Archive for July, 2009

Winspear v. Community Development, Inc., No. 08-2041.

In 1999, Zachary Winspear’s brother, Logan, committed suicide.  The brothers had been very close, and Winspear had difficulty with Logan’s suicide, even contemplating suicide himself.  The brothers had been close, in part, because of their strict religious upbringing and rejection of organized religion.  In March 2003, Winspear began working at Community Development, Inc. (“CDI”) as a personal assistant to Charles Schneider, a co-owner of CDI.  Winspear and Schneider spent significant time working together, and Winspear confided to Schneider about Logan’s suicide and its impact on him.  While at CDI, Winspear received multiple promotions and eventually became CDI’s community manager.

In January 2005, CDI hired Schneider’s wife, Lana Sierra, as a receptionist.  Sierra was aware of Winspear’s troubled history with religion and his brother’s suicide.  In late January, Sierra approached Winspear to tell him that she was able to speak with the dead and had communicated with Logan.  Sierra told Winspear that Logan was suffering in hell and that Winspear would also go to hell if he did not “find God.”  The meeting upset Winspear, who asked Sierra not to talk about his brother and then returned to his office where he cried for an extended period of time.  Throughout the rest of the day, and for the next three and a half weeks, Sierra continued to approach Winspear about her “gift,” telling him that he had to “find God” so that he would not go to hell like his brother.  Winspear repeatedly asked Sierra to stop talking to him about Logan.  Sierra’s behavior caused Winspear to again contemplate suicide.

After three weeks of Sierra’s behavior, Winspear approached Schneider to complain about Sierra.  Schneider confirmed that Sierra was able to speak to the dead, advised Winspear to heed her advice, and told Winspear to keep Sierra’s “gift” a secret.  After Winspear’s conversation with Schneider, Sierra stopped talking to Winspear about his brother directly.  Instead, she would mention her “gift” and ask whether he had thought about their previous discussions.  Winspear approached Schneider again, but he refused to remedy the situation.

By March 2005, Sierra had almost completely stopped approaching Winspear about his brother, but continued to ask him about finding religion every one to two weeks over the next five months.  In August 2005, they had a heated confrontation at work over a comment Winspear made regarding Sierra’s former boss, a chiropractor with whom Winspear had a billing dispute.  Winspear left the office after the confrontation, but was notified that he needed to return to work because he did not have permission to be off from work.  Instead of returning, he quit his job.

Winspear subsequently sued CDI, Schneider, and Sierra alleging that they subjected him to a religious-based hostile work environment in violation of Title VII.  CDI, Schneider, and Sierra filed a motion for summary judgment, which the trial court granted, noting that “Winspear may have raised a genuine issue of material fact as to whether Sierra’s repeated comments about Winspear’s brother suffering in Hell and about Winspear needing to find God constituted a hostile work environment,” it resolved the claim by stating that “[t]he four- to five-month lapse in time between when Sierra allegedly stopped harassing Winspear and when he resigned [was] fatal to his constructive discharge claim.”

On appeal, the Eighth Circuit Court of Appeals noted that the elements of a hostile work environment claim and constructive discharge claim are distinct and separate.  Because the trial court made no specific finding as to Winspear’s hostile work environment claim, the court remanded the case back to the trial court to make such a determination.


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In 2000, Vergestine Cooper discovered that Bernard, her husband of twenty-eight years, was having an affair.  In order to save their marriage, Bernard signed a contract to pay Vergestine $2,600 if his indiscretions led to a permanent breakdown of the marriage.  In 2005, Bernard disappeared, and Vergestine learned that he had continued the affair.  During the couple’s divorce proceedings, the trial court upheld the terms of contract, but the court of appeals overturned it.  In upholding that decision, the state Iowa Supreme Court cited a 1887 precedent, in which the court rejected a couple’s post-nuptial agreement because it dealt with matters “pertaining so directly and exclusively to matters of the home.”  The current court also rejected “injecting the courts into the complex web of interpersonal relationships and the inevitable he-said-she-said battles that would arise in contracts that can be enforced only through the probing of the marital relationship.”  Accordingly, the court remanded the case for reconsideration without regard to the unenforceable contract.  For the full story, click  here.

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Fru-Con Construction Corp. v. Controlled Air, Inc., No. 08-1712.

Fru-Con Construction Corporation and Austin Maintenance and Construction, Inc. (collectively “Fru-Con”), hired Controlled Air to construct the gain receiving, storage, and milling system for an ethanol production facility in Ravenna, Nebraska.  The parties entered into a contract that required all disputes (1) be brought in Missouri state court or the federal district court for the Eastern District of Missouri and (2) be governed by Missouri law.  A dispute arose between the parties.  Controlled Air supplied labor and materials until January 14, 2007, and Fru-Con assumed responsibility for the work on January 17, 2007.

Controlled Air then filed a construction lien under the Nebraska Construction Lien Act against Fru-Con for unpaid labor and materials.  Fru-Con filed a breach of contract claim against Controlled Air in the federal court.  Controlled Air subsequently filed a complaint against Fru-Con to foreclose the construction lien in Nebraska state court.  Both parties filed motions to dismiss the other’s complaint, arguing that federal court and state court, respectively, could litigate the entire dispute.  The Nebraska court refused to dismiss Controlled Air’s complaint, but the federal court abstained and dismissed Fru-Con’s complaint.

On appeal, the Eighth Circuit reversed the trial court’s decision.  The court discussed the six Colorado River factors requiring abstention by a federal court, but focused on whether the claim pending in state court were parallel to the claim pending in federal court.  The court specifically held that the two cases were not parallel because the state case related to a statutory lien for labor and materials provided prior to January 14, 2007, while the federal case revolved around a common law breach of contract claim for losses after January 17, 2007.  The court wrote, “While both actions stem from the same project and contractual relationship, each is premised on a different wrong arising from different occurrences.”

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The Tennessee Department of Children’s Services was granted temporary custody of a couple’s three children after six cases involving the family. The parents pleaded guilty to child abuse and neglect.  The parents were ordered to work on their issues related to anger, frustration, the mother’s medical needs, and establishment of a clean and stable home.  These efforts were unsuccessful; however, and the trial court terminated the parents parental rights to the children.  Specifically, the trial court found that two of the children suffered from severe child abuse from the father’s torturing, killing, and drinking the blood of gerbils in their presence. On appeal, the Tennessee Court of Appeals upheld the termination of parental rights as being in the best interest of the children.  For the full story, click  here.

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Two San Bernadino police sergeants, Michael Desrochers and Steven Lowes, filed retaliation claims alleging that they were demoted as a result of their criticisms of their supervisor, Lt. Mitchal Kimball.  The city claimed it transferred Desrochers because of a botched investigation and Lowes for disobeying orders and endangering a suspect in custody.  Desrochers and Lowes had filed a grievance against Kimball, describing him as a “very autocratic, controlling and critical supervisor.”  Their initial informal complaint was voiced to Capt. Frank Mankin.  According to Desrochers and Lowes, their initial grievance was largely ignored by the city, and they subsequently filed a formal grievance against Kimball, Mankin, and Police Chief Michael Billdt. After their formal grievance was dismissed, Desrochers and Lowes filed a complaint in federal court.

The trial judge dismissed their First Amendment retaliation claim, saying their speech did not address matters of public concern.  On appeal, the Ninth Circuit affirmed the ruling, stating as follows:

[T]he plain language of the grievances does not ‘directly address police competence, but rather indicates that Desrochers and Lowes were involved in a personality dispute centered on Kimball’s management style. The speech in question is largely devoid of reference to matters we have deemed to be of public concern.

Judge Wardlaw dissented from the majority, arguing that “[i]ssues of performance, discipline, and morale in public safety organizations are especially matters of public concern, given the direct impact of such entities on the well-being of the public.”

For the full story, click here.

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Judge Timothy C. Ellender, a Terrebonne Parish judge, was suspended by the Louisiana Supreme Court after his treatment of Eula Warren during a protective order hearing.  Ellender stated, “Heat, big smoke, but no fire. Dismissed,” and told Warren, “You want a divorce, get a divorce. You’re not getting a [temporary restraining order]. See y’all later.”  Warren complained to the Office of Special Counsel that Ellender seemed to approve of her husband’s abusive behavior, stating, “I understand now why women don’t go to the courts for help/protection because that judge treated me just like my husband does.”  Ellender admitted to having been “impatient” and “dismissive” during the hearing, but denied having violated the codes of judicial conduct.  In addition to the suspension, the Louisiana Supreme Court ordered Ellender to pay a $185 fine and complete a training course on addressing domestic violence cases.  For the full story, click here.

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Judge Robert Pleus Jr., has retired from the Florida Supreme Court.  Under Florida’s Constitution, the Judicial Nominating Commission (“JNC”) is required to submit a certified list of judges to the Governor to fill the vacancy.  After Judge Pleus’s retirement, the JNC convened and then submitted a list to Governor Charlie Crist.  Governor Crist rejected the list, noting it did not include enough minority candidates.  The JNC reconvened, but resubmitted the original list.  The Florida Supreme Court noted that the Florida Constitution required the Governor to fill the vacancy from the certified list.  The Florida Constitution provided no mechanism for the Governor to reject the certified list or make a selection outside of the list.  For the full story, click here.

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