Sixth Circuit Cases

6th. Cir. Decisions for Week of Feb. 18, 2008

PUBLISHED OPINIONS

Opinion	Short Title/District
08a0079p.06	USA v. Smith     Western District of Michigan at Marquette
08a0080p.06	USA v. Phillips     Eastern District of Kentucky at London
08a0081p.06	Hawkins v. Anheuser-Busch Inc     Southern District of Ohio at Columbus RONALD LEE GILMAN, Circuit Judge. Four female employees of Anheuser-Busch, Inc. appeal from a grant of summary judgment in favor of the brewery in this ex-discrimination and retaliation case. Three of the employees—Jackie Cunningham, Amanda Hawkins, and Cherri Hill—allege that sexual harassment by a coworker, Bill Robinson, created a hostile work environment in violation of Ohio Revised Code § 4112. Hill and the fourth employee, Kathryn Jackson, also claim that the brewery is liable for Robinson’s acts of retaliation. The district court granted summary judgment in favor of Anheuser-Busch on the discrimination claims after finding that (1) the women failed to make a showing that the alleged conduct was sufficiently severe or pervasive to create a hostile work nvironment, and (2) no reasonable juror could conclude that Anheuser-Busch knew or should have known of the harassment, or that it failed to take prompt and appropriate corrective action. As to the retaliation claims, the court dismissed them on the grounds that (1) this circuit has not previously recognized a claim for coworker retaliation, and (2) Hill and Jackson failed to allege conduct by Anheuser-Busch that rose to the level of an adverse employment action. For the reasons set for below, we AFFIRM the district court’s grant of summary judgment as to Hawkins’s hostile-work-environment claim and Jackson’s retaliation claim, but we REVERSE the grant of summary judgment as to Cunningham’s and Hill’s hostile-work-environment claims and Hill’s retaliation claim and REMAND the case for further proceedings consistent with this opinion.
08a0082p.06	USA v. Wheaton     Northern District of Ohio at Youngstown
08a0083p.06	Brannum v. Overton Cnty Sch Bd     Middle District of Tennessee at Cookeville RYAN, Circuit Judge. Thirty-four Tennessee middle school students sued various officials of the Overton County, Tennessee, public school system under 42 U.S.C. § 1983 and others, alleging that the defendant school authorities violated the students’ constitutional right to privacy by installing and operating video surveillance equipment in the boys’ and girls’ locker rooms in Livingston Middle School (LMS), and by viewing and retaining the recorded images. The defendant Overton County school board members, the director of schools, the LMS principal, and the assistant principal, moved for summary judgment claiming qualified immunity. The district court denied their motions and they now appeal. We conclude that the district court correctly denied summary judgment to the school officials, who are not entitled to claim the defense of qualified immunity, and incorrectly denied summary judgment to the defendant board members and the Director of Schools, who are immune.
08a0084p.06	USA v. Rivera     Eastern District of Tennessee at Knoxville
08a0085p.06	Taylor v. TECO Barge Line     Western District of Kentucky at Paducah
08a0105n.06	Lombard v. Chrome Craft Corp     Eastern District of Michigan at Detroit
08a0085p.06	Taylor v. TECO Barge Line     Western District of Kentucky at Paducah KAREN NELSON MOORE, Circuit Judge. Plaintiff Richard Taylor (“Taylor”), formerly a deckhand on the M/V Ann Peters for TECO Barge Line, Inc. (“TECO”), sued his former employer for damages, claiming exposure to coal tar left him with a permanent, severe skin reaction. After a jury awarded Taylor one million dollars, TECO brought this appeal. On appeal, TECO asserts that the district court made three evidentiary errors, erred in denying its motion for a judgment as a matter of law, and erred in refusing to offer a jury instruction on the harmlessness of the chemical in question. Additionally, TECO argues that the jury verdict was excessive. For the following reasons, we AFFIRM the district court’s judgment.
08a0086p.06	Dorsey v. Barber     Northern District of Ohio at Akron
08a0087p.06	USA v. Odeneal; USA v. Andres     Western District of Kentucky at Louisville McKEAGUE, Circuit Judge. This case presents civil rights claims against various law enforcement officers for unlawful arrest and use of excessive force. Now before the court is an appeal from an interlocutory order of the district court denying two defendants’ motions for summary judgment on the basis of qualified immunity. In particular, the district court held that, due to outstanding questions of fact, defendants Portage County Sheriff’s Deputy Duane M. Dawson and Village of Brady Lake Police Officer Allen C. Begin were not entitled to qualified immunity. Both defendants appealed this ruling. Dawson’s appeal (No. 05-4234) was dismissed on joint motion of the parties on March 2, 2007. Now, for the reasons that follow, we hold that the district court erred in ruling that Officer Begin is not entitled to qualified immunity.
08a0088p.06	Wilson v. Collins     Southern District of Ohio at Columbus McKEAGUE, Circuit Judge. Plaintiff-appellant, a prisoner in the custody of the Ohio Department of Rehabilitation and Correction, challenges the constitutionality of Ohio’s DNA Act, which requires the collection of DNA specimens from convicted felons. Below, plaintiff sought declaratory and injunctive relief, contending that the Act is violative of his Fourth Amendment, Fifth Amendment, due process and equal protection rights. The district court awarded summary judgment to the defendants on all claims. Finding the district court’s opinion to be well-reasoned and consistent with the growing body of case law on such challenges to DNA statutes, we affirm.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

Opinion	Short Title/District
08a0105n.06	Lombard v. Chrome Craft Corp     Eastern District of Michigan at Detroit
08a0106n.06	USA v. Watts     Eastern District of Kentucky at London
08a0107n.06	Gojani v. Mukasey     Immigration & Naturalization Service
08a0108n.06	Graham v. Mukasey     Immigration & Naturalization Service
08a0109n.06	Mueller v. Bell     Eastern District of Michigan at Detroit
08a0110n.06	USA v. Gunter     Eastern District of Tennessee of Chattanooga
08a0111n.06	Malloy v. Potter     Western District of Kentucky at Louisville
08a0112n.06	Todi v. Mukasey     Immigration & Naturalization Service
08a0112n.06	Todi v. Mukasey     Immigration & Naturalization Service
08a0113n.06	Drake v. City of Detroit     Eastern District of Michigan at Detroit
08a0114n.06	USA v. Ervin     Northern District of Ohio at Cleveland
08a0114n.06	USA v. Waller     Northern District of Ohio at Cleveland

6th Cir. Decisions for Week of Feb. 11, 2008 (No Ky. Decisions)

PUBLISHED OPINIONS

Opinion	Short Title/District
08a0069p.06	USA v. Thompson     Middle District of Tennessee at Nashville
08b0003p.06	In re: Wells     U.S. Bankruptcy Court - Grand Rapids
08a0070p.06	Li v. Mukasey     Immigration & Naturalization Service
08a0071p.06	Dearth v. Mukasey     Southern District of Ohio at Columbus ROGERS, Circuit Judge. Plaintiffs Stephen Dearth and the Second Amendment Foundation appeal the venue-based dismissal-without-prejudice of their action. The plaintiffs had brought suit in federal court in Ohio to enjoin the enforcement of the provisions of 18 U.S.C. § 922 that prohibit non-residents of the United States from receiving or selling firearms for non-sporting purposes. Because the plaintiffs requested the dismissal-without-prejudice as an alternative to transfer, however, the district court’s order is an unappealable voluntary dismissal. We therefore dismiss the appeal.
08a0072p.06	Quick Communications v. MI Bell Tele Co     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. The Michigan Public Services Commission ordered Quick Communications Incorporated and Michigan Bell Telephone Company (d/b/a AT&T) to amend their interconnection agreement to conform with the Commission’s most recently approved service rates. Quick brought suit seeking declaratory and injunctive relief, arguing that the Telecommunications Act of 1996, the terms of the interconnection agreement, the Sierra-Mobile doctrine, and the Contract Clause of the United States Constitution prohibited the Commission’s action. The district court granted defendants’ motion for summary judgment on all of Quick’s claims. Quick now appeals.
08a0073p.06	Eady v. Morgan     Eastern District of Tennessee at Knoxville HABEAS CORPUS
08a0074p.06	USA v. Goins     Northern District of Ohio at Cleveland
08a0075p.06	USA v. Bell     Western District of Tennessee at Memphis
08a0076p.06	USA v. King     Western District of Michigan at Grand Rapids
08a0077p.06	Simmons v. Kapture     Western District of Michigan at Marquette HABEAS CORPUS
08a0078p.06	USA v. Tate     Western District of Tennessee at Memphis

    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION OPINIONS

Opinion	Short Title/District
08a0101n.06	Meyer v. AmerisourceBergen     Northern District of Ohio at Toledo

6th Cir. Decisions for Week of Feb. 4, 2008 (1 Ky. Decision)

  PUBLISHED OPINIONS

Opinion	Short Title/District
08a0061p.06	USA v. Conaster & USA v. Marlowe     Middle District of Tennessee at Nashville
08a0062p.06	USA v. Reinhard, Lipka, Borsuk, Allen     Eastern District of Kentucky at Lexington
08a0063p.06	729, Inc. v. Kenton Cnty Fiscal     Eastern District of Kentucky at Covington BOGGS, Chief Judge. This case stems from Kenton County’s enactment of a licensing ordinance that comprehensively regulates sexually oriented businesses within the County’s jurisdiction. A group of such businesses and their employees brought suit against the County under 42 U.S.C. § 1983 and K.R.S. § 418.040, challenging the constitutionality of the Ordinance. Before the district court, the plaintiffs raised more than ten separate constitutional claims. Both sides moved for summary judgment, which the district court granted to the County. The plaintiffs raise four issues on appeal. First, they claim that the Ordinance violates the First Amendment by barring entertainers from entering areas of an establishment occupied by customers within one hour of the entertainers’ performing semi-nude on stage. Second, they claim that the Ordinance violates their rights under the Contracts Clause of Article I, § 10 of the Constitution. Third, they claim that the Ordinance’s judicial review provisions do not satisfy the First Amendment’s prompt-judicial-review requirements. Fourth, they claim that the Ordinance’s license fees are excessive, content-based taxes that violate the First Amendment. Following a brief recitation of the background of this case, we address each of the plaintiffs’ challenges in turn, relating details relevant to each respective challenge when appropriate. Ultimately, we affirm the district court with respect to the first three challenges and we vacate and remand for further proceedings with respect to the fourth challenge.
08a0064p.06	USA v. Vonner     Eastern District of Tennessee at Knoxville
08a0065p.06	USA v. Phinazee     Eastern District of Tennessee of Chattanooga
08a0066p.06	Imwalle v. Reliance Medical     Southern District of Ohio at Cincinnati RONALD LEE GILMAN, Circuit Judge. Dennis Imwalle became President of Reliance Medical Products, Inc. in 1990. He was fired in January of 2004, three months after he filed a charge with the Equal Employment Opportunity Commission (EEOC) that alleged both age and national-origin discrimination. He was 62 years old at the time his employment ended. Imwalle’s suit in the district court resulted in a $185,000 jury verdict for compensatory damages based on his claim that he was fired in retaliation for filing his discrimination claims. The court subsequently awarded him approximately $250,000 more in attorney fees, costs, and prejudgment interest. Reliance and its affiliated companies have appealed, challenging both the district court’s denial of their motion for judgment as a matter of law and the amount of the award for attorney fees and costs. For the reasons set forth below, we AFFIRM the judgment of the district court.
08a0067p.06	Slyman v. Piqua     Southern District of Ohio at Dayton PER CURIAM. Plaintiff Jeffrey Slyman was appointed by defendant the City of Piqua as an Assistant Law Director. When defendant Grant Kerber, Piqua’s then-Current Law Director and plaintiff’s supervisor, discharged Slyman, Slyman sued, alleging identical procedural due process violations against both Piqua and Kerber. The defendants moved for summary judgment, asserting that plaintiff’s due process claims fail because he did not have a federally protected property interest in continued employment. The district court agreed and granted defendants’ motion for summary judgment. Plaintiff filed this timely appeal. Having had the benefit of oral argument and having carefully considered the record on appeal, we are not persuaded that a lengthy opinion is necessary. Accordingly, we AFFIRM reasons set forth in the well-reasoned opinion of the district court. See Slyman v. City of Piqua, 94 F. Supp. 2d 732 (S.D. Ohio. 2007).
08a0068p.06	Darlington Amadasu v. Mercy Franciscan Hospital     Southern District of Ohio at Cincinnati BOYCE F. MARTIN, JR., Circuit Judge. Darlington Amadasu, proceeding pro se, appeals a district court order dismissing his civil complaint. He moves for a copy of the transcripts at the government’s expense, for a stay of the briefing schedule, and for miscellaneous relief. The defendants move to dismiss the appeal for lack of jurisdiction due to Amadasu’s failure to file objections to a magistrate judge’s report and recommendation. All motions were dimissed.

    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION OPINIONS
      

Opinion	Short Title/District
08a0093n.06	Taniguchi v. USA     Southern District of Ohio at Columbus
08a0094n.06	Chao v. Greenleaf Mtr     Occupational Safety & Health Review Commission
08a0095n.06	Mecaj v. Mukasey     Immigration & Naturalization Service
08a0096n.06	Roll Coater, Inc. v. Chauffeurs Team     Western District of Kentucky at Owensboro
08a0097n.06	Figel v. Overton     Western District of Michigan at Marquette
08a0098n.06	Karnaukh v. Mukasey     Immigration & Naturalization Service
08a0099n.06	Harmon v. McGinnis, Inc.     Benefits Review Board
08a0100n.06	Infantado v. Comm Social Security     Eastern District of Michigan at Detroit

6th Cir. Published Decisions for Week of Jan. 28, 2008

PUBLISHED

Opinion	Short Title/District
08a0047p.06	Tullis v. UMB Bank     Northern District of Ohio at Toledo MERRITT, Circuit Judge. This appeal raises the question of whether two physicians can sue to recover losses from a bank that allegedly failed to notify them of fraudulent activities affecting their ERISA-governed pension plans. The District Court for the Northern District of Ohio held that the two physicians did not have standing to bring their breach of fiduciary duty claims under ERISA because they sought individual damages – and not, as it deemed necessary, damages for the plan as a whole – from the defendant bank. Additionally, the plaintiffs argue in this appeal that an indemnity agreement between the Defendant and the ERISA-plan administrators contravenes 29 U.S.C. § 1110(a) by impermissibly shielding a fiduciary from liability. Finally, the defendant has filed a cross-appeal, contending that the District Court erred by dismissing, without prejudice instead of with prejudice, the plaintiffs’ improperly pled claims under the Private Securities Litigation Reform Act. We hold that the plain language and intent of ERISA permits an individual plan participant to seek recovery of losses due to a fiduciary breach. Because we hold that the plaintiffs have standing to pursue their claims under 29 U.S.C. § 1132(a)(2), thereby permitting the case to proceed to the merits, we pretermit resolution of both the plaintiffs’ argument that the Master Trust Agreement contravenes 29 U.S.C. § 1110(a) and the defendant’s cross-appeal that the District Court erred by failing to dismiss the Private Securities Litigation Reform Act claims with prejudice.
08a0048p.06	Dolan v. USA     Eastern District of Tennessee at Knoxville BERTELSMAN, District Judge. Plaintiff/Appellant, Thomas A. Dolan, appeals from the dismissal of tort claims against the United States and Bivens and common law conspiracy claims against individual defendants, Guy Blackwell, Randall Kizer, and Bruce Poston. The district court filed a memorandum opinion which may be found at 2007 WL 784351. After careful review, we AFFIRM.
08a0049p.06	Watson Wyatt & Co v. SBC Holdings Inc     Eastern District of Michigan at Detroit BERTELSMAN, District Judge. Watson Wyatt & Company (“Watson Wyatt”) appeals the district court’s order denying in part its petition to compel arbitration under the Federal Arbitration Act, 9 U.S.C. § 4. Because we find that the arbitration provision is broadly written to include claims arising from events that occurred before the execution of the arbitration agreement, we REVERSE.
08a0050p.06	UAW v. NLRB     National Labor Relations Board JULIA SMITH GIBBONS, Circuit Judge. Petitioners International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO (“the Union”), and individual Leo Andre Ahern seek review of the National Labor Relations Board (“the Board”) decision1 finding that Ogihara America Corporation (“the Company”) did not violate section 8(a)(1), (3) and (4) of the National Labor Relations Act (“the Act”), 29 U.S.C. § 158,2 by discharging petitioner Ahern. Specifically, petitioners challenge the Board’s determinations that: (1) employee Ahern lost the protection of the Act through his deliberate falsification; (2) the company met its burden of showing that it would have discharged Ahern because of his falsification regardless of his union activity; and (3) petitioners did not meet their burden of establishing that Ahern’s discharge was related to his board testimony. For the following reasons, we deny the petition for review and enforce the Board’s order.
08a0051p.06	USA v. Vowell & USA v. Pratt     Western District of Tennessee at Memphis CRIMINAL
08a0052p.06	Wilson v. Parker     Eastern District of Kentucky at Covington HABEAS CORPUS
08a0053p.06	Royal Ins Co v. Orient Overseas     Eastern District of Michigan at Detroit KAREN NELSON MOORE, Circuit Judge. Plaintiffs-Appellants Ford Motor Co. (“Ford”) and its cargo insurer, Royal Insurance Co. of America (“Royal”) (collectively, “Appellants”), brought this action against Defendant-Appellee Orient Overseas Container Line Ltd. (“OOCL,” or “Appellee”), an ocean carrier, for damages arising from the loss of cargo during a transatlantic voyage. OOCL impleaded Third-Party Defendants-Appellees M/V Canmar Pride, the carrying vessel; CP Ships (UK) Ltd.; CPS No. 3 Ltd.; and CPS No. 5 Ltd. (collectively, “Third-Party Appellees”). On September 29, 2005, the district court granted partial summary judgment for OOCL and Third-Party Appellees, ruling that Appellants’ claims were subject to the $500-perpackage liability limitation prescribed by the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. § 30701 et seq. Both the district court and this court authorized an interlocutory appeal of that ruling, and Appellants now argue that the district court’s ruling should be reversed. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND this case for further proceedings consistent with this opinion.
08a0054p.06	Demjanjuk v. Mukasey     Immigration & Naturalization Service
08a0055p.06	USA v. Davis     Eastern District of Tennessee at Knoxville CRIMINAL
08a0056p.06	Mickey v. Zeidler Tool & Die     Eastern District of Michigan at Detroit R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Charles D. Mickey appeals the district court’s grant of summary judgment on his claims brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), MICH. COMP. LAWS §§ 37.2101 et seq. Mickey’s lawsuit advances two claims: (1) that Zeidler Tool & Die Company (“Zeidler”), his employer, and Harold DeForge, the sole owner of Zeidler, discriminated against him on the basis of age in reducing his salary and benefits, and in terminating him; and (2) that Zeidler terminated him in retaliation for filing a charge of age discrimination with the Equal Employment Opportunity Commission (“EEOC”). The district court held that Mickey failed to establish a prima facie case of age discrimination, finding that Mickey R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Charles D. Mickey appeals the district court’s grant of summary judgment on his claims brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), MICH. COMP. LAWS §§ 37.2101 et seq. Mickey’s lawsuit advances two claims: (1) that Zeidler Tool & Die Company (“Zeidler”), his employer, and Harold DeForge, the sole owner of Zeidler, discriminated against him on the basis of age in reducing his salary and benefits, and in terminating him; and (2) that Zeidler terminated him in retaliation for filing a charge of age discrimination with the Equal Employment Opportunity Commission (“EEOC”). The district court held that Mickey failed to establish a prima facie case of age discrimination, finding that Mickey
08a0057p.06	NLRB v. Intl Brotherhood     National Labor Relations Board
08a0058p.06	Al-Najar v. Mukasey     Immigration & Naturalization Service
08a0059p.06	Vasquez Salazar v. Mukasey     Immigration & Naturalization Service
08a0060p.06	Amadasu v. Christ Hosp     Southern District of Ohio at Cincinnati BOYCE F. MARTIN, JR., Circuit Judge. Darlington Amadasu, proceeding pro se, appeals a district court judgment dismissing his employment discrimination and civil rights action filed pursuant to Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d & 2000e; the Age Discrimination in Employment Act, 29 U.S.C. § 623; the Americans with Disabilities Act, 42 U.S.C. §§ 12101-213; 42 U.S.C. §§ 1981, 1985, and 1986; and state law. This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. The panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

NOT TO BE PUBLISHED

 

Opinion	Short Title/District
08a0082n.06	Parrott v. Corley     Eastern District of Michigan at Detroit
08a0083n.06	Conley v. Cty Findlay     Northern District of Ohio at Toledo
08a0084n.06	Brown v. USA     Eastern District of Michigan at Detroit
08a0085n.06	Pendleton v. Over The Top     Middle District of Tennessee at Nashville
08a0086n.06	Simon v. Cook     Eastern District of Kentucky at Lexington
08a0087n.06	Maloof v. BT Commercial Corp     Northern District of Ohio at Cleveland