On Friday of last week, I presented to the Minnesota CLE Health Law Institute in Minneapolis on working with disabled clients and disabled attorneys. One of the cases that came up is the one that we are going to be talking about this week, Battle v. state of Tennessee, here, decided by the Middle District of Tennessee on September 6, 2024. If the reasoning of this case proves persuasive in other courts, this decision could be a very big deal indeed for the reasons we will discuss. As usual, blog entry is divided into categories, and they are: facts; court’s reasoning that Tennessee can be directly liable for failing to ensure the group homes carry out their obligations to Deaf residents; court’s reasoning that sovereign immunity applies to Title II damage claims but not to Rehabilitation Act damage claims; Disability Rights Tennessee has standing to sue; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts of the case can be greatly simplified from what is in the opinion. In Tennessee, you have two different state entities responsible for administering services supporting Tennesseans with disabilities. You have the Department of Intellectual and Developmental Disabilities (DIDD), and you also have the Department of Mental Health and Substance Abuse Services (DMHSAS). They each deal with different disabilities. DIDD is responsible for system planning, setting policy and quality standards, system monitoring and evaluation, disseminating public information, and advocacy for persons of all ages with the disabilities it serves. DIDD publishes a detailed provider manual setting forth directive to licensees. The provider manual informs licensees that it is participating in the Tennessee service delivery system for individuals with intellectual and developmental disabilities by being a party of the provider network. As such, the manual explained that private providers are partners in the common goal to provide quality, person-centered and cost-effective services to individuals with intellectual and developmental disabilities. It requires person-centered plans.

 

DMHSAS provides direct services through regional mental health institutes and licenses certain types of residential facilities for adults with mental illnesses. Those facilities are formally referred to as Mental Health Adult Residential Facilities and Mental Health Adult Supported Residential Facilities, but they can be described collectively as mental health group homes. DMHSAS, as does DIDD, engages in a mixture of direct service provision, licensure administration, and regulation.

 

Disability Rights Tennessee, the Protection and Advocacy group for Tennessee, on behalf of several individuals in group homes regulated by each of the above agencies sued saying that the people they were suing on behalf of were not receiving effective communication. All of the plaintiffs identified ASL as their primary language. Each of the group homes were privately operated. However, the plaintiffs alleged that the state of Tennessee was responsible for the group homes failures because it had the responsibility of developing and overseeing the group homes and failed to provide or require the following: 1) appropriate communication evaluations conducted by a person fluent in ASL and familiar with culturally deaf individuals; 2) programs, services, and activities offered with signing staff or qualified sign language interpreters; 3) qualified sign language interpreters for planning meetings; 4) qualified mental health sign language interpreters for mental health treatment; 5) qualified sign language interpreters for habilitative, rehabilitative, behavioral, occupational, vocational, community, and other services; 6) coordination of and scheduling qualified sign language interpreters for medical appointments; 7) provision of group homes meeting the communication needs of culturally deaf individuals including but not limited to, sign fluent staff and necessary assistive technology, such as videophones, flashing fire alarms, and bed shaker alarms; 8) ongoing, strong connection with the culturally deaf community including but not limited to sign fluent interpreters and continued ASL exposure; 9) person-centered planning and supports. The allegations with respect to DMHSAS failures were substantially similar as to DIDD’s failures with language changes recognizing that different disabilities were involved.

 

II

Court’s Reasoning That the State of Tennessee Can Be Directly Liable for Failing to Ensure the Group Homes Carry out Their Obligations to the Deaf, culturally deaf, Individuals They Serve

 

  1. While Title II of the ADA and §504 are different in their sources (civil rights v. spending power), they both prohibit discrimination against persons with disabilities under a paradigm very similar to each other. So, the two statutes get interpreted the same way.
  2. In order to prevail, a plaintiff has to establish that: 1) plaintiff has a disability; 2) plaintiff is otherwise qualified for the benefit or services at issue; and 3) plaintiff was excluded from participation in, denied the benefits of, or was subjected to discrimination under the program by the defendant because of plaintiff’s disability.
  3. 28 C.F.R. §35.130(b)(6) provides that: “a public entity may not administer any licensing or certification program in a manner that subjects qualified individuals with disability to discrimination on the basis of disability, nor may a public entity established requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.” As phrased, this regulation leaves open the possibility of liability based upon an agency’s operation of the licensure authority in a manner resulting in discrimination.
  4. 28 C.F.R. §35.130(b)(6) recognizes that a government agency’s decision to rely on a privatized and license model rather than on a direct services model, does not inherently excuse it from its antidiscrimination obligations in performing the underlying public services.
  5. Plaintiff’s have adequately pleaded that the group home licensure system and practice are mechanisms by which those two agencies themselves render public services. Further, the plaintiffs allegations largely focused not on the day-to-day operation of group homes, but on the defendant agency roles in coordinating care and setting minimum standards-both of which are services the agency to provide, even if they do not pay for the underlying placements.
  6. Every group home in which the plaintiffs resided was allegedly part of the care system developed and shaped by the defendant agencies in furtherance of those agency specific and acknowledged statutory responsibilities and for the express and intentional benefit of individuals like the plaintiffs.
  7. The agency powers, responsibility, and missions when combined with the allegations in the complaint, are sufficient to establish, for pleading purposes, that the agencies are administering their licensure authority in a manner subjecting qualified individuals with disabilities to discrimination in the provision of public services, including with regard to both care itself and any associated case management services over which the agencies exercise direct or indirect control. Going forward, the plaintiffs still have the ultimate burden to establish that the agencies actually used the kind of authority that the plaintiff’s claim and that the agency’s actions do in fact result discrimination the provision of public services.

 

II

Court’s Reasoning That Sovereign Immunity Applies to Plaintiffs Title II Claims for Damages But Not to the Rehabilitation Act Claims for Damages

 

  1. Title II of the ADA contains statutory language forcibly waving sovereign immunity.
  2. With respect to whether Title II forcibly waives a state’s sovereign immunity, the approach works as follows: 1) forcible waiver is applied where the alleged misconduct violates both Title II and a plaintiff’s constitutional rights under the 14th Amendment (including the incorporation of any of the Bill of Rights into that amendment); 2) where the conduct violates Title II but not the 14th Amendment, the court must consider whether sovereign immunity applies to that class of conduct. Doing that, means looking to whether the statutory scheme with proportional to the harm being redressed. It essentially means determining what equal protection tier a person with a disability falls in with respect to the facts of that particular case.
  3. Citing to Board of Trustees of the University of Alabama v. Garrett, States are not required by the 14th Amendment to make special accommodations (term “special accommodations,” appears in the opinion itself), for the disabled so long as their action toward such individuals are rational.
  4. With respect to §504 to Rehabilitation Act, sovereign immunity poses no obstacle because Tennessee waived sovereign immunity in return for accepting federal funds. It also provides no basis for dismissing Title II claims for injunctive relief as the 11th Amendment does not bar an ADA Title II claim for prospective relief against state officials in their official capacities.

 

III

Disability Rights Tennessee Has Standing

 

  1. The unique structure of Protection and Advocacy systems create something of a challenge for traditional standing principles.
  2. Protection and Advocacy agencies are entrusted with roughly the equivalent of enforcement power by the federal and state governments, but lack the government’s standing to enforce its own laws.
  3. Protection and Advocacy organization must rely on the principle that an association for standing to sue on behalf of its members when: 1) its members would otherwise have standing to sue in their own right; 2) the interests at stake are germane to the organization’s purpose; and 3) neither the claim brought nor the relief requested requires the participation of individual members in the lawsuit.
  4. The individuals for whom a Protection and Advocacy agency is called on to protect are typically not members of the organization or more like constituents or beneficiaries. Therefore, in the absence of a formal membership structure, the Protection and Advocacy agency can rely on the constituent for the purposes of standing only if it can establish a sufficient indicia of membership. So, a Protection and Advocacy organization has standing to assert the injuries of any constituent with whom it has a demonstrated relationship sufficient to establish the indicia of membership.

 

 

IV

Thoughts/Takeaways

 

  1. This case basically involves the principle that the ADA and the Rehabilitation Act are nondelegable duties (see this blog entry). Not carrying out those duties can potentially lead to direct liability even if the nonfederal governmental entity is not the one administering the programs and activities.
  2. The court gets it wrong with respect to stating that failure to accommodate cases fall within the rational basis class. That simply isn’t true. Failure to accommodate (actually, any suit for damages against an employer by a person with a disability), in the employment context per Board of Trustees of the University of Alabama v. Garrett, here, does fall within the rational basis class. However, that is not the same thing as saying that failure to accommodate always falls in the rational basis class. That simply isn’t true. For example, in Tennessee v. Lane, here, the court held that the specific equal protection tier that a person with a disability falls into depends upon the individual facts of the case. They also held that with respect to accessing the courts, a person with disabilities are at least in the intermediate scrutiny class if not higher. So, it simply isn’t right to say that failure to accommodate cases regardless of the context they occur in, fall within the rational basis class.
  3. The reasoning of this decision essentially sets up a system of vicarious liability. I have a hard time with saying that vicarious liability applies to the ADA and Rehabilitation Act in light of their statutory scheme and the case law over the years. That said, there is another way the court could have gone about it. There are numerous other regulatory provisions that offered a tighter fit for independent liability of the nonfederal governmental entities. Those regulatory provisions include 28 C.F.R. §§35.130(b)(1)(i-v,vii), (b)(2), (3), immediately below:

 

(b)

(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability—

(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;

(v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity’s program;

(vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

(2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.

(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;

(ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities; or

(iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State.

 

  1. A separate question is whether 28 C.F.R. §§35.130(b)(1)(i-v,vii), (b)(2), (3) would survive Loper Bright, discussed here. I think a strong argument exist that it would because these regulations are very closely tied to the statutory language of the ADA. Keep in mind, we don’t actually know what is the standard that courts will use in deciding that regulations are extremely persuasive to a matter being considered by the court. Things would have been a lot simpler if Loper Bright had said that Kisor v. Wilkie, here, applied to final regulations as well to agency interpretations of their regulations.
  2. If this decision holds, it has absolutely huge implications in other worlds. For example, medical licensing boards delegations of their duties to PHPs is one such area.
  3. The court gives a nice discussion of how standing works with Protection and Advocacy groups. Every state has a Protection and Advocacy group. What they do vary considerably from state to state as well as the amount of litigation that they get involved in.
  4. Deaf or deaf mean very different things. Deaf means: 1) ASL or a sign language is the primary language; 2) 65-120 db hearing loss; and 3) attended a state school for the deaf. Deaf is just someone with a severe to profound hearing loss, 65-120 db.
  5. Until this case, I never thought of licensing regulatory provisions of the regulations as applying in this context. I always viewed the licensing regulatory provisions as applying to the licensing of professionals. Was I being too narrow? Maybe, maybe not. I might not have been because the very last sentence of that regulatory provision says that the programs and activities conducted by the licensee are not covered by that particular provision. Regardless, as noted in §IV(3) of this blog entry, there are numerous other regulatory provisions applicable to this kind of situation.
  6. This case involved a motion for judgment on the pleadings.
  7. You can’t get damages under Title II and §504 simultaneously. It is either one or the other. So, I am not sure it matters if Title II damages claims were dismissed when the §504 claims were allowed to go forward.
  8. “Special accommodation,” is a term that drives disability activists absolutely bonkers. Use “reasonable accommodations,” or “reasonable modification,” instead. Nothing special at all about the accommodations a person with a disability needs to get to the same starting line as a person without a disability as it is a matter of right.
  9. Sovereign immunity, with one very rare exception, here, does not apply to prospective relief against officials sued in their official capacity.

Before getting started on the blog entry for the week, I did finish Over Ruled. What is clear from reading the book, is that Justice Gorsuch clearly believes that the administrative state had gotten too big and that sufficient guardrails for the administrative state do not exist. Also, from reading that book, it is pretty clear to me that he would think Loper Bright overruled Kisor v. Wilkie. So, administrative regulations he will uphold will have to have a very tight relationship to the particular statute and even more so with respect to any guidances. It will be interesting to see what standard ultimately comes into being with respect to carrying out Loper Bright.

 

This week’s blog entry returns us to Batson challenges. Batson is a criminal version but there is also a civil version as well. It seems that everything goes by Batson in terms of the vernacular regardless of whether it is a criminal or civil division issue. Consider the following. In response to a Batson challenge in Illinois in the case of the People of the State of Illinois v. Wright, decided by the Appellate Court of Illinois, First District, on May 31, 2024, here, the prosecutor says as the reason for exclusion:

 

“In addition to his questionable demeanor-when I say demeanor, that’s what I’m talking about, that back and forth in the not volunteering any information and not listening to the questions. He was young, he was living at home, and the concern there is that he also was a young African-American who might identify with the defendant who was around the same age at the time that this offense, the actual shooting of Officer Bansley, was committed.”

 

In Colorado, in the case of People of the State of Colorado v. Romero, here, decided by the Colorado Supreme Court on September 9, 2024, the prosecutor says as the reason for exclusion:

 

“So, Your Honor, I reason for striking with due to the fact that he appeared very disinterested and kind of had seemed to have a wandering mind at times when the court was reading the instructions and going over concepts,… When we were asking questions of everyone, he just didn’t seem particularly focused or interested in what was going on.”

 

This blog entry will explore why the Batson challenge gets thrown out in Colorado but upheld in Illinois. As usual, the blog entry is divided into categories and they are: how Batson works; Colorado Supreme Court’s reasoning in Romero on why the Batson challenge fails; Illinois appellate court’s reasoning in Wright as to why the Batson challenge prevails; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

How Batson Works

 

  1. Batson deals with peremptory challenges, which is the ability of a trial attorney to excuse a prospective juror for any reason whatsoever. Batson says that a process needs to occur if an attorney challenges the exclusion of jurors based upon a protected characteristic.
  2. The process works like this: A) the person making the Batson challenge bears the burden of making a prima facie showing that the strike was based on a protected characteristic; B) the person striking the prospective juror bears the burden of articulating a neutral reason for the strike; and C) the trial court then determines whether the person making the Batson challenge has met the burden of showing by a preponderance of the evidence purposeful discrimination against a person with the protected characteristic.
  3. The court’s conclusion as to whether to allow a Batson claim does not get disturbed unless it is clearly erroneous.

 

II

Colorado Supreme Court’s Reasoning in Romero on Why the Batson Challenge Fails

  1. Clear error standard of review is highly deferential to trial courts because trial courts are in a unique position to make first-hand observations related to demeanor and credibility.
  2. When it comes to Batson challenges, the burden of proof always rests with the objecting party, i.e. the person making the Batson challenge. That objecting party must show by a preponderance of the evidence that the peremptory strike in question was motivated by purposeful discrimination.
  3. The trial court was unable to independently say whether the juror was disinterested.
  4. It is not up to the appellate courts to conduct a de novo review (a review from the beginning without considering what the trial court did), when it comes to Batson challenges. An appellate court is precluded from substituting its reading of the cold record for the trial court’s in the moment and better informed determination. As such, an appellate court must give deference to a trial court’s ruling on a Batson challenge so long as the record: 1) reflected that the trial court considered all relevant circumstances; and 2) supported the trial court’s ruling as to whether the objecting party crew purposeful discrimination on the basis of a protected characteristic by a preponderance of the evidence.
  5. In a footnote, the Colorado Supreme Court noted that “race,” encompasses both race and ethnicity.
  6. In a footnote, the Colorado Supreme Court notes that as a practical matter the Batson steps, particularly at step one and two, often get combined into a single instance so that it becomes impossible for the court to separate out step one from step two.
  7. A trial court’s finding that a prosecutor’s articulated reason for excluding a prospective juror is credible does not require such a finding to be explicit.
  8. Batson challenges have been difficult and unwieldy to apply both at trial and on appellate review.
  9. Batson challenges have been in the line of fire for nearly 40 years as an ever-growing number of courts and commentators have exposed the troublesome flaws and validated Justice Marshall’s dire prognostication that Batson would prove ineffective.
  10. Some states have abolished peremptory challenges altogether, such as in Arizona.
  11. Some Colorado Supreme Court justices have suggested doing away with Batson challenges. However, that decision ultimately lies with the Colorado legislature because peremptory strikes are provided by statute and not by court rule as was the case in Arizona.
  12. Batson challenges have to continue so long as the Colorado legislature continues to allow for peremptory strikes.
  13. It isn’t hard for a person making a Batson challenge to satisfy step one of the Batson process. Although a person making the challenge have to show that the totality of the circumstances gives rise to an inference of motivation based upon a prohibited characteristic.
  14. A neutral reason that an attorney must make in response to a Batson challenge means a reason based on something other than the protected characteristic of the prospective juror. When considering that neutral reason, the trial court may not consider the plausibility or persuasiveness of the stated reason. All a court can consider is whether on its face the reason is not based upon a protected characteristic. In other words, the question is whether assuming the reason for the peremptory challenge is true, the challenge is based on something other than the protected characteristic.
  15. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason will be deemed to be neutral.
  16. At the final step of Batson, the trial court has to consider the persuasiveness of the striking party’s reason for the peremptory strike in light of any rebuttal offered. In doing that, the trial court must ponder all of the relevant circumstances bearing upon the issue of purposeful discrimination. Those relevant circumstances include, but are not limited to: 1) the striking party’s demeanor; 2) the reasonableness of the offered explanation that it was not based upon a protected characteristic; 3) whether the rationale advanced is rooted in accepted trial strategy; and 4) the plausibility of the striking party’s nondiscriminatory explanations.
  17. The ultimate burden of persuasion regarding motivation based upon a protected characteristic rests with and never shifts from the person opposing the Batson challenge. After all, the opponent of the strike is the party alleging purposeful discrimination based upon a protected characteristic.
  18. In considering whether the objecting party has shown discrimination by a preponderance of the evidence based upon a protected characteristic, the test to use is the substantial motivating factor test. That is, if the peremptory strike was motivated in substantial part by discriminatory intent, the Batson challenge gets upheld.
  19. An implausible or fantastic explanation for a strike upper peremptory juror should probably be found to be a pretext for purposeful discrimination based upon a protected characteristic.
  20. In a typical peremptory challenge inquiry, the decisive question will be whether counsel’s neutral explanation for peremptory challenge should be believed. However, there is seldom much evidence pertaining to that issue.
  21. Credibility of a neutral reason is intrinsically difficult to assess because the exercising of peremptory strikes is often a matter of instinct and even articulating a reason for a strike can be difficult.
  22. The demeanor and credibility of the attorney exercising the peremptory strike frequently constitute the best evidence of whether the objecting party can establish purposeful discrimination, which is a matter particularly suited for the trial judge.
  23. The preferred practice is to have trial court make explicit demeanor and credibility findings because such findings are helpful on appellate review.
  24. Implicit demeanor and credibility findings are okay, but what is not okay is no demeanor and credibility findings, explicit or implicit. In this case, the trial court implicitly found that the prosecutor’s neutral reasons were credible and sincere. At no point did the trial court state or even hint that it thought the prosecutor was being disingenuous or untruthful.
  25. The question to consider in a Batson challenge is whether affirmative evidence in the record existed refuting the alleged neutral reason for the strike given by the attorney making the strike.
  26. While the prosecutor’s reason was subjective, the trial court realized that it still could be the basis for a valid peremptory challenge.
  27. Trial judges are urged to make explicit demeanor and credibility findings when making their ultimate ruling on a Batson challenge.
  28. In many cases a subjective demeanor based reason will not be enough to survive clear error review because of the highly deferential standard given to trial courts when making Batson determinations.

 

III

Illinois Appellate Court’s Reasoning in Wright As To Why the Batson Challenge Prevails

 

  1. At step two of the Batson process, a neutral explanation is one based upon something other than the protected characteristic. The prosecutor has to give clear and reasonably specific, legitimate, neutral based reasons for the strike.
  2. A legitimate reason is not a reason that makes sense, but is a reason that does not deny equal protection.
  3. Discriminatory intent may found to be inherent in an explanation where the offer of a supposedly neutral explanation has an ingredient based upon a protected characteristic.
  4. The prosecutor’s reasons challenging the prospective juror based upon his demeanor and status as a young African-American male creates an inference of purposeful discrimination.
  5. The court could not find that the prospective juror’s behavior demonstrated disinterest or disrespect any more than it shows cooperation with the questioning process.
  6. Explanation pertaining to demeanor must be harshly scrutinized because they are so subjective and can be easily used by prosecutors as a pretext for excluding persons on the basis of a protected characteristic.
  7. The prosecutor never sought to clarify the distinction between the prospective juror’s age and his race, which raises doubt as to the plausibility of the prosecutor’s concern.
  8. The record does not support that the person struck from the panel had a significantly different demeanor from jurors that were not black. Also, the person struck life’s experiences were similar as to the life experiences of jurors that were not black who were not struck. Finally, the record demonstrated that many other jurors answered the questions similarly as to the juror struck.

 

 

IV

Thoughts/Takeaways

 

  1. Throughout the blog entry, I used the term “protected characteristic,” and not race. After Tennessee v. Lane, here, it is clear to me that persons with disabilities are in a sufficiently high equal protection class for purposes of Batson challenges. Tennessee v. Lane held that people with disabilities when it comes to equal protection, are at least in the intermediate scrutiny class if not higher when it comes to accessing the courts. Certainly, serving on juries is a critical component of accessing the courts.
  2. You might also be able to argue by analogy via Bostock, that persons of differing sexual orientation and gender identity would also have Batson challenges available, though Bostock is not an equal protection case.
  3. The way Batson challenges work is pretty similar everywhere. Batson has a civil equivalent, here.
  4. The big difference between Illinois and Colorado is that neutral reasons based upon demeanor get harshly scrutinized in Illinois, while in Colorado, such a reason gets the full benefit of the clear error rule.
  5. I am not a trial attorney. However, if I heard the explanation of the prosecutor in Colorado, my immediate response would be that the explanation was discriminating on the basis of a protected characteristic. That is, the explanation given describes classic behavior of someone with ADHD. I am not saying that prospective juror had ADHD, but that it was a possibility. I would make the argument that the prosecutor may be regarding the juror as having a disability (ADHD). In Illinois, a demeanor-based explanation gets searching review. Even in a searching review jurisdiction, I might throw in the regarding a person as having ADHD to help with the searching review process.
  6. The Colorado Supreme Court seems a bit torn with the decision when it goes out of its way to say that judges need to make explicit demeanor and credibility findings.
  7. While Batson challenges work the same everywhere, there may be critical differences in your particular state concerning how an appellate court reviews a Batson determination for clear error.
  8. I have not done a search for whether there is a similar difference of opinion with respect to clear error, such as what exists between Illinois and Colorado, in various federal courts, but there very well could be.
  9. The ADA prohibits regarding a person as having a physical or mental impairment. It also frowns upon myths, generalization, and stereotypes. An argument can be made that is exactly what goes on when it comes to using peremptory challenges. I can understand why Arizona got rid of peremptory challenges altogether. Keep in mind, I am not a trial attorney, so it is easy for me to say that it might make a great deal of sense to get rid of peremptory challenges.
  10. It is unclear whether Colorado’s substantial motivating factor test matches up with or is significantly different from the substantial factor test discussed in Bostock, here.
  11. Implausible or fantastic explanations are in the eyes of the beholder, which is another reason it makes sense for Illinois to be extremely skeptical of demeanor-based explanations.

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

 

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

 

I

Facts

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

II

 

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

 

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

 

III

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

 

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

 

IV

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

 

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

 

V

Miscellaneous Matters

 

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

 

VI

 

Thoughts/Takeaways

 

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

I hope everyone had a great holiday weekend.

 

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

 

I

Facts

 

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

 

II

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

 

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

 

III

Thoughts/Takeaways

 

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

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

 

I

Facts

 

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

 

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

 

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

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

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

 

II

Majority Opinion’s Reasoning That Andrews Forfeited Certain Arguments

 

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

 

III

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

 

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

 

IV

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

 

 

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

 

V

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

 

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

 

VI

Thoughts/Takeaways

 

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

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

 

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

 

I

Facts (taken directly from opinion)

 

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

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

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

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

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

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

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

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

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

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

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

 

II

Court’s Reasoning That Plaintiff Has Standing

 

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

 

III

Court’s Reasoning Denying Certain ADA and Rehabilitation Act Claims

 

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

 

IV

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

 

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

 

V

Thoughts/Takeaways

 

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

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

 

I

Facts

 

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

 

II

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

 

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

 

III

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

 

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

 

III

Court Throws out §1983 Claim against the Principal

 

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

 

IV

Thoughts/Takeaways

 

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

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

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

 

I

Thoughts on Why the HUD Circular Just Might Survive Kisor

 

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

 

II

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

 

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

 

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

 

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

III

Whether the Circular Survive Loper Bright

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

 

IV

Thoughts/Takeaways

 

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

 

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

 

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

 

I

Facts

 

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

 

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

 

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

 

 

II

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

 

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

 

III

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

 

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

 

IV

Direct Threat Defense Doesn’t Fly

 

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

 

V

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

 

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

VI

Thoughts/Takeaways

 

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

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

 

I

Facts

 

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

 

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

 

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

 

II

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

 

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

 

III

Thoughts/Takeaways

 

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

ADA turns 34 on July 26.

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