June 26, 2019

Tenth Circuit: Summary Judgment for Prison Officials in RLUIPA Sweat Lodge Case Vacated

The Tenth Circuit Court of Appeals published its opinion in Yellowbear v. Lampert on Thursday, January 23, 2014.

Andrew Yellowbear is in a Wyoming prison for murdering his daughter. He is an enrolled member of the Northern Arapaho Tribe and seeks access to the prison’s existing sweat lodge to facilitate his religious exercises. The prison’s sweat lodge is located in the general prison yard and Yellowbear is housed in a special protective unit because of threats against him. Prison officials refused to allow his use of the sweat lodge, saying that the cost of providing the necessary security to take Yellowbear from the special protective unit to the sweat lodge and back is “unduly burdensome.” Yellowbear filed suit against prison officals and sought injunctive relief under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The district court entered summary judgment for the defendants.

The Tenth Circuit held that Yellowbear had satisfied his burden under RLUIPA to show his use of the sweat lodge would be a religious exercise motivated by sincere religious belief. He also met his summary judgment stage burden of showing the prison substantially burdened that exercise by prohibiting him from any access to the sweat lodge.

For the government to prevail, it had to show prohibiting access serves a compelling state interest and is the least restrictive means of furthering that interest in this case. The court found the government had not met its burden. It did not quantify the costs it would incur in providing security to take Yellowbear to and from the sweat lodge. Additionally, prison lockdowns already occurred daily for nonreligious reasons, such as transporting other specially housed inmates to the medical unit. The defendants did not address this evidence so the inference that the prison would not perform lockdowns for religious exercise because of a discriminatory reason was not countered.

The defendants also argued that granting Yellowbear’s request would lead to a flood of requests from other specially housed inmates but provided no information to back up that speculative claim.

The court held that the prison also failed to meet its burden of showing its policy of prohibiting Yellowbears’s access was the least restrictive means necessary to further its compelling interest. The prison did not demonstrate that Yellowbear’s suggested alternatives were ineffective in meeting the prison’s goals. Showing that he refused the prison’s suggested alternatives was not enough.

The court explained that its decision was made on the basis of absolutes (no access granted) at the summary judgment stage and that the relative strengths of the parties’ positions may change. The court vacated summary judgment for the defendants.

Tenth Circuit: Summary Judgment for Employer Reversed on FMLA and ADA Claims

The Tenth Circuit Court of Appeals published its opinion in Smothers v. Solvay Chemicals, Inc. on Tuesday, January 21, 2014.

Steven Smothers worked for Solvay Chemical, Inc. (“Solvay”) for 18 years until Solvay fired him, ostensibly because of a first-time safety violation and a dispute with a coworker. He sued Solvay, claiming the company’s true motivations were retaliation for taking medical leave from work, in violation of the Family Medical Leave Act (“FMLA”), and discrimination on the basis of his medical disability, in violation of the Americans with Disabilities Act (“ADA”). He also brought a state law claim for breach of implied contract. The district court granted summary judgment for Solvay on his FMLA and ADA claims and on his state law claim for breach of implied contract.

Smothers sought and was granted FMLA leave from Solvay for intermittent absences caused by severe neck and back pain. Solvay considered him an excellent, reliable mechanic with strong job knowledge, but managers and coworkers complained about his FMLA-protected absences.

The Tenth Circuit held that Smothers met his prima facie burden on his FMLA and ADA claims and presented a genuine dispute of material fact as to whether Solvay’s stated purpose for firing him was pretextual. After viewing the evidence in Smothers’ favor, it showed that: (1) Solvay treated Smothers differently from similarly situated employees who committed comparable safety violations; (2) Solvay’s investigation into Smothers’ quarrel with Mahaffey was inadequate; and (3) Solvay managers previously took negative action against Smothers because of his FMLA-protected absences. Together these grounds create a triable issue of fact as to whether Mr. Smothers’ FMLA leave was a substantial motivation in Solvay’s decision to fire him.

The court rejected Solvay’s argument that the group of decision makers who fired Smothers was different from groups that disciplined other employees. The court held that requiring absolute congruence of decision maker members “would too easily enable employers to evade liability for violation of federal employment laws. The district court erroneously rejected Mr. Smothers’ pretext argument by insisting that the composition of the decision maker groups be precisely the same in every relevant disciplinary decision. We disagree because there is more than enough overlap to conclude the employees identified here were similarly situated to Mr. Smothers.”

The court also rejected Solvay’s argument that evidence of previous negative comments and actions about Smother’s FMLA leave were irrelevant to support his FMLA claims as they did not qualify as adverse employment actions. These incidents were relevant to a pretext inquiry, even if they could not be used to directly support a retaliation claim.

The court reversed the grant of summary judgment to Solvay on the FMLA and ADA claims, and affirmed on the state law claim of breach of contract as Smothers failed to show how the decision to discharge him violated the terms of Solvay’s handbook.

Tenth Circuit: Tortious Interference with Contract Claims Failed

The Tenth Circuit Court of Appeals published its opinion in Vazirani v. Heitz on Friday, December 20, 2013.

Anil Vazirani is an independent insurance agent, also known as a producer, who contracts with insurance companies to sell life-insurance and annuity products. He owns and manages Vazirani & Associates Financial, LLC and Secured Financial Solutions, LLC. In 2005, Vazirani contracted with Aviva Life and Annuity Company, a provider of life-insurance and annuity products. After approximately four years, Defendants Mark Heitz and Jordan Canfield, executives at Aviva, cancelled the contract.

In October 2009, Vazirani filed suit in federal court. The amended complaint named Heitz and Canfield as defendants, claiming that they (1) tortiously interfered with Vazirani’s contractual relationship with Aviva; (2) tortiously interfered with Vazirani’s business expectancies; (3) entered into a civil conspiracy to tortiously interfere with Vazirani’s contract with Aviva and Vazirani’s business expectancies; and (4) aided and abetted in each other’s tortious acts. The district court granted the Defendant’s motion for summary judgment on all claims.

Vazirani argued on appeal that the district court erred in granting summary judgment because he presented enough evidence that a jury should have been permitted to decide the tortious-interference claims. The court applied Arizona law and held that because the Defendants were acting within the scope of their authority, they were the employer and could not interfere with their own contract unless they acted with purely personal reasons without any motivation to serve Aviva. The court held that Vazirani failed to prove any personal motivation and a lack of business motives and affirmed the district court.

Tenth Circuit: Summary Judgment Affirmed for Employer in Title VII Case

The Tenth Circuit Court of Appeals published its opinion in Debord v. Mercy Health System of Kansas on Tuesday, November 26, 2013.

Sara Debord filed suit against her employer, Mercy Health Services of Kansas, for sexual harassment and retaliation in violation of Title VII. Debord claimed Mercy knew or should have known that her supervisor created a hostile workplace through unwanted touching and offensive sexual remarks. She also claimed that Mercy did not do enough to prevent sexual harassment in the workplace, and that, when she finally reported the harassment five years after it allegedly began, Mercy retaliated by firing her. The district court granted summary judgment for Mercy and ordered all parties to bear their own costs.

Debord argued that Mercy was directly liable for the harassment because it had actual notice of the harassment based on a complaint about the supervisor touching her made by another employee in 2001. The Tenth Circuit held that “notice of one instance of potential harassment of someone else cannot, without more, constitute actual notice of Debord’s sexual harassment three years later.” Debord also failed to show actual notice because she did not provide any evidence showing the extent, seriousness, or similarity of the prior misconduct.

Debord also argued Mercy had constructive notice of the harassment before 2009 when she told human resources about the unwanted touching. The court found evidence provided by Debord on this issue was not so “egregious, numerous, and concentrated” as to create a jury question on constructive notice.

The court applied the elements of the Faragher defense in determining the hospital could not be held vicariously liable. Debord failed to report the harassment even though Mercy provided sexual harassment training, annual reminders, an open-door policy with the management team, and an anonymous hotline to report harassment.

The court also found Debord failed to show pretext on her retaliation claim and affirmed summary judgment for Mercy. The court reversed the denial of costs to Mercy and remanded on that issue.

Colorado Court of Appeals: Summary Judgment Appropriate Where No Disputed Issue of Material Fact Exists

The Colorado Court of Appeals issued its opinion in Rieger v. Wat Buddhawararam of Denver, Inc. on Thursday, November 21, 2013.

Premises Liability—Summary Judgment—Licensee Versus Invitee—Vicarious Liability.

On July 26, 2010, Martin Rieger and his friend Chris Margotta volunteered their time to trim a large tree on property owned by Wat Buddhawararam of Denver, Inc. (Temple). While Rieger was holding a ladder for Margotta so he could cut branches, one of the branches fell off and struck Rieger, causing him serious injuries.

Rieger sued the Temple, which designated Margotta as a nonparty at fault. Rieger then amended the complaint to name Margotta as a defendant but subsequently voluntarily dismissed him, acknowledging that Margotta was immune from liability under the Volunteer Service Act and the Federal Volunteer Protection Act. Rieger still maintained that the Temple was vicariously liable for Margotta’s negligence.

The Temple filed for summary judgment pursuant to the Colorado Premises Liability Act (CPLA). The district court granted the Temple’s motion, and Rieger appealed.

Rieger argued that the district court erred by finding he was a licensee rather than an invitee for purposes of the CPLA. The district court concluded that Rieger was a volunteer, and Rieger offered no evidence that would contradict that conclusion. Volunteers generally are classified as licensees under the CPLA. Therefore, the court did not err.

Rieger also argued that the district court erred in holding that the Temple was not vicariously liable for Margotta’s negligence. The Court found that CRS § 13-21-115(2) clearly manifests the General Assembly’s intent to abrogate the common law of landowner duties and that it is the sole remedy for plaintiffs bringing claims against landowners for injuries occurring on their property. Rieger only argued he was an invitee, which the Court concluded he was not. He made no argument that the Temple had a duty to him as a licensee. Even if he had, the undisputed evidence was that the Temple did not create any danger nor did Rieger allege any failure to warn on the part of the Temple. The summary judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Pretrial Detainee’s Rights under 14th Amendment Delineated in § 1983 Case

The Tenth Circuit Court of Appeals published its opinion in Blackmon v. Sutton on Friday, November 8, 2013.

When Plaintiff Brandon Blackmon was eleven, he was held at a juvenile detention facility awaiting trial for rape. As an adult, Blackmon brought suit against members of the facility’s staff under 42 U.S.C. § 1983, alleging they violated the Fourteenth Amendment rights guaranteed to him as a pretrial detainee. He claimed the staff frequently used a restraint chair to punish him, used other unlawful punishments, deprived him of essential medical attention, and should have transferred him to another facility. The district court refused to dismiss the case based on qualified immunity and held that the defendants sometimes exceeded the scope of their qualified immunity. The defendants brought this interlocutory appeal.

The Tenth Circuit held that restraining Blackmon to punish him or without a legitimate penological purpose would have violated his clearly established legal rights at the time. Because the case was at the summary judgment stage and the court had to view the facts in the light most favorable to Blackmon, summary judgment was precluded. The court also found Blackmon produced enough facts to suggest a violation of clearly established law by two staff members’ failure to provide him with meaningful mental health care despite his obvious need for it.

Blackmon also asserted a claim against the director of the facility for failing to transfer him to a shelter where he had been housed before. The court found a transfer to the shelter was not necessary to avoid any excessive risk to his health or safety and even if a transfer was necessary, pretrial detainees do not get to choose a particular place of detention.

The court affirmed the district court’s denial of qualified immunity except as to the director. The Tenth Circuit directed the district court to grant qualified immunity to the director.

Colorado Supreme Court: Issue Preclusion Bars Claims But Incorrect Rule of Civil Procedure Applied in Dismissal

The Colorado Supreme Court issued its opinion in Bristol Bay Productions, LLC v. Lampack on Monday, October 21, 2013.

Issue Preclusion—CRCP 12(b)(5).

The Supreme Court held that the Colorado action brought by Bristol Bay Productions, LLC (Bristol Bay) is barred on issue preclusion grounds, because the identity of the defendants in this case is not relevant to the causation element Bristol Bay must prove to prevail on its fraud and fraud-based claims. The Court emphasized that Bristol Bay’s Colorado action is based on identical allegations concerning substantially identical misrepresentations to those Bristol Bay alleged in its previous California action.

The Court also held that the trial court erred by dismissing Bristol Bay’s Colorado action under CRCP 12(b)(5) without converting defendants’ motion to dismiss into a motion for summary judgment under CRCP 56. Because CRCP 56 was the appropriate procedure to resolve this case, Bristol Bay is not liable for attorney fees under Colorado’s attorney fee-shifting statute. The judgment was affirmed in part and reversed in part.

Summary and full case available here.

Tenth Circuit: Religious Accommodation Requires Employee Inform Employer of Belief and Need for Accommodation

The Tenth Circuit Court of Appeals published its opinion in EEOC v. Abercrombie & Fitch Stores, Inc. on Tuesday, October 1, 2013.

Abercrombie & Fitch (“Abercrombie”) appealed from the district court’s grant of summary judgment in favor of the Equal Employment Opportunity Commission (“EEOC”) and the court’s denial of summary judgment in favor of Abercrombie, on the EEOC’s claim that Abercrombie failed to provide a reasonable religious accommodation for a prospective employee, Samantha Elauf, in contravention of Title VII of the Civil Rights Act of 1964.

Elauf was friends with an employee at the Abercrombie store and asked her if wearing a hijab (a headscarf) to work would be permissible, as she wanted to apply for a job at that store. After asking an assistant manger about the hijab, the friend told Elauf it should not be a problem as long as the hijab was not black, as sales people were not allowed to wear black clothing as it conflicts with Abercrombie’s “Look Policy.”

A different assistant manager, Ms. Cooke, interviewed Elauf for the job and initially scored her high enough to have been hired. During the course of the interview, Elauf never informed Cooke that she was Muslim, never brought up the subject of her headscarf, and never indicated that she wore the headscarf for religious reasons and that she felt obliged to do so, and thus would need an accommodation to address the conflict between her religious practice and Abercrombie’s clothing policy. Cooke had seen Elauf in the store before wearing a hijab and assumed she wore it for religious reasons because she was Muslim, although she did not have actual knowledge. Cooke sought advice from the district manager about whether Elauf’s wearing a hijab would be a problem. He told Cooke not to hire her because wearing the hijab was inconsistent with the Look Policy.

A prima facie religion accommodation case “requires the employee to ‘show that (1) he or she had a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed his or her employer of this belief; and (3) he or she was fired [or not hired] for failure to comply with the conflicting employment requirement.’” The Tenth Circuit held that it was not enough that Abercrombie may have had notice; because Elauf had not explicitly informed Abercrombie before its hiring decision that her practice of wearing a hijab was based upon her religious beliefs and that she needed an accommodation for that practice, due to a conflict between it and Abercrombie’s clothing policy, she failed to make out a prima facie case.

The Tenth Circuit reversed the district court’s denial of summary judgment in favor of Abercrombie and reversed the district court’s grant of summary judgment to the EEOC. It remanded the case to the district court with instructions to vacate its judgment and enter judgment in favor of Abercrombie. Judge Ebel dissented from the grant of summary judgment to Abercrombie.

 

 

Colorado Court of Appeals: Summary Judgment Not Appropriate Where Disputed Issue of Material Fact Exists

The Colorado Court of Appeals issued its opinion in CapitalValue Advisors, LLC v. K2D, Inc. on Thursday, August 15, 2013.

Summary Judgment—Severable Provisions in Contracts—Void Contracts.

Plaintiff CapitalValue Advisors, LLC, doing business as CapitalValue M & A, LLC (CapitalValue), appealed the district court’s orders granting summary judgment in favor of defendants, K2D, Inc., doing business as Colorado Premium Foods, and its owners, Kevin LaFleur and Don Babcock (collectively, CPF), and Triton Capital Partners, Ltd. (Triton). The Court of Appeals reversed and the case was remanded with directions.

CapitalValue is a capital advisory firm. In December 2008, CapitalValue and CPF entered into an engagement agreement (Agreement) whereby CapitalValue contracted to help sell K2D, Inc. or otherwise obtain funding to alleviate its seasonal cash flow shortages.

In July 2012, CPF hired Triton and terminated the Agreement with CapitalValue. CPF then obtained a $57 million line of credit from U.S. Bank. CapitalValue informed CPF that under a twenty-four-month “tail provision” in the Agreement, CPF owed it 4.5% of the total value of the loan. CapitalValue sued CPF, alleging breach of the Agreement, unjust enrichment, and tortious interference with contract and prospective business advantage. CPF counterclaimed, in part, asserting that because CapitalValue did not hold the requisite securities or real estate licenses, the Agreement was void. CapitalValue later amended its complaint, adding Triton as a defendant.

CPF and Triton filed summary judgment motions. CapitalValue responded that it was not a licensed securities or real estate broker at the time it entered the Agreement, but that securing the loan required no licenses and that portion of the Agreement was severable and enforceable. In a series of three orders, the district court granted CPF’s and Triton’s motions for summary judgment. CapitalValue appealed.

CapitalValue argued that it was error to conclude that, as a matter of law, the Agreement was not severable. The Court agreed. Contrary to CPF’s contention, the plain language of the Agreement provided that CapitalValue would seek to secure a loan on CPF’s behalf and would receive 4.5% of the total amount secured for “debt financing for [CPF].”

The Court then considered whether this portion of the Agreement was severable and enforceable. It disagreed with the district court’s conclusion that severing the Agreement would eviscerate real estate licensing laws. Rather, it concluded that the Agreement provided for multiple agreements, one of which was for help in obtaining debt financing. Even though the Agreement did not have a severability provision, whether the parties intended the Agreement to be severable was a disputed issue of material fact that precluded summary judgment.

CapitalValue also contended it was error to determine the Agreement was void because it violated state and federal securities laws. The Court agreed based on similar reasoning as its severability analysis. Because the Agreement contained multiple promises, each of which may constitute a separate agreement or contract, the fact that some of the agreements were void does not mean that the entire Agreement is void. The judgment was reversed and the case was remanded for further proceedings.

Summary and full case available here.

Tenth Circuit: Summary Judgment for Medical Malpractice Defendants Affirmed

The Tenth Circuit Court of Appeals published its opinion in Talavera v. Wiley on Wednesday, August 7, 2013.

Carmen Talavera suffered a stroke while visiting a store in November 2007 and incurred permanent disabilities that she attributed to the medical malpractice of personnel at the Southwest Medical Center (SWMC), where she was taken after her stroke. Talavera brought claims against a number of these medical personnel defendants under diversity jurisdiction, alleging that they should have diagnosed and immediately treated her stroke symptoms with blood-clotting therapy, or, absent that, proceeded with early surgical intervention to prevent damage caused by swelling in her brain. The district court granted summary judgment for the defendants.

The Tenth Circuit first discussed the weight to give a report submitted by Dr. Helgason, Talavera’s expert neurologist. In the report, Dr. Helgason offered opinions as to how she believed the defendants had caused Talavera’s injuries. She later qualified those opinions in her deposition. The court held that a party “cannot create a genuine dispute of material fact solely by relying on a conclusion that was written in an expert report and later qualified during that expert’s deposition. A witness’s later qualifications are the relevant ‘opinions’ for purposes of summary judgment unless there is some reason for disregarding them.”

The court then applied Kansas law to Talavera’s tort claims and affirmed summary judgment.

Tenth Circuit: Qualified Immunity Summary Judgment in 42 U.S.C. § 1983 Claims Reluctantly Affirmed

The Tenth Circuit Court of Appeals published its opinion in Rojas v. Anderson on Tuesday, July 9, 2013.

Plaintiff Oliver Rojas appealed the district court’s order granting summary judgment to Defendants on his 42 U.S.C. § 1983 claims. Plaintiff filed a complaint under § 1983 against Defendants asserting claims of unlawful seizure and excessive force. The district court granted summary judgment to Defendants based on qualified immunity, concluding Officer Anderson had probable cause to arrest Plaintiff and, in light of the exigent circumstances surrounding the event, his warrantless entry into Plaintiff’s home was therefore justified. The district court also concluded that Defendants’ act of dropping Plaintiff did not violate the Fourth Amendment.

The Tenth Circuit agreed that the Defendants were entitled to qualified immunity as the Plaintiff failed to show that the defendant’s actions violated a constitutional or statutory right and that this right was clearly established at the time of the conduct at issue. The court pointed out that it may have reached an entirely different result but was forced to affirm because of the lack of proper argument and failure to provide supporting authority below or on appeal on the Plaintiff’s behalf.

Colorado Supreme Court: Summary Judgment Appropriate as a Matter of Law in Transaction Broker Negligence Case

The Colorado Supreme Court issued its opinion in Gibbons v. Ludlow on Monday, July 1, 2013.

Professional Negligence—Transactional Malpractice.

The Supreme Court held that to sustain a professional negligence claim against a transactional real estate broker, a plaintiff must show that, but for the alleged negligent acts of the broker, he or she either: (1) would have been able to obtain a better deal in the underlying transaction; or (2) would have been better off by walking away from the underlying transaction. The Court found that here, the sellers failed to present evidence of the fact of damages; they did not establish beyond mere possibility or speculation that they suffered a financial loss as a result of the transactional brokers’ professional negligence. Because no injury could be shown, the trial court properly granted summary judgment as a matter of law. Accordingly, the Court reversed the judgment of the court of appeals with respect to the summary judgment on the professional malpractice claim and reinstated the judgment of the trial court, including the attorney fees and costs associated with the claims.

Summary and full case available here.