ADA - state employer - 11th Amendment immunity

Benn v. First Judicial District of Philadelphia - 3d Circuit Court of Appeals - October 12, 2005

http://www.ca3.uscourts.gov/opinarch/013769p.pdf

Plaintiff was a probation/parole officer for the 1st Judicial District of Pa. (Philadelphia). He sued his former employer alleging a violation of the Title I of the Americans with Disabilities Act (ADA), 42 USC 12101 et seq.

Held, the judicial district is an instrumentality of the Commonwealth and entitled to immunity under the 11th Amendment of the U.S. Constitution. The court said that it was "too late in the jurisprudence of the Eleventh Amendment for this court (and perhaps even for the Supreme Court) to interpret that Amendment in light of its explicit language as applicable only to suits against a state brought by citizens of another state. The Supreme Court has consistently held that the Eleventh Amendment immunizes an unconsenting state from suits brought in federal court by its own citizens as well as by citizens of another state." So much for "strict construction" and eschewing "judicial activism."

The court said that Congress can abrogate such immunity pursuant to its authority under sec. 5 of the 14th Amendment provided that it "has unequivocally expressed its intent to do so." Even then, however, the Supreme Court can hold that Congress did not act pursuant to a valid grant of constitutional authority," as it did in another ADA case, Board of Trustees v. Garrett, 531 US 356 (2001).

A suit can also be barred by the 11th amendment where the state is not named as a party, so long as the state is deemed the real party in interest. Held here that under the state supreme court's interpretation of the state constitution, a state judicial district is a state entity, therefore it has 11th Amendment immunity.

Donald Marritz
MidPenn Legal Services

abuse - credibility - police report/medical treatment not required to establish credibility

Karch v. Karch - Pa. Superior Court - October 11, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/A13004_05.pdf

Appellate court upheld trial court's grant of a PFA order.

1. medical treatment not required -- PFA plaintiff need not seek medical treatment for her injury. Neither the PFA act nor case law requires that there be medical evidence or that the plaintiff seek medical treatment in order for plaintiff's testimony to be found credible.

2. Police involvement not necessary. It is well-settled that neither the PFA Act not case law requires that a police report be filed in order to obtain a PFA order. "We wish to make it abundantly clear that this Court will not infer that the failure of the police to act on a report of domestic violence means that the victim is not credible, and we will not place the onus on the victim to force police departments to comply with sec. 6105 [responsibilities of law enforcement agencies] as a prerequisite for obtaining a PFA."

3. The correct burden of proof is a preponderance of the evidence.

4. The evidence was sufficient to grant a PFA order. Wife had prior 30-day PFA order a few months earlier, based on husband's having put his hands around his neck and threatened to snap it.. The newest abuse consisted of his holding his hand in the shape of a gun, touching his wife's head with enough force to cause pain, and telling her "there is your future." Wife also testified that the day after the this incident, one of her car tires had a puncture wound and was flat. The evidence also showed that husband previously had guns in the house and that they had been removed over his "strenuous objections." The court said that "this evidence was more than sufficient to sustain the grant of a PFA."

5. standard of review -- When a claim is presented that the evidence was not sufficient to support a PFA order, the court reviews the evidence in the light most favorable to the petitioner and grants her the benefit of all reasonable inferences. The court defers to the credibility determinations of the trial court as to witnesses who appeared before it.

custody - grandparent rights - Troxel distinguished - Ohio case

Harrold v. Collier - Ohio Supreme Court - October 10, 2005

http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-5334.pdf

The Ohio Supreme Court ruled that the grandparents of an 8 year-old girl must be allowed to visit her, even if her father objects, upholding the validity of a state law granting nonparents visitation rights to children. The Court said the Ohio law was narrower than the one struck down in Troxel v. Granville, 530 US 57 (2000) in that, inter alia, it granted right only to parents and other relatives of an unmarried, deceased parent. The Washington law allowed any third party to petition for visitation.

In the Ohio case, the child had lived with her deceased mother and the latter's parents. The mother died when the child was two, and the child continued to live with the maternal grandparents until she was five, when the father was granted primary custody. He refused to allow any contact by the maternal grandparents, who then petition for visitation.

The court said that Ohio courts were obligated to give "special weight" to the wishes of parents when considering visitation for nonparents. Using a strict scrutiny test, the court held that the visitation statute was constitutional and served a compelling governmental interest. The court said that, despite the "special weight" given to a parent's wishes, that Troxel did not require a nonparent to show "overwhelmingly clear circumstances" to support forcing visitation, but rather declined to defined "' the precise scope of the parental due process rights in the visitation context.' "

Unlike the Washington statute, the Ohio law applied only where one parent was deceased and the parents were unmarried; it also gave special consideration to the wishes of the surviving parents. The court said that nothing in Troxel indicated that the presumption that parents act in a child's best interest was irrebuttable that a parent's wishes were to be the sole determinant of a child's best interests, or placed above the child's best interests.

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of October 8, 2005

Here is the link to the Pennsylvania Bulletin of October 8, 2005

http://www.pabulletin.com/secure/data/vol35/35-41/index.html

Items of potential interest include-

- environment- DEP - mercury rule-making public involvement plan
http://www.pabulletin.com/secure/data/vol35/35-41/1851.html

- welfare - DPW - MA preferred drug list
http://www.pabulletin.com/secure/data/vol35/35-41/1863.html

- transportation - DOT - definition of "serious traffic violation"
http://www.pabulletin.com/secure/data/vol35/35-41/1864.html

- IRRC - comments issued - nursing facililties- preadmission reqmts. and civil rights compliance
http://www.pabulletin.com/secure/data/vol35/35-41/1866.html

- PUC - identity theft - order
http://www.pabulletin.com/secure/data/vol35/35-41/1880.html

Donald Marritz
MidPenn Legal Services

employment discrimination - age/disability - statute of limitations

Heater v. Kidspeace - ED Pa. - October 5, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1227P.pdf

Plaintiff exhausted admin. remedies, then filed complaint in state court for age and disability discrimination. The case was eventually removed to federal court, where defendant moved to dismissed on statute of limitations grounds, based on untimely filing and service of the original case in state court.

Held, any alleged errors with this state court process had to be raised in state court, not on motion to dismiss in federal court on statute of limitations grounds..

Donald Marritz
MidPenn Legal Services

immigration status not relevant or discoverable in FLSA/AWPA case -

Galaviz-Zamora v. Brady Farms, Inc. -- USDC WD Mich. Southern Div. (September 23, 2005) - 2005 US Dist. LEXIS 22120

The court granted a protective order barring discovery of information (SSN, tax records, etc.) that were "designed to uncover Plaintiffs' immigration status."

The court held that information about that status was not relevant to any of the issues in the case, which involved the Fair Labor Standards Act (FLSA) and the Agricultural Workers Protection Act (AWPA). The court also mentioned the "detrimental impact resulting from irrelevant inquiries into a worker's immigration status."

Donald Marritz
MidPenn Legal Services

admin. law - federal agency interpretation of statute - "Brand X" decision

AARP v. EEOC - ED Pa. - September 27, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1174P.pdf

The Court rejected AARP's challenge to a regulation proposed by the EEOC to implement the Age Discrimination in Employement Act, 29 USC sec. 621 et seq. The regulation would permit employers who provide health care benefits to retired employees to decrease those benefits when the employees become eligible for Medicare.

The case involved the seminal decision in Chevron USA v. Natural Resource Defense Council, 467 US 837 (1984) and the recent decision in Natl. Cable & Telecommunications Assn. v. Brand X Internet Services (Brand X), 125 SCt 2688 (2005). The AARP argued and the court had previously held that a prior Third Circuit decision had interpreted the ADEA to prohibit the practice in the proposed regulation. The court reversed itself, after reconsidering the case in light of Brand X.

Under Brand X, a court interpretation of a statute bars an agency from later interpreting that statute differently from the court only "if the court has the determined the only permissible meaning of the statute." (emphasis in original). "[O]nly a judicial precedent holding that the statute unambiguously forcloses the agency's interpretation and therefore contains no gap for the agency to fill, displaces a conflicting agency construction….Put differently, Brand X states that the only court decision that forecloses a later, contrary interpretation of a statute by an agency is a decision that determines the only permissible reading of the statute, not merely the best of several alternatives." (emphasis in original)

The court held that the prior Third Circuit decision involved only one possible reading of the statute, not the only permissible one, and that the proposed EEOC regulation was not contrary to the federal Administrative Procedure Act or the ADEA.

Donald Marritz
MidPenn Legal Services

custody - same-sex parents - in loco parentis - standard/burden of proof

Jones v. Boring -- Pa. Superior Court - September 30, 2005

 http://www.courts.state.pa.us/OpPosting/Superior/out/a25041_05.pdf

 

Primary custody of twins awarded to non-biological parent of a separated lesbian couple, based on "clear and convincing evidence" that the children were better off with her.

 

The couple had a relationship starting in 1988.  Boring was impregnated by anonymous sperm donor and had twin boys in 1996.  The couple lived together as a family unit until January 2001, when Boring left Jones' residence, where they had all lived, taking the children with her.

 

Initially the court ordered joint legal custody.  Boring was awarded primary custody and Jones -- whose right to in loco parentis status was clear -- had "relatively typical partial custody....rights."  As time passed however, the court concluded the Jones had shown by clear and convincing evidence that it was in the children's best interest that she have primary custody.

 

The court rejected Boring's argument that Jones had to prove that she, Boring, was "unfit."  The court said that a person who is not a biological parent but stands in loco parentis "does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interest of the children to maintain that relationship or be with that person." (emphasis in original). 

 

Most telling was Boring's "multi-year effort to exclude Jones from the children's life [sic]....[T]he record is replete with evidence that Boring tried in every way possible to sabotage Jones' relationship with the children."

abuse - contempt - knowledge of PFA order

Commonwealth v. Padilla - Pa. Superior Court - September 28, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/S44034_05.pdf

Defendant was found guilty of contempt for violating a temporary PFA order which had not been served on him but which he knew about from a phone call from the sheriff. During the call, the sheriff told defendant a) that there was an order, b) that it prohibited any contact with the plaintiff, and c) what the consequences were of violating it.

Despite this knowledge, Defendant made several phone threats to the plaintiff, during 5-6 harassing phone calls. Later that same day, Defendant was served with a copy of the temporary PFA order.

To establish indirect criminal contempt, one must show that a) the order was sufficiently clear to the contemnor as to leave no doubt of the conduct prohibited; b) the contemnor had notice of the order; c) the act was prohibited by the order; and d) the intent of the contemnor in committing the act was wrongful.

The only issue in the case was notice. The court held that "the telephone conversations during which Appellant was informed of the emergency order and the repercussions of violating it constitute actual notice or its equivalent even in the absence of personal service." The court discussed due process issues and the " 'special exigencies of abuse cases' ". It also mentioned 23 Pa. C.S. sec. 6016(g), which says the "[f]ailureto serve shall not stay the effect of a valid order."

The court found that "the verbal explanation provided to Appellant over the telephone was adequate to convey notice that a PFA order had been entered against him, and that a violation of that order placed him at risk of criminal penalty. He was, therefore, properly found to have been in indirect criminal contempt of court."

Donald Marritz, staff attorney
MidPenn Legal Services

employment - wrongful discharge - employment at-will exception expanded

Rothrock v. Rothrock Motor Sales, Inc. - Pennsylvania Supreme Court - September 28, 2005

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-65-2004mo.pdf - majority
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-65-2004co.pdf - concurring

The limited exception to the employment at-will doctrine was expanded in this wrongful discharge case. Previous exceptions protected people who had filed claims for workers' compensation (Shick v. Shirey, 716 A2d 283 (Pa. 1998)) and unemployment compensation (Highhouse v. Avery Transportation, 660 A2d 1374 (Pa. Super. 1994) , or who had refused to submit to a polygraph test (Kroen v. Bedway Security Agency, 633 A2d 628 (Pa. Super. 1993.)

Here, the court held that public policy requires giving a cause of action for wrongful discharge to a supervisor who, contrary to the employer's direction, refuses to dissuade a subordinate from seeking worker's comp. benefits. The court held this ruling was "a necessary corollary to the policy established in Shick", and that a supervisory employee who is terminated in such a situation has a cause of action for wrongful discharge.

"[T]here is little doubt that the policy of protecting subordinate employees' rights to seek WC benefits will be well-nigh eliminated if employers can avoid the rule of Shick by pressuring and firing supervisors who do not or cannot coerce subordinate employees into foregoing their rights. Moreover, it would be equally repugnant for this Court to turn its back on such supervisors, who amount to innocent pawns in a conflict between employer and subordinate employee, and, nevertheless, would find themselves out of employment without cause or recourse absent this decision."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

Pennsylvania Bulletin of October 1, 2005

Here is the link to the Pennsylvania Bulletin of October 1, 2005
http://www.pabulletin.com/secure/data/vol35/35-40/index.html
Items of potential interest include:

- court rules - proposed - dom. rel. - conferences, service of process, masters reports, etc.
http://www.pabulletin.com/secure/data/vol35/35-40/1815.html

- court rules - local - Schuylkill County - divorce masters
http://www.pabulletin.com/secure/data/vol35/35-40/1816.html

- attorneys - attorneys displaced by Hurricane Katrina - practice in Pa.
http://www.pabulletin.com/secure/data/vol35/35-40/1817.html

- community & econ. development - grants to local governments to promote community and/or economic development
http://www.pabulletin.com/secure/data/vol35/35-40/1821.html

- community & econ. development - urban development program - guidelines
http://www.pabulletin.com/secure/data/vol35/35-40/1822.html

- education - approval of PSSA performance level descriptors and performance level scores
http://www.pabulletin.com/secure/data/vol35/35-40/1844.html

N.B. -- You can access the entire issue any Pa. Bulletin in PDF form by clicking on the "entire bulletin" PDF link at the bottom of the index page for that issue

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

drivers licence - incompetency - medical evidence v. lay evidence

Byler v. DOT, Bureau of Driver Licensing - Commonwealth Court - September 27, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/615CD05_9-27-05.pdf

Commonwealth Court affirmed the trial court's decision, sustaining petitioner's appeal from DOT's proposal to suspend his license for medical reasons. DOT's proposed suspension was based on a letter from petitioner's doctor, which stated in its entirety: "Mr. Byler is a 79 year old white male.  He's an alcoholic and should not be driving a car.  He has significant alcoholic cerebellar degeneration." 

A person can be disqualified from driving if, in the opinion of a health care provider, a person's alcoholism is likely to impair his ability to control and safely operate a motor vehicle.   DOT has the initial burden of showing this by a preponderance of the evidence.  The driver can then rebut DOT's evidence, in which case DOT may be required to present additional evidence to satisfy its ultimate burden of proof.

Here, the trial court determined that DOT's initial burden was satisfied by the doctor's two sentence letter.  The appellate court did not really address that troublesome issue.  At any rate, the driver testified himself and also presented the testimony of his neighbor, both to the effect that although he did drink sometimes, he drank modestly, he never drove after drinking alcohol, never visited bars, and never drank outside the home.  DOT did not present any evidence other than the doctor's letter.

Both the trial court and appellate court found that the lay testimony presented by the driver was sufficient to rebut that of the doctor and called into question the credibility of DOT's evidence.  Because DOT presented no further evidence, the courts determined that DOT did not sustain its burden of showing that drinking was likely to impair the licensee's ability to drive.  

The Court rejected DOT's argument that only medical evidence could rebut medical evidence. "[N]othing in the applicable statutory or regulatory provisions or in the case precedents….requires that only medical evidence may be presented by the licensee to rebut a prima facie case of the licensee's incompetency based on a medical provider's report….It was within the trial court's discretion…. to determine that [the licensee] was not incompetent and that the testimony of  [the licensee and his neighbor] was more persuasive and credible that the evidence presented by DOT."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

disability - ALJ failure to follow remand instructions

Lok v. Barnhart - ED Pa. - September 19, 2005

 

http://www.paed.uscourts.gov/documents/opinions/05D1153P.pdf
 

Plaintiff is 55 year-old woman w/chronic back pain and some mental impairments, unable to speak English, and whose prior work was as a dishwasher.

 

Plaintiff appealed an adverse ALJ decision to the Appeals Council (AC), which remanded the case to the ALJ after finding that there was not substantial evidence to support the ALJ's decision that the Plaintiff was not disabled.  The remand order directed the ALJ to "obtain additional, updated evidence" and to recontact the treating physician for additional evidence and clarification of his opinion about disability.  On remand, the ALJ was unable to get information from the treating physician, who was uncooperative.  The ALJ did not seek any consultative exams.

 

Plaintiff appealed second adverse ALJ decision, which AC this time affirmed.  The Court reversed and remanded.  It found that "the ALJ's procedures were not consistent with the remand order" and that the ALJ's findings were not based on substantial evidence.

 

The Court held that, under the circumstances, SSA regs and the specific AC remand order required the ALJ to "seek the necessary information from alternative sources", i.e., consultative physicians.  "The ALJ's task was to secure new believable evidence."  The Court remanded the case, holding that the record "does not necessarily show Plaintiff is disabled, and reversal is not warranted."

 

Donald Marritz, staff attorney

MidPenn Legal Services- Gettysburg

IRS - innocent spouse tax relief

In some circumstances, the IRS will forgive a innocent spouse's tax liability, if it is inequitable to hold him/her liable. Some of the factors considered include:

• The taxes owed are your spouse's or ex-spouse's.
• You are no longer married to that spouse.
• You thought your spouse would pay the taxes on the original return.
• You didn't know about the items changed in the audit.
• You would suffer a financial hardship if you were required to pay the tax. You would not be able to pay for basic living expenses like food, shelter, and clothing.
• You did not significantly benefit (above normal support) from the unpaid taxes.
• You suffered abuse during your marriage.

More info is available at the web sites below……….

http://www.irs.gov/individuals/article/0,,id=96786,00.html

http://www.irs.gov/individuals/content/0,,id=130302,00.html

disability - medical criteria - change during pendency of case

Cliggett v. Barnhart -  ED Pa. - September 20, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1150P.pdf

Claimant suffered several spinal-related severe impairments, including epidural fibrosis.  In court, claimant alleged that she met new Listing 1.08, which was promulgated during the course of the case, more than one and one-half years after the ALJ decision, but before the Appeals Council decision.

The court cited an SSA statement about a different rule change, in which it said that "as is our usual practice when we make changes to our regulations, we will apply these final rules to the claims of applicants for benefits that are pending at any stage of our administrative process."   The court also cited an unreported 3d Circuit case holding that "[i[f it is determined that the new regulations is more favorable to the claimant that the original version, she should be entitled to rely on the more expansive construction."  Coppola v. Barnhart, 99 Fed. Appx. 365, 2004 WL 1088368 (2004), noting that while not precedential, the court "finds it instructive." 

The court noted that new Listing 1.08 had been adopted at the time of Appeals Council review and summarized by saying that "when final changes to Social Security regulations are made, the new regulations should be applied to claims of applicants for benefits that are pending at any stage of the administrative review process.  If a new regulation is more favorable to a claimant than the original version, the claimant should be entitled to rely on the new regulation."

The court remanded that case "so as to give the Commissioner an opportunity to set forth her position on the applicability of Listing 1.08 to epidural fibrosis."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

UC- vol. quit - retirement - speculation

Petrill v. UCBR - Commonwealth Court - September 20, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/1002CD05_9-20-05.pdf
Commonwealth Court affirmed denial of benefits by UCBR.

Claimant (CL) had worked for employer (ER) for 38 years.  He was on voluntary layoff for 3 weeks in August.  The contract between the ER and the union, of which CL was a member, had expired in July.  As of the date of the referee hearing, contract negotiations were ongoing. 

CL decided to retire while on voluntary layoff.  Continuing work was available to him.  His main reason for the VQ was his belief that  it would be advantageous to him, especially with respect to continuing health care benefits.  This was based on his belief about how the new contract, once completed, would affect those benefits.

Each VQ cases is examined on an individual basis.  In order to get UC benefits on voluntarily retiring, a claimant just proved the he acted with ordinary common sense in retiring and made reasonable efforts to preserve the employment relationship.  The court said that "[w]hile we sympathize with [CL's] feelings of uncertainty, and the predicament that he believed himself to be in, the fact is that he chose to retired base on speculation rather than on what he actually knew to be true.  The law is settled that 'the potential curtailment of medical benefits during the negotiation  for a new [contract] does not meet the 'necessitous and compelling' standard under section 401(b) of the Law. (citing cases).  Essentially, the law is that mere speculation about one's future job circumstances, and attendant benefits, without more, does not render a decision to voluntarily terminate employment necessitous and compelling."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

employment - race/age discrim. - union duty of fair representation

Wilkins v. ABF Freight Systems, Inc. - ED Pa. September 15, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1142P.pdf

Seventy year-old African-American man, a former truck driver, brought various claims against his former corporate employer and individual supervisors. One supervisor made overt racial slurs. The next supervisor did as well. They also denied him the chance to earn overtime and encouraged him to retire. After going through the required administrative process, plaintiff sued in federal court. Defendants moved to dismiss most claims.

individual liability - Claims against the supervisors in their individual capacities were dismissed. Neither Title VII, 42 USC 2000e-1 et seq., nor the Age Discrimination in Employment Act (ADEA), 29 USC 621 et seq., provides for individual liability, as plaintiff ultimately conceded.

racial discrimination - Some of plaintiff's claims were found to be untimely under the 300-day administrative filing requirement. Plaintiff's claim of continuing violations was rejected, because the acts of the supervisors did not appear to be part of the company's standard operating procedures, but rather separate courses of action of two men, each not responsible for the conduct of the other.

age discrimination - Defendants challenged plaintiff's claim that he was constructively discharged due to numerous instances of age discrimination -- denying him overtime and giving it to younger drivers. The standard for such a claim is an objective one, requiring a finding that an employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign. Held, Plaintiff's allegations, e.g., that supervisor often suggested that he retire sufficiently pleaded facts sufficient to support this claim

administrative exhaustion -- Defendants claimed that plaintiff did not allege all of the same facts in the admin. process that he alleged in court. The court rejected this, holding that the relevant inquiry on exhaustion is whether the acts alleged in the subsequent suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom. The plaintiff is not required to specifically plead each instance of discrimination to meet the exhaustion requirement. The allegations need only put the agency on notice that he was alleging both race and age discrimination.

breach of duty of fair representation by union - Plaintiff made only conclusory statements that the union breached its duty of fair representation in his case. The court said that would not suffice. The union has broad discretion about whether and how to pursue an employee's grievance against an employer. The employee must prove that the union's failure to pursue his grievance was arbitrary and so far outside a wide range of reasonableness as to be irrational.

intentional infliction of emotional distress - The court rejected the argument that the racial slurs --both supervisors calling him nigger -- supported a claim for intentional infliction of emotional distress under state tort law. The court said that the slurs were not so outrageous, so extreme, as to go beyond all possible bounds of decency... atrocious, and utterly intolerable in a civilized society....the most egregious conduct. Such a finding is "extremely rare." The court said that these comments were inappropriate and unacceptable but not the kind of "utterly deplorable actions cognizable under Pennsylvania law." In addition, the court held that such claims must be brought under the state workmen's compensation law, which provides the sole remedy for injuries allegedly sustained during the course of employment.


Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

SSI - treating M.D. - credibility - subjective complaints - duty of ALJ to develop record

Rodriguez v. Barnhart - ED Pa. - September ___ 2005

 

http://www.paed.uscourts.gov/documents/opinions/05D1138P.pdf

 

Summary judgment for SSA.  Claimant alleged disability based on "depression and bad nerves." 

 

Many instances of inconsistency between psychotherapy evidence and psychiatric evidence.  Court upheld ALJ's decision to give little weight to opinion of treating physician (TP), because it was not supported by objective clinical, diagnostic or laboratory findings, but rather by the allegations of the claimant herself.  The TP's opinion was of limited value because it largely relied only on claimant's subjective symptoms, rather than objective evidence, such as a treatment regimen. 

 

The court also upheld the ALJ's assessment of the claimant's allegations as exaggerated and her credibility as only fair, primarily because activities of daily living -- including being primary caretaker for 6 children --  were inconsistent with her claims of the extent of her disability.   The evidence also showed a "stable psychiatric condition."  Credibility was evaluated under 20 CFR 4161.929 (b), (c) and (e)

 

The court rejected the argument that, if the treating physician's opinion was inadequate, the ALJ should have sought more information from the TP.  The "ALJ correctly found that there was sufficient evidence in the record to reach a disability determination, which satisfied his duty under the regulations,"  20 CFR 416.912(e).

 

 

Donald Marritz, staff attorney

MidPenn Legal Services - Gettysburg

age/disability discrimination - state employer - 11th amendment

Bullock v. Pa. Human Relations Commission -- ED Pa. Septemb er 14, 2005

 

http://www.paed.uscourts.gov/documents/opinions/05D1133P.pdf

 

Plaintiff's pro se age (ADEA, 29 USC 621 et seq) and disability discrimination (ADA, 42 USC 12101 et seq.) suit in federal court against her former employer, a state agency, dismissed on 11th Amendment grounds.

 

Congress has not abrogated state immunity under either the ADEA or ADA, and Pennsylvania has not consented to be sued under the ADEA or the ADA. Board of Trustees v. Garrett, 531 US 356 (2001); Kimmel v. Board of Regents, 528 US 62, 91 (2000).

 

The Commonwealth has waived its immunity for suits in state court for age/disability discrimination under the Pa. Human Relations Act, but it has specifically retained its 11th Amendment immunity for suits in federal court. Dennison v. Dept. of Corrections, 268 F.Supp2d 387, 405 (MD Pa. 2003)

 

Donald Marritz, staff attorney

MidPenn Legal Services- Gettysburg

custody - international - Hague Convention

Baxter v. Baxter, Third Circuit Court of Appeals, September 15, 2005
http://www.ca3.uscourts.gov/opinarch/043228p.pdf

District Court's denial of father's petition for return of child to Australia from the the US reversed by 3d Circuit. Father consented to child's initial removal to the U.S. with the mother, but not the child's retention here. Case remanded for the entry of an order granting the petition for return of the child to the country of habitual residence, Australia.

jurisdiction
The Distict Court had jurisdiction under 28 USC 1331, since the action arose under the Hague Convention on the Civil Aspect of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501, and its implementing legislation, the International Child Abduction Remedies Act, 42 USC 11601 et seq (ICARA). Under the ICARA, state and federal courts have concurrent original jurisdiction over actions arising under the Hague Convention.

Hague Convention (HC)
The HC has two main purposes
1) to secure the prompt return of children wrongfully removed to or retained in any contracting State, and
2) to ensure that rights of cutsody and access under the law of one contracting State are effectively respected.

The Convention's procedures are designed to restore the status quo prior to any wrongful removal or retention of a child, and to deter parents from engaging in international forum shopping in custody cases. The Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court.

To get an order for a child's return, the petitioner has the burden of proving by a preponderance of the evidence that the removal or retention was wrongful under the HC. A removal or retention is "wrongful" where a) it is in breach of rights of custody under the law of the state in which the child was habitually resident immediately before the removal/retention, and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

If the court finds a wrongful removal or retention, the burden shifts to the respondent, who must then prove an affirmative defense of a) consent or acquiescence to the removal or retention, by a preponderance of the evidence, or b) the defense of a "grave risk of harm" to the child, by clear and convincing evidence. Both of these affirmative defenses are narrowly construed, and even a finding of an exception does not automatically preclude an order of return. If a petitioner prevails, the HC requires courts to " 'order the return of the child forthwith.' "

discussion
The evidence was clear that father's consent for mother and child to come to the US was conditional and that he did not acquiesce in the child remaining in the US. Acquiescense depends of the parent's subjective intent. There was no settled purpose to leave Australia permanently and no acquiescense, as evidenced by the District Court's own conclusions that a) Australia remained the country of habitual residence at the time of removal, b) the parents were undecided about their next residence, and c) father's prompt contest of mother's decision to remain in the US and move in with a new male partner whom she had known for only a short time.

There was no "grave risk of harm" to the child if he was returned to the father in Australia. Such harm must involve a real risk of being hurt, physically or psychologically, as a result of repatriation, and not just inconvenience or hardship, the elimination of education opportunities, or the child's preferences.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg