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Robert Abell
Lexington, Kentucky
"Lets have faith that right makes might; and in that faith let us, to the end, dare to do our duty as we understand it." - Abraham Lincoln
Interests: Nothing on this blog is legal advice, and it shouldn't be taken as legal advice. This blog is free; legal advice you have to pay for. My purpose is to discuss events, cases and other things that seem important. I invite comments, although I may delete them because they are offensive to me, idiotic or any other reason I happen to think of.
Recent Activity
A claim founded on disability discrimination may be pursued as a denial of equal protection of the law and pleaded under 42 U.S.C. § 1983 the Sixth Circuit ruled recently in Bullington v. Bedford County, Tennessee. Kaleena Bullington worked for... Continue reading
Posted Nov 1, 2018 at Kentucky Employment Law Blog
An analog to axiom that bad facts make bad law is bad judging makes bad law. The Sixth Circuit's recent decision in United States v. Havis, where a three-judge panel issued four opinions illustrates slightly how far the Sixth Circuit has gone off the rails. Havis pleaded guilty to being a felon in possession of a firearm, which seems straight-forward... Continue reading
Posted Oct 31, 2018 at ... and Justice for All
The case of Matthew Charles is one that places a great and immutable stain on the federal criminal justice system. That the Sixth Circuit, in a disturbingly glib opinion authored by Judge Jeffrey Sutton, fuels it further and idiotically proposes that the Justice Department, which has labored mightily to get Charles put back in jail and be kept there another... Continue reading
Posted Oct 23, 2018 at ... and Justice for All
The common law tender-back doctrine does not apply to Title VII and pregnancy discrimination claims the Sixth Circuit ruled recently in McClellan v. Midwest Machining Inc. Jena McClellan had established herself pretty well as a telemarketer at Midwest Machining until... Continue reading
Posted Oct 22, 2018 at Kentucky Employment Law Blog
Form too often is elevated way above substance and the Sixth Circuit's decision in United States v. Mitchell is a disturbing illustration of the point, as well as more wasted and empty motion that could be thought reasonable. The defendant, Stephen Mitchell, had three prior felony convictions when he was convicted of violating 18 U.S.C. § 922(g)(felon in possession of... Continue reading
Posted Oct 11, 2018 at ... and Justice for All
Does a plaintiff have to prove that an employer had a particular animus toward employees with disabilities to sustain a disability discrimination claim? "No" answered the Sixth Circuit in EEOC v Dolgencorp LLC. We discussed this case in an earlier... Continue reading
Posted Aug 21, 2018 at Kentucky Employment Law Blog
Once an employee with a disability covered by the Americans With Disabilities Act (ADA) requests a reasonable accommodation for that disability the employer has a duty to explore the nature of the employee's limitations, if and how those limitations affected... Continue reading
Posted Aug 20, 2018 at Kentucky Employment Law Blog
A blockbuster race discrimination verdict against UPS was upheld by the Kentucky Court of Appeals last week, UPS v. Barber. The appeals court affirmed entirely the jury's verdict and the circuit judge's rulings. The case was brought by a group... Continue reading
Posted Aug 17, 2018 at Kentucky Employment Law Blog
A federal indictment unsealed today reveals that the career of West Virginia Supreme Court Justice Allen Loughry is in ashes and for the following, at least according to the Indictment: use of a Cass Gilbert desk (for about four years), $2764.18 and three lies. I got interested in this because news stories mentioned Cass Gilbert, who is the architect of... Continue reading
Posted Jun 20, 2018 at ... and Justice for All
"Throughout the American workplace, pregnancy discrimination remains widespread." This the New York Times concludes in an excellent analysis: Pregnancy Discrimination Is Rampant Inside America's Biggest Companies. There are legal protections and remedies under both federal and Kentucky state law. A... Continue reading
Posted Jun 18, 2018 at Kentucky Employment Law Blog
I know little of the Lanham Act, which regards trademarks, but the 6th Circuit's opinion in Sazerac Brands LLC v. Peristyle LLC answers these questions: what is bourbon, who was Colonel Taylor and, perhaps most important of all, why is Kentucky bourbon so good? Judge Jeffrey Sutton helpfully explains and answers these questions: Colonel Edmund Haynes Taylor, Jr., “the most... Continue reading
Posted Jun 15, 2018 at ... and Justice for All
"No" the Supreme Court has answered in Collins v. Virginia. The case arises from an intersection of two prongs to the Fourth Amendment: (1) the protection offered a home and its immediate surroundings (called "curtilage") and, (2) the automobile (better called the motor vehicle) exception to the warrant requirement. Here's what happened. Police became suspicious that Ryan Collins had and... Continue reading
Posted Jun 6, 2018 at ... and Justice for All
Does the Fourth Amendment apply when a rental car is stopped and the driver is not an authorized driver? As a general rule, yes, the Supreme Court ruled recently in Byrd v. United States. Terrence Byrd and his girlfriend, Latasha Reed, drove to Budget car rental center. Reed went in and rented a Ford Fusion, while Byrd stayed in his... Continue reading
Posted May 17, 2018 at ... and Justice for All
Sometimes a "burglary" isn't really a "burglary" and sometimes it doesn't matter whether it is or is not, the reason being in such instances the most lasting of all reasons: just because you're still screwed. Let's talk about how this maxim played out in the case, Potter v. United States, just decided by the Sixth Circuit. Anthony Potter is not... Continue reading
Posted Apr 17, 2018 at ... and Justice for All
So begins the Sixth Circuit's opinion in United States v. Perkins, where the defective execution of an anticipatory search warrant resulted in suppression of methamphetamine. "Many good Fourth Amendment stories begin with dogs" and, so it is, a dog's sniff alerted law enforcement to the presence of methamphetamine in a package addressed to "B. PERKINS" at an address in Belvidere,... Continue reading
Posted Apr 5, 2018 at ... and Justice for All
We examine and discuss vehicle stops and the Fourth Amendment: Robert L. Abell Continue reading
Posted Feb 23, 2018 at ... and Justice for All
One would have thought that telecommuting as a reasonable accommodation for an employee's disability was a dead letter following the Sixth Circuit's en banc decision in EEOC v. Ford, 782 F.3d 753 (6th Cir. 2015). Not so as the Court's... Continue reading
Posted Feb 23, 2018 at Kentucky Employment Law Blog
For reasons beyond explaining employment discrimination law has incorporated the "cat's paw doctrine" to dress up what is a proximate cause analysis. The "cat's paw doctrine" appeared in the Court of Appeals recent decision, Lindsey v. Bd. of Trustees of... Continue reading
Posted Feb 22, 2018 at Kentucky Employment Law Blog
States, particularly in the South, have abandoned or nearly abandoned efforts to enforce their wage and hour laws that require payment of overtime and/or the minimum wage, as reported in Politico, Minimum Wage Large Unenforced. Wage theft is not a... Continue reading
Posted Feb 19, 2018 at Kentucky Employment Law Blog
The stop of a vehicle requires a reasonable suspicion that an occupant has been engaged in criminal activity or is, for some other reason, subject to seizure, i.e., arrest. If the registered owner of a vehicle is the subject of an outstanding arrest warrant, he or she would be subject to seizure, so is that fact alone enough to support... Continue reading
Posted Feb 16, 2018 at ... and Justice for All
The Kentucky Supreme Court ruled today that a deputy sheriff is not covered by KRS 15.520, commonly referred to as the Police Officers' Bill of Rights. The case is Elliott v. Lanham. The case arose in the Boyle County Sheriff's... Continue reading
Posted Feb 15, 2018 at Kentucky Employment Law Blog
Is an employee who declines to remain employed and facilitate healthcare fraud constructively discharged? This is the question presented to the Sixth Circuit by Sue Smith v. LHC Group, which was argued yesterday to a panel of Judge Gilbert Merritt,... Continue reading
Posted Feb 2, 2018 at Kentucky Employment Law Blog
A successful plaintiff on a discrimination claim is presumptively entitled to back pay in an amount to make them whole, "that is, to place [them] in the position [they] would have been in but for discrimination." Rasimas v. Michigan Dept.... Continue reading
Posted Jan 30, 2018 at Kentucky Employment Law Blog
I'm reviewing the transcript of a cross-examination of a retired law enforcement officer who has been offered up to testify regarding the "red flags" characteristic of a "pill mill." It is not going all that well for the witness; he's already been forced to concede that the notion of characteristic red flags is bullshit: The red flags, they fluctuate. Again,... Continue reading
Posted Nov 25, 2017 at ... and Justice for All
An employee is wrongfully discharged under Kentucky law where a substantial factor for the termination is the employee's refusal to violate the law in the course of employment. This is an exception to the at-will employment doctrine that the Kentucky... Continue reading
Posted Nov 16, 2017 at Kentucky Employment Law Blog