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.
Saturday, February 10, 2018
- US District Court ME: In upholding plaintiff’s jury verdict on Maine Whistleblowers’ Protection Act claim, including $450,000 punitive damages and $50,000 back pay awards, the court held that there was sufficient evidence that plaintiff engaged in WPA-protected conduct by reporting to her employer what she subjectively believed was harassment based on her age and/or disability, and that her belief was objectively reasonable, even if the conduct was not actually illegal, and even if she did not explicitly state in her reports that her harassment was unlawful or based on her age, disability, or other protected status; two-month gap between protected reports and and termination was sufficiently close to establish causation, and reports made 28 months and two years earlier came into play in the termination decision because they were substantially similar to the report made within two months of the termination, even if each was not sufficiently close in time, standing alone, to establish a causal nexus; punitive damages were permissible despite lack of compensatory damages, because the back-pay award met the Law Court’s prerequisite that there be compensatory or “actual damages” before punitive damages may be awarded; 9:1 ratio of punitive damages to back pay was not excessive; front pay was not warranted where plaintiff failed to show that a job with pay and benefits comparable to those she received with defendant was unavailable to her had she desired it
- First Circuit: Trial judge did err by including a custom-tailored adaptation of the McDonnell Douglas framework in jury instructions, and that it was not plain error for the judge to instruct the jury that, even if it found that plaintiff had proven the elements of her prima facie case, it would still have to consider whether the defendants’ proffered reasons for firing her were legitimate and nondiscriminatory and, if so, whether those reasons were “merely a pretext”
- Maine Superior Court: Justice found landlord violated Maine Human Rights Act and Fair Housing Act by creating a hostile housing environment based on tenant’s female sex and retaliated against her for reporting it by turning off her electricity and taking her cat, and justice awarded $50,000 in compensatory damages and a $10,000 civil penalty
- Maine Superior Court: Property owner’s motion for summary judgment denied on negligence claim arising out of fall due to missing handrail, where there was a genuine issue of material fact whether owner retained sufficient control over property (leased to store owner) to be liable for failing to install handrail
- Maine Superior Court: Justice awarded personal injury plaintiff $1,630,000 (including $150,000 in punitive damages) who was severely injured while running beside the road by truck going 63 mph in a 30 mph zone; defendant, who was uninsured, defaulted
- Press Herald: Oakhurst OT case of missing-comma fame settled for $5 million
Saturday, February 3, 2018
- Maine Superior Court: The court granted motion under Maine Rule of Civil Procedure 43(a) to allow New Hampshire orthopedic surgeon to testify at trial in Aroostook County by contemporaneous video conference instead of attending trial in light of time, cost, and burden that would be involved with surgeon attending trial
- Maine Legislature: Public hearing scheduled for February 7th before the Labor Committee on LD 1587, which would create a paid family medical leave program, patterned after the unpaid family medical leave program existing in current law but require a contribution from an eligible employee, or a self-employed person on a voluntary basis, of no more than 0.5% of the employee’s or self-employed person’s wages or earnings
- MHRC: Revised MHRC Agenda and Consent Agenda posted
- Press Herald: Republican bill would allow more drug testing of Maine workers
- Press Herald: Woman sues USM over handling of alleged sexual assaults
- Bangor Daily: ACLU asks Maine high school to retire ‘Warriors’ mascot
Saturday, January 27, 2018
- First Circuit: In affirming Title VII sexual harassment and retaliation jury verdict for plaintiff, the court held, in part, that 300-day administrative complaint-filing deadline was met because plaintiff’s testimony at trial that “a good portion” of the harassment occurred in 2011 supported conclusion that at least some happened after February 3, 2011 (the 300-day window); non-workplace conduct was admissible; a plaintiff alleging “sex-plus” discrimination is not required to identify a comparable (meaning one that has the same “plus” factor, e.g., having children or being gay) member of the opposite sex who was not subjected to discrimination; a permissible “plus” factor in a “sex-plus” discrimination claim is sexual orientation (the court did not re-examine its 20-year-old holding that pure sexual orientation discrimination is not protected by Title VII); that the terms, “bitch,” “cunt,” and “Frangina” (plaintiff’s name is Franchina) are inherently genderspecific and their repeated and hostile use can reasonably be considered evidence of sexual harassment; there was sufficient evidence of a hostile work environment where, in addition to the use of the genderspecific terms, there was evidence that women were treated as less competent, men treated women better when they were perceived as willing to have sex with them, and a coworker asked if plaintiff wanted to have babies and if he could help her conceive; the jury instruction that plaintiff may establish gender discrimination “by proving that she was harassed because she is part of a subclass of women, in this case lesbians, if she also proves that this harassment was at least in part because of her sex or gender,” was an accurate description of the law, and the trial court did not err by refusing to add the superfluous language that, “[i]f you find that Ms. Franchina faced harassment solely because of her sexual orientation, then she has not proven that she faced harassment because of her gender”; that while there may have been reversible error on the jury’s front-pay award because the jury was not instructed to reduce the award to present value, the fact that the trial judge independently awarded front pay that was reduced to present value overcame the error; the $545,000 front-pay award was adequately supported by the record even without expert witness testimony on future earnings and the proper methodology for reducing the award to present day value
- US Supreme Court: The Court held that the tolling provision for dismissed supplemental jurisdiction state law claims, 28 U. S. C. §1367, stops the clock on the state statute of limitation while the federal lawsuit is pending plus 30 days after dismissal (not just for a 30-day grace period after dismissal)
- US Supreme Court: The Court held that qualified immunity shielded officers from Fourth Amendment false arrest claims where there was no controlling case holding that a bona fide belief of a right to enter defeats probable cause, that officers cannot infer a suspect’s guilty state of mind based on his conduct alone, or that officers must accept a suspect’s innocent explanation at face value
- Sixth Circuit: A district court must grant a motion for a new trial as to damages when a jury awards back pay to a Title VII plaintiff in an amount that is substantially less than the damages to which he is indisputably entitled
- First Circuit: Despite finding that public employee lacked a Due Process property interest in his job, the court nevertheless analyzed plaintiff’s Due Process “stigmatization claim” (and found plaintiff could not establish one), which involves a five-part test: The challenged statements must be false, they must have seriously damaged the employee’s reputation and standing in the community, they must have been intentionally publicized by the government employer, they must have been made in conjunction with the employee’s termination, and the government must have denied the employee’s post-termination request for a name-clearing hearing
- US District Court ME: In employment discrimination claim brought against State of Maine, the court granted State’s motion to substitute “male employee” for third party state employee’s actual name or his initials in all its Court filings, in light of the confidentiality of state personnel records required by 5 M.R.S. § 7070
- EEOC: Fiscal Year 2017 Enforcement And Litigation Data includes that retaliation was the most frequently filed charge (48%), followed by race (33%) and disability (31%); that it has reduced its charge workload by 16.2%; and that it achieved a successful outcome in 90.8 % of all the lawsuits it filed
- Maine Legislature: Public hearing scheduled for January 31st on LD 1768, An Act To Reduce Impairment on the Job and Improve Workplace Safety by Amending the Laws Governing Employment Practices Concerning Substance Use Testing
- HUD: $300,000 awarded to Pine Tree Legal Assistance as part of $37 million in grants to Fair Housing Initiatives Program
Saturday, January 20, 2018
- First Circuit: The court upheld District Court’s award of $500/hr rate for Boston-based ERISA attorney versus $375/hr for Kentucky-based ERISA attorney in successful ERISA case heard in Boston, finding that courts may base attorney’s fee award on counsel’s standard rate, or the prevailing market rate in the forum, or a reasonable rate in between
- First Circuit: Petition for rehearing en banc granted in claim brought by former House Speaker against Maine Governor
- EEOC: Latest edition of The DIGEST Of Equal Employment Opportunity Law published
Saturday, January 13, 2018
Saturday, January 6, 2018
- Third Circuit: In holding that employee who was fired by hospital for refusing to be inoculated against the flu did not state a claim for religious discrimination under Title VII, where the employee did not belong to any religious organization but held strong personal beliefs opposing the flu vaccine, the court defined religion as follows: “First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief- system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.”
- Maine Legislature: LD 1768 would make several changes to the Maine Substance Abuse Testing law, including replacing the “probable cause” prerequisite for an employer to require an employee to submit to a substance abuse test with an “impairment detection” standard, and broadening the circumstances under which employers may conduct random or arbitrary substance abuse testing of employees
- US DOL: Press release states that going forward the Wage and Hour Division will update its enforcement policies to align with recent case law that rejected its six-part test for determining whether interns and students are employees under the Fair Labor Standards Act
- MHRC: January 8th Commission Meeting Agenda and Consent Agenda posted
Tuesday, January 2, 2018
- National Law Review: Tax Reform Act Denies Deductions for Some Sexual Harassment Settlements
- US DOJ: Citing “the ongoing government-wide effort to reduce regulatory burdens and improve the quality of guidance documents offered to the public,” the DOJ announced ADA technical assistance and guidance documents that were withdrawn 12/31/2017, including “Common ADA Problems at Newly Constructed Lodging Facilities” (November 1999); Title II and Title III Highlights (2008); “Commonly Asked Questions About Service Animals in Places of Business” (July 1996); and “Americans with Disabilities Act Questions and Answers” (co-authored by EEOC) (May 2002)
- Law Court: In finding mandatory arbitration agreement between law firm and client unenforceable, the court held that to enforce a contractual provision that prospectively requires a client to submit malpractice claims against a law firm to arbitration, an attorney must have first obtained the client’s informed consent as to the scope and effect of that provision; and, to obtain the client’s informed consent, the attorney must effectively communicate to the client that malpractice claims are covered under the agreement to arbitrate
- Law Court: The court held, in part, that the Maine Freedom of Access Act required the Maine Department of Corrections to disclose portion of final written decision related to disciplinary action that contained a description of a past incident of misconduct by other employees and allegations of misconduct of another employee involved in the incident that resulted in the discipline, as well as the name of the person making the accusation of misconduct against the subject employee
- US District Court ME: The court held that landlord owed a negligence duty to police officer injured while responding a party on landlord’s property, and refused to apply the “Firefighter’s Rule” (prohibiting recovery by a firefighter or police officer injured in the course of duty by perils they are employed to confront) because it has not yet been adopted by the Law Court
- Fourth Circuit: Patron has standing to bring ADA Title III claim where he plausibly alleges his intent to return to place of public accommodation; he is not required to allege specific goods, services, and conveniences that he would seek or the precise dates and arrangements for his return
- US Supreme Court: Chief Justice Roberts’ 2017 Year-End Report on the Federal Judiciary noted that there will be a careful evaluation of the federal judiciary in 2018 to ensure adequate procedures are in place to investigate allegations of misconduct in light of “the depth of the problem of sexual harassment in the workplace”; during the 2016 Term, 71 cases were argued and 68 were disposed of in 61 signed opinions, compared to 82 cases argued and 70 disposed of in 62 signed opinions in the 2015 Term; and civil case filings in the U.S. district courts fell eight percent in 2017 compared with 2016
Monday, December 18, 2017
- 11th Circuit: The court reaffirmed that plaintiffs may establish Title VII disparate treatment even absent a showing of differential treatment of similarly situated comparators if they show “a convincing mosaic of circumstantial evidence” that would allow a jury to infer intentional discrimination
- Law Court: Under deferential standard of review, the court held that Workers’ Compensation Appellate Division did not err in concluding that mileage reimbursement paid to volunteer driver did not constitute remuneration (which is necessary for someone to be an “employee” under the Act) even though it exceeded the volunteer’s immediate expenditures for driving, although the court left open the possibility that it would reach a different conclusion in another case
- Maine Superior Court: Summary judgment denied on Maine Whistleblowers’ Protection Act hostile work environment claim where complaint adequately pled a hostile work environment despite the fact that it did not explicitly include claim, and only a few weeks passed between report of suspected illegal activity and start of hostile environment
- Kennebec Journal: Panel vote supports retired Jay teacher’s age discrimination, retaliation claims
- Press Herald: Lawsuit alleges pattern of abuse at Maine’s juvenile detention center that goes back decades
Friday, December 8, 2017
- First Circuit: In granting summary judgment for employer on religious discrimination and retaliation complaint, the court held that temporal proximity between plaintiff starting to wear headscarf, her filing two EEOC complaints, and adverse employment actions was insufficient to show pretext for employer’s proffered legitimate reasons, “especially if the surrounding circumstances undermine any claim of causation”
- First Circuit: Federal Tort Claims Act’s discretionary function exception barred the maintenance of action to recover damages for unauthorized cutting of trees
- MHRC: December 11th Agenda posted
- Maine Public: Two lawyers and Bowdoin professor discuss “Why does sexual harassment happen, and what can be done on an individual basis or as a culture?”
- Press Herald: Judge rejects motion to dismiss shooting victim’s lawsuit against Biddeford
Saturday, December 2, 2017
- Maine Legislature: New laws effective November 1, 2017, include Chapter 61 (An Act To Protect Landlords from Lawsuits for Damage or Harm Caused by Assistance Animals), Chapter 162 (An Act To Coordinate and Enforce Existing Workplace Training Requirements), and Chapter 219 (An Act To Update the Statutes Governing the Bureau of Labor Standards To Promote Clarity for Workers and Employers)
- Maine Supreme Judicial Court: Court seeks comments on proposed amendment to Maine Rules of Professional Conduct to state specifically that unlawful harassment or unlawful discrimination constitutes professional misconduct
- US Supreme Court: Cert granted to decide question presented, “Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine”
