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.
Tuesday, January 17, 2017
- US DOJ: Notice of proposed rulemaking issued for amendments to the DOJ regulations implementing Section 504 of the Rehabilitation Act of 1973, which would (1) incorporate amendments to the statute, including the changes in the meaning and interpretation of the applicable definition of disability required by the ADA Amendments Act of 2008; (2) incorporate requirements stemming from judicial decisions; (3) update accessibility standards applicable to new construction and alteration of buildings and facilities; (4) update certain provisions to promote consistency with comparable provisions implementing title II of the Americans with Disabilities Act; and (5) make other non-substantive clarifying edits
- First Circuit: The court affirmed summary judgment against plaintiff on Federal Tort Claims Act claim because plaintiff did not timely include a “sum certain” in his administrative claim
- Maine Legislature: LD 120 would increase the penalty for text messaging while operating a motor vehicle by requiring the Secretary of State to suspend the person’s driver’s license for 90 days for each offense
- Maine Legislature: LD 112 would further limit the liability of landowners who allow their land to be used for the construction, maintenance or expansion of trails or ancillary facilities used to pursue outdoor recreational activities
- Maine Legislature: Public hearing scheduled for January 17th at 1:00 PM on LD 88, An Act To Delay the Implementation of Certain Portions of the Marijuana Legalization Act
- Law Court: The court held that an 80C appeal petition need not allege a specific date that final agency action was received
- MHRC: January 23rd Agenda and Consent Agenda published
- EEOC: December 2016 The Digest of Equal Employment Opportunity Law issued
- SCOTUSblog: US Supreme Court adds 16 new cases to its merits docket
- NY Times: Justices Will Hear Challenges to Mandatory Employee Arbitration
Wednesday, January 11, 2017
- Third Circuit: Parting ways with other Circuits, the court held that “subgroup” disparate-impact claims are cognizable under the ADEA
- EEOC: Public input sought on proposed 75-page enforcement guidance on unlawful harassment
- US District Court ME: In granting motion to amend complaint, the court held, in part, that three-month gap between protected False Claims Act activity and termination supported causal connection between the two
- US Supreme Court: Qualified immunity applied to Fourth Amendment claim arising out of police officer shooting and killing suspect without first shouting a warning and identifying himself as a police officer
- Maine Legislature: LD 65 would prohibit a person, either in the public or private sector, 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
- Maine Legislature: LD 86 would require employers to pay earned wages to former employees within a reasonable amount of time after the cessation of employment, regardless of whether the employee has made a demand for the wages
Thursday, January 5, 2017
- First Circuit: In reversing summary judgment for employer on Title VII disparate impact claim, the court held that, although employer’s hair drug test that resulted in racially disparate impact was job related and its use was consistent with business necessity, a reasonable fact finder could conclude that employer refused to adopt an available alternative that would have met its legitimate needs while having less of a disparate impact
- US District Court ME: In denying cross motions for summary judgment on Maine Human Rights Act and Whistleblowers’ Protection Act claims, the court held, in part, that prior findings of the Maine Department of Labor during unemployment proceedings were not entitled to preclusive effect; and the court denied defendant’s motion for summary judgment on defamation claim arising out of statements within defendant and to outside entities, including credit reporting agency (despite Fair Credit Reporting Act’s preemption of state law defamation claims)
- Law Court: Following jury verdict finding negligence but awarding no damages on spouse’s loss of consortium claim, the court affirmed denial of motion for additur or a new trial despite jury answering “yes” to verdict form question that defendant was negligent and his negligence a cause of injuries to spouse, where the jury made clear in a note to the presiding Justice that it did not believe spouse was entitled to damages
- US DOJ: New report titled, “The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994-Present,” describes the Civil Rights Division’s enforcement of the civil prohibition on a “pattern or practice” of policing that violates the Constitution or other federal laws
- EEOC: Regulations issued on the federal government’s obligation to engage in affirmative action for people with disabilities
- MHRC: January 23rd Commission Meeting will be at the Senator Inn
Tuesday, December 27, 2016
- Maine Department of Labor: “Employer Update” covers the new minimum wage and marijuana laws passed by referendum, including a link to an audio interview of Maine Labor Commissioner Jeanne Paquette and Julie Rabinowitz reviewing the referendums in detail
- First Circuit: Summary judgment affirmed for police trooper on Fourth Amendment claim arising out of trooper seizing a photographer’s camera and digital photos of car accident scene where trooper believed photographer was illegally impersonating rescue personnel (he was driving a repurposed ambulance), where there was no clearly-established law in August 2010 that precluded a reasonable trooper from believing the exigent-circumstances exception applied
- First Circuit: The court reversed district court’s summary judgment decision that Jones Act plaintiff’s maintenance and cure benefits terminated on a different date than the one argued by defendant because the court reached its own conclusion without giving plaintiff an opportunity to present contrary evidence (the court also decided two other Jones Act issues)
- MHRC: January 23, 2017, Commission Meeting Agenda posted
Thursday, December 22, 2016
- Fifth Circuit: The court joined the Sixth and Seventh Circuits in holding that emotional distress damages are available for retaliation claims under the Fair Labor Standards Act
- Law Court: Summary judgment affirmed for insurer on duty to defend claim brought by bar that was sued for failing to prevent assault by one patron against another, where the allegations in the complaint fell squarely within policy’s exclusions for assault and battery
- US District Court ME: Defendant’s request for attorney’s fees denied following grant of plaintiff’s motion to dismiss his complaint with prejudice, even though defendant claimed that it had to file motion for summary judgment because plaintiff delayed filing dismissal motion after learning that complaint lacked merit
- Maine Supreme Court: Maine Judicial Branch Announces Award of Court Management System Contract to Tyler Technologies
- Bangor Daily: Jury awards woman $15,000 over violation of family leave law
Saturday, December 17, 2016
- First Circuit: The court granted summary judgment for employer on Family Medical Leave Act retaliation claim where medical leave was designated as both FMLA and workers’ compensation leave, but decisionmaker was unaware that it was an FMLA leave, and his clearly demonstrated animus was directed exclusively at the fact that it was a workers’ compensation leave (the court held that corporate or managerial knowledge that it was FMLA leave did not override the decisionmaker’s lack of knowledge)
- Third Circuit: The court held that plaintiffs need not plead or prove that they are objectively qualified in order to meet their initial burden under Uniformed Services Employment and Reemployment Rights Act; instead, employers may raise a plaintiff’s lack of qualifications as a non-discriminatory justification for declining to promote the plaintiff, notwithstanding his or her military service
- First Circuit: The court granted summary judgment for employer on § 1981 race discrimination claim that employee’s opportunities for overtime were reduced he was subjected to a hostile work environment
- EEOC: New resource document, “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work,” is designed to be given to a health care provider to explain how to provide appropriate medical documentation
- US District Court ME: Summary judgment granted on Maine Human Rights Act disability employment discrimination claim because plaintiff failed to show that defendant’s denying her access to a computer system in her office constituted an “adverse employment action”
- MHRC: December 19th Commission Agenda and Consent Agenda published
Friday, December 2, 2016
- MHRC: MHRC: Peter Schroeter and Pamela Waite added as Commission mediators
- MHRC: November 21st Agenda minutes include that the Commission received 45 applications for the two vacant Human Rights Investigator positions
- Law Court: Oral arguments set for December 13th include Yor-16-194 (constitutional claims alleging Probate Judge intentionally delayed cases in retaliation for the county’s refusal to increase his pay)
- US District Court ME: In granting motion to compel production of former employer’s financial information relevant to claim for punitive damages in employment discrimination claim, Magistrate Judge cited the court’s practice to permit pretrial discovery of financial information without requiring a plaintiff to establish a prima facie case on the issue of punitive damages
- US District Court ME: In recommending summary judgment for employer in age discrimination claim, the court held that plaintiff failed to generate sufficient evidence that employer’s stated reason for termination–violation of sexual harassment policy–was pretextual despite plaintiff’s adamant denial that he engaged in sexual harassment, citing authority that “[w]here the employer’s reason for termination is based on the results of an investigation into alleged misconduct by the plaintiff, the inquiry is not whether the plaintiff’s version of events is true, but whether the decision-maker reasonably believed that the plaintiff had engaged in misconduct”
- US District Court ME: Announcement Re Local Rule Changes Effective December 1, 2016
Wednesday, November 23, 2016
- DOJ: Final rule interpreting Title III of the Americans with Disabilities Act requires movie theaters to: (1) have and maintain the equipment necessary to provide closed movie captioning and audio description at a movie patron’s seat whenever showing a digital movie produced, distributed, or otherwise made available with these features; (2) provide notice to the public about the availability of these features; and (3) ensure that theater staff is available to assist patrons with the equipment before, during, and after the showing of a movie with these features
- First Circuit: In affirming the dismissal of First Amendment lawsuit filed by the former Speaker of the Maine House of Representatives against the Maine Governor on qualified immunity grounds, the court held that the Governor reasonably could have believed that his threats to withhold governmental funding to a private nonprofit company because it hired the Speaker as its president pertained to subjects within the Governor’s political ken and broad discretionary authority as governor, and that he was acting lawfully by criticizing and commenting upon the nonprofit’s plan to employ a president with a track record of opposition to the Governor’s priorities with respect to education policy
- EEOC: Updated Enforcement Guidance on National Origin Discrimination posted
- MHRC: December 19th Agenda posted
- MHRC: 2017 Meeting Schedule posted
Friday, November 18, 2016
- Law Court: In affirming the trial court’s granting of defendant’s motion for leave to file a late motion for summary judgment (and granting the summary judgment motion) filed over 3 1/2 years after the deadline set by the scheduling order, the court held that a trial court may allow a late-filed motion for summary judgment, even absent a showing of excusable neglect (Rule 6(b) standard), if the request is made “within such time as not to delay the trial”; and the trial court should consider whether the motion is interposed for the purpose of delay, and whether granting leave to file the motion will promote effective case management or result in undue costs to the parties or prejudice to the nonmoving party
- Maine Workers’ Compensation Board: Appellate panel held that “volunteer driver” for regional transportation company was not eligible for benefits as an “employee” of company because his $.41 per mile stipend did not constitute remuneration
- Law Court: The Maine Supreme Judicial Court invites comments on a proposed amendments to the Maine Bar Rules to modify discovery and confidentiality of information in disciplinary proceedings and to make technical changes
- EEOC: Annual Performance Report includes that the EEOC filed 86 lawsuits alleging discrimination during fiscal year 2016 and achieved a favorable resolution in approximately 90.6 percent of all district court resolutions; 55 were individual suits and 13 suits involved multiple victims or discriminatory policies; 18 were systemic suits
- MHRC: November 21 Agenda and Consent Agenda posted
- MHRC: Mediator search extended
- Press Herald: Brunswick schools agree to pay $125,000 to settle bullying lawsuit
- Kennebec Journal: Kennebec jail inmate charges mistreatment, assault by nurse
