text:
Whether, and in what circumstances, an employer may be liable under the Uniformed Services Employ ment and Reemployment Rights Act of 1984, 38 U.S.C. 4301 et seq., based on the anti-military animus of super visors who did not take an adverse employment action themselves, but whose anti-military animus was a moti vating factor for that action.
1. In the Uniformed Services Employment and Re employment Rights Act of 1984 (USERRA), 38 U.S.C. 4301 et seq., Congress sought "to encourage noncareer service in the uniformed services by eliminating or mini mizing the disadvantages to civilian careers and employ ment which can result from such service" and "to pro hibit discrimination against persons because of their service in the uniformed services." 38 U.S.C. 4301(a)(1) and (3). To that end, 38 U.S.C. 4311(a) provides that "[a] person who is a member of * * * a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that mem bership." Ibid.
An employee who has suffered discrimination in vio lation of USERRA may bring an action against his or her employer for damages and equitable relief. 38 U.S.C. 4323. The employee can establish a prima facie case of discrimination by showing that a protected sta tus or activity-such as the performance of military ser vice, see 20 C.F.R. 1002.22-was "a motivating factor in the employer's action." 38 U.S.C. 4311(c)(1). If the em ployee makes such a showing, the employer may avoid liability by establishing that "the action would have been taken in the absence of" the employee's military status. Ibid.
2. Petitioner, a member of the United States Army Reserve, was employed by respondent as an angio graphy technologist. Pet. App. 2a-3a. Janice Mulally, who was second in command of the department where petitioner worked, was openly hostile to his reserve du ties. Id. at 3a-4a. For example, she "scheduled him for additional shifts without notice," saying that the extra shifts were a way for him to "pay back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves." Id. at 4a (brack ets in original). The head of petitioner's department, Michael Korenchuk, was also critical of petitioner's mili tary weekend duty obligations, which he called "a b[u]nch of smoking and joking and [a] waste of taxpay ers['] money." Ibid. (brackets in original). After peti tioner returned from active duty in early 2003, Koren chuk knew "that Mulally was 'out to get' [petitioner]," but he did nothing to stop her. Id. at 4a-5a.
In January 2004, petitioner was ordered "to report for 'soldier readiness processing'" in anticipation of an other call to active duty. Pet. App. 6a. Korenchuk was concerned about the expense of having to hire a tempo rary replacement for petitioner. Ibid. A few weeks later, Mulally gave a written warning to petitioner for not being at his work area. Ibid. According to Mulally, employees in petitioner's unit were supposed to report to the diagnostic imaging services unit whenever they were not working with a patient in the angiography unit. Id. at 6a-7a. Petitioner disputed that such a policy ex isted or that he had violated it, but Korenchuk signed Mulally's warning to petitioner in order "to get her off of his back." Id. at 7a. Under the terms of the warning, petitioner was required to report to Korenchuk or Mul ally whenever he did not have any patients and when ever he needed to leave his work station. Ibid.; see Def. Exh. 3 (Jan. 27, 2004) (Corrective Action: Written).
In April 2004, Angie Day, a former co-worker of pe titioner's, met with Korenchuk, Vice President of Hu man Resources Linda Buck, and Chief Operating Officer R. Garrett McGowan to complain that Korenchuk had failed to address her concerns that petitioner was "abrupt" in dealings with her and that petitioner would "absent himself from the department." Pet. App. 8a, 51a. McGowan ordered Buck to create a plan to solve petitioner's availability problems. Id. at 8a-9a. Before Buck did that, however, Korenchuk reported to Buck on April 20, 2004, that he was unable to locate petitioner and that petitioner had failed to report in as instructed. Id. at 9a-10a; see id. at 9a n.3. Based on that report and a review of petitioner's personnel file, Buck decided that petitioner should be discharged. Id. at 10a-11a; 1/7/08 Tr. 62, 105-106.
At the time Korenchuk was unable to find petitioner, petitioner was in the cafeteria having lunch with one of his coworkers, Leslie Sweborg. Pet. App. 9a. When petitioner returned from lunch, he told Korenchuk that he and Sweborg had looked for him earlier and had left him a voice mail regarding leaving for lunch. Ibid. Kor enchuk then escorted petitioner to Buck's office, where he was given his termination notice. Id. at 10a. The notice stated that petitioner was being discharged for failing to follow the terms of the January warning, which required him to inform Korenchuk or Mulally before leaving the general diagnostic area. Def. Exh. 5 (Cor rective Action: Termination); Pet. App. 10a. The notice stated: "To date, [petitioner] has ignored that direc tive." Def. Exh. 5. Similarly, Buck's documentation of her meeting with Korenchuk stated that her termination decision was "[b]ased on the disciplinary action done in January and the continuing problems." Pl. Exh. 47 (Buck's Narrative Regarding Termination Decision). When petitioner arrived in Buck's office, Buck did not ask him about the January warning or whether he had reported in as directed. 1/8/08 Tr. 362. Buck simply asked him to sign the termination notice, and a security guard immediately escorted petitioner out of Buck's office. Pet. App. 10a; 1/8/08 Tr. 362.
Petitioner thereafter unsuccessfully challenged his termination through respondent's grievance process. Pet. App. 11a. Although petitioner argued in his griev ance that Mulally had fabricated the basis for the Janu ary warning, "Buck did not follow up with Mulally about this claim * * * and she did not investigate [petition er's] contention that Mulally was out to get him because he was in the Reserves." Ibid. Buck's investigation con sisted solely of discussing the January warning with another Human Resources employee who received infor mation from Mulally and was present when the warning was given, but not when the alleged misconduct oc curred. 1/7/08 Tr. 65; Pet. App. 8a.
3. Petitioner brought this action against respondent in the United States District Court for the Central Dis trict of Illinois, alleging that his termination violated USERRA. With the parties' consent, the district court referred the case for a jury trial before a magistrate judge. Pet. App. 23a. As required by Brewer v. Board of Trustees of the University of Illinois, 479 F.3d 908, 917 (7th Cir.), cert. denied, 552 U.S. 825 (2007), the court instructed the jury that "[a]nimosity of a co-worker to ward the [petitioner] on the basis of [petitioner's] mili tary status as a motivating factor may not be attributed to [respondent] unless that co-worker exercised such singular influence over the decision-maker that the co- worker was basically the real decision maker." Pet. App. 16a. The court also instructed that "[i]f the deci sion maker is not wholly dependent on a single source of information but instead conducts its own investigation into the facts * * * , [respondent] is not liable for a non-decision maker's submission of misinformation or selectively chosen information or failure to provide rele vant information to the decision maker." Ibid.
The jury returned a special verdict in which it found that petitioner "proved by a preponderance of the evi dence that [his] military status was a motivating factor in [respondent's] decision to discharge him" and that respondent failed to prove that petitioner "would have been discharged regardless of his military status." 1:04-cv-01219 Docket entry No. 102 (C.D. Ill. Jan. 10, 2008) (special verdict form). The jury awarded $57,640 in damages. Pet. App. 23a. The magistrate judge subse quently denied respondent's motion for judgment as a matter of law or for a new trial. Id. at 23a-31a.
4. The court of appeals reversed. Pet. App. 1a-21a. The court began by stating that the case involved what it described as the "'cat's paw' theory" of liability, a term derived from a La Fontaine fable in which a mon key persuades an unwitting cat to pull chestnuts out of a hot fire. Id. at 1a. Under that theory, "the discrimina tory animus of a nondecisionmaker is imputed to the de cisionmaker where the former has singular influence over the latter and uses that influence to cause the ad verse employment action"-in other words, where the decisionmaker is the dupe, or cat's paw, of the employee with a discriminatory motive. Id. at 2a. The court em phasized that liability under the cat's paw theory re quires "a blind reliance, the stuff of 'singular influ ence.'" Id. at 21a.
The court of appeals held that the jury instructions were "not technically wrong" because they told the jury that it could "only consider nondecisionmaker animosity in the case of singular influence, and even then that the employer is off the hook if the decisionmaker did her own investigation." Pet. App. 17a. But the court added that if there is insufficient evidence to support a finding of "singular influence," then the district court "has no business admitting evidence of animus by nondecision makers." Ibid. In this case, the court of appeals con cluded, the magistrate judge had erred in admitting evi dence of Mulally's animus-"the strongest proof of anti- military sentiment"-without first "making a threshold determination of whether a reasonable jury could find singular influence." Id. at 18a-19a.
The court of appeals went on to hold that, based on the evidence presented at trial, respondent was entitled to judgment as a matter of law. Pet. App. 19a. The court stated that Buck, who made the decision to fire petitioner, was "free of any military-based animus," and "a reasonable jury could not find that Mulally (or anyone else) had singular influence over Buck." Id. at 20a. In stead, the court found, "Buck looked beyond what Mul ally and Korenchuk had said" about petitioner. Ibid. Although her "investigation could have been more ro bust," the court continued, the decisionmaker need not "be a paragon of independence" so long as she "'is not wholly dependent on a single source of information' and conducts her 'own investigation into the facts relevant to the decision.'" Id. at 20a-21a (quoting Brewer, 479 F.3d at 918). The court therefore concluded that "a reason able jury could [not] have concluded that [petitioner] was fired because he was a member of the military." Id. at 21a.
By requiring a subordinate employee's discrimina tory animus to exert "singular influence" over the ulti mate decisionmaker in order to warrant liability, the court of appeals disregarded the text of USERRA. The statute specifically provides for liability where a per son's military status is "a motivating factor in the em ployer's action." 38 U.S.C. 4311(c) (emphasis added); see 42 U.S.C. 2000e-2(m) (similar Title VII "motivating factor" provision). The decision of the court of appeals also conflicts with the decisions of all but one of the eleven other courts of appeals to have addressed this issue. The question presented in this case is important and recurring, and this Court's review is therefore war ranted.
1. The decision below warrants this Court's review because it undermines the enforcement of USERRA, frustrating the congressional objective of "encourag[ing] noncareer service in the uniformed services by eliminat ing or minimizing the disadvantages to civilian careers and employment which can result from such service." 38 U.S.C. 4301(a)(2). As the Tenth Circuit aptly ob served in EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476 (2006), cert. dismissed, 549 U.S. 1334 (2007), a "func tional decisionmaker" standard like that adopted by the court below would "undermine the deterrent effect of subordinate bias claims, allowing employers to escape liability * * * on the theory that the subordinate did not exercise complete control over the decisionmaker." Id. at 487.
The decision will also affect the enforcement of other federal anti-discrimination statutes, including Title VII. In addition to its basic non-discrimination provision (42 U.S.C. 2000e-2(a)), Title VII of the Civil Rights Act of 1964, like USERRA, contains language making it an unlawful employment practice for an employer to take an adverse action when an improper considera tion is a "motivating factor" for that action. 42 U.S.C. 2000e-2(m); see Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Certain other anti-discrimination statutes per mit relief based not upon a showing that the prohibited consideration was a "motivating factor" for the adverse employment practice, but only upon a showing of "but- for" causation. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2349-2350 (2009) (to prove a claim under the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq., "but-for" causation must be shown). But in either case, the court of appeals' stringent "sin gular influence" standard is incorrect for the reasons explained below.
2. The decision below is in accord with Hill v. Lock heed Martin Logistics Management, Inc., 354 F.3d 277 (4th Cir. 2004) (en banc), petition for cert. dismissed, 543 U.S. 1132 (2005). But as petitioner notes (Pet. 15-32), it is inconsistent with the decisions of ten other courts of appeals, which have imputed liability to an employer when a biased subordinate influenced, but did not her self take, the adverse employment action. See Santiago- Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000); Rose v. New York City Bd. of Educ., 257 F.3d 156, 161-162 (2d Cir. 2001); Abramson v. Wil liam Patterson Coll., 260 F.3d 265, 286 (3d Cir. 2001); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir. 2000); Madden v. Chattanooga City Wide Serv. Dep't, 549 F.3d 666, 677 (6th Cir. 2008); Stacks v. South western Bell Yellow Pages, Inc., 27 F.3d 1316, 1322-1323 (8th Cir. 1994); Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007); BCI Coca-Cola, 450 F.3d at 487; Stimp son v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999), cert. denied, 529 U.S. 1053 (2000); Griffin v. Washington Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998).
Justice Alito observed last Term that the courts of appeals "disagree about the proper standard" governing "the circumstances in which an employer may be held liable based on the discriminatory intent of subordinate officials who influence but do not make the ultimate em ployment decision." Ricci v. DeStefano, 129 S. Ct. 2658, 2688 (2009) (Alito, J., concurring). The Court attempted to resolve the issue by granting review in BCI Coca-Cola and by inviting the Solicitor General to file a brief ex pressing the views of the United States concerning whether certiorari should be granted in Hill. In both cases, however, the petitioners withdrew their petitions before the Court was able to address the merits. See BCI Coca-Cola Bottling Co. v. EEOC, 549 U.S. 1334 (2007) (No. 06-341); Hill v. Lockheed Martin Logistics Mgmt., Inc., 543 U.S. 1132 (2005) (No. 03-1443). The circuit conflict has persisted and continues to warrant resolution.
1. USERRA makes it unlawful for an employer to discharge an employee if that employee's membership, service, or obligation for service in the uniformed ser vices "is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, * * * service, * * * or obligation for service." 38 U.S.C. 4311(c)(1). The statute defines "employer" to include any "person * * * that has control over em ployment opportunities" and any "person * * * to whom the employer has delegated the performance of employment-related responsibilities." 38 U.S.C. 4303(4)(A)(i).
The statutory definition of "employer" reflects long- established agency law, under which "principals or em ployers" are "vicariously liable for acts of their agents or employees in the scope of their authority or employ ment." Meyer v. Holley, 537 U.S. 280, 285 (2003). That principle applies to "both negligent and intentional torts committed by an employee within the scope of his or her employment." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 756 (1998). And it applies regardless whether the employer authorized or knew about the acts of the agent. Railroad Co. v. Hanning, 82 U.S. (15 Wall.) 649, 657 (1873). Employees act within the scope of their em ployment whenever they are "exercising the authority delegated to [them.]" New York Cent. & Hudson River R.R. v. United States, 212 U.S. 481, 494 (1909).
2. In this case, the jury made a specific finding that petitioner's military status was a motivating factor in his termination. That finding established a prima facie case of liability under Section 4311(c)(1), and the evidence at trial fully supports it. To be sure, the evidence was con flicting. But viewing the evidence in the light most fa vorable to petitioner, the jury could have found that Mulally's efforts to have petitioner discharged were mo tivated in large measure by his military obligations. In deed, the court of appeals noted that there was "abun dant evidence of Mulally's animosity." Pet. App. 18a; see id. at 19a (discussing "the strongest proof of anti- military sentiment"). And both the termination notice given to petitioner and Buck's trial testimony show that Mulally's January 2004 disciplinary action against peti tioner was a significant factor in causing his dismissal. Id. at 10a; Def. Exh. 5. There was similar evidence of Korenchuk's anti-military animus, and he too played a role in petitioner's dismissal. Pet. App. 4a, 9a-10a.
Under USERRA, respondent may be held liable for Mulally's, Korenchuk's, and Buck's actions in relation to petitioner's termination. A termination decision is a paradigmatic adverse action triggering vicarious em ployer liability under the employment discrimination laws, including USERRA. See Burlington, 524 U.S. at 760-763; Faragher v. City of Boca Raton, 524 U.S. 775, 790 (1998); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 70-71 (1986). Moreover, Mulally, Korenchuk, and Buck were all acting within the scope of their delegated authority when they took the actions contributing to peti tioner's dismissal. See Burlington, 524 U.S. at 756; Faragher, 524 U.S. at 793. The three of them were peti tioner's superiors and had authority to direct his day-to- day work activities. Mulally acted within her authority when she gave petitioner a formal warning for "Failure to Follow Instructions" and "Lack of Cooperation." Def. Exh. 3; Pet. App. 6a. Korenchuk acted within his au thority when he gave Buck the false report that peti tioner had not complied with the January 2004 directive. 1/7/08 Tr. 47-48; Pet. App. 9a-10a. And Buck acted within her authority when she terminated petitioner without attempting to hear his side of the story. Id. at 10a-11a.
3. The court of appeals set aside the jury's verdict because it erroneously believed that the discriminatory animus of an individual who is not the ultimate decision maker can trigger liability only when the individual "has singular influence over" the decisionmaker "and uses that influence to cause the adverse employment action." Pet. App. 2a, 21a. It is not enough, the court held, that a supervising employee's animus plays a substantial role in a high-level manager's decision to fire another em ployee; rather, "true to the fable" of the monkey and the cat, actionable discrimination exists only when the de cisionmaker exhibits "a blind reliance" on the biased su pervisor's opinions. Id. at 21a ("Decisionmakers usually have to rely on others' opinions to some extent because they are removed from the underlying situation. But to be a cat's paw requires more; true to the fable, it re quires a blind reliance, the stuff of 'singular influ ence.'"); see Brewer v. Board of Trs. of the Univ. of Ill., 479 F.3d 908, 917-918 (7th Cir.) (holding that, to show "singular influence," "the employee must possess so much influence as to basically be herself the true 'func tional . . . decision-maker'" and "[t]he nominal deci sion-maker must be nothing more than the functional decision-maker's 'cat's paw'") (citations omitted), cert. denied, 552 U.S. 825 (2007).
The terms "singular influence" and "blind reliance" do not appear in USERRA, and a "singular influence" standard is inconsistent with that prescribed in the stat ute's plain text. That text requires the plaintiff to show nothing more than that his or her military status was a "motivating factor in the employer's action." 38 U.S.C. 4311(c)(1). As this Court has made clear, protected sta tus or conduct is a "motivating factor" in an action when it plays a "substantial" role in bringing that action about. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see also Gag non v. Sprint Corp., 284 F.3d 839, 853-854 (8th Cir.), cert. denied, 537 U.S. 1001, and 537 U.S. 1014 (2002). Indeed, protected status can be a "motivating factor" in an adverse employment decision even if it is not a but-for cause of that decision. See Gross, 129 S. Ct. at 2350 & n.3. A fortiori, protected status can be a "mo tivating factor" in an adverse employment decision even if it does not exert "singular influence" over that deci sion. Where, as here, the discriminatory animus of a supervisory employee who is not the ultimate decision maker sets in motion and plays a substantial role in driv ing an adverse employment decision, that animus is a "motivating factor" even if the ultimate decisionmaker does not act in "blind reliance" on the supervisor's rec ommendation. The court of appeals therefore erred in holding that "singular influence" and "blind reliance" are required.
4. The court of appeals also held, as an alternative basis for its judgment, that petitioner would have been fired even "[a]part from the friction caused by his mili tary service." Pet. App. 20a. That holding is directly at odds with the jury's special verdict that respondent had failed to prove that it would have discharged petitioner regardless of his military status. The court of appeals' holding in this regard was based on its erroneous view that Buck had conducted an "investigation," and, "exer cis[ing] her independent judgment, * * * simply de cide[d] that [petitioner] was not a team player." Id. at 21a.
To be sure, an independent investigation is capable of breaking the causal chain between a supervisor's mis conduct and an adverse employment action. The chain of causation will be broken by a subsequent investiga tion when, as a result of the investigation, the supervi sor's discriminatory misuse of authority can no longer be regarded as a "motivating factor" in the adverse ac tion. See, e.g., Poland, 494 F.3d at 1183; BCI Coca-Cola, 450 F.3d at 488; Collins v. New York City Transit Auth., 305 F.3d 113, 119 (2d Cir. 2002); Stimpson, 186 F.3d at 1332; Long v. Eastfield College, 88 F.3d 300, 307 (5th Cir. 1996). In addition, an independent investigation may establish that an employee would have been fired anyway, without regard to his protected status, thus creating a defense to liability under Section 4311(c)(1).
In this case, however, Buck did nothing more than consult with Korenchuk, review petitioner's personnel file, and rely on her recollection of what the court of ap peals described as other "past issues" concerning peti tioner, none of which had been the subject of discipline. Pet. App. 10a-11a; 1/7/08 Tr. 86-87. She did not question petitioner himself or interview any witnesses, including Sweborg, prior to terminating petitioner. Pet. App. 10a- 11a. Her mere review of a personnel file was insufficient to break the causal link between Mulally's discrimina tory motives and petitioner's termination. As the Tenth Circuit reasoned in BCI Coca-Cola in response to similar circumstances, review of a pre-existing personnel file cannot "independently" confirm the basis for termina tion because "[o]bviously the file contain[s] no informa tion about the recent incident" underlying the termina tion. 450 F.3d at 492-493. Here, petitioner's personnel file contained nothing about the April 20, 2004, incident that precipitated his termination. The minimal efforts by Buck-which even the court of appeals conceded "could have been more robust" (Pet. App. 20a)- were therefore insufficient to undermine the jury's determi nation that respondent had failed to prove that it would have discharged petitioner regardless of his military service.
Like its erroneous conclusion that evidence of Mul ally's anti-military animus was improperly admitted (Pet. App. 18a), the court of appeals' assessment of Buck's investigation was based upon its erroneous inter pretation of the cat's paw theory of liability. Relying again on Brewer, the court of appeals found Buck's in quiry sufficient to absolve respondent of liability under USERRA because Buck was "not wholly dependent on a single source of information" but instead "conduct[ed] her 'own investigation into the facts relevant to the deci sion.'" Id. at 21a (quoting Brewer, 479 F.3d at 918). And it found Buck's investigation adequate to preclude employer liability under its cat's paw theory, even though it recognized that Buck "failed to pursue [peti tioner's] theory that Mulally fabricated the [January 2004] write-up; [and that] had Buck done so, she may have discovered that Mulally indeed bore a great deal of anti-military animus." Id. at 20a. Thus, the court of ap peals' reversal of the judgment in petitioner's favor rested upon its erroneous view that employer liability for the discriminatory acts of supervisors who do not take the final adverse employment action may be predi cated only upon the cat's paw theory of liability.
This case is an appropriate vehicle for resolution of the question presented. In light of the jury's specific findings that Mulally's anti-military animus was a moti vating factor in petitioner's termination, and that re spondent failed to prove that petitioner would have been discharged regardless of his military service, the ques tion of employer liability in these circumstances is squarely presented.
Respondent's arguments to the contrary are unper suasive. First, respondent asserts (Br. in Opp. 8-13) that this case is not a good candidate for review because resolution of the question presented would not alter the outcome given Buck's "independent investigation." But the record contains substantial support for the jury's specific finding that Buck's investigation was insufficient to establish that petitioner would have been discharged regardless of his military service. See pp. 15-16, supra. Moreover, as explained above, the court of appeals' hold ing regarding the adequacy of Buck's investigation was itself infected by the court's incorrect application of the cat's paw theory of liability.
Second, respondent contends (Br. in Opp. 14-16) that this case "requires an intricate study of salient details buried in the record but unaddressed by the petition." Again, this Court need not weigh the evidence because the jury heard all of the evidence and decided the case in petitioner's favor. The only issue the Court need de cide is the purely legal question addressed by the court of appeals.
Third, respondent contends (Br. in Opp. 16-21) that certiorari is inappropriate because petitioner never ar gued below that the Seventh Circuit's Brewer standard is incorrect. Given the developed body of law in the Sev enth Circuit on the cat's paw doctrine, however, it would have been futile for petitioner to argue before the dis trict court and court of appeals for any different stan dard. See Reply Br. 9-12; cf. MedImmune, Inc. v. Gen entech, Inc., 549 U.S. 118, 125 (2007). Thus, petitioner's failure to argue for a different standard below does not preclude a grant of certiorari.
1 By contrast, an employer would not be vicariously liable if a custo mer or an independent contractor, acting with a discriminatory motive but not exercising authority delegated from the employer, falsely reported that an employee engaged in misconduct and that report caused the employee to be discharged, as long as the employer had no reason to suspect that the report was fabricated because of discrimina tory animus. For similar reasons, neither would an employer be vicar iously liable if an ordinary (non-supervisory) employee acting with a discriminatory motive falsely reported another employee's misconduct, and that report caused the employee's discharge.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
Section 18-12-108 of the Colorado Revised Statutes (C.R.S.) is the state law against possession of a weapon by a previous offender ("POWPO").
a juvenile act that would constitute one of the above if committed by an adult.
Whether the weapon is considered a “dangerous weapon” under Colorado law.
A fine of up to $100,000.
1. Elements of 18-12-108 C.R.S.
1.3. What weapons count under Colorado's POWPO statute?
A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901(3)(h) or any other weapon that is subject to the provisions of this article subsequent to the person's conviction for a felony, or subsequent to the person's conviction for attempt or conspiracy to commit a felony, under Colorado or any other state's law or under federal law.
You also commit possession of a weapon by a previous offender if you were a juvenile adjudicated for an act which, if committed by an adult, would constitute a felony or an attempt or conspiracy to commit a felony, under Colorado or any other state's law or under federal law.
Example: Nancy is at a flea market when she finds an antique cane she thinks her boyfriend, Omar, would like. She buys it and gives it to him. Unbeknownst to either of them, the cane is actually a gun. Omar served time 5 years earlier for a burglary (during which he was injured). If he is caught with the cane gun and can prove he didn't know what it was, he has a defense to the POWPO charges.
any felony involving the use of force or the use of a deadly weapon.
The weapon belonged entirely to someone else.
You had no right of physical control over the weapon.
You didn't know you had the weapon.
You knew you had the item, but you didn't know it was a weapon.
You possessed a knife that could be used as a deadly weapon, but your only purpose was a legitimate one (for instance, food preparation).
The weapon was discovered during an illegal search and seizure in violation of your Fourth Amendment rights.
If you have a criminal record, it is exceptionally easy to run afoul of Colorado's law against possession of a weapon by a convicted felon – even if you possessed a weapon for a legitimate reason. Simply carrying a chef's knife home from a store might be enough to get you sent to prison.
That's where we come in. Our caring Colorado defense attorneys understand that misunderstandings happen. Mistakes get made. But it shouldn't cost you your freedom.
If you have been arrested for a violation of Colorado gun laws or other Colorado weapons charges, we invite you to contact us for a free consultation. One of our experienced Colorado criminal lawyers will get back to you quickly to discuss your case and your best defenses to POWPO charges.
People v. Allaire, App.1992, 843 P.2d 38, certiorari denied.
People v. Tenorio, 1979, 590 P.2d 952, 197 Colo. 137.
People v. Rivera, App.1988, 765 P.2d 624, certiorari granted, reversed 792 P.2d 786; People v. Martinez, 1989, 780 P.2d 560.
Henderson v. U.S., 2015, 135 S.Ct. 1780, 191 L.Ed.2d 874, on remand 795 F.3d 1254.
People v. O'Neal, App.2009, 228 P.3d 211, rehearing denied, certiorari denied 2010 WL 1436208.
People v. Quintana, 1985, 707 P.2d 355; People v. Kimble, App.1984, 692 P.2d 1142, certiorari granted 697 P.2d 716, appeal dismissed 701 P.2d 17.

matches: v. v. v. v. v. v. v. v.


text:
JOSELITO RALLOS, JOSEFINA RALLOS VALLAR, SIMON RALLOS representing his deceased father CARLOS RALLOS, TERESITA RALLOS YAP, and JOSELITO RALLOS, complainants, vs. Judge IRENEO LEE GAKO JR., RTC, Branch 5, Cebu City, respondent.
Executive Secretary RONALDO B. ZAMORA, complainant, vs. Judge IRENEO LEE GAKO JR., RTC, Branch 5, Cebu City, respondent.
A judge may be held administratively liable for gross ignorance of the law when it is shown that -- motivated by bad faith, fraud, dishonesty or corruption -- he ignored, contradicted or failed to apply settled law and jurisprudence.
Two consolidated administrative cases were filed against Judge Ireneo Lee Gako Jr. of the Regional Trial Court (RTC) of Cebu City, Branch 5.
The first case was filed by Joselito Rallos, Simon Rallos, Josefina Rallos Vallar and Teresita Rallos Yap. It was an Administrative Complaint in connection with Special Proceedings Case No. 1576-R entitled Intestate Estate of Simeon Rallos, then pending before respondent.
The second was filed by Executive Secretary Ronaldo B. Zamora, charging respondent with ignorance of the law and grave abuse of authority. This Complaint was based on the allegation that the latter had ordered the release of 25,000 sacks of imported rice to the claimants, notwithstanding the pendency of seizure and forfeiture proceedings before the Bureau of Customs.
After respondent had filed his Comment, the Court, in its September 1, 1999 Resolution, docketed the two cases as administrative matters and referred them to Deputy Court Administrator Bernardo T. Ponferrada for investigation, report and recommendation.
After conducting hearings, the investigator submitted his findings and recommendations in a Memorandum dated January 4, 2000.
WHEREFORE, the Court finds Judge Ireneo Lee Gako Jr. GUILTY of grave abuse of authority and partiality aggravated by dishonesty for which he is ordered to PAY a FINE of P10,000. He is sternly warned that a commission of similar acts in the future shall be dealt with more severely. The Complaint filed by Executive Secretary Ronaldo Zamora is hereby held in abeyance.
Respondents Motion for Reconsideration of our March 17, 2000 Decision was denied with finality by this Court.
Subsequently, in a Decision dated March 30, 2000, the Court set aside respondents Orders, which were also the bases of Secretary Zamoras Complaint.
Hence, the Court will now rule on the second case against respondent.
On December 8, 1998, the Economic Intelligence and Investigation Bureau (EIIB) of the Bureau of Customs (BOC), the Philippine Coast Guard, and the Philippine National Police (PNP) at the Port of Cebu withheld, for investigation, an estimated 25,000 sacks of rice marked as Snowman on board the vessel, M/V Alberto. The sacks of rice allegedly came from Palawan to be unloaded in Cebu. Likewise seized on the same date were nine cargo trucks to be used for carrying the subject sacks of rice.
The EIIB then wrote to the Bureau of Customs, Cebu, stating that upon further verification, no proper voyage clearance to sail from Palawan to Cebu was issued to the vessel, M/V Alberto. The EIIB then requested that a warrant of seizure and detention be issued over the rice shipment.
On December 9, 1998, the Bureau of Customs issued a Warrant of Seizure and Detention against: a) the vessel M/V Alberto used in the illegal transport of imported staple rice; b) the imported staple rice consisting of 25,000 sacks, more or less, with the Snowman brand; and c) nine (9) motor-vehicle trucks used and utilized in the illegal transport of the rice. The warrant was also directed to the owner of the M/V Alberto, ANMA Philippine Shipping Corporation, and the consignee of the rice shipment, Mark Montelibano.
Thereafter, the claimants Mark Montelibano and Elson Ogario, on December 10, 1998, filed a complaint for injunction with prayer for temporary restraining order and writ of preliminary injunction. The case, entitled Elson Ogario and Mark Montelibano vs. Bureau of Customs, EIIB, Philippine Navy, Maritime Command, Philippine National Police, Philippine Coast Guard and All Enforcement Agencies was docketed as Civil Case No. CEB 23077 and assigned to Branch 5, Regional Trial Court of Cebu City, which is the sala of respondent judge. The complaint alleged that the acts of defendants in intercepting the subject sacks of rice [were] unlawful, illegal and merely based on suspicion. Thus, plaintiffs prayed for the quashal of the warrant of seizure and detention (dated December 9, 1998) issued by the Collector of Customs, and for the release of the goods.
The Bureau of Customs also pointed out that the appropriate seizure proceeding was already instituted on December 9, 1998, by virtue of the issuance of the warrant of seizure and detention. This had the effect of depriving the trial court of jurisdiction over the matter.
On December 28, 1998, a hearing was held by respondent judge on both the motion to dismiss of the Bureau of Customs and the complainants application for a writ of preliminary injunction. The parties presented evidence in support of their respective positions.
In the subject resolution, the respondent judge also ruled that the Bureau of Customs ha[d] no jurisdiction because the goods involved [were] neither imported nor smuggled and were apprehended outside the customs zone. As further basis, it was ruled that plaintiff was able to present a certification issued by the National Food Authority that the subject rice came from Palawan. Defendants, on the other hand, submitted no evidence that the subject bags of rice were imported or smuggled. The issuance of the warrant of seizure and detention being arbitrary and without probable cause, it did not divest the trial court of its jurisdiction.
The Bureau of Customs, through the Office of the Solicitor General, filed a petition for certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 51051, assailing the Resolutions dated January 11 and 25, 1999 of the respondent judge.
In the meantime, on April 5, 1999, the District Collector of Customs of Cebu City rendered a Decision in the seizure proceedings (Cebu Seizure Identification Case No. 17-98) declaring the 25,000 sacks of Snowman rice as smuggled and ordering their forfeiture.
On April 15, 1999, the Court of Appeals issued a Decision denying the petition for certiorari filed by the Bureau of Customs and affirmed the questioned Resolutions dated January 11 and 25, 1999 issued [by] respondent judge.
A petition for review was then filed by the Bureau of Customs before the Supreme Court questioning the Decision of the Court of Appeals. Upon application, a Temporary Restraining Order was subsequently issued by the Supreme Court on May 17, 1999, enjoining the Presiding Judge of the Regional Trial Court, 7th Judicial Region, Branch 5, Cebu City or any of his representatives and the respondents from enforcing or causing to be enforced the questioned Resolution dated 11 January 1999, the Order dated 25 January 1999, and the Resolution dated 26 April 1999, as well as all subsequent orders issued by the Regional Trial Court, Branch 5, Cebu City in Civil Case No. CEB-23077 entitled Elson Ogario and Mark Montelibano vs. Bureau of Customs, et. al.
Respondent judge was required to comment on the administrative complaint.
a. The Warrant of Seizure and Detention issued by the Bureau of Customs of the Port of Cebu on December 9, 1998 was based merely on a suspicion and not anchored on probable cause. Hence, the issuance of the Warrant was not valid and, therefore, of no legal effect.
b. That the Bureau of Customs [of the Port of] Cebu x x x abused its authority or function in seizing the '25 thousand bags of rice' on the basis of a suspicion that they were smuggled goods or illegally imported. The issuance of the Warrant of Seizure and Detention was arbitrary.
c. That the Regional Trial Court Judge in the exercise of his jurisdiction, can issue an injunction to stop or prevent a purported enforcement of a criminal law which is not in accordance with an orderly administration of justice, and also to stop and prevent the Bureau of Customs from using the strong arm of the law in an oppressive and arbitrary manner.
'The court a quo has no jurisdiction over the res subject of the warrant of seizure and detention. The respondent judge, therefore, acted arbitrarily and despotically in issuing the temporary restraining order, granting the writ of preliminary injunction and denying the motion to dismiss, thereby removing the res from the control of the Collector of Customs and depriving him of his exclusive original jurisdiction over the controversy. Respondent judge exercised a power he never had and encroached upon the exclusive original jurisdiction of the Collector of Customs. By express provision of law, amply supported by well-settled jurisprudence, the Collector of Customs has exclusive jurisdiction over seizure and forfeiture proceedings, and regular courts cannot interfere with his exercise thereof or stifle or put it to naught.
"The Office of the Court Administrator also issued Circular 68-94 dated November 3, 1994, which reiterated the provisions of Circular No. 13-93.
We agree with the findings of the deputy court administrator. However, we reduce the penalty to three months suspension without pay.
There is no question that Regional Trial Courts are devoid of any competence to pass upon the validity or regularity of seizure and forfeiture proceedings conducted by the Bureau of Customs and to enjoin or otherwise interfere with these proceedings. The Collector of Customs sitting in seizure and forfeiture proceedings has exclusive jurisdiction to hear and determine all questions touching on the seizure and forfeiture of dutiable goods. The Regional Trial Courts are precluded from assuming cognizance over such matters even through petitions for certiorari, prohibition or mandamus.
The rule that Regional Trial Courts have no review powers over such proceedings is anchored upon the policy of placing no unnecessary hindrance on the governments drive, not only to prevent smuggling and other frauds upon Customs, but more importantly, to render effective and efficient the collection of import and export duties due the State, which enables the government to carry out the functions it has been instituted to perform.
Clearly, respondent had absolutely no jurisdiction to take cognizance of the Complaint for Injunction filed by Ogario and Montelibano. Administrative Circular No. 07-99, cautioning lower court judges in their issuance of temporary restraining orders and writs of preliminary injunctions, emphasized this lack of jurisdiction of trial courts. It stressed, inter alia, the rule enunciated in Mison: that the Collector of Customs has exclusive jurisdiction over seizure and forfeiture proceedings.
The court believes that a Warrant of Seizure and Detention, which is a counterpart of a Warrant of Arrest, must be issued on the basis of a probable cause. Verily, the quantum of evidence required in the issuance of a Warrant of Seizure and Detention should also be the same as in the Warrant of Arrest. Consequently, since the said Warrant of Seizure and Detention was merely issued on the basis of a mere suspicion and as recommended by the EIIB and not anchored on probable cause, the same is not valid and has no legal effect.
In the instant case, the court believes that the defendants had abused their authority or function in seizing the plaintiffs goods on the basis of suspicion that they are smuggled or illegally imported. The court also believes that the issuance of the Warrant of Seizure and Detention by the defendant Bureau of Customs was attended with arbitrariness. x x x. Consequently, the Regional Trial Court, in the exercise of its general jurisdiction, can issue an injunction to stop or prevent a purported enforcement of the criminal law which is not in accordance with an orderly administration of justice, and also to stop and prevent the defendants from using the strong arm of the law in an oppressive and arbitrary manner.
The records of this case indicate that after the issuance of that questioned order of January 11, 1999, the Bureau of Customs, et al. filed their Motions for Reconsideration and requested to set the hearing on January 21, 1999, the date scheduled by the respondent judge for the continuation of the trial on the merits in Civil Case No. CEB-23077. But, the respondent judge set the hearing of said motions on January 19, 1999.
However, from January 18, 1999 to January 21, 1999, the respondent judge did not report to the Court. He could not be contacted or located even by his own staff. The respondent judge also did not leave any word regarding his whereabouts, even with the Executive Judge. Hence, the scheduled hearings could not proceed.
Obviously, the respondent judge reported back to his Office only after the Assistant Solicitor General and the Solicitor representing the Bureau of Customs, et al. returned to Manila from Cebu City because on January 22, 1999, the same respondent judge issued instead, an order requiring the Officials of the Bureau of Customs to comment on a Motion for Contempt filed against them.
Indeed, this actuation of respondent judge amounted to bad faith. Because he played with the court calendar, the issuance of the questioned Orders was clearly motivated by dishonesty and fraud.
While we agree with the findings of the OCA, we believe however that the recommended penalty is too harsh. Under the circumstances, we hold that the appropriate penalty is three months suspension without pay.
Likewise, we agree that respondents Motion to Dismiss had no legal basis either. Indeed, [t]he subject of the x x x administrative case are the acts committed by the respondent judge in the performance of his duties. This being the sole subject of the complaint filed by the Executive Secretary, the Court will confine itself to the issue of whether or not the respondent judge is liable for gross ignorance of the law.
WHEREFORE, the Court finds Judge Ireneo Lee Gako Jr. GUILTY of gross ignorance of the law, for which he is hereby SUSPENDED for three months without pay. He is sternly warned that a commission of similar acts in the future shall be dealt with more severely.
 Mark Montelibano and Elson Ogario.
 Rallos v. Gako Jr., AM No. RTJ-99-1484, AM No. RTJ-99-1484 (A), March 17, 2000, per Panganiban, J.
 Received on May 15, 2000.
(c) to DENY the respondents motion for reconsideration of the decision of March 17, 2000 with FINALITY.
 Bureau of Customs (B0C) v. Ogario, GR No. 138081, March 30, 2000.
 Deputy Court Administrator Bernardo T. Ponferrada.
 Penned by J. Artemio G. Tuquero (now justice secretary), with the concurrence of JJ Eubulo G. Verzola (Division chairman) and Mariano M. Umali (member).
 Memorandum submitted by Deputy Court Administrator Bernardo T. Ponferrada dated January 4, 2000, pp. 2-7.
 Memorandum submitted by Deputy Court Administrator Bernardo T. Ponferrada dated January 4, 2000, pp. 7-13.
 BOC v. Ogario, pp. 8-9, GR No. 138081, March 30, 2000, per Mendoza, J.
 Ponce Enrile v. Vinuya, 37 SCRA 381, January 30, 1971; Jao v. CA, supra.; Mison v. Natividad, 213 SCRA 734, September 11, 1992.
 Entitled RE EXERCISE OF UTMOST CAUTION, PRUDENCE, AND JUDICIOUSNESS IN ISSUANCE OF TEMPORARY RESTRAINING ORDERS AND WRITS OF PRELIMINARY INJUNCTION, dated June 25, 1999. See also BOC v. Ogario, supra.
 Letter-reply dated July 21, 1999 filed by respondent before Court Administrator Justice Alfredo L. Benipayo.
 BOC v. Ogario, supra, p. 9.
 See Parada v. Veneracion, 269 SCRA 371, March 11, 1997; Conducto v. Monzon, 291 SCRA 619, July 2, 1998; Guillen v. Nicolas, 299 SCRA 623, December 4, 1998; Macasasa v. Imbing, 312 SCRA 385, August 16, 1999.
 See Abundo v. Manio, 312 SCRA 1, August 6, 1999.
 Memorandum dated January 4, 2000, p. 12.
 OCA Memorandum dated September 12, 2000, p. 5.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v.


AZEL W. BARBER & wife vs. BENJAMIN MERRIAM.
In an action to recover damages for a personal injury, a physician who attended the plaintiff after he had been in the care of another physician for two weeks may be asked and testify what, so far as he can judge had been the first physician's treatment, and in what respects it differed from his own; what effect, as far as he could judge, it had upon the plaintiff; and whether or not he saw any evidence that the plaintiff had been injured by his medical treatment.
The statements of a patient to his physician as to the character and seat of his sensations, made for the purpose of receiving medical advice, are competent evidence in his favor, in an action to recover damages for a personal injury, even though such statements were not made till after the action was brought.
TORT to recover damages for the same injury which was the subject of the preceding case.
"Q. So far as you could judge, what had been Dr. Holden's treatment of Mrs. Barber? In what respects did it differ from yours? A. His treatment was some counter-irritation of the spine, and some quieting medicines; and, though we both aimed at the same thing, we endeavored to reach it by different processes.
"Q. What effect, if any, did Dr. Holden's treatment have upon Mrs. Barber, so far as you could judge? A. She continued to improve until the time of her going down stairs; and the presumption is that the result was favorable.
"Q. Whether or not you saw any evidence when you visited her on the 17th of March that she had been injured by her medical treatment? A. None at all."
testified that his treatment had consisted chiefly of "nervines, friction and fomentation."
Dr. Guild, who succeeded Dr. Weld in attendance on the female plaintiff, was called as a witness, and was allowed to repeat to the jury the statements of the plaintiff herself, made since the suit was brought, for the purpose of receiving medical advice, as to the character and seat of her injuries and sensations, against the objection of the defendant.
The jury returned a verdict for the plaintiffs, with $2875 damages; and the defendant alleged exceptions.
G. Putnam, Jr., for the defendant. The questions to Dr. Weld called for his statement of matters which could not be within his personal knowledge. The statements of the female plaintiff to Dr. Guild ought not to have been admitted. They would clearly have been incompetent, if made to anybody except a medical attendant. Bacon v. Charlton, 7 Cush. 581 , 586. It has frequently been stated by text-writers and judges that such statements, if made by a patient to a physician, may be given in evidence; but no adjudication of that point has been found. See Gardner Peerage case, 170, 175. The reason for such admission must be the improbability of any deception being practised. It is not like the case of death-bed statements, because the party may testify to the same matters. Certainly the exception to the general rule should not in any case be extended further than the reason for it extends. See 1 Greenl. Ev. § 102, n. 3. Palmer v. Crook, 7 Gray, 418, and cases cited. Aveson v. Kinnaird, 6 East, 196. Thompson v. Trevanion, Skin. 402. In this case, the commencement of the action before the statements were made exposes them to the greatest suspicion; and the exception to the general rule should not be extended to such a case.
R. M. Morse, Jr., for the plaintiffs.
and examination of the patient. For aught that is disclosed in the exceptions, the knowledge which he had of the previous treatment of the female plaintiff by the physician who first attended her was derived entirely from his own diagnosis, unaided by any statements of other persons.
The other objection relied on in support of the exceptions is also untenable. In Bacon v. Charlton, 7 Cush. 581 , 586, it was held that a party to an action might give in evidence his own complaints, exclamations and expressions, such as usually and naturally accompany and indicate bodily pain or injury; but that all statements of facts and narrations of prior occurrences by him, although connected with and relating to his malady or injury, are incompetent and ought to be excluded. It was intimated in that case that a different rule might be applicable to statements made by a patient to a medical man; and, on consideration, we entertain no doubt that there is a well founded distinction between these two kinds or species of evidence. The opinion of a surgeon or physician is necessarily formed in part on the statements of his patient, describing his condition and symptoms and the causes which have led to the injury or disease under which he appears to be suffering. This opinion is clearly competent as coming from an expert. But it is obvious that it would be unreasonable if not absurd to receive the opinion in evidence, and at the same time to shut out the reasons and grounds on which it was founded. Such a course of practice would take from the consideration of a court and jury the means of determining whether the judgment of the expert was sound and his opinions well founded and satisfactory. Certainly it ought not to be left to the option of the adverse party to determine whether the elements on which the conclusions of a medical witness are based should be drawn out on cross-examination. The party producing the witness and who relies on his opinion should be allowed the privilege of showing that his testimony as an expert is the result of due inquiry and investigation into the condition and symptoms of the patient, both past and present.
physician or surgeon of his bodily ailments and symptoms is in its nature hearsay, and is liable to some of the objections which lie against that kind of testimony. Its admissibility is an exception to the general rule of evidence, which has its origin in the necessity of the case. The existence of many bodily sensations and ailments which go to make up the symptoms of disease or injury can be known only to the person who experiences them. It is the statement and description of these which enter into and form part of the facts on which the opinion of an expert as to the conditions of health or disease is founded. As they can be proved only by the declarations of the party whose bodily condition is the subject of inquiry, such declarations must be admitted, or the proof of them would fail altogether. To the argument against their competency, founded on the danger of deception and fraud, the answer is, that such representations are competent only when made to a person of science and medical knowledge, who has the means and opportunity of observing and ascertaining whether the statements and declarations correspond with the condition and appearance of the persons making them, and the present existing symptoms which the eye of experience and skill may discover. Nor is it to be forgotten that statements made to a physician for the purpose of medical advice and treatment are less open to suspicion than the ordinary declarations of a party. They are made with a view to be acted on in a matter of grave personal concernment, in relation to which the party has a strong and direct interest to adhere to the truth.
caused by a present existing disease or malady concerning which the witness was called on to give a medical opinion or advice but it was a statement in regard to an insulated fact, having no connection with the case under investigation, which must have occurred several months previously, which had no relation to the treatment or advice which the witness was called on to give at the time it was stated to him, and the truth of which he could in the nature of things have had no means of verifying by his own examination and observation.
It is suggested, in behalf of the defendant, that the statements in the present case were made by the plaintiff after the commencement of this action. But we do not think that for this reason only they ought to have been rejected. It was a circumstance which may have detracted from the weight of the evidence of the opinion of the physician, so far as it was founded on these statements. But as the statements were made to a medical man and for the purpose of receiving medical advice, they were competent and admissible.