Bird v West Valley City

Bird appealed summary judgment for City and her supervisor in her sex discrimination, breach of contract and First Amendment claims. The panel affirmed in part, reversed in part and remanded. It affirmed judgment on her Title VII claim as City had two legitimate grounds for termination, namely insubordination and discourteous treatment of other employees, the procedural irregularities Bird alleged were irrelevant to her termination and the timing of her termination suggests pretext, but, was insufficient as a matter of law to prove pretext. It held that the evidence of gender based hostility by Bird’s supervisor was insufficient to defeat summary judgment as three of four offered evidences were conclusions with no actual facts to support them and the other statements was not known to Bird before discovery in this case. It affirmed on her equal protection claim for same lack of evidence of pretext as her title VII claim. It affirmed on her contract claim because City expressly disclaimed any implied contracts form its employee handbook or policies. The panel finally reversed on the First Amendment claim as the United States Supreme Court recently held that mistaken employer belief about whether an employee actually engaged in protected speech can form a basis for a retaliation claim. However, as the other elements of retaliation claim were not briefed and argued below and the case was therefore remanded to determine if the claim should be resolved on summary judgment or if the claim should go to trial.

TransAm Trucking, Inc. v Administrative Review Board, department of Labor (Maddin, intervenor)

Trucking petitioned for review of Board’s order requiring reinstatement and payment of backpay to Maddin. The panel, 2-1, denied the petition. The majority held that Board permissibly ruled that Maddin was protected from discharge under  49 USC 31105(a)(1)(B)(ii) because a reasonable person would be apprehensive of serious injury to himself or the public when confronted with a trailer with frozen brakes which would have had to be dragged down the highway and would also be apprehensive of serious injury under the circumstances if he obeyed the order to stay with the trailer as it was very cold and the heating system was not working in the cab. It held that Department permissibly read the statutory term “operate” to include the choice to not follow instructions like the one here to pull the trailer down the highway with frozen brakes as this promotes the purposes of the statutory scheme as a whole and Board’s conclusion that Maddin’s decision to uncouple the trailer and go to fuel up and warm up were “operating” the tractor trailer combination was supported by substantial evidence. It held that the record demonstrated Maddin was fired because of his actions of leaving the trailer and thus the firing was done in retaliation for a safety concern and the Board’s order was thus supported by substantial evidence. The majority rejected Trucking’s challenge to the back pay award holding there was no evidence to suggest per diem payments had to be used for expenses actually incurred, that Maddin proved he made no net income during the period of administrative litigation as business expenses cancelled out the income earned and an allegation of excessive delay in resolving the case had no support in the record. The dissent argued that Maddin’s choice to uncouple the trailer and leave it on the road side after being ordered to stay was not “operating” the tractor trailer combination and thus unprotected by (a)(1)(B) and further that Department never argued for Chevron deference and should not be allowed to rely on it on appeal particularly as the statutory language clearly does not cover the choice Maddin made here and the court had no business reading intentions into the text where congress left them out.

United States v Bustamante-Conchas

Bustamante-Conchas appealed his drug sentence. The panel, with one judge dissenting in part, affirmed. It held that Bustamante-Conchas forfeited his challenge to the drug weight finding by not raising it at sentencing and then failing o argue plain error on review. It held the gun enhancement was appropriate as there was evidence Bustamante-Conchas gave the gun to an underling, the person allegedly the cause of the need for a gun was seen at the house in question and the underling received and obeyed instructions in other instances. The majority held that failure to allow Bustamante-Conchas to allocate at sentencing did not rise to plain error as his attorney had several opportunities to argue the sentence, the sentence imposed was well below the bottom of the guidelines range and Bustamante-Conchas failed to state what additional information he would have provided. The dissent argued that failure to allow allocation seriously undermines the fairness of sentencings and would have remanded for a new sentencing.