Mason v. Dept. of Corrections
http://www.courts.state.pa.us/OpPosting/CWealth/out/467CD05_11-21-05.pdf
The substance of this case -- a claim by the DOC that a prisoner should pay for medical treatment given to him, under the Prison Medical Services Act, 61 P.S. 1013 -- is not within our practice.
However, there is an important procedural issue. The DOC held an assessment hearing in the case and entered an order directing the prisoner to pay DOC more than $77,000. However, the testimony at the hearing was not stenographically or electronically recorded. The prisoner appealed, claiming a due process violation by denying him a stenographer at the hearing, a right guaranteed under the Administrative Agency Law, 2 Pa. C.S. sec. 504, which states that "[a]ll testimony shall be stenographically record and a full and complete record shall be kept of the proceedings."
The court held that a failure to make a full and complete record "render[ed] the adjudication invalid," citing Holloway v. Lehman, 671 A.2d 1179 (Pa. Cmwlth. 1996) and Callahan v. State Police, 431 A.1d 946 (Pa. 1981). The case was "remanded for a hearing in accordance with the provisions" of the Administration Agency Law.
Donald Marritz
MidPenn Legal Services
Monday, November 21, 2005
Sunday, November 20, 2005
employment - disability discrimination - ADA, PHRA, FMLA, IIED
Kaniuka v. Good Shepherd Home -- ED Pa - November 3, 2005
http://www.paed.uscourts.gov/documents/opinions/05d1358p.pdf
Plaintiff was terminated from her job when she accidentally mixed up her medications, resulting in her being hospitalized and missing work. The employer said she was fired for a) sleeping at work, b) intentionally taking meds not prescribed to her; c) "mental health reasons", and d) "being out on leave."
Plaintiff sued her employer under the ADA, PHRA, FMLA and state common law. The employer moved to dismiss several claims. The court said that a plaintiff need not plead every material fact to survive motion to dismiss, only facts that, in addition to inferences drawn from them, provide a basis for recovery. Claims should not be dismissed unless there it is beyond doubt that the plaintiff can prove no set of facts that would entitled her to relief.
retaliation claims under ADA, 29 USC 12201 et seq., and PHRA, 43 P.S. 951 et seq.
A prima face retaliation claim requires a plaintiff to show a) she engaged in a protected activity, b) the ER took adverse action at the time of or after such activity, and c) there is a causal connection between the two. "Protected activity" includes asking for working conditions that accommodate a disability, or filing a claim for disability discrimination. Taken as a whole, P's complaint here alleges sufficient facts to show that the ER took adverse action against her after she made an accommodation request.
PHRA "aiding and abetting" claim against supervisors
The PHRA generally does not apply against individuals, only employers. However, sec. 955(e) prohibits any person from aid or abetting unlawful discriminatory acts under the PHRA. The allegations and inferences of the complaint sufficiently allege potential supervisor liability to withstand summary judgment.
Family and Medical Leave Act, 29 USC 2610 et seq.
Complaint properly alleged the plaintiff was "employee" and defendant an "employer" under the FMLA
intentional infliction of emotional distress under Pa. common law
Tort claims against employers generally are barred by the Worker's Compensation Law, unless they involve intentionally tortious conduct. However, the plaintiff in such a case must show that the alleged action was taken for purely personal reasons, unrelated to the employment relationship. She did not do so in this case, so that claim was dismissed.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05d1358p.pdf
Plaintiff was terminated from her job when she accidentally mixed up her medications, resulting in her being hospitalized and missing work. The employer said she was fired for a) sleeping at work, b) intentionally taking meds not prescribed to her; c) "mental health reasons", and d) "being out on leave."
Plaintiff sued her employer under the ADA, PHRA, FMLA and state common law. The employer moved to dismiss several claims. The court said that a plaintiff need not plead every material fact to survive motion to dismiss, only facts that, in addition to inferences drawn from them, provide a basis for recovery. Claims should not be dismissed unless there it is beyond doubt that the plaintiff can prove no set of facts that would entitled her to relief.
retaliation claims under ADA, 29 USC 12201 et seq., and PHRA, 43 P.S. 951 et seq.
A prima face retaliation claim requires a plaintiff to show a) she engaged in a protected activity, b) the ER took adverse action at the time of or after such activity, and c) there is a causal connection between the two. "Protected activity" includes asking for working conditions that accommodate a disability, or filing a claim for disability discrimination. Taken as a whole, P's complaint here alleges sufficient facts to show that the ER took adverse action against her after she made an accommodation request.
PHRA "aiding and abetting" claim against supervisors
The PHRA generally does not apply against individuals, only employers. However, sec. 955(e) prohibits any person from aid or abetting unlawful discriminatory acts under the PHRA. The allegations and inferences of the complaint sufficiently allege potential supervisor liability to withstand summary judgment.
Family and Medical Leave Act, 29 USC 2610 et seq.
Complaint properly alleged the plaintiff was "employee" and defendant an "employer" under the FMLA
intentional infliction of emotional distress under Pa. common law
Tort claims against employers generally are barred by the Worker's Compensation Law, unless they involve intentionally tortious conduct. However, the plaintiff in such a case must show that the alleged action was taken for purely personal reasons, unrelated to the employment relationship. She did not do so in this case, so that claim was dismissed.
Donald Marritz
MidPenn Legal Services
employment - age discrimination - ADEA and PHRA
Kasali v. J.P. Norgan/Chase Manhattan Mortage Corp. - ED Pa. November 7, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1363P.pdf
Pa. Human Relations Act- 43 PS 51 et seq.
Plaintiff's age discrimination claim under the Pa. Human Relations Act dismissed because of untimely filing -- not w/in 180 days of alleged discriminatory act. P did filed Age Discrimination in Employment (ADEA), 29 USC 621 et seq., claim w/in required 300 days but did not clear and unambiguously ask for dual-filing of PHRA claim, so equitable tolling denied.
Age Discrimination in Employment Act - 29 USC 621 et seq.
Plaintiff established the "not onerous" burden of showing a prima facie age discrimination claim -- over 40, applied and rejected for job for which she was miniminally qualified, in favor of a person younger enough to permit inference of age discrimination. The employer's proferred non-discrminatory reasons were sufficiently countered by Plaintiff's allegations that those reasons were pretextual, so as to raise genuine issue of material fact and survive ER's motion for summary judgment.
Plaintiff's retaliation claim under the ADEA was rejected, since she did not establish a prima facie case -- i.e., retaliatory conduct which affected compensation, terms, conditions or privileges of employment.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1363P.pdf
Pa. Human Relations Act- 43 PS 51 et seq.
Plaintiff's age discrimination claim under the Pa. Human Relations Act dismissed because of untimely filing -- not w/in 180 days of alleged discriminatory act. P did filed Age Discrimination in Employment (ADEA), 29 USC 621 et seq., claim w/in required 300 days but did not clear and unambiguously ask for dual-filing of PHRA claim, so equitable tolling denied.
Age Discrimination in Employment Act - 29 USC 621 et seq.
Plaintiff established the "not onerous" burden of showing a prima facie age discrimination claim -- over 40, applied and rejected for job for which she was miniminally qualified, in favor of a person younger enough to permit inference of age discrimination. The employer's proferred non-discrminatory reasons were sufficiently countered by Plaintiff's allegations that those reasons were pretextual, so as to raise genuine issue of material fact and survive ER's motion for summary judgment.
Plaintiff's retaliation claim under the ADEA was rejected, since she did not establish a prima facie case -- i.e., retaliatory conduct which affected compensation, terms, conditions or privileges of employment.
Donald Marritz
MidPenn Legal Services
Saturday, November 19, 2005
Pennsylvania Bulletin of November 19, 2005
Here is the link to the Pennsylvania Bulletin of November 19, 2005
http://www.pabulletin.com/secure/data/vol35/35-47/index.html
Of possible interest --
- recent statutes
http://www.pabulletin.com/secure/data/vol35/35-47/2114.html
- minor court rules - "incompatible practices" - tech.
amendments
http://www.pabulletin.com/secure/data/vol35/35-47/2116.html
- court rules - misc. amendments - publication on internet
required
http://www.pabulletin.com/secure/data/vol35/35-47/2117.html
- insurance - financial statement filing requirements for 2006
for insurance companies
http://www.pabulletin.com/secure/data/vol35/35-47/2144.html
Donald Marritz
MidPenn Legal Services
Tuesday, November 15, 2005
Education Law - Burden of Persuasion in IDEA Due Process Hearings
The United States Supreme Court has held, in SCHAFFER V. WEAST (04-698), decided on November 14, 2005, that the burden of persuasion in in an administrative hearing challenging an IEP is properly placed upon the party seeking relief, whether that is the disabled child or the school district.
To ensure disabled children a "free appropriate public education," 20 U.S.C.A. §1400(d)(1)(A), the Individuals with Disabilities Education Act (IDEA or Act) requires school districts to create an "individualized education program" (IEP) for each disabled child, §1414(d), and authorizes parents challenging their child’s IEP to request an "impartial due process hearing," §1415(f), but does not specify which party bears the burden of persuasion at that hearing.
After an IDEA hearing initiated by petitioners, the Administrative Law Judge held that they bore the burden of persuasion and ruled in favor of respondents. The District Court reversed, concluding that the burden of persuasion is on the school district. The Fourth Circuit reversed the District Court, concluding that petitioners had offered no persuasive reason to depart from the normal rule of allocating the burden to the party seeking relief.
In an opinion by Justice O'Conner the Court found:
(a) Because IDEA is silent on the allocation of the burden of persuasion, this Court begins with the ordinary default rule that plaintiffs bear the burden regarding the essential aspects of their claims. Although the ordinary rule admits of exceptions, decisions that place the entire burden of persuasion on the opposing party at the outset of a proceeding–as petitioners urge the Court to do here–are extremely rare. Absent some reason to believe that Congress intended otherwise, the Court will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief.
(b) Petitioners’ arguments for departing from the ordinary default rule are rejected. Petitioners’ assertion that putting the burden of persuasion on school districts will help ensure that children receive a free appropriate public education is unavailing. Assigning the burden to schools might encourage them to put more resources into preparing IEPs and presenting their evidence, but IDEA is silent about whether marginal dollars should be allocated to litigation and administrative expenditures or to educational services.
There is reason to believe that a great deal is already spent on IDEA administration, and Congress has repeatedly amended the Act to reduce its administrative and litigation-related costs. The Act also does not support petitioners’ conclusion, in effect, that every IEP should be assumed to be invalid until the school district demonstrates that it is not. Petitioners’ most plausible argument–that ordinary fairness requires that a litigant not have the burden of establishing facts peculiarly within the knowledge of his adversary, United States v. New York, N. H. & H. R. Co., 355 U.S. 253, 256, n. 5–fails because IDEA gives parents a number of procedural protections that ensure that they are not left without a realistic chance to access evidence or without an expert to match the government.
Stevens, J., filed a concurring opinion. Ginsburg, J., and Breyer, J., filed dissenting opinions. Roberts, C. J., took no part in the consideration or decision of the case.
The Court's decision is available from the Legal Information Institute at Cornell Law School at: http://straylight.law.cornell.edu/supct/html/04-698.ZS.html.
Tuesday, November 08, 2005
custody - modification - UCCJEA
Wagner v. Wagner - Pa. Superior Court - November 7, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a31002_05.pdf
Following the parents' divorce in Mercer County, Pennsylvania in 2002, Mother got primary physical custody of the two children by an order of the same court. The parties shared legal custody. Mother, who was in the Army Reserve, maintained her domicile in Florida, where she had a mailing address, driver's license and was registered to vote. She and the children had other significant connections to Florida. Father moved to Ohio. Mother was then transferred to Fort Dix, NJ, and children were sent to live with her stepmother in Florida. When Mother got orders to go to Iraq, Father sought and got a custody order from the Mercer County court. Mother appealed, alleging lack of jurisdiction under the UCCJEA and violation of the Servicemembers' Civil Relief Act, 50 USC App. sec. 501 et seq.,
The Superior Court reversed. Applying 23 Pa. C.S. sec. 5422(a), dealing with modification orders, the court held that the lower court did not have "exclusive, continuing jurisdiction" to modify its original order, because (a) neither parent resided in Pennsylvania, and (b) neither the children nor the parents had "significant connections" with Pennsylvania.
The court also decided that the lower court did not have jurisdiction under sec. 5422(b), because it did not have jurisdiction under the criteria in sec. 5421 to make an initial custody determination. Pennsylvania was not the "home state," since the children were no longer here, and neither parent lived here. Nor did Pennsylvania have jurisdiction under the "significant connections" test, which can only apply if no other state can assume jurisdiction. The court found that the children had more significant connections with Florida than Pennsylvania and remanded the case to the trial court with a direction that it be transferred to Florida.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/a31002_05.pdf
Following the parents' divorce in Mercer County, Pennsylvania in 2002, Mother got primary physical custody of the two children by an order of the same court. The parties shared legal custody. Mother, who was in the Army Reserve, maintained her domicile in Florida, where she had a mailing address, driver's license and was registered to vote. She and the children had other significant connections to Florida. Father moved to Ohio. Mother was then transferred to Fort Dix, NJ, and children were sent to live with her stepmother in Florida. When Mother got orders to go to Iraq, Father sought and got a custody order from the Mercer County court. Mother appealed, alleging lack of jurisdiction under the UCCJEA and violation of the Servicemembers' Civil Relief Act, 50 USC App. sec. 501 et seq.,
The Superior Court reversed. Applying 23 Pa. C.S. sec. 5422(a), dealing with modification orders, the court held that the lower court did not have "exclusive, continuing jurisdiction" to modify its original order, because (a) neither parent resided in Pennsylvania, and (b) neither the children nor the parents had "significant connections" with Pennsylvania.
The court also decided that the lower court did not have jurisdiction under sec. 5422(b), because it did not have jurisdiction under the criteria in sec. 5421 to make an initial custody determination. Pennsylvania was not the "home state," since the children were no longer here, and neither parent lived here. Nor did Pennsylvania have jurisdiction under the "significant connections" test, which can only apply if no other state can assume jurisdiction. The court found that the children had more significant connections with Florida than Pennsylvania and remanded the case to the trial court with a direction that it be transferred to Florida.
Donald Marritz
MidPenn Legal Services
Saturday, November 05, 2005
physician-patient privilege - blacken the character
Grimminger v. Maitra - Pa. Superior Court - November 4, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/s47039_05.pdf
Held, doctor did not breach common law or statutory duty when he released medical information about a patient to the patient's employer. The doctor had previously sent info to the employer concerning plaintiff's work limitations. Two years later, the employer came to the doctor, showed him a video of plaintiff and asked for the doctor's opinion about plaintiff's work restrictions. The employer offered a new opinion and the employer subsequently fired the plaintiff.
Pennsylvania recognizes a civil cause of action for breach of the physician-patient privilege where "confidential disclosures occurred that were unrelated to any judicial proceedings." Haddad v. Gopal, 787 A.2d 975, 981 (Pa. Super. 2001). This the rule in the majority of jurisdictions. There is also statute, 42 Pa. CS sec. 5929, which prohibits the release of information in a civil matter where that information "shall tend to blacken the character of the patient," unless the patient has consented to the release. Pa. law also recognizes a distinction between information communicated by the patient and information which the doctor gets by examination and observation.
The court's response to each of the plaintiff's arguments was that the information released did not tend to black the patient's character.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/s47039_05.pdf
Held, doctor did not breach common law or statutory duty when he released medical information about a patient to the patient's employer. The doctor had previously sent info to the employer concerning plaintiff's work limitations. Two years later, the employer came to the doctor, showed him a video of plaintiff and asked for the doctor's opinion about plaintiff's work restrictions. The employer offered a new opinion and the employer subsequently fired the plaintiff.
Pennsylvania recognizes a civil cause of action for breach of the physician-patient privilege where "confidential disclosures occurred that were unrelated to any judicial proceedings." Haddad v. Gopal, 787 A.2d 975, 981 (Pa. Super. 2001). This the rule in the majority of jurisdictions. There is also statute, 42 Pa. CS sec. 5929, which prohibits the release of information in a civil matter where that information "shall tend to blacken the character of the patient," unless the patient has consented to the release. Pa. law also recognizes a distinction between information communicated by the patient and information which the doctor gets by examination and observation.
The court's response to each of the plaintiff's arguments was that the information released did not tend to black the patient's character.
Donald Marritz
MidPenn Legal Services
Wednesday, November 02, 2005
continuances - exercise/abuse of discretion
Gillespie v. Penn DOT - Commonwealth Court - November 2, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/546CD05_11-2-05.pdf
Held, the trial court erred by refusing to exercise its discretion to consider a request for a continuance based solely on a standing policy that all parties must agree to a continuance.
"Blind adherence" to an establishing policy is the opposite of the required exercise of discretion, which is an informed decision between multiple courses of action. Instead, the court "essentially delegated its decision-making function to the attorneys....We can think of no clearer example of an abuse of discretion than abdication of the judge's role to an interested party. The trial court's continuance policy....is manifestly unreasonable." It was an abuse of discretionto blindly apply the policy and refuse to consider the merits of the moving party's request.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/546CD05_11-2-05.pdf
Held, the trial court erred by refusing to exercise its discretion to consider a request for a continuance based solely on a standing policy that all parties must agree to a continuance.
"Blind adherence" to an establishing policy is the opposite of the required exercise of discretion, which is an informed decision between multiple courses of action. Instead, the court "essentially delegated its decision-making function to the attorneys....We can think of no clearer example of an abuse of discretion than abdication of the judge's role to an interested party. The trial court's continuance policy....is manifestly unreasonable." It was an abuse of discretionto blindly apply the policy and refuse to consider the merits of the moving party's request.
Donald Marritz
MidPenn Legal Services
attorney-client privilege - former client
In re Investigating Grand Jury -- Pa. Superior Court - November 1, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a25019_05.pdf
In a case said to be of first impression, a criminal defendant's conversation with his former counsel was held to be privileged, even after the representation had ended. The conversation related to the attorney's former representation (about which the defendant was complaining) and was about the case. The court felt that it was likely that the former client "believe[d] that because of their prior relationship, confidentiality remained between them," even though the "conversation did not involved a client seeking legal advice from his lawyer."
Donald Marritz, staff attorney
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/a25019_05.pdf
In a case said to be of first impression, a criminal defendant's conversation with his former counsel was held to be privileged, even after the representation had ended. The conversation related to the attorney's former representation (about which the defendant was complaining) and was about the case. The court felt that it was likely that the former client "believe[d] that because of their prior relationship, confidentiality remained between them," even though the "conversation did not involved a client seeking legal advice from his lawyer."
Donald Marritz, staff attorney
MidPenn Legal Services
Tuesday, November 01, 2005
employment - discrimination - PHRA - "employment agency"
Nethken v. Pa. Civil Service Commission - Commonwealth Court - November 1, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/1064CD05_11-1-05.pdf
The Pa. Civil Services Commission is an "employment agency" under the Pa. Human Relations Act, 43 PS sec. 951 et seq., and can be liable for age discrimination.
Plaintiff stated prima facie case of age discrimination when she was not put on a list of eligibles solely because she graduated from college in 1974, when job posting called for recent grad (1999). Lower court judgment on liability upheld.
D. Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/1064CD05_11-1-05.pdf
The Pa. Civil Services Commission is an "employment agency" under the Pa. Human Relations Act, 43 PS sec. 951 et seq., and can be liable for age discrimination.
Plaintiff stated prima facie case of age discrimination when she was not put on a list of eligibles solely because she graduated from college in 1974, when job posting called for recent grad (1999). Lower court judgment on liability upheld.
D. Marritz
MidPenn Legal Services
HIPAA - HHS privacy rules valid - 3d Cir.
Citizens for Health, et al. v. Leavitt, Secy. of HHS - 3d Cir. - October 3, 2005
http://www.ca3.uscourts.gov/opinarch/042550p.pdf
HHS privacy rules under HIPAA upheld against challenges under Administrative Procedure Act and 1st & 5th Amendments.
http://www.ca3.uscourts.gov/opinarch/042550p.pdf
HHS privacy rules under HIPAA upheld against challenges under Administrative Procedure Act and 1st & 5th Amendments.
Saturday, October 29, 2005
admin. law - collateral estoppel/issue preclusion - capricious disregard of competent evidence
The Frog, Switch & Mfg. Co. v. Pa. Human Relations Commn. - Cmwlth. Court - Oct. 27, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/125CD05_10-27-05.pdf
This is an employment law case, but it has implications in all administrative law cases, hence the cross posting. The Petitioner/Employer appealed from a ruling of the PHRC that it had unlawfully retaliated against a former employee because of his union activities. The employee had also gone through arbitration, resulting in a contrary decision, i.e., that the employer had just cause for disciplining him (but that termination was an excessive punishment).
collateral estoppel/issue preclusion -- In the administrative proceeding before the PHRC, the employer contended that the facts found by the arbitrator were conclusive and binding on the Commission. After an extended (and unnecessary?) discussion about whether collateral estoppel (aka, issue preclusion) was applicable, the court held that the Supreme Court's decision in Bortz v.WCAB, 683 A.2d 259 (Pa. 1996), was controlling. There the court held that a decision of the UCBR did not have preclusive effect in a worker's comp. case, "because every administrative agency...is charged with enforcing its own acts which have different purposes; therefore, one agency's hands would be tied by the findings and conclusions of another without being allowed to make independent findings and conclusions and applying its own expertise to the facts."
The court said that "[because labor arbitrations are akin to 'private administrative agencies' and the Commission is charged...with adjudicating claims under the PHRA...., the General Assembly did not intend any arbitration award to have preclusive effect on claims of discrimination brought pursuant to the PHRA."
capricious disregard -- The court remanded the case back to the Commission, because it had "capriciously disregarded overwhelming critical evidence that could have compelled a different conclusion.," citing Wintermeyer v. WCAB, 812 A.2d 478 (Pa. 2002), and its 8-17-05 decision in Hinkle v. City of Philadelphia,
http://www.courts.state.pa.us/OpPosting/CWealth/out/2071CD04_8-17-05.pdf
In the latter case, the court said that the capricious disregard standard is a "shorthand way of addressing various statutory and constitutional requirements that require...an agency to give reasons for its decision, and when an agency ignored critical overwhelming evidence that constituted an abuse of discretion requiring the decision to be vacated" so that the agency can "explain its action and arrive at a new decision if it so desired. Because an agency has so much discretion when enforcing its statute, capricious disregard, like abuse of discretion, will only be applied in rare instances when the agency palpably has failed to give a proper explanation of overwhelming critical evidence. This is one of the extremely rare cases where the threshold has been reached, because in each and every key finding of causation, it ignored evidence that would have compelled a different conclusion."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/125CD05_10-27-05.pdf
This is an employment law case, but it has implications in all administrative law cases, hence the cross posting. The Petitioner/Employer appealed from a ruling of the PHRC that it had unlawfully retaliated against a former employee because of his union activities. The employee had also gone through arbitration, resulting in a contrary decision, i.e., that the employer had just cause for disciplining him (but that termination was an excessive punishment).
collateral estoppel/issue preclusion -- In the administrative proceeding before the PHRC, the employer contended that the facts found by the arbitrator were conclusive and binding on the Commission. After an extended (and unnecessary?) discussion about whether collateral estoppel (aka, issue preclusion) was applicable, the court held that the Supreme Court's decision in Bortz v.WCAB, 683 A.2d 259 (Pa. 1996), was controlling. There the court held that a decision of the UCBR did not have preclusive effect in a worker's comp. case, "because every administrative agency...is charged with enforcing its own acts which have different purposes; therefore, one agency's hands would be tied by the findings and conclusions of another without being allowed to make independent findings and conclusions and applying its own expertise to the facts."
The court said that "[because labor arbitrations are akin to 'private administrative agencies' and the Commission is charged...with adjudicating claims under the PHRA...., the General Assembly did not intend any arbitration award to have preclusive effect on claims of discrimination brought pursuant to the PHRA."
capricious disregard -- The court remanded the case back to the Commission, because it had "capriciously disregarded overwhelming critical evidence that could have compelled a different conclusion.," citing Wintermeyer v. WCAB, 812 A.2d 478 (Pa. 2002), and its 8-17-05 decision in Hinkle v. City of Philadelphia,
http://www.courts.state.pa.us/OpPosting/CWealth/out/2071CD04_8-17-05.pdf
In the latter case, the court said that the capricious disregard standard is a "shorthand way of addressing various statutory and constitutional requirements that require...an agency to give reasons for its decision, and when an agency ignored critical overwhelming evidence that constituted an abuse of discretion requiring the decision to be vacated" so that the agency can "explain its action and arrive at a new decision if it so desired. Because an agency has so much discretion when enforcing its statute, capricious disregard, like abuse of discretion, will only be applied in rare instances when the agency palpably has failed to give a proper explanation of overwhelming critical evidence. This is one of the extremely rare cases where the threshold has been reached, because in each and every key finding of causation, it ignored evidence that would have compelled a different conclusion."
Donald Marritz
MidPenn Legal Services
admin. law - standard of proof - preponderance v. clear-and-convincing
Suber v. Pennsylvania Commn. on Crime & Delinquency -- Cmwlth. Court - October 28, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/265CD05_10-28-05.pdf
Held, the proper standard of proof was "preponderance of the evidence" and not "clear and convincing" in a case involving the removal of a deputy sheriff from an educ./training program, based on allegations that he had cheated on an exam.
The standard of proof in a particular type of case is "based on the level of concern regarding the degree of accuracy in the factual findings made by the trier of fact...The traditional 'preponderance of the evidence' standard allows parties...to share equally in the risk in proving their claims and affirmative defenses. Any other standard expresses a preference for one side's interests."
In most civil and administrative actions, the proper standard of proof is "preponderance of the evidence." (citing cases). "Clear and convincing" is the highest standard of proof in civil law and is "reserved for cases 'where particularly important individual interests or rights are at stake....'" such as termination of parental rights, civil fraud, involuntary commitment, and public figure defamation.
Meeting the "clear and convincing" standard requires that the witnesses be found to be credible, the facts to which they have testified be remembered distinctly, and their testimony be so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.
The court found that this case was like Ruane v. Shippensburg Univ., 871 A.2d 859 (2005), in which it applied the preponderance standard in a matter involving the suspension of a student for sexual assault. It rejected the analogy to an attorney disbarment case in which the clear-and-convincing standard was applied, ODC v. Duffield, 644 A.2d 1186 (Pa. 1994).
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/265CD05_10-28-05.pdf
Held, the proper standard of proof was "preponderance of the evidence" and not "clear and convincing" in a case involving the removal of a deputy sheriff from an educ./training program, based on allegations that he had cheated on an exam.
The standard of proof in a particular type of case is "based on the level of concern regarding the degree of accuracy in the factual findings made by the trier of fact...The traditional 'preponderance of the evidence' standard allows parties...to share equally in the risk in proving their claims and affirmative defenses. Any other standard expresses a preference for one side's interests."
In most civil and administrative actions, the proper standard of proof is "preponderance of the evidence." (citing cases). "Clear and convincing" is the highest standard of proof in civil law and is "reserved for cases 'where particularly important individual interests or rights are at stake....'" such as termination of parental rights, civil fraud, involuntary commitment, and public figure defamation.
Meeting the "clear and convincing" standard requires that the witnesses be found to be credible, the facts to which they have testified be remembered distinctly, and their testimony be so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.
The court found that this case was like Ruane v. Shippensburg Univ., 871 A.2d 859 (2005), in which it applied the preponderance standard in a matter involving the suspension of a student for sexual assault. It rejected the analogy to an attorney disbarment case in which the clear-and-convincing standard was applied, ODC v. Duffield, 644 A.2d 1186 (Pa. 1994).
Donald Marritz
MidPenn Legal Services
Friday, October 28, 2005
Pennsylvania Bulletin of October 29, 2005
Here is the link to the Pennsylvania Bulletin of October 29, 2005
http://www.pabulletin.com/secure/data/vol35/35-44/index.html
Items of potential interest include --
-DPW - personal care homes - delayed implementation of some regs
http://www.pabulletin.com/secure/data/vol35/35-44/1981.html
- local court rules - Crawford County -
http://www.pabulletin.com/secure/data/vol35/35-44/1977.html
- local court rules - Lehigh County
http://www.pabulletin.com/secure/data/vol35/35-44/1978.html
- local court rules - Somerset County
http://www.pabulletin.com/secure/data/vol35/35-44/1979.html
http://www.pabulletin.com/secure/data/vol35/35-44/1980.html
lean pickings
Donald Marritz
MidPenn Legal Services
http://www.pabulletin.com/secure/data/vol35/35-44/index.html
Items of potential interest include --
-DPW - personal care homes - delayed implementation of some regs
http://www.pabulletin.com/secure/data/vol35/35-44/1981.html
- local court rules - Crawford County -
http://www.pabulletin.com/secure/data/vol35/35-44/1977.html
- local court rules - Lehigh County
http://www.pabulletin.com/secure/data/vol35/35-44/1978.html
- local court rules - Somerset County
http://www.pabulletin.com/secure/data/vol35/35-44/1979.html
http://www.pabulletin.com/secure/data/vol35/35-44/1980.html
lean pickings
Donald Marritz
MidPenn Legal Services
Wednesday, October 26, 2005
disability - med. equivalency - evidence
Oakes v. Barnhart - ED Pa. - October 18, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1276P.pdf
The court rejected the magistrate's recommendation that summary judgment be granted to plaintiff (P) and, rather, granted s/j to defendant (D).
The magistrate believed that the ALJ's equivalency decision was not supported by substantial evidence, because the ALJ failed to secure the testimony of a medical expert before determining that plaintiff's impairment did not equal a listing. The magistrate recommended that the case be remanded for the taking of medical evidence about whether the combination of P's impairments equaled a listed impairment.
The court rejected this reasoning and agreed with SSA that under its "testing modifications" policy set out at 20 CFR 404.906(b)(2), it had "fundamentally altered" its former long-standing policy by allowing an ALJ to use medical expert testimony when "appropriate," rather than requiring the opinion of a medical consultant to determine if a claimant met or equaled a listed impairment. This testing modification policy applies to cases decided in Pennsylvania and nine other states.
The court held that 20 CFR 404.906(b)(1) and (2) established a "single decisionmaker model" and that the ALJ is not required to seek a medical opinion of the issue of equivalence, although s/he may do so where "appropriate," thus going from a "mandatory to discretionary use of medical experts on the issue of equivalency."
The Court upheld the ALJ decision on (non)equivalency and granted s/j to defendant.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1276P.pdf
The court rejected the magistrate's recommendation that summary judgment be granted to plaintiff (P) and, rather, granted s/j to defendant (D).
The magistrate believed that the ALJ's equivalency decision was not supported by substantial evidence, because the ALJ failed to secure the testimony of a medical expert before determining that plaintiff's impairment did not equal a listing. The magistrate recommended that the case be remanded for the taking of medical evidence about whether the combination of P's impairments equaled a listed impairment.
The court rejected this reasoning and agreed with SSA that under its "testing modifications" policy set out at 20 CFR 404.906(b)(2), it had "fundamentally altered" its former long-standing policy by allowing an ALJ to use medical expert testimony when "appropriate," rather than requiring the opinion of a medical consultant to determine if a claimant met or equaled a listed impairment. This testing modification policy applies to cases decided in Pennsylvania and nine other states.
The court held that 20 CFR 404.906(b)(1) and (2) established a "single decisionmaker model" and that the ALJ is not required to seek a medical opinion of the issue of equivalence, although s/he may do so where "appropriate," thus going from a "mandatory to discretionary use of medical experts on the issue of equivalency."
The Court upheld the ALJ decision on (non)equivalency and granted s/j to defendant.
Donald Marritz
MidPenn Legal Services
Tuesday, October 25, 2005
ADA - employment - regarded as having a disability
Eshelman v. Agere Systems, Inc. - ED Pa. - October 19, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1278P.pdf
The court rejected the defendant's post-trial motion to overturn a jury verdict for plaintiff, whom it found that defendant had "regarded as disabled" under the Americans with Disabilities Act. Plaintiff established that she is an "qualified individual with a disability," 42 USC 12112(a), i.e., a person who with or w/o a reasonable accommodation can perform the essential functions of the job that she holds or wants.
A "disability" is defined as either a) physical/mental impairment that substantially limits one or more major life activities, or b) a record of such impairment, or c) being regarded as having such an impairment.
A person is "regarded as having a disability if a) she has an impairment that doesn't limit any major life function, but is treated by the employer as if it does; b) she has an impairment that does limit her, but only as a result of the attitude of others; or c) has no impairment but is treated as having a substantially limiting impairment., 29 CFR 1630.2(1).
Plaintiff prevailed because she showed that she was discriminated against by her employer, who believed that she was unable to work in a particular class or broad range of jobs, as required in the definition of disability.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1278P.pdf
The court rejected the defendant's post-trial motion to overturn a jury verdict for plaintiff, whom it found that defendant had "regarded as disabled" under the Americans with Disabilities Act. Plaintiff established that she is an "qualified individual with a disability," 42 USC 12112(a), i.e., a person who with or w/o a reasonable accommodation can perform the essential functions of the job that she holds or wants.
A "disability" is defined as either a) physical/mental impairment that substantially limits one or more major life activities, or b) a record of such impairment, or c) being regarded as having such an impairment.
A person is "regarded as having a disability if a) she has an impairment that doesn't limit any major life function, but is treated by the employer as if it does; b) she has an impairment that does limit her, but only as a result of the attitude of others; or c) has no impairment but is treated as having a substantially limiting impairment., 29 CFR 1630.2(1).
Plaintiff prevailed because she showed that she was discriminated against by her employer, who believed that she was unable to work in a particular class or broad range of jobs, as required in the definition of disability.
Donald Marritz
MidPenn Legal Services
Monday, October 24, 2005
UC - willful misconduct - decision of another agency is not WM per se
Woods Services v. UCBR - Commonwealth Court - October 2, 4 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/784CD05_10-24-05.pdf
Held, determination of county child/youth services (CYS) agency that an employee of a residential treatment facility "abused" one of his clients "does not constitute willful misconduct per se." The finding is enough to terminate a claimant's employment, which the employer had to do to retain its DPW license to run the facility. Without more, however, the CYS determination does not support a finding of willful misconduct. The employer "failed to present any admissible testimony or evidence, independent of the…. determination, to support a finding of willful misconduct."
The employer did only a cursory investigation. Its proffered testimony was hearsay and rejected. Claimant and an eyewitness testified. The Board resolved all credibility issues in favor of the claimant and his witness. "Our review of the record supports the Board's finding the Employer failed to directly link the CYS finding of child abuse to Claimant for purposes of establishing willful misconduct….."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/784CD05_10-24-05.pdf
Held, determination of county child/youth services (CYS) agency that an employee of a residential treatment facility "abused" one of his clients "does not constitute willful misconduct per se." The finding is enough to terminate a claimant's employment, which the employer had to do to retain its DPW license to run the facility. Without more, however, the CYS determination does not support a finding of willful misconduct. The employer "failed to present any admissible testimony or evidence, independent of the…. determination, to support a finding of willful misconduct."
The employer did only a cursory investigation. Its proffered testimony was hearsay and rejected. Claimant and an eyewitness testified. The Board resolved all credibility issues in favor of the claimant and his witness. "Our review of the record supports the Board's finding the Employer failed to directly link the CYS finding of child abuse to Claimant for purposes of establishing willful misconduct….."
Donald Marritz
MidPenn Legal Services
disability - fibromyalgia - credibility - treating physician
Kurilla v. Barnhart - ED Pa. - October 18, 20
http://www.paed.uscourts.gov/documents/opinions/05D1280P.pdf
Case remanded (sentence four, 42 USC 405(g)) because of ALJ errors on credibility and use of reports of treating physicians.
The ALJ's credibility finding was not supported by substantial evidence or made in accordance with SSR 96-7p, which requires careful consideration of statements about symptoms such as pain, which may suggest a greater impairment than shown by the objective medical evidence alone. This is especially true in the case of fibromyalgia, an impairment which is "mysterious and elusive....because it lacks both a clear etiology and objective diagnostic testing capable of verifying the legitimacy of accompanying symptoms."
The finding and statements of claimant's treatment providers was not given sufficient weight. If they are supported by medical date, they should be accepted absent contradictory medical evidence (citing 3d Cir. precedent). The record about fibromyalgia consisted solely of claimant's complaints and his treating physician's diagnosis that he was disabled. Without any evidence to the contrary than the ALJ's erroneous determination that claimant lacked credibility, the court concluded that the ALJ's rejection of the treating physician's opinion was impermissible, because it was not based on substantial evidence.
The court remanded the case for a new consultative exam about the effects of claimant's fibromyalgia on his RFC and a new RFC assessment by a physician, preferably a rheumatologist who has experience and an expertise in fibromyalgia and its related symptoms.
The court did not simply reverse and grant benefits, because "granting...benefits at Step 4 improperly truncates the sequential evaluation process. Step 5 of the process is necessary to determine whether the claimant could perform a less demanding level of work, such as sedentary work."
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1280P.pdf
Case remanded (sentence four, 42 USC 405(g)) because of ALJ errors on credibility and use of reports of treating physicians.
The ALJ's credibility finding was not supported by substantial evidence or made in accordance with SSR 96-7p, which requires careful consideration of statements about symptoms such as pain, which may suggest a greater impairment than shown by the objective medical evidence alone. This is especially true in the case of fibromyalgia, an impairment which is "mysterious and elusive....because it lacks both a clear etiology and objective diagnostic testing capable of verifying the legitimacy of accompanying symptoms."
The finding and statements of claimant's treatment providers was not given sufficient weight. If they are supported by medical date, they should be accepted absent contradictory medical evidence (citing 3d Cir. precedent). The record about fibromyalgia consisted solely of claimant's complaints and his treating physician's diagnosis that he was disabled. Without any evidence to the contrary than the ALJ's erroneous determination that claimant lacked credibility, the court concluded that the ALJ's rejection of the treating physician's opinion was impermissible, because it was not based on substantial evidence.
The court remanded the case for a new consultative exam about the effects of claimant's fibromyalgia on his RFC and a new RFC assessment by a physician, preferably a rheumatologist who has experience and an expertise in fibromyalgia and its related symptoms.
The court did not simply reverse and grant benefits, because "granting...benefits at Step 4 improperly truncates the sequential evaluation process. Step 5 of the process is necessary to determine whether the claimant could perform a less demanding level of work, such as sedentary work."
Donald Marritz
MidPenn Legal Services
Saturday, October 22, 2005
employment - FMLA - advance notice provision
Solovey v. Wyoming Valley Health Care System-Hospital, MD Pa. - October 13, 2005
http://www.pamd.uscourts.gov/opinions/conaboy/04v2683.pdf
Held, that the employer's (ER) policy of requiring two-week advance notice before being able to take an accrued paid vacation day violates the FMLA. Summary judgment granted to plaintiff-employee.
Plaintiff's father was placed in hospice care in June 2003. On June 23, plaintiff left work in mid-shift after learning that her father's condition had worsened. She spent June 23 and 25 with her father and returned to work on June 26th, but left early when she learned that his condition had become critical. She remained out on June 27 and her father died on June 28.
Plaintiff was paid for June 23 and 24 through a policy of "family ill days." The ER deemed the other time missed as FMLA leave but denied her request to use accrued vacation time to cover her other absences, because she had not complied with the collective bargaining agreement (CBA) requirement that she give a two-week notice before taking a vacation in order that the absence qualify for use of paid vacation time. Plaintiff couldn't give such notice, because she didn't know of her need to use it until June 22nd.
The court agreed with plaintiff that sec. 2612 of the FMLA, 29 USC 2612(d)(2)(A), is an express grant allowing her to use accrued vacation w/o the restriction of a two-week notice policy. The statute also holds that a CBA may grant more rights than the FMLA but may not diminish FMLA rights. To adopt the ER's argument would mean that an employee who had ample accrued pain vacation time to substitute for FMLA leave might have to go w/o pay for up to two weeks in the common situation where a serious health situation requiring leave was not foreseeable. This is the kind of economic hardship the FMLA seeks to avoid. It is appropriate to treat a procedural impediment (two-week notice) to using paid leave differently from a substantive right to use the leave (e.g. has the leave time vested? how much has accrued?). The court also found that the ER had no business reason other than its desire to enforce strict adherence to the procedural aspects of the CBA vacation policy to prohibit an employee from taking paid time off during the two-week notice period, when the need for the FMLA leave was not foreseeable.
Donald Marritz, staff attorney
MidPenn Legal Services
http://www.pamd.uscourts.gov/opinions/conaboy/04v2683.pdf
Held, that the employer's (ER) policy of requiring two-week advance notice before being able to take an accrued paid vacation day violates the FMLA. Summary judgment granted to plaintiff-employee.
Plaintiff's father was placed in hospice care in June 2003. On June 23, plaintiff left work in mid-shift after learning that her father's condition had worsened. She spent June 23 and 25 with her father and returned to work on June 26th, but left early when she learned that his condition had become critical. She remained out on June 27 and her father died on June 28.
Plaintiff was paid for June 23 and 24 through a policy of "family ill days." The ER deemed the other time missed as FMLA leave but denied her request to use accrued vacation time to cover her other absences, because she had not complied with the collective bargaining agreement (CBA) requirement that she give a two-week notice before taking a vacation in order that the absence qualify for use of paid vacation time. Plaintiff couldn't give such notice, because she didn't know of her need to use it until June 22nd.
The court agreed with plaintiff that sec. 2612 of the FMLA, 29 USC 2612(d)(2)(A), is an express grant allowing her to use accrued vacation w/o the restriction of a two-week notice policy. The statute also holds that a CBA may grant more rights than the FMLA but may not diminish FMLA rights. To adopt the ER's argument would mean that an employee who had ample accrued pain vacation time to substitute for FMLA leave might have to go w/o pay for up to two weeks in the common situation where a serious health situation requiring leave was not foreseeable. This is the kind of economic hardship the FMLA seeks to avoid. It is appropriate to treat a procedural impediment (two-week notice) to using paid leave differently from a substantive right to use the leave (e.g. has the leave time vested? how much has accrued?). The court also found that the ER had no business reason other than its desire to enforce strict adherence to the procedural aspects of the CBA vacation policy to prohibit an employee from taking paid time off during the two-week notice period, when the need for the FMLA leave was not foreseeable.
Donald Marritz, staff attorney
MidPenn Legal Services
employment - wrongful discharge - sexual harassment
Weaver v. Harpster -- Pa. Superior Court, October 21, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/s44032_05.pdf
Plaintiff, an at-will employee, held to have stated a common law cause of action for wrongful discharge based on allegations of sexual harassment, even though the employer (ER) did not meet definition of "employer" under the Pa. Human Relations Act (PHRA) because it had fewer than four employees.
The court rejected the notion that there is never an alternative to the PHRA as an avenue for relief for sexual discrimination. It also held that, under the circumstances, there was a public policy exception to the at-will employment doctrine, because state law -- a statute and the state constitution -- established a "clear public policy against sexual discrimination."
Plaintiff had quit her job because of intolerable work conditions. Her request that the PHRC investigate and take action was rejected because the ER did not meet the statutory definition of "employer." Plaintiff then filed a case in the common pleas court claiming, inter alia, wrongful discharge. The ER's preliminary objections were sustained. The lower court held that the state PHRA provided the exclusive remedy for employment discrimination based on sex, and that since the PHRA provided plaintiff no remedy, she had none.
Donald Marritz, staff attorney
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/s44032_05.pdf
Plaintiff, an at-will employee, held to have stated a common law cause of action for wrongful discharge based on allegations of sexual harassment, even though the employer (ER) did not meet definition of "employer" under the Pa. Human Relations Act (PHRA) because it had fewer than four employees.
The court rejected the notion that there is never an alternative to the PHRA as an avenue for relief for sexual discrimination. It also held that, under the circumstances, there was a public policy exception to the at-will employment doctrine, because state law -- a statute and the state constitution -- established a "clear public policy against sexual discrimination."
Plaintiff had quit her job because of intolerable work conditions. Her request that the PHRC investigate and take action was rejected because the ER did not meet the statutory definition of "employer." Plaintiff then filed a case in the common pleas court claiming, inter alia, wrongful discharge. The ER's preliminary objections were sustained. The lower court held that the state PHRA provided the exclusive remedy for employment discrimination based on sex, and that since the PHRA provided plaintiff no remedy, she had none.
Donald Marritz, staff attorney
MidPenn Legal Services
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