Thursday, August 20, 2009
Ind. Decisions - 4 Indiana opinions today from 7th Circuit
Fincher v. South Bend Housing Authority (ND Ind., Judge Simon)
In Laouini v. CLM Freight (SD Ind., Judge Barker), a 13-page opinion, Judge Flaum writes:
The sole issue on appeal in this employment-discrimination lawsuit is whether the defendant, CLM Freight Lines (“CLM”), met its burden at summary judgment of proving that the plaintiff, Moncef Laouini, did not timely file a charge of discrimination with the EEOC. The agency’s Indianapolis office accepts administrative charges of discrimination by fax, and plaintiff’s counsel insists that he faxed Laouini’s charge during business hours on the final day for timely filing. A transmission record from counsel’s fax machine confirms that he successfully faxed some document to the agency that day, but there is nothing in the agency’s files evidencing receipt of counsel’s fax. The district court concluded that Laouini could not prove that the charge had been timely filed and granted summary judgment for CLM. We vacate the judgment and remand for further proceedings. * * *
According to the [district] court, although the fax confirmation shows that something had been faxed from counsel’s office to the EEOC on April 12, there was no evidence that the fax was actually received or that the document that had been faxed was Laouini’s charge. The court found it significant that Laouini’s lawyer could not say with certainty that he personally fed the charge into the fax machine. The court also reasoned that, because there was evidence that faxes received by the EEOC’s Indianapolis office before 4:30 p.m. are deemed filed the same day, and Laouini’s charge was not file-stamped until it arrived in the mail on April 16, the fax was never received. Finally, the court declared that, although the local EEOC office allows filing by fax, EEOC regulations do not expressly approve of this method, and so any lawyer who submits a charge by fax “acts at his or her peril.” * * *
This case, then, turns in part on the evidentiary significance of a fax confirmation generated by the sender’s machine, an issue we have not previously addressed. Although CLM insists that such a confirmation is “no evidence” of receipt, the company does not cite any authority supporting this proposition or acknowledge that most courts to address the issue have concluded otherwise. * * *
Although fax confirmations may not always be conclusive proof of receipt, we believe that in this case—where it was not the plaintiff who had to prove receipt, but the defendant who had to prove the absence of receipt— the fax confirmation creates a factual dispute sufficient to preclude summary judgment. Whether it was plaintiff’s counsel or his assistant who faxed the charge, the fax confirmation independently verifies that a three-page document was sent from counsel’s office to the EEOC before 4:30 p.m. on April 12, the final day for timely filing. As the district court observed, the confirmation itself does not prove the content of the document, but counsel swore in an affidavit that the fax consisted of Laouini’s two-page charge and a cover sheet, and there is no evidence to undermine his representation. And although at summary judgment the plaintiff did not present evidence establishing that confirmation of a successful transmission necessarily means that the document printed out on the other end, a reasonable factfinder could certainly infer as much. It is commonly understood that “success” in this context means that the two fax machines have performed an electronic “handshake” and that the data has been transmitted from one machine to the other. See, e.g., INFORMATION SECURITY MANAGEMENT HANDBOOK 277 (Harold F. Tipton & Micki Krause eds., 6th ed. 2008) (“[O]ne significant advantage the fax has over other forms of data exchange is that the sender immediately knows if the transmission was successful. . . . [A]ll fax machines have the capability to print a fax confirmation sheet after each fax sent. This sheet confirms if the fax has been successfully transmitted . . . .”); How to Understand Faxes, http://www.how-to.com/article/ details/160 (“Once your fax has been delivered, your system . . . will create a page with the end result of the transmission. If the fax was sent successfully, the page will say “Okay.”); How to Get Confirmation of a Sent Fax, http://www.ehow.com/how_2015874_confirm-fax-sent.ht ml (“A confirmation report is a document confirming that your faxes were sent and received.”).
The fax confirmation is thus strong evidence of receipt, and, contrary to the district court’s conclusion, CLM offered no evidence to meet its burden of proving nonreceipt.
 Although CLM has not raised the issue, there is a question whether counsel’s role as a fact witness on this point is problematic. The Southern District of Indiana has adopted the Indiana Rules of Professional Conduct, see S.D. IND. LOC. R. 83.5(g), which prohibit a lawyer from serving as an advocate at a trial in which he is likely to be a necessary witness unless the testimony relates to an uncontested issue, relates to the nature and value of counsel’s legal services, or disqualification of the lawyer would cause substantial hardship to the client, see IND. RULES OF PROF’L CONDUCT R. 3.7. Whether counsel would be a “necessary” witness at trial and whether any of the exceptions would apply are questions for the district court to address.
In Haber v. Biomet, Inc. (SD Ind., Judge McKinney), a 12-page opinion, Judge Wood writes:
We conclude that res judicata bars our consideration of the particular arbitrability issue that Haber asks us to consider in his appeal. At Haber’s urging, the Hamilton Superior Court reached that issue first and resolved it. In addition, the district court’s rationale for dismissing Haber’s complaint on the basis of venue was sound. Therefore, we affirm.
In Coffman v. Indianapolis Fire Dept. (SD Ind., Judge Young), a 16-page opinion, Judge Rovner writes:
Indianapolis firefighter Tonya Coffman sued the Indianapolis Fire Department and several of its employees alleging sex discrimination under Title VII, 42 U.S.C. § 2000e et seq., violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and privacy intrusions amounting to violations of her due process rights under the Fourteenth Amendment, see 42 U.S.C. § 1983. She also brought several state-law claims. Her claims arise from what she alleges were a number of discriminatory driving evaluations and fitness for duty evaluations. The district court dismissed the state-law claims without prejudice and granted the defendants’ motion for summary judgment on all of Coffman’s remaining claims. She appeals, and we affirm.
Posted by Marcia Oddi on August 20, 2009 10:49 AM
Posted to Ind. (7th Cir.) Decisions