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.
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
Friday, November 11, 2016
- EEOC: Federal Court Issues Historic Ruling in EEOC Lawsuit: Civil Rights Act of 1964 Prohibits Sexual Orientation Discrimination
- US DOJ: Joint Guidance with HUD is designed to help state and local governments better understand how to comply with the Fair Housing Act when making zoning and land use decisions as well as to help members of the public understand their rights under the FHA
- Bangor Daily: Gay ex-guard at Down East prison settles discrimination lawsuit
Thursday, November 3, 2016
- MHRC: 2016 Annual Report reflects that the Commissioners found “reasonable grounds” to believe discrimination occurred in 11.2% of the cases they heard (a decrease from the prior year’s 15.4%), new complaints filed decreased by 17.3% from the prior fiscal year (from 739 to 611), and disability discrimination represented 27% of complaints filed (a decrease from last year’s 39.7%)
- DOJ: New guide discusses and explains the requirements of the Americans with Disabilities Act integration mandate and the Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, as applied to employment service systems for individuals with disabilities
- HUD: New rule implements the 2013 reauthorization of the Violence Against Women Act to protect the housing of survivors of domestic and dating violence, sexual assault, and stalking
- Law Court: Oral arguments scheduled for November 8th and 9th include Oxf-16-50 (application of auto liability insurance exclusion for a vehicle “furnished” to an insured for “regular use”); Was-16-41 (whether trial court erred in denying plaintiff’s motion for an additur or new trial after jury found defendant negligent in deck collapse but awarded zero damages); Cum-16-86 (whether plaintiff provided sufficient proof of causation in attorney malpractice action arising out of alleged failure to properly controvert summary judgment motion despite absence of an expert opinion that plaintiff would have prevailed in the action if attorney had not been negligent); Fra-16-73 (whether “anti-stacking” provisions in underinsured motorist coverage of the insurance policies violate 24-A M.R.S. § 2902); And-16-76 (application of assault-and-battery exclusion in business insurance policy)
- Workers’ Comp Board: A panel of Administrative Law Judges held that an employer may not take a “credit” against ongoing workers’ compensation benefit liability for Social Security retirement benefits received by an employee in the past
- Bangor Daily: Maine inmate sues over access to transgender health care
- Bangor Daily: Brunswick settles lawsuit over former student who says he was assaulted in school bathroom
Saturday, October 29, 2016
- US Supreme Court: The Court will decide the following questions presented in transgender bathroom access case: (1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.
- Superior Court: The court held that plaintiff whose Maine Human Rights Commission complaint was dismissed for failing to cooperate with the Commission was barred from recovering compensatory damages or attorney’s fees in court despite the fact that the dismissal letter from from the Commission’s Executive Director stated that the dismissal was pursuant to 5 MRS 4612(2), a provision that allows recovery of those types of damages later
- Superior Court: $20,000 in lost wages awarded by Superior Court Judge on successful claim of sex discrimination and sexual harassment
- Superior Court: The court granted motion to dismiss unpaid wage claim against entities allegedly part of an “integrated enterprise” with plaintiff’s direct employer, finding that the Law Court has not adopted the “integrated enterprise” test and that it does not apply to unpaid wage claims, anyway
- Superior Court: Failure to serve Maine Tort Claims Act notice within 180 days barred claim against city for contributing to accident by failing to maintain road sign, even though plaintiff did not learn until after 180 days that defendant driver claimed that he failed to yield at intersection because of the missing road sign: lack of awareness does not constitute “good cause” sufficient to excuse the failure to serve the notice of claim
- Superior Court: The court entered judgment for defendant hospital on claim that it negligently discharged alcoholic who subsequently died in house fire after he resumed drinking
- Superior Court: Summary judgment entered for defendant restaurant after plaintiff was stuck by a hypodermic needle lodged in toilet paper dispenser because there was no evidence that restaurant knew or should have discovered the needle
- Superior Court: Sexual abuse claims against school that employed former priest survived motion to dismiss to the extent they claimed negligent creation of a risk to third persons and intentional infliction of emotional distress
- Law Court: Citing a 2015 amendment to Maine Rule of Civil Procedure 52(b), the court held that the Superior Court did not err in denying motion for additional findings of fact and conclusions of law because movant did not include with her motion “the proposed findings of fact and conclusions of law requested”
- MHRC: Minutes of October 24th meeting include reference to two Investigators leaving, who will be replaced; change in the definition of “service animal,” effective 7/29/16; and that the Commission’s Annual Report has been posted on its website
- MHRC: Mediator applications being accepted until November 15th
- Bangor Daily: Judge awards blueberry worker nearly $730,000 in heat stroke collapse
Sunday, October 23, 2016
- Eighth Circuit: The court held that respiratory therapist with cervical spinal stenosis made a sufficient request for reasonable accommodation under the Americans with Disabilities Act when she provided her employer written notification that she would be unable to complete a required basic life support certification without medical clearance and informed it that she required four months of physical therapy before completing the certification, citing that an employee is not required to invoke the “magic words ‘reasonable accommodation'”
- US DOJ: Justice Department filed a statement of interest in pending Fair Housing Act case, asserting that landlords who consider criminal records in evaluating prospective tenants may not use overly broad generalizations that disproportionately disqualify people based on a legally protected characteristic, such as race or national origin
- First Circuit: The court held that it was permissible for the Federal Motor Carrier Safety Administration to disseminate to potential employers–with the consent of commercial motor vehicle drivers–the drivers’ safety violations that are not deemed by the Secretary of Transportation to have been “serious”
- First Circuit: Significant changes to Rules of Appellate Procedure will be effective December 1, 2016
- MHRC: November 21st Commission Meeting Agenda posted
- Maine Public: Interactive Redlining Map Zooms In On America’s History Of Discrimination
Monday, October 17, 2016
- Ninth Circuit: Following the Fifth and Sixth Circuits, the court held that neither the plain text nor the legislative history of the Uniformed Services Employment and Reemployment Rights Act of 1994 (establishing employment rights for returning servicemembers) precluded the compelled arbitration of claims arising under its provisions
- US District Court ME: On former federal employee’s Rehabilitation Act disability discrimination claims, the court granted summary judgment on failure to accommodate claim because plaintiff did not file in court within 90 days of receiving notice of final action and new administrative complaint alleging accommodation requests were “ongoing” did not toll the time period for filing suit; but denied summary judgment on constructive discharge claim despite plaintiff’s failure to allege constructive discharge in administrative complaint because a reasonable investigation into plaintiff’s hostile work environment claim would have revealed the constructive discharge claim
- Fifth Circuit: In an unpublished opinion, the court held that Americans with Disabilities Act employment discrimination claim was not precluded by former nurse’s post-termination application for private disability benefits because nothing in the disability claim forms indicated that former nurse represented that she was unable to perform the essential functions of her job with or without an accommodation; and rejected employer’s argument that doctor’s certifications clearing nurse to work with restrictions was not a request for a light duty accommodation because “special words, like ‘reasonable accommodation,’ need not be uttered,” and an employee need only “explain that the adjustment in working conditions or duties she is seeking is for a medical condition-related reason”
Thursday, October 13, 2016
- MHRC: Effective July 29, 2016, new definition of “assistance animal” was added to the Maine Human Rights Act; people with disabilities have the right to either “service animals” or “assistance animals” in housing but only “service animals” in places of public accommodation
- Law Court: Oral arguments scheduled for October 25th include Fed-16-31, which will decide whether claim for disparate impact age discrimination under the Maine Human Rights Act is evaluated under the “reasonable factor other than age” standard, the “business necessity” standard, or some other standard
- Law Court: The court vacated arbitration award reinstating former employee to her employment position, holding that arbitrator exceeded her powers by determining that former employee’s grievance was arbitrable even though the arbitration request was filed after the deadline established in the Collective Bargaining Agreement as enlarged by agreement of the State and the Maine State Employees Association
- US District Court ME: The court granted summary judgment for deputy on Fourth Amendment false arrest claim, finding deputy had probable cause to arrest plaintiff for criminal restraint of third party despite deputy testifying that he arrested plaintiff for assaulting him, in light of Supreme Court precedent that subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause
- Maine DOL: The Wage and Hour Division proposed changes to the state’s rules affecting salaried workers exempt from overtime that reflect changes being made by the federal government
- MHRC: October 24th Agenda and Consent Agenda posted
Friday, October 7, 2016
- DOJ-EEOC: Joint report of the Advancing Diversity in Law Enforcement initiative provides an overview of the nation’s law enforcement agencies and describes current demographics, and highlights promising practices that law enforcement agencies have been using to advance diversity nationwide
- US District Court ME: In denying motion to dismiss Maine Whistleblowers’ Protection Act claim, the court held that 13 weeks between protected activity and termination was sufficiently close to establish a causal link between them, and that intervening rehiring of Plaintiff did not break the causal link because it was plausible that upper management’s directive to rehire him was later undermined by a local manager who continued to look for an opportunity to terminate because of his earlier protected conduct and his complaints to upper management
Monday, October 3, 2016
- US District Court ME: The court denied motion to compel arbitration of class unpaid wage claim, following Seventh and Ninth Circuits (there is a circuit split) in holding that a class or concerted action waiver in an employment agreement violates the National Labor Relations Act because it interferes with a plaintiff’s substantive right to engage in collective activity
- US Supreme Court (via SCOTUSblog): The Court granted certiorari to decide “[w]hether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review“
- Maine Superior Court: The court granted summary judgment for snow removal contractor in personal injury action arising out of fall on icy parking lot, holding that contractor did not owe a duty toward people injured in the parking lot unless it negligently created the dangerous condition as opposed to it resulting from the natural accumulation of snow, and contractor had not done so
- Maine Superior Court: In personal injury action, the court held that defendant’s report containing photos and interviews, prepared and sent to insurance adjuster after plaintiff’s demand for repayment medical bills was protected work product, and eight-month delay in plaintiff’s counsel requesting judicial phone conference to resolve whether it must be produced suggested that the report was not critical to plaintiff’s trial preparation
