Tenth Circuit – August 19, 2014

Today, the Tenth Circuit released three published civil opinions.

In Garcia v. Tyson Foods, Inc. (No. 12-3346), the district court certified a class action under the Kansas Wage Protection Act and a collective action under the Fair Labor Standards Act (FLSA) on claims brought by Tyson employees seeking unpaid wages for pre- and post-shift activities (like changing into protective gear). After a verdict and fee award in favor of the employees, Tyson moved for judgment as a matter of law, arguing that the evidence was insufficient to support the verdict. The district court denied the motion. On appeal, Tyson challenged that ruling and the fee award.

The Tenth Circuit affirmed. The court found the evidence sufficient and rejected Tyson’s argument that individualized evidence was needed rather than representative evidence. As to the fee award, the Tenth Circuit found the district court had created an adequate procedure for review and challenge to the attorneys’ fees incurred. The award also did not need to exclude time spent on the state law claims because of their interrelation with the FLSA claims, and the fee award did not need to be reduced simply because it was large in relation to the jury’s damages award.

The Tenth Circuit apparently resisted the temptation to try on protective gear, in contrast to the Seventh Circuit, whose opinion in a gear-changing case caused controversy earlier this year.

In National Credit Union Administration Board v. Nomura Home Equity Loan, Inc. (Nos. 12-3295 & 12-3298), the court reconsidered its prior decision following an order from the United States Supreme Court granting certiorari review, vacating the prior decision, and remanding the case for reconsideration in light of CTS Corporation v. Waldburger, 134 S. Ct. 2175 (2014). The court reinstated its original opinion, concluding that CTS did not alter its decision, and again holding that the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) establishes a universal time frame for the National Credit Union Administration (NCUA) to bring any actions on behalf of credit unions placed into conservatorship or receivership, notwithstanding any pre-existing periods applicable to other plaintiffs.

At issue was a potential conflict between the so-called NCUA Extender Statute in FIRREA, 12 U.S.C. § 1787(b)(14), and Section 13 of the Securities Exchange Act of 1933. The Extender Statute allows any federal tort claim on behalf of a credit union to be brought within three years of either (1) the date the NCUA places the credit union into receivership, or (2) the date when the claim accrues. The Securities Act, however, contains a statute of repose that starts running when a security is offered or sold. The Tenth Circuit concluded that the plain language of the Extender Statute indicates that it supplants all other potential statutes of limitations, such that the three-year repose period in the Securities Act was not relevant to the claims in the case. And the Supreme Court’s decision in CTS, relating to statutes of limitation for CERCLA claims, did not alter that conclusion.

In Molina v. Holder (No. 13-9573), the Tenth Circuit considered a petition for review of a final decision issued by the Board of Immigration Appeals (BIA). A husband and wife are citizens of Mexico and subject to final orders of removal from the United States. They sought cancellation of removal and needed to prove continuous residence in the United States from October 1998 to October 2008. Their first attorney submitted evidence that included documentation from 1998. The couple then moved and obtained a second hearing with new counsel, who submitted proof of residence from 1999 to 2010 but did not present evidence from 1998 or refer to the previously-submitted evidence. The immigration judge (IJ) denied relief, relying on discrepancies in the testimony and the fact that the evidence had not addressed the husband’s residence in 1998. The second attorney appealed to the BIA but without challenging any of the IJ’s rulings, and the BIA dismissed the appeal. The couple then hired a third attorney, who filed a motion to reopen based on ineffective representation of counsel, arguing that the second attorney had performed ineffectively by failing to submit evidence of continuous residence in 1998. The BIA denied the motion.

On appeal to the Tenth Circuit, the couple argued that the motion to reopen should have been granted due to the IJ’s failure to consider all the evidence and ineffective representation by their second counsel. The court concluded that it lacked jurisdiction to address the IJ’s failure to consider all the evidence because the couple had not exhausted their administrative remedies on that issue. As to ineffective representation, the court concluded the wife had not shown the BIA abused its discretion. However, the BIA made an error in finding that the husband’s new evidence in the motion to reopen was substantially the same as the previous evidence considered by the IJ. The court remanded the husband’s case to the BIA with instructions to reconsider the motion to reopen based on recognition that the new evidence was not considered by the IJ.

Colorado Supreme Court – August 18, 2014

Today, the Colorado Supreme Court issued no new opinions. It modified its opinions and denied petitions for rehearing in a pair of cases relating to discovery orders issued in post-conviction proceedings. It granted one original proceeding under Colorado Appellate Rule 21. The court denied 84 petitions for certiorari and granted six.

Two of the grants of petitions for certiorari were in civil cases.

In Ritzert v. Board of Education of the Academy School District No. 20 (No. 13SC930), the issues are:

Whether an order given as a pretext to develop an additional ground to fire a teacher, which was impossible or impractical for the teacher to comply with, was reasonable for purposes of firing the teacher for insubordination.

Whether a teacher who is informed that she is being placed on open-ended leave pending the filing of dismissal charges, and that she will not be allowed to return to work for the school district planning to fire her, may mitigate her damages by accepting a job with a second school district, so long as she offers to only accept the difference in pay between what she makes at the second district and her salary from the district seeking her dismissal pending resolution of the dismissal charges.

Whether the reasonableness of the teacher’s mitigation of damages and the supervisor’s orders are matters of fact, law, or school board discretion.

In Reno v. Marks (No. 14SC235), the issue is:

Whether the court of appeals erred by mandating an award of attorney fees to a CORA [Colorado Open Records Act] records requestor in a proceeding under section 24-72-204(6)(a), C.R.S. (2013) even though that section does not expressly provide for an award of fees.

Colorado Court of Appeals – July 31, 2014

The court released seven published decisions and 35 unpublished decisions. Five of the seven published decisions were from criminal cases. The remaining two decisions address issues of overtime compensation and family law.

In Idowu v. Nesbitt, the court addressed an issue of first impression in Colorado: Can a state agency retroactively cancel previously approved and taken leave time to avoid having to pay “essential employees” overtime compensation pursuant to section 24-50-104.5(1), C.R.S. 2013? The court held that it cannot. For “essential” state employees, authorized paid leave is counted as part of the work week for determining when overtime compensation is earned under § 24-50-104.5. After a work week when each of the plaintiffs’ actual work time plus authorized paid leave exceeded 40 hours, the Department of Personnel adjusted their timesheets to reduce their authorized leave to a level where they were not entitled to overtime compensation. The court found that § 24-50-104.5 does not give the state authority to withdraw authorization for paid leave after the leave already has been taken, as such conduct would undermine the very purpose of the statute. Nor can an administrative regulation be used to override the provisions of the statute.

In re Marriage of Roddy considered whether a wife’s failure to disclose her most recent six months’ financial information undermines a child support order. The court held that the trial court did not abuse its discretion when it denied husband’s Rule 60 motions to set aside the support order at issue. The case also addresses the (un)timeliness of an appeal from a child support order.

Finally, the court denied petitions for rehearing in seven cases.

Tenth Circuit – July 28, 2014

The Tenth Circuit released two published civil opinions on July 28, 2014.

Ron Peterson Firearms, LLC v. Jones, (No. 13-2054 and 13-2055) involved a challenge to the Bureau of Alcohol, Tobacco, and Firearms’ authority to issue a demand letter to certain federal firearm licensees in Arizona, California, New Mexico, and Texas. The letter required recipients to report to ATF sales to the same customer within five consecutive business days of “two or more semiautomatic rifles capable of accepting a detachable magazine and with a caliber greater than .22.” Like the Fifth and D.C. Circuits, the Tenth Circuit concluded that the ATF had the statutory authority to make the demand, which was not arbitrary and capricious. (D. N.M.)

In Green v. Donahoe, (No. 13-1096), the plaintiff, a former postmaster, asserted several claims arising from his employment with the U.S. Postal Service. The Tenth Circuit affirmed the dismissal of three of the claims because the plaintiff had not exhausted his administrative remedies. Facing a circuit split, the court also considered the issue of when a constructive discharge cause of action accrues. Siding with the D.C. and Seventh Circuits, the Tenth Circuit determined that a discriminatory act must occur during the limitations period. The Second, Fourth, and Ninth Circuits, on the other hand, have held that the cause of action accrues when the employee resigns. Finally, the court reversed the district court’s conclusion relating to the plaintiff’s retaliation claim, finding that the Postal Service’s placement of the plaintiff on “emergency placement” was a materially adverse action. (D. Colo.)

Tenth Circuit – July 25, 2014

The court released one published civil opinion this day.

In Dalpiaz v. Carbon County, Utah, the court considered whether a FMLA claim was properly resolved on summary judgment. The plaintiff, the county benefits administrator for Carbon County, Utah, was injured in a motor vehicle accident. Following the accident, she was out of work for more than 3 months, and then returned only on a limited basis. Plaintiff did not submit a FMLA form until she was asked multiple times, including by the county attorney. While plaintiff was on leave, her supervisor heard reports from community members and other county employees that plaintiff was engaging in physical activities that seemed to be inconsistent with her claims of injury. The county subsequently requested that plaintiff submit to an independent medical examination (IME) to assess the nature and severity of her injuries; although plaintiff agreed to do so, the IME never occurred. Plaintiff ultimately was discharged.

The trial court granted summary judgment on all of plaintiff’s claims against Carbon County. On appeal, the only question was whether the court properly granted summary judgment on plaintiff’s claim for FMLA interference. To establish a claim of FMLA interference, an employee must show: (1) that she was entitled to FMLA leave; (2) that some adverse action by the employer interfered with her right to take FMLA leave; and (3) that the employer’s action was related to the exercise or attempted exercise of her FMLA rights. The Tenth Circuit concluded that plaintiff could not meet the third prong, agreeing with the trial court that plaintiff’s interference claim fails as a matter of law because the county successfully established that plaintiff would have been dismissed regardless of her request for an FMLA leave. “What is important is not the absolute truth regarding Plaintiff’s state of health, but rather whether the county terminated her because it sincerely, even if mistakenly, believed she had abused her sick leave and demonstrated significant evidence of untruthfulness.” Slip op. at 13.

The court also released 8 unpublished orders and judgments.

Tenth Circuit – July 15, 2014

On July 15, 2014, the Tenth Circuit issued one published civil opinion.

In Knitter v. Corvius Military Living, LLC (No. 13-3027), the plaintiff alleged wage discrimination and retaliation. The district court granted summary judgment in favor of the defendant, finding that the plaintiff was not the “employee” of the defendant under Title VII. The Tenth Circuit affirmed. The court applied the “joint employer test,” which looks to whether two purported employers both exercise significant control over the employee, including the right to terminate the employee, the creation of work rules and assignments, the setting of conditions of employment, supervision of the employee, and control of employee records. The Tenth Circuit held that the undisputed evidence demonstrated the plaintiff was treated as a vendor, not an employee, of the defendant. (D. Kan.)

Tenth Circuit – July 11, 2014

On Friday, July 11, 2014, the Tenth Circuit released new three decisions.

In Paycom Payroll LLC v. Richison, No. 13-6181, the Tenth Circuit reviewed a Special Master’s report adopted by the district court regarding copyright infringement of computer software code. The Tenth Circuit held that when comparing the protectable elements of a plaintiff’s work to a defendant’s work, it is useful to apply the “abstraction-filtration-comparison test.” In this case, the Special Master failed to document the application of each step of the test and apparently suffered from the “misconception that an infringement analysis begins and ends with ‘copying in fact.'” The court vacated the order adopting the Special Master’s report and remanded with instructions for the district court to request a more thorough report. (W.D. Okla.)

In Wagner v. Bank of America, Corp., No. 13-1347 (unpublished), the Tenth Circuit affirmed the district court’s order granting summary judgment in favor of the defendant. Plaintiff asserted wrongful discharge in violation of public policy under Colorado law. The plaintiff contended she was fired in retaliation for reporting alleged Uniform Standards of Professional Appraisal Practice (USPAP) violations by her co-workers. The defendant contended she was terminated for combative and insubordinate communications. The plaintiff’s only evidence of the defendant’s improper motive was temporal proximity. With a gap of more than three months between the plaintiff’s final report and her termination, along with the undisputed insubordinate communications that occurred in the interim, the Tenth Circuit held that resolution of the case by summary judgment was proper. (D. Colo.)

The court also released one published criminal opinion.