John Gause monitors what’s happening in employment discrimination, civil rights, and tort law. He shares what he finds on this page.
Sunday, October 21, 2018
- US District Court ME: Newly appointed United States District Court Judge Lance E. Walker will serve the Court from Bangor
- Maine Supreme Judicial Court: Oral comments on the proposal to adopt civil justice reform in Maine through the implementation of Differentiated Case Management will be accepted on Wednesday, October 24, 2018, at 1:30 p.m., in the Supreme Judicial Courtroom of the Cumberland County Courthouse in Portland
- Law Court: The court affirmed dismissal of nurse practitioner's Whistleblowers' Protection Act, tortious interference, and Intentional Infliction of Emotional Distress claims against former physician employer who allegedly denigrated her to prospective employer in retaliation for her prior testimony against physician during Unemployment hearing, finding physician's conduct fell within absolute immunity provisions in Maine Health Security Act as statements about her professional background, employment qualifications or performance, and professional competence; and that bad faith in making statements does not alter immunity coverage
- First Circuit: Summary judgment based on qualified immunity affirmed in Fourth Amendment claim arising out of fatal police shooting where an objectively reasonable officer standing in defendant's shoes "would have thought it appropriate to deploy deadly force against an armed man who, after a nearly three-and-one-half-hour standoff in which he was repeatedly warned to drop his weapon, persisted in pointing a loaded semi-automatic firearm narrowly above the heads of three officers and within easy firing range"
- US Supreme Court: Cert. granted in case to decide the following questions presented: (1) Whether the U.S. Court of Appeals in the 2nd Circuit erred in rejecting the Supreme Court’s state actor tests and instead creating a per se rule that private operators of public access channels are state actors subject to constitutional liability; and (2) whether the U.S. Court of Appeals for the 2nd Circuit erred in holding—contrary to the U.S. Courts of Appeals for the 6th and District of Columbia Circuits—that private entities operating public access television stations are state actors for constitutional purposes where the state has no control over the private entity’s board or operations
- MHRC: October 22, 2018, Meeting Agenda and Consent Agenda posted
- MHRC: November 19, 2018, Meeting Agenda posted
Monday, October 8, 2018
- Law Court: Oral arguments scheduled for October 11th include Pen-18-10 (challenge to jury instructions in medical malpractice claim that resulted in $2 million plaintiff's verdict); and Was-18-28 (challenge to application of Maine Equine Activities Act resulting in summary judgment for defendant in personal injury action resulting from collision with horse)
- US DOJ: Revamped website for technical assistance materials
- MHRC: October 22nd Commission Meeting Agenda posted
Friday, September 28, 2018
- Sixth Circuit: Americans with Disabilities Act does not preclude Equal Protection claim for disability employment discrimination under 42 USC § 1983 (noting that, "[t]o establish a violation of the Equal Protection Clause based on disability discrimination, Plaintiff must show that there was no rational basis for the state action that treated her differently because of her disability")
- Fourth Circuit: Retroactive monetary awards such as the back pay are mandatory legal remedies under the Age Discrimination in Employment Act upon a finding of liability
- Eleventh Circuit: Human resources employee engaged in Title VII-protected activity when she provided assistance to another employee in filing EEOC complaint ("when a human resource employee handling another employee's complaint deviates from an internal reporting procedure, the manner of the HR employee's actions may be unreasonable [and therefore unprotected from retaliation,] [b]ut not always")
- Law Court: Decision of Maine Labor Relations Board that police union did not act arbitrarily in its negotiations with town affirmed where substantial record evidence supported Board's determination that union's actions were not so far outside a wide range of reasonableness as to be irrational
- US District Court ME: Magistrate Judge held that non-party employer had right to be heard on whether documents generated during its settlement with plaintiff (the present case is against a different employer) at Maine Human Rights Commission should be produced subject to confidentiality order notwithstanding statutory confidentiality of documents under Maine Human Rights Act
- US District Court ME: Summary judgment denied on claims of retaliation under the Maine Whistleblowers’ Protection Act, Title VII, and the Maine Human Rights Act; and on hostile work environment claims under Title VII and the Maine Human Rights Act; but granted on disparate treatment theory underlying Title VII and Maine Human Rights Act sex discrimination claims
- US District Court ME: Default judgment of $900,000 in compensatory damages and $200,000 in punitive damages awarded to former inmate against former corrections officer at reentry center on tort and 8th Amendment claims arising out of repeated sexual assaults while inmate was in custody
- MHRC: October 22nd Commission Meeting Agenda posted
- Sayfarth Shaw Blog: Federal Judge Rules that Employer Violated Connecticut Law by Refusing to Hire Medical Marijuana User
- Bangor Daily: Man reaches settlement with Maine officials after suing over rape allegations
- Bangor Daily: Former Bangor housing worker sues, alleging sexual harassment
Tuesday, September 18, 2018
- First Circuit: Motion to compel arbitration of public accommodation disability discrimination claim (failure to install tactile keypads on defendant's point-of-sale devices in its stores) denied where there was no evidence that the in-store plaintiffs had any knowledge, actual or constructive, that arbitration terms applied to their enrollment in loyalty program where plaintiffs could not read prompt on screen alerting them that they were agreeing to the terms
- US District Court ME: Magistrate Judge ordered defendant in Jones Act personal injury action to produce transcript of recorded statement taken by defendant's liability insurer, where defendant offered no evidence to suggest that the insurance company’s efforts to obtain the statement were in anticipation of litigation as distinguished from its regular business practice
- Maine Legislature: LD 1927, which would have reversed the changes to the eligibility requirements for unemployment benefits made by Public Law 2017, chapter 453, "An Act To Give Flexibility to Employees and Employers for Temporary Layoffs," died on adjournment of the Legislature on September 13th
Friday, September 7, 2018
- Maine Supreme Judicial Court: Proposal to adopt civil justice reform in Maine through the implementation of Differentiated Case Management principles (comments due October 5th) would create three case tracks: Track A, such as 80B and 80C appeals where the process is already defined by statutes, rules, and orders of the court; Track B, the standard track with deadlines shortened and set on trial list 9 months out; and Track C, the complex track in which an individualized scheduling order is issued after a scheduling conference
- Seventh Circuit: Deciding issue of first impression, "[n]ot only does [the Fair Housing Act] create liability when a landlord intentionally discriminates against a tenant based on a protected characteristic; it also creates liability against a landlord that has actual notice of tenant-on-tenant harassment based on a protected status [here because tenant was openly lesbian, which the court held was sex discrimination], yet chooses not to take any reasonable steps within its control to stop that harassment"
- US District Court ME: Constitutional claims arising out of police officer shooting plaintiff who later pled guilty to possessing a firearm by a felon dismissed because the claims, if successful, would necessarily contradict the plaintiff's lengthy criminal sentence on the firearm conviction that depended on his having raised a rifle at the police before he was shot
- US District Court ME: Motion to dismiss Maine Human Rights Act disability discrimination claim granted where complaint failed to factually allege any connection between plaintiff's disability and his termination
- MHRC: August 27th Meeting Minutes include that the Commission completed the hiring process for one of the two vacant Investigator positions, with a new hire starting on September 4th
- MHRC: September 24th Commission Meeting Agenda posted
Monday, August 27, 2018
- Sixth Circuit: The "tender-back doctrine" does not apply to claims brought under Title VII and the Equal Pay Act; rather, if plaintiff proves that severance agreement under which employer paid her $4000 in exchange for full release of claims was unenforceable, the $4000 did not have to be paid back prior to filing complaint but would instead be deducted from any award determined to be due to the plaintiff
- MHRC: Proposed amendments to Procedural Rule address confidentiality, conciliation/settlement information, requests for a new investigation, conduct at Commission meetings, and late-submitted evidence, among other procedural matters; testimony and comments due September 21, 2018
- Maine DOL: New Rules effective August 19, 2018, for employment of minors include allowing 17-year-olds to drive for work under specific circumstances and conditions; 16-year-olds are no longer prohibited from working alone in a cash-based business; expanded cooking occupations for 14- and 15-year-olds; and a prohibition against all minors from working in the marijuana industry
- Law Court: Homeowners insurance policy exclusion for "bodily injury . . . [w]hich is expected or intended by the insured" narrowly means “bodily injury that the insured in fact subjectively wanted (‘intended’) to be a result of his [or her] conduct or in fact subjectively foresaw as practically certain (‘expected’) to be a result of his [or her] conduct," but attack on plaintiff was subject to exclusion
- First Circuit: District Court judgment for employer following five-day bench trial affirmed on complaint by former teacher against alleging retaliation for her advocacy on behalf of students with disabilities, where district court found that employer's reasons for its adverse employment actions were pretextual yet nevertheless found that teacher failed to prove that actions were motivated by unlawful discrimination
- First Circuit: Dismissal of Sarbanes-Oxley Act of 2002 whistleblower complaint affirmed where plaintiff filed untimely (formerly 90 days to file, now 180 days) administrative complaint with OSHA alleging retaliation for reporting suspected federal securities law violations
- MHRC: August 27th Agenda and Consent Agenda posted
- MHRC September 24th Agenda posted
Thursday, August 16, 2018
- HUD: Consistent with the Administration's regulatory reform efforts, the Federal Department of Housing and Urban Development is seeking public comment to assist it in amending its affirmatively furthering fair housing regulations to, in part, "minimize regulatory burden while more effectively aiding program participants to plan for fulfilling their obligation to affirmatively further the purposes and policies of the Fair Housing Act"
- Third Circuit: As a matter of first impression under the Rehabilitation Act of 1973, the accommodation of a disabled person's request to be accompanied by her service animal is per se reasonable absent exceptional circumstances
- First Circuit: Summary judgment for university reversed on faculty member's Title VII retaliation claim where evidence supported conclusion that faculty member voluntarily transferred to another department because dean misrepresented that she could continue to teach two of her chosen courses (she ended up being assigned remedial-level courses instead), and university offered no non-retaliatory explanation for the misrepresentation
- US District Court ME: In denying motion for summary judgment on employment discrimination claim, the court held, in part, that plaintiff with non-Hodgkin’s lymphoma complaining to HR representative that his manager had called him "chemo brain" was protected activity even though he did not characterize it as "disability discrimination"; demotion coming two weeks later created sufficient "causal nexus" to prove unlawful retaliation; there was sufficient evidence that the demotion was also disability discrimination where manager's treatment of him became highly critical around the time his chemotherapy started (despite lack of comparator evidence with non-disabled employees); and manager's conduct was sufficiently severe to create an actionable hostile work environment
- Law Court: Discovery order by Superior Court Justice acting as medical malpractice screening panel chair that was subject to undecided motion for reconsideration and never acted upon by the parties held to be a nullity and therefore did not create the "law of the case"
- Maine Supreme Judicial Court: Adopted amendment to Maine Rule of Civil Procedure 7(e), effective September 1, 2018, enlarges the deadline for filing a reply memorandum from 7 days to 14 days
- US Courts: Proposed amendment to Federal Rule of Civil Procedure 30(b)(6) would add the following language: "Before or promptly after the notice or subpoena is served, and continuing as necessary, the serving party and the organization must confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify"
Wednesday, August 8, 2018
- First Circuit: Summary judgment for employer reversed on Age Discrimination in Employment Act (ADEA) hostile work environment claim, where employee's affidavit tracked allegations in complaint and alleged daily or near daily age-based comments by supervisors but not "the exact date, exact individual involved, and exact words used"; and on Title VII and ADEA claims that employer created a retaliatory hostile work environment and subjected employee to a retaliatory constructive discharge, where affidavit stated that owner threatened employee with termination on a daily basis for filing discrimination complaint
- US District Court ME: Summary judgment for prison officials denied in 8th Amendment cruel and unusual punishment claim arising out of murder of inmate by another inmate where evidence supported conclusion that officials failed to adequately protect general population inmates (particularly sex offenders such as the victim here) from aggressor despite his record of extreme violence and warnings from two prison officials that he would likely become violent
- MHRC: August 27th Commission Meeting Agenda posted
Saturday, July 28, 2018
- US Courts: 4-minute video on civility in law and in life is worth watching
- Maine Supreme Judicial Court: Public hearing scheduled for October 23, 2018, on proposed amendment to Rules of Professional Conduct that would make it "professional misconduct" for a lawyer to "engage in conduct or communication related to the practice of law that the lawyer knows or reasonable should know is harassment, or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity"
- US DOJ: In commemorating 28th anniversary of the Americans with Disabilities Act, the US DOJ Civil Rights Division lists examples the DOJ's efforts in the past year to further the objectives of the ADA, including ensuring equal employment opportunities, ensuring equal access to childcare, removing barriers to veterans with disabilities, advancing community integration opportunities, removing discriminatory barriers to recovery, protecting voting rights, and protecting inmates with disabilities from discrimination
- Third Circuit: Opinion concerning transgender students' bathroom and locker use (discussed in 6/22/18 post below) vacated after rehearing, and revised opinion is less clear on whether the school district would have violated Title IX had it implemented a policy that confined transgender students to use of bathrooms and locker rooms designated for their biological sex, although it still held that school district did not violate Title IX rights of cisgender students by allowing transgender students to use bathrooms and locker rooms that are consistent with the students’ gender identities
- Law Court: Prisoner mailbox rule (under which courts consider document filed on the date inmate deposited it with prison officials for forwarding to the clerk of court rather than the date it was received by the clerk of court) adopted "for any unrepresented prisoner whose Rule 80C petition, having been delivered to the Department of Corrections at least three days before the last day on which the petition may be timely filed, arrives at the clerk of court after that deadline has expired"
- US District Court ME: In denying motion for summary judgment on Maine Human Rights Act, Whistleblowers' Protection Act, and defamation claims, the court, in part, rejected defendants' argument that plaintiff's summary judgment evidence should be disregarded, finding that it was not "clearly contradictory" compared with her prior Maine Human Rights Commission complaint
- US District Court ME: In granting motion to dismiss Federal Emergency Medical Treatment and Active Labor Act ("EMTALA") claim, the court rejected plaintiff's argument that the screening she received in the hospital was not full and appropriate, finding that "quality of the screening examination the plaintiff received may indeed be a factual and expert question, but it raises Maine medical malpractice law issues, not a federal EMTALA claim for refusing to screen or disparate screening"
- HUD & DOJ: 60-second video highlights the problem and illegality of sexual harassment in housing
- MHRC: Minutes from July 23, 2018, meeting include that there were 38 applications for a vacant Investigator position and the average age of cases in the agency is 260 days
Sunday, July 22, 2018
- Sixth Circuit: "An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities."
- Maine Supreme Judicial Court: Effective July 18, 2018, Maine Bar Rules amended to require 12 (up from 11) CLE hours per year, with one live hour (in addition to an hour on professionalism) primarily concerned with the recognition and avoidance of harassment and discriminatory conduct or communication, which topics include conduct or communication related to the practice of law involving harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity
- US District Court ME: Plaintiff administratively exhausted age discrimination claim at the Maine Human Rights Commission despite only checking "Whistleblowers Protection Act" box on MHRC complaint, where statement of particulars in complaint included that she told her human resources department that "a staff person said the current house manager was wanting 'to get rid of the older people on the weekend staff,' which included me"
- First Circuit: Title IX complaint against Brown University arising out of sexual assault of Providence College student dismissed because complaint did not allege that plaintiff participated or even would have participated in any of Brown's educational programs or activities
- US DOL, Wage and Hour Division: Field Assistance Bulletin concludes that a caregiver registry (an entity that matches people who need caregiving services with caregivers such as nurses, home health aides, and personal care attendants) that simply facilitates matches between clients and caregivers—even if the registry also provides certain other services, such as payroll services—is not an employer under the Fair Labor Standards Act, but a registry that controls the terms and conditions of the caregiver's employment may be an employer of the caregiver and therefore subject to the requirements of the FLSA