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.
Tuesday, May 20, 2014
- US Supreme Court: SCOTSBlog reports that the Court Monday granted certiorari to decide whether the federal Whistleblower Act of 1989 bars the government from disciplining a federal employee for exposing information that the individual worker believed would be a specific danger to public health or safety when a regulation, but not a specific statute, prohibited the release of the information outside of the agency
- First Circuit: Following jury verdict for plaintiff on Title VII and Puerto Rico law (judgment for $291,500 total), the court held that defendant–who moved for judgment as a matter of law at the conclusion of plaintiff’s case-in-chief and after the close of all evidence but failed to file a post-verdict Rule 50(b) motion–did not preserve its challenge to the sufficiency of the evidence
- US District Court ME: In ruling that defendant must pay the reasonable fees for attending depositions of one of plaintiff’s treating doctors but not another, Magistrate Judge ruled that to recover expert fees the witness must be designated to offer opinions that are not necessarily limited to the witness’s treatment of the party; if the witness’s proposed testimony includes opinions in addition to the witness’s treatment, the patient’s prognosis and, in some situations, the cause of the patient’s condition, the witness can fairly be characterized as an expert witness under Rule 26 (and charge fees in addition to the $40 attendance fee paid to non-experts)
- Bangor Daily: Pregnant worker stabbed by patient at Maine psychiatric hospital files lawsuit
Friday, May 16, 2014
- Second Circuit: The court affirmed a district court remedial order after finding that the New York City Board of Elections violated the ADA and Rehab Act by operating polling sites with pervasive and recurring barriers to access by people with mobility or vision disabilities
- Fourth Circuit: In reversing summary judgment for district attorney on assistant district attorney’s (ADA) First Amendment termination claim, the court held that it is the right of an ADA running for public office not to be fired for speaking publicly in his capacity as a candidate on matters of public concern when the speech is critical of a program that substantially reduces the DA’s office’s caseload but there is no reason to believe the speech will negatively impact the DA’s office’s efficiency
- EEOC: Advance Notice of Proposed Rulemaking seeks public input on regulations requiring federal agencies to be “Model Employers” of individuals with disabilities, including seeking answers questions such as what barriers exist to the hiring, retention, and advancement of individuals with disabilities in the federal government; what regulatory requirements could eliminate these barriers; and whether numerical goals should be established for the employment of people with disabilities by the federal government
- Bangor Daily: Former employee files discrimination complaint against Maine tribal company
- Press Herald (AP): Military fired, disciplined nearly 500 for sexual harassment last fiscal year
Wednesday, May 14, 2014
- First Circuit: In reversing district court’s decision removing tort and breach of contract complaint (insurer’s refusal to pay for surgery) to federal court and dismissing it, the court held that the Federal Employees Health Benefits Act of 1959 does not completely preempt local-law claims relating to the denial of benefits
- Law Court: Oral arguments scheduled, including (10 AM Thursday, May 15) claim that insurer of homeowner’s policy has duty to defend owner of condominium unit in claim brought by condominium association where owner asserts that suit seeks money damages in addition to equitable relief
- Eighth Circuit: In reversing district court’s denial of liquidated damages (equal to amount of other damages awarded) following verdict that employer refused to rehire plaintiff because he took FMLA leave, the court held that employer failed to meet its burden of showing good faith where only evidence was that employer refused to rehired plaintiff because of the FMLA leave
- MHRC: June 9th Commission Meeting Agenda posted
- EEOC: ADA suit filed against employer challenging nationwide attendance policy that assessed employees “points” for absences without permitting any general exception for disability-related absences
Friday, May 9, 2014
- First Circuit: In vacating summary judgment for police department on black officers’ Title VII disparate impact claim arising out of hair sample testing for cocaine in which black officers tested positive 1.3% of the time and white officers .3%, the court held that a plaintiff’s failure to demonstrate “practical significance” cannot preclude that plaintiff from relying on competent evidence of “statistical significance” to establish a prima facie case of disparate impact
- Law Court: In vacating jury verdict and judgment as a matter of law for landlord on claims arising out of lead paint exposure, the court held that the trial court committed clear error by improperly excluding plaintiffs’ expert witnesses; erroneously entered judgment as a matter of law on negligence, IIED, and punitive damages claims; and improperly shifted the burden of proof onto plaintiffs to disprove landlord’s independent causation theories and refused to give the jury a proper and requested instruction
- MHRC: Appointment of new Commissioner confirmed
- HUD: $10,000 conciliation agreement announced in claim that apartment complex owners and managers violated the Fair Housing Act prohibition on familial status discrimination by implementing a policy that children must be supervised by an adult at all times while playing outside
- Bangor Daily: Oakhurst drivers sue company for overtime pay
- Bangor Daily: LePage nominates Hjelm to Maine’s high court, Stokes to Superior Court
Tuesday, May 6, 2014
- Supreme Court: Finding a “clear misapprehension of summary judgment standards,” the Court reversed the grant of summary judgment for police officer on Fourth Amendment claim because the Fifth Circuit credited the evidence of the party seeking summary judgment and failed properly to acknowledge key evidence offered by the party opposing that motion
- Supreme Court: The Court held that town opening its monthly board meetings with a prayer led by Christian ministers was not an impermissible establishment of religion
- First Circuit: In affirming summary judgment for employer on FMLA claim, the court held that employer’s failure to provide adequate or timely notice and designation of FMLA rights was not actionable because employee did not show that he would have been able to return to work within 12 weeks if he had received appropriate notice, and, therefore, did not suffer harm
- MHRC: Minutes of April 28th Commission meeting posted
Friday, May 2, 2014
- Law Court: Proposed amendment to Maine Rules of Appellate Procedure would reduce the time to file appellant’s brief from 8 to 4 weeks after the record on appeal is complete in various cases including, e.g., terminations of parental rights, involuntary commitment, and findings of not criminally responsible by reason of insanity
- First Circuit: In affirming dismissal of remaining part of federal False Claims Act suit brought by pharmaceutical representative against former employer for off-label marketing of prescription medications (he had earlier shared in a settlement with the federal government of over $300 million that involved part of his case), the court held that two earlier suits brought by others barred plaintiff’s claim under the “first to file” rule because the earlier claims were related actions based on the same underlying facts, even though the earlier actions were not identical
- US District Court ME: In prison inmate’s First Amendment claim, Magistrate Judge excluded claim for compensatory damages for emotional distress because the Prison Litigation Reform Act precludes such recovery in the absence of physical injury, noting a circuit split on the issue and no decision from the First Circuit
- Fifth Circuit: In reversing dismissal of FMLA claim, the court held that collective bargaining agreement did not clearly and unmistakably make the FMLA part of the agreement and thus FMLA claims were not subject to mandatory arbitration where agreement merely referenced FMLA and required that policies comply with FMLA
Wednesday, April 30, 2014
- MHRC: Bids farewell to Paul K. Vestal, Jr.
- First Circuit: In affirming summary judgment for employer in Age Discrimination in Employment Act termination claim, the court found that the record was devoid of evidence from which a jury could infer that employer’s proffered reason for terminating plaintiff was a pretext for age discrimination
- Sixth Circuit: In reversing summary judgment for employer on Rehab Act and ADA Title II failure-to-hire claim, the court found sufficient evidence of pretext because interviewers did not ask plaintiff questions during job interview covering the areas that they later claimed were the reasons she was not hired
- Press Herald: Three workers sue South Portland hotel in sexual harassment case
Friday, April 25, 2014
- US District Court ME: The court granted summary judgment for defendants on Fourth Amendment claim arising out of warrentless search of probationer’s home because plaintiff consented to a search of his residence as a condition of his probation
- MHRC: April 28th Commission meeting Agenda and Consent Agenda posted
- SCOTUSBLOG: Post describes issues in next Monday’s oral argument in Lane v. Franks, which will decide whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities
- Portland Press Herald: Maine spectator sues over racetrack injuries
- Portland Press Herald: Former Augusta ER doctor loses appeal to Maine Supreme Court
Wednesday, April 23, 2014
- US Supreme Court: The Court held that the US Constitution does not invalidate a Michigan constitutional amendment that prohibits the use of race-based preferences as part of the admissions process for state universities
- Law Court: In affirming interlocutory denial of summary judgment to individual defendant in Maine Civil Rights Act (MCRA) claim, the court held that absolute immunity under the Maine Tort Claims Act does not apply to claims under the MCRA, and that disputed issues of material fact precluded summary judgment for defendant on common-law qualified immunity
- First Circuit: In reversing summary judgment for employer and granting it on liability for employees in FLSA overtime case, the court held that “per diem” that was paid to plaintiffs in addition to their regular hourly wages was based upon and thus varied with the number of hours worked per week, and thus should have been included in calculating overtime
