A couple of housekeeping matters before getting started on the blog of the week. First, I hope everybody had a happy Thanksgiving weekend. We kept ours small with lots of food. Second, I expect one more substantive blog entry for this calendar year, next week. Also, I expect to do my top Understanding ADA blog entries for 2024 that week as well. After December 13 until the shortly after the new year, my schedule is going to be all over the place. So, I am not sure, though I don’t rule it out depending on how things go, if you will see blog entries for the weeks of December 15, 22, and 29. I definitely will have a blog entry for the week of January 6, 2025.

 

The blog entry of the week is Mathis v. United States Parole Commission decided by the United States District Court for the District of Columbia on September 5, 2024, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the parolees are entitled to a preliminary injunction; court’s reasoning that no private right of action exists under the Rehabilitation Act but that does not exclude equitable relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Two men on lifetime parole alleged that the federal government forces parolees to navigate lifetime supervision without accommodation for their disabilities. One of the men had congestive heart failure that substantially limits his ability to walk. The other man has trouble walking because of third degree burns and also suffers from mental health conditions of anxiety, depression, and PTSD. Failure to navigate the parole process can lead to technical violations, which can trigger discipline, including jail time. As a result of the lack of accommodations, both men received technical violations and further discipline, including jail time. Further, the Government does not accommodate offenders with disabilities.

 

For example, CSOSA (the agency responsible for providing actual supervision through qualified supervision officers, for offenders on probation, parole, and supervised release pursuant to the District of Columbia Code. The officers for this agency handle the day-to-day supervision. They ensure offenders comply with their conditions of release, set the location and frequency of check ins, and initially assess supervision violations. Noncompliance responded with graduated sanctions. Sanctions start with supervision requirements but can escalate to recommendations that an arrest warrant be issued and revocation proceeding begun), processes new supervision participants using automatic tools like the “Triage Screener” and the “Dynamic Risk Assessment for Offender Reentry.” These automated assessments generate a baseline supervision plan for each participant, but the assessments do not account for disabilities or propose reasonable accommodations. In fact, CSOSA conducted an “exhaustive search” of its policies stretching back nine years and “yielded no guidance/instruction/etc.” concerning the need to evaluate or reasonably accommodate offenders with disabilities. Relatedly, the Government also lacks any “guidance/instruction/etc. regarding the provision of notice to supervisees” concerning their right to request reasonable accommodations for their disabilities.

 

According to the Government’s own data, the Parolees experiences are not unique. The Government’s own data reveals that 17% of people in supervision between June 22 and May 2023 had a mental disability, but 30% of people who had discipline sought against them for failing to comply with the supervision processes had mental disabilities. Further, while 10% of all individuals and supervision committed technical violations, the number is actually 18% among the mentally disabled population. The Government conceded that it does not track intellectual, developmental, or physical disabilities.

 

The two men sued seeking a preliminary injunction enjoining the Government from continuing the alleged discrimination, which the Government opposed and filed a motion to dismiss.

 

II

Court’s Reasoning That the Parolees are Entitled to a Preliminary Injunction

  1. To obtain a preliminary injunction, the Parolees must show that they are: 1) likely to succeed on the merits; 2) likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tip in their favor; and 4) that an injunction is in the public interest.
  2. 504 of the Rehabilitation Act, 29 U.S.C. §794(a), states that no otherwise qualified individual with a disability shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by an executive agency.
  3. To prove disability discrimination, Parolees must show that: 1) they have a disability under the Rehabilitation Act; 2) they are otherwise qualified; 3) they were excluded from, denied the benefit of, or subject to discrimination under any program or activity solely by reason of their disability; and 4) the program or activity is carried out by a federal executive agency or with federal funds.
  4. Parolees are persons with disabilities under the Rehabilitation Act. §504 defines individual with a disability in the same way as the ADA. Both Parolees have physical and mental impairments that substantially limit the major life activities of walking, thinking, concentrating, and interacting with others.
  5. Parolees are otherwise qualified for supervision. An individual with a disability is qualified for a program, 28 C.F.R. §39.103, if they meet the essential eligibility requirement for participation in, or receipt of benefit from, that program or activity. Since the Parolees have been placed on supervision and are subject to its terms, they meet the essential eligibility requirements established by the Government to participate in supervision.
  6. Parole and supervised release counts as a program or activity carried out by executive agency within the meaning of §504. The phrase “program or activity,” carries an expansive meaning, which encompasses everything the Federal agency does.
  7. Parolees have shown that they face obstacles solely because of their disability that impedes their access to a government benefit or program. These obstacles to equal access exists solely by reason of their disabilities.
  8. The Rehabilitation Act puts the focus on the discrimination itself and not on the consequences it causes. Accordingly, Parolees claims under the Rehabilitation Act ripen the moment their disabilities made it harder for them-compared to their nondisabled counterparts-to participate in the Government’s supervision programs without reasonable accommodation.

 

III

Court’s Reasoning That No Private Right of Action Exists under the Rehabilitation Act but That Does Not Exclude Equitable Relief

 

  1. The Rehabilitation Act bans disability discrimination by three types of actors: 1) by federal agencies in their capacities as employers (federal employer provision); 2) by entities receiving Federal financial assistance to run a program or activity (funding recipient provision); or 3) by any Executive agency that conducts any program or activity (program-conductor provision).
  2. The Rehabilitation Act lacks a private right of action to enforce the program-conductor provision.
  3. 505 of the Rehabilitation Act makes no mention at all of programs or activity conducted by any Executive agency. Accordingly, the parties to the litigation agree that the Rehabilitation Act contains no express private right of action to enforce the program-conductor provisions of §504(a).
  4. The Rehabilitation Act’s structure simply does not allow for a private right of action. Congress only created private rights of action for the employer provision and the recipient funding provision sections of the Rehabilitation Act but not for the program-conductor provisions.
  5. The amendments to the Rehabilitation Act in 1978 said a lot about private judicial remedies by adding a new section on private judicial remedies but not for the kind of claim brought by the Parolees.
  6. The weight of circuit authority cuts against an implied private remedy for the program-conductor provision.
  7. Congress expressly provided two alternative mechanisms to enforce the Rehabilitation Act’s program-conductor provision. Agencies must promulgate regulations per 29 U.S.C. §794(a), as may be necessary to carry out §504(a)’s antidiscrimination mandate. Another approach is that persons aggrieved under the program-conductor provision may bring a claim under the Administrative Procedure Act. Federal courts also have inherent equitable power to enjoin violations of the Rehabilitation Act.
  8. Courts have inherent equitable power to enjoin the Government from violating the Rehabilitation Act.
  9. The Supreme Court has long held that federal courts may in some circumstances grant injunctive relief against state officers who were violating, or planning to violate, federal law. That power also extends to violations of federal law by federal officials and operates even in the absence of a statutory cause of action.
  10. The Rehabilitation Act does not explicitly displace the Court’s equity jurisdiction. Statutes implicitly displace equity jurisdiction in only two circumstances (neither of which applies to this case): 1) where Congress has provided a detailed and exclusive remedial scheme; or 2) where statute contains an alternative remedy and the right at issue is judicially not administrable.
  11. The Rehabilitation Act boasts no detailed and exclusive remedial scheme. Beyond in-house rulemaking, the Rehabilitation Act provides no remedy at all for the Parolees or other individuals mounting a challenge under the program-conductor provision. As a result, the Rehabilitation Act places no restriction on the relief a court can award.
  12. No alternative remedy exists but the remedy is judicially administrable, so the second circumstance does not apply either because both must be true for the second circumstance to apply. After all, Federal courts routinely administer antidiscrimination laws, including the Rehabilitation Act.
  13. Since neither scenario for implicitly displacing the court’s equity jurisdiction exists, the full scope of the Court’s jurisdiction in equity can provide the Parolees a remedy.
  14. The Government does not raise the issue of sovereign immunity nor could it. The District of Columbia Circuit has repeatedly held that the Administrative Procedure Act waves sovereign immunity for claims against a Federal agency for any suit whether under the Administrative Procedure Act or not. It is also well established that sovereign immunity does not bar suits for specific relief, such as declaratory and injunctive relief against government officials where the alleged challenged actions of the officials are alleged to be beyond statutory authority.
  15. Parolees will likely suffer irreparable harm absent a preliminary injunction because the Government forces them to comply with supervision conditions on a day-to-day basis without the accommodation they need to have an equal opportunity to succeed.
  16. The injury here is not the imminent risk of arrest, incarceration, or prolonged supervision of the Parolees, but rather the unequal treatment in the administration of supervision because of their disabilities.
  17. The denial of equal treatment by itself counts as an injury even if the Parolees ultimately share the same degree of success at their nondisabled counterparts. The Rehabilitation Act does not require any further downstream harms than that. For example, the visually impaired are injured by the inaccessibility of paper currency even in the absence of evidence of their being frequently defrauded. Another example, a blind law school graduate is harmed by the bar exam, even if it is possible that she will pass without reasonable accommodations. So, Parolees imminently faced with the prospect of complying with supervision requirements that do not reasonably accommodate their disabilities, are subject to an irreparable harm.
  18. The balance of equities favors the Parolees for several reasons: 1) Parolees will be forced to participate in the Government’s supervision programs on an unequal footing just because of their disabilities; 2) the public and the Government have a strong interest in the effective enforcement of the Rehabilitation Act; and 3) Congress designed the Rehabilitation Act to target disability discrimination that was most often the product not of intentional discrimination, but rather of thoughtlessness and indifference-of benign neglect.
  19. With respect to the remedy, preliminary injunction is granted as to the Parolees, but class certification issues remain to be addressed.

 

IV

Thoughts/Takeaways

 

  1. Being qualified for a program is usually a very straightforward question.
  2. Program or activity means anything a Federal agency does. We have seen in our blog similar statements made with respect to nonfederal governmental entities, which are subject to Title II of the ADA.
  3. The focus for the Rehabilitation Act is on the discrimination itself and not on its consequences.
  4. Outside of the employment situation, any action under the Rehabilitation Act for disability discrimination against the federal government means only equitable remedies (for example, declaratory or injunctive relief), are in play. Attorney fees are still available.
  5. Sovereign immunity is not in play when it comes to Rehabilitation Act claims against the federal government.
  6. Unequal treatment of a person with a disability in the administration of the program is an injury.
  7. This case comes awfully close to saying that the failure to accommodate by itself is an adverse action. Such a conclusion also makes sense in light of Muldrow v. City of St. Louis, which we discussed here.
  8. It is easy to get it confused, but 29 U.S.C. §794 is a different statutory provision than 29 U.S.C. §794a. The former is §504 of the Rehabilitation Act, while the latter is the remedies provisions for the Rehabilitation Act.
  9. A review of the docket reveals that the class certification debate for affected people other than the two individuals involved in this decision is currently ongoing.

Today’s blog entry discusses a case, Tornabene v. City of Blackfoot, here, out of the United States District Court for the District of Idaho that is set for trial on February 24, 2025. The decision denying summary judgment on the disability discrimination claims came down on September 11, 2024. The case presents an excellent roadmap for dealing with failure to accommodate claims at the summary judgment stage. As usual, the blog entry divided into categories, and they are: Facts; court’s reasoning denying summary judgment with respect to whether plaintiff was a qualified individual with a disability; court’s reasoning denying summary judgment with respect to whether defendant engaged in the interactive process; court’s reasoning that plaintiff’s failure to accommodate claim and unlawful discrimination claim are the same claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken very closely from the opinion)

 

Plaintiff was in HR director for the city of Blackfoot from 2015 until September 2021. As the HR Director, Tornabene reported to the City Clerk, Suzanne McNeel, and to Carroll. According to the City’s job description, the HR Director’s primary functions included developing and implementing personnel policies, overseeing personnel records management, monitoring and assuring city-wide legal compliance, overseeing general employee relations and development, monitoring policies to assure fair and consistent treatment of employees, developing personnel strategies and policies, and investigating alleged legal violations. This job description states, “The principal duties of the position are performed in a general office environment.”

 

Between 2015 until March 2020, Tornabene worked a traditional schedule from her office in City Hall, although she performed most of her duties by telephone and on the computer. In March 2020, Tornabene and other City staff began working remotely during the pandemic. At that time, Tornabene set up a home office where she had all the equipment and technology she needed to work efficiently, including a desk, a computer, monitors, a printer with fax and scanner capabilities, an office chair, video conferencing capabilities, and filing space to store documents until she could file them at City Hall. Additionally, she had full, remote access to the City’s network.

 

In the summer of 2020, most of the staff had returned to the office. However, plaintiff continued to work remotely to protect her elderly parents from contracting Covid-19. In early September 2020, plaintiff was diagnosed with Covid-19 and was severely ill for approximately six weeks. Although she recovered and was able to work remotely, plaintiff’s symptoms continued and she developed long Covid-19, which included breathing problem, headaches, chronic fatigue, brain fog, and vertigo. Her nurse practitioner advised her to continue working remotely, and in December 2020, plaintiff informed one of her supervisors that she was not medically cleared to return to the office. At first, the City accommodated plaintiff’s request to work from home.

While Tornabene was working from home between December 2020 and her September 2021 discharge, Tornabene’s husband, Scott Denning, drove Tornabene to City Hall two or three times per week to onboard new employees, to meet with employees, to file paperwork, to perform factfinding for employee relations, to consult with managers, to conduct interviews, or to do other tasks. When taking Tornabene to her office in City Hall, Denning helped Tornabene with various tasks, including faxing, retrieving file folders, or shredding documents. Some of the folders Denning filed for Tornabene contained confidential personnel documents.

Denning, however, only handled “folders”—not individual documents—and he did not see the folders’ contents. He filed personnel folders in the “vault” where the City stored its personnel folders. The City only allows designated employees access to the vault. McNeel and Carroll knew Denning, who was not a City employee, was assisting Tornabene at her office. For example, McNeel downloaded a security video of Denning accessing the vault while assisting Tornabene and showed the video to Carroll and the City’s legal counsel. Neither McNeel, Carroll, nor the City’s legal counsel, however, expressed any concern to Tornabene about Denning helping her.

Sara Furu, an administrative assistant for the City Clerk’s Office, also helped Tornabene with administrative tasks at City Hall. Both Tornabene and Furu testified that McNeel had approved Furu helping Tornabene with administrative tasks, including filing in the vault, even before the pandemic occurred. While working remotely, Tornabene also asked Furu to delete voicemails from her phone at City Hall. Tornabene had already listened to these voicemails at home, which she received via email attaching the messages; therefore, Furu could simply delete the voicemail messages without listening to them. Furu denied receipt of any confidential personnel information while assisting Tornabene.

Tornabene performed her duties remotely, including addressing employee relations issues, consulting on benefits, updating the website, participating in interviews, processing onboarding documents, attending weekly staff meetings with the Mayor, setting up training sessions, and answering questions. During the time when Tornabene was working remotely from her home office and going to City Hall as necessary, no one ever told her directly that they could not reach her; she was not responding quickly enough; she was not completing tasks as required; or she could not have her husband or Furu assist her.

In April 2021, plaintiff’s supervisor met with plaintiff and advised her that having regular in person office hours was an essential function of the HR Director position. By then, the City had operated for over a year without an HR Director in the office. Her supervisor testified that she felt the HR Director needed to have designated in office hours each day to be available for in person consultation with department heads and other employees. He also testified about complaints from other department heads about remote work but would not tell plaintiff who had complained or what their specific complaints were.

Plaintiff’s medical provider continued to insist that plaintiff should continue working from home and requested that the City accommodate her by allowing her to continue working from home while going to the office as necessary. Her supervisor was having none of it and insisted that Plaintiff take short-term disability leave to be reevaluated in eight weeks, which she did.

Near the end of July 2021, Tornabene exhausted her short-term disability leave, and Carroll again asked her to return to the office at least part-time. Tornabene responded by providing a letter from her doctor, who opined it was “medically necessary” for Tornabene to continue working from home and suggested she be re-evaluated after eight weeks to determine whether her condition had improved.

The City insisted on a second opinion and claimed it could force Tornabene to see the City’s doctor. Tornabene responded, asking the City to identify what was unacceptable about her doctor’s letter, inquiring what additional information she could provide from her own medical providers, and requesting the City to contact her doctor. Thereafter, the City denied Tornabene’s requested accommodation and terminated her employment in September 2021.

Plaintiff brought suit alleging violations of the ADA, the Rehabilitation Act, The Idaho Human Rights Act, Title VII of the Civil Rights Act, the equal protection clause, and the FMLA. The blog entry will only discuss the disability discrimination claims.

II

Court’s Reasoning Denying Summary Judgment With Respect To Whether Plaintiff With A Qualified Individual With A Disability

 

  1. A qualified individual is a person with a disability who with or without reasonable accommodation can perform the essential functions of the employment position.
  2. Plaintiff bears the burden of proving, “qualified.”
  3. A court has to first consider whether the plaintiff can perform the job’s essential functions without reasonable accommodation. If not, the court has to consider whether the plaintiff can perform the essential functions of the job with a reasonable accommodation.
  4. Essential functions per 29 C.F.R. §1630.2(n)(1), of the job refers to the fundamental job duties of the employment position.
  5. A job function is essential if removing it would fundamentally alter the position.
  6. Essential functions do not include the marginal functions of the position.
  7. A job function can be essential for a variety of different reasons.
  8. While a court must consider the employer’s judgment regarding what job functions are essential, including any written job descriptions the employer prepared, that evidence is not conclusive.
  9. An employer may not turn every condition of employment into an essential function by including it in a job description. Instead, essential functions of the job are a highly fact specific inquiry.
  10. Citing to a case that we have discussed in our blog entry, here, the court said that the employer has the burden of production to establish what job functions are essential.
  11. If the evidence is conflicting regarding a position’s essential functions, a factual dispute exists precluding summary judgment notwithstanding what the job description says.
  12. The HR director job description stated only that the plaintiff was to oversee personnel records management and did not require her to handle personal records exclusively. Plaintiff had already heard voicemails that other staff had deleted for her and did not rely on other staff to listen to those messages. Further, the City never objected to her husband assisting the plaintiff, even though they were aware of his assistance and the nature of that assistance.
  13. An employer’s written job description is not conclusive and an employee’s presence at work is not an essential function of the job just because an employer says it is.
  14. The City Chief of Police testified that he had no problem with plaintiff working remotely and that to his knowledge no one in the police department had experience any difficulty with her working remotely either. According to his testimony, plaintiff was available and helpful to him and other members of law enforcement as needed even when matters arose outside of normal business hours or on weekends. He testified that plaintiff fulfilled her duty so well that he hardly noticed she was working remotely.
  15. Plaintiff challenges the City’s requirement that she maintain regular in person office hours. Whether that requirement was an essential function of the job presents a genuine material factual issue for trial, as plaintiff has presented evidence that regular attendance was not necessary to perform the essential functions of her job.
  16. Determining whether a proposed accommodation is reasonable is a fact specific individualized inquiry.
  17. Plaintiff bears the initial burden of showing the existence of a reasonable accommodation that would enable her to perform the essential functions of the position.
  18. To avoid summary judgment, plaintiff only needs to present evidence sufficient to make at least a facial showing that reasonable accommodation is possible.
  19. Once plaintiff establishes the existence of a reasonable accommodation, the burden switches to the defendant that show that the accommodation constitutes an undue hardship.
  20. Courts have concluded that working remotely is arguably a viable accommodation in certain circumstances.
  21. The EEOC has reiterated that teleworking may be a reasonable accommodation for people with long Covid.
  22. Plaintiff presented evidence that she performed well while working mostly remotely.
  23. The City has to show that plaintiff’s suggested accommodation was unreasonable or would impose an undue hardship. However, City failed to submit any evidence or even argue that allowing plaintiff to continue to work remotely would have been unreasonable or otherwise impose an undue hardship.

 

III

Court’s Reasoning Denying Summary Judgment With Respect To Whether Defendant Engage In The Interactive Process

 

  1. An employer has a duty to engage in the interactive process.
  2. Employers failing to engage in the interactive process in good faith face liability for the remedies imposed by the ADA if a reasonable accommodation would have been possible.
  3. An employer cannot prevail at summary judgment if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process.
  4. The task of proving the negative-that no reasonable accommodation was available-rests with the employer throughout the litigation. Further, given the difficulty of proving such a negative, it is not likely that an employer will be able to establish on summary judgment the absence of a disputed fact as to this question.
  5. The City bears the burden of proving that a failure to engage in the interactive process should be excused because no reasonable accommodation would have been available in any event.
  6. If an employer does not engage in the interactive process, summary judgment is only available if a reasonable finder of fact must conclude that there would have been no reasonable accommodation available.
  7. To avoid summary judgment, an employee need only show that an accommodation seemed reasonable on its face, i.e. ordinarily or in the run of cases.
  8. Plaintiff presented sufficient evidence to meet her burden that her requested accommodation was reasonable on its face.
  9. Evidence does not show that the City engaged in the mandatory interactive process. Once plaintiff requested an accommodation, the City had a mandatory duty to engage in an interactive process to identify and implement a reasonable accommodation that would have permitted the plaintiff to retain her employment.
  10. Instead of engaging in the interactive process, the City denied plaintiff’s requested accommodations without suggesting any alternative solutions or exploring with her the possibility of other accommodations. Instead, the City consider the matter closed. In fact, evidence indicates that the City refused to discuss or consider the possibility of other accommodations aside from requiring plaintiff to come into the office for two regularly designated hours every day.

 

IV

Court’s Reasoning That Plaintiff’s Failure To Accommodate Claim And Unlawful Discrimination Claim Are The Same Claim

 

  1. A failure to accommodate claim and an unlawful discharge claim are, as a practical matter, the same thing when the failure to accommodate results in an alleged unlawful termination.
  2. Plaintiff’s failure to accommodate claim and her unlawful discrimination claim are essentially the same thing because there is a causal connection between her disability, which prevented her from going to the office on a regular basis, and the City’s termination of her employment for that very reason. Furthermore, plaintiff presented direct evidence (smoking gun emails about the virtue of remote work for employees), indicating the City terminated her employment because she had long-Covid.

 

V

Thoughts/Takeaways

 

  1. Always engage in the interactive process. It is a big problem if it doesn’t happen.
  2. Case presents a nice roadmap for dealing with the reasonable accommodation claim at the summary judgment stage.
  3. ”Qualified,” means asking whether the person can perform the essential functions of the job with OR without reasonable accommodations.
  4. Think of essential functions as the fundamental job duties of the employment position.
  5. Employer’s judgment regarding what job functions are essential is not dispositive. Rather, determining essential functions is a highly fact specific inquiry.
  6. Up to the employer to produce evidence as to what job functions are essential.
  7. Employers need to have a program in place where job functions are regularly reviewed for what is actually happening on the ground.
  8. Lots of employers are now insisting on return to work. This case illustrates that if something is working, be careful about taking it away. Also, is it really worth losing a productive employee?
  9. I prefer the term “reasonable accommodation on its face,” over, “in the run of cases.” I have no idea what the latter means.
  10. Courts are becoming a lot more flexible now about remote work. Even the EEOC has gotten behind it now in certain circumstances. If an employer is going to insist on ending remote work, make sure that it is allowed for people with disabilities who are able to show remote work is a reasonable accommodation for them. It would also help on the employer side, if statistical evidence existed that employees in that position actually do better in the office rather than management just assuming that it has to be that way.
  11. Failing to engage in the interactive process basically guarantees summary judgment being denied that no reasonable accommodation was available.
  12. Insisting on a second opinion as you might with the FMLA, is not recommended. Instead, ask for clarification if it is needed. Also, keep any clarification requests narrowly focused.
  13. I love the Samper case, which we discussed here, for determining whether attendance is an essential function of the job, and I am delighted to see another court agrees with me. Keep in mind, as a result of the pandemic, to have those Samper factors should contain an in person requirement going forward. Samper actually occurred before the pandemic, so the court would have had no idea just how easily work can be done remotely with the available technology.

This week’s blog entry is a how to for what NOT to do if you are a business faced with an accommodation request. The case of the day is Patterson v. Six Flags Theme Parks, Inc., here, decided on November 15, 2024, in the United States District Court for the Eastern District of California. As usual, the blog entry is divided into categories and they are: what not to do if you are a business faced with an accommodation request (in this case from a Deaf individual); court’s reasoning that plaintiff has standing; court throws the book at Six Flags; court’s damage award, granting of injunctive relief and denial of declaratory relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. Keep in mind, that this is a decision made after a bench trial. Also, by way of full disclosure, one of the plaintiff’s attorneys, Andrew Rozynski, is a person that I have co-presented with in the past and correspond with from time to time. It is not unusual for me to blog on his cases.

 

I

What Not to Do If You Are a Business Faced with an Accommodation Request

 

  1. Not always provide an ASL interpreter for a culturally deaf individual, hereafter Deaf.
  2. Not provide any kind of device to allow a Deaf customer to receive communications.
  3. Ignore and/or never return phone calls seeking reasonable accommodations/modifications.
  4. Deny accommodations without any interactive process.
  5. When a person complains, give them a case number with nothing else happening in the future.
  6. Fight a request for a refund filed by the customer with the customer’s credit card company.
  7. Refuse to empower customer service agents to deal with accommodation requests.
  8. Not allow customer service agents to talk to personnel capable of carrying out any accommodation requests.
  9. Draw out any response time to reasonable accommodation requests.
  10. Refuse to cancel a contract at the request of the customer when it is clear that things are not working.
  11. Put the customer on hold for an hour and then call gets disconnected.
  12. Provide a confusing array of responses to a history of reasonable accommodation requests.
  13. Offer a reasonable accommodation request that has nothing to do with the specific customer’s disability.
  14. Not follow its own policies.
  15. Ask the person with the disability to provide their own accommodation by bringing their own individual to interpret for them.
  16. Have your employees not know your company’s policies when it comes to reasonable accommodation requests and particular reasonable accommodation requests.
  17. Confuse an ASL interpreter with personal care attendants.
  18. Over the course of three months, ignore emails, direct the customer to three different policies, give the customer contradictory instruction, and never offer to provide an interpreter or other assistive device for upcoming visits to the business.
  19. Ignore consistent and clear requests for accommodations.
  20. Customer service individuals not figuring out a way to communicate to people that can make the accommodation request happen despite a policy prohibiting such communications.
  21. Not allowing customer service personnel to talk to others within the company that could make the accommodations happen.
  22. Give your staff minimal or no training regarding accommodation requests.
  23. Not requiring customer service individuals to read the company’s safety and accessibility guide and making it clear that that guide only gets referred to if related questions come up.
  24. Do not have any language in your accessibility guide talking about an interactive process or how the company should make a good-faith effort when handling reasonable accommodation requests.
  25. Prohibit call center employees from communicating with staff at individual parks so as to make it extremely difficult to effectuate reasonable accommodation requests.
  26. Requiring fixed amount of advanced notice for certain kinds of accommodations when individual situation may not require such a long period of time.

 

II

Court’s Reasoning That Plaintiff Has Standing

 

  1. On nine occasions, plaintiff requested accommodations and defendant denied any kind of accommodation.
  2. Plaintiff testified credibly that he and his family like theme parks as a form of entertainment and want to return back to Six Flags in the future. In fact, plaintiff has returned since his first visit there.
  3. Defendant still requires seven days advance notice before ASL interpreters can be provided.
  4. Defendant still does not allow workers at the national call center to contact the park directly.
  5. Problematic policies and practices still remain.

 

III

Court’s Reasoning Throwing the Book at Six Flags

 

  1. A violation of the ADA is a violation of the Unruh act.
  2. To prove a violation of Title III of the ADA, a plaintiff has to show: 1) they are a person with a disability; 2) the defendant is a private entity operating a place of public accommodation; and 3) defendant denied public accommodations on account of the plaintiff’s disability.
  3. Under the ADA per 42 U.S.C. §12182(b)(2)(A)(iii), discrimination includes the failure to take such steps as may be necessary in order to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently because of the absence of auxiliary aids and services.
  4. Auxiliary services per 42 U.S.C. §12182(1)(A), includes qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments.
  5. Plaintiff proved that he was excluded from fully enjoying Six Flags Discovery Kingdom because defendants twice did not provide auxiliary services, whether it be an interpreter or a handheld auxiliary device. As a result, plaintiff could not enjoy the shows and did not feel openly included while he was at the park. He also could not hear any announcements made over the park’s loudspeaker system.
  6. Six Flags provided him incorrect information about how to obtain an interpreter for upcoming visits.
  7. Six Flags staff did not help arrange for accommodations for upcoming visits and wound up denying accommodations on nine different occasions.
  8. Six Flags had the burden of showing that ASL interpreters on shorter notice than seven days would constitute an undue burden.
  9. While ADA regulations permit a defendant to show requested accommodation would be financially too burdensome based on the cost of the accommodation or the defendant’s overall financial resources, Six Flags offered no such evidence at trial and abandoned the undue burden defense altogether.
  10. It is not the plaintiff’s burden to train defendant’s employees.
  11. Even if plaintiff did not always call the right phone number, plaintiff did contact at least eight Six Flags employees over the course of the summer of 2021.
  12. Six Flags did not empower knowledgeable employees to make accommodation requests happen.
  13. Six Flags insufficiently trained its employees.

 

IV

Court’s Damage Awards, Granting of Injunctive Relief, and Denial of Declaratory Relief

 

  1. The court winds up awarding $18,209.88 in actual damages. It also winds up awarding $36,000 in statutory damages. Plaintiff also gets attorney fees to be determined later. The court did wind up denying punitive damages.
  2. A plaintiff seeking a permanent injunction must show: 1) irreparable injury; 2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; 3) considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and 4) the public interest would be not be disturbed by a permanent injunction. It is a totality of the circumstances test.
  3. Six Flags policies caused the defendant irreparable harm.
  4. Six Flags deficient training programs are still in place and therefore, plaintiff is likely to continue to be deprived of the combinations he needs to fully enjoy the Six Flags theme parks as he is entitled to under the law.
  5. Monetary damages would not compensate plaintiff due to the nature of the injury with respect to future dealings with Six Flags. Only an injunction can accomplish that.
  6. The cost of revision to Six Flags training regimen and company policies is small in comparison to the value or preventing similar unlawful discrimination from occurring in the future.
  7. Public policy strongly favors an injunction as the purpose of the ADA is to ensure independent living, and economic self-sufficiency.
  8. Granting declaratory relief would serve no useful purpose considering the damages awarded and the ward of a permanent injunction.

 

V

Thoughts/Takeaways

 

  1. Training, training, training, and it shouldn’t be a one off either (training is a huge part of my practice).
  2. Interesting that plaintiff chose to go with a bench trial rather than a jury trial. It worked out well for the plaintiff.
  3. Don’t forget about the do’s and don’ts of the interactive process, which we discussed here.
  4. Unreasonable delay in granting accommodations will get you in trouble. See also this blog entry.
  5. Empower your personnel to act on customer requests and that includes breaking down bureaucratic structures when necessary.
  6. A pet peeve of mine is not being able to get transferred to an individual that speaks English with an accent that I can understand. Amazes me, how often I have to fight to be able to communicate effectively with call centers. It is not unusual for me to have to cite chapter and verse the ADA to get the transfer to an accent that I can understand. As a result of my deafness, certain foreign accents are very difficult for me.
  7. Don’t offer reasonable accommodations having nothing to do with a person’s disability.
  8. Make sure your policies, practices, and procedures are disability centric and are followed by staff. The ADA is just a floor for such policies, practices, and procedures.
  9. Don’t forget about DOJ’s effective communication rules, which we discussed here, for example.
  10. ASL interpreters and personal care attendants are not the same thing.
  11. Magic words are not required to request an accommodation.
  12. The Unruh Act sets itself up as automatically being violated if the ADA is violated. It also allows for actual and statutory damages and attorney fees. Title III of the ADA only allows for injunctive relief and attorney fees.
  13. Persons with disabilities are not responsible for providing their own accommodations.
  14. The hearing loss community generally frowns on “hearing impairment,” rather that community prefers Deaf, deaf, or hard of hearing. Of course, it is very much an individual call.
  15. Businesses need to give out correct information to their customers and how to request reasonable accommodations/modifications.
  16. It makes sense as to why a company would stay away from a financial undue burden defense as that defense would activate discovery into the financial resources of the company.
  17. Did I mention training?

Today’s blog entry deals with the question of what happens if you are a college or university and a student acts out. The acting out is related to a disability or to medication the person is taking for that disability. Instead of engaging the student or discussing whether reasonable accommodations/modifications might solve the problem, the student if put through the disciplinary system and eventually discharge from the program. These are essentially the shortened version of the facts in Hight v. University of Chicago decided by the United States District Court for the Northern District of Illinois, Eastern Division, on October 31, 2024, here. As usual, the blog entry is divided into categories, and they are: facts;  court’s reasoning allowing disability discrimination claims to go forward; court’s reasoning dismissing failure to accommodate claims without prejudice; court’s reasoning allowing certain breach of contract claims to go forward; court’s reasoning denying compensatory damages, including emotional distress damages under Title III and §504 of the Rehabilitation Act; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (Taken Directly from the Opinion)

 

In August 2018, Hight enrolled as a student in the University’s medical program. [Dkt. 20, ¶ 6.] Throughout his time as a student, Hight paid tuition and fees. [Id. at ¶ 21.] Hight was in his final year of the program in the fall of 2023 when he was dismissed. [Id. at ¶ 6.]

Hight has multiple disabilities arising out of physical and medical diagnoses. [Id. at ¶ 8.] His diagnoses include sickle-cell anemia, asthma, autoimmune conditions, chronic fatigue, generalized anxiety disorder, major depressive disorder, post-traumatic stress disorder, and bipolar disorder. [Id.] Hight also had his gall blader removed in May 2023. [Id.] These conditions weakened Hight, which caused him to experience difficulties learning, thinking, and walking. [Id.] In addition, Hight’s ability to think clearly and regulate his emotions are impeded by his generalized anxiety disorder, major depressive disorder, post-traumatic stress disorder, and bipolar disorder. [Id.] The University knew about Hight’s disabilities and made reasonable accommodations and modifications to its medical program for him such as adding extra time and breaks when he took exams. [Id. at ¶¶ 10-12.]

During the summer of 2021, Hight struggled to cope with the stress of the medical program in combination with his disabilities. [Id. at ¶ 13.] His grades fell, and he received a professionalism concern report because of his absences and failure to report those absences. [Id. at ¶ 14.] Hight was put on academic probation and requested a one-year medical leave of absence. [Id. at ¶¶ 14-15.] The University granted this request, and his leave ended in June 2022. [Id. at ¶ 16.] Upon his return, Hight completed his outstanding coursework and was moved from academic probation to monitored academic status. [Id.] He remained on monitored academic status throughout the rest of his time in the program. [Id. at ¶ 17.]

In April 2023, Hight began taking a new medication, which caused a reaction inhibiting his ability to control his actions and emotions. [Id. at ¶ 18.] While taking this medication, Hight created an email account under the name of another student and used that account to send evaluations and feedback to one of his instructors. [Id.] This prompted the University to initiate disciplinary proceedings. [Id. at ¶ 19.] These disciplinary proceedings were referred to the University’s Committee on Academic Promotions (CAP), which met after receiving Hight’s arguments about why he should not be dismissed. [Id. at ¶¶ 24-25.] Five days later, the committee decided to dismiss Hight and listed four reasons for its decision: “(1) repeated unprofessional behavior; (2) the egregious nature of the final professionalism complaint; (3) unprofessional behavior while on Monitored Academic Status; and (4) significant and sustained academic performance deficiencies.” [Id. at ¶ 26.] The CAP decision did not make factual findings regarding whether the professionalism complaints brought against Hight were traceable to his disabilities or whether it was possible to accommodate any disability. [Id. at ¶¶ 28-31.]

Hight appealed his dismissal to the Academic Appeal Committee (AAC) in a timely manner but was not given the ten-day response period articulated in the University’s Academic Guidelines. [Id. at ¶¶32-33.] Hight filed a written appeal expressing his belief that the incidents at issue resulted from or were exacerbated by his disability and that there was no evidence supporting a finding of academic problems following his return from the leave of absence. [Id. at ¶ 34.] Nevertheless, the decision to dismiss Hight was affirmed, but the affirmance did not make factual determinations regarding whether his disabilities could have been ameliorated through reasonable accommodations. [Id. at ¶¶ 36-38.]

 

II

Court’s Reasoning Allowing Disability Discrimination Claims to Go Forward

 

  1. A prima facie case for discrimination under either the ADA or the Rehabilitation Act involves showing: 1) plaintiff suffered from a disability; 2) plaintiff is qualified to participate in the program in question; and 3) plaintiff was either excluded from participating in or denied the benefit of that program based on his disability. For a Rehabilitation Act claim, the plaintiff also has to show that the program the plaintiff was involved received federal financial assistance.
  2. Under the ADA, a plaintiff only has to show that his disability was a reason (emphasis in opinion), for the discrimination plaintiff experiences, whereas under the Rehabilitation Act, the plaintiff’s disability must be the sole reason for the discrimination.
  3. Satisfying the otherwise qualified requirement in the university setting, means a plaintiff has to allege an ability to meet all of the program’s requirements in spite of his disability, with or without reasonable accommodation.
  4. Plaintiff completed his outstanding coursework, moved from academic probation to monitored academic status, and progress to the medical program’s final year.
  5. In a footnote, the court noted that readmission after an academic break allows for the reasonable inference that an institution believed a student was otherwise qualified.
  6. Plaintiff alleges that he has a disability and the events the University characterized as “unprofessional conduct,” ultimately leading to his dismissal were traceable to his disability.
  7. Plaintiff further alleges that the additional reason for his dismissal were pretextual and were an excuse to avoid accommodating plaintiff and a cover to dismiss plaintiff based upon manifestations of his disability, which could have been accommodated.
  8. Plaintiff alleges that the “professionalism concerns,” cited in the decision to dismiss him were caused by plaintiff’s disabilities and/or caused by the ongoing process of providing plaintiff with appropriate accommodations.
  9. Plaintiff also alleges that a determination was not made on whether the final professionalism complaint was caused by the medication reaction. Plaintiff also alleges that it was not determined whether his medication reaction causing the final professionalism concern could be accommodated.

 

III

Court’s Reasoning Dismissing Failure to Accommodate Claims without Prejudice

 

  1. To establish a failure to accommodate claim, a plaintiff has to show: 1) plaintiff is a qualified individual with a disability; 2) the defendant was aware of plaintiff’s disability; and 3) the defendant failed to reasonably accommodate’s disability. Further, a plaintiff must request an accommodation for his disability in order to claim he was improperly denied an accommodation under the ADA.
  2. Plaintiff’s complaint is very confusing with respect to the way it talks about individualized assessment and direct threat. Since it is possible that once the confusion is cleared up, a failure to accommodate claim could be pled, the failure to accommodate claims are dismissed without prejudice and can be refiled consistent with Rule 11 and the court’s opinion if possible to do so [a docket check reveals that at the time of this writing an amended complaint has now been filed].

 

IV

Court’s Reasoning Allowing Certain Breach of Contract Claims to Go Forward

 

  1. Establishing a breach of contract in Illinois, means a plaintiff has to show: 1) the existence of a valid and enforceable contract; 2) substantial performance by the plaintiff; 3) a breach by the defendant; and 4) damages.
  2. A contract between a student and the University can be express or implied in fact, but either way a student has to point to an identifiable contractual promise that the defendant failed to honor.
  3. When a student sues a university because of rejection, expulsions, and dismissals, the student bringing such a claim has to show that the adverse academic decision was made arbitrarily, capriciously, or in bad faith.
  4. The Seventh Circuit has recognized that the general nature of the terms of the agreement between a student and a university are usually implied. As such, the school’s catalogs, bulletins, circulars, regulation, and other publications, and customs become part of the contract.
  5. Illinois law does not recognize a contractual obligation arising from a party’s pre-existing legal obligations, which in this case is the statutory obligations to comply with the ADA and the Rehabilitation Act.
  6. Plaintiff’s amended complaint alleges that an implied contract arose out of the procedural protections outlined in the University’s student handbooks. Plaintiff actually identifies specific procedures in the handbooks that he believed were not adhered to during his dismissal proceeding, such as violating the non-retaliation policy, failing to comply with disclosure requirements, and not following specified timelines.
  7. Plaintiff also alleges sufficient facts to meet the arbitrary, capricious, or bad faith standard applicable to breach of contract claims arising out of university dismissal proceedings.
  8. Taking the allegations as true, plaintiff’s allegations suggest that for an unknown reason, the University departed from its usual disciplinary process by, among other things, not providing the plaintiff a full 10 days to appeal the decision to dismiss, which allowed plaintiff’s dismissal to become effective immediately rather than in the usual 10 day period.

 

V

Court’s Reasoning Denying Compensatory Damages, Including Emotional Distress Damages, under Title III and §504 of the Rehabilitation Act

 

  1. Private parties cannot recover monetary damages under Title III of the ADA as only injunctive relief is available per 42 U.S.C. §12188(a)(1).
  2. Per Cummings, which we discussed here, emotional distress damages are not available for violations of the Rehabilitation Act.

 

VI

Thoughts/Takeaways

 

  1. In some ways, this case tracks the case that we previously discussed, here, whereby the honest belief rule was narrowed when disability related conduct was involved.
  2. When disability related conduct is involved, this case makes it clear that it is important for a University to figure out why that conduct is occurring, and to also engage in the interactive process with the student in order to figure out whether any reasonable accommodations/modifications are possible. Failing to engage in the interactive process to figure out whether reasonable accommodations/modifications are possible when the conduct may well be related to a disability is only going to lead to further problems.
  3. Causation under the ADA and under the Rehabilitation Act are very different from each other. This court refers to the distinction as “a reason,” for the ADA v. sole reason for the Rehabilitation Act. The specific formulation of the difference in causation between the two laws may vary from place to place, but conceptually multiple reasons can be involved with the ADA, but the Rehabilitation Act has to involve a sole reason
  4. In order to be subject to the protections of the Rehabilitation Act, a person must also be otherwise qualified. Make sure in that analysis that you factor in whether the person is otherwise qualified with or without reasonable accommodation/modification. Moving through the program and even being allowed back into the program are strong indicators that a student is otherwise qualified.
  5. Check your jurisdiction as to the viability of breach of contract claims. States can vary considerably in terms of how amenable they are to breach of contract claims in the university setting.
  6. Always a good idea to follow your own policies and procedures.
  7. As we know from our discussion Cummings, here, emotional distress damages are out for §504 claims. They may or may not be out for Title II claims as well. Unlikely to see congressional action to change this in light of the election results that we just had.
  8. “Accommodation,” is a Title I term, while “modification,” if the term used in Titles II and III. While the terms are different, their meanings are absolutely identical.
  9. The interactive process is always a good idea

I started writing this blog on election day, which turned out to be very interesting by the end of it with President Trump winning both the popular and electoral votes. Of course, the next question is what does that election mean for persons with disabilities. We don’t know, but a few immediate thoughts come to mind. First, if President Trump’s first term is any indication, don’t expect to see web accessibility rules for private entities. Second, the Department of Justice under President Biden has been very supportive of persons with disabilities. I would expect a President Trump administration, if his first term is any indication, to have the Department of Justice turn to other priorities. Third, there is at least one EEOC Commissioner he will need to appoint, and you may see a new EEOC General Counsel as well. Fourth, one wonders if you won’t see a rush to finalize various regulations previously proposed and for which comments have been received, before the first week of January, assuming rushing that process is even possible. Finally, it is entirely possible that President Trump will be able to appoint new Justices to the Supreme Court thereby quite possibly putting a stamp on a majority of the Court for decades in the future. Of course, one never knows how a Supreme Court Justice will evolve, and when it comes to disabilities, how a judge views disability is not partisan.

 

Today’s blog entry concerns a case out of the State of Illinois that easily could have been an association discrimination claim under the ADA but turns out to have gone in a different direction. The case is Loyola University of Chicago v. Onward MSO, LLC, here, decided by the Illinois Appellate Court, First District, on October 30, 2024. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning reversing the trial court’s judgment; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Facts

 

The case arises from a forcible entry and detainer lawsuit filed by plaintiff Loyola University of Chicago against defendant Onward MSO, LLC, a company which operated a restaurant on the premises owned by plaintiff. Defendant’s counsel had health issues during the proceedings, resulting in two continuances; after the second one, the trial court indicated that it would grant no further continuances and suggested that defendant retain additional or alternate counsel. Shortly before trial, defendant’s counsel had a health emergency which was unrelated to his prior condition, which resulted in his hospitalization. The trial court, however, denied defendant’s requests for a continuance despite strenuous objections and willingness to offer proof of the attorney’s medical situation, and the matter proceeded to a jury trial. At trial, defendant was unable to present its case, as it was not represented by an attorney, and the trial court ultimately entered a directed verdict at the end of plaintiff’s case. At trial, the owner of the restaurant was not permitted to speak nor present any evidence nor challenge plaintiff’s evidence. Accordingly, after plaintiff’s case in chief, plaintiff moved for a directed verdict, which was granted and was also granted a substantial monetary award. Defendant appealed. Eventually, the eviction was effectuated so the defendant no longer had possession of the property. As a corporate entity, a defendant is required to be represented by a licensed attorney at all times and does not have the ability to proceed pro se.

 

II

Court’s Reasoning Reversing the Trial Court’s Judgment

 

  1. While the eviction being effectuated makes the eviction dispute moot, the eviction also came with a monetary award. Accordingly, the case overall is not moot and the appellate court has jurisdiction.
  2. Illness may serve as sufficient grounds for a continuance even on the eve of trial.
  3. The illness of a party’s trial attorney may warrant a temporary postponement of the trial.
  4. The delays caused by trial counsel’s health was not particularly lengthy, six weeks.
  5. The trial court’s statements appear to hold defendant responsible for delays largely occasioned by the litigation process.
  6. Examining the timeline of the litigation, defendant received two prior continuances based on counsel’s health, with the trial court denying the third. The continuances resulted in the trial date moving from September 13, 2022, to October 28, 2022, which is slightly over six weeks. A six week delay in a trial is not so egregious as to warrant proceeding to trial regardless of the circumstances.
  7. The trial counsel’s illness was not foreseeable even considering his prior health issues, which were related to a completely different set of concerns. In other words, while counsel’s health was the common factor in the delays, the subsequent illness is more similar to the analogy of a car accident rather than a mere continuation of counsel’s prior problems as the trial court apparently concluded.
  8. The trial court’s suggestion that defendant seek additional or substitute counsel is not relevant because there is no indication that trial counsel would have otherwise been unable to appear as scheduled. In fact, defendant indicated that counsel have received a clean bill of health from his physician shortly before he became ill.
  9. The trial court’s decision to deny a continuance was not based on a finding that the request was insufficiently supported as trial court acknowledged that it is accepted that counsel was ill. Also, nothing in the record indicates that the trial court was prevented from adequately considering evidentiary support for trial counsel’s medical emergency.
  10. Trial court admitted knowing that counsel had been ill and was not asking for detail necessarily, but the court insisted on trial anyway.
  11. Not granting the continuance resulted in extreme prejudice because the defendant with a corporate entity that could only proceed with counsel and not pro se. In essence, the defendant was rendered powerless to defend against plaintiff’s case. In particular, the defendant did not have the ability to: (1) present any motions in limine or object to those submitted by plaintiff, (2) participate in jury selection, (3) cross-examine any of plaintiff’s witnesses or challenge any of its evidence, (4) present its own evidence in support of its defenses, or (5) participate in a jury instruction conference.
  12. Given the extremely harsh result of the denial, the relatively modest length of the previous delays, and the fact that the request for a continuance was based on the sudden illness of counsel, the trial court should have granted defendant’s request and continued the trial, at a minimum, for the 21 days requested by the defendant at the pretrial hearing.

 

III

Thoughts/Takeaways

 

  1. This very easily could have been a case arguing that the defendant was discriminated against because they associated with a person with a disability. Either by statute or by regulation, every title of the ADA contains a prohibition on discrimination against persons who associates with a person with a disability.
  2. In a case that we discussed here, we know that the Seventh Circuit is watching the conduct of state courts with respect to how they treat individuals with disabilities in their court proceedings.
  3. After the amendments to the ADA, short-term physical or mental impairments if they substantially limit a major life activity can certainly be disabilities. We don’t know much of the facts in this case, but it would appear that the trial counsel’s emergency surgery would be a disability after the amendments to the ADA.
  4. We do know that personal liability, with one exception in the 11th Circuit, here, is not a thing regardless of the title of the ADA involved. That said, official capacity suits are certainly in order.
  5. If an ADA suit had been filed, issues of judicial immunity and sovereign immunity would have come up. Another issue that would’ve come up is Rooker-Feldman. As we discussed here, Rooker-Feldman might not be an issue in such a case. Also, since accessing the courts would be the right involved, sovereign immunity may also have not been a bar per Tennessee v. Lane, here. While it is possible that these defenses could have been circumvented in an ADA suit, accomplishing that may have been complicated and not easy. So, that might explain why the ADA was not involved. It is also possible that the ADA was not involved simply because it didn’t occur to trial counsel to raise it.
  6. Another issue that could have been raised is whether the trial court’s actions denied the defendant the right to counsel of his choice.
  7. The case illustrates nicely that there may be alternatives to ADA claims even when the ADA is violated. Those claims may in fact be easier to deal with than the ADA.
  8. It would be a completely different story if this involved a federal judge whom does not work for an executive agency because such federal judges are neither subject to the ADA nor to §504 of the Rehabilitation Act. That said, one has to assume that the vast majority of federal judges, if not close to all, would not behave this way.
  9. Hypothetically, if this did occur in a federal courtroom by a federal judge not working for an executive agency, one wonders if a workaround would not be going after the attorney arguing for the trial to proceed. The theory would be if the attorney works for the federal government, that attorney would be discriminating against a person associating with a person with the disability in violation of the Rehabilitation Act (the Rehabilitation Act does not contain any association discrimination provisions. However, some courts have said that such a provision must exist because the Rehabilitation Act and the ADA get interpreted the same way. However, the courts are split on this question. So if you are faced with this issue, checked your jurisdiction). If the attorney was a private attorney, the argument would be that the person was discriminating against a person associating with a person with a disability and was also interfering with the protected rights of an individual to advocate on behalf of a person with a disability in violation of 42 U.S.C. §12203(b). While this case did not happen in federal court, as readers know, I always enjoy thinking outside the box and getting people to think of possibilities they may not anticipate.

Today’s blog entry goes back to the issue of whether an Internet only business website is subject to title III of the ADA. As we have discussed previously, such as here, there are several theoretical possibilities for handling such a claim, and they are: Internet is never a place of public accommodation; Internet is always a place of public accommodation; Internet site only has to be accessible if it is a gateway or has a nexus to a physical place; and Internet site has to be meaningfully accessible to persons with disabilities if it is of the type of business listed in 42 U.S.C. §12181(7). Several circuits have weighed in and there is a Circuit Court split. The Second Circuit has yet to weigh in. The blog entry of the week discusses a district court opinion within the Second Circuit from the S.D. of New York. The case is Mejia v, High Brew Coffee Inc. decided on September 30, 2024, here. As usual, the blog entry is divided into categories, and they are: facts; court’s reasoning that an Internet only business is not a place of public accommodation; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

 

Plaintiff is a legally blind individual who the parties agree is disabled within the meaning of the ADA. Defendant sells coffee solely through an online platform, highbrewcoffee.com (the “Website”). On April 10 and on August 10, 2022, Plaintiff attempted to purchase a twelve-pack of Double Espresso flavored coffee on the Website, but he was unsuccessful both times. Due to Plaintiff’s disability, he uses screen-reading software to navigate online. He was unable to use this software to make a purchase on the Website, however, because problems with the website’s coding rendered the screen-reader unusable. The complaint goes on to list several specific ways the plaintiff was not able to meaningfully access the website.

 

 

 

II

Court’s Reasoning That an Internet Only Business Is Not a Place of Public Accommodation

 

  1. A majority of circuit courts that have considered the issue- Third, Sixth, Ninth, and Eleventh [in the opinion itself, the court mentions the Seventh Circuit here but that can’t be right. It is possible that the Seventh Circuit itself is split and that happens in that circuit from time to time. That said, the cases cited by the court for this proposition do not include a Seventh Circuit case],- have found that a website constitutes a place of public accommodation only if it has a connection to a physical location (that is, a “brick-and-mortar,” store or establishment).
  2. The First and Seventh Circuits have adopted a minority position, that no “physical nexus,” is required for a private entity when engaged in commerce, in order to fall under the ADA’s scope of coverage.
  3. The Second Circuit has not squarely addressed the question of whether a website absent a connection to a physical location, constitutes a place of public accommodation.
  4. While the Second Circuit dealt with a related case, that case did not deal with the particular issue here. Instead in that case, the Second Circuit held that if a physical premises of a business constitutes a place of public accommodation, then goods and services sold from those premises are subject to the equal access mandate of the ADA.
  5. When looking at 42 U.S.C. §12181(7), all the items on the list are actual, physical places where goods or services are open to the public, in places where the public gets those services.
  6. Even the residual clause at the end of each list, leads to a similar conclusion. By listing 50 terms in §12181(7) that almost all refer to physical places, Congress indicated an intent to limit public accommodations to entities with physical locations. Arguably, the sole exception is travel services, which is included in the list of service establishments.
  7. Courts have disagreed on whether “travel service,” should be interpreted as limited to a physical location. Even so, read in context, “travel service,” appears to refer to travel agencies and to facilities, such as American Express counters, offering traveler’s checks, currency exchange services, and the like. Those businesses commonly operated out of physical facilities when the ADA was adopted, and still do even if it is in lesser numbers than before.
  8. Ejusdem generis also supports the view that general clauses in §12181(7), such as “any other service establishment,” should be confined to public-facing physical locations. That principle counsels that general clauses are limited by the specific clauses preceding them. Applying that principle, the category “any other service establishment,” embraces only entities similar in nature to those entities preceding it in §12181(7). Those entities include a laundromat, an office or an accountant employer, a bakery, and a travel service. All of those entities operate in physical places. Therefore, the principal indicate that the statute was only intended to encompass “service establishments,” tied to a physical location. Therefore, standalone websites cannot be considered a “service establishment,” within the meaning of §12181(7) because it lacks the necessary physical nexus.
  9. A standalone website should not be considered a “place of public accommodation,” because §12181(7) does not explicitly address businesses without a physical location, such as mail order merchandise and television shopping channels, despite numerous applicable business models in existence at the time the ADA was written. Accordingly, it cannot be inferred that Congress intended “places of public accommodation,” to include websites, which was a newly developed business model at the time, when the text of the statute excludes analogous business models by imposing a physical location requirement for an entity to be considered a “place of public accommodation.”
  10. In a footnote, the court notes that DOJ regulations, 28 C.F.R. §36.104, define a place of public accommodation as a “facility,” which is in turn defined in terms of is clearly being a physical place.
  11. In another footnote, the court says that the statutory canon, noscitur a sociis, also supports the conclusion that Congress intended “travel service,” to be limited to a physical place. This canon instructs that a word may be influenced by the words surrounding it. Since there are 49 other entities referenced that are clearly physical locations and travel services were also at least in part physical locations at the time, Congress must’ve intended to restrict its reference to “travel services,” to such services operating in physical locations.
  12. In another footnote, the court notes that at the time of the ADA business was done through mail order catalog and yet those catalogs were not included within the parameters of §12181(7).

 

III

Thoughts/Takeaways

 

  1. As the court notes, there is a Circuit Court split on this question. You can definitely expect that this issue will head to the United States Supreme Court. As I have mentioned several times previously, United States Supreme Court has been very good for people with disabilities outside of the employment context. So, not at all clear to me how this would get decided.
  2. I continued to be completely befuddled by how the Supreme Court case of South Dakota v. Wayfair, which we discussed here, never seems to come up in this kind of litigation, with rare exception. Certainly, a plaintiff, especially but not exclusively at the United States Supreme Court, would have to be out of their minds not to rely on South Dakota v. Wayfair in their arguments. As we discussed in that blog entry, there are literally 23 different times United States Supreme Court strongly suggests that a place of public accommodation need not be a physical place.
  3. The legislative history of the ADA makes clear that it was meant to evolve with technology. See, Tavarez v. Moo Organic Chocolates, LLC, 623 F. Supp. 3d 365 (S.D.N.Y. 2022), here. You can see that district courts in S.D. of NY are also split. So, look for Mejia to be appealed to the Second Circuit.
  4. One big point defense attorneys can make in arguing that internet only businesses are not places of public accommodations is that Congress did not amend the ADA to explicitly include the internet when it did the amendments.
  5. In nexus jurisdictions, what is a sufficient nexus can vary considerably from one jurisdiction to the other.

As everyone knows, I keep a pipeline of cases to blog on. Sometimes, even with my pipeline of cases, I just get stuck. One of the things that my readers may not realize is that while my practice focuses on understanding the ADA so that the client understands how to comply with that law and related laws, “related laws,” really means something. For example, I have consulted on a case involving the interactive process with respect to the Fair Housing Act. I also have consulted on several cases involving the intersection of the Airline Deregulation Act, Title II of the ADA, the Air Carrier Access Act, and state negligence laws. All three of those cases (I actually consulted on the defense side), involved a passenger with a disability suffering a personal injury and then assessing what rules apply and what the situation was. So, when I saw a consent order with a record civil penalty imposed by the US Department of Transportation on American Airlines for violating the Air Carrier Access Act and other laws, here, I just felt I had to blog on it. It has been a while since I blogged on anything involving the Air Carrier Access Act. So, I thought it would be a good time to return to it. As usual, the blog entry is divided into categories and they are: consent order summary; applicable law; DOT’s facts and conclusions; American Airlines response; DOT decision; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Consent Order Summary

 

  1. DOT found that American Airlines failed in numerous cases to provide passengers with disabilities using wheelchairs with adequate enplaning, deplaning, and connection assistance, including assistance in moving within the terminal.
  2. American Airlines failed in numerous cases to provide adequate wheelchair assistance to passengers with disabilities from 2019-2023, and some of those cases resulted in injury to passengers.
  3. Inadequate wheelchair assistance includes untimely assistance, unsafe physical assistance, and undignified assistance.
  4. From 2019-2023, passengers reported that American Airlines mishandled thousands of passengers’ wheelchairs and scooters by damaging them or delaying their timely return.
  5. The order directs American Airlines to cease and desist from future similar violations of the Air Carrier Access Act and other statutory provisions and for American Airlines to pay $50,000,000 in civil penalties.

 

 

II

Applicable Law

 

  1. 14 C.F.R. Part 382 requires carriers to provide passengers with disabilities with assistance with enplaning and deplaning the aircraft, as well as connecting assistance and assistance in moving throughout the airport.
  2. 14 C.F.R. §382.95(a) requires carriers to promptly provide or ensure assistance requested by or on behalf of passengers with a disability in enplaning and deplaning the aircraft. That assistance must include, as needed, the services of personnel and the use of ground wheelchairs, accessible motorized carts, boarding wheelchairs, onboard wheelchair, and ramps or mechanical lifts.
  3. 14 C.F.R. §382.91 requires carriers to provide or ensure assistance requested by or on behalf of of a passenger with a disability and transportation between gates to make a connection to another flight and assistance in moving from the terminal entrance through the airport to the gate for a departing flight, or from the gate to baggage claim and the terminal entrance for an arriving flight. This requirement also includes assistance in accessing key functional areas of the terminal and a brief stop at the entrance to a restroom upon the passenger’s request.
  4. 14 C.F.R. §382.125(c),(d) require carriers to provide for the checking and timely return of wheelchairs and scooters as close as possible to the door of the aircraft, so that passengers may use their own equipment to the extent possible and assure that there wheelchairs and scooters are among the first items retrieved from the baggage compartment.
  5. 14 C.F.R. §382.129(b) requires carriers to return wheelchairs, other mobility aids, and other assistive devices to the passenger in the condition in which they were received.
  6. 14 C.F.R. §382.141 requires carriers to ensure that airline personnel, including their contractors, dealing with the traveling public are trained to proficiency as appropriate to their job duties and responsibilities on the requirements of 14 C.F.R. Part 382. Airline personnel must also be trained to proficiency on the airline’s procedures in providing air travel to passengers with disabilities, and the use of the boarding and deplaning assistance equipment used by the carrier and appropriate boarding and deplaning assistance procedures that safeguard the safety and dignity of passengers if involved in providing such assistance.
  7. To the extent that the Air Carrier Access Act and Part 382 violations occurred in interstate air transportation, that meant there were also violations of 49 U.S.C. §§41702, 41310, 41712,

 

 

III

DOT’s Facts and Conclusions

 

  1. The Office of Aviation Consumer Protection investigation revealed a significant number of violations for failing to provide individuals using wheelchairs adequate enplaning and deplaning assistance, and assistance in moving within the terminal and connecting assistance. Three categories of those violations existed: cases of unsafe physical assistance provided to wheelchair users, including assistance resulting in direct harm or injury to the passenger; cases of undignified assistance provided to wheelchair users; and other cases that primarily concerned lack of prompt wheelchair assistance. In a footnote, “undignified assistance,” is defined to include instances of improper transfer assistance that disrobed passengers and wheelchair assistance failures and extreme delays resulting in passengers soiling themselves due to the inability to access the rest room.
  2. The Office of Aviation Consumer Protection investigation also uncovered numerous violations for failing to return passengers wheelchairs in a timely manner at deplaning and failing to return to wheelchairs in the condition in which they were received. Office of Aviation Consumer Protection reviewed consumer complaints filed with the Office of Aviation Consumer Protection against American Airlines between January 1 of 2019, and December 31, 2023, as well as formal complaints by the Paralyzed Veterans Association that alleged that the carrier mishandled passengers wheelchairs and scooters. The investigation found that American Airlines damaged or delayed the return of passenger’s power wheelchairs, manual wheelchairs, and scooters, leading to actual or heightened risk of physical harm and significant impacts on passengers mobility. Office of Aviation Consumer Protection also investigated an incident captured on video, of American Airlines personal mishandling a wheelchair at Miami International Airport by dropping it down a baggage ramp. In addition, from 2019 to 2023, American Airlines reported thousands of claims of mishandled wheelchairs and scooters. Office Of Aviation Consumer Protection found that over this period, American Airlines was one of the worst performers among reporting carriers in terms of both the total number wheelchair and scooter mishandling claims as well as the reported mishandling claims rate.

 

 

IV

American Airlines Response

 

  1. American Airlines in 2024 spent in excess of $175 million on services, infrastructure, training, and new technology to support passenger using mobility devices when traveling.
  2. American Airlines strongly believe that is substantially complies with the Air Carrier Access Act and Part 382, and is only entering into the agreement for settlement purposes without admitting any violation of any statute or regulation or waiving any statute of limitations or conceding DOT’s statement of applicable law or its recitation of facts and conclusions. American Airlines also disagrees with DOT’s interpretation of many aspects of the Air Carrier Access Act and Part 382. It also reserves the right to challenge the DOT’s legal interpretations and factual assertions in the future, including with respect to rulemaking.
  3. American Airlines is dedicated to providing a positive travel experience for all customers, which includes, among other things: 1) offering comprehensive wheelchair assistance throughout the airport terminal; 2) offering passengers with disabilities pre-boarding; 3) supplying attendance and equipment to assist passengers with an planing and deplaning; 4) ensuring that passengers with disabilities can bring their personal wheelchairs or other assistive devices with them on their flight; 5) allowing certain assistive devices to be carried on the plane if they meet size and safety criteria; and 6) storing larger devices like battery-powered wheelchairs in a preferential location and cargo and generally returning those devices on the jet bridge for passengers to use when they deplane.
  4. Moving an individual from one wheelchair to another, or from a wheelchair to their seat, is often a challenging interaction that has to account for and adapt to each customer’s specific circumstances and needs.
  5. American Airlines has established the first ever automated tag system for wheelchairs and assistive devices.
  6. American Airlines has invested significantly in airport infrastructure, including by installing wheelchair movers and lifts at its hubs and other airports with high mobility device traffic.
  7. American Airlines has deployed additional employees at large its hubs and gateways in support of providing coordination for accessibility devices across the airport.
  8. American Airlines has adapted its online customer profile system to allow customers to save travel preferences, including traveling with a mobility device or service animals.
  9. American Airlines created an Accessibility Council and Customer Accessibility Team in order to ensure continued focus on disability access.
  10. In 2023, American Airlines received approximately 7.9 million advanced requests for wheelchair assistance. That number does not count for the millions more request that American Airlines received and honored for customers requesting assistance after arriving at the airport. Considering that American Airlines received 9,717 disability related complaints of any kind, the complaint rate was about .1%, which means that nearly 100% of the time passengers requesting wheelchair assistance from American do not submit a complaint about the service provided.
  11. Comparing American Airlines performance from the first half of 2024 with the full year of 2022 revealed that American Airlines rate of clean mishandling was reduced by over 60%, and American Airlines anticipates that ongoing investment would drive that number down even further.
  12. American Airlines take complaints by customers very seriously and investigates every one of them. It routinely provides customers with compensation by way of trip credits, miles, vouchers, and cash in order to make the situation right. With respect to damage or delay to wheelchairs, American Airlines asserts that it pays for repairs, replacement, and loners.

 

 

V

DOT Decision

 

  1. In order to avoid litigation and without conceding the violations, American Airlines consent to the issuance of the order to cease and desist from future violations of the Air Carrier Access Act and Part 382 and to the assessment of $50,000,000 in compromise of potential civil penalties.
  2. American Airlines violated 14 C.F.R. §382.95 by failing to provide a prompt assistant to passengers with a disability and enplaning and deplaning the aircraft.
  3. American Airlines violated 14 C.F.R. §382.91 by failing to provide adequate assistant to passengers with a disability and moving within the terminal and in transportation between gates making a connection.
  4. American Airlines violated 14 C.F.R. §382.125 by failing to provide for the timely return of wheelchairs and scooters as close as possible to the door of the aircraft, so that passengers could use their own equipment to the extent possible and ensure that there wheelchairs and scooters were among the first items retrieved from the baggage compartment.
  5. American Airlines violated 14 C.F.R. §382.129 by failing to return wheelchairs and scooters to the passenger in the condition in which they were received.
  6. American Airlines violated 14 C.F.R. §382.141 by failing to ensure proficient training to which personnel and contractors concerning the requirements of Part 382, the carrier’s procedures concerning the provision of air travel to passengers with disabilities, and for those personnel involved in providing boarding and deplaning assistance, the use of the boarding and deplaning assistance equipment used by the carrier, and appropriate boarding and deplaning assistant procedures that safeguard the safety and dignity of passengers.
  7. $25 million of the assessed penalty is due and payable in three equal installments beginning 30 days after the date of the order and each year after that.
  8. $25 million of the assessed penalty gets credited to American for cost that American has incurred or will incur for:1) investments in equipment to reduce incidence of wheelchair damage, including wheelchair lifts at 24 or more airports in wheelchair movers at 43 or more airports; 2) investments in the systemwide wheelchair tagging system in order to reduce incidence of wheelchair delay; 3) goodwill compensation paid to affected passengers during the timeframe covered by the investigation; and 4) deployment of hub control center employees in 2024-2026 to coordinate wheelchair handling on a centralized, systemwide basis at large airports. American Airlines have to provide DOT by December 31, 2027 at the latest with supporting documentation containing a description of the expenditures associated with the $25 million credit.

 

VI

Thoughts/Takeaways

 

  1. The Air Carrier Access Act contains no private cause of action. So, passengers discriminated against on the basis of their disability or mistreated by air carriers only have recourse to Department of Transportation and to nothing else.
  2. Interesting about the complaint rate cited by American Airlines, as assuredly many people suffer damages to their wheelchairs but do not file a complaint, perhaps due to a lack of private right of action or for some other reason.
  3. This is a substantial penalty.
  4. The definition of an air carrier under the Air Carrier Access Act is actually quite broad and goes beyond what one thinks of in terms of airlines.
  5. For those traveling with service animals, American Airlines saving a passenger’s service animal information will make things much easier for such individuals.
  6. The Air Carrier Access Act is quite short and compliance is entirely driven by the DOT final rules.
  7. If anyone is wondering about the intersectionality of the Airline Deregulation Act, the ADA, the Air Carrier Access Act, and state negligence claims, it is a bit of a long story. The long and short of it is, that the DOT final regulations wind up being the liability standard for any personal injury claims that occur while the passenger is under the control of the air carrier.
  8. A civil penalty was involved. One wonders if American Airlines after Jarkesy, which we discussed here, could have challenged DOT’s ability to insist on a civil penalty at all and demand a jury trial to figure out what the penalty might be. Whether American Airlines would have received a lesser penalty in a jury trial than what it did in the consent order is a separate question.
  9. Since the Air Carrier Access Act is entirely regulatory driven, one wonders what that means post Loper Bright. See this blog entry for example.
  10. The consent order is definitely a warning shot for all other air carriers because every air carrier is dealing with the same exact issues.
  11. One place where Part 382 is lacking is in the area of Deaf, deaf, and hard of hearing accessibility. As a deaf individual that flies from time to time, I have experienced that deficiency personally.
  12. With respect to American Airlines Accessibility Council, I hope it has the full range of persons with disabilities on it because people with disabilities silo.

I hope everyone that celebrated had a good new year season. Wishing all of those a happy new year. In other news, early election voting is underway in many states. My family voted yesterday. Be sure to vote for the candidate of your choice.

 

Today’s blog entry returns to a long-standing interest of mine. As readers know, I have long been interested in the intersection of sports and the ADA. You can find many Understanding the ADA blog entries that explore the intersectionality of the ADA and sports. Today’s blog entry is a bit different because it explores Title III not from the perspective of employment, Internet accessibility, or architectural accessibility, but from the perspective of policies, practices, and procedures. The case of the day is Maya v. 49ers Football Company LLC decided by the Northern District of California on September 10, 2024, here. In this case, United States District Judge Pitts denied the 49ers motion to dismiss. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiffs adequately pled claims for discriminatory policies and practices under the ADA, The California Disabled Persons Act, and The Unruh Act; court’s reasoning that plaintiffs adequately pled claims for retaliation and interference under the ADA, The California Disabled Persons Act, and The Unruh Act; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

 

I

Facts (Taken from the Opinion)

 

Enrique Maya is a 78-year-old “individual with a childhood diagnosis of polio,” which has left him reliant on a wheelchair “whenever he needs to take more than a few steps.” Compl., Dkt. No. 1 ¶¶ 3, 14. The complaint alleges that this classifies him as a “person with a disability as defined by state and federal law.” Id. Rick Maya is Enrique Maya’s adult son. Id. ¶ 4.

 

Rick Maya took his two sons and father to a Forty Niners football game at Levi’s Stadium. Compl. ¶ 9. Enrique Maya’s attendance was not planned when the tickets were bought. Rick Maya invited his father to attend at the “last minute” because Rick Maya’s wife was unable to attend. Id. Plaintiffs allege that “[a]ble bodied guests can make a last-minute decision to accept the gift of a ticket to Levi’s Stadium.” Id. ¶ 33. The family’s ticketed seats were located seven steps from the concourse level, which Enrique Maya could not access because of his inability to navigate the stairs. Id. ¶ 10. Because of this, Rick Maya pushed his father’s wheelchair into an unoccupied wheelchair-designated seat on the concourse level for which the Mayas did not have a ticket. Id. ¶ 11.

 

An usher at the stadium informed the Maya family that they could not use the wheelchair space without a ticket. Compl. ¶11. Rick Maya proceeded to ask “for another wheelchair seat option.” Id. In response to Rick Maya’s requests, the usher stated that “she did not know where Enrique could sit, but he couldn’t use the wheelchair spaces.” Id. The usher then proceeded to call security staff. Id. Sean, one of the two security staff who responded to the dispute, said Enrique Maya could watch the game on a television in the concourse, but would not be allowed to use the wheelchair space without a ticket. Compl. ¶¶ 12–14. Rick Maya informed security that the concourse was not an acceptable alternative, as it was “busy and boisterous,” and “in the path of foot traffic” adjacent to the men’s restroom and a beer stand. Id. at 14.

 

Sean insisted that they needed tickets for the wheelchair space and “gave them no other option.” Id. at 13–14. He instead threatened to remove the family from the stadium if they did not move. Id. “Shortly, three uniformed Santa Clara City police officers arrived and stood near Plaintiffs and Sean, watching the conversation between them.” Id. “After the offices arrived,” Sean told Rick Maya that “he and his family would be ejected from the stadium” if Rick Maya “did not stop complaining.” Id. The Mayas “understood the police presence as a threat of force and/or arrest if Rick continued to advocate for his father to have equal seating,” and at that point “chose to stop advocating and use the inaccessible seats” because Enrique Maya “did not want his grandsons to miss the game.” Id. ¶¶ 15–16.

 

Enrique Maya’s son and two grandchildren carried him down to their seats, an experience that left Enquire Maya feeling “embarrassed,” “ashamed,” and “uncomfortable,” as “his disability was being graphically demonstrated.” Compl. ¶ 16. Unable to bring himself to ask to be taken to the restroom after the experiences that occurred prior, Enrique Maya urinated on himself in his seat. Id. ¶ 19. This experience at Levi’s Stadium left Enrique Maya feeling humiliated and made him feel “exposed and unwanted as a person with a disability.” Id. ¶¶ 19–20.

 

Rick Maya’s enjoyment of the game was also affected by the need to routinely check on the wheelchair, which stadium staff placed out of sight. Compl. ¶ 21. At halftime and again towards the end of the game, Rick Maya asked the ushers whether his father could move to one of the empty wheel-chair spaces, promising that he would not occupy a companion seat himself. Each time, the ushers responded no. Id. These wheelchair spaces remained unoccupied throughout the entire game. Id.

 

After the game ended, Rick Maya called the 49ers’ customer service line to report the experience and “requested that the 49ers follow the Americans with Disabilities Act.” Compl. ¶ 23. The supervisor, however, “would not promise that his father would be allowed a wheelchair seat if the ticket was not originally purchased as a wheelchair seat.” Id. The supervisor provided the Mayas with no other options and told Rick Maya, “We follow the rules of the NFL.” Id

 

II

Court’s Reasoning That Plaintiffs Adequately Pled Claim for Discriminatory Policies and Practices under the ADA, the California Disabled Persons Act, and the Unruh Act

 

  1. In order to state a claim under Title III of the ADA, a plaintiff must show: 1) the person is disabled within the meaning of the ADA; 2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and 3) the person with a disability was denied public accommodations [”public accommodation,” is the term that appears in the opinion. A more accurate phrasing would have been, “was denied goods, services, facilities, privileges, advantages or accommodations of the place of public accommodations.”], by the defendant because of a disability.
  2. The ADA, 42 U.S.C. §12182(b)(2)(A)(ii), requires public entities [”public entities,” is what actually appears in the opinion. However, that has to be a mistake. The correct term would be, “place of public accommodations], to affirmatively modify policies, practices, and procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications fundamentally alters the nature of such goods, services, facilities, privileges, advantages, or accommodations.
  3. In California, a violation of the ADA is a per se violation of the Unruh Act and the Disabled Persons Act.
  4. It is uncontested that Enrique Maya is a person with a disability under the ADA and that the defendants are private entities subject to Title III of the ADA.
  5. Plaintiffs pled that the 49ers have a policy, practice, or procedure of requiring wheelchair-bound spectators to buy wheelchair seat tickets in advance if they wish to have a viewing experience comparable to that of other spectators. They also pled that non-disabled participants can make a last-minute decision to accept the gift of a ticket to the football stadium. As such, the facts pled plausibly alleged disability-based discrimination because they suggest that the defendant’s policies and practices require only disabled individuals to pre-purchase tickets.
  6. In a footnote, the court noted that the 49ers argued that their current pre-purchase policy was written in connection with a settlement agreement reached in a prior ADA lawsuit. The court was having none of it because the fact that a prior policy violated the ADA, does not mean that all aspects of a revised policy are compliant with the ADA.
  7. Defendants argued that ADA regulations regarding ticketing and seating were quite robust and nowhere do they include a requirement that a venue must permit a non-ticketed person with a disability to occupy an accessible ticketed location on demand. Once again, the court was having none of it. The court said that while ADA regulations do contain specific provisions addressing ticketing and seating, 28 C.F.R. §36.302(f), compliance with those regulations does not otherwise allow defendants to run away from their ADA obligations. Plaintiffs have plausibly alleged that defendant’s policies and practices deny disabled individuals full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the football stadium by conditioning the accommodation of the disability on the unique requirement to pre-purchase tickets, and that is true regardless of defendants reported compliance with ADA’s specific regulations regarding ticketing and accessible seating.
  8. A plaintiff may state a claim of disability discrimination by establishing that the defendant: 1) failed to make a requested reasonable modification that was 2) necessary to accommodate a plaintiff’s disability. Plenty of evidence (see below), suggests that this is exactly what happened.
  9. When Rick Maya informed defendants that the suggested modification was not reasonable, defendants provided no other option. During halftime and towards the end of the game, Rick Maya again sought reasonable modifications suggesting that this could be accomplished by allowing Enrique Maya to occupy one of be still unoccupied wheelchair seats even without Rick Maya occupying a companion seat.
  10. Plaintiffs also allege that when Rick Maya called defendants’ customer service line to inquire about modifications under the ADA, defendants again offered no alternatives and indicated they could not commit to reasonably modifying their policies and practices in the future.
  11. Plaintiffs are not asserting that defendants should implement a specific modification. Instead, plaintiffs simply assert that the defendant should have provided them with a reasonable modification in compliance with the ADA’s mandate.
  12. The ADA requires that the defendants offer Enrique Maya some reasonable accommodation to account for his wheelchair-bound status and the allegations are that the defendants never did that.
  13. In a footnote, the court noted that whether a modification is reasonable is a fact intensive inquiry that is premature for resolution on a motion to dismiss. The court also said that the issue of reasonableness depends on the individual circumstances of each case requiring a fact specific and individualized analysis of the disabled individual’s circumstances and the accommodations that might be necessary in order to ensure the ability of the person with a disability to enjoy a public accommodation.

 

III

Court’s Reasoning That Plaintiffs Adequately Pled Claims for Retaliation and Interference Under The ADA, The California Disabled Persons Act, And The Unruh Act

 

  1. Under the ADA, 42 U.S.C. §12203(b), it is unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercise or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the ADA.
  2. To state a claim for retaliation under the ADA, a plaintiff has to demonstrate: 1) involvement in a protected activity; 2) an adverse action; and 3) a causal link between the protected activity and the adverse action.
  3. Asserting one’s rights under the ADA can constitute a protected activity.
  4. With respect to the adverse action, plaintiffs allege that the adverse action occurred in the form of a threat of ejection in the presence of police officers in response to Rick Maya’s assertion of his father’s rights under the ADA. In response to Rick Maya asking the usher for an alternative wheelchair seat option after the usher notified them that Enrique Maya could not occupy the empty wheelchair seat, the usher radioed for security staff and a few minutes later, staff arrived. Such conduct by the defendant was effective in terminating the family’s effort to procure an accommodation for Enrique Maya’s disability, as they then went to their assigned seats (despite the significant difficulty they encountered moving Enrique Maya there), and remained there even after Enrique Maya needed to use the restroom.
  5. While the facts are sufficient to plausibly infer that defendants’ threat of ejection was a response to, and interfered with, their assertion of their rights under the ADA succeeding on the merits of the claim will necessitate proving that defendants’ action was a direct response to their assertion of rights and not simply to their insistence on occupying seats for which they did not have tickets, or refusal to vacate those seats, while the possibility of an alternative accommodation was being explored.
  6. If defendants had offered plaintiffs a reasonable alternative accommodation and threatened ejection only response to the family’s failure to vacate seats for which they did not occupy tickets, then plaintiff could not succeed on their claim for retaliation or interference. Whether that is the case, is a factual matter needing to be resolved and not appropriate for a motion to dismiss.

 

 

IV

Thoughts/Takeaways

 

  1. What is unusual about this case is that it involves a title III entity and its policies, practices, and procedures. The case stands for the proposition that Title III entities cannot have policies, practices, and procedures that discriminate against persons with disabilities.
  2. Facially neutral policies can be discriminatory. Here, only wheelchair users were required to purchase tickets in advance.
  3. I have said for decades that you have to be out of your mind not to engage in the interactive process even when an employment situation is not involved. It is hard to find Title III cases explicitly saying that an interactive process requirement exists, though it can be done. This case never uses the words, “interactive process.” However, it strongly implies that an interactive process requirement exists for Title III entities. The case talks about a failure of the defendants to offer reasonable modifications. It also talks about how the defendants never engaged in a back-and-forth to figure out what might work. Finally, the opinion mentions, “the possibility of an alternative accommodation being explored.” I definitely look for plaintiff’s attorneys to add this case to their arsenal when claiming that Title III entities have an obligation to engage in an interactive process. Imposing such a requirement makes sense because how else can you figure out what is a reasonable modification if you do not have an interactive process first. Finally, it should be noted that existing Title III regulations do talk about an interactive process being strongly encouraged when it comes to figuring out what is effective communications.
  4. The court seems to suggest that retaliation and interference are essentially the same thing. I don’t think they are. The court does a nice job of discussing retaliation and how that would play out. However, with respect to interference, readers will want to look at this blog entry, which defines interference as meddling. Based upon that blog entry as well as the court’s discussion of retaliation, one certainly sees how separate claims of interference and retaliation are both present in this case.
  5. This case comes pretty close to saying that a failure to accommodate is an adverse action by itself. Certainly, after Muldrow, which we discussed here, that certainly seem to be where the law is headed.
  6. Policies need to be continually assessed for their ADA compliance.
  7. Training (something I do a great deal of my practice), of personnel in ADA best practices and just what are the rights of persons with disabilities is super important.
  8. While “reasonable modification,” is the term for Titles II and III and “reasonable accommodation,” is the term for Title I, the two terms are entirely interchangeable.
  9. When it comes to the ADA, always perform an individualized analysis.
  10. Remember the do’s and don’ts of the interactive process, which we discussed here.
  11. I don’t see any not for publication notice in the opinion, so the opinion just might be published.

Our blog entry of the day reminds me of the situation where a team wins the football game but loses a key player in the process. I thought of that when reading EEOC v. Walmart Stores East, L.P., here, decided by the Seventh Circuit on August 27, 2024. As usual, the blog entry is divided into categories, and they are: facts; Walmart’s knowledge of plaintiff’s disability and the interactive process; sufficiency of evidence for punitives and compensatory damages should not be reduced; need to revisit the district court’s injunctive relief order; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The person the EEOC went to court for, Marlo Spaeth (referred to in this blog entry as plaintiff for simplicity purposes), has Down syndrome. She spent 15 years working for Walmart on the 12 PM to 4 PM shift typically working up to four days per week, and never had any performance problems. In fact, over that time, plaintiff earned positive annual performance evaluations and steady raises. In none of her reviews was plaintiff cited for attendance problems.

 

November 2014, Walmart’s home office in Bentonville, Arkansas, issued a directive that managers were to cease making manual adjustments to computer-generated staff work schedules in the absence of a business justification for doing so. The computerized work schedules were intended to ensure that staffing met the needs of the store based on customer traffic patterns. Prior to this announcement, store managers had possessed the discretion to alter such schedules as they saw fit: indeed, managers at the Manitowoc store had exercised this discretion in Spaeth’s case in order to maintain her regular noon to 4:00 p.m. work schedule. (That modified schedule had never presented a problem for the domestics department to which Spaeth was assigned so far as Personnel Coordinator Becker was aware. R. 245 at 129, 131–32.) Under the new regime, although it was still possible to manually alter a computer-generated work schedule, managers no longer had the discretion to make such changes unilaterally; any such adjustments were subject to “a strict approval process.” R. 247 at 141. Moreover, if an employee’s declared work availability (as disclosed on a form that employees were required to complete) did not match the scheduling generated by the computer system, he or she was given no hours at all. This very thing happened to Spaeth in the immediate aftermath of the policy change: Her work availability form (completed in 2006) indicated she was available only from 12:30 to 4:00 p.m.3, and the computer did not schedule her for any shifts. When Spaeth complained, she was advised that she would now need to accept a 1:00 to 5:30 p.m. shift, which she did.

 

Persons with Down syndrome have a great difficulty of adjusting to changes. Accordingly, plaintiff had incredible difficulties in adapting to her new schedule. She frequently expressed to Walmart employees a desire to return to road schedule. Her work performance suffered significantly and she would clock out before her time ended on the new schedule. Eventually, Walmart terminated her for attendance issues and had her escorted from the store. After the termination, plaintiff’s sister and plaintiff’s mother subsequently met with several managers to discuss plaintiff’s termination. At those meetings, plaintiff’s sister expressly invoked plaintiff’s right to accommodation under the ADA and asked that plaintiff be given her job back and restored to her old work schedule. Walmart managers in attendance understood that they were asserting that plaintiff should have been given a schedule accommodation but was not. They also interpreted plaintiff’s sister’s remarks as a threat that the family intended to file suit if plaintiff was not reinstated and given her schedule back. Walmart then conducted an investigation and sustained the termination. As a result, the scheduling accommodation request was never explored in any detail.

 

A four day trial resulted in plaintiff receiving an award of $150,000 in compensatory damages and $125 million in punitive damages. The District Court reduced the punitive damages award to $150,000 in order to bring the total award in line with the ADA’s damages $300,000 for large employers. The court also awarded equitable relief in the form of $44,757.80 in back pay, $5978.63 in prejudgment interest, and $68,926.60 for tax consequences. The EEOC filed a motion asking that the court order the plaintiff reinstated to her position and also requested a variety of other injunctive measures pertaining to Walmart’s disability related policies and practices. The District Court agreed to order the plaintiff reinstated and also to order that Walmart contact plaintiff’s guardian regarding any future coaching, disciplinary, or other accommodation issues. The court declined to order the additional forms of injunctive relief requested by the EEOC that were aimed at preventing a recurrence of what happened to the plaintiff.

 

II

Walmart’s Knowledge of Plaintiff’s Disability and the Interactive Process

 

  1. Walmart knew plaintiff had a disability.
  2. That plaintiff had Down syndrome was obvious to Walmart’s managers and they said as much at trial.
  3. When plaintiff’s schedule changed, plaintiff exhibited immediate and obvious difficulties in complying with the new schedule. After 15 years of reliable work attendance, plaintiff was suddenly clocking out hours early, expressing fears that she would miss her bus or her dinner, and on multiple occasions with absent altogether without notice. When scolded about not working her new schedule, plaintiff repeatedly expressed confusion, insisting that her schedule was the old schedule and asking that she be restored to that schedule. A reasonably astute manager, having in mind the prior challenges of the plaintiff and experiencing handling new duties, might have considered whether her inability to adapt to the new schedule could be due to her Down syndrome.
  4. The jury could also found that any doubts on whether the difficulties in adjusting to her schedule were due to her disability were resolved when plaintiff’s sister, both before and after her discharge, expressly advised Walmart managers that the plaintiff could not adapt to the new schedule because of her disability.
  5. While Walmart was never given a Dr.’s note or other medical evidence supporting plaintiff’s sister assertions, the critical point is that Walmart never asked. Reviewing the evidence, the jury could have found that plaintiff and plaintiff’s sister have requested a schedule accommodation for plaintiff’s disability. At that point, Walmart would have been within its rights to act for medical evidence backing up the notion that the plaintiff required in the combination because of her Down syndrome, but things never progressed that far as Walmart dismissed plaintiff’s requests out of hand. If any of Walmart’s managers had asked plaintiff’s sister to supply such evidence and none was forthcoming, Walmart might have a point, but that isn’t what happened.
  6. Multiple cases within the Seventh Circuit have held that when clarification is needed as to the nature of an employee’s disability or the particular combination required, it is the employer’s responsibility to solicit that information from the employee. After all, Walmart knew better than anyone else what information it needed to evaluate plaintiff’s request for a schedule accommodation.
  7. If Walmart needed information from plaintiff’s physician supporting the requested accommodation, it was obligated to ask for it. In fact, that is what its own accommodation policy for Wisconsin employees actually stated.
  8. “There is ample evidence in the record that Wal-Mart was on notice that a schedule accommodation for Spaeth was medically necessary, particularly once Stevenson intervened on Spaeth’s behalf to advise Wal-Mart’s managers that Spaeth’s Down syndrome made it extremely difficult for Spaeth to adapt to her new work schedule. At that point, Wal-Mart had a duty to seek out from Spaeth and her family members whatever medical documentation it needed to corroborate the medical need for an accommodation and to explore what type of accommodation would be suitable.” (This particular paragraph is intentionally a direct quote from the opinion for reasons that will be explained in our thoughts/takeaways section. Also, Wal-Mart used to be spelled that way but has since changed to Walmart).

 

 

III

Sufficiency of Evidence for Punitives and Compensatory Damages Should Not Be Reduced

 

 

  1. Plenty of evidence existed that Walmart was recklessly indifferent to plaintiff’s statutory rights as an individual with a disability. See the rest of this section.
  2. Plaintiff’s sister intervened and told Walmart’s managers of the link between plaintiff’s disability and her trouble with the new schedule.
  3. Even after plaintiff’s mother and sister met with Walmart managers following plaintiff’s discharge and invoked her right to a schedule accommodation under the ADA, Walmart still did nothing to address the possibility of an accommodation.
  4. Walmart did not consider given what it was hearing from plaintiff’s family members (plaintiff’s disability may have contributed to her failure to show up for work and to her pattern of leaving work early). It also did not reconsider its rationale for discharging plaintiff in light of that information.
  5. Walmart did not ask plaintiff’s family for corroboration from a physician if that was what was needed.
  6. Walmart did not meaningfully consider whether it would have been feasible to grant plaintiff the scheduling accommodation she and her family members have requested. Instead, Walmart limited its post-discharge investigation to the question of whether plaintiff was in fact guilty of multiple attendance infractions despite warnings and, once it answered that question in the affirmative, deemed the discharge decision valid and considered the matter closed.
  7. Walmart personnel cut off communications with plaintiff’s family after the post-discharge meeting despite plaintiff’s sister invocation of the ADA and plaintiff’s right to an accommodation at the meeting.
  8. Walmart’s national ethics manager indicated that the managers at Walmart’s store that employed the plaintiff had been too lenient with plaintiff’s attendance infractions.
  9. In deciding whether compensatory damages should be reduced, one has to look at whether the jury’s verdict was rationally related to the evidence and also whether the award was roughly comparable to other awards made in similar cases.
  10. Given plaintiff’s disability, she had a limited ability to put into perspective the company’s decision to terminate her. Therefore, the jury might have found that plaintiff’s disability magnified her emotional injury, a viewpoint supported by the testimony given at trial by others.
  11. While it is true that plaintiff’s mother died not long after her termination and that may have been exacerbated her emotional injuries, emotional injuries often have multiple causes. That said, the jury was entitled to infer that Walmart’s decision to discharge the plaintiff was a major cause if not the primary cause of her resulting depression. For example, testimony showed that plaintiff covered her face whenever she saw a Walmart commercial.
  12. The award was also roughly comparable to compensatory damages awards in other cases. Multiple witnesses, including a medical doctor, established that plaintiff experience significant and lasting emotional distress and depression as a result of the loss of her job. Comparable cases have resulted in similar if not greater awards.

 

 

 

IV

Need to Revisit the District Court’s Injunctive Relief Order

 

  1. The trial court incorrectly wrote off all seven of the injunctions requested by the EEOC as “obey the law,” injunctions, particularly where some of them (including the provision requiring the company notify employees of the verdict and train its supervisors and managers regarding the propriety of schedule accommodations), related specifically to the type of misconduct that Walmart committed and are aimed at preventing a recurrence.
  2. There were at least two shortcomings in the way Walmart managers handled plaintiff’s request for reinstatement of her original work schedule. First, store personnel utterly failed to treat the request as a request for an accommodation and initiate the constructive give-and-take process that the ADA, case law, and Walmart’s own policies require, even after plaintiff’s sister alerted store manager to the connection between plaintiff’s disability and her difficulties in complying with her new work schedule. Second, Walmart’s manager were evidently under the impression that long-term schedule modifications could not be granted to an employee, a perspective arguably consistent with the company-wide directive issued to managers in 2014 that the computer generated schedules not be modified except for business reasons.
  3. While some of the circumstances were unique to the plaintiff, other circumstances were not-including the company’s unwillingness to entertain the possibility of a long-term schedule accommodation. While Walmart now says that its disability policies allow for long-term schedule accommodation, the contrary position they took at trial certainly presents the possibility that other employees might be denied such an accommodation if sought.
  4. The shortcomings of Walmart’s response to plaintiff’s request for a schedule accommodation raises the possibility that this may have been more than an isolated incident. Walmart is a national employer with over 1 million workers on its payroll. Accordingly, it is unlikely that the plaintiff would be the first or the last employee with a disability who might need a work schedule accommodation but who also might have difficulty invoking their rights under the ADA.

 

 

V

Thoughts/Takeaways

 

  1. The reason why I thought this case reminded me of the situation where a team wins a game but loses a key player is because of the court’s discussion of “medical necessity,” when it comes to reasonable accommodations. Regarding the court’s discussion of, “medical necessity” with respect to accommodations, there is absolutely no support in the applicable ADA statutes or in the final implementing regulations of either of EEOC or the DOJ for such a principal. On the employment side, the statute itself says it is discrimination to not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individualwith a disability who is an applicant or employee, unless an undue hardship is present. 42 U.S.C. §12112(b)(5)(A). 29 C.F.R. §1630.9(a) says that reasonable accommodations must be made to the known physical or mental limitations of an individual with a disability unless an undue hardship is present. Nowhere in either place does the term “medical necessity,” appear. Further, if you go beyond the employment world of the ADA to the world of accessing nonfederal governmental entities and to the world of accessing place of the public accommodations, you don’t see “medical necessity,” there either. For example, both the final implementing regulations for Title II and Title III have auxiliary aids and services requirements. They both demand that those services and aids be provided where necessary to ensure effective communication with individuals with disabilities. See 28 C.F.R. §§35.160(b)(1), 36.303 Outside of the effective communications sphere, the final implementing regulation for both Title II and Title III have very similar regulations with respect to the need to modify policies, practices, or procedures. Both of those regulations talk about whether they are necessary to allow a person with disability to access a place of public accommodations in various ways, or whether they are necessary in order for a person with the disability to avoid discrimination by a nonfederal governmental entity. See, 28 C.F.R. §§35.130(b)(7)(i), 36.302(a). You can be sure that defense lawyers will push for a “medical necessity,” requirement when it comes to reasonable accommodations. I have already seen a defense oriented blog make the statement that “medical necessity,” is a requirement when it comes to reasonable accommodations. It simply isn’t so. To require it to be so, would severely limit the congressional intent of the scope of the ADA in addition to it not being supported by either the statute or any of the final implementing regulations of either the EEOC or the DOJ. The language used by the court also seem to suggest that unnecessary medical inquiries can be made, which is not the case. So, the offending paragraph to be accurate with the statutory and regulatory provisions of the ADA should have read (the bolded language is my thoughts on what should have been changed for accuracy sakes from what appears in the opinion):

“There is ample evidence in the record that Wal-Mart was on notice that a schedule accommodation for Spaeth was related to her disability, particularly once Stevenson intervened on Spaeth’s behalf to advise Wal-Mart’s managers that Spaeth’s Down syndrome made it extremely difficult for Spaeth to adapt to her new work schedule. At that point, Wal-Mart had a duty to seek out from Spaeth and her family members the medical documentation necessary to corroborate the need for an accommodation and to explore what type of accommodation would be suitable.”

 

  1. Magic words are not required to activate the interactive process as we have talked about numerous times before, such as here. Of course, the closer a plaintiff can get to magic words the better off they are. In this case, magic words were used and that may have been a factor in the court’s upholding the punitive damages award.
  2. Legislation has been introduced to get rid of the statutory damages caps. I don’t see any of that happening before the election. Whether anything happens after the election will inevitably depend upon election results.
  3. Employers are always asking for litigation if they take away an accommodation that is working for a particular employee.
  4. Remember the do’s and don’ts of the interactive process, which we discussed here.
  5. It is the employer’s responsibility to seek clarification of any reasonable accommodation request and not the employee.
  6. In Title I cases, punitive damages are a possibility.
  7. This court says that to find emotional injuries, it is sufficient for plaintiff to show that the termination was a major cause of those emotional injuries. Emotional causes often have multiple causes and termination being a sole cause is simply not necessary to recover emotional injuries.
  8. “Obey the law,” injunctions are more favorably thought of when they are specifically related to the underlying facts at issue.
  9. The Job Accommodation Network had just come up with a tool whereby anyone can go online to try and figure out what kind of an accommodation might work in various situations. Of course, it isn’t a substitute for legal advice but nevertheless could be helpful. Before this tool, I would just call them up and asked for their opinion. I could see why this tool could be really useful and more efficient, especially if the search engine is top-quality. Keep in mind, I have not tried the tool out myself yet. It can be found at https://askjan.org/sitsol/index.cfm .
  10. I do not see any “not for publication,” notice on the opinion. So, this very well may be a published opinion. If so, that makes the discussion in §V(1) of this blog entry even more significant.
  11. ADA training should be conducted by knowledgeable individuals (it is something that I do quite a bit up in my practice), and the training should not be a one-off.

 

Before proceeding with today’s blog entry, I want to wish everyone celebrating a happy new year. I realize that my blog entry is late this week, but I have a good reason for it. We got back from parents weekend last Sunday, then had to deal with Helene damage, which fortunately was not anything that couldn’t be handled, and then we had the Jewish new year.

 

The blog entry of the week continues our theme from last week, which is nondelegable duties of Title II entities and how they may face direct liability for that delegation or for ignoring their obligations. The case of the week is Access Living of Metropolitan Chicago, Inc. v. City of Chicago, here, a summary judgment denial decided by the United States District Court for the Northern District of Illinois on September 30, 2024. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning denying summary judgment on the ADA and §504 claims; court’s reasoning denying summary judgment on the FHA claim; court’s reasoning finding a continuing violation for statute of limitation purposes; court’s reasoning that Access Living has a private right of action to sue the City under each of the federal accessibility laws; court’s disposition; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The City of Chicago receives $100 million annually from the US Department of Housing and Urban Development for the purpose of building, preserving, and rehabilitating affordable housing properties. The City of Chicago doesn’t do that rather it is done by developers and nonprofits. The City’s development contracts with developers gives developers funds or tax credits and in return, the developer is obligated to comply with federal and state laws, including §504 and Title II of the ADA. Developers must also document compliance with accessibility requirements and the contract sets out remedies for noncompliance. Once the building is completed, the Chicago Housing Department must inform HUD and the public that the building was inspected and incorporated federal accessibility requirements. The City of Chicago also plays a considerable role in the design and construction of affordable housing developments. For example, developers have to apply for a building permit issued by the City’s Department of Buildings. During the permit process, the City’s Mayor’s Office for People with Disabilities reviews the building plan for compliance with federal, state, and local accessibility laws and standards.

Access Living sued saying that there was a lack of sufficient supply of accessible affordable housing units leaving Chicagoans with certain disabilities unable to find affordable housing.

 

II

Court’s Reasoning Denying Summary Judgment on the ADA and §504 Claims

 

  1. With respect to disability discrimination in housing, Congress specifically found, 42 U.S.C. §12101(a)(5), that individuals with disabilities continually encounter various forms of discrimination, including the discriminatory effects of architectural barriers even in housing.
  2. §504 requires that individuals with disabilities be provided with meaningful access to the benefit that the grantee offers, which includes the benefit of the elimination of architectural barriers.
  3. City of Chicago receive federal funds under §504. In particular, it received federal funding from HUD for the purpose of providing affordable housing for Chicagoans.
  4. §504 includes all of the operations of the local government or the entity of such local government distributing such assistance. See 29 U.S.C. §794(b)(1); 24 C.F.R. §8.3.
  5. A violation of Title II of the ADA or §504 means proving: 1) a qualified individual with a disability 2) was denied the benefits of the services, program, or activities of a public entity 3) because, or on the basis of their disability.
  6. A reasonable jury could find that the affordable housing scheme is a service, program, or activity of the City.
  7. Neither the statutory language nor the regulations shine much light on what kinds of undertaking the statutes are meant to cover. However, the regulations do suggest that the scope of protection is broad, applying to all services, programs, and activities provided or made available by public entities. See 28 C.F.R. §35.102(a).
  8. The Seventh Circuit has identified two different principles to help courts work out when a service, program, or activity of a governmental agency is involved. First, a governmental entity cannot avoid its obligations under the statute by ceding its governmental functions to private entities. Therefore, the question is whether the affordable housing scheme is a program or activity where the city itself is doing, providing, or making available the affordable housing, rather than the private developers. Second, governing regulations contemplate that liability may attach to some relationships between public and private actors. That is, a public entity may not discriminate on the basis of disability, directly or indirectly, such as through contractual, licensing, or other arrangements. See 28 C.F.R. §35.130(b)(1).
  9. The City may not avoid liability by framing its role in the affordable housing scheme as merely providing funding tax credit to developers in a way that completely absolves the City from its own duty of complying with the federal accessibility laws. To hold otherwise, goes directly against the principle that the City may not avoid its obligations under the statute by ceding its governmental function to private entities. Saying this, is not the same thing as saying that any time a municipality provides some funding to private entities, the government then becomes liable for any of the project’s failures or legal violations.
  10. The contracts the City enters into with the developers contemplate the general oversight or compliance obligation on the City by requiring the developers to comply with federal laws before receiving funding. For example, the City agrees in those contracts, per the municipal code of Chicago, to supervise and coordinate the formulation and execution of projects and programs so as to create safe, decent, and affordable housing for residents of the City. Certain agreements even explicitly require the developer to comply with §504 and the ADA and permit the City to inspect the developments for compliance. Accordingly, this contractual relationship between the City and the developers is evidence that the affordable housing scheme is a program or activity made available by the City.
  11. The City cannot cede its governmental functions-ensuring compliance with federal accessibility laws-to the developers.
  12. The City has a regulatory obligation to ensure that private developers comply with the federal accessibility laws. For example, the city is required to comply with HUD program requirements and to monitor subcontractors for such compliance. This includes an obligation that HUD recipients inspect each project for compliance with the federal accessibility laws and other property standards, both upon completion of the building and also periodically during the rental property’s affordability in order to ensure ongoing compliance.
  13. Title II regulations requires accessibility and facility newly constructed or rehabilitated by, on behalf of, or for the use of a public entity. 28 C.F.R. §35.151(a)(1). If recipient of federal funds could evade liability by simply placing the burden on third parties with which the recipient enters into a contract, then the statute would lose much of their force.
  14. If a jury finds that the affordable housing scheme is a program or activity of the City, then the program in its entirety must comply with federal accessibility laws even if developments do not directly receive federal funds by way of the City. The development must comply with the ADA because a public entity, the City, is providing the service or program.
  15. Even though certain developments do not receive federal funds, the entire program must comply with §504 because the statute defines “program or activity,” as “all of the operation,” of the funding recipient. 29 U.S.C. §794(b)(1); 24 C.F.R. §8.3.

 

III

Court’s Reasoning Denying Summary Judgment on the Fair Housing Act Claim

 

  1. Discrimination under the Fair Housing Act includes a failure to design and construct those dwellings in such a manner that they are readily accessible to and usable by handicapped persons and contain best-of-five features of adaptive design. 42 U.S.C. §3604(f)(3)(C).
  2. A reasonable jury can find that the City have to comply with the FHA because of Chicago’s role in the design and construction of the affordable housing developments.
  3. The FHA’s prohibitions are not directed at a specific actor, rather the prohibition bans an outcome without requiring who the actor is, or how such actors discriminate against potential tenants. As such, it is reasonable to hold that the City-,in its role in providing funding for housing developments, approving construction and rehabilitation of the development, and its contractual obligation to ensure that the development comply with federal law-, discriminated against a person in the conditions of sale or rental of a dwelling because of a failure to design and construct those dwellings in such a manner that is readily accessible to and usable by handicapped persons.
  4. Question of fact exists as to whether the City is responsible for the property based upon the City’s extensive role in the affordable housing scheme.

 

IV

Court’s Reasoning Finding a Continuing Violation for Statute of Limitation Purposes

 

  1. The City engaged in a pattern of discrimination in its affordable housing scheme so that there is a continuing violation of the federal accessibility laws.
  2. The Seventh Circuit currently recognizes the continuing violation exception for FHA discriminatory practice claims but has yet to apply the exception to ADA or §504 claims. Given the similarity of the statutes and the close relationship of the claims, and consistent with other district courts, the continuing violation exception applies to Access Living’s ADA and §504 claims.
  3. Access Living in its complaint challenges the City’s ongoing failure to comply with and enforce the federal accessibility laws. They are not challenging a single or multiple past violations. The distinction is important. If Access Living were to claim that his client were suffering the ongoing effects of noncompliant housing, like a building having a defective elevator, much of the claim would likely not fit the continuing violations exception. However, it is a different story here because Access Living is alleging an ongoing, systemic failure of the City to fulfill what contractual and statutory obligations, which is a completely different matter altogether. That kind of failure is ongoing and not a single isolated incident. Also, each day brings with it a renewed violation of the laws because the City is not performing its statutory duties.

 

V

Access Living Has a Private Right of Action to Sue the City under Each of the Federal Accessibility Laws

 

  1. Access Living has a private right of action to sue the City under each of the federal accessibility laws.
  2. Private rights of action to enforce federal law must be created by Congress. To determine whether a statute creates a private cause of action, the statute Congress passed must be looked at in order to determine whether it displays an intent to create not just the private right of action but also a private remedy.
  3. The City does not actually contest that each of the federal accessibility laws contains a private right of action, rather they are saying that the regulations themselves do not contain a private right of action. However, that position misreads the complaint. Access Living only cites the regulations in order to provide the background and the definitions necessary to apply the statutory provisions. Access Living is not asking for the enforcement of the regulations that it cites in its complaint. In this case, each statute supplies a cause of action and Access Living falls within the intended class of plaintiffs of each statute.

 

VI

Court’s Disposition

 

  1. Summary judgment is denied.
  2. Question for the jury include: 1) how the facts apply to the definitions of program or activity in order to trigger the application of the federal accessibility laws; 2) whether the City’s involvement in design and construction trigger the obligation under the FHA; and 3) whether the continuing-violations exception apply to set the proper statute of limitations.
  3. The parties are ordered to engage in good faith settlement negotiations. If negotiations stall or falter, then a trial schedule will be set. The parties have to file a status report on or before November 4, 2024, on the status of negotiations and the proposed next step of the litigation.
  4. During pretrial litigation, the parties are to address whether the court would be bound for purposes of injunctive relief by any jury decision on liability as well as what the damages presentation at trial would entail.
  5. The court believes that both sides would want to minimize the risks and delay of further litigation, and that the City naturally would want to fashion affordable housing program promoting compliance with federal accessibility laws.

 

VII

Thoughts/Takeaways

 

  1. The whole idea of the ADA being a nondelegable duty started with the Nevada Supreme Court, and it started catching on after that. Now we are seeing that the courts are holding Title II entities to a high standard. That is, the you are now seeing courts having none of it if the Title II entity either delegates its ADA responsibilities to someone else or just ignores what it has to do with ensuring that others comply with their ADA responsibilities.
  2. In many ways, this case resembles Rolf Jensen when the Nevada Supreme Court discussed how Mandalay Bay still had the duty to ensure that the architect was getting it right with respect to building out its facility in accordance with the ADA. We discussed that case here.
  3. This week’s blog entry as well as last week’s blog entry have important implications beyond the context of these two cases. For example, medical licensing boards, as we discussed here, routinely offload, or possibly even ignore, their ADA responsibilities in favor of deferring to third parties.
  4. This was not an equal protection case, but the court notes that housing discrimination is specifically mentioned in the findings to the ADA as amended. As such, a strong argument would be created that a State forcibly waives sovereign immunity should they be sued in a similar way. Municipalities are not subject to sovereign immunity.
  5. Extensive case law exists saying that Title II of the ADA applies to all operations of a governmental entity. You need to look at 29 U.S.C. §794 to see which kinds of entities have §504 apply to all of their operations and activities. For example, local governmental entities, healthcare entities, and educational entities all have to have all of their operations meaningfully accessible to persons with disabilities.
  6. It is rare to see a federal court say that a continuing violation is occurring. This court found the continuing violation because of the pattern of discrimination alleged.
  7. It is also difficult to sue for violating regulations rather than a statute. After Loper Bright, which we discussed here, that may or may not become even more so the case. Here, Access Living did a great job of showing the court that they were alleging statutory violations and that the regulation just provided background. That approach is even more necessary now after Loper Bright where a plaintiff is suing for violations of something clearly prohibited by a regulation.
  8. The trial judge in it disposition of the case very strongly encourages settlement. It will be interesting to see if that occurs. The Seventh Circuit, less so at the trial level, can be very friendly to those defending disability discrimination claims.
  9. “Handicapped,” is still used in the Fair Housing Act (FHA) unfortunately. It is highly offensive to persons with disabilities and should be stayed away from at all costs unless citing to it in a specific statute.
  10. The ADA, FHA, and §504 are all nondelegable duties!!!!!!