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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

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Entries in ADA (38)


Employer Successfully Parses the Haze in the Land of Enchantment

Recently, New Mexico employer Presbyterian Healthcare Services successfully defended a claim of disability discrimination after terminating a Physician's Assistant who tested positive for medical marijuana. The case, Smith v. Presbyterian Healthcare Services, involved a Physician Assistant, Donna Smith, who through a staffing agency, Advantage Locum, applied for and was hired for a position on February 17, 2014. After obtaining the results of a drug test, however, Presbyterian Healthcare Services discovered that Ms. Smith had tested positive for marijuana. Ms. Smith responded that her use of marijuana was pursuant to New Mexico'a Lynn and Erin Compassionate Use Act, 26-28-1 NMSA, and was to assist with her Post-Traumatic Stress Disorder. Presbyterian, however, terminated her employment on February 21, 2014.

As a result, in June 2014, Ms. Smith filed suit in state court alleging that she was discriminatorily terminated and Presbyterian had improperly failed to accommodate her serious medical condition in violation of New Mexico's Human Rights Act. After discovery, Presbyterian filed a Motion for Summary Judgment arguing that it is a federal contractor which accepts Medicare/Medicaid reimbursements and thus must comply with the Federal Drug-Free Workplace Act of 1988. Accordingly, in order to receive these government contracts (for Medicare/Medicaid reimbursement), the Company had to provide a drug-free workplace--and thus the Company's termination of Ms. Smith was not discriminatory. The Court agreed, granting summary judgment in the Company's favor.

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Jury Finds "Food with Integrity" Terminated with Integrity Despite EEOC’s Claims to the Contrary: Jury Verdict Returned in Chipotle’s Favor after ADA Battle

On Monday, Judge F. Dennis Saylor IV of the District of Massachusetts entered judgment in favor of Chipotle Mexican Grill, Inc., after a five-day trial concluded on August 7, with a jury finding in favor of Chipotle Mexican Grill on a disability discrimination claim brought by former employee Amanda Connell. Ms. Connell was fired from the Chipotle Franklin, Massachusetts restaurant after providing poor customer service. Ms. Connell, however, later filed a Complaint arguing that the restaurant fired her the day after management noticed her catheter for cystic fibrosis treatment, and thus, her termination was in violation of the ADA.

In March, the District Court denied Chipotle’s Motion for Summary Judgment largely based on Chipotle’s failure to preserve video evidence of Ms. Connell being rude to customers. As a result, the Court noted that for Plaintiff to succeed, she would have to show:

  1. The video of her being rude to customers either did not exist or clearly did not show her being rude to a customer;
  2. Management lied about the existence or contents of the video;
  3. Management did so in order to create a pretext to terminate Ms. Connell; and
  4. Management terminated Ms. Connell not because of the customer complaint, but because of management’s knowledge about the existences of a recent medical treatment Connell had undergone as part of her cystic fibrosis treatment.

The jury verdict returned on Friday shows that Ms. Connell was unable to prove the following to a jury to support her claim, but further emphasizes the importance of preservation of all relevant evidence to support a termination that could turn litigious. The EEOC has already noted that they plan to appeal the jury verdict based on the Court’s removal of a jury from the panel.


Second Circuit Stops Runaway Train of Claims Potentially Falling Within the Lilly Ledbetter Fair Pay Act

In an uncertain world, statutes of limitations provide some certainty and security for employers potentially facing employment related claims. However, the Lilly Ledbetter Fair Pay Act of 2009 (the “Fair Pay Act”) extends the statute of limitations for certain claims. Under the Fair Pay Act, the statute of limitations for filing a claim for discrimination in compensation starts anew each time an employee receives a paycheck affected by discrimination. For employment discrimination plaintiffs whose claims otherwise fall outside of the statute of limitations, the Fair Pay Act can be a powerful tool to resuscitate otherwise time-barred claims. On Wednesday, however, the Second Circuit issued a decision limiting the types of claims the Fair Pay Act applies to.

In Davis v. Bombardier Transportation Holdings, Inc., the plaintiff worked for a company that operates AirTrain, a computer driven train that transports passengers between major hubs in New York City and John F. Kennedy International Airport. After returning from disability related leave, the plaintiff failed a physical and eye exam which disqualified her from returning to her former position. Because she could not return to her former position, Bombardier demoted the plaintiff to a different position with lower pay.

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Is Honesty the Best Policy? EEOC Alleges Honesty Policy Violates ADA

Our parents consistently told us honesty was the best policy. Being honest with the people you interact with, whether, socially, romantically, or professionally, often creates the healthiest relationships in the long run; the EEOC may, however, disagree with me.

The EEOC recently sued Aurora Health Care Inc. in the Eastern District of Wisconsin arguing in part that an “honesty policy” which barred employees and applicants from providing false or misleading information, served as an illegal qualification standard under the Americans with Disabilities Act. In its recent decision denying the employer’s motion for summary judgment in the action, the court held the defendant had failed to show that the honesty policy was both job-related and consistent with business necessity as it was applied to workers with disabilities. The court noted that the question of whether honesty was an “essential function” of the hospice care coordinator position the plaintiff applied for was the key to resolving the claim.

While it’s difficult for me to think of any position where honesty would not be an essential function of the position, it may just be that I have high standards. At this time, we recommend that employers maintain any “honesty policies” that are currently in place, but we will keep readers updated as this case progresses.


Bummer Dude: Colorado Supreme Court Upholds Firing for Off-Duty Weed Use

In a decision widely anticipated by both employment lawyers and Cheetos enthusiasts alike, on June 15th, the Colorado Supreme Court ruled that in spite of the state’s law making it legal to use marijuana, employers can fire workers who partake when they’re off the clock.

Brandon Coats brought the case against Dish Network. Coats became quadriplegic in a car accident and used marijuana to control leg spasms. He had a medical marijuana card and consumed pot off-duty. Dish fired him in 2010 after failing a random drug test. Coats then challenged Dish’s zero-tolerance drug policy, claiming that his use was legal under state law.

Both the trial court and the Colorado Court of Appeals previously upheld the firing. In a 6-0 decision, the Colorado Supreme Court agreed, ruling that the use of medical marijuana in compliance with Colorado's Medical Marijuana Amendment was not “lawful” under the state’s Lawful Off-Duty Activities Statute, because that term refers to refers to activities lawful under both state and federal law. Implicitly, the decision also recognizes the continuing right of employers to set their own drug policies, obviously subject to existing state and federal law.


Perceived Disability

Last December, the Connecticut Supreme Court held in Desrosiers v. Diageo North America, Inc., 314 Conn.  773 (2014), that the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. §46a-51 et seq., prohibits employers from discriminating against individuals whom they perceive to be physically disabled regardless of whether the individual has an actual physical disability as defined under the Act. Despite the Court’s apparent expansion of the state’s anti-discrimination laws, the Appellate Court’s recent decision in Eaddy v. City of Bridgeport, 156 Conn. App. 597 (2015), suggests that it may not be easy for plaintiffs to succeed on “perceived” disability claims. 

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