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.
Saturday, November 16, 2019
- 10th Circuit: Relying on First Circuit precedent regarding a plaintiff’s burden under the Americans with Disabilities Act of showing that she has a protected disability, the court held that there is no general rule that medical testimony is always necessary to do so and the necessity of such evidence should be assessed on a case-by-case-basis
- US District Court Me: Summary judgment granted for employer on Maine Whistleblowers’ Protection Act claim where plaintiff’s challenge to employer’s “huddle meeting” requirement, which included questioning how they would be conducted if team members were working at home due to inclement weather, was subjectively motivated by inefficiencies rather than safety, and, even if about safety, was too vague to be protected activity; but denied on age discrimination claim where decision maker made age-disparaging comments, including inquiring how much longer plaintiff planned on working (she was 59), together with a sufficient showing of pretext
- Maine Superior Court: Summary judgement denied on Maine Human Rights Act claim by former fire chief that he was fired because of a heart condition
Tuesday, November 5, 2019
- US Courts: Series, “1979: The Year Women Changed the Judiciary,” is providing biographical sketches of trailblazing federal judges: “In 1979, 23 women were appointed to life-tenured U.S. judgeships—more than doubling the number of women appointed as federal judges in the previous 190 years. The doors they opened never swung shut again. Today, there are 363 female judges, including three Supreme Court justices. Women make up one-third of the courts’ full-time, active Article III judges.”
- Maine Supreme Judicial Court: Major changes to Rules of Civil Procedure proposed (comments due 12/13/2019) as a part of “Civil Process Improvement by providing for effective and proportional differentiated case management of civil cases,” include Assignment to a Track for Initial Case Scheduling, Streamlined Process for Resolving Many Pretrial Issues, Automatic Initial Disclosures, Presumptive Limits on the Scope and Duration of Discovery, Updated and Expedited Summary Judgment Practice, and Earlier Time to Demand a Jury Trial
- US District Court ME: Magistrate Judge ordered $163,155.51 attachment and trustee process for unpaid wages to three former employees
- MHRC: Human Rights Seminar scheduled for December 10th
- Maine DOL: Six “Listening Sessions” scheduled on rulemaking under new paid leave law (effective 1/1/2021)
Saturday, October 26, 2019
- US District Court ME: Temporary restraining order granted staying suspension of 15-year-old student for posting note in bathroom that “THERE’S A RAPIST IN OUR SCHOOL, AND YOU KNOW WHO IT IS,” on the grounds that there is “a fair likelihood of success on the merits because the record suggests (but does not conclusively establish) that the expressive activity the Defendants would punish was neither frivolous nor fabricated, took place within the limited confines of the girls’ bathroom, related to a matter of concern to the young women who might enter the bathroom and receive the message, and was not disruptive of school discipline”
- US District Court ME: Summary judgment for employer granted on § 1981 and Maine Human Rights Act race discrimination claim where court found that evidence did not support finding that employer’s proffered reason for terminating sales representative over confrontation with a customer was a pretext for unlawful discrimination (the court noted, however, that § 1981 extends to at-will employment despite lack of First Circuit precedent on the issue)
- US District Court ME: Magistrate Judge ruled in Maine State Prison inmate’s excessive force action that defendants had shown the requisite good cause to retain “attorneys’ eyes only” designations for three categories of documents and related testimony produced during discovery based on prison safety and security concerns
- Maine Workers’ Comp Board Appellate Division: Because sea farm worker spent less than 30% of her time on a vessel in navigation, federal Jones Act did not provide the exclusive remedy for her injuries, and Maine Workers’ Comp award in her favor was affirmed
- EEOC: September 2019 edition of “DIGEST Of Equal Employment Opportunity Law” includes article, “Religious Accommodation in the Workplace: An Overview of the Law and Recent Commission Decisions”
- SCOTUSblog: “Recent polls show confidence in Supreme Court, with caveats”
Tuesday, October 15, 2019
- US Supreme Court: Audios of October 8th oral arguments posted in Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, which address (respectively) whether Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sexual orientation and gender identity
- First Circuit: Summary judgment affirmed on Americans with Disabilities Act and Fair Housing Act claim by operator of sober houses that city’s refusal to exempt it from requirement that it install sprinklers as required by state law denied it a reasonable accommodation, where sprinklers were required for public safety and city engaged in the interactive process in good faith with operator to identity accommodations
- US DOL: Press release states that “proposed rule would allow employers who do not take a tip credit to establish a tip pool to be shared between workers who receive tips and are paid the full minimum wage and employees that do not traditionally receive tips, such as dishwashers and cooks”
- US DOJ: Justice Department Files Brief in Maine School Choice Appeal
Saturday, October 5, 2019
- Sixth Circuit: Title VII statute of limitations may not be contractually shortened
- US District Court ME: In denying motion to dismiss due process claim by town manager, the court held that contractual provision allowing town manager’s termination without cause was unenforceable in light of public policy favoring transparent administration of town affairs reflected in the statutes and the town ordinance requiring cause, notice, and hearing for termination
- US District Court ME: Noting a circuit split (the First Circuit has not yet ruled) on whether the standard for an employment discrimination claim under section 504 of the Rehabilitation Act is the same as or different from that under the Americans with Disabilities Act–i.e., whether the Rehab Act requires proof that discrimination was “solely by reason of” disability instead of (like the ADA) “because of, in whole or in part,” disability–the court declined to rule on the issue because plaintiff prevailed on summary judgment under either standard
- US District Court ME: Summary judgment granted on Fair Labor Standards Act retaliation claim that teacher’s contract was not renewed because she complained about retaliation for taking breaks to express breast milk because FLSA did not apply and no reasonable employer could have perceived her complaint as a genuine assertion of rights under the FLSA; but denied on Family and Medical Leave Act retaliation claim where plaintiff received her first ever negative review three months after returning from FMLA leave and timing, along with other factors, plausibly showed a causal relationship between her FMLA leave and the alleged discrimination
- MHRC: The Commission’s new guidance on Assistance Animals in Housing clarifies, in part, that if a certain breed or animal is not covered by building insurance, “the analysis focuses on whether the request for an assistance animal is a reasonable accommodation, considering factors like availability of an insurance rider or another insurance policy and the total cost compared to the resources available”
- MHRC: The Commission’s new guidance on Service Animals in Places of Public Accommodation emphasizes that only two questions may be asked to determine if a dog is a service animal: “1. Is the animal required because of a disability? 2) What work or task has the animal been trained to perform?
- MHRC: October 21st Commission Meeting Agenda and Consent Agenda posted
- Maine DOL: Dept. of Labor to Hold Listening Sessions on Paid Time Off Rulemaking
- Maine Workers’ Comp Appellate Division: Insurer’s assertion that injury claim is covered exclusively by the federal Jones Act involves the Comp board’s subject matter jurisdiction, and therefore was not waived by insurer’s failure to timely raise or preserve it
Tuesday, September 24, 2019
- 11th Circuit: The Attorney General has standing to sue under Title II of the Americans with Disabilities Act
- US District Court ME: Six-year statute of limitations for § 1983 claim that started running when minor plaintiff reached age of majority was not tolled beyond that because, in part, a reasonably diligent investigation by plaintiff would have revealed circumstances supporting plaintiff’s allegation that defendant police chief had been aware of at least one other claim of sexual misconduct by police officer prior to officer allegedly sexually abusing plaintiff
- Law Court: Amicus Briefs sought on whether to adjust “application of the business records exception to the hearsay rule, M.R. Evid. 803(6), to track application of Fed. R. Evid. 803(6) as addressed in U.S. Bank Trust, N.A. v. Jones, 925 F.3d 534 (1st Cir. 2019)”
- US Courts: Effective January 1, 2020, quarterly PACER fee waiver doubled from $15 to $30
- Maine Public: Portland Settles Age Discrimination Lawsuit
Monday, September 16, 2019
- 11th Circuit: Regard-as prong of the Americans with Disabilities Act definition of disability protects “persons who experience discrimination because of a current, past, or perceived disability–not because of a potential future disability that a healthy person may experience later” (plaintiff was fired out of fear that she might contract Ebola on a trip to Ghana)
- 5th Circuit: But-for causation requirement applies solely at McDonnell Douglas’s final pretext stage, not at the initial prima facie stage
- US District Court ME: Summary judgment granted for employer on FMLA, disability, and Whistleblower discrimination claims, but denied on age harassment claim where district manager’s comment that plaintiff’s (a store director) “time had come and gone” and “no one looked up to [him] anymore,” could be regarded as “the keystone in an arch of lesser indignities that, together, stack up to support Plaintiff’s age-based, hostile work environment claim”
- US District Court ME: Summary judgment granted for employer on disability discrimination claim that employer failed to accommodate and terminated sales employee with post-traumatic stress disorder who had an angry outburst at work, where court found that plaintiff’s request for accommodation was for a past transgression and termination decision was made before employer knew of plaintiff’s disability
- Law Court: Oral argument in Cum-18-519 scheduled for September 24th will address whether outside attorney hired by the University of Southern Maine as an “Equal Opportunity Complaint Procedure investigator” is immune from suit under the Maine Tort Claims Act and Maine’s “anti-SLAPP” statute
- Law Court: Oral argument in Cum-19-39 scheduled for September 24th will address whether long-term care facility where plaintiff was employed by a medical staffing agency abused or otherwise lost its “common interest” privilege in making allegedly false statements about plaintiff
- Law Court: Oral argument in Cum-19-3 scheduled for September 24th will address whether Superior Court erred in granting summary judgment for lawyer and firm in legal malpractice action alleging lawyer failed to file an administrative complaint and thereby forfeited whistleblower remedies
- Law Court: Oral argument in Yor-18-513 scheduled for October 8th will address whether Superior Court erred in granting summary judgment for employer on sexual harassment, whistleblower retaliation, and disparate treatment sex discrimination claims (briefs are available on the Court’s website)
- Law Court: District Court committed reversible error by considering deposition testimony as part of motion to dismiss, rather than converting motion to one for summary judgment and allowing both parties an opportunity to augment the record
- MHRC: Mediators sought for the Commission’s Third Party Neutral Mediation Program (application deadline September 30, 2019)
Thursday, September 5, 2019
- First Circuit: Rehabilitation Act § 504 claim that school discriminated against student with a disability by refusing his access with a service animal did not need to be administratively exhausted under the Individuals with Disabilities Education Act because the claim could be brought by a non-student in a non-school public setting alleging the same injuries arising from the same deprivation
- US District Court ME: Summary judgment denied for employer in employment discrimination retaliation claim alleging plaintiff’s supervisor deceived decisionmaker into terminating plaintiff for insubordination, where there was sufficient evidence under the “cat’s paw” theory that “(1) a non-decisionmaker motivated by retaliatory animus committed an act intending to cause an adverse employment action; and (2) such act caused an adverse action”
- First Circuit: Summary judgment granted for employer on Age Discrimination in Employment Act claim where there was insufficient evidence that employer’s articulated reason for termination was a pretext for age discrimination
- EEOC: Latest edition of the federal sector Digest of Equal Employment Opportunity Law includes article on common remedies in disparate treatment claims that lists as a form of non-monetary relief, “expungement of adverse material relating to the discrimination from the individual’s records”
- MHRC: September 23rd Agenda and Consent Agenda posted
Monday, August 26, 2019
- Second Circuit: For an entity (here a hospital) to be liable for compensatory damages under the Rehabilitation Act of 1973, person who is responsible for allegedly discriminatory decision (here denial of an ASL interpreter by nurses and doctors) under deliberate indifference standard must be someone who has some discretion at a key decision point in the administrative process but does not need to have complete discretion (as in the 11th Circuit)
- Law Court: Plaintiff’s use of medical provider’s locker room to change clothes after water therapy for purposes of medical rehabilitation did not amount to the provision of health care services, so the Maine Health Security Act did not apply to her slip and fall personal injury claim that provider was liable for allowing rubber mat to be left in wrong place in locker room; also, “death knell exception” to the final judgment rule allowed consideration of interlocutory appeal from denial of motion to dismiss based on three-year MHSA statute of limitations
- First Circuit: Summary judgment for employer reversed where conduct that occurred outside of the 300-day Title VII limitations period should have been considered as a part of plaintiff’s hostile work environment claim
- Maine Workers’ Compensation Appellate Division: Two-year and 90-day statutes of limitations were extended under “mistake of fact” exception where spouse of firefighter who died of cancer had not made connection between husband’s cancer and occupational exposure by firefighters until she saw a television program to that effect shortly before filing petition
Monday, August 19, 2019
- HUD: Proposed Fair Housing Act disparate impact rule includes a requirement that plaintiffs plausibly allege five elements of a prima-facie case, including that “the challenged policy or practice is arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective such as a practical business, profit, policy consideration, or requirement of law”
- Second Circuit: Under Title VII of the Civil Rights Act of 1964, “[w]here a university (a) takes an adverse employment action against an employee, (b) in response to allegations of sexual misconduct, (c) following a clearly irregular investigative or adjudicative process, (d) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex, these circumstances support a prima facie case of sex discrimination”
- US District Court ME: Summary judgment denied on disability employment discrimination claim by employee who sought a reasonable accommodation of a transfer to a vacant position during her medical leave because, although the position she sought had not been posted, the person who occupied it had stated her intention to retire and a “vacancy” encompasses positions that an employer reasonably anticipates will become vacant in the near future
- US District Court ME: Magistrate Judge recommended summary judgment for plaintiff on failure to mitigate damages in employment discrimination claim where plaintiff showed “some effort to secure other employment” and defendant offered no evidence that “substantially equivalent jobs were available in the relevant geographic area”
- US District Court ME: Magistrate Judge recommended that summary judgment be denied on plaintiff’s disability discrimination, failure to accommodate, and retaliation claims, as well as his FMLA and MFMLR retaliation and interference claims
