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Circuit Roundup

1st Circuit
Forced Resignation Voids Case
When Nestor M. Torrech-Hernandez's boss at General Electric Co. told the 50-year-old plant manager that he was in danger of being fired for poor performance, the boss also gave Torrech-Hernandez the option to resign.

Torrech-Hernandez did so and then sued for age discrimination, claiming GE forced him out and replaced him with a man in his early 30s.

Torrech-Hernandez's complaint stated that the president of his plant made several comments indicating Torrech-Hernandez would be fired soon because he was old. According to the complaint, Torrech-Hernandez's boss twice told him he lacked the energy he once had.

The district court granted summary judgment on the ADEA claim, holding that Torrech-Hernandez failed to establish a prima facie case of age-based discrimination.

In March, the 1st Circuit affirmed the decision, finding that while there may have been evidence of age bias by the plant president, Torrech-Hernandez chose to resign. The court said pressure does not render a resignation involuntary, and Torrech-Hernandez could have decided to stay at his job and then challenged any discharge.

6th Circuit
If the URL Fits ...
Shoe retail giant DSW Shoe Warehouse Inc. filed a lawsuit in the U.S. District Court for the Southern District of Ohio May 11 alleging that online shoe retailer Inc. and its agents have infringed DSW service marks. The suit seeks an injunction and damages resulting from the misuse of those marks.

The complaint charges service mark infringement, false designation of origin, false advertising, unfair competition and deceptive trade practices.

The suit states that the name DSW is being used in multiple URLs, along with DSW store photographs, in an effort to mislead consumers into believing they are on a DSW-related Web site. The site then links customers to

Some of the domain names allegedly being used to lure customers are, and Part of DSW's lawsuit asks that these domain names be transferred to DSW. The suit also names Commission Junction, a provider of online advertising, as a defendant, claiming the company is providing affiliate links for and on behalf of to Web sites at domain names that include the letters DSW.

7th Circuit
Yelling Back is Not Harassment
On March 14, the 7th Circuit dismissed a discrimination lawsuit, finding that yelling is not harassment. In Atanus v. Perry, Susanne Atanus sued her supervisor Stephen Perry and the General Services Administration (GSA) over a 10-day suspension for improper behavior. GSA is an acquisition agency for the federal government. Atanus alleged discrimination based on race, color, religion, gender, age and national origin. She also sued for harassment based on instances that Perry yelled at her.

The district court granted summary judgment for the defendants, and Atanus appealed. The 7th Circuit affirmed the decision, stating there was no discrimination and there were valid reasons for the supervisor's actions. The court found sufficient evidence that Atanus instigated friction between people and was overtly rude, insubordinate, loudly aggressive toward others and so disruptive that security had to be consulted on several occasions.

The court also found that the times her supervisor harassed her resulted from situations in which she had been insubordinate, rude, loud and insulting toward Perry, which led him to get angry and yell at her.

8th Circuit
Employer Wins ADA Claim
In March, the 8th Circuit affirmed a lower court's ruling against an employee who filed an ADA claim based on being fired after she was denied medical leave due to diabetes.
Jeanette Brannon previously had taken two leaves, after which she missed 40 out of 77 work days. She requested a third leave as a "reasonable accommodation" under the ADA, but her employer, a supplier of roofing industry products, denied the request and terminated her for excessive absences.

The district court granted summary judgment to the employer, Luco Mop Co., saying that Brannon failed to show her supervisor proof that the third leave would result in her returning to work with consistent attendance.

The 8th Circuit affirmed the decision, adding that consistent attendance is a crucial requirement to avoid disciplinary action, and an employer is only required to grant a leave if it will result in reasonable attendance. Because the requested leave was not predicted to resolve the attendance problem, it was not a reasonable accommodation, and the employer was not required to continue the employment.

Managing Editor

Yesenia Salcedo

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