Weekly Case Digests October 5, 2020 October 9, 2020.

Byline: Rick Benedict

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Todd Kurtzhals v. County of Dunn

Case No.: 19-3111

Officials: MANION, KANNE, and WOOD, Circuit Judges.

Focus: ADA Violation Fitness for Duty Examination

Sergeant Todd Kurtzhals worked for the Sheriff's Office of Dunn County, Wisconsin. After he threatened physical violence against one of his fellow officers, Deputy Dennis Rhead, the Office put him on temporary paid administrative leave and ordered him to undergo a fitness-for-duty evaluation. Kurtzhals was convinced that his supervisors took this course of action because they knew that Kurtzhals has a history of Post-Traumatic Stress Disorder (PTSD), not because his conduct violated the County's Workplace Violence Policy and implicated public safety.

Acting on that conviction, Kurtzhals sued Dunn County for employment discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. 12112. The district court concluded that no reasonable jury could find that Kurtzhals's PTSD was the "but for" cause of the County's action or that it was plainly unreasonable for Kurtzhals's superiors to believe that a fitness-for-duty examination was warranted, and so it granted summary judgment to the County. We agree with that assessment and affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Earl R. Orr

Case No.: 19-1938

Officials: MANION, HAMILTON, and BRENNAN, Circuit Judges.

Focus: Abuse of Discretion Ex Parte Communication

A search warrant for illegal drugs at the home of Earl Orr led to his arrest for possessing a firearm as a felon. After a two-day trial, a jury found him guilty. Orr appeals a number of decisions made by the district court before and during that trial.

We conclude that the district court properly denied Orr's motion to suppress evidence. But Judge Bruce, who presided over this case at trial, had engaged in improper ex parte communications with the U.S. Attorney's Office in other matters. That cast a pall over certain decisions in this case which required the exercise of substantial discretion. This was not harmless error, so we vacate Orr's conviction and remand for further proceedings before a different judge.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Driftless Area Land Conservancy, et al., v. Michael Huebsch, et al.,

Case No.: 20-1350

Officials: SYKES, Chief Judge, and FLAUM and ROVNER, Circuit Judges.

Focus: Construction Permit Intervention as a Right

The Wisconsin Public Service Commission issued a permit authorizing the construction of a $500 million electricity transmission line in southwestern Wisconsin. Two environmental groups sued the Commission to invalidate the permit. The permit holders moved to intervene to protect their interest in the permit; without it the power line cannot be built. The district court denied the motion, and the permit holders appealed.

Briefing was completed at the end of June, and we set the case for oral argument on September 22, 2020. The permit holders moved for expedited review without oral argument; they want an earlier ruling because the case continues without them in the district court. The environmental groups responded in opposition, and the matter is ready for decision.

We grant the motion. The briefs and record adequately address the single issue raised on appeal, and oral argument would not significantly assist the court. See FED. R. APP. P. 34(a)(2)(C). The case is submitted on the briefs, and we now reverse the district court. The permit holders are entitled to intervene under Rule 24(a)(2) of the Federal Rules of Civil Procedure. In many respects this is a paradigmatic case for intervention as of right.

Motion granted

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7th Circuit Court of Appeals

Case Name: Ron Morris v. BNSF Railway Company

Case No.: 19-2808; 19-2913

Officials: EASTERBROOK, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Title VII Claim Sufficiency of Evidence

Ron Morris worked for nine years as a train conductor for Burlington Northern Santa Fe Railway. The company fired him after he committed two speeding infractions during a single shift. Morris, who is African-American, invoked Title VII and brought suit to challenge his termination, alleging that BNSF punished him more severely than non-black employees who committed similar safety violations. His case proceeded to trial and a jury found in his favor. BNSF challenges the district court's decisions at every stage of the case, from the viability of Morris's theory of discrimination and sufficiency of his evidence to discovery rulings and remedies. We see no errors and affirm, on most issues applying a deferential standard of review and respecting the district court's close proximity to questions bearing upon management of the litigation and the admissibility and adequacy of evidence.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. LaTasha Gamble

Case No.: 19-2514

Officials: EASTERBROOK, HAMILTON, and BRENNAN, Circuit Judges.

Focus: Sentencing Guidelines and 5th Amendment Violation

Defendant Latasha Gamble was found guilty of armed bank robbery and sentenced to 151 months in prison. She challenges her sentence on two grounds that revolve around whether she used a real firearm in the robbery. First, she argues that the district court erred in finding that she used a real firearm in the robbery. Second she argues that the district judge violated her Fifth Amendment privilege against self-incrimination by considering at sentencing his finding that she lied to the FBI about buying and using a fake gun in the robbery and that she did not help recover the discarded gun.

We affirm. Ample evidence supported the judge's finding that Gamble used a real firearm in the robbery. Also, Gamble's Fifth Amendment rights were not violated. She did not remain silent but instead chose to tell the FBI where she got the gun and how she got rid of it. She thus waived her Fifth Amendment privilege on those topics. See Anderson v. Charles, 447 U.S. 404, 408 (1980). The district judge was entitled to consider her false statements in deciding on her sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: Maria Mercedes Lopez-Garcia v. William P. Barr

Case No.: 19-2081

Officials: SYKES, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.

Focus: Immigration Abuse of Discretion

Maria Lopez-Garcia and her three minor children, Luisa, Wendy, and Rolando Lopez-Lopez are natives and citizens of Guatemala. We consider whether the Board of Immigration Appeals (BIA) abused its discretion in denying their motions to reconsider and reopen. Upon review, we find no abuse of discretion by the BIA and deny the petition.

Petition denied

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7th Circuit Court of Appeals

Case Name: Delores Henry, et al., v. Melody Hulett, et al.,

Case No.: 16-4234

Officials: SYKES, Chief Judge, and FLAUM, EASTERBROOK, MANION, KANNE, ROVNER, WOOD, HAMILTON, BARRETT, BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Prisoner 4th Amendment Violation

Plaintiffsa class of more than 200 current and former female inmates at Lincoln Correctional Centerbrought this action following mass strip searches conducted as part of a cadet training exercise in 2011. They contend that the circumstances of the searchesparticularly the intrusive and degrading manner in which they occurred violated their Fourth and Eighth Amendment rights.

Defendantsvarious prison officialsmoved for summary judgment before the district court, arguing that our circuit's prior decisions foreclosed Plaintiffs' Fourth Amendment claim. The district court agreed, concluding that, under Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995), and King v. McCarty, 781 F.3d 889 (7th Cir. 2015) (per curiam), convicted prisoners do not maintain a privacy interest during visual inspections of their bodies. A divided panel of our court affirmed that decision, following the same reasoning. We granted Plaintiffs' petition for rehearing en banc and vacated the panel's opinion and judgment.

We hold that the Fourth Amendment protects a right to bodily privacy for convicted prisoners, albeit in a significantly limited way, including during visual inspections. We therefore reverse the district court's entry of partial summary judgment for Defendants on Plaintiffs' Fourth Amendment claim and remand for further proceedings.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Tyler N. Jaxson v. Andrew Saul

Case No.: 19-3011; 19-3125

Officials: EASTERBROOK, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Court Error Abuse of Discretion

David Daugherty, an administrative law judge hearing disability-benefits applications for the Social Security Administration, supplemented his salary by taking bribes. Eric Conn, who represented many claimants, paid Daugherty $400 per favorable decision; Conn himself received $5,000 or more per case out of the benefits...