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.
Thursday, August 8, 2019
- First Circuit: Summary judgment affirmed for police chief in Fourth Amendment claim against him by police officer ordered to turn over his cell and home phone records because “a phone subscriber has no reasonable expectation of privacy in the phone service provider’s records of the numbers that the subscriber has dialed and from which the subscriber has received calls”
- First Circuit: Summary judgment for university reversed, in part, because university violated student’s federal constitutional right to due process in suspending him for five months without prior notice or a fair hearing
Monday, July 29, 2019
- First Circuit: As a matter of first impression interpreting the non-retaliation provision in the Americans with Disabilities Act of 1990, the court held that a different set of remedies is available for retaliation depending upon the discriminatory practice opposed, i.e., Title I (employment) remedies for retaliation in employment, Title II (public entity) remedies for retaliation in public entities, and Title III (public accommodation) remedies for retaliation in public accommodations; so no compensatory or nominal damages were available for Title III retaliation
- US District Court ME: Interpreting 2015 amended Federal Rule of Civil Procedure 37(e), the court held that plaintiff was not entitled to a jury instruction that video that was destroyed while in defendant retailer’s possession was unfavorable to defendant, even if it were destroyed intentionally, because plaintiff did not show that defendant intended to deprive plaintiff of his ability to use the video in the lawsuit; and the court granted summary judgment for retailer on premises liability negligence action arising out of murder of one customer by another because evidence was insufficient to show that retailer knew or should have known that violent customer was a danger to other customers
- MHRC: July 22nd meeting minutes include that a new investigator has been hired and a new intake and outreach position will be filled
Monday, July 15, 2019
- US District Court ME: Because plaintiff worked under a collective bargaining agreement, summary judgment on Whistleblowers’ Protection Act granted for employer: “this court has resoundingly held that when a Plaintiff whose employment is subject to a CBA brings a claim under the Maine Whistleblowers’ Protection Act, that claim is necessarily preempted by Section 301 of the Labor Management Relations Act”
- US District Court ME: Summary judgment granted for supervisory officer and town on § 1983 claim arising out of sexual abuse by police officer where six-year statute of limitations would not be tolled under federal discovery rule because plaintiff failed to exercise reasonable diligence to uncover involvement of supervisor and town
- Law Court: Summary judgment in personal injury action affirmed under statute affording immunity from liability for certain injuries suffered through the risks inherent in equine activities
- New York Times: “How to Disclose a Disability to Your Employer (and Whether You Should)”
Wednesday, July 3, 2019
- Maine Legislature: Effective September 19, 2019, Public Law 464 (signed by the Governor on June 23rd) amends the Maine Human Rights Act to, in part, 1) explicitly extend protection to associational discrimination and perceived protected-class status, 2) broaden the definition of “discriminate” to expressly include harassment and extend to all protected classes several types of discrimination that had previously been limited to physical or mental disability, 3) include a definition for “gender identity,” 4) expressly make “leaves of absence” an example of a “reasonable accommodation” for a physical or mental disability, 5) repeal a provision that had been interpreted by the Law Court as precluding a leave of absence as a reasonable accommodation under certain circumstances, and 6) prohibit the designation of single-occupancy toilet facilities in places of public accommodation as being for use only by members of one sex
- Maine Legislature: Effective September 19, 2019, Public Law 465 (signed by the Governor June 23rd) amends the Maine Human Rights Act to, in part, 1) make several categories of records collected during a Commission investigation confidential, including medical, counseling, psychiatric and other confidential health records; 2) provide the Commission’s executive director authority to dismiss a complaint for various reasons (including failure to substantiate the complaint), which has the effect of a no-reasonable-grounds finding; 3) make conciliation agreements that include the Commission as a signatory public records; and 4) preclude the recovery of attorney’s fees and costs by or against the Commission in a civil action
- Maine Legislature: Effective September 19, 2019, Public Law 513 (signed by the Governor June 28th) prohibits certain employee non-compete agreements, including banning them altogether for employees earning wages at or below 400% of the federal poverty; and makes “restrictive employment agreements” illegal, which are agreements between two or more employers that prohibit or restrict one employer from soliciting or hiring another employer’s employees or former employees
Sunday, June 23, 2019
- First Circuit: District Court committed reversible error by sua sponte converting a motion for summary judgment into a motion to dismiss: “[j]ust because a cucumber can be turned into a pickle does not mean that a pickle can be turned into a cucumber”
- Law Court: “Continuing negligent treatment doctrine,” in which a medical malpractice action may be commenced within three years of the most recent in a series of related acts or omissions that proximately cause a harm, was anchored on two definitions particular to the Health Security Act and will not be extended to legal malpractice actions
- Seventh Circuit: EEOC complaint sufficiently exhausted administrative remedies under Age Discrimination in Employment Act despite missing one word in employer’s assumed name: “Ashley Furniture HomeStore” versus “Ashley Furniture HomeStore – Rockledge“
- US District Court ME: After discussing the difference between Wrongful Death Act actions and “survival” actions brought by personal representative after death, court held that survival action by family of deceased inmate for pre-death suffering and injuries was not barred by Wrongful Death Act two-year statute of limitation; and separately held that private company that provided medical services in a county jail was not a “public entity” under Title II of the ADA (following the prevailing view in other Circuits over a prior United States District Court ME case)
- US District Court ME: Maine statute providing that “vacation pay on cessation of employment has the same status as wages earned” did not (as interpreted by the Law Court in a 1987 opinion) entitle former employee to payment for earned vacation time because employer’s policy stated that earned vacation would be forfeited at the time of separation; also, a “personnel file” as defined by Maine statute did not include detailed bonus plan information or emails related to it
- US District Court ME: Employee did not engage in protected activity under the Maine Whistleblowers’ Protection Act by refusing to sign a form when he believed doing so would be illegal because he did not explicitly or implicitly communicate that belief to his employer
- First Circuit: “LePage is entitled to qualified immunity on Eves’s political affiliation discrimination claim under the policymaker exception”
- First Circuit: Organization that ran group homes violated Fair Labor Standards Act by failing to pay long-term staff for eight hours each night they were on duty
- Maine Legislature: LD 1097, An Act to Protect Tenants From Sexual Harassment, as amended, became law on June 19th without Governor action
- Maine Legislature: Public Law Chapter 214 extends the Maine Tort Claims Act notice period from 180 days to 365 days for causes of action that accrue on or after January 1, 2020
- Maine Legislature: Public Law Chapter 198 increases the Wrongful Death Act cap to $750,000 (from $500,000) for damages for the loss of comfort, society and companionship of the deceased
- MHRC: Minutes from June 17, 2019, Commission Meeting include the nomination of a new Commissioner, the status of the Commission’s bills in the Legislature, and an increase to $225 per party (from $200) for participation in the Commission’s Mediation Program
Thursday, June 6, 2019
- Maine Legislature: Signed by the Governor May 28, 2019, and effective January 1, 2021, new paid sick leave law will allow employees of employers with more than 10 employees to take one hour of paid leave for every 40 hours worked, up to 40 hours in one year of employment
- US Supreme Court: Title VII’s Equal Employment Opportunity Commission charge-filing requirement–although mandatory–is not a jurisdictional requirement in a court action
- US Supreme Court: Probable cause for an arrest will defeat a First Amendment retaliatory arrest claim unless otherwise similarly situated individuals would not have been arrested
- Fourth Circuit: Summary judgment denied in Title III of the Americans with Disabilities Act claim that restaurant was required to allow patron with celiac disease to eat outside-prepared gluten-free meal in the restaurant
- US District Court ME: In denying defendant’s request to compel plaintiff to testify about communications during a deposition preparation meeting between her, her counsel, and a fact witness, Magistrate Judge cited that the Supreme Court has recognized that the common law work product doctrine protection is broader than the work product doctrine codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure Rule 26(b)(3) (which only references “documents and tangible things”), and protects “‘the files and the mental impressions of an attorney’ developed in the course of preparation for possible litigation, which may be reflected ‘in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways'”
- US District Court ME: Recognizing that venue in Title VII cases is controlled by venue provision in Title VII rather the general venue statute, 28 U.S.C. § 1391, Magistrate Judge held that venue in Maine was improper where plaintiff’s only connection to Maine is that she resides here
- US District Court ME: Plaintiff was permitted to amend her Rule 36 admission where doing so would promote the presentation of the merits of the action and defendant did not claim prejudice
- Law Court: Summary judgment affirmed for surgeon who allegedly misread CT scan that caused a delay in treatment where there was insufficient evidence that plaintiff’s outcome would have been different had the scan been read properly
- Maine Superior Court: Mediation fee should be divided 50% to the plaintiff and 50% shared among six defendants (not 1/7th, 6/7th as plaintiff requested) where five defendants were employees of the sixth, a town, and it was unclear whether liability could be established against any one defendant that was not shared by the town
- MHRC: June 17th Commission Meeting Agenda posted
Tuesday, May 28, 2019
- US District Court ME: In § 1983 action, motion in limine granted to exclude at trial evidence of the amount paid by MaineCare for Plaintiff’s medical care (40% less than the charges), despite defendant’s argument that the amount paid was admissible for the jury to consider in its assessment of the reasonableness of the charges
- Law Court: House parents for children with behavioral and emotional needs were not entitled to overtime pay for interruptions that prevented them from sleeping; rather, agreement with their employer that they were only entitled to pay if they got out of bed and assisted clients was reasonable under Maine overtime statute
Friday, May 17, 2019
- US Supreme Court: Overruling Nevada v. Hall, the Constitution does not permit a State to be sued by a private party without its consent in the courts of a different State
- Tenth Circuit: “A public entity violates Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act each day that it fails to remedy a non-compliant service, program, or activity. As a result, the applicable statute of limitations does not operate in its usual capacity as a firm bar to an untimely lawsuit. Instead, it constrains a plaintiff’s right to relief to injuries sustained during the limitations period counting backwards from the day he or she files the lawsuit and injuries sustained while the lawsuit is pending.”
- Maine Supreme Judicial Court: Effective June 1, 2019, Rule 8.4 of the Maine Rules of Professional Conduct is amended to make it professional misconduct for a lawyer to “engage in conduct or communication related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity”
- US District Court ME: The court denied motion to dismiss, for failure to exhaust administrative remedies under the Individuals with Disabilities Education Act, claim under § 504 of Rehabilitation Act of 1973 arising out of sexual assault of student by another student, where facts alleged met the test for avoiding IDEA exhaustion, namely, that claim could have been brought if it occurred in another public facility than a school and could have been brought by an adult
- Federal Rules of Evidence: Effective December 1, 2019, Federal Rule of Evidence 807 (the hearsay residual exception) will be reworded
- Federal Rules of Civil Procedure: No changes to existing Rules through December 1, 2020
- EEOC: Janet Dhillon is sworn in as the Chair of the Equal Employment Opportunity Commission
- US Courts: Efforts are underway to change jury selection processes to ensure that the age, race, and socio-economic status of juror pools reflect the community
- MHRC: May 13th Commission Meeting minutes include that Alex Brindley will be starting as the Commission’s newest investigator in mid-May
- Maine DOL: Press release notes that the Secretary of Homeland Security has decided to increase the H-2B cap for FY 2019 by up to 30,000 additional visas
Thursday, May 9, 2019
- Maine Legislature: Public hearing scheduled for May 20th before the Judiciary Committee on LD 1701, An Act To Clarify Various Provisions of the Maine Human Rights Act, which would define unlawful harassment; clarify the Act’s coverage of claims based on association and the perception that an individual belongs to a protected class; define “gender identity”; clarify that a leave of absence can be a reasonable accommodation for a disability in employment; and clarify that individuals may be liable for their discriminatory behavior in certain circumstances
- Maine Legislature: Public hearing scheduled for May 20th before the Judiciary Committee on LD 1702, An Act To Enhance the Administration of the Maine Human Rights Act, which, in part, would authorize the executive director of the Maine Human Rights Commission to administratively dismiss complaints for specified reasons and issue a 180-day right-to-sue letter whether or not such a letter has been requested by the complainant
- Maine Legislature: Public hearing scheduled for May 20th before the Judiciary Committee on LD 1703, An Act To Improve Consistency within the Maine Human Rights Act, which would add familial status as a protected class in employment; include adult family members dependent for care in the definition of “familial status”; add age as a protected class in public accommodations; provide that public entities cannot discriminate on the basis of protected class; clarify the scope of the Act’s education provisions; clarify the protections provided to pregnant persons in employment; and clarify that the sexual orientation provisions in the Act extend to gender identity
- Maine Supreme Judicial Court: Comments due May 24th on proposed amendments to Maine Rule of Civil Procedure 47, which would, in part, more explicitly allow attorney-led voir dire
- First Circuit: The court affirmed summary judgment for employer on former employee’s disability discrimination claim, finding (over dissent by Judge Lipez) that she was precluded from proving that she was a “qualified individual” in light of her unqualified statements in her SSDI application that she was totally disabled as of the date she left work because her employer allegedly denied her a reasonable accommodation
- First Circuit: In affirming summary judgment for corrections officer, in part, on inmate’s 8th Amendment claim arising out of officer shoving inmate after inmate ripped up a form the officer gave the inmate to prepare, the court concluded that the record compelled the conclusion that the officer used force because he believed the inmate posed a security risk at the time of the shove due to the inmate’s defiant act of ripping up the form and not maliciously and sadistically for the very purpose of causing harm
- First Circuit: Summary judgment granted, in part, on Title VII racial disparate impact claim where plaintiff did not offer expert evidence or establish the racial composition of the pools of employees eligible for “three-day-rule” awarded job assignments that resulted in seven white and only one minority assignment
- US DOJ: Over $3 million settlement reached in Americans with Disabilities Act claim alleging Greyhound failed to maintain accessibility features on its bus fleet such as lifts and securement devices; failed to provide passengers with disabilities assistance boarding and exiting buses at rest stops; and failed to allow customers traveling in wheelchairs to complete their reservations online
- MHRC: May 13th Commission Meeting Agenda and Consent Agenda posted
Wednesday, April 24, 2019
- US Supreme Court: Cert granted in three cases that will decide (in two, Bostock and Altitude Express) whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and (in Harris Funeral Homes) whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins
- Second Circuit: Differing from the Fifth Circuit, the court held “that a plaintiff alleging an employment discrimination claim under Section 504 of the Rehabilitation Act must show that the plaintiff’s disability was a but-for cause of the employer’s action, not the sole cause”
- Maine Legislature: Public hearing scheduled for April 24th before the Labor and Housing Committee on LD 1529, An Act Concerning Nondisclosure Agreements in Employment, which would prohibit employers from requiring agreements, including settlement agreements, that prevent an employee, prospective employee, or former employee from disclosing or discussing discrimination, including harassment, occurring between employees or between an employer and an employee
- US District Court ME: Magistrate Judge rejected argument that Prison Litigation Reform Act administrative exhaustion requirement barred excessive force claim where there was a dispute as to whether plaintiff, a prison inmate, met the internal grievance filing deadline by placing his grievance form in the prison mail, which should be used instead of the “Date Received” stamp to determine timeliness
- US District Court ME: $1,261.89 in costs awarded by Clerk to defendants following summary judgment decision in their favor on employment discrimination claim
- EEOC: Fiscal Year 2019, Volume 1, EEOC Digest of Equal Employment Opportunity Law published, which includes summaries of recent Commission decisions and federal court cases, as they affect Federal government employees
