June 8-9, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Midwestern Cattle Marketing, LLC v. Legend Bank, N.A., 20-10663, appeal from N.D. Tex.
    • Barker, J., by desig. (Smith, Ho, Barker), decretal language, summary judgment
    • Affirming the summary judgment entered by the district court on remand from prior appeal in matter.
    • The Court rejected plaintiff’s argument that an unjust enrichment claim was still before the district court on remand from the first appeal, noting that its decretal language in the first appeal judgment was clear that only the money-had-and-received claim was remanded for further proceedings.
    • The Court also held that the district court’s summary judgment on the money-had-and-received claim was appropriate where the plaintiff could identify no disputed issues of material fact remaining on that claim, and that it was appropriate on summary judgment for the district court to “weigh the equities by balancing plaintiff’s errors of omission or commission against the defendant’s unjust acts” in considering summary judgment on an unclean-hands defense. (Internal quotation marks and citation omitted).
  • Ernst v. Methodist Hospital System, 20-20321, appeal from S.D. Tex.
    • Smith, J. (King, Smith, Haynes), Title VII, employment discrimination
    • Affirming dismissal of sex discrimination and retaliation claims for failure to exhaust administrative remedies, and summary judgment dismissal of race discrimination claim, on claim arising from firing of employee after job candidate alleged employee had sexually harassed him.
    • Employee-plaintiff identifies as a gay, white man. After an interview of a job candidate, the job candidate reported that the employee had touched himself inappropriately, winked at him, and nodded for him to follow him around a corner to the men’s room. The hospital terminated the employee after an investigation and three levels of internal appeals. The employee filed a charge-of-discrimination form with the EEOC, only checking off race discrimination as the type of discrimination he suffered. He claimed his department is 90 percent comprised of African-American employees and that hospital investigators were biased against him because he is white. On a separate intake questionnaire form he alleged sexual discrimination due to sexual orientation, age discrimination, and retaliation. The EEOC found no racial discrimination and issued him a right-to-sue letter.
    • The Court held that the employee failed to exhaust his administrative remedies before the EEOC on his sex discrimination, age discrimination, and retaliation claims. While an EEOC “charge” may be made on forms other than the official charge-of-discrimination form, the Court held that the intake questionnaire did not meet the regulatory requirements of a charge because (1) it was not verified, and (2) it was never provided to the hospital as part of the EEOC investigation.
    • The Court then held that the employee failed to meet the fourth element to state a prima facie case of race discrimination under Title VII, that he “was replaced by someone outside his protected group or was treated less favorably than other similarly situated employees outside the protected group.” The evidence showed that the employees duties were distributed among other co-workers, and that he was not replaced; and that the comparator employee he pointed to was not a similarly situated because he held a different job title, different responsibilities, and reported to a different supervisor.

Unpublished

  • Epley v. Gonzalez, 19-10781, appeal from N.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), prisoner suit, Americans with Disabilities Act
    • Reversing dismissal of plaintiff prisoner’s ADA and Rehabilitation Act claims arising from physical altercation with prison guards, and remanding for further proceedings.
  • U.S. v. Moreno-Cordova, 19-20861, appeal from S.D. Tex.
    • per curiam (King, Elrod, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Castillo v. Garland, 19-60776, petition for review of BIA order
    • per curiam (Higginbotham, Jones, Costa), immigration
    • Dismissal of petition for review of BIA order denying motion to reopen removal proceedings.
  • Klocke v. Watson, 20-10103, appeal from N.D. Tex.
    • Davis, J. (Davis, Stewart, Oldham), Oldham, J., dubitante; defamation
    • Affirming summary judgment dismissal of defamation claim arising from an in-class dispute between two students at the University of Texas, on the basis that only admissible evidence regarding the content of the statements was the defendant’s version, such that there was no genuine dispute of fact on the affirmative defense of truth.
    • In a first for this reader, Judge Oldham issued a separate opinion, neither dissenting nor concurring, but “dubitante,” a word used to indicate doubt in the majority opinion but not so grave as to merit dissent. Judge Oldham noted the tragedy of the underlying facts, where the hurtful statements made by one student to another (the defendant), resulted in harsh punishment of the first student, which led that student to purchase a gun and kill himself (his estate is the plaintiff). Judge Oldham noted that it is “hard to say” if the defendant carried his “doubly heavy burden” as both the movant and the party asserting an affirmative defense to the defamation claim. Judge Oldham took issue with the majority’s decision to affirm the summary judgment on an issue not reached by the district court–the hearsay nature of the evidence supporting the version of events presented by the plaintiff estate. Judge Oldham is also “not so sure” that the plaintiff estate waived Texas’s “Dead Man’s Rule” by deposing the defendant prior to trial. “I am not sure who said what or who can prove what. But I am doubtful that these shortcuts are the best way to serve the law or these parties.”
  • U.S. v. Garcia, 20-10133, appeal from N.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Coats, 20-10419, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Wilson), criminal, First Step Act
    • Affirming denial of motion for sentence reduction under the First Step Act.
  • Budri v. FirstFleet, Inc., 20-10612, appeal from N.D. Tex.
    • Higginson, J. (Wiener, Elrod, Higginson), employment
    • Affirming denial of motion for reconsideration of judgment dismissing claims arising from termination of truck driver’s employment after one month.
  • U.S. v. Altman, 20-10627, appeal from N.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), criminal, ineffective assistance of counsel
    • Affirming conviction and sentence for distribution of child pornography, finding that defendant’s IAC claims were not sufficiently developed for direct appeal.
  • U.S. v. Gomez, 20-11241, appeal from N.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
    • Granting summary affirmance of 97-month sentence for guilty plea conviction of possession with intent to distribute five grams or more of methamphetamine.
  • U.S. v. Spriggs, 20-20042, appeal from S.D. Tex.
    • per curiam (Dennis, Engelhardt, Hicks (by desig.)), criminal, sentencing
    • Affirming 108-month sentence on conviction of possession of a firearm by a felon.
  • Arwady v. Ho, 20-20403, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Higginson), Fourth Amendment, Federal Tort Claims Act, sovereign immunity
    • Affirming dismissal of false-arrest claim for failure to state a claim, and dismissal of negligence claim on basis of United States’ sovereign immunity.
  • Offord v. City of Fulshear, 20-20445, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Wilson), employment discrimination
    • Affirming summary judgment dismissal of employee’s race and age discrimination claims against employer municipality.
  • U.S. v. Douglas, 20-30432, appeal from M.D. La.
    • per curiam (Willett, Ho, Duncan), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for sentence reduction or home confinement under compassionate release.
  • Durden v. Sanofi U.S. Services, Inc., 20-30495, appeal from E.D. La.
    • per curiam (Jolly, Duncan, Oldham), timeliness
    • Affirming summary judgment dismissal of plaintiff’s claim based on chemotherapy-induced alopecia, as time-barred under Louisiana’s one-year prescriptive period.
  • U.S. v. Munoz-Mancias, 20-40120, appeal from S.D. Tex.
    • per curiam (Jones, Clement, Costa), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gonzalez, 20-40163, appeal from S.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
    • Affirming 170-month sentence on guilty plea conviction of conspiracy to possess with intent to distribute 500 grams or more of methamphetamine.
  • U.S. v. Ruiz, 20-40584, appeal from E.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Alaniz-Garcia, 20-40792, appeal from S.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Hercules v. Garland, 20-60658, petition for review of BIA order
    • per curiam (Barksdale, Graves, Oldham), immigration
    • Dismissing in part and denying in part El Salvadoran citizen’s petition for review of BIA order dismissing his appeal of an immigration judge’s (IJ) denial of withholding of removal and relief under the CAT.