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, April 16, 2019
- Maine Legislature: Work session scheduled for April 16th at 1 PM before the Judiciary Committee on LD 1097, which would create a rebuttable presumption that a forcible entry and detainer action was commenced in retaliation against a tenant if the tenant had made a complaint of an act of sexual harassment by the landlord or landlord’s agent
- Fourth Circuit: Attorney’s fees and costs awarded to plaintiffs under § 1988 against local elections board in successful Equal Protection challenge to state law that redrew city council districts, because, although the state enacted the changes and the local board only enforced them (the board did not even defend the changes in the lawsuit), “[c]ivil rights fee-shifting statutes, such as those at issue here, are not meant to punish defendants for a lack of innocence or good faith but rather to compensate civil rights attorneys who bring civil rights cases and win them”
- Law Court: Town’s Code Enforcement Officer did not engage in protected activity under the Maine Whistleblowers’ Protection act by complaining about change to his employment contract where, although he may have subjectively believed change violated Maine law in addition to his contract, belief of illegality was unreasonable
- EEOC: 2018 Enforcement and Litigation Data report reflects that retaliation continues to be the most frequently filed complaint at 51.6% of all charges filed, followed by sex (32.3%), disability (32.2%), and race (32.2%) (they add up to more than 100% because some charges allege multiple bases); and the EEOC had 302 court cases on its active docket
- MHRC: April 8th Commission Meeting minutes include the names of two new Investigators as well as “a review of a number of bills about which the Commission had provided information at the Legislature, including LDs 122, 123, and 278 (related to pay compensation and equity), 170 (criminal history inquiries on state employment applications), 433 (Constitutional equal rights amendment), 798 (religious exemptions to school vaccine requirements), 1097 (tenants and sexual harassment), service animal bills, the biennial budget, and others”
- MHRC: May 13th Commission Meeting Agenda posted
- Press Herald: Lawmakers endorse bill calling for constitutional change to outlaw gender discrimination
Saturday, April 6, 2019
- Maine Legislature: Public hearing scheduled for April 19th before the Labor and Housing Committee on LD 1410, which would provide up to 12 weeks of paid family leave and up to 20 weeks of paid medical leave to employees who have worked for 26 or more weeks for any employer during the 12-month period prior to submitting the request for leave, and would be paid for by a fund created from payroll contributions by employees
- Maine Legislature: Public hearing scheduled for April 10th before Judiciary Committee on LD 492, which would extend the Maine Tort Claims Act notice of claim period from 180 days to 365 days
- Maine Legislature: Public hearing scheduled for April 10th before Judiciary Committee on LD 841, which would, in part, increase the limit on loss of comfort, society, and companionship in Wrongful Death cases from $500,000 to $1,000,000 and remove the limit on punitive damages
- US Dept of Labor: Opinion letter concludes, “An employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave”
- US District Court ME: Preliminary injunction under Americans with Disabilities Act granted to require jail to administer buprenorphine to inmate where refusal to do so had been because of inmate’s opioid use disorder
- US District Court ME: Motion to dismiss state law supplemental jurisdiction medical malpractice claims from federal court Federal Tort Claims Act suit denied where state-law issues did not overwhelm the federal ones
- US Dept of Housing and Urban Development: HUD kicks off Fair Housing Month with initiative, “Call HUD: Because Sexual Harassment in Housing is Illegal”
Tuesday, March 26, 2019
- Eleventh Circuit: En banc decision, in “an effort to clean up, and to clarify once and for all the proper standard for comparator evidence in intentional-discrimination cases,” held that “the proper test for evaluating comparator evidence is neither plain-old ‘same or similar’ nor ‘nearly identical,’ as our past cases have discordantly suggested. Nor is it the Seventh Circuit’s so-long-as-the-comparison-isn’t-useless test. Rather, we conclude that a plaintiff asserting an intentional-discrimination claim under McDonnell Douglas must demonstrate that she and her proffered comparators were ‘similarly situated in all material respects.'”
- US District Court ME: In denying summary judgment on various employment discrimination claims, the court held that there was sufficient evidence that plaintiff’s retirement was a “constructive discharge” because defendant failed to accommodate her no-overtime work restriction; eight-day delay in providing accommodation after specialist indicated it was necessary could amount to a failure to provide it or a failure to engage in good faith in the interactive process; and timing of plaintiff representing (as a shop steward) a coworker in a disability discrimination claim supported a finding that refusing plaintiff’s accommodation request was unlawful retaliation
- US District Court ME: In denying summary judgment on retaliation and sexual harassment claims, the court found sufficient evidence of “constructive discharge” where plaintiff resigned because her fellow corrections officers “had essentially encouraged inmates to view [her] as a ‘rat,’ which in turn created a work environment in which a reasonable corrections officer would fear for his or her personal safety”; sufficient evidence that the constructive discharge resulted from unlawful retaliation, religion, gender, sexual orientation, and sexual harassment, the latter including a corrections officer making a lewd comment to plaintiff while they were replacing a shower curtain, one referring to himself as a “sexy piece of chocolate,” and one calling plaintiff a “whiny bitch” just a few weeks later
- US District Court ME: Summary judgement denied, in part, on “sex plus” discrimination claim by female delivery driver with two kids who was denied under eight-hour shifts due to “efficiency gains” from full-time schedules where three men from another facility were allowed to work shorter shifts (defendant argued the facility was an inapt comparator because it was “bigger, busier, and had different business needs”); and reduction of plaintiff’s schedule without two weeks after OSHA complaint supported Whistleblower claim
- MHRC: The Maine Human Rights Commission has a new website
Sunday, March 17, 2019
- Law Court: $2 million jury verdict was not excessive in medical malpractice case following three wrist surgeries to repair initial surgery in which a screw placed in plaintiff’s wrist was protruding from his scaphoid bone; it was not error for trial Justice to redact portions of radiology reports as undesignated expert opinions; and collateral source doctrine justified instructing jury to disregard all references to workers’ compensation during trial
- US District Court ME: Summary judgment denied on age discrimination claim where termination decisionmaker had referred to plaintiff’s opposition to a company policy as his “dinosaur age related theories” within six months of plaintiff’s termination; employer replaced plaintiff with a 38-year old (about twenty years younger than plaintiff); and there was evidence of pretext
- US District Court ME: Over $1.7 million default judgment awarded against nurse who conspired to falsely accuse plaintiff of committing gross sexual assaults and assaults against plaintiff’s then wife in order for wife to keep custody of her two sons
- US District Court ME: In the second recent personal injury lawsuit to do so (see 6/29/2018 blog entry for first), Magistrate Judge allowed defendant leave to file third-party complaint against pre-suit-released (by plaintiff) joint tortfeasor because, while 14 MRS § 156 allows dismissal of a released joint tortfeasor “defendant,” here the settlement occurred before released tortfeasor became a party
Saturday, March 9, 2019
- Second Circuit: Under the Fair Housing Act, a landlord may be liable for failing to take prompt action to address a racially hostile housing environment created by one tenant targeting another, where the landlord knew of the discriminatory conduct and had the power to correct it
- Law Court: In defamation lawsuit by former assistant attorney general against supervisor, supervisor reporting of her evaluation of AAG’s job performance to the Attorney General was a discretionary function to which immunity applies, which immunity was absolute even if she abused her discretion or exercised it in bad faith
- MHRC: April 8th Commission Meeting Agenda and Consent Agenda posted
- Maine Public: Maine Considers Equal Rights Amendment To The State Constitution
Saturday, March 2, 2019
- EEOC: Proposed rules (comment deadline 4/23) will, in part: 1) explicitly provide for digital transmissions of documents during case processing at the EEOC; 2) clarify that if a state Fair Employment Practice agency’s statute covers the same general basis or category of discrimination alleged by the charging party (for example, age or disability discrimination), the charging party has 300 (not 180) days to file a charge, even if the state law does not apply to the particular circumstances or theory of relief, such as a failure to accommodate theory; 3) more clearly communicate that the EEOC’s “no cause” closure of a charge does not mean the claims have no merit; and 4) allow EEOC employees other than office directors to issue dismissals and determinations
- 7th Circuit: Because a supervisor’s use of racially toxic language in the workplace is more serious than a co-worker’s, three racial epithets by supervisor created a hostile work environment under Title VII (if uttered by a coworker they would have been insufficient)
- 4th Circuit: A false rumor that a female employee slept with her male boss to obtain a promotion discriminates because of sex under Title VII because it “plausibly invokes a deeply rooted perception—one that unfortunately still persists—that generally women, not men, use sex to achieve success”
- Maine Legislature: Work session scheduled for March 6th at 1:00 PM before Labor Committee on LD 369, which would create a right to paid sick leave for employees who are employed by an employer that employs more than 5 employees, and a right to unpaid sick leave for employees of an employer that employs 5 or fewer employees
- Maine Legislature: Work session scheduled for March 6th at 1:00 PM before Labor Committee on LD 733, which would prohibit an employer from requiring or entering into noncompete agreements with employees earning wages that are at or below 300% of the federal poverty level, and forbid restrictive employment agreements between two or more employers that prohibit or restrict one employer from soliciting or hiring another employer’s employees or former employees
- US District Court ME: Summary judgment denied on Americans with Disabilities Act and Maine Human Rights Act denial of reasonable accommodation claim because, in part, Plaintiff sufficiently requested a reasonable accommodation for emotional outburst at work (she was asked to resign because of it) when she told her employer that she had early menopause following her hysterectomy, had hot flashes and had become emotional, and “she just needed to be able to wash her face and go back to work” and she would have been fine
- US District Court ME: In denying summary judgment on Maine Human Rights Act claim that defendant refused to hire plaintiff as a hairstylist because of his epilepsy, the court 1) held that epilepsy is a per se covered disability under the MHRA and plaintiff did not need to show substantial limitation on a major life activity or significant impairment on physical or mental health; 2) held plaintiff met prima-facie showing that his epilepsy was part of the reason he was not hired because supervisor told subordinate it was “not appropriate” to hire plaintiff, a statement the court found “as significant for what it does not say as for what it says”; 3) addressed but did not decide whether a plaintiff may use evidence of pretext to make prima-facie showing of discriminatory animus; and 4) found pretext for discriminatory animus because the reasons defendant gave at the Maine Human Rights Commission for refusing to hire plaintiff conflicted with the reasons it gave in court.
- First Circuit: On Fourth Amendment excessive force claim, a jury could supportably find the use of a Taser to quell a nonviolent, mentally ill person who is resisting arrest to be excessive force; but defendants were nevertheless entitled to qualified immunity because this standard was not clearly established at the time of the incident giving rise to the complaint (2013)
- Law Court: Anti-SLAPP statute did not require dismissal of defamation lawsuit because complaint was not based on defendant’s petitioning activities
- Law Court: Oral arguments scheduled for March 4th include Cum-18-154 (whether attorney committed professional negligence by failing to advise clients that settlement agreement prior attorney had executed on their behalf was invalid because the former attorney did not have the authority to execute the agreement)
- Maine Supreme Judicial Court: Chief Justice Saufley’s Annual State of the Judiciary Address includes an update on the transition to digital records and e-filing
- Maine Supreme Judicial Court: Proposed Digital Court Records Access Rules published (comments due March 27th)
- MHRC: March 4th Commission Meeting Agenda and Consent Agenda posted
- Press Herald: Discrimination lawsuit against Portland waterfront restaurant settled
- Sun Journal: Buckfield settles discrimination suit for $30K
Monday, February 18, 2019
Saturday, February 2, 2019
- First Circuit: In reversing summary judgment, the court held that a plaintiff may establish a Title VII, Maine Human Rights Act (“MHRA”), or Equal Protection hostile work environment claim if she shows that the harassment was “based in part on her sex” even if sex was not the “but for cause” of the harassment; MHRA § 4633 allowed a suit by a nurse against the prison where she worked even though she was employed by another company; the nurse’s employer may be liable under Title VII and the MHRA for a hostile work environment created by third-party prison staff if her employer knew or should have known of the hostile work environment and failed to take reasonable measures to try to abate it; the Title VII and the MHRA non-retaliation provisions protected her reporting that she had a reasonable, good faith belief violated those statutes, even if her employer lacked “the ability and authority to correct” the complained-of violations; her reporting was also protected by the Maine Whistleblowers’ Protection Act even if her employer’s ability and authority to control the complained-of violation was indirect because the prison staff were employed by someone else
- Maine Legislature: Hearing before Labor Committee scheduled for February 6th on LD 278, An Act Regarding Pay Equality, which would amend the Maine Human Rights Act to provide that evidence of discrimination with respect to compensation includes an employer seeking information about a prospective employee’s prior wage history before an offer of employment, including all compensation, to the prospective employee has been made
- MHRC: January 28th Meeting minutes reflect that the Commission’s Procedural Rule amendments have been approved by the Attorney General’s office, with one change; and that 40 bills in the current Legislative session relate to the Maine Human Rights Act or the Commission
- MHRC: March 4th Meeting Agenda posted
Thursday, January 24, 2019
- US District Court ME: Magistrate Judge granted motion to compel production of internal documents generated as a result of alleged excessive force incident at Youth Development Center, rejecting attempt to withhold them based on an asserted privilege for “self-critical analysis,” the Maine peer review privilege pursuant to Federal Rule of Evidence 501, or a standalone federal common-law peer review privilege
- Law Court: Claim preclusion does not bar a subsequent suit brought in District or Superior Court by a person who was not an actual party to Small Claims action
- US District Court ME: Magistrate Judge recommended denial of § 1983 claim arising out of transportation contractor allegedly depriving plaintiff of constitutional rights: “if a government official is aware or obviously should have been aware that the third-party’s practices present a genuine risk of a constitutional deprivation, but the official does not take readily available measures to mitigate the risk, the government official can be legally responsible for the deprivation”
- Maine Superior Court: Motion to dismiss tort action between former spouses denied because, in part, prior divorce judgment was not res judicata because of different remedies in divorce and tort actions; and, although allegedly defamatory statements in Protection From Abuse court complaint were absolutely privileged, republication of complaint to third parties outside of court is not necessarily privileged
- Maine Superior Court: No right to jury trial because relief sought in Maine Uniform Fraudulent Transfer Act claim was primarily equitable, despite inclusion of claim for monetary damages in prayer for relief
- Maine Supreme Judicial Court: Comments due January 25, 2019, on the Court’s proposed legislation regarding transparency and privacy in court records, which would make civil case information primarily public
- MHRC: January 28th Agenda and Consent Agenda posted
