I hope everyone had a good weekend. I just got back from the Federal Bar Association national convention in Kansas City, which was fabulous. I was part of a fantastic panel speaking on policing and persons with disabilities. In particular, we talked about a lot of different things. My part focused on why Graham v. Connor should no longer be used as the basis for training (we discussed that issue in this blog entry), and the police responsibility for getting the laws regarding service animals, particularly with respect to title III of the ADA, correct. The panel was fabulous and consisted of myself, Aisha Novasky of Disability Rights California, and two Brown Goldstein attorneys-Jamie Strawbridge and Michael Abrams.

 

Turning to the blog entry of the day, it is a case discussing the following (which will also serve as my blog categories): 1) whether temporary disabilities are covered by the ADA; 2) what does it mean to have a disability that is minor for purposes of the regarded as exception; 3) when is medical testimony required to establish a disability; and 4) miscellaneous matters. After describing the facts of the case, we will discuss each one of those topics below. Of course, at the end of the blog entry, we will have our thoughts/takeaways section. The case of the day is Morgan v. Allison Crane and Rigging, LLC, a published decision decided by the Third Circuit on September 4, 2024, here.

 

I

Facts

 

In the fall of 2019, Andrew Morgan was employed by Allison Crane and Rigging as a millwright laborer until he was terminated on November 18, 2020.

 

On September 29, 2020, while working at the Williamsport location, Morgan injured his lower back. Although he was in “severe pain,” Morgan completed his shift. He informed at least one co-worker, as well as Hastings (his supervisor), about his back injury. Hastings told Morgan that he would “relay the message” to Mundrick. Morgan continued working his regular shift through the remainder of the week but informed his crew that he was still in pain and considering chiropractic treatment.

 

Several days later, on October 1, 2020, Morgan saw a chiropractor. Morgan testified that the chiropractor diagnosed him with a bulged or herniated disc in the lower back and recommended that Morgan return twice weekly for treatment to alleviate the lower back pain. Morgan’s back became inflamed when he sat, walked, or turned left or right. Morgan complied with the treatment plan by making twice-weekly visits to his chiropractor, and the chiropractor further advised Morgan to switch to “light duty” work.

 

On October 7, 2020, Morgan had a meeting with several supervisors—including Bonislawski and Thomas Ungard. Morgan again informed them of his back injury at that meeting and he was told that he would be placed on light duty. He was also advised to not file a workers compensation claim on the grounds his injury was not sufficiently severe.

 

On October 8, and again on October 22, 2020, Morgan’s chiropractor wrote a note stating that Morgan should be excused from “bending or lifting” items over fifteen pounds through November 4, 2020. 8 Then, on November 5, 2020, the chiropractor further restricted Morgan from bending or lifting items over thirty pounds for another thirty days; a period which would have run through December 5. However, on November 25, 2020, Morgan’s chiropractor released Morgan “to his full occupational duties without restrictions.” In total, from October 8 until November 25, 2020, Morgan’s chiropractor placed him on bending and lifting restrictions for forty-eight days. Morgan shared the chiropractor’s notes with Bonislawski, and Morgan concedes that Allison Crane did indeed place him on light duty restrictions, until it terminated him.

 

According to Allison Crane, Morgan’s actions during one week in November led to his termination. On November 13, 2020, Bonislawski warned Morgan about not wearing the appropriate protective equipment while working. Several days later, Morgan was assigned to drive a truck to escort a crane from a job site in Syracuse, New York. Morgan texted the dispatcher that he could not perform the task because the timing conflicted with an important back appointment that he did not want to miss, but he was willing to do another job that did not conflict with the appointment.

 

Morgan testified that, later that day, he was again contacted by dispatch, and he told dispatch that he could not do the job because he could not “sit for that long of a time” without inflaming his back but that he could do “light duty” work. According to Morgan, the dispatcher said “they would be able to find somebody else.” Morgan claims that he went to work in the yard on November 17, 2020.

 

The next day, on November 18, 2020, Bonislawski fired Morgan, purportedly because Morgan failed to “follow the day off request process as well as other policies” when he did not “show for work” on November 17.12 Prior to Morgan’s termination, he continued to work full time, for the same wages, and did not miss any workdays.

 

II

 

Court’s Reasoning That Temporary Impairments Can Qualify As an Actual Disability under the ADA

 

  1. Prior to the enactment of the amendments to the ADA, the Supreme Court had held in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams that an impairment must prevent or severely restrict the individual when doing activities that are of central importance to most people’s daily lives and be permanent or long-term in order to qualify as a disability.
  2. In enacting the amendments to the ADA, Congress rejected the Supreme Court’s permanency standard. More specifically, Congress mandated that the definition of disability must be construed in favor of broad coverage of individuals and to the maximum extent permitted. In response to that admonition, the EEOC explained that even an impairment expected to last less than six months can constitute an actual disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
  3. Other Circuits since the amendments, have held in published opinions that temporary impairments can qualify as an actual disability under the ADA. The Third Circuit has reached the same conclusion in unpublished opinions. Even the defendant, now agrees that an impairment lasting fewer than six months can constitute a disability.
  4. The trial court’s reliance on a prior Third Circuit decision is misplaced because that decision applied the pre-amendment standard to what constitutes a disability. While that decision came down after the amendments, the actual case was filed before the amendments. So, the law before the amendments was the law in effect at the time the case the trial court relied on was decided.
  5. The analysis of Morgan’s general back pain under the ADA must focus on whether his injury substantially limited his ability to perform a major life activity as compared to most people in the general population. Morgan clearly established such a limitation with his allegations. In particular: 1) Morgan testified that it hurt to sit, to walk, and hurt to turn left or right; 2) from October 8 until November 5, 2020, Morgan’s chiropractor advised him against lifting anything over 15 pounds and from bending; and 3) from November 5 until November 25, Morgan was still advised not to bend and was further restricted from lifting more than 30 pounds.
  6. Given that lifting and bending are major life activities, a reasonable jury could find that Morgan’s back pain, even though it was temporary, constituted an actual disability because it substantially limited the ability to perform major life activities as compared to most people in the general population.
  7. The amendments to the ADA makes clear that the duration of an impairment is not dispositive of whether someone is disabled.
  8. All short-term impairments do not necessarily rise to the level of disability under the ADA because a plaintiff must still demonstrate that the short-term impairment substantially limits a major life activities.

 

III

Court’s Reasoning That Sufficient Allegations Exist to Show That Morgan’s Temporary Impairment Was Not Minor and Therefore Is Not Precluded by the Regarded As Exception

 

  1. An impairment lasting fewer than six months is transitory. However, for the transitory and minor exception to apply, the impairment must be BOTH transitory and minor.
  2. Minor is not defined by statute, but coverage under the regarded as prongs should not be difficult to establish.
  3. The determination of whether an impairment is minor must be made on a case-by-case basis, and the factors to be considered depend on the particular impairment.
  4. The requirement for a prima facie regarded as claim are less demanding than those for an actual disability claim.
  5. The only issue the trial court had to determine was whether his back pain was also minor.
  6. It would be paradoxical to conclude that Morgan’s back pain that limited the major life activities of bending, lifting, walking, and sitting was minor given that the substantially limits requirement is a higher burden to meet.
  7. The minor requirement of the regarded as exception is only intended to include impairments at the lowest end of the spectrum of severity, such as common ailments like the cold or flu. Back pain that causes difficulty and bending, lifting, walking, and turning left or right, is undoubtedly more than minor pain.

 

IV

Court’s Reasoning as to When Medical Testimony Is Required in Order to Establish a Disability

 

  1. Medical testimony is not always required to establish a disability.
  2. The necessity of medical testimony is decided on a case-by-case basis, and it turns on the extent to which the alleged impairment is within the comprehension of a jury that does not possess a command of medical or otherwise scientific knowledge.
  3. Generally, ailments that are the least technical nature and are the most amenable to comprehension by a lay jury need not be established by medical evidence.
  4. Arm and neck pain are among those ailments not requiring medical evidence. However, a herniated disc is a spinal injury not within the comprehension of a jury that does not possess a command of medical or otherwise scientific knowledge. Accordingly, Morgan’s claim that he was unlawfully discriminated against because of an actual herniated or bulged disc disability is dismissed.

 

V

Miscellaneous Matters

 

  1. The Third Circuit also said that the trial court erred in dismissing Morgan’s retaliation and failure to accommodate claims. In particular, the defendant did not even move for dismissal of the retaliation claims and the trial court did not report to dismiss the retaliation claims on its own motion. Accordingly, the order dismissing the retaliation and failure to accommodate claims must be vacated and remanded to be addressed by the trial court. On remand, the trial court needs to consider whether the defendant failed to preserve its arguments against the retaliation claim.
  2. The court also said that the defendant may have run itself into trouble when it tried to discouraged Morgan from filing a workers compensation claim and he in fact refrained from doing so.

 

VI

 

Thoughts/Takeaways

 

  1. Temporary impairments can be a disability under the ADA after the amendments (since 2009).
  2. Toyota Motor, here, is no longer good law.
  3. Sutton v. United Airlines, here, is still good law with respect to any allegation that the major life activity of working was substantially limited. After the amendments, there should be almost no reason why a plaintiff would allege working as the major life activity. In fact, I have argued I have argued in the past that it would be legal malpractice for a plaintiff to do so except in the most unusual of cases.
  4. Disabilities lasting less than six months can constitute an actual disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. That is, the duration of an impairment is not controlling when determining whether a person is disabled under the ADA.
  5. Establishing a substantial limitation on a major life activity should not be difficult in most cases. It becomes even less difficult if the argument is that the defendant regarded the plaintiff as having a physical or mental impairment (regarded as claim).
  6. For the regarded as exception to apply, the disability must be BOTH transitory and minor.
  7. Whether a disability is minor turns upon whether there was a substantial limitation in a major life activity compared to most people in the general population.
  8. Medical testimony may or may not be required to establish a disability. However, the standard set by the court is ambiguous. Therefore, as a matter of preventive law, a plaintiff will want to have at the ready a person to discuss why the physical or mental impairment is a disability.
  9. Courts need to be clear when dismissing claims to why they are doing it. For example, are they dismissing claims on their own motion or upon a request from the party.
  10. Dissuading a person from filing a claim is never a good idea. See this blog entry.
  11. This case illustrates that the minor exception of transitory and minor in regarded as cases leads back to the actual disability prong. That is, you look to whether a substantial limitation on a major life activity exists. Such an analysis lead to a rather quirky situation where for regarded as claim, you don’t need a substantial limitation on a major life activity. However, if defendant argues the transitory and minor exception, then a substantial limitation must be shown, though the burden for showing a substantial limitation (not clear at all who has that burden), is not nearly as high as it is for an actual disability claim.

I hope everyone had a great holiday weekend.

 

This week’s blog entry is a case out of the Second Appellate District of the Court of Appeal of the State of California. It is a case involving whether attorney fees can be imposed upon plaintiff’s counsel as a sanction when the lawsuit is frivolous. The case is Morgan v. Zarco Hotels Inc. decided on August 21, 2024 and can be found here. As usual, blog entry is divided into categories and they are: facts; court’s reasoning the award of attorney fees against plaintiff’s counsel as a sanction must be thrown out; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts are really straightforward. A plaintiff and the law firm she used, Center for Disability Access, filed a failure of a website to be accessible to a person with a disability lawsuit. While the plaintiff asserted no cause of action under the ADA, the complaint did seek a permanent injunction ordering compliance with the ADA and that defendant’s actions violated the ADA. Early in the litigation, defendant’s counsel contacted plaintiff’s counsel and explained that the hotel’s website was fully accessible and ADA compliant. He also said that the complaint lacked merit and the lawsuit should be dismissed. The defendant then filed a motion for summary judgment supported by a declaration from an expert who conducted an accessibility audit of the hotel website attesting to its accessibility by persons using screen reading technology. Plaintiff did not oppose the summary judgment motion and the action was dismissed. The defendant then filed a motion for attorney fees against the plaintiff and the plaintiff’s attorneys under §12205 of the ADA and California Rules of Court. The trial court found that the plaintiff’s action was meritless, frivolous, unreasonable, and without foundation, based on defendant’s evidence and plaintiff’s failure to present any evidence supporting the merits of the case. The trial court denied the motion as to plaintiff finding no evidence that the plaintiff did anything improper. The trial court granted the motion against plaintiff’s counsel because the court believed that the parties communication should have put plaintiff’s counsel on notice of the problems with the case. Accordingly, the trial court ordered plaintiff’s counsel to pay $55,414.84 in attorney fees. Plaintiff and plaintiff’s counsel appealed.

 

II

Court’s Reasoning That the Award of Attorney Fees Against Plaintiff’s Counsel as a Sanction Must Be Thrown out

 

  1. Under the ADA, a prevailing defendant can only recover attorney fees if the ADA claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate it after it clearly became as such.
  2. The ADA clearly applies to the case as the complaint referenced it in various ways.
  3. Fee awards against attorneys are ordinarily available only as sanctions and are generally not allowed under routine fee shifting provisions.
  4. Trial courts cannot award attorney fees as a sanction for misconduct in the absence of statutory authority or agreement of the parties.
  5. §12205 of the ADA, here, does not expressly authorize an award of attorney fees as sanctions against a party’s counsel. The silence of the statute as to whether attorney fees may be assessed against a party’s counsel does not authorize a court to do so.
  6. Defendant cited no authority where attorney fees under the ADA were assessed against a party’s counsel and the court found no such authority. Accordingly, case law supports the presumption that fee shifting statutes apply only to parties unless the statute expressly states otherwise.
  7. The Supreme Court has declined to make lawyers responsible for fees under other fee shifting statutes, and Federal and California appellate courts have applied that principle to other similar fee shifting statutes.
  8. Cases interpreting fee shifting statutes with similar language to §12205 uniformly disallow attorney fees award against a party’s counsel. There is no reason to interpret the ADA fee shifting statutes differently. The similar language of other fee shifting statutes is a strong indication that they are to be interpreted in the same way.
  9. §12205 of the ADA does not authorize assessment of attorney fees against a party’s attorney.

 

III

Thoughts/Takeaways

 

  1. In most situations, a plaintiff involved in serial lawsuits is likely to be judgment proof. So, that may explain why the defense went after plaintiff’s counsel as well as the plaintiff.
  2. Attorney fees cannot be awarded as a sanction against a plaintiff’s attorney in an ADA matter.
  3. Since most serial plaintiffs are likely to be judgment proof, one wonders how a defendant could collect any attorney fees award in the event of a frivolous lawsuit.
  4. Oftentimes, defendants will just settle a serial web site lawsuit instead of litigating it. This is a situation where the defendant refused to do that.
  5. This is a California case interpreting the ADA. Accordingly, one wonders whether federal courts will interpret the ADA in the same manner. It will be interesting to follow how this particular issue plays out in the federal courts.
  6. The trial court did not award attorney fees against the plaintiff because the plaintiff did nothing wrong. Interesting phrasing. It also makes you wonder whether to recover attorney fees against a plaintiff, the defendant would have to prove some form of wrongdoing involving the plaintiff beyond hiring counsel to prosecute the claim.

Did you know that asthma might not be a disability? How is that even possible? After all, asthma is certainly a physical impairment that limits breathing and the immune system. Even so, the Sixth Circuit in Andrews v. Tri-Star Sports and Entertainment Group, Inc., here, on August 21, 2024, said that a plaintiff’s asthma was not a disability under the ADA. How did they get there? There was also a dissenting opinion worth discussing as well. As usual, the blog entry is divided into categories and they are: facts; majority opinion’s reasoning that Andrews forfeited certain arguments; majority opinion’s reasoning that Andrews did not sufficiently claim her asthma substantially limited the major life activity of breathing; Judge Clay’s dissenting opinion stating that the majority gets it wrong when it says Andrews asthma is not a disability protected by the ADA as amended; Judge Clay’s dissenting opinion stating that the defendant can have liability for failure to engage in the interactive process; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Andrews was diagnosed with asthma when she was fourteen or fifteen. She uses three medications daily and an inhaler as needed. Prior to her work at Tri Star, Andrews cheered competitively, sang and danced in a professional musical production in New York City, and coached cheerleading. While working at Tri Star, Andrews competed in exhibition cheerleading. She also attended 100-200 minute “heavy exertion” CrossFit classes two or three time weekly before suffering a rotator cuff injury. Since her termination from Tri Star, she went on cruises both to Alaska and the Caribbean, traveled to Spain and Orlando, and participated in gymnastics twice a week.

 

In March 2020, the Covid-19 pandemic forced the sudden cancellation of many live events. Tri Star earns commissions from live events and lost much of its revenue. To reduce its force, Tri Star’s CEO determined that only those she deemed “essential employees”—those who generate money for the company—would be able to work from home, while “nonessential employees” who requested to work from home would be laid off.

 

Around this time, Andrews asked her primary care provider, a nurse practitioner, if she should take any specific precautions against Covid-19. Andrews’s provider instructed her to “wash [her] hands, work from home if . . . able,” and to “self-quarantine” if she experienced symptoms. The next day, when Andrews went to the office, Tri Star employees—including her desk mate—were using Lysol spray cleaner. Irritated by the spray, Andrews went to the bathroom, used her inhaler, and returned to her desk for the remainder of the day. After Andrews’s supervisor expressed concern about Andrews’s cough possibly being Covid-19, Andrews assured him that it was “just a cough from asthma.” That same day, the Human Resources (HR) manager sent an email asking employees to speak with her and their supervisors immediately if they needed to work from home.

Andrews emailed her supervisor and the HR manager requesting to work from home. She falsely claimed that her “doctor” was “pissed at [her] and called [her] irresponsible for not staying at home[.]” Although Andrews told the HR manager that she would come into the office the next day, she later called her supervisor and said that her asthma and cough were getting worse. Again fearing that Andrews may have Covid-19, Andrews’s supervisor instructed her to stay home for the day. The next day, Andrews emailed the HR manager a note from her primary care provider stating that she has “well controlled” asthma but would “benefit from working at home due to the rising risk of COVID-19.” Meanwhile, the CEO deemed Andrews’s position “nonessential.” Two days later, Tri Star fired Andrews and nine other nonessential employees who requested to work from home.

According to the majority opinion, in the complaint: 1) Andrews never alleged that her asthma compromised her immune system or put her at an increased risk of contracting Covid-19. Instead, defendant only learned of those allegations when Andrews responded to its motion for summary judgment; 2) In briefing, Andrews failed to support her assertions with accurate record cites or any record cites at all; 3) Andrews failed to respond to the arguments made by the defendant that she had failed to allege she had a record of her asthma substantially limiting a major life activity.

 

II

Majority Opinion’s Reasoning That Andrews Forfeited Certain Arguments

 

  1. New claims may not be raised in response to a motion for summary judgment.
  2. The claim that her asthma substantially limited her immune function was missing from the complaint. Andrews never alleged that her asthma compromise her immune system or put her at an increased risk of contracting Covid-19. Since defendant only learned of those allegations in Andrews’ response to its motion for summary judgment, the defendant was not afforded fair notice of her immune related arguments or the grounds upon which they rested. Therefore, the defendant had no opportunity to investigate them during discovery. As a result, Andrews waived her arguments that her asthma was substantially limited, or was perceived as substantially limiting, her immune function.
  3. Andrews failed to respond to the defendant’s argument that she failed to allege that she had a record of asthma that substantially limited a major life activity. Therefore, she forfeited that argument.
  4. Andrews failed to allege that the defendant regarded her as being immunocompromised. Accordingly, that argument was forfeited as well.

 

III

Majority Opinion’s Reasoning That Andrews Did Not Sufficiently Claim That Her Asthma Substantially Limited the Major Life Activity of Breathing

 

  1. Andrews did not describe the impact of her asthma as severe enough to qualify as a substantial limitation on her breathing. The ADA says that a major life activity is substantially limited when an individual cannot perform that activity as an average person in the general population could perform, or if the individual faces significant restrictions in the condition, manner, or duration under which he can perform the activity. 29 C.F.R. §1630.2(j)(i)-(ii).
  2. Andrews told her medical provider that there was very little she couldn’t do. Extra strenuous activities could be a problem. She said there were a few extreme things that she wouldn’t do and that she avoided cardio intensive things. She also avoided: dogs that shed; using spray cleaner; or being in the cold for long periods of time. As a result, Andrews is able to physically perform well beyond the average person. After all, she goes to gymnastics twice a week, travels internationally, attends CrossFit workouts two or three times a week, was a competitive cheerleader and cheerleading coach, and sang and danced in a professional musical production. Since Andrews only alleged to her asthma prevented her from participating in just a few activities or settings, she did not raise a genuine issue of material fact as to whether she was substantially limited in the major life activity of breathing.

 

IV

Judge Clay’s Dissenting Opinion Stating the Majority Gets It Wrong When It Says That Andrews Asthma Is Not a Disability Protected by the ADA As Amended

 

 

  1. The majority determination that Andrews does not have a disability under the ADA wrongfully assumes those who are disabled cannot find ways to participate in everyday activities and blatantly contradicts the 2008 amendment to the ADA.
  2. By ignoring the text and intent of the amendments to the ADA, the majority erroneously determined that Andrews’asthma does not qualify as a disability because she is able to engage in various exercise related activities with the routine use of her inhaler and medication, a fact the majority opinion declined to acknowledge.
  3. Andrews provided a legitimate Dr.’s note stating she had asthma. It also stated that while the asthma was well-controlled, that she would benefit from working at home due to the rising risk of Covid-19.
  4. The defendant listed Andrews as being immunocompromised on a list of 12 employees that had requested to work from home. Three days after making that list with a compromised immune system noted, Andrews was told that she was being laid off as part of a reduction in force.
  5. The majority opinion rest upon the assumption that an individual with a disability cannot find ways to cope with his or her disability and still be considered disabled. Such an approach ignores the amendments to the ADA express instruction to reject any consideration of mitigating measures and to broadly construe what constitutes a disability.
  6. Prior to the passage of the amendments to the ADA, individuals who took self-help measure to improve their conditions were frequently deemed not covered by the protections of the ADA as a result of the Supreme Court opinion in Sutton v. United Airlines.
  7. Sutton resulted in serious conditions, such as epilepsy, diabetes, cancer, bipolar disorder, depression, and asthma, being categorically excluded as a disability under the ADA. So, Congress stepped in with the amendments to the ADA. The purpose of the amendments was to shift the focus in ADA litigation from whether an individual’s impairment substantially limits a major life activity to the more important question of whether covered entities have complied with the ADA and whether the discrimination has actually occurred.
  8. The amendments to the ADA prohibited courts from considering mitigating measures when assessing whether impairment substantially limits a major life activity.
  9. The amendments also made it no longer relevant to determining whether the impairment substantially limits a major life activity that the disability may be episodic in nature or occur infrequently.
  10. It does not matter Andrews’ asthma flares up only occasionally. Further, Andrews’use of the inhaler should not be considered when determining whether her asthma is a disability.
  11. The amendments to the ADA specifically stated that the substantial limitation standard is not meant to be a demanding one and that the ADA mandates the definition of disability should be construed in favor of broad coverage of individuals.
  12. The majority opinion mirrors outdated case law Congress expressly overturned with the amendments to the ADA. That outdated case law is no longer good law and cannot be relied upon. Prior to the passage of the amendments, Andrews’ asthma likely would not have constituted a disability because she is essentially able to function normally with the use of the her inhaler. However, after the amendments, courts can no longer consider mitigating measures when assessing whether an individual has a disability. Instead, the appropriate inquiry is whether the plaintiff’s asthma would substantially limit a major life activity when active without the consideration of the relief she gets from using her inhaler and her other medications.
  13. The answer to the inquiry as to whether she is substantially limited in the major life activity of breathing absent use of her inhaler and other medications is obviously yes for many reasons: 1) she was diagnosed with asthma during high school; 2) the parties agree that her asthma triggers include the wind blowing interface, being in cold temperatures, high humidity, stress, strong smells, perfume, synthetic fog, and aerosol cleaning products. Each of those triggers inhibits her ability to breathe.
  14. Andrews also testified that she has to deal with her asthma every day and tries to not let it get in her way and that it can be debilitating.
  15. Defendant does not dispute that she uses her inhaler regularly and must do so.
  16. Andrews elaborated that her asthma can culminate in bronchitis or pneumonia, resulting in shortness of breath even if she simply gets up and tries to move around.
  17. She also testified that there were a lot of things she would like to do that she chooses not to do because they would be a problem as a result of her asthma.
  18. She testified that her asthma would not be well-controlled in the absence of her inhaler and additional medications.
  19. To combat the simple conclusion that she is substantially limited in the major life activity of breathing when mitigating measures are not considered, the majority ignores the amendments to the ADA saying that her transient and isolated asthma does not qualify as a disability. Such an outdated analysis is no longer permissible. That is, whether it disability occurs only in response to stimuli or can be controlled with mitigating measures is no longer relevant to the disability inquiry.
  20. The majority compounds its error by implying that Andrews cannot possibly claim to be disabled due to asthma and at the same time maintain an active lifestyle. That conclusion is absolutely wrong. Importantly, Andrews engages in those activities only with the assistance of her inhaler, which can’t be considered when determining whether she has a disability.
  21. By not evaluating whether Andrews has substantial limitation during exercise if she did not use her inhaler or other medication, the majority followed the District Court’s perfunctory conclusion that she did not adequately cite to the record to support that her active lifestyle is possible only due to her medications. Even a quick review of the undisputed facts show that Andrews always uses her rescue inhaler prior to exercising to keep her asthma controlled. By refusing to consider the effects of her asthma without regards to mitigating measures, the majority’s opinion puts its analysis within the rubric of pre-2008 case law, which Congress overruled with the amendments to the ADA.
  22. In a footnote, Judge Clay notes that contrary to the majority’s holding, the district court did consider Andrews’ mitigation argument.
  23. In emphasizing her ability to attend exercise classes, the majority relies on the long outdated presumption that someone who is truly disabled could not engage in strenuous activities. Just because she found ways to cope with her asthma does not bar her from being considered disabled within the purview of the ADA. After all, a court would not hold that a plaintiff with a prosthetic leg claims he is substantially limited in his ability to walk would not be disabled if he attended workout classes as such an interpretation would be absolute nonsense.
  24. Although there are certainly circumstances in which asthma would not substantially limit a major life activity, there is sufficient evidence in this case that a reasonable trier of fact could conclude that when Andrews’ asthma was active that she was substantially limited in her ability to breathe compared to most people in the general population.
  25. In a footnote, Judge Clay notes that the majority argument is very similar to an argument that Congress specifically rejected when passing the amendments to the ADA. For example, Congress stated that when considering the condition, manner, or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking.

 

V

Judge Clay’s Dissenting Opinion That the Defendant Can Face Liability for Failure to Engage in the Interactive Process

 

  1. Tri-Star admitted that it did not engage in any interactive process.
  2. Andrew triggered the defendant’s obligation to engage in the good faith interactive process by sending a written request to work from home accompanied by a Dr.’s note.
  3. Andrews’ requested accommodation could be viewed by a jury as objectively reasonable as the defendant was soliciting such requests and she had worked from home successfully in the past.
  4. After she made her requests, she was entitled to an interactive process built around communication and good-faith exploration of possible accommodation by both the employee and the employer.
  5. Had the defendant attempted to engage in the interactive process as it was obligated to do, the parties may have found a variety of alternative options allowing Andrews to perform in person work throughout the duration of the pandemic. For example, Andrews may have agreed to continue working in person if the office agreed to implement a policy of using disinfectant wipes instead of aerosol cleaning spray. Although it is possible that she may have ultimately insisted on the accommodation of working remotely, the defendant did not engage in any form of a conversation that could have led them to that conclusion.

 

VI

Thoughts/Takeaways

 

  1. When it comes to complaints, this case illustrates that it is really important for a plaintiff to list absolutely everything that may be a major life activity that is substantially limited by the client’s physical or mental impairment. The amendments to the ADA gives quite a long laundry list of possibilities. That list is also not exclusive, though it helps to stick to the list.
  2. It is important to respond to arguments raised in a motion for summary judgment and to make sure that the complaint is as comprehensive as possible.
  3. Complaints need to state enough facts so as to give a reasonable person notice as to what is being complained of. Notice pleadings is dead after Iqbal/Twombly, but fact-based pleadings isn’t entirely required either. Preventive steps means approaching a complaint more on the fact based side rather than on the notice side.
  4. I can understand the forfeiture arguments. However, in my opinion, the dissenting opinion overwhelmingly carries the day with respect to whether Andrews is a person with a disability for all the reasons the dissent mentions.
  5. This is a decision out of the Sixth Circuit, which encompasses Kentucky, Michigan, Ohio, and Tennessee. The court sits in Cincinnati Ohio. One has to wonder in light of the dissenting opinion’s strong arguments whether an en banc rehearing would be sought. Also, while I rarely suggest that it is a good idea from the person with a disability side to seek an appeal to the United States Supreme Court in an employment matter, this may be an exception to that rule. While the case concerns an employment matter, which may present a problem for the person with a disability at the Supreme Court typically, this case is about definitional matters. It seems possible to me that the Supreme Court would have problems saying that Sutton (with the exception of working as a major life activity, which remains good law), still applies even in the absence of specific statutory authority stating otherwise. As the dissent points out, the majority opinion make some unfortunate assumptions about what people with disabilities are capable of (for example, the Paralympics start this week), and that also may not sit well with the Supreme Court.
  6. The employer may have dodged a bullet here with the majority’s ruling on there being no disability. If it hadn’t dodged that bullet, the failure to engage in an interactive process would have been very problematic for this employer. Always engage in the interactive process. Remember, it doesn’t take much to trigger the interactive process. For example, magic words aren’t required. Also, don’t forget about the do’s and don’ts of the interactive process. Finally, after the amendments, it is a very rare case where a defendant can successfully claim that a disability is not involved.
  7. After the amendments, mitigating measures cannot be considered when deciding whether a person has a disability unless eyeglasses are involved. Mitigating measures can be considered with respect to reasonable accommodations but the two concepts are not at all the same.
  8. The decision is not published.
  9. I am not sure I understand the majority’s statement that Andrews failed to respond to arguments that she did not allege a record of having asthma. After all, the majority opinion itself said she was diagnosed with asthma back in high school.
  10. The EEOC has made it clear that in the vast majority of cases whether an impairment is substantially limited is not a demanding inquiry, which is not how the majority opinion goes about it.

Before getting started on the blog entry of the day, I am currently reading Over Ruled by Justice Gorsuch and Janie Nitze. My passion for constitutional law and legal theory started in college when I took those two separate classes from Professor Rumble while majoring in political science at Vassar College. Now, I enjoy reading books like that to get a sense of what a jurist’s philosophy might be. Justice Gorsuch, regardless of whether you agree with him or not, is a fabulous writer and very enjoyable to read. One thing is clear from reading the book is that it should not be a surprise the position he took in Loper Bright. It also creates a real question as to whether Loper Bright, which we discussed here, overruled Kisor v. Wilkie, which we discussed here. I think from Justice Gorsuch’s perspective, you could make the argument that Loper Bright prevails over Kisor v. Wilkie.

 

Turning to the blog entry of the day, it involves a particularly egregious set of facts. If this was an employment situation, I would hope that Jon Hyman, Esq. would nominate the employer for a worse employer of the year award. However, it is not an employment situation, so I don’t think the entity in this case is eligible for that award. The case explores the question of when is something medical malpractice v. disability discrimination and why does it matter. The case is Costin v. Glen Falls Hospital decided on June 12, 2024 by the Second Circuit, here. As usual, the blog entry is divided into categories and they are: facts (taken directly from opinion); court’s reasoning that plaintiff has standing; court’s reasoning denying certain ADA and Rehabilitation Act claim; court’s reasoning allowing certain ADA and Rehabilitation Act claims (instigation of CPS investigation and administration of drug tests), to go forward; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken directly from opinion)

 

When Costin’s water broke in March 2021, she was met at the Hospital by Nurse Stacy Ralph. Nurse Ralph and Costin discussed her medical history and birth plan, including Costin’s wish for an epidural injection. When asked what medications she was taking, Costin responded that she takes Subutex twice a day (as prescribed by her primary care physician). Subutex, like related medication Suboxone, is used to treat individuals with substance-abuse disorder. Notwithstanding her treatment with Subutex and rehabilitation, Costin “still has substance abuse disorder[,]” but she “is no longer using illicit opioids.” A26 (Am. Compl. ¶ 29).

After a change in shift, Nurse Ralph informed the incoming nurse, Nurse Karen Ranttila, that Costin was taking Subutex. Nurse Ralph also advised that the Hospital was awaiting the results from a urine-toxicology screen, a test that Costin was not informed about and did not consent to.

As Costin’s labor resulted in intense contractions that caused her to go “in and out of consciousness[,]” she asked Nurse Ranttila to prepare her epidural shot; Nurse Ranttila responded that the Hospital’s anesthesiologist was on call and that she would contact him to start the epidural process. A27-28 (Am. Compl. ¶ 33). Over the next hour, Costin’s contractions intensified, but she did not receive an epidural.

At one point, Nurse Midwife Nicole Bennett entered Costin’s hospital room and “blurted” out, “[y]our urine test came back with positive results for both cocaine and PCP.” A28 (Am. Compl. ¶ 34). Costin “immediately informed everyone in the room that the positive results were wrong, she did not take cocaine or PCP during her pregnancy, and the [H]ospital must have made an error in the lab or tested the wrong patient’s urine.” Id. Costin asked Nurse Ranttila to immediately redo the urine test or to conduct a blood test, and Costin continued to “beg” for an epidural. A28 (Am. Compl. ¶¶ 34-35).

As Nurse Ranttila collected a second urine sample, she asked Costin if she was “sure [she] didn’t do cocaine before coming in?” A28 (Am. Compl. ¶ 35) (internal quotation marks omitted). Nurse Ranttila also stated that (1) the Hospital “drug tests pregnant women who take Suboxone or Subutex `all the time'”; and (2) the Hospital “compares Subutex patients’ prescribed dosage against the levels in their system to try to determine whether they are illegally selling their pills.” Id. (emphasis omitted).

Approximately one hour later, Nurse Midwife Bennett informed Costin that her second urine sample tested negative for all substances. Nurse Ranttila informed Costin that the Hospital was withholding the epidural. Hospital staff then connected a bag of fluids to Costin’s IV drip. Costin again asked for an epidural, but Nurse Ranttila informed Costin that the bag of fluids contained Pitocin (a drug given to accelerate labor) and that the Hospital staff were waiting for her to finish receiving the fluids. Although Costin continued to ask for an epidural and did not want to accelerate her labor, Hospital staff refused to administer pain relief, ignored her request to withhold the Pitocin, and proceeded with inducing labor.

When Baby A was born later that evening, he had a bruised face, burst blood vessels in both eyes, and severe jaundice, attributable to the “violent nature” of his birth. A29-31 (Am. Compl. ¶¶ 38, 41, 42). Despite Costin’s protests, Nurse Ranttila collected Baby A’s urine and meconium to run additional toxicology screenings. Baby A was then placed into an incubator, which prevented him from having skin-to-skin contact with Costin. During this same period, Hospital staff sewed Costin’s vaginal tear closed without any form of pain relief, despite Costin’s “relentless[ ] yelling . . . for them to stop.” A30 (Am. Compl. ¶ 40).

The next day and the day after, Costin wanted to leave the Hospital to take a shower. Nurse Jodie Smith told Costin that she could not leave until she spoke to the attending physician, who would be visiting her room by 4:00 p.m. But the Hospital was actually delaying Costin’s discharge because it had contacted the New York State Child Abuse and Maltreatment Register “to report suspicions that . . . Costin was `responsible for causing or allowing to be inflicted injury, abuse, or maltreatment'” on Baby A. A33 (Am. Compl. ¶ 49). A caseworker from Warren County Child Protective Services (“CPS”) arrived at approximately 4:00 p.m. and directed Costin to submit to a third urine-screening test. The caseworker also directed Baby A’s father to take a drug test. After the caseworker left, Costin was allowed to go home to shower.

Upon her return to the Hospital, Costin met with Hospital representatives, who assured her “that they would change the manner in which they operate so that no patient is ever treated the way that Ms. Costin was treated,” and told her that “CPS would not conduct a home visit until further notice, given the circumstances,” and that a social worker employed by the Hospital, “would follow the case.” A37 (Am Compl. ¶ 58). Nevertheless, the Hospital refused to discharge Baby A until CPS could conduct a home visit. When Costin expressed confusion as to why CPS was still involved, Dr. Kevin Grassi informed Costin that the Hospital “reports possible child abuse by every patient that comes in on Suboxone.” A38 (Am. Compl. ¶ 60) (some emphasis omitted).

The next day, the Hospital informed Costin that her initial drug test was a false-positive and that CPS had closed its investigation. She was then allowed to go home with Baby A. But, within five minutes of Costin’s return home, the CPS caseworker arrived and informed Costin that the CPS investigation would not be closed without the test results from Baby A’s meconium. Ultimately, Costin received a letter from CPS stating that the Hospital’s suspicions of child abuse were unfounded.

Costin’s lawsuit alleges violations of Title III of the ADA, Section 504 of the RA, and numerous state laws. Most relevant to this appeal, Costin alleges that the Hospital violated the ADA and RA through: (1) the drug tests conducted without informed consent; (2) the report to CPS based on a drug test that it was aware produced a false-positive result; (3) the withholding of pain relief; (4) the induction of labor without consent; (5) the decision to keep Costin and Baby A in the Hospital; (6) the refusal to explain alternative treatments available to Baby A; and (7) the failure to take steps to remedy the Hospital’s abuse.

 

II

Court’s Reasoning That Plaintiff Has Standing

 

  1. Plaintiff plausibly alleged her intent to return to the Hospital despite how crazy things became because: 1) the Hospital was the only hospital within 15 miles of her home; 2) prior to giving birth, plaintiff had been a patient at the Hospital on at least three different occasions, including on an emergency basis; 3) the Hospital was the only one she can go to an emergency situation; 4) since birth of the child, she has already had to return to the Hospital with the baby and the baby’s father during an emergency; and 5) she is still very much of the age range when having another baby is a possibility.
  2. Plaintiff only needed to allege that she was likely to return to the Hospital as a patient and not necessarily as a pregnant one because her allegations suggest that the policies she seeks to enjoin are not specific to the maternity ward.
  3. Plaintiff has plausibly alleged that the Hospital policies discriminate against individuals with substance abuse disorder because they rely on stereotypes and pejorative views of Subutex users, regardless of whether those users are pregnant.

 

III

Court’s Reasoning Denying Certain ADA and Rehabilitation Act Claims

 

  1. The term “discrimination,” in the medical context can be potentially confusing because it could refer to discriminating by drawing distinctions relevant to the qualities or characteristics of the thing observed. It also could referred to discriminating by withholding advantages or inflicting disadvantages on the basis of irrelevant criteria, such as under the influence of irrational bias.
  2. Since disability is so often associated with a medical condition, the distinction of what discrimination might mean in the medical context is super important. That is, the federal law of discrimination does not review the conduct of the doctor administering a medical treatment to a patient or who withholds it because the doctor’s medical training leads the doctor to conclude that the treatment is medically appropriate or inappropriate. If the treatment is merely deficient, imprudent, or harmful, then the matter is one for medical malpractice. This is the case even if the doctor’s medical understanding is flawed and that doctor’s knowledge is deficient.
  3. A doctor who inflicts or withholds a type of medical treatment for reasons having no relevance to medical reasons dictated by bias rather than medical knowledge-is practicing the pejorative form of discrimination, the kind of discrimination prohibited by disability discrimination laws.
  4. A plaintiff pleads an actionable claim of discrimination for violations of the ADA or the Rehabilitation Act in the medical treatment context when a plaintiff alleges that the defendant made treatment decisions based on factors unrelated to and therefore improper to consideration of the inquiry in question.
  5. The disability discrimination claims against the Hospital for denying her an epidural, accelerating her labor, failing to discharge her child, preventing skin to skin contact between her and her child, and failing to explain treatment alternatives are medical decisions and sound in medical malpractice rather than in disability discrimination. Even if the decision-making was faulty or constituted malpractice, those claims cannot support claims under the Rehabilitation Act or the ADA.
  6. Medical decisions based on experience and judgment can easily be mischaracterized at the use of stereotypes.

 

IV

Court’s Reasoning Allowing Certain ADA and Rehabilitation Act Claims (Instigation of a CPS Investigation and Its Administration of a Drug Test), to Go Forward

 

  1. Plaintiff alleged that she was told the Hospital reports possible child abuse by every (emphasis in opinion), patient that comes in on Suboxone.
  2. Plaintiff alleged that she was told the Hospital drug test pregnant women taking Suboxone or Subutex all the time.
  3. Plaintiff also alleged that she was told that the Hospital compared Subutex patient test results with their prescribed doses in order to determine whether they are illegally selling their pills.
  4. Plaintiff has plausibly alleged that the Hospital had a blanket policy with respect to Subutex users to both report them to CPS for potential child abuse and to drug test them in order to determine whether they are illegally selling their pills.
  5. Plaintiff has sufficient allegations to support the inference that the Hospital instigated the CPS investigation solely due to the plaintiff’s history of substance abuse disorder.
  6. The Hospital agrees that such a policy has no relevance to medical decision-making.
  7. With respect to the drug testing claim, it is possible for a hospital pursuant to a medical decision, to institute a blanket policy subjecting an individual with a disability to different medical testing or treatment based on that individual’s disability without exposing itself to liability under the ADA or the Rehabilitation Act. However, plaintiff alleges that the policy is based upon a discriminatory motive. That is, the policy is based upon a pejorative view of Subutex and Suboxone users as being dishonest or even drug dealers, rather than based upon any medical rationale.
  8. The ruling is a narrow one because it does not address whether ADA or Rehabilitation Act liability is present. That determination requires further proceedings, including any affirmative defenses that the Hospital might raise.
  9. Since plaintiff only has a claim as to the CPS investigation and the administration of the drug tests, damages for liability under the Rehabilitation Act are limited to those claims.
  10. In a footnote, the court said that to the extent the plaintiff alleged she was prevented from leaving the Hospital due solely to the policy, that claim was vacated and remanded as well.

 

V

Thoughts/Takeaways

 

  1. The facts are truly awful.
  2. As far as I can tell, the decision is  not published.
  3. Medical malpractice cases and disability discrimination cases can certainly go together. I actually successfully co-counseled on such a case (happened to be plaintiff side), involving both medical malpractice and disability discrimination at the same time.
  4. Blanket policies are always a bad idea.
  5. When it comes to ADA or Rehabilitation Act matters, the individualized analysis reigns supreme.
  6. The distinction between disability discrimination and medical treatment makes sense. The danger is when medical professionals believing they know what is best for the person without a disability regardless of engaging the person with a disability in the first place. See also this blog entry.
  7. The distinction between disability discrimination and medical treatment does not mean no liability in either case. Rather, it means there may be liability for medical malpractice AND for disability discrimination simultaneously. The particular facts of the case will drive how that evolves in any particular situation.
  8. States can vary widely on their medical malpractice laws with respect to when they are available and what damages may be pursued. Medical malpractice claims also have different statute of limitations than disability discrimination claims.
  9. As a result of Cummings, here, you cannot get emotional distress or punitive damages for violations of the Rehabilitation Act. There are also cases coming down now saying that you cannot get either of those damages with respect to Title II of the ADA, such as if a public hospital was involved.
  10. Causation is not the same for Rehabilitation Act cases (solely by reason of), v. ADA cases (on the basis of or by reason of). The cases are quite clear on that with the Rehabilitation Act having the higher causation standard.
  11. Never assume and always do an individualized analysis. Also, always be sure to explore any and all reasonable accommodations/modifications.

When Cummings v. Premier Rehab Keller was decided, discussed here, it was inevitable that eventually courts would start addressing the issue of whether Title II of the ADA allows for emotional distress damages. During Cummings oral argument, a couple of the Justices anticipated that, and court decisions are beginning to come on this issue. The latest, which is the blog entry for this week, is a published decision from the 11th Circuit in A.W. by and through J.W v. Coweta County School District, here, decided on August 7, 2024. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that Title II of the ADA does not allow for emotional distress damages; court’s reasoning that plaintiffs are entitled to other kinds of relief besides emotional distress damages; court throws out §1983 claim against the principal; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Facts

 

According to the complaint, various students with disabilities were physically and mentally abused in a classroom by their special education teacher. Georgia law requires school administrators with reasonable cause to suspect that child abuse has occurred to report the suspected abuse to authorities immediately but in no case later than 24 hours from the time there is reasonable cause to believe that suspected child abuse has occurred. The district superintendent acknowledged that the principal failed to report the abuse allegations as promptly as state law required. The principal was suspended for two days without pay and required to undergo training about the reporting requirements. The student sued the school district and the principal alleging violations of due process and Title II of the ADA. In the complaint, they sought damages for mental anguish and pain and suffering and special damages for the federal claims, as well as punitive damages from the principal under §1983. A few months after the student sued, the Supreme Court decided Cummings v. Premier Rehab Keller. Accordingly, the school district and the principal moved to dismiss the complaint for failure to state a claim arguing that the Supreme Court decision prevents emotional distress damages in Title II matters.

 

II

Court’s Reasoning That Title II of the ADA Does Not Allow for Emotional Distress Damages

 

  1. Title II of the ADA expressly incorporates the remedies of the Rehabilitation Act. The Rehabilitation Act, in turn, incorporates the remedies, procedures and rights set forth in Title VI of the Civil Rights Act of 1964. So, the remedies available under Title VI are the same remedies available under the Rehabilitation Act and Title II.
  2. Since Cummings held that emotional distress damages are not recoverable under the Rehabilitation Act, it necessarily follows that emotional distress damages are not recoverable under Title II.
  3. The Supreme Court in Barnes v. Gorman, here, rejected the argument that although punitive damages are unavailable under Title VI, they remain available under the ADA because it was not enacted under the spending clause. The Supreme Court explained that the ADA could not be clearer that its remedies are the same as those of the Rehabilitation Act, which is spending clause legislation. The incorporation of those remedies make discussion of the ADA’s status as a non-spending clause tort statute quite irrelevant.
  4. Barnes requires the remedies available under Title II of the ADA to mirror the remedies under Title VI of the Civil Rights Act of 1964.

 

III

Court’s Reasoning That Plaintiffs Are Entitled to Other Kinds of Relief besides Emotional Distress Damages

 

  1. Requesting an improper remedy is not fatal to a claim because a complaint is sufficient if it alleges facts establishing that the plaintiff is entitled to any relief the court can grant.
  2. Just because a plaintiff might misconceive a remedy, it does not warrant dismissal of the complaint unless he is entitled to no relief under any state of facts.
  3. A district court must consider whether a complaint that seeks an improper remedy might warrant another form of relief.
  4. Rule 54(c) of the Federal Rules of Civil Procedure states that a district court must grant the relief to which each party is entitled, even if the party had not demanded that relief in its pleadings, when it enters any final judgment except a default judgment.
  5. The selection of an improper remedy in the demand for relief is not fatal to a party’s pleading if the statement of the claim indicates the pleader may be entitled to relief of some other type.
  6. Other relief that was possible for the plaintiffs include: damages for physical harm; compensation for loss educational benefits; remediation; and nominal damages.

 

III

Court Throws out §1983 Claim against the Principal

 

  1. For a supervisor to be liable for subordinate’s constitutional violation, that person must have participated in violating the student rights or caused them to suffer a violation of such rights at the hands of the teacher.
  2. Students are in a noncustodial relationship with the state.
  3. In a noncustodial relationship situation, conduct by a government actor violates substantive due process only where the act can be characterized as arbitrary or conscience shocking in the constitutional sense. Therefore, the principal’s liability as a supervisor turns on whether she participated in or caused conscience shocking conduct. Her independent liability turns on her alleged deliberate indifference to the alleged abuse shocking the conscience.
  4. The 11th Circuit has never held that deliberate indifference of an official in a noncustodial setting can shock the conscience.
  5. Allegations of the teacher’s intentional abuse are ordinarily the problems of state tort law and not constitutional law.

 

IV

Thoughts/Takeaways

 

  1. At oral argument in Cummings, a couple of the Justices expressed concern about how holding that emotional distress damages were not available under the Rehabilitation Act might mean that they are not available under Title II of the ADA. Those concerns have come to pass.
  2. The problem with saying that the ADA is a Civil Rights Act and the Rehabilitation Act is a spending clause act and that makes a difference for emotional distress damages, is Barnes v. Gorman where the Supreme Court explicitly rejected that argument. So, a majority of the Supreme Court would have to somehow distinguish Barnes if it were to say that the spending clause v. civil rights distinction matters. I can’t imagine this Supreme Court doing that. It is also for this reason that I will be surprised if the plaintiffs ask for review by the Supreme Court.
  3. Shortly after Cummings, legislation was introduced to make clear that emotional distress damages were available under §504 of the Rehabilitation Act as well as Title II of the ADA. Whether that legislation will go anywhere may depend upon the outcome of the election. It certainly will not go anywhere before then. In the absence of legislation, it is likely you will see more and more courts throwing out emotional distress damages in Title II cases.
  4. Just because emotional distress damages get thrown out, doesn’t mean that other damages are not in play. Damages might include such things as: physical harm; compensation for loss educational benefits; remediation; and nominal damages. Any of those remedies would also get attorney fees for the plaintiff. It is possible that there might be other remedies as well.
  5. It is very difficult for plaintiffs to find attorneys to prosecute Title II cases. The inability to obtain emotional distress damages will only make the number of attorneys willing to take on Title II cases even smaller.
  6. Incredibly high standard for holding a supervisor liable for unconstitutional conduct that occurs in a noncustodial setting.

Before getting started on the blog entry of the day, I wanted to mention a decision decided by the California Supreme Court on July 29, 2024, here. In that case, Bailey v. San Francisco District Attorney’s Office, the California Supreme Court held that: hostile work environment must be viewed in the totality of circumstances; hostile work environment must be viewed from the perspective of the person with the protected characteristic; a single occurrence might possibly suffice to have a hostile work environment; and retaliation doesn’t have to involve anything other than an effect on terms and conditions of employment. The decision is very similar to the decision of the Minnesota Supreme Court in the case that we discussed here. With respect to its discussion of retaliation, it isn’t surprising in light of the Supreme Court decision in Muldrow, discussed here, which interestingly was not cited in the California Supreme Court decision.

Turning to the blog entry of the day, the question is whether the HUD circular dealing with animals in dwellings survives Loper Bright. As usual, blog entry is divided into categories and they are: thoughts on why the HUD circular just might survive Kisor; thoughts on why the HUD circular just might survive the major question doctrine; whether the HUD circular survives Loper Bright; and thoughts/takeaways. The first two categories you have seen before in this blog entry, but I have amended the content in those categories a bit from that blog entry.

 

I

Thoughts on Why the HUD Circular Just Might Survive Kisor

 

  1. Previously we talked about Kisor v. Wilkie, here. In that blog entry, we discussed how the Supreme Court will look at whether agency interpretations of their regulations is entitled to judicial deference. Let’s do a deeper dive into that by looking at the factors laid out in that decision.
  2. Is 24 C.F.R. §100.204(b) genuinely ambiguous? It certainly is. We do know that seeing-eye dogs are protected under the HUD final regulations, but what about dogs used by people with disabilities that act as service dogs for other kinds of disabilities? What about what HUD calls assistance animals? What about emotional support animals? All of that is far from clear from just looking at the regulation.
  3. Is the circular a reflection of HUD’s authoritative, expertise-based, fair, or considered judgment? You certainly could argue that it is (but see, §III (3) of this blog entry). After all, Justice Kagan in her opinion specifically mentioned ADA regulations as being within an agency’s authoritative, expertise-based, fair, or considered judgment, and Fair Housing Act is a similar kettle of fish to the ADA.
  4. Uncertainty certainly exists when looking at the regulation, and more than one right answer also exists when looking at the regulation.
  5. The text, structure, history, and purpose of the regulation certainly leads to the circular as being one possibility.
  6. The circular is certainly an authoritative or official position of HUD and it implicates HUD’s expertise in some form. Finally, HUD certainly has expertise in this area of the law, and the circular quite arguably reflects the fair and considered judgment of HUD.
  7. The current circular did not create any unfair surprise to regulated parties, even if it did make a mess of things.

 

II

Thoughts on Why the HUD Circular Might Survive the Major Question Doctrine

 

  1. Justice Gorsuch listed several criteria in EPA v. West Virginia, here, about when would the major question doctrine apply, including: 1) doctrine applies when an agency’s claim to power involves a matter of great political significance; 2) doctrine may apply when seeking to regulate a significant portion of the American economy; and 3) doctrine may apply when an agency seeks to intrude into an area that is a particular domain of state law.
    1. Unclear whether animals in dwellings involves a matter of great political significance.
    2. The circular certainly regulates a significant portion of the American economy.
    3. Animals in housing is not a particular domain of state law.
    4. Unclear what other factors Justice Gorsuch might think is important.

 

  1. Justice Gorsuch also said that when figuring out congressional intent the following factors must be looked at: 1) the legislative provisions that which the agency seeks to rely with a view to their place in the overall statutory scheme. Oblique or elliptical language will not supply a clear statement; 2) examination of the age of focus of the statute the agency invokes in relation to the problem the agency seeks to address; 3) examination of the agency’s past interpretation of the relevant statute. A contemporaneous and long-held executive branch interpretation of the statute is entitled to some weight as evidence of the statute’s original charge to an agency; and 4) skepticism is merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise. That is when an agency has no comparative expertise in making certain policy, Congress presumably would not task it with doing so.

 

    1. The legislative provisions with respect to the Fair Housing Act is just the general grant of authority that one typically sees with respect to agencies having the ability to make regulation to carry out the legislation.
    2. The Fair Housing Act has been around for some time and is clearly focused on preventing discrimination so that people can find, use, and enjoy their dwellings.
    3. The original circular came out in 2013. So, the idea of emotional support animals/service animals in dwellings has been around for some time. While the current circular has made a mess of things, it wasn’t really a surprise in light of the 2013 circular and in light of case law that has evolved over time.
    4. There is no mismatch between the circular and HUD’s congressionally assigned mission and expertise as HUD certainly has comparative expertise in making policy in this area.

III

Whether the Circular Survive Loper Bright

  1. I am not the first to be thinking about how Loper Bright, here, affects the world of the Fair Housing Act. My colleague, Richard Hunt, did so in his July 6, 2024, blog entry, here, and his points on this subject are worth exploring in more detail. See §III(2), (3) of this blog entry).
  1. Richard mentions in his blog entry (the following comes verbatim from his blog entry), that Loper Bright does not mean, of course, that the courts should simply ignore what the Administration says about the laws it is supposed to implement. In Loper Bright the Supreme Court acknowledged and left in effect Skidmore  Swift & Co., 323 U. S. 134 (1944). In Skidmore the Supreme Court recognized (as described in the Loper Bright opinion): that the “interpretations and opinions” of the relevant agency, “made in pursuance of official duty” and “based upon . . . specialized experience,” “constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,” even on legal questions. Id., at 139–140. “The weight of such a judgment in a particular case,” the Court observed, would “depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”
  1.  Richard follows up on the points made in §III(2) when he states it is his opinion that (quoting from his blog entry): “HUD’s guidance concerning service and assistance animals, FHEO-2020-01, also fails the Skidmore test for useful guidance. With respect to assistance animals FHEO-2020-01 must ultimately rest on an evaluation of how individuals with every kind of disability imaginable might be helped by an untrained animal in a way that improves their equal access to housing. There is no reason to believe HUD has the required expertise to make this determination. HUD’s sister agency, the Social Security Administration, does not accept evidence of disability from many of the professionals HUD says can be relied on for a disability determination. The Department of Defense conducted a thorough and expensive study of the effectiveness of assistance animals for individuals with PTSD and could not reach a conclusion that they were effective. HUD does not appear to have conducted any scientific studies of its own and does not seem to have referred to any of the relevant scientific literature concerning assistance animals. Instead, consistent with HUD’s political agenda, HUD’s concern was making it as easy as possible for those with disabilities to obtain housing despite “no pet” rules or pet deposit requirements. An analysis using Skidmore criteria leads to the conclusion that this guidance can and should be ignored by federal courts.”
  1. Richard’s opinion on whether the circular survive Loper Bright is certainly provocative and you can certainly see how he arrived there. My quibble is that I have personally seen the difference assistance animals and psychiatric service animals can make to the lives of individuals with disabilities. Also, the distance between an emotional support animal and a psychiatric service animal can be incredibly small. In fact, I would venture to say that the majority of emotional support animals with proper framing from a skilled attorney knowledgeable in this area, could be considered psychiatric service animals per the Title II and Title III DOJ regulatory scheme on service animals.
  2. Loper Bright can actually cut in favor of persons with disabilities. As I read Loper Bright, the key is whether there is a tight fit between the regulation and the legislation. The nature of the delegation of authority also informs that decision. As mentioned above, the delegation of authority is pretty general when it comes to the FHA. Is there a tight fit between the FHA regulation dealing with service animals and the FHA? What about a tight fit between the FHA regulation and the circular? Turning to the first question, one could argue that a tight fit does exist between the FHA and the service animal regulation the FHA has. This is especially so in light of DOJ’s more comprehensive regulations on service animals that you find in DOJ’s Title II and Title III final regulations, here and here. As such, one wonders whether the assistance animal part of the circular (the part of the circular talking about assistance animals can be animals acting as a service animal but are not dogs), would not survive after Loper Bright. On the other hand, one does have to wonder whether the ESA part of the circular can survive after Loper Bright because the fit between the statute, regulation, and the circular appears to be much more attenuated with respect to emotional support animals.

 

IV

Thoughts/Takeaways

 

  1. With NFL season starting shortly, it is perfectly appropriate to conduct further review. Upon further review, an argument can be made that the circular does survive Kisor and may be entitled to judicial deference for the reasons mentioned above.
  1. An argument can also be made, as discussed above, that the circular with respect to its provisions involving any animal not performing as a service animal, will not survive Loper Bright.
  2. It would take a lot of money for a Condominium Association or a landlord to argue that the circular should not get deference after Kisor. Further, it is not a slam dunk that the circular will not receive deference per Kisor. So, when it comes to animals and dwellings, preventive law would demand that the circular be the first authority that is looked at if an animal is requested as a reasonable accommodation in order to allow a person with a disability to enjoy his or her or they dwelling. On the plaintiff side, when dealing with an emotional support animal situation, you must investigate whether that animal is in fact a psychiatric service animal as that will put the matter in a much stronger position for a plaintiff.
  3. Did Loper Bright overrule Kisor v. Wilkie, which we discussed here. Both the majority and dissenting opinion cite to Kisor with approval. However, logically it is hard to square Loper Bright not overruling Kisor. It is not unusual for the Supreme Court to overrule prior decisions or severely narrow them without explicitly saying so and that may have happened with Loper Bright when compared to Kisor.
  4. The Fair Housing Act still uses the term “handicapped,” unfortunately. “Handicapped,” under the Fair Housing Act is defined in the same way as the ADA and the Rehabilitation Act, though there is a dispute about whether the ADA amendments, which amended how certain definitional terms must be interpreted, are applicable to the Fair Housing Act.
  5. It is unclear whether the major question doctrine would apply to the circular because the case establishing the doctrine involved a regulation and not an agency interpretation of its regulation. Logically speaking, it would seem Kisor would be the case that would apply to the circular and not EPA v. West Virginia. As mentioned above, the wildcard is the applicability, if at all, of Loper Bright to the HUD circular.

 

I am taking a break from watching the Olympics on Peacock and other channels. Hoping everyone has a good end to the summer. At least in my town, K-12 starts for the kids tomorrow.

 

Today’s blog entry deals with the question of what happens when you have a fitness for duty exam that doesn’t properly evaluate what it is supposed to evaluate. Further, what happens if the person that is being evaluated suggests a another way to be evaluated and the employer turns it down. The answer is the employer gets hit with a $1,023,424.34 verdict. This is exactly what happened in Sanders v. Union Pacific Railroad Company, here, decided by the Ninth Circuit on July 25, 2024. As usual, our blog entry is divided into categories and they are: facts; court’s reasoning that Sanders did not waive arguments regarding cardiovascular concerns or knee problems because his complaint specifically identified only his ulcer; court’s reasoning that the jury could have reasonably concluded that by imposing work restrictions, Union Pacific discriminated against a qualified individual on the basis of disability; direct threat defense does not apply; the jury had sufficient evidence to conclude that Sanders proved his failure to accommodate claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Allan Sanders worked for Union Pacific as a foreman general. This position required Sanders to oversee mechanics for Union Pacific’s trains, known as carmen, and to assume their responsibilities if none of them were available to respond to a distressed train. Some of the carmen’s responsibilities require significant physical exertion. One such responsibility is replacing knuckles—part of the equipment that links the cars of a train together—that weigh approximately 86 pounds each.

 

This physical component of Sanders’s job became a problem only when he suffered complications relating to a bleeding ulcer. One of those complications was a brief cardiac arrest. Sanders was resuscitated, underwent a successful operation, and fully recovered. Before Sanders could resume his duties, Union Pacific required him to undergo a fitness-for-duty evaluation. Dr. Charbonneau, an associate medical director for Union Pacific, oversaw the evaluation.

 

Union Pacific required Sanders to perform a “Bruce protocol” test—that is, a test where Sanders had to walk quickly or jog on a treadmill—to demonstrate his aerobic capacity. Sanders stopped this test early because of “fatigue.” He explained to Union Pacific that his fatigue was due to pain in his knees caused by osteoarthritis rather than any issue with his heart. Sanders requested that Union Pacific allow him to perform an alternate test on a bicycle because the bike would put less strain on his knees. Union Pacific told him that it would not accept the results of a bicycle test. Based on the results of the treadmill test, Dr. Charbonneau concluded that Sanders had low aerobic capacity and would be unable to perform strenuous labor. He thus imposed work restrictions that prevented Sanders from returning to work as a foreman general. Sanders sued Union Pacific and alleged discrimination under the ADA. A jury returned a verdict for Sanders and awarded damages of $1,023,424.34.

 

 

II

Court’s Reasoning That Sanders Did Not Waive Arguments regarding Cardiovascular Concerns or Knee Problems Because It Complaint Specifically Identified Only His Ulcer

 

  1. The Federal Rules of Civil Procedure provide that when an issue is not raised by the pleadings but is tried by the parties express or implied consent, it gets treated as if it was raised in the pleadings.
  2. Sanders raised his knee problems and possible cardiovascular limitation before trial, and Union Pacific was afforded sufficient notice of those claims. In fact, Union Pacific litigated the merits of those impairments in a motion for summary judgment and addressed those conditions in its proposed jury instructions. The jury instruction even included those conditions. Further, Union Pacific did not object to the evidence received at trial regarding those impairments.

 

III

Court’s Reasoning That The Jury Could Have Reasonably Concluded That By Imposing Work Restrictions, The Company Discriminated Against A Qualified Individual On The Basis Of Disability

 

  1. To establish a claim of disparate treatment, Sanders had to show: 1) he was disabled; 2) he was qualified; and 3) the employer imposed work limitations because of his disability.
  2. Charbonneau required the treadmill test and then refused to allow Sanders to return to work because of his concern that Sanders’s heart was impaired. Such evidence is sufficient for a jury to believe that Union Pacific perceived Sanders as having a heart impairment and restricted him from work on that basis.
  3. With the amendments to the ADA, the definition of disability must be construed in favor of broad coverage of persons with disabilities. Also, the amendments expanded the scope of “regarded as,” claims by providing no basis to limit the prohibition for discrimination based on archaic attitudes, erroneous perceptions, and myths.
  4. An employee is qualified if he can perform the essential functions of a job with or without reasonable accommodations. Here, the jury heard considerable evidence that Sanders could lift knuckles and perform other strenuous activities without accommodations. Doctors also cleared him for work without lifting limitations. The applicable job description states that he would lift knuckles only rarely and with assistance. Sanders also testified that he regularly performed activities more strenuous than his work for Union Pacific. Finally, no test reliably showed that Sanders could not lift 86 pounds. Accordingly, a reasonable jury could conclude that Sanders was qualified to perform the essential functions of his job.
  5. The jury reasonably found that Union Pacific acted because of Sanders disability. The evidence showed that Union Pacific stopped Sanders from working as a foreman general because it believed he had diminished cardiovascular health, which is a physical impairment under the ADA.
  6. The ADA does not require evidence of prejudice towards persons with disabilities. All the ADA requires is that the employer was motivated by the employee’s disability. Sanders can show that because the defendant acknowledged relying on the plaintiff’s impairment in reaching the employment decision.

 

IV

Direct Threat Defense Doesn’t Fly

 

  1. To establish a direct threat Defense, Union Pacific had to show that its determination that Sanders was a direct threat was: 1) the result of an individualized assessment; 2) objectively reasonable; and 3) based on the most current medical knowledge and/or on the best available objective evidence.
  2. Union Pacific failed to prove that the test was objectively reasonable and that the determination was based upon the most current medical knowledge and/or on the best available medical evidence for several reasons. First, Sanders’s medical expert testified that Union Pacific should have allowed Sanders to undergo a test on a bicycle in light of his knee condition and medication regimen. As such, the test that he did undergo rendered the results inaccurate. Further, the expert testified that Union Pacific’s decision to limit Sanders was completely uncalled for, completely wrong, and not based on any medical principles at all. Accordingly, a reasonable jury could have accepted this testimony and concluded the company failed to prove its decision was objectively reasonable and based on the best available objective evidence.

 

V

The Jury Had Sufficient Evidence to Conclude That Sanders Proved His Failure to Accommodate Claim

 

  1. In order to prove a failure to accommodate, Sanders had to show: 1) Union Pacific knew of his disability; 2) Sanders requested an accommodation; 3) Union Pacific failed to engage in an interactive process with Sanders about possible accommodation; and 4) Sanders’s disability could have been reasonably accommodated if the interactive process had taken place.
  2. Sanders testified that he had arthritis in his knees that limited his ability to walk quickly enough on the treadmill to demonstrate accurately his aerobic capacity. As such, the jury had sufficient evidence to conclude that Sanders is a person with a disability.
  3. There was ample evidence that Union Pacific knew of Sanders’s knee problems: 1) Union Pacific had his medical records; 2) Sanders told Union Pacific employee that he was concerned about his knees before taking the treadmill test; and 3) Sanders told Dr. Charbonneau later that his knees limited his performance on the treadmill test.
  4. The evidence also supports a finding that Sanders requested an accommodation when he asked whether he could take the test on a bicycle rather than on a treadmill. Once that request was made, Union Pacific was required to engage in an interactive process designed to identify the limitations caused by his disability and to discover potential reasonable accommodation to overcome those limitations. An employer hinders that interactive process when it does not in good faith assist the employee in seeking accommodations and the employee could have been reasonably accommodated but for the lack of the employer’s good faith.
  5. Union Pacific did not assist Sanders in identifying a suitable accommodation for his impaired knees when he informed him that only results from a treadmill test would be acceptable. That directive eliminated the possibility of an accommodation. The record also included evidence showing that the company could have reasonably accommodated Sanders. Three different physicians testified that a bicycle test is a medically appropriate alternative to the treadmill test for someone with impaired knees.
  6. Sanders stopped the treadmill test only because of his impaired knees. His doctors also cleared him for work without restriction. Finally, evidence existed that Sanders regularly performs physical activities, such as ranching, that were as strenuous as his work as a foreman general (his job at Union Pacific). Therefore, a reasonable jury could have concluded that Sanders would have performed well enough on the bicycle test to return to work.

VI

Thoughts/Takeaways

 

  1. Fitness for duty exams need to be narrowly focused on what is being evaluated and should not be fishing expeditions.
  2. If a person asks for another way to accomplish such a narrowly focused tests, the entity must consider that.
  3. The ADA extends beyond just employment. It also includes accessing nonfederal governmental entities and accessing places of public accommodations. While the employment provisions have very specific regulatory provisions when it comes to disability related inquiries and medical exams, the DOJ in their Technical Assistance Memorandum for both Title II and Title III have made it clear that unnecessary medical inquiries are also prohibited by Title II and Title III of the ADA. Also, remember, as we discussed here for example, the ADA is a nondelegable duty.
  4. Direct threat defense is a high bar to meet and it requires, as we have discussed many times before, such as here, an individualized assessment with a decision that is objectively reasonable and based upon the most current medical knowledge and/or on the best available objective evidence.
  5. The ADA doesn’t require evidence of prejudice towards persons with disabilities.
  6. Don’t forget that there are three entirely separate ways to establish a disability under the ADA: actual; record of; and regarded as. You only need one of the three. This particular case involves both the actual and regarded as prongs.
  7. Magic words are not required to activate the interactive process. Failure to engage in an interactive process never turns out well for the employer.
  8. An evaluator of a fitness for duty exam should know what the essential functions of the job are and should also be considering whether the exam being performed assesses that essential function and whether that exam is getting accurate information. If not, a different exam or way of doing the exam should be explored. See this article for what evaluators need to be thinking about with respect to their responsibilities under the ADA.
  9. The decision seems to be unpublished.
  10. The statutory damage caps have not been amended since the ADA was signed. So, the damages get reduced. That said, attorney fees are certainly in play. Union Pacific will have to pay plaintiff’s attorney fees and those fees are likely to be quite substantial. Legislation has been introduced to amend the statutory damage caps and there is some support in both parties. Hard to believe there would be any movement on that legislation until the results of the November election are known. If VP Harris should win, you would think revisiting the statutory damage caps would be something that she would want to do.

Today’s blog entry is going to be a short one. One of the issues we have discussed quite a bit in a variety of contexts is sovereign immunity. What happens when the claim is retaliation and sovereign immunity is involved? Does sovereign immunity get forcibly waived in that situation? A case answering this question is a published decision from the Sixth Circuit decided on June 24, 2024, is the case of Stanley v. Western Michigan University, a published decision out of the Sixth Circuit, here. As usual, blog entry is divided into categories and they are: facts; court’s reasoning that sovereign immunity applies to the retaliation claim; and thoughts/takeaways. The court considers a couple of other issues as well (effect of a premature notice of appeal and whether the dismissal is with or without prejudice), but we aren’t going to address those issues in this blog entry. Since the blog entry is so short and only one issue is discussed, the reader is probably going to want to read the whole thing.

 

I

Facts

 

WMU terminated Stanley’s employment during his probationary period for excessive tardiness and failure to follow proper clocking-in procedures. Stanley has severe ADHD that he claims impacted his ability to timely clock in, such as by causing him to occasionally forget his swiping ID card. Stanley claims he was “disciplined for being late after having to wait for WMU staff to perform his required temperature check for COVID-19 purposes,” even though he was told he would not be disciplined following such occurrences. Id. at 3. Because Stanley sometimes forgot his ID card, he requested a reasonable accommodation—such as a punch card to be kept onsite—which WMU denied. Stanley also spoke to WMU’s office of institutional equity to determine whether he would be able to use his service dog in any department, including dining services, which Stanley claims led to employees in that office “asking improper questions regarding [his] disability.” Id. Stanley disclosed the tasks his service dog performed but did not elaborate on his disability or medical history.

 

Stanley claims that he could not comply with WMU’s timeliness standards because of his disability, for which WMU did not provide a reasonable accommodation. Katie DeCamp, the head supervisor of dining services at WMU, indicated that Stanley was told during training that he could use the speaker at the building’s entrance to ask someone to open the door for him so that he would not be late, but Stanley claims he was never told about the speaker. On November 10, Stanley claims he was informed that the hospitality department “doesn’t do” accommodations, after which he contacted WMU’s human resources department. Id. The following day, WMU terminated Stanley.

 

Western Michigan defended on the basis of sovereign immunity under the 11th Amendment.

 

II

Court’s Reasoning That Sovereign Immunity Applies to the Retaliation Claim

 

  1. In Board of Trustees of the University of Alabama v. Garrett, here, United States Supreme Court held that the ADA does not forcibly waive sovereign immunity when it comes to employment matters.
  2. Ex Parte Young does not allow for suits against the State itself.
  3. Suits against actors in their official capacity enjoy 11th Amendment immunity.
  4. The ADA does not allow for personal liability.
  5. Neither the Supreme Court nor the Sixth Circuit has previously addressed whether the States are entitled to immunity from claims brought under Title V of the ADA.
  6. In determining whether forcible waiver of sovereign immunity can be upheld, the court has to look to whether Congress unequivocally expressed its intent to abrogate that immunity. It also has to look to Congress acted pursuant to a valid grant of constitutional authority.
  7. Congress clearly expressed this intention to get rid of 11th Amendment immunity in the ADA and 42 U.S.C. §12202, here.
  8. Per Board of Trustees of the University of Alabama v. Garrett, here, persons with disabilities are in the rational basis class with respect to employment matters.
  9. In this case, the retaliation claim (Title V), is based upon a Title I claim. Accordingly, it logically follows that a person with a disability would be in the rational basis class with respect to a retaliation claim where the underlying matter is an employment matter. In other words, if Congress did not validly abrogate 11th Amendment immunity per Title I claims, then it also did not abrogate 11th Amendment immunity for a claim under Title V alleging retaliation for a Title I claim.
  10. The ADA remedial scheme is not proportional to the harm being redressed when it comes to retaliation cases based upon employment situations because the legislative record and congressional findings do not contain any discussion of a history and pattern of retaliation by the States against public employees opposing disability discrimination.
  11. Every other circuit has reached the same conclusion.

 

III

Thoughts/Takeaways

 

  1. We have discussed before, such as here, how courts look at retaliation claims by linking it to the underlying matter. So, the reasoning of this case is not surprising.
  2. Keep in mind, that persons with disabilities per Tennessee v. Lane, here, vary in terms of the equal protection class they find themselves in depending upon the facts of the case. I know of no other category of people whose equal protection class varies depending upon the facts.
  3. The decision is published.
  4. The 11th Circuit, in a case we discussed here, reached a virtually identical conclusion to this case.
  5. The courts are pretty much unanimous, with one exception, which we discussed here, that personal liability is not something allowed under the ADA regardless of the Title involved.
  6. As I wrote in the latest edition of my book, here (while the latest edition of my book was published in 2013, I have been updating the various editions of the book in real time since December 2011 with my Understanding the ADA blog), it isn’t a foregone conclusion at all that persons with disabilities are in the rational basis class with respect to employment matters for two reasons. First, the Supreme Court in Garrett, cited to City of Cleburne, Texas v. Cleburne Living Center, Inc., here. A close reading of Cleburne reveals that it was not a typical rational basis review case because the majority opinion only reaches that conclusion after a very detailed discussion of how government have been quite aggressive in trying to serve the needs of persons with what is now called intellectual and developmental disabilities. In fact, Justice Marshall in an opinion joined by Justice Brennan and Justice Blackmun made the point that the majority reasoning did not resemble rational basis review at all because too much attention is paid in the opinion to the rights of persons with what is now called intellectual and developmental disabilities  and to intellectual disabilities in general. Justice Marshall thought it would be more accurate to call the level of the review of the majority opinion as, “second order rational basis.” In Heller, here, the Supreme Court specifically noted that they were not asked to decide what equal protection class persons with disabilities fit in because the parties had already stipulated that persons with disabilities were in the rational basis class. All this said, it is beyond doubt (the cases are unanimous), that sovereign immunity cannot be forcibly waived with respect to persons with disabilities in employment matters).

ADA turns 34 on July 26.

Happy anniversary!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

The EEOC has been focused on AI discrimination in the workplace for some time. It has been a particular focus, though not exclusively with him, for outgoing EEOC Commissioner Keith Sonderling, who actually wrote a law review article on the topic (see ¶ 1 of thoughts/takeaways §). During the last academic year, I was part of a Ohio Northern University Law Review symposium on artificial intelligence and spoke on AI in employment and what that means for people with disabilities. That presentation will become a law review article coming out in the fall.

 

The case of the day, Mobley v. Workday, Inc., here, deals with AI used in employment decisions. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that Workday is an employer; court’s reasoning that Workday is not an employment agency; court’s reasoning that plaintiff’s disparate impact claim can proceed; court’s reasoning that plaintiff’s disparate treatment claim cannot proceed; court’s reasoning that plaintiff’s aiding and abetting claim under the California antidiscrimination law cannot proceed; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Workday provides its customers with a platform on the customer’s website to collect, process, and screen job applications. Workday’s website states that it can “reduce time to hire by automatically dispositioning or moving candidates forward in the recruiting process.” Workday allegedly “embeds artificial intelligence (‘AI’) and machine learning (‘ML’) into its algorithmic decision-making tools, enabling these applications to make hiring decisions.” In addition, Workday’s applicant screening tools allegedly integrate “pymetrics” that “use neuroscience data and AI,” in combination with existing employee referrals and recommendations. According to Mobley, these tools “determine whether an employer should accept or reject an application” and are designed in a manner that reflects employer biases and relies on biased training data. An applicant can advance in the hiring process only if they get past Workday’s screening algorithms.

Mobley is an African American male over the age of forty with a bachelor’s degree in finance from Morehouse College—an all-male Historically Black College and University (“HBCU”). He is also an honors graduate of ITT Technical Institute and Server+ certified. Mobley suffers from anxiety and depression. Since 2010, he has worked in various financial, IT help-desk, and customer-service oriented jobs. For example, Mobley has experience as an Advanced Solutions Engineer with Hewlett Packard Enterprise, a Customer Service Representative with the Internal Revenue Service, and a Support Specialist, Level 1A Manager with AT&T Digital Life.

Mobley has allegedly applied to over 100 positions with companies that use Workday’s screening tools for talent acquisition and hiring since 2017. Numerous positions also required him to take a Workday-branded assessment and/or personality test. Mobley alleges that these assessments and personality tests are likely to reveal mental health disorders or cognitive impairments, and that those like Mobley who suffer from depression and anxiety are likely to perform worse on these assessments and be screened out. Workday’s screening tools then allegedly use the information from those tests and assessments to evaluate an applicant’s qualifications and recommend whether the applicant should be accepted or rejected.

Despite his qualifications, Mobley was allegedly denied employment for every one of the 100-plus applications that he submitted to companies using Workday’s platform. For example, when Mobley was working for Hewlett Packard on a contract basis, he applied via hpe@myWorkday.com for a Service Solutions Technical Consultant position, the qualifications for which allegedly mirrored those for the role he was already in. His application was rejected the next month. On another occasion, Mobley applied for a Customer Services Specialist position with Unum via unum@myWorkday.com at 12:55 a.m., but his application was rejected less than an hour later. Other applications for customer service roles submitted through Workday were also rejected. For the positions to which he applied, Mobley alleges that he met their experiential and educational requirements.

Mobley alleges that Workday’s algorithmic decision-making tools discriminate against job applicants who are African American, over the age of 40, and/or disabled.

 

II

Court’s Reasoning That Workday Is an Employer And May Be Held Liable As an Agent of the Employer

 

  1. The antidiscrimination laws under which Mobley sued all prohibit discrimination not just by employers themselves but also by their agents.
  2. Employers cannot escape liability for discrimination by delegating their traditional functions, such as hiring, to a third party.
  3. Federal appellate courts outside of the Ninth Circuit have held that an employer’s agent may be independently liable when the employer has delegated to the agent functions traditionally exercised by an employer.
  4. Where the employer has delegated control of some of the employer’s traditional rights, such as hiring or firing, to a third party, the third party has been found to be an employer by virtue of the agency relationship.
  5. The antidiscrimination statutes that Mobley sued under define the term “employer,” as a person engaged in an industry affecting commerce who has at least 15 employees (it is twenty for the age discrimination statute- ADEA), for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.
  6. All the relevant statutes prohibit employers (ADA refers to covered entities, which includes employers), from engaging in certain acts of discrimination.
  7. An employer and an employment agency are not at all the same thing.
  8. Employment agencies procure employees for an employer, which means they find candidate for an employer’s positions. They do not actually employ those employees.
  9. Employment agencies under the applicable laws face a different set of restrictions from employers. They are liable when they fail or refuse to refer individuals for consideration by employers on prohibited bases, but they are not subject to the prohibitions applicable to employers in carrying out their traditional functions, such as hiring, discharging, compensating, or promoting employees.
  10. An entity liable as an employment agency is not necessarily liable as an agent of an employer.
  11. Agent of an employer and employment agency have very distinct meanings.
  12. It simply doesn’t make any sense that companies can be allowed to escape liability for hiring decisions by saying that the function has been handed over to someone else, in this case artificial intelligence. Congress actually anticipated such a problem and crafted a solution by including the term “agent,” in the definition of employer and by making that a separate term from “employment agency.”
  13. Workday’s software according to the complaint, participates in the decision-making process by recommending some candidate to move forward and rejecting others. It allegedly incorporates artificial intelligence and machine learning into its algorithmic decision-making tools to make hiring decisions, and it software can automatically terminate or move candidates forward in the recruiting process. This is illustrated by the rejection emails that Mobley allegedly received in the middle of the night.
  14. The applicable statutes all provide that an employer may not refuse to hire employees based upon prohibited characteristics, such as race, disability, or age. In the case of the ADA, it prohibits employers from discriminating against a qualified individual on the basis of disability in regards to job application procedures and the hiring of employees.
  15. Given Workday’s allegedly crucial role in deciding which applicants get their foot in the door for an interview, its tools are engaged in conduct that is at the heart of equal access to employment opportunities.
  16. Nothing in the language of the federal antidiscrimination statutes or the case law interpreting those statutes, distinguishes between delegating functions to an automated agent v. a live human one. In fact, courts applying the agency exception have uniformly focused on the function the employer had delegated to the agent and not the manner in which the agent carries out the delegated function.
  17. Drawing an artificial distinction between software decision-makers and human decision makers potentially completely upends antidiscrimination laws in the modern era. Such a distinction would allow employers to delegate hiring, firing, promotion, compensation, benefits, and a myriad of other employment decisions to third-party algorithmic decision-making tools. Although outside human decision-makers would be required to comply with antidiscrimination laws under the agency liability doctrine, outside software tools created by those same humans would not. Such a distinction would allow employers to delegate discriminatory programs to third-party software tools with job applicants and employees having little recourse to challenge the discrimination from those tools, which just doesn’t make any sense.
  18. Workday qualifies as an agent because it tools are alleged to perform a traditional hiring function of rejecting candidates at the screening stage and recommending who to advance to subsequent stages, through the use of artificial intelligence and machine learning.
  19. Software vendors would not qualify as agents if they have not been delegated responsibility over traditional employment functions. For example, if they are not participating in the decision over whom to hire or whom to reject, they would not be an agent of the employer.

 

III

Court’s Reasoning That Workday Is Not an Employment Agency

 

  1. The applicable statutes define employment agency in pretty much the same way. More specifically, any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer. The wording among the statutes is not precisely the same but the meaning is.
  2. There are no allegations in the complaint that Workday brings job listing to the attention of those looking for employment. In fact, it is just the opposite where job applicants have to find positions on their own and then Workday takes it from there once they apply.
  3. Screening applicant using discriminatory algorithmic tools is not the same thing as alleging an entity finds candidates for employers.

 

 

 

IV

Court’s Reasoning That Plaintiff’s Disparate Impact Claim Can Proceed

 

  1. To make a prima facie case of disparate impact, a plaintiff has to show: 1) a significant disparate impact on a protected class or group; 2) identify the specific employment practices or selection criteria at issue; and 3) show a causal relationship between the challenged practices or criteria and the disparate impact.
  2. Plaintiff has sufficiently alleged the specific employment practice, i.e. the use of algorithmic decision-making tools in a discriminatory manner that screen out applicants. In particular, the amended complaint alleges that these tools rely on biased training data and information obtained from pymetrics and personality tests on which applicants with mental health and cognitive disorders perform more poorly.
  3. The complaint alleges that there is a common component discriminating against applicants based on a protected trait, which is supported by allegations that Mobley was rejected from over 100 jobs that he was allegedly qualified for, across many different industries and employers.
  4. Mobley applied to and was rejected from over 100 jobs for which he was allegedly qualified. The common denominator in those rejections was Workday, which provided the hiring companies with a platform for application intake and screening. In a traditional employment discrimination case, this kind of data would be analogous to having over 100 qualified applicants like Mobley (African-American, over 40, and suffering from depression and anxiety), all strike out for jobs with one employer.
  5. Mobley’s situation is even more compelling because he struck out with a whole range of employers across multiple industries using Workday’s platform, including for a job with the company that he was already doing as a contractor. The 0% success rate at passing Workday’s initial screening, combined with the complaint’s allegations regarding bias and Workday’s training data and tools reliance on information from pymetrics and personality tests, plausibly supports an inference that the algorithmic tools disproportionally reject applicants based on factors other than qualifications.
  6. Causation is present in light of the sheer number of rejections and the timing of those decisions when combined with the complaint’s allegations that Workday’s AI systems rely on biased training data. The causation element is also supported by the complaint’s citation to academic and other literature about bias in data models and algorithms, as well as Amazon’s since abandoned the attempt at using a facially neutral hiring algorithm that had a disparate impact on female candidates.

 

V

Court’s Reasoning That Plaintiff’s Disparate Treatment Claim Cannot Proceed

 

  1. To state a claim for disparate treatment, a plaintiff has to show: 1) he is a member of a protected class; 2) he would qualify for his position; 3) he experienced an adverse employment action; and 4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.
  2. Complaint certainly made sufficient allegations showing that Mobley was qualified for the position for which he was rejected from.
  3. Mobley sufficiently alleged that he disclosed his protected traits when applying for the positions when he claimed that Workday can discern an applicant’s demographic information based on other inputs correlated with race or another protected classification. For example, he disclosed his degree from a historically black college university and his age.
  4. Mobley simply cannot show that Workday intended it tools to be discriminatory. However, if discovery should reveal otherwise, Mobley is free to amend his complaint at that time.

 

 

VI

Court’s Reasoning That Plaintiff’s Aiding And Abetting Claim Under The California Antidiscrimination Law Cannot Proceed

 

  1. Mobley sued claiming that Workday aided and abetted the discrimination. To prove up such a claim, a plaintiff has to allege: 1) is employer subjected him to discrimination; 2) the alleged aider and abettor knew that the employer’s conduct violated the California antidiscrimination law; and 3) the alleged aider and abettor gave the employer substantial assistance or encouragement to violate the California antidiscrimination law. Those claims don’t work because he does not allege that any of the specific companies he applied to discriminated against him nor that Workday allegedly knew that the conduct of those employers were discriminatory.

 

 

VII

Thoughts/Takeaways.

 

  1. What kind of preventive steps can be taken by AI companies to minimize these kinds of lawsuits. For that, you should read Keith E. Sonderling (outgoing EEOC Commissioner), Bradford J. Kelley, and Lance Casimir, The Promise and The Peril: Artificial Intelligence and Employment Discrimination, 77 U. MIA L. Rev. 1 (2022). Available at: https://repository.law.miami.edu/umlr/vol77/iss1/3 . On pages 75-80 of that article, Commissioner Keith Sonderling and his co-authors set forth several steps that are well worth keeping in mind. Those steps are: 1) know your data. That is, be vigilant about developing, applying, and modifying the data utilized to train and run the recruiting programs and algorithms used to screen and evaluate potential candidates and applicants. The data should be as complete as possible with no missing or unreliable factors, but the questions needing the answers, and also be transparent enough to provide statistically relevant results. Also, if using AI for an employment decision making, avoid potentially biased data from sources such as social media and data brokers as those can be error-prone; 2) make sure you are transparent and explain everything. Transparency promotes the visibility of processes, the accessibility of systems, and the reporting of meaningful information, and explainability fosters trust in the process; 3) monitor and audit AI uses. That is, monitor both qualitatively and quantitatively continually and/or at least once a year, memorialize the findings; 4) supervise the process. That is, charge a person or team of people with overseeing the processes and results of AI tools in order to ensure the tools are not only performing legitimate objectives, but also avoiding improper outcomes; 5) understand vendor liability. Employers need to carefully review and negotiate any contracts they have with vendors providing the services. It is particularly important for companies purchasing AI hiring tools to ensure that vendors attest to the fairness and integrity of the product while negotiating the proper indemnification clauses that anticipate potential government investigation. Employers need to be aware that they could be held liable if the vendors discriminate against candidates based on protected characteristics while using AI tools; and 6) employers need to be aware of the emerging patchwork of federal, state, and local laws, rules, and regulations regulating AI use.
  2. This case holds that if a software company takes on decisions-such as hiring, promotion, termination of employees, etc.- they may have independent liability as an employer for discrimination based upon a protected characteristic.
  3. Also, keep in mind that the ADA is a nondelegable duty, as we discussed here. In other words, an employer cannot delegate to others duties that it is responsible for. If it does, then the entity getting the delegation may also be liable as an employer.
  4. The ADA as well as the other nondiscrimination statute discussed in this blog entry allow for both disparate impact and disparate treatment claims. While disparate treatment is far more common in the ADA world than disparate impact, disparate impact is still a viable claim, especially in a situation such as the one involved here.
  5. While the state law claim did not work out here, attorneys on the plaintiff side should always keep in mind the possibilities of state law claims being involved as well.
  6. Starting in my early editions of Understanding the ADA, I raised the issue of personality tests as being violative of the ADA. The seminal case on that is Karraker v. Rent-a-Center Inc., 411 F.3d 831 (7th Cir. 2005), which can be found here.

My thoughts go out to everyone in the Houston area and in Texas dealing with the aftermath of hurricane Beryl.

 

The blog entry of the day is about a case that came to me from Anne Cullen, a reporter with law 360. She wrote an excellent article on it, here (subscription required). The case is Huber v. Westar Foods, Inc., No. 23-1087 (8th Cir. July 1, 2024), here. It deals with several issues worth exploring, including: the honest belief rule; whether failure to accommodate claims require an adverse action; whether FMLA interference is the same as ADA interference in terms of the way we have discussed ADA interference in the blog; and whether FMLA retaliation and ADA retaliation are the same.

 

As usual, the blog entry is divided into categories and they are: facts; majority opinion that the honest belief rule is not unlimited; if failure to accommodate cases require an adverse action, it isn’t much of one; FMLA interference and ADA interference are the same but not as we have come to think of interference in the blog; FMLA retaliation and ADA retaliation are the same; the concurring and dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Westar foods operates a number of Hardee’s restaurants in the Midwest, employing more than 200 people. Soon after Huber started working at Westar, she was diagnosed with diabetes. In March 2019, Huber had to start taking insulin, including at work. Over the course of her employment, Huber’s insulin dosage increased. To manage her diabetes, Huber needed a room temperature location where she could store her insulin. The restaurant’s kitchen and office ran upwards of ninety degrees, and Huber struggled to find a room temperature place for insulin storage. As such, she asked her district manager at the time, Matt Thayer, for help finding suitable storage, but he responded, “That’s a [you] problem, not a [me] problem.” After Cindy Kelchen became Huber’s district manager in September 2019, Huber renewed her request for help finding a room temperature location for her insulin, and Kelchen advised storing it in the freezer. When Huber pointed out that the freezer was not room temperature, Kelchen responded, “Then I don’t know what to tell you.”

In addition to insulin storage, Huber also needed to find time during her shift to eat a meal so she could take her insulin. Huber was often too busy to take meal breaks during her shifts, so she sought help from Kelchen. Kelchen responded by telling Huber to get better at time management.

In December 2019, Huber began to feel sick because of her diabetes. When Huber woke up for her shift on the morning of December 20, her blood glucose level was low, and she was experiencing symptoms consistent with hypoglycemia.[1] Indeed, because of her blood glucose level, Huber “felt out of it” and did not know who or where she was. Huber realized she needed to go to work but then forgot and became confused as to what was happening or where she was supposed to be. Eventually, Huber was able to drive herself to a nearby doctor’s office where she was given an IV and medications that sedated her.

Throughout the day of her stay at the Dr.’s office, Huber called her son and her boyfriend on multiple occasions. Both reported that she was groggy and incoherent and that her communication was all over the place and difficult to comprehend.

On the day of the diabetic episode, Westar discovered that the plaintiff had not come in to work when a customer notified the district manager that the store was not open. The district manager tried calling the plaintiff who did not answer, so the district manager called plaintiff’s son, who is listed as her emergency contact. The son told the district manager that the plaintiff was at the Dr.’s office and that her levels were off and that the plaintiff would call back. The plaintiff did not end up calling the district manager on that day. To get a ride home, her boyfriend had to use an app to locate where the plaintiff was as she was unable to convey to her boyfriend the directions. When she arrived at her home, she was delirious, disoriented, and ill, so the boyfriend decided to stay overnight out of concern for her safety.

Westar’s attendance policy has a “call-in” requirement, which states that if a store manager is going to be late for work or if they are unable to work, they must call their district manager immediately and at least two hours prior to the start of their shift “when possible.” Additionally, the attendance policy states that “[t]exting, emailing or leaving a message is not” an acceptable way to notify management of an absence or tardiness. Huber was aware of the call-in policy, so immediately upon awaking, she called Kelchen and emailed her a doctor’s note excusing her from work through December 26. On the call, Huber conveyed her experience and the nature of the diabetic episode to Kelchen. Kelchen took notes of the conversation and wrote that Huber was at the doctor’s office because “her levels of her diabetic [sic] was off.” During the call, Kelchen was yelling at Huber; indeed, her voice was so loud that it woke Grondin, who was asleep in an adjacent room. When Kelchen asked Huber why she did not notify her in accordance with the call-in policy on either December 20 or 21, Huber explained how the diabetic episode made it extremely difficult to call, mentioning to Kelchen that she could do an internet search to understand the symptoms better. Kelchen did not understand or believe that Huber could not have called, especially when she was able to call her boyfriend and son and drive herself to the doctor’s office. During the conversation, Kelchen asked Huber five times why she did not make a “simple phone call” to inform Westar about her absence.

Immediately following her call with Huber, Kelchen called Frank Westermajer, Westar’s owner and president, to convey her conversation with Huber. It is undisputed that during the call, the decision was made to fire Huber when she returned from sick leave on December 26. The parties disagree as to whether Westermajer was the sole decision-maker, or whether Kelchen was also a decision-maker.

From there, things went from bad to worse. Plaintiff requested FMLA paperwork but never received any. At a follow-up Dr.’s appointment, the doctor wrote another note saying she should be out of work through January 2 due to her diabetes. Once again, plaintiff requested paperwork but never received anything or even a response. Instead, the HR manager requested a meeting that afternoon despite her awareness of plaintiff’s medical leave. The HR manager planned to fire the plaintiff at the meeting. Plaintiff declined the meeting because she was not stable, provided a new Dr.’s note, and once again asked for FMLA paperwork. Since plaintiff’s sick leave was extended, the meeting did not occur, and the HR manager sent plaintiff a termination letter. The termination letter, in addition to terminating her, also said that they would decline FMLA leave.

Plaintiff sued alleging that Westar interfered with her rights under FMLA, retaliated against her in violation of the FMLA, and also violated the ADA by discriminating against her on the basis of her disability. The District Court granted summary judgment and plaintiff appealed.

II

Majority Opinion That the Honest Belief Rule Is Not Unlimited

 

  1. Where an employer seeks to assert a good faith argument (the honest belief rule), the underlying reason for firing must be sufficiently independent from the protected status or activity. If the reason for an employer’s adverse employment action is so inextricably related to the disability, those reasons cannot be considered independently of one another. Finally, where a disability caused missed work and the missed work caused the termination, it is not much of a stretch to conclude that the disability caused the termination.
  2. In a footnote, the court noted that: 1) accommodation and termination claims are two sides of the same coin where the disability may have caused the conduct and the conduct caused the termination; 2) for purposes of the ADA, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination; 3) the link between the disability and termination is particularly strong where it is the employer’s failure to reasonably accommodate a known disability that leads to the discharge for performance inadequacies resulting from that disability; 4) employers have a duty under the ADA to reasonably accommodate an employee’s known disability; and 5) an employer may violate the ADA where fails to make a good-faith effort to assist the employee in seeking accommodations and the employee could have been reasonably accommodated but for the employer’s lack of good faith.
  3. A reasonable jury could conclude that plaintiff’s diabetic episode was not independent from her firing. Although Westar argued that its termination was underscored by plaintiff’s failure to follow the call-in policy on two prior occasions, that worked against Westar because they did not terminate her on those occasions, neither of which were related to her disability.
  4. Whether an employee’s disability caused the conduct that violated company policy and whether the employer acted in good faith are both questions of fact.
  5. Plenty of evidence exists to show that Westar’s arguments that pretext was not involved in the termination do not hold up. For example, plaintiff was yelled at when she tried to explain what was going on. There was also a close proximity between the notification of what was going on and the termination decision.

 

III

If Failure To Accommodate Cases Require An Adverse Action, It Isn’t Much Of One

 

  1. Failing to provide an employee with reasonable accommodations can tend to prove that the employer also acted adversely against the employee because of the individual’s disability.
  2. Plaintiff presented evidence that the district managers (there were two different ones during the time of these occurrences), were ambivalent toward plaintiff’s insulin storage and meal break requests. She also provided evidence of the district manager and the HR manager share contempt toward accommodating her sick leave after the diabetic episode. The district manager not only yelled at plaintiff over the phone on December 21, she also equivocated on whether she expected plaintiff to find others for her shifts despite her sick leave. The district manager’s expectation that plaintiff work while sick is backed up by other evidence as well. Finally, the HR manager and the district manager requested a meeting with the plaintiff even though they were aware of plaintiff’s Dr.’s note using her from work through December 26.
  3. Westar’s own records indicate that they knew about plaintiff’s diabetes well before they terminated her employment. The fact that Westar was aware of plaintiff’s disability yet continues to deny awareness of her disability is strong evidence of pretext.

 

IV

FMLA Interference and ADA Interference Are The Same But Not As We Have Come To Think Of Interference In The Blog

 

  1. An employer’s action that deters an employee from participating in protected activity constitutes an interference or restraint of the employee’s exercise of his rights.
  2. Interference includes manipulation by a covered employer to avoid responsibilities under FMLA.
  3. To establish an FMLA interference claim, an employee must show: 1) they were eligible for FMLA leave; 2) the employer was on notice of the need for FMLA leave; and 3) the employer denied the employee an FMLA benefit.
  4. Magic words are not required to seek FMLA leave.
  5. An employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.
  6. For an employer to be on notice of the need for FMLA leave, they have to be aware of a “serious health condition.”
  7. An employee has to notify the employer of their request for FMLA leave as soon as practicable.
  8. Whether an employer is on notice prior to its termination decision of a request for FMLA leave, is a question of fact for the jury.
  9. An FMLA interference claim merely requires proof that the employer denied the employee’s entitlement under the FMLA.

 

V

FMLA retaliation and ADA retaliation are the same

 

  1. FMLA retaliations claims require proof of retaliatory intent.
  2. To prove a FMLA retaliation claim, a plaintiff have to show: 1) they engaged in protected conduct; 2) they suffered a materially adverse employment action; and 3) the materially adverse action was causally linked to the protected conduct.
  3. A materially adverse action is one that deters a reasonable employee from making a charge of employment discrimination. Termination from employment is one such adverse action.

 

VI

Concurring and Dissenting Opinion by Judge Stras

 

  1. Judge Stras concurs with the majority except for how the majority opinion narrows the honest belief rule. In particular, the narrowing of the honest belief rule will require an employer to show that the asserted justification is sufficiently independent of the employee’s disability even where an employee has repeatedly violated the workplace rule or engaged in misconduct.
  2. Nothing in the majority opinion should be construed that employers can not discipline employees for misconduct.
  3. Narrowing the honest belief rule contradicts ADA causation principles per McDonnell Douglas, which requires the disability to be a motivating factor.
  4. Termination must be based on disability and not just independent of it with respect to the ADA.
  5. Misconduct related to a disability is not itself a disability and may be grounds for dismissal. That is, workplace misconduct is a legitimate and nondiscriminatory reason for terminating employment even when the conduct is related to a disability.
  6. An employer who fires a worker because of a disability violates the ADA, but if the employer fires the worker because the worker is unable to do the job, then there is no violation of the ADA.

 

VII

Thoughts/Takeaways

 

  1. The majority opinion goes cutting edge here by narrowing the focus of the honest belief rule where the conduct is caused by a disability. That is not to say that misconduct cannot be the basis for terminating an employee. Rather, it says that the honest belief rule won’t fly if the conduct is disability related. That doesn’t necessarily mean that the defendant loses when the honest belief rule does not apply.
  2. Whether the employee’s disability caused the conduct of violated company policy and whether the employer acted in good faith as a result, are questions of fact.
  3. A failure to accommodate is quite probably, if not always, an adverse action. The Supreme Court decision in Muldrow (see also §VII(5) of this blog entry), certainly seems to suggest as much.
  4. The court says that FMLA interference and ADA interference are the same. Keep in mind, that we have talked about cases, such as here, stating that ADA interference borrows from the Fair Housing Act and not from the FMLA. So, interference under the ADA may be different than interference under the FMLA. It will be interesting to see how the U.S. Courts of Appeals deal with the question of whether interference gets taken from the FMLA or whether it gets taken from the Fair Housing Act.
  5. Retaliation cases typically use the phrase materially adverse action. You have to wonder about that phrase in light of the Supreme Court opinion in Muldrow, which we discussed here. Nevertheless, in retaliation cases, the phrase has its own meaning as being something that deters a reasonable employee from making a charge of employment discrimination.
  6. Judge Stras’s concurring and dissenting opinion makes the argument that the narrowing of the honest belief rule by the majority may not hold up upon closer analysis. So, this sets up a situation where plaintiffs faced with the honest belief rule will be citing the majority opinion and defendants will be citing the concurring and dissenting opinion. It will be very interesting to see how the Eighth Circuit’s narrowing of the honest belief rule when disability related conduct is involved will play out around the country.
  7. Failure to engage in the interactive process violates the ADA.
  8. If an employer clearly knows of a disability but in litigation claims that it didn’t, that dichotomy strongly suggests pretext. In short, positions taken in litigation when compared to the actual facts, matter.
  9. Both the FMLA and the ADA takes similar approaches to magic words not being required.
  10. “Serious health condition,” is a term of art with respect to the FMLA.
  11. The decision does not seem to be published.
  12. One wonders whether a rehearing en banc will be sought with respect to the majority’s narrowing of the honest belief rule. One also have to think that if this particular issue is appealed to the Supreme Court, a majority of the court would be very receptive to Judge Stras arguments made in his concurring and dissenting opinion.