Mealey's Elder Law

  • June 23, 2017

    Split High Court: District Court Must Review ‘Mixed’ Civil Service Case

    WASHINGTON, D.C. — Review of a dismissal of a mixed case by the Merit Systems Protection Board (MSPB) where, like the present case, an employee complains of adverse action prompted at least in part by the employing agency’s violation of federal anti-discrimination laws must occur in the district court, rather than the Federal Circuit U.S. Court of Appeals, a U.S. Supreme Court majority ruled June 23 (Anthony W. Perry v. Merit Systems Protection Board, No. 16-399, U.S. Sup.).

  • June 22, 2017

    Arizona Supreme Court Abolishes Test For Abuse Claims

    PHOENIX — The Arizona Supreme Court on June 20 unanimously found that a trial court erred in granting a doctor and a nursing home summary judgment in a suit where a woman allegedly died because of their abuse and negligence and abolished the four-part test for determining whether a claim under the state Adult Protective Services Act (APSA) is sustainable (Marika Delgado v. Manor Care of Tucson AZ LLC, et al., No. CV-16-0178-PR, Ariz. Sup., 2017 Ariz. LEXIS 167).

  • June 16, 2017

    Illinois Federal Judge: Woman’s ADEA Claims Not Adverse Employment Actions

    CHICAGO — An Illinois federal judge on June 15 granted the Illinois Department of Human Services’ motion for summary judgment in an Age Discrimination in Employment Act (ADEA) lawsuit, saying the plaintiff failed to show that any of the claims she alleged constituted a materially adverse employment action (Diannah Evans v. Illinois Department of Human Services, No. 15-cv-4098, N.D. Ill., Eastern Div., 2017 U.S. Dist. LEXIS 91908).

  • June 15, 2017

    AARP Asks High Court To Review ‘Errant’ Ruling That ADEA Bars Damages

    WASHINGTON, D.C. — AARP and the AARP Foundation on June 15 filed an amicus curiae brief with the U.S. Supreme Court asking the high court to review an “errant” Fifth Circuit U.S. Court of Appeals holding that no damages beyond lost wages are available in retaliation cases under the Age Discrimination in Employment Act (ADEA), saying the appeals panel’s reasoning runs counter to the underlying logic of many of the high court’s opinions (Susan L. Vaughan v. Anderson Regional Medical Center, No. 16-1386, U.S. Sup.).

  • June 15, 2017

    City Colleges Of Chicago Settles EEOC Age Bias Lawsuit For $60,000

    CHICAGO — City Colleges of Chicago will pay $60,000 to settle a federal age discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission on behalf of a 66-year-old adjunct professor who was passed over for a full-time faculty position because of her age, the EEOC announced in a June 14 press release (Equal Employment Opportunity Commission v. City Colleges of Chicago d/b/a Harold Washington College, No. 1:14-cv-5864, N.D. Ill.).

  • June 15, 2017

    Former School Employee’s Age Discrimination Suit Survives Judgment Motion

    ORLANDO, Fla. — A woman who alleges that her age was the motivating factor in a decision to not renew her employment contract has established a prima facie case of age discrimination, a Florida federal judge ruled June 12, finding that genuine issues of fact precluded granting her former employer’s motion for summary judgment (Carmel Saxon v. Seminole County Public Schools, No. 6:15-cv-01854, M.D. Fla., 2017 U.S. Dist. LEXIS 89663).

  • June 14, 2017

    North Carolina Appeals Panel: Note On Will Was Not Valid Holographic Codicil

    RALEIGH, N.C. — A North Carolina appellate panel on June 6 said a trial court erred in granting summary judgment in favor of the propounder of a will because although the decedent’s typewritten will met the requirements for a properly attested self-proving will, the record established that as a matter of law, the handwritten notation on the decedent’s will was not a valid holographic codicil where it would have been an expression of the decedent’s intention to make a future change to his will (In the Matter of the Will of James Paul Allen, No. COA16-1209, N.C. App., 2017 N.C. App. LEXIS 436).

  • June 14, 2017

    California Magistrate: Man’s Elder Abuse Claim Fails, But He Can Amend Complaint

    FRESNO, Calif. — A California magistrate judge on June 5 said that a 72-year-old man does not have a federal cause of action for elder abuse in a case in which he alleges that he was injured by police officers responding to a medical emergency but allowed him to file an amended complaint to correct deficiencies in his complaint (Victor M. Sienze v. Madera County Sheriff’s Office, et al., No. 1:17-cv-00736, E.D. Calif., 2017 U.S. Dist. LEXIS 86055).

  • June 13, 2017

    Respondents: High Court Should Deny Certiorari In Age Discrimination Case

    WASHINGTON, D.C. — In a June 5 brief, respondents contend that the U.S. Supreme Court should deny a petition for writ of certiorari asking the high court to determine whether a state law age discrimination claim relating to employee benefits that is untimely under the Age Discrimination in Employment Act (ADEA) is preempted by the Employee Retirement Income Security Act, saying a Sixth Circuit U.S. Court of Appeals decision is entirely consistent with Supreme Court precedent and all other lower court decisions on ERISA preemption and presents no important issue of federal law (John Loffredo, et al. v. Daimler AG, et al., No. 16-1334, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 1990).

  • June 12, 2017

    Judge Refuses To Dismiss Claims That Health Director Withheld Medicaid Benefits

    CHICAGO — An Illinois federal judge on June 7 denied a motion filed by the director of the Illinois Department of Healthcare and Family Services to dismiss claims asserted against her by health care providers and patients in seven lawsuits, finding that the plaintiffs submitted sufficient allegations to support claims that the director failed to process Medicaid applications and to provide them with benefits in a timely manner (Doctors Nursing v. Norwood, No. 16-9837 and others, N.D. Ill., 2017 U.S. Dist. LEXIS 87015).

  • June 8, 2017

    Judge Finds Wells Fargo Did Not Refuse Loan Assumption Based On Age

    PITTSBURGH — A Pennsylvania federal judge on June 7 granted a motion filed by a bank to dismiss claims for discrimination and violation of housing law in relation to its refusal to approve an assumption agreement, finding that a resident of the property, who was attempting to assume the obligations of the loan, failed to show that she was a qualified borrower (Rosanne Russick v. Wells Fargo, Inc., d/b/a Wells Fargo Home Mortgage, No. 2:17-cv-00149, W.D. Pa., 2017 U.S. Dist. LEXIS 87191).

  • June 7, 2017

    CMS Drops Appeal Of Ruling On Mandatory Nursing Home Arbitration

    NEW ORLEANS — In a clerk order, the Fifth Circuit U.S. Court of Appeals on June 2 granted the U.S. government’s unopposed motion to dismiss its appeal of a case in which a preliminary injunction was granted blocking the Centers for Medicare and Medicaid Services’ (CMS) ban on mandatory nursing home arbitration (American Health Care Association, et al. v. Thomas Price, Secretary U.S. Department of Health and Human Services, et al., No. 17-60005, 5th Cir.; American Health Care Association, et al. v. Sylvia Mathews Burwell, et al., No. 3:16-cv-00233, N.D. Miss.).

  • June 6, 2017

    Petitioner To High Court: 7th Circuit Erred Finding Age Bias Appeal Was Untimely

    WASHINGTON, D.C. — Federal Rule of Appellate Procedure 4(a)(5)(C) is a nonjurisdictional claim-processing rule that can be waived or forfeited, and so it does not bar an appeal filed by an employee suing for discrimination, the employee argues in her May 15 petitioner brief filed in the U.S. Supreme Court (Charmaine Hamer v. Neighborhood Housing Services of Chicago, et al., No. 16-658, U.S. Sup.).

  • June 6, 2017

    R.J. Reynolds Opposes Petitioner Seeking High Court Review Of ADEA Ruling

    WASHINGTON, D.C. — Saying the petition is premature, R.J. Reynolds Tobacco Co. on May 23 filed a brief in opposition to a petition for certiorari asking the U.S. Supreme Court to review a split en banc 11th Circuit U.S. Court of Appeals ruling that a job applicant who claims that he was unsuccessful in attaining employment due to the employer’s refusal to hire individuals based on age may sue for disparate treatment but not disparate impact (Richard M. Villarreal, et al. v. R.J. Reynolds Tobacco Company, et al., No. 16-971, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 1852).

  • June 6, 2017

    Veterans Appeals Court Judge Says Medical Record Backs Board’s Decision

    WASHINGTON, D.C. — a U.S. Court of Appeals for Veterans Claims judge on May 15 found that the Board of Veterans Appeals correctly denied a veteran’s claim for disability benefits based on the medical evidence in the record that said his stroke was not caused by his medications (Timothy E. Roach v. David J. Shulkin, M.D., Secretary of Veterans Affairs, No. 16-0129, U.S. Vet. App., 2017 U.S. App. Vet. Claims LEXIS 694).

  • June 5, 2017

    California Panel Reverses Ruling In Lawsuit Alleging Claim Under Elder Abuse Act

    SAN FRANCISCO — A California appeals panel held June 2 that a first amended complaint sufficiently alleges “deprivation” of “the property of an elder” pursuant to the Elder Abuse and Dependent Adult Civil Protection Act, 42 U.S. Code Section 3058(i), 42 U.S.C. § 3058i, reversing and remanding a lower court (Frederick Mahan, et al. v. Charles W. Chan Insurance Agency, Inc., et al., No. A147236. Calif. App., 1st Dist., 2017 Cal. App. LEXIS 507).

  • June 5, 2017

    2nd Circuit Vacates Dismissal Of HR Staff Member’s Age Bias Claim

    NEW YORK — A Second Circuit U.S. Court of Appeals panel on June 2 vacated dismissal of a human resources professional’s claim of age bias brought against his former employer, finding that he brought allegations sufficient to state a claim; however, the appellate panel upheld dismissal of the appellant’s gender and ethnicity bias and retaliation claims (Michael Franchino v. Terence Cardinal Cook Health Care Center, Inc., et al., No. 16-2383, 2nd Cir., 2017 U.S. App. LEXIS 9756).

  • June 2, 2017

    Florida Appeals Panel Says Grandparents Can Pursue Make-Up Visitation

    DAYTONA BEACH, Fla. — A Florida appeals panel on May 19 reversed and remanded a visitation case to a trial court to determine whether it would be in the children’s best interest for their grandparents to receive make-up visitations (Jennifer Downs and William Downs v. Ruth D. LeDoux-Nottingham, No. 5D16-468, Fla. App., 5th Dist., 2017 Fla. App. LEXIS 7179).

  • June 2, 2017

    Former Abbott Labs Manager Denied Certiorari On Age Discrimination Claims

    WASHINGTON, D.C. — The U.S. Supreme Court on May 15 denied a petition for writ of certiorari filed by a former general manager for Abbott Laboratories who sought review of a Third Circuit U.S. Court of Appeals’ affirmance of dismissal of his federal and state age discrimination claims against the company (Clive Baron v. Abbott Laboratories, No. 16-1186, U.S. Sup., 2017 U.S. LEXIS 2985).

  • May 24, 2017

    Florida Appeals Panel Remands Negligence Case For New Trial On Damages

    DAYTONA BEACH, Fla. — A Florida appeals court on May 19 remanded a case alleging that a nursing home negligently caused injury to a patient for a new trial on liability, causation and damages, saying that the damage award was clearly inadequate, leading it to conclude that the jury rendered a compromised verdict (FLNC Inc., d/b/a Florida Living Nursing Center v. Joise Ramos, as Personal Representative of the Estate of Sonia Mercado-Bosque, No. 5D16-1725, Fla. App., 5th Dist., 2017 Fla. App. LEXIS 7180).