Case updates this week:

September 5: In Holland v. DeWitt Public School, the Michigan Supreme Court denied Plaintiff-Appellant's (“Holland”) application for leave to appeal the judgment of the Court of Appeals, which affirmed the trial court’s decision to grant the Defendants-Appellees' (“Defendants”) Defendant’s motion to dismiss. Holland challenged the authority of the Defendant school district’s Superintendent to set forth a policy on mandatory masking during the COVID-19 pandemic without holding a public meeting under Michigan’s Open Meetings Act (“OMA”). The Michigan Supreme Court was not persuaded that this question required a Supreme Court review. However, Justice David F. Viviano, in his dissent, contended that this case presented an important issue of law concerning a potentially improper delegation of powers.

At the start of the 2021-2022 school year, the DeWitt Public School District Superintendent, Shanna Spickard, established a mandatory mask policy in response to the COVID-19 pandemic. In response, Holland filed a complaint seeking a declaratory judgment (that the mask mandate was unauthorized under the OMA), a permanent injunction (prohibiting the enforcement of the mask mandate), and exemplary damages against the Superintendent for intentionally violating the OMA by failing to hold a public meeting before issuing the mandatory mask policy. The school district Defendants argued that the Superintendent had the authority to issue a mask mandate under the school district’s Policy 8450, which provided guidance and authority to the Superintendent for controlling communicable diseases in schools, and which had been adopted in 1997 after a public hearing. The trial court granted summary disposition, a decision without trial, in favor of the Defendants. The Court of Appeals agreed with the trial court, holding that Policy 8450 was broad enough to authorize the Superintendent to issue a mask mandate as part of an effort to control a communicable disease. The Supreme Court declined to review the Court of Appeals’ decision.

Justice Viviano dissented from the Supreme Court’s decision not to review. Justice Viviano interpreted Policy 8450 to mean only that “it requires the superintendent to develop administrative guidelines for the removal and readmission of students and the instruction of staff in the detection of communicable diseases and measures for their prevention and control.” According to Justice Viviano, because Policy 8450 does not specifically mention mask mandates, it did not authorize the Superintendent to issue them. If the Policy could be read to include mask mandates without mentioning them, then it would be an “improper delegation of authority by the school board.” Justice Viviano’s reasoning in his dissent tracks with the reasoning behind the major questions doctrine and the Loper Bright decision (doing away with Chevron deference) in the federal court context. That reasoning is that delegations of rule-making authority must be impossibly specific to be proper, and courts - not policy-making bodies or the agencies that administer policies - get to decide what is a sensible and lawful delegation of authority to make granular decisions under general rules.

We would like to point out that the state of Michigan elects its judges. There are two seats on the Michigan Supreme Court that are up for election in November. Be sure to vote in your local judicial elections. It matters to public health.

September 5: The United States District Court for the Southern District of New York, in Marciano v. NBCUniversal, granted NBCUniversal Media LLC’s (“Defendant”) motion to dismiss Samanta Marciano’s (“Plaintiff”) complaint. Plaintiff was a Content Product Producer for Defendant from September 2019 to February 8, 2022. She had taken medical leave for hand surgery from June 2020 to October 2020 and again in June of 2021. Meanwhile,

Defendant, in response to the COVID-19 pandemic, instituted a policy that all employees had to be fully vaccinated by February 10, 2022. Plaintiff received the first dose of the COVID-19 vaccine in August 2021, to which she had an “adverse medical reaction.” Plaintiff alleged that her primary physician advised her not to take a second dose. Thus, she requested a medical exemption from taking the second dose of the vaccine. Defendant’s Vice President of Human Resources told Plaintiff to seek a second opinion from a third-party medical service and informed Plaintiff that any accommodation to work from home would be temporary because the position would transition to “on-site only.”

On December 31, 2021, Plaintiff submitted a second medical opinion and filed her request for accommodation to work from home. Plaintiff was not allowed to work from home while Defendants processed her request. On February 1, 2022, Plaintiff resigned from her position because “of NYC’s vaccine mandate 2nd dose requirement and her medical issue from the first COVID shot.” On February 8, 2022, Defendant told Plaintiff for the first time that her accommodation request was approved as of February 1st.

The Plaintiff asserted two employment disability discrimination claims against Defendant. The first related to her hand surgery which occurred outside the statute of limitations. The Court dismissed Plaintiff’s claims relating to her hand surgery as time-barred because she had not alleged facts that could explain how Defendant’s denial of her request for post-hand surgery accommodation, which occurred a year and a half earlier, and the delay in responding to her vaccine accommodation request “collectively constitute[d] one unlawful practice.” While Plaintiff’s second claim, that Defendant had constructively denied her accommodation request by virtue of their lengthy delay in approving it, was not time-barred. However, the Court dismissed this claim because Plaintiff had not alleged any facts from which “Defendant’s discriminatory intent may be inferred.”

In addition, the Court dismissed Plaintiff’s theory of constructive discharge. Constructive discharge occurs “when the employer, rather than acting directly, deliberately makes an employee’s working conditions so intolerable that the employee is forced into involuntary resignation.” The Court concluded that Defendant’s actions, telling Plaintiff that a work-from-home accommodation would be temporary, taking 32 days (about 1 month) to process Plaintiff’s accommodation request, and waiting a week to notify her that her accommodation request had been approved was not abusive and did not rise to the level of constructive discharge.