No ping pong and no dope

We may be entering the summer vacation period (although the Law Court I am told is having a July argument session), but I’ve been busy as a beaver. But with time now to breathe, here are a couple of recent decisions of note interpreting Maine law, one from the First Circuit and the other from the Law Court:

Ping pong-less review

Kudos to Pierce Atwood’s Jim Erwin in the affirmance of summary judgment for an employer in a whistleblower retaliation case. Theriault v. Genesis Healthcare LLC, No. 17-1717. See 26 M.R.S. § 833.

On appeal, the plaintiff argued that Judge Singal had granted summary judgment in error because she took the position that under Maine law, the court should look only at the plaintiff’s evidence when reviewing a summary judgment motion. The defendant said no, the Court looks at all the evidence. We all know the McDonnell Douglas burden shifting ping pong approach to employment discrimination cases. In Brady v. Cumberland County, 2015 ME 143, the Law Court said boot that, and telescoped the inquiry into a combined review of all the evidence. This means that the plaintiff must present evidence of causation up front, not wait for the defendant to introduce evidence of a legitimate reason for termination, and must overcome that evidence to survive a summary judgment motion. Applying that combined approach, the Court of Appeals affirmed Judge Singal’s ruling on the merits.

The interesting question whether the Law Court’s combined approach should be deemed procedural or substantive for the purpose of determining whether it applies in federal court in a diversity action like this one was left for another day, because the plaintiff had waived the argument – both sides had posited and applied the Maine approach.

The First Circuit also noted that there was a “puzzling” footnote in a post-Brady decision, Carnicella v. Mercy Hospital, 2017 ME 161, n.2, which references the “first of three steps” in the analytic framework. Because Carcinella was not a whistleblower retailiation case, and the footnote was dictum, the Court of Appeals stated it would “not attempt to decipher” its meaning.

So stay tuned, but it does appear at this point, both in federal and state court, the court will look at all the evidence at the summary judgment stage.

No comp for cannabis

This decision came out yesterday and has been in the news: an employer paying workers compensation need not pay for its employee’s medical marijuana. Bourgoin v. Twin Rivers Paper Co., LLC, 2018 ME 77. Justice Hjelm wrote the majority opinion, with dissents form Justices Alexander and Jabar.

In 1989, the worker was placed on total disability. In 2012, he obtained a medical marijuana certification for pain, and filed a petition with the Workers’ Compensation Board asking it to order the employer to pay for the cost of the marijuana. The hearing officer granted the petition; the appellate division affirmed; the Law Court reversed.

The problem, the Court said, is that the Board’s order required the employer to engage in activity that under federal law could be deemed aiding and abetting illegal activity under the federal Controlled Substances Act, 21 U.S.C. §§ 801-904 (CSA). To the extent the Maine medical marijuana law could be a basis for the Board to order the employer to facilitate the workers’ access to marijuana, the Court said the state law was preempted under conflict preemption.

In a joint dissent (no pun intended), Justice Jabar expressed the view that the CSA did not preempt the state law, based on an interpretation of the CSA that would not find the employer’s conduct a direct conflict. Under the majority’s view, paying for the marijuana could be deemed aiding and abetting; under the dissent’s, only physical distribution itself.

In a short separate dissent, Justice Alexander additionally expressed the view that it was stupid not to let the worker get reimbursed for his marijuana, potentially forcing him to return to the use of opioids and other drugs that previously didn’t work for him and could harm him. That the federal authorities might go after the employer was too speculative in his view to disturb the Board’s decision.

The juxtaposition of these two decisions provides an interesting contrast in the role of state law. In the state court, the Law Court, found the state law preempted by federal law. In contrast, in the federal court, the federal district court applied state law.

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