bankruptcy - discrimination in hiring - private employer

Rea v. Federated Investors - 3d Cir. - December 16, 2010

http://www.ca3.uscourts.gov/opinarch/101440p.pdf

"In accordance with the majority of other courts to have addressed the issue," the Court held that that 11 U.S.C. § 525(b) does not create a cause of action against private employers who engage in discriminatory hiring. Here, the defendant refused to hire Rea because he had previously declared bankruptcy.

PFA - standing - dating relationship, mutually close, romantic bond

Evans v. Braun - Pa. Super. - December 14, 2010


http://www.pacourts.us/OpPosting/Superior/out/s48038_10.pdf

Applicable to the instant case is the fact that “family or household member” is defined as including “current or former sexual or intimate partners.” 23 Pa.C.S. § 6102(a). Instantly, Evans sought relief under the PFA Act alleging that she and Braun were “sexual or intimate partners.” While the PFA Act does not specifically define that phrase, we examined the meaning of this language in Scott. We began by analyzing the intent of the legislators in enacting the PFA Act, stating:

As we have already made clear, their intent was to prevent domestic violence and to promote peace and safety within domestic, familial and/or romantic relationships. … [T]he persons who undoubtedly fit the Act's definition of family or household members- e.g., spouses, parents, children, relatives, paramours, and persons who undertake romantic relationships-typically share some significant degree of domestic, familial and/or intimate interdependence. There is often an obvious emotional bond. Frequently, these individuals interface in very practical areas of private life - a mutual residence, common family obligations and/or shared involvement in the affairs of day-to-day living. Even in a dating relationship, where the functional interdependence might not be as substantial as in a family, the participants have elected some measure of personal interaction. This interaction often involves emotional or private concerns not unlike those found in family settings, albeit not normally as extensive or as intense. In sum, the persons protected by the Act as family or household members have a connection rooted in blood, marriage, family-standing, or a chosen romantic relationship.Scott, 928 A.2d at 315.

With this rationale in mind, we construed the word “partners” “to mean those persons who mutually chose to enter relationships.” Id. at 316. This interpretation, we concluded, “give[s] effect to the provisions of the statute in a way that promotes its purpose of preventing violence among people with a domestic, familial or romantic bond, past or present.” Id.

Applying our reasoning in Scott instantly, we conclude that Evans presented sufficient evidence to prove that she and Braun “mutually chose” to enter a “dating relationship” which involved a “romantic bond,” albeit short-lived. See id. at 315-16. Evans testified at the final PFA hearing that she and Braun “dated twice.” N.T. PFA Hearing, 1/21/10, at 5. She stated that after going to a play on their second date, Braun drove her back to his house because he wanted her to meet his son. Id. at 8. On the night that Braun threatened her with a gun at Dilly’s, Evans stated that she invited him to the bar-restaurant to apologize. Id. at 12. She explained why she was apologizing, stating:

[I was apologizing] [b]ecause I had been very straightforward with him, said some things that he might have interpreted to be unkind. I lost my husband a year and a half ago. I’ve been going very slow, trying to go very slow in relationships. And he’s very pushy and wanted things that I was not ready for. Id. at 12.

After Evans testified, she called Ms. Harnish to the stand. Ms. Harnish claimed that on the night Braun threatened Evans at Dilly’s, Evans confided in Ms. Harnish about Braun. See id. at 24-26. During this conversation, Evans told Ms. Harnish that Braun had told her that he loved her. Id. at 26.

Based on this testimony, we conclude that there was sufficient evidence presented that Braun and Evans mutually chose to enter a dating relationship which, pursuant to Scott, qualifies as a “sexual or intimate partnership” under the PFA Act. As noted in Scott, dating relationships such as this may not have a “functional independence … as substantial as in a family” but, nonetheless, Evans and Braun “elected some measure of personal interaction.” See Scott, 928 A.2d at 315.

Furthermore, we note that our conclusion is supported by the fact that “the Act was passed because the criminal law was sometimes an inadequate mechanism for dealing with violence that arose in the intimate environs of domestic life.” Scott, 928 A.2d at 315. In this case, criminal law proved to be an ineffective avenue for Evans to seek protection from Braun. Despite the fact that Braun twice showed Evans a gun and made threatening comments like “he could put a very big hole in her,” and “he still had the gun, and was not afraid to use it,” the police did not pursue a criminal investigation or charges against Braun. See T.C.O. 2-3. Instead, they directed Evans to WIN. Arguably, this is precisely the type of scenario that the Legislature intended the PFA Act to address, which bolsters our conclusion that Evans had standing to seek protection under that statute.

In sum, therefore, the trial court did not commit an error of law in concluding that Evans qualified as a member of the class of people protected by the PFA Act. Accordingly, the court did not err in denying Braun’s motion for a directed verdict, nor in granting Evans a final PFA order against Braun.

Order affirmed.

Judge Cleland files a dissenting statement.

UC - eligibility - agreement between employer and employee not valid

Pitt Chemical and Sanitary Supply v. UCBR - December 3, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/936CD10_12-3-10.pdf

The sole basis for Employer’s appeal is that the employment contract between Claimant and Employer stated: (1) Claimant would be terminated if he did not meet his sales quota; and (2) Claimant’s failure to meet the sales quota would be the legal equivalent of willful misconduct and, therefore, Claimant would not be entitled to unemployment compensation. In other words, Employer contends that the UCBR erred in awarding unemployment compensation benefits because Claimant had waived the right to file for such benefits. We reject this argument summarily.

Section 701 of the Law, 43 P.S. §861, plainly states that: “No agreement by an employe to waive, release, or commute his rights to compensation, or any other rights under this act, shall be valid.” It is the Law that determines a claimant’s eligibility for unemployment compensation, not the employer. See, e.g., Turner v. Unemployment Compensation Board of Review, 381 A.2d 223, 224 (Pa. Cmwlth. 1978) (“It is not for an employee and employer to determine eligibility for benefits by agreement.”) Therefore, the provisions of any contract in which an employee waives his or her right to unemployment compensation is unenforceable.

disability - opinion of "not acceptable medical source"

Douglass v. Astrue - ED Pa. - November 30, 2010


http://www.paed.uscourts.gov/documents/opinions/10D1229P.pdf


This case was remanded because the ALJ did not properly consider the opinion of the claimant's long-time therapist.


SSR 06-03p clarifies "how [the SSA] consider[s] opinions from sources who are not ‘acceptable medical sources.’” SSR 06-03p, 71 Fed. Reg. 45,593 (Aug. 9, 2006). Acceptable medical sources include, inter alia, licensed physicians and licensed or certified psychologists. Id. (citing 20 C.F.R. §§ 404.1513(a), 416.913(a)). “Other sources” include medical sources who are not “acceptable medical sources” and non-medical sources. Id. (citing 20 C.F.R. §§ 404.1513(d), 416.913(d)). Other medical sources include, inter alia, licensed clinical social workers and therapists. Id. (citing 20 C.F.R. §§ 404.1513(d), 416.913(d)).

In this context, this case raises an issue that apparently has not been the subject of a Third Circuit opinion – and no other Circuit opinion with similar facts has been located – to what extent must an ALJ discuss a claimant’s reliance on a medical source who is not an “acceptable medical source” and when can such evidence be deemed sufficient and persuasive enough to warrant the ALJ finding limitations severe enough to justify a finding of “disabled.”

It is clear that “[i]nformation from [not acceptable medical sources] cannot establish the existence of a medically determinable impairment[, but] may provide insight into the severity of the impairment(s) and how it affects the individual’s ability to function.” Id. at 45,595. The regulations do not specify when such evidence is sufficient for finding functional limitations that would justify a finding of “disabled.”

Because “medical sources who are not ‘acceptable medical sources[]’ . . . have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists[, o]pinions from these medical sources . . . are important and should be evaluated on key issues such as impairment severity and functional effects.” Id. The opinions of these sources should be considered along with the other relevant evidence in the file. Id. Further, the factors applied to evaluate the medical opinions from “acceptable medical sources” represent basic principles that apply to the opinions from medical sources who are not “acceptable medical sources.” Id. These factors include:

• How long the source has known and how frequently the source has seen the individual;

• How consistent the opinion is with other evidence;

• The degree to which the source presents relevant evidence to support an opinion;

• How well the source explains the opinion;

• Whether the source has a specialty or area of expertise related to the individual’s impairment(s); and

• Any other factors that tend to support or refute the opinion. Id.

Although each factor for weighing the opinion evidence will not apply in every case, the evaluation of the opinion depends on the particular facts in each case. Id. at 45,595-96. Finally, the ALJ “generally should explain the weight given to opinions from these ‘other sources,’ or otherwise ensure that the discussion of the evidence in the determination or decision allows a . . .subsequent reviewer to follow the [ALJ’s] reasoning, when such opinions have an effect on the outcome of the case.” Id. at 45,596.

In this case, the ALJ analysis of the therapist's assessment of claimant's condition was inadequate. Nowhere in this discussion does the ALJ cite to SSR 06-03p, let alone identify the factors cited above for evaluating an opinion of a medical source who is not an “acceptable medical source.” The ALJ has offered no record citations to permit this Court to review her decision for substantial evidence, in contravention of the mandate in SSR 06-03p to “ensure that the discussion of the evidence in the determination or decision allows a . . . subsequent reviewer to follow the [ALJ’s] reasoning.” SSR 06-03p, 71 Fed. Reg. at 45,596.

The Court found that that the ALJ’s conclusion regarding the therapist's opinion is not supported by substantial evidence. The ALJ rejected the opinion for two reasons: (1) the therapist is not an acceptable medical source, and (2) the opinion lacks support from the mental health evidence in the record, including the therapist's own notes. First, the ALJ is not permitted to outright reject the therapist’s opinion solely because she is not an acceptable medical source. Rather, the ALJ is required to perform the analysis mandated by SSR 06-03p. See Sykes v. Apfel, 228 F.3d 259, 271 (3d Cir. 2000) (asserting that social security rulings are binding on all components of the SSA) (citing Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984)).

Second, the ALJ’s conclusion that the therapist’s opinion lacks support is not supported by substantial evidence. . . .After reviewing the therapist’s notes, this Court finds that without detailed discussion of the entire record, the ALJ’s cursory rejection of her assessment was improper.

In addition, SSA's post hoc rationale for the ALJ decision -- not contained in the decision itself -- was held to be improper. "Although the Commissioner’s brief offers other evidence from the record in support of the ALJ’s rejection, the “grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001) (quoting SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)); Keiderling v. Astrue, No. 07-2237, 2008 WL 2120154, at *3 (E.D. Pa. May 20, 2008) (Buckwalter, S.J.) (“[I]t is well-established that the ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s decision; the Commissioner may not offer a post-hoc rationalization.”) (quotation marks and alteration omitted). The ALJ’s decision did not cite the examples that the Commissioner’s brief cites to this Court, but instead referred only to the “mental health evidence, including the counseling notes made by [Douglass’s] therapist,” which is insufficient to affirm the rejection. Accord, Keiderling v. Astrue, 2008 WL 2120154, at *4. (ED Pa.)

Sec. 1983 - municipal liability - prospective relief

Los Angeles County v. Humphries - November 30, 2010 - US Supreme Court

http://www.supremecourt.gov/opinions/10pdf/09-350.pdf

(Slip Opinion) OCTOBER TERM, 2010

SUPREME COURT OF THE UNITED STATES

LOS ANGELES COUNTY, CALIFORNIA v. HUMPHRIES ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 09–350. Argued October 5, 2010—Decided November 30, 2010

The Humphries (hereinafter respondents) were accused of child abuse in California, but were later exonerated. However, under California law, their names were added to a Child Abuse Central Index (Index),where they would remain available to various state agencies for at least 10 years. The statute has no procedures for allowing individuals to challenge their inclusion in the Index, and neither Californianor Los Angeles County has created such procedures. Respondents filed suit under §1983, seeking damages, an injunction, and a declaration that public officials and petitioner Los Angeles County had deprived them of their constitutional rights by failing to create amechanism through which they could contest inclusion in the Index.The District Court granted the defendants summary judgment, but the Ninth Circuit disagreed, holding that the Fourteenth Amendment required the State to provide those on the list with notice and a hearing, and thus respondents were entitled to declaratory relief. The court also held that respondents were prevailing parties entitled to attorney’s fees, including $60,000 from the county. The county objected, claiming that as a municipal entity, it was liable only if its"policy or custom" caused the deprivation of a plaintiff’s federal right, Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694; but a state policy caused any deprivation here. The Ninth Circuit, inter alia, found that respondents did prevail against the county on their claim for declaratory relief because Monell did not apply to prospective relief claims.

Held: Monell’s "policy or custom" requirement applies in §1983 cases irrespective of whether the relief sought is monetary or prospective. Pp. 4–10. Reversed and remanded.

Syllabus

(a) In Monroe v. Pape, 365 U. S. 167, this Court based its holding that municipal entities were not "person[s]" under §1983 on the provision’s legislative history, particularly Congress’ rejection of the so-called Sherman amendment, which would have made municipalities liable for damages done by private persons " ‘riotously and tumultuously assembled,’ " id., at 188–190, and n. 38. Reexamining this legislative history in Monell, the Court overruled Monroe. It concluded that Congress had rejected the Sherman amendment, not because it would have imposed liability on municipalities, but because it would have imposed such liability solely based on the acts of others. The Court, on the basis of the statutory text and the legislative history,went on to explain what acts are the municipality’s own for purposes of liability. The Court held that "a municipality cannot be held liable" solely for the acts of others, e.g., "solely because it employs a tortfeasor," 436 U. S., at 691, but it may be held liable "when execution of a government’s policy or custom . . . inflicts the injury," id., at 694. Pp. 4–7.

(b) Section 1983, read in light of Monell’s understanding of the legislative history, explains why claims for prospective relief, like claims for money damages, fall within the scope of the "policy or custom" requirement. Nothing in §1983 suggests that the causation requirement should change with the form of relief sought. In fact, the text suggests the opposite when it provides that a person who meets §1983’s elements "shall be liable . . . in an action at law, suit in equity, or other proper proceeding for redress." Thus, as Monell explicitly stated, "local governing bodies . . . can be sued directly under§1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes" a policy or custom. 436 U. S., at 690. To find the "policy or custom" requirement inapplicable in prospective relief cases would also undermine Monell’s logic. For whether an action or omission is a municipality’s "own" has to do with the nature of the action or omission, not with the nature of the relief that is later sought in court. Pp. 7–8.

(c) Respondents’ arguments to the contrary are unconvincing.

Pp. 8–9. Reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which all other Members joined, except KAGAN, J., who took no part in the consideration or decision of the case.

child abuse - expungement - oppty. to rebut presumption; multiple caretakers

J.W., et al. v. Dept. of Public Welfare - Cmwlth. Court - December 1, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/408CD10_12-1-10.pdf


The court upheld the challenge of grandmother, father and father's paramour to DPW indicated reports of abuse to an infant child, because DPW's application of the presumption under 23 Pa. C.S. §6381(d) was "waived because it was not raised as an issue at the hearing, thereby depriving Petitioners of a meaningful opportunity to rebut the presumption at the hearing."


Post-hearing, the ALJ applied the sec. 6381(d) presumption, which states that "Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child." The court cited a similar prior holding in In C.E. v. DPW, 917 A.2d 348 (Pa. Cmwlth. 2007).


The court also held that "[e]ven if the presumption had not been waived, Petitioners correctly argue that it does not apply in situations where a child was in the care of multiple persons during the period when the abuse occurred and it is not possible to determine which person actually abused the child."