Wednesday, June 29, 2011
Ind. Decisions - 7th Circuit issues two Indiana opinions today
In Aaron Smeigh v. Johns Manville, Inc. (SD Ind., Pratt), a 23-page opinion, Judge Tunder writes:
Aaron Smeigh brings this diversity suit against his former employer, Johns Manville (JM), for retaliatory discharge and civil conversion under Indiana law. He alleges that JM wrongfully terminated his employment for filing a workers’ compensation claim and unlawfully retained his personal property after his termination. JM moved for summary judgment on Smeigh’s claims and the district court granted the motion. Smeigh appeals.In USA v. Brook Abebe (SD Ind., Barker), a 7-page opinion, Judge Flaum writes:
We affirm. Smeigh has not presented sufficient evidence upon which a reasonable jury could conclude that he was fired in retaliation for filing workers’ compensation. Although he was terminated shortly after his workplace injury, the evidence shows that JM terminated him for his post-accident statement that he might not pass a drug test (he later passed the drug test) and subsequent refusal to sign an agreement presented by JM requiring him to undergo counseling and random drug testing (at Smeigh’s expense) to retain his job. Smeigh made no showing that JM’s proffered reason for terminating him was a lie to cover up retaliation.
Smeigh similarly has not presented evidence that JM knowingly exerted unauthorized control over his property. It was company protocol after termination to sort through an employee’s belongings to separate personal property from company property. Smeigh didn’t object when Bernice Wilson, a JM employee and union secretary, indicated she would clean out his locker and temporarily take possession of his belongings. His property (tools) was then stolen from Wilson’s office. Smeigh, however, never informed JM that Wilson still had possession of his tools or that he objected to her temporary possession of them. He waived any claim to vicarious liability and without providing some evidence that JM had the requisite mens rea, Smeigh’s claim fails as a matter of law.
Brook Abebe pled guilty to armed bank robbery, discharge of a firearm during a crime of violence, and unlawful possession of a firearm by a convicted felon. He contends that the district court committed a procedural error in setting his sentence and that his above-guideline sentence is substantively unreasonable. We disagree and affirm the district court’s judgment.
Posted by Marcia Oddi on June 29, 2011 11:27 AM
Posted to Ind. (7th Cir.) Decisions