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Vol. 3 No. 169 Decisions Released Sept. 7, 1995 FEDERAL COURT CASES BANKRUPTCY 42-7-6481 In re: B.S. Livingston & Co. Inc., Debtor; Robert Gibbons, et al. v. Stemcor USA, Inc., et al. U.S. Dist. Ct. (66 pp.) (1) Since relief from the automatic stay does not, by itself, remove the subject property from the estate but merely allows the creditors who obtain relief to pursue the property under non-bankruptcy law, the bankruptcy court and the district court upon appeal have subject matter jurisdiction over the claims regarding the alleged fraudulent conveyance presented in the adversary complaint, even though the bank creditors previously had obtained relief from the automatic stay. (2) The bankruptcy court did not abuse its discretion in refusing to abstain from determining the issues raised in the adversary complaint. (3) New Jersey law was properly applied by the bankruptcy Court due to the state’s compelling interest in providing redress to a corporation doing business here, and in enforcing its policy to hold corporate officers liable for tortious conduct. (4) Since genuine issues of material fact exist as to tort claims, summary judgment is denied on these issues. [For publication.] LABOR AND EMPLOYMENT — AGE AND RACE DISCRIMINATION 25-7-6482 Frank Feliciano v. Winner Ford, U.S. Dist. Ct. (18 pp.) While plaintiff, a 48-year-old Hispanic former used-car sales manager for defendant car dealership, established a prima facie case that he was wrongfully terminated from his position based upon his age and race, he did not carry his burden of demonstrating that the dealership’s reasons for terminating him–economic hardship and restructuring of the company–were false and that discrimination was the real reason for the decision. LABOR AND EMPLOYMENT — FAILURE TO PROMOTE 25-7-6483 Roosevelt Jefferson v. Cosmair Inc., et al., U.S. Dist. Ct. (24 pp.) The claims of plaintiff, an African-American male, that he was denied numerous promotions because of his race, are dismissed, since (1) no attempt has been made to identify the “standard operating procedure” that has created an alleged “continuing violation” to circumvent the statute of limitations, (2) plaintiff admitted that he never applied for seven of the nine positions he alleges were denied him, and (3) although plaintiff did present a prima facie case as to two of the promotions denied him, defendants provided a host of factors to support their contention that they selected the most qualified applicant for the positions, which plaintiff did not adequately rebut. 25-7-6484 Beryl Bray v. Marriott Hotels, et al., U.S. Dist. Ct. (23 pp.) Although plaintiff, an African-American woman, presented a prima facie racial discrimination case because she was denied a promotion to the position of services director at defendants’ hotel, since the defendants have set forth an extremely strong case to rebut the presumption of discrimination by showing that the white woman who ultimately received the job received the top performance evaluation, had a superior training and educational background, and unquestionably was the superior candidate, plaintiff’s case will be dismissed. LABOR AND EMPLOYMENT — SOCIAL SECURITY DISABILITY 25-7-6485 Dennis Daniels v. Hon. Donna E. Shalala, etc., U.S. Dist. Ct. (35 pp.) Administrative law judge’s decision that 44-year-old airline electrician was not disabled due to cardiac condition and associated hypertension is reversed, since the ALJ erred in relying on his own medical expertise and improperly discounting the testimony of the treating physician, grossly mischaracterized the vocational expert’s testimony, and erroneously discredited plaintiff’s subjective complaints of pain.

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