Cleveland Law Library Weblog

ND Ohio New Local Rule on Deposits

New Northern District of Ohio Loc.R. 67.1 , effective 1/1/2007, provides that when a party seeks to deposit money with the court, they should submit a "Order of Deposit and Investment" form, as set out in new Appendix D.   Prior to filing the proposed order, the party should contact the Financial Deputy in Cleveland.  A contact phone number is provided. 

Sixth Circuit Upholds Cleveland Noise Ordinance

In Gaughan v. City of Cleveland, 06-3010 (6th Cir., Jan. 5, 2007), the court denied  abortion protestors' constitutional challenge to a Cleveland noise ordinance,  Cleveland Codified Ordinances 683.01 and 605.01.  The protestors were loudly playing a recording of a 911 tape outside an abortion clinic.  The court found the noise ordinances have a legitimate purpose, are content-neutral, and were not overbroad or vague as applied.  Source: Sixth Circuit Rejects Noise Ordinance Challenge from Abortion Protester by Robert Loblaw, Decision of the Day Blog, 1-6-2007.  See our prior post:  Sixth Circuit to Hear Constitutional Challenge to Cleveland Noise Ordinance.

Failure to Re-Hire Claim Waived by Separation Agreement

This post is thanks to a tip from Jack Sargent.

In Kellogg Co. v. Sablok, (Dec. 22, 2006), Sixth Circuit App. No. 05-2626, 05-2627, the court held that by signing a separation agreement, an employee waived his rights to assert a claim for discriminatory failure to re-hire.  The court limited its decision to the facts of the case, noting that under other facts, a different result could be reached.  The result will depend on how closely related the re-hire is to the original termination in terms of time and subject matter. 

In this case, the employee signed the separation agreement once upon notice of termination, and again, for new consideration, upon the last date of work.  The failure to re-hire occurred during the retention period between the notification of lay-off and the last date of work.  Thus, the employee's claim did not occur after the effective date of the separation agreement.  Additionally, the separation agreement  said that the employer was not obligated to rehire the employee.  To see the opinion   Download kellogg_co. v. Sabhlok.pdf

Temporal Proximity Between Notice of Pregnancy and Adverse Action Constitutes Prima Facie Pregnancy Discrimination

Asmo v. Keane (Dec. 18, 2006), Sixth Circuit case no. 05-3818 held that the trial court erred in granting the employer summary judgment on the employee's pregnancy discrimination claim.   The trial court found that the employee did not show a prima facie case.  The Sixth Circuit found that a prima facie case was established because the employer terminated the employee within 2 months after finding out she was pregnant, thus establishing a causal nexus.  Plaintiff was not required to present evidence beyond a nexus between her pregnancy and the adverse employment decision to satisfy the Barnes additional-evidence requirement for workforce reduction cases.   

The Sixth Circuit also found there was sufficient evidence to show that the reasons for plaintiff's  termination were pretextual.  The employee deposed that the employer gave certain reasons for her termination, but when the lawsuit was filed, the employer said these were not the reasons for the termination.  An employer's changing rationale can be evidence of pretext.  Also, there was evidence to rebut the employer's claimed reason for termination that the employee's region had less needs.

Thanks to Jack Sargent for the tip. 

Sixth Circuit Proposed Rules Re. Judicial Misconduct

The Sixth Circuit has issued Proposed Rules Governing Complaints of Judicial Misconduct or Disability.  Compare the Current Rules Governing Complaints of Judicial Misconduct or Disability.  The court is taking comments on the proposed rules until Jan. 31, 2007.  For information on submitting comments, go to: Sixth Circuit Homepage. 

New Fee Schedule for Federal Appellate and Bankruptcy Courts

Effective Jan. 1, 2007, the fees for various services provided by the federal appellate and bankruptcy courts are revised.  Source: Fees to Change In Appellate, Bankruptcy Courts by Nancy Stinson, Stark County Law Library Blog, Dec. 13, 2006, citing Fees to Change In Appellate, Bankruptcy Courts, BeSpacific, Dec. 12, 2006 (which has links to the fee changes). 

D. Minnesota Finds 2005 Bankruptcy Law Violates Attorney Free Speech

The District Court in Minneapolis held that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 violates the First Amendment rights of attorneys.  See In re Milavetz ( Dec. 7, 2006), District of Minnesota Case No. 05-CV-2626 (order denying the government's motion to dismiss) (Download milavetz.pdf ).  The Justice Department asserted that attorneys are "debt relief agencies" under the Act.  Thus, attorneys are required to tell their clients they can not incur more debt if they are considering filing bankruptcy.  Also attorney advertising is restricted.  The court held that applying these debt relief agency provisions to attorneys  violates attorneys' freedom of speech rights.  Judge Rules Against 2005 Bankruptcy Law by John Welbes, St. Paul Pioneer Press, Dec. 9, 2006; Restrictions on Attorney Speech Held Unconstitutional by Katie Porter, Credit Slips Blog, Dec. 9, 2006. 

See our prior post Bankruptcy Attorneys Challenge 2005 Bankruptcy Law, concerning a similar case filed in District of Connecticut, Connecticut Bar Assoc. v. U.S., 06-CV-00729. The District of Connecticut also held that the 2005 Act was, in part, unconstitutional (Download connbar.pdf ).  According to the Bankruptcy Lawyers' Blog, district courts in Texas and Oregon held the same way, while the Pennsylvania District Court granted the government's motion to dismiss for lack of standing.  See Third Court Finds Portions of BAPCPA Unconstitutional by Kevin Chern, Esq., Bankruptcy Lawyers' Blog, Nov. 14, 2006. 

Employees Not Always Protected When Cooperating in Discrimination Investigations

An employee, Ms. Crawford,  who participated in an employer's internal investigation of sexual harassment against another employee, Dr. Gene Hughes, lost her retaliation case upon a summary judgment motion.  The employee did not "oppose" the alleged sexual harassment, because company officials asked for her statement.  She did not personally come forward and register a complaint about sexual harassment committed against herself or others. The investigation did not take place while an EEOC investigation was pending.  An employee is only protected from retaliation for participating in an internal investigation if an EEOC charge is pending.  Crawford v. Metro Gov't of Nashville and Davidson County, Tennessee (Nov. 14, 2006), Sixth Circuit Case No. 05-5258 (unreported).

(As an aside, federal appellate courts can not prohibit the citation of unreported opinions issued after Jan. 1, 2007. New App.R. 32.2 )   

Thanks to Jack Sargent for the tip!

Federal Judge Asks Ohio Supreme Court to Determine Constitutionality of Red Light Cameras

Two cases were filed in the Northern District of Ohio alleging that Akron's speed camera ordinance is unconstitional, because it imposes civil fines for traffic offenses.  Federal Judge David D. Dowd, Jr. issued an order of certification to the Ohio Supreme Court to resolve the constitutional issue.  The federal court noted a Trumbull County Common Pleas Court ruling that the cameras are unconstitutional because they impose civil penalties.  For a copy of that opinion, see our prior post: Opinion in Trumbull County Traffic Camera Case.  The federal lawsuits also raise due process arguments, which will be heard after the Ohio Supreme Court decides whether to answer the submitted question.  Source:  Speed Cams are Back in Court by John Higgins, Akron Beacon Journal, Dec. 5, 2006. 

To see the order of certification:  Download certification.pdf

The federal cases are:  Mendenhall v. City of Akron, Case No. 5:06-cv-00139-DDD (view complaint: Download fedredlight1.pdf ) and Sipe v. Nestor Traffic Systems, Inc., Case No. 5:06-cv-00154-DDD (view complaint: Download fedredlight2.pdf ).

Defendants Win Second Welding Rod Case

Defendant welding rod manufacturers won the second welding rod cases to go to trial in the Northern District of Ohio, the Goforth and Quinn cases.  See Welding Defendants Win Second Federal Welding Fume Trial , Business Wire, Nov. 30, 2006.  See our prior post: Second Welding Rod Trial Begins.