Legal Report April 2014

​U.S. JUDICIAL DECISIONS

NEGLIGENCE. A federal court has ruled that a fishing company is not responsible for the death of a man who slipped and fell off the company’s pier while returning to the boat he was working on. The court said that it could not determine whether the fishing company was guilty of negligence for failing to maintain the pier, which was covered in ice and snow at the time of the man’s death.

Giuseppe Cracchiolo worked as a commercial fisherman and engineer on the F/V Sunlight, a herring boat. During the winter, the Sunlight operated out of the Eastern Fisheries fish processing facility in New Bedford, Massachusetts, and docked at the facility’s pier. The Sunlight paid a fee for use of the facility, and the facility was used both for processing fish and for berthing vessels.

Fishing vessels, including the Sunlight, tied off on the pier next to the Eastern Fisheries processing plant and unloaded their fish catch into the building. On January 26, 2011, the Sunlight docked at the New Bedford facility after a fishing trip. A pipe on the boat had broken, and the crew decided to keep the boat docked at the plant for a few days while it was being repaired. Cracchiolo and another crew member, Craig Lazaro, stayed on board the Sunlight to oversee the repairs. During the night, the boat and the surrounding plant were covered in snow and ice. The parking lot of the facility had been plowed, but the entire pier and the grassy areas surrounding it were still covered in ice and snow.

On the night of January 27, Cracchiolo and Lazaro left the facility together for dinner and drinks. The main gate to the facility was open when they left, but it was locked when they returned separately, and neither had brought a key to the gate with him. Lazaro was able to return to the Sunlight safely after walking through a gap in the fence surrounding the facility. He later called Cracchiolo and told him that the gate was locked and that he could get back to the boat by walking through the same gap that Lazaro had used, warning him that it was slippery because of the ice.

Cracchiolo, who was at a bar, said that he would stay to watch the end of a basketball game, and that Lazaro should not wait up for him. Cracchiolo returned to the facility just after midnight on January 28 and made his way to the Sunlight by going through the gap in the fence that Lazaro had used, which bordered a retaining wall and takeout platform—a raised platform built out from the shore onto the water. Security footage showed that Cracchiolo held on to the takeout platform and tried to step sidewise along the retaining wall between the takeout platform and the Sunlight. He slipped and fell from the pier into the water and drowned.

Lazaro found Cracchiolo’s body in the water the next morning and called the police. A forensic examination measured Cracchiolo’s blood alcohol level at 0.21 in one sample and 0.18 in another. Cracchiolo’s wife sued Eastern Fisheries, which leased the pier, and RCP Realty, the owner of the pier, for wrongful death. She alleged that the defendants failed to use due care in the inspection, maintenance, and repair of the premises and failed to provide her husband with safe and reasonable access to the Sunlight.

A federal court of appeals ruled in favor of Eastern Fisheries and RCP Realty because it could not determine whether the owner and leaser of the pier were guilty of negligence. The court ruled that there were “undisputed facts” in the record that suggested that Cracchiolo could have used an alternative route to return to the Sunlight that would have been safer. (Carla Cracchiolo v. Eastern Fisheries, Inc., and RCP Realty, U.S. Court of Appeals for the First Circuit, Nos. 12-2174, 13-1787, 2014)

DISCRIMINATION. An employer who fired a pregnant employee is guilty of pregnancy discrimination because her managers discussed her pregnancy in relation to her termination, according to a new ruling by a federal court.

Jennifer Latowski, a certified nursing assistant, was hired by Northwoods Nursing Center in July 2007 to assist nursing home residents with daily living activities, including showering, dressing, eating, drinking, and walking. On September 26, 2008, Northwoods became aware that Latowski was pregnant and, because of a company policy, asked her to obtain a doctor’s statement saying that she did not have any employment restrictions.

Latowski continued to work at Northwoods until October 1, 2008, when the company received her doctor’s medical statement that restricted her from lifting more than 50 pounds. A Northwoods administrator notified Latowski that she could no longer work because of the lifting restriction and that the company could be “liable if something happened to [Latowski’s] baby,” according to court documents. The administrator told Latowski that she could continue working if she got the restriction lifted by her doctor, but added that a doctor might not lift the restriction because Latowski’s past miscarriages likely made her pregnancy “high risk.”

Despite the discussion with the administrator, Latowski reported for work on October 2, 2008, and was escorted from the premises. She was later contacted by Northwoods to discuss her eligibility for leave under the Family and Medical Leave Act (FMLA). Latowski declined to take leave because she would have still been pregnant when the leave period expired. Instead, Northwoods accepted her resignation on October 17 in a letter explaining that the company would not accommodate a non-work-related restriction.

Latowski filed a charge with the Equal Employment Opportunity Commission and returned to Northwoods to pick up her personnel records. While there, two Northwoods administrators discussed FMLA leave with her, posed hypothetical negative health impacts if she continued to work, and said that her “belly would be in the way.” Latowski then filed suit in the U.S. District Court for the Eastern District of Michigan, alleging pregnancy discrimination, violations of the Americans with Disabilities Act and the FMLA, and additional Michigan state law violations.

The district court dismissed Latowski’s claims of pregnancy discrimination, reasoning that Northwoods’s pol icy of not accommodating non-work-related restrictions was “pregnancy blind” with no evidence to suggest that it had discriminated towards Latowski’s pregnancy. Latowski appealed the decision.

The appellate court reversed the lower court’s judgment on the pregnancy discrimination claims. In its ruling, the court said that the comments made by Northwoods’s administrators were discriminatory because they were made by people in managerial positions who were directly related to the decision to terminate Latowski’s employment. The court found that given the circumstances, a reasonable jury could conclude that Northwoods’s policy, and the decision to only accommodate work-related injuries, is a pretext for discrimination. (Latowski v. Northwoods Nursing Ctr., U.S. Court of Appeals for the Sixth Circuit, No. 12-2408, 2013)

FEDERAL LEGISLATION

DATA SECURITY. A bill (H.R. 3811) would require the secretary of Health and Human Services (HHS) to take additional security measures to protect information under the Affordable Care Act. It has passed the House of Representatives and is pending in the Senate Health, Education, Labor, and Pensions Committee.

Under the bill, sponsored by Representative Joseph R. Pitts (R-PA), the secretary of HHS would be required to notify an individual within two business days after the discovery of a security breach of any system maintained by a healthcare exchange established under the Patient Protection and Affordable Care Act that is known to have resulted in the theft of, or unlawful access to, the individual’s personally identifiable information.

An identical bill (S. 1902) has been introduced in the Senate by Senator John Barrasso (R-WY) with 23 Republican cosponsors and is also pending in the Senate Health, Education, Labor, and Pensions Committee.

CYBERSECURITY. A bill (H.R. 3696) that would require the secretary of the Department of Homeland Security (DHS) to improve cybersecurity efforts among critical infrastructure has been approved by the House Homeland Security Committee’s Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies.

The bill, known as the National Cyber security and Critical Infrastructure Protection Act of 2013, would require the secretary of DHS to coordinate with federal, state, and local governments, critical infrastructure owners and operators, and other cross-sector coordinating entities to facilitate a national effort to strengthen critical infrastructure from cyberthreats. This would be conducted through situational awareness among federal entities to enable real-time, integrated, and operational actions to protect from, prevent, mitigate, and respond to cyber incidents.

The secretary would also be responsible for ensuring that DHS policies and procedures enable critical infrastructure owners and operators to receive timely cyber threat information, coordinate research and development strategy for cybersecurity technologies, and engage with international partners to strengthen cybersecurity.

EMPLOYMENT. A new equal employment bill (S. 1837) seeks to amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks for making adverse employment decisions.

S. 1837 would prevent prospective and current employers from using a consumer report or an investigative consumer report for employment purposes if the report contains information about the consumer’s creditworthiness, credit standing, or credit capacity. The bill would also prevent employers from accessing consumer report information, even if they have the consumer’s consent to do so. However, the bill does make exceptions for the use of a consumer report if the consumer applies for, or holds, a position that requires a national security clearance, or if a consumer report is required by law, such as a court order for the disclosure of a consumer report for an investigation.

The bill was introduced in the Senate and is pending in the Senate Health, Education, Labor, and Pensions Committee

STATE LEGISLATION

Missouri
School security. A bill (H.B. 1088) introduced in the Missouri House of Representatives requires that school administrators notify law enforcement if a student makes a terrorist threat. Administrators must also notify specified school district employees with a “need to know.” Need-to-know personnel are those directly responsible for the student’s education or those who interact with the student on a professional basis within the scope of their assigned duties.

Missouri school administrators are already required to report 25 other offenses to local law enforcement, including first and second degree murder, kidnapping, assaults, and child molestation.

Wisconsin 
Personal data. A bill (A.B. 618) introduced in the Wisconsin Assembly would prevent contractors, consultants, and volunteers from having access to student records even though the federal Family Educational Rights and Privacy Act (FERPA) grants them access. Under FERPA, these individuals can be considered school officials if they provide outsourced services or functions for a school, allowing them access to student records. Wisconsin is seeking to change state law so only employees of the school district the student attends, law enforcement officers designated by the school board, and other school district officials with legitimate educational interests can have access to student records.