Before getting started on the blog entry for the week, I want to wish all those celebrating, a happy Jewish new year.

 

The blog entry of the week comes from an unpublished decision from the 11th Circuit decided on September 19, 2022, Sugg v. City of Sunrise. It deals with the following questions: is it sufficient to establish a disability if it is just the plaintiff that testifies; is a failure to accommodate a separate cause of action; and does a failure to accommodate case require an adverse action. Keep in mind, that this court holds explicitly that a plaintiff by himself can establish the disability. As the case is decided, the only conclusion that can be reached is that a failure to accommodate cause of action in the 11th Circuit is a separate cause of action that does not require an adverse action beyond the failure to accommodate. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiff properly exhausted administrative remedies with respect to his retaliation claim, but the claim fails because of the lack of causation; court’s reasoning that a plaintiff may establish an ADA disability with his own testimony; court erred by ignoring plaintiff’s own testimony about his request for reasonable accommodation; court’s reasoning that plaintiff’s claim that he was terminated because of the disability failed for lack of causation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

In May 2014, Sugg was officially hired as the Chief Electrical Inspector for the City of Sunrise. He was employed on a probationary basis for a nine-month term. City of Sunrise probationary employees can be terminated at any time and for any reason during their probationary period, so long as the reason is not illegal or unlawful.

 

In October 2014, about five months into the probationary period, Sugg suffered a heart attack. He was hospitalized for four days and was on leave for two weeks following his discharge. Two days into his recovery, Sugg’s name was no longer listed on the website under the title of Chief Electrical Inspector. In its place was the name of Brian Epstein, a Broward County employee. The City of Sunrise claims the probationary period is vital to its employment process and its purpose was to “evaluate [Sugg’s] performance as the City’s Chief Electrical Inspector and to determine whether [he] was a good fit to maintain future employment with the City.” Sugg claims that the City of Sunrise had a “Prolonged Observation Period” through his employment with Broward County, and that his probationary employment status was just a formality.  According to the City of Sunrise, this change was required as the Board of Rules and Appeals (“BORA”) regulations require a Chief Electrical Inspector to be in place at all times, so the City of Sunrise needed to appoint someone sometime during his recovery, Sugg was decertified as a Chief Electrical Inspector. According to the City of Sunrise, this decertification was required because Christopher Augustin—who took over as Building Official during Sugg’s recovery—discovered that Sugg was missing a necessary BORA certification to serve as Chief Electrical Inspector. And Augustin also testified that Sugg’s certification had lapsed, and he encouraged Sugg to fill out the necessary paperwork to become recertified.

 

Upon his return to work, Sugg “noticed that management was treating him differently.” Sugg testified that Steve Busick, a City Plans Examiner and Inspector, told him he “better watch [his] back” and “they’re after you.” Sugg’s doctor provided a note that stated he could return to work on October 22, 2014, “on light duty.” Sugg says he gave a copy of the doctor’s note to the newly appointed Building Official, Chris Augustin, and to then-Director Lubelski’s assistant. Sugg followed up with an email to Lubelski stating he was back at work on “light duty” and that he gave the doctor’s note to Lubeski’s during Sugg’s absence. But Sugg contends that the BORA regulations also provide that the City Plans Examiner “shall” fill in during a Chief Electrical Inspector’s absence. The City Plans Examiner at the time was Ed Wanamaker. Sugg contends that other Chiefs had been absent longer than he, without being replaced or removed from the website. Lubelski replied later that day, welcoming Sugg back and stating, “If there is anything you need, please let me know.” The City of Sunrise had a policy of allowing employees to accept donated leave time from other employees. Although Lubelski asked Sugg if he would like employees to donate leave time, Lubelski told him one week later that he did not qualify to receive leave donations. Sugg claimed several other employees had received donated leave time, including an employee who had a heart condition. Sometime during the remaining four months of his probationary employment Sugg was involved in an altercation with a City Plans Examiner, Ed Wanamaker. Sugg had performed an employment evaluation of Wanamaker on behalf of the City and Wanamaker was displeased with his evaluation. The conversation got heated; both men claim that the other acted aggressively and they both feared the other would become violent.

 

Having been decertified since October 2014, Sugg completed the necessary paperwork to once again be listed as the City’s Chief Electrical Inspector in January 2015. BORA approves such recertifications, and Sugg’s recertification was on its consent agenda for February 12, 2015. At the meeting, Sugg was recertified as the City’s Chief Electrical Inspector without issue. That same day, Sugg emailed then-Department Director Shannon Ley and his direct supervisor, Augustin, wanting to know if February 13, 2015, which was the last day of his probationary period, would be his last day of employment, given that he had not received any further information from Human Resources about approving his permanent employment. Without a response to his email, he was discharged by the City on February 13, being told only that he was “not a good fit.” Ley was the department Director at that time and thus the final decisionmaker on Sugg’s termination, though she made the decision with input from former Director Lubelski and Augustin. The City claimed that Ley, Lubelski, and Augustin all agreed that Sugg “was not a good fit” based on Sugg’s alleged use of “vulgar and offensive language in the workplace,” “abrasive encounters with co-workers,” “receipt of customer complaints,” and Sugg’s “significant confrontation with Wanamaker where he aggressively got in Wanamaker’s face.” However, Sugg claims that two people later told Sugg he was terminated because of his heart attack: Broward County Building Official Jack Fisher and the previous Building Official, Dennis Pustizzi.

Sugg testified that he did not know that his heart condition could be a disability under the ADA until after he left the City’s employ. About a month before filing his EEOC charge, Sugg was listening to the radio and heard about an employee who was fired because of his heart condition; he “knew at that point that [he] was covered” by the ADA. Sugg filed a charge with the EEOC about seven months after his discharge, on September 15, 2015.

 

The EEOC charge form included a series of boxes listing different kinds of discrimination under the heading “DISCRIMINATION BASED ON (Check appropriate box(es).)” Sugg checked the “disability” box and left the “retaliation” box unchecked. In the area titled, “THE PARTICULARS ARE,” he wrote:

 

“I am a qualified individual with a disability. I was admitted to the hospital on 10/9/14. I was immediately removed from my position as Chief Electrical Inspector. When I returned to work, I requested but was denied a reasonable accommodation on 11/9/14 from Mark Lubelski, Assistant City Manager. My duties were taken from me, I was demoted and I was terminated on 2/13/15. I believe I was discriminated against because of my disability in violation of The Americans With Disabilities Act of 1990, as amended.”

 

On August 28, 2019, Sugg received a “Notice of Right to Sue” from the Civil Rights Division of the U.S. Department of Justice about his EEOC charge. He filed his initial complaint on November 19, 2019. His amended complaint claimed he exhausted administrative remedies with the EEOC and alleged two counts under the ADA: Count I for disability discrimination and Count II for retaliation for exercising his rights under the ADA. The City filed a Rule 12(b)(6) motion to dismiss on both counts. The district court denied the City of Sunrise’s motion to dismiss the disability discrimination claim (Count I) but granted its motion to dismiss the retaliation claim (Count II) for failure to exhaust his administrative remedies by failing to check the retaliation box on his EEOC charge. The district court did not reach the City’s alternative argument that Sugg failed to properly plead his retaliation claim. The City of Sunrise moved for summary judgment on Sugg’s disability discrimination claims. The district court granted the City’s motion for summary judgment after finding that (1) Sugg failed to produce sufficient evidence that he was disabled under the ADA; (2) Sugg’s “self-serving declaration and his own deposition testimony” were not sufficient to establish a genuine dispute as to whether he requested a reasonable accommodation, and moreover his purported requests were not “specific and identifiable”; and (3) there was no evidence of discriminatory intent for Sugg’s termination. Sugg timely appealed both the dismissal of his retaliation claim and the grant of summary judgment for the City of Sunrise on his discrimination claims.

 

II

Court’s Reasoning That Plaintiff Properly Exhausted Administrative Remedies with Respect to His Retaliation Claim, But the Claim Fails Because of Lack of Causation.

 

  1. Courts are extremely reluctant to allow procedural technicalities to bar claims brought under discrimination statutes. Accordingly, courts have held that the scope of an EEOC complaint should not be strictly interpreted.
  2. A party whose EEOC charge is only based on discrimination can also claim retaliation in a complaint filed in court if the facts alleged in the EEOC charge could have reasonably been extended to encompass a claim for retaliation because they were completely intertwined with the complaint of discrimination.
  3. Defendant agrees that plaintiff’s ADA retaliation claim could have reasonably grown out of his charge for discrimination.
  4. The 11th Circuit has held that a lapse of three months between the protected activity and the retaliation is too long to satisfy the causation element of a retaliation claim absent other evidence. In this case, plaintiff fails to allege any facts supporting the claim that other evidence existed aside from the three-month proximity to his termination.

 

III

Court’s Reasoning That a Plaintiff May Establish Disability with His Own Testimony

 

  1. The ADA directs that disability be construed in favor of broad coverage.
  2. Per 29 C.F.R. §1630.2 (j)(1)(ii), an impairment rises to the level of a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
  3. Substantial limitation must be construed broadly in favor of expansive coverage.
  4. Per 29 C.F.R. §1630.2(j)(1)(i)-(iii) and 42 U.S.C. §12102(4)(B), determining whether an impairment is substantially limiting does not demand extensive analysis.
  5. Major life activities include all kinds of activities and also includes the operation of a major bodily function, including but not limited to circulatory (also called cardiovascular) functions. 42 U.S.C. §§12102(2)(A), (B); 29 C.F.R. §§1630.2(i)(1)(i), (ii).
  6. 11th Circuit precedent requires that a plaintiff’s evidence of disability include the timing, frequency, and duration of his impairments in order to survive summary judgment.
  7. In the absence of any citation to a case from the 11th Circuit, the court declined to find that a diagnosis based solely on self-described complaints or subjective pain cannot qualify as a disabling impairment under the ADA.
  8. As the regulations accompanying the ADA do not require medical evidence to establish a disability, plaintiff’s own testimony is sufficient where it would allow a jury to reasonably determine that the plaintiff was a person with a disability under the ADA.
  9. Plaintiff presented declaration from two doctors to establish that he was a person with a disability. In particular, he submitted declarations from his cardiologist and his primary care physician.
  10. Even though the declarations from his doctors were rather conclusory, plaintiff’s own testimony was not conclusory at all. He testified that he was diagnosed with heart disease at the emergency room following his heart attack. Heart disease satisfies the low threshold of impairment under the ADA.
  11. Plaintiff also testified how his heart disease and corresponding heart attack limited his daily activities. In particular he talked about how his ability to lift things was so limited that he could not lift anything and that he could not move things like pieces of drywall. He also testified that he could only go like 15 minutes spurts before having to stop to catch his breath. Therefore, plaintiff specifically alleged enough non-conclusory information so that a jury could reasonably find that his heart disease is substantially limited in the major life activities of at least lifting and walking.

 

IV

Court Erred By Ignoring Plaintiff’s Own Testimony about His Request for Reasonable Accommodation

 

  1. The ADA explicitly provides a cause of action to disabled otherwise qualified individuals denied reasonable accommodations.
  2. The term “discriminate against a qualified individual on the basis of disability,” includes not making a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an employee in the absence of an undue hardship on the operation of the business.
  3. Triggering an employer’s duty to provide a reasonable accommodation does mean that the plaintiff must make a specific demand for such an accommodation.
  4. The plaintiff has the burden of showing that the accommodation allows him to perform the job’s essential functions-i.e. that the accommodation is reasonable.
  5. While the 11th Circuit has not determined precisely what form a demand for an accommodation must take, whatever the precise standard may be it is not a demanding one.
  6. A plaintiff must at least provide enough information so that the employer can be fairly said to know of both the disability and the desire for an accommodation.
  7. The record shows that around November 10, 2014, plaintiff requested to work from home but the City denied that request without any consideration or dialogue. His deposition testimony was quite clear that he requested to work from home, though he would have preferred to stay in the office on light duty. His deposition testimony was also clear that he supported those requests by referring to his disability. Accordingly, plaintiff made more than one specific demand for accommodation and notified the City of Sunrise multiple ways to accommodate his limitations. He also established the reasonableness of the accommodation by showing that the applicable regulations explicitly provided that the chief electrical inspector did not have to be personally present at the governmental department as long as that person was available by telephone, computer, etc. and could perform their duties.

 

V

Court’s Reasoning That Plaintiff’s Claim That He Was Terminated Because of His Disability Failed for a Lack of Causation

 

  1. Plaintiff does not allege that there was any change in his compensation and his attorney conceded at oral argument that his duties never changed either. It was a demotion in name and not in practice.
  2. Plaintiff does not claim that his request for leave was ever denied.
  3. Plaintiff’s claim that two other individuals told him that he was fired because of his disability does not hold up on further analysis because one does not work for the defendant and the other died before his deposition.

 

VI

Thoughts/Takeaways

 

  1. I usually don’t focus on the conclusion of an opinion because it just states in legalese the result of a court’s reasoning. However, the conclusion of the court in this case is very important. More specifically, the court said:

 

For all these reasons, we affirm the district court’s dismissal of Sugg’s retaliation claim, not for failure to exhaust administrative remedies, but for failing to state a plausible claim for relief. We reverse the district court’s grant of summary judgment on his reasonable accommodation theory of discrimination because genuine issues of fact exist as to (1) whether Sugg was disabled and (2) whether he requested a reasonable accommodation. And we affirm summary judgment on all other theories of discrimination because Sugg could not show discriminatory intent. REVERSED IN PART AND AFFIRMED IN PART.

 

A plain reading of this conclusion can only mean that a failure to accommodate cause of action is a separate cause of action and does not require an adverse action to support it because the failure to accommodate claim survived while the discrimination based upon disability failed due to lack of an adverse action.

 

  1. In this particular case, the plaintiff was able to essentially supplement the declarations of his doctors with his own testimony so as to establish a disability. As a matter of best practices on the plaintiff side, it is a really good idea for declarations of healthcare providers to be as specific as possible with respect to any physical or mental impairment and how that physical or mental impairment limits the plaintiff’s major life activities.
  2. A plaintiff is able to establish a disability under the ADA directly with his/her/they testimony.
  3. There is a case pending before the 11th Circuit that was just argued asking the question whether a failure to accommodate claim requires an additional adverse action or whether the failure to accommodate claim is an adverse action by itself/does not require an adverse action. It will be interesting to see what that panel of the 11th Circuit decides in light of Sugg. The disposition of Sugg in my opinion, can only be read to say that a failure to accommodate claim is a separate cause of action and that no additional adverse action besides the failure to accommodate is necessary for the claim to go forward. If the panel hearing the case that was just argued decides otherwise, it will be interesting to see where it goes from there because you then arguably have two different panels of the same circuit reaching opposite conclusions. In that situation, most circuits will automatically grant a rehearing en banc.
  4. Sugg is an unpublished decision and will be interesting to see whether it gets mentioned by the panel hearing the case just argued about whether a failure to accommodate claim requires a separate adverse action. It will also be interesting to see whether that pending decision is designated for publication or not.
  5. The ADA applies to probationary employees.
  6. EEOC charges are not strictly construed against the charging party.
  7. Magic words are not required to trigger the interactive process. It does not take a high bar to trigger the interactive process.
  8. The Circuit Courts are split on whether a failure to accommodate is a separate cause of action. Courts also go both ways on whether failure to accommodate claims require an adverse action beyond the failure to accommodate.
  9. On a personal note, I can say that as a person with a disability who makes reasonable modification/accommodation requests for my own disabilities all the time, that the failure to accommodate always has an adverse effect on me. For example, my stress levels go way up if I have to stay in a hotel room by myself that is not meaningfully accessible to a deaf person (happens to me all the time when I travel. In fact, I am amazed when it doesn’t happen to me when I travel). It is not only a matter of stress but it creates a dangerous situation during the overnight hours. If a failure to accommodate requires an independent adverse action, do I even have standing because title III does not allow for damages. Similar thought process for an entity that takes federal funds as a result of Cummings, which we discussed here. It may or may not be a similar thought process (§504 is spending clause legislation but title II is not), for a title II entity as well.

Today’s blog entry is a case sent to me by Prof. Leonard Sandler, a clinical law professor at the University of Iowa. The case of the day is Wilds v. Akhi LLC decided on July 29, 2022 by Magistrate Judge Jones of the Northern District of Florida. It deals with the question of what happens when a person with a service animal shows up at the federal courthouse with his service animal not on a leash. Plaintiff alleged that the animal was under his control and could not be on a leash in order to best compensate for his disability as he has blackouts. The security agency refused to let him in the federal courthouse. So, he sues alleging violation of the ADA and state law claims. As usual, the blog entry is divided into categories and they are: Federal Buildings Are Exempt from the ADA and a Federal Courthouse Is Not a Place of Public Accommodation; While Plaintiff Has a Constitutional Right of Access to the Courts, He Cannot Enforce That Right against the Defendants under §1983 or under Bivens; While No Private Cause of Action Exists under Florida Statute §1413.08(3), Plaintiff Does Have the Ability to Sue for Damages for Violations of the Florida Civil Rights Act; and Thoughts/Takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Federal Buildings Are Exempt from the ADA and a Federal Courthouse Is Not a Place of Public Accommodation

 

  1. Only one Federal District Ct. has addressed the question of whether a federal courthouse constitutes a place of public accommodation under title III of the ADA. That court held that a federal courthouse was not a public accommodation.
  2. The lack of case law on whether a federal courthouse constitutes a public accommodation under title III of the ADA is likely because federal governmental buildings are generally exempt from the ADA.
  3. Federal buildings are governed by the Architectural Barriers Act of 1968.
  4. The Architectural Barriers Act does not provide a private right of action and courts have refused to imply one.
  5. An aggrieved person under the Architectural Barriers Act may file a complaint with the U.S. Access Board regarding any alleged Architectural Barriers Act violation.
  6. Courts allowing a private cause of action under the Architectural Barriers Act, have insisted that a litigant must first exhaust his administrative remedies with the Architectural Barriers Board before filing suit in federal court. Accordingly, a remedy the plaintiff has is to file a complaint with the Access Board.

 

II

While Plaintiff Has a Constitutional Right of Access to the Courts, He Cannot Enforce That Right against the Defendants under §1983 or under Bivens

 

  1. The defendants, the security companies providing security services to this particular federal court, are not state actors.
  2. The United States Supreme Court has refused to extend Bivens to private entities.
  3. Defendants are federal contractors and §1983 does not provide a cause of action against a federal official or contractor.
  4. By its own terms, §1983 only applies to state actors acting under color of state law and not to federal actors acting under color of federal law.
  5. A Bivens claim is available when a federal actor violates a plaintiff’s federal rights while acting under color of federal law. However, the United States Supreme Court has refused to extend Bivens liability to private entities that contract with the federal government.
  6. Since the purpose of Bivens is to deter individual federal officers from committing constitutional violations, inferring a constitutional tort remedy against a private entity is not possible.
  7. The defendants are private security companies providing security services for U.S. District Court for the Northern District of Florida in the Gainesville division under a federal contract.
  8. The Supreme Court has said that merely private conduct, no matter how discriminatory or wrongful, does not constitute state or federal action and is excluded from §1983 or Bivens.

 

III

While No Private Cause of Action Exists under Florida Statute §413.08(3), Plaintiff Does Have the Ability to Sue for Damages for Violations of the Florida Civil Rights Act

 

  1. Florida courts have refused to recognize a private right of action under §413.08 of the Florida statutes.
  2. Plaintiff may seek relief under Florida statute §760.01.
  3. The Florida Civil Rights Act provides a mechanism to obtain private relief and damages under §413.08 because §760.07 states that any violation of any Florida statute making discrimination unlawful gives rise to a cause of action for damages.
  4. Since plaintiff is proceeding pro se, the court construes a state law claims for violations of §413.08(3) to arise under the Florida Civil Rights Act.
  5. Whether plaintiff can bring a Florida Civil Rights Act claim against defendants denying him access to a federal building is a question that should be decided by Florida courts and not the federal court because plaintiff has no federal claim.
  6. A court should decline to exercise supplemental jurisdiction over state law claim when the court is dismissing all federal causes of action.
  7. In a footnote, the court noted that even if a federal courthouse was somehow considered to be a place of public accommodation under title III, the particular defendants sued in this case do not own, lease, or operate it. Instead, federal courthouses are owned and operated by the Gen. Services Administration of the United States government. Also, very few courts have considered whether security officers can be characterized as owners, lessors, or operators under title III of the ADA and those that did decided in the negative.
  8. In another footnote, the court noted that the Supreme Court recognize a constitutional right of access to the courts arising under the 14th amendment in the case of Tennessee v. Lane. Florida courts have recognized a number of affirmative obligation flowing from that principle, including: the duty to waive filing fees and in certain family law and criminal cases; the duty to provide transcript to criminal defendants seeking review of their conviction; and the duty to provide counsel to certain criminal defendants. Each of those cases make clear that ordinary considerations of cost and convenience alone cannot justify a State’s failure to provide individuals with meaningful right of access to the courts.
  9. In another footnote, the court notes that the Florida Civil Rights Act has exhaustion requirements.

IV

Thoughts/Takeaways

 

  1. I cannot see how federal courthouses can be a place of public accommodation.
  2. Courts are split on whether the Architectural Barriers Act allows for a private cause of action. At a minimum, a person would need to exhaust administrative remedies first before filing such a suit, assuming such a suit flies in the first place.
  3. Bivens and §1983 are of no help to a plaintiff faced with a similar situation.
  4. State law is something plaintiffs lawyers should look to when dealing with disability discrimination matters. They sometimes go further than federal law or are applied more broadly.
  5. About a month after this decision, the U.S. District Court accepted the magistrate’s report without objections from the parties.
  6. The General Services Administration is an executive agency. So, one wonders why a plaintiff when faced with this situation would not pursue a claim under §504 of the Rehabilitation Act. See for example, Bartell v. Grifols Shared Servs. NA, 1:21CV953 (M.D.N.C. Aug. 15, 2022)-holding that the Rehabilitation Act and the ADA get interpreted the same way when it comes to service animals.
  7. The court did direct the clerk to conduct a reasonable investigation, whatever that means, to see whether plaintiff’s request that he be permitted to enter the courthouse building with his service dog unleashed could be accommodated.

Before we get to the blog entry of the week, a housekeeping matter. I will be out of the office from Friday evening and returning late Tuesday. So, a blog entry for the week after this will come up later in that week rather than earlier to middle of the week as is usually the case.

 

Our case of the day is Luke v. State of Texas, here, a published decision from August 19, 2022. The case asked the question about whether denying a culturally deaf individual, Deaf, an interpreter during his criminal proceedings violates the ADA. The Fifth Circuit holds that it does. As usual the blog entry is divided into categories and they are: facts; court’s reasoning on sovereign immunity and that Luke did adequately state a claim for violating title II of the ADA; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Like many Deaf individuals, Luke has trouble speaking and reading English. He also has difficulty lip reading. In order to effectively communicate, Luke requires an American Sign Language (ASL) interpreter.

 

Such an interpreter was never provided during Luke’s case for marijuana possession. No interpreter was provided the night of his arrest during a traffic stop, even though his mother, who was watching the scene via FaceTime, urged the officers to provide him with one. No interpreter was present when Luke was booked and detained at Lee County Jail. Nor was one present when a Lee County justice of the peace arraigned him and released him on bond. No interpreter ever explained to Luke his legal rights, the charges against him, or the terms and conditions of his bail.

 

The county court said that an interpreter would be provided for the hearing at which Luke was going to plead guilty in exchange for one year of probation. But the court did not follow through on that commitment. Instead, it insisted that Luke’s mother, who has only basic knowledge of sign language, interpret for her son during the hearing. Thus, no qualified interpreter ever explained to Luke the terms of his probation.

 

Luke’s experience on probation, which began with Lee County’s Community Supervision Corrections Department but was later transferred to San Jacinto County’s, was more of the same. Neither department provided Luke with an interpreter for his meetings with probation officers. Just like at the hearing, the probation officers instead had Luke’s mother interpret for him. No qualified interpreter ever explained to Luke what happened during those meetings or whether he was satisfying the terms of his probation.

 

Contending that the lack of interpreters left him “isolated and confused” during the criminal proceedings, Luke sued the following entities under Title II of the Americans with Disabilities Act: (1) Lee County, which operated the jail and court; (2) the Community Supervision and Corrections Departments of both Lee County and San Jacinto County (the “Supervision Departments”), the Texas state agencies that oversaw his probation; and (3) the State of Texas. Luke sought injunctive relief against the Supervision Departments and the State of Texas and compensatory and nominal damages from all defendants.

 

The District Court wound up concluding that the supervision department enjoyed sovereign immunity. It also granted Lee County’s motion for judgment on the pleadings for the same reason. It granted the state of Texas motion to dismiss for improper service of process because Luke serve the wrong Texas official. Luke appealed.

 

II

 

Court’s Reasoning on Sovereign Immunity and That Luke Did Adequately State a Claim for Violating Title II of the ADA

 

 

  1. Lee County is a political subdivision of Texas and not an arm of the State. Therefore, it does not enjoy state sovereign immunity.
  2. To make out a claim under title II of the ADA, Luke had to show: 1) that he is a qualified individual with a disability; 2) that he was excluded from participation in, or denied the benefits of, services, program, or activities for which the public entity is responsible, or was otherwise being discriminated against; and 3) that such discrimination is because of his disability.
  3. Luke’s deafness makes him a qualified individual with a disability.
  4. Luke can show that he was discriminated against because of his disability as both Lee County and the Supervision Departments knew he was Deaf yet failed to provide an accommodation despite multiple requests for an interpreter.
  5. Title II regulations, 28 C.F.R. §35.160(b)(1), lists auxiliary aids, which include qualified interpreters, as reasonable accommodations that public entities have to provide when necessary.
  6. Luke also alleged that he was denied the benefit of meaningful access to public services. In particular he alleged that he was not able to understand his legal rights or effectively communicate throughout his proceedings. Not being able to understand a court hearing or a meeting with the probation officer is by definition a lack of meaningful access to those public services.
  7. Citing to Tennessee v. Lane, the court said that a core purpose of title II is for public entities to accommodate persons with disabilities in the administration of justice.
  8. A theory that Luke was not denied a public service because he successfully completed his probation anyway is entirely inconsistent with the ADA. Nothing in the ADA’s text or the case law applying it requires Luke to have alleged a bad outcome. There is a good reason for that because lack of meaningful access itself is the harm under title II regardless of whether any additional injury follows. Luke’s title II injury is not being able to understand the judges and probation officers as a defendant who is not Deaf would.
  9. Under the District Court’s reasoning, the state could refuse to provide an ASL interpreter for a culturally deaf individual’s trial and then avoid title II liability if the defendant is acquitted. It simply doesn’t work that way and courts have rightly rejected that position.
  10. While it is true that the positive outcome of Luke’s criminal case may affect his damages, that does not allow courts to escape their ADA obligations.
  11. The argument that Luke’s mother served as an interpreter means there was no ADA violation doesn’t wash either for several reasons: 1) his mother knows only basic sign language. So, his mother’s involvement would not have fully informed him of the proceedings or otherwise provide the meaningful access the ADA requires; and 2) if one considers 28 C.F.R. §35.160(c)(2) public entities cannot force a person with a disability’s family member to provide the interpretation services for which the entity is responsible.
  12. Since Luke sufficiently stated a title II claim, his claim against Lee County gets past the pleading stage.
  13. With respect to the Supervision Departments, Luke clearly satisfied the first step of the sovereign immunity abrogation elements in that he clearly stated violations of title II. However, it remains for the District Court on remand after full briefing and consideration to determine whether the misconduct also violated the 14th amendment and if not, whether Congress’s abrogation of sovereign immunity to that particular conduct was nevertheless valid.
  14. With respect to the State of Texas, Luke did indeed serve the wrong officer. Therefore, Texas is dismissed from the case.
  15. The District Court erred when it said that Luke failed to specifically allege facts supporting compensatory damages. Luke alleged that not being able to understand the proceedings against him caused him fear, anxiety, indignity, and humiliation.
  16. In a footnote, the court noted that it is a separate issue whether compensatory damages are available to title II plaintiffs at all because of Cummings v. Premier Rehab Keller, which we discussed here. It is up to the District Court on remand to decide what effect if any Cummings has on Luke’s ability to recover emotional distress damages under title II. Regardless, Luke also seeks nominal damages.
  17. In another footnote, the court noted that meaningful access is a standard that comes from the Supreme Court in a Rehabilitation Act case. However, the ADA and Rehabilitation Act are interpreted the same way. So, that standard applies equally to the ADA.

 

III

Thoughts/Takeaways

 

  1. For sovereign immunity to apply, an entity must be an arm of the State. Political subdivisions do not get the benefit of sovereign immunity.
  2. Communication with a culturally deaf individual must be effective communication as we discussed in this blog entry.
  3. Tennessee v. Lane did hold that when it comes to accessing the courts people with disabilities are at least in the intermediate scrutiny category if not higher with respect to equal protection jurisprudence.
  4. The lack of meaningful access itself is the harm under title II and an injury is not required. So, by way of analogy you might also be able to argue that a failure to accommodate in a title I case does not require an adverse action.
  5. Escaping damages under the ADA is not the same as escaping liability.
  6. When we discussed Cummings v. Premier Rehab Keller, a question I raised was whether damages under title II are ever in play because title II’s remedies are hooked into the Rehabilitation Act remedies. This case specifically mentions that Cummings may preclude damages for violations of title II of the ADA. The court did note that nominal damages would still be in play even so. It will be interesting to see how this plays out.
  7. Both title II and title III of the ADA work off a meaningful access standard.
  8. Remember, as we discussed here, that ADA causation is undoubtedly not sole cause.
  9. As we discussed here, the ADA is a nondelegable duty.

We just moved our daughter into college this week and are back home now. Now, the roller coaster begins. So far so good. One thing I did realize is that I now have about an extra 15 hours per week I calculated. My brother says that I should get a new hobby, but I already love legal writing. I do look forward to having the ability to do more trainings and to take on more matters.

 

When a case comes down, it usually doesn’t have much of a shelf life before people move on to other things. William v. Kincaid, here, is not such a case. I am still seeing people blogging on it, and I am still getting Google alerts on this case even though it came down August 16, 2022. By now, you may already know what this case is. The case is the Fourth Circuit published decision saying that gender dysphoria is protected under the ADA. There was also a statute of limitation question and the question of whether gross negligence had been sufficiently alleged. We are not going to focus on those two questions. Finally, there was a concurrence/dissenting opinion as well. As with the majority opinion, we will just focus on the ADA part of the concurrence/dissent. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that gender dysphoria is not covered by the gender identity disorder exclusion in the ADA; court’s reasoning that gender dysphoria in this case may very well be based upon a physical impairment; Judge Quattlebaum’s concurrence/dissent; and if I were on the panel and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Kesha Williams, a transgender woman with gender dysphoria who had not undergone trans feminine bottom surgery, spent six months incarcerated in the Fairfax County Adult Detention Center. Though prison deputies initially assigned her to women’s housing, they quickly moved her to men’s housing when they learned she was transgender. There, she experienced delays in medical treatment for her gender dysphoria, harassment by other inmates, and persistent and intentional misgendering and harassment by prison deputies. Following her release from the detention center, Williams filed a § 1983 action against the Sheriff of Fairfax County, a prison deputy, and a prison nurse alleging violations of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, the United States Constitution, and state common law. The district court dismissed the case, holding that the complaint failed to state grounds for relief with respect to some claims and that the statute of limitations barred others.

 

For those interested in the specific facts, the opinion goes into greater detail. Considering you are talking about a transgender inmate who had not undergone bottom surgery even though she had been on hormone for years, I can’t say any of things that happened to her were particularly surprising.

 

II

 

Court’s Reasoning That Gender Dysphoria Is Not Covered by the Gender Identity Disorder Exclusion in the ADA

 

  1. The ADA, 42 U.S.C. §12211(b), excludes from the ADA coverage transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorder not resulting from physical impairments, and other sexual disorders as well as compulsive gambling, kleptomania, pyromania, or psycho active substance use disorders resulting from current illegal use of drugs.
  2. In 2008, Congress amended the ADA and stated that the ADA needs to be construed in favor of broad coverage of individuals to the maximum extent permitted. They also said that courts need to construe the ADA as amended as broadly as possible, which also means that courts must construe the exclusions narrowly.
  3. The text of the ADA does not define the term gender identity disorders and does not mention gender dysphoria at all.
  4. Looking at the meaning of the ADA’s terms at the time of its enactment, leads to the conclusion that gender identity disorders did not include gender dysphoria.
  5. In 1990, the medical community did not acknowledge gender dysphoria either as an independent diagnosis or as a subset of any other condition.
  6. In 2013, the American Psychiatric Association decided to remove gender identity disorders from the DSM manual. At the same time it added a diagnosis of gender dysphoria, which did not exist as a diagnosis in 1990.
  7. The very fact of revision mean that a meaningful difference exists between gender identity disorder and gender dysphoria and that difference is more than just semantic. In fact, the definition of gender dysphoria differs dramatically from the now rejected diagnosis of gender identity disorder. Rather than focusing on gender identity, gender dysphoria focuses on clinically significant distress felt by some of those experiencing an incongruence between the gender identity and their assigned sex. In a footnote, the court notes that WPATH (World Professional Association for Transgender Health), standard also focuses on the discomfort or distress caused by a discrepancy between a person’s gender identity and the persons assigned sex at birth.
  8. Being trans alone does not sustain a diagnosis of gender dysphoria under the DSM 5 as a code for a diagnosis of gender identity disorder under the earlier versions of the DSM.
  9. The Fourth Circuit and other courts have explained that a diagnosis of gender dysphoria unlike that of gender identity disorder concerns deals primarily with distress and other disabling symptoms rather than simply being transgender.
  10. Not only are gender identity disorder and gender dysphoria characterized by different symptoms, they affect different populations. That is, gender dysphoria is a disability suffered by many but certainly not all transgender people, since many transgender individuals are completely comfortable living with an incongruence between the gender identity and their assigned sex.
  11. Gender nonconformity is not in itself a mental disorder.
  12. The ADA excludes from its protection anything falling within the plain meaning of gender identity disorders as the term was understood at the time of its enactment. However, nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a gender identity disorder excluded from ADA protection.
  13. Given Congress expressed instruction that courts construe the ADA in favor of maximum protection for those with disabilities, it is not proper to adopt an unnecessarily restrictive reading of the ADA. To do otherwise would mean that the court would pencil in a new condition into the list of exclusions in the ADA. It would also erase Congress’ command to construe the ADA as broadly at the text permits.
  14. A growing number of district courts have reached the conclusion that gender dysphoria and gender identity disorder are not at all the same thing.

 

III

Court’s Reasoning That Gender Dysphoria in This Case May Very Well Be Based upon a Physical Impairment

 

  1. The ADA does not define the phrase, “physical impairments.”
  2. EEOC has promulgated regulations, 28 C.F.R. §35.108(b)(1)(i), defining the term expansively as any physiological disorder or condition affecting one or more body systems, such as neurological and endocrine. The court must defer to the EEOC’s reasonable interpretations of ambiguous terms in the ADA.
  3. Plaintiff has alleged sufficient facts to render plausible the inference that her gender dysphoria results from physical impairments. In particular, she alleged that medical treatment for her gender dysphoria consisted primarily of hormone therapy that she used to effectively manage and alleviate the gender dysphoria she experienced. She also alleged that she had received that medical treatment for 15 years.
  4. In her complaint, she stated that gender dysphoria for her required hormone treatment. In fact, she said as much in her complaint upwards of 10 times. In her complaint, she explained that hormone treatment enabled both feminization or nationalization of the body and said that without it (the prison failed to provide that treatment), she experienced emotional, psychological, and physical distress. These allegations sufficed to raise the reasonable inference that plaintiff’s gender dysphoria resulting from the physical impairment.
  5. Medical and scientific research identifies a possible physical basis of gender dysphoria, and the DOJ has agreed that this emerging research renders the inference that gender dysphoria has a physical basis sufficiently plausible to survive a motion to dismiss.
  6. Courts typically lacks sufficient expertise in physiology, etiology, psychiatry, and other potentially relevant disciplines to determine the cause or causes of gender dysphoria. So, dismissing a case based on such unknowns is wholly premature and speculative.
  7. Statutes should be interpreted to avoid a serious constitutional question.
  8. The court has little trouble concluding that a law excluding from ADA protection both gender identity disorders and gender dysphoria discriminates against transgender people as a class in violation of the equal protection clause of the 14th
  9. The Fourth Circuit has held that intermediate scrutiny applies to laws discriminating against transgender individuals. Accordingly, such laws fail unless they are substantially related to a sufficiently important governmental interest. Further, to survive intermediate scrutiny the state must provide an exceedingly persuasive justification for the law.
  10. One does not need to look too closely to find evidence of discriminatory intent toward transgender people in the enactment of §12211(b). The evidence of such intent include: 1) the provision listing gender identity disorders appears alongside pedophilia, exhibitionism, and voyeurism. Such a grouping implicitly brands all transgender individuals as equivalent to criminals thereby making it more difficult for them to be treated in the same manner as everyone else; and 2) the legislative history of the ADA reflects the moral judgment implicit in that list. In fact, Senator Helms specifically mentioned on the floor that people in wheelchairs were one thing but how in the world can you not exclude transvestites? Senator Armstrong said something similar as well.
  11. By carving a safe harbor for discrimination out of broad antidiscrimination protections, the ADA exclusion bears a striking resemblance to the Colorado law at issue in Romer v. Evans, which repealed municipal antidiscrimination ordinances to the extent they prohibited discrimination on the basis of LGB conduct practices or relationships.
  12. In Romer, the Supreme Court held that laws of that kind raise the inevitable inference that the disadvantage imposed born of animosity toward the class of persons affected.
  13. The Fourth Circuit has previously recognized that the ADA’s exclusion of gender identity disorders itself is evidence of such discriminatory intent.
  14. In light of the basic promise of equality animating the ADA, there is no legitimate reason why Congress would intend to include from the ADA’s protections transgender individuals suffering from gender dysphoria.
  15. The only reason for the exclusion that can be gathered from the text and the legislative record is a bare desire to harm a politically unpopular group, which simply cannot constitute a legitimate governmental interest.
  16. There are two ways to avoid the serious constitutional question. First, the argument that gender dysphoria does not constitute a gender identity disorder for purposes of the ADA exclusion. Second, the argument that gender dysphoria results from a physical impairment. Plaintiff has properly alleged both of those claims.

 

IV

Judge Quattlebaum Concurrence/Dissent

 

Judge Quattlebaum concurs in the majority’s decision concerning the district court’s dismissal on statute of limitations grounds. He also concurs in remanding the Eighth Amendment deliberate indifference claim against Wang, the Fourteenth Amendment Equal Protection claim against Garcia and the gross negligence claim against Wang. He also agrees with the majority that the district court erred in concluding that Garcia followed the prison’s policies and, therefore, could not have committed gross negligence as a matter of law and joins with the majority in remanding that claim as well. And because the district court granted Sheriff Kincaid’s motion for summary judgment as to the gross negligence claim based on the theory of respondeat superior as to Garcia’s conduct, he would likewise vacate and remand that portion of the order as it relates to Sheriff Kincaid.

 

  1. As noted in the majority opinion, the ADA specifically excludes, “gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.
  2. The ADA does not define gender identity disorders. For that matter, the phrase has not been interpreted by the Supreme Court or any of the other circuit courts. Accordingly, one has to look to the understanding of gender identity disorders at the time the statute was written, 1990.
  3. In 1990, the DSM was in the third, revised edition. That edition of the DSM provided that the essential feature of gender identity disorders was an incongruence between the assigned sex and gender identity. It added that even in mild cases of gender identity disorder, discomfort and a sense of inappropriateness about the assigned sex are experienced. In fact, the first diagnostic criteria for gender identity disorder under the DSM at the time was persistent or recurrent discomfort and a sense of inappropriateness about one’s assigned sex.
  4. Plaintiff’s allegations that referred to discomfort or distress caused by the discrepancy between her gender identity and her sex assigned at birth would have fallen into the gender identity disorder exclusion as understood at the time the ADA was written.
  5. Even accepting plaintiff’s allegations as true does not require turning a blind eye to the plain language of the statute. It also does not permit the plaintiff to use a word and declare it means just what the plaintiff chooses to have it mean.
  6. From 1990 to today, gender identity disorder has been understood to include distress and discomfort from identifying as a gender different from the one assigned at birth.
  7. In a footnote, Judge Quattlebaum notes that gender identity disorder and gender dysphoria are often cross-referenced or referred to as synonyms in a variety of different publications.
  8. The text of 42 U.S.C. §12211(b)(1) excluded gender identity disorders not resulting from a physical impairment. The plural use of the term “disorders,” should not be overlooked because it indicates that Congress considered this class to include more than one diagnosis. In fact, the DSM in effect at the time specified certain gender identity disorders and also included a category of gender identity disorders not otherwise specified.
  9. Whether gender dysphoria is a new diagnosis or replacement for gender identity disorder isn’t the point because the plain language of the statutory exclusion excludes gender identity disorders, which at the time included an alleged disability involving discomfort or distress caused by a discrepancy between one’s gender identity and the sex assigned at birth.
  10. To say that gender identity disorder did not extend to those who experience distress and discomfort from that identification is not consistent with the actual language of the DSM in effect at the time. It is also further undermined by consistent references to gender identity disorder and gender dysphoria in dictionary medical publication from 1990 to the present. It is also inconsistent with the statutory language excluding gender identity disorders contained within the ADA itself.
  11. Evidence exists that the DSM-5’s change from gender identity disorder to gender dysphoria primarily involved nomenclature so that it could avoid the stigmatizing effect of the existing nomenclature.
  12. Gender identity disorders meaning in effect at the time the ADA was enacted, and its evolution to the meaning of words and phrases does not modify the statute’s terms. It is the legislature with the responsibility of amending statutes and not courts or the APA or WPATH. That is, the focus must be on what gender disorders meant in 1990 and not what the American Psychiatric Association or other organizations have done since. Those organizations do not have the power to effectively modify statutes passed by Congress and signed into law by the president.
  13. Judicially modifying the meaning of a statute because of society’s changing attitudes not only invades the proper space for the legislature, it also turns a statute into a moving target.
  14. The amendments to the ADA are of no help because the policy of interpreting it liberally does not justify ignoring the plain words of limitation.
  15. The amendments to the ADA did not touch the exclusion of gender identity disorders in the ADA. Therefore, the understanding of that phrase from 1990 should be the guiding principle.
  16. The majority makes quite a big deal about avoiding a constitutional issue, but before you can even use that principle the statute itself must be ambiguous, which is not the case. Further, the constitutionality of §12211(b) has not properly been brought before the court as the plaintiff did not plead that issue or raise it before the district court.
  17. With respect to the equal protection issue, plaintiff did not raise that issue before the district court. So, no record was developed about whether the exclusions are discriminatory, the government’s interest in the exclusions, or the relationship of the exclusions to those governmental interests.
  18. The court should not wade into a constitutional question on its own when it was never presented to the district court.
  19. Plaintiff’s reliance on gender identity disorder being sufficiently alleged because of physical impairment does not help her either. In particular, the amended complaint does not identify any part of plaintiff’s body that is impaired or how or why it became impaired. She does not even allege a physical impairment generally.
  20. Plaintiff’s allegation that an individual with gender dysphoria may require feminization or masculinization of the body through hormone therapy and/or surgery in order to effectively alleviate or treat the condition does not imply the existence of a pre-existing physical impairment. At most, it implies that hormone therapy and/or surgery may be helpful to treat the condition.
  21. 12211(b)(1) requires that a person’s gender identity disorder result from a physical impairment. That means the physical impairment has to come first.
  22. What Williams really seems to be arguing is that for transgender individuals experiencing stress and discomfort about their gender incongruity, the physical impairment is that for those individuals were assigned a gender at birth and have the accompanying physical characteristics different from the gender that they identify with. However, that cannot be an impairment for purposes of the exclusion because it would read “not resulting from physical impairment,” out of the statute. After all, anyone with a gender identity disorder or gender dysphoria under the respective diagnostic statistical manual was born with physical characteristics differing from the gender they identify with.

 

V

If I Were on the Panel and Thoughts/Takeaways

 

  1. If I were on the panel, I would agree with both the majority and the dissenting opinion. I would agree with the majority with respect to a question of fact being present that the plaintiff has a physical impairment that needs investigating for the reasons laid out by the majority in its opinion. Particularly significant, is that the plaintiff had been on hormone therapy for 15 years and that therapy worked very well for her. I would agree with the dissent, that gender dysphoria must have been included within the definition of gender identity disorders at the time the ADA was enacted for the reasons laid out by the dissenting opinion. I would also agree with the majority that the gender identity disorder exclusion from the ADA is undoubtedly unconstitutional. As a result of Bostock, which we discussed here, transgender individuals, as noted by the majority, fall within an intermediate scrutiny class. As the majority opinion discusses, prejudice was clearly a big factor in the gender identity disorder exclusion. Between the legislative history and Bostock, there is little doubt in my mind that the gender identity disorder exclusion is no longer constitutional.
  2. Both the majority and dissent agree that the exclusion must be viewed as it existed in 1990. However, they reach opposite conclusions from there.
  3. The decision came down August 16, 2022. So, it is simply too early to tell what is next. It wouldn’t surprise me to see a rehearing en banc petition filed. I set a law 360 alert for this case. Today, 8/31/2022, it alerted me that the individuals sued in the case did request an en banc rehearing.
  4. Transgender and being gay or lesbian are undoubtedly subject to intermediate scrutiny in light of Bostock. Persons with any other disability may be subject to rational basis scrutiny or not in light of Board of Trustees of the University of Alabama v. Garrett and Tennessee v. Lane. For a group of individuals that silo terribly, which people with disabilities do, it is unfortunate that equal protection jurisprudence now sets persons with disabilities against each other.

The blog entry that goes up for this week will be the last one before the week of August 29 as we will be taking our daughter off to college this coming Friday. She moves in the following week. So, no blog entry the week after this one and this one counts for the week of August 16. The blog entry of the day is from the Sixth Circuit decided on August 12, 2022. The case is Post v. Trinity Health-Michigan, a published decision from the Sixth Circuit, which can be found here. The case involves two questions. First, when an interference claim is made what ADA title applies? Second, if you have an ADA claim, can you use a §1985 claim instead? As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that interference claims relate back to the title of the ADA that the case involves; §§1985, 1985(3) are of no help to plaintiff; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

St. Joseph Hospital hired the plaintiff in 1982 to work as a nurse in its emergency room. For the next two decades, she served in various roles at the hospital and became a certified Registered Nurse Anesthesist in 2004. In 2013, the hospital outsourced their anesthesiology services to the Wayne State University Physician Group and her decade-long employment with the hospital came to an end. In October 2016, plaintiff did not notice a protruding monitor that had not been put in its proper place and she slammed her head against it. The impact lacerated her right temple and caused a severe concussion giving her slurred speech and difficulty walking. After the accident, she suffered from postconcussion syndrome. For months, she weathered through debilitating headaches and severe fatigue. She also had problems concentrating for extended periods and trouble speaking. She was forced to take a leave of absence from work and undergo significant rehabilitation.

 

By March 2017, her condition had improved enough that her doctor authorized her to gradually begin working again under certain restrictions. Her doctor recommended that she practice administering anesthesia in a simulation room before treating real patients again. When one of her case managers sought to have her use the hospital’s simulation lab, the chair found it absolutely inappropriate for the plaintiff to use the lab because the hospital did not have the equipment or personnel to support the proposed practice sessions.

 

The other issue was her credentials. The hospital required her to submit a form signed by the chair of the hospital’s anesthesiology department. However, that Dr. refused to sign the form because of her leave of absence from the group. Until that Dr. cleared her return, the hospital could not process her application. The clearance never came and the University Physician Group, her employer, terminated her for budgetary reasons before she returned to work. The group later filed for bankruptcy. She asserted a claim in the bankruptcy case seeking damages for termination alleging that the group had engaged in age and disability discrimination. The bankruptcy court said insurance coverage existed so the bankruptcy court would not be able to take the claim. She then sued the hospital alleging that the hospital interfered with her right to a reasonable accommodation under the ADA and for conspiring with University Physician Group to deprive her of her ADA employment rights. At no point did she allege that the University Physician Group and the hospital were joint employers.

 

II

Court’s Reasoning That Interference Claims Relate Back to the Title of the ADA the Case Involves.

 

  1. The interference provisions of the ADA is found at 42 U.S.C. §12203(b).
  2. 42 U.S.C. §12203(b) does not identify the party barred from engaging in unlawful interference.
  3. Although the interference provision does not list potential defendants, the remedies clause of 42 U.S.C. §12203 clarifies the confusion. What that clause says, is that a variety of different remedies apply depending upon whether title I, title II, or title III is involved.
  4. Plaintiff alleged that the hospital interfered with rights granted by the ADA’s employment provisions.
  5. When you follow the dancing ball of the remedies provisions of 42 U.S.C. §12203 with respect to employment, you find that it takes you to the remedies under title VII of the Civil Rights Act of 1964.
  6. Title VII’s remedies and procedures permits an aggrieved party to file an administrative charge with the EEOC against four different entities, one of which of them is an employer. The aggrieved party then has to receive a right to sue letter from the EEOC before proceeding in court.
  7. Title VII permit suits only against employers and a few other irrelevant entities.
  8. Title I of the ADA adopts title VII’s remedial framework, and the ADA’s interference provision adopts the employment subchapter’s remedial framework when a suit raises an employment complaint. Accordingly, the statutory chain of cross-references leaves no doubt that the interference provision in §12203(b) permit suits only against employers when an employment situation is involved.
  9. Title I of the ADA makes it unlawful only for a covered entity to discriminate against a qualified individual on the basis of disability. The phrase “covered entity,” mirrors the list of potential defendants in title VII-an employer, employment agency, labor organization, or joint labor management committee.
  10. The reason why the interference provision lacks a single subject is because §12203 applies to title II and title III entities as well.
  11. That the interference provision relates to title I when dealing with an employment situation also follows from a Sixth Circuit decision involving the retaliation provisions of the ADA. The Sixth Circuit has previously held that employees may sue only their employers for violating the retaliation section. While that case was a Rehabilitation Act case, the Rehabilitation Act incorporates the ADA’s retaliation standard. It wouldn’t make much sense if the ADA’s retaliation section and the interference section reach opposite conclusions on the question of whether only an employer could be sued when an employment situation is involved, especially since the Rehabilitation Act section prohibiting retaliation appears to have even broader language within it than the ADA section prohibiting retaliation.
  12. Other cases cited by the plaintiff are not helpful to the plaintiff’s cause because they involved a different title of the ADA, whether it be title III or title II.
  13. It is possible that the plaintiff could have alleged some type of joint employer theory. However, plaintiff failed to argue that the hospital should be treated as an employer and thereby forfeited the Sixth Circuit’s consideration of any joint employer theory.
  14. A plaintiff can assert a claim of interference with employment related rights under §12203(b) only against an employer or the few other entities listed in 42 U.S.C. §2000e-5(b).

 

II

42 U.S.C. §1985(3) and §1985 are of No Help to the Plaintiff

 

  1. The Sixth Circuit has held that §1985(3) claims reach only conspiracies targeting a person based on a classification that receives heightened scrutiny under the Supreme Court’s equal protection framework. However, conspiracies grounded in disability-based discrimination are not covered because disability discrimination is only subject to rational basis review.
  2. While other circuit courts have held that §1985 can reach disability discrimination, only the Supreme Court or the Sixth Circuit en banc can overrule prior Sixth Circuit decisions.
  3. The Supreme Court has cautioned against allowing a plaintiff to use §1985(3) to enforce a right in another statute when the remedial limits in that statute would bar the plaintiff from suing directly under it. Since the ADA adopts title VII’s remedial framework for employment related claims, this logic applies to this case.

 

III

Thoughts/Takeaways

 

  1. Under this case, interference claims relate back to the type of matter the case involves. So if it is an employment situation, interference relates back to title I of the ADA. If it is a situation where accessing nonfederal governmental entities is involved, then interference claims would relate back to title II of the ADA. Finally, if it is a situation where a place of public accommodation is involved, the interference claim would relate back to title III of the ADA. Each of those titles have their own remedies and their own statutory and regulatory scheme.
  2. It isn’t unusual for independent contractor groups to staff hospitals. It also is not unusual for courts to find that such an arrangement to the public means that the person who works for the independent contractor group is also an employee of the hospital. This case certainly teaches the lesson that the existence of joint employers need to be considered when filing a complaint against a physician group that a hospital has outsourced operation to.
  3. One of the most common ways I see interference claims come across my desk in my practice is when a college professor interferes with what the student and disability services has worked out with respect to the student being accommodated. This case does not rule out interference claims arising from such situations because that situation would involve a title II entity and therefore relate back to title II. Whether the people interfering with the student’s right to receive accommodations could be sued individually may depend upon the jurisdiction. See this case for example, which we also discussed here.
  4. I am not sure I understand why the plaintiff could not pursue her claim against the group that went bankrupt because the physician group had sufficient insurance. If they had sufficient insurance, I wonder why the case could not go forward outside of the bankruptcy court because the bankrupt’s estate would not be jeopardized. The only reason I’m even aware of this issue is because I dealt with this very issue in a case that I was involved with in my first job as a licensed attorney out of law school. I am assuming that the physician group filed under Chapter 11, which is the chapter of the bankruptcy code I am familiar with. If they filed under a separate chapter of the bankruptcy code, then perhaps what happened in the bankruptcy court makes sense.
  5. With respect to §1985, it isn’t accurate to say that disability discrimination is only subject to rational basis review. As we know from Board of Trustees of the University of Alabama v. Garrett and from Tennessee v. Lane, the level of equal protection review that a person with a disability receives depends upon the facts of each individual case.
  6. It is accurate to say that there is plenty of case law out there saying that if an ADA claim exists, you can’t use §1985 type claims as a way to circumvent the ADA.
  7. Interesting that the case has no mention of FMLA, which has job protection features, and I have no idea why that is the case.
  8. Why wasn’t a claim alleging violations of title III of the ADA filed per the case we discussed here?
  9. For the last couple of years, a large part of my practice has involved acting as a consultant to healthcare professionals involved in disability discrimination matters (employment, licensing, credentialing, etc.). One of the things that I have seen from that experience, is that lawyers representing healthcare professionals need to realize that it is not unusual to have title I, title II, and title III of the ADA all in play simultaneously. Lawyers ignore that fact at their client’s peril.
  10. The dancing ball of the retaliation and interference provisions alluded to above can lead to some very interesting results. For example, a line of cases exists saying that only equitable remedies exist for retaliation under title I of the ADA because of the dancing ball. See this case for example.

Before getting started on our blog entry for the week, a couple of housekeeping matters are in order. First, my daughter is off to college a week from Friday. Things are very exciting and terrifying here at the same time. Accordingly, next week is going to be crazy and the week after that even more so. I may or may not get a blog entry up next week, but I will definitely not be getting up a blog entry up the week after that.

 

The case for this week is Martinez v. Cot’n Wash, a published decision from the Second Appellate District of the Court of Appeals of the State of California. The case involves an Internet only business that got sued by a person with a screen reader for an inaccessible website. Before bringing suit, plaintiff sent a demand letter. Notably, defense responded with their belief that the Internet site complied with the applicable WCAG level AA and asked for clarification from the plaintiff. Plaintiff then sues anyway. The Court of Appeals holds that the gateway principal rules in California and without a gateway the plaintiff has no case. As usual, the blog entry is divided into categories and they are: court’s reasoning that plaintiff’s claim fails because the website is not a place of public accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning That Plaintiff’s Claim Fails Because the Website Is Not a Place of Public Accommodation

 

  1. An inaccessible website is facially neutral so that the Unruh act is not activated on grounds of intentional discrimination.
  2. The listed categories in 42 U.S.C. §12181(7) mainly reference physical locations.
  3. The implementing regulations similarly define a public accommodation by referring to a “facility,” which is in turn defined, at 28 C.F.R. §36.104, as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock… or other real or personal property, including the site where the building, property, structure, or equipment is located.”
  4. A website is not identified in any of the statutory categories, which is not surprising as no commercial websites existed when the ADA was enacted in 1990. However in the 30 years since, websites have become central to American life.
  5. The regulatory agency charged with implementing the ADA for title II and title III (DOJ), of the ADA has previously endorsed the applicability of the ADA to title III websites but has not provided specific regulatory guidance.
  6. The federal courts are all over the place when it comes to whether a website must be meaningfully accessible to people with disabilities.
  7. There are two main views of whether websites are places of public accommodation. The first view is that websites are places of public accommodations under the ADA. That is the view of the First, Second, and Seventh Circuits. Courts adopting this view have relied on the service establishment category of the statutory definition, and particularly travel services being contained in the illustrative list of these establishments. That is, it would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons purchasing the same services over the telephone or by mail are not. These courts also emphasized the critical nature of websites for transacting business today, and that Congress made it clear that the ADA was meant to adapt to changes in technology.
  8. The second view is that websites are not places of public accommodations under the ADA, but a denial of equal access to a website can support an ADA claim if the denial has prevented or impeded a disabled plaintiff from equal access to, or enjoyment of, the goods and services offered at the defendant’s physical facilities. This is the view of the Third, Sixth, Ninth, and 11th These courts have said that essentially all of the categories listed in 42 U.S.C. §12181(7) describe a physical location. That said, these courts also recognize that a website can be important to providing access to defendant’s place of public accommodation and to a disabled person’s ability to use and enjoy services provided those places if a nexus exists.
  9. California courts have consistently gone with the nexus theory, or gateway, when it comes to when websites must be meaningfully accessible to persons with disabilities.
  10. The plain meaning of the term “place,” weighs against an interpretation that a public accommodation need not be a physical place.
  11. Neither title III nor any implementing regulation provide a different definition of the word for the purposes of title III when it comes to what is a place of public accommodation.
  12. For that matter, the state of technology when the ADA was passed in 1992 shows that Congress was aware that the term “place of public accommodation,” carried a connotation of physical space and thus could exclude certain sales and retail establishments from the scope of title III based on a lack of connection to a physical space. After all, there were countless businesses operating outside of brick-and-mortar premises in 1990, including some that have been in operation for decades, such as mail order catalogs. Therefore, Congress’s decision to use the phrase “place,” the plain meaning which involves physical space, could easily be understood to be an intentional exclusion of businesses without any physical presence from the scope of title III.
  13. In 2000, United States Supreme Court noted that a “place,” connotes a physical space with respect to the New Jersey law protecting against discrimination in places of public accommodations.
  14. The plain meaning of the term “place of public accommodation,” is not dispositive because decades of conflict in federal case law interpreting the phrase establishes that the term is ambiguous.
  15. For that matter, the term “facility,” under the Code of Federal Regulations is also ambiguous for largely the same reasons.
  16. Since a place of public accommodation must per the applicable federal regulation be a “facility,” the only way a website might constitute a facility is if it specifically qualifies as one of the items listed in the definition of facility.
  17. The term “other… personal property,” appears at the end of the list of exclusively physical spaces and, as to “equipment” or other “personal property,” presumes the existence of a site where the property is located.
  18. It could make perfect sense that treating retail websites in one way and physical locations in another is the way to go. It is not absurd or irrational for Congress to address discrimination by online retailers in a different manner than the way it addresses discrimination by brick and mortar retailers. Subject to a disparate bundle of economic and business concerns. Each is very much its own animal.
  19. Since brick-and-mortar stores conduct business differently than do retail website, the type and extent of the burdens antidiscrimination measures impose on a business will necessarily differ depending on whether the business is operating through a physical storefront or a purely digital one.
  20. Given the different burden benefit calculus that applies in determining how to impose accessibility requirements on the two different types of retailers, it isn’t an absurd result to say that title III addresses only physical retailers and the question of how to deal with purely digital retailers remains a future question for Congress. Accordingly, it is not an absurd result to interpret title III as treating transactions differently depending upon whether they are purely digital or have a physical component. It also does not mean that this interpretation would inevitably frustrate the manifest purposes of the ADA as a whole.
  21. The mandate to interpret language broadly to take into account changes in technology is not a blanket authorization to require anything achieving the ADA’s overall goal of equal access. It is simply not clear that Congress intended such a result when drafting title III of the ADA.
  22. Despite DOJ taking the position over the years that websites are places of public accommodations, see this blog entry for example, the DOJ has consistently passed up the chance to draft regulations with respect to website accessibility despite courts being all over the place and pressure being put on DOJ by Congress and others to do so. The only conclusion that can be drawn from the failure of the DOJ to enact regulations is that neither Congress nor the DOJ officially endorses the approach that websites are places of public accommodations.
  23. In 2008, the ADA was amended and Congress passed up a chance to make clear that Internet sites were places of public accommodations.
  24. Congress and DOJ’s failure to provide clarification in the face of tremendous confusion is not a reason for a court to step in and provide that clarification. In fact, it is a reason for a court not to step in. That is, it is the job of the courts to interpret the law as written.

 

II

Thoughts/Takeaways

 

  1. The court makes a big deal over how the DOJ has not put forward regulations with respect to Internet accessibility. Just within the last couple of weeks, DOJ has notified the public that they intend to issue rules when it comes to Internet accessibility and title II entities. The DOJ has said that there will be proposed rules coming out with respect to Internet accessibility involving title II entities in April 2023 with the final rules coming in the summer of 2023. This court makes a big deal over how there are no regulations in the area. That will be changing next year. That said, I am not aware of a notice to issue regulations on Internet accessibility with respect to title III entities, which was the kind of entity involved in this case. It is entirely possible that the title II rulemaking process will very much inform the title III rulemaking process but that remains to be seen.
  2. The strongest argument that the Internet is not a place of public accommodation is that Congress passed up a chance to say as much when the ADA was amended.
  3. It isn’t accurate to my mind to say that there are only two views with respect to when an Internet site must be meaningfully accessible to a person with a disability. To my mind, there are currently four views. There were five views before the 11th Circuit mooted Gil v. Winn-Dixie. The four views are: the Internet is always a place of public accommodation; the Internet is never a place of public accommodation; gateway; and the Internet is a place of public accommodation if what is going on is of the type listed in 42 U.S.C. §12181(7). Before Gil v. Winn-Dixie was mooted, the 11th Circuit had a fifth theory namely, the Internet is never a place of public accommodation but the question is something else entirely. We discussed the now mooted decision in Gil v. Winn-Dixie, here.
  4. The cases that go with the gateway or nexus approach are all over the place with respect to what is a sufficient nexus. Some talk about a connection to the physical place while other cases talk about the person actually having to show that he or she or they actually visit that physical place.
  5. Very strange that the court talks about a 2000 Supreme Court decision suggesting that a place is a physical location but ignores an even more recent Supreme Court decision, South Dakota v. Wayfair, which we discussed here, strongly suggesting that a place does not have to be a physical place. To my mind, any plaintiff attorney in an Internet only accessibility situation commits legal malpractice by not bringing up South Dakota v. Wayfair. I am at a complete loss as to why this case has not come up as much as it should have in this kind of litigation. Perhaps, it is because it is not a disability discrimination case at all and attorneys are not looking at tax matters for analogous cases. South Dakota v. Wayfair is, in my opinion, the strongest argument that a place of public accommodation does not have to be a physical place.
  6. Could Congress really have meant to give such an advantage to Internet sites with respect to accessibility rules over brick and mortar sites considering the difference in costs of operating each kind of place? The court says such a distinction is perfectly logical, but I am not so sure of that, especially now given the maturity of e-commerce.
  7. California, as we discussed here, has made it very easy to get standing. However just because you can get standing, does not mean you win on the merits. Martinez says that under California’s Unruh Act, Internet only businesses not attached to a brick-and-mortar store do not have to worry about being meaningfully accessible to persons with disabilities. That said, don’t forget about the Rehabilitation Act. Plaintiff’s attorney will want to consider whether the particular Internet site takes federal funds or has outstanding PPP loans. The one issue that will have to be dealt with the Rehabilitation Act, assuming federal funds are involved, is proving causation because causation under the Rehabilitation Act is, “solely by reason of,” which after Bostock means precisely that. It isn’t clear to me whether a discriminatory facially neutral site could possibly reach the level of, “solely by reason of.”
  8. WCAG level AA of the most applicable WCAG standard is the best preventive law approach for minimizing successful website and accessibility lawsuits.
  9. Expect Unruh Act lawsuits alleging Internet and accessibility issues to go away down after this decision. At a minimum, you can bet every defense lawyer “go to,” case when it comes to Unruh Act Internet inaccessibility suits. You can also expect this case to be used by defense lawyers defending website inaccessibility lawsuits under title III of the ADA because much of the reasoning in this case is easily transferable. Of course, Martinez is nothing more than persuasive authority at the federal level, but even so defense attorneys would be foolish not to bring it up.

Today’s case of the day is Harkey v. NextGen Healthcare, Inc., here, decided by the Fifth Circuit in a per curiam decision on July 15, 2022. The case is better known as the sleepwalker claiming disability discrimination case, and it has been over the legal blogosphere due to its sensational facts, which are described in detail below. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that summary judgment for the employer was justified; my thoughts on why this decision could have gone the other way; and thoughts/takeaways/questions. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken directly from the opinion)

NextGen hired Jennifer Harkey in March 2008 as an “Implementation Specialist.”[**] She worked without incident for over a decade. In September 2018, she was promoted to the position of “Sales Specialist,” effective November 1, 2018.

On the evening of October 10, 2018, Harkey was attending an out-of-town national sales conference for NextGen at a large hotel in St. Louis, Missouri. After a dinner and a few drinks with a female co-worker, Harkey headed up to her room. She then watched some television and fell asleep.

Around midnight, another employee of NextGen who was also attending the conference, Scott O’Donnell, had just returned to his room from the hotel bar when he heard a knock at the door. Rather than peering through the peephole, assuming it was one of the other men who he had just been at the hotel bar with, he opened the door. There stood Harkey, whom he did not recognize. Harkey says that she was wearing a “black cotton robe” that fell to her knees and that she was naked under the robe.

O’Donnell was startled and stepped backwards. Harkey entered the room without looking at O’Donnell. O’Donnell said something along the lines of “I think you’re in the wrong room. What are you doing here? You need to get out” and remembers repeating “You’re in the wrong room.” Harkey said nothing, walked over to a made bed and got in it, then pulled the sheets all the way up to her face. According to O’Donnell, “She just laid there, didn’t move and was nonresponsive to me asking her to leave and telling her she was in the wrong room.” Harkey did not touch O’Donnell during the incident. Moreover, O’Donnell states that she never propositioned him or sexually harassed him.

Still, O’Donnell was concerned. He was a married man on an out-of-town business trip, and a woman was in a bed in his hotel room. He called his supervisor, Sean Murtagh, to the room. Murtagh also did not recognize Harkey as a NextGen employee. Murtagh decided to contact Jill Burke, the director of Human Resources at NextGen, who was also attending the conference. When Burke arrived, she attempted to wake Harkey repeatedly. Burke pulled back the covers and Murtagh snapped a picture of her. Burke was able to waken Harkey, but Harkey was disoriented. Burke also described Harkey as “smell[ing] of alcohol” and “exposing skin.” Although he was further away, Murtagh testified that he did not smell alcohol and that her robe fully covered her, so that no “personal part[s]” were exposed.

Eventually, hotel security was called, and it was determined that Harkey’s room was next door to O’Donnell’s. According to Burke’s notes, which she discussed during her deposition, as security helped get Harkey back to her room, Harkey was “very apologetic” and embarrassed. According to Burke, Harkey stated that she must have been sleepwalking, which she had done from time to time when she was a child. Burke’s notes also recall that Harkey said that she “wasn’t assaulted or anything” in the hotel room, that she was fine, and that she was “so sorry.” O’Donnell went back into his room, gathered his stuff, and moved to a different hotel room.

O’Donnell was asked to write an e-mail about what happened. At that point, he was extremely uncomfortable “because of the accusatory-sounding questions that [Burke] had asked [him] earlier in the night about what happened.” Because of his discomfort at that line of questioning, he mentioned wanting to speak with a lawyer before writing an e-mail about the incident. He later testified about his concern with how his wife would react to learning about the situation and, more generally, about how it might be interpreted in the “Me Too” era.

The next morning, Harkey went downstairs for breakfast and business meetings. At some point in the morning, she was asked to go up to a conference room where she saw Burke sitting alone at a long conference table. Harkey said she had “a flashback” and remembered her face from the night before. Burke told Harkey to sit down and that she “was in very big trouble,” “needed to be concerned,” and that Burke wanted to discuss last night. Harkey told her about the evening, as she could recall it. Harkey told her she had sleepwalked throughout her childhood but that it rarely happens. She was also asked about what she was wearing. Harkey stated that she felt from the beginning of the conversation that Burke had made her mind up about what had happened. Burke told her to pack her bags and that she was suspended on paid leave. Multiple times in the conversation, Burke called Harkey a “liability.” Burke told Harkey to “call a doctor,” and Harkey said she would quickly do so.

Harkey called her doctor for a referral as she was waiting for her flight home and began the process for making an appointment with a diagnostician, Dr. Sudan. Harkey sent an e-mail to Burke on October 12, 2018 (the day after the incident), informing her of the medical updates and assuring her that she was taking the situation seriously. On October 16, Harkey sent an e-mail updating Burke that she had been able to get an appointment with Dr. Sudan for the following week. Later the same day that she sent that e-mail, on October 16, Harkey was terminated.

When Harkey was able to see her doctor, he diagnosed her condition as somnambulism, otherwise known as “sleep walking disorder.” On September 4, 2019, Harkey brought a lawsuit in state court alleging that she was fired on account of a disability. It was removed to federal court, with the operative complaint alleging violations of the ADA and the TCHRA.

II

Court’s Reasoning That Summary Judgment Is Justified for the Employer

 

  1. The controlling question is whether the plaintiff suffered an adverse employment action because of (emphasis in opinion) her disability.
  2. Even if plaintiff’s sleepwalking disorder was a disability under the ADA, she was properly terminated because of what happened when she sleepwalked.
  3. The Fifth Circuit has previously held that where a plaintiff’s outburst was arguably caused by his PTSD, the company was justified in terminating that individual because the outburst also violated company policy.
  4. The ADA does not insulate emotional or violent outbursts blamed on an impairment.
  5. A prior Fifth Circuit case also held that an employee verbally abusing his supervisor for denying his vacation request was also grounds for termination despite the employee suffering from bipolar disorder. That decision said that while the employee’s reaction could have been attributed to his bipolar disorder, the ADA is not a get out of jail free card to avoid accountability for the employee’s actions.
  6. That plaintiff’s severe, unprofessional, and inappropriate conduct was purportedly caused by her sleepwalking disorder is of no matter, as the ADA does not give employees license to act with impunity.
  7. When plaintiff sleepwalked into her male coworker’s room in the state that she was in, the employer had a reason to fire her, and the ADA is no barrier to that termination.

 

III

My Thoughts on Why This Decision Could Have Gone the Other Way

 

  1. It certainly appears that the director of HR rushed to judgment and that little independent investigation ever occurred. I join labor and management side lawyers on social media talking about how a rush to judgment by HR is never a good idea.
  2. There was no interactive process.
  3. Magic words are not required to begin the interactive process, as we discussed here for example, and most certainly what happened here is enough to put an employer on notice that a reasonable accommodation needed to be discussed.
  4. Plaintiff told HR the morning after the incident that she had a record of sleepwalking in childhood. Remember, a person with a record of a disability, 42 U.S.C. §12102, is protected under the ADA.
  5. Plaintiff made clear that she was seeking the assistance of medical professionals to figure all this out, but the employer terminated her before that could all be accomplished.
  6. Bostock v. Clayton County, which we discussed here, has changed causation. The question is whether the disability was a determining factor in the termination. Arguably in this case, it was. Again, magic words are not necessary and there was a complete absence of any interactive process.
  7. It is an oversimplification to say, especially after Bostock, that sleepwalking being the cause of the conduct is of no matter.

 

IV

Thoughts/Takeaways/Questions

 

  1. Was plaintiff a valuable employee? She worked there without incident for over a decade and had been promoted to the position of sales specialist.
  2. Did plaintiff ever have to work with Scott O’Donnell, the person whose room she walked into, in her job?
  3. Was plaintiff a direct threat to anyone during the incident or in the future? Could any future direct threat be eliminated with reasonable accommodations?
  4. I can’t see the United States Supreme Court deciding in favor of the plaintiff on this one.
  5. Could she do the essential functions of the job with or without reasonable accommodation? If not, might there have been another job in the company that she could have done with or without reasonable accommodations? Was traveling even an essential function of her job? Of any job in the company?
  6. The employer won this one. However, an employer would do well to look at §§III, IV of this blog entry prior to terminating an individual when something like this occurs.
  7. What company policy was violated?
  8. This isn’t the first time we talked about the line between how disability may manifest itself in the form of bad conduct. See this blog entry for example.
  9. The decision is a per curiam and is not published. I asked Prof. Leonard Sandler (a Clinical Law Professor at the University of Iowa whom I had the privilege of meeting in person just recently when I did a training for Disability Rights Iowa), for more information about per curiam opinions. He sent me this article. After reading that article, a strong argument can be made that our case of the day was not appropriate for a per curiam decision.

Yesterday was the 32nd anniversary of the ADA. People with disabilities and disability rights have certainly come a long way, but there is certainly much more to go.

 

Today’s blog entry is the result of a case that was sent to me in a discussion that I had with several colleagues about breed restrictions. We also talked about the HUD circular, which I have previously talked about before, here. I have also quite frequently taken the position that the circular simply would not survive Kisor, which case we discussed here. A published case from the Southern District of Florida, Warren v. Delvista Towers Condominium Association, here, that Marcy LaHart, a Florida attorney focusing on animal law, litigated back in 2014 has caused me to reconsider whether the circular would not get judicial deference under Kisor. The circular may also even survive the major questions doctrine. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that emotional support animals/service animals are reasonable accommodations under the Fair Housing Act; court’s reasoning that the Fair Housing Act preempts the Miami-Dade breed restriction ordinance; why the HUD circular just might control even after Kisor; why the HUD circular might survive the major questions doctrine; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Plaintiff owned and resided in a condominium with a no pet policy, with the exception of birds and fishes. Plaintiff’s psychiatrist diagnosed plaintiff with severe recurrent major depression disorder as well as PTSD. On June 12, 2013, plaintiff’s psychiatrist strongly recommended to the Condominium Association it make a reasonable accommodation to its no pet policy pursuant to the Fair Housing Act so that plaintiff could live with his assistance animal, Amir, because of the dog’s therapeutic use and function. Plaintiff sent a letter to the Condominium Association explaining his disorder and attaching the letter from his psychiatrist and requesting a reasonable accommodation to the no pet policy. Subsequent to that letter, the Condominium Association’s legal counsel sent correspondence to the psychiatrist and to the plaintiff requesting additional information to properly evaluate plaintiff’s claim that he required a reasonable accommodation. The letter also threatened plaintiff with the possibility of a lawsuit if the information was not provided within 10 days. So, plaintiff retained legal counsel who again petitioned for the accommodation on plaintiff’s behalf. The Condominium Association never granted the accommodation, but plaintiff did continue to keep his dog in his dwelling. Miami-Dade County had a pit bull dogs prohibited ordinance, and the Condominium Association argued that the accommodation was per se unreasonable because of that fact.

 

II

Court’s Reasoning That Emotional Support/Service Animals Are Reasonable Accommodations.

 

  1. Prevailing on a failure to accommodate claim under the Fair Housing Act means a plaintiff has to establish: 1) he is disabled or “handicapped,” within the meaning of the Fair Housing Act; 2) he requested a reasonable accommodation; 3) such accommodation was necessary to afford him an opportunity to use and enjoy his dwelling; and 4) the defendant refused to make the requested accommodations.
  2. Discrimination under the Fair Housing Act includes a refusal to make reasonable accommodations to its rules, policy, practices, or services, when such accommodation may be necessary to afford a person equal opportunity to use and enjoy a dwelling.
  3. The 11th Circuit has held that an accommodation is unreasonable if it imposes an undue financial and administrative burden on the housing provider or if it fundamentally alters the nature of the provider’s operations.
  4. The Sec. of HUD has the authority and responsibility for administering the Fair Housing Act. In exercising that authority, HUD promulgated 24 C.F.R. §100.204, which provides two examples of situations where an accommodation has been found to be reasonable. In particular, §100.204(b) says that a building with a no pets policy must accommodate a blind person and his seeing-eye dog, otherwise the blind person does not have an equal opportunity to use and enjoy a dwelling. That example specifically demonstrates that an alteration to a no pet policy building to allow for an assistance animal is a reasonable accommodation.
  5. Since an essential element of both 42 U.S.C. §3604(f)(3)(b) and 24 C.F.R. §100.204(a) is that the accommodation be reasonable, it follows that allowing a person with a disability to keep a dog in a housing unit with a no pet policy is a reasonable accommodation.
  6. Defendant made no allegation that allowing plaintiff to have an assistance animal would impose an undue burden or fundamentally alter the nature of the provider’s operations.
  7. HUD has previously said that emotional support animals are in play when it comes to allowing people with disabilities to compensate for their disabilities to enjoy and use dwellings. So, it simply doesn’t matter whether plaintiff’s dog is especially trained.
  8. HUD does allow for the denial of a reasonable accommodation in the form of an assistance animal where the animal’s behavior poses a direct threat and its owner takes no effective action to control the animal’s behavior so that the threat is mitigated or eliminated. Such a risk requires the existence of a significant risk and not a remote or speculative risk.
  9. An assistance animal can be denied where the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation. It also can be denied if the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
  10. Whether the animal is a direct threat is distinctly a question of fact.

 

III

Court’s Reasoning That the Fair Housing Act Preempts the Breed Restrictions in the Miami-Dade Ordinance

 

  1. State laws interfering with or contrary to the laws of Congress made in pursuance of the Constitution are invalid.
  2. The Fair Housing Act specifically provides that any law of the state, political subdivision, or other such jurisdiction purporting to require or permit any action that is a discriminatory housing practice is invalid.
  3. Complying with the Fair Housing Act includes altering a building’s no pet policy to accommodate a blind person and his seeing-eye dog because without that accommodation, a blind person will not have an equal opportunity to use and enjoy the dwelling that a person without a disability would have.
  4. The clear and manifest purpose of Congress is to provide individuals with disabilities equal use and enjoyment of their dwelling.
  5. Any state or local ordinance that prevents the Fair Housing Act from achieving its purpose of equal housing opportunity to individuals with disabilities can’t stand. Therefore, the Miami-Dade County ordinance is preempted by the Fair Housing Act and the particular breed of plaintiff’s dog is completely irrelevant.

 

IV

Thoughts on Why the HUD Circular Just Might Survive Kisor

 

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

 

V

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

 

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

 

  1. Justice Gorsuch also said that when figuring out congressional intent the following factors must be looked at: 1) the legislative provisions that which the agency seeks to rely with a view to their place in the overall statutory scheme. Oblique or elliptical language will not supply a clear statement; 2) examination of the age of focus of the statute the agency invokes in relation to the problem the agency seeks to address; 3) examination of the agency’s past interpretation of the relevant statute. A contemporaneous and long-held executive branch interpretation of the statute is entitled to some weight as evidence of the statute’s original charge to an agency; and 4) skepticism is merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise. That is when an agency has no comparative expertise in making certain policy, Congress presumably would not task it with doing so.
    1. The legislative provisions with respect to the Fair Housing Act is just the general grant of authority that one typically sees with respect to agencies having the ability to make regulation to carry out the legislation.
    2. The Fair Housing Act has been around for some time and is clearly focused on preventing discrimination so that people can find, use, and enjoy their dwellings.
    3. The original circular came out in 2013. So, the idea of emotional support animals/service animals in dwellings has been around for some time. While the current circular has made a mess of things, it wasn’t really a surprise in light of the 2013 circular and in light of case law that has evolved over time.
    4. There is no mismatch between the circular and HUD’s congressionally assigned mission and expertise as HUD certainly has comparative expertise in making policy in this area.

VI

Thoughts/Takeaways

 

  1. With NFL season starting shortly, it is perfectly appropriate to conduct further review. Upon further review, an argument can be made that the circular does survive Kisor and very well is entitled to judicial deference for the reasons mentioned above.
  2. My thanks to Marcy LaHart for sending me this case.
  3. I don’t recommend sending a lawsuit possibility letter, as the Condominium Association lawyer did, when a tenant makes a request for reasonable accommodation as that might be construed as retaliation, which the Fair Housing Act prohibits.
  4. The opinion uses the term emotional support animals and assistance animals and also cites to the regulation talking about a service dog. As we know from the circular, all of those terms are in the HUD circular and mean different things to HUD.
  5. Remember that with respect to the common areas, as we know from previous blog entries, the ADA has its own rules with respect to service animals, see here for example.
  6. It would take a lot of money for a Condominium Association to argue that the circular should not get deference after Kisor. Further, it is not a slam dunk that the circular will not receive deference per Kisor. So, when it comes to animals and dwellings, preventive law would demand that the circular be the first authority that is looked at if an animal is requested as a reasonable accommodation in order to allow a person with a disability to enjoy his or her or they dwelling.
  7. The Fair Housing Act still uses the term “handicapped,” unfortunately. “Handicapped,” under the Fair Housing Act is defined in the same way as the ADA and the Rehabilitation Act, though there is a dispute about whether the ADA amendments, which amended how certain definitional terms must be interpreted, are applicable to the Fair Housing Act.
  8. This is not the only case discussing breed restrictions. We previously discussed a similar case here.
  9. Pitbulls can make good pets/therapy dogs/service animals. Over the weekend, I saw a show on the NFL network discussing the rise and fall and rise of Michael Vick. In that show, the owner of a pit bull rescue place talked about how many of the pitbulls rescued from Michael Vick’s dogfighting operation wound up making excellent pets and even therapy dogs.
  10. It is unclear whether the major question doctrine would apply to the circular because the case establishing the doctrine involves a regulation and not an agency interpretation of its regulation. Logically speaking, it would seem Kisor would be the case that would apply to the circular and not EPA v. West Virginia.
  11. Marcy informs me that the case settled for $100,000 and attorneys fees and that the settlement was not confidential.
  12. Here is a picture of plaintiff with Amir, the emotional support animal discussed in our case of the day. My thanks to Marcy LaHart for sending it along.
Plaintiff with Amir. Pic sent by plaintiff’s attorney, Marcy LaHart.

Last week, both EEOC and the Department of Transportation came out with guidances related to people with disabilities. The EEOC added to their running guidance on Covid-19, while the DOT came out with a bill of rights for airline passengers with disabilities. The blog entry is divided into two categories: latest amendment to the long-running EEOC document on Covid-19; and the DOT Bill of Rights for airline passengers with disabilities. With respect to the DOT Bill of Rights, what I did for that is cut and paste the entire Bill of Rights and then add my thoughts where appropriate, which is a tactic I have done before in this blog with other guidances.

 

I

Latest Amendment to the Long-Running EEOC Document on Covid-19

 

With respect to the EEOC guidance, Robin Shea in her blog, here, does a fabulous job of breaking down the new additions to the EEOC document. I am just going to add a few of my own thoughts. Otherwise, you can’t go wrong by looking at Robin’s discussion of the latest additions to the EEOC document. The EEOC document can be found here. My thoughts are immediately below:

 

  1. CDC guidance has changed radically over time and so has American behavior. The CDC guidance combined with American behavior means that direct threat is really more of a macro issue in a way that it wasn’t before. Direct threat is still going to be an issue with respect to a particular individual that is at increased risk of consequences should they get Covid-19. Otherwise, the CDC guidance, which really can only focus on hospitalization because so few people are reporting Covid-19 due to utilizing home tests, becomes very difficult to apply as a matter of practice.
  2. The CDC guidance can all change in a matter of moments. The BA5 omicron variant is becoming quite prevalent, and so everyone has to be prepared for changes at any moment in time.
  3. The interactive process is more critical than ever. The do’s and don’ts of the interactive process we discussed here.
  4. While the EEOC talks about how accommodation process might be delayed because of the pandemic, you do need to remember, as we discussed here, that an unreasonable delay in granting an accommodation is actionable.
  5. I recently read that 60% of legal professionals no longer want to work in the office full-time. I also recently read that for all kinds of employees the number is close to 50% for those not wanting to work in the office full-time. So, expect a lot of telecommuting reasonable accommodation requests.
  6. Direct threat to others in light of American behavior and the latest CDC guidance is almost impossible now to divine. The current CDC guidance and the direct threat analysis get a bit easier with respect to direct threat to self.
  7. The EEOC document talks about fully vaccinated. What does that even mean? Two shots? Two shots and a booster? Two shots and two boosters? I recently read an Israeli study that found a second booster was very helpful for individuals over 50. It wouldn’t surprise me at some point if the CDC says everybody should get a second booster. Even so, “fully vaccinated,” is a really uncertain term, especially if it is meant to convey a certain level of Covid-19 protection.

 

 

II

DOT Bill of Rights (Here)

 

Airline Passengers with Disabilities Bill of Rights

This Bill of Rights describes the fundamental rights of air travelers with disabilities under the Air Carrier Access Act and its implementing regulation, 14 Code of Federal Regulations (CFR) Part 382.

Please click this link to download the latest version of the Bill of Rights.

The Bill of Rights consists of:

  1. The Right to Be Treated with Dignity and Respect.
  2. The Right to Receive Information About Services and Aircraft Capabilities and Limitations.
  3.  The Right to Receive Information in an Accessible Format.
  4. The Right to Accessible Airport Facilities.
  5. The Right to Assistance at Airports.
  6. The Right to Assistance on the Aircraft.
  7. The Right to Travel with an Assistive Device or Service Animal.
  8. The Right to Receive Seating Accommodations.
  9. The Right to Accessible Aircraft Features.
  10. The Right to Resolution of a Disability-Related Issue.

Click on any of the rights above to be linked to an explanation of that right in this document. The Bill of Rights does not expand or restrict the rights of air travelers with disabilities. Rather, it provides a convenient summary of existing law. Because the explanations in this document may not be as precise as the regulations themselves, the explanations link to the actual regulatory text for your reference.

Important Information About the Bill of Rights

Does the Bill of Rights reflect current information?

  • The Bill of Rights is a living document. DOT will update the Bill of Rights as regulations change.
  • DOT published this Bill of Rights in July 2022.

My thoughts: interesting question as to whether the Bill of Rights, which interprets DOT Air Carrier Access Act’s regulations, will be given deference per Kisor v. Wilkie, here.

Does the Bill of Rights apply to me?

  • The Bill of Rights applies to individuals with a disability which is defined in Part 382 as persons with a physical or mental impairment that permanently or temporarily impacts a major life activity such as walking, hearing, or breathing.

My thoughts: the Air Carrier Access Act doesn’t always work the same way as the ADA. For example, it is possible that a temporary disability under the ADA may not be protected. We have talked about temporary disabilities and the ADA numerous times before, such as here. It also makes sense that temporary disabilities would be protected under the Air Carrier Access Act because it is quite foreseeable that a person with a temporary disability could be flying and need assistance.

Does the Bill of Rights apply to my trip?

  • The Bill of Rights applies to all flights of U.S. airlines, and to flights to or from the United States by foreign airlines.

My thoughts: what is a U.S. airline? The Air Carrier Access Act actually applies to all carriers, see here, which is a far broader term than what we think of as U.S. airlines.

  • The obligation to comply with government safety and security laws is a general exception to airlines’ obligations described in this Bill of Rights.
  • Also, some airlines are approved by DOT to use an alternative method to comply with a regulation when it provides an equivalent level of accessibility or it meets the objective of Part 382. Visit the docket for the Equivalent Alternative Determinations and Conflict of Law Waivers for more information.

Are airline contractors subject to the same obligations as airlines?

  • Airlines must make sure their contractors that provide services to the public meet regulatory obligations. Airlines are legally responsible for the action or inaction of their contractors.

My thoughts: there are several Different Air Carrier Access Act regulatory provisions, such as here, that make it crystal clear that airline responsibility to persons with disabilities is a nondelegable duty.

 1. The Right to Be Treated with Dignity and Respect.

An airline, including its employees and contractors, may not discriminate against an individual with a disability because of his or her disability.

My thoughts: what does “because of,” mean? The answer is no longer simple after Bostock, as we discussed here.

  • For example, an airline may not refuse transportation or other services because of one’s disability or resulting appearance or involuntary behavior.
  • An airline cannot require air travelers with disabilities to accept special services or subject them to restrictions that do not apply to other passengers, except passengers with disabilities may need to check-in early, provide advanced notice or documentation, or pre-board to receive certain disability-related services.
  • Airline personnel who deal with the traveling public must be trained to be aware of passengers with disabilities’ needs and how they can be accommodated safely and with dignity.
  • Airline employees and contractors must receive refresher training at least once every three years. Complaint Resolution Officials (the airlines’ experts in resolving disability-related issues) must receive refresher training annually.

My thoughts: get someone knowledgeable to do the training (providing training on ADA and on ADA related laws is a big part of my practice). Keep in mind, that there are several intersecting laws when it come to airlines dealing with people with disabilities and they are: Airline Deregulation Act, Air Carrier Access Act, Americans with Disabilities Act, and state negligence laws. It may be worthwhile for a trainer to have a background in each of these laws because the obligations vary depending upon the law involved. Making it even more complicated is that issues of preemption are also involved as a result of the Airline Deregulation Act.

Reference links (14 CFR): Section 382.11 (General Discrimination Prohibitions)Section 382.19 (Prohibition on Refusal to Transport)Section 382.23 (Medical Certificates)Section 382.27 (Advance Notice to Obtain Certain Services)Section 382.33 (Discriminatory Restrictions)Section 382.141 (Training of Airline Personnel and Contractors)Section 382.143 (Recurrent Training of CRO).

Click Back to The Bill of Rights Section

 2. The Right to Receive Information About Services and Aircraft Capabilities and Limitations.

Airlines must provide air travelers with disabilities information upon request about the facilities and services available to them. The information must be
specific to the aircraft scheduled for the flight, unless unfeasible (for example, an unpredictable aircraft substitution occurs).

The information airlines must provide includes:

  • any aircraft-related, service-related, or other limitations on the ability to accommodate passengers with a disability, such as limitations on level-entry boarding (Airlines must provide this information to any passenger who states that he or she uses a wheelchair for boarding, even if he or she did not request the information.).
  • any limitations on the availability of storage on the aircraft
  • for assistive devices.
  • the specific location of seats with movable aisle armrests.
  • whether the aircraft has an accessible lavatory.
  • the types of services that are not available on the flight.

Reference link (14 CFR): Section 382.41 (Advance Information).

Click Back to The Bill of Rights Section

 3. The Right to Receive Information in an Accessible Format.

An airline’s primary website must be accessible if the airline uses an aircraft with more than 60 seats. In addition, airlines must ensure that automated kiosks they install after December 2016 at U.S. airports with 10,000 or more enplanements per year are an accessible model, until 25% of kiosks at each airport location are the accessible model.

My thoughts: we discussed this issue in this blog entry, here.

Passengers who identify as needing visual or hearing assistance must receive prompt access to the same trip information as other passengers at the gate, ticket area, customer service desk, and on the aircraft (so long as it does not interfere with airline employees’ safety duties).

My thoughts: with respect to the Deaf, deaf, and hard of hearing communities, I can assure you that this is simply not happening, especially with respect to the aircraft (don’t even get me started on the lack of captioning with respect to the behind the seat viewing options), if my experience flying recently is any indication.

Airlines must train personnel to recognize requests for communication accommodation. The personnel must be trained to use the most common methods for communicating with individuals who are blind, deaf, or hard of hearing that are readily available, such as writing notes, for example. Personnel must also be trained to use established means for communicating with deaf-blind passengers when they are available, such as passing out Braille cards if available, reading an information sheet that a passenger provides, or communicating through an interpreter, for example.

My thoughts: I simply do not understand the focus on deaf-blind in this regulation apart from other disabilities that have communication challenges. Perhaps, DOT was rather inartfully trying to say that airlines must also be aware of deaf-blind passengers and their needs, which is absolutely true. It could have been phrased a lot better.

Reference links (14 CFR): Section 382.43 (Website Accessibility)Section 382.53 (Information for Blind, Deaf, or Hard of Hearing at Airports)Section 382.57 (Kiosk Accessibility)Section 382.119 (Information for Blind, Deaf, or Hard of Hearing on Aircraft)Section 382.141 (Training of Airline Personnel and Contractors).

Click Back to The Bill of Rights Section

 4. The Right to Accessible Airport Facilities.

Airlines and U.S. airport operators are both responsible for the accessibility of airport facilities. The Air Carrier Access (ACAA) and Department’s implementing regulation in 14 CFR Part 382 cover airlines’ obligations. Various other federal statutes and regulations apply to U.S. airport operators, for example, the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and their implementing regulations. Airlines and airport operators have concurrent obligations to ensure accessibility of airport facilities.

My thoughts: airports are invariably but not always owned and operated by nonfederal governmental entities. As such, most airports, which are owned by nonfederal governmental entities, are subject to title II of the ADA and to §504 of the Rehabilitation Act because they take federal funds. If it is a private airport, the airport would be subject to title III of the ADA and to §504 of the Rehabilitation Act as you have to assume a private airport would take federal funds. The obligations of the title II or title III entity are nondelegable, as we discussed in this blog entry and in this blog entry.

This Bill of Rights describes the obligations of airlines under the ACAA. In general, airlines must ensure that terminal facilities that they own, lease, or control are readily accessible and usable by passengers with disabilities at U.S. airports, and readily usable at foreign airports. Airports are responsible for ensuring compliance of facilities that they own, operate, or lease to other parties, including airlines.

Airlines must ensure an accessible route between the gate and the aircraft boarding location. When level-entry boarding is not available, such as boarding via a jet bridge, airlines and U.S. airports must ensure ramps or mechanical lifts are available to service most flights. Airlines, in cooperation with airport operators, must also provide service animal relief areas at the airport.

My thoughts: I am consulting on several cases where a person with a disability under the care of an airline suffers a personal injury. When that happens, you have to deal with the intersection of the Airline Deregulation Act, the ADA, the Air Carrier Access Act, and state negligence laws. There are also issues of preemption, so it can all get pretty complicated.

Reference links (14 CFR, unless otherwise noted): Section 382.51 (Accessibility of Airport Facilities)Section 382.95 (Assistance With Respect to Boarding and Deplaning)Section 382.99 (Agreements Between Airlines and Airports)Section 382.101 (Other Boarding and Deplaning Assistance)28 CFR 35 (Nondiscrimination on the Basis of Disability in State and Local Government Services)49 CFR 27 (Nondiscrimination on the Basis of Disability-Receipt of Federal Financial Assistance)49 CFR 37 (Transportation Services for Individuals with Disabilities).

Click Back to The Bill of Rights Section

 5. The Right to Assistance at Airports.

Passengers with disabilities must be provided prompt and timely enplaning and deplaning assistance, upon request, from properly trained airline personnel.

 

My thoughts: the Air Carrier Access Act regulations, such as here for example, make it quite clear that “upon request,” is not parenthetical. Also, the phrasing is confusing because it is upon request of the person with a disability and not the airline or its subcontractor’s personnel that is the critical question.

 

This must include:

  • the services of personnel and the use of ground wheelchairs, accessible motorized carts, boarding wheelchairs, on-board wheelchairs, and ramps or mechanical lifts, as needed.
  • assistance with moving from the curb to the departing flight, assistance with transportation between gates to make connections, and assistance with moving from the arriving flight to the curb for pick-up.
  • assistance with accessing key functional areas of the terminal such as the ticket counter or baggage claim, or to a restroom entrance (if time allows).
  • escorting a passenger with a service animal to an animal relief area at a U.S. airport.

Passengers who request assistance in advance of arriving at the airport need to identify to airline personnel once they arrive at the airport or the gate to receive the assistance.

Airlines cannot require the passenger to accept a specific form of assistance that he or she does not request (ex: requiring a wheelchair when a sight guide was requested).

In addition, the airline cannot leave a passenger unattended for more than 30 minutes in a wheelchair or other device, in which the passenger is not independently mobile.

Reference links (14 CFR): Section 382.11 (General Discrimination Prohibitions)Section 382.91 (Assistance in Moving Within Terminal)Section 382.95 (Assistance With Respect to Boarding and Deplaning)Section 382.103 (Prohibition on Unattended Immobile Wheelchair Passenger).

Click Back to The Bill of Rights Section

 6. The Right to Assistance on the Aircraft.

Airlines must allow a passenger with a disability who self-identifies at the gate as needing additional time or assistance to board, stow accessibility equipment, or be seated, the opportunity to board before all other passengers.

  • Except, an airline with an open seating policy has been approved by DOT to accommodate extra-time passengers after an initial group of passengers have boarded, but early in the boarding process.

Passengers with disabilities must be provided prompt and timely boarding and deplaning assistance, upon request, from properly trained airline personnel.

  • This includes assistance with moving to and from seats.
  • If level loading bridges are not available, a lifting device must be provided to assist persons with limited mobility safely on and off the aircraft at most U.S. airports, except when boarding smaller aircraft (less than 19 seats).
  • For smaller aircraft and non-primary U.S. airports or foreign airports, airlines must ensure boarding and deplaning assistance by any available means acceptable to the passenger.
  • However, airlines must never hand-carry a passenger (directly pick up a passenger’s body in the arms of airline personnel) on or off an aircraft, except in an emergency.

Once a passenger with a disability has boarded, airlines must provide assistance, if requested, such as:

  • moving to or from the lavatory, including using an on-board chair to assist, if requested.
  • stowing and retrieving carry-on items, including assistive devices.

Reference links (14 CFR): Section 382.93 (Preboarding)Section 382.95 (Assistance With Respect to Boarding and Deplaning)Section 382.101 (Other Boarding and Deplaning Assistance)Section 382.111 (Services Required On the Aircraft)Section 382.113 (Services Airlines are Not Required to Provide On the Aircraft).

Click Back to The Bill of Rights Section

 7. The Right to Travel with an Assistive Device or Service Animal.

Traveling with Assistive Devices on Aircraft

Airlines must allow assistive devices as carry-ons in the cabin free of charge consistent with safety rules.

  • This includes medical devices and/or a personal amount of medication that assist the passenger with his or her disability.
  • Assistive devices must not count against the passenger’s carry-on limit.
  • Priority in-cabin stowage (either a closet or a row of seats designated for seat strapping) must be available for at least one normal-sized collapsible manual wheelchair in any aircraft with 100 or more passenger seats.
  • Airlines that use seat strapping should provide space for at least two of these wheelchairs if stowing the second wheelchair would not displace passengers.
  • The priority stowage requirements do not apply to older aircraft.

Manual wheelchairs that cannot be transported in the cabin must be transported in the cargo compartment consistent with safety and security requirements. Airlines must accept a battery powered wheelchair, if it fits in the cargo compartment and can be transported consistent with safety and security requirements. Airlines must also provide for the checking and timely return of assistive devices at the gate for use in the terminal. Should an airline lose, damage, or destroy the wheelchair or other assistive device, the airline must provide compensation in an amount up to the original purchase price of the wheelchair or device.

Reference links (14 CFR): Section 382.67 (Priority Stowage of Wheelchairs In-Cabin)382.121 (Assistive Devices In-Cabin)Section 382.125 (Stowage of Assistive Devices In Cargo)Section 382.131 (Liability for Loss, Damage, or Delay of Assistive Devices).

Traveling with Service Animals

Airlines must permit a service dog to accompany a passenger with a disability in the aircraft cabin unless:

  • the dog poses a direct threat to the health or safety of others;
  • the dog causes a significant disruption or misbehaves in the cabin or at an airport gate area;
  • the dog’s carriage would violate a U.S. or foreign law;
  • current DOT forms weren’t provided as required by the airline for the trip.

A decision by airline personnel to refuse transportation of a service dog with the passenger must be based on an individualized and objective assessment of the dog that considers the nature of the risk and the likelihood that harm will actually, or continue to, occur. The assessment should also consider whether mitigations are available.

Airlines cannot deny transportation of the service dog if there are means that would mitigate the problem.

Reference link (14 CFR): Sections 382.72 -382.80 (Service Animals).

Click Back to The Bill of Rights Section

My thoughts: we discussed the DOT final rule when it comes to animals on airplanes here.

 8. The Right to Receive Seating Accommodations.

Airlines must provide specific seats to the following passengers who identify to airline personnel as needing the seat, if the seat exists on the same class of service on the aircraft:

  • Movable Aisle Armrest–When the passenger uses an aisle chair to board and cannot transfer readily over a fixed aisle armrest.
  • Bulkhead Seat or Other Seat–When the passenger travels with a service animal that is best accommodated at a particular seat.
  • Greater Leg Room–When the passenger has a fused or immobilized leg.
  • Adjoining Seat–For a companion providing a certain type of assistance, such as:
    • A personal care attendant who performs a function that is not required to be performed by airline personnel, for example assisting a passenger with a disability with eating;
    • A reader for a passenger who is blind or low vision;
    • An interpreter for a passenger who is deaf or hard of hearing; or
    • A safety assistant if a passenger with a disability cannot assist with their own evacuation.

For passengers not specified above, airlines must provide a seat assignment that best accommodates his or her disability if the passenger meets the airline’s procedures.

Airlines must provide seating accommodations using one of three methods: the block method, the priority method, or preboarding (if the airline does not provide advance seat assignments). Visit our Seating Accommodation Methods page to learn more about these seating methods and for the seating methods of the largest U.S. airlines and their operating partners, which account for approximately 95 percent of domestic passenger air traffic. Information regarding seating methods of certain foreign air carriers is also provided.

Reference link (14 CFR): Sections 382.81-382.87 (Seating Accommodations).

Click Back to The Bill of Rights Section

 9. The Right to Accessible Aircraft Features.

New aircraft delivered to U.S. airlines after April 1992 and to foreign airlines after May 2010 must have accessible features that include:

  • Movable aisle armrests on half of the aisle seats, if the aircraft has 30 or more seats.
    • DOT has approved some airlines to meet the purpose of this requirement by alternative means that provide substantially the same or greater accessibility to passengers with disabilities.
  • Priority stowage space for wheelchairs in the cabin for aircraft with 100 or more seats.
  • At least one accessible lavatory, if the aircraft has more than one aisle.
  • An on-board wheelchair, if the aircraft has an accessible lavatory, or the passenger gives the airline advance notice that he or she can use an inaccessible lavatory and needs an on-board chair to reach it.

Airlines with older aircraft with 30 or more seats that replace the aisle seats, must ensure half of these seats have movable aisle armrests. Also, if an airline replaces a lavatory on a twin-aisle aircraft, there must be an accessible lavatory.

Reference links (14 CFR): Section 382.61 (Movable Aisle Armrests)Section 382.63 (Lavatories)Section 382.65 (On-Board Wheelchairs).

Click Back to The Bill of Rights Section

 10. The Right to Resolution of a Disability-Related Issue.

Airlines must make available a Complaint Resolution Official (CRO) in a timely manner, this may be by phone.

  • The CRO should be trained as an expert in resolving disability-related issues and be able to resolve disability-related issues on the spot.
    • Passengers with disabilities who are not satisfied with air travel services, may file a complaint with the airline or DOT. Complaints concerning issues under the airport’s responsibility can be filed with the airport, FAA or DOJ.
  • Airlines must respond and directly address the disability related issues in your complaint in writing within 30 days, but airlines are not required to address complaints sent more than 45 days after the incident unless the complaint is referred to the airline by DOT.
  • DOT will refer all disability-related complaints it receives within 6 months of the incident for response by the appropriate carrier.
  • DOT investigates all disability-related complaints it receives to determine whether a violation of the Air Carrier Access Act occurred.
  • Passengers with disabilities who have pressing questions about their rights should ask to speak with the airline’s CRO. Airlines must have a CRO available at each airport they serve during all times the airline is operating at that airport. Passengers may also contact the DOT Disability Hotline at 1-800-778-4838. The hours for the hotline are 8:30am to 5:00pm Monday-Friday.

Reference links (14 CFR): Section 382.151 (CROs)Section 382.155 (Carrier Responses to Complaints)Section 382.159 (Filing a Complaint with DOT).

 

My thoughts: as we have discussed previously in the blog, here for example, no private cause of action exists for violations of the Air Carrier Access Act regulations.

An emerging issue is whether when it comes to accommodating a person with a disability in an employment situation, are you accommodating the disability or are you accommodating the essential functions of the job. The easy scenario where that matters is when dealing with an employee with a service dog. Recently, Hobby Lobby was sued by the EEOC for denial of letting an employee use a service dog, here. However, there are other situations where the distinction between accommodating the essential functions of the job v. accommodating a person’s disability can matter a great deal. Our case of the day, Wilson v. Sec. of Veterans Affairs, an unpublished decision from the 11th Circuit decided June 3, 2022, is such a case. As usual the blog entry is divided into categories and they are: facts; court’s reasoning reversing summary judgment on the failure to accommodate claim; court’s reasoning affirming summary judgment on the retaliation claim; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts (taken directly from the opinion with very very minor changes for readability and flow).

 

Wilson, a veteran, suffers from degenerative disc disease and partial paralysis in both feet. In February 2009, Wilson started as a probationary Veteran Claims Examiner (VCE) for the Atlanta VA Regional Office. At the time, the Atlanta VA Regional Office only permitted permanent employees to use the on-site parking deck. Probationary VCEs could park at an off-site parking area roughly one mile from the office, from which they could either take a shuttle or walk to work. The VA shuttle ran for one hour in the morning and one hour in the evening. It ran sporadically at best and could only hold up to 25 individuals at a time—even then, there were only 15 seats. And because the shuttle lacked handlebars, standing passengers were forced to either be “pressed against an individual” or “use [their] body as a stance” to avoid falling over. Roughly 80 probationary VCEs commuted per day. Because of the shuttle’s shortcomings, Wilson effectively faced the option of either walking to work—which “put enormous pressure on her nerves” and caused her legs and feet to swell—or parking in unassigned handicapped spaces in the on-site parking deck.1 Wilson made the latter choice, leading to numerous parking tickets and counseling memos about her unauthorized parking.

 

As an employee with a disability, Wilson was told to bring any requests she may have for workplace accommodations to Celesta Chapin, her Vocational Rehabilitation Counselor with the VA’s Rehabilitation and Employment Division. Between March and July 2009, Wilson communicated her needs for a parking accommodation on six occasions to VA personnel—in all instances, Wilson stated that the VA refused to accommodate her requests in violation of the Rehabilitation Act. Wilson identified six distinct failures by the VA to accommodate or respond to her requests for an accommodation, occurring on the following dates in 2009: (1) March 31, (2) April 13, (3) April 17,2 (4) May 12, (5) July 7, and (6) July 8 and thereafter. The record evidence shows the following regarding these events.

 

With respect to the first failure, Wilson emailed her vocational rehabilitation counselor with the VA’s rehabilitation and employment division that the parking situation at the VA aggravated her disability and that she needed a parking accommodation. The rehabilitation counselor told Wilson that she would make a workplace accommodation request to human resources on her behalf, but Wilson never received follow-up from that meeting.

 

With respect to the second failure, Wilson stated that she met with Eboni White, her direct supervisor, after receiving a counseling memo for unauthorized parking in the on-site parking deck. During the meeting, Wilson explained that her disability forced her to park on-site and that she was working with Chapin to obtain permission to park in the onsite parking deck, for which she needed White’s assistance. White then said that she would communicate with Chapin. However, White did not relay Wilson’s request to Chapin or anyone in HR, nor did White follow up with Wilson regarding her request.

 

With respect to the third failure, Wilson stated that she emailed Praileau Young, an HR assistant, to ask where she could find the paperwork necessary to submit a parking accommodation request. Young responded that she had forwarded Wilson’s email to the “appropriate person,” but Wilson never received the requested information. On the same day, Wilson emailed Chapin again to confirm the status of her request. Chapin responded that she thought Wilson dropped the matter, but then requested from Wilson the name of her supervisor so that Chapin could request an assessment. Wilson responded and asked Chapin to submit the request on her behalf.

 

With respect to the fourth failure, in the same affidavit, concerning the fourth instance, Wilson stated that she met again with Chapin on May 12, 2009. At this meeting, Chapin reminded her to discuss her request with her supervisor. Wilson testified that she believed management was ignoring her since she had already spoken with White to no avail.

 

With respect to the fifth failure, on July 1, 2009, union representative Rebecca Manning gave her own parking badge to Wilson with permission to use it to park at the on-site parking deck. Because the badge did not work, Wilson asked an HR Liaison, Vivian DeLoach, for help. On July 7, 2009, DeLoach informed Wilson that she was not authorized to park there. Making this the fifth occasion, Wilson testified that she believed then that her request had been denied after all.

 

With respect to the last failure, Wilson testified that she emailed DeLoach on July 8, 2009, to request “the appropriate paperwork to file for reasonable parking accommodations due to my service-connected disability,” which she identified as “degenerative disc disease, with [herniated] discs and partial paralysis in both of [her] feet.” Wilson stated that she would be willing to provide medical documentation and facilitate contact with her doctor if necessary. On July 16, 2009, Unit Chief John Clayton Smith—who replaced White as Wilson’s direct supervisor—followed-up to verbally inform Wilson that he consulted with HR and that they “d[id] not see a connection [between parking privileges] and the essential function of you performing your job.” (Emphasis mine). Wilson interpreted this as the sixth instance of the VA’s failure to accommodate. Wilson then emailed DeLoach for written confirmation of Smith’s “denial” of her request for accommodations. Smith followed up with Wilson via email and reiterated that neither he nor HR saw the need for an accommodation but did not deny the request outright. DeLoach responded that although she was not the approving official for accommodation requests, she would assist Smith in helping Wilson understand how to properly submit a request.

 

On July 22, 2009, Wilson filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discrimination by the VA. Within hours of filing the complaint, Wilson received a letter from Smith titled “Certification of Need for a Reasonable Accommodation.” Smith therein acknowledged Wilson’s accommodation request and requested, inter alia, medical documentation to evaluate her request. The letter also reminded Wilson yet again that “parking is not a condition of employment, nor related to the essential functions of your position.” This was the same language that Smith used in previously denying her request. (Emphasis mine). Wilson testified that she never provided the documentation because she understood the letter to be a preemptive denial. Wilson did not receive any follow-up.

 

Wilson testified that she soon thereafter suffered harassment. This harassment consisted, in part, of what she considered a pretextual disciplinary reprimand for leaving overtime work 45 minutes early because she felt ill. Wilson also applied for a Rating Veteran’s Service Representative position (RVSR) around this time but was not selected despite her allegation that she was more qualified than the selected applicant. On September 3, 2009, Wilson withdrew her EEOC complaint on advisement from her EEOC counselor. Her EEOC counselor discussed the matter with DeLoach, who responded, “if [parking] was going to be a problem [Wilson] might want to reevaluate her decision to work there.” Wilson stated that she continued to park in on-site handicapped spaces and amassed several parking tickets and letters of counseling because she believed that the VA unlawfully denied her accommodations request. Wilson also received a negative performance appraisal during this time, to which she filed a union grievance. Shortly thereafter, Jeannie Daniel, the VA Regional Assistant Education Officer, recommended to the VA regional Director Alfred Bocchicchio that Wilson be terminated for poor performance. The VA terminated Wilson on December 18, 2009, with a letter citing both her parking violations and poor performance as justification. Wilson applied again for the RVSR position in 2011, and was again not selected, despite her allegation that here, too, she was the most qualified candidate. Wilson stated that she believed she was not selected on either occasion because the decisionmakers knew of her disability and her EEOC complaint.

 

Wilson brought suit alleging both discrimination against terror and the terms and conditions of her employment and retaliation. The District Court granted summary judgment in favor of the Veterans Affairs administration and Wilson appealed.

 

II

Court’s Reasoning Reversing Summary Judgment on the Failure to Accommodate Claim

 

  1. An employer’s obligation to provide a reasonable accommodation is triggered when the employee makes a specific demand for a reasonable accommodation.
  2. After the employer is placed on notice of the employee’s disability and request for an accommodation, the employer has to make a reasonable effort to determine the appropriate accommodation.
  3. Determining an appropriate reasonable accommodation may mean going through the interactive process.
  4. It is when the employer fails to provide the accommodation after it was demanded that the plaintiff can sustain a discrimination claim under the Rehabilitation Act.
  5. Wilson made repeated requests (see §I of this blog entry), for the specific accommodation to park in the VA parking deck. She repeatedly explained her reasoning and her request to many different people at the VA who either discouraged, ignored, or provided inadequate follow-up to those requests.
  6. A reasonable juror could find that Wilson’s first two communications with the VA were requests for an accommodation.
  7. It is sufficient that Wilson requested to park on site and justified her request by informing the VA about her mobility limitations and her belief that an accommodation would resolve the issue.
  8. It took the VA four months to even attempt to initiate the interactive process, despite being repeatedly placed on notice of Wilson’s disability and her request. As such, a jury could find that the VA’s four month long inaction in addressing Wilson’s request constitutes a failure to accommodate in violation of its obligations under the Rehabilitation Act regardless of Wilson’s subsequent failure to provide the documentation.

 

III

Court’s Reasoning Affirming Summary Judgment on the Retaliation Claim

 

  1. Wilson’s argument that her parking requests were independent protected activity is new on appeal. Since a court will generally not consider an issue raised for the first time on appeal, Wilson waived the argument.
  2. Wilson does not demonstrate that the VA’s other basis for termination, i.e. her subpar work performance, was pretextual. The VA produced evidence that the regional VA director considered Wilson’s failing to meet the minimum monthly expected and products and produce numerous errors in her work that had to be corrected by supervisors. She also requested overtime pay for hours that she did not work and received a counseling memo for doing so. Wilson did not dispute that her record was unsatisfactory and did not produce evidence that would lead a reasonable jury to find pretext. She therefore cannot show that the protected activity was causally connected to the adverse employment action and the rich allegation claim fails.

 

IV

Thoughts/Takeaways

 

  1. The VA’s focus on the essential functions of the job rather than on accommodating her disability got the VA in a bunch of trouble here. As a matter of preventive law, per Felix-which we discussed here-, it is much better to focus on accommodating the disability rather than focusing on accommodating the essential functions of a particular job. Taking this approach will certainly prevent litigation down the road and make the person with the disability feel valued so that he/she/they will want to succeed.
  2. You want to make sure at trial that all arguments are preserved for appeal.
  3. Magic words, as we have discussed numerous times in our blog, such as here, are not required for activating the interactive process.
  4. Always utilize the interactive process whenever a request for a reasonable accommodation/modification is made. The interactive process is not optional in my opinion despite the court’s use of the word, “may.”
  5. Don’t forget about the do’s and don’ts of the interactive process, which we discussed here.
  6. An unreasonable delay in granting a reasonable accommodation, as we discussed here, is actionable.
  7. Since this involved a federal employee, it was §501 of the Rehabilitation Act that was involved and not the ADA. However, by statute §501 of the Rehabilitation Act, 29 U.S.C. §791, here, tracks title I of the ADA.
  8. The trend is very much that a failure to accommodate claim as a separate cause of action.
  9. Case illustrates how an underlying disability discrimination claim can go forward even where a retaliation claim does not. I have also seen cases where it would to allegation act claim goes forward but the underlying disability discrimination claim does not.
  10. Negative reports on an employee can of course be done at any time. However where an employee has initiated a request for reasonable accommodation, you want to make sure such a report is part of your regular processes and not an attempt to justify disciplinary proceedings after a reasonable accommodation request has been made. Such an action could also rate the question over whether the performance issued would have been cured if reasonable accommodations have been granted in the first place.