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, January 31, 2014
- Law Court: In vacating summary judgment for school and entering it for student and Maine Human Rights Commission, the court held that the Maine Human Rights Act prohibits a school from denying a transgender student access to communal girls’ bathrooms that are consistent with her gender identity
- Maine Superior Court: In denying summary judgment for State of Maine on Maine Human Rights Act claim, court held that prior arbitrator’s decision in employment-related grievance brought by union for employee under collective bargaining agreement, finding that employee was terminated for failing to perform job adequately, did not preclude subsequent MHRA discrimination claim and issue of pretext remained for decision
- Ninth Circuit: In state university professor’s First Amendment retaliation claim, the court held that teaching and academic writing that are performed “pursuant to the official duties” of a teacher and professor are protected by the First Amendment, creating an exception to the Supreme Court’s holding in Garcetti v. Ceballos that, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline”
- Department of Justice: Notice of Proposed Rulemaking issued for amendments to the Department’s regulations interpreting titles II (public entities) and III (places of public accommodation) of the Americans with Disabilities Act to implement the ADA Amendments Act of 2008; comment deadline March 31, 2014
Thursday, January 30, 2014
- US District Court ME: Magistrate Judge held that plaintiff implicitly waived its right to arbitrate by filing motion to stay court proceeding pending arbitration ten days before the close of discovery
- Maine Superior Court: Opinion denied Maine Correctional Center prisoner’s request for preliminary injunction to receive off-site medical care because prisoner failed to provide expert medical testimony that such care was necessary and 34-A M.R.S. § 3031(2) does not require that a facility provide medical care “that the facility’s treating physician or treating psychiatrist or psychologist determines unnecessary”
- Maine Superior Court: Opinion held that former state employee did not have standing to challenge arbitrator’s decision against her in proceeding brought by her union unless she proved that union breached its duty of fair representation, which she did not do
Wednesday, January 29, 2014
- Seventh Circuit: Creating a split with the First Circuit, the court held that the FMLA applies when an employee requests leave so that she can provide physical and psychological care to a terminally ill parent while that parent is traveling away from home (here to Las Vegas) even for reasons unrelated to medical treatment of the parent’s illnesses
- First Circuit: Affirming summary judgment for employer on claim alleging political discrimination in violation of First Amendment, the court held that employee failed to discredit employer’s proferred nondiscriminatory reasons for alleged harassment of employee
Tuesday, January 28, 2014
- US Supreme Court: The Court held that donning and doffing pieces of protective gear constitutes “changing clothes” and thus could be collectively bargained as being noncompensable time under the Fair Labor Standards Act
- First Circuit: In affirming summary judgment for employer on § 1981 race discrimination claim, the court held that employee failed to rebut employer’s legitimate, nondiscriminatory basis for her termination with evidence of pretext and discriminatory motive and failed to establish a prima-facie case of unlawful retaliation
- US District Court ME: In granting summary judgment for employer on EEOC’s ADA claim, the court held that employee who resigned immediately after employer said it could not provide her with the precise reasonable accommodation she requested of working a predictable day shift failed to engage in good faith in the interactive process and was not constructively discharged
- MHRC: The Commission posted its February 24, 2014, Commission Meeting Agenda
- Bangor Daily: Human rights panel supports Falmouth man’s sexual harassment claim against supervisor
Monday, January 27, 2014
- US District Court ME: Following jury verdict for plaintiffs on unpaid overtime wage claim, judge ruled that defendants’ state director’s interactions with US Department of Labor investigator supported the conclusion that defendants acted in good faith in continuing to treat Adult Foster Care Providers as independent contractors not subject to overtime requirements, rendering defendants exempt from liquidated (double) damages, but the DOL investigator’s statements did not rise to a “written administrative regulation, order, ruling, approval, or interpretation,” which would have provided a complete defense to liability
- Bangor Daily: Presque Isle doctor found negligent in patient’s care
Friday, January 24, 2014
- Law Court: In divided opinion, court held that a landlord’s refusal to rent to a tenant based on its refusal to include a tenancy addendum required by the Section 8 Housing Choice Voucher Program does not constitute unlawful discrimination on the basis of tenant’s status as a public assistance recipient in violation of the Maine Human Rights Act
- Fourth Circuit: In first federal Court of Appeals decision to interpret the “actual-disability” prong of the definition of disability in the ADA, court held that temporary injuries that were expected to heal within a year met the definition
- Bangor Daily: Controversial Maine ‘religious freedom’ bill rejected by legislative committee
- MHRC: Intake walk-in hours noon to 4 PM, Monday through Friday, announced
Wednesday, January 22, 2014
- Maine Legislature: Public hearing scheduled for Tuesday, January 28, 2014, 2:00 PM, Labor Committee, Cross Building, Room 208, on LD 1669, An Act To Standardize and Simplify the Process for Employers To Provide a Drug-free Workplace, which would require the Commissioner of Labor to establish a model drug-testing policy instead of employers drafting their own, remove the requirements that employers provide an employee assistance program and pay for half of rehabilitation beyond services provided through health care benefits, and amend the definition of “probable cause” to provide that a single work-related accident is probable cause to suspect an employee is under the influence of a substance of abuse
- Tenth Circuit: In reversing summary judgment for employer on FMLA and ADA retaliation claim, court held, in part, that showing of differential treatment was sufficient despite some differences in groups of decision makers
- US Supreme Court: SCOTUSblog coverage of Tuesday oral argument in Harris v. Quinn concludes that Justice Scalia, who may end up casting the deciding vote, appeared skeptical that public employee union activity is more about shaping public policy — with implications for the First Amendment — than about the traditional union role of seeking to improve the working conditions of those it represents
- Press Herald: Panel to hear Portland employee’s sexual harassment complaint
- Press Herald: Attorney General’s Office asks to withdraw from Maine whistleblower case
Tuesday, January 21, 2014
- First Circuit: Decision affirmed district court judgment that Mass. Department of Corrections violated Eighth Amendment when it failed to provide inmate sex-reassignment surgery that was medically necessary to treat gender identity disorder
- US District Court ME: Decision denied summary judgment for employer on Title VII and MHRA retaliation claims arising out of “discrete acts” of suspension and threat of termination (including claim for punitive damages) but granted it on retaliatory harassment claim, reasoning, in part, that the claim was untimely because the one event that occurred within statute of limitations that was part of the alleged hostile environment was not objectively offensive and the suspension and threat of termination (which also occurred within the limitations period) could not be both “discrete acts” and anchoring acts for purposes of the hostile environment claim
- Maine Superior Court: In awarding over $340,000 to plaintiff who fell when handrail detached from wall, Superior Court Justice held that builder was liable for independent subcontractor’s negligent installation of the handrail and that the cause of action did not accrue until the date of the injury as opposed to the date of installation
- Maine Superior Court: Decision held that complaint against Roman Catholic Bishop of Portland alleging sexual abuse by priest in 1976-1979 should not be dismissed as time-barred because it alleged Bishop, who was responsible for supervising priest, concealed knowledge of priest’s sexual abuse against minors until 2009
- Maine Superior Court: Decision held that banquet servers were entitled to receive as wages the full amount of fixed percentages added to bills under banquet service contracts designated “gratuities” but not when designated “service charges”
- Maine Superior Court: In denying special motion to dismiss under Maine anti-SLAPP statute, decision held that respondent offered prima facie evidence that all of the claims and materials submitted by complainant to the Maine Human Rights Commission were devoid of any reasonable factual support and respondent incurred attorney’s fees in defending them
- MHRC: Maine Human Rights Commission posted cases listed on January 27, 2014, Agenda and Consent Agenda, including notice that parties will be permitted five minutes (instead of ten) for argument per side
- Maine DOL: Maine Department of Labor January 2014 issue of bimonthly “Employer Newsletter” describes upcoming bills of interest to Maine employers and a loan fund available to Maine businesses and residents to pay for accommodations for employees with disabilities such as for adaptive equipment; assistive technology; and modifications such as accessible restrooms, ramps, elevators, lifts, and adapted vans
- SSA: Social Security Administration news release announced 25 conditions added as Compassionate Allowances, including twelve cancers, bringing the total number of conditions to 225 where the applicant’s disease or condition clearly meets Social Security’s statutory standard for disability
- Bangor Daily: Man accused of ‘barking like a dog’ at supervisor may have been victim of discrimination
- Bangor Daily: Federal judge dismisses lawsuit alleging civil rights violations against Wiscasset jail inmate
Friday, January 17, 2014
- Maine Superior Court: Decision entered judgment on the pleadings for insurer finding no duty to defend complaint against insured brought by condominium association for injunctive relief (removal of insured’s dangerous dog) and treble damages under Maine keeping a dangerous dog statute (7 MRS §3952) because complaint sought only injunctive relief for damages relating to bodily injury caused by dog and not monetary damages and condominium association did not having standing to assert claim under §3952
- Maine Superior Court: Decision granted summary judgment on neighbors’ invasion of privacy claim because photos and videos taken by neighbor over a year depicting activities outside of the house (including children playing and doing yard work), and one video (taken from the street) depicting activities inside the house that were not “private or intimate,” did not intrude on their “solitude and seclusion”
- Maine Superior Court: Decision affirmed small claims judgment ($3500 plus attorney’s fees) under Used Car Information Act (10 MRS §§ 1471-1478) for purchaser of used car that had five warning lights on dashboard illuminate on drive home from seller’s used-car lot
- NLRB: Press release issued describing a consolidated complaint it filed against Wal-Mart involving more than 60 employees in 13 states (not including Maine), 19 of whom were discharged allegedly as a result of their participation in activities protected by the National Labor Relations Act
- NYTimes: Article covers recent aggressive campaign by business groups accusing “workers centers” of being fronts for organized labor
