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Pa. Superior Court: Family Court Notice Must Be Meaningful

Although there are standard forms for various pleadings and motions for family matters, they should certainly not be considered formalities or merely boilerplates. In the matter of T.L.G. v. J.D.G., the Pennsylvania Superior Court drove home the importance of pleadings and motions in providing the opposing party notice of what is at issue when going to a family court hearing.

In T.L.G. the parents of two children were subject to a stipulated custody order. One of the two children subject to this order unfortunately suffers from various mental health issues. Her parents both agreed to enroll their daughter in a residential program in North Carolina. At the conclusion of her program in the residential facility, she had the option to enroll in a therapeutic boarding school (which was recommended by the professionals at the residential program), or, in the alternative, she had the option to enroll in a standard public school with in-school and out-of-school therapeutic services. The parents disagreed over where to enroll the child; the child’s mother wanted to follow the recommendations while her father wanted to send her to a public school with additional services.

As the parents were unable to overcome their impasse regarding where to enroll their daughter, the mother filed a petition for special relief requesting the court to enter an order requiring the parties to follow the recommendations of the mental health professionals at the residential program. Accordingly, the court entered a scheduling order that set a hearing date “in consideration of the within petition.”

At the day of the hearing, the judge before whom the hearing took place opened the hearing by announcing that the order he would enter would likely be one that awarded sole legal custody (in the areas of education and mental health issues only). The judge ultimately entered an order granting the father sole legal custody (limited to education and mental health issues), and the mother timely appealed this order to the Pennsylvania Superior Court.

On appeal the mother argued that the trial court abused its discretion and violated her due process rights when it entered an order modifying the custody order (by changing legal custody) despite the fact that there was no petition to modify custody filed by either party.  Instead, the mother argued, her petition simply requested an order to resolve a single discreet issue of dispute between the parties, and the trial court’s order should have reflected that.

In ruling on the mother’s appeal, the Superior Court first noted that “notice and an opportunity to be heard are fundamental components of due process.” Furthermore, the court further noted that notice to a party must be provided within a meaningful time in a meaningful manner. Citing the Pennsylvania Superior Court case of Langendorfer v. Spearman, 797 A.2d 303 (Pa.Super.2002) (which in turn cited Choplosky v. Choplosky, 584 A.2d 340 (Pa.Super.1990)) the T.L.G. court also indicated that “if the parties do not receive proper notice that custody is at issue, a trial court cannot ‘assume that the parties had either sufficiently exposed the relevant facts or properly argued their significance.’”

While filing a petition to modify custody is typically the appropriate manner by which to request a custody modification, the court recognized that a trial court, under the right circumstances, may modify a custody order when it is in the best interests of the child, even if a petition to modify had not been filed. The court clarified, however, that such circumstances are only “if notice of the proceeding adequately advises a party that custody will be at issue, a court may entertain the request to permanently modify a custody order after hearing in that proceeding.”

When reviewing the facts of this matter, the court observed that mother’s petition for special relief does not request any modification of the custody order at all. It merely requests the trial court to adjudicate the discreet issue of where their daughter should be enrolled. Furthermore, the court also observed that the trial court’s scheduling order, quoted above, did not reference the potentiality of a modification of custody.

Based on the above, the Superior Court ruled that mother did not have proper notice that custody modification would be an issue at a petition for special relief hearing. In addition, the court did not believe the trial court judge’s opening statement at the hearing that legal custody may be modified constituted notice at a “meaningful time” or in a “meaningful manner.” In the court’s view, requiring the mother to make an objection on the record against the judge’s statement giving her last-minute notice that modification would likely be at issue (indeed, there was not even notice that it would definitely be an issue) is not sufficiently advanced notice to the mother to enable her to prepare or properly advocate. Indeed, the trial court did not even inform the parties that it would, in fact, modify legal custody until it issued its order after the hearing concluded.

In light of the above, the court ruled that the trial court abused its discretion and violated the mother’s due process rights when it awarded the father sole legal custody over educational and mental health matters despite the fact that neither party filed to modify the custody order. The court ruled that the mother did not receive proper notice that the custody order could be modified, vacated the trial court’s order, and remanded the matter. This decision makes it clear that court filings, and the court notices that follow from them, must be specific and provide adequate notice to the parties in order to ensure and protect a party’s basic due process rights.

James W. Cushing is senior associate at the Law Office of Faye Riva Cohen and managing attorney for Legal Research Inc., and sits on the executive committee of the family law section of the Philadelphia Bar Association.

 

Minnesota Amish Must Install Septic Tanks

This is from religionclause.blogspot.com which you can find here:

In Mast v. County of Fillmore, (MN App., June 8, 2020), the Minnesota state Court of Appeals rejected claims by four members of the Amish community that laws requiring them to install septic systems to dispose of their waste water violate their freedom of conscience under the Minnesota Constitution and their rights under RLUIPA. The Court of Appeals said in part:

the district court appropriately concluded that respondents met their burden of demonstrating that appellants’ mulch-basin system does not provide a less-restrictive means of accomplishing the government’s compelling interests of protecting public health and the environment.

Rochester Post Bulletin reports on the decision.

You can learn more about this issue here.

 

 

Court Rejects Claim of Retaliation Because of Foster Parents’ Religious Beliefs

This is from religionclause.blogspot.com which you can find here:

In Lasche v. State of New Jersey, (D NJ, June 4, 2020), a New Jersey federal district court rejected claims by a couple who were formerly foster parents that the state acted unconstitutionally when it removed a foster child from their home and when it suspended their foster care license. Plaintiffs claim that they were retaliated against because of their religious belief that homosexuality is a sin, or because they shared their religious belief with their child. The court found insufficient allegations to support an equal protection claim. As to plaintiffs’ 1st Amendment retaliation claim, the court said in part:

there is no legal support for Plaintiffs’ assertion of a First Amendment right to share their religious beliefs with their foster child, who was neither their biological child nor their adoptive child. In fact, finding that foster parents have an unfettered constitutional right to share their religious beliefs with a foster child would seemingly conflict with the free exercise rights of the foster children and his or her biological parents. Accordingly, I do not find that Plaintiffs can assert a First Amendment retaliation claim based on such a theory.

Rejecting the argument that the state’s actions were in retaliation merely for their religious beliefs, the court said in part:

Plaintiffs’ allegations present a close-question regarding causality, nonetheless, I find that Plaintiffs have failed to allege facts demonstrating “a pattern of antagonism,” or other circumstantial evidence from which retaliatory or discriminatory motives can be inferred.

You can learn more about this issue here.

Court Refuses To Order Vermont To Extend Dual Enrollment Program To Catholic School

This is from religionclause.blogspot.com which you can find here:

In A.M. v. French, (D VT, May 29, 2020), a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program (DEP) that pays for high schoolers to take college courses. The court observed that while those administering DEP advised plaintiffs that religious parochial schools are ineligible to participate, this was an inaccurate characterization.  Instead, DEP is open to students enrolled in public schools, in private schools where a district without a public high school pays tuition, or students who are home schooled. In a prior decision, the Vermont Supreme Court held that the program allowing districts without public high schools to pay tuition to private schools violates the Vermont constitution only when the district reimburses tuition for a religious school and does not impose adequate safeguards to prevent the use of the funds for religious worship. In light of this, the federal district court said in part:

The DEP’s plain text does not impose classifications or disparate treatment based on religion. Indeed, the statutory scheme does not even mention religion…. [A] home study student receiving a religious education from his or her parents may take religious education classes at a postsecondary institution with a religious affiliation provided the home study student can satisfy the DEP Eligibility Requirements. A publicly funded high school student at an approved independent school with a religious affiliation may do the same….

Because qualified independent religious schools are not categorically excluded from the DEP and face no additional burdens not imposed on secular approved independent schools, the DEP Eligibility Requirements are neutral as applied to religion. Plaintiffs have therefore not demonstrated a violation of their constitutional rights giving rise to irreparable harm.

You can learn more about this issue here.

Third Circuit Provides Practical Guidance on Common Workplace Issues

Offensive Facebook Postings

In Chinery v. American Airlines, Melissa Chinery worked as a flight attendant for American Airlines based out of Philadelphia. She was represented by the Association of Professional Flight Attendants Union and ran for president of its Philadelphia local chapter in November 2014. Chinery lost the election, but claimed that during its course and thereafter, she was harassed by a group of flight attendants who were part of a Facebook group used primarily by Philadelphia-based flight attendants. American Airlines had nothing to do with the Facebook group and there was no evidence that the company was aware of posts within the group.

Specifically, Chinery cited numerous posts that used vulgar language about the union election that Chinery interpreted as being directed at her. There were also multiple posts that called Chinery’s supporters “cavalier harpies” and “shrews of misinformation” among other offensive gender-based phrases.

Chinery complained about these posts to American Airlines’ human resources department, which investigated her claims but found them to be meritless.

“Chinery claims that the investigator failed to adequately address her concerns and that American Airlines could have enforced its social media policy against the flight attendants at issue but chose not to.” Chinery brought suit against American, claiming that she was subject to a hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964. The district court granted summary judgment in favor of American and Chinery appealed.

Posts Were Not Harassing Under Title VII

Initially, the court affirmed dismissal of the sexual harassment claim, finding that the complained-of conduct was neither severe nor pervasive enough to “amount to a change in the terms and conditions of employment.” The court rejected Chinery’s novel argument that the allegedly offensive posts were “pervasive” because “social media posts are public and endure.” The court found no authority to suggest that “permanence” alone is enough for a reasonable trier of fact to conclude that the posts rose to the level of pervasiveness.

Secondly, while the posts were found to be offensive, the court affirmed that they constituted only “offhand comments and isolated incidents” that do not rise to the level of harassment as a matter of law.

Alleged Inadequate Investigation Is Not Harassment

Finally, Chinery argued that American’s failure to (in her mind) adequately investigate her claims and the company’s failure to enforce its social media policy constituted a level of “severe” harassment. The court also rejected this argument, finding that Chinery failed to show how “American’s shortcomings caused a material change in the terms of condition of her employment. Rather, any failure to investigate or discipline the flight attendants merely preserved the very circumstances that were the subject of the complaint.”

The case brings to the legal system a very real conundrum for employers in the age of social media. An employer, of course, is not responsible for intra-employee social media postings, but the court implied that the employer’s failure to investigate or apply its own social media policy might have some bearing on the question of whether respondeat superior liability may be attributed to the employer—but the (alleged) failure to follow policy will not, in and of itself, rise to the level of actionable harassment.

Inconsistent Statements Regarding Disability

In Ehnert v. Washington Penn Plastic, Hahns Ehnert was a temporary employee assigned by a staffing company to work at Washington Penn Plastic in April 2012. It was understood that Ehnert would be considered for hire by Washington Penn at the conclusion of his temporary assignment. While Ehnert worked at Washington Penn, he suffered from a “variety of medical conditions, but never requested any accommodations” from the company. On May 23, the last day at his workplace, Ehnert was advised by the staffing agency that he would not be hired on a permanent basis.

A few months later, in July 2012, Ehnert completed an application for Social Security disability insurance benefits on which he represented that he had been “unable to work due to a ‘disabling condition’ since May 21, 2012—two days before his temporary assignment at Washington Penn ended.” Ehnert was ultimately granted the sought-for SSDI benefits based upon a finding that he was “unable to perform any past relevant work” and that there are “no jobs that exist in significant numbers in a national economy that Ehnert can perform.”

Ehnert subsequently brought a claim against Washington Penn and the staffing agency, alleging that he had been discriminated against on the basis of his disability. Thus, Ehnert set up a classic “speaking out of both sides of your mouth” situation (McNemar v. Disney Store, 91 F.3d 610 (3d Cir. 1996)) in which his claim for disability benefits conflicted with his assertion that he was “otherwise qualified” to perform the duties of his position in his ADA claim. The district court granted summary judgment in favor of Washington Penn and Ehnert appealed.

LTD Representation Inconsistent With ADA Claim

The court began its consideration by noting that when a plaintiff’s claim that he was “a qualified individual with a disability” conflicts with a concurrent claim for disability benefits in which he asserts that he was “unable to work,” a court’s first inquiry is whether the representations are “patently inconsistent,” as in Cleveland v. Policy Management Systems,526 U.S. 795, 806 (1999). Ehnert argued that his apparently conflicting representations were not “patently inconsistent” because he represented to the Social Security Administration that “he could not work because he was being discriminated against.” The court rejected this argument based upon a finding that Ehnert represented “to the SSA that he was incapable of performing any work beginning May 21, 2012,” and that such representation “crashes face first against” his current representation that he “had been able to work at that time.”

Secondly, the court rejected Ehnert’s assertion that his representations could be reconciled because “reasonable accommodations are not considered by the SSA when making its decision.” While the court recognized this to be accurate, Ehnert presented no evidence that he had sought any accommodation during the course of his employment.

The case reinforces the need for employers and their counsel to review claims for disability benefits made by current or future (potential) litigants for the type of inconsistencies recognized by the court.

 

Court Strikes Down North Carolina Limits On Worship Services

This is from religionclause.blogspot.com which you can find here:

In Berean Baptist Church v. Cooper, (ED NC, May 16, 2020), a North Carolina federal district court issued a temporary restraining order barring enforcement of the governor’s COVID-19 order that limits indoor worship services to ten people. Saying that “There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.,” the court continued:

The assembly for religious worship provisions in EO 138 starkly illustrate the extent to which religious entities and individuals are not subject to a neutral or generally applicable law. The record, at this admittedly early stage of the case, reveals that the Governor appears to trust citizens to perform non-religious activities indoors (such as shopping or working or selling merchandise) but does not trust them to do the same when they worship indoors together.

News & Observer reports on the decision.

You can learn more about this issue here.

Court Refuses To Dismiss Catholic School Teacher’s Suit On Church Autonomy Grounds

This is from religionclause.blogspot.com which you can find here:

In Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc.(IN Super. Ct., May 1, 2020), an Indiana trial court refused to dismiss a lawsuit against the Catholic Archdiocese brought by a teacher who claims that the Archdiocese interfered with his contractual relationship with Cathedral High School, an independent school that had a relationship with the Archdiocese. The teacher was fired pursuant to a directive from the Archdiocese issued after the teacher entered a same-sex marriage. The school feared that if it did not comply, the Archdiocese would no longer recognize it as a Catholic institution. The Archdiocese argued that the lawsuit should be dismissed under the “church autonomy” doctrine. The court said in part:

In civil dispute involving church as party, the court has jurisdiction to resolve the case if it can be done without resolving an ecclesiastical controversy. The court can avoid the religious controversy by deferring to the highest authority within the ecclesiastical body….

… [T]his Court cannot determine that the directive by the Archdiocese to terminate Payne-Elliott was made by the highest authority in the ecclesiastical body of Cathedral or of the Roman Catholic Church.“

The court also questioned whether the case involved an ecclesiastical controversy at all:

… [A] letter from the President and Chairman of the Board of Cathedral elaborates as to ”What is at stake?” Therein, Cathedral states: ”Furthermore, Cathedral would lose its 501(c)(3) status thus rendering Cathedral unable to operate as nonprofit school.” This rational for firing Payne-Elliott is important,… If Payne-Elliott was terminated by Cathedral for an economic benefit to Cathedral at the direction of the Archdiocese, then that is different matter than Catholic doctrine.

The court also refused to accept several other grounds for dismissal put forward by the Archdiocese.  Indiana Lawyer reports on the decision.

You can learn more about this issue here.

Nativity Scene On Indiana County Building Property Held Unconstitutional

This is from religionclause.blogspot.com which you can find here:

In Woodring v. Jackson County, Indiana, (SD IN, April 30, 2020), an Indiana federal district court held that the Establishment Clause is violated by a nativity scene displayed on the lawn of an historical courthouse that now houses county offices. The court first concluded that plaintiff has standing to sue:

Her injury is the direct contact she must endure with a display that she alleges violates the Establishment Clause in the course of exercising her rights as a citizen of Jackson County.

Moving to the merits of the claim, the court said in part:

Here … the Nativity scene is not on its own. It is accompanied by two other arguably secular symbols of Christmas: Santa Claus and a group of Christmas carolers….

Nevertheless, two facts persuade the Court that this Nativity scene would give a reasonable observer the impression that the government is endorsing a religion. The first of those facts is the geography of the display…. Santa and the carolers are placed to the far side of the display, away from the more centralized Nativity display, which straddles the sidewalk subdividing the lawn…. The crèche is the vast majority of the display … making it appear much larger than the solitary Santa figure…. The carolers have been placed in the back of the display, lessening the attention they would draw from an observer….

The second fact that convinces the Court that the Nativity scene would give the impression of a religious endorsement is the scene’s history. For many years, it was only a Nativity scene, with no secular elements at all….But in 2018, in response to a letter from the Freedom from Religion Foundation questioning the display’s constitutionality, the President of the County Commissioners …physically moved Santa Claus and his sleigh and reindeer and the carolers to a place nearer the crèche…. The addition of less prominent secular symbols at the fringes of the display is not enough to counteract the impression a reasonable observer would have gotten from seeing the Nativity display placed on the lawn of the Courthouse for nearly 20 years. The Court has no doubt that a sufficient balancing between secular and nonsecular elements could bring this display into harmony with the First Amendment despite its history, but that balancing has not occurred here. Thus, the display fails the endorsement test.

You can learn more about this issue here.

Negligent Violation of Inmate’s Religious Dietary Needs Did Not Violate 1st Amendment

This is from religionclause.blogspot.com which you can find here:

In Mbonyunkiza v. Beasley, (8th Cir., April 24, 2020), the U.S. 8th Circuit Court of Appeals held:

absent evidence that an underlying prison regulation or policy violates the Free Exercise Clause, evidence that a correction official negligently failed to comply with an inmate’s sincerely held religious dietary beliefs does not establish a Free Exercise Clause claim under §1983.

In the case, a Muslim inmate claimed that four times in 257 days, prison kitchen staff served him meals containing pork products. In rejecting plaintiff’s claim, the court said in part:

[T]he Supreme Court’s cases, and all the Eighth Circuit Free Exercise decisions our research has uncovered, have involved claims alleging that a statute, or a regulation or policy implementing a statute, unconstitutionally prohibited a sincerely held religious belief or otherwise unduly burdened the free exercise of religion.

By contrast, in this case NCF’s food policies affirmatively accommodate the beliefs of inmates who do not eat pork for religious reasons. Mbonyunkiza does not challenge those policies. Rather, his Supplemental Complaint asserts that defendants are liable in damages because they did not properly implement those policies on certain occasions.

You can learn more about this issue here.

EMPLOYEES BEWARE OF COMPLAINING

I am frequently contacted by persons who are astonished that they have lost their jobs for what they allege is retaliation for complaining about their supervisors, complaining about some company policy or complaining about their work conditions. What they have in common is that they all believe that their right to complain in general is somehow legally protected. That is certainly not the case for the most part, unless there is some type of law which provides this protection, usually known as a whistleblower law, or there is some legal protection for reporting waste or fraud to a government agency, like the IRS, or an oversight agency in the security industry. Those laws have very specific requirements, and still cannot protect an employee’s job, but they may provide, often many years down the road, a financial award for the reporting person. Workers may be protected if they discuss terms and conditions of employment with one another, but once again, a government agency, such as the National Labor Relations Board, would have to agree to accept their complaint, and the process involved would generally be lengthy and usually not altogether satisfying.

Aside from these limited protections, most employees should be careful about what they complain about, as it may cost them their job. Unless there is some type of discrimination involved, in which case an employee is able to file a complaint with a government agency, an employee has no protection from being terminated. Filing a complaint of discrimination with a government agency also does not protect one’s job, and although employers are not supposed to retaliate against the employee filing the complaint, they often do. Also, even if the employee thinks it isn’t fair that he was terminated and the person he complained about was retained, there is no law that prevents this selection process unless there is discrimination involved. There is not a national workplace anti-harassment law as many employees think there is, and harassment must usually be tied to some protection available under the civil rights laws. Although an employer may have an anti-harassment policy in place, that policy may not have any “teeth” under the law.

I tell these persons that if they had contacted me during the time frame in which they were making the complaint I would have suggested that unless the complaint was extremely important, I may have suggested they not make it at all, or tell them they should have stopped the process if their employer asked them not to pursue it or made an attempt to resolve it, even if the employee wasn’t happy with the attempt. In some cases, I suggest that a lawyer should make the complaint as a buffer between the employee and the employer, and I have been able to save many jobs in this manner, as employers are often reluctant to retaliate against employees if a lawyer is already involved.
Employees are also frequently astonished when they learn that their job is not theirs for life. Pennsylvania is an employment at will state, which means that an employee can usually leave a job at his discretion, unless it violates a contract he has signed, with the converse being that an employer has broad discretion to terminate an employee. The usual response I receive when I ask the employee why, if their situation is so difficult at work, they don’t look for another job, besides the responses that it is a difficult economy, is that they don’t see why they are the one who should leave.

However, a side effect of continuing to complain when an employer asks you to stop, or feels the situation has already been resolved, is that the employer, in addition to terminating the employee, opposes their claim for unemployment compensation and alleges that the employee has committed some willful misconduct which prohibits them from receiving unemployment compensation. This process often results in delay in receipt of compensation, and possibly loss of compensation if the hearing referee rules in the employer’s favor.
Therefore, before one decides they are going to raise issues based on principle, one had better determine the possibility of being terminated, losing unemployment compensation benefits, and receiving a negative reference from their former employer.

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady”

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