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, February 3, 2016
- Fifth Circuit: As a matter of first impression in the Fifth Circuit (it’s still undecided in the First), the court held that Section 504 of the Rehabilitation Act authorizes employment discrimination suits by independent contractors
- US District Court ME: Magistrate Judge recommended denial of motion to dismiss claim brought by police officer allegedly injured by third party as a result of defendant property manager’s negligence, preferring to wait for a more developed factual record before considering the possible application of the “professional rescuer rule” (barring recovery by a person injured in the course of performing his professional duties), which has not yet been adopted by the Law Court
- Maine Superior Court: The court denied summary judgment on claim for negligent entrustment of a motor vehicle; finding sufficient evidence that driver to whom car was entrusted was “incompetent, inexperienced, or reckless”; where driver had eight prior convictions for speeding, two prior accidents, and two prior arrests for OUI
Saturday, January 30, 2016
- US District Court ME: The court certified the following question to the Law Court: “Is a claim for disparate impact age discrimination under the Maine Human Rights Act evaluated under the ‘reasonable factor other than age’ standard; the ‘business necessity’ standard; or some other standard?”
- US District Court ME: The court granted summary judgment for school on student’s claim that school violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by refusing to allow him to wear an audio recording device throughout his school day, because student did not first exhaust claim pursuant to the Individuals with Disabilities Education Act; but denied summary judgment on several of student’s retaliation and First Amendment claims
- US District Court ME: In largely denying motion to dismiss complaint against prosecutor and others for tort and civil rights violations arising out of prosecutor failing to produce exculpatory material in criminal case, the court, in part, found that claims were timely under state and federal “discovery rule,” and that prosecutor was not entitled to absolute immunity for the legal advice she gave law enforcement officers about how to respond to defense subpoenas
- US District Court ME: In recommending partial summary judgment for employer on unpaid overtime claim brought by delivery drivers, the court held that exception to overtime for “distribution” of perishable goods applied to drivers
- Maine Superior Court: In denying summary judgment for veterinary clinic on negligence claim arising out of plaintiff’s fall in snow in clinic’s parking lot during a snowstorm, the court found issues of fact on whether clinic failed to maintain reasonably safe premises and whether plaintiff was a trespasser (plaintiff had stopped to care for her daughter rather than use the clinic but the clinic had not asked her to leave)
- Maine Superior Court: The court sustained Maine State Prison inmate’s 80C appeal and reversed his disciplinary punishment because he did not receive statutorily required fair hearing under high standards of fairness and equity
- EEOC: Proposed changes would require employers with more than 100 employees to report on the EEO-1 aggregate data on pay ranges and hours worked beginning with the September 2017 report
- Bangor Daily: Millinocket couple awarded $1.785M in malpractice trial
- WCSH: ME Human Rights Commission issues guidance on sexual orientation discrimination in schools
Wednesday, January 27, 2016
- First Circuit: The court reversed summary judgment for defendant on First Amendment claim that plaintiff was stripped of job duties and ultimately fired because of her political affiliation, finding, in part, that defendant moving personnel files that were part of plaintiff’s job duties was an adverse employment action because it made plaintiff’s job “unreasonably inferior to what the job is supposed to be”
- US Supreme Court: In a per curium opinion, the Court reversed decision of the Idaho Supreme Court to award attorney’s fees to prevailing defendant in § 1983 suit arising out of bite by police dog, where the state court did not find that plaintiff’s action “was frivolous, unreasonable, or without foundation”
Saturday, January 23, 2016
- MHRC: New guidance memo on gender identity and gender expression in education covers the determination of a student’s gender identity; athletics; the use the toilet, locker room, and shower facilities; harassment; and student names/appearance
- EEOC: Public comment sought on new retaliation guidance (deadline 2/24/16)
- Law Court: Oral arguments set for February 9-11 include Yor-15-219 (whether plaintiff who was injured in fall on city property substantially complied with Maine Tort Claims Act notice of claim requirement by verbally informing a city employee that he was pursuing a claim and giving him his emergency room records); Ken-15-234 (how to determine the “date of discovery” for purposes of fraud 6-year statute of limitations); Cum-15-207 (whether the State of Maine is required to provide underinsured motorist coverage)
- Eighth Circuit: Following $620,000 Title VII verdict, the court held that denied job transfer was an “adverse employment action” despite no change in pay, benefits, or rank because it involved “a significant change in working conditions,” namely, higher profile, significant supervisory duties, more contact with command rank officers, and regular daytime hours and holidays off
- EEOC: $115,000 settlement reached in Title VII lawsuit alleging employer refused to allow transgender employee to use bathroom consistent with her gender identity
- MHRC: January 11th Commission Meeting minutes issued
Monday, January 18, 2016, MLK Day
- First Circuit: Eliminating the “job-duties exception,” the court clarified that the critical point when analyzing whether a plaintiff has made out the first element of a Maine Whistleblowers’ Protection Act claim–engaging in activity protected by the Act–is an employee’s motivation in making a particular report or complaint (i.e., is it made to shed light on and “in opposition to” an employer’s potential illegal acts rather than as simply part of his or her everyday job duties), and although a particular employee’s job duties may be relevant in discerning his or her actual motivation in reporting information, those duties are not dispositive of the question
- US District Court ME: Proposed changes to Local Rules would increase the time for discovery in Standard Track cases from 4 months to 5 months and the time for trial from 6 months to 7 months after the scheduling order issues; alter early processing of IDEA cases; and add a requirement that parties address Daubert and Kumho motions at the time of the Pre-Filing Conference
Wednesday, January 13, 2016
- SCOTUSBLOG: Article describes upcoming Supreme Court argument (set for January 19th) in Heffernan v. City of Paterson, which will decide question presented, “Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate,” even if the perception turns out to be wrong
- EEOC: Latest edition of Digest of Equal Employment Opportunity Law, applicable to federal sector employees, includes a special year-end selection of notable EEOC decisions for fiscal year 2015
- NY Times: Supreme Court Seems Poised to Deal Unions a Major Setback
- Bangor Daily: Maine may assign top court justices to criminal trials to ease backlog
- Press Herald: Two former workers sue BIW, charge illegal firings under medical leave law
- Kennebec Journal: Crowley-Smilek family settles lawsuit against Farmington officer
Saturday, January 9, 2016
- US District Court ME: The court certified three questions to the Law Court addressing failed sterilization claim against drug manufacturer and distributor
- EEOC: Lawsuit settled alleging employer violated the Genetic Information Non-Discrimination Act by requiring applicants to undergo a post-offer medical examination that asked whether applicant had a family medical history for “TB, Cancer, Diabetes, Epilepsy, [and] Heart Disease”
- MHRC: February 8th Commission Meeting Agenda posted
Wednesday, January 6, 2016
- US District Court ME: Following substantive changes to deposition testimony on errata sheet by plaintiff, Magistrate allowed defendant to reopen plaintiff’s deposition to ask follow-up questions on the reasons for the changes
- US District Court ME: Magistrate denied plaintiff’s motion for leave to designate (after the expert designation deadline) second treating nurse practitioner to testify that he had a protected disability under the Americans with Disabilities Act and the Maine Human Rights Act after the first nurse practitioner that he designated testified unfavorably
- US District Court ME: In denying summary judgment on plaintiff’s Fourth Amendment excessive force claim, Magistrate held that plaintiff was not required to personally identify the officers who engaged in the alleged unlawful conduct (plaintiff could not unequivocally identify who took him to the ground, who injured his arm, and who knelt on his head)
- MHRC: January 11, 2016 Commission Meeting Agenda & Consent Agenda posted
- Press Herald: Six men sue Roman Catholic Diocese of Portland, alleging abuse decades ago
Wednesday, December 30, 2015
- EEOC: New resource document issued: “Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern”
- EEOC: New resource document issued: “Questions and Answers for Employees: Workplace Rights of Employees Who Are, or Are Perceived to Be, Muslim or Middle Eastern
- US District Court ME: In denying motion to dismiss harassment, retaliation, and constitutional claims brought by former nurse at the Maine State Prison against the DOC and nurse’s direct employer, the court held, in part, that the complaint sufficiently alleged a “joint employer” relationship for purposes of Title VII, the MHRA, and the MWPA, and that allegations of daily offensive racially derogatory remarks—made by state employees at a state-operated facility— involve a matter of public concern warranting First Amendment protection
- US District Court ME: In granting Rule 12(b)(6) motion to dismiss age discrimination complaint, the court held that mere allegation that termination was because of age was not “plausible on its face” without supporting factual allegations, and inference of age discrimination was undercut by the fact that plaintiff was hired in his late 50s and terminated at age 64
- US District Court ME: In denying motion for summary judgment on ADA and MHRA disability discrimination claims, the court found sufficient evidence that plaintiff was “qualified” despite request for indefinite leave extension where employer told plaintiff he needed to be off all medications before returning to work
- First Circuit: In affirming dismissal of § 1983 Due Process claim that employer failed to provide an adequate “name-clearing” forum, the court held that complaint did not allege all five of the elements of the claim, which are: (1) the alleged defamatory statement must seriously damage the employee’s standing and association in the community; (2) the employee must dispute the statement as false; (3) the statement must have been intentionally publicized by the government; (4) the stigmatizing statement must have been made in conjunction with an alteration of the employee’s legal status, such as the termination of his employment; and (5) the government must have failed to comply with the employee’s request for a name-clearing hearing
Wednesday, December 23, 2015
- Bangor Daily: LePage nominates chief counsel, two others to District Court bench
- US Department of Transportation: Circular provides compliance guidance on the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 for public transit services, including fixed route bus, complementary paratransit, demand responsive, rail (rapid, light, and commuter), and water transportation/passenger ferries
- EEOC: Lawsuit filed against McDonald’s alleges disability discrimination when manager canceled job interview after learning that applicant who is deaf needed an interpreter for interview
