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.
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
Thursday, July 17, 2014
- EEOC: In the first comprehensive update since 1983, the EEOC announced that it issued Enforcement Guidance on Pregnancy Discrimination and Related Issues addressing, in part: The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant; lactation as a covered pregnancy-related medical condition; the circumstances under which employers may have to provide light duty for pregnant workers; issues related to leave for pregnancy and for medical conditions related to pregnancy; the PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave; the requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms; when employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and best practices for employers to avoid unlawful discrimination against pregnant workers
- First Circuit: In affirming summary judgment for supervisory police officers on § 1983 claim following $11.5 million verdict against on-scene police officer involved in fatal shooting, the court held that on-scene officer’s disciplinary record of seven instances of alleged misconduct over a nearly fourteen-year period was insufficient to put supervisors on notice that he presented a “substantial,” “unusually serious,” or “grave risk” of shooting an arrestee
- First Circuit: In affirming dismissal of Rehabilitation Act employment discrimination complaint against the US Army because plaintiff did not file an administrative complaint within 15 days of his receipt of a “notice of right to file a formal complaint,” the court refused to equitably toll deadline due to plaintiff’s mental illness because he did not show that the mental disability was so severe that he was unable to engage in rational thought and deliberate decision making sufficient to pursue his claim alone or through counsel
- First Circuit: In affirming summary judgment for plaintiffs, the court held that ERISA preempted a city ordinance that demanded that bidders on municipal public works projects engage in a bona fide apprentice training program registered with the Massachusetts Department of Labor Standards because ERISA specifically includes apprentice training programs in its definition of employee welfare benefit plans, and a state-law mandate regarding the structure or administration of such plans falls within the ambit of ERISA’s preemption provision; but the court also held that plaintiffs were not entitled to attorney’s fees under ERISA’s fee-shifting provision, 29 U.S.C. § 1132(g)(1), because they were “not a participant, beneficiary, or fiduciary of any ERISA apprentice training program”
- US District Court ME: In rejecting in part Magistrate Judge’s recommended decision that summary judgment be granted on employment sex discrimination claim, the court held that plaintiff provided evidence that the actions and decisions (amount of raises and vacation time; budget scrutiny; yelling by Town Manager; move to a new office), when compared with treatment of other similarly situated personnel, correlated specifically with gender, and the weighing of inferences was for the factfinder
- Eighth Circuit: In deciding a matter of first impression in the Eighth Circuit, the court held that where a court declares a mistrial and discharges the jury which then disperses from the confines of the courtroom, the jury can no longer render, reconsider, amend, or clarify a verdict on the mistried counts
- MHRC: 2015 Commission Meeting Schedule posted
Monday, July 14, 2014
Thursday, July 10, 2014
- District Court ME: Court granted judgment on the pleadings on slander per se claim because statement that plaintiff had authored an email that was “false” could be interpreted to mean a) that it was untrue or b) that it was intentionally untrue, and “while the latter meaning could give rise to a slanderous statement if the statement is proven false, the former does not”
- ACLU: Joint Statement on Withdrawal of Support for ENDA and Call for Equal Workplace Protections for LGBT People
Tuesday, July 8, 2014
- First Circuit: In affirming summary judgment for Maine State Prison officials on Eighth Amendment cruel and unusual punishment claims arising out of inmate assaults with padlocks, the court held that one or two padlock assaults annually, with six in one year, did not alone create a substantial risk of serious harm sufficient to impose constitutional liability on defendants, despite the fact that the Prison has no practice or policy of taking away a padlock for any reason, even after the inmate has used it to assault another prisoner
- US District Court ME: In denying motion for summary judgment in age and disability employment discrimination claim, the court held that plaintiff’s affidavit would be considered because it did not simply dispute his previous deposition testimony but, rather, amplified without contradicting it and clarified ambiguous testimony; plaintiff’s claims survived even though defendant decided not to hire anyone into some of the positions for which he was rejected because defendant had a “continuing need” or continued to seek applicants after rejecting the plaintiff; and plaintiff’s receipt of Social Security Disability Income benefits did not establish that he was unable to perform the jobs for which he applied where he explained that a reasonable accommodation would have permitted him to perform them
- US District Court ME: In recommending dismissal of False Claims Act qui tam claim brought against pharmacies that allegedly resold unopened returned drugs to others without refunding the government for, e.g., Medicare and MaineCare payments, Magistrate Judge held that defendants were under no obligation to reimburse the government for payments that the government made for drugs that were returned and resold and that, although submitting returned drugs for payment through Medicaid may generate a direct False Claim, complaint did not allege fraud with sufficient particularity
- MHRC: July 14th Commission Meeting Agenda and Consent Agenda published
- Press Herald: Lawsuit alleges more than 250 labor violations during Maine blueberry harvest
Thursday, July 3, 2014
- US District Court ME: In denying summary judgment on Maine Human Rights Act sexual harassment and retaliation claims, court held, in part, that there was sufficient evidence of an objectively offensive work environment where supervisor asked plaintiff “who is the sexy, attractive new Store Manager in Bangor?”; asked her whether she was going to wear a bikini as her Halloween costume; made numerous other comments about how she was dressed; told her that he “cherished her”; and would frequently leer at her up and down as if he was mentally undressing her
- US District Court ME: In recommending summary judgment be granted for employer on disability discrimination claim, Magistrate held that employer did not unreasonably delay returning employee to work during time period employee was being evaluated by employer’s doctor, and employer was not obligated to provide reasonable accommodation of light-duty work to employee during that period where light-duty recommendation was made by employer’s doctor and employee’s own doctor recommended return to work without restrictions
- US District Court ME: In recommending summary judgment be granted for employer on Maine Whistleblowers’ Protection Act claim, Magistrate held that employee’s reports of suspected abuse and neglect to DHHS were not protected activity because it was part of her job duties to make such reports and employer’s policies required it
- MHRC: The Maine Human Rights Commission announced proposed amendments to Chapter 2: Procedural Rule; and Chapter 3, Employment Regulations of the MHRC
- HUD: $24,375.00 settlement announced in complaint that alleged that real estate company placed internet advertisements and a listing in the Multiple Listing Service that specified that children were not permitted at the advertised condominiums
- HUD: $48,000 settlement announced in sex discrimination complaint against mortgage lender that alleged that it denied application to refinance couples’ home mortgage because wife was on maternity leave
- Bangor Daily: Jury awards $400,000 to railroad worker who complained about chemical spill cleanup in North Yarmouth
Tuesday, July 1, 2014
- First Circuit: In granting summary judgment for MePERS in claim brought under the Contract and Takings Clauses of the United States Constitution, the court held that retired State of Maine employees have no contractual entitlement to cost of living adjustments calculated under pre-2011 law
- Third Circuit: In addressing three issues of first impression before it, the court held that (as does the First Circuit) the Age Discrimination in Employment Act (“ADEA”) precludes an age discrimination action under § 1983 by a former governmental employee, pleading exhaustion of administrative remedies under the ADEA may be in general terms, and submitting the EEOC revised Intake Questionnaire constitutes filing a charge of discrimination for purposes of the charge-filing deadline
- EEOC: $1.35 Million settlement announced in EEOC complaint that alleged employer’s fixed-leave policy failed to consider leave as a reasonable accommodation in violation of the Americans with Disabilities Act and merely tracked the requirements of the Family Medical Leave Act
Friday, June 27, 2014
- First Circuit: In reversing denial of summary judgment for individual defendants on qualified immunity grounds in equal protection claim arising out of property owner being fined by code enforcement officers for land-use violations, the court held that property owner failed to identify a similarly situated but differently treated comparator
- US District Court ME: Effective July 1, 2014, Local Rule 56 will be will require that a party intending to move for summary judgment file either: 1. a joint motion setting forth a proposed schedule agreed to by all the parties and confirming that the parties agree that a pre-filing conference would not be helpful; or 2. a notice of intent to move for summary judgment and the need for a pre-filing conference with a judicial officer
- EEOC: $30,000 settlement announced in ADA suit in which job applicant whose kidneys had been removed, and was therefore unable to do a urine-based drug screen, was denied reasonable accommodation of a blood- or hair-based pre-employment drug test
Wednesday, June 25, 2014
- Third Circuit: In reversing dismissal of § 1983 First Amendment Establishment Clause claim arising out of placement of town sign that read “Bible Baptist Church Welcomes You!,” court held that state statute of limitations, which would have barred claim because sign was installed beyond 2-year SOL and its continued presence was merely a continuation of its effects, would not be applied to 1983 claim because “strict application of the statutory limitations period both serves no salutary purpose and threatens to immunize indefinitely the presence of an allegedly unconstitutional display”
- First Circuit: In affirming summary judgment for employer on FMLA retaliation and interference claim arising out of plaintiff’s termination while on FMLA leave, the court held that right to leave ends upon non-discriminatory termination of employment
- US District Court ME: In partially granting and denying motion to dismiss complaint arising out of Town Manager and Selectman allegedly reporting to sheriff that plaintiff was showing up for public meetings drunk and driving while intoxicated, the court held that otherwise actionable defamation claim based on presumed reputation injury was barred by Maine anti-SLAPP statute, which requires proof of actual damages to overcome moving party’s showing under the first step of the analysis, and plaintiff failed to state Due Process reputation injury claim because the “stigma and the plus” derived from distinct sources, meaning the person who made the false statements that injured another’s reputation did not also change the injured person’s status or rights under substantive state or federal law
- US District Court ME: In a case of first impression, Magistrate Judge recommended dismissal of negligent misrepresentation claim based on “economic loss doctrine” because “where a dispute exists between parties to a bargained-for commercial contract and their dispute is over the value and quality of what was purchased, in the absence of any facts of a special relationship between the parties that might give rise to duty in tort (e.g., a fiduciary relationship), an aggrieved party’s recourse should be governed by the terms of the contract”
- US Dept of Labor: Notice of Proposed Rulemaking issued to change the definition of “spouse” in FMLA to include same-sex marriages in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of DOMA to be unconstitutional
Friday, June 20, 2014
- US Supreme Court: The Court held that plaintiff’s testimony about a former subordinate’s fraudulent activity in her criminal trial was speech as a citizen on a matter of public concern (and therefore protected by the First Amendment) despite the fact that plaintiff learned of the subject matter of his testimony in the course of his employment, but individual defendant was entitled to qualified immunity because plaintiff’s right was not clearly established at the time of his termination, meaning his boss could have reasonably believed that a government employer could fire an employee on account of testimony the employee gave under oath and outside the scope of his ordinary job responsibilities
- First Circuit: The court affirmed summary judgment for employer on First Amendment political affiliation discrimination claim, finding defendant established Mt. Healthy defense by proving by a preponderance of the evidence that it would have taken the same action against the plaintiff even in the absence of protected conduct
- First Circuit: In affirming denial of motion to compel compliance with discovery subpoena against nonparty on grounds that the burden or expense of compliance was outweighed by the likely benefit, the court held that plaintiff failed to meet its burden on appeal of showing the lower court abused its discretion, meaning the “discovery order was plainly wrong and resulted in substantial prejudice to the aggrieved party”
- Law Court: In holding that defendant insurer had duty to defend under homeowner’s policy, the court held that complaint brought by condominium assocation seeking damages against plaintiff homeowner, which alleged that plaintiff’s dog had bitten people, met the broad standard for a duty to defend: if a complaint “reveals a mere potential that the facts may come within the coverage, then the duty to defend exists”
- Bangor Daily: Terminated Orono fire chief files lawsuit claiming age discrimination
