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Wednesday, October 27, 2004

Indiana Decisions - 7th Circuit posts five today

Baker, James A. v. Kingsley, Alfred D. (ND Ill.)

Before FLAUM, Chief Judge, and COFFEY and KANNE, Circuit Judges.
FLAUM, Chief Judge. Plaintiffs-appellants, individually and on behalf of all others similarly situated, initiated this suit in Illinois state court alleging that defendants-appellees violated the Illinois Wage Payment and Collection Act (“Illinois Wage Act”). * * * III. Conclusion. For the foregoing reasons, we REVERSE the district court’s dismissal of plaintiffs’ ERISA claim only insofar as it is based on a fiduciary duty to fund the plan, REVERSE the district court’s remand of the Illinois Wage Act claim, and REMAND for further proceedings consistent with this opinion.
USA v. Daniels, Gregory R. (ED Wis.)
Before FLAUM, Chief Judge, and POSNER and ROVNER Circuit Judges.
FLAUM, Chief Judge. Defendant-appellant Gregory Daniels is a chiropractor who operated his own practice, Daniels Chiropractic. His wife, co-defendant-appellant Susan Daniels, served as the clinic’s manager. Together they were charged with two counts of income tax evasion in violation of 26 U.S.C. § 7201. Following a jury trial, defendants were convicted on both counts. They now appeal their convictions and sentences. For the reasons stated herein, we affirm.
Fain, Carolyn S. v. Wayne County Auditor (SD Ind., Larry J. McKinney, Chief Judge)
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Carolyn Fain worked at the Wayne County Auditor’s Office from 1990 until June, 1999. She did not work for most of the time period from January 1, 1999, through June 18, 1999, using personal leave, vacation, sick leave, and FMLA-qualified leave. On June 18, 1999, her position was terminated, and the circumstances surrounding that termination form the basis for this cause of action. Fain asserts that her termination violated the Family and Medical Leave Act of 1993 (FMLA) as well as the Americans with Disabilities Act of 1990 (ADA). The district court, however, granted summary judgment to the Auditor’s Office, holding that the Auditor’s Office did not qualify as an “employer” under the ADA and that Fain was not an eligible employee under the FMLA. For both statutes, the court’s decision was based upon the number of persons employed by the Auditor’s Office. The undisputed evidence was that the Auditor’s Office never employed more than 12 employees at one time. The ADA’s protections, however, apply only to employers with 15 or more employees, 42 U.S.C. § 12111(5), and the FMLA, as we will discuss shortly, essentially requires 50 employees in a given geographic area in order for an employee to seek its protections, 29 U.S.C. § 2611(2)(B). The district court viewed the Auditor’s Office in isolation, rather than as a part of the Wayne County government as a whole. That decision ordained the result. * * *

[H]ere there is nothing in either state law or the facts that would establish that the Auditor’s Office is a separate public agency rather than a part of the County.
Because state law does not definitively resolve the issue, even under the defendant’s interpretation of the regulation we must turn to the Census. All parties agree that the Census supports Fain’s position, and therefore the district court improperly granted summary judgment to the defendant on the FMLA issue.

The decision of the district court granting summary judgment to the defendant on the FMLA claim is REVERSED, and the case REMANDED for further proceedings consistent with this opinion.

USA v. Dowell, Milton (ND Ill.)
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Milton Dowell was convicted by a jury of two counts of attempted possession with intent to distribute cocaine. The district court sentenced him to 360 months imprisonment under the United States Sentencing Guidelines. Dowell requested a downward departure because of extraordinary physical impairment. The court denied the motion and Dowell appeals. * * *

Dowell has presented no evidence to show that he is a viable candidate for a heart transplant or that he is being denied the opportunity to receive a new heart by prison officials. Nor has Dowell shown that there has been a deliberate indifference to his medical needs. In fact, he has been and will be receiving care from a federal medical center. Therefore, Dowell’s Eighth Amendment claim is without merit.

III. Conclusion. Dowell’s sentence is not reviewable by this court because the refusal to depart downward was a matter of the district court’s discretion. Dowell’s constitutional arguments are not valid. We therefore DISMISS this claim for lack of jurisdiction and the sentence imposed by the district court stands.

USA v. Fuller, Charles (SD Ind., Larry J. McKinney, Chief Judge)
Before FLAUM, Chief Judge, and COFFEY and KANNE, Circuit Judges.
KANNE, Circuit Judge. Charles E. Fuller pled guilty to one count of threatening to kill President George W. Bush in violation of 18 U.S.C. § 871. He now appeals his conviction on grounds preserved in the plea agreement. For the reasons stated herein, we affirm. * * *

Conclusion. Even if Fuller threatened President Bush because he suffered from “institutionalization” and desired to stay in prison (which very well could be true), his letter constituted no less a violation of § 871. We adhere to the objective, reasonable person standard for § 871 and AFFIRM the conviction.

Posted by Marcia Oddi on October 27, 2004 01:21 PM
Posted to Indiana Decisions