Friday, December 14, 2007

There is lots going on at the end of the week, and I will try to touch on some of the major developments.

Supreme Court Update

Yesterday, a petition for cert. was filed in Murphy v. IRS, 493 F.3d 170 (D.C. Cir. 2007)(rehearing denied en banc, 2007 U.S. App. LEXIS 22173 (D.C. Cir., Sept. 14, 2007)). This is the tax case that attracted so much attention this year. Initially, the D.C. Circuit held that it was unconstitutional to tax compensatory damages for non-physical injuries, holding that it was not taxable income. This extraordinary decision was challenged on petition for rehearing, and the panel that originally issued the decision did a complete flip, and held that such damages are taxable. Ms. Murphy is represented by David K. Colapinto, General Counsel of the National Whistleblower Center. You can go to their website and click on the petition filed yesterday with the Court. See

Maryland Wage Payment & Collection Act

Yesterday, the Maryland Court of Appeals has granted the petition for cert. in Hoffeld v. Shepherd Electric, 2007 Md. App. LEXIS 127 (Md. Ct. Spec. App., Sept. 24, 2007)(case No. 106, Sept. Term 2007 in Maryland Court of Appeals). The Court will now review the decision of the Maryland Court of Special Appeals which rejected the claim of a salesman who contended that he had been denied commissions in violation of the Maryland Wage Payment and Collection Law. The salesman argued that he was due commissions on sales that he had made before his termination. The court distinguished the fact situation in Hoffeld from that in Medex v. McCabe, 811 A.2d 297 (Md. 2002). The court found that in McCabe the employee had done all the work necessary to earn the commission, and had been denied the commission solely because he was not employed on the scheduled payment date. In distinguishing that case, the court stated: “Unlike Medex, commissions in this case were not linked to the arbitrary factor of employment, but to a reasonable job requirement.” In the instant case, while the salesman had made the sale prior to his departure, the salesman also was responsible for handling change orders and resolving problems for clients before and after orders shipped. Under the company’s unwritten policy, commissions were not considered to have been “earned” until the shipment/invoice date. The company explained that its policy was based on the fact that sometimes orders were modified before shipment, and clients were permitted to cancel orders before shipment.

Ad Damnum Clauses In Maryland

Last Friday, December 7, 2007, the Maryland Court of Special Appeals in Hoang v. Hewitt Avenue Associates, LLC, 2007 Md. App. LEXIS 152 (Md. Ct. Spec. App., Dec. 7, 2007)
(CSA #1048, Sept. Term 2005), held that a damage award of $1.89 million must be reduced to $100,000 because Plaintiff's ad damnum clause stated that he sought damages "in excess of" $100,000. Rule 2-305 states that "a demand for a money judgment shall include the amount sought." The Court held that the ad damnum clause in this case did not satisfy the plain language of the rule.

We will discuss the implications of this case at length next week.

D.C. Federal Court Orders Defendant To Restore Backup Tapes

In Disability Rights Council of Greater Washington v. Washington Metro. Area Transit Auth., 242 F.R.D. 139, 2007 U.S. Dist. LEXIS 39605, 2007 WL 1585452 (D.D.C. June 1, 2007), an ADA case, Magistrate Judge Facciola granted Plaintiff's motion, and ordered the Defendant to restore and search backup tapes for discoverable information. The Defendant's email system was programmed to automatically delete all emails after 60 days. Subsequently to the filing of the lawsuit, the Defendant's failed to take steps to prevent the deletions. In response to Plaintiff's motion, WMATA argued that for it to do so would impose an undue burden and expense.

Magistrate Judge Facciola, in rejecting that argument, stated: "It reminds me too much of Leo Kostens' definition of chutzpah: 'that quality enshrined in a man who, having killed his mother and his father, throws himself on the mercy of the court because he is an orphan.'" (footnote omitted). The Court granted Plaintiff's motion and held that while the amendments to the Rules "initially relieve a party from producing electronically stored information that is not reasonably accessible because of undue burden and cost, I am anything but certain that I should permit a party who has failed to preserve accessible information without cause to then complain about the inaccessibility of the only electronically stored information that remains."

Chemical Sensitivity and The Americans With Disabilities Act

McBride v. City of Detroit, 2007 U.S. Dist. LEXIS 87391 (E.D. Mich., Nov. 28, 2007). In this case, Judge Zatkoff denied Defendant's motion to dismiss an ADA case where the Plaintiff claimed that she suffered from chemical sensitivity to perfume, body lotion, aftershave, cologne, deodorant and hairspray, among others. She claimed that exposure caused headaches, nausea, chest tightness, cough and rhinitis (to wit, a runny nose). She alleged that chemical sensitivity is a physiological disorder and is thus a physical impairment. She alleged that the chemical sensitivity substantially limited her major life activities of breathing, engaging in social activities and reproduction. She requested, as a reasonable accommodation, that the Defendant, City of Detroit, implement and enforce a " no scent policy", prohibiting the wearing of scents or perfumes in the workplace.

One can only imagine what the offices at City Hall in Detroit would smell like if Plaintiff were to win this case and force this accommodation upon the City.

Query: Does this case make any sense?

In contrast, District Judge Motz, back in 2000 in Comber v. Prologue, Inc., 2000 U.S. Dist. LEXIS 16331 (D.Md., Sept. 28, 2000), held that Plaintiff's evidence in an ADA case of her "multiple chemical sensitivity syndrome" was inadmissible, because it did not meet the Daubert standard for the admissibility of scientific evidence, relying upon holdings of the Fourth, Seventh and Tenth Circuits that evidence of MCSS was inadmissible. Apparently, the City of Detroit, did not call these authorities to the attention of Judge Zatkoff.

Federal Legislative Update

Trade and Globalization Assistance Act (H.R. 3920)

The House of Representatives on October 31, 2007 passed H.R. 3920 by a vote of 264-157. The text of the bill can be found at The proposed legislation amends the WARN Act to require 90 days of notice to employees, instead of the current 60 days, of impending job layoffs due to plant closings and mass layoffs as a result of globalization. The bill also provides to impacted employees more time to receive continuation of their health care coverage under COBRA.


Anonymous said...

"One can only imagine what the offices at City Hall in Detroit would smell like if Plaintiff were to win this case and force this accommodation upon the City."

P' winning this case doesn't mean she would have to be accommodated as requested. What is required is an "interactive process" to accommodate her. They could probably start with combo hepa/ionizer/uv filters or a less severe policy change.

I'm interested in how you would view this article in light of the recent ADAA of 2008 and its explicit inclusion of this type of impairment.

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