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.
Wednesday, May 31, 2017
- Law Court: Amicus briefs invited on whether a volunteer driver for a nonprofit organization who receives a mileage reimbursement is an “employee” for workers’ compensation purposes
- US Supreme Court: The Court answered the following question in the negative: If law enforcement officers make a “seizure” of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force?
- First Circuit: In affirming summary judgment for employer on disability employment discrimination claim because plaintiff failed to identify a vacant position that she could have moved into as a reasonable accommodation, the court noted that an employee seeking a transfer is a “qualified individual” so long as she can perform the essential functions of the vacant position–with or without a reasonable accommodation–even if she can no longer perform the essential functions of her current position
- First Circuit: The court affirmed summary judgment for occupational therapy school on negligence claim brought by former student injured while engaging in mock exercise of lifting heavy (210-pound) patient, finding that expert testimony was required to establish the standard of care for what is reasonable conduct in a practical exam in an occupational-therapy program and the breach of that standard of care
- US District Court ME: In denying motion to strike untimely answer, the court held that the circumstances did not meet the First Circuit’s standard of awarding default only in “egregious cases” where defendant’s attorney reasonably concluded that plaintiff’s attorney was going to send him a proposed amended complaint and that he could delay answering the original complaint until she had done so
- Eighth Circuit: The court held that Title VII does not cover sex discrimination against child of employee where there was no evidence of sex discrimination against the employee herself
- MHRC: May 22nd minutes include that the Commission has 712 cases pending and the average age of cases is 284 days
Tuesday, May 23, 2017
- MHRC: In awarding $40,000 to two plaintiffs in housing discrimination complaint brought by the Maine Human Rights Commission and Pine Tree Legal Assistance, the Superior Court held, in part, that the determination of whether an applicant for housing is “qualified” to rent, entitling her to non-discrimination protection, should be based on what defendant considered at the time of the application
- Law Court: In affirming dismissal of defamation and false light invasion of privacy claims under Maine’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) statute, the court held that plaintiff had not sufficiently alleged an “actual injury” sufficient to avoid dismissal because presumed damages (“damages per se”) for defamation are not an “actual injury” under the anti-SLAPP statute and emotional distress is only a compensable form of tort damages (including for defamation) if it is so severe that no reasonable person could be expected to endure it
- Law Court: In affirming award of $8000 (instead of the requested $60,000) for attorney’s fees after finding an illegal eviction, the court held, in part, that plaintiff was required as a part of Maine Rule of Civil Procedure 52(b) motion to propose findings about the specific number of hours an attorney would reasonably work on the case and on the illegal eviction claim
- Kennebec Journal: Augusta condo association ‘stunned’ by police chief’s claim of discrimination
Wednesday, May 17, 2017
- First Circuit: In deciding an issue of first impression (and agreeing with eight circuits but disagreeing with one), the court held that a plaintiff may not bring claims for damages under 42 U.S.C. § 1981 against state actors, including defendants sued in their official capacities as government officials
- First Circuit: In deciding two issues of first impression, the court held that the applicability of the Federal Arbitration Act (“FAA”) is a threshold question for the court to determine (not an arbitrator) before compelling arbitration under the FAA, and that a provision of the FAA that exempts contracts of employment of transportation workers from the FAA’s coverage applies to a transportation-worker agreement that establishes or purports to establish an independent-contractor relationship
- US District Court ME: Following $15,000 back-pay jury verdict on denial of federal and state family medical leave claims, the court refused to award, instead of back pay on the state claim, a $100 per day civil penalty (which would have totaled $95,000), finding that the alternative damage award is not necessary to assure Defendant’s compliance with the law; awarded double the back pay as liquidated damages; and awarded prejudgment interest from the date of plaintiff’s Maine Human Rights Commission notarized charge of discrimination despite the fact that administrative exhaustion is not required for family and medical leave claims
- Law Court: After an extensive analysis, the court clarified the process for the handling special motions to dismiss under Maine’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) statute
- Law Court: The court held that Maine’s anti-SLAPP statute is not applicable to newspaper articles unless those articles constitute the newspaper petitioning on its own behalf or the party seeking to invoke the anti-SLAPP statute is a party that used the newspaper to broadcast the party’s own petitioning activities
- MHRC: Fair Housing Workshop scheduled for June 23rd will provide an overview of Fair Housing Law
- Kennebec Journal: Augusta ed tech says school department discriminated against her for telling colleague ‘I will pray for you’
- Press Herald: Court upholds whistleblower retaliation penalty against Pan Am Railways
Tuesday, May 9, 2017
- Maine Legislature: Public Hearing on LD 1239, An Act To Increase Efficiency in Enforcement of the Maine Human Rights Act, scheduled for Tuesday, May 9th, at 1:00 PM before the Judiciary Committee
- Maine Legislature: LD 1575 would, among other changes to Title 26, create an exception for life and health insurance and employee benefit plans to the prohibition on discrimination against employees who use tobacco products outside of work
- Maine Legislature: LD 1587 would create paid family medical leave
- First Circuit: In affirming summary judgment for employer on Americans with Disabilities Act denial of reasonable accommodation claim, the court held that plaintiff’s request for twelve months of leave–after already being out for five months–was facially unreasonable, and employer was therefore not required to show undue hardship or participate in the interactive process
- US District Court ME: In recommending denial of 12(b)(6) motion to dismiss sex harassment claim, Magistrate Judge held, in part, that while there were no factual allegations in the complaint indicating harasser’s animus was directed to plaintiff because of her sex, only that sexually vulgar terms and gendered profanities were used, the use of such terms is sufficient to establish the plaintiff’s sexual harassment claim
- EEOC: New federal sector ‘Digest of EEO Law’ issued
- MHRC: June 19th Commission Meeting Agenda posted
Tuesday, May 2, 2017
- US Supreme Court: The Court held that a city claiming decreased property values and added expenses caused by increased foreclosures resulting from racially discriminatory lending practices by two banks was an “aggrieved person” entitled to file suit against the banks under the Fair Housing Act, but that a plaintiff must do more than show that its injuries foreseeably flowed from the alleged statutory violation
- Maine Legislature: LD 1566 would enact the Maine Fair Chance Employment Act, which adds restrictions to the use of criminal history information in the context of employment decisions by private employers (the Maine Human Rights Commission would have enforcement authority)
- First Circuit: The court affirmed the post-verdict ($14.5 million) dismissal of defamation lawsuit for lack of subject-matter jurisdiction where there was no diversity of citizenship because one of the plaintiffs was not a citizen of a state (he was domiciled in Haiti, despite voting in Iowa), and the court agreed that defendant would be prejudiced if only the non-citizen plaintiff were dismissed to cure the jurisdictional deficiency
Wednesday, April 26, 2017
- Maine Legislature: LD 1477 would amend Maine sexual harassment training requirements to require the Maine Human Rights Commission to provide employers with a training guide, make Department of Labor determinations that employers have complied with the training requirements binding on the Commission, and impose monetary penalties for violations of the posting and training requirements
- US Supreme Court: In a personal injury car accident lawsuit against a tribal employee in his individual capacity, the Court held that the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated; the fact that the employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity; and the existence of an indemnification provision does not extend a tribe’s sovereign immunity where it otherwise would not reach
- Ninth Circuit: As a matter of first impression in its circuit, the court held that neither Title II of the Americans with Disabilities Act nor Section 504 of the Rehabilitation Act of 1973 preempt a city’s state-law claims for breach of contract and de facto contribution against contractors who breach their contractual duty to perform services in compliance with federal disability regulations
- First Circuit: In affirming summary judgment for a deemed federal entity health center based on plaintiff’s failure to file administrative complaint within two years as required by the Federal Tort Claims Act, the court found that there was was no evidence that the health center deliberately concealed any material facts that were needed to put plaintiff on notice of the fact and cause of the injury, which may have otherwise justified equitably tolling the statute of limitations
- US District Court ME: In excessive force claim, Magistrate Judge denied summary judgment on qualified immunity grounds for officer who shot and injured plaintiff after plaintiff drew knife and slashed his arm, finding that, at the time of the 2015 incident, the contours of the constitutional protection from the use of excessive force were sufficiently clear such that a reasonable law enforcement officer would have understood that when a subject displays and uses a knife to inflict self-harm in the presence of others, the use of deadly force is reasonable only when there is an immediate threat of harm to the officer or the others, and only after, if feasible, the officer provides a warning or instruction to the subject and the subject persists in threatening conduct
- Maine Legislature: LD 1530 would amend the Maine unemployment security law to specify that unemployment benefits will not be awarded to an employee during a mutually agreed-upon leave or sabbatical leave from the employee’s employer, and provide that a reduction in hours initiated by the employee and agreed upon by the employee and employer does not qualify the employee for unemployment benefits
- MHRC: May 27th Commission Meeting Agenda posted
- MHRC: April 24th Commission Meeting minutes posted
- Press Herald: Muslim woman sues Portland employer, alleges religious discrimination
Tuesday, April 18, 2017
- First Circuit: In affirming 12(b)(6) dismissal, the court held that termination on the heals of FMLA-protected activity did not plausibly give rise to FMLA retaliation claim in light of history of an emotionally fraught and longstanding dispute between the employer and the employee, an expressed fear by the employer that the employee may have brought a gun to work, and a subsequent lock-out of the employee, all in a context that caused even the employee to suspect imminent termination
- First Circuit: The court reversed summary judgment for defendant in wrongful death suit, finding district court exceeded its authority by basing its decision on an issue not argued by the parties and as to which no discovery had been allowed
- Maine Legislature: LD 1441 would require an employer to allow an employee who is a veteran to take paid leave to attend scheduled appointments at a medical facility operated by the United States Veterans Administration
- Maine Legislature: LD 1464 would allow an unemployed individual to receive unemployment benefits without registering for work or looking for employment if the individual has a verifiable guarantee to return to employment from the individual’s most recent employer and the individual is available for recall and is receiving full-time yearly benefits but is not receiving vacation pay
- MHRC: April 24th Commission Meeting Agenda and Consent Agenda posted
Wednesday, April 12, 2017
- Law Court: The court affirmed summary judgment for property maintenance company whose on-call maintenance employee’s dog attacked minor child, finding employee was not acting within the scope of his employment for company because the child entered employee’s private yard at the time of the attack for purposes completely unrelated to his employment
- First Circuit: The court affirmed summary judgment for employer on disability employment discrimination claim, finding that employee’s failure to make reasonable efforts to help employer determine what specific accommodations were necessary caused a breakdown in the interactive process, thereby precluding a finding that employer was liable for a failure to accommodate
- US District Court ME: The court denied motion to dismiss employment discrimination complaint against entity that was not named in Equal Employment Opportunity Commission or Maine Human Rights Commission complaint because a further factual record was necessary to determine whether there was an “identity of interest” with second entity that was named at the EEOC and MHRC; denied motion to dismiss based on plaintiff’s failure to name the second entity in court complaint within 90 days of EEOC right-to-sue letter where further factual record was necessary to determine whether amendment adding second entity would relate back to original filing date pursuant to Federal Rule of Civil Procedure 15(c); and denied motion to strike allegations in court complaint that were not included in EEOC and MHRC complaints, where that they might constitute “background evidence” in support of the timely claims
Thursday, April 6, 2017
- Seventh Circuit: In en banc decision, the court held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964
- Maine Legislature: LD 1239 would amend the Maine Human Rights Act to, in part, authorize the Maine Human Rights Commission to issue binding decisions and remedies if both parties agree; suspend an investigation if Complainant files an affidavit that she will seek a right-to-sue after 180 days; impose sanctions (including dismissal) for providing false information or violating nondisclosure agreement; dismiss or refuse to accept frivolous or repetitious complaints; and issue a right-to-sue letter at its discretion (not just upon request by Complainant) after 180 days
- Second Circuit: Without reversing prior Second Circuit precedent that Title VII does not prohibit discrimination on the basis of sexual orientation, the court held that complaint plausibly alleged claim based on the gender stereotyping theory of sex discrimination articulated in Price Waterhouse v. Hopkins
- Eighth Circuit: The court held that a “reasonable accommodation” under the Americans with Disabilities Act may include transfer to a position that the employer reasonably anticipates will become vacant in the fairly immediate future, although it is unavailable at the time the employee goes through the accommodation process
- Third Circuit: The court held that Fair Housing Act claims survives the death of a party
- Maine Legislature: LD 1222 would make several changes to the laws governing employment practices concerning substance abuse testing, including removing the “probable cause” standard and replacing it with an “impairment detection” standard required before the employer may conduct substance use testing
- Maine Legislature: LD 1240 would provide immunity under the Maine Tort Claims Act to health care practitioners who contract to provide free medical services to underserved populations of the state
- Maine Legislature: LD 1259 would amend the Maine Human Rights Act to provide that evidence of discrimination with respect to compensation includes an employer seeking information about a prospective employee’s prior wage history before an offer of employment, including all compensation, to the prospective employee has been made; and preventing employees from discussing or disclosing other employees’ wages
- Law Court: Oral arguments schedule for April 12th include Cum-16-312 (whether driver who waived plaintiff on to make turn in front of him negligently caused ensuing accident, and whether State of Maine has to provide underinsured motorist coverage to plaintiff); Cum-16-408 (whether defendant who did not carry the level of liability insurance required by its excess insurance carrier was underinsured for purposes of plaintiff’s claim against his own auto insurance); Cum-16-415 (whether judgment against real estate agent on misrepresentation claim had to be reduced by amount of settlement with prior homeowners pursuant to 14 M.R.S. § 163)
- Law Court: The court affirmed summary judgment for University of Maine System on negligence claim arising out of student’s slip-and-fall injury, finding that “good cause” did not exist for student’s failure to serve formal 180-day notice of claim where student offered no explanation for why she did not serve notice within the 63 days remaining of the notice period after University denied her informal claim
- Law Court: the court affirmed summary judgment for homeowner’s insurance company in reach-and-apply action to recover damages arising out of auto accident where the driver fit within “regular use” exclusion
- USDCT ME: Magistrate Judge recommended, in part, that the court disregard allegations in original complaint relied upon by defendant in its motion to dismiss, finding that an amended complaint supersedes the original complaint, and facts that are neither repeated nor otherwise incorporated into the amended complaint no longer bind the pleader; but otherwise recommended dismissal of equal protection claim
- US Supreme Court: The Court held that a district’s court’s decision to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion
- Federal Judicial Center: The history and workings of the U.S. court system can now be explored with a variety of easy-to-navigate and interactive tools available on revamped website
Tuesday, March 28, 2017
- First Circuit: In affirming summary judgment for the federal government on claims arising out of its failure to provide cost-of-living allowances for plaintiffs working outside of the contiguous United States, the court held, in part, that Title VII disparate impact claims were barred by statutory provision allowing different pay for workers in different locations, and that Administrative Procedure Act claims were precluded by the Civil Service Reform Act of 1978
- US District Court ME: The court entered partial summary judgment for Secretary of Defense on Age Discrimination in Employment Act and Rehabilitation Act claims, finding that the limitations periods contained in the Rehab Act and the ADEA limited the employee’s claims to events that occurred within the forty-five day period prior to his contact with the EEO counselor and that neither equitable exceptions nor federal regulations expanded the scope of the employee’s claims; and that the human resources representative who rejected the employee’s promotion application was unaware of the employee’s age or disability
- Maine Legislature: Public hearing before the Judiciary Committee scheduled for March 29th on LD 198, which would make a landlord not liable in a civil action for personal injury, death, property damage or other damages caused by an assistance animal on the landlord’s rental property
- MHRC: April 24th Commission Meeting Agenda published
- MHRC: March 27th Commission Meeting minutes published
- Kennebec Journal: Former Hallowell officer gets $60,000 settlement over police chief rape accusation
