As many of my readers know, Justice Souter died last week. I thought I would explore his legacy with respect to the rights of persons with disabilities. As usual, the blog entry is divided into categories and they are: opinions for the court; concurring opinions; dissenting opinions; and Heller v. Doe, a dissenting opinion the gets a category all of its own. Of course, the reader is free to focus on any or all of the categories.

 

I

Opinions for the Court

 

  1. Justice Souter wrote the opinion in Albertson’s v. Kirkingburg, here. In that case, the Court held that Sutton v. United Airline’s, here, admonition that mitigating measures must be considered when considering a disability applied to when the body does it by itself. What is notable about this case is that the phrase “general run of cases,” appears. Also, the decision has been overruled by the amendments to the ADA. Finally, Justice Thomas has an opinion in this case saying that the case could easily been decided by just referring to DOT regulations that would have prevented a plaintiff’s victory as the ADA does not preempt regulations from other executive agencies.
  2. Bell Atlantic v. Twombly, here. Justice Souter wrote the opinion saying that in an antitrust case, pleadings had to allege more than what we just thought of as traditional notice pleadings. That is, factual allegations must be enough to raise a right to relief above the speculative level. What is interesting is that the case that extended Twombly to beyond antitrust cases to all civil cases, Ashcroft v. Iqbal, here, found Justice Souter dissenting.
  3. Chevron v. Echazabal, here. Justice Souter wrote the opinion for unanimous Supreme Court holding that the EEOC regulations saying that direct threat to self or others was a perfectly permissible regulation. This case is absolutely one of the foundational cases in ADA jurisprudence. In particular, Justice Souter goes into detail as to how to go about determining a direct threat. That is, it must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. What is a direct threat in this case became the basis for the EEOC regulations and the DOJ regulations talking about what is a direct threat. Keep in mind, the DOJ final regulation only deals with direct threat to others, while the EEOC final regulation deals with direct threat to self or others. The distinction can be incredibly important depending upon the context that direct threat arises in.

 

II

Concurring Opinions

 

  1. Justice Souter concurred in Barnes v. Gorman, here. In Barnes, Supreme Court held that punitive damages were neither available under Title II of the ADA nor under the Rehabilitation Act. He concurred in that opinion by saying that no clear answer as to the proper measure for compensatory damages in spending clause legislation existed. To this day, there is still no clear answer on the measure for compensatory damages in spending clause legislation. For example we do know from Cummings v. Premier Rehab Keller, which we discussed here, that emotional distress damages are not available under §504 of the Rehabilitation Act. Courts are holding that emotional distress damages are not available under Title II of the ADA as well. However, in Cummings and in its oral argument, the Court specifically said they were not addressing that question.
  2. In Nevada Department of Human Resources v. Hibbs, here, Justice Souter concurred saying that the FMLA was undoubtedly valid §5 legislation.

 

III

Dissenting Opinions

 

  1. In US Airways v. Barnett, here, Justice Souter dissented saying that nothing in the ADA insulates seniority rules from the ADA if you look at the statute’s legislative history. Further, it would not have been an undue hardship to allow the reassignment.

 

IV

Heller v. Doe

 

  1. The case that I most remember, is Justice Souter’s involvement in is Heller v. Doe, here. In that case, Kentucky had come up with a statutory scheme offering different levels of proof with respect to involuntary commitment of people with mental retardation as it was called at the time v. people with mental illness. They also had differences with respect to the ability to have a guardian involved depending on whether it was a person with mental retardation or a person with mental illness. The case is from 1993 and from the viewpoint of 2025, the majority opinion is a particularly jarring read considering the terms used (“retarded,” “mentally ill”), and what were thought to be current best treatment practices at the time. The majority opinion offers all kinds of reasons as to why there was a rational basis for the distinctions. Justice Souter in his dissent carefully tears down every one of those “rational,” reasons for the distinction to conclude that a rational basis simply does not exist for the distinctions. Justice Blackmon in his concurring opinion, thought a higher level of scrutiny than rational basis should be applied.
  2. The other thing that is particularly noteworthy about this case is that it gets used all the time for the proposition that people with disabilities are in the rational basis class. Heller simply doesn’t stand for that at all. Rather, the Court makes it extremely clear that the parties litigated the matter as if rational basis class was at issue and the Court saw no reason to address the question of whether a different level of scrutiny was necessary considering how the case had been litigated prior to the Supreme Court getting it.
  3. Similarly, the other case that gets used all the time for saying that persons with disabilities are in the rational basis class also is not a true rational basis case. In Cleburne v. Cleburne Living Center, Inc., here, the Court held that there was no rational basis for the City of Cleburne, Texas to exclude a group home from being able to be placed in a certain neighborhood. The Court goes into elaborate detail about why that simply does not withstand rational basis scrutiny. Justice Marshall concurred saying that the majority opinion’s analysis would be better referred to as rational basis plus rather than traditional rational basis.

 

Rest in Peace Justice Souter

Today’s blog entry is an update on a prior blog entry we discussed here. In the prior blog entry, we discussed how the police could escape liability when a place of public accommodation did not do the right thing with respect to allowing a service dog in its premises and the police were called. That decision allowed the plaintiff to pursue a motion to default again the business (referred to throughout this blog entry as the defendant). On April 25, 2025, the United States District Court for the Middle District of Pennsylvania, decided, here, it would grant the motion to default filed by the plaintiff on the grounds that the business violated both the ADA as well as the Pennsylvania Human Rights Act. As we have covered this case before, there is no reason to go into the facts at they can be found here. As usual, the blog entry is divided into categories, and they are: court’s reasoning for granting a default judgment against the defendant; court’s reasoning discussing the inability to grant injunctive relief and granting declaratory relief; court’s discussion of why it awards compensatory damages; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning for Granting a Default Judgment against the Defendant

 

  1. For a plaintiff to prevail under Title III of the ADA, a private plaintiff has to show: 1) he has a disability within the meaning of the ADA; 2) he was discriminated against by defendant on the basis of that disability; 3) he was denied goods or services by the place of public accommodation; and 4) the defendant owns, leases (or leases to), or operates a place of public accommodation.
  2. Plaintiff’s amended complaint contains sufficient facts supporting violations of both Title III of the ADA and the Pennsylvania Human Rights Act. In particular: 1) plaintiff alleged disabilities related to his physical and mental health that substantially impaired multiple life activities; 2) plaintiff alleged that defendant denied him the ability to use its services because of his reliance upon a service and support animal related to his disabilities; 3) the term “public accommodation,” is defined broadly by both federal and Pennsylvania antidiscrimination law and includes the business operated by the defendant; 4) plaintiff alleged outright intentional exclusion by the defendant on the basis of his disabilities and their failure to make modifications to existing facilities and practices because of the plaintiff’s service dog.
  3. In determining whether a default judgment should be granted, courts consider three factors: 1) prejudice to the plaintiff if default is denied; 2) whether the defendant appears to have a defense that can be litigated; and 3) whether defendant’s delay is due to culpable conduct.
  4. Plaintiff will experience prejudice if default is denied for several reasons: 1) the court advised the defendant early on in the case that it could not be represented pro se by one of its owners; 2) even with that admonition by the court, defendant never retained counsel despite three years of active litigation involving another defendant; 3) defendant ignored the amended complaint and did not participate in the deposition of the plaintiff or in the deposition of the officer involved. Therefore, defendant acted culpably by initially acknowledging the action and then disappearing from the litigation process altogether.
  5. The two defenses that the defendant has are if the animal was out-of-control and the handler did not take effective action to control it, or the animal was not housebroken. Neither of those exceptions apply, as the service animal was well behaved at the time of the incident and was also housebroken. Therefore, plaintiff’s request to use a service animal at defendant’s facility was a reasonable accommodation as a matter of law.

 

II

Court’s Reasoning Discussing the Inability to Grant Injunctive Relief and Granting Declaratory Relief

 

  1. Plaintiff’s amended complaint sought declaratory and injunctive relief.
  2. A private plaintiff under Title III of the ADA, can only get relief in the form of a temporary injunction, restraining order, or other order (as well as attorney fees of course).
  3. Discovery suggested that the defendant’s mall-based store closed during the litigation. So, plaintiff withdrew his request for a permanent injunction against the defendant. However, the declaratory relief action alleging that defendant’s actions, practices, and policies violated Title III of the ADA survives.
  4. In a footnote, the court noted that plaintiff had standing to pursue the declaratory relief action. In particular, plaintiff demonstrated an invasion of a legally protected interest, a concrete and particularized injury, and an actual injury. Further, his injury was traceable to the conduct of the defendant and not to the conduct of the dismissed former co-defendant State College Borough police. It is also redressable by Title III of the ADA.
  5. At the time of the incident, plaintiff simply sought to settle his service dog rights with the defendant through the assistance of some authority so he could watch his grandson play in the bounce house. He sought recourse from Nittany Mall security and the State College Borough Police Department to no avail.
  6. A purpose of the ADA is to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
  7. Since Taylor has demonstrated that default judgment is warranted and that he sustained an injury in fact, a declaration by the court that the defendant’s practices and policies violated Title III of the ADA and the Pennsylvania Human Rights Act on the date of the incident, was in order.

 

III

Court’s Discussion of Why It Awards Compensatory Damages

 

  1. Unlike title III of the ADA, the Pennsylvania Human Rights Act expressly permit suits for damages.
  2. Compensatory damages may be recovered for humiliation, emotional distress and mental anguish. Further, a complainant’s own testimony of embarrassment and humiliation suffices to support an award for compensatory damages for violation of the Pennsylvania Human Rights Act.
  3. Under the Pennsylvania Human Rights Act, damage awards serve the dual purpose of discouraging discrimination and restoring the injured party to his or her preinjury status.
  4. The request by the grandson, an autistic individual at the age of five at the time, to go to the mall to play at the bouncy house was one of the first words the grandson ever said.
  5. Plaintiff testified that being excluded from the business made him feel horrible and upset and that the incident hurt so bad and still does. Those emotions were discernible in the courtroom three years later.
  6. Plaintiff also testified that the defendant’s employees were laughing at him and making fun of him as he spoke to the police. Therefore, a family centered positive experience for the grandson turned into a negative experience due to the denial of the plaintiff being able to use his service dog to access the facility.
  7. Plaintiff also testified that the entire incident took more than an hour to conclude and caused him to recall negative events that he experienced in the past. Plaintiff testified that he spent several years in and out of the hospital following his service in Vietnam and that the incident started to bring those memories back. It doesn’t matter that the plaintiff conceded that he did not seek counseling or other mental health treatment following the incident because he testified that he was fearful talking about the incident in a therapeutic setting would bring up other events from his past.
  8. The embarrassment and humiliation was evident from the body cam cameras worn by the police. Accordingly, the court awards the plaintiff $25,000.

 

III

Thoughts/Takeaways

 

  1. Interesting choice made by the defendant to not cannot defend the action despite the court’s admonition that they needed to hire an attorney to do so. The court was clearly not happy with defendant’s choice.
  2. Title III of the ADA does not allow for compensatory damages but the Pennsylvania equivalent does. That fact winds up costing the defendant $25,000.
  3. State law always has to be considered in these situations (I am not licensed in Pennsylvania but am in Georgia, Texas, and Illinois). For example, a state law may allow for compensatory damages even though Title III of the ADA does not. On the other hand, it is possible that a state law allows for compensatory damages, but does not have any provision for attorney fees per Title III of the ADA.
  4. Title III of the ADA allows for both injunctive relief and declaratory relief actions. You might not be able to get injunctive belief because it focuses on past conduct, but you could, as this case illustrates, get declaratory relief. Either would entitle you to attorney fees under the ADA.
  5. The court says that a service animal is a reasonable accommodation as a matter of law unless a valid defense is present.
  6. In the opinion, the court mentions “service and support animal,” but it certainly seems pretty clear from the opinion that a psychiatric service animal is involved and not a support animal.
  7. Training, training, training (I do a great deal of this), is so important. I absolutely realize that frontline staff may not have a great deal of ability to make the two inquiries and then reach a conclusion as to whether a service animal is involved or not. However, making the two inquiries will likely act as a deterrent against fraudulent claims that a service animal is involved. It also might help prevent negligent claims should the animal get out of control and harm another.

Yesterday, the United States Supreme Court heard oral argument in the Osseo Area School District case, transcript here. It was ostensibly about whether a higher standard for damages existed for IDEA claim than for the ADA/Rehabilitation Act claims. It turned out to be something different altogether after both sides agreed that the standard should be the same for all the laws involved. Also, the oral argument revealed that this case potentially has big implications for the world of disability rights writ large. As usual the blog entry is divided into categories, but they are not our usual ones. Instead, the categories are:  questions posed by the Justices to the plaintiff (petitioner in this case); questions posed by the Justices to the Solicitor General; questions posed by the Justices to the School District; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

 

Questions Posed by the Justices to the Plaintiff

 

  1. Justice Thomas wanted to know whether the oral argument was consistent with the question presented posed by the Court originally.
  2. Justice Roberts wanted to know whether the oral argument was consistent with the question presented, and whether anyone was defending the position challenged by the plaintiff.
  3. Justice Kavanaugh wondered whether regardless of whether the oral argument in the question presented specifically matched up, whether the Supreme Court could tell the lower court to decide what would be the appropriate standard, i.e. deliberate indifference v. bad faith or gross misjudgment.
  4. Justice Kavanaugh wanted to know the difference between deliberate indifference as defined by the Solicitor Gen. and bad faith or gross misjudgment. For this line of questioning, the case we discussed here, specifically came up in the oral argument (Liese was clearly what Justice Kavanaugh was thinking of in his questions).
  5. Justice Sotomayor wondered whether the disability discrimination statutes required bad faith, gross indifference, or even deliberate indifference given the language of those statutes and how disability discrimination works.
  6. Justice Sotomayor and Justice Gorsuch both wondered whether intentional conduct might be needed for injunctive relief but not but damages.
  7. Justice Sotomayor and Justice Gorsuch both wondered whether prohibiting someone from utilizing a program when they are qualified for that program isn’t by definition intentional conduct.
  8. Justice Barrett wanted to know how the United States Court of Appeals deal with the question of intent, whether intent is necessary, and what the standard might be.
  9. Justice Alito wanted to know the difference in costs between complying with the IDEA and the extra costs associated with what is a reasonable accommodation under the ADA.
  10. Justice Kavanaugh wanted to know if deliberate indifference was the standard for damages claims.
  11. Justice Kavanaugh wanted to know if the plaintiff agreed with the Solicitor Gen.’s formulation of what constituted deliberate indifference (essentially the Liese standard).
  12. Justice Kavanaugh wanted to know how would a deliberate different standard be applied to the facts of the case.
  13. Justice Jackson wanted to confirm that deliberate indifference was commonly used in many other contexts.

 

II

Question Posed by the Justices to the Solicitor Gen.

 

  1. Justice Thomas wanted to know if the Solicitor Gen. believed that intent was required for damages but not for injunctive relief and why that might be the case.
  2. Justice Gorsuch wanted to know how to reconcile the statutes at issue not drawing any distinction of the sort proposed by the school district, but yet the Court was being asked to draw a distinction between damages for injunctive relief by applying a higher standard when it comes to injunctive relief. Justice Gorsuch wondered if it shouldn’t be the other way around.
  3. Justice Gorsuch wanted to know whether deliberate indifference should be the appropriate standard for injunctive relief.
  4. Justice Jackson wanted to know how the question presented at all suggested whether the standard is deliberate indifference and whether the standard to be utilized was different between damages v. injunctive relief.
  5. Justice Roberts wanted to know whether it was important that nobody is defending the position that a majority of United States Courts of Appeals seem to have taken on the issue of what standard to apply.
  6. Justice Barrett wanted to know why the United States Courts of Appeals are all sticking with their majority rule despite the school district given up that position and jumped overboard on it.
  7. Justice Barrett wanted to know the difference between the school district’s position and the plaintiff’s.
  8. Justice Kavanaugh wanted to know the difference between deliberate indifference and bad faith.
  9. Justice Kavanaugh wanted to know if there was a case out there that would fail under the bad faith standard that would succeed under the deliberate indifference standard (in response, Liese explicitly came up).
  10. Justice Alito wanted to know what the lower courts were thinking in adopting a standard that the school district believed was completely unsupported.

 

III

 

Question Posed by the Justices to the School District’s Attorney

 

  1. Justice Alito wondered whether the way the lower courts have proceeded was related to the fact that the IDEA and the ADA proceed along very different lines.
  2. Justice Alito wanted to know just how far reasonable accommodation obligations would go, such as under the fact pattern of this case.
  3. Justice Kagan wanted to know what would happen if the Supreme Court said that a different approach to damages and injunctive relief among the laws was not in order but did not set forth a standard for other courts to follow.
  4. Justice Kavanaugh wondered whether the ADA concept of reasonable accommodation played a role in trying to figure out what a Title II entity would have clear notice of with respect to what it had to do to comply with the law.
  5. Justice Jackson wanted to know whether the interactive process plays a role in the deliberate indifference analysis. Same question for whether an accommodation was reasonable.
  6. Justice Thomas wanted to know whether the attorney for the school district was making the same argument at the Supreme Court that was made at the United States Courts of Appeals.
  7. Justice Jackson also wanted to know if the arguments Justice Jackson was hearing were consistent from what was made at the United States Courts of Appeals level and whether the nature of the IDEA allowed a certain precedent to have continuing value.
  8. The attorney for the school district explicitly accused plaintiff’s attorney of lying and being inaccurate with respect to the school district’s views. When asked to back down she wouldn’t. Justice Gorsuch wondered if the attorney for the school district should not be more careful. Chief Justice Roberts specifically referenced prior positions taken by the school district in their brief. Much later on in the oral argument, Justice Gorsuch read extensively from the school district’s brief showing that the plaintiff’s attorney was being accurate in what it described as the school district’s position and was not lying at all. The school district’s attorney then backed down.
  9. Justice Jackson wondered if the school district’s attorney’s assertion that not having a bad faith standard as the standard was uniquely stupid, why there were not lower court decisions applying that standard.
  10. Justice Barrett wondered whether applying a bad faith standard everywhere would not be a sea change/big deal in the disability rights universe.
  11. Justice Kavanaugh wondered whether the bad faith standard being advocated by the school district’s attorney required animus. He also wondered how cases might come out with the two different standards.
  12. Justice Kavanaugh wanted to know why deliberate indifference had taken such a hold on the lower courts.
  13. Justice Jackson wanted to know how the position taken by the school district’s attorney at oral arguments matched up with the question presented.
  14. Justice Jackson wanted to know if the position taken by the school district’s attorney at oral argument was consistent with positions taken during their briefing.
  15. Justice Jackson wanted to know whether the very nature of disability discrimination meant that disability discrimination could occur regardless of intent.
  16. Justice Jackson wanted to confirm the school district’s attorney position that accommodations did not appear in the ADA and that the disability discrimination statutes did not contain an accommodation requirement.
  17. Justice Sotomayor said that in other contexts, such as religious discrimination, the Supreme Court has said that neutral policies can still discriminate so why couldn’t you have intentional discrimination even in the absence of deliberate indifference or gross enough indifference.
  18. Justice Sotomayor wondered where bad faith comes from. She couldn’t even figure out where deliberate indifference came from. She wondered whether figuring out how intentional discrimination should be defined for every disability discrimination statute shouldn’t have been fully aired in the lower courts first.
  19. Justice Jackson struggled to understand how discrimination claims in the context of reasonable accommodations and disability aren’t something unique as discrimination in the disability context, is often an issue of accommodating a person with a disability so they can take part in programs and have full enjoyment of the services.
  20. Justice Sotomayor said it would’ve been nice to know the full nature of the school district’s oral arguments before before the actual oral argument.
  21. Justice Sotomayor wanted to know whether the question before the Supreme Court was whether there was an intent standard or a heightened standard in this case.
  22. Chief Justice Roberts wanted to know whether the question before the Court was in fact whether a different standard existed in the educational context than for other standards.
  23. Justice Sotomayor wanted to know if the school district’s attorney by her arguments (lying by the other side accusation), did not violate Supreme Court rule 15.2.
  24. Justice Alito wanted to know where the plaintiff actually said that a violation of the IDEA necessarily is a violation of the ADA as the complaint doesn’t make that statement.
  25. Justice Kavanaugh wondered whether intent is not satisfied by the deliberate indifference standard, Liese.
  26. Justice Kavanaugh wanted to know whether it was necessary to have an idea of what the law provides in order for the deliberate indifference standard to apply. He also wondered if the deliberate indifference standard was not fairly protective of school districts.
  27. Justice Jackson wanted to confirm the school district’s position that Title II of the ADA did not allow for discrimination outside of intentional discrimination, i.e. bad faith.

 

IV

Thoughts/Takeaways on the Oral Argument

 

  1. The argument starts off in an unexpected way because it leads with the concession that everyone is on board with a single standard applying and not as how the question was presented, which was whether a different standard was required under the IDEA v. the ADA/Rehabilitation Act.
  2. IDEA does not contain reasonable accommodation obligations. Instead, that law works through a process of goal setting and then layering in services for the student with a disability to meet those goals. It is interesting how several of the Justices viewed IDEA through the reasonable accommodation prism despite the fact that IDEA doesn’t work that way.
  3. Justice Sotomayor not sure where deliberate indifference comes from. I actually researched the question of where deliberate indifference as a standard comes from, and I am not sure either. It is entirely judge made.
  4. Deliberate indifference comes up all the time in Rehabilitation Act cases as well as in Title II cases.
  5. The oral argument makes you wonder whether a failure to accommodate by itself is intentional discrimination.
  6. This blog entry discusses a case that played a significant role in the oral argument and is a must read.
  7. The oral argument in the questions asked by the Justices lead one to wonder whether you might explicitly see the Court say that Title II and Title III of the ADA require an interactive process. We already know that Title I does. We also know that in the educational context, Title II does as well. We do know per PGA Tour v. Martin, here, that Title III, as well as the other titles for that matter, require an individualized analysis, and it isn’t a big step from that to require an interactive process.
  8. The school district’s attorney took very extreme positions during the oral argument that were not anticipated by either the Court or by the plaintiff’s attorney. In fact, plaintiff’s attorney said those positions would have been a five alarm fire to the disability rights community if known.
  9. Several Justices were not thrilled with the accusation of lying made by the school district’s attorney.
  10. There didn’t seem to be much support among the Justices for a bad faith standard beyond the deliberate indifference standard talked about in Liese,
  11. Broad support among the Justices existed for the proposition that you could have intentional discrimination without animus.
  12. In point of fact, as pointed out in plaintiff’s attorney rebuttal, the ADA contains numerous reasonable accommodation/modification provisions in the statute. More specifically: 1) 42 U.S.C. 12201(a) specifically references the Rehabilitation Act AND its regulations as something that the ADA statute and their regulations have to at least meet; 2) 42 U.S.C. §12101(a)(5) specifically references “reasonable modification;” 3) 42 U.S.C. §12132 specifically references the definition of qualified individual in 42 U.S.C. §12131(2), which contains a reasonable modification requirement; 42 U.S.C. §12201(h) makes clear that reasonable accommodation requirements apply to the ADA outside of the regarded as context.
  13. I was surprised that the Solicitor Gen. and the Trump administration came down on the side of the plaintiff and not on the side of the school district.
  14. Predicting what the Supreme Court will do based upon oral argument is a fool’s errand. That said, persons with disability are frequently successful at the Supreme Court level if employment issues are not involved, which is the case here. It does seem that judging from the oral arguments, that it looks like a win for persons with disabilities. The question will be what does that win look like.

I hope everyone had a happy Passover and a happy Easter. For those who are Roman Catholic, my condolences on the passing of the Pope.

 

Today’s blog entry concerns §309 of the ADA. It asks the question of whether fundamental alteration applies in §309 cases. The case of the day is Albert v. Association of Certified Anti-Money Laundering Specialists, LLC, here, a published decision from the 11th Circuit decided on March 14, 2025. It is actually the second time this case came up before the 11th Circuit Court of Appeals. The first time it came up before the 11th Circuit, the 11th Circuit remanded it back down because the lower court did not focus on §309. After it went back down, it comes back up with the issue of whether fundamental alteration applies to §309. As usual, the blog entry is divided into categories and they are: relevant law and key facts; court’s reasoning that §309 contains a fundamental alteration element; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories. This is one of my shorter blog entries, so you will probably wind up reading the whole thing.

 

I

Relevant Law and Key Facts

 

42 U.S.C. §12189 (§309 of the ADA), provide that. ”any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.”

 

Plaintiff worked as a bank compliance officer when he decided he wanted to become a money-laundering examiner, which requires passing a certification exam. The certification exam is the most prestigious and highly recognized anti-money laundering exam recognized by employers and law enforcement. The exam is designed to be administered in a closed book format. Plaintiff has anxiety and learning disorders. Among the reasonable accommodation requests he asked for, included taking the exam by open book. As mentioned above, when the trial court first looked at the matter, it didn’t look at §309 at all. So, the 11th Circuit remanded it for the trial court to consider the case from the §309 perspective. On remand, the trial court concluded that an open book exam was not a reasonable request, and plaintiff appealed.

 

II

Court’s Reasoning That §309 Contains a Fundamental Alteration Element

 

  1. Proving a §309 violation means showing three things: 1) plaintiff is disabled; 2) the requests for accommodation are reasonable; and 3) those requests have been denied. The only issue before the court was whether the accommodation request was a reasonable one. There was no dispute about the other two prongs.
  2. 309 (42 U.S.C. §12189), here, requires an exam provider to either: 1) ensure that a test is accessible to persons with disabilities; or 2) to offer alternative accessible arrangements for disabled individuals.
  3. Whatever §309 may or may not require, it does not require a test provider to offer an accommodation that fundamentally alters the nature of the exam.
  4. 309 applies to a test provider’s examination or courses and by its terms requires the provider to offer such (emphasis in opinion), examinations or courses in an accessible way. Utilization of the word “such,” assumes that both before and after the requested accommodation, the exam is the same exam (emphasis in opinion). In other words, the alternative accessible arrangement cannot alter the exam’s essential nature.
  5. While §309 requires an exam provider to offer alternative accessible arrangements to people with disabilities, that obligation doesn’t extend to accommodations that the provider can show fundamentally alters its exam. For example, no one thinks that §309 requires a flight school to modify it flying test by allowing a blind applicant to use autopilot because the ability to see is an essential ingredient of what a flight examination measures, and §309 does not require the provider to accommodate away an essential aspect of the exam.
  6. In a footnote, the court notes that the Fair Housing Act also contains a fundamental alteration defense. Further, 42 U.S.C. §12182(b)(2)(A)(ii) of the ADA also contains the fundamental alteration defense in explicit terms. It makes sense that §309 would also have that defense even if it is not explicitly contained in §309.
  7. The anti-money laundering exam was purposefully not designed to be an open book test because such a form of the test would essentially test the candidate’s ability to look up information as opposed to testing their knowledge of the examination content.
  8. Since taking the exam in an open book format would eliminate one of the aims of the exam, it would change the fundamental nature of the exam and therefore, the accommodation request was not reasonable.

 

III

Thoughts/Takeaways

 

  1. While this is a §309 case and not a more traditional ADA access case, it has wide implications for entities engaged in testing, especially colleges and universities.
  2. My daughter is in her third year of undergraduate studies, and she reports that as a result of technology and people having gone remote learning during the pandemic, the number of professors insisting on closed book exams is very small. With technology, it is simply too easy to be able to use technology when taking closed book exams. In fact, many of her peers have not taken a closed book exam in years, and when presented with having to do so, fail miserably. Yet, they are learning the material in the class and certainly are able to demonstrate what they have learned. There are also ways that open book tests can be configured so that it doesn’t turn into looking up information rather than demonstrating the knowledge a person has.
  3. The case does tell us what prima facie case for proving up a §309 claim is.
  4. A person with a disability can always make a reasonable accommodation request, but the request has to be a reasonable one, i.e. one that does not result in a fundamental alteration of what is involved.
  5. For figuring out what are the essential eligibility requirements of a class or course, I highly recommend looking at this blog entry.
  6. 42 U.S.C. §12189 is not just about exams but courses as well. This particular statutory provision is being used successfully to challenge the inaccessibility of web-based CLE providers to individuals with disabilities. For example, web-based CLE providers that do not provide captioning have faced discrimination suits under this provision, which have led to settlements (I was a plaintiff in such a case).
  7. The decision is published.
  8. §309 while in title III, applies to anyone offering exams related to licensure. So, Title II entities offering exams related to licensure are covered by §309.
  9. I disagree with the court that the ability to see is an essential ingredient of what a flight examination measures. I have simply seen too many employers confuse essential functions of the job with major life activities. It is the ability to fly a plane safely that the examination measures not the ability to see. Of course, how you can fly a plane safely without seeing is beyond me, but that doesn’t mean the essential element is sight. The essential element is flying the plane safely and being able to demonstrate that. The analogy that I have often used is that being an umpire does not require the ability to see the game as an essential function, rather it requires the ability to call the game accurately. Of course, you can’t do one without the other, but that does not mean the concepts are the same thing. In short, it is the function that matters and not the tasks.

Before getting started on the blog entry of the week, I want to wish everyone celebrating Passover, a happy Passover. Also, want to wish everyone celebrating Easter this weekend, a happy Easter.

 

Turning to the blog entry of the day, Omar v. Wayne State University Board of Governors, here, decided by the United States District Court for the Eastern District of Michigan on April 4, 2025, is a case with a lot to unpack. Among the issues to discuss are whether attending law school remotely is a reasonable accommodation and what kind of deference is owed to educational institutions by the courts. There is other stuff too. As usual, the blog entry is divided into categories and they are: facts; court’s discussion of Wayne State’s reasonable accommodation obligations; court’s reasoning discussing the particular accommodations at issue; courts discussion of the fundamental alteration to the program defense and how much deference it should give to Wayne State; court’s reasoning discussing whether Omar was qualified/otherwise qualified; court’s discussion of why the interactive process claim fails; court’s reasoning that sovereign immunity applies and therefore Omar is not entitled to monetary damages or retrospective relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections. Since there is so much going on with this case, I could definitely see the reader focusing on individual sections depending upon their interests in reading this blog entry.

 

 

 

I

Facts

 

Omar is legally blind and diagnosed with a degenerative eye disease and has been visually impaired since birth. In 2021, she was also diagnosed with postpartum anxiety and depression.

 

In 2020, Omar began applying to law schools, including Wayne State’s law school. Although Wayne State rejected her application, she was accepted at the University of Toledo for the fall 2021 semester. However, she ultimately only attended one week of classes there and then deferred her enrollment because of an issue with her disability related scholarship to the State of Michigan. Instead of returning to the University of Toledo, Omar reapplied to Wayne State for the fall 2022 semester and was initially waitlisted.

 

Around this time, the law school’s admissions officer, reached out to Omar to discuss her application, particularly how she could benefit from an improved LSAT score. Omar never retook the LSAT and Wayne State ultimately denied her second application; but it accepted her as a part-time student for the fall 2023 semester when she applied a third time.

 

Omar first reached out to student disability services regarding potential accommodations at Wayne State’s law school in August 2022 while her second application was waitlisted. She continued to discuss accommodation requests with student disability services and various law school faculty when she was accepted for the fall 2023 semester. However, these discussions essentially broke down around the spring of 2023 because she felt University was not receptive to the totality of her needs.

 

On April 26, 2023, Cherise Frost, SDS’s director, emailed Omar, stating that: (1) the University granted various accommodation requests regarding testing and technology; (2) it would allow certain limited modifications to the law school’s cold-calling practices in the classroom; and (3) it denied a request “for a fully remote, distance learning program” because this would be “a fundamental alteration to the WSU Law School’s course of study.” The email identified various proposed alternate accommodations the University believed would reasonably address Omar’s identified needs.

 

Omar filed suit on July 14, 2023, with all of her claims relating to student disability services and the law school’s alleged failure to reasonably accommodate her disability. Both parties moved for summary judgment.

 

II

Court’s Discussion of Wayne State’s Reasonable Accommodation Obligations

 

  1. To establish a prima facie case for failure to accommodate, a plaintiff has to show that: 1) she is disabled as defined by law; 2) she is otherwise qualified for the law school program with or without reasonable accommodation; 3) University knew or had reason to know about her disability; 4) she requested an accommodation; and 5) the University failed to provide the necessary accommodation.
  2. A defendant need not make an accommodation if doing so results in a fundamental alteration in the nature of the service, program, or activity or in an undue financial and administrative burden. 28 C.F.R. §35.150(a)(3).
  3. Plaintiffs are not entitled to their preferred accommodation, but merely a reasonable one that provides meaningful access to the public entity.
  4. Determining whether a particular accommodation is reasonable is highly fact specific and requires a case-by-case analysis.
  5. Once an accommodation is requested, the school has a duty to engage in the interactive process, which is a series of informal meetings and discussions in order to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
  6. A school’s failure to participate in the interactive process is actionable if the student demonstrates that: 1) the school knew about the student’s disability; 2) the student requested an accommodation; 3) the school did not show good faith in seeking appropriate accommodations; and 4) appropriate accommodations could have been provided but for the school’s lack of good faith.

 

III

Court’s Reasoning Discussing the Particular Accommodations at Issue

 

  1. Documentation from student disability services shows that Omar’s therapist recommended she attend law school completely remotely and the records repeatedly referenced her request for full distance learning and a completely remote, distance learning program, among other similar phrasing. However, the record also includes a letter from Omar’s therapist stating that she required the attendance of law school to be remote part-time. Omar also provided a spreadsheet to disability services explicitly referencing distance education for classes and noting her concerns with attending class in person. In later conversations between Omar and disability services staff, there was extensive discussion about her request for distance learning, distance education, a full-time remote combination, and to the entire program being remote.
  2. Omar’s husband said that Omar was merely requesting the same program alteration the law school had already provided during the pandemic when it was fully remote for all students. When disability services mentioned the possibility of allowing some remote component to the law school program, Omar proposed various alternatives to in person attendance, like meeting with professors one-on-one or having recorded lectures or having just the audio of lectures. At no point during the process did Omar refute the numerous characterizations that she sought to be fully remote for all law school programming.
  3. Once Omar retained counsel, her counsel made clear that Omar intended to attend all experiential education courses, such as clinics and externships in person. Omar also testified at her deposition that she saw fully remote attendance for all classes and lectures, but was willing to attend clinics, small group discussions, and guest lectures in person. Although Omar was unsure what if any specific portions of the law school’s first year curriculum she could attend in person, she rejected the University’s characterization that she was asking for a fully remote education.
  4. Accordingly, enough evidence exists to allow reasonable jurors to find in Omar’s favor concerning the scope of her reasonable accommodation request.

 

IV

Courts Discussion of The Fundamental Alteration To The Program Defense And How Much Deference It Should Give To Wayne State

 

  1. There is no authority within the Sixth Circuit explaining the precise extent of deference that should be extended. That said, deference cannot be absolute or law schools could effectively avoid any liability under the ADA and related statutes by declaring any requested accommodation to be a fundamental alteration and/or unreasonable.
  2. The Ninth Circuit has said that reasonable deference is one thing, but blind deference is quite another. It has also said that courts have to ensure that educational institutions are not disguising truly discriminatory requirements as academic decisions. Accordingly, educational institutions have a real obligation to seek suitable means of reasonably accommodating a person with disability and to submit a factual record indicating that they conscientiously carried out their statutory obligations. Carrying out that statutory obligation means that it is the institution’s duty to: 1) make itself aware of the nature of the student’s disability; 2) to explore alternative for accommodating the student; and 3) to exercise professional judgment in deciding whether the modifications under consideration would give the student the opportunity to complete the program without fundamentally or substantially modifying the school’s standards. It is only at that point in time when the school has done all of this, that a court defers to the institution’s academic decisions.
  3. The Fourth Circuit has said that courts should assiduously review the record in order to ensure that the educational institution has conscientiously carried out its statutory obligation to provide reasonable accommodation to persons with disabilities.
  4. The Third Circuit has said that when assessing a school’s judgment as to a student’s qualification for an academic program, a court should look at the following: 1) did the academic institution seek suitable means of reasonably accommodating student with a disability and submit a factual record of undertaking that obligation conscientiously; and 2) did that process lead the University to reach a rationally justifiable conclusion. The Third Circuit went on to say that courts may decline to respect a school’s judgment when the factual record shows that the school did not conscientiously consider all pertinent and appropriate information when making a decision.
  5. Here, the Board failed to produce a record undisputedly (emphasis in opinion), that the University conscientiously (emphasis in opinion), explored alternatives for accommodating Omar’s disabilities.
  6. Given the conflicting evidence in the record, reasonable jurors could conclude that Wayne State did not conscientiously explore alternatives for accommodating Omar’s disabilities because evidence exists that the University effectively shut down her primary request without adequate consideration of her specific disabilities and needs. For example, among other things, the student disability services director testified that disability services never actually evaluated whether Omar’s requests were reasonable in light of her disabilities, but instead denied remote learning and a research assistant as unreasonable and inappropriate accommodations for the law school (emphasis in opinion). On the other hand, evidence does exist that an interactive process did occur, at least to some extent. Accordingly, it is up to the jury to evaluate the weight and credibility of the conflicting evidence.
  7. Despite purported distinction between fully remote classes and a single student attending remotely, in the post Covid-19 world and given Wayne State’s past and continuing experiences with remote learning, whether Omar’s request amounted to a fundamental alteration of law school program is a factual question for the jury.
  8. A question of fact exists whether Omar wanted to attend clinics and other non-lecture programming in person.
  9. It is undisputed that Wayne State’s law school was fully remote for all student beginning in 2020 during the Covid-19 pandemic, during which time it continued charging full tuition throughout that time, and the law school returned to traditional in person learning before Omar was accepted for the fall of 2023.
  10. A Dean of the law school testified that law schools across the country were fully remote during the Covid-19 pandemic with no fundamental impact on Socratic teaching.
  11. The head of disability services testified that law students have been granted temporary remote learning in the past in order to accommodate things like a broken leg or recovery from surgery. The record also shows that the law school continued to allow remote learning for all students during bad weather, and it raises at least a factual dispute concerning whether the law school still provide students a remote option for select classes like first year legal research and writing, where students have the option to enroll in either a fully remote or fully in person version of the same course.
  12. Construing the evidence in Omar’s favor, reasonable jurors could conclude that the proposed factual distinction between an entire class being remote and only a single student being remote is without merit. In particular, the law school still uses remote learning and (emphasis in opinion), and has also previously granted temporary accommodations to allow single student to participate remotely. So, all of this supports the conclusion that Omar could do the same without fundamentally altering her legal education.
  13. Practical experience also leads to the same conclusion that remote learning for Omar would not fundamentally alter her legal education. In a post Covid-19 world, technology is readily available to facilitate hybrid arrangements with only select participants being remote. While there would be practical drawbacks to such an arrangement, that is not the same thing as saying those drawbacks necessarily amount to a fundamental alteration of the law school’s Socratic teaching under the facts of the case (particularly when no one disputes that all student participating remotely during Covid-19 pandemic did not affect the fundamental nature of the program), and therefore, is a question for the jury to decide.

 

V

Court’s Reasoning Discussing Whether Omar Was Qualified/Otherwise Qualified

 

  1. To be otherwise qualified, Omar bears the burden of showing that she meets the essential eligibility requirements for participation in the program with or without reasonable modification to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services.
  2. Since qualified/otherwise qualified depends on whether some reasonable accommodation is available to satisfy the legitimate interests of both Omar and the University, the concept of otherwise qualified/qualified and reasonable accommodation merge.
  3. One element of the otherwise qualified/qualified reasonable accommodation analysis is whether an accommodation is necessary.
  4. The concept of necessity requires at a minimum showing that the desired accommodation will affirmatively enhance a person with a disability’s quality of life by ameliorating the effects of the disability. In other words, there must be a direct nexus or a direct correlation between the plaintiff’s disability and the barrier to his or her [or they] equal access to the program or benefit at issue.
  5. Omar has repeatedly succeeded academically when given consistent accommodations and is now successfully completing a master’s program at the University of Oklahoma.
  6. A question of fact exists whether Omar would generally be able to meet the law school’s requirements with reasonable accommodations. In particular: 1) she successfully completed her undergraduate degree despite significant limitations from her blindness and even after being diagnosed with anxiety and depression; 2) she is currently on track to earn a graduate degree from the University of Oklahoma; 3) the law school actively recruited Omar and encouraged her to reapply, demonstrating at least an initial belief that she was qualified for the program; 4) Omar sought modifications to the law school’s policies and practices that she believed considering her multiple disabilities would reasonably level the playing field; 5) Omar presumably could still fully engage with Socratic questions involving general subject matter or theoretical issues that do not involve a visual reference; 6) Omar said that she would be willing to demonstrate proficiency in legal citation, but just wanted assistance with longer writing assignment to alleviate eye fatigue from her blindness, among similar concerns; 7) Wayne State said when it formally denied her remote learning requests, that they could modify cold calling practices in the classroom and would also be able to assist with securing specialized writing support in order to address her need for research assistant. Accordingly, Omar meets the minimum showing to establish necessity.
  7. Omar testified extensively how her disabilities interact and affect her life and that testimony mirrored her recorded discussion with student disability services. She also testified how past accommodations, similar to those what she requested of Wayne State, allowed her to overcome the barrier created by her disabilities and how those barriers would be alleviated if she could participate in the law school with her accommodations. She told disability services the same thing.
  8. Recently revised accreditation policy from the American Bar Association waived the distance education credit limit with respect to remote participation in an in person course if allowed as an accommodation under the ADA. Therefore, ABA policy contemplates remote learning as a potential reasonable accommodation in at least some circumstances.
  9. The University never considered whether they could accommodate Omar’s needs with partially remote learning.

 

VI

Court’s Discussion of Why the Interactive Process Claim Fails

 

  1. Omar can only sustain a claim for failure to participate in the interactive process if Wayne State did not show good faith.
  2. Evidence of good faith arises when the school provides alternative accommodations in response to a student’s request or readily meets with the student to discuss the request.
  3. The record at most demonstrate an honest misunderstanding as to the nature of Omar’s request, which she even seemingly acknowledged as much in her briefing.
  4. While the reasonableness of the requested an alternative accommodations are a matter for a jury, the record is clear that the University acted in good faith. In particular: 1) Wayne State readily met with her numerous times during an almost 3 month period to discuss her needs and requested accommodations; and 2) Wayne State offered alternative accommodations in response to Omar’s request. Accordingly, the failure to engage in the interactive process claim fails as a matter of law.
  5. The record is clear that Omar can establish for a variety of reasons that she was not the one that disengaged from the interactive process. In short, she has plenty of evidence to show that she was faced with the choice of starting law school set up to fail or abandoning law school entirely.

 

VII

Court’s Reasoning That Sovereign Immunity Applies and Therefore Omar Is Not Entitled to Monetary Damages or Retrospective Relief

 

  1. Since the claims do not rise to the level of a constitutional violation, Wayne State is entitled to sovereign immunity and Omar is precluded from monetary damages or retrospective relief.

 

VIII

Thoughts/Takeaways

 

  1. The interactive process is actually a Title I construct. It can be very difficult to find cases applying that construct to Title II or III, though it can be done. It is not unusual to find cases applying the interactive process construct to educational institutions, but much harder to find such application of the interactive process outside of the education environment. Even so, this case is a ringing endorsement that universities have the obligation to engage in an interactive process with a student making a reasonable accommodation request.
  2. Remote learning may be a reasonable accommodation in certain circumstances.
  3. The court sets a not small standard for when it will defer to a university’s decision regarding a denial of accommodations or a student with a disability. In particular: 1) it have to make itself aware of the nature of the student’s disability; 2) has to engage in the interactive process and explore alternatives; and 3) have to exercise professional judgment in the fundamental alteration analysis. With respect to professional judgment, there is a way to go about that as we discussed in this blog entry, here.
  4. Before giving deference to a university, this court is looking for indications that the University conscientiously considered all pertinent and appropriate information when making their decision. Further, it must be undisputed in the record that the University acted conscientiously.
  5. Technology has fundamentally changed education and that is happening at lightning speed. It is not unusual now for even residential colleges to offer classes both remotely and in person. I know the college that my daughter attends certainly does that. As a former teacher of paralegals full-time for 12 years, I can remember the day when a manual library was required. Those days are gone. Even the ABA does not require up-to-date manual law libraries for paralegal programs anymore. AI is also changing rapidly how people learn.
  6. When I was teaching people how to be paralegals, my style was definitely very Socratic. I actually did teach a class where some were in the classroom and some were remote. The technology was in early days and so it wasn’t easy to do. I am sure that it is much easier to do nowadays with technology.
  7. Also, when I was teaching paralegals, I did a lot of advising with respect to helping students decide on whether they should go to a law school and how they might decide going about it. For choosing the best law school for a particular individual, the key is, except for very few individuals, making sure that the student is a big fish in a small pond and ignoring what the chances of getting in might be. The big fish small pond also creates more opportunities for making law school cheaper and I am personally convinced, though it is anecdotal on my part, that it is easier for a student to get accommodations for their disability if they are likely to be a big fish in a small pond. All of the data needed for deciding whether you are going to be a big fish in a small pond can be found at the ABA-LSAC website grade calculator. A huge red flag for me in this case was the discussion of Wayne State suggesting that she get her LSAT score up. That suggestion indicates to me that she will not be a big fish in a small pond at Wayne State. With AI changing how law will be practiced and probably narrowing the opportunities for junior lawyers, big fish in a small pond becomes even more important nowadays.
  8. Remember the do’s and don’ts of the interactive process, which we discussed here.
  9. Qualified is the term for the ADA and “otherwise qualified,” is the term for the Rehabilitation Act. The terms mean the same thing.
  10. The court’s decision makes clear that it is the disability being accommodated and not the program or activity.
  11. You can simultaneously have a failure to accommodate claim go forward but a failure of the interactive process claim be denied. Keep in mind, that for this to be true, the failure to engage in the interactive process and the failure to accommodate must be separate causes of action, which isn’t the case in every jurisdiction. So, be sure to check your jurisdiction on whether there are separate claims for failure to accommodate and for failing to engage in the interactive process.
  12. I don’t follow the court’s discussion of why sovereign immunity applies because it doesn’t go through all the steps. The way the steps have to go per the Supreme Court decision referenced by the Omar court is as follows: 1) is there a possible ADA violation; 2) does the ADA violation rise to the level of a constitutional violation; and 3) if the violation does not rise to a constitutional violation, is the ADA statutory scheme a proportional response to the harm meant to be redressed. For whatever reason, this court did not address prong 3 and it should have done so. One wonders if that will not be appealed. I have come across 11th Circuit decisions holding that Title II is a proportional response to the harm meant to be redressed with respect to public places of higher education. Also, there is a whole line of cases (fair to say that it is the majority view), saying that receipt of federal funds-i.e. coverage under the Rehabilitation Act-waives sovereign immunity. I don’t know why the court did not address that point as the ADA and the Rehabilitation Act are interpreted in the same way.
  13. The very first law school I got into was the University of Toledo, though I opted for the University of San Diego for my first law degree.
  14. The court uses the term, “level the playing field,” which is essentially the same concept of a starting line, which we discussed here.

Congratulation to University of Connecticut for a tremendous win yesterday. Their coach now with a record 12 NCAA Division I titles. He already had most number of victories for a coach at the Division I level in basketball. Tonight, is the men’s final with Florida v. Houston.

 

Turning to the blog entry of the day, we look at the case of Nawara v. Cook County, here. The case asked the question whether backpay is an allowable remedy for a violation of the ADA that does not require a plaintiff to have a disability. As usual, the blog entry is divided in the categories and they are: facts; court’s reasoning that plaintiff can receive back pay for violations of the medical examination/disability related inquiries scheme regardless of whether plaintiff has a disability; court’s reasoning that the trial court was right to restore plaintiff’s seniority; 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)

 

John Nawara joined the Cook County Sheriff’s Office in 1998. He was working as a correctional officer in 2016 when he had a series of heated altercations with his superior officer, Superintendent Karen Jones-Hayes. Several weeks later, he engaged in another contentious interaction with Rebecca Reierson, a human resources manager, and Winifred Shelby, an occupational health nurse. As a result, Reierson and Shelby required Nawara to undergo a fitness-for-duty examination before returning to work, and the Sheriff placed Nawara on paid leave.

To initiate the examination process, Shelby instructed Nawara to submit two signed medical information authorization forms—one allowing medical providers to send his information to the examination company, and the other permitting the Sheriff’s Office to collect his information from medical providers to send to the company expediting the process. Despite repeated requests, Nawara refused to submit the executed forms, and the process stalled.

Nawara’s paid leave ended on April 25, 2017, and he was placed on unpaid leave, during which he worked other jobs. Nawara eventually decided to return to the Sheriff’s Office and provided the authorization forms in August 2017. After undergoing the fitness-for-duty examination, he was declared fit for duty and returned to work as a correctional officer on September 26, 2017. In September 2019, Nawara became a Cook County Sheriff’s police officer.

While on leave, Nawara filed this lawsuit, alleging that the Sheriff’s actions violated 42 U.S.C. § 12112(d)(4). After a trial, the jury agreed with Nawara that the examination requirement and related requests for medical records violated § 12112(d)(4)(A). That provision prohibits an employer from requiring a medical examination or inquiring about an employee’s disability status unless it is job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A). The jury, however, awarded no damages.

Nawara then filed a post-trial motion requesting equitable relief in the form of back pay and the restoration of his seniority. After reviewing the pertinent statutory provisions, the district court determined that a plaintiff, like Nawara, must have a disability or perceived disability for a violation of § 12112(d)(4) to constitute discrimination on account of disability. Nawara v. County of Cook, 570 F. Supp. 3d 594, 600-01 (N.D. Ill. 2021). And because the remedy provision applicable here, 42 U.S.C. § 2000e-5, bars a court from awarding back pay where an employee suffers an adverse employment action “for any reason other than discrimination” on account of disability, the court denied Nawara’s request and entered judgment accordingly. Id. (citing 42 U.S.C. § 2000e-5(g)(2)(A)). The court also declined to issue an order restoring his vacation days, holidays, sick days, and seniority.

Nawara subsequently moved to amend the judgment under Fed. R. Civ. P. 59(e), arguing that the district court had failed to fully evaluate his request for the restoration of his seniority. Upon closer examination, the district court agreed and granted Nawara’s request to restore his seniority based on the Supreme Court’s allowance of such relief in Franks v. Bowman Transportation Co., 424 U.S. 747, 770 (1976). See Nawara v. County of Cook, No. 17 C 2393, 2022 WL 3161805, at *2 (N.D. Ill. Feb. 15, 2022), corrected, 2022 WL 3161838 (N.D. Ill. July 29, 2022).

At that point, the Sheriff moved to amend the judgment restoring Nawara’s seniority. According to the Sheriff, the court had ignored a prior stipulation stating that seniority would be restored to Nawara “if the Court awards back pay.” In the Sheriff’s view, because the district court denied back pay, Nawara was not entitled to his seniority. The district court, however, disagreed and denied the Sheriff’s motion. Nawara, 2022 WL 3161838, at *3. Both sides appealed the district court’s rulings.

II

Court’s Reasoning That Plaintiff Can Receive Backpay for Violations of the Medical Examination/Disability Related Inquiries Scheme Regardless of Whether Plaintiff Has a Disability

 

  1. 42 U.S.C. §12112 provides that no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedure, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
  2. 42 U.S.C. §12112(d) prohibits medical examinations and disability related inquiries of employees as to whether such an employee is an individual with the disability or as to the nature or severity of the disability (emphasis in opinion), unless such examination or inquiry is shown to be job-related and consistent with business necessity.
  3. You do not have to be a person with a disability or even perceived as having a disability in order to be covered by the medical examination and disability related inquiry provisions.
  4. 42 U.S.C. §12112(a) prohibits discrimination on the basis of disability with respect to the terms, conditions, and privileges of employment. 42 U.S.C. §12117(a) incorporates 42 U.S.C. §2000e-5 in its entirety. §2000e-5(g) of title VII of the Civil Rights addresses the availability of back pay. §2000e-5(g)(1) says that a court may order affirmative action as appropriate including but not limited to reinstatement or hiring of employees with or without backpay or other equitable relief as appropriate. However, the next subsection, §2000e-5(g)(2), says that backpay is not available if the individual was suspended or discharged for any reason other than discrimination (emphasis in opinion), on account of race, color, religion, sex, or national origin. Therefore, the most natural reading of §12117(a) requires adding discrimination on account of disability when considering remedies while leaving the remainder of §12117 intact.
  5. Congress enacted the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
  6. 12112(a) prohibits discrimination on the basis of disability with respect to terms, condition, and privileges of employment. §12112(d)(1) explains that the prohibition against discrimination includes medical examination and inquiries. It doesn’t make sense that these two provisions apply only to disabled individuals for two reasons. First, such a reading renders §12112(d)(1) an unnecessary add-on because a medical examination and inquiry will always be a job application procedure or a term or condition of employment. Second, incorporating §12112(d) wholesale into §12112(a) is an odd fit because that would require the ADA claimant to have a disability or perceived disability while the former permits an individual to file a claim even though he may not. In other words, it makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability.
  7. The better construction of §12112(d)(1) involves employing the nearest reasonable referent canon of construction, which means that §12112(a)’s prohibition on discriminating against a qualified individual on the basis of disability includes §12112(d)’s prohibition on requiring a medical examination or inquiry.
  8. Other provisions of the ADA do not require a disability to allow someone to recover for violating the ADA. For example, the ADA also prohibits discrimination against those associating with a person with a disability regardless of whether that person has a disability.
  9. Read together, §12112(a) and §12112(d)(1) define a violation of §12112(d)(4)(A) to constitute discrimination on the basis of disability under §12112(a). Accordingly, 12117(d) authorizes the plaintiff to recover backpay for the ADA violation.

 

III

Court’s Reasoning That the Trial Court Was Right to Restore Plaintiff’s Seniority

 

  1. The Cook County Sheriff made no attempt to show that increasing plaintiff’s seniority would be useless to him as a police officer in the Sheriff’s office, a fact which is fatal to the Sheriff’s position.
  2. The collective bargaining agreement in the Sheriff’s office suggests that the plaintiff could benefit from the restoration of the seniority in his current employment.

 

IV

Thoughts/Takeaways

 

  1. When I talked to Khorri Atkinson of Bloomberg about this case (he was the one that brought this case to my attention), he mentioned to me that the defense side was looking at certain cases to see if the court’s argument could be countered. However, those cases suffer from some serious problems. First, they are all prior to the amendments to the ADA. Second, the concept of adverse action, as we discussed here, is rapidly evolving.
  2. It is important to note that an employer that properly goes about the disability related inquiries and medical examinations scheme does not activate the regarded as prong of the ADA.
  3. The opinion is published.
  4. The opinion is well reasoned. As such, one has to wonder how the Supreme Court would decide this issue even given its current configuration. It will also be interesting to see how other circuits deal with this issue in light of a published opinion from a circuit that isn’t necessarily well-known for being disability centric. It is certainly possible that a circuit court split could occur down the road.
  5. We discussed the medical examination and disability related inquiry scheme many times before, such as but not limited to here. This case illustrates how it is important to thoroughly understand that scheme. Training (a large part of my practice), by ADA knowledgeable individuals is always super important.
  6. You don’t have to have a disability to benefit from certain provisions of the ADA, such as the medical examination and disability related inquiry scheme. Being discriminated against because you associate with a person with a disability is another example.
  7. Violation of any provisions of Title I gets you the remedies afforded by Title I regardless of how a person gets covered under the ADA.
  8. As a preventive law matter, it is helpful to have persons with disabilities involved in the process of analyzing when medical exams and disability related inquiries should be requested and what those exams and/or disability related inquiries are because of the frequency that people with disabilities have to deal with the issue.

Free Track And Field Athletic Field photo and picture

Picture immediately above is a Track and field starting line (white lane numbers on orange track)

 

Today’s blog entry has been getting a lot of press on Law 360, which I subscribe to. It was brought to my attention by one of their journalists, Anne Cullen, who wrote an excellent article on it (here, subscription required). In that article, she solicited the opinions of several attorneys, including myself, who were very knowledgeable about the ADA. There was absolutely no daylight between any of us. I have also seen some reports, which I anticipated, that the Second Circuit took a broad reading of the ADA in deciding this case. As we will see, that is not what happened. The case of the day is Tudor v. Whitehall Central School District, a published decision decided by the Second Circuit on March 25, 2025, here. As usual, the blog entry is divided into categories and they are: facts; when it comes to accommodations/modifications, it is all about getting the person with the disability to the same starting line as a person without a disability; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

 

 

I

Facts

 

Plaintiff worked for 20 years as a substitute teacher and then as a high school math teacher. For decades she has suffered from PTSD related to sexual harassment and sexual assault by a supervisor in her former workplace. Plaintiff takes multiple medications to manage her symptoms and has been admitted for psychiatric care related to her PTSD three times.

 

In 2008, Tudor’s PTSD symptoms escalated beyond her ability to manage them with therapy and medication. In consultation with her therapist, she sought and received an accommodation from Whitehall that allowed her to leave campus for one fifteen-minute break during each of her morning and afternoon “prep periods,” when she was not responsible for overseeing students. She used these breaks to compose herself away from the workplace, an environment that tends to trigger her symptoms.

 

In 2016, following a change in school administration, Whitehall began prohibiting teachers from leaving school grounds during prep periods. When Tudor attempted to do so despite the new policy, she was reprimanded for insubordination. She advised the administration as to her longstanding accommodation but was told that the documentation that Whitehall had on file was insufficient to establish her right to a reasonable accommodation. Rather than provide additional documentation, Tudor took paid sick leave and then requested leave for the fall semester under the Family and Medical Leave Act (FMLA). Her doctor identified her medical condition as “PTSD with severe anxiety and agitation.” App’x 166. During Tudor’s FMLA leave, she “was unable to teach and had to attend a 5 day a week intensive outpatient program . . . to get [her] PTSD symptoms and anxiety under control.”

 

When Tudor returned from FMLA leave in January 2017, Whitehall granted her one of her requested breaks in the morning, plus a break in the afternoon on days when a school librarian could watch her students. When a librarian was unavailable, Tudor was unable to take an afternoon break. This arrangement lasted through the 2017-18 and 2018-19 school years. Whether it violated the ADA is the subject of a separate lawsuit, in which the district court ruled that summary judgment was precluded by genuine disputes regarding Tudor’s disability and the sufficiency of the accommodation that Whitehall provided.

 

During the 2019-20 school year, neither the school librarian nor any other Whitehall employee was available to cover for Tudor for fifteen minutes during the afternoon study hall. Tudor nevertheless left school grounds for a break during her study hall period on 91 of the 100 days of school that year before classes went remote due to the pandemic. Whether or not Whitehall administrators were aware that Tudor had thus resorted to self-help, no one from the Whitehall administration expressly authorized Tudor to take these breaks. And Tudor testified that, because she considered herself to have been violating school policy, these breaks heightened her anxiety.

 

II

 

When It Comes to Accommodations/Modifications, Court’s Reasoning That It Is All about Getting the Person with a Disability to the Same Starting Line as a Person without a Disability

 

  1. 42 U.S.C. §12112(a) provides that no covered entity can discriminate against a qualified individual on the basis of disability in regards to the terms, condition, and privileges of employment.
  2. 42 U.S.C. §12111(8) defines a qualified individual as an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
  3. To establish a prima facie case for failure to accommodate under the ADA, a plaintiff has to show by a preponderance of the evidence that: 1) the employer is subject to the ADA; 2) the plaintiff was disabled within the meaning of the ADA; 3) plaintiff was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation (emphasis in opinion. This element has also been referred to as whether the plaintiff can perform the essential functions of the job with reasonable accommodations); and 4) plaintiff’s employer refused to make a reasonable accommodation.
  4. Prohibited discrimination under the ADA per 42 U.S.C. §12112(b)(5)(A), includes not making reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability unless the accommodation imposes an undue hardship on the employer.
  5. Reasonable accommodation per 42 U.S.C. §12111(9) includes job restructuring or part-time or modified work schedules.
  6. Putting all of the above provisions together, an employer, absent an undue hardship, must offer a reasonable accommodation to an employee with disability if that employee is capable of performing the essential functions of the job with or without an accommodation.
  7. Under a straightforward reading of the phrase “with or without,” the fact that an employee can (emphasis in opinion), perform her job responsibilities without a reasonable accommodation does not mean that the employee must perform that job without a reasonable accommodation. An employee may be entitled to a reasonable accommodation even if the employee can perform the essential functions of her job without one.
  8. To conclude that “with or without,” means with or without is not new ground. Other Circuits (First Circuit, D.C. Circuit, Fifth Circuit, 10th Circuit, Ninth Circuit, 11th Circuit quite arguably, Sixth Circuit in an unpublished opinion, and the Eighth Circuit), that have considered whether the ability to perform the essential functions of a job without an accommodation is fatal to an employee’s ADA or Rehabilitation Act failure to accommodate claim, have all said that it is not.
  9. The text of the ADA is unambiguous and affords no other reasonable interpretation other than if an employee with a disability is qualified to receive a reasonable accommodation under the ADA, she is entitled to a reasonable accommodation even if she can perform the essential functions without one.
  10. The ADA must be broadly construed to accomplish its purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. Saying that an accommodation must be strictly necessary to be reasonable runs counter to that purpose. If Congress had wanted employers to make only necessary accommodations, rather than reasonable accommodations, it could have said so. However, that is not what Congress did. The ADA plainly directs employers to make “reasonable accommodations.”
  11. Requiring a plaintiff to show that they are able to perform the essential functions of the job with a reasonable accommodation does not compel the reverse, i.e. requiring a plaintiff to show they are unable to perform the essential functions of the job without a reasonable accommodation.
  12. An employee may qualify for an accommodation even if it is not strictly necessary to her performance of the essential functions of the job.
  13. While the ADA does not require the perfect elimination of all disadvantage that may flow from a disability, employees who can work without accommodations are included within the category of individuals qualified for reasonable accommodations under 42 U.S.C. §12111(8).
  14. Defenses on remand are still available to the employer and they include: 1) whether the plaintiff has a disability per the ADA and what accommodations would be reasonable; and 2) whether the accommodation might impose an undue hardship. On the other hand, plaintiff’s long history of receiving her requested accommodation and defendant’s evolving policies indicating that the plaintiff’s requested accommodation may have been reasonable even though she perform the essential job functions without it may cut the other way against those defenses.
  15. Accommodations that are not strictly necessary for an employee’s performance of the essential job function may still be reasonable and therefore required by the ADA.

 

 

III

Thoughts/Takeaways

 

  1. The court inadvertently creates some confusion by talking about strictly necessary to performing the essential functions of the job as it naturally leads to arguments that the court is taking a broad reading of the ADA. It isn’t doing that at all. The court would have been better off talking about how the ADA when it comes to reasonable accommodation/modifications is all about getting the person with a disability to the same starting line as a person without a disability. The court also would have been better off talking about how the ADA demands accommodation of the disability and not the essential functions of the job. A lot of confusion could have been prevented if the court took this approach instead of the approach the court actually did. Like the other attorneys consulted by Anne Cullen in her excellent Law 360 article on this case, there was no daylight between any of us. The conclusion in this case is actually quite unremarkable because: 1) the ADA is all about getting a person with a disability to the same starting line as a person without a disability when the person with a disability makes a reasonable accommodation/modification request; and 2) it is the disability that is accommodated and not the essential functions of the job; a question that we have discussed before, such as here.
  2. Even though the court could have been more clear in its approach, this case is extremely important because it affirms that the ADA is all about getting a person with a disability to the same starting line and about accommodating the disability first and foremost.
  3. The decision is published.
  4. I don’t know if this will be appealed to the US Supreme Court. This is one of those foundational cases to the ADA that makes me wonder how the Supreme Court would decide this case even given the current configuration of the Supreme Court.
  5. While this is a Title I case, absolutely no reason exists why the court’s reasoning would not apply with equal force to Titles II and III matters.
  6. The court often uses the term “otherwise qualified,” in its opinion. After the amendments to the ADA, that is a Rehabilitation Act term. The ADA after the amendments uses the term, “qualified.” That said, the meanings of “qualified,” and “otherwise qualified,” are exactly the same.
  7. With respect to the defense it discussion in the opinion, there is no question that the plaintiff is a person with a disability. I could see a debate about logistical undue hardship, but the court suggested that it had some doubt about the viability of that defense.

I wanted to get up a short blog entry this week on a couple of points (with baseball season starting, I thought the doubleheader in the title was appropriate). I already know what I am going to be blogging on for next week. Recently there have been two developments that are germane to what we talk about in the understanding the ADA blog. The first is the Supreme Court case deciding that Biden administration regulations interpreting the gun control act to cover weapon parts kits and partially complete, disassembled, or nonfunctional frames or receivers, was proper. The second case deals with direct threat when it comes to service animals. As usual, blog entry is divided into categories and they are: Bondi v. Vanderstock; Reaves facts; Reaves discussion of direct threat and why it applies; and thoughts/takeaways. The blog entry is pretty short, so the reader will probably want to read the whole thing.

 

I

Bondi v. Vanderstock

 

In Bondi,  here, Loper Bright does come up as a citation for a point made in that case, but Loper Bright isn’t what drives Bondi v. Vanderstock (my thanks to Brian East of Disability Rights Texas for pointing out the Loper Bright gets a mention in the opinion). The fact that Loper Bright did get a mention is a strong indicator that the approach taken by the Supreme Court in Bondi may also be the kind of approach that the Supreme Court might take in a future case involving just how controlling final regulations or even guidances are. In the majority opinion, Justice Gorsuch noted that the case involved a facial challenge to the rules. He also goes out of his way to explain how the rules fit squarely within the statute. In a concurring opinion, Justice Jackson says that statutory boundaries are critical and it doesn’t matter what a judge would have done if the judge was in the agency’s shoes. The delegation of authority to the executive agency to make the rules was pretty standard. All of which suggests that when it comes to holding that future final regulations of executive agencies are controlling, the Supreme Court will be looking at just how close the fit the particular final regulation is to the applicable statute.

 

With respect to direct threat and service animals, the case is Reaves v. Immediate Medical Care, P.A., here, decided by the United States District Court for the Middle District of Florida on March 12, 2025.

 

II

Reaves Facts

 

In this case, a person with a service animal arrived at a Dr.’s appointment with her service animal. Unfortunately, the doctor was severely allergic to dogs so as to result in the doctor having great difficulty in breathing when exposed to the dog. When the plaintiff was told as much, she understandably got upset. The doctor then discussed with the plaintiff in her office possible alternatives, such as an alternative appointment with another doctor or having the appointment with the doctor she was scheduled to see while the service dog waited outside. The Sheriff’s office was called and shortly after the sheriff’s department arrived, the plaintiff left the facility.

 

III

Reaves Discussion of Direct Threat and Why It Applies

 

 

  1. Defendant attempted to offer safe alternatives to the scheduled appointment.
  2. Defendant made an individualized assessment of a direct threat to safety, including a determination of whether reasonable modifications would mitigate the threat.
  3. The ADA does not set a demanding standard for evaluating the qualifications for training a service dog.
  4. DOJ regulations and the commentary to those regulations make clear that individuals may self-train service animals without obtaining formal certification. So, whether the individual who trained the service dog is a professional trainer, is a completely irrelevant question.
  5. The Ninth Circuit has rejected a strict formal certification requirement on the grounds that the ADA defines a service dog by its function and not by its training.
  6. Only in the most extreme of situations have courts ruled that a service animal fails based upon a training.
  7. Allowing service animals in a place of public accommodation is a presumptively reasonable modification to that place of accommodation policies.
  8. While allergies are not generally a defense for permitting a service dog, a service animal may be excluded if it poses a direct threat to the health and safety of persons providing or receiving services from an accommodation.
  9. Direct threat per 28 C.F.R. §36.208(b), must be determined by an individualized assessment based on reasonable judgment relying on current medical knowledge or on the best available objective evidence in order to ascertain: 1) the nature, duration, and severity of the risk; 2) the probability that the potential injury will actually occur; and 3) whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
  10. The existence or nonexistence of a significant risk must be determined from the standpoint of the person making the decision, and the risk assessment must be based on medical or other objective evidence. The belief that a significant risk existed does not relieve a defendant of liability.
  11. Courts need to assess the objective reasonableness of the view of healthcare professionals without deferring to their individual judgments.
  12. It is unclear what special burden, if any, should be placed on the defendant to show that it has conducted an individualized assessment of an alleged safety risk, given the burden to show discrimination rests in general on the plaintiff. The 11th Circuit has placed the burden on the defendant to show that the analogous exception for modifications that would fundamentally alter the nature of a place of public accommodation’s services and facilities, and the parties did not argue the point, though both noted that the 11th Circuit had not squarely ruled on the issue. The 11th Circuit’s case law on who has the burden of proof with respect to direct threat is inconclusive. Even so, the weight of persuasive authority suggest that the burden shifts to the defendant.
  13. The doctor did offer the plaintiff an alternative appointment with either of two other doctors. She also offered to see the plaintiff if the dog were taken outside. That suffices for an individualized assessment of the risks posed by the service dog based upon the best available objective evidence. It also shows that reasonable modifications were suggested to mitigate those risks.
  14. The Dr.’s testimony regarding her severe allergy to dogs, based on her prior consultation with her doctor and her own knowledge of her allergy and the symptoms, combined with an affidavit and video testimony, were sufficient to show that the dog presented a direct threat to the doctor.
  15. The direct threat regulation requires only a reasonable judgment not a perfect one.

IV

Thoughts/Takeaways

 

  1. The Supreme Court case is instructive. It certainly looks like the Supreme Court is going to insist on a close fit with statutory language before it gives credibility to final regulations. I realized that a facial challenge was involved here, but nevertheless the analogy is apt. All this said, at least on the disability right side of things, I don’t expect much in the way of enforcement actions, guidances, or regulations under this administration going forward.
  2. For the direct threat exception to apply, everything short of direct threat must be explored first. The doctor did that here.
  3. While a service dog must be trained, the ADA does not set a demanding standard for evaluating the qualifications of the training of the service dog. As we have discussed, anyone, I did it for mine, can train their dog to be a service animal.
  4. It is unclear just how much evidence is needed to support a direct threat defense. In this case, the actions of the doctor combined with video evidence suggesting she was having an allergic reaction were persuasive to the court.
  5. It is ultimately up to the court to decide whether a direct threat exists and not to the individual healthcare professional.
  6. Who has the burden of showing direct threat is a bit unclear, but the weight of authority suggests that the burden is on the defendant.
  7. The more evidence you have to back up a direct threat claim, the better off you are. For example, the doctor could have submitted medical records describing her severe allergy to dogs.
  8. Keep in mind, the direct threat standards for Title I v. Titles II and III are not identical. Title I direct threat regulations apply to self and others, while Titles II and III direct threat regulations only apply to others. Depending upon the case, the distinction can be extremely significant.
white mini poodle sunning himself in backyard
Colonel Johnny catches some rays

I hope everyone is surviving their March madness pool, if you are participating in one. So far, I am doing okay in the pools I am in. Best of luck to everyone.

 

Today’s blog entry explores what role does the ADA play with respect to service animals in training. The case of the day is Mission Working Dogs v. Brookfield Properties Retail, Inc. a denial of summary judgment decided by the District Court of Maine on March 7, 2025, (Mission Working Dogs v. Brookfield Props. Retail, Inc., 2025 U.S. Dist. LEXIS 41134). As usual, blog entry is divided into categories, and they are: facts; court’s reasoning that injunctive relief claims can go forward; Mission Working Dogs and individual nondisabled plaintiffs have standing; court’s reasoning that Title III ADA claims and the Maine Human Rights Act claims are viable; court’s reasoning that certain defenses do not apply; false imprisonment claim survives; court’s discussion of the statutory penal damages under the Main Human Rights Act; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Mission Working Dogs is a nonprofit corporation with seven board members, one paid employee, and 53 active volunteers. It was founded in July 2022 to address the needs for service and therapy dog training in Maine. Its mission is to support the community by training service dogs for veterans and nonveterans with mental and physical disabilities so that they can live more independently. Plaintiff, Christina Gardner, is the founder and president. Prior to starting Mission Working Dogs, she was a dog trainer for approximately 10 years, training service animals, therapy dogs, and some pets. She has worked with service dog trainers in multiple states as well as with Walter Reed National Military Medical Center’s Warrior Canine Connections. Ms. Gardner is a also a person with a disability herself and has her own service dog. The volunteers with her organization are both people with and without disabilities.

 

Since 2018, the Maine Mall and its security contractor, Professional Security Consultant, Inc. has known that only two questions may be asked of individuals with service dogs pursuant to the ADA: 1) is this service animal required because of a disability?; And 2) what work or tasks has the animal been trained to perform. (This paragraph taken directly from the opinion, and as we will discuss in the thoughts/take away section, is not accurate).

 

Prior to May 7, 2022, Ms. Gardner visited the Maine Mall with her service dog multiple times. In March or April 2021, Ms. Gardner was at the Maine Mall with a disabled friend and both were accompanied by their service dog. A security guard came over to them while they were eating, and yelled at them because they had service dogs, both laying under the table at the time. The security guard told Ms. Gardner and her friend that no dogs were allowed in the Maine Mall. When they explained that their dogs were service animals, the security guard indicated that it didn’t matter because no dogs were allowed in the mall. Ms. Gardner told the security guard they were not leaving the mall. However, when the security guard departed, Ms. Gardner and her friend finished their meal and then left to avoid further confrontation.

 

Several months later, Ms. Gardner brought her service dog and a small group of individuals from her nonprofit back to the mall. The security guard detained them for 20 minutes and subjected them to a number of questions that Ms. Gardner perceived as rude and inappropriate about her health and her service dog. At no point during the interaction, were the ADA questions posed. The security guard told Ms. Gardner that if she wanted to be in the mall with her service dog, she would need to call Maine Mall security in advance to schedule a time when they could visit the mall to shop. Ms. Gardner stated they were legally allowed to be in the Maine Mall and that she was not obligated to make an appointment to shop because this was not a requirement imposed on the general public. Even after she asserted her rights, and explained the state of the law, including the two questions (taken from the opinion) the security guard continued to detain the individuals until the guard received an emergency radio call and left. During that time, Ms. Gardner was specifically threatened that she and the group would be arrested for trespassing upon the arrival of the law enforcement.  When the police did show up, they confirmed that the group would be arrested for trespassing unless they left. The group did eventually leave. Management of the mall also took positions that were clearly inappropriate considering the DOJ final implementing regulations.

 

The purpose of having the service dogs at the mall was to acclimate the dogs to the general public so they could go through different elements of public settings and therefore, practice tasks required for accessing public spaces.

 

Ms. Gardner along with another individual did go back to the Maine Mall with service dogs in training after the incident (just the two of them), and they were not asked to leave by security.

 

Mission Working Dogs training standards for service dogs meet international accreditation standards, and in order to graduate as a service dog, an animal must have at least 120 hours of training, perform more than 60 commands, pass a 14 part public access test, pass an access skill tests, and pass a restaurant test.

 

Plaintiff filed their complaint with the Maine Human Rights Commission alleging disability discrimination and retaliation and received a right to sue letter.

 

There are many more details that can be found in the opinion, but these are the critical facts for our purposes.

 

Also, the court throws out the retaliation claim because an employment dispute was not involved, and retaliation under Maine law strictly applies to the employment situation.

 

II

Mission Working Dogs Court’s Reasoning That Injunctive Relief Claims Can Go Forward

 

  1. Title III of the ADA allows both private litigants and the Atty. Gen. to seek injunctive relief. However, only the Atty. Gen. can seek such relief solely on the basis of past harm.
  2. Title III is not intended to provide redress to individuals for past discrimination unlikely to recur, and an injunction is intended to prevent future violations and not to punish past ones.
  3. A plaintiff seeking injunctive relief premised upon an alleged past wrong has to demonstrate a real and immediate threat of repeated future harm in order to satisfy the injury in fact prong of the standing test.
  4. A person with a disability need not engage in a futile gesture if such person has actual notice that a person organization covered by the ADA does not intend to comply with the provisions.
  5. The existence of a private right of action under 42 U.S.C. §12188(a)(1) does not depend upon how many attempts a plaintiff has made to overcome a discriminatory barrier, but rather depends upon whether the barrier remains in place.
  6. Viewing the record in the light most favorable to the nonmoving party, plaintiffs sufficiently pleaded a colorable threat of future harm and thereby demonstrated the possibility of redress under Title III of the ADA.
  7. The mall does not find it objectionable when a few persons with disabilities appear with their service animals, but clearly draws the line when 10 disabled persons enter its premises at once and use it to train service animals. The mall’s response to the lawsuit gives no assurance that if as many as 10 people with disabilities came to the mall in the future simultaneously to use it in order to train their multiple service animals, the mall would not again instruct them to leave and called the police to oust them on pain of criminal charges for trespassing.
  8. The court can reasonably infer that the remainder of the group have not returned to the mall because they feared the violations are ongoing and it would be futile to again seek, and potentially be denied, access because the defendants have not taken sufficient action to make it unlikely their injury would not recur.
  9. The court’s conclusion that plaintiffs have pleaded enough at this stage of the proceeding is consistent with the Supreme Court’s instruction for courts to take a broad view with standing in civil rights cases, especially where complaints by private persons are the primary method of obtaining compliance with the act, as is the case with Title III of the ADA. It is also consistent with congressional intent for the ADA to provide broad protections for persons with disabilities.

 

II

Mission Working Dogs and Individual Nondisabled Plaintiffs Have Standing to Pursue Their Claim

 

  1. The ADA defines a person broadly to encompass not only natural persons but associations and organizations. The Maine civil rights statute is even more explicit.
  2. Title III of the ADA goes further than Title II of the ADA when it defines discrimination to include conduct directed at an entity based on its relationship or association with persons with disabilities. 42 U.S.C. §12182(b)(1)(E).
  3. Mission Working Dogs undisputed mission is to support the community by training service dogs for individuals with mental and physical disabilities and therefore, clearly has a relationship or association with individuals with disabilities.
  4. Defendants do not claim that Mission Working Dogs lack standing to pursue injunctive relief due to its organizational status. Accordingly, the court assumes that its status as an organization does not prevent it from obtaining injunctive relief on behalf of its volunteers. Such a view is consistent with the Supreme Court’s directive for lower courts to take a broad view of standing in civil rights cases, including those addressing the ADA.
  5. With respect to the persons without disabilities that were part of the group, the record is clear that the three plaintiffs without disabilities were known to have a relationship or association with individuals with a known disability, and therefore have standing to pursue their claims.

 

IV

 

Court’s Reasoning That Title III ADA Claims and Maine Human Rights Act Claims Are Viable

 

  1. The language of Title III requires an adverse action against the plaintiff. Plenty of evidence exists that all of the plaintiffs experienced an adverse action when the defendant’s representatives asked the group to leave the mall. There is no reason why individuals to meet the adverse action requirement should be required to have been handling a service animal when asked to leave the mall.
  2. It is common knowledge that service animals are used by individuals with disabilities. Further, the record supports that defendant representative knew the animals were service animals.
  3. The temporal proximity between the phone call that service animals in training were loose in the store and the requests that the group leave the mall is instructive, and suggests that the group was first asked to leave soon after mall security received a phone call from one of the doors employees in the mall.
  4. The nondisabled plaintiffs open and obvious association with identified service animals in training, as well as with individuals with plainly apparent disabilities, is sufficient to conclude that the request they leave was on account of their disability. So, a jury could reasonably find that plaintiff were asked to leave a place of public accommodation minutes after receiving a phone call that service animals were running around the store.
  5. DOJ regulations and commentary make clear that individuals may self train animals without obtaining formal certification. The DOJ justified that decision by noting that a certification requirement would increase the costs of acquiring a service animal, which could have the effect of limiting access, and that the training standards were too lengthy and detailed.
  6. Absent clear guidance from the First Circuit on whether the ADA protects service animals in training, the court concludes that the Ninth Circuit and the Seventh Circuit as well as fellow district courts that have considered the issue, have well reasoned and persuasive opinions aligning with Congress’ broad mandate that the ADA eliminate disability discrimination nationwide. Undoubtedly, the dogs involved in this case were service dogs in training engaged in training as part of the methodology to be service dogs. Accordingly, the fact that they were service dogs in training does not stand in the way of the court deeming them service animals under the ADA and the Maine Human Rights Act.

 

V

Court’s Reasoning That Certain Defenses Do Not Apply

 

  1. A genuine issue of material fact exists as to whether the animals were emotional support v. service animals in training.
  2. The key question is whether the animal helps persons with disabilities perform tasks to ameliorate the ADA disability.
  3. The record supports that the dogs on the day in question were paired with and handled by individuals having ADA disabilities, including traumatic brain injury, posttraumatic stress disorder, epilepsy, a spinal cord injury, amputation, cyclical vomiting syndrome, anxiety, elder Dan Lowe syndrome, anxiety, chronic depression, autism, and POTS.
  4. The dogs performed a variety of tasks, including helping a person with a psychiatric or neurological disability by preventing or interrupting impulsive or destructive behavior. They were also being trained in the pressure therapy, which is a scientifically backed task where a dog is trained to press on certain pressure points in order to release positive hormones in their individual. They were also being trained to provide mobility assistance and/or posttraumatic stress disorder service and had already mastered some of those initial skills. Therefore, all of the animals were helping person with disabilities perform tasks to ameliorate an ADA disability on the day in question.
  5. That one of the dogs later washed out of the program does not change the conclusion that the particular dog was a service animal. At the time, that dog had mastered several disability -related tasks, including one for mobility support as well as for emotional support. The record establishes that the dog sat with the individual to provide support for her anxiety while the group waited for the police’s arrival. Accordingly, that particular dog helped a disabled person perform tasks related to an ADA disability and was a service animal within the meaning of the ADA and the Maine Human Rights Act on the day in question.
  6. The U.S. District Court for the District of Puerto Rico recently reached the same conclusion with respect to a dog trained to carry out tasks directly related to her handler’s mental conditions of severe anxiety disorder and panic disorder. In that case, the service animal’s training included detecting panic attacks, getting close to and distracting the plaintiff to help her out a panic attack quicker, and therefore providing emotional support. The dog that washed out of the program in this case was trying to serve the same purpose and the record shows that that the dog provided those services to her handler during the incident underlying this dispute.
  7. The law does not require individuals to own a service animal in order to access a public accommodation. It only requires that the dog be under the handler’s control, which is an entirely different concept.
  8. The appendix to the DOJ final implementing regulations assume that a dog’s behavior, even a well-trained service dog, is not always predictable and consistent with the regulatory language. Therefore, a public entity must give the handler a reasonable opportunity to get the animal under control.
  9. The animals running loose in one of the mall’s stores may or may not have been out of control. They were off leash, but that isn’t the end of the matter. The record does not indicate for how long the two dogs were off leash, or whether they were off leash in the within the control of their handler’s.
  10. For the out-of-control exception to apply, per 28 C.F.R. §36.302(c)(2)(i)-(ii)), the animal must be out of control and the animal’s handler does not take effective action to control it. (Emphasis in opinion). In the event the two animals did become out of control, the record does not indicate whether or not the handlers for those animals failed to take effective action to control their animals. The record does establish that at another moment in the training while the group was inside a store, the dog assigned to one of the individuals was not cooperating and needed a break, and the dog and its handler then left the store. Therefore, that suggests a reasonable inference that volunteers took steps to maintain control of their animals when needed.
  11. The record also establishes that a place of public accommodation did not give the handler a reasonable opportunity to get the animal under control.

 

VI

False Imprisonment Claim Survives

 

  1. Under Maine law, a false imprisonment claim may be brought when an actor, without authority: 1) intends to, and does in fact, confine another; 2) within boundaries fixed by the actors; and 3) the victim is conscious of the confinement or is harmed by it.
  2. Plaintiff’s position is that they were falsely imprisoned after the South Portland police had been called.
  3. The record supports that as the parties waited for the police to arrive mall management ordered a mall security guard to keep his eyes on the plaintiffs and not let them leave. Mall security was also told to not allow the group to come any further into the mall. The record indicates that some of the group held their ground to educate the public while other members of the group felt scared, not free to leave, and worried that if they did try to leave, the mall security guard would stop them. Statements were made so as to give members of the group justifiable concern that they were not able to leave and if they did leave that they would be evading an arrest warrant.
  4. Accordingly, a reasonable jury could find that the plaintiffs were intended to be confined within fixed boundaries, that the action resulted in such confinement, and the plaintiff were conscious of that confinement.

 

VII

Court’s Discussion of the Statutory of Civil Penal Damages under the Maine Human Rights Act

 

  1. 5 M.R.S. §4613, here, allows for remedies for a respondent of a civil penalty not in excess of $20,000 for a first violation and not in excess of $50,000 for a second violation, and not in excess of $100,000 for a third violation of the Maine Human Rights Act.
  2. The plain language of the statute Civil penalties refers to the victim. In fact, §4613(2)(B)(7), explicitly references a victim when discussing the penalties. Accordingly, the statutory cap on damages is for each individual plaintiff rather than the group as a whole.
  3. Such a holding is consistent with how it works in the employment context under Maine law.
  4. Such a holding is also consistent with the purpose of punitive damages as punitive damages are directed at deterring and punishing defendants and not designed to compensate plaintiff for losses.

 

VIII

Thoughts/Takeaways

 

  1. I am not licensed to practice law in Maine. It is always important to find a licensed attorney in your jurisdiction for these kinds of things, particularly so when the state law goes beyond the ADA.
  2. As we have mentioned previously, it isn’t two questions at all but rather two inquiries. So, if it is not readily apparent what the dog’s purpose is for, two inquiries can be made.
  3. I frequently see statutes at the state level as well as court opinions talking about whether one of the questions is whether the service dog is needed because of a disability. That question makes no sense because you are trying to determine whether the dog is a service dog to begin with. The final regulations don’t phrase it that way. The question is whether a dog is needed because of a disability.
  4. A person with a disability is not required to engage in a futile act with respect to claiming injunctive relief.
  5. Title III of the ADA protects persons with disabilities as well with those who associate with people with disabilities. For that matter, so does Title I and there is case law holding the same with respect to Title II as well.
  6. Adverse action gets construed broadly in accordance with the purpose of the ADA.
  7. Service animals in training may indeed be service animals if they are satisfying the two inquiries laid out by DOJ in their final implementing regulations.
  8. Anyone can train their service animal. Therefore, state statutes (such as those in Georgia for example), suggesting that only selected individuals can train a dog to be a service animal will fail, as this case clearly illustrates.
  9. As this case illustrates, the line between a service animal in training and a dog acting as a service animal can be incredibly small. The same goes for the line between an emotional support animal and a psychiatric service animal.
  10. It doesn’t matter whether the dog is participating in a program and later washes out of that program. The key is whether the dog was acting as a service animal at the time of the incident.
  11. Ownership is irrelevant. Instead, the handler’s control over the dog is the critical issue.
  12. One wonders if there isn’t a little bit of play in the joints so to speak with respect to the handler’s control in light of Loper Bright.
  13. A dog is not always expected to get it right every time because it is an animal after all. A handler must be given the opportunity to step in with respect to those situations.
  14. Other state law claims may come into play, such as false imprisonment.
  15. State law claims may allow for damages beyond the limited remedies available under Title III of the ADA. Those damages, depending upon the situation and depending upon the facts of the case, may add up in a hurry. For example, the damages in this case could be $200,000, assuming a first violation and 10 people.
  16. For figuring out whether a dog is a service animal, the key question is whether the dog helps the person with the disability by performing tasks to ameliorate the ADA disability.
  17. A large part of my practice is training. This case clearly shows the necessity for Training (for places of public accommodations as well as for the police), training, training, and more training.

Baseball is back!

Before getting started on the blog entry of the week, my daughter will be coming home for spring break this coming Friday. Her break is a week, so it may not be possible to do a blog entry next week. Also, good luck on your men and women in NCAA tourney brackets. Drake University men are the feel-good story of the year. Go Dogs!

 

This week’s blog entry comes to me courtesy of Clinical Law Professor Leonard Sandler of the University of Iowa and discusses how an employer should not deal with the accommodation process when it come to an employee requesting the use of a service animal. The case of the day is Hinton v. Dep’t of Agric., 2025 MSPB LEXIS 982. As usual, the blog entry is divided into categories and they are: facts; Merit Systems Protection Board (MSPB’s), reasoning that the termination was not supported by the preponderance of the evidence; MSPB’s discussion of remedies available; MSPB’s reasoning that appellant proved the agency failed to provide her with the reasonable accommodation; MSPB’s reasoning that appellant proved the agency discriminated against her based on her disability; MSPB’s reasoning that appellant showed that but for her protected activity, the agency would not have removed her; 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 and Also Paraphrased)

 

While serving on active duty with the United States Army in Iraq, the appellant suffered fractures to both of her feet due to an explosion. See I-4 AF, Tab 26 at 43; Tab 29 at 36-37. As a result of her injuries, the appellant has undergone many surgeries and has permanent physical limitations regarding her mobility. See id. In 2015, the appellant was diagnosed with Generalized Anxiety Disorder and Major Depressive Disorder. See I-4 AF, Tab 26 at 43. The appellant was diagnosed with Post-Traumatic Stress Disorder (PTSD) in February 2016. See id.

 

In 2015, the appellant’s medical providers recommended that she get a service canine to assist her with her mobility and mental health symptoms. See id. at 45. In June 2017, the appellant received a professionally trained service canine named [*4]  “RJ” (RJ). See id. at 45, 65. RJ is trained to provide mobility support to the appellant. See id. at 45. RJ is also trained to sense when the appellant is about to have a panic attack and, when he senses this, to provide pressure therapy to avert the attack or to shorten its length. See id. The appellant testified in a sworn declaration that RJ helped her regain her independence through the assistance that he provides. See id. RJ was trained to remain beside or within the appellant’s eyesight with or without a leash, or to remain in a specified place if she needed to walk away for a period of time. See I-4 AF, Tab 26 at 47-48; Tab 29 at 54, 102-04. RJ was trained not to cause any disturbance or to give attention to anyone other than the appellant without her permission. See I-4 AF, Tab 26 at 47-48. RJ was trained to respond to verbal commands and nonverbal cues to assist the appellant as needed. See I-4 AF, Tab 29 at 54-55. The mobility support that RJ was trained to provide to the appellant could not always be accomplished when he was leashed or restrained. See I-4 AF, Tab 26 at 48.

 

On July 17, 2017, the appellant underwent a surgical procedure on both of her feet. See id. at 70. During her recovery from [*5]  this procedure, the agency approved her to telework full-time as a reasonable accommodation from the date of her surgery until when she was released to return to the office. Id. Mr. Beckwith became the appellant’s supervisor in November 2017, around the time that she returned to work in the office after her period of extended telework. See I-4 AF, Tab 26 at 46; Tab 29 at 46-47. When the appellant returned to work following her surgery recovery, the agency permitted her to bring RJ to work with her daily, with no restrictions, as a reasonable accommodation. See I-1 AF, Tab 1 at 34; I-4 AF, Tab 26 at 45, 72; Tab 29 at 160. Thereafter, the appellant was allowed to work from home as needed to accommodate medical appointments and PTSD flare-ups. See I-4 AF, Tab 26 at 46.

 

From July to November 2018, the appellant worked in a temporary duty assignment in Austin, Texas. While in this assignment, the appellant continued to perform her duties for the Raleigh office remotely. See I-4 AF, Tab 26 at 46-47; Tab 29 at 45-46, 112-13. RJ continued to accompany the appellant to work every day in this assignment without incident. See I-4 AF, Tab 26 at 46-47.

 

The appellant was not made aware of any concerns [*6]  or complaints about RJ’s presence at the office, either in Raleigh or Austin, until after her return to the Raleigh office in November 2018. See I-4 AF, Tab 29 at 112. During the year-long period that RJ accompanied the appellant to the office starting in November 2017, the agency did not impose any rules or guidelines that applied to RJ’s presence in the agency’s offices. See I-4 AF, Tab 26 at 46; Tab 29 at 160.

 

Shortly after the appellant’s return to the Raleigh office, Mr. Beckwith presented her with a “Service Canine Agreement” (agreement) dated November 26, 2018. See I-4 AF, Tab 26 at 72-73. The agreement set forth various rules governing RJ’s presence at the office, some of which the appellant felt were inappropriate. See I-4 AF, Tab 26 at 48, 72-73. Most notably, the agreement required RJ to be kept on a leash at all times, which made it difficult or impossible for him to perform some of the tasks that the appellant required, particularly those related to assisting her with her mobility. See I-4 AF, Tab 26 at 48, 72-73. Additionally, given the appellant’s mobility limitations, the act of having to hold a leash has a negative impact on her ability to walk and could cause her to [*7]  lose her balance or fall. See id at 48. The appellant verbally expressed her concerns about the restrictions in the agreement to Mr. Beckwith, but he led her to believe that if she did not sign the agreement immediately, she would not be permitted to bring RJ to work with her the following day. See id. This caused the appellant to sign the agreement despite her concerns. See id.

The next day, appellant submitted a formal appeal of the agreement. The person handling that appeal denied the appeal and did not discuss the appellant’s issues with the provisions of the canine agreement before making her decision. The person handling the appeal had never seen a canine service agreement before reviewing this one. She determined that the agreement was acceptable without change by primarily doing some Internet searches. She concluded based on the results of her Internet search that the provisions of the agreement were similar to those that commonly appear in such agreements.

 

From there, things went from bad to worse. USDA expanded appellant’s cubicle and installed a baby gate. However, the baby gate had a plastic strip across the bottom creating a safety hazard for the appellant’s mobility limitations and also triggered her PTSD when the gate was closed and when her supervisor repeatedly slammed the gate closed when he saw it open.

 

The day after her supervisor was contacted by an agency EEO counselor regarding appellant’s informal complaint, the supervisor was actively soliciting information from employees regarding the appellant’s alleged violations of the service canine agreement. The supervisor eventually issued notice of violations of that canine agreement. He eventually placed the appellant on administrative leave demanding that the appellant could return to work if she furnished medical documentation indicating that she did not present a danger to herself or others. The appellant then responded to her supervisor with a letter from her doctor stating that she was cleared to return to work and indicating that telework would be optimal under the circumstances. Her supervisor denied that request.

 

Within a week, her supervisor issued a notice of proposed removal and also a notice stating that the appellant was being placed on administrative leave pending the outcome on the agency’s decision on her termination.

 

 

In response to the notice of her termination, the appellant explained her belief that the agreement was inappropriate as well as her attempts to work with her supervisor to comply with its requirements. She also explained that the leash requirement of the agreement was completely unnecessary and interfered with the way the service animal performed job. She also explained that she had attempted to meet with the agency’s reasonable accommodation team to discuss her concerns and come to a solution, but those meetings were canceled twice and never took place. Even further, she stated that her union had requested a mediation between her and her agency management team regarding these matters, but the agency never responded to the request.

 

The agency subsequently proposed an alternative discipline agreement as a resolution of the notice of termination. However, the appellant notified the agency she would not sign the proposed agreement because she believed the rules contained within the service canine agreement she signed and had allegedly violated were inappropriate. She also claimed she signed the service canine agreement under the threat of being denied the assistance of her service animal.

 

She then requested reassignment but was subsequently informed that the reassignment search had been unsuccessful, and so her accommodation request for reassignment was denied (it turns out that a reassignment search had never been done).

 

In response to a notice of proposed removal for the inability to maintain a regular work schedule, appellant submitted letters from her physicians stating the need for her service dog and why the service dog was needed. Unfortunately, those letters were sent to an incorrect email address. Eventually, the matter winds up before the Merit Systems Protection Board (MSPB), which reverses the termination on ADA grounds. They did note that the appellant did not establish a due process violation.

 

II

MSPB’s Reasoning That the Termination Was Not Supported by the Preponderance of the Evidence

 

  1. When the employee’s removal agency’s charge of medical inability to perform is based on a current medical condition, the agency has to prove either a nexus between the employee’s medical condition and observed deficiencies in her performance or conduct, or a high probability, given the nature of the work involved, that her condition may result in an injury to herself and others. That standard means that the agency needs to establish that the employee’s medical condition prevents her from performing her core duties (essential functions per the ADA), of her position. Core duties are not marginal functions, but are the reason the position exists.
  2. In determining whether the agency’s burden is met, the MSPB considers whether a reasonable accommodation exists that enables the person to perform those core duties with or without reasonable accommodations.
  3. A substantial portion of appellant’s extended absence cited in the notice that she was unable to come to work was due directly to the agency’s actions or lack of actions.
  4. Similarly, the agency’s attempt to rely on FMLA certification paperwork does not fly either because it does not support the proposition that she was incapacitated from performing her duties beyond the 12 week period indicated.
  5. Appellant never took the position that telework was required by her medical restrictions according to the record.
  6. A readily apparent reasonable accommodation existed, i.e. permitting her to work with her service animal without unnecessary requirements and restrictions.
  7. Her service animal was professionally trained to assist her with coping with her symptoms of PTSD as well as providing assistance regarding her mobility issues resulting from the long-term impact separate service-connected foot injuries. The service animal was also trained to remain under her control with or without a leash. Finally, she worked successfully with the service animal for many months without any concerns.
  8. The person affirming her supervisor’s decision with respect to upholding the canine agreement did so without having any discussion with the appellant.
  9. “Professional atmosphere,” is not a defense when a reasonable accommodation is possible and has already proven effective.
  10. It was only her supervisor’s insistence on imposing the leash requirement and the inflexibility in making adjustments afterwards when those requirements proved ineffective, that led to appellant’s extended absence.

 

III

MSPB’s Discussion of Remedies Available

 

  1. To obtain the full measure of relief available, the appellant must show the discrimination was a but for cause of the employment decision. Citing to Bostock, which we discussed here, the but for causation standard does not require discrimination to be the sole cause of the contacted action, only a necessary one. Further, there may be more than one but for cause. In essence, the but for test directs a court to change one thing at a time and see if the outcome changes. If it does, but for cause is present.
  2. Discrimination can either be shown by direct evidence, circumstantial evidence, or some combination of direct and circumstantial evidence.

 

IV

MSPB’s Reasoning That Appellant Proved the Agency Failed to Provide Her with the Reasonable Accommodation

 

  1. Establishing a prima facie case means showing: 1) the appellant is an individual with a disability and that the action appealed was based upon her disability; and 2) the appellant is a qualified individual with a disability. That is, the appellant satisfies the requisite skill, experience, education, and other job-related requirements of the position and can perform the essential functions of the position with or without reasonable accommodation.
  2. When an employee informs the agency of the need for an accommodation, the agency must engage in an interactive process to determine an appropriate accommodation.
  3. Once an appellant establishes a prima facie case, the agency then bears the burden of demonstrating an undue hardship on its operations. Once they do that, it is up to the appellant to show pretext.
  4. The record is clear that the appellant has a disability as a result of her service-connected injuries to both of her feet as she has undergone many surgeries and has permanent physical limitations regarding her mobility. She also discussed in her testimony how her physical conditions substantially limit major life activities of standing and walking as well as lifting. She also testified that she had various mental health conditions as well. Accordingly, appellant is a person with a disability under the ADA.
  5. Appellant is also a qualified/otherwise qualified person as she demonstrated that she could perform the essential functions of her job if the agency had simply continued to accommodate her in the manner that it did for a full year without imposing unnecessary requirements and restrictions. She showed that the issues leading to her extended absence were directly related to her supervisor’s unilateral decision to withdraw the effective accommodation and impose an unworkable requirement that the service animal be subject to constant restraint while in the office. The record also shows that the agency failed to engage the appellant in an interactive process after she informed management of the problems caused by the installation of a baby gate at her cubicle entrance.
  6. The undue hardship argument doesn’t fly because it was the agency’s failure to provide the appellant with an appropriate accommodation that precipitated her absence from work. It also ignores the fact that the agency’s own actions initiated and extended the appellant’s absence from work.
  7. Telework is a red herring because a plausible accommodation was available that would have allowed the appellant to perform her duties while working in the office.
  8. Appellant’s supervisor admitted in his deposition that appellant’s service dog never exhibited any aggressive conduct.
  9. “Professional atmosphere in the office,” concerns are insufficient to demonstrate the existence of an undue hardship.

 

V

MSPB’s Reasoning That Appellant Proved the Agency Discriminated against Her Based on Her Disability

 

  1. The agency’s disposition of the appellant’s removal was improper because her disability did not prevent her from performing an essential function of her position with reasonable accommodation.
  2. The agency cannot disconnect the appellant’s disabilities from its reason for removing her. That is, if the appellant did not suffer from her disability, she would not have found herself in the situation she did. As such, she furnished direct evidence of discrimination.
  3. Since the agency did not advance an independent nondiscriminatory reason for her removal and the appellant was a qualified individual with a disability, causation is present.

 

VI

MSPB’s Reasoning That Appellant Showed but for Her Protected Activity, the Agency Would Not Have Removed Her

 

  1. Appellant engaged in protected EEO activities on numerous occasions by making numerous requests for reasonable accommodation for her disabilities. She also submitted informal EEO complaints as well.
  2. The quick response of her supervisor after engaging in the protected activities to document her noncompliance with the leash agreement are highly suspicious, and suggests that her supervisor’s decision to take the actions leading directly to appellant’s absence were motivated by retaliation for the appellant’s initiation of EEO complaint activity against him.
  3. The preponderance of the evidence also demonstrates that her supervisors took a cavalier attitude toward the appellant’s reasonable accommodation requests during the months leading up to her removal, and that the denial of her requests, and her ultimate removal, were essentially preordained.
  4. Based upon meeting notes, it is pretty clear that as of the time the reassignment requests was made, it had already been determined that the appellant’s request to be reassigned was going to be denied and the process for removing her was going to start.
  5. The notice that the reassignment search had been unsuccessful was in fact not true because the reassignment search had never been performed in the first place.
  6. Plaintiff demonstrated that the agency management viewed her reasonable accommodation requests from the beginning of her absent from work as an impediment to their ultimate goal of removing her. That when combined with the highly suggestive timing of her supervisor’s actions initiating the appellant’s absence from work notice, provide a strong basis for concluding that retaliation existed for making the EEO charges.

 

VII

Thoughts/Takeaways

 

  1. If an accommodation is working, be very careful about taking it away. Even if it is justified to take it away, and it was not in this case, the odds of litigation increase astronomically by doing that.
  2. This case clearly goes with the line of thought that it is the disability being accommodated and not the essential functions of the job that are being accommodated. See this blog entry.
  3. For figuring out what is a service animal, it is helpful to look at the DOJ final implementing regulations on service animals.
  4. Always engage in the interactive process.
  5. Clearly, USDA had not read my blog entry about the do’s and don’ts of the interactive process, which is here.
  6. There is some language in the opinion about the ability to safely perform the job. I ignored that language because that simply isn’t how the ADA works. The question is whether a person can perform the essential functions of the job with or without reasonable accommodations without being a direct threat to self or others. Direct threat is a high standard to meet. See this blog entry for example.
  7. “Professionalism concerns,” is not sufficient for refusing to engage in the interactive process or refusing to make reasonable accommodations.
  8. The blog entry on Bostock, which we discussed here, is must reading.
  9. It is a bad idea for an employer to respond in adverse ways when a reasonable accommodation request is made. Whether an adverse action is even required at all in a failure to accommodate case is an ongoing debate. In light of a recent Supreme Court opinion, which we discussed here, a strong argument exists for not requiring an additional adverse action when a failure to accommodate is involved.
  10. It is also a bad idea for an employer to say they did something, such as investigating the idea of reassignment, when no such investigation ever occurred.
  11. Training, training, training by ADA knowledgeable individuals is always important. I suggest annual training at least and make sure that training is comprehensive and not superficial.
  12. Utilize ADA knowledgeable legal counsel when called for. For example, the canine service agreement in this case should have been reviewed by legal counsel. Knowledgeable ADA legal counsel would have spotted the problems immediately and most probably would have had agency personnel engage in the interactive process immediately after that.