John Gause monitors what’s happening in employment discrimination, civil rights, and tort law. He shares what he finds on this page.
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
Friday, July 13, 2018
- Maine Supreme Judicial Court: Effective July 1, 2018, package of amendments to the Maine Rules of Civil Procedure require represented parties to serve pleadings and other papers electronically upon one another or by delivering copies (for the most part eliminating service by mail)
- US Courts: "Just the Facts" reports that, while overall civil rights cases have declined, cases brought under the Americans with Disabilities Act have increased three-fold in recent years
- Fifth Circuit: Summary judgment denied on Title VII hostile work environment and retaliation claims by nurse in assisted living facility who was harassed by resident and facility did not prevent the harassment; nurse's refusal to work with resident (nurse was fired for that reason) was protected activity for purposes of retaliation claim
- First Circuit: The court held (in unreported decision) that plaintiff's attorney waived objection to trial judge's failure to give quid-pro-quo jury instruction on Title VII claim where attorney initially objected to the omission but then said, "okay, fair enough," when judge explained that the instruction given had been favorable to plaintiff
- Maine Supreme Judicial Court: Effective August 1, 2018, Maine Rule of Evidence 801 is amended so that a fact-finder can now consider an admissible prior consistent statement both for its rehabilitative and substantive effect; and the business records exception to the hearsay rule (M.R.Evid. 803(6)) is amended to clarify that it is the opponent's burden (not the proponent's) to show that the source of information or the method or circumstances of preparation of the record indicate a lack of trustworthiness
- Law Court: Oral arguments scheduled for July 18th and 19th include Cum-18-15 (whether plaintiff stated a claim against former employer for interference with employment contract for testifying against former employer at an unemployment proceeding, and whether prospective employer was immune from suit under Maine Health Security Act), and Pen-17-549 (whether small claims statute bars the application of res judicata principles to small claims judgments)
Friday, June 29, 2018
- US Supreme Court: Overruling its prior decision to the contrary, the Court held that it violates the First Amendment for a public-sector union to deduct payment from a nonmember’s wages unless the employee affirmatively consents to pay
- US District Court ME: In diversity-based personal injury lawsuit, Magistrate Judge allowed defendant leave to file third-party complaint against pre-suit-released joint tortfeasor despite Pierringer-style release between plaintiff and joint tortfeasor because, while Maine statute (14 MRS § 156) allows dismissal of a released joint tortfeasor "defendant," here the settlement occurred before released tortfeasor became a party
- EEOC: "The State of Age Discrimination and Older Workers in the U.S. 50 Years After the Age Discrimination in Employment Act" report includes that only about 3 percent of those who have experienced age discrimination complained to their employer or a government agency, according to recent research, and studies find that more than three-fourths of older workers surveyed report their age is an obstacle in getting a job
- First Circuit: Judgment following jury verdict affirmed for town on § 1983 claim that town deprived plaintiff of his procedural due process rights because it violated the recall provision in his collective bargaining agreement
- MHRC: June 25th Commission Meeting minutes posted
- Press Herald: Riverview social worker who alleged retaliation settles lawsuit
Friday, June 22, 2018
- Third Circuit: In rejecting claim that public school policy of allowing transgender students to use bathrooms and locker rooms consistent with their gender identity violated constitutional "right to privacy" and Title IX rights of cisgender students (those who identify as being the same sex they were determined to have at birth), the court held that school policy serves a compelling state interest in not discriminating against transgender students and was narrowly tailored to that interest; the policy does not discriminate based on sex because it allows all students to use bathrooms and locker rooms that align with their gender identity; and the presence of transgender students in bathrooms and locker rooms did not create a "hostile environment" for cisgender students; and the court noted support (without deciding issue) for the school's argument that barring transgender students from using privacy facilities that align with their gender identity would, itself, constitute discrimination under a sex-stereotyping theory in violation of Title IX
- First Circuit: In affirming $2.6 million jury verdict in employment discrimination claim based on race, the court held that there was ample direct evidence of racial discrimination; despite plain error by trial court in limiting evidence at trial to what was submitted by defendant in its request to lift default, defendant failed to make any offers of proof at trial as to what it would have presented as evidence absent the sanction; defendant failed to object at trial to judge allowing plaintiff to add hostile work environment theory on last day of trial; and defendant waived argument that First Circuit decision disallowing § 1981 claims against state actors applied
- EEOC: Comprehensive report identifies barriers to women in federal public safety positions (they occupy only 13% of positions), including misperceptions that women are uncomfortable with carrying firearms, misperceptions that women are uncomfortable with physically strenuous job functions, hiring officials' concerns that women cannot meet rigorous fitness exam requirements, and too few initiatives that are aimed at the recruitment of women
- US District Court ME: $5 million settlement approved in Route Sales Drivers' class action claim for unpaid wages
- First Circuit: the court rejected constitutional challenge to Maine "Wrongful Birth Statute," which barred plaintiff's medical malpractice action for damages stemming from birth of a healthy child due to failed contraceptive implant
- Maine Department of Labor: Daniel Bolduc hired as Director of the Bureau of Labor Standards
Saturday, June 16, 2018
- Law Court: The court held that an employer is not required to pay for medical marijuana under Workers' Comp because doing so would constitute criminal aiding and abetting (marijuana distribution is still illegal under federal law), and a state requirement that an employer commit a federal crime is preempted
- US Supreme Court: Amendments to Federal Rules of Civil Procedure, effective December 1, 2018, include amendments to Rule 5 (service) to account for more widespread use of electronic court filings, including the elimination of the certificate of service requirement when a paper is served by filing it with the court’s electronic-filing system; and amendments to Rule 23 (class actions), Rule 62 (stay of proceedings to enforce a judgment), and Rule 65.1 (proceedings against a surety)
- First Circuit: In reversing summary judgment for employer on sex discrimination claim that employer transferred plaintiff and filled her former position with a male in violation of Title VII, the court held that plaintiff's experience and reputation should have been considered in comparing her qualifications with the male's despite the male having superior educational credentials; and that job transfer was an "adverse employment action" despite it not having a decrease in rank, benefits, or pay because transfer left her with "significantly different responsibilities" by rendering useless her prior experience and knowledge in the field of radio communications
- US District Court ME: The court, in part, denied summary judgment on failure to accommodate disability claim by installing push-button access to the heavy wooden doors because, while maybe not needed for plaintiff to perform the essential functions of his job, there was sufficient evidence that without it he did not enjoy equal benefits and privileges of employment by making it difficult for him to enter and exit the workplace
- US District Court ME: Motion to dismiss Maine Human Rights Act claim granted where complaint alleged employer “fired [plaintiff] in November of 2015 for reasons that demonstrate disability discrimination similar to the allegations set forth above,” which was a legal conclusion without factual allegations that demonstrate a basis for relief
- MHRC: June 25th Commission Meeting Agenda and Consent Agenda published
Friday, June 8, 2018
- US Supreme Court: Without deciding whether the US constitution permits a baker to violate a state nondiscrimination law by refusing on religious grounds to create a wedding cake for a gay couple, the Court reversed judgment for couple because the baker's religious freedom argument was not considered by the Colorado Civil Rights Commission "with the neutrality that the Free Exercise Clause requires" (based on a member of the Commission--without objection from the other Commissioners--commenting during a public meeting that freedom of religion had been used to justify discrimination throughout history, as well as to justify slavery and the holocaust)
- Law Court: Oral arguments on June 13th and June 14th will include Ken-17-453 (whether the Court should adopt the "Prisoner Mailbox Rule," making a prisoner’s “filing” with the court effective upon the prisoner depositing with prison authorities mail addressed to the court); Cum-17-511 (whether the Superior Court erred when it confirmed an arbitration award and two amended awards because, in part, the arbitrator should have recused himself after the losing party's attorney accused the arbitrator of violating an ethical rule and the arbitrator threatened to sue the attorney for libel); Pen-17-374 (whether trial court erred in unsuccessful ADEA claim by (1) excluding evidence; (2) refusing to instruct the jury that a claim of employment discrimination made to an employer can be “protected activity”; (4) admitting certain records created by supervisors; and (4) declining to waive costs)
- US District Court ME: The court denied motion for summary judgment on assistant manager's claim for failure to accommodate his disability (Lyme disease) by modifying his work schedule to avoid late-afternoon shifts, finding working the shifts was not “solidly anchored in the realities of the workplace" where there were no schedule requirements in the position description; and denied summary judgment on Family and Medical Leave Act and Maine Family Medical Leave Requirements interference claims because employer authorized intermittent leave in the face of manager's request for reduced schedule leave
- US District Court ME: In denying motion for summary judgment on age and disability employment discrimination claims, the court found that firing plaintiff purportedly for food safety violation without obtaining a statement from him violated employer's established policy and was therefore evidence of pretext, and that boss asking plaintiff if he could "handle" a major remodeling showed boss's concern about plaintiff's ability to perform his job because of his age and medical condition
- US District Court ME: Adopted amendments to Local Rules effective December 1, 2017, include change to Local Rule 6 that makes clear that Federal Rule of Civil Procedure 6 applies to any period of time provided for in the Local Rules
- Maine Superior Court: Following jury-waived trial, the court entered judgment for school department on former assistant principal's Maine Human Rights Act retaliation claims because plaintiff had not engaged in protected activity, and, even if she had, the court credited employer's nondiscriminatory explanation for its allegedly retaliatory actions (the court applied McDonnell Douglas because the parties agreed to it but noted that the Law Court would likely not use McDonnell Douglas for retaliation claims in light of Brady v. Cumberland County)
- MHRC: July 23rd Commission Meeting Agenda posted
Tuesday, May 29, 2018
- First Circuit: In wrongful death action under Federal Tort Claims Act, the court vacated and remanded dismissal for lower court to determine whether plaintiffs' administrative notice of claim was "presented" to the appropriate federal agency within the two-year statute of limitations when the US Postal Service attempted delivery on the last day of the limitations period after the close of business when no authorized recipient was available, so the agency did not come into actual possession of the notice until the following day
- First Circuit: In medical malpractice action under Federal Tort Claims Act, the court held that discovery rule extended two-year statute of limitations only until date of death certificate and not until autopsy report because death certificate together with other known circumstances suggested the probable cause of the injury sufficient to trigger an obligation to investigate whether it resulted from medical malpractice
- First Circuit: The court held that even if district court in medical malpractice trial erroneously admitted hearsay evidence under the residual exception and business records exception, the error would have been harmless because the jury heard similar evidence from other sources
- MHRC: May 21st Meeting minutes include that the Commission has sought approval from the Governor's office to fill an Investigator vacancy since March 28th