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, June 17, 2014
- First Circuit: In affirming dismissal of ERISA claim arising out of termination of long-term disability benefits, the court held that plan administrator’s decision was neither arbitrary nor capricious despite the fact that administrator credited the opinion of a physical therapist over plaintiff’s treating doctor
- 10th Circuit: In affirming judgment following jury verdict for plaintiff on Title VII claim, the court held that McDonnell Douglas is inapplicable to judgment as a matter of law analysis and plaintiff could not recover attorney’s fees incurred during employer’s optional workplace grievance process
- 6th Circuit: In reversing summary judgment for creditor in breach of guarantee action, the court (as a matter of first impression) held that Regulation B interpreting the Equal Credit Opportunity Act, which prohibits a creditor from requiring an applicant’s spouse to guarantee a credit instrument even if someone is required to execute a guarantee, may be asserted as an affirmative defense of recoupment
- District Court ME: In Magistrate Judge’s recommended ruling on defendant’s motion to dismiss, the court held that plaintiff’s defamation claim against former employer survived dismissal despite Workers’ Compensation Act exclusivity provision; that plaintiff sufficiently alleged a breach of employment contract; and that plaintiff failed to allege a sufficient contravention of public policy to support a “wrongful discharge” claim where plaintiff alleged that termination lacks good cause, is based on improper motivation and false accusations, and is followed by the employer’s failure to produce the employee’s personnel file
- MHRC: July 14th Commission Meeting Agenda and Consent Agenda posted
- Press Herald: Order will ban federal contractors from discriminating based on sexual orientation
- Press Herald: Mother of infant girl files lawsuit against Fairfield baby sitter, daughter
- Bangor Daily: Jury awards Millinocket woman more than $200,000 for botched eye surgery
Thursday, June 12, 2014
- US Supreme Court: The Court held that the “discovery rule” in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which preempts state statutes of limitations in actions for personal injury or property damage arising from the release of a hazardous materials into the environment, does not preempt state “statutes of repose,” which are distinguishable from state “statutes of limitations”
- Law Court: In affirming $200,000 judgment on jury verdict for plaintiff in medical malpractice action arising out of misdiagnosis in which plaintiff was told he had a cancer with a life expectancy of less than one year and maybe months, the court upheld the Superior Court’s decision to admit a redacted letter from hospital president stating that doctor “realizes now that prior to sharing his clinical impressions with you, he needed to wait for the results of the biopsy to confirm what the cancer was,” because it was not precluded by the “apology statute” in the Maine Health Security Act, by Maine Rule of Evidence 408(a) as an offer of compromise, or by Rule 403
- Law Court: In affirming Probate Court decision denying petition for a formal adjudication of intestacy and for appointment as personal representative, the court held that the Probate Court did not abuse its discretion in allowing late-designated expert to testify because, although there was no showing of “excusable neglect” under Maine Rule of Civil Procedure 6(b) (which was applicable), the opposing party was not “unfairly surprised” by the expert’s testimony
- HUD: Settlement announced in which apartment complex developer will make modifications to newly built apartment complex that is out of compliance with accessible design requirements of Fair Housing act, including walkways that are too steep; outlets and thermostatic controls that are too high to be reached by individuals using wheelchairs; doors with inaccessible thresholds; bathrooms that do not contain enough space for people using wheelchairs; mailboxes that are too high to be reached by individuals using wheelchairs; and a common laundry room that is too narrow for wheelchair access
- Maine Dept of Labor: May/June edition of Employer Update includes reference to ten upcoming videos that describe the unemployment system including “How to File an Appeal” and “The Hearing Process”
- Bangor Daily: Former employees accuse Village Candle founder of sexual harassment
- Sun Journal: Panel upholds investigator’s no discrimination in Franklin County firing of Jay corrections officer
Monday, June 9, 2014
- US District Court ME: In recommending denial of summary judgment on age discrimination claim, Magistrate Judge held that plaintiff established a prima-facie case where he was fired and another existing employee assumed his job duties even though person who took over his job was older than plaintiff
- US District Court ME: In recommending denial of summary judgment on retaliation claim, Magistrate Judge held that circumstantial evidence supported conclusion that decisionmaker knew of plaintiff’s sex discrimination complaints, and that plaintiff met overall burden of proving retaliation where decisionmaker claimed during deposition that he had to review plaintiff’s termination letter before answering question about the reason for her termination when the purported reason was simply his inability to work with her, which decisionmaker presumably would have recalled if it had been the actual reason
- US District Court ME: In recommending denial of summary judgment on failure to warn claim arising out of injuries sustained by plaintiff while operating lift manufactured by defendant, the court held that plaintiff presented sufficient evidence that he would have read and followed warning labels had they been of the right size, color, and content despite the fact that he did not read any of the other warning labels on the lift
- Ninth Circuit: In reversing summary judgment for city on ADA Title II claim arising out of plaintiff’s fall while attempting to access curb ramp that was blocked by sidewalk vendor’s display, the court held that the fact that plaintiff could have accessed sidewalk without injury by taking a “marginally longer route,” as provided in ADA regulation, did not create a defense under the circumstances
Thursday, June 5, 2014
- First Circuit: In deceased prisoner’s 8th Amendment claim, the court held that it lacked jurisdiction to hear interlocutory appeal of denial of summary judgment for employees of prison healthcare company based on qualified immunity because the denial turned on findings that there remained disputed issues of material fact and inference
- DC Circuit: In reversing summary judgment for employer in Age Discrimination in Employment Act claim, the court held that the following statements by decisionmaker were “direct evidence” of unlawful discrimination, entitling plaintiff to a trial: “you didn’t come here to work, you came here to retire” and “they were not doing their jobs properly, as from time to time they would be found asleep, which was not safe for a government agency in DC, what with all the threats since 9/11”
- Law Court: Oral arguments scheduled for June 10th and 11th, include (Han-14-485) whether trial justice erred in instructing jury in a Maine Human Rights Act employment discrimination claim that plaintiff needed to prove that “the employee’s whistleblowing activities were a substantial . . . factor motivating her termination” and (Cum-13-557) whether an arbitration agreement unambiguously included the tort claims plaintiff asserted
- US District Court ME: Magistrate Judge recommended denial of parent’s appeal from hearing officer decision that child was ineligible for special education services because she did not have a “specific learning disability”
- Press Herald: Lawsuit accuses Portland police officer of excessive force
Monday, June 2, 2014
- Law Court: In affirming summary judgment for defendant on sexual assault claim, the court held that the statute that tolls the statute of limitations as to certain out-of-state defendants did not toll the limitations period when defendant was out of state because he was amenable to service and could have been located
- Ninth Circuit: In reversing summary judgment for hospital on Rehabilitation Act 504 claim for ongoing failure to provide interpreters after initial denial, the court held that each subsequent visit in which an interpreter was not provided created a discrete and independently wrongful discriminatory act causing a new limitations period to start to run
- MHRC: June 9th Commission Meeting Agenda and Consent Agenda published
- MHRC: Guidance documents now available in Arabic, Samoli, Spanish, Creole and French
Wednesday, May 28, 2014
- US Supreme Court: The Court held that police officers who shot a driver of a fleeing vehicle to put an end to a dangerous car chase did not violate the Fourth Amendment, and, alternatively, the officers were entitled to qualified immunity because they violated no clearly established law
- First Circuit: As a matter of first impression, the court held that an employer may be held liable under Title VII if: plaintiff’s co-worker makes statements maligning the plaintiff, for discriminatory reasons and with the intent to cause the plaintiff’s firing; the co-worker’s discriminatory acts proximately cause the plaintiff to be fired; and the employer acts negligently by allowing the co-worker’s acts to achieve their desired effect though it knows (or reasonably should know) of the discriminatory motivation
- First Circuit: In affirming denial of summary judgment to police officers who charged plaintiff with wiretapping for filming a late-night traffic stop, the court held that an individual’s exercise of her First Amendment right to film police activity carried out in public, including a traffic stop, necessarily remains unfettered unless and until a reasonable restriction is imposed or in place, and the right was clearly established
- US District Court ME: Magistrate Judge recommended dismissal of prisoner 1983 claim because the Maine State Prison is a part of the State of Maine and sovereign immunity bars plaintiff’s suit against it, and, in plaintiff’s claim against guard, he did not allege that the guard had reason to believe another inmate would assault plaintiff when he gave the other inmate a shovel
- HUD: Notice permits developers of federally funded construction projects to use the 2010 ADA Standards for Accessible Design as an acceptable alternative to the Uniform Federal Accessibility Standards until HUD updates its 504 regulations
- OSHA: Untimely whistleblower complaints (30 days to file) will be referred to the NLRB for possible investigation (6 months to file)
Friday, May 23, 2014
Thursday, May 22, 2014
- First Circuit: In reversing summary judgment for employer on Title VII failure to promote claim, the court held that recommendation of other candidates prior to plaintiff’s application did not defeat his claim; that employer’s failure to gather background information on successful candidates bolstered plaintiff’s argument that he was the superior candidate; that decisionmakers’ lack of specific knowledge that plaintiff was muslim and from Algeria did not defeat plaintiff’s claim of discrimination based on race, religion, and national origin in light of circumstantial evidence that they viewed him as a a member of multiple minority groups; and lack of overt discriminatory conduct or remarks was not dispositive, particularly in light of demonstrated pattern of bypassing minorities for promotion
- Maine Supreme Court: Invites comments on proposed rule amendments, including to Maine Rules of Appellate Procedure to reduce time for filing briefs in appeals from certain types of trial court orders (comment deadline May 23, 2014); Maine Rules of Civil Procedure regarding the Foreclosure Diversion Program, to establish an expedited track for certain cases, and to establish procedural rules for the Business and Consumer Docket (deadline June 2, 2014); Maine Rules of Professional Conduct regarding advances on fees, nonrefundable fees, and contingent fees (June 2, 2014); and Maine Bar Admission Rules regarding the Multistate Professional Responsibility Examination and reciprocal admission by motion
- HUD: $175,000 settlement with housing provider announced in Fair Housing Act disability (deafness and hard of hearing) discrimination case in which housing provider allegedly hung up on testers who used the IP Relay system or sent their calls directly to voice mail, and when agents spoke with testers using the IP Relay system, they allegedly quoted higher rental prices and failed to offer the same specials and amenities they offered to testers who did not use the IP Relay system
Tuesday, May 20, 2014
- US Supreme Court: SCOTSBlog reports that the Court Monday granted certiorari to decide whether the federal Whistleblower Act of 1989 bars the government from disciplining a federal employee for exposing information that the individual worker believed would be a specific danger to public health or safety when a regulation, but not a specific statute, prohibited the release of the information outside of the agency
- First Circuit: Following jury verdict for plaintiff on Title VII and Puerto Rico law (judgment for $291,500 total), the court held that defendant–who moved for judgment as a matter of law at the conclusion of plaintiff’s case-in-chief and after the close of all evidence but failed to file a post-verdict Rule 50(b) motion–did not preserve its challenge to the sufficiency of the evidence
- US District Court ME: In ruling that defendant must pay the reasonable fees for attending depositions of one of plaintiff’s treating doctors but not another, Magistrate Judge ruled that to recover expert fees the witness must be designated to offer opinions that are not necessarily limited to the witness’s treatment of the party; if the witness’s proposed testimony includes opinions in addition to the witness’s treatment, the patient’s prognosis and, in some situations, the cause of the patient’s condition, the witness can fairly be characterized as an expert witness under Rule 26 (and charge fees in addition to the $40 attendance fee paid to non-experts)
- Bangor Daily: Pregnant worker stabbed by patient at Maine psychiatric hospital files lawsuit
Friday, May 16, 2014
- Second Circuit: The court affirmed a district court remedial order after finding that the New York City Board of Elections violated the ADA and Rehab Act by operating polling sites with pervasive and recurring barriers to access by people with mobility or vision disabilities
- Fourth Circuit: In reversing summary judgment for district attorney on assistant district attorney’s (ADA) First Amendment termination claim, the court held that it is the right of an ADA running for public office not to be fired for speaking publicly in his capacity as a candidate on matters of public concern when the speech is critical of a program that substantially reduces the DA’s office’s caseload but there is no reason to believe the speech will negatively impact the DA’s office’s efficiency
- EEOC: Advance Notice of Proposed Rulemaking seeks public input on regulations requiring federal agencies to be “Model Employers” of individuals with disabilities, including seeking answers questions such as what barriers exist to the hiring, retention, and advancement of individuals with disabilities in the federal government; what regulatory requirements could eliminate these barriers; and whether numerical goals should be established for the employment of people with disabilities by the federal government
- Bangor Daily: Former employee files discrimination complaint against Maine tribal company
- Press Herald (AP): Military fired, disciplined nearly 500 for sexual harassment last fiscal year
