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.
Monday, December 22, 2014
- NLRB: The National Labor Relations Board Office of General Counsel has issued consolidated complaints against McDonald’s USA, LLC, and its franchisees alleging they are a joint employer
- First Circuit: In an en banc decision, the court held that the Massachusetts Department of Correction did not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment by refusing to provide sex reassignment surgery for an inmate with gender identity disorder
- First Circuit: In affirming summary judgment for employer in ADA reasonable accommodation and constructive discharge claims brought by EEOC on behalf of former employee with diabetes, the court held that employee failed to participate in good faith in the interactive process by resigning rather than exploring employer’s offer to look for alternative accommodations after it informed employee that it could not accommodate her request to work a set 9-5 schedule
- First Circuit: In affirming summary judgment for insurer in reach and apply claim following $100,000 judgment against insured selectman on slander and due process claims brought by former plumbing inspector, the court held that “employment-related practices” exclusion barred plumbing inspector’s recovery against insurer even if he was an independent contractor because, as the district court properly held, “although the ordinary person unschooled in the law or in insurance appreciates that there is a distinction between being an employee and an independent contractor, the ordinary person also appreciates that either status is a form of employment”
- US District Court ME: In denying, in part, motion to dismiss pro se complaint, the court held that plaintiff sufficiently alleged a violation of the Fourth Amendment (illegal arrest and excessive force) where officer arrested plaintiff for refusing to sign summons for misusing 911 emergency call system but plaintiff alleged that repeated prior 911 calls were for actual emergencies; rejected claim that individuals may be liable under the ADA or the public accommodations provisions of the Maine Human Rights Act (“MHRA”); and found sufficient ADA and MHRA allegations against police department because the arresting officer may have wrongly arrested plaintiff, a person with a disability, because he misperceived the effects of her disability as criminal activity
- Fifth Circuit: In reversing denial of attorney’s fees to plaintiff who prevailed on constitutional claim, the court held that court must award attorney’s fees under 42 USC § 1988 (despite discretionary language in § 1988) to prevailing plaintiff unless “special circumstances” are present, and limited nature and scope of injunctive relief and limited injury to rights play no role in the special-circumstances analysis, although they are relevant to the reasonableness of a fee request
- MHRC: January 26th Commission meeting Agenda posted
Friday, December 19, 2014
- Law Court: In affirming $750,000 jury verdict for injured bicyclist, the court held that Maine statute that provides, “A person operating a bicycle or roller skis may pass a vehicle on the right at the bicyclist’s or roller skier’s own risk,” does not create primary assumption of the risk, completely insulating other drivers from liability; and another statute that dictates when a bicyclist must ride on the right does not prohibit doing so when it is not required
- Law Court: In dismissing appeal as interlocutory, the court held, sua sponte, that there was no “final judgment” because two counts had not been decided when the Superior Court entered summary judgment for plaintiff
- US Dept of Labor: In retaliation case under the Federal Railroad Safety Act (FRSA), OSHA ordered employer who disciplined employee for reporting a work-related injury to OSHA to pay the employee a total of $250,000 in punitive damages (the largest punitive damages award ever under the FRSA), $10,000 in compensatory damages, and to pay employee’s attorney fees; and to expunge the employee’s record of all disciplinary action
Tuesday, December 16, 2014
- US District Court ME: Magistrate recommended class certification and allowing plaintiffs to file opt-in consent forms in Fair Labor Standards Act and state law claims for unpaid overtime brought by house managers who worked 24-hour shifts for seven consecutive days from Wednesday to Wednesday, which were counted as two work weeks, and were paid for 16 hours per day with 8 hours per day designated unpaid sleep time
- US District Court ME: In awarding $49,574.50 in attorney’s fees and costs in Individuals with Disabilities in Education Act claim in which defendant failed to provide student with a free, appropriate public education for his sixth grade year, the court found that $300/hr rate for attorney with 25 years experience and $200/hr rate for attorneys with 5 years experience were reasonable but reduced total award by 30% based on partial success on the merits
- US District Court ME: In granting plaintiff’s motion to remand case to state court, the court ordered defendant to pay plaintiff’s costs and expenses in seeking remand, pursuant to 28 U.S.C. § 1447(c), in light of plaintiff’s earlier offer to stipulate to total damages of less than the amount required to invoke diversity jurisdiction
Friday, December 12, 2014
- US District Court ME: In denying motion for summary judgment in Maine Human Rights Act disability employment discrimination case, the court held, in part, that “but for” causation is not the correct standard for proving termination because of disability; rather, the standard is whether the claimed discrimination “was a substantial, even though perhaps not the only, factor motivating the employee’s dismissal”
- US District Court ME: In granting motion in limine to exclude (in diversity jurisdiction employment discrimination claim brought by pharmacy tech) consent agreement from plaintiff’s pharmacy board disciplinary action, the court held that Federal Rule of Evidence 408 applied, not the Maine Rule, making conduct and statements from compromise negotiations even with non-parties inadmissible
- First Circuit: In granting summary judgment for police officers on arrestee’s §1983 excessive force claim, the court held that officers were entitled to qualified immunity because plaintiff had no clearly established right to be cuffed with his hands in front of him and the officers reasonably understood their actions in effectuating the arrest to be constitutional
- Ninth Circuit: En banc decision held that, despite US Supreme Court’s decision in BMW of North America, Inc. v. Gore, $300,000 punitive damages verdict in a Title VII sexual harassment case in which only nominal damages were awarded comports with due process
- Fifth Circuit: In reversing summary judgment for home-health company on nurse employee’s ADA disability discrimination claim, the court held that driving (plaintiff had a driving restriction because of an epileptic seizure) was not an essential function of the Team Leader job because using a taxi or van service might have enabled plaintiff to discharge her duties
- Burnham woman seeks $3 million in damages from Knox County over alleged sex assault in jail
- Maine court considers whether assault at fraternity house in Orono could have been foreseen
- Jury awards less money than final offer in 2005 Camden car crash
Wednesday, December 10, 2014
- US Supreme Court: The Court held that Federal Rule of Evidence 606(b) precluded plaintiff seeking a new trial from using a juror’s affidavit of what another juror said in deliberations to demonstrate the other juror’s dishonesty during voir dire; plaintiff’s claim was for injuries in a motorcycle accident and the second juror said during deliberations that her daughter had been involved in a fatal accident and it would have ruined her life if she had been sued, but the juror said during voir dire that she could be fair and impartial; FRE 606(b) provides that certain juror testimony regarding what occurred in a jury room is inadmissible during an inquiry into the validity of a verdict
- US Supreme Court: The Court held that the time plaintiffs spent before leaving the workplace undergoing antitheft security screening (they retrieved products from warehouse shelves and packaged them for delivery to Amazon.com customers) was not compensable under the Fair Labor Standards Act of 1938
- Fifth Circuit: In affirming denial of motion to dismiss First Amendment employment claim, the court held, in part, that deputy sheriff’s transfer from covering the streets to the jail was an “adverse employment action” even without an alleged cut in pay or other tangible benefits where transfer was typically considered a demotion
- First Circuit: In claim under the Individuals with Disabilities Education Act, the court held, contrary to hearing officer’s decision, that school did not have to pay for psychoeducational evaluation because prior settlement agreement did not provide for it
- DOE: The US Department of Education released new guidance: Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities
- Bangor Daily: Maine court to consider whether fraternity can be held liable for assault at Orono house
Friday, December 5, 2014
- US Dept of Labor: Final Rule announced prohibiting discrimination by federal contractors against applicants and employees based on sexual orientation or gender identity; fact sheet and “frequently asked questions” also issued
- MHRC: December 15th Agenda and Consent Agenda posted
- Maine Dept. of Labor: 10 videos new videos explain the unemployment system
Tuesday, December 2, 2014
- Bangor Daily: Transgender student’s lawsuit ends with $75K award, order telling Orono schools to allow bathroom access
- Law Court: In legal malpractice claim, the court adopted the “multifactor third-party beneficiary test” for determining the scope of an attorney’s duty of care to nonclients
- Law Court: Oral arguments scheduled for December 9th and 10th, including Pen 14-139, in which plaintiff is appealing summary judgment for college fraternity on negligence claims and dismissal of vicarious liability claim against fraternity because plaintiff settled with member
- US Courts: Amendments to various rules took effect December 1, 2014, including amendment to the hearsay rules for prior consistent statements and records of regularly conducted activity
- US District Court ME: Magistrate granted motion to quash subpoena served on third party after close of discovery where issuing party did not first seek court order allowing it and did not provide advance notice to opposing party
- US District Court ME: Magistrate recommended judgment for RSU on Individuals with Disabilities Act and Maine law appeal based, in part, on change in statute of limitations for requesting an administrative hearing from four to two years
- US District Court ME: Magistrate granted motion to amend complaint to include Family Medical Leave Act claim where complaint sufficiently alleged willful violation (making three-year statute of limitations applicable)
- First Circuit: The court affirmed dismissal of False Claims Act qui tam action based on “first-to-file” rule
- US Supreme Court: Oral argument set for Wednesday, December 2nd, in Young v. UPS, which will decide the following question presented: Whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are “similar in their ability or inability to work”
Tuesday, November 25, 2014
- Third Circuit: In affirming denial of summary judgment on First Amendment claim, court held that high-ranking school system employee’s leak to newspaper that superintendent had steered a contract to an ineligible business was protected speech because it was not made pursuant to plaintiff’s official duties (the court rejected the argument that learning of the impropriety pursuant to official duties meets the “official duties” exception), and that speech did not cause a “workplace disruption” because the relationship between plaintiff and superintendent was neither close, personal, nor confidential, and plaintiff was not superintendent’s “alter ego”
- Sun Journal: State agency investigator sides with nurse against St. Mary’s
Friday, November 21, 2014
- US District Court ME: Magistrate Judge recommended, in part, denial of summary judgment in claim by pro se inmate that he was denied procedural due process when he was transferred to the Maine State Prison’s supermax unit on two occasions without first receiving a hearing, and that while at the Androscoggin County Jail he was classified as special management and/or maximum security classification (what amounted to segregation) without first receiving a hearing
- US District Court ME: The court, in part, denied city’s motion for summary judgment on due process claim alleging police department’s form trespass orders (issued at the request of landlords) denied tenant of property interest without notice and an opportunity to be heard
- Press Herald: Panel finds religious discrimination at Waldoboro restaurant
