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, September 24, 2016
- US District Court ME: Proposed Local Rule changes include to Rule 7 (clarifying that oral arguments on motions may be required by federal rule or statute), Rule 16.2(e) (eliminating the requirement of filing a proposed discovery plan when objecting to a scheduling order), 54.3 (eliminating separate procedure for filing a bill of costs where a party is applying for costs as part of an application for statutorily permitted attorneys’ fees under L.R. 54.2), and 83.1(c)(1) (local counsel must be present in cases with visiting lawyers, unless excused by the court)
- US District Court ME: On state and federal unpaid wage claim by class of metal workers on airplane restoration project, the court granted in part and denied in part motion for summary judgment where defendants argued the state law claims were preempted by the Airline Deregulation Act and they were exempt from paying overtime wages under the federal Fair Labor Standards Act because they were subject to the Railway Labor Act
- US District Court ME: The court dismissed complaint with prejudice after plaintiff did not appear for his jury trial
- EEOC: $56,000 settlement reached in lawsuit alleging employer retaliated against employee when it recognized him as the grandson of a former employee who had filed a discrimination lawsuit against it
- MHRC: October 24th Commission Meeting Agenda posted
Wednesday, September 21, 2016
- HUD: New rule formalizes legal standards under the Fair Housing Act for sexual and other forms of harassment in housing and specifies how HUD will evaluate claims of “hostile environment” and “quid pro quo” harassment in both private and publicly-assisted housing
- HUD: New rule will ensure that all individuals have equal access to many of the Department’s core shelter programs in accordance with their gender identity
- HUD: “Limited English Proficiency” guidance issued that addresses how the Fair Housing Act would apply to claims of housing discrimination brought by people because they do not speak, read, or write English proficiently
- MPBN: Trial by Jury Becoming More Rare in U.S.
Friday, September 16, 2016
- MHRC: Minutes of September 12th Commission meeting include that two new investigators and a paralegal have begun and one investigator position became vacant mid-August with the departure of Audrey Gillespie; HUD completed its annual review of the Commission’s work under their partnership agreement and recommended re-certifying the Commission for another year; and the Commission received a new HUD grant for outreach regarding service animals, that will allow the Commission to create a webinar and do outreach on it, as well as make changes to the Maine law on service animals
- US District Court ME: The court dismissed §1983 substantive due process action against police arising out of fatal shooting by plaintiff’s former boyfriend after police notified former boyfriend–despite her explicit warnings not to do so– of plaintiff’s sexual assault complaint, because there is no duty to protect against private harm when state actors have knowledge of a danger to a person, promise to protect that person, the person relies on the promise, and the state actors fail to keep the promise; and the police behavior in notifying former boyfriend was not “conscious shocking”
- US District Court ME: The court denied a motion to dismiss §1983 action against supervisors and municipality despite dismissal, as untimely, of action against individual officers, where it was undeveloped as to when the plaintiffs knew or should have known, through the exercise of due diligence, that supervisor and municipality were the proximate cause of their injuries
- Kennebec Journal: Panel supports Auburn woman in discrimination complaint against Manchester firm
Thursday, September 8, 2016
- US DOL: Administrative Law Judge ordered employer to pay $182,943.65 in back wages for failing to effect bona fide termination of H-1B worker by neither notifying U.S. Citizenship and Immigration Services of termination nor offering to pay for worker’s transportation home (the ALJ also decided timing issues, including operation of one-year statute of limitations and effect of Administrator’s failure to determine if investigation was warranted within 10 days)
- First Circuit: Reversing summary judgment for motel on claims under the Maine Whistleblowers’ Protection Act and the retaliation provisions of the Maine Human Rights Act brought by former executive and assistant executive housekeepers, the court clarified (post Harrison’s elimination of the “job duties exception) that a report is protected if it “was made to shed light on and in opposition to the defendant’s potential illegal acts”; stated that express statements of opposition are unnecessary where there is “purposive conduct”; and held that plaintiffs’ expression of ongoing concerns about the integrity of sexual harassment investigation three weeks after they facilitated victim’s lodging of sexual harassment complaint showed that their initial involvement was oppositional
- First Circuit: In granting summary judgment for public employer on First Amendment retaliation claim, the court held that two-year gap between protected activity and adverse job actions was too long to support causal connection
- MHRC: September 12th Agenda and Consent Agenda published
Wednesday, August 31, 2016
- EEOC: Newly issued EEOC Enforcement Guidance on Retaliation and Related Issues covers the elements of a retaliation claim, the ADA interference provision (which is broader than the retaliation provision and mirrors a provision in the Maine Human Rights Act), and remedies; and includes the following statement: “Protected activity includes EEO complaints by managers, human resources staff, and EEO advisors – even when those complaints happen to grow out of the individual’s job duties – provided the complaint meets all the other relevant requirements for protected activity”
- Second Circuit: On Title VII retaliation claim arising out of retaliatory act by a coworker, the court held (following a First Circuit decision) that an employer may be held liable for an employee’s animus under a “cat’s paw” theory, regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action
- US District Court ME: Magistrate Judge denied motion to dismiss inmate’s First Amendment complaint alleging retaliation for filing a prison grievance where inmate alleged prison guard appeared in his cell one night and confronted him about his grievance (after already having let another inmate into his cell to assault him), and subsequently regularly intimidated him during escorts to his daily appointments in the prison infirmary, finding the allegations sufficient to deter an inmate of ordinary firmness from exercising his constitutional rights
Saturday, August 27, 2016
- Workers’ Comp Board: En banc panel of Administrative Law Judges held that self-insured employer was required to reimburse injured worker for costs associated with use of medicinal marijuana authorized by the Maine Medical Use of Marijuana Act (MMUMA), rejecting employer’s argument that requiring reimbursement would conflict with federal law because employer would be complicit in the commission of a federal crime, and finding that employer was not a “private health insurer” within MMUMA exception
- US District Court ME: In former Portsmouth Naval Shipyard’s Rehabilitation Act disability discrimination claim, the court found that narcolepsy is a categorically disqualifying condition from driving commercial vehicles
- EEOC: $60,000 settlement reached in suit alleging hair salon refused to accommodate stylist’s claustrophobia by moving her to a station that was not in a confined space
Wednesday, August 24, 2016
- US District Court, Northern District of Texas: The court enjoined the U.S. Departments of Education, Justice, Labor, and the Equal Employment Opportunity Commission from enforcing enforcement letter to schools across the country or initiating, continuing, or concluding any investigation based on their interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex; finding, in part, that, in issuing enforcement letter, the federal agencies were required to but did not follow the notice and comment process required by the Administrative Procedures Act
- Law Court: Oral arguments set for September 8th include Fed-16-14, in which the United States District Court for the District of Maine certified three questions in lawsuit against federally-supported health clinic and contraceptive device manufacturer alleging unplanned and unwanted pregnancy and childbirth
- First Circuit: The court held that state unpaid wage claims by putative class of unionized nurses were preempted by the Labor Management Relations Act because the claims plausibly would require interpretation of a collective bargaining agreement
Friday, August 19, 2016
- Law Court: After upholding the application of the “due diligence” requirement of the discovery rule, which prevents the commencement of the limitations period on a fraud claim (here intentional misrepresentation) until “the existence of the cause of action or fraud is discovered or should have been discovered by the plaintiff in the exercise of due diligence and ordinary prudence,” the court held that it was for the jury to decide whether plaintiff exercised due diligence despite failing to check the registry of deeds after receipt of a free-of-encumbrances representation in a warranty deed
- First Circuit: In an unpublished decision, the court affirmed summary judgment for United States Park Service on Federal Tort Claims Act slip-and-fall claim after rejecting plaintiff’s argument that the government bears the burden of showing that discretionary function was “policy driven”
- MHRC: September 12th Commission Meeting Agenda posted
- Bangor Daily: Suit accuses former Maine prosecutor of sexual harassment
- Bangor Daily: Judge dismisses Maine shipyard union’s lawsuit claiming arbitrator bias
- Bangor Daily: Maine Catholic diocese pays $1.2 million to 6 victims of abusive priest
- Bangor Daily: What a Maine college town learned by studying race relations for 8 months
- Bangor Daily: Most Maine courts to expand hours by 30 minutes
Friday, August 12, 2016
- US DOJ: Final Rule implementing The ADA Amendments Act of 2008 for entities covered under title II (State and local governments) and title III (public accommodations and commercial facilities) published in the Federal Register August 11th and will go into effect October 11, 2016
- Maine Superior Court: Summary judgment for employer denied on Whistleblowers’ Protection Act claim despite employer’s argument that termination decisionmaker had no knowledge of plaintiff’s protected complaint, where there was a regular channel of communication between person with knowledge of the complaint and decisionmaker, which justified an inference that the complaint was communicated; and there was close temporal proximity between complaint and termination, as well as evidence of pretext
- Maine Superior Court: The court entered summary judgment for employer on defamation claim arising out of termination letter that was not published to a third party (plaintiff did not argue “compelled self-publication,” which the court said it likely would have rejected anyway)
- Press Herald: UMaine System to pay $30,000 to settle lawsuit by fired UMA athletic director
- Bangor Daily: Judge rules EMMC not negligent in releasing man who later died in fire
Wednesday, August 10, 2016
- Ninth Circuit: The court held that the retaliation provision in the Age Discrimination in Employment Act (ADEA) does not preclude a § 1983 First Amendment retaliation claim that plaintiff was fired for planning to testify against defendant in a lawsuit relating to age discrimination (despite the Ninth Circuit’s earlier decision that the ADEA precludes § 1983 equal protection age discrimination claims)
- MHRC: Minutes from the August 8th meeting reflect that new Commissioner appointee, Fred Oettinger, who is replacing A. Mavourneen Thompson, was unanimously approved by the Judiciary Committee and the Senate and will attend the September meeting; the Commission hired two new Field Investigators, and will be losing Investigator Audrey Gillespie; and Nicole Auclair joined the Commission’s as a Paralegal Assistant
- US District Court ME: Granting summary judgment for plaintiff in employment discrimination claim on defendant’s affirmative defense that plaintiff failed to mitigate her lost-wage damages, the court held that defendant failed to show that comparable jobs to plaintiff’s prior position with defendant were available in the relevant geographic area
- US District Court ME: In denying defendant’s motion for summary judgment on sex discrimination claims, the court held, in part, that individual defendants were not entitled to qualified immunity on § 1983 Fourteenth Amendment claims because it was clearly established in 2011 that a supervisory official who directly engages in sexual harassment or sexual discrimination against a subordinate employee is subject to § 1983 liability, and that a supervisor who, with an unlawful retaliatory motive, passes on accurate information and a recommendation to discharge a subordinate may face § 1983 liability; and that arbitration decisions pursued under a collective bargaining agreement do not have preclusive effect in Title VII or § 1983 claims
- First Circuit: The court held that a child with a strong overall academic achievement but a reading fluency deficit may have a learning disability and be eligible for special education and related services under the Individuals with Disabilities Education Act
- First Circuit: The court affirmed $53,662.50 attorney’s fee award against sex discrimination plaintiff to law firm defendant where plaintiff did not substantively challenge district court’s conclusion that plaintiff continued to pursue claim revealed to be frivolous and without foundation during her deposition; and held that fees incurred by law firm’s associates were nevertheless recoverable
- Maine DOL: John Feeney Appointed Director of the Bureau of Unemployment Compensation at Maine Department of Labor
