Archive for September, 2009

The Nevada Clean Indoor Air Act, a voter-approved ban passed in 2006, prohibits smoking in schools and workplaces, but makes exceptions for bars, casinos and strip clubs. The Nevada Tavern Owners Association, Terrible’s Hotel and Casino, and Three Angry Wives Pub challenged the criminal portion of the Act, claiming it was vague to be enforced. The trial court agreed, but noted the civil portion was not impermissibly vague and could be severed from the criminal portion. The Nevada Attorney General appealed, but the Nevada Supreme Court agreed with the trial court. Specifically, the court noted that the Act did not instruct bar owners on whether they should stop smokers from lighting up, ask them to leave, or call the police. For the full story, click here.


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Security screeners for the Transportation Security Administration (“TSA”) are paid by the hour and receive a premium rate for working undesirable night shifts. TSA pays them one-and-half times their base pay for overtime hours, regardless of whether they worked regular or premium shifts. Security screeners filed suit against TSA in the Court of Federal Claims, claiming these practices violated the Fair Labor Standards Act. TSA argued that a section of the Aviation and Transportation Security Act gives it complete discretion in setting pay. The court agreed and granted TSA’s motion to dismiss. For the full story, click here.

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Explanation of Torts by Rincker Law

A fellow legal blogger, Cari Rincker, at Agriculture Law and Policy Blog, outlines the different types of torts available under common law.  While some of the explanation relates to agricultural law, the article is a very good primer of tort law.

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According to Mary Lou Mikula, Allegheny County, Pennsylvania, paid her $7,000 less than a male counterpart. After an investigation, the county determined in 2006 that her claims were unfounded and that her “current title and rate of pay are fair when compared with similar jobs.” Mikula disagreed and sued the county under the Equal Pay Act and Title VII of the Civil Rights Act. The trial court dismissed her claims, however, because she failed to file a complaint with the EEOC within the 300-day window. She discovered the pay disparity in 2004, but didn’t file her EEOC charge until 2007. On appeal, the Third Circuit acknowledged the passage of the Lilly Ledbetter Act, but maintained that Mikula’s claims should be dismissed because the denial of a raise did not qualify as a “discriminatory compensation decision.” The Third Circuit then agreed to rehear the case and reversed its previous holding:

Despite our earlier decision, we now hold that the failure to answer a request for a raise qualifies as a compensation decision because the result is the same as if the request had been explicitly denied.

The case was reversed and remanded for further proceedings. For the full story, click here.

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Kerry Christensen drove his car through a grocery store parking lot and hit pedestrian John Boyle.  When Boyle sued Christensen, Christensen admitted liability.  A jury trial was held to determine damages.  During closing argument, Christensen’s counsel stated the following: 

How many days has it been since the accident? How many days for the rest of his life? And how much per day is that worth? That’s what’s been done here. That’s how we get verdicts like in the McDonald’s case with the cup of coffee.

Boyle’s lawyer objected to the reference to the landmark 1994 verdict in Liebeck v. McDonald’s Restaurants, in which a New Mexico jury awarded $2.86 million to a woman who burned herself with hot coffee.  The judge overruled the objection, and Boyle won an award of $62,500.  On appeal, the Utah Court of Appeals held that the jury was not unduly influenced by the “cultural reference” to the famously large jury award against McDonald’s over a spilled cup of coffee, noting that it was “shorthand to make the point that, in Christensen’s opinion, Mr. Boyle’s damages methodology was likely to render this jury’s verdict excessive.”  For the full story, click here.

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Honey Torretti, a diabetic women residing in Pennsylvania, complained of pain and discomfort during a routine pregnancy checkup with her doctor, who sent her to a hospital for additional monitoring of her high-risk pregnancy. There, Torretti gave birth to her second child via emergency caesarean section.  She later sued Main Line Hospitals and several doctors under the Emergency Medical Treatment and Active Labor Act (“EMTALA”) after her son was born with “traumatic brain injuries.” EMTALA was enacted in the 1980s to stop emergency rooms from, among other things, refusing care to patients and transferring them to other hospitals without stabilizing them first, or “patient dumping.”

The trial court granted Main Line Hospitals summary judgment, ruling that Torretti had not presented sufficient evidence that her doctor knew a medical emergency was imminent when he sent her to another hospital for monitoring. On appeal, Torretti argued that, because she is a diabetic and had a high-risk pregnancy, each visit to her doctor would qualify as “presentment of an emergency medical condition to trigger EMTALA coverage.” However, the Third Circuit Court of Appeals noted that such a trigger would broaden the scope of EMTALA beyond Congress’s intent, stating the following:

We believe it is clear that Congress did not intend EMTALA to cover these individuals every time they come to the hospital for their [routinely scheduled] appointments, even though they suffer from serious medical conditions that risk becoming emergent.

The court also noted that EMTALA was “not a federal malpractice statute,” although Torretti may be able seek recovery in some other form.

For the full story, click here.

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Humphries v. Pulaski County Special School District, Nos. 08-2458/2594.

Background Information

Since 1982, the Pulaski County Special School District (the “District”) has been involved in desegregation litigation in federal court.  In 1990, the District reached a settlement agreement, and the Office of Desegregation Management (“ODM”) was created to assist the trial court in supervising the District.  In 2000, a new plan, Plan 2000, was submitted and approved by the trial court.  Plan 2000 required to (1) recruit applicant for administrative positions in a manner designed to develop a racially diverse pool of applicants and (2) assign teachers and other staff in a manner that avoids racial identification of schools. The ODM continues to monitor the District for compliance with Plan 2000.


Donna Humphries, a white female with a doctorate degree in elementary education, has been employed with the District since 1984 and has worked as an elementary school counselor since 1989. Since 2001, Humphries has unsuccessfully applied for every elementary school assistant principal opening with the District. After complying with Equal Employment Opportunity Commission requirements, Humphries filed suit against the District, asserting claims of racial discrimination under Title VII, § 1981, and § 1983.

Both parties filed motions for summary judgment.  Humphries alleged that the District undisputedly employed (1) a policy of using biracial interview committees for administrative personnel, (2) a preference to employ and advance blacks, (3) racial quotas and goals for hiring black administrators, (4) practice of hiring assistant principals so that at least one assistant principal is a different race than the school’s principals.  She further alleged that statistical evidence established that the District favors black applicant’s in hiring administrative personnel. The District acknowledged its affirmative action policy included the first three goals noted above, but disputed specifically hiring assistant principals based on the race of the principal. The trial court granted the District’s motion, noting that Humphries failed to present any evidence that the affirmative action plan played any role in the District’s decisions not to promote her.


On appeal, the Eighth Circuit Court of Appeals joined the Fourth, Fifth, Ninth, Tenth, and Eleventh Circuits in holding the following:

[E]vidence that an employer followed an affirmative action plan in taking a challenged adverse employment action may constitute direct evidence of unlawful discrimination. If the employer defends by asserting that it acted pursuant to a valid affirmative action plan, the question then becomes whether the affirmative action plan is valid under Title VII and the Equal Protection Clause.

The court then noted that, because the District had never denied the existence of its affirmative action policies, Humphries must show that (1) the District acted in accordance with those policies in failing to promote her and (2) the District’s policies are invalid. To be valid, an affirmative action policy must be (a) remedial and (b) narrowly tailored to meet the goal of remedying past discrimination.  A court order is evidence of such a policy being remedial in nature; however, it cannot be to maintain racial quotas:

But a policy may not “unnecessarily trammel” the rights of non-minorities, and it must be “intended to attain a balance, not to maintain one.”

Because the trial court did not adequately address these issues in its order, the Eighth Circuit reversed and remanded the case back to the trial court.

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