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, April 17, 2015
- EEOC: Proposed rule on employer wellness programs clarifies that the Americans with Disabilities Act allows employers to offer incentives up to 30 percent of the cost of employee-only coverage to employees who participate in a wellness program and/or for achieving health outcomes; describes employer practices that are wellness programs and those that are not; defines what it means for an employee health program to be voluntary; and explains how ADA rules requiring employers to keep medical information confidential apply to medical information obtained as part of voluntary employee health programs
- Law Court: Audio of oral argument posted in Ken-14-347, Patricia Galouch v. Department of Professional & Financial Regulation et al, addressing whether Galouch (1) engaged in protected activity, (2) experienced an adverse employment action, or (3) presented sufficient evidence that the State’s reasons for her termination were a pretext for discriminatory animus; and, on the State’s cross appeal, whether Galouch was bound by factual findings made in a prior arbitration decision
- First Circuit: In reversing summary judgment for insurer on ERISA claim arising out of termination of of long-term disability benefits, the court held, in part, that insurer’s decision was not a reasoned determination because none of the four internal reviewers upon whom it relied compared plaintiff’s symptoms or impairments to any description of the physical and cognitive demands of his own occupation as that term is defined in the plan documents; and found the $5000 penalty awarded by district court sufficient to punish insurer for providing policy agreement 1,157 days late
- MHRC: April 27, 2015 Amended Commission Meeting Agenda & Consent Agenda
- Bangor Daily: Maine senator pulls ‘religious freedom’ bill, clergy rejoice
- Bangor Daily: Investigator says name-calling likely was discrimination
Wednesday, April 15, 2015
- DOJ: Letter of findings issued that school district violated Title II of the Americans with Disabilities Act by refusing to allow elementary student with disability to bring her service animal to school and be assisted occasionally by staff in handling service animal
- EEOC: Employer will pay $150,000 to settle one of the first two lawsuits ever filed by the EEOC alleging sex discrimination against a transgender individual
- Sun Journal: State rights investigator finds reasonable grounds against Jay restaurant
- Sun Journal: Auburn woman sues Bates College; says ‘chick flicks’ were expected
Saturday, April 11, 2015
- Maine DOL: Free courses for employers will cover wage and hour laws, including minimum wage, overtime, youth employment, severance pay, equal pay, leave requirements (family medical leave and domestic violence) and break requirements
- Fifth Circuit: The court reversed summary judgment for employer on Title VII failure to promote claim because defendant did not offer a legitimate, nondiscriminatory reason for its decision
- Maine Superior Court: The court granted summary judgment for defendants in veterinary malpractice case alleging failure to diagnose cancer led to dog’s death because plaintiff failed to offer expert testimony on the standard of care and proximate causation
Wednesday, April 8, 2015
- First Circuit: In affirming summary judgment for employer on Age Discrimination in Employment Act claim, the court held that–even though plaintiff showed a prima-facie case of age discrimination and offered sufficient evidence of pretext–summary judgment was proper because nothing in the record suggested that defendant considered plaintiff’s age in firing him
- First Circuit: In reversing summary judgment for prison nurses on inmate’s 8th amendment cruel and unusual punishment claim based on delay in providing adequate medical care, the court held that inmate presented sufficient evidence that the injury to his jaw was “sufficiently serious” and that nurses showed “deliberate indifference” by waiting 17 hours to send inmate to the hospital
- Maine Legislature: LD 1301 would make several changes to Maine’s motor vehicle laws, including creating a vulnerable user law to protect people on public ways who are not in motor vehicles; amending the law regarding pedestrians in crosswalks; specifying that a person riding a bicycle is required to obey traffic control devices such as lights, stop signs and yield signs; specifying that a person riding a bicycle or scooter or operating on roller skis has the same rights and duties as a person operating a motor vehicle under certain circumstances; expanding the provisions of law for which a violation by a person over 17 years of age riding a bicycle or scooter or operating on roller skis is a traffic infraction; and specifying that the operator of a motor vehicle passing a bicyclist or roller skier proceeding in the same direction must exercise due care by taking into consideration the speed of the motor vehicle and other conditions and leaving a reasonable and proper distance between the motor vehicle and the bicycle or roller skier, but not less than 3 feet, while the motor vehicle is passing the bicycle or roller skier
- Maine Superior Court: The court denied Maine Department of Corrections’ and individual defendants’ motion to dismiss inmate’s complaint that his due process rights were violated by his continued solitary confinement
- Maine Superior Court: The court granted summary judgment for defendant in legal malpractice case, finding no proximately caused harm to plaintiffs
- US DOJ: Settlement of Americans with Disabilities Act claim reached requiring provider of “massive open online courses” to make significant modifications to its website, platform and mobile applications to conform to the Web Content Accessibility Guidelines, which are industry guidelines for making web content accessible to users with disabilities
- Press Herald: North Yarmouth could face lawsuit over firing of deputy fire chief
- Press Herald: Portland settles lawsuit filed by couple charged after filming police vehicle stop
- Bangor Daily: Maine’s ‘religious freedom’ bill is nearly identical to Indiana law
Friday, April 3, 2015
- Maine Legislature: Work session scheduled before Judiciary Committee on Tuesday, April 7th, on LD 434, which would change the law on joint and several liability making a defendant that is less than 50% at fault for plaintiff’s injury only liable for damages equal to the percentage attributable to that defendant
- US District Court ME: In recommending denial of defendant’s motion for summary judgment on Maine Human Rights Act age-based hostile work environment claim, Magistrate Judge held that changes in plaintiff’s work hours and consistent criticism of plaintiff over insignificant matters, together with age-related comments, were sufficient for the case to go to a jury
- EEOC: $12.7 million settlement reached in 44-year-old race discrimination case against trade union for sheet metal journeypersons in New York City
- NY Times: Lawyers Chosen to Present Case for Gay Marriage (Mary L. Bonauto one of two lawyers to present Supreme Court arguments on April 28 in favor of a constitutional right to same-sex marriage)
- Maine Legislature: LD 1200 would create a civil cause of action for intentional interference with “business operations,” meaning an activity engaged in with the object of gain, benefit or advantage, either direct or indirect, by a private entity
- Maine Legislature: Public hearing scheduled before Labor Committee on Monday, April 6th, on LD 921, which would create the right to a leave of absence for employees who are victims of violence
- Maine Legislature: Public hearings scheduled before Labor Committee on Monday, April 6th, on LD 960, which would add “grandparent” and “great-grandparent” to the list of people an employee is entitled to take family medical leave to care for, and further provides that family medical leave may be taken in connection with the serious health condition experienced by any of the listed individuals related to the employee by blood, adoption, legal custody, marriage or domestic partnership
- HUD: Press release announced that HUD kicked off Fair Housing Month 2015
Wednesday, April 1, 2015
- Maine Legislature: LD 1171 would protect from public disclosure information in the records of the Maine Human Rights Commission that identify minors and medical records, medical diagnoses, medical information and information regarding a complainant’s disability
- US District Court ME: The court refused to grant summary judgment for employer on Maine Human Rights Act claim based on plaintiff’s failure to notarize Maine Human Rights Commission complaint where defendant raised the issue in its reply memorandum instead of during the Commission investigation when it could have been easily corrected (and thereby waived it); granted summary judgment on sexual harassment claim because plaintiff did not show harassment was directed at her because of her sex; but denied summary judgment on retaliation claim because plaintiff reasonably believed it was unlawful
- EEOC: DOJ lawsuit alleges Title VII’s prohibition on sex discrimination includes discrimination because of gender identity or because an employee has completed a gender transition or is undertaking a gender transition
- Seventh Circuit: The court held that the Rehabilitation Act prohibits retaliation in claims outside of employment context
- First Circuit: In affirming summary judgment for insurer on ERISA claim, the court held that insurer’s decision to terminate benefits under 24-month Mental Disorder Limitation was reasonable and supported by substantial evidence where plaintiff’s mental disorders contributed to his disability resulting from chronic Lyme disease
- MHRC: Second amended Commission Meeting Agenda for April 27, 2015
Saturday, March 28, 2015
- Seyfarth Shaw issued a “Client Alert” in response to the Supreme Court’s decision in Young v. UPS that “employers should strongly consider adopting practices that consider accommodation of women with ‘normal’ pregnancies'”
- Ninth Circuit: The court reversed $59,892 attorney’s fee award to defendant in ADA Title III claim, holding that one of plaintiff’s claims was not frivolous because it was not clearly resolved by the Ninth Circuit’s prior caselaw, another was not frivolous even though it was rendered moot by defendant’s voluntary remediation, and another was not frivolous simply because plaintiff based his ADA claim on a state law requirement that is not present in the ADA
- Seventh Circuit: In reversing summary judgment for employer on complaint that employer retained less qualified white employee during layoff than plaintiff because of her race, the court, Posner, J., held that “district judge himself, by emphasizing his belief that the defendants’ witnesses had been ‘honest,’ implied correctly that if they were liars a reasonable jury could conclude that [plaintiff’s] race had been a decisive factor in the decision to prefer [the white employee] over her”
- US District Court ME: In adopting Magistrate’s decision enforcing settlement agreement, the court held, in part, that agreement to settle the case for $15,000 plus a confidentiality provision, non-disparagement provision, and no-contact provision was not too vague to be enforced
- Maine Legislature: LD 1101, An Act to Adopt a Retail Workers’ Bill of Rights, would require two weeks’ prior notice of work schedules to employees, with compensation owed for schedule changes under certain circumstances; paying part-time employees the same wage as full-time employees; providing part-time employees the same paid or unpaid time off as full-time employees; providing part-time employees the same eligibility for promotions as full-time employees; and offering additional work to part-time employees before hiring new employees or using contractors or temporary staffing services under certain circumstances
- MHRC: Amended April 27th Commission Meeting Agenda posted
Thursday, March 26, 2015
- MHRC: Commission Changes in Early Case Processing Procedure Effective for cases filed on/after Jan. 1, 2015
- HUD: Proposed rule would implement the Violence Against Women Reauthorization Act of 2013, which expands HUD’s authority to protect survivors of domestic and dating violence, stalking, and sexual assault who are residing in housing assisted by HUD
- US Supreme Court: In Young v. United Parcel Service, Inc., the Court articulated a new standard for proving a denial of reasonable accommodation for pregnancy under Title VII provision that requires employers to treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or in- ability to work”: Plaintiff must show disparate treatment under a McDonnell Douglas framework in which she proves pretext “by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination[, and] plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers”
- US District Court ME: In affirming Magistrate Judge’s recommended decision granting motion for collective action under Fair Labor Standards Act and certification of class action on state unpaid overtime and minimum wage claims, the court wrote separately on the class action requirements of commonality, predominance, superiority, and ascertainability to ensure the required “rigorous analysis” was conducted
- Law Court: In reversing Superior Court denial of motion to consolidate dispute by various attorneys to $1.2 million fee, the court noted that lower courts do not have unfettered discretion to separate cases when “closely-related claims, counterclaims, and cross-claims among the parties directly affect what any particular party may eventually be awarded and which party will be required to pay those awards”
- Law Court: Oral arguments set for April 7th include Ken-14-347, Patricia Galouch v. Department of Professional & Financial Regulation et al., which will decide various issues under the Whistleblowers’ Protection Act including the scope of protected activity and whether plaintiff is bound by factual findings in a prior arbitration decision
- Bangor Daily: Human rights panel finds grounds for discrimination in Camden housing case
- Bangor Daily: Rights panel turns aside LePage plea to reopen bias case against Moody’s Diner
- Sun Journal: Judge orders Albany Township man to pay assault victim $1.2 million
Saturday, March 21, 2015
- US Supreme Court: SCOTUSblog argument preview discusses San Francisco v. Sheehan, set for oral argument Monday, which will decide “[w]hether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody”
- First Circuit: In refusing to vacate an arbitration award, the court stated that “the sole inquiry is whether the arbitrators even arguably construed the underlying agreements and, thus, acted within the scope of their contractually delineated powers. A legal error (even a serious one) in contract interpretation is, in and of itself, not a sufficient reason for a federal court to undo an arbitration award.”
- Bangor Daily: LePage continues to withhold funds in Moody’s Diner case
Thursday, March 19, 2015
- Maine Superior Court: In denying primary care doctor’s motion for summary judgment on fraud and punitive damages claims in medical malpractice claim in which patient with a history of breast cancer died after being diagnosed with metastatic bone cancer, the court found sufficient evidence of fraud and malice where defendant who told patient that oncologist had reviewed her lumbar MRI (she had severe back pain) and felt that nothing further needed to be done had made the statement in order to cover up the fact that he had allowed months to pass without taking action, and oncologist had actually said patient needed a full workup
- Maine Superior Court: In deciding 80B appeal and motions for summary judgment on §1983 due process claims arising out of former town employees termination following a license suspension for OUI (the town alleged he failed to notify it of the suspension as required by rule), the court held that due process claims were available in addition to the 80B appeal, plaintiff was denied a pre-termination hearing, there was sufficient evidence of bias in the termination decision to establish denial of due process, and, under 80B, select board’s termination decision was vacated and remanded because because plaintiff had not violated the rule requiring notice of suspension
- First Circuit: In reversing denial of motion to substitute party after death of plaintiff in Americans with Disabilities Act employment discrimination claim, the court noted that the ADA is silent on whether claims are inheritable and held that claim was inheritable under Puerto Rico law (the court did not decide whether federal common law or state law applied because the parties agreed Puerto Rico law did)
- Law Court: In affirming summary judgment for bank on claim arising out of plaintiff’s spouse depositing $109,669.49 annuity into joint checking account without plaintiff’s indorsement and then withdrawing $40,000, the court held that Uniform Commercial Code did not require indorsement on check before bank deposited the funds
- Maine Legislature: LD 960 would amend Maine’s family medical leave law to allow, in part, leave to be taken by an employee to care for a “grandparent” and “great-grandparent”
