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Tuesday, April 09, 2013

Ind. Decisions - 7th Circuit decides two Indiana cases today

From UNITED STATES OF AMERICA v. TRISTAN DAVIS (ND Ind., Moody), is a 12-page per curiam opinion, including a separate concurring opinion by Judge Rovner beginning on p. 3. From the majority opinion:

Two courts of appeals have sided with Davis’s contention that a court may direct the prosecutor to file a motion under §3E1.1(b) even if the prosecutor’s reason for withholding that motion does not violate the Constitution. United States v. Lee, 653 F.3d 170, 174–75 (2d Cir. 2011); United States v. Divens, 650 F.3d 343, 346–47 (4th Cir. 2011). Four courts of appeals have reached the same conclusion as Deberry. United States v. Collins, 683 F.3d 697 (6th Cir. 2012); United States v. Johnson, 581 F.3d 994, 1003 (9th Cir. 2009); United States v. Beatty, 538 F.3d 8, 16–17 (1st Cir. 2008); United States v. Newson, 515 F.3d 374, 378–79 (5th Cir. 2008). This circuit could not eliminate the conflict by changing sides, so stare decisis supports standing pat. Resolution of this conflict is the province of the Supreme Court or the Sentencing Commission. See Buchmeier v. United States, 581 F.3d 561, 566 (7th Cir. 2009) (en banc). AFFIRMED

[Judge Rovnor begins]: As the court correctly observes, and as Davis himself recognizes, the outcome of this appeal is controlled by our decision in United States v. Deberry, 576 F.3d 708 (7th Cir. 2009). I accept and respect Deberry as the law of this circuit. I write separately, however, to explain why I do not believe that section 3E1.1(b) of the Guidelines permits the government to insist that a defendant waive his appellate rights before it will ask the court to grant him an additional one-level decrease in his offense level for acceptance of responsibility.

In NANCIE J. CLOE v. CITY OF INDIANAPOLIS (SD Ind., Lawrence), a 29-page opinion (with J. Hamilton writing separately beginning on p. 27). Judge Kanne writes:
Nancie J. Cloe started working for the City of Indianapolis in April 2007. In March 2008, she was tragically diagnosed with multiple sclerosis (“MS”), a chronic, incurable neurological disorder that rendered her disabled and significantly impaired her day-to-day life. On June 29, 2009, the City terminated her, ostensibly for poor performance. Cloe sued under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., alleging that the City (1) discriminated against her because of her disability; (2) failed to reasonably accommodate her disability; and (3) retaliated against her for requesting accommodations for her disability. The district court granted summary judgment in favor of the City. For the reasons that follow, we affirm the district court’s judgment on Cloe’s reasonable accommodation claims, but reverse on her discrimination and retaliation claims.

[Judge Hamilton begins]: I join fully in Judge Kanne’s opinion for the panel. I write separately to note that the employer’s unusual presentation of its motion for summary judgment in this case has highlighted an often overlooked aspect of the McDonnell Douglas method of indirect proof of employment discrimination: The plaintiff-employee cannot be expected to identify similarly situated comparators until the employer has identified its decision-maker and articulated its reason for the adverse employment decision.

Posted by Marcia Oddi on April 9, 2013 11:33 AM
Posted to Ind. (7th Cir.) Decisions