Tuesday, December 5, 2017

Cases --- November 26th through December 2nd (2017)

Discrimination/Retaliation

*Smith v. Sprint/United Management Company (10th Cir., December 1, 2017) (affirming summary judgment in favor of Sprint on Smith's racial discrimination and retaliation claims: he failed to establish a prima facie claim of Title VII discrimination and failed to show that Sprint's nondiscriminatory reason for terminating his was pretextual)


Workers Compensation/Occupational Safety and Disease

Petersen v. Utah Labor Commission (Utah, December
1, 2017) (affirming denial of temporary total disability:  Utah Code § 35-1-65 does not abrogate any previously existing  remedy, since the legislature created an adequate substitute remedy in workers' compensation; it is therefore no violation of the Open Courts Clause)

Waite v. Utah Labor Commission (Utah, December 1, 2017) (affirming Labor Commission order denying compensation benefits: Utah Code § 34A-2-417(2)(a)(ii) is a statute of repose, but it nevertheless constitutional under the Open Courts Clause of the Utah Constitution)


*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

Thursday, November 16, 2017

Cases --- November 5th through 11th (2017)

Contract/Noncompete/Trade Secret/Wrongful Termination

*Utter v. Amie Rose Colclazier (10th Cir., November 62017) (affirming dismissal of implied employment contract and FMLA retaliation claims, but reversing dismissal of breach of contract and First Amendment claims)

*Rael v. Smith's Food and Drug Centers, Inc. (10th Cir., November 7, 2017) (affirming dismissal of Rael's state law harassment and emotional distress claims as preempted by § 301 of the Labor Management Relations Act)

Discrimination/Retaliation

*Mitchell v. Kansas City, Kansas, School District (10th Cir., November 7, 2017) (affirming summary judgment in favor of the School District: Mitchell fails to argue plain error on his discrimination claim or pretext on his retaliation claim)


Hamer v. Neighborhood Housing Services of Chicago (U.S., November 8, 2017) (vacating and remanding a Seventh Circuit employment discrimination decision holding jurisdictional the time limits on extensions under Federal Rule of Appellate Procedure 4(a)(5)(C): time extensions are mandatory and jurisdictional if set by statute, but the rule 4(a) limitation, which is nonstatutory, is not jurisdictional)


*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

Saturday, November 4, 2017

Cases --- October 29th through November 4th (2017)

Contract/Noncompete/Trade Secret/Wrongful Termination

First Western Capital Management Co. v. Malamed (10th Cir., October 30, 2017) (reversing grant of preliminary injunction:  First Western should have been required to demonstrate irreparable harm from alleged misappropriation of trade secrets;because it could not, the preliminary injunction was unwarranted.)


Discrimination/Retaliation


*Johnston v. Hunter Douglas Window Fashions, Inc. (10th Cir., November 2, 2017) (affirming dismissal of Johnston's age discrimination, retaliation, and disability discrimination under the ADA:  the amended complaint failed to allege facts sufficient to establish plausible claims)

Workers Compensation/Occupational Safety and Disease

*Harrold v. Berryhill (10th Cir., October 31, 2017) (reversing and remanding denial of disability benefits because the ALJ below failed to apply the appropriate legal standards in considering the evidence of mental impairments)


*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

Tuesday, October 31, 2017

Cases --- October 22nd through 28th (2017)

Contract/Noncompete/Trade Secret/Wrongful Termination

Augustus v. Vernal City
 (Utah Ct. App., October 26, 2019) (declining to disturb the city's decision to uphold Augustus's termination:  the city's board did not violate Augustus's due process notice right)

Lamont v. Riverton City Board of Appeals (Utah Ct. App., October 26, 2017) (declining to overturn Lamont's termination for his refusal to take an alcohol test: the Board properly relied on Lamont's insubordination as grounds to uphold termination, and Lamont received adequate notice of those grounds)

*Williams v. RGA Home Health Services, Inc. (10th Cir., October 27, 2017) (affirming damages calculation of $85,900:  RGA admitted the contract and failed to properly demand a jury trial on the damages)

Discrimination/Retaliation

*
Laul v. Los Alamos National Laboratories (10th Cir., October 23, 2017) (affirming summary judgment in favor of Los Alamos on Laul's age and national-origin discrimination and retaliation claims)


*Panicker v. Compass Group USA, Inc. (10th Cir., October 23, 2017) (affirming dismissal of Title VII discrimination case because he filed after the end of the 90-day filing period and provided an incorrect address to the EEOC)


ERISA 


*Stephens v. Alliant Techsystems Corp. (10th Cir., October 23, 2017) (affirming summary judgment in favor of Alliant Techsystems on Stephens' suit to nullify the lump-sum distribution of retirement benefits)


Workers Compensation/Occupational Safety and Disease

*Watts v. Berryhill (10th Cir., October 27, 2017) (affirming denial of social security disability benefits: there was no error in the ALJ's review of either the medical evidence or his credibility determination) 


*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

Friday, September 29, 2017

Cases --- September 10th through 16th

Discrimination/Retaliation

Sanchez v. US Department of Energy (10th Circuit,
September 11, 2017) (vacating judgment on the pleadings as to Sanchez's failure-to-accommodate claim, based on his dismissal because his Mixed Receptive-Expressive Language Disorder was a threat to national security. But the court affirmed the dismissal of his retaliation, disparate treatment, and procedural due process claims)

Wages


*Jimenez and Bustillos v. Board of County Commissioners (10th Cir., September 14, 2017) (reversing summary judgment for the county on Jimenez's Fair Labor Standards Act claim for overtime for the five minutes she was required to be at work before her shift, but affirming summary judgment for the county in all other respects)

Workers Compensation/Occupational Safety and Disease

Cox v. Labor Commission (Utah Ct. App., September 14, 2017) (setting aside Labor Commission order denying Cox's workers' compensation claim:  the Commission applied the incorrect legal standard, since aggravation of a preexisting condition suffices to establish medical causation in an industrial case)

*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.


Cases --- September 3rd through 9th

Cases --- August 27th through September 2nd

Discrimination/Retaliation

*Villecco v. Vail Resorts, Inc. (10th Cir., August 27, 2017) (affirming dismissal of Villecco's employment discrimination claim for failure to prosecute his claim, and subsequent denial of FRCP 60(b) motion for relief)

*Webster v. Shulkin (10th Cir., August 31, 2017) (affirming summary judgment in favor of Shulkin and the Department of Veterans' Affairs on Webster's age-discrimination and retaliation claims because Webster failed to establish pretext and based his retaliation claims on speculation)

Workers Compensation/Occupational Safety and Disease

Rueda v. Labor Commission (Utah, August 31, 2017) (a splintered opinion (2-2-1) offering detailed analyses, from opposing points of view, of the effect of the 1991 amendments to the Occupational Disease Act on the Workers' Compensation Act.  Unfortunately, these analyses accomplish nothing, since none carried a majority, and the order below was left standing perforce)

*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

Wednesday, August 2, 2017

Cases --- July 23rd through 29th

Discrimination/Retaliation

*Coyle v. Jackson (10th Cir., July 27, 2017) (affirming dismissal for failure to comply with FRCP Rule 8: plaintiff failed to allege specific in support of his discrimination claims)

Workers Compensation/Occupational Safety and Disease


Quast v. Utah Labor Commission (Utah, July 25, 2017) (reversing award of total disability because the Court of Appeals misstated the burden of proof:  the employee bears the burden of proof on all elements of a total disability claim; the employer need not prove an employee capable of performing other reasonably available work)


Oliver v. Utah Labor Commission (Utah, July 25, 2017) (reversing total disability award: the Court of Appeals misinterpreted the permanent total disability statute's basic work activities provision, misallocated burden of proof:  the employee bears the burden of proving each element of a permanent total disability claim)


Consolidation Coal Company v. OWCP (10th Cir., July 25, 2017) (granting Consolidation's petition for review of Department of Labor award of survivor's benefits to employee's wife: the ALJ incorrectly stated the rebuttal standard, which, however, requires an employer to rule out causal connection between pneumoconiosis and death to rebut a connection)


*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

Friday, July 21, 2017

Cases --- July 9th through 15th

Contract/Noncompete/Trade Secret/Wrongful Termination

*Puckett v. US Dept. of Agriculture (10th Cir., July 10, 2017) (affirming summary judgment in defendant's favor:  Puckett failed to demonstrate that her termination was arbitrary and capricious or that the reason for it was lacking in substantial evidence)


*Ellison v. Roosevelt County Board of County Commissioners (10th Cir., July 12, 2017) (affirming magistrate's 12(b)(6) dismissal of Ellison's claim he was fired for arresting his supervisor's friend, reporting misconduct, and refusing to cover up wrongdoing:  his complaint failed to state a plausible claim for relief)


Discrimination/Retaliation

*Jara v. Standard Parking (10th Cir., July 13, 2017) (affirming 12(b)(6) dismissal of Jara's claims because he failed to timely file on his discrimination claim or to allege sufficient facts on his retaliation claim)

Labor Unions

*Jara v. Standard Parking (10th Cir., July 13, 2017) (affirming 12(b)(6) dismissal of Jara's claims because he alleged no facts suggesting the Union acted in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation)

Workers Compensation/Occupational Safety and Disease

*Scott v. Berryhill (10th Cir., July 10, 2017) (affirming denial of social security benefits because, while Scott suffered from severe impairments, she retained the residual capacity to perform light work)


*Olson v. Berryhill (10th Cir., July 10, 2017) (affirming denial of benefits because Olson still had residual capacity for light work despite cervical fractures, degenerative disc disease, obesity, bilateral hearing loss, and joint degeneration)



*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

Tuesday, July 4, 2017

Cases --- June 25th through July 1st

Contract/Noncompete/Trade Secret/Wrongful Termination

*Winger v. Meade District Hospital (10th Cir., June 27, 2017) (affirming summary judgment in favor of the hospital on Winger's due process claim)

Bahnmaier v. Northern Utah Healthcare Corporation (Utah Ct. App., June 29, 2017) (affirming summary judgment in favor of Northern Utah: the hospital's substance abuse policy is not an implied contract requiring reasonable suspicion of intoxication before drug testing)

Unemployment Appeals

Gibson v. Department of Workforce Services (Utah Ct. App., June 29, 2017) (declining to disturb appeals board's determination that Gibson quit his position without good cause, making him ineligible for unemployment benefits)

Wages

Marlow v. The New Food Guy, Inc. (10th Cir., June 30, 2017) (Marlow received $12/hour ($4.50 above minimum wage) but demanded her tips under 29 CFR § 531.52 (2011).  The 10th Circuit affirmed the district court's implicit determination that the Department of Labor lacked authority to promulgate such a regulation: "If an employer pays more than the minimum wage without regard to tips, the FLSA does not restrict [its] use of tips. The regulation categorically barring employers from retaining tips is invalid because it exceeded DOL’s authority.")
   
*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

Friday, June 23, 2017

Cases --- June 18th through 24th

Unemployment Appeals

*Board of Education v. Henderson (10th Cir., June 19, 2017) (unhappy with the Navajo Nation's determination that it had jurisdiction, the school district sought relief in federal court, which dismissed for lack of standing)


Workers Compensation/Occupational Safety and Disease

*Bell v. Social Security Administration (10th Cir., June 20, 2017) (affirming denial of social security benefits because Bell inadequately briefed her case: her arguments were little more than cursory statements without analysis)


*Kellams v. Berryhill (10th Cir., June 23, 2017) (reversing denial of disability and supplemental income benefits: the ALJ downplayed the severity of some evidence and failed to provide legitimate reasons for discounting medical source opinions)

  
*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

Cases --- June 11th through 17th

Discrimination/Retaliation

*Herrera v. Las Cruces Public Schools (10th Cir., June

13, 2017) (affirming dismissal of Herrera's disability discrimination and retaliatory discharge claims as untimely: "date of service" is the date of mailing, not receipt)

*Jones v. Price (10th Cir., June 13, 2017) (affirming summary judgment in favor of Price, the Secretary of Health & Human Services, because Jones failed to establish any violation of the Age Discrimination in Employment Act)


Depaula v. Easter Seals El Mirador (10th Cir., June 12, 2017) (affirming summary judgment in favor of Easter Seals because Depaula could not show any pretext in support of his employment discrimination claims)


ERISA and Employee Pension Plans



Ostler v. Retirement Board (Utah Ct. App., June 15, 2017) (declining to disturb the board's decision declining pension benefits because Ostler forfeited 15 years of credit when he elected to receive a refund of his member contributions)

Workers Compensation/Occupational Safety and Disease


*Martinez v. Berryhill (10th Cir., June 14, 2017) (reversing and remanding denial of law firm's motion for reconsideration of Judge's Order requiring it to refund Equal Access to Justice Act fees)


*Lopez v. Berryhill (10th Cir., June 13, 2017) (affirming denial of Lopez's fee application under the Equal Access to Justice Act following his successful appeal; the decision appealed from, however, was substantially justified despite its being wrong)



*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

Monday, June 19, 2017

D. Scott Crook Named a Mountain States Super Lawyer!

D. Scott Crook, the creator of The Utah Employment Lawyer and a partner and managing attorney of Crook & Taylor Law PLLC, was nominated by his peers for inclusion in the 2017 Edition of Mountain States Super Lawyers for Employment and Labor.  Mr. Crook, who has also been named to The Best Lawyers in America and as one of the Utah Legal Elitehas been included in The Mountain States Super Lawyers since 2011.

Mr. Crook's law partner, Jeremiah Taylor, was also named as a 2017 Rising Star by Mountain States Super Lawyers.

Saturday, June 10, 2017

Cases --- June 4th through 10th


*Pittman v. American Airlines, Inc. (10th Cir., June 8, 2017) (affirming summary judgment in favor of American Airlines on Pittman's race and disability discrimination and retaliation because she failed to draw any causal connection or pretext)

*Burke v. State of New Mexico (10th Cir., June 8, 2017) (affirming dismissal of 1983 and certain equal pay and whistleblower claims, reversing dismissal of whistleblower claim against one of the defendants in his official capacity, and remanding violation-of-privacy, wage discrimination, and whistleblowing claims)


ERISA


Advocate Health Care Network v. Stapleton (U.S. Supreme Court, June 5, 2017) (reversing judgment in favor of

Stapleton respondents: church plans include plans maintained by organizations whose principal purpose is the administration of such plans, regardless of who established them, churches or church-affiliated nonprofit organizations. These plans fall under ERISA's 29 USC s. 1003(b)(2) exemption) 

The Pioneer Centres Holding Company Employee Stock Ownership Plan v. Alerus Financial, N.A. (10th Cir., June 5, 2017) (affirming summary judgment for Alerus: it is the duty of the plaintiff asserting a breach of fiduciary duty claim under ERISA to prove losses to the plan)

*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

Thursday, May 25, 2017

Cases --- May 21 through 27

Discrimination/Retaliation 

*Espinoza-Horiuchi v. Walmart Stores, Inc. (10th Cir., May 22, 2017) (dismissing appeal of summary judgment for lack of jurisdiction, and affirming the district court’s bill of costs)

*Iselin v. Bama Companies (10th Cir., May 26, 2017) (reversing dismissal of claims for discriminatory termination, failure to hire, and failure to accommodate, but affirming dismissal of misuse-of-employment-testing claim: 12(b)(6) dismissal inappropriate since well-plead allegations must be read in favor of the plaintiff)

Contract/Noncompete/Trade Secret/Wrongful Termination

Water Splash, Inc. v. Menon (U.S. Supreme Court, May 22, 2017) (vacating and remanding judgment in favor of Menon:  The Hague Service Convention does not prohimit service of process by mail, which is permissible if the receiving state has not objected to such service and it is authorized under otherwise-applicable law)

*Blough v. Rural Electric Coop, Inc. (10th Cir., May 23, 2017) (affirming grant of Rural Electric's motion to dismiss Blough's claim for wrongful termination because Blough failed to plausibly statea claim for relief)

Workers Compensation/Occupational Safety and Disease


Energy West Mining Company v. Estate of Morris Blackburn (10th Cir., May 23, 2017) (affirming Black Lung Benefits compensation claim and denying petition for review: the Labor Benefits Review Board did not err in affirming the award below)

*Hays v. Berryhill (10th Cir., May 25, 2017) (affirming denial of attorneys fees because the commisioner's decision was substantially justified)

*Lee v. Berryhill (10th Cir., May 25, 2017) (affirming denial of disability insurance and social security income because the appellate court may not reweigh evidence and the Frey/Thompson analysis was present)

*Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.