Webbert says, “information collected since the suit was filed strengthens the case against the town and school department.”

Read the entire store here at the Bangor Daily News.

Settlement hearing set for suit over alleged assaults in Brunswick school

The next phase of a lengthy legal dispute between the Brunswick school system and the family of a former student who allegedly was sexually and physically assaulted at Brunswick Junior High School will likely play out on Aug. 18 in federal court.

The family of the former student, identified as Jack Doe, and the Maine Human Rights Commission filed a lawsuit in federal court charging the town, school department and junior high principal with violating his civil rights. In addition to alleging that the former student was sexually and physically assaulted, the lawsuit claims he was discriminated against based on his gender and sexual orientation while attending the school from 2010 to 2012.

The suit, filed in July 2015, names the Brunswick School Department, town of Brunswick and Brunswick Junior High School Principal Walter Wallace as defendants. It charges that Wallace acted “with actual malice and reckless indifference to federally protected rights of Jane Doe and her child” and failed to adequately respond to the student’s repeated complaints and charges of assault, discrimination and bullying.

The suit alleges that over a period of 2½ years “a group of sexually aggressive and violent male students” harassed the student, called him “gay,” subjected him to several “gay tests,” struck him with a lacrosse stick, stabbed him with a pencil and on three separate occasions sexually assaulted him, then threatened him and his family if he told anyone about the assaults.

An attorney representing the family said by phone this week that information collected since the suit was filed strengthens the case against the town and school department.

**********

In June 2014, the Maine Human Rights Commission voted to uphold its investigator’s report substantiating the complaints and subsequently joined the suit as a plaintiff “to ensure that Brunswick has in place effective measures to prevent a hostile education environment based on sex and sexual orientation,” according to court documents.

**********

Many case documents have been sealed after both parties in December 2015 signed a confidentiality agreement.

**********

Webbert wrote that Wallace allegedly told Jack Doe’s father when he was in seventh grade that junior high kids “are like a wolfpack and they tend to pick on the weak, and I think this is what’s going on with your kid, and maybe you should ask him to tone down his individuality a little bit.”

**********

Webbert wrote that Wallace’s “minimal and belated” responses “were clearly unreasonable in the face of numerous reports of longtime and escalating verbal harassment and physical abuse of Jack by multiple male students,” including being made fun of for being gay more than 30 different times, hit and stuck with a push pin.

Webbert said Wallace admitted in a deposition before the human rights commission that the school’s response to the push pin incident was “in violation of the procedure” for bullying incidents and said Superintendent Paul Perzanoski admitted at his deposition that a written report should have been created.

**********

Webbert said Jack Doe was still enrolled at the school and attending classes “sporadically” when he made the allegations in October 2012 and was subsequently tutored at home.

**********

“We think this case is so strong for us on certain issues, and it’s gotten stronger,” Webbert said.

**********

A mediator will join Magistrate Judge John C. Nivison and attorneys for the two parties at the Aug. 18 conference, Webbert said.

Big Mac Attack: NLRB Rules MacDonald’s May Be Liable for Labor Law Violations of Franchisees

Read it here.

Fifteen years ago, I won a sex discrimination case against U-Haul. A jury awarded $640,000 to my client, Karen Romano, who was hired as a part-time hitch mechanic and was fired after less than a month on the job. The employer was outraged by the verdict—Karen would have had to work at U-Haul for something like a thousand years before she would have earned that kind of money!! U-Haul appealed the case all the way to the Supreme Court.

Apparently what caught the jury’s attention was U-Haul’s explanation for its decision to fire Karen. Her manager told her that the only problem the district manager had with her was that “you sit when you pee.” This crude statement made headlines in Maine and elsewhere. To this day, I still can’t believe the manager said that.

What I did not realize when I won the U-Haul case was how important it was, not for the amount Karen received (although certainly that was substantial), but rather because it established an important legal principle that previously had not been closely considered in the First Circuit federal court—which covers Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico. That principle is that if a parent company exercises sufficient control over a subsidiary, the parent company can be held liable for damages to an employee even though it does not employ the worker.

In the U-Haul case, U-Haul International, which was headquartered in Arizona, had set up hundreds of subsidiaries around the country—one in every state, and sometimes others in large cities. But the reality was that the parent company was calling the shots, not U-Haul of Maine, with regard to personnel policies.

The U-Haul decision has been cited numerous times by other courts for the proposition that a parent can be held liable for the acts of its subsidiary because the two companies constitute what is called an “integrated enterprise.” The integrated enterprise theory is important not just in discrimination law but in all kinds of employment law because often the subsidiary has gone bust and can’t afford to pay, and because under discrimination law, if the court considers the number of employees of both the parent and subsidiary combined, the employee often will be entitled to recover more money for pain and suffering and punitive damages.

I thought again about the U-Haul decision the other day when I read that the National Labor Relations Board had held that McDonald’s parent company could be held liable for the acts of its franchisees as a joint employer—a related principle to the integrated enterprise theory. In the MacDonald’s cases, like in U-Haul, MacDonald’s International, which is based in Oakbrook, Illinois (just outside of Chicago), claimed that as the franchisor, it was independent of the McDonald’s restaurants around the country, which usually are locally owned. The NLRB concluded that even though the local franchisees ostensibly could set their own terms and conditions of employment, in reality MacDonald’s, the franchisor, effectively controlled wages and benefits by virtue of the overwhelming degree of control MacDonald’s exercised over the operation of its franchises. In fact, some franchisors exercise so much control that California is considering a law to give the franchisees more rights.

Why is the NLRB’s decision important? Because it recognizes, for the first time in a union labor law case, the way business really is done in America today, and it holds big corporations liable for their franchisees. Tens of thousands of companies that we drive by every day are franchisees, owned and operated by local small businesspeople, but in reality kowtowing to a franchisor somewhere else who insists that the franchisee follow its formula for success to the letter; indeed, that is what attracts many buyers to start franchises in the first place.

Although franchises are prevalent in the food industry—think MacDonald’s, Burger King, Wendy’s, Arby’s, etc.—they are commonplace everywhere. Hotel chains—Hilton, Holiday Inn, Westin, Hyatt—are almost always franchises. So is the Midas or Jiffy Lube where you get your car serviced, the Anytime Fitness where you work out, and the Supercuts where you get your haircut. Not to mention the Ace Hardware where you buy your tools, the Radio Shack where you get your electronic doodads, and the H&R Block where you have your taxes done. The list goes on forever.

MacDonald’s—and the corporate world—are having a Big Mac attack over the NLRB’s decision. It looks like Mickey D’s, its rival Burger King, and many other franchisors can’t always “Have it [their] way!”