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    John M. Stone

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    EMPLOYMENT DISCRIMINATION: Causation in an Equal Pay Act Retaliation Case

    Posted by John M. Stone on Tue, Jan 3, 2017 @ 15:01 PM

    The Lawletter Vol 41 No 11

    John Stone, Senior Attorney, National Legal Research Group

         As with most forms of employment discrimination, an employer's retaliation against an employee for asserting discrimination under the Equal Pay Act ("EPA") gives rise to an additional and distinct cause of action for the employee. To state a claim for retaliation under the EPA (as incorporated into the Fair Labor Standards Act), a plaintiff must plausibly allege (1) engagement in protected activity, (2) materially adverse action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination, and (3) causality.

         A showing of the causality element requires either (1) that the retaliation closely followed the protected activity, or (2) that the plaintiff put forth a sufficient explanation for the delay between the protected activity and the alleged retaliation. Where the time between the protected conduct and the alleged retaliation is too great to establish causation based solely on temporal proximity, a plaintiff must present other relevant evidence to establish causation, such as continuing retaliatory conduct and animus in the intervening period. In addition, when there may be valid reasons why an adverse employment action was not taken immediately, the absence of immediacy between the cause and the effect does not disprove causation in a retaliation case.

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    Topics: employment discrimination, Equal Pay Act, protected activity, temporal proximity in time

    PUBLIC EMPLOYMENT: "A Law" Does Not Include an Agency Regulation

    Posted by John M. Stone on Tue, Jul 26, 2016 @ 12:07 PM

    The Lawletter Vol 41 No 7

    John Stone, Senior Attorney, National Legal Research Group

          It is commonly understood that substantive agency regulations that are promulgated pursuant to statutory authority typically have the "force and effect of law." See Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015). That does not mean, however, that for all purposes and in all contexts, a law is the same as a statute, and vice versa. The point is illustrated by a recent decision by the Court of Appeals for the Federal Circuit, where the presence of a one-letter word, "a," was a part of the court's reasoning. Rainey v. Merit Sys. Prot. Bd., No. 2015-3234, 2016 WL 3165617 (Fed. Cir. June 7, 2016).

         A Foreign Affairs Officer in the Department of State was relieved of his duties as a contracting officer representative. The officer filed a complaint with the Office of Special Counsel, alleging that his duties had been taken away because he had refused his supervisor's order to tell a contractor to rehire a terminated subcontractor. He argued that his refusal was based on his view that carrying out the order would have required him to violate a federal regulation, by improperly interfering with personnel decisions of a prime contractor and requiring the prime contractor to operate in conflict with the terms of the contract.

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    Topics: public employment, John M Stone, The Lawletter Vol 41 No 7, Department of Homeland Security v. MacLean, agency regulations, right-to-disobey provision

    CIVIL RIGHTS: Help America Vote Act Creates Individual Right Enforceable Through § 1983

    Posted by John M. Stone on Fri, Mar 11, 2016 @ 11:03 AM

    The Lawletter Vol 41, No 3

    John Stone, Senior Attorney, National Legal Research Group

         A federal civil rights statute, 42 U.S.C. § 1983, is most closely associated with providing a remedy for individuals whose federal constitutional rights have been violated by persons acting under color of state law. However, although they comprise a relatively small subset of § 1983 cases, claims under § 1983 can, under certain circumstances, be based upon violations of federal rights derived from federal statutes, not from the U.S. Constitution.

         In a recent example of such a claim, a voter in Puerto Rico brought an action challenging a Puerto Rico statute that struck her and more than 300,000 other voters from a voter-registration roll because they did not vote in the prior general election. The U.S. District Court for the District of Puerto Rico issued injunctive and declaratory relief barring the Puerto Rico State Elections Commission ("SEC") from removing otherwise eligible voters from an active election registry unless the requirements of the federal Help America Vote Act ("HAVA") were met. Colón-Marrero v. Conty-Perez, No. CIV. 12-1749CCC, 2015 WL 3508142 (D.P.R. signed June 4, 2015). The President of the SEC appealed, and the First Circuit Court of Appeals affirmed the lower court. Colón-Marrero v. Velez, No. 15-1356, 2016 WL 386428 (1st Cir. Feb. 1, 2016).

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    Topics: civil rights, § 1983, John M Stone, Help America Vote Act, Colon-Marrero v. Conty-Perez, removal from active election registry barred

    CONSTITUTIONAL LAW: Involuntary Commitment Scheme Violates Due Process

    Posted by John M. Stone on Tue, Dec 1, 2015 @ 17:12 PM

    The Lawletter Vol 40 No 11

    John Stone—Senior Attorney, National Legal Research Group

         A state must release a person who is involuntarily committed if the grounds for his commitment no longer exist. See O'Connor v. Donaldson, 422 U.S. 563, 574-75 (1975); cf. Jackson v. Indiana, 406 U.S. 715, 738 (1972) ("[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed."). If the requirement to release the committed when they deserve to be let out is to have any meaning, a state must also periodically review whether the grounds for commitment are still met. Otherwise, a state could circumvent the timely release requirement by simply refusing to ever consider the continued propriety of commitment. To effectuate that requirement, then, the state must undertake some form of periodic review. See Parham v. J.R., 442 U.S. 584, 607 (1979).

         Periodic review of continuing involuntary commitments need not consist of an adversarial proceeding involving a judge or even an administrator. Nonetheless, the person charged with periodically reviewing continuing involuntary commitments must be required to consider the propriety of ongoing commitment. That person must also be authorized to order a release if the criteria for commitment are no longer met. See id. ("It is necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission.").

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    Topics: constitutional law, John M Stone, involuntary commitment

    CONSTITUTIONAL LAW: Denial of Medical Care for an Inmate Was Cruel and Unusual Punishment

    Posted by John M. Stone on Fri, Aug 28, 2015 @ 13:08 PM

    The Lawletter Vol 40 No 7

    John Stone, Senior Attorney, National Legal Research Group

         It is no easy task for a prisoner to succeed on a claim that he was denied medical care in circumstances that violated his federal constitutional rights. Such a cause of action is not simply a prisoner's version of a medical malpractice case but, rather, requires a more demanding showing by the plaintiff. Mere negligence in diagnosis or treatment will not suffice. To state an Eighth Amendment claim for cruel and unusual punishment based on deficient medical care, a prisoner must allege an objectively serious medical condition and an official's deliberate indifference to that condition. Estelle v. Gamble, 429 U.S. 97 (1976). "Deliberate indifference" to a prisoner's serious medical needs occurs when a defendant realizes that a substantial risk of serious harm to a prisoner exists but then disregards that risk.

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    Topics: constitutional law, John M Stone, Eighth Amendment, The Lawletter Vol 40 No 7, medical care, inmate

    CONSTITUTIONAL LAW: Fighting Words Are Not Protected Speech

    Posted by John M. Stone on Tue, May 12, 2015 @ 12:05 PM

    The Lawletter Vol 40 No 3

    John Stone, Senior Attorney, National Legal Research Group

         When there is a confrontational encounter between a citizen and a law enforcement officer, it is not uncommon for a charge of disorderly conduct against the citizen to result, sometimes even though there may be no other charge that emanates from the initial reason for the interaction. Some maintain that disorderly conduct charges are too readily leveled against citizens who may be doing no more than questioning, perhaps angrily, why a police officer is taking particular actions. According to that view, a disorderly conduct charge can become a catchall offense too often used to punish someone whose remarks or conduct simply annoy the police officer. On the other hand, there certainly are instances in which the way a citizen reacts to the police crosses the line from protected speech to criminal conduct constituting disorderly conduct. One such example is "fighting words" directed at a police officer.

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    Topics: constitutional law, protected speech, disorderly conduct

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