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Opinions – 1/24/13: 4th U.S. Circuit Court of Appeals

Labor & Employment

Disability 

BOTTOM LINE: In ADA claim of discrimination based on employee’s pregnancy, District court properly granted employer’s summary judgment motion because employee pointed to no more than the objective fact of her pregnancy, and offered no evidence tending to show that employer subjectively believed employee to be disabled as a result of her pregnancy.

CASE: Young v. United Parcel Service, Inc., No. 11-2078 (decided Jan. 9, 2013) (Judges Wilkinson, Gregory & DUNCAN). 24 pages.

COUNSEL: Sharon Fast Gustafson, Arlington, VA, for Appellant. Emmett F. McGee, Jr., Jackson Lewis, LLP, Baltimore, MD, for Appellee.

FACTS: Peggy Young worked for UPS, driving a delivery truck as a part-time, early morning driver, also known as an “air driver.” Young worked out of a facility in Landover, known as the “D.C. Building.” Air drivers were responsible for loading their vans and making deliveries. Young typically finished her work responsibilities by 10:00 a.m., and then proceeded to her second job at a flower delivery company.

In July 2006, following two unsuccessful rounds of in vitro fertilization, Young requested a leave of absence to try a third round. The UPS occupational health manager, Carolyn Martin, granted Young’s request. When Young became pregnant, she sought to extend her leave. At some point in September 2006, she left with her supervisor a note from Dr. Thaddeus Mamlenski indicating that she should not lift more than twenty pounds for the first twenty weeks of her pregnancy and not more than ten pounds thereafter. Young soon followed up with a phone call to Martin saying that she was not yet ready to return to work.

During that September 2006 call, Martin informed Young that UPS policy would not permit her to continue working as long as she had the twenty-pound lifting restriction. Young maintained that she sought to explain to Martin that her job rarely required her to lift over twenty pounds, that other UPS employees had in any case agreed to assist her, and that she was willing to do either light duty work or her regular job. Young characterized the seventy-pound lifting requirement as illusory because she rarely had to transport large packages, and when she did, she could use a hand truck or request assistance from other UPS employees.

On October 11, 2006, Young had a check-up with midwife Cynthia Shawl, who drafted a note stating that due to her pregnancy it is recommended that Young not lift more than 20 pounds. The note also indicated Shawl was available to provide further information or answer questions, and listed contact information for her. Although Shawl did not typically draft such notes, she did so in this instance because Young had told her she needed a letter for work stating her restrictions.

At some point after her appointment with Shawl, Young contacted her supervisor at the D.C. Building and requested to return to work. When Young informed her supervisor of the note recommending she not lift more than twenty pounds, her supervisor referred Young to Martin. After speaking with Young, Martin concluded that, based on UPS policy, Young was unable to perform the essential functions of her job and was ineligible for light duty assignment.

Young and Martin spoke by phone at the end of October 2006. In the course of discussing Young’s lifting limitation and eligibility for work, Martin explained to Young that (1) UPS offered light duty for those with on-the-job injuries, those accommodated under the ADA, and those who had lost DOT certification, but not for pregnancy; (2) Young did not qualify for short-term disability benefits because she had presented no note stating she could not work at all; (3) Young had exhausted her leave under the Family and Medical Leave Act (the “FMLA”); and (4) UPS policy did not permit Young to continue working as an air driver with her twenty-pound lifting restriction.

By November 2006, Young’s FMLA leave had expired. She then went on an extended leave of absence, receiving no pay and eventually losing her medical coverage by the end of the year. During this extended leave, someone at UPS ascribed Young’s absence to “disability” by placing the code for disability on her attendance chart. A UPS employee explained at his deposition that the disability code does not necessarily mean that the employee is on approved disability leave; it in some cases means only that an employee is “not working because of an off the job situation.”

Young gave birth in April 2007, and returned to work for UPS at some point thereafter. She filed a charge with the EEOC alleging discrimination on the basis of race, sex, and pregnancy. After the EEOC issued Young a right to sue letter, she filed suit in October 2008, seeing damages under Title VII and for disability discrimination under the ADA. When Young sought to amend her complaint a third time in June 2009 to add a distinct disparate impact claim, the district court denied her motion.

The district court granted summary judgment for UPS and denied Young’s motions for additional discovery, a continuance, and a dismissal of her race discrimination claim. On Young’s ADA claim, the district court reasoned that UPS had not discriminated against Young either by asking for a doctor’s note, which it was permitted to do under the circumstances, or by deciding not to accommodate her.

Young appealed to the 4th Circuit, which affirmed.

LAW: The ADA prohibits discrimination against “a qualified individual on the basis of disability.” 42 U.S.C. §12112(a). To establish disability discrimination, Young had to demonstrate that (1) she had a disability as defined in the ADA; (2) she was a “qualified individual,” which entails being able to perform the essential functions of her job; and (3) UPS took an adverse action against her on account of her disability. See Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir. 1997). Young’s claim failed because she could not establish the first of these elements.

The ADA provides three avenues for establishing the existence of a disability: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” §12102(1).

Young did not press the argument that her pregnancy alone established disability. See, e.g., Wenzlaff v. NationsBank, 940 F. Supp. 889, 890 (D. Md. 1996) (“With near unanimity, federal courts have held that pregnancy is not a `disability’ under the ADA.”). Rather, she contended that UPS regarded her pregnancy-related work limitations as such.

A “regarded as” disabled claim “includes the circumstance when the employer `mistakenly believes that an actual, non-limiting impairment substantially limits one or more major life activities.'” Wilson v. Phoenix Specialty Mfg. Co., Inc., 513 F.3d 378, 384-85 (4th Cir. 2008) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999)). Thus, the employer “must believe…that [an individual] has a substantially limiting impairment when, in fact, the impairment is not so limiting.” Sutton, 527 U.S. at 489. Major life activities are “those activities that are of central importance to daily life,” such as walking, seeing, and hearing. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002). Finally, where an employee relies on a “regarded as” disabled theory, the Court focuses “on the reactions and perceptions of the employer’s decisionmakers.” Wilson, 513 F.3d at 385.

Young identified three actions on Martin’s part as evidence that UPS regarded her as disabled: soliciting from Young a doctor’s opinion that she was no longer under any lifting limitations; preventing Young from working based only on the Shawl note without independently evaluating Young’s ability to work or contacting Shawl for more information; and improperly relying on a mistaken belief about Young’s capacity for work. We briefly consider each.

The argument that Martin improperly solicited the doctor’s opinion was unclear. The record reflected no evidence that Young provided such an opinion to anyone. The only doctor’s notes in the record were those from Mamlenski and Shawl, suggesting Young lift no more than twenty pounds. Thus, to the extent Young either claimed Martin improperly solicited the Shawl note or took issue with Martin’s request that Young provide medical certification that she was no longer under the lifting restrictions indicated in the notes from Mamlenski and Shawl, the Court agreed with the district court’s view that because UPS possessed objective facts suggesting Young might have lost the ability to perform central job functions, it had a legitimate reason to seek some verification that Young had recovered her ability to perform those duties.

Young failed to marshal evidence creating a genuine issue of material fact on the question of whether Martin had a mistaken belief regarding Young’s capacity for work. Young offered no evidence indicating Martin believed Young’s pregnancy substantially limited one or more of her major life activities. The most the record established was that Martin believed Young to be pregnant and under a temporary lifting restriction on account of her pregnancy, based on the evidence Young herself provided. Given the relatively manageable weight restriction and the short duration of the restriction, there was no evidence that Young’s pregnancy or her attendant lifting limitation constituted a disability within the meaning of the ADA. See Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir. 1996).

Accordingly, the judgment of the district court was affirmed.

Constitutional Law

Right to bear arms 

BOTTOM LINE: District court properly denied defendant’s Second Amendment challenge to statute prohibiting possession of ammunition by convicted felon because defendant, a felon previously convicted of repeated firearms violations who possessed a large collection of weapons and explosives with clearly military purposes and ammunition, failed to rebut presumption of statute’s lawfulness by showing that his conduct was that of a “law-abiding responsible citizen” acting “in defense of hearth and home.”

CASE: U.S. v. Pruess, No. 11-5127 (decided Dec. 31, 2012) (Judges MOTZ, Duncan & Wynn). 8 pages.

COUNSEL: Ann Hester, Federal Defenders of Western North Carolina, Inc., Charlotte, NC, for Appellant. Amy Ray, Office of the United States Attorney, Asheville, NC, for Appellee.

FACTS: Gregory Pruess, formerly a licensed firearms dealer and collector of weapons and other military memorabilia, owned and operated a military museum. Over the years, he had been convicted of numerous firearms violations. In 1994, following an undercover operation conducted by the Bureau of Alcohol, Tobacco, and Firearms, the Government charged Pruess with 12 firearms offenses related to his possession and transfer of three grenades and a mortar round, all with obliterated identification and lot numbers. Pruess pled guilty to one felony count and was sentenced to 12 months’ imprisonment.

Soon after his release, Pruess returned to arms dealing, despite his status as a convicted felon. He sold UZI submachine gun barrels, M-16 components, M-122 remote firing devices, AK-47 machine guns, grenades, and other weapons (including stolen weapons) to undercover agents and a cooperating witness. Authorities arrested him and charged him with 25 firearms violations. After Pruess pled guilty to 18 counts and was sentenced to two concurrent periods of imprisonment. In 1999, shortly before sentencing, Pruess ordered a pistol online using an altered firearms license. As a result, he pled guilty to an additional count.

Following his release, Pruess sought to purchase from a confidential informant belted ammunition, grenades, and parachute flares, knowing they were likely stolen. Agents arrested him after he paid for the ammunition. Pruess entered a conditional guilty plea, admitting possession of ammunition as a convicted felon, in violation of 18 U.S.C. §922(g)(1), but reserving the right to appeal the district court’s rejection of a constitutional challenge to his conviction. The district court accepted the plea.

Pruess subsequently appealed to the 4th Circuit, asserting that the felon-in-possession prohibition violated the Second and Fifth Amendments when applied to non-violent felons like him. The Court remanded the case for consideration in light of its recent decision in United States v. Chester, 628 F.3d 673 (4th Cir. 2010). On remand, the district court again upheld the constitutionality of Pruess’ conviction.

Pruess appealed that judgment to the 4th Circuit, which affirmed.

LAW: Pruess argued that he was a non-violent felon and that the Second Amendment protects the right of non-violent felons to possess ammunition.

The Second Amendment confers a right to keep and bear arms typically possessed by law-abiding citizens for lawful purposes. District of Columbia v. Heller, 554 U.S. 570, 625 (2008). There is a two-step framework for deciding Second Amendment challenges. United States v. Chester, 628 F.3d at 678. First, the court asks whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. Id. at 680. If the answer is no, the challenged law is valid. Id. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, the reviewing court moves to the second step of applying an appropriate form of means-end scrutiny. Id.

The Chester analysis is more streamlined in cases involving firearms regulations deemed presumptively lawful in Heller. United States v. Moore, 666 F.3d 313, 316 (4th Cir. 2012). Thus, a presumptively lawful regulation cannot not violate the Second Amendment unless, as applied, it proscribes conduct falling within the category of law-abiding responsible citizens using arms in defense of hearth and home. See id. at 319. Among the firearms regulations specifically enumerated as presumptively lawful in Heller are longstanding prohibitions on the possession of firearms by felons. Heller 554 U.S. at 626-27 & n.26.

Like the present case, Moore addressed a Second Amendment challenge to the presumptively lawful felon-in-possession prohibition under §922(g)(1). See Moore, 666 F.3d at 315. The defendant in Moore failed to rebut the presumption of lawfulness by showing his conduct was that of a “law-abiding responsible citizen” acting “in defense of hearth and home.” See id. at 319. Similarly, here, Pruess’ repeated violations of the firearms laws, leading to at least 20 prior convictions, made clear that he was hardly “law-abiding” and “responsible.” Moreover, Pruess’ vast collection of weapons and explosives with clearly military purposes demonstrated the firearms and ammunition could not be intended, in any substantial part, for “defense of hearth and home.” Therefore, it could be concluded without a full Chester analysis that Pruess’ conduct fell outside the scope of the Second Amendment’s protection.

With regard to Pruess’ Fifth Amendment challenge, a rational basis review applied because Pruess, a convicted felon, had no right, much less a fundamental right to bear arms. Plainly, there is a rational relation between the felon-in-possession prohibition as applied to a collector of dangerous, often stolen weapons and explosives who has repeatedly and flagrantly ignored the laws of the United States, like Pruess, and there is a legitimate government interest in public safety. See Lewis v. United States, 445 U.S. 55, 56-57, 65-66 (1980). Therefore, Pruess’ equal protection challenge also failed.

Accordingly, the judgment of the district court was affirmed.

Criminal Law

Sexual molestation 

BOTTOM LINE: For purposes of statute making it a crime to entice, or coerce a minor to engage in illegal “sexual activity,” phrase “sexual activity” does not require interpersonal physical contact, and, therefore, defendant’s conduct of engaging in sexual conversations with minors in internet chat rooms constituted “sexual activity.”

CASE: U.S. v. Fugit, No. 11-6741 (decided Dec. 31, 2012) (Judges Traxler, WILKINSON & Agee). 21 pages.

COUNSEL: Mary Beth Usher, Wake Forest University School of Law, Winston-Salem, NC, for Appellant. Richard Cooke, Office of the United States Attorney, Richmond, VA, for Appellee.

FACTS: Timothy Fugit was charged by indictment with distributing child pornography, in violation of 18 U.S.C. §2252A(a)(2) and (b)(1) (Count One), and violating §2422(b), which prohibits using the mail or any facility or means of interstate or foreign commerce to knowingly persuade, induce, entice, or coerce a minor to engage in prostitution or any criminal sexual activity (Count Two). On counsel’s advice, Fugit pleaded guilty to both counts. Fugit and the government did not enter into a formal plea agreement but agreed to a stipulated “Statement of Facts,” which described the foundations for the charges.

According to the Statement, on November 28, 2005, while claiming to be a young girl named “Kimberly,” Fugit engaged with an 11-year-old girl, “Jane Doe #2,” in an internet chat room. He asked her questions regarding her breasts and genitals, her underwear, slumber parties, and whether she had ever appeared naked in front of men. He also obtained her telephone number. Shortly thereafter, pretending to be Kimberly’s father, Fugit telephoned Jane Doe #2 and engaged her in an inappropriate sexual conversation. The Statement noted that Fugit “admits that he knowingly persuaded, induced, enticed or coerced Jane Doe #2 to engage in a sexual activity, to wit; Taking Indecent Liberties with Children, in violation of §18.2-370 of the Code of Virginia 1950, as amended, for which he could be charged.”

The Statement likewise recounted that on December 12, 2005, once more posing as “Kimberly,” Fugit chatted online with a ten-year-old girl, “Jane Doe #1,” and obtained her telephone number. He then telephoned her, pretending to be Kimberly’s father, and engaged her in an inappropriate sexual conversation. The Statement further described how this latter incident precipitated an extensive police investigation. During the subsequent execution of a search warrant at his residence, Fugit told police that he had attempted to contact children on the computer and telephone, and that an internet account of his had been “bumped” several times because of inappropriate contact with minors. Law enforcement discovered from Fugit’s computer that he had once distributed a child pornography image over e-mail.

Additionally, at his sentencing hearing, Fugit effectively admitted the facts contained in the pre-sentence report (“PSR”) prepared by the probation office. The PSR revealed much information beyond that contained in the Statement of Facts, making clear that the incidents involving Jane Does #1 and #2 were not isolated occurrences, and that Fugit had participated in internet chats with 129 apparent children, twelve of whom police confirmed to be minors between nine and twelve years old. During these dozen conversations, Fugit always represented himself to be a child and often asked inappropriate, sexual questions. The PSR also disclosed that 28 still images and 24 videos of child pornography had been found on Fugit’s computers.

On December 19, 2007, the district court sentenced Fugit to 240 months’ imprisonment on Count One and 70 months’ imprisonment on Count Two, to be served consecutively. Fugit appealed only his sentence, and the United States Court of Appeals, 4th Circuit, affirmed the judgment of the district court. On October 1, 2009, Fugit filed a motion for post-conviction relief pursuant to 28 U.S.C. §2255, contesting his convictions. The district court denied the motion, granting a certificate of appealability on issues including whether Fugit’s stipulated conduct constituted attempted inducement of “sexual activity” of a minor within the meaning of §2422(b) and whether Fugit’s counsel rendered ineffective assistance by advising him to stipulate to the inducement of “sexual activity” and guilt under §2422(b).

Fugit again appealed to the 4th Circuit, which affirmed.

LAW: 18 U.S.C. §2422(b) comprises four elements: (1) use of a facility of interstate commerce; (2) to knowingly persuade, induce, entice, or coerce; (3) a person who is younger than eighteen; (4) to engage in an illegal sexual activity. United States v. Kaye, 451 F. Supp. 2d 775, 782 (E.D. Va. 2006).

Fugit’s claim of innocence focused exclusively on the “sexual activity” component of the fourth element. He argued that the phrase “sexual activity” in §2422(b) incorporates an irreducible minimum of interpersonal physical contact, and that because the relevant interactions with his victims neither included nor referenced such contact, he could not have been guilty of violating the statute.

As a matter of plain meaning, however, the phrase “sexual activity” as used in §2422(b) comprises conduct connected with the “active pursuit of libidinal gratification” on the part of any individual. Webster’s New International Dictionary 2082 (3d ed. 1993). It is self-evident that such conduct need not involve interpersonal physical contact. See United States v. Diaz-Ibarra, 522 F.3d 343, 351052 (4th Cir. 2008). The primary evil that Congress meant to avert by enacting §2422(b) was the psychological sexualization of children, which can surely obtain in situations where the contemplated conduct does not involve interpersonal physical contact. Moreover, §2422(b) concerns only conduct that is already criminally prohibited, forbidding only enticement of “sexual activity for which any person can be charged with a criminal offense.” Thus, conduct that is innocuous, ambiguous, or merely flirtatious is not criminal and is not subject to prosecution under §2422(b).

As such, the phrase “sexual activity” in §2422(b) does not, as Fugit argued, incorporate an invariable requirement of interpersonal physical contact. Given this interpretation of §2422(b)’s “sexual activity” element, Fugit fell far short of proving that it was more likely than not that no reasonable juror would have convicted him on Count Two, the §2422(b) enticement charge. Schlup v. Delo, 513 U.S. 298, 327(1995)). Indeed, Fugit’s conceded conduct so surely satisfied the “sexual activity” element that it was virtually inconceivable that any reasonable juror would not convict him.

Accordingly, the judgment of the district court was affirmed.

Criminal Procedure

Double jeopardy 

BOTTOM LINE: Where defendant was convicted of violating statute prohibiting possession of a firearm by person convicted of crime punishable by imprisonment exceeding one year and conviction was later overturned due to post-trial change in law, Double Jeopardy Clause did not bar retrial of defendant on same charge based on other previous convictions, each of which was for a crime indisputably punishable by more than a year in prison.

CASE: U.S. v. Ford, No. 11-5193 (decided Jan. 4, 2013) (Judges Traxler, Diaz & EAGLES (sitting by designation)). 9 pages.

COUNSEL: James Todd, Office of the Federal Public Defender, Raleigh, NC, for Appellant. Joshua Rogers, Office of the United States Attorney, Raleigh, NC, for Appellee.

FACTS: In September 2009, Harold Ford was convicted in the district court of unlawfully possessing a firearm, having been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §922(g)(1). At Ford’s trial, the government sought to introduce evidence of Ford’s 2003 North Carolina conviction for the Class I felony of possession with intent to distribute marijuana, for which Ford was sentenced to eight to ten months in prison. Under North Carolina’s structured sentencing laws at the time, Ford’s sentence could not have exceeded 12 months given his prior criminal record, even though a person whose prior record was more serious could have received a maximum sentence of up to 15 months.

Ford objected that the 2003 conviction was inadmissible because it was not for a crime punishable by more than a year in prison and therefore could not serve as a predicate felony for the §922(g)(1) charge. While Ford’s objection had support in a 6th Circuit case, United States v. Pruitt, 545 F.3d 416 (6th Cir. 2008), it was foreclosed by the 4th Circuit’s decision in United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005) (overruled by United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc)). Harp made clear that in determining whether a conviction is for a crime punishable by a prison term exceeding one year, the court must consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.

At the close of the government’s case and again at the close of all evidence, Ford moved for a judgment of acquittal, each time asserting that the government had failed to prove he had a prior felony conviction prohibiting him from possessing a firearm. The district court denied both motions.

The jury found Ford guilty. Ford appealed to the 4th Circuit, which placed his appeal in abeyance pending an en banc decision in Simmons. In Simmons, the Court overruled Harp and sustained an argument similar to the one Ford had made before the district court. Simmons, 649 F.3d at 247.

Thereafter, the Court reversed Ford’s §922(g)(1) conviction and remanded the case to the district court.. On remand, the government moved to retry Ford based on other previous convictions, each of which was for a crime indisputably punishable by more than a year in prison. The district court granted the motion, rejecting Ford’s assertion that retrial would violate the Double Jeopardy Clause. Ford entered a conditional guilty plea, preserving for appeal his double jeopardy argument.

Ford subsequently appealed to the 4th Circuit, which affirmed.

LAW: Ford contended that his original conviction was reversed because the evidence was legally insufficient to support a guilty verdict, and that, like an acquittal, such a reversal barred his retrial under Double Jeopardy.

In general, Double Jeopardy forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. Burks v. United States, 437 U.S. 1, 11 (1978). Thus, the Double Jeopardy Clause prohibits the retrying of a defendant whose conviction is reversed by an appellate court solely for lack of sufficient evidence to sustain the jury’s verdict. Id. at 2.

However, Double Jeopardy does not prevent the government from retrying a defendant who succeeds in having his first conviction set aside because of some error in the proceedings leading to conviction. Lockhart v. Nelson, 488 U.S. 33, 38, 40 (1988). Thus, when a conviction is reversed because of a post-trial change in law, a second trial is permitted. See United States v. Ellyson, 326 F.3d 522 (4th Cir. 2003). Other circuits considering this issue have agreed that where a reviewing court determines that the evidence presented at trial has been rendered insufficient only by a post-trial change in law, double jeopardy concerns do not preclude the government from retrying the defendant. See, e.g., United States v. Robison, 505 F.3d 1208, 1225 (11th Cir. 2007).

Here, Ford’s double jeopardy argument failed in light of Ellyson. The Harp definition of “punishable by more than a year” was binding on the district court, notwithstanding the existence at the time of a 6th Circuit decision similar to the decision later rendered in Simmons. Ford’s 2003 drug conviction was clearly admissible and sufficient under the Harp standard to qualify him as a felon, but it was clearly inadmissible and insufficient under the Simmons standard. Thus, the government, presented evidence correctly believing, based on the law at the time, that it was enough to prove that Ford was a felon. See Ellyson, 326 F.3d at 534. And, just as in Ellyson, any insufficiency in the proof here was caused by the subsequent change in the law effected by Simmons, not by any failure by the government to muster evidence under the legal standard that existed as binding precedent at the time of the trial. See Ellyson, 326 F.3d at 534.

The reversal of Ford’s original conviction was therefore “akin to a reversal for trial error,” and retrial did not run afoul of Double Jeopardy.

Accordingly, the judgment of the district court was affirmed.