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New York appeals court refuses to fire teacher for sending romantic e-mails to a 15-year-old student.

July 19, 2010 by Jodie L. Hill

M.S. was a 15-year-old male student in 36-year-old Colleen McGraham’s English class. He was also involved in the poetry club and theater group, for which McGraham was an advisor. She loaned him books such as "Catcher in the Rye" and "Fahrenheit 451," but also let him borrow "Harold and Maude," a 1972 movie about a sexual relationship between a teenage boy and an older woman. McGraham eventually asked him if it was "crazy" to "think that there was something between us." M.S. told another teacher, who advised him to tell the principal. Later, M.S.’s mother and an investigator posed as M.S., eliciting more responses from McGraham, who wrote of her distress that M.S. had stopped talking to her:

Because we have both been confused, I have wanted us to talk. But that seems to create problems for both of us. When I have tried to talk to you, you seem to run a bit in the opposite direction. And my nervousness leads me to maybe not be entirely forthright. There is so much I would like to tell you, to discuss with you. But even now writing this, there is fear. You, I am sure, understand the risks involved for me. But you have no idea how happy it makes me to hear from you. And as far as where I am standing, there is only one place I would like to be standing. God, help me!

McGraham told an independent hearing officer that she had learned her lesson and was seeking therapy. The officer then suspended her for 90 days and transferred her to another school.

The New York City School District then filed suit against McGraham for additional punishment, and the trial court vacated the suspension and remanded the case for a more severe penalty. On appeal, however, the 1st Appellate Division of New York reversed the decision, ruling that the suspension and transfer constituted sufficient punishment, noting the following:

The penalty imposed here is not so lenient as to be arbitrary and capricious. The hearing officer’s conclusion that [McGraham] was not like to repeat her actions was necessarily a determination based on [her] credibility, and he was in far superior position than [the trial court] to make that determination.

For the full story, click here.

Posted in Education Law, Employment Law | Tagged | Leave a Comment »

Missouri Court of Appeals upholds firings of officers for failure to take bleeding, pregnant woman to the hospital.

July 16, 2010 by Jodie L. Hill

Kansas City police officers, Melody Spencer and Kevin Schnell, arrested Sophia Salva on suspicion of using a fake temporary license tag on her car. Salva complained several times during the arrest that she was three months pregnant, bleeding, and needed to see a doctor. The officers disagreed. Spencer said Salva was merely having her period and declined Salva’s invitation to check her underwear: "It’s called a menstrual cycle. I understand. OK? ‘Cause I am a woman." Likewise, Schnell believed that Salva had a case of "jailitis," in which a suspect will invent a reason to go to the hospital to avoid incarceration. Unfortunately, Salva really was pregnant, and the next morning she delivered a premature baby who did not survive. The police department fired the officers for failing to take Salva to the hospital, for the way they treated her, and for failing to recover the counterfeit tag. Spencer and Schnell filed suit to contest the firings. The trial court upheld the firings, and the appeals court agreed, noting the following:

[I]t was within the board’s discretion to terminate [the officers] for violating the department policies by failing to seek medical help for Salva when she requested medical attention . . . and by treating Salva in a discourteous and undignified manner.

For the full story, click here.

Posted in Employment Law | Tagged | Leave a Comment »

Trademark Trial & Appeal Board nixes use of “the other red meat” as trademark for salmon.

July 1, 2010 by Jodie L. Hill

Supreme Lobster and Seafood Company tried to register that trademark for "fresh and frozen salmon"; however, the National Pork Board and National Pork Producers Council opposed the slogan as too close to its trademark for pork, "the other white meat." The Trademark Trial and Appeal Board ruled refused to rule that the salmon slogan would cause confusion, but it did determine that it would dilute the pork industry’s trademark. Survey information shows that 80-85% of consumers are familiar with the "other white meat" slogan, and 70% correctly identify it with pork. A "dilution survey" showed that 35% of respondents who heard the salmon slogan incorrectly associated it with the pork slogan. Accordingly, the board refused the slogan because it is too similar to the pork industry’s trademarked phrase.

For the full story, click here.

Posted in Business Law | Tagged | 2 Comments »

Arkansas Court of Appeals holds that a successful plaintiff may seek attorney fees under Ark. Code Ann. § 23-79-209, even if declaratory judgment was sought as a counterclaim.

June 16, 2010 by Jodie L. Hill

Southern Farm Bureau Casualty Insurance Co. v. Krouse, No. CA 09-1264.

In July 2002, Rebecca Krouse’s truck was rear-ended by a car driven by Zachary Stumon and owned by his roommate, Randy Givens. As a result of the accident, Krouse incurred substantial medical bills to treat her injuries, substantial property damage to her truck, auto rental costs, and wage loss. Krouse settled with Stumon, Givens, and American Home Assurance Company for the $25,000 policy limits for bodily injury for the vehicle owned by Givens.

She then looked to her own insurer, Southern Farm Bureau Casualty Insurance Company (“Farm Bureau”), to collect from her $50,000 under-insured motorist (“UIM”) policy. Farm Bureau agreed to pay for Krouse’s property damage and auto rental costs. It refused, however, to pay for her medical bills or wage loss because she failed to provide Farm Bureau appropriate notice under the policy prior to settling with Stumon and Givens.

In 2004, Krouse sued Farm Bureau for the $50,000 limits of her UIM policy, her costs, and attorney fees. Farm Bureau answered the complaint and asserted a counterclaim for declaratory judgment, arguing that Krouse was not entitled to recover under the UIM policy because she failed to comply with the notice requirements. In turn, Krouse responded that she had complied with the notice provisions and that Farm Bureau had actual notice of the settlement. In her answer to Farm Bureau’s counterclaim, Krouse again requested costs and attorney fees.

In May 2009, a jury found in Krouse’s favor and awarded her $30,500 for medical bills, wage loss, pain, suffering, and mental anguish. The trial judge subtracted her previous settlement from the award, leaving her a final award of $5,500. Krouse then petitioned the court under Ark. Code Ann. § 23-79-209 for $22,162 in attorney fees. The trial court granted her request, noting that Ark. Code Ann. § 23-79-209 applies to any declaratory judgment action, even if raised by counterclaim.

On appeal, the Arkansas Court of Appeals agreed with the trial court, noting that the case involved two causes of action: (1) one for payment of an insurance claim, governed by Ark. Code Ann. § 23-79-208; and (2) one for a declaratory judgment, governed by Ark. Code Ann. § 23-79-209. Even though Krouse prevailed on her claim for payment under the UIM policy, governed by § 23-79-208, the application of § 23-79-208 does not preclude application of § 23-79-209 if both are at issue. Because Farm Bureau asked for a declaratory judgment, Krouse was entitled to attorney fees for successfully defending against it. Accordingly, the court affirmed the trial court’s decision.

Posted in Insurance Law | Tagged , , | Leave a Comment »

The Court of Federal Claims upholds discharge of service member for obesity resulting from compulsive overeating.

June 9, 2010 by Jodie L. Hill

In September 2005, James Chapman was honorably discharged from the Coast Guard for failing to “maintain reasonable and consistent progress” during his probationary weight-loss period. He weighed around 250 pounds and had 32% body fat at the time he was discharged. In April, he had been given six months to shed 70 pounds and 8% body fat.

Chapman asked the Board for Correction of Military Records to vacate the discharge, reinstate him to active duty, or correct his military records so he could retire with 20 years of service. He had been approved to retire in September 2006. Chapman claimed the Coast Guard “condoned for 19 years his marginal weight performance,” and his commanding officer had unfairly singled him out in his last year of service. The board ruled against him, noting that he had previously been placed on weight probation in 1992, 1993, 1998, 2000, 2001, 2002, and 2003.

Chapman then filed a claim under the Military Pay Act, alleging that his commanding officer had used the weight program to remove him from the Coast Guard for filing grievances. The Court of Federal Claims, however, found the board’s conclusion was reasonable based on Chapman’s previous compliance with the weight program through a combination of diet and exercise. The court further noted that compulsive overeating does not qualify as a physical disability in the military.

For the full story, click here.

Posted in Disability Law, Employment Law | Tagged , | Leave a Comment »

Eighth Circuit refuses to apply “look through” approach to §4 petitions to compel arbitration under the FAA based on diversity jurisdiction.

May 17, 2010 by Jodie L. Hill

Northpoint Health Services of Arkansas, LLC v. Wayne Rutherford & Tresa Robinson, Nos. 09-2433 & 09-2435.

Wayne Rutherford and Tresa Robinson, as representatives of Isaac Rutherford and Donna Faye Snow, respectively, brought separate state actions against nursing home facilities in Fayetteville and Springdale, Arkansas, that were operated by Northpoint Health Services of Arkansas, LLC (“Northpoint”) and the nursing home administrators. Prior to being admitted to the Northpoint nursing homes, Rutherford and Snow signed Admission Agreements that provided that (1) all disputes must be resolved by binding arbitration and (2) the agreement to arbitrate was governed by the Federal Arbitration Act (“FAA”).

Northpoint then filed federal actions to compel arbitration under §4 of the FAA and alleged that the parties had diversity jurisdiction. Northpoint did not include the nursing home administrators in their petitions. Rutherford and Robinson did not contest the allegations regarding diversity jurisdiction, and the trial court granted Northpoint’s petitions to compel arbitration. Later, the Supreme Court of the United States held in Vaden v. Discover Bank that, in determining federal question jurisdiction, courts must look at the “underlying substantive controversy.” Relying on Vaden, Rutherford and Robinson moved for the trial court to vacate the orders compelling arbitration because inclusion of the administrators destroyed complete diversity of citizenship of the parties. The trial court granted the motions, concluding that Vaden implicitly overruled prior cases compelling arbitration based on diversity jurisdiction. Northpoint appealed the rulings, and the cases were consolidated on appeal.

The Eighth Circuit Court of Appeals explained that, except to compel arbitration, the FAA grants no court federal jurisdiction. Because of this, most parties seeking to compel arbitration to through a §4 petition, allege an independent basis for federal court jurisdiction—diversity jurisdiction or federal question jurisdiction. Prior to Vaden, all courts adopted the same approach in resolving whether diversity jurisdiction applied. The courts reviewed only the §4 petition to determine if there was complete diversity of citizenship between the parties.

As to federal question jurisdiction, a split in the circuits had developed over whether to “look through” the §4 petition to the underlying case to determine jurisdiction. Vaden adopted the “look through” approach, but limited its holding to federal question jurisdiction cases only.

Because the Vaden court carefully limited its holding to federal question jurisdiction cases, the Northpoint court refused to extend the “look through” approach to diversity jurisdiction cases. Accordingly, the court reversed the orders to vacate the orders compelling arbitration.

Posted in Arbitration, Practice & Procedure | Tagged , | 2 Comments »

Second Circuit allows claim for obesity discrimination under the New York City Human Rights Law.

May 12, 2010 by Jodie L. Hill

Elliot Spiegel sued Daniel “Tiger” Schulmann and UAK Management Co., claiming his weight got him fired as a karate instructor at the Tiger Schulmann Karate School in Stamford, Connecticut. Spiegel stated he has a medical condition called hypogonadism that prevents him from losing weight. He alleged invasion of privacy (based on Spiegel’s photos in a weight-loss advertisement), retaliation, and violations of the Americans with Disabilities Act (“ADA”) and state and city human rights laws.

The trial court dismissed the lawsuit entirely. On appeal, the Second Circuit Court of Appeals agreed that most of the case was meritless, including Spiegel’s bid for a different judge on remand. He argued that U.S. District Judge Sandra Townes was biased and “had undertaken to scour the record to find a basis for knocking out plaintiffs’ claims.”

However, the Second Circuit revived Spiegel’s claim that the karate school violated the New York City Human Rights Law barring employers from firing workers “because of an actual or perceived . . . disability” because no New York appellate court had yet addressed whether obesity alone could constitutes a disability the law.

For the full story, click here.

Posted in Civil Rights, Disability Law, Health Law | Tagged , | 1 Comment »

Arkansas Court of Appeals holds that a bank’s full, fair, and truthful disclosure of suspicious financial activity to a prosecutor is a defense to malicious prosecution.

April 29, 2010 by Jodie L. Hill

Brooks v. First State Bank, N.A., No. CA 09-767.

In December 2005, Ressie Lee Brooks was notified by a bogus company that she had won a $50,000 sweepstakes. She was told that a check representing partial payment of $2,270 would be sent to her and that she should cash the check and return the funds for payment of fees and taxes due on her prize money. Once Brooks received the $2,270 check drawn on an out-of-state bank, she deposited the same into her savings account at First State Bank on December 20, 2005. The bank informed her that the funds would not be available for withdrawal for five business days. On December 28, 2005, Brooks returned to the bank, withdrew the funds, and wired them to the bogus company.

On January 1, 2006, the bank received the returned check, which was counterfeit. On January 3, 2006, the bank informed Brooks that the check was counterfeit and sought to recover the funds from her. Detective Brian Williams of the Conway Police Department was present during the meeting and also insisted that Brooks owed the money to the bank. When Brooks refused to repay the money by January 30, 2006, the bank reported the same to Williams. He consulted with the prosecuting attorney, an arrest warrant was issued, and Brooks was arrested for theft. After spending the night in jail, Brooks bonded out. On September 7, 2006, the charges were nol prossed, and Brooks was ordered to pay $41 in restitution to the bank.

Brooks then filed a civil lawsuit against the bank, alleging malicious prosecution and abuse of process. She argued that the bank controlled the criminal prosecution and used it to coerce her to pay for the bank’s error of presentation and payment of the check. The bank denied her allegations and asserted it had immunity from suit under a safe-harbor provision of federal law regarding the reporting responsibilities of financial institutions. The bank then filed a motion for summary judgment, arguing that the prosecutor acted independently and that the bank was immune because of its duty to report suspicious financial activity. The trial court agreed that the evidence indicated only a routine investigation and dismissed the case.

On appeal, the Arkansas Court of Appeals noted that a claim for malicious prosecution requires proof of (1) a proceeding instituted or continued by the defendant against the plaintiff, (2) termination of the proceeding in favor of the plaintiff, (3) absence of probable cause for the proceeding, (4) malice on the part of the defendant, and (5) damages. The court then stated that a defense to malicious prosecution is making a full, fair, and truthful disclosure of all facts known to competent counsel (or the prosecuting attorney) and acting upon advice received from the attorney. Here, the bank informed the prosecuting attorney about the facts of this case, and the prosecutor brought charges against Brooks for theft. Accordingly, summary judgment was proper.

Posted in Criminal Law, Torts | Tagged | 4 Comments »

Thanks to Construction Management Schools for including Downtown Lawyer in your Resources on State Construction Laws page.

April 14, 2010 by Jodie L. Hill

Here’s the link. What a great resource! So glad to be included.

Posted in Construction Law | Tagged | Leave a Comment »

Fifth Circuit finds that rail line is less environmentally disruptive than a highway.

April 8, 2010 by Jodie L. Hill

The Medina County Environmental Action Association sought review of a decision by the Surface Transportation Board and the Fish and Wildlife Service allowing a rail line for a limestone quarry in Texas. Environmentalists worried about the endangered golden-cheeked warbler and invertebrates living in karst limestone formations. The transportation board granted Vulcan Construction Materials permission to build a seven-mile rail loop linking the Medina County, Texas, quarry to a Union Pacific rail line along Highway 90. Vulcan looked for warblers starting in 2000, finding a single warbler calling near the site in 2003. It also tracked the presence of karst cave insects. The Fish and Wildlife Service concluded that little suitable warbler habitat remained, since the area had previously been cleared for agriculture. Although some karst features were in the project area, none of the cave insects was discovered there.

The Fifth Circuit Court of Appeals denied the environmental group’s request for review, finding that quarry development would occur regardless of the railway, so the two were not interrelated. The court said Vulcan provided adequate mitigation measures, including a planned buffer zone and a promise to not clear land during warbler breeding season. The court noted that the rail line is better for wildlife than an “environmentally disruptive fleet of trucks.”

For the full story, click here.

Posted in Environmental Law | Tagged , | Leave a Comment »

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