The Cost of a Missing Comma

Read the entire story here at Best Lawyers.

Oakhurst Dairy Learns the Cost of a Missing Comma

To Oxford comma or not Oxford comma isn’t the question Hamlet asked as he contemplated life or death, but maybe he should have. The lack of an Oxford comma in a Maine law has come at an exorbitant price for Oakhurst Dairy: approximately $10 million.

David G. Webbert, Jeffrey Neil Young, Roberta L. de Araujo, and Carol J. Garvan of Johnson, Webbert & Young represented truck drivers in a class-action lawsuit against Oakhurst Dairy concerning more than four years’ worth of overtime pay. While Maine law requires workers to be paid time-and-a-half for every additional hour over 40 per week, there are some exemptions, as detailed in the following state law:

“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

1. Agricultural produce;

2. Meat and fish products; and

3. Perishable foods.”

Due to the lack of Oxford comma after “shipment,” the First U .S. Circuit Court o f Appeals determined that there was enough uncertainty for them to rule in favor of the truck drivers, reversing a lower court decision.

The drivers had earned between $46,000 and $52,000 per year, working an average 12 extra hours a week without earning overtime. While three drivers filed the class-action lawsuit, the total sum after legal fees will be divided amongst 75 truck drivers.

Webbert got evidence under oath that supports wrongful termination

Read the entire story here at AdvertiserDemocrat.com.

Former Buckfield library director wins unemployment appeal with DOL

BUCKFIELD — After initially being denied unemployment benefits, the former Buckfield library director won her appeal with the Department of Labor, which  ruled she was entitled to unemployment. The town can appeal the most recent ruling.

West Minot resident Bonnie Santos was the Zadoc Free Library director from February 2014 until Jan. 21, 2017, when Buckfield Town Manager Cindy Dunn terminated her.  Santos previously served as assistant director of the library since 2010.

The ruling stating the town must pay Santos unemployment benefits came from Department of Labor Administrative Hearing Officer Wayne Reed, according to Santos’ attorney, David Webbert.

“The process has been a ping pong match,” Dunn said about the denial and appeal of unemployment benefits for Santos. “It was ruled in the town’s favor initially. The second time it was ruled in the former employee’s favor.”

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Santos and Webbert say that her termination was unlawful and it violated town’s Personnel Policy, the Maine Human Rights Act, including the right to medical leave, the Maine Whistleblowers’ Protection Act, the Maine Family Medical Leave Requirements law and the federal constitutional right to due process. They assert Santos was fired because she was scheduled to take a medical leave for a necessary heart surgery, which Dunn has denied.

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Last week, Santos welcomed the news of her appeal.

“I am very pleased that the Department of Labor appeals hearing officer’s … report that I received Monday, [May 8] confirmed that I am entitled to unemployment benefits based on the incorrect procedure that was used to fire me,” Santos said.

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The town’s Personnel Policy has a number of steps for disciplining an employee, including counseling and verbal warning, written warning, suspension and final written warning and termination.

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Regardless of what action the town decides to take on the appeal, there is still Santos’ wrongful termination case that needs to be settled.

“We won the unemployment but more importantly we got evidence under oath that supports the wrongful termination case,” Webbert said. “Bonnie would like to resolve this matter out of court. Life is too short. I recommend [to] all my clients legal action … should be a last resort. … Mediation, for example, is a very normal thing people would go to and have. Why would you not do that?”

He added he offered the town go to mediation to work out Santos’ case, but did not receive a response back.

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Webbert said moving forward, he would file a complaint with the Maine Human Rights Commission before taking the matter to court.

Webbert says, woman earned excellent performance reviews but was abruptly fired after reporting concerns

Read the entire article here at the Bangor Daily News.

County women sue, alleging they were fired after reporting billing fraud

Two Aroostook County women who say they were unlawfully fired from their jobs as program supervisors after they reported concerns about alleged illegal and fraudulent MaineCare billing practices have filed suit in U.S. District Court in Bangor.

Julie Ivey of Houlton and Angela Cowger of Danforth were employees in the Houlton office of Addison Point Specialized Services Inc., a federally and state-funded social services provider for individuals with intellectual and developmental disabilities.

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Attorney David Webbert of Augusta, who is representing Angela Cowger, said Thursday that Ivey and Cowger earned excellent performance reviews at their jobs but were abruptly fired within two working days after reporting their shared concerns to top managers. According to court documents, Cowger and Ivey made reports in 2014 that they believed Addison Point was improperly billing the Department of Health and Human Services for services that were not actually provided to clients.

According to the lawsuit, both women were told by company higher ups that the billing was proper, but when the women continued to raise concerns they were fired.

Ivey and Cowger had no prior discipline or warnings, according to Webbert, and he added that Addison Point admitted it fired Ivey and Cowger based on their reports about illegal billing. Cowger had been working at the agency since 2007 and Ivey since 2011. This lack of progressive discipline violated their employer’s own written policy requiring progressive discipline before termination, according to the lawsuit, including the three prior steps of an oral warning, written warning and a final written warning.

The Maine Human Rights Commission conducted an independent investigation and unanimously determined that there were reasonable grounds to believe Addison Point committed unlawful retaliation against Ivey and Cowger in violation of the Maine Whistleblowers’ Protection Act and the Maine Human Rights Act.

After investigating Cowger’s complaint, the MHRC found that Addison Point “could not show a legitimate reason to discharge her outside of her continued voicing of concerns regarding improper billing.”

After investigating Ivey’s complaint, the MHRC found that Cowger and Ivey were fired at the same time that they brought forth the allegations about improper billing.

“The fact that both reported what they believed was unlawful activity and both were discharged shortly after bringing forward their reports adds forward plausibility to Ivey’s claim of retaliation,” investigators noted in their report.

Webbert said the court this week granted a motion to schedule a settlement conference, and the parties are waiting for a date to be set.

“All of the parties will meet then to discuss a settlement,” he said. “If we don’t agree, we will ask for a jury trial.”

Webbert said the firing was “additionally unfair” to Cowger, who has not been able to find employment since the firing and is going back to college to secure a degree to be able to do the same work she had been doing at Addison Point.

“Cowger had a perfect record there,” her attorney said. “To fire someone who is doing their job and was a top employee and basically admit that you did it was particularly unjust.”

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Cowger and Ivey are seeking damages, including compensatory damages in an amount to be determined at trial, back pay, lost employment benefits, other lost compensation and interest on those amounts. They also are asking that Addison Point provide effective civil rights training for all human resources employees and all supervisors on the requirements of all applicable laws prohibiting whistleblower retaliation.

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Webbert – Settlement of Brunswick School Bullying Case is a Good Thing for the Whole State

Brunswick settles lawsuit over former student who says he was assaulted in school bathroom

Read the entire article here at the Bangor Daily News.

The Brunswick School Department must revamp its approach to bullying significantly as part of an out-of-court settlement with the family of a former student who alleges he was sexually assaulted at Brunswick Junior High School.

The school system also will make a cash payment to the former student’s family as part of an agreement to settle the federal lawsuit filed by the Maine Human Rights Commission and the family of the former student that accused the town, the school district and the junior high principal of violating the student’s civil rights when he was student there.

The suit alleged that while the boy was a student at the school from 2010 to 2012, he was bullied, physically assaulted and sexually assaulted several times. It also alleged that the administration failed to protect him — a claim the MHRC investigator and an independent agency evaluator found strong evidence to support.

On Oct. 26, the Brunswick School Board voted unanimously to “contribute up to $25,000 to the settlement amount,” but attorneys for the MHRC, the boy’s family, attorneys and school officials have all declined to disclose the total settlement amount until a federal judge approves the agreement.

On Monday, however, Augusta attorney David Webbert, who represents the former student’s family identified in court documents only as Jack Doe, and Amy Sneirson, executive director of the Maine Human Rights Commission, both said that the steps the school system must take to address bullying far outweigh the cash value of the settlement.

Among those steps, the school department is required for this year and next to develop and maintain a computerized system to track allegations of bullying. The system must be searchable by word, Sneirson said, “so that if a student alleges bullying by more than one student, it’s a way for someone to find out if one student is causing a problem in more than one place, or there’s more than one victim. It’s even possible they could figure out which things are happening in unmonitored spaces like bathrooms, stairwells or buses.”

The latter possibility is particularly relevant in the current lawsuit, in which the student alleged he had been sexually assaulted three times in junior high school bathrooms.

Sneirson said attorneys for the school department will be required to send proof they are complying with the terms to attorneys for the plaintiff.

The school must also create a gay-straight alliance and provide annual, in-person training of junior high school staff about bullying and sex stereotyping.

Sneirson said she is not aware of any other schools with similar databases, nor is she aware of any other court case regarding bullying based on a protected class status that the MHRC has been a party to.

The suit, filed in U.S. District Court in July 2015, alleged “Jack Doe” was 11 years old “when the severe abuse of him at school began and his educational environment became hostile.”

According to the 30-page complaint, 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, sexually assaulted him on three separate occasions, then threatened him and his family if he told anyone about the assaults.

Allegations that the boy had been sexually assaulted by other students were investigated by the Brunswick police and forwarded to the Cumberland County District Attorney’s office, Brunswick police Cmdr. Mark Waltz said in June 2014.

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But a child abuse evaluation by an independent agency concluded “there is strong evidence that [Jack Doe] has been sexually abused,” the lawsuit contends.

The suit specifically alleged that Brunswick Junior High School Principal Walter Wallace, who in 2015 named Principal of the Year by the Maine Principals’ Association, failed to respond adequately to the student’s repeated complaints and acted “with actual malice and reckless indifference to the federally protected civil rights of Jane Doe and her child.”

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The Maine Human Rights Commission disagreed and sought compensatory and punitive damages, as well as — among other new policies — increased training and monitoring policies and practices, a designated on-call counselor to assist victims of sexual harassment or violence during school hours and a review of Brunswick police records for the past five years for “any complaint of sexual assault that was treated as an exclusively criminal matter.”

“We really thought hard about what will help in a school that has seemingly very good policies in place, which Brunswick did,” Snierson said. “[We thought], ‘How can we foster more hands-on practical improvements of tracking bullying issues.’”

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“Certainly, every school board member is allowed to have an opinion,” she said. “We thought everyone was in agreement that this was a good resolution of the case.”

She added that the Maine Human Rights Commission “will be keeping track just to make sure the things that are supposed to happen in terms of the public interest do happen.”

“The settlement is a good thing — a good thing not just for Brunswick but for the whole state,” Webbert said. “It was a learning process for how to do things better for the kids. Really the agenda here should be protecting our students and helping them reach their full potential, and bullying certainly gets in the way of that.”

Eves’ lawyer, Webbert, renews LePage ‘blackmail’ charge in appeals court

Read the entire story here at the Bangor Daily News.

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The court battle between Republican Gov. Paul LePage and Democratic House Speaker Mark Eves advanced Wednesday with oral arguments in the U.S. Court of Appeals in Boston.

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At issue is how LePage forced Good Will-Hinckley, an organization that among other things runs a public charter school in Fairfield, to rescind an employment contract with Eves or face the loss of some $500,000 in annual state funding.

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Eves’ attorney David Webbert said there were indications from the panel of three appeals court judges that there is some merit in Eves’ arguments, particularly on whether LePage had the right to use public funds as a threat and whether LePage discriminated against all Democratic lawmakers, and particularly Eves.

“This case is about one thing: protecting Maine citizens and private organizations from being blackmailed, threatened and intimidated by a politician willing to abuse government power for partisan reasons,” said Webbert in a written statement.

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Eve’s lawsuit aims to protect Mainers from being “blackmailed, threatened, and intimidated by a politician willing to abuse government power for partisan reasons,” said Webbert

Read the entire story here at the Maine Sun Journal.

1st Circuit considers Mark Eves’ lawsuit against Gov. Paul LePage

(AP) — The 1st U.S. Circuit Court of Appeals is weighing in on a request to reinstate a lawsuit accusing Maine Gov. Paul LePage of abuse of power and blackmail.

Lawyers for Democratic House Speaker Mark Eves and the Republican governor delivered arguments Wednesday. Now the three-judge panel in Boston will decide whether to overturn a decision by a federal judge in Maine to dismiss the lawsuit.

Eves’ lawsuit accuses LePage of using blackmail to force a charter school operator to rescind a job offer to him, and seeks unspecified compensatory and punitive damages.

His lawyer, David Webbert, said the lawsuit aims to protect Mainers from being “blackmailed, threatened, and intimidated by a politician willing to abuse government power for partisan reasons.”

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Webbert, Eve’s attorney, said the court appeared to recognize that a governor’s threats could endanger the private lives of citizen legislators.

Read the entire story here at mainepublic.org

1st Circuit Considers Appeal in Lawsuit Against LePage

The attorney for Democratic House Speaker Mark Eves attempted to revive a lawsuit against Gov. Paul LePage before the 1st U.S. Circuit Court of Appeals yesterday.

A three-judge panel heard arguments from attorneys representing Eves and the governor during a brief hearing in Boston. The panel will decide whether to overturn a decision by a federal judge to dismiss the lawsuit.

David Webbert, Eves’ attorney, is trying to convince the panel that LePage acted illegally when he threatened to withhold over $1 million in state funding to a private nonprofit unless the organization fired Eves as its president. Good Will-Hinckley, the nonprofit, eventually withdrew its offer to Eves.

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Webbert says the judge erred when he ruled that judicial courts were not appropriate to resolve political disputes. In a statement, he said he remained confident the panel would rule in his favor based on reactions to his arguments yesterday. He said the court appeared to recognize that a governor’s threats could endanger the private lives of citizen legislators.

 

 

Webbert is confident in his appeal of Eves v LePage – “our politicians are not above the law.”

Read the entire story here at the Portland Press Herald.

Attorneys for House Speaker Mark Eves asked a federal appeals court Wednesday to overturn an earlier decision to dismiss Eves’ lawsuit against Gov. Paul LePage.

David Webbert said in a statement after the hearing that he was confident in his appeal and said “both the U.S. and Maine constitutions make it clear that our politicians are not above the law.”

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Eves, the Democratic leader from North Berwick, sued the Republican governor last summer, alleging that LePage abused his power by threatening to withhold state funding if an educational institution in central Maine moved forward with hiring Eves to be its president.

The board of Good Will-Hinckley school in Fairfield did ultimately rescind its offer to Eves, citing the governor’s threats as one of the main reasons.

Eves argued that the governor used his executive power to intercede into his private life for political retribution.

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On Wednesday, each side addressed a three-judge panel seated in the 1st U.S. Circuit Court of Appeals in Boston, which will issue a written ruling on the case at a later date. If the case is overturned on appeal, it would be sent back to Maine to be tried.

Webbert said the appellate judges asked several questions that gave him confidence the case may be sent back for a trial.

“The Court recognized that Maine has a ‘citizen legislature” and that the need of Maine Legislators to make a living makes them vulnerable to threats by a Governor to punish them in their ‘private life,’” the attorney said in a statement.

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The dispute began on June 5, 2015, the day Eves signed a two-year employment contract with the school.

On that day, LePage phoned the then-interim president of the school, Richard Abramson, and expressed his extreme displeasure about Eves’ selection. The governor also sent a handwritten note to the chairman of the school’s board of directors, called Eves a “hack” and made it clear that the school would lose the $1.06 million in discretionary funding that it expected to receive in the upcoming two-year budget cycle.

The dispute arose as the Legislature worked to finalize the state’s budget and marked a particularly frigid moment between legislators and LePage, who vowed to veto every bill sponsored by a Democrat because members of the House did not address his policy priorities.

The Good Will-Hinckley board rescinded its offer to hire Eves as its president on June 24. LePage admitted to reporters that he threatened to choke off funding. Eves filed suit the next month.

Eves accused the governor of using taxpayer money and the power of his office to prevent his hiring by Good Will-Hinckley, and contended that LePage’s actions violated several of Eves’ constitutional rights, including his First Amendment rights of free speech, free association and political affiliation, as well as his 14th Amendment right to due process.

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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.

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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.

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

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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.”

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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.

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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.

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

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

Webbert is asking the appeal court to void Judge Singal’s ruling in Mark Eves’ case against Governor LePage

Read the entire article here at MPBN.

Mark Eves Appeals, Citing LePage’s “Extreme View of Gubernatorial Power”

The attorney for House Speaker Mark Eves is seeking an injunction against Gov. Paul LePaage, in Eves’ appeal filed Wednesday with the First Circuit U.S. Court of Appeals.

The brief is an attempt to force the U.S. District Court to reconsider Eves’ argument that the governor acted illegally when he threatened to withhold over $1 million in state funding to a private nonprofit unless the organization fired Eves as its president.

In May, District Court Judge George Singal dismissed Eves’ case, saying, in essence, that the governor’s actions in the Good Will-Hinckley controversy were protected by the so-called immunity clause. That’s the legal concept that essentially protects elected officials from civil lawsuits.

But David Webbert, Eves’ attorney, now argues that Singal erred when he ruled that judicial courts were not appropriate to resolve political disputes. Webbert, in a 131-page brief, wrote that federal courts have upheld civil rights lawsuits between political opponents.

Webbert is essentially asking the appeal court to void Singal’s ruling and provide the legal framework to consider the case. In doing so, Webbert is focusing on a ruling that would “prevent LePage’s extreme view of gubernatorial power from becoming accepted as the norm in Maine politics.”

A response brief from LePage is expected in about a month. Oral arguments before a three-judge panel could take place this fall.

Editor’s note: This story has been corrected. Eves is not dropping his pursuit for monetary damages against LePage.