Tuesday, September 26, 2006

Retaliation: How to Build and Prove a Case after Burlington Northern.

I am serving as a moderator for an upcoming seminar on the Supreme Court's decision in Burlington Northern. There, the Court established that employees may challenge "materially adverse" job actions as retaliatory under Title VII.

What is a materially adverse job action? According to the Court: "A plaintiff must show that . . . the challenged action . . . might have dissuaded a reasonable worker from making or supporting a charge of discrimination."

I reviewed most of the major decisions issued after Burlington Northern here.

Wednesday, September 13, 2006

Two Decisions on Standards Governing Professional Disciplinary Boards

I wrote here about the extraordinary powers that Maryland licensing boards have when seeking to discipline licensees. Today, the Maryland Court of Special Appeals issued two decisions on how these Boards function.

1. In Maryland Board of Physicians v. Elliot, the Court (reversing the Circuit Court) affirmed a Board's decision to deny a physician's application for a license. The Board denied the license because the physician failed to disclose past disciplinary proceedings and malpractice actions on his application. (The Court reversed the Circuit Court finding it applied an incorrect standard of review).

2. In Maryland Board of Veterinary Medical Examiners v. Hammond, the Court of Special Appeals remanded a disciplinary proceeding because an Agency improperly accepted new evidence after a contested hearing. The evidence was an affidavit given by a witness to the critical event: when a veterinarian choked an assistant to demonstrate how a cat feels when it is choked. I am not making this up. The Court summarized the event as follows:

On July 11, 2000, appellee observed Gallagher inadvertently choking a cat that she was holding during an attempt to draw blood from the cat. Appellee grabbed Gallagher's hand, releasing the cat from her hold. Appellee was angered by the incident. Immediately thereafter, without requesting or obtaining Gallagher's consent, appellee pressed two fingers against Gallagher's trachea to show her how uncomfortable her hold had been the cat. Although appellee did not compromise Gallagher's breathing, he did cause her to feel discomfort and anxiety.

After appellee released Gallagher, she left the treatment area. Gallagher was shaken, stunned, and scared by appellee's actions. Shortly thereafter, and as a result of the incident with appellee, Gallagher resigned her position at the [veterinary hospital].

Friday, September 08, 2006

Fourth Circuit Finds Disability Plan Abused Discretion By Failing to Credit Plaintiff's Doctor.

Individuals do win against insurance companies that deny disability claims. Donovan v. Eaton Corporation is a good example. A disability plan's own doctors denied Ms. Donovan's claim in part because her doctor changed his opinion during the course of treatment. But this doctor had a reasoned explanation for changing his opinion -- namely he was able to review additional evidence demonstrating the plaintiff's severe back pain. According to the Court:

The district court found that the Plan's wholesale disregard of
Dr. Welshofer's affidavit in favor of his earlier April 2004
statement, which was based on incomplete information, was unreasonable.

We agree.