John Gause monitors what’s happening in employment discrimination, civil rights, and tort law. He shares what he finds on this page.
Saturday, February 9, 2019
- Ninth Circuit: Following the Third Circuit, the court held that "mixed-motive claims are cognizable under § 1981. Even if racial animus was not the but-for cause of a defendant's refusal to contract, a plaintiff can still prevail if she demonstrates that discriminatory intent was a factor in that decision such that she was denied the same right as a white citizen."
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
Wednesday, January 16, 2019
- US Supreme Court: The Court agreed with the First Circuit that, under the Federal Arbitration Act, (1) when a contract delegates questions of arbitrability to an arbitrator, a court is not required to leave disputes over the application of an FAA exception (here Section 1) for the arbitrator to resolve; and (2) the term "contracts of employment" under the Section 1 exception does not refer only to contracts between employers and employees but also reaches contracts with independent contractors
- First Circuit: In reversing dismissal of False Claims Act retaliation complaint because plaintiff had engaged in FCA-protected activity, the court described the required showing as follows: "rather than plausibly pleading the existence of a fire -- the actual submission of a false claim -- a plaintiff alleging FCA retaliation need only plausibly plead a reasonable amount of smoke -- conduct that could reasonably lead to an FCA action based on the submission of a false claim"
- US District Court ME: Summary judgment granted for employer on Maine Whistleblowers' Protection Act claim where court found that plaintiff had not engaged in WPA-protected activity of reporting what she reasonably believed was illegal activity by reporting that her employer had engaged in violations of “fair claims processing standards," which were best practices guidelines and not an established body of law; and granted summary judgment on her disability reasonable accommodation claim because, in part, her request for a new manager was not a reasonable request
- MHRC: January 28th Meeting Agenda and Consent Agenda posted
Saturday, December 29, 2018
- Seyfarth Shaw Employment Law Lookout Blog: Infographic tracks the spread of paid sick leave and anti-local sick leave laws around the country from pre-2014 to 2018
- 5th Circuit: Where prevailing plaintiff under Fair Labor Standards Act previously rejected a more favorable Rule 68 Offer of Judgment, court should consider rejection of the Offer in setting reasonable attorney's fee, but rejection does not preclude attorney's fees altogether as would be the case under civil rights statutes that include attorney's fees as a part of recoverable "costs"
- MHRC: Minutes of December 17th meeting include that Kathryn Hutchison has joined the Commission as an Investigator and that the Commission expects to be submitting a number of proposed MHRA amendments to the Maine Legislature
- MHRC: January 28, 2019, Meeting Agenda posted
Wednesday, December 19, 2018
- Ninth Circuit: First Amendment-based ministerial exception, which categorically bars an employee's suit under otherwise generally applicable employment laws, did not apply to fifth-grade teacher at Catholic school (she brought an Americans with Disabilities Act claim)
- First Circuit: The court affirmed Title VII retaliation non-jury trial judgment for former Postal Service employee, which included award of back pay and attorney's fees but declined front pay or reinstatement, finding the district court did not err in taking judicial notice of collective bargaining agreement (foreclosing reinstatement) submitted after trial or relying solely on plaintiff's lack of evidentiary support at trial for front-pay award (instead of considering post-trial evidence or reopening hearing)
Thursday, December 13, 2018
- US Supreme Court: Cert granted to decide whether to overrule Auer v. Robbins, 519 U.S. 452 (1997), and Bowles Seminole Rock & Sand Co., 325 U.S. 410 (1945), which direct courts to defer to an agency's reasonable interpretation of its own ambiguous regulation
- US District Court ME: In denying summary judgment on age employment discrimination claim, court found that six-year difference in age between plaintiff and replacement (they were both in their 50s), together with age based comments by decision maker, was sufficient to support inference of age discrimination
- MHRC: December 17th Agenda and Consent Agenda posted
Sunday, December 2, 2018
- MHRC: Minutes from November 19, 2018, Meeting reflect that (in response to a pending Law Court case) a new procedure will be implemented beginning in December 2018 in which the Executive Director will provide 5 M.R.S. § 4612(2) administrative dismissal recommendations to the Commissioners for a vote to adopt the recommended “no reasonable grounds” determination
- First Circuit: Medical evidence was unnecessary for Americans with Disabilities Act plaintiff to show that his "knee injury" was an actual protected disability--a physical impairment that substantially limited a major life activity--because it was the type of condition (like a missing arm) that is amendable to comprehension by a lay jury; but summary judgment was granted, anyway, because plaintiff failed to offer details in addition to conclusory statement that his knee injury was substantially limiting
- Fourth Circuit: Two-year statute of limitations in Maryland Fair Employment Practices Act ("MFEPA"), not three-year SOL governing general civil actions, applies to claims under federal Rehabilitation Act of 1973 because MFEPA provided most analogous cause of action to Rehab Act
- First Circuit: Mandatory arbitration clause in Rhode Island-based employment agreement was enforceable despite challenge that at-will employment was inadequate consideration to form a binding contract, where Rhode Island Supreme Court has held that continued at-will employment is sufficient consideration to form a binding contract
- Maine Superior Court: Maine Health Security Act did not apply to personal injury slip and fall from medical practice's alleged misplacement of shower mat because maintaining safe premises was incidental to but did not "arise out of the provision or failure to provide healthcare services"
- Maine Superior Court: Summary judgment granted, in part, on Whistleblowers' Protection Act claim because approximately one-month temporal proximity between protected reporting activity and employment termination was not alone sufficient to establish causal connection where employer pointed to coworker complaints about plaintiff's threatening and inappropriate workplace behavior as reason for termination (the court noted that even if the coworker complaints were untrue it did not support causation, only that plaintiff was terminated for untrue complaints)
- US District Court ME: Summary states that among Local Rule changes effective December 1, 2018, is an amendment to Local Rule 41.2(5) "to provide that a motion for approval of settlement actions on behalf of minor designate a depository of the funds received for the minor and subjects any withdrawals to court approval until the minor reaches majority"
- MHRC: December 17th Agenda and Consent Agenda posted
Tuesday, November 20, 2018
- Ninth Circuit: "A factor" instead of "but for" causation standard adopted for racial discrimination claims under 42 U.S.C. § 1981
- First Circuit: Denial of summary judgment qualified immunity affirmed for police officer on Fourth Amendment claim arising out of officer shooting plaintiff who began stabbing himself as he was being recommitted to psychiatric hospital where--although officer claimed that she shot hi to protect herself and others who were "within striking distance" --there was no evidence locating others "on a diagram of the room, nor even describing narratively with any precision exactly where they were at the time of the shooting"
- US District Court ME: Guidelines for Filing Confidential Information in Civil Cases published
- US District Court ME: Discovery Dispute Filing Reference Guide published
- EEOC: 2018 Performance and Accountability Report includes that 41 percent of private sector conciliations were successfully resolved