Wasserman's Appellate Summaries
October 23, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes back attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.
KEEPING CURRENT, October 23, 2000
3 NEW APPELLATE CASES
CASES OF PARTICULAR INTEREST:
For attorneys with a lot of monetary sanctions, bankruptcy won't help.
*Brooks v City of San Mateo is an excellent review, update and amplification of the elements of an abusive employment environment claim in the sexual harassment context.
FOR A QUICK REVIEW VISITORS AND SUBSCRIBERS CAN SEE WASSERMAN'S APPELLATE SUMMARIES.
In Re: Berg v. Good Samaritan Hospital
Case No. 96-16672
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-AUTOMATIC STAY OF COLLECTION ACTION AGAINST DEBTOR-EXCEPTIONS TO AUTOMATIC STAY-COURT AWARDED SANCTIONS
The Ninth Circuit awarded Good Samaritan Hospital a monetary sanction against Berg, an attorney, for filing a frivolous appeal. Shortly thereafter Berg filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. The Hospital received a relief from stay, on the ground that the sanction fell under the government regulatory power exemption. The BAP affirmed.
HELD: Filing a petition for protection under the Bankruptcy Code operates as an automatic stay against all actions for collection of debts owed by the debtor. Among several exceptions to the stay is the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's police and regulatory power. There are two tests to determine whether the exemption applies to sanctions awarded by the court to a party for frivolous actions. The first test is the "pecuniary purpose" test and the other is the "public policy" test. The Court found that it was clear that the purpose of such sanctions is to effectuate public policy, not to protect private rights or the government's interest in the sanctioned person's property. Affirmed.
Martirosyan v. Immigration and Naturalization Service
Case No. 98-70979
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-EVIDENCE-WELL FOUNDED FEAR OF PERSECUTION ON RECOGNIZED STATUTORY GROUND-SUBJECTIVE COMPONENT OF A WELL FOUNDED FEAR OF PERSECUTION-OBJECTIVE COMPONENT OF A WELL FOUNDED FEAR OF PERSECUTION
Martirosyan is a native and citizen of Armenia. He refused to serve in the Armenian military at a Prisoner-Of-War camp where he would have been forced to perpetrate inhuman acts against POWs. As a result he and his family suffered acts of persecution. His petition for asylum and withholding of deportation was denied by the IJ and affirmed by the Board of Immigration Appeals. The IJ found that Martirosyan failed to establish a well-founded fear of persecution on account of a protected ground.
HELD: A refugee is a person who is unwilling or unable to return to his or her home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Establishing a well-founded fear of persecution sufficient to qualify for asylum requires a 'subjectively genuine' and bjectively reasonable fear of persecution. The objective component requires a showing by credible, direct, and specific evidence in the record that persecution is a reasonable possibility. Proof that there is a one in ten chance of persecution if returned to his or her native country is sufficient to qualify for asylum. Punishment based on objection to participation in inhuman acts as part of forced military service is 'persecution'. The evidence established that Martirosyan's fear of persecution is subjectively genuine. The State Department's Report and the Armenian Country Report, which was incorporated into the record by reference, adds support to Martirosyan's testimony. It has repeatedly been ruled that documentary evidence is not required to corroborate an asylum claim. Decision vacated and remanded.
*Brooks v. City of San Mateo
Case No. 98-15818
U.S. Court of Appeals for the Ninth Circuit
ORDER-EMPLOYMENT-SEXUAL HARASSMENT-ABUSIVE EMPLOYMENT ENVIRONMENT
The opinion filed June 5, 2000, and reported at 214 F.3d 1082, is withdrawn and superseded by the attached opinion. Brooks was ostracized for reporting the sexual assault on her by a co-worker. She also claims official harassment in work assignment and approvals of sick leave application. She quit work and files suit under the Civil Rights Act and the California Fair Employment and Housing Act. The district court held that the assault on Brooks in was not severe enough to give rise to a hostile work environment claim. The district court held that she failed to show that she had suffered any adverse employment consequences relating to her retaliation claims. Summary judgment was for the City of San Mateo.
HELD: The Civil Rights Act prohibits employment discrimination based on any of its enumerated grounds: race, color, religion, sex, or national origin. Harassing an employee on account of sex is, conceptually, the same as refusing to hire on account of sex, or paying less for the same work. Sexual harassment falls into two major categories: hostile work environment and quid pro quo. To prevail on her hostile work environment claim, Brooks must show that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment. A female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct, which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment. The required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct. Because an employer cannot force employees to socialize with one another, ostracism suffered at the hands of coworkers cannot constitute an adverse employment action. Affirmed.
U.S. West Communications/United States, Intervenor v. Hamilton
Case No. 99-35586
U.S. Court of Appeals for the Ninth Circuit
ORDER-INTERCONNECTION AGREEMENTS-TELECOMMUNICATIONS ACT
Amendment of opinion, filed September 13, 2000, not effecting the judgment.
*Change in law, interesting case, or just watch out!
For the complete California cases, visitors can click on here to go to
STATE DAILY OPINIONS
For the complete 9th Circuit cases, visitors can click on here to go to
FEDERAL RESOURCES
Wasserman's Archived Appellate Summaries
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