On January 19, NELA and The Institute signed on to an amicus brief drafted by The Institute For Constitutional Advocacy And Protection (ICAP) in the 10th Circuit case Faith Bible Chapel v. Tucker. The brief argued that any expansion of the church autonomy doctrine as a defense in workplace harassment claims would eliminate employment protections for workers at religious institutions. We are grateful to ICAP for drafting this brief.… Read More
On August 17, 2020, NELA and The Institute joined Public Justice and other disability and civil rights organizations in filing an amicus brief in Moses-EL v. Denver in the 10th Circuit. This brief addresses the vital importance of maintaining a Rule 8 pleading standard that does not raise barriers for entry to the courthouse for plaintiffs. In this case, the district court stiffened the already strict interpretation of Rule 8 established by the Supreme Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. This heightened standard is in direct contravention to the Federal Rules of Civil procedure, requiring a level of specificity in the pleading that was unacceptably high. Courts have long recognized the importance of pleading standards that allow plaintiffs access to the discovery phase, even if their initial pleading lacks some factual specificity and is unsophisticated. Many thanks to Public Justice for drafting this brief.… Read More
On October 4, 2017, NELA and a group of Business & Economics Law Professors filed an amicus brief in U.S. Court of Appeals for the Tenth Circuit, on behalf of Plaintiff-Appellant Rhonda Nesbitt and a putative class of her fellow massage therapy students, in Nesbitt v. FCNH, et al. This appeal involves unpaid massage therapy students who performed clinical massages for paying clients at the defendants’ for-profit massage therapy schools. The amicus brief draws on a range of interdisciplinary sources in arguing that under the appropriate interpretation of the Fair Labor Standards Act, Ms. Nesbitt and her fellow students were entitled to compensation for the work they performed. Among a number of important points made in the brief, it urges the court to draw a key distinction between “interns” hired by a company as trainees and “students” at for-profit schools who are required as a condition of their training to provide unpaid labor from which their school receives revenue. NELA is grateful for the efforts of Professor Scott A. Moss (University of Colorado Law School) and NELA member Hunter A. Swain (King & Greisen, LLP, Denver, CO), who drafted the brief on behalf of NELA and the group of law … Read More
On April 5, 2016, NELA was joined by our colleagues from the National Disability Rights Network (NDRN) in filing an amicus brief in the U.S. Court of Appeals for the Tenth Circuit, in support of the Plaintiff-Appellant Kristin Punt in Punt v. Kelly Services & GE Solutions Controls.
The district court granted summary judgment against the Plaintiff regarding her failure to accommodate claim, based on an out-of-context interpretation of Cisneros v. Wilson (10th Cir. 2000), regarding whether her request for medical leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) was “indefinite.” Specifically, the district court erred by: 1) finding that the Plaintiff’s accommodation request amounted to a request for indefinite leave, and was thus unreasonable as a matter of law, because she could not specify how long her impairment would last, and therefore guarantee that she would not need additional future leave; 2) imposing no obligation on the Defendant to engage in the ADA’s interactive process; and 3) focusing on her cancer’s duration rather than on its workplace impact.
Our amicus brief makes three arguments:
1) It describes the extent to which the facts of this case are clearly distinguishable from the peculiar facts of … Read More
On July 13, 2015, NELA filed an amicus brief in support of petitioner in Green v. Brennan, No. 14-613, pending in the U.S. Supreme Court on appeal from the U.S. Court of Appeals for the Tenth Circuit. This case concerns the timeliness of an EEO complaint alleging constructive discharge under Title VII.
Petitioner Marvin Green, while postmaster for Englewood, Colorado, applied in 2008 for a promotion, which he did not get. Believing he was subjected to race discrimination because the successful candidate had less experience and did not submit an application, Green contacted a Postal Service EEO counselor and asked to have his concerns investigated. Thereafter, relations with his supervisors soured. In 2009, he twice went to Postal Service EEO counselors complaining about retaliation. In November 2009, while his claims were under investigation, Green was summoned by his superiors to an “investigative interview,” which was held on December 11, 2009 and attended by agents from the Postal Service’s Office of the Inspector General. There, Green was accused of mismanagement and “intentionally delaying the mail,” which is a crime. He was put on Emergency Placement in Off-Duty Status without pay. After several days of negotiations in which his union participated, … Read More
NELA filed an amicus brief in EEOC v. Abercrombie & Fitch Stores, Inc. in support of the U.S. Equal Employment Opportunity Commission’s petition for rehearing en banc before the U.S. Court of Appeals for the Tenth Circuit, in which the panel reversed a grant of summary judgment to the EEOC in this religious accommodation case, and granted summary judgment in favor of Abercrombie & Fitch. In a 93-page opinion, containing a strong dissent, the majority dismissed the plaintiff’s religious accommodation claim because she never informed Abercrombie that she wore her hijab for religious reasons and needed an accommodation for that practice due to a conflict between the practice and Abercrombie’s clothing policy. The assistant manager who interviewed the plaintiff, however, assumed she was a Muslim and wore a hijab for that reason. The plaintiff was never made aware of Abercrombie’s clothing policy, and thus was unaware of any conflict between that policy and wearing a hijab. The EEOC’s petition focuses on the Tenth Circuit’s creation of a rigid prima facie case requirement in this case, which is contrary to Tenth Circuit and U.S. Supreme Court precedent. Its brief also addressed the court’s requirement that the individual must be the source … Read More
Before the U.S. Court of Appeals for the Tenth Circuit in Lockheed Martin, Corp. v. Department of Labor & Andrea Brown (Case No. 11-9542), NELA filed an amicus brief on September 7, 2011, focused on two issues of law: 1) whether mail fraud, wire fraud, bank fraud, securities fraud, or violations of any Securities & Exchange Commission (SEC) rules are limited to fraud against shareholders, and 2) whether a whistleblower must recite the relevant statute and prove up all of its elements in order to enjoy certain legal protections. Our brief proposes that the answer to both questions is no.
Author: Michael T. Anderson (Murphy Anderson, PLLC)… Read More