Grammer v. John J. Kane Regional Centers - 3d Cir. - June 30, 2009
http://www.ca3.uscourts.gov/opinarch/072358p.pdf
We are asked in this appeal to determine whether an action will lie under 42 U.S.C. § 1983 to challenge the treatment Appellant’s decedent received (or did not receive) at the Appellee nursing home – treatment Appellant argues violated the Federal Nursing Home Reform Amendments (FNRA), 42 U.S.C. § 1396r et seq. We answer that question in the affirmative and will reverse and remand the cause to the District Court.
In so holding, we conclude that the language of the FNHRA is sufficiently rights-creating and that the rights conferred by its various provisions are neither “vague and amorphous” nor impose upon states a mere precatory obligation. See Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002) (citing Alexander v. Sandoval, 532 U.S. 275-288-89 (2001)). Further, we conclude that § 1983 provides the proper avenue for relief because the Appellee has failed to demonstrate that Congress foreclosed that option by adopting another, more comprehensive enforcement scheme. See Gonzaga Univ., 536 U.S. at 284.
Tuesday, June 30, 2009
UC- able and available - health issues
Poolpak Technologies v. UCBR - Cmwlth Court - June 30, 2009 - unreported decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/70CD09_6-30-09.pdf
The court affimed the UCBR decision that the claimant was able to work and available for work, despite his prior health leave of absence from the employer, which was caused by work-related stress caused by his relationship with his supervisor.
The Board made findings that, after Claimant’s FMLA leave expired, Employer replaced Claimant because Employer was not willing to accommodate Claimant’s need for a different work situation. Claimant was able to work and was available for work, except work with his previous supervisor.
Section 401(d) of the UC Law states that unemployment benefits are payable to any employee who is unemployed and who is able to work and is available for suitable work. It is presumed that an employee who registers for unemployment benefits is able to work and is available for suitable work. Penn Hills School District v. UCBR, 496 Pa. 620, 437 A.2d 1213 (1981). However, an employer may rebut this presumption by presenting countervailing evidence. Id.
If the UCBR’s finding of availability is supported by substantial evidence, it is binding on an appellate court. Penn Hills. To see if substantial evidence exists in the record to support a finding of availability, an appellate court must examine the evidence in the light most favorable to the party in whose favor the fact-finder has ruled, giving that party the benefit of all logical and reasonable inferences. Id.
Here, Claimant applied for unemployment benefits, thereby creating the presumption that he was able to work and was available for suitable work. Employer rebutted the presumption with a psychologist’s report stating that Claimant was being seen by a psychologist and by a psychiatrist for major depression and was considered unable to work at that time.
Claimant, however, presented the decision of Employer’s own short-term disability insurer, which had rejected Claimant’s appeal from the insurer’s denial of benefits. Claimant testified that he submitted the psychologist’s report to Employer’s insurer in support of his appeal, but the insurer still denied Claimant benefits because, although Claimant was not able to work with a particular supervisor, Claimant was able to work for a different employer or in a different work situation. Such testimony constitutes substantial evidence to support the UCBR’s finding that Claimant was able to work and was available for suitable work.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/70CD09_6-30-09.pdf
The court affimed the UCBR decision that the claimant was able to work and available for work, despite his prior health leave of absence from the employer, which was caused by work-related stress caused by his relationship with his supervisor.
The Board made findings that, after Claimant’s FMLA leave expired, Employer replaced Claimant because Employer was not willing to accommodate Claimant’s need for a different work situation. Claimant was able to work and was available for work, except work with his previous supervisor.
Section 401(d) of the UC Law states that unemployment benefits are payable to any employee who is unemployed and who is able to work and is available for suitable work. It is presumed that an employee who registers for unemployment benefits is able to work and is available for suitable work. Penn Hills School District v. UCBR, 496 Pa. 620, 437 A.2d 1213 (1981). However, an employer may rebut this presumption by presenting countervailing evidence. Id.
If the UCBR’s finding of availability is supported by substantial evidence, it is binding on an appellate court. Penn Hills. To see if substantial evidence exists in the record to support a finding of availability, an appellate court must examine the evidence in the light most favorable to the party in whose favor the fact-finder has ruled, giving that party the benefit of all logical and reasonable inferences. Id.
Here, Claimant applied for unemployment benefits, thereby creating the presumption that he was able to work and was available for suitable work. Employer rebutted the presumption with a psychologist’s report stating that Claimant was being seen by a psychologist and by a psychiatrist for major depression and was considered unable to work at that time.
Claimant, however, presented the decision of Employer’s own short-term disability insurer, which had rejected Claimant’s appeal from the insurer’s denial of benefits. Claimant testified that he submitted the psychologist’s report to Employer’s insurer in support of his appeal, but the insurer still denied Claimant benefits because, although Claimant was not able to work with a particular supervisor, Claimant was able to work for a different employer or in a different work situation. Such testimony constitutes substantial evidence to support the UCBR’s finding that Claimant was able to work and was available for suitable work.
Wednesday, June 24, 2009
disability - attorney fees - "substantially justified"
Cruz v. Astrue - ED Pa. - June 22, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0725P.pdf
Despite the plaintiff having prevailed, the court held that the position of SSA was substantially justified, because
- treating physician - there were inconsistencies in the Medical Source Statement, records, and objective tests
- credibility - "Given the conflict between subjective complaints and the other evidence, the ALJ’s finding that plaintiff was not totally credible was reasonable, and the Commissioner’s defense of the same was substantially justified."
- witness testimony - testimony of plaintiff's daughter was "not particularly probative," not in conflict with ALJ findings, and "not unbiased"
- RFC assessment - state agency opinions, on which the ALJ relied, were "most consistent with the medical evidence"
http://www.paed.uscourts.gov/documents/opinions/09D0725P.pdf
Despite the plaintiff having prevailed, the court held that the position of SSA was substantially justified, because
- treating physician - there were inconsistencies in the Medical Source Statement, records, and objective tests
- credibility - "Given the conflict between subjective complaints and the other evidence, the ALJ’s finding that plaintiff was not totally credible was reasonable, and the Commissioner’s defense of the same was substantially justified."
- witness testimony - testimony of plaintiff's daughter was "not particularly probative," not in conflict with ALJ findings, and "not unbiased"
- RFC assessment - state agency opinions, on which the ALJ relied, were "most consistent with the medical evidence"
Friday, June 19, 2009
social security - disability - severity - consideration of evidence - need for finding
Rupard v. Astrue - ED Pa. - June 16, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0709P.pdf
Over defendant's objection, the court upheld the magistrates recommenddation “that the case be remanded for further consideration of Plaintiff’s hand impairment” because Plaintiff presented sufficient evidence to satisfy the de minimis requirement of step two...."
The ALJ's “scattered references” to Plaintiff’s hand impairment “do not rise to the level of a proper step-two determination” The ALJ’s failure to make a finding concerning the severity of Plaintiff’s hand impairment requires that the case be remanded for further proceedings. There is no question that the ALJ did not expressly consider Plaintiff’s alleged hand impairment at step two. The ALJ made no finding one way or the other concerning Plaintiff’s hand impairment. This silence cannot be interpreted as a determination that Plaintiff’s hand impairment is not “severe,” especially considering the fact that the ALJ expressly determined that Plaintiff’s depression and drug and alcohol abuse are non-severe impairments.
It was incumbent upon the ALJ to expressly consider the hand impairment at step two. We remand this case because the ALJ failed to make any determination about Plaintiff’s hand impairment at step two. Based upon the ALJ’s failure to expressly consider evidence of Plaintiff’s hand impairment, we cannot conclude that the ALJ’s final determination is supported by substantial evidence.
http://www.paed.uscourts.gov/documents/opinions/09D0709P.pdf
Over defendant's objection, the court upheld the magistrates recommenddation “that the case be remanded for further consideration of Plaintiff’s hand impairment” because Plaintiff presented sufficient evidence to satisfy the de minimis requirement of step two...."
The ALJ's “scattered references” to Plaintiff’s hand impairment “do not rise to the level of a proper step-two determination” The ALJ’s failure to make a finding concerning the severity of Plaintiff’s hand impairment requires that the case be remanded for further proceedings. There is no question that the ALJ did not expressly consider Plaintiff’s alleged hand impairment at step two. The ALJ made no finding one way or the other concerning Plaintiff’s hand impairment. This silence cannot be interpreted as a determination that Plaintiff’s hand impairment is not “severe,” especially considering the fact that the ALJ expressly determined that Plaintiff’s depression and drug and alcohol abuse are non-severe impairments.
It was incumbent upon the ALJ to expressly consider the hand impairment at step two. We remand this case because the ALJ failed to make any determination about Plaintiff’s hand impairment at step two. Based upon the ALJ’s failure to expressly consider evidence of Plaintiff’s hand impairment, we cannot conclude that the ALJ’s final determination is supported by substantial evidence.
Wednesday, June 17, 2009
consumer - debt collection - information from third parties
Smith v. NCO Financial Systems - ED Pa. - June 12, 2009 - class action
http://www.paed.uscourts.gov/documents/opinions/09D0695P.pdf
Debt collector sent a collection notice with the following privacy statement.
InformationWe Collect
We collect non-public personal information about you fromthe following sources:
• From you on applications or other forms, over the telephone, in face-toface meetings and via the Internet. Examples of information we receive from you include your name and address, telephone number, social security number, employment information, credit history and other financial information. . . .
• From employers and others to verify information you have given to us.
Plaintiff alleges that this statement “misleads the consumer into believing that third parties such as her boss, co-workers or others may be contacted and asked to provide information concerning the consumer, when the FDCPA forbids such third party contact.”
In light of these allegations, Plaintiff has stated claims under Sections 1692e and 1692e(5) upon which relief can be granted.
As explained supra, debt collectors contacting third parties to obtain anything other than location information about the consumer is prohibited by the FDCPA. Upon reading the Privacy Notice, the least sophisticated debtor could believe that Defendants could and would legally contact employers and other persons to verify non-public personal information such as one’s social security number, credit history and other financial information. The least sophisticated debtor could also believe that Defendants are allowed to verify a much broader range of employment information than is actually permitted under the FDCPA.
As this reading of the Privacy Notice is neither “bizarre or idiosyncratic,” Plaintiff has adequately alleged a violation of Sections 1692e and 1692e(5) of the FDCPA, and the Court will not grant Defendant’s Motion for judgment on the same
http://www.paed.uscourts.gov/documents/opinions/09D0695P.pdf
Debt collector sent a collection notice with the following privacy statement.
InformationWe Collect
We collect non-public personal information about you fromthe following sources:
• From you on applications or other forms, over the telephone, in face-toface meetings and via the Internet. Examples of information we receive from you include your name and address, telephone number, social security number, employment information, credit history and other financial information. . . .
• From employers and others to verify information you have given to us.
Plaintiff alleges that this statement “misleads the consumer into believing that third parties such as her boss, co-workers or others may be contacted and asked to provide information concerning the consumer, when the FDCPA forbids such third party contact.”
In light of these allegations, Plaintiff has stated claims under Sections 1692e and 1692e(5) upon which relief can be granted.
As explained supra, debt collectors contacting third parties to obtain anything other than location information about the consumer is prohibited by the FDCPA. Upon reading the Privacy Notice, the least sophisticated debtor could believe that Defendants could and would legally contact employers and other persons to verify non-public personal information such as one’s social security number, credit history and other financial information. The least sophisticated debtor could also believe that Defendants are allowed to verify a much broader range of employment information than is actually permitted under the FDCPA.
As this reading of the Privacy Notice is neither “bizarre or idiosyncratic,” Plaintiff has adequately alleged a violation of Sections 1692e and 1692e(5) of the FDCPA, and the Court will not grant Defendant’s Motion for judgment on the same
Tuesday, June 09, 2009
UC- willful misconduct - violation of employer rule - good cause
Roberts v. UCBR - Cmwlth. Court - June 8, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1989CD08_6-8-09.pdf
Claimant, a client care worker in a residential facility for persons with special needs, had good cause for his violation of an employer rule.
Claimant was directly responsible for the care of a “one-to-one” client who was subject to “close reach supervision … at all times due to behavioral concerns.” Employer’s rule required close supervision of one-to-one clients. However, these clients were alone and unattended between the hours of 11:00 p.m. and 7:00 a.m. except for checks every thirty minutes.
Good cause is established “where the action of the employee is justified or reasonable under the circumstances.” Frumento v. UCBR, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976). Precedent teaches that taking actions to advance a patient’s health and safety will constitute good cause to violate an employer’s work rule.
In this case, the need to retrieve Client’s breakfast provided Claimant good cause for his violation of Employer’s rule. Claimant had the responsibility to make sure Client was properly fed, and he testified that because pantry staff was often not available, client care workers routinely retrieve food from the kitchen for their clients and later put it away. Claimant argues that a “[f]ailure on my part to get and reserve my client food from the kitchen could keep him hungry until lunch.” Claimant acted in the best interests of both Client and Employer by going to the kitchen to secure Client’s breakfast leaving Client, who was secured in his bed with his bedrail in place, for a brief time -- five (5) minutes.
Even though the UCBR found all of the employer testimony credible, there was uncontradicted testimony from Claimant that Employer permitted and even required “one-to-one” clients to be left alone briefly, notwithstanding its close supervision rule. There was a question, therefore, about whether Claimant even violated Employer’s rule.
Assuming Employer’s rule was inflexible, however, Claimant showed good cause to violate it. Claimant was attending to a basic need of Client, having secured Client in his bed, while he left Client for approximately five minutes. The evidence established good cause for Claimant’s violation of the work rule and, thus, the Board erred in finding that Claimant’s actions constituted willful misconduct.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1989CD08_6-8-09.pdf
Claimant, a client care worker in a residential facility for persons with special needs, had good cause for his violation of an employer rule.
Claimant was directly responsible for the care of a “one-to-one” client who was subject to “close reach supervision … at all times due to behavioral concerns.” Employer’s rule required close supervision of one-to-one clients. However, these clients were alone and unattended between the hours of 11:00 p.m. and 7:00 a.m. except for checks every thirty minutes.
Good cause is established “where the action of the employee is justified or reasonable under the circumstances.” Frumento v. UCBR, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976). Precedent teaches that taking actions to advance a patient’s health and safety will constitute good cause to violate an employer’s work rule.
In this case, the need to retrieve Client’s breakfast provided Claimant good cause for his violation of Employer’s rule. Claimant had the responsibility to make sure Client was properly fed, and he testified that because pantry staff was often not available, client care workers routinely retrieve food from the kitchen for their clients and later put it away. Claimant argues that a “[f]ailure on my part to get and reserve my client food from the kitchen could keep him hungry until lunch.” Claimant acted in the best interests of both Client and Employer by going to the kitchen to secure Client’s breakfast leaving Client, who was secured in his bed with his bedrail in place, for a brief time -- five (5) minutes.
Even though the UCBR found all of the employer testimony credible, there was uncontradicted testimony from Claimant that Employer permitted and even required “one-to-one” clients to be left alone briefly, notwithstanding its close supervision rule. There was a question, therefore, about whether Claimant even violated Employer’s rule.
Assuming Employer’s rule was inflexible, however, Claimant showed good cause to violate it. Claimant was attending to a basic need of Client, having secured Client in his bed, while he left Client for approximately five minutes. The evidence established good cause for Claimant’s violation of the work rule and, thus, the Board erred in finding that Claimant’s actions constituted willful misconduct.
Tuesday, June 02, 2009
housing - reasonable accommodation - duty of HA in inquire - continuing duty of court to accept evidence
Lebanon County Housing Authority v. Landeck - Superior Court - February 27, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a27022_08.pdf
A court must consider evidence of a tenant's handicap up until time of trial. The common pleas court impropetly refused to accept evidence of the tenant's disability that was offered after the MDJ hearing. Tenant offered some evidence there and tried to offer more after the MDJ judgment. The tenant made clear consistent requests for accommodation, relating to mental problems which caused housekeeping concerns.
“It shall be unlawful to . . .discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter.” 42 U.S.C. § 3604(f)(1)(A).
“To establish a reasonable accommodation defense under the Fair Housing Act, the tenant must demonstrate that (1) she suffered from a ‘handicap’[4] (or ‘disability’), (2) the landlord knew or should have known of the disability, (3) an accommodation of the disability may be necessary to afford the tenant an equal opportunity to use and enjoy her apartment, (4) the tenant requested a reasonable accommodation, and (5) the landlord refused to grant a reasonable accommodation.” Douglas v. Kriegsfeld Corporation, 884 A.2d 1109, 1129 (D.C. 2005)
If, as the Authority asserts, it was unclear about what accommodation was being requested, the HA had a duty to “promptly respond” to the Tenant’s request. Douglas, 884 A.2d at 1122. The Douglas court explains: If the request is not sufficiently detailed to reveal the nature of that request, the Act-as properly interpreted-requires the landlord to ‘open a dialogue’ with the tenant, eliciting more information as needed, to determine what specifics the tenant has in mind and whether such accommodation would, in fact, be reasonable under the circumstances.
Tenant has established that she suffered from depression which is a “handicap” under the Fair Housing Act; that the Authority should have known of the handicap; that she requested a reasonable accommodation; and that the Authority refused to make the accommodation. To prevail under the Act, however, Tenant was also required to prove she was unable to maintain her unit as required by the terms of the lease because of her disability. The trial court erroneously prevented Tenant from presenting evidence in support of this final prong of her defense when it refused to consider evidence beyond a certian date or permit witnesses to testify.
The court remanded the case to the trial court for a new non-jury trial to permit tenant to present evidence in support of her assertion she was unable to satisfy the terms of the lease because of her handicap. If she proves her handicap caused the breach of the lease the Authority must produce rebuttal evidence that the requested accommodation was unreasonable before an eviction may be ordered.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a27022_08.pdf
A court must consider evidence of a tenant's handicap up until time of trial. The common pleas court impropetly refused to accept evidence of the tenant's disability that was offered after the MDJ hearing. Tenant offered some evidence there and tried to offer more after the MDJ judgment. The tenant made clear consistent requests for accommodation, relating to mental problems which caused housekeeping concerns.
“It shall be unlawful to . . .discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter.” 42 U.S.C. § 3604(f)(1)(A).
“To establish a reasonable accommodation defense under the Fair Housing Act, the tenant must demonstrate that (1) she suffered from a ‘handicap’[4] (or ‘disability’), (2) the landlord knew or should have known of the disability, (3) an accommodation of the disability may be necessary to afford the tenant an equal opportunity to use and enjoy her apartment, (4) the tenant requested a reasonable accommodation, and (5) the landlord refused to grant a reasonable accommodation.” Douglas v. Kriegsfeld Corporation, 884 A.2d 1109, 1129 (D.C. 2005)
If, as the Authority asserts, it was unclear about what accommodation was being requested, the HA had a duty to “promptly respond” to the Tenant’s request. Douglas, 884 A.2d at 1122. The Douglas court explains: If the request is not sufficiently detailed to reveal the nature of that request, the Act-as properly interpreted-requires the landlord to ‘open a dialogue’ with the tenant, eliciting more information as needed, to determine what specifics the tenant has in mind and whether such accommodation would, in fact, be reasonable under the circumstances.
Tenant has established that she suffered from depression which is a “handicap” under the Fair Housing Act; that the Authority should have known of the handicap; that she requested a reasonable accommodation; and that the Authority refused to make the accommodation. To prevail under the Act, however, Tenant was also required to prove she was unable to maintain her unit as required by the terms of the lease because of her disability. The trial court erroneously prevented Tenant from presenting evidence in support of this final prong of her defense when it refused to consider evidence beyond a certian date or permit witnesses to testify.
The court remanded the case to the trial court for a new non-jury trial to permit tenant to present evidence in support of her assertion she was unable to satisfy the terms of the lease because of her handicap. If she proves her handicap caused the breach of the lease the Authority must produce rebuttal evidence that the requested accommodation was unreasonable before an eviction may be ordered.
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