Legal Updates
Monday, February 10, 2014
- First Circuit: In affirming dismissal of claim under Federal Tort Claims Act brought by injured guest at Commandant’s House in Boston, the court held that decision not to increase height of railing to 42 inches, as required by the Massachusetts building code, fit within FTCA’s discretionary-function exception
- Sixth Circuit: Court vacated dismissal of state-law wrongful eviction complaint because tenant was evicted after foreclosure sale without 90-day notice as required by the Protecting Tenants at Foreclosure Act of 2009
- EEOC: Press release describes EEOC lawsuit against CVS for violation of Title VII § 707, which prohibits pattern or practice of resistance to the full enjoyment of any of the rights secured by Title VII, alleging CVS severence agreements interfered with employees’ right to file discrimination charges and/or communicate and cooperate with the EEOC
Thursday, February 6, 2014
- EEOC: 2013 enforcement and litigation data reflects that retaliation was the most frequent (41%) allegation in the 93,727 charges received; that the most frequent issues were discharge, followed by terms and conditions of employment, and harassment; and that the EEOC itself filed 131 merit lawsuits, including 78 under Title VII
- DOJ: $15,000 settlement agreement reached in ADA lawsuit against Rite Aid for refusing to administer flu shot to customer because he has HIV
- NLRB: Amendments to representation case procedures proposed
- Bangor Daily: Is diabetes a disability? Yes, according to Maine Human Rights Commission investigator
Tuesday, February 4, 2014
- Eighth Circuit: Reversing summary judgment for supervisor in five prison guards’ §1981 and §1983 racial harassment claims, the court held that the district court improperly looked at the racial comments directly experienced by a particular plaintiff in isolation rather than considering them collectively for all plaintiffs because while “each individual did not hear every remark referenced in their complaint or depositions, each black officer became aware of them”
- Fifth Circuit: The court affirmed summary judgment on overtime claim under Fair Labor Standards Act for direct caregivers who were not paid for time spent in homes from 10 PM to 6 AM, finding sufficient evidence that they were “employees” and not independent contractors, that FLSA companionship services exemption did not apply, and district court did not err in refusing to omit a liquidated damages award
- Fourth Circuit: In vacating summary judgment for state prison on inmates First Amendment claim, the court held that the prison’s voluntary cessation of policy of requiring inmates to provide physical indicia of Islamic faith in order to receive special meals to observe Ramadan did not moot inmate’s claims because prison failed to make it “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”
- Bangor Daily: Wisconsin woman claims Camden Harbour Inn discriminated against her and disabled husband
Monday, February 3, 2014
- First Circuit: Panel (that included retired Associate Justice David Souter) affirmed summary judgment for employer on Title VII sexual harassment and retaliation claims, holding, in part, that employee failed to establish prima-facie case of retaliation when arguably protected activity occurred in February-March 2011 and termination occurred in May 2011 but “the larger picture quite clearly undermines” the causal connection
- US Dept of Justice: New technical assistance document published summarizing ADA Title II (state and local governments) and Title III (public accommodations and commercial facilities) regulations covering Wheelchairs, Mobility Aids, and Other Power-Driven Mobility Devices
- US Dept of Justice: New technical assistance document published summarizing ADA Title II (state and local governments) and Title III (public accommodations and commercial facilities) regulations covering Effective Communication for vision, hearing, and speech disabilities
- SSA: Social Security Administration announced that it published New Supplemental Security Income Rules Involving Same-Sex Married Couples following Supreme Court’s decision striking down the Defense of Marriage Act
- Maine Women’s Lobby: Monthly newsletter covers pending legislation and court decisions that the Maine Women’s Lobby is following
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
