Updates from the Appellate Advocacy Project

Advocacy on unemployment insurance, disability discrimination, and retaliation protections

February 2, 2023

It’s been a busy few months for the PJC’s Appellate Advocacy Project. Since starting in mid-August, Murnaghan Fellow Hayley Hahn has filed briefs and delivered oral arguments in cases concerning unemployment insurance benefits, disability discrimination, and retaliation protections for workers. Below we share what’s at stake in each of these cases.

Addressing Maryland’s administration of unemployment insurance benefits

In November, Hayley represented a flight attendant before the Maryland Appellate Court in a case challenging the Maryland Department of Labor’s (MDOL) attempt to get her to repay unemployment benefits. At issue in In re Petition of Betelehem Dejene is whether Ms. Dejene was unemployed as defined by law when she received unemployment insurance benefits from the state and COVID-leave payments from Southwest Airlines while prevented by her employer from working. Consistent with case law and prior agency decisions, an MDOL examiner initially determined that COVID-leave payments were not wages; however, the Board reversed this decision and its own precedent, determining that Ms. Dejene’s COVID-leave payments were part-time wages, even though she was not working and was not even allowed to work by her employer.  The agency now seeks to hold Ms. Dejene liable for the $15,880 in benefits paid to her. Hayley argued that this conclusion is contrary to Maryland law defining wages and work under the Unemployment Insurance program. Many thanks to Sabrina Harris, Nina Masin-Moyer, Kelsey Carlson, Becky Reynolds, Carolina Paul, and Emily Woo Kee for their excellent assistance producing the briefs, and to former Murnaghan Fellow Michael Abrams for authoring the Opening Brief.

Enforcing judicial oversight of a government agency’s handling of discrimination complaints

In December, Hayley represented Jennifer Rowe in a case regarding the state’s handling of her disability-based public accommodations complaint against a gym. The gym, Krav Maga Maryland (KMMD), terminated Ms. Rowe’s membership after she challenged ableist ideas and discussed the stigma around mental and emotional disabilities in KMMD’s private Facebook group. Ms. Rowe filed a complaint with the Maryland Commission on Civil Rights (MCCR), which conducted an inadequate and unfair investigation and issued a finding of “no probable cause” for discrimination. The circuit court affirmed MCCR’s decision, and on appeal, the Maryland Appellate Court, ruled on its own initiative that it didn’t have jurisdiction to review MCCR’s finding. In an oral argument before the Maryland Supreme Court, Hayley argued that the Appellate Court does indeed have jurisdiction to review MCCR’s findings. Ultimately, the high court’s decision will affect many people who file claims with MCCR.

Many thanks to Sabrina Harris, Emily Woo Kee, Carolina Paul, Gabriela Dickson La Rotta, and Becky Reynolds for their excellent assistance producing the briefs, to former Murnaghan Fellow Michael Abrams for authoring the successful certiorari petition,  and to the amici who supported our client—the American Civil Liberties Union of Maryland, Asian Pacific American Bar Association of Maryland, CASA, Council on American-Islamic Relations, Disability Rights Maryland, Equal Rights Center, FreeState Justice, Homeless Persons Representation Project, National Federation of the Blind, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs—and their attorneys, Andrew Levy and Anthony May of Brown, Goldstein & Levy.

Protecting health care workers’ rights under Maryland law

In January, Hayley had the honor of presenting the first oral argument before the newly renamed Supreme Court of Maryland in Romeka v. RadAmerica II, LLC. She represented a licensed radiation therapist in bringing a claim under Maryland’s Health Care Worker Whistleblower Protection Act (HCWWPA). The statute, which has rarely been interpreted by Maryland courts, allows health care workers who face retaliation for reporting unsafe and unlawful conduct to sue their employers. The Appellate Court had concluded that Ms. Romeka couldn’t show that her employer would not have fired her but for her protected conduct (raising concerns about a broken radiation machine and health care consumer safety) and affirmed judgment in favor of the employers. In its opinion, the Appellate Court cited federal Supreme Court rulings interpreting a federal law not applicable to Ms. Romeka’s appeal. The federal law uses a “but for” causation standard, while Maryland whistleblower statutes apply standards (contributing-factor and motivating-factor) that are more protective of workers’ rights. In briefing and oral argument, Hayley urged that the contributing-factor, not “but for” causation, standard applies under the HCWWPA. She also argued that issues of material fact remained, requiring resolution by a jury at a trial, not a judge at the close of discovery. Given that Ms. Romeka had provided sufficient evidence and questions remain about the employers’ motivation for termination, the case should return to circuit court for a jury trial. The decision in this case will determine whether the stronger worker protections in Maryland laws take precedence over federal laws. Many thanks to Sabrina Harris, Carolina Paul, Gabriela Dickson La Rotta, Angelea Aldana Dwyer, and Emily Woo Kee for their excellent assistance producing the briefs, and to former Murnaghan Fellow Michael Abrams for authoring the successful certiorari petition.