Articles Posted in US Court of Appeals for the Tenth Circuit

by
The plaintiffs were two wholly owned subsidiaries of First American Financial Corporation: First American Title Insurance Company (FA Company) and First American Title Company, LLC (FA LLC) (collectively Plaintiffs). The defendants, who appealed a judgment against them (Defendants) were Michael Smith, Kristi Carrell, and Northwest Title Insurance Agency, LLC. Jeffrey Williams was also a defendant, but is not a party to the appeal. Defendants raised numerous grounds on appeal of a large jury award based on breaches of contractual and fiduciary duties, many of which the Tenth Circuit concluded were not adequately preserved or presented. Therefore, the Tenth Circuit affirmed the district court's judgment, "[w]e may not have awarded the same amount, but we see no abuse of discretion." View "First American Title Insurance v. Northwest Title Insurance" on Justia Law

by
Charles Payan appealed the district court’s grant of summary judgment in favor of United Parcel Service (“UPS”) in relation to his claims for racial discrimination and retaliation arising under Title VII and 42 U.S.C. 1981, as well as his state law claims for breach of contract and breach of the covenant of good faith and fair dealing. Payan identified himself as Hispanic and worked for UPS since 1991. UPS uses the “Ready Now” list to determine candidates for promotions, so Payan’s removal from the list meant that he could no longer be considered for promotions. Charles Martinez, Payan's direct supervisor, continued thereafter to rate Payan’s promotion status as “Retain at Current Level,” meaning he believed Payan needed more time to develop before being promoted. After Payan’s downgrade, two UPS employees with similar credentials were promoted to Security Division Managers, positions that Payan wanted but was not eligible for in light of his promotion status downgrade. In November 2012, and in response to the recommendations of Martinez, UPS put Payan through a Management Performance Improvement Process (“MPIP”), designed to “help employees who are not performing well go through a formalized training with their manager to help them improve their skill sets so they could perform effectively and eliminate whatever those deficiencies are.” At some point, UPS determined Payan was not meeting the plan’s requirements. Shortly thereafter, Payan filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Payan alleged that he had been subjected to harassing and degrading behavior from Martinez and that his non-Hispanic coworkers were not treated in such a way. He also alleged that UPS retaliated against him by placing him on an MPIP. The EEOC ultimately dismissed Payan’s charge of discrimination and issued him a right-to-sue letter. Finding no reversible error in the district court's grant of summary judgment to UPS, the Tenth Circuit affirmed. View "Payan v. United Parcel Service" on Justia Law

by
The district court dismissed with prejudice of the Secretary of Labor’s complaint against Jani-King of Oklahoma, Inc. Jani-King is a janitorial company providing cleaning services in the Oklahoma City area. Following an investigation into Jani-King’s employment practices, the Secretary of Labor filed a complaint alleging violations of the Fair Labor Standards Act and seeking an injunction to require Jani-King to keep the requisite FLSA employee records. Specifically, the Secretary asserted that individuals who formed corporate entities and enter franchise agreements as required by Jani-King “nonetheless personally perform the janitorial work on behalf of Jani-King” and, based on the economic realities of this relationship, were Jani-King’s employees under the FLSA. Jani-King successfully moved to dismiss, arguing: (1) under Rule 12(b)(6), the Secretary failed to plausibly suggest that every franchise owner should have been treated as an employee under the FLSA; and (2) under Rule 12(b)(7), the Secretary failed to name the franchisees as necessary parties. The Tenth Circuit found the Secretary’s amended complaint contained sufficient facts to state a facially plausible claim for relief. In so concluding, the Court made no determination as to the merits of the case, only that it survived the initial Rule 12(b)(6) motion to dismiss. View "Acosta v. Jani-King of Oklahoma" on Justia Law

by
Ryan Lee sued four Sheriff’s Deputies, pursuant to 42 U.S.C. 1983, alleging violations of his First and Fourth Amendment rights. On July 4, 2014, Lee and his wife, Tamila Lee, attended a barbecue where they consumed alcohol. After the couple returned home, an altercation broke out over a set of car keys. Tamila, in an attempt to keep her husband from driving, blocked him from exiting their home, and a physical struggle ensued. Deputies Mark O’Harold and Todd Tucker arrived first and entered the home with Tamila’s consent. Shortly afterward, Deputies Amanda Weiss and Chad Walker also arrived at the Lees’ home and separated the Lees for questioning. Lee was largely uncooperative. Tucker attempted to detain him, and another struggle broke out. O’Harold and Weiss, hearing a commotion, reentered the home. O’Harold applied an arm bar hold to Lee. Lee collided with the kitchen cabinets and refrigerator, and Weiss then struck him twice in the shoulder in an effort to force him to let go of the refrigerator. O’Harold also struck Lee twice in the neck. Tucker drew his Taser and applied it three to five times to Lee’s back, with each application lasting approximately three, five, and eight seconds respectively. Lee then lost consciousness. Throughout the incident, Walker observed but did not intervene. Weiss then handcuffed Lee and escorted him to Weiss’ squad car. Lee subsequently pled guilty to misdemeanor domestic violence. The district court granted the motion as to Lee’s First Amendment retaliation claim and the portion of his excessive force claim based on handcuffing, but denied it as to the remainder of his excessive force claim. The district court concluded that the facts remaining in dispute, when viewed in the light most favorable to Lee, precluded a grant of qualified immunity. Defendants appealed. The Tenth Circuit determined it lacked interlocutory appellate jurisdiction to review the district court’s determination of evidentiary sufficiency at the summary judgment stage. As to the purely legal challenge defendants raised on appeal, the Court concluded the district court correctly held that defendants used excessive force and did so in violation of clearly established law. The appeal was dismissed as to the factual challenges, and affirmed in all other respects. View "Lee v. Tucker" on Justia Law

by
Two years after the district court denied class certification, the parties settled the individual claims. After settling, the parties jointly asked the court to enter a stipulated judgment dismissing with prejudice the Trusts’ individual claims, and the court did so. In the judgment, the Trusts reserved any right they may have to appeal the district court’s class-certification denial. The Trusts now appealed that denial, contending that the class-certification order merged with the stipulated judgment dismissing their individual claims, resulting in a final, appealable order under 28 U.S.C. 1291. Relying on Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), the Tenth Circuit held that it lacked statutory appellate jurisdiction to review the district court’s order denying class certification. "Voluntarily dismissing the Trusts’ individual claims with prejudice after settling them doesn’t convert the class-certification denial—an inherently interlocutory order—into a final decision under 28 U.S.C. 1291." The Court dismissed this appeal. View "Anderson Living Trust v. WPX Energy Production" on Justia Law

by
Belsen Getty, LLC, a registered investment adviser owned by Terry Deru, obtained a claims-made financial-services-liability policy (the Policy) from XL Specialty Insurance Company covering Belsen Getty and its advisers for the period for one year. Under the policy, XL had no duty to defend. During the policy period James, Jenalyn, and Wade Morden brought claims against Belsen Getty and Deru alleging improper and misleading investment advice. XL denied coverage, asserting the Mordens’ claims and claims brought by the Securities and Exchange Commission (SEC) before the policy period concerned “Interrelated Wrongful Acts,” as defined by the Policy, and that the Policy therefore required treating the two claims as one claim made before the policy period. Belsen Getty and Deru then settled with the Mordens, assigning their rights against XL; and the Mordens sued XL in federal district court, raising the assigned claims that XL breached its covenant of good faith and fair dealing and its fiduciary duties to Belsen Getty and Deru in denying coverage under the Policy. XL counterclaimed that the Policy’s Interrelated Wrongful Acts provision precluded coverage. The Mordens moved for partial summary judgment on the counterclaim and on several of XL's affirmative defenses. XL moved for summary judgment based on the policy and for failure to prove bad faith or breach of fiduciary duty. The district court denied XL's counterclaim, but granted summary judgment on the bad-faith and fiduciary-duty claims. The Mordens appealed summary judgment against them on their bad-faith and fiduciary-duty claims and on the denial of their motion to amend their complaint to add a breach-of-contract claim. XL cross-appealed the summary judgment against it on its counterclaim that the Policy’s Interrelated Wrongful Acts provision barred all the Mordens’ claims. The Tenth Circuit reversed the denial of XL’s motion for summary judgment on its counterclaim: this reversal undermined the Mordens’ challenges to the summary judgment against them and the denial of their motion to amend. The Court therefore affirmed summary judgment against the Mordens on their claims and the denial of their motion to amend. View "Morden v. XL Specialty Insurance" on Justia Law

by
Matthew Ray, a former DISH Network L.L.C. employee who signed an arbitration agreement when he was employed, filed an action in the federal district court alleging violations of the Fair Labor Standards Act (“FLSA”), Colorado’s Wage Claim Act, Colorado’s Minimum Wage Act, and a common law claim for breach of contract. Dish moved to dismiss, demanding that Ray arbitrate his claims pursuant to the Agreement. Ray dismissed the lawsuit and filed with the American Arbitration Association (“AAA”), asserting the same four claims. In addition, and the focus of this case, Ray attempted to pursue his claims as a class action under Fed. R. Civ. P. 23 and a collective action under 29 U.S.C. 216(b). The arbitrator determined that the Arbitration Agreement between the two parties permitted classwide arbitration, and then stayed the arbitration to permit DISH to contest the issue in court. DISH filed a Petition to Vacate Clause Construction Arbitration Award, which the district court denied. After review, the Tenth Circuit determined the arbitrator in this case did not manifestly disregard Colorado law when he concluded that he was authorized to conduct class arbitration by the broad language of the Agreement in combination with the requirement that arbitration be conducted pursuant to the AAA’s Employment Dispute Rules. Accordingly, the district court correctly denied DISH’s petition to vacate the arbitration award. View "Dish Network v. Ray" on Justia Law

by
F & H Coatings, LLC (“F&H”), a commercial and industrial painting contractor, contracted with Boardman L.L.C. (“Boardman”), a manufacturer of steel pressure vessels and tanks, to sandblast and paint a number of vessels at Boardman’s manufacturing facility in Wichita, Kansas. During the performance of this contract, a fatal accident at the Boardman facility took the life of Toney Losey, an employee of F & H: Losey and his F & H supervisor, Robert Patrick, were preparing a 12,000 pound vessel for sandblasting when the vessel slipped from its support racks and crushed Losey. F & H characterized this event as a “freakish, unforeseeable, and still-unexplained accident.” The Occupational Safety and Health Administration (“OSHA”) learned of the accident the same day, and sent a Compliance Safety and Health Officer to inspect the scene. The OSHA officer also interviewed witnesses and employees of F & H and Boardman. Upon the officer’s recommendation, OSHA issued a citation to F & H for a violation of the General Duty Clause, 29 U.S.C. 654(a)(l), because F & H’s employee was “exposed to struck-by hazards in that the pressure vessel was not placed on a work rack which prevented unintentional movement.” F&H contested the citation. Approximately eight months after the hearing, the ALJ issued a written order, finding that the accident that killed Losey resulted from an obviously hazardous condition of which F & H was aware. F&H appealed OSHA’s final order, asking the Tenth Circuit Court of Appeals to set aside a $7,000 penalty imposed. Finding that the ALJ’s findings were supported by substantial evidence, the Tenth Circuit affirmed OSHA’s final order and the penalty issued. View "F & H Coatings v. Acosta" on Justia Law

by
Several years after a tank car spill accident, appellants Larry Lincoln and Brad Mosbrucker told their employer BNSF Railway Company (“BNSF”) that medical conditions attributable to the accident rendered them partially, permanently disabled and prevented them from working outdoors. BNSF removed appellants from service as Maintenance of Way (“MOW”) workers purportedly due to safety concerns and because MOW work entailed outdoor work. With some assistance from BNSF’s Medical and Environmental Health Department (“MEH”), Appellants each applied for more than twenty jobs within BNSF during the four years following their removal from service. After not being selected for several positions, Appellants filed charges with the Equal Employment Opportunity Commission (“EEOC”), accommodation request letters with BNSF, and complaints with the Occupational Safety Health Administration (“OSHA”). Following BNSF’s rejection of their applications for additional positions, Appellants filed a complaint raising claims for: (1) discrimination under the Americans with Disabilities Act (“ADA”); (2) failure to accommodate under the ADA; (3) retaliation under the ADA; and (4) retaliation under the Federal Railroad Safety Act (“FRSA”). Relying on nearly forty years of Tenth Circuit precedent, the district court concluded that filing an EEOC charge was a jurisdictional prerequisite to suit and it dismissed several parts of Appellants’ ADA claims for lack of jurisdiction. Appellants also challenged the vast majority of the district court’s summary judgment determinations on the merits of their claims that survived the court’s exhaustion rulings. After polling the full court, the Tenth Circuit overturn its precedent that filing an EEOC charge was a jurisdictional prerequisite to suit, thus reversing the district court’s jurisdictional rulings. Appellants’ ADA discrimination and ADA failure to accommodate claims relative to some of the positions over which the district court determined it lacked jurisdiction were remanded for further proceedings. With respect to the district court’s summary judgment determinations on the merits of appellants’ claims that survived the exhaustion rulings, the Tenth Circuit was unable to reach a firm conclusion on the position-based ADA discrimination and failure to accommodate claims. The Court concluded the district court’s dismissal of the FRSA claims were appropriate. Therefore, the Court reversed in part, affirmed in part and remanded this case for further proceedings. View "Lincoln v. BNSF Railway Company" on Justia Law

by
A group of Kansas citizens (calling themselves the Summary Judgment Group) wanted to oust from office several allegedly biased Kansas state judges, including defendants–appellees Judge Lori B. Fleming and Judge Kurtis Loy. To that end, Kasey King, on behalf of the group, contracted with My Town Media, Inc., which operated a local radio station, to run an advertisement requesting signatures on a petition to “summon a grand jury” and “remove sitting Crawford County District Judges.” Facing a motion to dismiss their case, the appellant-citizens attached a materially altered e-mail (described as an “unofficial version”) to an amended complaint. The appellees notified the appellants that the e-mail was inaccurate, but the appellants refused to withdraw it. Appellees then filed a motion for sanctions under Fed. R. Civ. P. 11. The district court ordered the requested sanctions, dismissing with prejudice all claims and awarding reasonable attorney’s fees. The appellants appealed that decision. Finding no abuse of discretion in the imposition of sanctions, The Tenth Circuit affirmed the district court. View "Muathe v. Fleming" on Justia Law