SMITH v. SPURWINK SERVICES INCORPORATED
Filing
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REPORT OF PRE-FILING CONFERENCE UNDER RULE 56 - By JUDGE D. BROCK HORNBY. (mnw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROBIN SMITH,
PLAINTIFF
v.
SPURWINK SERVICES
INCORPORATED,
DEFENDANT
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NO. 2:12-CV-164-DBH
REPORT OF PRE-FILING CONFERENCE UNDER RULE 56
A pre-filing conference was held on January 3, 2013.
In this employment discrimination and failure to accommodate case, the
defendant Spurwink Services has given notice of intent to file a motion for
summary judgment on the issue of whether the ability to perform therapeutic
holds was an essential function of the plaintiff’s employment. The defendant
recognizes that resolution of this issue would not be dispositive on any of the
counts of the plaintiff’s complaint, but suggests that it may shorten the trial by
about three hours. Some evidence would still have to be introduced on the
issue.
The defendant’s lawyer continues to deliberate on whether filing the
motion is advisable, and took the procedural notice step because of the
deadline. But before filing the motion he will respond to a pending settlement
demand and give further thought to whether the time and effort of summary
judgment is worth the effort here.
Both parties agree that the dispute on this issue is primarily legal, not
factual.
As evidence that the ability to perform therapeutic holds was an
essential job function, the defendant plans to present licensing standards and
credentials, orientation and training materials, agency-wide and household
records of therapeutic holds, and an affidavit as to the essential nature of the
function.
The plaintiff does not expect to dispute those materials, but to
present different evidence on practices primarily through deposition testimony
of the plaintiff and some of the managers concerning the necessity of the
ability.
By February 8, 2013, the defendant shall file its motion if it chooses to
file one. Response times and memoranda lengths are governed by the Local
Rules. We did not discuss cross-filing, but if the parties are correct that there
is no factual dispute, then cross-filing may be in order. SO ORDERED.
DATED THIS 3RD DAY OF JANUARY, 2013
/s/ D. Brock Hornby____________
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
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