6th cir. 1989

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6th cir. 1989

6th cir. 1989

A nontenured teacher was not rehired after he counseled a number of students instead of referring them to the university's professional counselors; overemphasized sex in a health course; counseled students with his office door closed; and belittled other staff members in discussions with students.

The court found that the teacher's disputes with colleagues about course content were not matters of public concern, and his disputes involved him as a teacher, not as a private citizen. The university's interest as an employer overcame any free speech interest the teacher may have had.

United States Court of Appeals,sixth Circuit, 863 F.2d 1266 (6th Cir. 1989)

The court held that "we do not conceive academic freedom to be a license for uncontrolled expression at variance with established curricular contents and internally destructive of the proper functioning of the institution. Clark v. Holmes is distinguished by Lindsey v. University of Georgia faculty created a questionnaire to be filled out regarding different aspects of the University of Georgia.

The questionnaire contained no information showing its source but posted where the anonymous questionnaire should be sent.

When the school found out about the questionnaire, the police investigated whether university facilities had been used in violation of law in printing the document. One of the professors responsible for creating and administering the questionnaire was terminated. The court held that a professor distributing a questionnaire to solicit views of faculty on broad range of issues constituted protected speech under First Amendment, noting that the issues were matters of public concern.

A faculty member in the s told her freshmen students, "I am an unwed mother" and also discussed the Vietnam War and military draft. After her contract was not renewed, she sued the university, alleging an infringement on her First Amendment rights.

The court found that the university based it decision not on the faculty member's statements, but because "it considered her teaching philosophy to be incompatible with the pedagogical aims of the university. Hetrick v. Martin is distinguished by Hardy v.

Jefferson Community College, F. A professor at a community college presented a lecture on language and social constructivism, where the students examined how language is used to marginalize minorities and other oppressed groups in society. As result of the ensuing fall-out, the professor was never asked to teach the class again and complained that the school had retaliated against him for exercising his rights of free speech and academic freedom when teaching the class.

The Court of Appeals held that: 1 the discussion of the terms involved matters of public concern, and was protected by First Amendment and 2 instructor's interest in use of speech was not outweighed by interest of college officials in regulating his speech.

Martin is easily distinguishable [from this case] because the district court had made significant findings of fact related to the administration's dissatisfaction with Hetrick's teaching methods and ability. The court upheld the dismissal of an economics instructor, holding that his use of profane language in a college classroom did not fall within the scope of First Amendment protection because it did not constitute speech on matters of public concern, and the language in question "was not germane to the subject matter in his class and had no educational function.

The court rejected the free speech claim of a faculty member whose contract was not renewed after he rejected administration requests to lower the academic standards he applied to his students, concluding that universities must have the freedom to set their own standards on "matters such as course content, homework load, and grading policy" and that "the first amendment does not require that each nontenured professor be made a sovereign unto himself.

Tenured professor of education told her students "that teaching and learning cannot be evaluated by any standardized test" and refused to administer the university's standardized course evaluation forms for her classes.

After being denied a pay increase because of this refusal, the professor argued that by forcing her to use the evaluation forms, the university interfered arbitrarily with her classroom method, compelled her speech, and violated her right to academic freedom.

The court held that although the professor "may have a constitutionally protected right under the First Amendment to disagree with the University's policies, she has no right to evidence her disagreement by failing to perform the duty imposed upon her as a condition of employment.

Several high school students were suspended for wearing black armbands to protest the Vietnam War. Although this case arose at a public high school, it is likewise applicable to public institutions of higher education. The Court held that students at public schools do not leave their First Amendment rights at the schoolhouse gate and can express opinions orally and in writing, as well as symbolically, as long as it does not "materially and substantially" disrupt classes or other school activities.

The Court held that "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teacher and students," and students "are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligations to the state.

First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. Tucker, U. The college classroom with its surrounding environs is peculiarly the "marketplace of ideas," and we break no new constitutional ground in reaffirming this nation's dedication to safeguarding academic freedom.

One student did not comply when asked to take down the banner and was suspended by the principal.Federal government websites often end in. The site is secure. This is archived content from the U. Department of Justice website. The information here may be outdated and links may no longer function. Please contact webmaster usdoj. Subsection 4 of Section sets out the offense of filing a false bankruptcy claim. A "claim" is a document filed in a bankruptcy proceeding by a creditor of the debtor.

It is sometimes also called a "proof of claim. A "false" claim is one that is known by the creditor to be factually untrue at the time the claim is filed.

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United States v. OvermyerF. A claim can be asserted by a creditor whether or not it is reduced to judgment, whether the claim is liquidated, unliquidated, fixed, contingent, mature, unmatured, disputed, undisputed, legal, equitable, secured or unsecured. ConneryF. Since the falsity of a claim, in most cases, is obvious, the key issue frequently becomes what was the defendant's state of mind at the time of the filing of the claim. Good faith is a complete defense to this charge.

The filing of a false claim is not a crime where there was a good faith belief in its accuracy. Subsection 4 provides: A person who The elements of a false claim violation are: that bankruptcy proceedings had been commenced; that defendant presented or caused to be presented a proof of claim in the bankruptcy; that the proof of claim was false as to a material matter; and that the defendant knew the proof of claim was false and acted knowingly and fraudulently.

A proof of claim is not false merely because it may be inaccurate or erroneous in any or all respects.Humana Inc. The only business purpose of Humana Holdings was to assist in the capitalization of Health Care Indemnity. Health Care Indemnity, the captive insurance subsidiary of Humana Inc.

The remainder represented Humana Inc. The Commissioner, in accordance with the position outlined in Rev. On August 14,the tax court issued a memorandum opinion upholding the Commissioner's determination.

Following a petition for reconsideration, the tax court withdrew that opinion. On January 26,the tax court, after review by the entire nineteen member court, upheld the Commissioner.

Commissioner, 88 T. The opinion of the tax court contains a twelve member majority written by Judge Goffe, an eight member concurrence written by Judge Whitaker and joined by seven members of the majority, a two member concurring opinion written by Judge Hamblen and joined by Judge Whitaker, and a seven member dissent written by Judge Korner.

The twelve member majority relied on its prior decisions in Carnation Company v. Commissioner, 71 T. Commissioner, 84 T. The majority reasoned that there was no insurance because the risks of loss were not shifted from Humana Inc.

In so holding, the majority specifically rejected adoption of the economic family concept argued by the Commissioner.

The tax court noted that the second issue, the brother-sister issue -- whether the sums charged by Humana Inc. The court claimed that the issue had been decided in favor of denying the premiums as deductible in two other cases, Stearns-Roger Corp. United States, F. United States, 8 Cl. The majority stated that Stearns-Roger and Mobil extended the rationale of Carnation and Clougherty to the "brother- sister" factual pattern.

In holding that Humana Inc. Plotkin and Mr.

851. False Claims—18 U.S.C. § 152(4)

Stewart stated:. Commercial insurance is a mechanism for transferring the financial uncertainty arising from pure risks faced by one firm to another in exchange for an insurance premium The essential element of an insurance transaction from the standpoint of the insured e.

Humana and its hospital networkis that no matter what perils occur, the financial consequences are known in advance. A firm placing its risk in a captive insurance company in which it holds a sole. True insurance relieves the firm's balance sheet of any potential impact of the financial consequences of the insured peril.

The majority also declared that payments to a captive insurance company are equivalent to additions to a reserve for losses and, therefore, not deductible under the Internal Revenue Code section as ordinary and necessary business expenses paid or incurred during the taxable years in issue. Stearns-Roger Corp. The eight member concurrence agreed with the majority's conclusion on both issues but felt uncomfortable with the majority's reliance on the expert witnesses, Dr.Lawrence J.

Kamenetzky, Calvin Williams, E. Frank P. Plaintiff EEOC's claim in this Title VII case 1 was based on both disparate treatment and disparate impact, the former requiring an intentional racial discrimination finding. The district court found no basis for concluding that Atlas had intentionally discriminated against potential black office and clerical employee applicants, F. The focus in this case is upon the use of the Wonderlic Personnel Test in the screening of such job applicants, and the emphasis on appeal is whether the district court committed error in rejecting EEOC's contentions regarding the disparate impact theory of liability in light of the evidence.

There are several significant factors that bear upon plaintiff's contention in the challenge to the Atlas employment practices in question. The first is that the district court found "some evidence that the test was administered in a biased fashion. Wonderlic's recommendations, for the positions in question even though a score of 21 for typists, 19 for file clerks, and 18 for telephone operators was suggested.

As a consequence of choosing this high initial cut-off point, almost three-fourths of white applicants and well over 90 percent of black applicants failed to meet this criterion. An expert who testified for Atlas stated that this test methodology favored the white candidate by at least a three to one ratio.

Finally, all of the experts who testified in the case agreed that statistical evidence, if evaluated fromwhen the Wonderlic test was first utilized, untilthe date of hearing, would reflect a significant disparate impact. Atlas contended that the proper period for analysis was throughand produced expert witnesses who opined that the data for this period lacked statistical significance. The district court concluded that whether or not these significant factors were taken into account, plaintiff had failed to produce adequate evidence that a pattern or practice of racial discrimination was shown.

It is clear, however, that at least one black applicant did "pass" the test and was not hired. Furthermore, the district court noted that on July 20,a black applicant, Kendrick, scored a 22 and was not hired while a white employee, Hutson, "scored only 21 [on an August 16, test and] Inwhite employee Dickerson took the test "two weeks after she was hired. Inthe same thing happened; two of eight whites hired scored 20 or less on the Wonderlic test.

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Inblack applicant Davis scored a 23 but was not hired. Later, a white applicant who scored 23 was hired. Ina black applicant who scored 20 was not hired and a white applicant who scored 19 was hired. Two whites were hired in with scores less than 25, and the district court noted that "it is unfortunate that Atlas did not seize upon the opportunity [in that same year] to hire this highly intelligent black applicant," Beverly Wilson, who applied during July and scored 25, equal to another white who was hired.

Two other white applicants who scored less than 25 were hired in and in respectively. Three of four black applicants rejected in were not even tested. All this yearly information was found as a fact by the district court, who summarized by finding that 29 whites were hired who scored less than 25 on the Wonderlic, four with scores less than 20, while seven blacks scored better than these four white employees but were not hired.

We believe that these factual findings and other proof presented were sufficient to show that EEOC made out a prima facie case of disparate impact as indicated by the district court, particularly in view of the fact that not a single black person was hired to work in the office.

In considering further whether Atlas rebutted the case made by plaintiff, the district court concluded only that in a clerical workforce as small as the one at Atlas, "any attempt to validate the Wonderlic test We disagree with the conclusion reached by the district court that the relevant statistical data and other related information, noted by the court itself, was statistically meaningless whether or not the test in question was attempted to be validated by a "formal study.

Under the circumstances, we are left with a definite and firm conviction that the conclusion reached upon a weighing of the relevant factors was in error.

See Anderson v. City of Bessemer City, U. Raymark Industries, Inc. There is no fixed and firm rule regarding criterion for analyzing studies related to the cognitive ability test relied upon by Atlas. They must generally be evaluated by examination of "important elements of work behavior that comprise or are relevant to the job. Moody, U.Defendant-appellant Jane Wood appeals from the district court's order granting summary judgment in favor of plaintiff-appellee United States, F.

The district court held that, since the Government was a third-party beneficiary to a property settlement between Ms. Wood and her then-husband, it therefore was entitled to judgment against Wood for breaching her promise to apply the proceeds of the sale of her marital residence to a federal tax lien against her former husband.

For the reasons that follow, we affirm the judgment of the district court; however, we credit Wood for certain funds held by the Jefferson County Kentucky Circuit Court receiver. The Woods were married from until their divorce on December 10, The record shows that Mr. Wood underpaid his federal income taxes for the tax years through Wood individually for those years.

On September 13,notices of a federal tax lien with respect to Mr. A second tax lien against Mr. Bythe mortgage was in arrears and, on February 4,the Bank commenced foreclosure proceedings against the Woods in the Jefferson County Circuit Court.

On March 30,the Woods executed a property settlement agreement "Agreement" in contemplation of their impending divorce. The Agreement required Mr. Wood to convey Berry Hill and three building lots to Ms. Further, the Agreement stipulated that upon selling the property, Ms. Wood would be entitled to any sale proceeds remaining after the existing liens and mortgages were paid off.

Shortly after the execution of the Agreement, Mr.

6th cir. 1989

The IRS accepted Mr. Wood's representation regarding Ms. Wood's obligations under the Agreement. On July 9,the Jefferson Circuit Court entered its judgment ordering the sale of Berry Hill in order to satisfy the Woods' mortgage obligation to the Bank.

On the same date, Mr. Wood conveyed Berry Hill and the three land parcels to Ms. Wood by general warranty deed. The Kentucky judgment ordered the property to be sold free and clear of all liens and encumbrances, excepting certain easements and assessments and a "right of redemption in favor of the United States The property was purchased by Dr. John J.

Because the sale price was less than two-thirds of Berry Hill's appraised value, the sale created a right of redemption in favor of Ms. Wood under Ky. On October 15,the Government filed a third tax lien against Mr. The Woods executed an addendum "Addendum" to the Agreement on December 10, The Addendum provided that Mr. Wood would quitclaim his right of redemption arising out of the judicial sale of Berry Hill and waive his interest in any proceeds realized upon Ms.

Wood's sale of that property. Thereafter, on February 12,Ms. The sale was conditioned upon Ms. Wood securing title insurance from a reputable title insurance company.

6th cir. 1989

A title insurance company subsequently issued a title commitment on the condition that the Guarnaschellis secure and record a commissioner's deed for Berry Hill and, thereafter, convey the property by warranty deed to Ms. On March 5,the Government served Ms.John G. Clairsville, Ohio, for Saginaw Mining Co.

Jennifer L. Patricia Nece, Michael J. Denney, Donald S. Shire, Assoc. For the reasons that follow, the petition is denied, and the award of benefits is affirmed.

United States Court of Appeals for the Sixth Circuit

Claimant Ferda filed for benefits on June 21, At the time of filing, Ferda was still employed by Saginaw, although he had changed jobs and moved away from the surface of the mine in the hope of alleviating breathing difficulties. Ferda indicated in his application that he desired to continue working as long as his health would permit. On September 4,Saginaw was provided with a "Notice of Initial Finding" stating that the Department of Labor found Ferda eligible for benefits based upon medical evidence demonstrating total disability due to a respiratory condition arising in the course of coal mine employment.

Saginaw subsequently filed a timely controversion, sending the litigation into motion and rendering the finding of eligibility subject to redetermination. A conference was held on March 20, A memorandum of the conference indicates that although Ferda was still working, he intended to quit work in The memorandum also notes that X-rays of both the Department of Labor and Saginaw's medical consultant revealed simple pneumoconiosis.

A finding in Ferda's favor was entered, with payments to begin at the time he stopped work. Ferda terminated his employment with Saginaw on August 1,at which time he alleged that he was unable to perform the types of jobs Saginaw informed him were available. Pursuant to the earlier conference finding, temporary interim benefits were instituted. Ferda retired thirty-five hours short of receiving a complete pension.

George Kress. However, because Ferda's counsel had been unable to attend Dr. Kress' deposition which was scheduled by Saginaw, the ALJ permitted Ferda's counsel thirty days within which to respond to Dr. Kress' testimony. At the administrative hearing, Ferda denied making certain statements regarding his ability to work that were attributed to him by Saginaw at the earlier conference.Aileen A.

Armstrong, Dep. Counsel, William Stewart, William A. Baudler arguedN. McNamara, Detroit, Mich. William L.

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Hooth arguedJames B. Perry, Andrew T. On appeal, respondent argues that its decision to transfer the parts assembly operation was not a mandatory subject of bargaining and, alternatively, that the company's efforts to discuss the matter with the union, both pre- and post-transfer, satisfied its obligation to bargain in good faith.

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We find the decision of the Board to be supported by substantial evidence and in accordance with law and therefore affirm the Board's decision in all respects. Respondent manufactures and sells automotive parts and related products in Plymouth, Michigan.

The Union is the exclusive collective-bargaining representative of respondent's production and maintenance employees.

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Sometime inrespondent began to experience serious financial problems as a result of a downturn in the automotive industry as a whole. According to respondent, sales continued to deteriorate in its manufacturing operations to the point where respondent decided to investigate contracting out its assembly operations. Ultimately, respondent's management decided to subcontract its parts assembly work to another company to be located in Wauseon, Ohio.

On February 11,respondent notified the Union's bargaining committee of its plans to subcontract. This notification came in the form of a letter advising: 1 that respondant would terminate its parts assembly operation at the conclusion of the second shift on Friday, February 15, ; 2 that assembly operation employees would either be transferred or laid off; and 3 that the action was necessary "due to economic and business reasons. During the February 14 meeting, respondent informed the Union that plant-wide layoffs would occur based on seniority.

Respondent's Vice-President and General Manager Richard Taylor explained that respondent's economic decline resulted from a number of factors including declining sales, noncompetitive wage rates for parts assembly, overly burdensome Michigan taxes and high workmen's compensation costs.

According to the testimony of several bargaining committee members, in response to a question concerning possible action to retain the assembly jobs, respondent stated that the Union would have to accept substantial wage cuts, a cost of living freeze, a reduction in some benefits and work rule modification.

The Union requested that respondent delay any action until the Union's President returned from vacation the following week. Respondent stated that its decision was not final; however, for economic reasons it requested a reply from the Union by the next day Friday, February 15 as to whether or not the Union would consider granting concessions.

The Union failed to respond to respondent's request on Friday. Unbeknownst to respondent, the Union, in a letter dated February 14, had requested information regarding the specifics of respondent's decision. Respondent received the letter on February


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