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, August 22, 2014
- First Circuit: In affirming summary judgment for builder-seller of home after buyer paid $1.5 million in repairs, court held that there was no breach of the implied warranty of habitability (under Maine law) because builder, who lived in home before selling it, was not a “builder-vendor” (contractor who builds home for the purposes of sale) and home was not a “new home,” as is required; and “as is” provision in contract defeated fraud and negligent misrepresentation claims because it showed lack of “justifiable reliance”
- First Circuit: In vacating district court decision, the court held that Maine’s unpaid wage law (rather than California’s) applied to jury finding of breach of quasi-contract between Maine-resident salesman and California-based employer, and that prejudgment interest is recoverable on the entire amount awarded in unpaid wages and liquidated damages (an additional amount equal to double the amount of unpaid wages), not just the amount for unpaid wages
- EEOC: In the EEOC’s first lawsuit to directly challenge an employer’s wellness program (94% of large employers use them), EEOC alleges program violated the ADA because it required medical examinations and made disability-related inquiries and employer shifted responsibility for payment of the entire premium for health benefits onto employee who refused to participate in program
Wednesday, August 20, 2014
- Law Court: The court reviewed an allegation of judicial misconduct by a Superior Court Justice for obvious error because the allegation was raised for the first time on appeal; held that the Justice was not obligated by the Code of Judicial Conduct to recuse himself or disclose a friendship with a former colleague who is now an attorney with a party law firm; and construed the Maine’s Uniform Fraudulent Transfer Act
- DC Circuit: In reversing summary judgment for employer, court held that lower court erred in holding that a “maxiflex work schedule” was an unreasonable accommodation as a matter of law (maxiflex schedule is one that contains core hours on fewer than 10 workdays in the biweekly pay period and in which a full-time employee has a basic work requirement of 80 hours for the biweekly pay period, but in which an employee may vary the number of hours worked on a given workday or the number of hours each week within the limits established for the organization)
- Seventh Circuit: In reversing summary judgment for employer, court held that FMLA does not require a plaintiff to present expert testimony that a serious health condition rendered him unable to work (i.e., perform one or more of the essential functions of his position) during the absences for which he claims he was entitled to FMLA leave and for which he was terminated
- Sixth Circuit: The court answered the following questions yes, yes, and no: (1) Is there a triable issue of fact over whether Religious Land Use and Institutionalized Persons Act gives the inmates a right to have access to a sweat lodge for faith-based ceremonies? (2) Is there a triable issue of fact over whether RLUIPA gives the inmates a right to buffalo meat and other traditional foods for a faith-based once-a-year powwow? (3) Does RLUIPA permit inmates to collect money damages from prison officials sued in their individual capacities?
- US Dept of Labor: OSHA ordered employer to pay a total of $953,916 in damages under the Surface Transportation Assistance Act to a foreman and two truck drivers for terminating their employment for raising safety concerns after being directed to violate U.S. Department of Transportation mandated hours of service for commercial truck drivers
- EEOC: Press release discusses Part II of FY 2011 and Part I of FY 2012 Annual Report on Federal Work Force
- HUD: Press release announced that HUD charge alleges Kent State University violated Fair Housing Act by refusing to allows student exception to no-pets policy for emotional support animal
- Bangor Daily: Rights panel finds housing agency discriminated against man suffering from alcoholism, PTSD
- Bangor Daily: Jury finds Bangor officers did not use excessive force in 2011 arrest outside bar
Friday, August 15, 2014
- First Circuit: The court held that ERISA plaintiff was entitled to recover attorney’s fees (she claimed $252,125) following remand from First Circuit but before any long-term-disability benefits eligibility determination was made on remand, where First Circuit decision modified standard of review and thereby achieved “some degree of success on the merits”
- Law Court: The court affirmed trial court’s decision (under clearly erroneous standard) that settlement agreement discussed during deposition reflected that the parties intended to enter into an enforceable settlement agreement to be subsequently memorialized in writing, that the parties did in fact assent to the terms set forth on the record before the court reporter, and that the terms placed on the record reflected all of the material terms of the contract
- US District Court: The Maine Chapter of the Federal Bar Association Presents “The Civil Rights Act of 1964: Justice Then and Now”
- Civil trial over Bangor officers’ alleged use of excessive force begins in federal court
Wednesday, August 13, 2014
- First Circuit: In affirming judgment for plantiff on claim for tranportation services under Title I of Rehabilitation Act, the court held, as a matter of first impression, that 4-year federal catch-all statute of limitations applied to judicial review of adverse hearing officer decision (not the 30-day deadline in the Maine Administrative Procedures Act) because the Rehab Act provision allowing for judicial review was added in 1998, and the federal catch-all SOL applies to civil actions arising under an Act of Congress enacted after December 1, 1990
- Ninth Circuit: The court held that inmate stated a § 1983 claim under Sixth Amendment right to counsel when prison official read as opposed to inspected a confidential letter to his lawyer
- Third Circuit: Court held that state supreme court attorney-conduct guideline that bans advertising with quotations from judicial opinions unless the opinions appear in full was an unconstitutional infringement on commercial speech as applied to law firm that published on its website portions of an opinion that were complimentary to a lawyer in the firm
- MHRC: September 8th Commission meeting Agenda posted
- EEOC: Settlement reached in Title VII case that alleged that employer refused to hire a woman for the courtesy van driver position out of concern that a female driver would be at greater risk of being assaulted on the job than a male driver
Saturday, August 9, 2014
- Law Court: In affirming jury verdict for employer on Whistleblower Protection Act claim, the court held, in part, that improper jury instruction that whistleblowing activity had to make a “substantial difference” in termination decision (it has to be a “substantial factor,” meaning it made a difference) was not prejudicial in light of the instructions as a whole and plaintiff’s failure to request a special verdict form that separated causation into multiple subparts; and that the trial court’s failure to take action to correct defense counsel’s closing argument that impermissibly expressed a personal opinion that the jury should find his witnesses credible based on his purported personal friendship with them did not constitute obvious error
- First Circuit: In denying summary judgment on First Amendment claim brought by independent insurance broker who alleged that he was denied an insurance brokerage contract with the Puerto Rico government because of his political affiliation, the court held, in part, that broker had a preexisting commercial relationship with the Commonwealth and was thus subject to First Amendment protections against retaliation for his political affiliation
- First Circuit: Court held that district court abused its discretion by granting summary judgment for defendant shortly after discovery had begun despite plaintiff’s Rule 56(d) affidavit that adequately explained why it was unable currently to adduce the facts essential to opposing summary judgment
- Seventh Circuit: In reversing summary judgment for employer on Title VII retaliation claim, court held that three-year gap between sexual harassment complaint and adverse action did not bar claim in light of evidence of other retaliatory behavior that bridged gap
- US District Court ME: Updated jury plan posted
- US Dept of Labor: Proposed rule (comment deadline 11/6/14) would require companies that file EEO-1 reports, have more than 100 employees, and hold federal contracts or subcontracts worth $50,000 or more for at least 30 days to to submit an annual Equal Pay Report on employee compensation to the Office of Federal Contract Compliance Programs
- MHRC: August 11 Commission meeting Agenda and Consent Agenda posted
- Bangor Daily: Maine medical malpractice insurer records big drop in claims, but attorney says system is stacked against patients
Tuesday, August 5, 2014
- First Circuit: In granting summary judgment in § 1983 claim for police officers, the court held that there was insufficient evidence of excessive force in violation of the Fourth Amendment where evidence showed that police officers shot and killed plaintiff’s son while he was driving a car toward them (puttting them at risk of serious physical harm) and that, even if plaintiff had relied on admissible expert testimony that the bullet holes in the car showed that it was not driving toward the officers, they would be entitled to qualified immunity because it was not clearly established that it was unconstitutional to shoot a fleeing driver to protect those whom his flight might endanger
- US District Court: In granting summary judgment for former Maine Commissioner of the Department of Agriculture (“DOA”) on First Amendment retaliation claim brought by farmer, the court held that farmer established a prima-facie case of retaliation by showing that defendant discontinued past permissive enforcement practices against him because he filed a successful USDA appeal against defendant, but that defendant established that the DOA would have changed the enforcement practices anyway
- Portland Press Herald: Jury awards $450,000 to Gorham man hurt in crash
Tuesday, July 29, 2014
- DOJ: The Department of Justice issued a Notice of Proposed Rulemaking to amend the Americans with Disabilities Act Title III regulation to provide closed movie captioning and audio description to give persons with hearing and vision disabilities access to movies (closed movie captioning refers to captions that are delivered to the patron at his or her seat and are visible only to that patron; audio description provides a spoken narration of key visual elements of a movie, such as actions, settings, facial expressions, costumes, and scene changes); theaters would have to obtain and install equipment to transmit closed captions and audio description unless doing so would impose an undue burden
- Law Court: Proposed rule changes include repealing and replacing the Maine Bar Rules; restyling the Maine Rules of Evidence to preserve the substance but present them in the language and format consistent with their restyled counterparts in the Federal Rules of Evidence; and repealing and replacing the Maine Rules for Guardians Ad Litem (all comments due September 12, 2014)
- First Circuit: In reversing summary judgment for seaman’s employer, the court found sufficient evidence supporting claim for “maintenance and cure” (requiring vessel owner to pay cost of food and lodging and medical expenses until seaman reaches maximum medical improvement) where seaman suffered from aplastic anemia while in service of employer, regardless of the cause (right is broader than workers’ compensation)
- US District Court ME: In denying motion for summary judgment, the court held that it was for the jury to determine whether plaintiff was fired because of her age in light of (1) inconsistent discipline, (2) inconsistent application of a first offense termination policy, (3) an inadequate investigation by defendant before termination, and (4) age-related comments by supervisors followed by a prolonged period of managerial harassment
- Bangor Daily: Oakland man who claims he was not hired because of epilepsy files discrimination lawsuit
Friday, July 25, 2014
- Law Court: In vacating dismissal of foreclosure action due to bank’s late payment of $150 penalty for failing to provide discovery, the Law Court held that the trial court erred by imposing the $150 penalty without holding a hearing, that the dismissal of a $631,000 claim for a comparatively minor violation did not survive “close scrutiny” (particularly where, as the Law Court concluded, the payment was not late), and that the trial court erred in granting defendant’s motion for findings of fact and conclusions of law pursuant to Maine Rule of Civil Procedure 52(a) because there had not been a hearing or trial to generate a record from which findings could be drawn
- HUD: $13,550 settlement announced in complaint brought by woman who alleged that her landlord evicted her because the police responded to her domestic-violence-related 911 calls and a subsequent landlord refused to rent to her for the same reason; HUD stated that, “No woman should be denied housing based on her status as a domestic violence survivor”
- Bangor Daily: Judiciary committee endorses nominees to state Supreme Court, Superior Court
Tuesday, July 22, 2014
- White House: Press release announced that President Obama signed an amendment to Executive Order 11246, prohibiting discrimination by federal contractors ($10,000 or more), to include sexual orientation and gender identity among the protected classes (Executive Order 11246 is enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs); and that the President signed an amendment to Executive Order 11478, which already bars employment discrimination against federal employees based on sexual orientation and other protected classes, to add gender identity to the protected classes
- Press Herald: Human rights commission faults Brunswick district in bullying case
