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.
Wednesday, March 30, 2016
- Law Court: In affirming dismissal of legal malpractice action, the court found that there was nothing that an attorney could have done differently to change the result (application of set back requirements in zoning ordinance), and that court properly denied motion to file third amended complaint made three years after initial complaint on the grounds of undue delay and the potentially prejudicial impact on the litigation
- First Circuit: In affirming dismissal of § 1983 claim against police chief and city arising out of city patrol officer raping plaintiff, the court held that the complaint did not plausibly allege that chief had the requisite notice of the risk that the officer would assault plaintiff, and that, while in cases “in which a material part of the information needed is likely to be within the defendant’s control and some latitude may be appropriate in applying the plausibility standard,” plaintiff had not made the necessary allegations “upon information and belief”
Friday, March 25, 2016
- US District Court ME: In denying motion for summary judgment on various employment claims, the court found that inconsistent and changing reasons for termination were sufficiently pretexual to support sex discrimination claim; working part time temporarily would have been a reasonable accommodation, and employer’s statement that it did not have a light-duty position without offering other positions was sufficient to show employer failed to engage in a good faith interactive process; plaintiff’s reporting activity was protected by the Maine Whistleblowers’ Protection Act (post Harrison v. Granite Bay Care, Inc.) because she went beyond her job duties and was motivated by her desire to report a dangerous condition; forcing plaintiff to attend obligatory anger management counseling was an adverse employment action; and employer’s failure to provide personnel file within 10 days warranted finding violation of 26 M.R.S.A. § 631 although file was provided during discovery
- EEOC: New online charge status system provides individuals who have filed a charge of discrimination the ability to check the status of their charge online
- Law Court: Oral arguments for April 5th – 7th include BCD-15-404 (asbestos wrongful death); Pen-15-305 (legal malpractice for failure to warn that loan would not be protected in bankruptcy); Cum-15-365 (defamation, false light, invasion of privacy, and Maine’s Anti-SLAPP statute)
- Press Herald: William Brodrick, longtime Maine Superior Court judge, remembered as “a quiet mentor”
- Sun Journal: Civil lawsuit against Androscoggin County Commission to proceed
- Kennebec Journal: Widower of Monmouth crash victim sues 2 drivers
Monday, March 21, 2016
- US District Court ME: In complaint by doctor against his former employer, a “deemed” Public Heath Service entity under the Federally Supported Health Centers Assistance Act, the court granted employer’s motion to dismiss Age Discrimination in Employment Act claim because doctor did not first file with the Equal Employment Opportunity Commission; and granted the United States’ motion to dismiss because Federal Tort Claims Act remedies are limited to medical malpractice actions, and doctor’s complaint was not for medical malpractice
- US District Court ME: The court granted motion for summary judgment on Family and Medical Leave Act and Maine Whistleblowers’ Protection Act claims, finding that, despite evidence of temporal proximity between protected conduct and termination, plaintiff failed to show that defendant’s nondiscriminatory reason for termination was a pretext
- MHRC: March 14, 2016, Commission Meeting minutes posted
Wednesday, March 16, 2016
- First Circuit: The court held that ERISA requires a plan administrator in its denial of benefits letter to inform a claimant of not only his right to bring a civil action, but also the plan-imposed time limit for doing so; the failure to do so rendered, as a matter of law, the contractual three-year limitations period inapplicable; and plaintiff’s claim was timely under Puerto Rico’s 15-year statute of limitations on contract claims
- Ninth Circuit: The court held that in an EEOC class action the EEOC may maintain claims on behalf of additional aggrieved employees provided at least one act of misconduct occurred within 300 days prior to the date the first aggrieved employee filed her charge; and that each aggrieved employee is not required to file a new charge of discrimination with the EEOC if her claim is already encompassed within the EEOC Reasonable Cause Determination or if the claim is “like or reasonably related” to the initial charge
- US District Court ME: In denying motion to dismiss inmate’s complaint, the court held that right to file an internal grievance was protected by the First Amendment; being subjected to increased searches and interference with mail might deter a reasonably hearty inmate from exercising his constitutional rights; and it was unnecessary for the court to decide whether the Prison Litigation Reform Act bar on inmate lawsuits that do not allege “physical injury or the commission of a sexual act” applied to constitutional claims, because the First Circuit (there is a circuit split) has allowed a prisoner’s First Amendment § 1983 claim to proceed without an allegation of physical injury where he requested nominal and punitive damages in addition to compensatory damages, and plaintiff requested nominal and punitive damages
- Press Herald: LePage nominates six for judicial posts in Maine
- Bangor Daily: Jury finds Winslow officer’s use of Taser was not excessive force
Saturday, March 12, 2016
- Fifth Circuit: The court held that False Claims Act retaliation claims are not limited to claims by employees against employers but also may be brought by contractors and agents, provided the claims are related to “terms and conditions of employment ” or the contract or agency relationship
- Tenth Circuit: Following Administrative Law Judge’s $250,000 punitive damages award (reduced to $125,000 by the Administrative Review Board) under the Federal Railroad Safety Act, which prohibits retaliation against an employee for notifying or attempting to notify a railroad about an on-the-job injury or medical treatment for that injury, the court held that plaintiff met his prima facie case on liability, which defendant failed to counter with clear and convincing evidence; and that Review Board acted arbitrarily and capriciously in halving punitive damages award
- US District Court ME: Following over $7 million verdict the court held that prejudgment interest from date of statutory notice of claim would not be awarded (implicating millions of additional dollars in interest) because notice of claim had not been “set forth under oath” as required by 14 M.R.S.A. § 1602-B(5)
- Maine Legislature: LD 1605 would extend Wrongful Death Act statute of limitations from two to six years for causes of action based on homicide
- Maine Supreme Judicial Court: Chief Justice Saufley’s State of the Judiciary Address includes reference to a contract to digitize court documents that will be signed this summer, followed by a move toward electronic filing
- MHRC: April 11th Commission Meeting Agenda posted
Saturday, March 5, 2016
- First Circuit: The court held that four-year statute of limitations applied to claim brought under Title II of the ADA that plaintiff was discriminated against because she was “regarded as” having a disability, finding that claim was “made possible” by the ADA Amendments Act of 2008 and four-year catch-all statute of limitations in 28 U.S.C. § 1658 applies to actions “arising under” a federal statute enacted after December 1, 1990
- US District Court ME: In granting summary judgment for train operator on wrongful death claim brought by estate of pedestrian struck and killed by train, the court held that operator did not have a duty to run its trains so slowly at frequently crossed location so that they could always come to a complete stop for anyone choosing to cross
- US District Court ME: Magistrate Judge recommended dismissal of FMLA retaliation claim, finding that plaintiff’s leave to recover from anxiety and depression caused by attending court during FMLA leave was unprotected
- EEOC: New Fact Sheet published, “Preventing Discrimination is Good Business”
Thursday, March 3, 2016
- MHRC: Theodore Helberg, Vice President of Human Resources at the Eastern Maine Health System, replaces Sallie Chandler as Maine Human Rights Commissioner
- EEOC: First lawsuit filed by EEOC under Title VII to allege that harassment and other discrimination because of sexual orientation is prohibited sex discrimination
- US District Court ME: In denying summary judgment on Family and Medical Leave Act retaliation claim, the court held that more was needed than temporal proximity (4 days) between FMLA request and termination because leave request was relatively minor; but plaintiff could show pretext and invoke the “cat’s paw” theory to establish that decisionmaker who was unaware of FMLA request was influenced by two individuals who were
- US District Court ME: The court denied motion for summary judgment on retaliation and disability employment discrimination complaint under the Maine Human Rights Act, finding genuine issues of material fact whether employer failed to participate in good faith in interactive process, and whether interactive process had so irreparably broken down that plaintiff assumed she would not be able to return to her prior position
- First Circuit: The court affirmed summary judgment for employer on Americans with Disabilities Act employment discrimination claim, finding that plaintiff’s lawyer’s concessions in district court filings that lifting 60 pounds manually was an essential function were binding on plaintiff on appeal, plaintiff could not perform the function, and employer’s failure to engage in the interactive process was not actionable where record showed that employee could not have performed the job with or without reasonable accommodation
- MHRC: March 14th Commission Meeting Agenda and Consent Agenda posted
Saturday, February 27, 2016
- Eleventh Circuit: Rejecting the application of the McDonnell Douglas framework to mixed-motive circumstantial evidence claims under Title VII and § 1983, the court held that plaintiff only must offer evidence sufficient to convince a jury that (1) the defendant took an adverse employment action against the plaintiff; and (2) a protected characteristic was a motivating factor for the defendant’s adverse employment action (the court noted that the First Circuit has so far declined to analyze the role of McDonnell Douglas in this context post-Desert Palace)
- US District Court ME: In a post-trial order following a plaintiff’s verdict on Maine Human Rights Act and Americans with Disabilities Act claims, the court held that the back-pay award was not speculative despite the per diem nature of plaintiff’s former job (she testified to the average hours and pay she had earned while employed); jury instruction was proper on communication mistake that led to termination (citing Criado v. IBM Corp.); reinstatement was appropriate despite employer’s claim of hostility; and pre-judgment interest on judgment pursuant to 14 M.R.S.A. § 1602-B(5) started when employer received notarized Maine Human Rights Commission complaint, despite the fact that complaint was not sent by registered or certified mail
- Sixth Circuit: In reversing summary judgment for employer on Title VII claim that female employee was disciplined more harshly than males for allegedly similar conduct, the court held that, at the pretext stage of the McDonnell Douglas/Burdine analysis, the factual inquiry into whether the comparison conduct was similar proceeds to a new level of specificity without an increase in plaintiff’s evidentiary burden from the prima-facie-case stage
- Maine Legislature: LD 1601 creates the term “assistance animal” (compared with “service animal”) in the Maine Human Rights Act to account for the differences between housing and public accommodations discrimination, and increases the penalty for misrepresentation as a service dog or assistance animal
Monday, February 22, 2016
- EEOC: New nationwide procedures implemented that provide for the release of respondent position statements and non-confidential attachments to a charging party or her representative upon request during the investigation
- Maine Superior Court: The court held that defendant in personal injury action could not introduce at trial the amount that MaineCare paid for plaintiff’s medical bills
- Maine Superior Court: The court denied summary judgment in medical malpractice action brought by pedestrian struck by defendant neurologist’s patient, finding that neurologist owed pedestrian duty to warn patient not to drive in light of patient’s medical condition
- Second Circuit: The court held that “race” includes ethnicity, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under § 1981 and Title VII
- Eleventh Circuit: The court held that the Fair Housing Act protects renters not only from discriminatory eviction, but also from discriminatory actions that would lead to eviction but for an intervening cause (defendants initiated eviction proceedings that ceased when the property changed hands)
- Maine Supreme Judicial Court: Proposed amendments to the Maine Rules of Civil Procedure include allowing Rule 5(b) service by electronic means and changing the time for defendant’s answer to a complaint from 20 days to 21 days
- Law Court: Oral arguments scheduled for March include Ken-15-281 (whether plaintiff in wrongful death claim was an employee of defendant, thereby making the claim subject to Workers’ Comp bar); And-15-260 (application of 24 M.R.S. § 2511, providing immunity for any person making a report or assisting in an investigation relating to a medical provider); Kno-15-282 (whether insurer had duty to defend claims for slander of title, interference with advantageous relationships, unjust enrichment, fraud, negligent misrepresentation, and declaratory relief)
- US District Court ME: Magistrate granted plaintiff’s motion for a jury trial filed after the Rule 38 deadline
- First Circuit: The court vacated district court’s decision upholding ERISA denial of benefits claim, holding that discretionary decisionmaking authority in an ERISA plan must be couched in terms that unambiguously indicate that the claims administrator has discretion to construe the terms of the plan and determine whether benefits are due in particular instances (the plan at issue was ambiguous in that regard)
- First Circuit: The court granted summary judgment for employer on False Claims Act retaliation claim
Saturday, February 13, 2016
- Sixth Circuit: The court upheld $307,000 jury verdict on male employee’s Title VII sexual harassment claim, rejecting employer’s argument that coworker’s conduct was merely “horseplay” where three instances involved a slap on the rear, a painful grab on the rear, and a grab by the hips and “hunching,” i.e., briefly simulating sex; employee showed that the harassment was “based on sex” where alleged harasser had mooned other men at work and touched at least seven male colleagues, even though there was no evidence that he did not treat women similarly; and employer was liable because it did not separate the two men, suspend coworker pending an investigation, or initiate its investigation for 10 days after harassment was reported
- EEOC: 2015 enforcement statistics reflect the following breakdown of charges: retaliation 44.5%, race 34.7%, disability 30.2%, sex 29.5%, age 22.5%, national origin 10.6%, religion 3.9%, color 3.2%, Equal Pay Act 1.1%, Genetic Information Non-Discrimination Act 0.3%
- First Circuit: The court reversed summary judgment for officers on § 1983 claim arising out of decedent’s death while being transported to police station and then to jail cell because, “regardless of whether the Fourth and Fourteenth Amendment standard applied, a reasonable officer would have known that it was unconstitutional to apply force in the way that the officers here appear to have done in transporting and incarcerating an arrestee, where the arrestee was already physically restrained and did not pose a great physical threat to the officers”
- First Circuit: The court affirmed summary judgment for employer on unpaid overtime claim by store manager who was paid a guaranteed weekly salary plus variable commission, finding employer correctly calculated overtime by (1) adding together both (a) the guaranteed salary for the week and (b) the commissions earned that week; (2) dividing the total wages by the number of hours the employee logged for that week; and (3) paying an additional 50% of the resulting per hour rate for any hour worked in excess of forty hours that week
- Law Court: The court affirmed summary judgment for insurer on claim by decedent’s estate where “other-owned-vehicle exclusion” in underinsured motorist policy limited recovery to vehicles listed on declarations page, and motorcycle decedent was driving at the time of his death was not listed on the declarations page
- MHRC: March 14 Commission Meeting Agenda and Consent Agenda posted
