noted that to support a claim, it is not enough that a plaintiff considers the work environment hostile; it must also be of the character that a reasonable person would view it hostile. Further, the plaintiff must show more than a few isolated incidents of hostility; the plaintiff must show a “steady barrage of opprobrious racial comments.” The Tenth Circuit evaluated the district court’s assertion that none of the offensive remarks were directed at Ms. Lounds and they were not made with scorn or animosity. Ms. Lounds argued the district court incorrectly applied summary judgment standards by failing to construe evidence in the light most favorable to her and by resolving factual disputes in Lincare’s favor. The Tenth Circuit agreed.

The Tenth Circuit found the district court committed reversible error by resolving the merits of the hostile work environment claim in Lincare’s favor at summary judgment. By evaluating whether the subjective intent of the specific remarks was benign, the district court legally erred because it should have instead focused on whether a reasonable jury could find the subjective and objective effect of the conduct was to pollute the work environment with harassing conduct. The Tenth Circuit specifically found that the repeated references to “nigga” and “lynching” were enough to racially charge the work environment. The Tenth Circuit reiterated that the district court committed legal error by focusing on whether the alleged harassers intended to cause harm, rather than whether a reasonable jury could find that the subjective or objective effect of the conduct was to pollute the environment with harassing conduct.

The Tenth Circuit affirmed the district court’s grant of summary judgment against Ms. Lounds on her Title VII retaliation claim, discerning no reversible error. The Tenth Circuit evaluated the parties’ arguments regarding pretext and discipline, and found that the district court correctly determined that Ms. Lounds’ theory that Lincare’s discipline and termination were pretextual was insufficient as a matter of law.

The Tenth Circuit reversed the district court’s grant of summary judgment on the discrimination claims and affirmed summary judgment on the retaliation claims, and remanded for further proceedings.

Tenth Circuit: Independent Review Process Breaks Causal Chain Between Discrimination Allegations and Termination

The Tenth Circuit Court of Appeals issued its opinion in Thomas v. Berry Plastics Corp. on Friday, September 25, 2015.

Karry Thomas, who is African-American, worked for Berry Plastics Corp. in its Kansas facility from 2003 to 2010. Over the course of his employment, eight different Berry supervisors initiated at least 13 different disciplinary actions against him, ranging in severity from verbal coaching and written warning to suspensions and final warnings. In May 2009, Jason Morton became Thomas’s group leader. Morton had limited disciplinary authority and was unable to independently issue high levels of discipline such as suspensions or final warnings.

After conferring with his supervisor, Morton suspended Thomas in July 2010 for a print quality issue. Because of this suspension and a prior suspension issued by a different supervisor two months earlier, Watson, the printing manager who oversaw the entire Kansas operation, issued a Last Chance Agreement to Thomas, providing that he would be subject to disciplinary action for future attendance or rules violations. Morton was not involved in the decision to place Thomas on a Last Chance Agreement. A few weeks later, Morton gave Thomas a Final Warning, acting pursuant to direction from Watson and Human Resources, based on failure to pack product correctly on July 27. Thomas alleged that he did not fail to pack the product properly and stated he felt he was “getting discrimination because of race.” Morton investigated and determined the packing problem was not Thomas’s fault. He rescinded the Final Warning.

Later, Morton submitted a report to Watson that faulted Thomas for a print quality issue on September 10. Watson reviewed the incident and did not consult Morton before deciding to terminate Thomas. Before Human Resources could approve Watson’s termination decision, Morton issued a written warning to Thomas based on a different incident where he failed to complete paperwork. Shortly thereafter, Berry officially terminated Thomas’s employment.

Thomas appealed his termination through Berry’s Termination Review Process two days later, and two independent Berry managers affirmed Watson’s termination decision. Thomas thereafter filed suit for wrongful discharge, alleging he was terminated in retaliation for opposing race discrimination in violation of Title VII and 42 U.S.C. § 1981. Thomas invoked the cat’s paw theory of recovery, arguing it was Morton who possessed the retaliatory animus that infected Watson’s termination decision because of Thomas’s opposition to racial discrimination that he expressed at the Final Warning meeting with Morton. The district court ultimately granted summary judgment to Berry, and Thomas appealed.

On appeal, Thomas argued the district court erroneously granted summary judgment to Berry because he presented sufficient circumstantial evidence from which a reasonable jury could conclude the stated reason for his termination was pretextual. The Tenth Circuit disagreed, finding the district court correctly granted summary judgment for two reasons. The Tenth Circuit first applied the McDonnell Douglas framework to determine whether Thomas’s termination was pretextual and found Thomas failed to meet his burden to show pretext.

Thomas argued that a reasonable jury could infer Morton possessed retaliatory animus because of two pieces of circumstantial evidence. First, Thomas argued that Morton’s report regarding the September 10 print quality issue was dishonest because it failed to include that Thomas had properly inspected the equipment before going on break. However, Thomas did not argue that Berry would not hold a print technician responsible for errors that occurred while the print technician was on break, and the Tenth Circuit noted that record evidence suggested the opposite. The Tenth Circuit found that Morton’s omission on the September 10 report was inconsequential and did not reflect retaliatory animus. Next, Thomas argued that Morton’s report on the September 10 issue was inconsistent with his rescission of the July 27 incident. The Tenth Circuit again disagreed, noting that there is no inference of retaliatory animus in including more information in a rescission than in the original report, and also finding that both the rescission and the September 10 incident occurred after Thomas expressed concern about race discrimination, negating an inference that the timing of the September 10 report supported retaliation.

Although the Tenth Circuit found it could affirm on the lack of evidence alone, it also addressed causation, finding Thomas could not show that Morton’s retaliatory animus was a “but-for” cause of termination. Because Thomas’s termination was independently affirmed by Berry’s Termination Review Panel, the causal chain between Morton’s alleged animus and the retaliatory action was broken. The Tenth Circuit held that, even if it assumed retaliatory animus, Thomas could not show that the animus was a “but-for” cause of his termination.

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

Tenth Circuit: Garcetti and Lane Require Showing of Whether Speech Within Employee’s Official Duties

The Tenth Circuit Court of Appeals issued its opinion in Holub v. Gdowski on Thursday, September 24, 2015.

Gina Holub was employed as an internal auditor for the Adams 12 school district beginning in 2007, and she reported to the district’s Chief Financial Officer. In late 2011, the district hired Shelley Becker as the new CFO, who implemented measures to ensure the accuracy of the district’s budget. At Becker’s request, district employee Tracy Cantrell analyzed the district’s salary expenses. Cantrell determined that the budget included $12 million more in salary funding than required to pay all the full-time employees. Cantrell reported her findings to Becker, and when Becker failed to address the issue, she reported them to Holub. Holub agreed with Cantrell that the salary budget was inflated, but found that it included $17 million more than necessary, thereby affecting the budget’s required 10% reserves. Holub conveyed her concerns to district superintendent Chris Gdowski, who advised her to speak to Becker about the concerns. Holub expressed to Gdowski that speaking to Becker would create a conflict of interest, and Gdowski advised her to research to whom she should be reporting. Holub ultimately concluded she was required to share her concerns with senior management, including Becker, and the school board.

District employees held four separate meetings in July and August 2012 to address Holub’s concerns. Becker explained Holub had erred in her analysis by incorrectly assuming the salary budget only included base salaries of full-time employees. Rather, Becker informed Holub that the salary budget also included many other items, including overtime pay and coaching stipends. This information satisfied Gdowski that Holub’s concerns were unfounded. However, Holub was not satisfied, and a few days later she approached the board president, Mark Clark, and shared her concerns with him. Two days later, Gdowski introduced Holub to the board and indicated that, as internal auditor, she could be a resource for the board. Holub requested that Gdowski allow her to present her findings to the board, but Gdowski replied that he believed her concerns were unfounded and would not recommend that the board hear her concerns in a public meeting. Holub prepared and delivered to Gdowski a memorandum citing state law and accounting standards in which she asserted the district had acted illegally and unethically in concealing excess budget reserves. The district hired an independent expert, Vody Herrmann, to review the budget.

Before Herrmann completed her review, Holub again insisted to Gdowski that even if Herrmann disagreed with her, Holub had a responsibility to present her conclusions to the board. The district’s general counsel responded, advising Holub that the board was aware of her concerns, her responsibility was to raise concerns to management, and the board would determine whether further action was necessary after receiving the independent review. About three weeks later, Herrmann presented her findings to Holub, Gdowski, and Becker. Herrmann explicitly concluded Holub’s concerns were unfounded. Holub then met with two board members, Schaefer and Winsley, at Schaefer’s home office. Both board members then met with Gdowski to discuss Holub’s concerns and left the meeting satisfied that they were unfounded.

In early October 2012, Gdowski, Becker, and the district’s Chief Human Resources Officer met to discuss Holub’s unwillingness and apparent inability to move past her budget concerns. They decided to terminate Holub’s employment, and Becker and the CHRO met with Holub on October 19, 2012, to inform her of their decision, telling her that her inability to move past her discredited budget concerns meant she could no longer be an unbiased and productive employee. In February 2013, a local news station aired a story featuring an interview with Holub in which she accused the district of inflating its salary budget. Before the story aired, Gdowski posted a statement on the district’s website in which he informed the district’s staff, parents, and community that Holub’s concerns were unfounded, and also questioning Holub’s credibility.

Holub eventually filed this action against the school district, Gdowski, and Becker, alleging a 42 U.S.C. § 1983 claim against all defendants for terminating her employment in retaliation for protected First Amendment speech, a breach of contract claim against the district, intentional interference with contract claims against Gdowski and Becker, and a defamation claim against Gdowski. The district court granted summary judgment to defendants on all Holub’s claims, and she appealed.

The Tenth Circuit, applying de novo review, first analyzed Holub’s First Amendment claim using the Garcetti/Pickering test. The Tenth Circuit found Holub’s claims failed at the first prong of the test because she spoke pursuant to her official duties. Holub argued that the Supreme Court’s recent opinion in Lane v. Franks, 134 S. Ct. 2369 (2014) changed the Garcetti test, and that the district court should have focused on whether the speech was “ordinary” in the sense that it was customary or regular. The Tenth Circuit corrected Holub that Lane directed it to focus on whether the speech was within the employee’s usual duties, not whether the speech was frequent or customary. Even if it had accepted Holub’s argument, though, the Tenth Circuit found she still failed the first prong of the Garcetti test because she was acting in her official capacity when she spoke to the board members.

Next, the Tenth Circuit evaluated whether the district court correctly granted summary judgment on Holub’s state law breach of contract claims. Holub argued that the district’s stated reason for her termination, that she was unable to perform her official duties because she could not move past her unfounded budget concerns, was a ruse created by Gdowski and Becker to silence her complaints about the budget. Holub first argued the district lacked cause to terminate her contract. The district contended its reasons for terminating Holub were uncontroverted and provided more than sufficient cause for her termination. Holub failed to point to whether the district had cause to terminate her, instead arguing again that her budget calculations were correct. The district court noted that Holub supplied no indication that the district feigned engagement with her budget concerns just to fabricate an excuse to terminate her, and that indeed the district took several measures to address her concerns before considering termination. The Tenth Circuit found Holub failed to show any indicia of her alleged conspiracy theory.

Finally, the Tenth Circuit addressed the district court’s grant of summary judgment to Gdowski and Becker on Holub’s intentional interference with contract and wrongful discharge claims and to Gdowski on Holub’s defamation claim. The district court granted immunity to defendants, basing its decision on its conclusion that there was no evidence either Gdowski or Becker had acted willfully and wantonly in terminating Holub. The Tenth Circuit concluded that, even in the light most favorable to Holub, there was no evidence showing that Gdowski’s or Becker’s actions were unreasonable or reckless.

The Tenth Circuit affirmed the district court’s grant of summary judgment to defendants on all counts.

Tenth Circuit: Use of False Identity Immaterial to Wire and Mail Fraud and Cannot Form Basis for Convictions

The Tenth Circuit Court of Appeals issued its opinion in United States v. Camick on Friday, July 31, 2015.

Leslie Lyle Camick was a Canadian citizen who entered the United States in 2000 using the identity of his brother, Wayne Bradly Camick, who had died in infancy. Camick assumed his brother’s identity in order to avoid outstanding child support obligations and back taxes and to evade permanent driver’s license revocation due to numerous intoxicated driving offenses. Camick used his brother’s identity throughout his time in the United States.

In 2004, Camick began a professional and romantic relationship with Lyn Wattley. The couple eventually moved to Kansas and bought a home together under Camick’s assumed identity. In 2010, Camick and Wattley, together with machinist Mark Nelson, began developing an idea for a new way to cover manholes. In 2011, Camick’s and Wattley’s relationship deteriorated, and unbeknownst to Wattley, Camick filed a provisional patent application for the locking manhole cover. In the summer of 2011, Camick drove a 2006 GMC truck that he had paid for but that was titled in Wattley’s name to Arizona. Wattley became concerned about Camick driving since he had had prior intoxicated driving incidents, so she reported the vehicle stolen. Camick was arrested in New Mexico for theft of the truck but Wattley requested that the New Mexico charges be dropped. The Kansas warrant for the stolen vehicle remained outstanding.

In late 2011, Camick was arrested in New Jersey, where he was interviewed by U.S. Immigration Officer Jackey He to determine his immigration status. Eventually, Camick admitted his real name to Officer He and signed an affidavit that he had used his brother’s identity to enter and reside in the United States. Camick was placed under arrest and Officer He initiated removal proceedings against him. As a result of the arrest, Wattley discovered Camick’s true identity and initiated quiet title proceedings to remove the name Wayne Camick from their Kansas residence. She served Camick in the New Jersey detention center, but he failed to respond within the 30-day period and the Kansas court quieted title against him. More than a month after the Kansas court entered judgment, Camick submitted a response to the quiet title action, claiming he was the purchaser and owner of the subject property and that he had been unable to respond due to his immigration detention. The Kansas court responded by issuing a letter that Camick’s response did not comply with Kansas law and was untimely. Two months later, Camick sent another letter to the Kansas court claiming he had been “wrongfully detained” by ICE as a result of Wattley’s “falsified Police report.”

In March 2013, Camick was indicted on charges of mail fraud, wire fraud, material false statement to the U.S. Patent Office, and three counts of aggravated identity theft relating to the fraud and false statement charges. In July 2013, Camick filed a 42 U.S.C. § 1983 lawsuit against Wattley and others, alleging constitutional and tort violations arising from the 2011 stolen vehicle report. This lawsuit became the source of Camick’s obstruction of justice charge as contained in the government’s second superseding indictment. After a three-day trial, Camick was convicted of all seven charges and was sentenced to 48 months’ imprisonment followed by one year of supervised release. Camick was also ordered to pay $15,186 in restitution to Wattley. He timely appealed.

The Tenth Circuit analyzed the mail fraud charge, which was premised on the letter Camick mailed to the Kansas court regarding his failure to respond to the quiet title action. Camick argued the evidence was insufficient to show he made materially false statements with the intent to defraud. The Tenth Circuit agreed. The Kansas court and Wattley were aware of Camick’s true identity at the time he sent the letter, and he had been known as Wayne throughout his time in the United States. The Tenth Circuit held that Camick’s identity could have had no bearing on the Kansas court’s decision to uphold its default judgment. Camick’s statement that he had been “wrongfully detained” was likewise immaterial since it was incapable of influencing the Kansas court’s decision. The Tenth Circuit reversed Camick’s conviction for mail fraud and the related aggravated identity theft charge.

The Tenth Circuit next evaluated Camick’s challenges to the wire fraud and material false statement convictions, both of which pertained to the provisional patent application. Camick argued that because he was the actual inventor of the locking manhole cover and everyone knew him as Wayne Camick, his use of that name on the provisional patent application was insufficient to show a false statement with intent to defraud. The Tenth Circuit again agreed, holding that the false statements were immaterial to the provisional patent application. Because the provisional patent application did not require an oath or declaration by the applicant, the Tenth Circuit found Camick’s fraud in using his brother’s name immaterial to the provisional patent application. The Tenth Circuit reversed the convictions for wire fraud and material false statement. The Tenth Circuit also reversed the accompanying aggravated identity theft charges.

Camick challenged his obstruction of justice charge, arguing the evidence was insufficient to show that he filed the civil rights suit against Wattley with retaliatory intent. The Tenth Circuit, drawing inferences of retaliation from the timing of his filing, disagreed. The Tenth Circuit upheld this conviction. Judge Kelly dissented from this part of the opinion; he would have reversed the obstruction of justice conviction as well.

Finally, Camick argued that the restitution award improperly failed to tie Camick’s harms of conduct to the restitution requested by Wattley. The Tenth Circuit evaluated the restitution award and reversed the parts of the award requested for Wattley’s quiet title action and review of the provisional patent application. The Tenth Circuit also reversed the award of costs incurred in a separate civil lawsuit.

Camick’s convictions for mail fraud, wire fraud, material false statement, and aggravated identity theft were reversed. Camick’s conviction for obstruction of justice was affirmed. The case was remanded for a hearing on the remaining restitution award.

Tenth Circuit: First Amendment Does Not Require Government Employer to Tolerate Disloyalty

The Tenth Circuit Court of Appeals issued its opinion in Rock v. Levinski on Monday, June 29, 2015.

Joyce Rock was the principal of Career Prep High School in New Mexico, an alternative high school for kids who are parents, have been suspended from another school, or do not feel comfortable at other schools. In May 2013, Phil Kasper, the District’s Director of Administration and Rock’s immediate supervisor, informed Rock that the district was planning to close Career Prep at the end of the school year. Two days later, Kasper and Don Levinski, the superintendent, held a meeting with the staff to explain the closing, at which meeting several staff members raised questions and concerns. Later that day, a meeting for parents, students, and staff was held in the school cafeteria. Rock was present at the meeting, and although the parties dispute when she first spoke, at some point Rock stood up, introduced herself as principal, expressed support for her students, and expressed concern that many of her students would not succeed at the larger high school they would be placed in after Career Prep closed. The next day, the Board of Education announced that Career Prep would remain open. A few days later, Kasper gave Rock a “growth plan” indicating Rock had performed unsatisfactorily in working with supervisors, administrators, staff, parents, and students. Kasper explained the negative evaluation was based on Rock’s failure to support the superintendent and speak with him privately about her concerns. Kasper also suggested Rock’s lack of confidence in her students’ ability to perform at another school “deeply disappointed” the superintendent. Levinski disagreed with Kasper’s decision to put Rock on a growth plan and terminated her employment. She was placed on administrative leave through the end of her contract. Levinski testified that the primary reason for Rock’s termination was the parent meeting, where he felt she behaved in an unprofessional manner. Shortly after her contract expired, Rock was named Principal of the Year by the New Mexico Association of Secondary School Principals.

Rock brought a First Amendment § 1983 retaliation claim against Levinski and the district, alleging defendants unconstitutionally retaliated against her for speaking in opposition to the closing of Career Prep at the parent meeting. The district court granted summary judgment to defendants on three grounds: (1) Rock’s speech was not protected because it was made pursuant to her official duties; (2) even if Rock did not speak in her official capacity, the district’s interest in efficient public service outweighed Rock’s interest in free speech; and (3) Levinski was entitled to qualified immunity because he did not violate a clearly established First Amendment right. The Tenth Circuit affirmed on the second ground.

The Tenth Circuit applied the Garcetti/Pickering test to evaluate Rock’s claim that she suffered retaliation for exercising her right to speak. The Tenth Circuit evaluated the third prong of the test, whether the government had adequate justification for treating the employee differently than any member of the public, and found adequate justification. The Tenth Circuit noted that Rock’s high-ranking position within the district restricted her right to speak freely in opposition to her employer’s policies. The Tenth Circuit found it well established that the First Amendment does not require a government employer to tolerate disloyalty from the upper echelons of administration.

The Tenth Circuit affirmed the grant of summary judgment to defendants.

Tenth Circuit: Garcetti/Pickering Test Applies to Pretextual Termination of Police Officer

The Tenth Circuit Court of Appeals issued its opinion in Seifert v. Unified Government of Wyandotte County/Kansas City, Kansas on Friday, February 27, 2015.

Max Seifert was a reserve deputy for the Wyandotte County Sheriff’s Department in Kansas. In July 2003, Barron Bowling was involved in a minor car accident with a DEA agent, after which the DEA agent and another agent pulled Bowling from the car and pummeled, kicked, and insulted him while he was forced to lay shirtless on hot pavement. Seifert, then a detective with the Kansas City, Kansas Police Department (KCKPD), investigated the incident and documented the agents’ misconduct, despite pressure from others in the KCKPD to cover up the facts. He testified at Bowling’s criminal trial in 2005, and was forced into retirement from the KCKPD later that year.

Seifert then received a commission as a reserve deputy with the Wyandotte County Sheriff’s Department (WCSD). From January 2006 to June 2009, he assisted the WCSD with criminal investigations to satisfy his requisite 16 hours per month of volunteer time. In June 2009, KCKPD and the Unified Governments settled their claims with Bowling, and five days later, Seifert was removed from investigations by the WCSD. Seifert’s supervisor, undersheriff Roland, informed Seifert that the Wyandotte County District Attorney and an AUSA refused to accept cases involving Seifert because of concerns about his credibility. Roland also informed Seifert that by department rule he could not continue his work as a reserve deputy while simultaneously maintaining a civilian position in the jail. Seifert met with the police captain shortly thereafter, who told him there was no such rule precluding dual roles. Seifert also encountered the DA, who relayed it was not his office that had problems with Seifert but people in other jurisdictions.

In early 2010, the reserves supervisor asked Roland if he could have Seifert conduct training of other officers, since there was no other reserve work, but Roland would not allow it, citing the credibility issue. The trial of Bowling’s claims with the remaining defendants began on March 1, 2010, and Seifert testified on March 4 and 9. On April 8, 2010, the trial concluded. Five days later, Seifert received a memorandum signed by Roland and the reserves supervisor with Sheriff Ash copied, stating Seifert’s service as a deputy was no longer needed.

Seifert brought claims in federal district court under §§ 1983 and 1985 and under Kansas state law, all of which alleged that the actions against him were taken to deter him from testifying for Bowling or punish him for doing so. His § 1983 claims alleged defendants’ actions violated his First Amendment rights, and the § 1985 claims violated that statute’s prohibition against conspiracies to deter witnesses from testifying. The district court granted defendants’ motion to dismiss based on the two-year time bar in §§ 1983 and 1985 and granted summary judgment to defendants on all remaining claims. Seifert appealed.

The Tenth Circuit first evaluated the 2014 Supreme Court decision in Lane v. Franks, 134 S. Ct. 2369 (2014), which evaluated free speech concerns in the context of a government employee testifying as a citizen based on events discovered while in the employee’s official capacity. Turning to the instant case, the Tenth Circuit applied the five-pronged Garcetti/Pickering test. Defendants disputed the first, fourth, and fifth prongs, and the Tenth Circuit analyzed them in turn. Lane directly impacted the first prong, whether the speech was made pursuant to the employee’s official duties. Plaintiff’s testimony in this case was protected speech, because he was testifying as a citizen about matters that concerned his work but were not part of it. Although police officers routinely testify as part of their work, plaintiff’s testimony in the Bowling case was different from routine testimony given by police officers at standard trials. The Tenth Circuit found that plaintiff satisfied the first prong.

Since the second and third prongs were not in dispute, the Tenth Circuit turned to the fourth prong—whether the protected speech was a motivating factor in the adverse employment action. The Tenth Circuit found the timing suspicious for both of plaintiff’s adverse employment actions. Likewise, it found defendants’ proffered excuse, i.e., plaintiff’s “Giglio problem,” not credible because the adverse order involving Seifert was remote in time, Seifert had testified in several matters since then, Roland had a similar adverse order that did not affect his employment, the impeachment evidence against Seifert would not be significantly helpful to defense counsel, and it likely would not matter at all in state court.

The Tenth Circuit next evaluated the fifth prong, whether defendant would have reached the same employment decision regardless of the testimony. The Tenth Circuit found that plaintiff satisfied this prong as well, as defendant’s proffered explanations for termination of Seifert were pretextual as explained in the analysis of the fourth prong. The Tenth Circuit therefore reversed summary judgment on plaintiff’s § 1983 claim against the Unified Government. However, the Tenth Circuit  affirmed qualified immunity against Roland and Ash individually, as they could not reasonably have been expected to know the impact of Lane on their actions as employers since the actions predated Lane by several years.

Turning next to the § 1985 claim, the Tenth Circuit found sufficient evidence that Seifert was punished for testifying in the Bowling matters, and reversed on this claim. Because Roland and Ash did not raise individual qualified immunity arguments, the Tenth Circuit did not evaluate them. Finally, the Tenth Circuit affirmed the district court’s dismissal of Seifert’s state law claims, finding a sufficient remedy existed in federal court.

The judgment was affirmed in part, reversed in part, and remanded. Plaintiff’s motion to seal was granted.

Tenth Circuit: Protected Communications Did Not Cause Employee’s Termination

The Tenth Circuit Court of Appeals issued its opinion in Meyers v. Eastern Oklahoma County Technology Center on Wednesday, January 28, 2015.

Donna Meyers was the adult education coordinator for the EMT program at Eastern Oklahoma County Technology Center. The school lost the records of tuberculosis tests for six students, and a teacher, Ms. Gonzales-Palmer, an Air Evac medic, offered to retest the six instead of asking them to absorb the cost of testing. Ms. Meyers believed the medic had stolen testing materials from Air Evac and instructed her not to test the students. Later, Ms. Meyers discovered the medic had disobeyed her orders. Ms. Meyers contacted Air Evac and agreed to cooperate in their investigation, then met with Ms. Gonzales-Palmer about the incident. Ms. Meyers terminated Ms. Gonzales-Palmer at the meeting.

Ms. Gonzales-Palmer contacted the school superintendent about her termination. The superintendent reinstated Ms. Gonzales-Palmer and warned Ms. Meyers that she lacked authority to terminate employees. The superintendent also admonished Ms. Meyers not to retaliate against Ms. Gonzales-Palmer or discuss the testing with anyone. Shortly thereafter, Ms. Meyers met with the Air Evac supervisor regarding the testing. The superintendent learned of the communication and warned Ms. Meyers that if she continued to discuss the testing or if she retaliated against Ms. Gonzales-Palmer she could be terminated.

Four days later, Ms. Meyers removed Ms. Gonzales-Palmer as a c0-instructor of two classes without consulting her supervisor. When the superintendent learned of this action, he met with Ms. Meyers and informed her she was suspended. The next day, the supervisor learned Ms. Meyers had failed to renew the school’s certification as an EMT training site, and recommended her termination. Ms. Meyers made a written complaint with the Oklahoma Department of Health the same day about the tuberculosis testing. The superintendent wrote a letter advising Ms. Meyers he was recommending her termination and she could appeal his decision, even though she had no right to appeal. Ms. Meyers appeared at the appeal hearing before the school’s board with counsel, but the board voted to terminate her at the end of the hearing.

Ms. Meyers sued under § 1983, alleging denial of the right to free speech regarding her report about the tuberculosis testing and deprivation of due process based on the board’s alleged bias during the hearing. The district court granted summary judgment to the school and superintendent on these claims. Ms. Meyers appealed.

Ms. Meyers claimed that her discussions with the Oklahoma State Board of Health and Air Evac regarding the testing were protected speech and she was wrongfully terminated for engaging in the speech. The district court, and the Tenth Circuit, agreed that the speech was protected but found that Ms. Meyers was not terminated for engaging in the protected speech. The Tenth Circuit applied the five-pronged Garcetti-Pickering test and found that, regarding the Oklahoma State Board of Health, Ms. Meyers’ claim of retaliation failed at the fourth prong because the superintendent did not know about the communication at the time he recommended Ms. Meyers’ termination.

As for the communication with Air Evac, the district court and Tenth Circuit found the retaliation claim failed at the fifth prong, because the superintendent would have recommended Ms. Meyers’ termination regardless of the communication with Air Evac based on  her retaliation against Ms. Gonzales-Palmer. The superintendent had specifically advised her to consult her supervisor before taking any action against Ms. Gonzales-Palmer, so removing her as an instructor was a direct disregard of orders.

The Tenth Circuit next addressed Ms. Meyers’ claim of deprivation of due process and found the claim failed as a matter of law. Ms. Meyers had no protected interest in the meeting with the board.

The district court’s grant of summary judgment to the superintendent and school was affirmed.

Tenth Circuit: Burden Shifts to Plaintiff to Rebut Defendant’s Claim of Termination for Misconduct

The Tenth Circuit Court of Appeals issued its opinion in Estate of Bassatt v. School District No. 1 in the City & County of Denver on Wednesday, December 31, 2014.

In 2007, Carlos Bassatt was student teaching at West High School in Denver while he pursued a Masters of Education degree from Regis University. On September 14, 2007, Bassatt left the school building, got into his Ford Focus, and reclined the seat. Maria Iams, a district employee, parked next to him, and when she bent to retrieve something in her car, she saw a man masturbating in the Ford Focus. She did not know Bassatt and did not know he worked at West. She reported the incident to school officials, and it was then relayed to West’s resource officer. After reviewing security videos, Iams was able to identify the car but not the person who left the car to enter the school building. The Dean of Students, Dan Trujillo, identified the man as Bassatt.

On the morning of September 17, 2007, Trujillo and West’s principal, Patrick Sanchez, had a meeting with Bassatt and informed him that he had been accused of masturbating in his car in the West parking lot. Bassatt was placed on administrative leave. He was summoned to the Denver Police Department, but ultimately no charges were filed against him. Sanchez sent Bassatt an email on September 19 saying that he was clear to return to West, but later spoke to the district’s Director of Labor Relations, who advised Sanchez that the District Attorney’s decision not to prosecute did not stop the district from taking action against Bassatt.

Sanchez and the Director of Labor Relations met with Bassatt and his wife, who was a teacher at West, on September 26. Bassatt declared that the accusation was racially motivated and the decision to end his placement at West was discriminatory. He was terminated from his placement on September 27, 2007.

Bassatt filed charges with the Colorado Civil Rights Commission (CCRC), alleging discrimination and retaliation by the district. After a two-day hearing, an ALJ concluded Bassatt had failed to prove either discrimination or retaliation. Bassatt appealed to the CCRC, which reversed the ALJ’s determination on the retaliation claim, finding that Bassatt had established a prima facie case of retaliation and the district’s termination was pretextual. The district appealed to the Colorado Court of Appeals, which affirmed the CCRC’s finding that Bassatt had established a prima facie case of retaliation. However, the court remanded to the CCRC to consider the ultimate issue of retaliation.

Before the CCRC could issue its opinion on remand, Bassatt filed suit in the U.S. District Court for the District of Colorado, raising a number of issues, including retaliation in violation of Title VII and in breach of his student teacher agreement. The CCRC then issued its final order on remand, concluding that the district had terminated him in retaliation for his accusations of discrimination, and the district had not provided a non-discriminatory reason for its actions. In August 2012, Bassatt died, and his estate was substituted as plaintiff in the district court action.

The district court granted summary judgment to the district, concluding the estate had failed to make a sufficient showing of pretext to defeat summary judgment on its Title VII claim. It also dismissed his §§ 1981 and 1983 claims, because Bassatt did not have a contract to student teach. The estate appealed.

The Tenth Circuit first noted that it was not bound by the administrative agency’s findings, but the state court’s factual and legal determinations had a preclusive effect as to the Tenth Circuit’s review. The Colorado Court of Appeals’ opinion that the Estate made a prima facie case of retaliation was thus binding on the Tenth Circuit. The Circuit noted that it need only find whether (1) the district provided a legitimate, non-discriminatory reason for its decision, and (2) the estate was able to demonstrate that the reason was mere pretext. The Tenth Circuit found the incident in the parking lot to be a legitimate and non-discriminatory reason for the employment decision and turned to the pretext question.

The Tenth Circuit agreed with the district court that the estate failed to provide sufficient evidence to create a triable issue on pretext. The estate argued that the district court impermissibly shifted the burden of proof, but the Tenth Circuit noted that in employment discrimination actions, the plaintiff must rebut the employer’s claim of misconduct, which the plaintiff here did not do. Next, the estate argued the district court erred in finding Sanchez made a sincere credibility determination in believing Iams, contending insufficient evidence supported her credibility. However, in this case, Sanchez had no direct evidence either way, heard stories from both sides, and decided ultimately to believe Iams. The estate also argued that Sanchez’s first email inviting Bassatt back to work was evidence that he believed Bassatt, but the Tenth Circuit disagreed, finding it was bound by the court of appeals’ decision that specifically reviewed and rejected that position. The Tenth Circuit found no evidence of pretext.

The estate also argued that the CCRC’s second order provided evidence of pretext. However, the Tenth Circuit is not bound by administrative opinions, and found it unpersuasive on review. Turning then to the §§ 1981 and 1983 claims, the Tenth Circuit found again that the estate could not show pretext, and also that there was no employment contract between Bassatt and the district. The estate argued that Bassatt’s student teacher agreement qualified as a contract, but the Tenth Circuit disagreed, finding it did not create a contract.

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

Tenth Circuit: Summary Judgment Appropriate Where No Employment Relationship Existed

The Tenth Circuit Court of Appeals issued its opinion in Knitter v. Corvias Military Living, LLC on Tuesday, July 15, 2014.

Lisa Knitter worked as a handyman for Lewis General Contracting (LGC) from March to October 2010. During this time, LGC’s sole client was Corvias Military Living, formerly known as Picerne Military Housing (Picerne). Ms. Knitter performed handyman services solely on Picerne properties. Picerne properties were divided into neighborhoods, and each neighborhood had a neighborhood manager and a maintenance supervisor. Ms. Knitter worked on several Picerne neighborhoods, but had disputes with Picerne staff in three of the neighborhoods. Ms. Knitter called Mr. Lamb, the Assistant Director of Maintenance Operations for Picerne, to complain about sexual harassment and gender discrimination in one of the neighborhoods. After this phone call, Mr. Lamb contacted Mr. Lewis to request that Ms. Knitter no longer be assigned to do handyman work at Picerne. Because LGC had no work outside Picerne, Ms. Knitter was terminated.

Ms. Knitter sued Picerne under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq, alleging that she was paid lower wages than her male counterparts and she was fired in retaliation for her discrimination claims, and also that she was denied vendor status after her firing in retaliation for her prior complaints of discrimination. The district court granted summary judgment to Picerne, finding that it was not Ms. Knitter’s employer, and dismissed her retaliation claims for the denial of vendor status because Ms. Knitter had never applied for employment with Picerne.

The Tenth Circuit affirmed the summary judgment and dismissal. It applied the joint employer test set forth in Bristol v. Board of County Commissioners, 312 F.3d 1213 (10th Cir. 2002), and found that at no time was Picerne Ms. Knitter’s employer. Because Picerne was not Ms. Knitter’s employer, her claims of gender discrimination and wrongful termination necessarily failed, since Title VII applies only to employers. The Tenth Circuit then examined Ms. Knitter’s claims that she was denied vendor status in retaliation for her discrimination claims. The Tenth Circuit determined that at no time did Ms. Knitter apply for employment with Picerne, so there could be no retaliation based on an employer-employee relationship. The district court’s grant of summary judgment was affirmed.

Tenth Circuit: County Violated Title VII by Terminating Employee After He Helped Colleague Pursue Sexual Harassment Claim Against Employer

The Tenth Circuit Court of Appeals issued its opinion in Barrett v. Salt Lake County on Friday, June 13, 2014.

Michael Barrett was employed by Salt Lake County for 14 years, where he received promotions and favorable reviews until he helped a colleague pursue a sexual harassment claim against her boss. After he assisted his colleague, he was demoted by the county. He sued, alleging the county violated Title VII by retaliating against him, and the jury found for Mr. Barrett.

The county appealed, asserting that it was entitled to judgment as a matter of law. The Tenth Circuit disagreed, noting that the case on which the county relied play no role in post-trial motions. The county also alleged that the jury instructions provided the wrong procedural framework for determining Title VII cases. However, the jury received instruction on the proper procedural framework and decided the case accordingly, so the county’s argument failed. The county also objected to another jury instruction, but this objection was not properly preserved at trial.

The county also disagreed with the district court’s award, not restoring Barrett to his former position since the position had been filled but instead restoring him to his prior level of pay. The county claimed that the result afforded Barrett a “windfall” for performing less work for more pay. However, the Tenth Circuit was unsympathetic to this argument, noting that the district court retains wide discretion in determining equitable relief.

The final argument raised by the county was that the district court’s award of attorney fees to Barrett for fees incurred during the internal grievance process was in error because it was an optional process, not a mandatory exhaustion of administrative remedies. On that limited point, the Tenth Circuit agreed. The Tenth Circuit remanded for redetermination of attorney fees and affirmed on all other points.