Legal Updates
John Gause monitors what’s happening in employment discrimination, civil rights, and tort law. He shares some of what he finds on this page.
Saturday, April 7, 2018
- HUD video: Secretary Ben Carson on the 50th anniversary of the Fair Housing Act: “Fairness means nondiscrimination; fairness means inclusion; fairness means acceptance of people who are different from you and understanding that they may have a different set of values”
- US District Court ME: Magistrate recommended denial of motion to dismiss Telephone Consumer Protection Act (TCPA) claim, finding that unsolicited calls to cell phone were alone a sufficient injury for standing under TCPA (which allows $500 recovery each time someone calls a cell phone using an “automatic telephone dialing system” without the recipient’s prior express consent)
- US Supreme Court: Service advisors—employees at car dealerships who consult with customers about their servicing needs and sell them servicing solutions—are exempt from the overtime-pay requirement under the Fair Labor Standards Act
- Law Court: Where defendant had previously evaded service of divorce complaint, he was not denied Due Process when District Court ordered service by publication without requiring plaintiff to email defendant a copy of the publication order or provide it to his attorney
- Law Court: Judgement entered for defendants in foreclosure action because bank’s witness could not establish foundational predicate necessary to introduce notice of default as a business record under Maine Rule of Evidence 803(6) (notice was sent by law firm, and witness did not know about law firm’s processes)
- First Circuit: A plaintiff within the zone of danger can recover for negligent infliction of emotional distress in maritime cases
- US District Court ME: Airline Deregulation Act did not preempt common-law personal injury claims against airline
- US Courts: Effective May 7th, the daily fee for federal jurors will increase from $40 to $50, the first such increase in nearly 30 years
- Maine Supreme Judicial Court: June 7th hearing scheduled to receive oral comments regarding access to electronic court records as electronic filing is implemented
- MHRC: April 23rd Agenda published
Thursday, March 29, 2018
- Maine Legislature: LD 1880 would prohibit a person from being required to join a labor organization or pay any labor organization dues or fees as a condition of employment or continuation of employment, notwithstanding any state law to the contrary
- First Circuit Court of Appeals: Applying Maine law on collateral estoppel, the court found that un-appealed hearing officer decision in Individuals with Disabilities Act administrative proceeding that having student wear recording device throughout school day would provide no educational benefit to student precluded issue in Americans with Disabilities Act claim in federal court that wearing the device would have provided effective communication to the student and was therefore a required auxiliary aid or service under the ADA
- Law Court: Oral arguments scheduled for April 11th include Vermont Mutual Insurance Company v. Joshua Francoeur et al. (whether father’s homeowner’s insurance policy covers son’s attack on fellow student at his school); and Dorothea B. McCain v. John F. Vanadia et al. (whether defendant physician in medical malpractice action is required to produce operative notes of surgeries that he performed on other patients)
Tuesday, March 20, 2018
- US District Court ME: On Title VII and MHRA sexual harassment claim, the court denied (without reciting the facts) summary judgment on existence of a hostile work environment; denied summary judgment on Faragher defense where employer responded inadequately to prior complaints against the same harasser; granted summary judgment against plaintiff on her constructive discharge claim because employer offered her a transfer or a paid leave during investigation of her sexual harassment complaint; and granted plaintiff’s motion for summary judgment on mitigation defense where employer introduced no evidence that substantially equivalent jobs were available in the relevant geographic area (but noted that plaintiff did not have a back-pay claim anyway because there was no constructive discharge)
- US District Court ME: Magistrate Judge recommended denial of motion to dismiss § 1983 claim arising out of police shooting where claim would not impermissibly invalidate plaintiff’s criminal sentence following his conviction of possession of a firearm by a felon, and plaintiff was not collaterally estopped from litigating issue of whether he raised his rifle in the direction of law enforcement before being shot because that finding was not essential to the prior judgment
- Muskie School of Public Service: 2017 Maine Court Access and Fairness Survey of 1039 participants found 83% believe courts are accessible and 78% agreed or strongly agreed that they are fair
- Maine Supreme Judicial Court: Proposed amendment to Maine Rules of Professional Conduct would adopt the screening protocols in the ABA Model Rules that apply to potential conflicts within a firm due to a lawyer’s former association with another firm; and proposed amendment to Maine Bar Rules would require that all proceedings before the Fee Arbitration Commission be recorded and that those proceedings be transcribed upon request
- US Courts: 2017 statistics show a 2.4% increase in civil rights cases filed in district courts (38,925 total)
- US DOJ: Justice Department Obtains $625,000 Settlement Of Sexual Harassment Lawsuit Against Two St. Louis Landlords
- MHRC: Three, three-hour free housing discrimination seminars in Kittery, Lewiston, and Houlton scheduled in April
Sunday, March 11, 2018
- Sixth Circuit: Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait; and the Religious Freedom Restoration Act was not a defense to suit brought by the EEOC because tolerating a person’s understanding of her sex and gender identity is not tantamount to supporting it
- US District Court ME: In denying motion for summary judgment on Maine Whistleblowers’ Protection Act claim but granting it on Maine Human Rights Act retaliation and First Amendment retaliation claims, the court held that public employee who was relieved of certain work duties and denied merit pay increase was subjected to “adverse employment actions” under the WPA, and one-month gap between protected activity and adverse actions was sufficient “temporal proximity” to infer causal connection; 21-day period between request for disability reasonable accommodation and its approval was not a “materially adverse” action for purposes of Maine Human Rights Act retaliation claim because it did not impose a significant, as opposed to trivial, harm; and individual defendant (superintendent of facility) was entitled to qualified immunity because it was not unreasonable for him to believe that physically separating the employee who complained about workplace harassment for one day did not infringe on her First Amendment rights
- US District Court ME: In granting motion to amend complaint approximately one month after deadline, the court found good cause because, while documents produced after the amendment deadline could not be said to have been essential to the assertion of the new claim, they did, at the least, tend to buttress the new claim, and, once plaintiff obtained and reviewed the documents, she promptly filed the motion to amend (the court also noted a lack of prejudice to defendant)
- US District Court ME: After dismissing federal claims against some defendants, the court refused to dismiss the state claims against those defendants because judicial economy and fairness weighed in favor of exercising supplemental jurisdiction
- MHRC: March 19th Agenda and Consent Agenda posted
- Bangor Daily: Penobscot Indian Nation man wins $40,000 in harassment suit against Day’s Jewelers
- Maine Campus: UMaine System facing lawsuit after not following Title IX laws
Saturday, March 3, 2018
- Second Circuit: En banc decision joins Seventh Circuit (another en banc decision) in holding that Title VII prohibits discrimination on the basis of sexual orientation as discrimination “because of . . . sex”
- US Supreme Court: Cert granted to answer the following question: Whether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state, as the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits have held, or whether the ADEA applies instead to all state political subdivisions of any size, as the U.S. Court of Appeals for the 9th Circuit held in this case
- US Supreme Court: Cert granted to answer the following questions (the First Circuit said no to both): 1) Whether a dispute over applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements
- First Circuit: The court clarified the standards under the “emergency aid exception” to the Fourth Amendment requirement warrant requirement before police entry in a home: officers seeking to justify their warrantless entry need only demonstrate “an objectively reasonable basis for believing that a person within the house is in need of immediate aid”; they do not need to establish that their belief approximated probable cause that such an emergency existed
- Maine Superior Court: Maine ski liability statute did not bar personal injury claim by injured snow tuber where genuine issues of fact remained on whether ski area breached duty to operate the runout area in a manner than safely stopped tubers, and claim did not necessarily fall within immunity for the “inherent risks” of the sport or the design of the tubing facility; and liability waiver on ski ticket did not bar claim because it violated public policy and plaintiff did not agree to waiver simply by affixing ticket to jacket
- Maine Superior Court: Although injuries from a horse bite are covered by the immunity provisions of the Equine Activities Act, genuine issues of fact remained on exception to immunity for the reckless disregard for the safety of others where defendants knew horse had not had rabies vaccine
- MHRC: Free Fair Housing design and construction seminar will be March 23rd in Portland
- Bangor Daily: Maine man sues restaurant claiming racial harassment
Sunday, February 25, 2018
- Maine Supreme Judicial Court: Proposed amendments to the Maine Rules of Evidence include adding a “residual exception” that hearsay may be admissible “if the court finds that the statement has equivalent circumstantial guarantees of trustworthiness and admitting it will best serve the purposes of these rules and the interests of justice”
- US Supreme Court: Former employee did not qualify as a protected “whistleblower” under the Dodd-Frank anti-retaliation provision because, although he may have been terminated for reporting suspected securities-law violations to his former employer, he did not report them to the Securities and Exchange Commission
- US Supreme Court: In cases governed by the Prison Litigation Reform Act, “district courts must apply as much of the judgment as necessary, up to 25%, to satisfy an award of attorney’s fees”
- US District Court ME: Judgment for Maine State Prison officials on inmate’s Eighth Amendment claim arising out of assault by another inmate because erratic behavior of other inmate and request by plaintiff that inmate be transferred were insufficient to show that defendants were aware that other inmate posed a substantial risk of serious harm to plaintiff
- US District Court ME: Motion to dismiss otherwise untimely medical malpractice claim denied where Maine statute extending statutes of limitations in cases of fraud saved claim because doctor failed to disclose medical malpractice to plaintiff as required by “special relationship” between doctor and patient
Saturday, February 17, 2018
- US DOJ: Memorandum orders the Department of Justice and United States Attorneys to no longer in civil enforcement actions use noncompliance with agency guidance documents as a basis for proving noncompliance with applicable law (they may only rely on statutory provisions and regulations)
- Maine Superior Court: Summary judgment granted for employer on Maine Human Rights Act disability employment discrimination claim because plaintiff was not a “qualified individual with a disability” where she could not perform the essential functions of her usual position; employer was not required to extend light-duty assignment that was not itself a vacant, independent position
- Maine Superior Court: Motion to dismiss punitive damages claim arising out of motor vehicle collision denied where plaintiff alleged that malice exists because defendant operated her motor vehicle under the influence of drugs while knowing she was driving unsafely
- US District Court ME: Motion for summary judgment based on statute of limitations granted on product liability claim where symptoms from injuries first started to appear more than six years prior to lawsuit, “continuing tort doctrine” did not save claim because plaintiff did not allege that defendant took repeated wrongful actions that in aggregate or unidentifiable part ultimately caused plaintiff’s harm, and “discovery rule” did not apply where foreign object was intentionally implanted
- Maine Supreme Judicial Court: Effective February 14, 2018, Maine Rule of Civil Procedure 30(b) amended to allow parties to make a recording of depositions for their own trial preparations
- Maine Legislature: LD 1842 would require legislators, legislative staff, and lobbyists to attend and complete a course of in-person education and training regarding harassment, including sexual harassment, at the beginning of each regular session of the Legislature
- EEOC: Four-year (2018-2022) Strategic Plan includes immediate performance measure that 80-82% of EEOC and 15-17% of Fair Employment Practice Agency (e.g., the Maine Human Rights Commission) resolutions contain “targeted, equitable relief,” meaning non-monetary and non-generic relief (other than the posting of notices in the workplace about the case and its resolution), which explicitly addresses the discriminatory employment practices at issue in the case, and which provides remedies to the aggrieved individuals or prevents similar violations in the future; including customized training for supervisors and employees, development of policies and practices to deter future discrimination, and external monitoring of employer actions, as appropriate
- MHRC: February 12th Commission meeting minutes include that the Commission testified “neither for nor against” a proposal to broaden substance abuse testing in employment to include “impairment” testing but pointed out how it likely would impact employees with disabilities; and testified “neither for nor against” a bill to “ban the box”, or prohibit employers from asking applicants about criminal conviction/arrest information, which was pared down to apply only to public employers and initial applications
- MHRC: March 19th Commission Meeting Agenda posted
Saturday, February 10, 2018
- US District Court ME: In upholding plaintiff’s jury verdict on Maine Whistleblowers’ Protection Act claim, including $450,000 punitive damages and $50,000 back pay awards, the court held that there was sufficient evidence that plaintiff engaged in WPA-protected conduct by reporting to her employer what she subjectively believed was harassment based on her age and/or disability, and that her belief was objectively reasonable, even if the conduct was not actually illegal, and even if she did not explicitly state in her reports that her harassment was unlawful or based on her age, disability, or other protected status; two-month gap between protected reports and and termination was sufficiently close to establish causation, and reports made 28 months and two years earlier came into play in the termination decision because they were substantially similar to the report made within two months of the termination, even if each was not sufficiently close in time, standing alone, to establish a causal nexus; punitive damages were permissible despite lack of compensatory damages, because the back-pay award met the Law Court’s prerequisite that there be compensatory or “actual damages” before punitive damages may be awarded; 9:1 ratio of punitive damages to back pay was not excessive; front pay was not warranted where plaintiff failed to show that a job with pay and benefits comparable to those she received with defendant was unavailable to her had she desired it
- First Circuit: Trial judge did err by including a custom-tailored adaptation of the McDonnell Douglas framework in jury instructions, and that it was not plain error for the judge to instruct the jury that, even if it found that plaintiff had proven the elements of her prima facie case, it would still have to consider whether the defendants’ proffered reasons for firing her were legitimate and nondiscriminatory and, if so, whether those reasons were “merely a pretext”
- Maine Superior Court: Justice found landlord violated Maine Human Rights Act and Fair Housing Act by creating a hostile housing environment based on tenant’s female sex and retaliated against her for reporting it by turning off her electricity and taking her cat, and justice awarded $50,000 in compensatory damages and a $10,000 civil penalty
- Maine Superior Court: Property owner’s motion for summary judgment denied on negligence claim arising out of fall due to missing handrail, where there was a genuine issue of material fact whether owner retained sufficient control over property (leased to store owner) to be liable for failing to install handrail
- Maine Superior Court: Justice awarded personal injury plaintiff $1,630,000 (including $150,000 in punitive damages) who was severely injured while running beside the road by truck going 63 mph in a 30 mph zone; defendant, who was uninsured, defaulted
- Press Herald: Oakhurst OT case of missing-comma fame settled for $5 million
Saturday, February 3, 2018
- Maine Superior Court: The court granted motion under Maine Rule of Civil Procedure 43(a) to allow New Hampshire orthopedic surgeon to testify at trial in Aroostook County by contemporaneous video conference instead of attending trial in light of time, cost, and burden that would be involved with surgeon attending trial
- Maine Legislature: Public hearing scheduled for February 7th before the Labor Committee on LD 1587, which would create a paid family medical leave program, patterned after the unpaid family medical leave program existing in current law but require a contribution from an eligible employee, or a self-employed person on a voluntary basis, of no more than 0.5% of the employee’s or self-employed person’s wages or earnings
- MHRC: Revised MHRC Agenda and Consent Agenda posted
- Press Herald: Republican bill would allow more drug testing of Maine workers
- Press Herald: Woman sues USM over handling of alleged sexual assaults
- Bangor Daily: ACLU asks Maine high school to retire ‘Warriors’ mascot
Saturday, January 27, 2018
- First Circuit: In affirming Title VII sexual harassment and retaliation jury verdict for plaintiff, the court held, in part, that 300-day administrative complaint-filing deadline was met because plaintiff’s testimony at trial that “a good portion” of the harassment occurred in 2011 supported conclusion that at least some happened after February 3, 2011 (the 300-day window); non-workplace conduct was admissible; a plaintiff alleging “sex-plus” discrimination is not required to identify a comparable (meaning one that has the same “plus” factor, e.g., having children or being gay) member of the opposite sex who was not subjected to discrimination; a permissible “plus” factor in a “sex-plus” discrimination claim is sexual orientation (the court did not re-examine its 20-year-old holding that pure sexual orientation discrimination is not protected by Title VII); that the terms, “bitch,” “cunt,” and “Frangina” (plaintiff’s name is Franchina) are inherently genderspecific and their repeated and hostile use can reasonably be considered evidence of sexual harassment; there was sufficient evidence of a hostile work environment where, in addition to the use of the genderspecific terms, there was evidence that women were treated as less competent, men treated women better when they were perceived as willing to have sex with them, and a coworker asked if plaintiff wanted to have babies and if he could help her conceive; the jury instruction that plaintiff may establish gender discrimination “by proving that she was harassed because she is part of a subclass of women, in this case lesbians, if she also proves that this harassment was at least in part because of her sex or gender,” was an accurate description of the law, and the trial court did not err by refusing to add the superfluous language that, “[i]f you find that Ms. Franchina faced harassment solely because of her sexual orientation, then she has not proven that she faced harassment because of her gender”; that while there may have been reversible error on the jury’s front-pay award because the jury was not instructed to reduce the award to present value, the fact that the trial judge independently awarded front pay that was reduced to present value overcame the error; the $545,000 front-pay award was adequately supported by the record even without expert witness testimony on future earnings and the proper methodology for reducing the award to present day value
- US Supreme Court: The Court held that the tolling provision for dismissed supplemental jurisdiction state law claims, 28 U. S. C. §1367, stops the clock on the state statute of limitation while the federal lawsuit is pending plus 30 days after dismissal (not just for a 30-day grace period after dismissal)
- US Supreme Court: The Court held that qualified immunity shielded officers from Fourth Amendment false arrest claims where there was no controlling case holding that a bona fide belief of a right to enter defeats probable cause, that officers cannot infer a suspect’s guilty state of mind based on his conduct alone, or that officers must accept a suspect’s innocent explanation at face value
- Sixth Circuit: A district court must grant a motion for a new trial as to damages when a jury awards back pay to a Title VII plaintiff in an amount that is substantially less than the damages to which he is indisputably entitled
- First Circuit: Despite finding that public employee lacked a Due Process property interest in his job, the court nevertheless analyzed plaintiff’s Due Process “stigmatization claim” (and found plaintiff could not establish one), which involves a five-part test: The challenged statements must be false, they must have seriously damaged the employee’s reputation and standing in the community, they must have been intentionally publicized by the government employer, they must have been made in conjunction with the employee’s termination, and the government must have denied the employee’s post-termination request for a name-clearing hearing
- US District Court ME: In employment discrimination claim brought against State of Maine, the court granted State’s motion to substitute “male employee” for third party state employee’s actual name or his initials in all its Court filings, in light of the confidentiality of state personnel records required by 5 M.R.S. § 7070
- EEOC: Fiscal Year 2017 Enforcement And Litigation Data includes that retaliation was the most frequently filed charge (48%), followed by race (33%) and disability (31%); that it has reduced its charge workload by 16.2%; and that it achieved a successful outcome in 90.8 % of all the lawsuits it filed
- Maine Legislature: Public hearing scheduled for January 31st on LD 1768, An Act To Reduce Impairment on the Job and Improve Workplace Safety by Amending the Laws Governing Employment Practices Concerning Substance Use Testing
- HUD: $300,000 awarded to Pine Tree Legal Assistance as part of $37 million in grants to Fair Housing Initiatives Program
