Section § 395.1: Scope of rules in this part.
Question 1: What hours-of-service regulations apply to drivers operating between the United States and Mexico or between the United States and Canada?
When operating Commercial Motor Vehicle (CMV)s, as defined in §390.5 in the United States, all hours-of-service provisions apply to all drivers of Commercial Motor Vehicle (CMV)s, regardless of nationality, point of origin, or where the driving time or on-duty time was accrued.
Question 2: If a driver invokes the exception for adverse driving conditions, does a supervisor need to sign the driver’s record of duty status when he/she arrives at the destination?
Question 3: May a driver use the adverse driving conditions exception if he/she has accumulated driving time and on-duty (not driving) time, that would put the driver over 15 hours or over 70 hours in 8 consecutive days?
No. The adverse driving conditions exception applies only to the 10-hour rule.
Question 4: Are there allowances made in the Federal Motor Carrier Safety Regulations (FMCSRs) for delays caused by loading and unloading?
No. Although the regulations do make some allowances for unforeseen contingencies such as in §395.1(b), adverse driving conditions, and §395.1(b)(2), emergency conditions, loading and unloading delays are not covered by these sections.
Question 5: How may a driver utilize the adverse driving conditions exception or the emergency conditions exception as found in §395.1(b), to preclude an hours of service violation?
An absolute prerequisite for any such claim must be that the trip involved is one which could normally and reasonably have been completed without a violation and that the unforeseen event occurred after the driver began the trip.
Drivers who are dispatched after the motor carrier has been notified or should have known of adverse driving conditions are not eligible for the two hours additional driving time provided for under §395.1(b), adverse driving conditions. The term “in any emergency” shall not be construed as encompassing such situations as a driver’s desire to get home, shippers’ demands, market declines, shortage of drivers, or mechanical failures.
Question 6: What does “servicing” of the field operations of the natural gas and oil industry cover?
The "24-hour restart" provision of § 395.1(d)(1) is available to drivers of the broad range of commercial motor vehicles (CMVs) that are being used for direct support of the operation of oil and gas well sites, to include transporting equipment and supplies (including water) to the site and waste or product away from the site, and moving equipment to, from, or between oil and gas well sites. These CMVs do not have to be specially designed for well site use, nor do the drivers require any special training other than in operating the CMV.
Question 7: What is considered “oilfield equipment” for the purposes of 395.1(d)(1)?
Oilfield equipment is not specifically defined in this section. However, its meaning is broader than the “specially constructed” commercial motor vehicles referred to in §395.1(d)(2), and may encompass a spectrum of equipment ranging from an entire vehicle to hand-held devices.
Question 8: What kinds of oilfield equipment may drivers operate while taking advantage of the special rule of Section 395.1(d)(2)?
The "waiting time" provision in Section 395.1(d)(2) is available only to operators of those commercial motor vehicles (CMVs) that are (1) specially constructed for use at oil and gas well sites, and (2) for which the operators require extensive training in the operation of the complex equipment, in addition to driving the vehicle. In many instances, the operators spend little time driving these CMVs because "leased drivers" from driveaway services are brought in to move the heavy equipment from one site to another. These operators typically may have long waiting periods at well sites, with few or no functions to perform until their services are needed at an unpredictable point in the drilling process. Because they are not free to leave the site and may be responsible for the equipment, they would normally be considered "on duty" under the definition of that term in § 395.2. Recognizing that these operators, their employers, and the well-site managers do not have the ability to readily schedule or control these driver’s periods of inactivity, Section 395.1(d)(2) provides that the "waiting time" shall not be considered on-duty (i.e., it is off-duty time). During this "waiting time," the operators may not perform any work-related activity. To do so would place them on duty. Examples of equipment that may qualify the operator/driver for the "waiting time exception" in Section 395.1(d)(2) are vehicles commonly known in oilfield operations as heavy-coil vehicles, missile trailers, nitrogen pumps, wire-line trucks, sand storage trailers, cement pumps, "frac" pumps, blenders, hydration pumps, and separators. This list should only be considered examples and not all-inclusive. Individual equipment must be evaluated against the criteria stated above: (1) Specially constructed for use at oil and gas well sites, and (2) for which the operators require extensive training in the operation of the complex equipment, in addition to driving the vehicle infrequently. Operators of CMVs that are used to transport supplies, equipment, and materials such as sand and water to and from the well sites do not qualify for the "waiting time exception" even if there have been some modifications to the vehicle to transport, load, or unload the materials, and the driver required some minimal additional training in the operation of the vehicle, such as running pumps or controlling the unloading and loading processes. It is recognized that these operators may encounter delays caused by logistical or operational situations, just as other motor carriers experience delays at shipping and receiving facilities. Other methods may be used to mitigate these types of delays, which are not the same types of waiting periods experienced by the CMV operators who do qualify for the waiting time exception.
Question 9: Are drivers required to be dedicated permanently to the oilfield industry, or must they exclusively transport oilfield equipment or service the field operations of the industry only for each eight-day (or shorter) period ended by an off-duty period of 24 or more consecutive hours?
A driver must exclusively transport oilfield equipment or service the field operations of the industry for each eight-day (or shorter) period before his/her off-duty period of 24 or more consecutive hours. However, he/she must be in full compliance with the requirements of 395.3(b) before driving other commercial motor vehicles not used to service the field operations of the natural gas or oil industry.
Question 10: A driver is used exclusively to transport materials (such as sand or water) which are used exclusively to service the field operations of the natural gas or oil industry. Occasionally, the driver has leftover materials that must be transported back to a motor carrier facility or service depot. Would such a return trip be covered by §395.1(d)(1)?
Yes. Transporting excess materials back to a facility from the well site is part of the servicing operations. However, such servicing operations are limited to transportation back and forth between the service depot or motor carrier facility and the field site. Transportation of materials from one depot to another, from a railhead to a depot, or from a motor carrier terminal to a depot, is not considered to be in direct support of field operations.
Question 11: May specially trained drivers of specially constructed oil well servicing vehicles cumulate the 8 consecutive hours off duty required by §395.3 by combining off-duty time or sleeper-berth time at a natural gas or oil well site with off-duty time or sleeper-berth time while en route to or from the well?
These drivers may cumulate the required 8 consecutive hours off duty by combining two separate periods, each at least 2 hours long, of off-duty time or sleeper-berth time at a natural gas or oil well location with sleeper-berth time in a Commercial Motor Vehicle (CMV) while en route to or from such a location. They may also cumulate the required 8 consecutive hours off duty by combining an off-duty period of at least 2 hours at a well site with: (1) another off-duty period at the well site that, when added to the first such period, equals at least 8 hours, or (2) a period in a sleeper-berth, either at or away from the well site, or in other sleeping accommodations at the well site, that, when added to the first off-duty period, equals at least 8 hours.
However, such drivers may not combine a period of less than 8 hours off duty away from a natural gas or oil well site with another period of less than 8 hours off duty at such well sites. The special provisions for drivers at well sites are strictly limited to those locations.
The following table indicates what types of off-site and on-site time periods may be combined.
Question 12: What constitutes the 100-air-mile radius exemption?
The term “air mile” is internationally defined as a “nautical mile” which is equivalent to 6,076 feet or 1,852 meters. Thus, the 100 air miles are equivalent to 115.08 statute miles or 185.2 kilometers.
Question 13: What documentation must a driver claiming the 100-air-mile radius exemption (§395.1(e)) have in his/her possession?
Question 14: Must a motor carrier retain 100-air-mile driver time records at its principal place of business?
No. However, upon request by an authorized representative of the Federal Highway Administration (FHA) or State official, the records must be produced within a reasonable period of time (2 working days) at the location where the review takes place.
Question 15: May an operation that changes its normal work-reporting location on an intermittent basis utilize the 100-air-mile radius exemption?
Yes. However, when the motor carrier changes the normal reporting location to a new reporting location, that trip (from the old location to the new location) must be recorded on the record of duty status because the driver has not returned to his/her normal work reporting location.
Question 16: May a driver use a record of duty status form as a time record to meet the requirement contained in the 100-air-mile radius exemption?
Yes, provided the form contains the mandatory information.
Question 17: Is the “mandatory information” referred to in the previous guidance that required of a normal RODS under section 395.8(d) that of the 100-air-mile radius exemption under section 395.1(e)(5)?
The “mandatory information” referred to is the time records specified by §395.1(e)(5) which must show: (1) the time the driver reports for duty each day; (2) the total number of hours the driver is on duty each day; (3) the time the driver is released from duty each day; and (4) the total time for the preceding 7 days in accordance with §395.8(j)(2) for drivers used for the first time or intermittently.
Question 18: Must the driver’s name and each date worked appear on the time record prepared to comply with §395.1(e), 100-air-mile radius driver?
Yes. The driver’s name or other identification and date worked must be shown on the time record.
Question 19: May drivers who work split shifts take advantage of the 100-air-mile radius exemption found at §395.1(e)?
Yes. Drivers who work split shifts may take advan-tageofthe100-air-mileradiusexemption if:1. The drivers operate within a 100-air-mile radius of their normal work-reporting locations; 2. The drivers return to their work-reporting locations and are released from work at the end of each shift and each shift is less than 12 consecutive hours; 3. The drivers are off-duty for more than 8 consecutive hours before reporting for their first shift of the day and spend less than 12 hours, in the aggregate, on-duty each day; 4. The drivers do not exceed a total of 10 hours driving time and are afforded 8 or more consecutive hours off-duty prior to their first shift of the day; and 5. The employing motor carriers maintain and retain the time records required by 395.1(e)(5) .
Question 20: May a driver who is taking advantage of the 100-air-mile radius exemption in §395.1(e) be intermittently off-duty during the period away from the work-reporting location?
Yes, a driver may be intermittently off-duty during the period away from the work-reporting location provided the driver meets all requirements for being off-duty. If the driver’s period away from the work-reporting location includes periods of off-duty time, the time record must show both total on-duty time and total off-duty time during his/her tour of duty. In any event, the driver must return to the work-reporting location and be released from work within 12 consecutive hours.
Question 21: When a driver fails to meet the provisions of the 100 air-mile radius exemption (section 395.1(e)), is the driver required to have copies of his/her records of duty status for the previous seven days? Must the driver prepare daily records of duty status for the next seven days?
The driver must only have in his/her possession a record of duty status for the day he/she does not qualify for the exemption. A driver must begin to prepare the record of duty status for the day immediately after he/she becomes aware that the terms of the exemption cannot be met The record of duty status must cover the entire day, even if the driver has to record retroactively changes in status that occurred between the time that the driver reported for duty and the time in which he/she no longer qualified for the 100 air-mile radius exemption. This is the only way to ensure that a driver does not claim the right to drive 10 hours after leaving his/her exempt status, in addition to the hours already driven under the 100 air-mile exemption.
Question 22: A driver returns to his/her normal work reporting location from a location beyond the 100-air-mile radius and goes off duty for 7 hours. May the driver return to duty after being off-duty for 7 hours and utilize the 100-air-mile radius exemption?
No. The 7-hour off-duty period has not met the requirement of 8 consecutive hours separating each 12-hour on-duty period. The driver must first accumulate 8 consecutive hours off-duty before operating under the 100 air-mile radius exemption.
Question 23: Is the exemption contained in §395.1(f) concerning department store deliveries during the period from December 10 to December 25 limited to only drivers employed by department stores?
No. The exemption applies to all drivers engaged solely in making local deliveries from retail stores and/or retail catalog businesses to the ultimate consumer, when driving solely within a 100-air-mile radius of the driver’s work-reporting location, during the dates specified.
Question 24: May time spent in sleeping facilities being transported as cargo (e.g., boats, campers, travel trailers) be recorded as sleeper berth time?
No, it cannot be recorded as sleeper berth time.
Question 25: May sleeper berth time and off-duty periods be combined to meet the 8-hour off-duty requirement?
Yes, as long as the 8-hour period is consecutive and not broken by on-duty or driving activities. This does not apply to drivers at natural gas or oil well locations who may separate the periods.
Question 26: May a driver record sleeper berth time as off-duty time on line one of the record of duty status?
No. The driver’s record of duty status must accurately reflect the driver’s activities.
Question 27: After accumulating 8 consecutive hours of off-duty time, a driver spends 2 hours in the sleeper berth. The driver then drives a Commercial Motor Vehicle (CMV) for 10 hours, then spends6 hours in the sleeper berth. May the driver combine the two sleeper berth periods to meet the required 8 consecutive hours of off-duty time per §395.1(h), then drive for up to 10 more hours?
No. The 10 hours of driving time between the first and second sleeper berth periods must be considered in determining the amount of time that the driver may drive after the second sleeper berth period. Sleeper berths are intended to be used between periods of on-duty time. When a driver has already been off duty for more than 8 consecutive hours, and has therefore had adequate opportunity to rest, he/she may not “save” additional hours before going on duty and add them to the next sleeper berth period. In short, a driver must be on duty before he/she begins to accumulate sleeper berth time. The driver in your scenario is operating in violation of the hours of service regulations for the entire second 10-hour driving period until that driver is able to secure at least 8 consecutive hours of off-duty time.
Question 28: Does the emergency conditions exception in 49 CFR 395.1(b)(2) apply to a driver who planned on arriving at a specific rest area to complete his 10 hours driving and found the rest area full, forcing the driver to continue past the ten hours driving looking for another safe parking area?
No. The emergency conditions exception does not apply to the driver. It is general knowledge that rest areas have become increasingly crowded for commercial motor vehicle parking, thus, it is incumbent on drivers to look for a parking spot before the last few minutes of a 10 hour driving period. The driver should provide the reason for exceeding the 10 hours driving in the Remarks section of the record of duty status.
Question 29: Must a motor carrier that uses a 100-air-milera-dius driver write zero (0) hours on the time record for each day the driver is off duty (not working for the motor carrier)?
No. Section 395.1(e)(5) requires a motor carrier to maintain “accurate and true time records” for each driver. These records must show the time the driver goes on and off duty, as well as the total number of hours on duty, each day. The lack of a time record for a 100-air-mile radius driver on any given day is therefore a statement by the motor carrier that the driver was not on duty that day. If an investigator discovers that the driver was in fact on duty, despite the absence of a time record, the motor carrier has violated §395.1(e)(5) because it has not maintained “true and accurate time records.” Appropriate enforcement action may then be taken.
Question 31: Does fuel used in the production of agricultural commodities qualify as “farm supplies” under 49 CFR 395.1(k)?
Fuel qualifies as a farm supply if (1) it is “for agricultural purposes,” e.g. used in tractors or other equipment that cultivate agricultural commodities or trucks that haul them, but not in automobiles, station wagons, SUVs or other vehicles designed primarily to carry passengers, or for residential heating or cooking; (2) it is transported within the planting and harvesting season, as determined by the State, and within a 100 air–mile radius of the distribution point for fuel; (3) the motor carrier is operating in interstate commerce; and (4) the entire fuel load on the vehicle is to be delivered to one or more farms. A carrier may not use the exemption if any portion of the fuel load is to be delivered to a non-farm customer.
Question 32: Can a for-hire motor carrier located in Canada transport farm supplies and/or equipment for agricultural purposes to a location in the U.S. without having to comply with Part 395?
Yes, if a Canadian driver meets all of the requirements of the 49 CFR 395.1(k) definition of ”agricultural operations,” the provisions of Part 395 do not apply so long as the trip occurs only during the official ”planting and harvesting season” as designated by each State.
Question 33: If a driver using either short-haul exception in § 395.1(e) finds it necessary to exceed the exception limitations for unforeseen reasons, is the driver in violation of the § 395.3 rest break provision if more than 8 hours have passed without having taken the required rest break?
No. A driver using a § 395.1(e) short-haul exception who finds it necessary to exceed the exception limitations for unforeseen reasons, is not in violation of the § 395.3 rest-break requirements if 8 or more hours have passed at the time the driver becomes aware of the inability to use the short-haul exception. The driver should annotate the record-of-duty-status to indicate why the required rest break was not taken earlier, and should take the break at the earliest safe opportunity.


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Attorney: Thomas E. Ralston and Alonzo C. Church for appellant. Seddon & Blair for respondent.
Thomas E. Ralston and Alonzo C. Church for appellant.
(1) The court erred in refusing to permit defendant to strike out of its answer the erroneous admission as to possession contained in such answer. Carr v. Moss, 87 Mo. 447; Waverly Timber Co. v. Cooperage Co., 112 Mo. 383. (2) Considered as an action of ejectment simply, independent of defendant's character as a public railroad corporation the court erred in rendering judgment for plaintiff for any land whatever. (3) The evidence showed erroneous calls in the deed and plat, and the plat contrives the deed under the circumstances of this case and the "stone" indicated within the lines shaded in red on the plat and the stakes set in accordance therewith control the plat, particularly as Clark offered to sell "as platted" which offer was not accepted until after the stakes were set as Clark demanded. (4) Where a natural monument is shown by a plat annexed to a patent as being within the lines of the patent, the land must be so surveyed as to include the natural monument, and conform as nearly as may be to the plat, although the lines thus run do not correspond with the courses and distances mentioned in the patent, and which would not include the natural monument, and although neither the certificate of survey, nor the patent, calls for such natural monument. McIver's Lessee v. Walker, 9 Cranch, 173; McIver's Lessee v. Walker, 4 Wheat. 445; Shelton v. Maupin, 16 Mo. 124; Myers v. City, 82 Mo. 373. (5) The always pays greater regard to the intention of the parties than to the particular words used to express that intention. Gibson v. Bogy, 28 Mo. 478; Jamison v. Fopiano, 48 Mo. 194; Rutherford v. Tracy, 48 Mo. 325; Thompson v. Thompson, 115 Mo. 56; Leitensdorfer v. Delphy, 15 Mo. 161; Ford v. Beach, 11 Q. B. 866. (6) The intention of the parties having been ascertained from the deed, the plat, the possession taken by defendant and the evidence in the cause, this court will be astute in order to carry out such intention and prevent such wrong, hardship and injustice as will inevitably result to defendant by allowing the judgment and decree of the court below to stand. Ford v. Beach, 11 Q. B. 866; Agan v. Shannon, 103 Mo. 661; Kronenberger v. Hoffner, 44 Mo. 185. (7) This case considered as an action of ejectment against a public railroad corporation, the plaintiff should not have been allowed to recover. Clark stood by, after having examined the premises with the plat in his possession, and before the sale, with full knowledge of the location of his ancient "line stone" indicated on the plat and of the expense incurred by defendant in building its road, for about seven years, and only after he had sold his land to the west of this right of way to Marcus A. Wolf, in trust for the Wiggins Ferry Company, the largest stockholder of defendant, did he complain. Under these circumstances Clark is estopped by deed, license, acquiescence and the public policy of the state of Missouri from recovering, in ejectment, any portion of the right of way occupied by defendant, either on the ground that the mistaken calls for distance to Hall street and First street controlled the other clauses in the deed and plat, and the plat itself, and the "stone" therein mentioned, or otherwise. Dodd v. Railroad, 108 Mo. 581; McClellan v. Railroad, 103 Mo. 295; 2 Wood on R'ys [Ed. 1894], ch. 14, p. 924; Goddin v. Canal Co., 18 Ohio St. 169; Railroad v. Allen, 113 Ind. 581. (8) This makes a case of reformation on the ground of mutual mistake. Snell's Principles of Equity, pp. 372-375; Leitensdorfer v. Delphy, 15 Mo. 160; Cassidy v. Metcalfe, 66 Mo. 519; Griffith v. Townly, 69 Mo. 13; Flynn v. Herye, 4 Mo.App. 360. (9) Though the sale of the right of way was made "as platted," yet there is a latent ambiguity in the plat, and the intended boundaries will in all cases govern if the parties believe the description used in the deed corresponds with the boundaries, although the exact language intended to be used was used both in the contract of purchase and in the deed itself. 2 Pom. Eq. Juris. [2 Ed.], sec. 853; Johnson v. Taber, 10 N.Y. 319; Bush v. Hicks, 60 N.Y. 292; May v. Adams, 58 Ver. 74; Butler v. Barnes, 60 Conn. 170; Co. v. Marshall, 59 N.W. 294.
Seddon & Blair for respondent.

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1. On or about September 9, 2017, Petitioner, Alsharif L. Scriven, filed a motion to vacate his December 2015 conviction pursuant to 28 U.S.C. § 2255. (ECF No. 1).
2. On September 28, 2017, this Court administratively terminated this matter as Petitioner had not filed his motion on the required form. (ECF No. 2).
3. On or about October 19, 2017, Petition filed an amended motion to vacate sentence on the required form. (ECF No. 3).
4. On October 26, 2017, this Court entered an order directing Petitioner to show cause why his amended motion should not be dismissed as time barred within thirty days. (ECF No. 4). Petitioner was informed in that order that failure to respond could result in the dismissal of his § 2255 motion with prejudice as time barred. (Id.).
5. On November 27, 2017, Petitioner filed with the Court a letter requesting a forty-five day extension of time within which to respond to the show cause order. (ECF No. 5). This Court granted that request on November 30, 2017, and directed Petitioner to file his response within forty-five days. (ECF No. 6). Despite the passage of more than three months, Petitioner has not filed a response. (ECF Docket Sheet).
this Court is required to review Petitioner's motion pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings and “dismiss the motion” if it “plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Pursuant to the rule, this Court is “authorized to dismiss summarily any habeas [motion] that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
Motions brought pursuant to 28 U.S.C. are subject to a one year statute of limitations. 28 U.S.C. § 2255(f). That limitation period begins to run from the latest of the following events: the date on which the Petitioner's conviction becomes final, which includes the time in which a Petitioner could have filed an appeal where he fails to do so, see Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999); the date on which an impediment created by the Government is removed; the date on which the right asserted was first recognized by the Supreme Court where a new right has been recognized by the Court and made retroactive to cases on collateral review; or the date on which the facts supporting the claim first became discoverable through due diligence. See 28 U.S.C. § 2255(f)(1)-(4). As a criminal defendant must file his notice of appeal from his conviction within fourteen days, the conviction of a petitioner who fails to file a direct appeal becomes final for statute of limitations purposes fourteen days after his sentencing. See Johnson v. United States, 590 F. App'x 176, 177 (3d Cir. 2014); see also Kapral, 166 F.3d at 577; Fed. R. App. P. 4(b)(1)(A)(i).
In this matter, Petitioner pled guilty and was thereafter sentenced in December 2015, with his judgment of conviction being entered on December 3, 2015. (ECF No. 3 at 1). By his own admission, Petitioner did not appeal, (see id.), and his conviction therefore became final fourteen days later on December 17, 2015. Thus, to the extent that his statute of limitations ran from the date on which his conviction became final, that limitations period expired as of December 17, 2016, some nine months before Petitioner filed his initial motion to vacate sentence. Absent an alternate date for the running of the statute of limitations or equitable tolling, Petitioner's current motion is thus time barred.
Equitable tolling “is a remedy which should be invoked ‘only sparingly.'” United States v. Bass, 268 F. App'x 196, 199 (3d Cir. 2008) (quoting United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). To receive the benefit of equitable tolling in a § 2255 matter, a petitioner must show “(1) that he faced ‘extraordinary circumstances that stood in the way of timely filing, ' and (2) that he exercised reasonable diligence.” Johnson, 590 F. App'x at 179 (quoting Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)).


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Below is a list of all of the veterans whose last name begins with the letter M.
Mabrey, T. J. MacGregor, Robert R. Macias, J. D. Mackintosh, R. G.
Madden, G. B. Maddox, Carl Owen Madison, Herbert Madsen, Arthur A.
Mafrica, Anthony F. Magar, Bernard W. Magistro, J. Magliolo, S.
Mainville, Robert R. Maki, R. V. Mallatt, James P. Malone, J. L.
Maloney, Joseph P. Maloney, R. L. Maloney, Robert L. Mangiarcina, P.
Mangrum, Ernest R. Mangum, C. E. Manke, G. O. A. Mann, Charles W.
Maria, J. B. Marino, J. R. Markham, William W. , Jr. Markland, Henry T.
Marks, W. D. Marks, W. J. Marlatt, Clare L. Marlatt, W. R.
Marpert, C. D. Marquardt, W. F. Marsh, Joe Burnett Marsh, W. W.
Marshall, H. L. Marshall, L. C. Marshall, S. E. Marshall, V. E.
Marshel, B. W. Martha, J. J. Martin, A. J. Martin, D. F.
Martin, Don S. Martin, E. F. Martin, J. A. Martin, J. L.
Martin, James C. Martin, James W. Martin, Norman C. Martin, R. E.
Martin, R. Martin, Rolland A. Martin, V. L. Martin, W. A.
Martineau, L. D. Martinez, Frank Charles Martinez, G. W. Martinez, M. G.
Martinez, Marcos C. Martinez, Refugio R. Martinez, W. A. Martinie, Billy K.
Martinson, W. F. Mascarenas, H. J. Masci, Robert J. Mashura, A.
Mask, Hubert C. Mason, John R. Mastalerz, Rudolph S. Mata, Jesus M.
Matherly, Fred G. Matheson, John M. Mathews, George F. , Jr. Mathis, R. , Jr.
Mathison, D. M. Mathison, Donald J. Matkins, H. K. Matley, A. W.
Matlock, W. E. Matney, A. T. Matteson, H. L. Matthews, R. P.
Mattlage, H. Mauldin, R. B. Maullin, Charles C. Maurice, L. L.
Maxfield, George L. May, Eugene F. May, J. C. May, J. R.
May, John G. May, S. H. Mayer, R. R. Mayes, Elbert T.
Mayeux, J. S. Maynard, J. A. Mayo, W. C. Mazejka, Frank M. , Jr.
Mazerat, Andrew S. , Jr. Mazetis, Joseph J. Mazur, Frank M. McAnn, James L.
McArthur, D. P. McAuley, John J. , Jr. McBee, Luther K. McCabe, A. L.
McCaffrey, J. B. McCamman, Percy K. McCann, A. T. McCarthy, Joseph R.
McCarthy, Richard P. McCartney, A. W. McCartney, Harley V. McCarty, R. S.
McClenny, Letcher C. McClure, E. F. McClure, M. T. McCollom, Howard E.
McCollom, Lawrence J. McComas, Clarence W. McComas, William I. H. McCombs, William A.
McCormick, James P. McCoy, Charles R. McCoy, Edward L. McCranie, William T.
McCrary, Sanford McCreary, W. E. McCulloch, D. L. McCullough, Robert R.
McCullum, Teddy C. McCurdy, George H. , Jr. McCutcheon, Eugene R. McDermott, Bernard F.
McDermott, Edward L. , MD. McDermott, Nicholas A. McDonald, J. F. McDonald, O. C.
McDonald, R. R. McDonald, Robert A. McDowell, B. F. McDowell, J. M.
McElroy, Robert W. McElroy, W. S. McFarland, Auborn J. , Jr. McFarland, J. I.
McGarrigle, R. J. McGechie, M. F. McGill, A. McGill, D. L.
McGinnis, Fred E. McGinnis, H. L. McGuckin, F. J. McGuire, William G.
McKibben, James B. McKinley, Ralph G. McKinney, C. E. McKinney, Hubert L.
McKinney, James Vernon McKinney, Warren C. McKnight, Lester W. McKnight, Thomas P.
McLaughlin, J. F. McLear, Frank W. McMahon, T. H. McMichen, Atticus L.
McMillin, John McMurrain, R. L. McMurray, T. B. McNabney, Donald H.
McNally, James F. McNamara, C. F. McNatt, James R. McNear, Charles F.
McNeely, Richard D. McNeely, William R. McNeil, William C. McNeill, J. M.
McNeill, James M. McNutt, Benjamin H. McPhail, G. R. McPherson, W. A.
McQuaid, J. D. McQuaid, William H. , Jr. Mead, Charles W. Mead, Eugene R.
Meador, George E. Meadowcroft, Clyde L. Mears, C. H. Mears, Charles H.
Mecham, Eugene N. Medina, J. A. Medlin, Edward L. Medlin, G. E.
Meehan, Jim O. Megahan, Earl J. Meglis, John A. Melior, M. E.
Merritt, Timothy M. Mesenbrink, Russell L. Methe, Robert G. Mettler, A. J.
Meyer, Alton L. Meyer, G. E. Meyers, Robert J. Michaelis, B. J.
Michaelson, Gordon A. Michalek, Andrew Michalek, Joseph L. Michenovich, Thomas W.
Milekovich, George T. Milholland, M. B. Millar, John Spofford Millar, R. C.
Millard, K. E. Miller, Bernard Miller, Claude V. Miller, Clyde H.
Miller, Doris Miller, G. F. Miller, Hardy J. , Jr. Miller, J. L.
Miller, J. V. Miller, Jack F. Miller, Lyle L. Miller, M. M.
Miller, Mack D. Miller, Paul R. Miller, R. J. Miller, R. L.
Miller, R. Miller, Ray Miller, Roy L. Miller, T. W.
Miller, Vernon C. Miller, Voyle Miller, W. K. Miller, William C.
Miller, William Riley Miller, Y. A. Milligen, John J. Mills, David A.
Mills, David Harvey Mills, Davis G. Mills, William Samuel , Jr. Millwee, R. E.
Milne, D. R. Milner, John H. Milner, Norman Mims, Hulon H.
Mims, James J. Mincey, Harry L. Minchew, Ernest Miner, Gordon L.
Miner, L. V. Miniea, S. J. Minor, Kenneth Wyatt Mister, Joe E.
Mitchell, Paul J. Mitchell, Rufus D. Mitchell, Samuel S. , Jr. Moff, Edward C.
Mohr, F. H. Mohrland, E. Molenhauer, C. C. Molina, J.
Mollenkopf, B. Molzhan, L. V. Monaghan, James A. Monroe, J. R.
Montgomery, Wallace Alford Montieth, Earl Moody, A. T. Moody, Festus L.
Moon, J. C. Moonen, Francis E. Mooneyham, Michael Moore, A. L.
Moore, Elmer Moore, G. Y. Moore, Hubert O. Moore, Jesse D.
Moore, John A. Moore, John James Moore, M. E. Moore, Paul J.
Moore, W. B. Moore, Weaver E. Moose, Robert R. Moran, J.
Moran, L. E. Morgan, J. L. Morgan, Kenneth E. Morgan, Lester R.
Morgan, Richard W. Morgan, Thomas M. Morisette, Joseph Alfred R. Morlan, L. A.
Morris, Bill S. Morris, Comelis Morris, H. A. Morris, L. W. G.
Morris, William Francis Morrow, Edward S. Morse, E. E. Morse, Franklin E.
Mortimeyer, E. R. Moss, H. L. Mount, I. G. Mountney, C. L.
Mourning, L. R. Mourray, James W. Moutray, James T. Moyer, E. W.
Moylan, Donald U. Mrace, Albin J. Mrazek, Steven Mucgynski, B. S.
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Mullinex, D. C. Munro, H. Murdock, Isaac Murfin, Orin G.
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Myers, Merion K. Myers, Rollin H.

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State and federal courts handed down labor and employment decisions last year that California employers must be aware of. Read about these decisions that impact everything from equal pay to medical leave, and more.
In this two-part annual series, Best Best & Krieger LLP takes a comprehensive look at the new laws and recent court decisions impacting public and private employers and employees.
AHMC Healthcare, Inc. v. Superior Court: Payroll systems that round employee clock-in and clock-out times, either up or down, to the nearest quarter hour align with California law so long as the system is fair, neutral and does not undercompensate employees over time, the Second District Court of Appeal held. Evidence in this case showed employees, as a whole, were significantly overcompensated under the system. The court held that, while some employees — including the named plaintiffs — lost a minimal amount of time, the rounding method used here was fair and neutral.
Rizo v. Yovino: The U.S. Ninth Circuit Court of Appeals held that calculating a woman’s pay based on her previous salary is a form of gender discrimination and therefore a violation of the Federal Equal Pay Act. The practice, the court said, allows employers to capitalize on and perpetuate a persistent wage gap that undercuts the purpose of the Act. The appellate court held the Act’s “catch-all” exception for pay differentials is limited to legitimate job-related factors such as employment experience, ability or educational background. A U.S. Supreme Court petition is pending.
Abed v. Wester Dental Services: The plaintiff — a pregnant dental assistant — was falsely told no permanent positions were available following her externship and therefore didn’t apply for a position. When she learned that a position had been available and was awarded to another candidate, she sued for pregnancy discrimination under the California Fair Employment and Housing Act. The trial court granted summary judgment for the employer based on the plaintiff’s failure to apply for a position. The appellate court reversed, holding that, although plaintiffs in “failure to hire” cases must typically show they applied for a position, the plaintiff was not required to do so because her supervisor falsely stating no positions were open provided sufficient evidence of intentional pregnancy discrimination.
Arave v. Merrill Lynch: The defendant/employer defeated claims for discrimination, harassment and retaliation claims brought under the California Fair Employment and Housing Act and a wage claim brought under the Labor Code. The defendant filed motions, as the prevailing party, for costs, expert witness fees and attorney’s fees. The trial court denied the request for attorney’s fees on the FEHA claims, but granted the motion for attorneys’ fees on the wage claim and for recovery of expert witness fees. The plaintiff appealed and the defendant cross-appealed. The appellate court affirmed the trial court’s order denying the defendants’ motion for attorney’s fees for defense of the FEHA claims because FEHA claims must be frivolous, unreasonable, without foundation or brought in bad faith before a prevailing defendant is entitled to recover attorney’s fees. For the same reason, the appellate court reversed the trial court’s award of costs and expert witness fees, holding that a prevailing defendant in a FEHA case is not entitled to recover ordinary costs unless there is finding that the claims were frivolous. The appellate court rejected the defendants’ argument that they were entitled to recover expert witness fees under Code of Civil Procedure section 998 (which provides that expert costs incurred after an offer of compromise is rejected are recoverable if the plaintiff does not recover an amount greater than that which was offered in compromise), holding that section 998 does not override the requirement that costs can only be recovered if the underlying FEHA claims are found to be frivolous.
Camacho v. Target Corporation: The plaintiff/employee filed a workers’ compensation claim that was settled via a pre-printed “Compromise and Release” form. The plaintiff also signed a release that contained in an addendum that Target argued released it from all civil claims. The plaintiff then sued the company alleging harassment, discrimination and retaliation. A trial court dismissed the claims on summary judgement, finding the signed addendum constituted a broad release of any and all potential claims. The Fourth District Court of Appeal held that the form’s release did not apply to claims that were not within the scope of the workers’ compensation law, “unless otherwise expressly noted.” There was no reference to claims outside the workers’ compensation system and language did not show an intention to generally release all claims. The plaintiff was allowed to proceed with his claims.
Meeks v. AutoZone, Inc.: The plaintiff reported alleged sexual harassment to her supervisor who, in turn, allegedly threatened to fire the plaintiff and her husband (also an employee of AutoZone) if she pursued the sexual harassment claim. The plaintiff sued AutoZone alleging retaliation, among other things. The trial court granted summary adjudication in favor of AutoZone on the retaliation claim. The Fourth District Court of Appeal affirmed, holding that there was no evidence of adverse action following the plaintiff’s complaint. Viable retaliation claims brought under the California Fair Employment and Housing Act must demonstrate that adverse employment actions affected an employee’s job performance and/or opportunities for career advancement. Even if the plaintiff was threatened, there was no evidence that the threat was carried out. The plaintiff continued to be employed, didn’t lose pay, benefits or status and wasn’t denied a promotion.
Terris v. County of Santa Barbara: The plaintiff was laid off and filed a complaint with the County’s Civil Service Commission alleging her termination procedure violated her seniority rights. She later filed suit, alleging, among other things, the County terminated her in retaliation for making workplace complaints in violation of Labor Code section 1102.5. The trial court found that the plaintiff failed to exhaust her administrative remedies and granted summary judgment in favor of the County. The plaintiff appealed, arguing that Labor Code section 244 states that claimants aren’t required to exhaust administrative remedies unless the code section expressly requires it — and Labor Code section 1102.5 does not. The appellate court affirmed the trial court, holding that section 244 was enacted to protect the right to sue without first having to exhaust administrative proceedings before the Labor Commissioner, not an employer’s internal administrative remedies. The appellate court held that, pursuant to Campbell v. Regents of the University of California, employees must exhaust their employer’s internal administrative remedies before filing suit.
Wassman v. South Orange County Community College District: This case stems from the termination of a tenured librarian whose firing was upheld after a 5-day hearing before an administrative law judge. The plaintiff then filed a petition for writ of mandate alleging that the administrative law judge’s findings were not supported by the weight of evidence. The petition was denied. The plaintiff then sued the District alleging, for the first time, racial discrimination, age discrimination and harassment in violation of California’s FEHA. The trial court granted the County’s motions for summary judgment and the Fourth District Court of Appeal affirmed on the grounds that administrative proceedings under the state Education Code afford employees a robust due process platform where they can challenge adverse employment actions and judicial review is available.
Snapp v. United Transportation Union: The defendant, a trainmaster with sleep apnea who was unable to work, sued his employer under the American with Disabilities Act for failure to provide a reasonable accommodation. His benefits were discontinued after 5 years and he was terminated for failing to secure another position. The Ninth Circuit affirmed a ruling in favor of the defendant, holding that, to prevail, an employee alleging failure to accommodate must prove: that the employee is a qualified individual, the employer received notice of the employee’s disability and a reasonable accommodation was available that would not create an undue hardship for the employer. The court found that the employer had met these obligations. It is important to note that there might have been a different result under California law because FEHA, unlike the ADA, makes it unlawful for an employer to fail to engage in the interactive process. The ADA has no such standalone cause of action. The case below, brought under FEHA, demonstrates this.
Hernandez v. Rancho Santiago Community College: The plaintiff, an administrative assistant who was completing a required 1-year probationary period, was terminated while on temporary disability leave for a work-related injury. Suing the District under FEHA, she alleged her employer failed to both provide reasonable accommodation and engage in an interactive process. A trial court found in the plaintiff’s favor and awarded nearly $724,000 in damages. On appeal, the district argued it was compelled to terminate the plaintiff because she would have become a permanent employee without going through requisite performance evaluations. The appellate court disagreed, finding the college could have extended the probationary period by the length of her leave and conducted the evaluations upon her return to work after she completed a full 12-months of employment. The college was found to have also failed to engage in the interactive process because there was no exchange of information before a termination decision was made.
EEOC v. BNSF Railway Co.: The plaintiff received a conditional job offer contingent on a satisfactory post-offer medical review. During the review, he disclosed a previous back injury, but three doctors agreed there were no current limitations and no need for follow-up testing. BNSF, nonetheless, required the plaintiff to submit an MRI (paid for by the plaintiff) as a condition of employment. Unable to afford the MRI, his job offer was revoked. He filed a charge with the EEOC, which sued on his behalf in federal district court for alleged violations of the ADA. The Ninth Circuit upheld a decision that BNSF could not require Holt to pay for the MRI.
Dunlap v. Liberty Natural Products, Inc.: A shipping clerk diagnosed with problems in both elbows was terminated after the close of a workers’ compensation claim. A reinstatement pursuit was denied and the plaintiff sued for disability discrimination under the ADA and Oregon state law. The Ninth Circuit held that, once an employer is aware of the need for accommodations, it has a duty to engage in the interactive process to identify reasonable accommodations, which Liberty, in this matter, had failed to do.
Caldera v. California Department of Corrections and Rehabilitation: A California Department of Corrections and Rehabilitation correctional officer was publicly and repeatedly mocked for a speech impediment in front of other employees. On an appeal by the CDCR, the court upheld a jury verdict in the plaintiff’s favor because he was subjected to unwanted harassing conduct based on his disability; the harassment was severe and pervasive; a reasonable person in his position would have considered the work environment to be hostile or abusive; a supervisor participated in the harassing conduct and CDCR failed to take reasonable steps to prevent the harassment.
Read more about the new labor and employment laws impacting public and private employers and their employees in Part I of this series, which reviewed legislative changes and the #MeToo movement’s impact on laws shaping employee protections against sexual harassment.
If you have any questions about these new laws and how they may impact your business or agency, please contact the authors of this Legal Alert listed to the right in the firm’s Labor & Employment practice group or your BB&K attorney.

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NORTHEAST GEORGIA MEDICAL CENTER, INC. ET AL. v. HEALTHSOUTH ... UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA ET AL. ... GEORGIA DEPARTMENT OF PUBLIC SAFETY v. ... NICHOLLE JEANETTE GENS, AS ADMINISTRATOR OF THE ESTATE OF APRIL ..... MATTHEW DANIEL LOWERY v.
[ 00-1294 ] Lynn M. Heaser v. The Toro Company. [ 00-1364 ] John Lowery v. ... [ 00-2012 ] Nationwide Ins. Co. v. Central .... [ 01-2631 ] Ron Thomas, et al v. ... Alert Safety Light ...... [ 13-3492 ] Germain Real Estate Company v. ... Loretta E. Lynch.
Jun 18, 2013 ... v. THE COURT OF APPEALS. OF. NORTH CAROLINA. Chief Judge ..... Bynum, both individually and as administratrix of the estate of James ..... stitute a final resolution of any specific claim or of all claims relating to any ...... Lowery, 167 N.C. ...... Stat § 20-279 et seq., the Financial Responsibility Act of 1953.
Apr 5, 2019 ... Justice Lynn Kotler. 80 Centre Street .... Transportation , Inc.—9:30 A.M.. 156087/ 18 Michaelson v. All Souls ..... Caasualty Insurance Company v. ...... Estate. 28165/16 Hamadou v. Santana. Olaverria. 26937/16 Linval v. ..... Bilingual Safety Training .... 20562/17 Lowery v. ...... Learning Center, Inc., Et Al. (Q).
QVC Suffolk Inc. and Liberty Insurance Corporation 04/16/2019 .... Commonwealth of VA, Dept. of Professional & Occupational Regulation, et al. 02/ 26/ ... consent of the seller prior to advertising for sale a specific and identifiable real estate property ...... 0959144 Virginia Hospital Center and Safety National Casualty Corp. v.
Geico General Insurance Company, August 31, 2018 ... Calvin Hayden, et al., and Katherine Stocks, in her capacity as Official Custodian of Records .... 115,821, In the Matter of the Estate of Crocket A. Proffitt, June 25, 2018 ..... 117,068, Patrick Lynn v. .... Armour Swift Eckrich Meats, LLC and Safety National Casualty Corp.
Jan 20, 2004 ... of Duty Compensation Act, (g) all claims pursuant to the Illinois ..... APPLEWOOD NURSING AND REHAB CENTER, ET AL. ...... FOUNDERS INSURANCE COMPANY ...... INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF BETSY 06CC0742 ...... However the State is not an insurer of the safety of all.


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JUDGE JENNY LIND ALDECOA-DELORINO, Complainant, v. MARILYN DE CASTRO REMIGIO-VERSOZA, Clerk III, Regional Trial Court, Branch 137, Makati City, Respondent.
Before this Court is a letter-complaint1 dated April 30, 2007 filed by complainant Judge Jenny Lind Aldecoa-Delorino, Presiding Judge of the Regional Trial Court (RTC) of Makati City, Branch 137, with the Office of the Court Administrator (OCA) against respondent Marilyn de Castro Remigio-Versoza, Clerk III of the RTC of Makati City, Branch 137 for falsification of school records and dishonesty.
On June 8, 2001, respondent applied for the position of Clerk III at the RTC of Makati City, Branch 137, where complainant was the Presiding Judge. In her application papers, respondent appended an Official Transcript of Records (OTR) ostensibly certifying that she finished two (2) years of Bachelor of Science (B.S.) in Secretarial Education at the Polytechnic University of the Philippines (PUP) during the academic years 1976 to 1978. She likewise indicated in her Personal Data Sheet (PDS) dated June 8, 2001 that she graduated from the PUP with a degree in B.S. Secretarial, completing ninety (90) units of the said course for the academic years 1976 to 1978.
However, after respondent assumed her position as Clerk III, complainant received information that the former had falsified her school records in order to make herself appear qualified for the said position. Complainant learned that respondent did not actually take the said course of study at the PUP, although the latter's actual educational attainment could not be ascertained based on the records.
Complainant also discovered that respondent had previously used, or attempted to use, the payslip of one Catherine Aceveda, Legal Researcher of the RTC of Makati City, Branch 140, without the latter's knowledge or consent, as supporting documents in her application for a credit card. Complainant averred that respondent superimposed her own name and Tax Identification Number (TIN) over that of Aceveda. When Aceveda confronted respondent about the matter, the latter merely apologized, but failed to give a sufficient explanation as to how she was able to obtain the payslips belonging to Aceveda.
On April 30, 2007, complainant filed the present letter-complaint with the OCA, requesting that an investigation be conducted to prove that respondent falsified her scholastic records, so as to make herself appear qualified for the vacant position of Clerk III of the RTC, Branch 137 of Makati City.
In its 1st Indorsement2 dated May 17, 2007, the Office of Administrative Services (OAS) of the OCA referred the complainant's letter-complaint dated April 30, 2007 to the OCA Legal Office for appropriate action, as complainant requested that an immediate investigation be conducted to ascertain the veracity of the respondent's scholastic records.
In its 1st Indorsement3 dated June 19, 2007, the OCA Legal Office required respondent to Comment on complainant's letter-complaint within ten (10) days from receipt thereof. It also sent a letter dated June 19, 2007 to the Registrar of the PUP, requesting that it be furnished with duly certified photocopies of the respondent's transcript of records.
Respondent, in her Comment4 dated July 13, 2007, admitted that the OTR she submitted in her application for the position of Clerk III of Branch 137 of the RTC, Makati City had alterations, but maintained that she did not personally tamper it. She claimed that a certain Rowena Ramos, her officemate, prepared the former's application papers and filed them with this Court, assuring respondent that she was qualified for the position. Ramos later demanded an amount equivalent to respondent's salary for three months as payment for the assistance she had rendered in facilitating respondent's application. The latter averred that complainant would use her position to ease out court personnel she did not like, particularly one who occupied a lower position and with a lesser educational attainment, such as herself, as happened to Jessica Abellanosa, complainant's former court stenographer. Respondent also denied using Aceveda's payslip as supporting document when the former applied for a credit card.
In its Report6 dated November 26, 2007, the OCA stated that the issue to be resolved was whether respondent may be held liable for falsification of transcript of records. Thus, the OCA recommended that the instant complaint be re-docketed as a regular administrative matter, and that respondent's Comment be considered as an administrative complaint against complainant, and required the complainant to file a comment thereon.
In its Resolution7 dated February 13, 2008, acting upon the recommendations of the OCA, the Court re-docketed the instant complaint as a regular administrative complaint, treated respondent's Comment as a counter-administrative complaint against complainant, and required complainant to comment thereon within ten (10) days from notice.
In her Comment8 dated April 2, 2008, complainant claimed that the counter-charge against her was respondent's act of retaliation arising from the letter-complaint she had earlier filed on April 30, 2007. She emphasized that respondent, when asked to comment on the former's letter-complaint, failed to categorically state that the OTR she submitted to this Court was authentic and regularly issued by the PUP. She argued that respondent, instead of explaining why the OTR turned out to be falsified, blamed Rowena Ramos for allegedly masterminding the submission of respondent's fake credentials; and proceeded to accuse complainant of being oppressive to her subordinates, and for allegedly maintaining Manarang as "ghost writer" for the decisions assigned to her for disposition.
Complainant denied that she would arbitrarily remove employees she disliked, particularly Abellanosa and respondent, so that she could replace them with employees who would do her bidding. Complainant reasoned that if such were true, she could have fired Abellanosa and respondent a long time ago based on other grounds without having to file administrative complaints against them.
In her letter12 dated April 3, 2008 addressed to Chief Justice Reynato S. Puno, complainant requested an investigation on the veracity of the scholastic records of respondent, and expressed dismay at being administratively charged by the latter.
In a Resolution13 dated June 23, 2008, the Court referred the case to the OCA for evaluation, report and recommendation within sixty (60) days from notice.
There are two (2) issues to resolve in this case, to wit: Whether or not the transcript of records Versoza submitted to the Court when she applied for the position of Clerk III in 2001 is a product of forgery; and whether or not Judge Delorino has been soliciting the help of an outsider to draft her decisions.
Anent the issue of the validity of the transcript of records submitted by Versoza to the court when she was applying for the position of Clerk III, we find the evidence adduced sufficient to hold Versoza administratively liable.
In her Comment dated July 13, 2007, Versoza admits that the transcript of records she submitted to the Court was tampered, albeit denying that the forgery was her handiwork. She instead lays the blame on Rowena Ramos, claiming it was the latter who caused the preparation of the transcript in exchange for money. Versoza's admission, coupled by the March 28, 2008 statement from Ms. Melba D. Abaleta, University Registrar of PUP, that the subject transcript is a "falsified document," sealed her fate. In her March 28, 2008 letter addressed to Judge Delorino, Ms. Abaleta specifically stated that "the transcript of records submitted to your office [by Versoza] is a falsified document and did not originate from us." The defense of Versoza is pregnant with admissions of the act complained of. Versoza admits of the basic fact in the complaint that she submitted falsified records when she applied for the position of Clerk III in the lower court.
Even if we assume for the nonce that somebody else led her into the falsification scheme, it is very clear that she consented to its commission as she even paid the person who allegedly prepared the forged documents. Thus did Versoza state in her letter to the Court Administrator that: "Pero kapalit ng pag-aayos niya ng mga papeles ko ay hiningi niya po sa akin ang tatlong (3) buwang sahod ko noong lumabas na ang aking appointment bilang kabayaran ng kanyang pag-aayos sa aking mga papeles na kanyang ipinasa sa Supreme Court."
It should be emphasized that the information that she finished a B.S. Secretarial course in PUP is also reflected in Versoza's Personal Data Sheet (PDS) which she executed under oath on June 8, 2001. The position of Clerk III requires the completion of at least (two) 2 years of college studies and sub-professional eligibility from the Civil Service Commission (CSC). In her PDS, Versoza provided the information that she was able to finish a 2-year secretarial course in PUP. Without the said course, Versoza would not have qualified for the position. In Dante de la Cruz Rivera v. Acting Judge Reynaldo B. Bellosillo (A.M. No. MTJ-00-1316, September 25, 2000), the Court held that "the truthful completion of Personal Data Sheet is a requirement for employment in the judiciary, the importance of answering the same with candor need not be gainsaid."
For having misrepresented in her PDS that she was able to finish a two-year course in college when in reality she did not, Versoza is liable for dishonesty by misrepresentation and falsification of a public document.
Under Section 23, Rule XIV of the Omnibus Rules Implementing Book V of EO 292 and other Pertinent Civil Service Laws, dishonesty and falsification of a public document are considered grave offenses for which the penalty of dismissal is prescribed even at the first instance. Section 9 of said Rule likewise provides that "The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of leave credits, and retirement benefits, and the disqualification for re-employment in the government service. This penalty is without prejudice to criminal liability of the respondent."
With respect to accrued leave credits, a distinction must be made with respect to any accrued leave credits Versoza earned before October 5, 2001, when she was designated as Clerk III (should be Clerk II) by then Court Administrator Presbitero J. Velasco Jr., to the credits Versoza may have earned from October 5, 2001 to the present, when she served as Clerk III of RTC, Branch 137, Makati City. Versoza is entitled to leave credits earned for the period January 2, 1992 to October 4, 2001, when she served as Clerk I, and Clerk II of the city government of Makati (albeit detailed at the RTC Branch 137, Makati City) the positions she was employed in for which her qualifications were not contested. Any credits earned from October 5, 2001 to the present are forfeited because of her ineligibility to assume the Clerk III position which requires a two-year college course.
Apropos the counter-complaint by Versoza against Judge Delorino, wherein the latter was accused of hiring an outsider to draft the decisions due from the court, this Office finds the allegation wanting in proof. The allegation, which was raised by Versoza in her Comment dated July 13, 2007, appears to have been concocted by her to divert the attention of the Court on the matter of her forged transcript of records. While the issue on the forged transcript was duly established by documentary evidence, the same cannot be said about the alleged outsider supposedly being paid by Judge Delorino to write court decisions.
In Lopez v. Fernandez (99 SCRA 603), the Court held that "numerous administrative charges against erring judges have been filed to this Court and we reviewed them with utmost care, because proceedings of this character are in their nature highly penal in character and are to be governed by the rules of law application to criminal cases. The charges must, therefore, be proved beyond reasonable doubt [emphasis supplied]."
(c) That the counter Complaint against Presiding Judge Jenny Lind R. Aldecoa-Delorino, RTC, Branch 137, Makati City, be DISMISSED for lack of merit.
In a Resolution15 dated November 26, 2008, the Court required the parties to manifest whether they were willing to submit the case for decision on the basis of the pleadings or records already filed and submitted, within ten (10) days from notice.
While complainant filed a Manifestation16 on January 27, 2009, the Court, in a Resolution17 dated June 1, 2009, considered the case submitted for resolution in view of respondent's non-compliance with the said Resolution.
The Court finds the recommendation of the OCA to be well-taken and, thus, holds respondent administratively liable for dishonesty and falsification of official documents.
In her duly accomplished PDS dated June 8, 2001, particularly on the space provided for "Educational Attainment," respondent falsely indicated that she finished a B.S. Secretarial course at the PUP during the academic years 1976-1978, although her actual educational attainment cannot be determined from the records. She also appended an OTR to ostensibly certify her completion of a "Secretarial" degree, which was purportedly issued by the PUP. The material fact she sought to establish was, however, contrary to the letter dated March 28, 2008 from the University Registrar of the PUP, which attested that the OTR submitted by the respondent as part of her application had been falsified and did not originate from the said school. It, therefore, becomes evident that, having failed to repudiate the statement of the University Registrar, or present additional evidence to support her claim, respondent did not finish or actually take the said course of study. Clearly, the latter made a misrepresentation as to her educational attainment.
Respondent sought to exculpate herself from liability by arguing that she herself did not prepare the application papers and, instead, pointed to her officemate, Ramos, as the person who effected the falsification of the former's application papers, which rendered her eligible for the position of Clerk III.
Respondent's contention is unacceptable. The Code of Conduct and Ethical Standards for Public Officials and Employees, Republic Act No. 6713, enunciates the State's policy of promoting a high standard of ethics and utmost responsibility in the public service.18 And no other office in the government service exacts a greater demand for moral righteousness and uprightness from an employee than the Judiciary.19 Respondent's Service Record shows that she has been a government employee for seventeen (17) years now, having started her career as Clerk I of the Personnel Coordinator of the City Hall of Makati City in 1992. She then transferred to the RTC, Branch 137 of Makati City, where she served as Clerk I, then as Clerk II of the Law Department of the City Hall of Makati City, before being designated as Clerk III of the RTC. It, therefore, stands to reason that an employee with long years of experience, such as respondent, is expected to possess a higher degree of rectitude and honesty.
As with the Statement of Assets and Liabilities and other official documents, the completion of a PDS is done under oath and required by law to be submitted regularly.20 Even assuming that another person had actually falsified the documents respondent submitted in order to make it appear that the latter was qualified for her present position, the fact remains that the latter allowed said falsified PDS and tampered OTR to become part of her employment records. Respondent's duly accomplished PDS also bears the certification that "the answers given above are true and correct," to which she affixed her signature on June 8, 2001. This is tantamount to a statement made under oath which does not speak the truth. Thus, respondent is deemed to have expressly assented to the falsehood or perversion of truth perpetrated by Ramos and, by reason thereof, is equally liable for falsification of an official document.
In Administrative Case for Dishonesty and Falsification of Official Document Against Noel V. Luna, SC Chief Judicial Staff Officer,22 the importance of accomplishing a PDS with utmost honesty has been emphasized, as the same is required under Section 5, Rule V of the Civil Service Rules and Regulations, in connection with employment in the government.23 The making of an untruthful statement therein amounts to dishonesty and falsification of an official document, which warrant dismissal from the service even for the first offense. In the present case, respondent falsified her PDS, an official document, to gain unwarranted advantage over other applicants who may have been more qualified for the same position. Respondent failed to measure up to the standards required of a public servant and, hence, should accordingly be sanctioned.
In previous cases where employees of the judiciary have been found guilty of said offenses, the Court did not hesitate to impose such extreme punishment.
In Judge Aglugub v. Perlez,25 therein respondent, Clerk of Court I of the Municipal Trial Court (MTC), Branch 2 of San Pedro, Laguna, who misrepresented herself to be a college graduate in her PDS, when in fact she failed to graduate because she received an incomplete grade in three (3) subjects, was found guilty of dishonesty and dismissed from the service immediately, with prejudice to re-employment in any government agency and government-owned and controlled corporation, and forfeiture of retirement benefits, except accrued leaves.
In Re: Administrative Case for Falsification of Official Documents and Dishonesty against Randy S. Villanueva,26 where therein respondent made it appear in his Daily Time Record (DTR) that he rendered overtime service every Saturday covering the period of June to December 2003, and collected overtime pay per day, despite being enrolled in a college course and having whole day classes on Saturdays. He was also found guilty of falsification of official documents and dishonesty, and dismissed from the service, with forfeiture of all benefits and privileges, except accrued leave credits, if any, with prejudice to re-employment in any branch or instrumentality of the government, including government-owned or controlled corporations.
In the present case, the OCA recommended that respondent be dismissed from the service effective immediately, with forfeiture of all retirement benefits, except accrued leaves earned before October 5, 2001, when she was employed as Clerk I of the Personnel Coordinator and as Clerk I and II of the RTC, Branch 137 of Makati City, which were the positions for which she was qualified. The Court agrees that the gravity of respondent's offenses warrants dismissal, for it cannot countenance any act of dishonesty, especially when it is committed by a person who is tasked to uphold the administration of justice. Respondent's misrepresentation of her educational attainment in her PDS, which she executed under oath, constitutes dishonesty; and as she appended a falsified OTR to support her claim, she has also committed falsification of an official document. Dishonesty and falsification are malevolent acts that have no place in the Judiciary.28 Even if these acts be taken as one infraction so as to constitute his first offense, the Court cannot apply leniency and, thus, imposes upon respondent the penalty of dismissal from the service effective immediately, with forfeiture of all retirement benefits, except accrued leave credits earned before October 5, 2001.
Corollarily, as the counter-charges in the counter-complaint of respondent alleging that complainant hired an outsider to draft decisions for the cases assigned to her were not substantiated, the same is dismissed. What becomes telling is that respondent has an axe to grind against complainant because of a prior administrative complaint filed by the latter against her. The Court will not allow respondent to trifle with it through a baseless counter-administrative suit. In administrative proceedings, he who alleges bears the burden of proving, by substantial evidence, the allegations in the complaint.29 Respondent having failed to substantiate her charge, the counter-complaint against complainant cannot prosper.
Let this case serve as a warning to all court personnel that the Court, in the exercise of its administrative supervision over all lower courts and their personnel, will not hesitate to enforce the full extent of the law in disciplining and purging from the Judiciary all those who are not befitting the integrity and dignity of the institution, even if it would mean their dismissal from the service despite their length of service.30 Any act of dishonesty, misrepresentation, or falsification done by a court employee that may lead to moral decadence shall be dealt with severely.
WHEREFORE, respondent Marilyn de Castro Remigio-Versoza, Clerk III of the Regional Trial Court, Branch 137, Makati City, is found GUILTY of dishonesty and falsification of public records, and is DISMISSED from the service effective immediately, with forfeiture of all retirement benefits, except accrued leave credits earned before October 5, 2001, and with prejudice to her re-employment in any branch or agency of the government, including government-owned or controlled corporations, effective immediately.
The counter-charge against complainant, Presiding Judge Jenny Lind R. Aldecoa-Delorino of the Regional Trial Court, Branch 137, Makati City, accusing her of engaging the services of a personnel who is not a staff of the said court to draft decisions for the cases assigned to her, is DISMISSED for lack of merit.
18 Civil Service Commission v. Sta. Ana, A.M. No. OCA-01-5, August 1, 2002, 386 SCRA 1, 8, citing Alawi v. Alauya, 268 SCRA 628 (1997).
19 Id., citing Rabe v. Flores, 272 SCRA 415 (1997).
20 Cecilia T. Faelnar v. Felicidad Dadivas Palabrica, Court Stenographer III, Regional Trial Court, Branch 11, Manolo Fortich, Bukidnon, A.M. No. P-06-2251, January 20, 2009.
21 Civil Service Commission v. Caridad S. Dasco, Stenographer II, MeTC, Branch 63, Makati City, A.M. No. P-07-2335, September 22, 2008.
22 A.M. No. 2003-7-SC, December 15, 2003, 418 SCRA 460.
23 Sec. 5. Each appointment shall be prepared in the prescribed form and duly signed by the appointing authority.
25 A.M. No. P-99-1348, October 15, 2007, 536 SCRA 20.
26 A.M. No. 2005-24-SC, August 10, 2007, 529 SCRA 679.
27 A.M. No. 2003-9-SC, March 25, 2004, 426 SCRA 236.
28 Office of the Court Administrator v. Librada Puno, Cash Clerk III, A.M. No. P-03-1748, September 22, 2008.
29 Pan v. Salamat, A.M. No. P-03-1678, June 26, 2006, 492 SCRA 460, 466.
30 Aurora B. Go v. Margarito A. Costelo, Jr., Sheriff IV, Regional Trial Court, Branch 11, Calubian, Leyte, A.M. No. P-08-2450, June 10, 2009.

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THOMAS R. McCONE & others [Note 1] VS. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY.
CIVIL ACTION commenced in the Superior Court Department on March 19, 1982.
The case was heard by Thomas R. Morse, Jr., J., on a motion to dismiss.
John H. Cunha, Jr. (Jill Heine with him) for the plaintiffs.
William J. McDonald (John S. May with him) for the defendant.
LIACOS, J. The plaintiffs appeal from a judgment of a Superior Court judge allowing the defendant's motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). [Note 2] We transferred the appeal to this court on our own motion. The plaintiffs argue that the complaint should not have been dismissed because it alleged facts sufficient to support three claims: breach of the implied covenant of good faith and fair dealing in an employment-at-will contract; defamation; and deceit. [Note 3] We affirm.
Under Mass. R. Civ. P. 12 (b) (6), the "accepted rule" is that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Nader v. Citron, 372 Mass. 96 , 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Moreover, "the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor, are to be taken as true." Nader v. Citron, supra.
company promised to evaluate the plaintiffs' job performance and promotability solely on the basis of merit. At some point after the plaintiffs began their employment, the company instituted a policy requiring employee evaluations to conform to a statistically determined distribution curve (Bell Curve). Once the Bell Curve was instituted, the plaintiffs all received poor evaluations. [Note 5] These poor evaluations did not reflect the merit of the plaintiffs' actual performances. Rather, the plaintiffs received low ratings to satisfy the demand of the Bell Curve that a predetermined percentage of employees receive low ratings. In sum, the plaintiffs claim that use of the Bell Curve resulted in "arbitrary, distorted, bad faith, and non-merit related" evaluations of the plaintiffs' job performances. Due to these poor evaluations, the plaintiffs were either denied promotions or unjustly demoted. All of the plaintiffs suffered the loss of salary increases and corresponding pension benefits which they would have received had they been evaluated in good faith. The plaintiffs also suffered damage to their professional reputations, disruption of their personal lives, and great pain of body and mind.
termination would suffice under the Fortune rule, the plaintiffs' allegations nonetheless fall short of stating a claim. Cf. Kravetz v. Merchants Distribs., Inc., 387 Mass. 457 , 462 (1982). The plaintiffs have alleged no damages which they would be entitled to recover under a theory of breach of an implied covenant of good faith and fair dealing.
They assert that the loss of salary increases and corresponding pension benefits constitutes a compensable loss. [Note 8] In awarding damages for breach of the implied covenant of good faith and fair dealing, "[o]ur goal is and has been simply to deny to [the employer] any readily definable, financial windfall resulting from the denial to [the employee] of compensation for past services." Gram v. Liberty Mut. Ins. Co., 391 Mass. 333 , 335 (1984) (Gram II). Thus, in Fortune v. National Cash Register Co., supra, the plaintiff recovered commissions for sales he had already made; in Gram v. Liberty Mut. Ins. Co., 384 Mass. 659 (1981) (Gram I), and in Gram II, supra, the plaintiff was entitled to recover renewal commissions on policies he had already sold; and in Maddaloni v. Western Mass. Bus Lines, Inc., 386 Mass. 877 (1982), the plaintiff recovered commissions due him for his past service to the defendant employer (helping to obtain interstate charter rights). In each of these cases the plaintiffs recovered commissions they had already earned.
2. Defamation. The plaintiffs also argue that they alleged facts sufficient to state a claim of defamation. In their brief, they claim that the poor evaluations were defamatory and that these evaluations "were published to at least one superior." These allegations do not support a claim of defamation. "An employer has a conditional privilege to disclose defamatory information concerning an employee when the publication is reasonably necessary to serve the employer's legitimate interest in the fitness of an employee to perform his or her job." Bratt v. International Business Machs. Corp., 392 Mass. 508 , 509 (1984). See Sheehan v. Tobin, 326 Mass. 185 , 190-191 (1950), quoting W. Prosser, Torts Section 94, at 837 (1941) (conditional privilege exists when publisher and recipient have a "common interest" and when "the communication is . . . reasonably calculated to protect or further it"). Here the plaintiffs allege that their immediate supervisors communicated the defamatory material to the department head, in accordance with the company's stated policy of conducting employee evaluations. Such communication clearly serves "the employer's legitimate interest,"
Bratt, supra, and is conditionally privileged. An employer can lose a conditional privilege through "unnecessary, unreasonable or excessive publication" on proof that the defendant acted "recklessly." Bratt, supra at 515, 516. Even if we assume that the immediate supervisor communicated the plaintiffs' poor evaluations to someone other than the department head, the plaintiffs have alleged no facts at all to prove that such publication was made recklessly. Thus, the plaintiffs have failed to state a claim of defamation because they have alleged nothing to overcome the company's conditional privilege.
3. Deceit. Finally, the plaintiffs contend that their complaint set out an actionable claim of deceit. We decline to consider this point, however. On appeal the plaintiffs simply state, in a cursory and conclusory fashion, that their complaint below made out a claim of deceit. They cite no legal authority to support their claim. This is "an insufficient appellate argument." Tobin v. Commissioner of Banks, 377 Mass. 909 , 909 (1979). Mass. R. A. P. 16 (a) (4). See, e.g., Commonwealth v. Elder, 389 Mass. 743 , 747 n.9 (1983).
We conclude that the judge properly dismissed the plaintiffs' complaint for failure to state a claim under which relief can be granted.
[Note 1] George Chapman, Paul C. Bowen, Joseph Monty, Thomas McFarland, and John J. Hanlon.
[Note 2] According to the defendant's memorandum in support of its motion to dismiss, the complaint before us is the second complaint, the first complaint having been dismissed without prejudice. The judge dismissed the plaintiffs' second complaint "for the reasons stated in defendant's memorandum." The defendant's memorandum sought dismissal under Mass. R. Civ. P. 12 (b) (1) and (6), 365 Mass. 754 (1974). However, the defendant's memorandum contains no arguments to support dismissal under Mass. R. Civ. P. 12 (b) (1) (lack of jurisdiction over the subject matter). Therefore, we consider the complaint dismissed solely under Mass. R. Civ. P. 12 (b) (6) (failure to state a claim upon which relief can be granted).
[Note 3] The plaintiffs' complaint also included allegations of reckless infliction of emotional distress and unfair and deceptive acts or practices in the course or trade or commerce in violation of G. L. c. 93A, Section 11. Since the plaintiffs did not raise these claims on appeal, we do not consider them. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 919 (1975).
[Note 4] The plaintiffs' complaint states that at all times relevant to the complaint the plaintiffs were employees of the defendant company. However, the plaintiffs' brief states that five of the six plaintiffs are no longer employed by the defendant and that they were constructively terminated by the defendant's bad faith actions.
[Note 5] The plaintiffs nowhere state that they received poor evaluations, but this is a necessary inference from their complaint.
[Note 6] The plaintiffs nowhere state that their employment contract with the defendant was an "at-will" contract, but we infer that it was. There is no claim that the contract of employment was in writing or for a specified term. The plaintiffs assert principally the claim that their contract contained an implied covenant of good faith and fair dealing; this theory was developed specifically for "at-will" employment contracts. Fortune, supra at 100-105.
[Note 7] The plaintiffs also argue that the company can be held liable for breach of the implied covenant even if it did not terminate the employees, either actually or constructively. The plaintiffs cite no cases to support this proposition, and we know of none in this State. Our cases have held employers liable for breach of the implied covenant of good faith and fair dealing only when they have terminated an employee. See, e.g., Fortune, supra; Gram v. Liberty Mut. Ins. Co., 384 Mass. 659 (1981) (Gram I); and Maddaloni v. Western Mass. Bus Lines, Inc., 386 Mass. 877 (1982).
[Note 8] The plaintiffs also allege damage to their professional reputations, disruption of their personal lives, and great pain of body and mind. However, a suit for breach of an implied covenant of good faith and fair dealing is a suit on the contract, see Fortune, supra at 102; Maddaloni, supra at 883, and these additional damages are not contract damages.
[Note 9] We note that the plaintiffs have not alleged that they were deprived of any vested pension rights. Instead, the plaintiffs allege in their brief merely that the company "retain[ed] the increased pension benefits which would have been due the plaintiffs had the evaluation been truly merit related."


Wilder contends that the District Court: (1) misapplied 17-A M.R.S.A.
vacate the convictions and remand for entry of a judgment of acquittal.
together had apparently gone without significant incident.
[¶3]  The son was the only witness to the events who testified at trial.
A.	I was talking too much.
Q.	Do you talk a lot?
Q.	Does that annoy people sometimes?
Q.	Were you being fresh to your dad?
Q.	Were you saying anything bad to him?
the Judge where he grabbed you on your body?
A.	I don't remember what side it was.
Q.	What part of your body was it?
Q.	Okay.  How did it feel when he grabbed you?
A.	He-he squeezed so it kinda hurt.
Q.	Okay.  How long did he squeeze?
Q.	Okay.  What did you do when he squeezed you?
A.	I just had to sit there.
Q.	Okay.  Did you cry?
Q.	Did you say anything to him?
Q.	How did it make you feel?
for sure I would have a bruise on there.
up.  Appellant squeezed [his son] hard enough to hurt him."
me in the same shoulder."
Q.	Was it the same as the first time it happened?
Q. 	And it was the same spot?
Q.	How did it feel?
Q.	Okay.  Did it hurt you?
A.	It hurt a little bit more since he did it in the same spot.
responded:  "We just started playing the game again."
grabbed [him] in the same spot."
you were at your dad's?
Q.	Can you talk about that?
me on the mouth--over my mouth and said "Shut up."
times--enough to make a bruise.
Q.	Okay.  How did it feel when he squeezed your mouth?
A.	It made me angry, and it hurt.
own hand?  Can you show where he put his hand?
A. 	Well, he reached over and he put his hand like that.
Q.	Okay.  And you said that it bru--your face bruised?
Q. 	Where were the bruises?
and one big thumb over there.
Q.	How--when did you first notice those bruises?
Q.	After you got home?
[the boy] on his mouth, squeezed and said[,] 'Shut up.'"
[¶12]  Thus, in each of the three incidents, when Wilder "grabbed"
his son, he caused transient pain and minor, temporary bruises.
jailed;  "I thought my mom would put him in jail."
investigated by a Cumberland police officer, who took a report from the boy.
prosecution on three counts of assault was initiated.
gross sexual assault against a daughter a number of years in the past.
court, we review directly the judgment of the District Court.  See Barclay v.
familial relationship with his or her child.  See Quilloin v. Walcott, 434 U.S.
punishment of the child exceeds the bounds of reason and moderation."
against extreme punishment."  See id.
'reasonable degree of force' to discipline."  Id. at 1304 n.2.
determination that the parental control justification "does not apply here."
defendant.  See State v. Collin, 1999 ME 187, ¶ 11, 741 A.2d 1074; State v.
106(1) justification at issue in the trial.
basis for a parent's exercising control to prevent or punish misconduct.
a ruling we would have to make to uphold the District Court's determination.
justification at issue for each of the three assault charges.
reasonable doubt."  17-A M.R.S.A. § 101(1) (Supp. 1999).  See State v.
¶ 6, 695 A.2d at 117; Begin, 652 A.2d at 106.
472 A.2d 948, 951 (Me. 1984).
Instruction Manual, § 6-56 (1999).
law, the evidence presented was insufficient to support the convictions.
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text:
Wilson v. Merchants' Loan & Trust Co.
Arkansas v. Kansas & Texas Coal Co.
Dinsmore v. Southern Express Co.
McMaster v. New York Life Ins. Co.
Holzapfel's Compositions Co. v. Rahtjen's Co.
Huus v. New York & Porto Rico Steamship Co.
Homer Ramsdell Trans. Co. v. La Compagnie &c.
Lake Street Elevated R. Co. v. Farmers' L. & T. Co.
International Navigation Co. v. Farr & Bailey Mfg. Co.
Smith v. St. Louis & Southwestern Ry. Co.
Western Union Tel. Co. v. Call Publishing Co.
ICC v. Clyde Steamship Co.
GUARANTEE TRUST & SAFETY DEPOSIT CO v. DELTA & PINE LAND CO.
Southern Ry. Co. v. Postal Telegraph-Cable Co.
Patton v. Texas & Pacific Ry. Co.
Elgin National Watch Co. v. Illinois Watch Case Co.

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At the O’Ryan Law Firm, we represent numerous clients who have become disabled and their disability claim was denied by their insurance company. We then represent the clients in the appeal process to appeal the denial of their disability benefits. Lately, many of the insurance companies have be issuing late determination decisions on the appeals that we submit to those companies. By law, an insurance company is required to issue a decision within 45 days of the date of receipt of the appeal unless an extension is warranted due to “special circumstances” but even then, a decision on the appeal must be rendered within 90 days at the latest.
The Supreme Court in Firestone Tire & Rubber v. Bruch, 489 U.S. 101, 115 (1989) held that de novo adjudication of employee benefit claims is the norm. Because the de novo standard of review is the default standard in an ERISA employee benefits case, the plan administrator or insurance company bears the burden of showing that the more deferential standard should apply. Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir.2002); Marguez-Massas v. Squibb Mfg., Inc., 344 F.Supp.2d 315, 320 (D.P.R. 2004); McDonald v. Timberland Co. Group LTD Coverage Program, 2002 WL 122382, at *3 (D.N.H. Jan.23, 2002). Accordingly, once in litigation, a disability insurance company bears the burden of proving that their decision is entitled to deferential review by the Court.
The regulations governing ERISA disability claims require insurance companies to issue a decision on a claimant’s appeal within 45 days of the date that the insurance company received the appeal unless “special circumstances” warrant an extension of time for an additional 45 days; however, in “no event” shall the extension of time exceed 45 days. 29 C.F.R. §2560.503-1(i)(1), (i)(3), (i)(4).
The Dow Chemical Company is a multinational chemical corporation headquartered in Midland, Michigan. Dow manufactures plastics, chemicals, and agricultural products. With a presence in about 160 countries, it employs about 54,000 people worldwide. Dow Chemical also has a large complex on the northwest side of Indianapolis.
Liberty Mutual provides disability insurance to employees of Dow. Liberty Mutual Insurance is an American diversified global insurer, and the second-largest property and casualty insurer in the world. Based in Boston, Massachusetts, it employs over 50,000 people in more than 900 locations throughout the world.
O’Ryan Law Firm, on behalf of Plaintiff Laura McKenzie, recently filed a federal lawsuit against Life Insurance Company of North America (“LINA”), which is a subsidiary of Cigna Corporation. The Plaintiff was employed as a Registered Nurse with Allied Physicians, which made her eligible for disability benefits under the Allied Physicians, Inc. Long Term Disability Plan (the “Plan”).
In Laura McKenzie v. Life Insurance Company of North America and Allied Physicians, Inc. Long Term Disability Plan, the Plaintiff filed a lawsuit to gain the long-term disability benefits she was entitled to under the terms of the Plan.
Plaintiff was employed by Allied Physicians, Inc. as a Registered Nurse until she became disabled in 2009 due to the disabling effects of cervical and lumbar spondylosis and other serious medical conditions. Plaintiff filed an application for long term disability benefits and was paid disability benefits by the Allied Physicians, Inc. Long Term Disability Plan from October 2014 to October 2016. LINA issued the disability policy that provided disability coverage to the employees of Allied Physicians.
O’Ryan Law Firm, on behalf of Plaintiff, Jilian F., recently filed a federal lawsuit against Metropolitan Life Insurance Company (“MetLife”) in an attempt to reinstate the Plaintiff’s disability benefits claim. The Plaintiff was employed as a Marketing Communication Specialist with Landis + Gyr, which made her eligible for disability benefits under the Cellnet + Hunt Employee’s Welfare Benefit Plan (the “Plan”). In Jilian F. v. Metropolitan Life Insurance Company and Cellnet + Hunt Employee’s Welfare Benefit Plan, the Plaintiff filed a lawsuit to gain the long-term disability benefits she was entitled to under the terms of the MetLife policy.
Plaintiff was employed by Landis + Gyr until she became disabled in 2011 due to the disabling effects of Thoracic Outlet Syndrome, cervical degenerative disc disease and cervical radiculopathy, severe neck pain, fibromyalgia, carpal tunnel syndrome, and paresthesia.
Plaintiff filed an application for long term disability benefits and was paid disability benefits by MetLife from August 2013 to September 17, 2014.
On September 17, 2014, MetLife wrongfully terminated the Plaintiff’s long-term disability benefits. Plaintiff, represented by the O’Ryan Law Firm, then filed an administrative appeal with MetLife challenging the termination of her disability benefits. With this appeal, the Plaintiff included significant medical evidence to prove that she continued to meet the definition of Disabled under the MetLife policy. However, MetLife refused to overturn their decision to terminate the benefits. As a result, the Plaintiff was forced to file a lawsuit under ERISA in federal court against MetLife to obtain the benefits due her under the MetLife policy.
Founded in 1820, Indiana University has eight campuses in the State of Indiana and is a world leader in professional, medical and technological education. With over 17,000 employees state-wide, IU offers a generous benefit package which includes long term disability coverage through Standard Insurance. At the O’Ryan Law Firm, we have represented numerous IU employees who have become disabled and have been denied their long term disability benefits by Standard Insurance. We have represented professors, Human Resources professionals, and IT professionals, among others, employed at IU who applied for disability benefits with Standard, after their medical conditions made it impossible for them to continue working, and Standard Insurance denied those benefits.
During the Benefit Waiting Period and the Own Occupation Period you are required to be Disabled only from your Own Occupation. You are Disabled from your Own Occupation if, as a result of Physical Disease, Injury or Pregnancy or Mental Disorder, you are unable to perform with reasonable continuity the Material Duties of your Own Occupation.
During the Any Occupation Period you are required to be Disabled from all occupations.
You are Disabled from all occupations if, as a result of Physical Disease, Injury, Pregnancy or Mental Disorder, you are unable to perform with reasonable continuity the Material Duties of Any Occupation.
Any Occupation means any occupation or employment which you are able to perform, whether due to education, training or experience, which is available at one or more locations in the national economy and in which you can be expected to earn at least 80% of your Indexed Predisability earnings within twelve months following your return to work, regardless of whether you are working in that or any other occupation.
Material Duties means the essential tasks, functions and operations, and the skills, abilities, knowledge, training and experience, generally required by employers from those engaged in a particular occupation that cannot be reasonably modified or omitted. In no event will we consider working an average of more than 40 hours per week to be a Material Duty.
C. Partial Disability Definition During the Benefit Waiting Period and the Own Occupation Period, you are Partially Disabled when you work in your Own Occupation, but as a result of Physical Disease, Injury, Pregnancy, or Mental Disorder, you are unable to earn 80% or more of your Indexed Predisability Earnings, in that occupation.
To deny these claims under the policy, Standard Insurance routinely utilizes their in-house physician, Dr. Richard Handelsman, to review the medical records and opine that the IU employee is not disabled. Dr. Handelsman is the Medical Director for Standard Insurance and a salaried employee of Standard. Dr. Handelsman never examines the claimant and bases his opinion solely on medical records; therefore, his opinion is limited to only a review of the medical records. Also, we have found that Dr. Handelsman’s reports oftentimes fail to address important symptoms, like chronic pain, which are critical components to the disability claim.
Tagged: "disability benefits", "Indiana University employee" and "Standard Insurance"