Wednesday, April 15, 2015

Radio Program: April 14, 2015 "Dividng Marital Property Upon Divorce"

April 14, 2015: Attorneys Kevin P. Rauseo and J. Daniel Marr discuss "Dividing Marital Property Upon Divorce".

Thursday, April 9, 2015

Wednesday, April 8, 2015

Disgruntled Employees Have Limits Suing Co-Employees and Boss

A recent New Hampshire federal trial court decision discusses the limits a disgruntled employee has in bringing claims against her co-employees and boss. In the case of Lorettann Gascard v. Franklin Pierce University, et al, Professor Gascard, a faculty member of the University, sued it and the Dean as well as other individuals claiming employment discrimination in violation of federal law as well as negligence in the defendants failing to exercise due care by failing to supervise the other defendants and by failing to protect her.

The University moved to dismiss the case and the trial court judge agreed as to the dismissal request of the claims for individual liability under federal employment discrimination laws of the individual co-employee defendants and negligence.

There are generally two types of motions that are filed by defendants trying to win the case without trial. The first being a motion to dismiss and the second being a motion for summary judgment. In order for a motion to dismiss to be successful, it has to show that the Complaint lacks sufficient factual allegations that if true would state a claim for relief that is plausible on its face. A motion for summary judgment claim is usually after discovery is had, including the deposition of someone like Gascard and perhaps her physician. That motion claims there is no genuine issue of material fact and that the defendants are entitled a judgment as a matter of law.

The University sought to move to dismiss and the trial court judge found that the allegations were sufficiently well pled to allow Gascard to move forward with her claims of employment discrimination against the University which included discrimination claims based upon Gascard’s disability, age, gender, and also a claim of retaliation. That does not mean that some or all of those remaining claims would survive a motion for summary judgment by the University, which is an issue that was not yet before the trial court judge.

According to Gascard’s Complaint: she has served as a professor of art history at the University; had “situational stress” that resulted in her taking a short-term disability leave; after her return she provided the University with a doctor’s note that stated because of stress-related factors the doctor was restricting Gascard from meeting attendance and assemblies; she claimed bullying during departmental meetings which was the central cause of her situational distress; and she alleged a variety of other claims including retaliation and breach of confidentiality. It appears from the Decision that she remains an employee so she has not asserted she was wrongfully fired from her job. Those claims as asserted in her Complaint were sufficient to survive the University’s motion to dismiss, yet she had also sought individual liability under the federal employment discrimination law. The First Circuit Court of Appeals, which hears appeals for federal employment discrimination matters in New Hampshire and Massachusetts has determined that disability and gender federal employment discrimination claims cannot be brought against individuals and the trial court judge in this case also found that a federal age employment discrimination case would, likewise, be considered by that same appeals court not to include individual liability and therefore the trial judge dismissed the claims of individual liability that Gascard raised thereby leaving her claims of federal employment discrimination based upon disability, gender, and age solely against the University.

As noted above, Gascard also complained that the defendants were negligent in that they failed to exercise due care by failing to supervise the remaining defendants and/or by failing to protect her. The Court noted that New Hampshire’s Worker’s Compensation Statute bars such negligence claims against the employer or the employees leaving her exclusive remedy rights under the state worker’s compensation law. The Court clarified, however, in the Decision that while the worker’s compensation law prohibits such negligence claims, federal employment discrimination laws preempt the state worker’s compensation laws. Therefore, Gascard could continue on with her federal employment discrimination claims against the University.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.

Tuesday, March 31, 2015

Radio Program: March 31, 2015: "Resolving Claims as to Gift Manipulation"

March 31, 2015: Attorneys Kevin P. Rauseo and J. Daniel Marr discuss "Resolving Claims as to Gift Manipulation".

Monday, March 30, 2015

Who is a Common Law Spouse Under New Hampshire Law?

Common law marriage is recognized under New Hampshire law in very limited circumstances pursuant to a New Hampshire statute, RSA 457:39, and only applies when one of the people in the relationship has died and the other claims their spousal share of the decedent’s assets. In order for the survivor to be successful in a common law spouse claim, he must prove that he and the decedent cohabitated and acknowledged each other as husband and wife and were generally reputed to be such for a period of three years until the decedent’s death. The common law spouse statute requires that the acknowledgement of the other as one’s spouse involves declaration or avowal of the relationship. “Avowal” means an open declaration or frank acknowledgement. This statute was created many years ago when people who were not married, but living together, were often embarrassed to acknowledge that they were sharing a home and a bed, but were not married. These days it is much more common that people will have a boyfriend or girlfriend living with them and sharing a bed and freely acknowledge that they are not married. If two people were living together for 3 years sharing a bed and while acting as husband and wife would acknowledge to friends, relatives, and/or co-workers that they were not married, the common law spouse claim should be found to be invalid. Therefore the survivor would not generally be allowed to collect from his live-in girlfriend’s probate estate. Furthermore, if they had a break in their relationship, even for one month within the last three years during their relationship, resulting in one of them moving out of the home they shared, that break in cohabitation would also render a common law spouse claim invalid.

I have dealt with common law spouse claims, including litigation and mediation and can assist either side of this issue. I have also addressed claims by significant others as to a particular asset such as real estate and there was a constructive trust or de facto partnership claim because both people in the committed relationship had shared the expenses of that real estate.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.