Hawkins v Schwan’s Home Service, Inc.

Hawkins was terminated for failing to pass a Department of Transportation physical. He sued Schwan’s for federal and state disability discrimination. The district court granted summary judgment to Schwan’s on all claims. The panel affirmed. It held that under circuit precedent, which the district court followed, employers must provide some evidence as to the essential functions of a job, the implementing federal regulations are incorporated into the analysis of the essential functions, the employee bears the ultimate burden of persuasion on whether or not he is a qualified individual and, here, Hawkins failed to meet his burden given he drove trucks as part of his duties, all employees in his position were required to pass the DOT physical, the written job descriptions required certification which meant passing the physical, Hawkins was one of two employees at his workplace authorized to drive the trucks  and failing to certify could seriously disrupt Schwan’s business.

Donner v Nicklaus

Donner bought a membership in a golf development. After the development went bankrupt, Donner sued Nicklaus alleging federal statutory violations and Utah tort claims. The district court dismissed some of the claims and granted summary judgment to Nicklaus on the others. The panel affirmed in part, reversed in part and remanded. It held Nicklaus’ statute of limitations defense waived for failure to raise it in a timely manner below. It affirmed the dismissal of the federal claim holding that 15 USC 1701 et seq. only applies to the sale of lots, that the statue is ambiguous as to what a lot is, but, the implementing regulations require the claim involve a specific piece of land and the statute requires a certain number of lots to apply and thus the statute only applies when a claim involves a specific piece of land not, as here, a certificate to eventually obtain a specific piece of land. The panel reversed as to one intentional misrepresentation claim as a jury could find that Nicklaus misrepresented his status by claiming to be a charter member which the promotional material stated meant an investment of $1.5. million when h he actually received his interest for free and Donner reasonably relied on this statement to invest in the golf development. The panel affirmed judgment as to statements about the status of the development and ability to deliver legal title as they could not be reasonably relied upon and for failure to disclose the criminal background of the developer as Nicklaus owed Donner no duty under state law. The panel affirmed dismissal of the negligent misrepresentation claims as the claims are based on a contract and thus Utah’s economic loss doctrine applies and Nicklaus owed no duty to Donner given the lack of direct relationship or fiduciary duty. The panel finally held the district court erred in granting judgment based on election of remedies as Donner has never affirmed or renounced the contract they entered to participate in the golf development.