text:
In this case, the Supreme Court considered the parameters for timeliness of third-party claims in construction defect cases.
The Supreme Court concluded that such claims are timely, irrespective of both the two-year statute of limitations in section 13-80-102 and the six-year statute of repose in section 13-80-104(1)(a) of the Colorado Revised Statutes so long as they are brought at any time before the 90-day timeframe outlined in section 13-80-104(1)(b)(II).
Accordingly, the Supreme Court affirmed the trial court’s orders and made its rule to show cause absolute.
In this original proceeding under Colorado Appellate Rule 21, the Supreme Court reviewed trial court orders dismissing the plaintiff’s direct negligence claims against an employer where the employer acknowledged vicarious liability for its employee’s negligence and denying the plaintiff’s motion for leave to amend her complaint to add exemplary damages against the employer and the employee.
The Supreme Court adopted the rule articulated in McHaffie v. Bunch, which holds that an employer’s admission of vicarious liability for an employee’s negligence bars a plaintiff’s direct negligence claims against the employer.
The Supreme Court declined to adopt an exception to this rule where the plaintiff seeks exemplary damages against the employer.
The court concluded that the trial court did not err in dismissing the plaintiff’s direct negligence claims against the employer or in denying the plaintiff’s motion for leave to amend the complaint to add exemplary damages.
The Supreme Court affirmed the trial court orders and discharged the rule to show cause.
These four cases raise the ultimate question of whether driving under the influence is a lesser included offense of either vehicular assault-DUI or vehicular homicide-DUI.
For the four cases, the Colorado Supreme Court addressed whether a double jeopardy claim can be raised for the first time on direct appeal if it was not preserved and what test courts should apply in evaluating whether one offense is a lesser included offense of another.
The court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error.
The court rejected prosecutors’ contention that defendants waive their double jeopardy claims unless they raise them at trial through a criminal procedure rule 24 12(b)(2) challenge to defective charging documents.
The court further concluded that the applicable test for determining whether one offense is a lesser included offense of another is the strict elements test articulated in Schmuck v. United States, a 1989 U.S. Supreme Court decision.
Under the Schmuck test, an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense.
Applying this test to the cases before it, the court concluded that DUI is a lesser-included offense of both vehicular assault-DUI and vehicular homicide-DUI.
Thus, defendants’ DUI convictions must merge into the greater offenses.
The court further concluded that in not merging such offenses, the trial courts plainly erred and that reversal of the multiplicitous convictions was therefore required.
Accordingly, the Supreme Court affirmed the divisions’ rulings in People v. Reyna-Abarca and People v. Hill that appellate courts review unpreserved double jeopardy claims for plain error but reversed the portions of the judgments in those cases concluding that DUI is not a lesser included offense of vehicular assault-DUI and remanded for further proceedings consistent with the opinion.
Similarly, the court reversed the portion of the judgment in People v. Medrano-Bustamante, concluding that DUI is not a lesser-included offense of vehicular assault-DUI and vehicular homicide-DUI and remanded for further proceedings consistent with the opinion.
The court affirmed the judgments in those cases in all other respects, and affirmed in full the judgment in People v. Smoots.
In this case, the Colorado Supreme Court reviewed two issues: whether a double jeopardy claim can be raised for the first time on appeal, similar to other decisions released the same day and whether defendant William Costello Scott’s convictions for both aggravated robbery-menaced with a deadly weapon (“aggravated robbery-menaced victim”) and menacing amounted to plain error.
In light of the Supreme Court’s opinion in Reyna-Abarca v. People, also decided Feb. 27, the state’s highest court concluded, contrary to the division majority in People v. Scott, that unpreserved double jeopardy claims can be raised for the first time on appeal and that courts should ordinarily review such claims for plain error.
The court further concluded, however, that in the circumstances presented, any error that might have occurred when the trial court entered judgment on Scott’s convictions for both aggravated robbery-menaced victim and menacing was not obvious and thus, did not amount to plain error.
The Supreme Court addressed whether a defendant may raise his or her unpreserved double jeopardy claim for the first time on appeal and, if so, what standard of review applies and whether driving under revocation is a lesser included offense of aggravated driving after revocation prohibited In Reyna-Abarca v. People, also decided Feb. 27.
The Supreme Court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error and clarified the applicable test to be employed in determining whether one offense is a lesser included offense of another.
Applying those rulings, the Supreme Court concluded that the division in Zubiate v. People correctly conducted plain error review of Vanessa Ann Zubiate’s unpreserved double jeopardy claim and determined that driving under retention is not a lesser included offense of aggravated driving after revocation prohibited, although the court’s analysis differs somewhat from that of the division.
Accordingly, the court affirmed the judgment of the Colorado Court of Appeals.
These two cases presented the issues of whether double jeopardy claims can be raised for the first time on direct appeal and, if so, what standard of review applies.
The Supreme Court addressed the same issues in four cases decided Feb. 27 as Reyna-Abarca v. People. There, the court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error.
Applying that ruling, the court concluded that the divisions in People v. Zadra and People v. Adams, correctly conducted plain error review of the defendants’ unpreserved double jeopardy claims and merged certain of the defendants’ convictions.
Accordingly, the Colorado Supreme Court affirmed the judgments in both cases.

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Homicide. Robbery. Firearms. Joint Enterprise. Evidence, Joint venturer, Exculpatory. Practice, Criminal, New trial, Capital case.
INDICTMENTS found and returned in the Superior Court Department on June 29, 2010.
The cases were tried before Mary-Lou Rup, J., and a motion for a new trial, filed on October 24, 2011, was heard by her.
theory of felony-murder, [Note 1] as well as unlawful possession of a firearm and wilful interference with a criminal investigation. In this consolidated appeal, the defendant claims that the judge erred in denying his motion for a required finding of not guilty of murder in the first degree and unlawful possession of a firearm. The defendant further argues that the judge improperly denied his motion for a new trial, which was based on the Commonwealth's failure to disclose allegedly exculpatory evidence that had been specifically requested. We affirm the defendant's convictions and the judge's order denying his motion for a new trial. After a review of the entire record, we also decline to reduce or set aside the defendant's murder conviction under G. L. c. 278, § 33E.
1. Background. We summarize the facts in the light most favorable to the Commonwealth, reserving certain details for discussion of specific issues. At approximately 12:20 a.m. on March 20, 2010, in a Springfield neighborhood, a witness heard two shots fired. She looked out her window and saw two men speaking in a "panicking way"; the men then ran in opposite directions. Other witnesses also heard the gunshots, soon followed by the sound of a motor vehicle crashing. The victim's motor vehicle had crashed through a fence, struck another vehicle, and come to a stop in the yard of one of the witnesses. The victim was slumped over in the driver's seat and bleeding heavily.
As the witnesses approached the vehicle, the defendant, wearing a leather jacket, ran up yelling, "It's my god-brother," and "Don't call the cops[;] the guy[']s got weed on him." He climbed into the vehicle, pulled the victim slightly toward him while patting him down, and took the victim's cellular telephone. He also took a bag from behind the victim's seat, where police later found two bags containing marijuana. After getting out of the motor vehicle, the defendant told the witnesses to telephone the police and left the scene. First responders found that the victim sustained injuries consistent with a bullet traveling through his right arm and into his chest. He was pronounced dead a short time later at a hospital.
eventually admitted that the leather jacket, found hidden a short distance away from where the victim and his vehicle had crashed, was his. The jacket tested positive for gunshot primer residue on the cuffs, indicating that the jacket may have been within three feet of a gun when it was fired. The jacket also was stained with blood that matched the major deoxyribonucleic acid profile of the victim. The defendant admitted to taking the victim's cellular telephone from the motor vehicle after the crash only after police recovered it from a motor vehicle belonging to the defendant's girl friend.
Other portions of the defendant's statements to police were proved false at trial. For example, the defendant had stated that he happened to meet the victim at a pharmacy store hours before the shooting, but surveillance video recordings from inside and outside the store showed the victim there alone. The defendant's claim that he had been on the telephone with the victim at the time of the shooting was belied by telephone records that showed that there were no telephone calls between the defendant and the victim at any point prior to the shooting.
The telephone records also showed that, although there were no calls between the defendant and the victim, both were in touch with a third party, who had a telephone number ending in 7471, in the hours before the killing. There were numerous calls between the victim's number and the 7471 number, culminating with a call made minutes before the shooting. In addition, the records indicated that there were calls during the night prior to the shooting between the defendant's number and the 7471 number until 9:42 p.m. Another call was made from the defendant's number to the 7471 number soon after the defendant finished giving his second statement at the police station.
2. Sufficiency of the evidence. At trial, the Commonwealth's theory was that the defendant and an unidentified person were involved in a joint venture to rob the victim, that either one or the other shot the victim during the course of the robbery, and that the defendant completed the robbery after the shooting at the site of the crash.
in the light most favorable to the Commonwealth, no rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt." Commonwealth v. Mendez, 476 Mass. 512 , 523 (2017), citing Commonwealth v. Latimore, 378 Mass. 671 , 677-678 (1979).
Applying that standard here, to find the defendant guilty of felony-murder with armed robbery as the predicate offense, a rational juror must have been able to find beyond a reasonable doubt that the defendant participated in an armed robbery and that the victim's death occurred in the commission or attempted commission of that robbery. See Commonwealth v. Williams, 475 Mass. 705 , 710 (2016); Commonwealth v. Zanetti, 454 Mass. 449 , 467-468 (2009). The participants need only have had the intent to commit the underlying felony, not necessarily the intent to commit murder. See Commonwealth v. Hanright, 466 Mass. 303 , 307 (2013), and cases cited.
In order for the jury to find the defendant guilty of armed robbery, the Commonwealth was required to prove either that the defendant was armed with a dangerous weapon or that he knew that a coventurer was so armed, and that he or his coventurer assaulted the victim and took money or property from that victim with the intent (or shared intent) to steal it. See Williams, supra at 710; Commonwealth v. Britt, 465 Mass. 87 , 100 (2013). The defendant argues that the Commonwealth presented insufficient evidence of (1) intent, (2) knowledge of an accomplice's gun, and (3) actual taking or stealing of property. We disagree.
There were several indications of the defendant's intent to commit armed robbery of the victim. He was aware that the victim sold marijuana, and had purchased it from the victim in the past. He admitted to patting the victim down looking for marijuana minutes after the shooting, and took a brown paper bag, as well as the victim's cellular telephone, from the motor vehicle. Further, the telephone calls between the victim and the unidentified caller, and between the defendant and the unidentified caller, support an inference that the defendant and a coventurer planned the victim's robbery. The records indicated that both the victim and the defendant were in contact with the same telephone number, ending in 7471, on March 19, 2010, the day before the killing.
There were multiple telephone calls between the defendant and the 7471 number in the early morning hours of March 19, one call on the afternoon of March 19, and one at 9:42 p.m. that night. These patterns of calls, along with evidence that the defendant had accurate information about the victim's whereabouts prior to the killing, allowed for the inference that the defendant and the unidentified caller were together prior to and during the shooting. The defendant also made a telephone call to the 7471 number at 11:40 a.m. on March 20, which was shortly after the defendant left the police station. See Commonwealth v. Caswell, 85 Mass. App. Ct. 463 , 472 (2014), cert. denied, 135 S. Ct. 1440 (2015) (numerous telephone calls between defendant and coventurer exchanged "shortly before and after the victim was killed" permitted jury inference that defendant participated in planning crime).
In addition, there was a series of telephone calls between the victim and the 7471 number starting at 8:51 p.m. on March 19, up until 12:17 a.m. on March 20. The victim was shot at approximately 12:20 a.m. The user of the 7471 number did not call the victim's telephone after the victim was shot and killed.
There was also ample evidence that either the defendant possessed a firearm or his coventurer possessed one and the defendant knew about it. The victim's brother testified that the victim had possessed a duffle bag containing a large quantity of marijuana and often had a large sum of money with him. The defendant admitted that he knew the victim sold drugs. A reasonable juror could conclude that a plan to rob a drug dealer would include a gun where the victim's resistance was reasonably anticipated. See Commonwealth v. Cannon, 449 Mass. 462 , 470 (2007); Commonwealth v. Netto, 438 Mass. 686 , 702-703 (2003). Further, the gunshot residue on the cuffs of the defendant's jacket indicated that the defendant either fired a gun or was very close by when a gun was fired, permitting the inference that the defendant was aware that his coventurer had a gun. See Commonwealth v. Johnson, 463 Mass. 95 , 107 (2012).
In addition, the evidence that the defendant took the victim's cellular telephone and a paper bag after the shooting allowed for the inference that the defendant completed the robbery. Although the defendant offered alternative explanations for his actions, in determining whether a reasonable jury could find each element of the crime charged, we do not weigh supporting evidence against conflicting evidence. Commonwealth v. Lao, 443 Mass. 770 , 779 (2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011).
Finally, the defendant's actions, including hiding his blood-stained leather jacket, and his misstatements, including his supposed interactions with the victim prior to the shooting, demonstrated his consciousness of guilt. See Commonwealth v. Vick, 454 Mass. 418 , 424 (2009) ("While a conviction may not be based solely on evidence of consciousness of guilt, . . . indications of a defendant's state of mind, coupled with other evidence, can be sufficient to establish guilt" [citation omitted]).
Although circumstantial, the evidence, taken in the light most favorable to the Commonwealth, was indeed sufficient to prove the defendant's guilt. See Commonwealth v. White, 452 Mass. 133 , 135 (2008) (circumstantial evidence is competent to establish guilt beyond reasonable doubt), and cases cited. Accordingly, the judge properly denied the defendant's motion for a required finding.
3. Motion for new trial. The defendant also argues that the motion judge, who was the trial judge, erred in denying his motion for a new trial based on the Commonwealth's failure to produce exculpatory evidence. Given the nature of the evidence and the parties' arguments at trial, there was no error.
a statement regarding the defendant." Given the specific request, as well as the judge's finding that the evidence was exculpatory, [Note 4] we must determine "whether we can be confident that, even if the prosecution had supplied the report to the defendant in timely fashion, the report or available evidence disclosed by it would not have influenced the jury." Commonwealth v. Healy, 438 Mass. 672 , 679680 (2003), quoting Commonwealth v. Daye, 411 Mass. 719 , 729 (1992). Nevertheless, the defendant had the burden to "demonstrate that a substantial basis exist[ed] for claiming prejudice from the nondisclosure" in order to receive a new trial (citation omitted). Healy, supra at 680.
The judge declined to grant the defendant's motion for a new trial because the Commonwealth's main theory was that the defendant had participated in the armed robbery and murder as a joint venturer. [Note 5] After examining the evidence that the Commonwealth introduced at trial, the judge concluded that the exculpatory evidence did not affect the strength of the evidence supporting the view that the defendant was a joint venturer, even if not the shooter. In other words, proof that the defendant was not the shooter was immaterial given the strength of the evidence that he was present at the time of the shooting and participated in the armed robbery.
circumstances of this case, the judge's denial of the motion was not an abuse of discretion. The Commonwealth's theory of the case was joint venture and focused on the user of the 7471 telephone number as the defendant's coventurer. See Zanetti, 454 Mass. at 465 ("jurors may all agree that the defendant knowingly participated in the commission of the crime but differ as to whether he did so as a principal or a joint venturer"). As a result, here, as the judge implicitly recognized, the evidence of Ingram's claimed admission of having shot the victim was more likely to fill in the gaps of the joint venture (by identifying the second participant) than to demonstrate the defendant's innocence. Contrast Commonwealth v. Ellison, 376 Mass. 1 , 21-22 (1978) (nondisclosed evidence tended to show that defendant was not involved in joint venture). Thus, in the circumstances of this case, the judge was warranted in concluding that a new trial was not called for.
4. Review under G. L. c. 278, § 33E. After a careful review of the entire record, we discern no reason to reduce the degree of guilt or grant a new trial pursuant to our powers under G. L. c. 278, § 33E.
[Note 1] The predicate offense was armed robbery.
[Note 2] The defendant also asserts insufficient evidence was presented to prove unlawful possession of a firearm. Because one of the elements of armed robbery is possession of a dangerous weapon, the discussion of that charge is included in our analysis of the sufficiency of proof of the armed robbery, infra.
[Note 3] Dixon said that Ingram had told Dixon that Ingram had "shot that white kid," referring to the victim.
The only reference to Ingram during the trial was struck from the record. Although Ingram's alleged admission to Dixon was not disclosed before trial, the defendant was or should have been aware that Ingram had been investigated in connection with the victim's murder; during pretrial discovery, the Commonwealth provided the defendant with a different statement relating to both the defendant and Ingram. That statement alleged that the defendant had admitted to another person that he was involved in a robbery with Ingram, and Ingram had told that person that the defendant "just better hold it down." In that statement, the person also mentioned that Ingram lived on a street that was later associated with the 7471 number, at an address which the defendant later investigated. Both parties anticipated the possibility that this statement would come in evidence; however, that person was ultimately not called to testify, and the statement was not introduced in evidence.
[Note 4] The judge found that although Ingram's admission to being the shooter would not preclude the defendant's participation in the armed robbery, it would have forced the Commonwealth to prove the defendant's role as a coventurer only, and not as the principal.
"I said in my opening that the evidence may not show that the defendant shot the victim himself. But the evidence will show that if he didn't, he was with somebody who did. And you know this, in part, because of the gunshot residue on the cuffs of his jacket. . . . The evidence further shows that the defendant was communicating with someone else . . . . [T]he people on the street don't see a gun in [the defendant's] hand, so the defendant, indeed, may not have shot the victim himself. But if he didn't do it himself, it happened during the commission of a joint venture."


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text:
[286 U.S. 482, 484] Mr. M. Walton Hendry, of Washington, D. C., for Edwards.
Mr. Hatton W. Summers, of Dallas, Tex., for the Judiciary Committee of the House of Representatives, as amicus curiae, by special leave of Court.
No difference of opinion between the parties as to the validity of the measure, as thus approved, is disclosed in the argument at bar. The President approved the bill upon the advice of the Attorney General (36 Op. Attys. Gen. 403) who, in accord with the plaintiff, submits that the certified question should be answered in the affirmative. In view of the opinion at one time expressed by the Judiciary Committee of the House of Representatives (H. R. Report No. 108, 38th Cong., 1st sess., June 11, 1864), the Attorney General advised the Judiciary Committee of that House of the pendency of the present cause, and we granted to Mr. Sumners, the chairman of that Committee, at his request, leave to appear as amicus curiae. He has stated to the Court that the Judiciary Committee of the House of Representatives is now of the opinion that the President has the power asserted and he has presented an argument in support of the President's action. While no contention to the contrary has been urged upon us in the instant case, our attention has been directed to opposing views strongly held in the past, and these-no less than those now advanced- we have carefully considered in reaching our conclusion.
The last sentence of this provision clearly indicates two definite and controlling purposes: First, to insure promptness and to safeguard the opportunity of the Congress for reconsideration of bills which the President disapproves; hence, the fixing of a time limit so that the status of measures shall not be held indefinitely in abeyance through inaction on the part of the President. Second, to safeguard the opportunity of the President to consider all bills presented to him, so that it may not be destroyed by the adjournment of the Congress during the time allowed to the President for that purpose. As this Court said in The Pocket Veto Case, 279 U.S. 655, 677, 678 S., 49 S. Ct. 463, 466, 64 A. L. R. 1434: 'The power thus conferred upon the President cannot be narrowed or cut down by Congress, nor the time within which it is to be exercised, lessened, directly or indirectly.' The constitutional provision is explicit as to the consequences in case the bill is not signed by the President within the time fixed. The bill then becomes a law, unless the Congress by adjournment has prevented the return of the bill, and, in the latter event, it is not to be a law. But the provision is not explicit as to the consequence in case the bill is approved by the President [286 U.S. 482, 487] within the time fixed and in the meantime the Congress has adjourned.
It appears that President Cleveland was urged to approve a bill after the adjournment of the Congress, but he did not do so.7 President Harrison, acting on the advice of Attorney General Miller (20 Op. Attys. Gen. 503), signed a number of bills during a recess of the Congress. Upon the opinion of Attorney General Palmer that the action was constitutional (32 Op. Attys. Gen. 225), President Wilson singed several bills after the adjournment sine die [286 U.S. 482, 490] of the Second Session of the Sixty-Sixth Congress. 8 This precedent was followed in the instant case by President Hoover, relying upon the opinion of Attorney General Mitchell that there was no ground for a distinction as to the President's power in this respect between the case of adjournment at the close of a session and the final adjournment of the Congress.
The authority of the President to approve bills during a recess of the Congress, but within the time fixed by the Constitution, has been sustained by this Court. La Abra Silver Mining Co. v. United States, 175 U.S. 423, 20 S. Ct. 168. It appeared in that case that on December 22, 1892, two days after presentation of the bill to the President, the Congress had taken a recess until January 4, 1893. The bill was signed by the President on December 28, 1892. The Court expressly reserved the question, as one not before the Court, whether the President could approve a bill 'after the final adjournment of Congress for the session.' But the reasoning of the opinion applies with as much force to the case of an adjournment, whether it is at the close of a session or is the final adjournment of the Congress, as to the case of a recess for a specified period.
The Court effectively answered the opposing contention based upon the legislative character of the President's function in approving or disapproving bills. See Smiley v. Holm, 285 U.S. 355, 52 S. Ct. 397, 76 L. Ed. -. The fact that it is a legislative function does not mean that it can be performed only while Congress is in session. The President acts legislatively under the Constitution, but he is not a constituent part of the Congress. 9 In the La Abra Case the Court said [286 U.S. 482, 491] (p. 454 of 175 U. S., 20 S. Ct. 168, 178): 'It is said that the approval by the President of a bill passed by Congress is not strictly an executive function, but is legislative in its nature; and this view, it is argued, conclusively shows that his aproval can legally occur only on a day when both Houses are actually sitting in the performance of legislative functions. Undoubtedly the President when approving bills passed by Congress may be said to participate in the enactment of laws which the Constitution requires him to execute. But that consideration does not determine the question before us. As the Constitution, while authorizing the President to perform certain functions of a limited number that are legislative in their general nature, does not restrict the exercise of those functions to the particular days on which the two Houses of Congress are actually sitting in the transaction of public business, the court cannot impose such a restriction upon the Executive.' From this point of view, and so far as the character of the President's function is concerned, it obviously makes no difference whether the Congress has adjourned sine die or to a day named.
The Court's reasoning in the case cited also meets the objection that, if the President may approve bills after adjournment, his action would be free of any limitation of time. The constitutional provision does not admit of such a construction. The intention is clearly shown that in any event the President must act within the prescribed ten days, and the opinion in the La Abra Case is explicit as to the President's duty in this respect. The Court said (pages 453, 454 of 175 U. S., 20 S. Ct. 168, 178): 'The time within which he (the President) must approve or disapprove a bill is prescribed. If he approve a bill, it is made his duty to sign it. The Constitution is silent as to the time of his signing, except that his approval of a bill duly presented to him-if the bill is to become a law merely by virture of such approval-must be manifested by his signature within ten [286 U.S. 482, 492] days, Sundays excepted, after the bill has been presented to him. It necessarily results that a bill when so signed becomes from that moment a law. But in order that his refusal or failure to act may not defeat the will of the people, as expressed by Congress, if a bill be not approved and be not returned to the House in which it originated within that time, it becomes a law in like manner as if it had been signed by him.' But, if this limitation of time applies to the President's action when the Congress is in recess, it is apparent that the limitation equally governs his action when the Congress has adjourned. The constitutional provision affords no basis for a distinction between the two cases.
Another objection has been raised that, if the authority of the President to approve bills continues after adjournment of the Congress, an incoming President might approve bills passed during the official term of his predecessor. 11 But it does not follow that because an incoming President, to whom a bill has not been presented by the Congress, cannot approve it, that a continuing President, to whom a bill has been presented by the Congress, must be debarred of his opportunity to give his approval within the time which the Constitution has prescribed.
Regard must be had to the fundamental purpose of the constitutional provision to provide appropriate opportunity for the President to consider the bills presented to him. The importance of maintaining that opportunity unimpaired increases as bills multiply. The Attorney General calls attention to the fact that at the time here in question, that is, between February 28, 1931, and noon of March 4, 1931, 269 bills were presented to the President for his consideration, 184 of which were presented to him during the last twenty-four hours of the session. No possible reason, either suggested by constitutional theory or based upon supposed policy, appears for a construction of the Constitution which would cut down the opportunity of the President to examine and approve bills merely because the Congress has adjourned. No public interest would be conserved by the requirement of hurried and inconsiderate examination of bills in the closing hours of a session, with the result that bills may be approved which on further consideration would be dis- [286 U.S. 482, 494] approved or may fail although on such examination they might be found to deserve approval.
In the instant case, the President, to whom the bill was presented, approved it within the time prescribed by the Constitution, and upon that approval it became a law. The question certified is answered in the affirmative.
[ Footnote 1] See Memoirs of John Quincy Adams (1875), vol. 7, pp. 233, 234.
'Another question discussed was, whether the President could now sign the Act concerning the Florida wreckers, which was examined and actually announced to the House as having been signed, but accidentally, among forty or fifty other Acts approved the last evening before the close of the session, remained without his signature. Could the President sign an Act, Congress not being in session? Wirt thought he could. So did I. The article of the Constitution concerning the signature of the President to Acts of Congress was read and analyzed. Nothing in it requiring that the President should sign while Congress are in session.
'Calhoun said that uniform practice had established a practical construction of the Constitution.
'I observed that the practice had merely grown out of the precedents in the British Parliament. But the principles were different. The King was a constituent part of Parliament, and no Act of Parliament could be valid without the King's approbation. But the president is not a constituent part of Congress, and an Act of Congress may be valid as law without his signature or assent.
'Calhoun still thought that the uniform practice made the law. ... And as the Act was to commence its operation only in October, and was not of an urgent character, it was concluded to be the safest course to leave the Act unsigned, and state the facts to Congress at their next session.' Memoirs of John Quincy Adams (1875), vol. 6, pp. 379, 380.
[ Footnote 3] The Committee said that the act had been approved by the President 'under the belief that the last clause of the section of the Constitution, above quoted, was designed more especially to prevent Congress from enacting laws without the approval of the Executive, which might be done by the passage of bills by the two houses, followed by an adjournment, before the President could examine and return them, were it not for the declaration that in such cases the bills shall not be laws; and did not relate to cases wherein the Executive should approve bills sent to him by Congress within ten days, even though an adjournment should occur before the return of the bills.
'That there is force and plausibility in this position, a little reflection will discover to any mind; but the committee cannot receive it as a correct interpretation of the Constitution.
'The ten days' limitation contained in the section above quoted refers to the time during which Congress remains in session, and has no application after adjournment. Hence if the Executive can hold a bill ten days after adjournment, and then approve it, he can as well hold it ten months before approval. This would render the laws of the country too uncertain, and could not have been intended by the framers of the Constitution.
'The spirit of the Constitution evidently requires the performance of every act necessary to the enactment and approval of laws to be perfect before the adjournment of Congress.
'The committee, therefore, conclude that the act referred to, approved March 12, 1863, is not in force; and in this conclusion the committee are unanimous.' H. R. Report No. 108, 38th Cong., 1st Sess., June 11, 1864.
[ Footnote 4] Other references to the Act of March 12, 1863, as approved, are found in the Act of July 28, 1866, c. 298, 8, 14 Stat. 329; Act of July 27, 1868, c. 276, 3, 15 Stat. 243.
[ Footnote 5] Mrs. Alexander's Cotton, 2 Wall. 404, 420, 423; United States v. Anderson, 9 Wall. 56, 64; In re Zellner, 9 Wall. 244, 245, 666; United States v. Padelford, 9 Wall. 531, 540; United States v. Klein, 13 Wall. 128; Carroll v. United States, 13 Wall. 151; Armstrong v. United States, 13 Wall. 154; Pargoud v. United States, 13 Wall. 156. See Hodges v. United States, 18 Ct. Cl. 700; United States v. Weil, 29 Ct. Cl. 523.
[ Footnote 6] President Johnson filed the bill in the State Department with an indorsement, stating his belief that approval in these circumstances was not authorized by the Constitution. 4 Hinds' Precedents, 3493. A resolution directing the re-enrollment of the bill was passed by the House of Representatives but not by the Senate. Id.
[ Footnote 7] The statement has been made that Attorney General Garland advised President Cleveland that he was without authority to sign bills after Congress had adjourned (see 32 American Law Review, p. 212), but we are informed that there is no record in the Department of Justice of any opinion by Attorney General Garland upon the subject. See 36 Op. Attys. Gen. at page 404.
[ Footnote 8] The session adjourned sine die on June 5, 1920, 41 Stat. 363, 1639. The following bills were subsequently approved by the President: Act of June 10, 1920, c. 285, 41 Stat. 1063 (16 USCA 791-823); Acts of June 14, 1920, cc. 286, 287, 288, 289, 290 and 291, 41 Stat. 1077-1079. See 30 Yale Law Journal, 1.
[ Footnote 9] See Note 2.
[ Footnote 10] Compare Seven Hickory v. Ellery, 103 U.S. 423; People v. Bowen, 21 N. Y. 517; State ex rel. Belden v. Fagan, 22 La. Ann. 545; Solomon v. Commissioners, 41 Ga. 157; Lankford v. County Commissioners of Somerset County, 73 Md. 105, 20 A. 1017, 22 A. 412, 11 L. R. A. 491.
[ Footnote 11] See opinion of Chief Justice Richardson in United States v. Weil, 29 Ct. Cl. 523, 549.

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Ambrose, Stephen E. The Wild Blue. The Men and Boys Who Flew the B-24s Over Germany. New York. Simon & Schuster. 2001. 299 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in near fine dust jacket (in mylar).
Ambrose, Stephen E. The Wild Blue. The Men and Boys Who Flew the B-24s Over Germany. Photo available. New York. Simon & Schuster. 2001. 299 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in near fine dust jacket (in mylar).
Ambrose, Stephen, William F. Buckley, David Halberstam, Arthur Miller, George Plimpton... West Point. Two Centuries of Honor and Tradition. The Bicentennial Book of the United States Military Academy. Photo available. New York. Warner. 2002. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Ambrose, Stephen. Band of Brothers. E Company, 506th Regiment, 101st Airborne from Normandy to Hitler's Eagle's Nest. New York. Simon & Schuster. 2001. 335 pps. Octavo. Soft cover. Reprint. Illustrated. Fine copy.
Ambrose, Stephen. Citizen Soldiers. The U.S. Army from the Normandy Beaches to the Bulge to the Surrender of Germany... New York. Simon & Schuster. 1998. 512 pps. Octavo. Soft cover. Reprint. Illustrated. Fine copy.
Ambrose, Stephen. Citizen Soldiers. The U.S. Army from the Normandy Beaches to the Bulge to the Surrender of Germany... New York. Simon & Schuster. 1997. 512 pps. Octavo. Hardcover. Reprint. Illustrated. Fine copy (owner blind stamp) in fine dust jacket (in mylar).
Ambrose, Stephen. The Victors. Eisenhower and His Boys: The Men of World War II. New York. Simon and Schuster. 1998. Octavo. Soft cover. Reprint. Illustrated. Fine copy.
Ambrose, Stephen. The Victors. Eisenhower and His Boys: The Men of World War II. New York. Simon and Schuster. 1998. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Anders, Curt. Hearts in Conflict. A One-Volume History of the Civil War. New York. Barnes & Noble. 1994. Octavo. Hard cover. Illustrated. Fine copy in fine dust jacket (in mylar).
Anderson, Charles R. The Grunts (Viet Nam War). Photo available. Novato. Presidio Press. 1984. Octavo. Hard cover. Reprint. Illustrated. Fine copy in fine dust jacket (in mylar).
Anderson, F. LeRoy et al. No Longer Silent. World-Wide Memories of the Children of World War Ii. Photo available. Missoula. Pictorial Histories. 1995. 370 pps. 4to. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
Anderson, Fred. The Dominion of War. Empire and Liberty in North America. 1500-2000. New York. Viking Press. 2005. Octavo. Hard cover. First edition. Illustrated. Fine copy (owner blind stamp) in fine dust jacket (in mylar).
Anderson, John B. Vision and Betrayal in America. Waco. Word Books. 1975. Octavo. Hardcover. First edition. Fine copy (name inked out on end paper).
Anderson, Mark (Ed). Hitler's Exiles. Personal Stories of the Flight from Nazi Germany to America. New York. New Press. 1998. 354 pps. Octavo. Hardcover. First edition. Fine copy in fine dust jacket (in mylar).
Anderton, David A. Strategic Air Command. Photo available. London. Ian Allan Ltd. 1975. 316 pps. Octavo. Hardcover. Stated first edition. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
Anderton, Davis A. Jet Bombers. Phoebus History of the World Wars. Special. Photo available. London. Phoebus. 1976. 4to. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
Andrews, Mary. A Lost Commander: Florence Nightingale. Garden City. Doubleday, Doran and Co. 1929. Octavo. Hardcover. First edition. Near fine copy (very light shelf wear).
Angelucci, Enzo. Combat Aircraft of World War II. 1933-1937. Poster Book. Photo available. New York. Military Press. 1987. Folio. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
Angelucci, Enzo. World Aircraft. Military. 1945-1960. Chicago. Rand McNally. 1978. Octavo. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
Angelucci, Enzo. World Aircraft. Origins - World War I. Chicago. Rand McNally. 1975. Octavo. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
Angle, Craig. The Great Locomotive Chase. More on the Andrews Raid and the First Medal of Honor. Photo available. Rouzerville. Self published. 1992. 354 pps. 4to. Hardcover. First edition. Illustrated. Important reference work. Limited edition of 1500 copies. Fine copy in fine dust jacket (in mylar).
Angle, Paul (ed). The Lincoln Reader... Live and Times. New Brunswick. Rutgers. 1947. 564 pps. Octavo. Hardcover. Reprint. Illustrated. Fine copy in fine dust jacket (in mylar).
Angle, Paul M. Tragic Years. 1860-1865. Boxed Set. A Documentary History of the American Civil War. New York. Simon & Schuster. 1960. 1097 pps. Octavo. Hardcover. First edition. Two volumes. Fine copies in fine slip case.
Anner, Zeev. The War. 1967 (Israeli Seven Day War). Tel Aviv. Otpaz. 1967. 4to. Decorated hard cover. First edition. Illustrated. Important reference work. Near fine copy (very light shelf wear).
Anson, Robert Sam. War News. A Young Reporter in Indochina. New York. Simon & Schuster. 1989. 317 pps. Octavo. Hardcover. First edition. Fine copy in near fine dust jacket (in mylar).

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Jennifer K. Birmingham | Wendy Anderson P.A.
Jennifer has been practicing in the areas of labor and employment law and commercial litigation for over ten years. She has extensive experience representing and working closely with start-ups and small and medium size companies in all aspects of their business. She recognizes the importance of tailoring legal services to meet the needs of each individual client and provides legal services in a strategic and personalized atmosphere. Her practical, business-oriented approach ensures clients are always priority one. Her experience includes wage and hour issues, medical leave issues, risk management issues, drafting contracts, and handling commercial litigation, including discrimination, harassment and retaliation matters, as well as restrictive covenant and deceptive trade practice avoidance and litigation. As general counsel to multiple businesses in Central Florida, she prides herself in assisting her clients with managing risk as they grow.
Juris Doctor, Villanova University School of Law, Villanova, Pennsylvania (1999).
Bachelor of Science, with honors, Business, Cedar Crest College, Allentown, Pennsylvania (1995).
Weston Orlando, Inc. v. Fairwinds, 37 Fla.Law.Weekly 1017 (Fla. 5th DCA 2012).
Rhoden v. Risk Transfer Holdings, Inc., 83 So. 3d 743 (Fla. 5th DCA 2012).
McGregor v. Molnar, 79 So. 3d 908 (Fla. 2d DCA 2012).
McCloskey v. Gibson Construction Services, 59 So.3d 128 (Fla. 5th DCA 2011).
Davies v. Commercial Metals Company, 46 So. 3d 71 (Fla. 5th DCA 2010).
Elledge v. CSX Transportation, Inc., 23 So.3d 1184 (Fla. 1st DCA 2009).
Hobbs v. Grenelefe Assoc. of Property Owners, Inc., 18 So. 3d 1046 (Fla. 2d DCA 2009).
Ibarra v. Continucare Corporation, 985 So.2d 1117 (Fla. 3d DCA 2008).

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Richmond Sunlight » SB755: Pension de-risking; transfer of retirement annuity contracts, subject to approval of Commissioner.
§ 38.2-3111.1. Annuity contract purchased to fund retirement benefits; transfer subject to Commission approval.
"Employer" means a person doing business in or operating within the Commonwealth who employs a resident of the Commonwealth to work for wages or a salary or on commission and includes any similar entity acting directly or indirectly in the interest of an employer in relation to an employee. "Employer" does not include the Commonwealth or any of its agencies, institutions, or political subdivisions or any public body.
"Pension plan" has the same meaning ascribed to that term in § 3(2) of ERISA.
"Retirement annuity contract" means an allocated or unallocated group annuity contract that is issued or issued for delivery by an insurer to an employer or a pension plan, pension plan sponsor, or affiliate of such employer, pension plan, or pension plan sponsor, for the purpose of providing retirement benefits to employees or retirees of the employer under a defined benefit plan and that (i) is issued or issued for delivery in the Commonwealth or (ii) affects retired employees residing in the Commonwealth who are certificate holders or beneficiaries of a contract if the Commission has jurisdiction over the insurer issuing the contract.
2. The transfer to the assuming insurer is approved by the Commission, which approval shall not be granted unless the assuming insurer meets all of the requirements of § 38.2-1024.
C. If the Commission determines that an insurer has violated this section or any order or regulation adopted hereunder, the Commission, after notice and opportunity to be heard, may impose a penalty in accordance with §§ 38.2-218 and 38.2-219.
§ 38.2-3122.1. Annuity contract purchased to fund retirement benefits; protection from creditor's claims.
"Employer" means a person doing business in or operating within the Commonwealth who employs another to work for wages or a salary or on commission and includes any similar entity acting directly or indirectly in the interest of an employer in relation to an employee. "Employer" does not include the Commonwealth or any of its agencies, institutions, or political subdivisions or any public body.
"ERISA" means the federal Employee Retirement Income Security Act of 1974 (P.L. 93-406, 88 Stat. 829), as amended.
B. Any interest in or amounts payable to a participant or beneficiary from any allocated or unallocated group annuity contract issued or issued for delivery in the Commonwealth to an employer or a pension plan for the purpose of providing retirement benefits to employees or retirees of the employer under a defined benefit plan, which retirement benefits were protected under ERISA or the Federal Pension Benefit Guaranty Corporation prior to the effective date of the group annuity contract and will not be protected under ERISA or the Federal Pension Benefit Guaranty Corporation on and after the effective date of the group annuity contract, shall be exempt from the claims of all creditors of such participant or beneficiary.
C. The exemption from the claims of creditors provided under subsection B shall not apply to claims arising under a qualified domestic relations order.
D. The exemption from the claims of creditors provided under subsection B shall not apply to any claim by a creditor with respect to an annuity contract that was taken out, made, or assigned in writing for the benefit of the creditor.
E. Notwithstanding the provisions of subsection B and subject to the applicable statute of limitations, the amount of any premiums or other amounts paid for the related annuity contract that were paid with the intent to defraud creditors, with the interest thereon, shall inure to the benefit of the creditors from the proceeds of the policy, contract, or deposit.
F. The exemption provided by this section shall not apply to any protected annuity contract issued or effected during the six months preceding the date that the person claiming the exemption (i) files a voluntary petition in bankruptcy; (ii) becomes the subject of an order for relief or is declared insolvent in any federal or state bankruptcy or insolvency proceeding; or (iii) files a petition or answer seeking for himself any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or regulation.
§ 38.2-3125. Other rights of beneficiaries and assignees protected.
Since the purpose of §§ 38.2-3122, 38.2-3122.1, and 38.2-3123 is to confer additional rights, privileges, and benefits upon beneficiaries and assignees of policies, no beneficiary or assignee shall by reason of these sections be divested or deprived of or prohibited from exercising or enjoying any right, privilege, or benefit that he would have or could exercise or enjoy had §§ 38.2-3122, 38.2-3122.1, and 38.2-3123 not been enacted.
B. On and after July 1, 2018, no retirement annuity contract shall be transferred to or assumed by another insurer without the prior written approval of the Commission. The Commission shall not approve the proposed transfer or assumption unless (i) the transfer is made to an assuming insurer that has the financial strength to fulfill its obligations under the retirement annuity contract and (ii) the assuming insurer is licensed in the Commonwealth to write the class or classes of insurance applicable to its assumed obligations under the retirement annuity contract. The Commission shall find that the assuming insurer to which the retirement annuity contract is proposed to be transferred has the financial strength to fulfill its obligations under the retirement annuity contract if it maintains a rating equivalent of A or better from two or more nationally recognized rating agencies.
SENATE BILL NO. 755 AMENDMENT IN THE NATURE OF A SUBSTITUTE (Proposed by the Senate Committee on Commerce and Labor on January 22, 2018) (Patron Prior to Substitute--Senator Sturtevant) A BILL to amend and reenact § 38.2-3125 of the Code of Virginia and to amend the Code of Virginia by adding sections numbered 38.2-3111.1 and 38.2-3122.1, relating to annuity contracts purchased to fund certain retirement benefits; limits on de-risking transactions; limitation on transfers; protection from creditors' claims.
2. Will no longer be protected under ERISA or by the Federal Pension Benefit Guaranty Corporation, the Commission shall not approve the proposed transfer or assumption unless (i) the transfer is made to an assuming insurer that has the financial strength to fulfill its obligations under the retirement annuity contract and (ii) the assuming insurer is licensed in the Commonwealth to write the class or classes of insurance applicable to its assumed obligations under the retirement annuity contract. The Commission shall find that the assuming insurer to which the retirement annuity contract is proposed to be transferred has the financial strength to fulfill its obligations under the retirement annuity contract if it maintains a rating equivalent of A or better from two or more nationally recognized rating agencies.
SENATE BILL NO. 755 Offered January 10, 2018 Prefiled January 10, 2018 A BILL to amend and reenact § 38.2-3125 of the Code of Virginia and to amend the Code of Virginia by adding sections numbered 38.2-3111.1 and 38.2-3122.1, relating to annuity contracts purchased to fund certain retirement benefits; limits on de-risking transactions; limitation on transfers; protection from creditors' claims.
For a plain English description of this bill, comments, voting, tagging, etc., return to the main page for SB755.


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Data privacy is particularly important to our company. It is generally possible to use the website without providing any personal data. Should a particular person wish to make use of special services of our company online, however, it may be necessary to process personal data. Should the processing of personal data be required, and should no legal basis exist for such processing, we will obtain the prior consent of the person concerned.
The web server of pv partners AG collects a series of general data and information each time a person or an automated system accesses the website. This general data and information is stored in the log files of the server. We may record the types and versions of browsers used, the operating system used by the accessing system, the website from which an accessing system accesses our website, the sub-websites accessed via an accessing system on our website, the date and time of access to the website, an Internet protocol address (IP address), the Internet service provider of the accessing system and other similar data and information which serve to avert danger in the event of attacks on our IT systems. When using this general data and information, PV PARTNERS AG does not draw any conclusions about the person concerned. Rather, this information is needed to correctly deliver the contents of our website, to optimize the contents of our website as well as the advertising for them, to ensure the permanent functionality of our information technology systems and the technology of our website and to provide law enforcement authorities with the information necessary for criminal prosecution in the event of a cyber attack. This anonymously collected data and information is therefore evaluated by PV PARTNERS AG both statistically and with the aim of increasing data protection and data security in our company ultimately in order to ensure an optimum level of protection for the personal data processed by us. The anonymous data of the server log files are stored separately from all personal data provided by the person concerned.
- the existence of automated decision making, including profiling pursuant to Article 22(1) and (4) General Data Privacy Regulation (GDPR), and — at least in such cases — meaningful information on the logic involved, as well as the reach, and the effects of such processing aimed for, for the person concerned.
- The personal data has been gathered for such purposes, or processed in another way, for which it is no longer needed.
- The person concerned revokes his or her consent, on which he or she based the processing pursuant to Art. 6(1)(a) General Data Privacy Regulation (GDPR) or Art. 9(2)(a) General Data Privacy Regulation (GDPR), and there is no other legal basis for the processing.
- Pursuant to Art. 21(1) General Data Privacy Regulation (GDPR), the person concerned is filing an opposition to the processing, and there are no overriding justified grounds for the processing, or the person concerned is filing an opposition against the processing pursuant to Art. 21(2) General Data Privacy Regulation (GDPR).
- The personal data has been processed illegitimately.
- The deletion of the personal data is necessary in order to fulfil a legal obligation in accordance with EU law or the law of the Member States to which the party responsible is subject.
- The personal data has been gathered in regard to services offered in the information society pursuant to Art. 8(1) General Data Privacy Regulation (GDPR).
- The accuracy of the personal data is disputed by the person concerned, and in fact for a period of time which enables the party responsible to check the accuracy of the personal data.
- The processing is illegitimate, and the person concerned refuses to have the personal data deleted, and instead demands that the use of the personal data be restricted.
- The party responsible no longer requires the personal data for the purposes of the processing, the person concerned does, however, require it to assert, exercise or defend legal claims.
- The person affected has filed an opposition against the processing of the data pursuant to Art. 21(1) General Data Privacy Regulation (GDPR), and it has not yet been established whether the justified grounds of the party responsible outweigh those of the affected person.
PV PARTNERS AG has integrated the Google Analytics component (with anonymisation function) on this website. Google Analytics is a web analytics service. Web analysis is the collection, collection and evaluation of data on the behavior of visitors to Web pages. A web analysis service collects, among other things, data on which web page a person concerned came to a web page from (so-called referrer), which subpages of the web page were accessed or how often and for how long a subpage was viewed. A web analysis is mainly used to optimize a web site and for cost-benefit analysis of Internet advertising.
Google Analytics places a cookie on the information technology system of the person concerned. What cookies are has already been explained above. By setting the cookie, Google is enabled to analyse the use of our website. Every time one of the individual pages of this website is called up, which is operated by the data controller and on which a Google Analytics component has been integrated, the Internet browser on the information technology system of the person concerned is automatically prompted by the respective Google Analytics component to transmit data to Google for the purpose of online analysis. As part of this technical process, Google obtains knowledge of personal data, such as the IP address of the person concerned, which serves Google, among other things, to trace the origin of visitors and clicks and subsequently enable commission statements.
Cookies are used to store personal information, such as access time, the location from which access came and the frequency of visits to our website by the person concerned. Whenever you visit our website, this personal data, including the IP address of the Internet connection used by the person concerned, is transmitted to Google in the USA. This personal data is stored by Google in the USA. Google may disclose personal data collected through the technical process to third parties.

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Before HENRY, HOLLOWAY, and LUCERO, Circuit Judges.
Marilynn Spielman, who suffers from scleroderma (a rheumatic disease) and esophageal dysmotility as a related condition, was terminated from her job as a nurse consultant at Blue Cross and Blue Shield of Kansas, Inc. ("Blue Cross") shortly after returning from leave. She filed this action against Blue Cross alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213. Ms. Spielman contended that Blue Cross failed to reasonably accommodate her disability by refusing to allow her to work from home and subsequently discharging her. The district court granted summary judgment to Blue Cross after reasoning that Ms. Spielman's poor work performance constituted a legitimate, nondiscriminatory reason for Blue Cross's decision not to accommodate her request to work at home and for her subsequent termination. Ms. Spielman now challenges that ruling. We have jurisdiction under 28 U.S.C. § 1291. For the reasons set forth below, we affirm.
The following facts are undisputed. Ms. Spielman began working for Blue Cross on August 1, 1996 as a part-time employee. When hired, Ms. Spielman had scleroderma and esophageal dysmotility as a related condition.
In November 1996, Ms Spielman became a full-time nurse consultant. In that capacity, she performed compliance review activities in accordance with standards set under Blue Cross's contract with a state agency, the Kansas Social and Rehabilitative Services ("SRS"). Under Blue Cross's contract with SRS, Ms. Spielman's unit was to perform one hundred consumer reviews and approximately fifty provider reviews per quarter. Ms. Spielman, one of several individuals in her unit, shared a balanced caseload with her unit members.
Ms. Spielman's immediate supervisor was Becky Stauffer, and Mary Kennedy was her "in-line" supervisor. In April 1997, Ms. Stauffer met with Ms. Spielman to discuss Ms. Spielman's comparatively low case closure rates. At the time, Ms. Spielman had the lowest percentage of cases closed in comparison with her unit colleagues. In May 1997, she had the highest percentage of cases over six months old: Ms Spielman had seven such cases. There were four other analysts with cases over six months old, but each analyst had only one such case.
Blue Cross administered Ms. Spielman's first proficiency review on June 1, 1997. The review indicated that Ms. Spielman met the job's requirements. The review also contained several suggestions of areas to improve, including, "[t]imeliness of completing consumer and provider reviews" and "[i]mprov[ing] knowledge of the consumer review process." Aplt's App. at 59. Under the section titled "Actions to be taken toward achieving goals," the review stated: "Develop time management skills. Consider class on time management." Id. Finally, under the section regarding goals for the next six months was the following: "Improve percentage of provider reviews that are closed in 6 months and consumer reviews that are closed in one month." Id. Ms. Spielman, along with three other team members, received a three percent proficiency raise, which was the lowest percentage received.
Over the next few months, Ms. Stauffer and Ms. Kennedy continued discussions and followed up with correspondence concerning Ms. Spielman's completion of her assignments and her time management skills. On September 10, 1997, Ms. Stauffer requested that Ms. Spielman meet with Ms. Kennedy on September 16, 1997 to discuss Ms. Spielman's performance. Prior to the meeting, Ms. Stauffer compared Ms. Spielman's completion rate with other members of the team and determined that Ms. Spielman had continued to achieve the lowest performance level in the unit.
At the meeting, Ms. Spielman acknowledged her poor case closure rates. She indicated that she had spent significant time helping a co-worker to the detriment of her own work. Ms. Stauffer and Ms. Kennedy told Ms. Spielman she should be concentrating on her own work, not that of another employee. Ms. Spielman indicated she was confident she soon would be able to complete her assignments.
In conjunction with the meeting, Ms. Stauffer and Ms. Kennedy drafted a performance improvement plan to provide guidelines for Ms. Spielman. The plan noted that Ms. Spielman "had 6 provider cases which were opened more than 6 months ago and has 3 more that will be open more than 6 months by the end of the month." Aple's Supp. App. at 152. On several occasions, Ms. Spielman's supervisors asked Ms. Spielman to review the plan and to provide them with feedback.
The day after the meeting, Ms. Spielman requested "intermittent" leave as a result of her scleroderma from October 1, 1997 through October 1, 1998. Id. at 153. She explained that the purpose of the leave was for "physician appointments, diagnostic testing, etc." Id. Ms. Kennedy signed the form on September 24, 1997. Id..
On October 6, 1997, Blue Cross notified Ms. Spielman that she was eligible for leave under the Family and Medical Leave Act (FMLA), 42 U.S.C. §§ 2601-2654, and that such leave would be counted against her annual FMLA leave entitlement. Ms. Spielman first spoke with Ms. Stauffer about her application for FMLA leave in early October 1997. When Ms. Spielman first applied for FMLA leave, she was unaware that she was going to be hospitalized. Ms. Spielman took continuous leave from November 20, 1997 to January 19, 1998. During this period, Ms. Spielman was also working on her cases at home.
In December 1997, Ms. Stauffer sought to have the case files that Ms. Spielman had taken home returned to work so that activity on them could resume. Some problems occurred in getting this accomplished, but the files were ultimately returned in early January 1998.
Ms. Spielman was released to return to work on January 19, 1998. On that date, Ms. Spielman's supervisors advised her that the case files needed to remain at work. Ms. Spielman requested to be allowed to do some of her work at home. Ms. Stauffer and Ms. Kennedy denied the request. They explained that Ms. Spielman did not meet the guidelines established under Blue Cross's "Working@ Home Policy" because she had six provider cases that were beyond the six-month completion deadline. Of these six cases, all were overdue as of November 1, 1997, three weeks before Ms. Spielman took her two months of FMLA leave.
On February 25, 1998, pursuant to the ADA, Ms. Spielman made a formal request for an accommodation to work at home. At the time, Ms. Spielman was on intravenous feeding twelve hours a day, from approximately 6:00 p.m. to 6:00 a.m. On March 2, 1998, Blue Cross denied Ms. Spielman's request. The response recommended that "[a]t the expiration of FMLA, [Ms. Spielman] be given an additional two weeks to seek another position not as an ADA required accommodation, but as an alternative to immediate termination due to her inability to perform the current position." Aplt's App. at 73. Ms. Spielman did not apply for any other position.
Ms. Spielman's last day of work was April 3, 1998. Ms. Spielman had not completed all of her work on the cases assigned to her at this time, and therefore, these cases were assigned to other staff. In June 1998, after Ms. Spielman's employment with Blue Cross was terminated, Ms. Spielman filed for long-term disability benefits. In the prognosis section of Ms. Spielman's disability application, Ms. Spielman's physician stated that he did not think Ms. Spielman would be able to work. Ms. Spielman has continuously remained on disability benefits because her doctor has not released her to work.
II. DISCUSSION On appeal, Ms. Spielman challenges the district court's grant of summary judgment to Blue Cross on both her failure to accommodate and her wrongful termination claims. As to her failure to accommodate claim, she maintains that a reasonable factfinder could conclude that Blue Cross's reasons for not allowing her to work from home were pretextual and that the denial of her request constituted unlawful discrimination on the basis of her disability. She also contends that a reasonable factfinder could conclude that Blue Cross terminated her because of her disability.
The ADA defines discrimination to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A). The statute thus establishes a cause of action for disabled employees whose employers fail to reasonably accommodate them. See, e.g., Templeton v. Neodata Servs., Inc., 162 F.3d 617 (10th Cir. 1998) (assessing employee's claim that employer failed to reasonably accommodate her). "However, an employer is not required to always provide the employee with the best possible accommodations or in the specific manner the employee requested." Selenke v. Medical Imaging of Colo., 248 F.3d 1249, 1261 (10th Cir. 2001) (citing 29 C.F.R. § 1630.2(p)(1)). An employer retains "broad discretion in determining which alternative accommodation should be provided." Id. (citing 29 C.F.R. § 1630.9).
In this case, Ms. Spielman contends that she was disabled under the ADA, and that Blue Cross's allowing her to work at home would have constituted a reasonable accommodation under the ADA. She observes that she requested this accommodation twice--when she returned to work on January 19, 1998 and when she filled out a form requesting this accommodation on February 25, 1998.
According to Ms. Spielman, there are genuine factual questions as to whether allowing her to work at home constituted a reasonable accommodation. She points to her own testimony that Blue Cross's Working@Home policy did not become effective until she and another team member approved it in February 1998. "Thus, the jury could reasonably find that the policy was not in effect on January 19, 1998, when [she] informally requested to work at home." Aplt's Br. at 18. Additionally, Ms. Spielman contends that Blue Cross had allowed her to work at home prior to January 19, 1998. She adds that she disputed Blue Cross's contention that she had failed to return work files from her home.
In response, Blue Cross does not contest the district court's finding that Ms. Spielman is disabled under the ADA. However, Blue Cross does argue that it was not required by the ADA to grant Ms. Spielman's requests to work at home.
Most jobs in organizations public or private involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee's performance. This will no doubt change as communications technology advances, but is the situation today. Generally, therefore, an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home. . . . No doubt to this as to any generalization about so complex and varied an activity as employment there are exceptions, but it would take a very extraordinary case for the employee to be able to create a triable issue of the employer's failure to allow the employee to work at home.
Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538, 544-45 (7th Cir. 1995); see also Kvoriak v. Maine, 259 F.3d 48, 54-58 (1st Cir. 2001) (affirming the grant of summary judgment to an employer on a failure to accommodate claim on the grounds that the essential function of the position of a claims adjudicator could not be performed at home). In contrast, the Ninth Circuit has stated that "[w]orking at home is a reasonable accommodation when the essential functions of the position can be performed at home and a work-at-home arrangement would not cause undue hardship for the employer." Humphrey v. Memorial Hosps. Assoc., 239 F.3d 1128, 1136 (9th Cir. 2001) (citing EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, FEP (BNA) 405:7601, at 7626 (March 1, 1999)); see also Langon v. Department of Health and Human Servs., 959 F.2d 1053, 1060-61 (D.C. Cir.1992) (holding that an employer must consider requested accommodation of working at home). This circuit has not yet addressed this issue.
In this case, we need not resolve the question of whether, as a general rule, at-home work may constitute a reasonable accommodation under the ADA. Blue Cross introduced evidence establishing that it had promulgated a policy regarding working at home and Ms. Spielman did not meet the criteria for working at home under this policy (an 80% performance rate for open cases). Moreover, as further discussed below in relation to Ms. Spielman's wrongful termination claim, Blue Cross's evidence establishes that, there were substantial difficulties with Ms. Spielman's work performance over an extended period of time. In light of these difficulties, even assuming that working at home may constitute a reasonable accommodation under the ADA, a reasonable factfinder could not have concluded that allowing Ms. Spielman to work at home constituted a reasonable accommodation in these circumstances. Cf. Kvoriak, 259 F.3d at 54-58 (rejecting a reasonable accommodation claim based upon the particular facts of the case). Accordingly, we conclude that the district court properly granted summary judgment on Ms. Spielman's failure to accommodate claim.
Ms. Spielman also contends that a genuine issue of material fact exists as to her wrongful termination claim based on 42 U.S.C. § 12112(a). The facts underlying this contention are closely related to her failure to accommodate claim.
"To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate (1) that [she] is disabled within the meaning of the ADA; (2) that [she] is qualifiedwith or without reasonable accommodation; and (3) that [she] was discriminated against because of [her] disability." Tate v. Farmland Indus., 268 F.3d 989, 992 (10th Cir. 2001) (quotation marks and citations omitted). In order to establish the third element, the plaintiff must "present some affirmative evidence that disability was a determining factor in the employer's decision." Morgan v. Hilti, 108 F.3d 1319, 1323 (10th Cir. 1997). A plaintiff may demonstrate pretext by showing "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Bullington v. United Air Lines, Inc.,186 F.3d 1301, 1317 (10th Cir. 1999).
Here, Blue Cross has offered such a legitimate, nondiscriminatory reason for Ms. Spielman's discharge. It contends that her poor work performance justified the action. In response, Ms. Spielman asserts that the jury might simply not believe that she was performing poorly when Blue Cross decided to terminate her employment. She points to her June 1, 1997 proficiency review, where she was deemed to be "meeting job requirements." Aplt's App. at 58-60. She further points out that on June 1, 1997, she had seven cases over six months old, while in January 1998, that number had been reduced to six.
Ms. Spielman also questions the timing and sequence of events leading up to her termination. Ms. Spielman contends that since the time she voiced a complaint about Ms. Stauffer to Blue Cross's EEO coordinator, Ms. Hill, in August 1997, Ms. Stauffer was biased when evaluating Ms. Spielman's work performance.
Finally, Ms. Spielman questions the timing of her discharge in relation to her request for an accommodation to work at home. Ms. Kennedy's decision to discharge Ms. Spielman was made, at the latest, by Blue Cross's ADA committee on February 25, 1998, just over a month after she requested to work from home. Ms. Spielman maintains a jury could infer a discriminatory animus from the close proximity of the two events.
Blue Cross counters that Ms. Spielman's characterization of her June 1, 1997 performance review is inflated and taken out of context. Although she was deemed to be "meeting" her job requirements, that evaluation was but one amidst several criticisms. The report noted she needed to improve both the timeliness of the completion of reviews and her knowledge of the process. Other suggestions were offered, including specific performance goals and enrollment in time management classes. In addition, Blue Cross points to documentation of other performance issues predating the proficiency review.
We are persuaded by Blue Cross's arguments. As to the suggestion that the sequence of events leading up to her discharge is questionable, Ms. Spielman can provide no support of her suggestion that Ms. Stauffer evaluated Ms. Spielman negatively. The January 18, 1998 decision to reject her request to work at home is supported by the terms of the policy. Finally, the ADA Committee's determination to deny Ms. Spielman's request to work from home and its decision to discharge Ms. Spielman were based upon her "serious performance issues." Aple's Supp. App. at 72-73.
We agree with the district court that the record contains no evidence from which a reasonable factfinder could conclude that defendant's stated reasons for terminating plaintiff's employment were pretextual. See Selenke, 248 F.3d at 1261. Ms. Spielman's poor work performance was well-documented. Ms. Spielman was unable to overcome any of the shortcomings pointed out during her proficiency evaluations. The record indicates these problems predated any discussion with the EEO Coordinator in August 1997. Ms Spielman cannot demonstrate that Blue Cross discriminated against her when it decided to terminate her in March 1998.
For the reasons set forth above, we AFFIRM the district court's grant of summary judgment to Blue Cross on all of Ms. Spielman's claims.
1. An employer need not make a reasonable accommodation that would cause "an undue hardship." Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1087 (10th Cir. 1997) (quoting 42 U.S.C. § 12112(b)(5)(A)). "The employer . . . bears the burden of persuasion on whether a proposed accommodation would impose an undue hardship." Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir. 1997). "Undue hardship" means "an action requiring significant difficulty or expense" when considered in light of various factors. 42 U.S.C. § 12111(10)(A). The factors to be considered in determining whether an accommodation would cause an employer undue hardship are, among others: the nature and cost of the accommodation; the number of persons employed by the company; the financial resources of the company; and the impact of the accommodation upon the operation of the company. See 42 U.S.C. § 12111(10)(B).


You asked about the “castle doctrine,” how it acquired its name, how many states have adopted bills on it, and any information about its effect in states that have adopted it.
In recent years, a number of states have adopted or considered bills referred to as “castle doctrine” bills. These bills expand the circumstances where a person can use self-defense without retreating and contain other provisions, such as immunity for someone who legally uses force in self-defense. A Washington Post article states that the Florida bill was given the name the “castle doctrine” by Florida lobbyist Marion P. Hammer, a former National Rifle Association president (“Florida Gun Law to Expand Leeway for Self-Defense,” Washington Post, April 26, 2005). These bills have also been called “stand your ground” bills.
We could not find any studies on the impact of these laws. A June 11, 2006 Orlando Sentinel article stated that it was too early to see the impact of Florida's new law, which took effect October 1, 2005, and there were no statewide statistics on the number of self-defense claims before or after that date. The newspaper found 13 people who used self-defense in central Florida over five months (resulting in six deaths and four people wounded). In the investigation of the 13 people who used self-defense, three were charged with a crime, five cleared, and the others were still under review. The newspaper stated that police and prosecutors handled investigations of these cases in a range of ways. A copy of this article is attached (“Cases Involving the New Deadly Force Law are Handled in a Broad Range of Ways,” Orlando Sentinel, June 11, 2006).
The sections below describe provisions in the “castle doctrine” bills and Connecticut's laws on self-defense.
We found 15 states that adopted a “castle doctrine” bill in the last two years. Some of these expanded the circumstances where force could be used in self-defense without a duty to retreat, some adopted provisions on criminal or civil immunity for legally using force in self-defense, and some contained all of these provisions. In general, the bills contained at least one of the following provisions.
1. They remove the duty to retreat from an aggressor using force or deadly force under certain circumstances. The states vary in how broadly this applies. For example, Alaska expands the types of premises where a person does not have a duty to retreat when using force in defense of self to include any place the person resides, a place where he is a guest, and his workplace. The Alaska law also applies to protecting a child or member of the person's household, regardless of location.
2. Kansas removes the duty to retreat from its use of force statutes and adds a general statement that a person not engaged in illegal activity who is attacked in a place where he has a right to be has no duty to retreat and has the right to stand his ground and meet force with force.
3. Some states add a legal presumption about when a person is justified in using force against intruders. For example, Florida added a presumption that a person using force had a reasonable fear of death or serious injury to himself or another if (a) the person against whom he used force was illegally and forcefully entering a dwelling or occupied vehicle, was in the process of doing so, or removed or was attempting to remove a person against his will and (b) the person using force knew or had reason to believe this was occurring. These presumptions, which vary by state, have exceptions and do not apply under specified circumstances, such as when (a) the person force is used against had a right to be in the dwelling or was a lawful resident, (b) the person using force was engaged in illegal activity, or (c) the person force is used against is a law enforcement officer performing his duties who identified himself or the person using force knew or should have known the person was an officer.
4. Some states, such as Florida, include a presumption that a person who illegally or forcefully enters or attempts to enter a dwelling or occupied vehicle is presumed to be doing so with intent to commit an illegal act involving force or violence.
5. Many of the bills provide immunity from criminal prosecution for a person who legally uses force or deadly force. This can apply to arrest, detention in custody, charging, and prosecuting. Some also specify that law enforcement is authorized to use standard procedures to investigate but cannot arrest the person unless there is probable cause that the use of force was unlawful.
6. Many also provide immunity from civil actions for a person who is justified in using force or deadly physical force. They require a court to award reasonable attorney's fees, costs, compensation for lost income, and expenses if the court finds that the person acted lawfully and is immune from prosecution.
Under Connecticut law, a person may use physical force (self defense): to protect himself or a third person, his home or office, or his property; to make an arrest or prevent an escape; or to perform certain duties (for example, a corrections officer may use force to maintain order and discipline, a teacher to protect a minor, and a parent to discipline a child). A person cannot use physical force to resist arrest by a reasonably identifiable peace officer, whether the arrest is legal or not (CGS § 53a-23).
Self defense or justification is a defense in any prosecution (CGS § 53a-16). The person claiming justification has the initial burden of producing sufficient evidence to assert self-defense. When raised as a defense at a trial, the state has the burden of disproving self defense beyond a reasonable doubt (CGS § 53a-12).
A person is justified in using reasonable physical force on another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force. The defender may use the degree of force he reasonably believes is necessary to defend himself or a third person. But deadly physical force cannot be used unless the actor reasonably believes that the attacker is using or about to use deadly physical force or inflicting or about to inflict great bodily harm.
3. obeying a demand that he not take an action he is not otherwise required to take.
Lastly, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the person to use physical force, (2) use of such force was the product of a combat by agreement not specifically authorized by law, or (3) he is the initial aggressor (unless he withdraws from the encounter, effectively communicates this intent to the other person, and the other person continues to or threatens to use physical force) (CGS § 53a-19).
A person who possesses or controls property or has a license or privilege to be in or on it is justified in using reasonable physical force when and to the extent he reasonably believes it to be necessary to stop another from trespassing or attempting to trespass in or upon it. The owner can use deadly physical force only (1) to defend a person as described above, (2) when he reasonably believes it is necessary to prevent the trespasser from attempting to commit arson or any violent crime, or (3) to the extent he reasonably believes it is necessary to stop someone from forcibly entering his home or workplace (and for the sole purpose of stopping the intruder) (CGS § 53a-20).
A person is justified in using reasonable physical force when and to the extent he reasonably believes it necessary to (1) prevent attempted larceny or criminal mischief involving property or (2) regain property that he reasonably believes was stolen shortly before.
When defending property, deadly force may be used only when it is necessary to defend a person from the use or imminent use of deadly physical force or infliction or imminent infliction of great bodily harm as described above (CGS § 53a-21).
In 1984, the Connecticut Supreme Court articulated the test for determining the degree of force warranted in a given case. Whether or not a person was justified in using force to protect his person or property is a question of fact that focuses on what the person asserting the defense reasonably believed under the circumstances (State v. DeJesus, 194 Conn. 376, 389 (1984)). The test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the defendant's perspective; this is the subjective component. The jury must then decide whether the defendant's belief was reasonable (DeJesus at 389 n.13).