The blog entry for the week is actually not an ADA case at all but it may have a substantial impact on the ADA universe. The case of the day is Murray v. UBS securities, LLC, a unanimous decision written by Justice Sotomayor, from the Supreme Court decided on February 8, 2024, here. It actually explores what a plaintiff has to show when it comes to proving discrimination in a Sarbanes-Oxley case. As usual, the blog entry is divided into categories, and they are: facts; Court’s reasoning that Sarbanes-Oxley does not reference or include a retaliatory intent requirement; Court’s reasoning that Sarbanes-Oxley has a contributing factor burden shifting framework built into the statute that also dictates there be no retaliatory intent requirement when it comes to whistleblowers proving retaliation; Justice Alito concurring opinion joined by Justice Barrett; and thoughts/takeaways and how Murray might impact ADA jurisprudence. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

In 2011, Trevor Murray was employed as a research strategist at securities firm UBS, within the firm’s commercial mortgage-backed securities (CMBS) business. In that role, Murray was responsible for reporting on CMBS markets to current and future UBS customers. Securities and Exchange Commission (SEC) regulations required him to certify that his reports were produced independently and accurately reflected his own views. See 17 CFR §242.501(a) (2022). Murray contends that, despite this requirement of independence, two leaders of the CMBS trading desk improperly pressured him to skew his reports to be more supportive of their business strategies, even instructing Murray to “clear [his] research articles with the desk” before publishing them. 1 App. in No. 20–4202 (CA2), p. 254. Murray reported that conduct to his direct supervisor, Michael Schumacher, in December 2011 and again in January 2012, asserting that it was “unethical” and “illegal.” App. 28. Schumacher expressed sympathy for Murray’s situation but emphasized that it was “very important” that Murray not “alienate [his] internal client” (i.e., the trading desk). Ibid. When Murray later informed Schumacher that the situation with the trading desk “was bad and getting worse,” as he was being left out of meetings and subjected to “constant efforts to skew [his] research,” Schumacher told him that he should just “write what the business line wanted.” Id., at 29–30. Shortly after that exchange (and despite having given Murray a very strong performance review just a couple months earlier) Schumacher emailed his own supervisor and recommended that Murray “be removed from [UBS’s] head count.” Id., at 39. Schumacher recommended in the alternative that, if the CMBS trading desk wanted him, Murray could be transferred to a desk analyst position, where he would not have SEC certification responsibilities. The trading desk declined to accept Murray as a transfer, and UBS fired him in February 2012.

 

After the judge had instructed the jury, the jury sought clarification on the instructions. Once they received the clarification, the jury awarded $1 million to Murray and the court subsequently awarded $1.769 million in attorney’s fees and costs. When the court clarified the instructions, the clarification did not include any suggestion that discrimination per the Sarbanes-Oxley Act’s anti-retaliation provision required a whistleblower-employee to prove retaliatory intent. UBS appealed and won at the Second Circuit. Murray then appealed to the United States Supreme Court. In light of a conflict between the Second Circuit v. the Fifth and Ninth Circuits, the Supreme Court accepted the case.

 

II

Court’s Reasoning That Sarbanes-Oxley Does Not Reference or Include A Retaliatory Intent Requirement.

 

  1. Sarbanes-Oxley’s statutory text states that no employer subject to the act may be discharged, demoted, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of the employee’s protected whistleblowing activity. 18 U.S.C. §1514A.
  2. The placement of the word “discriminate,” in that section’s catchall provision suggests that it is meant to encompass other adverse employment actions not specifically listed. The clause is clearly drawing meaning from the terms “discharge, demote, suspend, threaten, and harass,” rather than giving those terms a new or different meaning.
  3. Prohibited discrimination occurs when an employer intentionally treats a person worse because of a protected characteristic.
  4. In Bostock, which we discussed here, the Court made clear that a lack of “animosity,” is irrelevant to a claim of discrimination under title VII.
  5. Any animus-like retaliatory intent requirement is absent from the definition of the word, “discriminate.”
  6. When an employee treats someone worse-whether by firing them, demoting them, or imposing some other unfavorable change in the terms and conditions of employment-“because of,” the employee’s protected whistleblowing activity, the employer violates §1514A. It does not matter whether the employer was motivated by retaliatory animus or motivated, for example, by the belief that the employee might be happier in a position that did not have SEC reporting requirements.
  7. Accepting that the word “discriminate,” is relevant to the intent inquiry, the only intent required by §1514A requires is the intent to take some adverse employment action against the whistleblowing employee “because of,” is protected whistleblowing activity.

 

III

Court’s Reasoning That Sarbanes-Oxley Has a Contributing Factor Burden Shifting Framework Built into the Statute That Also Dictates There Be No Retaliatory Intent Requirement When It Comes to Whistleblowers Proving Retaliation

 

  1. The statute is clear that whether an employer “discriminated,” has to be resolved through the contributing-factor burden-shifting framework applying to Sarbanes-Oxley whistleblower claims.
  2. Requiring a whistleblower to prove an employer’s retaliatory animus ignores the statute’s mandatory burden-shifting framework, the discussion of which was conspicuously absent from the Second Circuit’s opinion.
  3. The burden-shifting framework provides a means of getting at intent, and Congress here has decided that the plaintiff’s burden on intent is simply to show that the protected activity was a “contributing factor in the unfavorable personnel action per 49 U.S.C. §42121(b)(2)(B)(i).”
  4. While many statutes dealing with employment discrimination apply a higher bar by requiring a plaintiff to show that his protected activity was a motivating or substantial factor in the adverse action, the incorporation of the contributing-factor standard into Sarbanes-Oxley itself reflects a judgment that personnel actions against employees should quite simply not be based on protected whistleblowing activities-not even a little bit.
  5. The ordinary meanings of the words “contribute,” and “factor,” suggests the phrase “contributing factor,” is broad.
  6. The statute’s burden shifting framework provides at 49 U.S.C. §42121(b)(2)(B)(ii), that an employer will not be held liable where it “demonstrates, by clear and convincing evidence, that it would’ve taken the same unfavorable personnel action in the absence of,” the protected behavior. The right way to think about that kind of same-action causation analysis is to change one thing at a time and see if the outcome changes. Therefore, the question is whether the employer would have retained an otherwise identical employee who had not engaged in the protected activity.
  7. The contributing-factor framework Congress chose in Sarbanes-Oxley is not as protective of employers as a motivating-factor framework, which is by design. Congress has employed the contributing-factor framework in contexts where the health, safety, or well-being of the public may well depend on whistleblowers feeling empowered to come forward. This Court cannot override that policy choice by giving employers more protection than the statute itself provides.
  8. While a whistleblower invoking the retaliation provisions of Sarbanes-Oxley does have the burden to prove that his protected activity was a contributing factor in the unfavorable personnel action alleged in the complaint, the whistleblower is not required to make some further showing that his employer acted with retaliatory intent.

 

IV

Justice Alito Concurring Opinion Joined by Justice Barrett

 

  1. Sarbanes-Oxley makes no mention of any animus in any of its provisions and there is no ground for the Court to add it as an additional, non-statutory requirement.
  2. The rejection of a “animus,” requirement does not read intent out of the statute. That is, a plaintiff still has to show an intent to discriminate.
  3. The phrase “in any other manner discriminate,” suggests that the adverse action must be a form of discrimination.
  4. Discriminatory discharge that is made “because of,” a particular factor necessarily involves an intentional choice where that factor plays some role in the employer’s thinking. In other words, the plaintiff must prove that the employer intentionally treated the plaintiff worse because of the protected conduct.
  5. Proving intent means that the plaintiff must show that a reason for the adverse decision was the employee’s protected conduct. A plaintiff need not prove that the protected conduct was the only reason or even that it was a principal reason for the adverse decision. Showing that it helped to cause or bring about that decision is enough. If the plaintiff makes that showing, the statute’s intent requirement is met, and the only open question is causation. With respect to causation, Sarbanes-Oxley shifts the burden to the employer to prove by clear and convincing evidence that it would’ve taken the same unfavorable personnel action alleged in the complaint. In other words, the employer has to show then that the plaintiff’s protected conduct did not cause the challenged employment decision. If the employer satisfies that burden, then the element of causation has not been proved.

 

 

V

Thoughts/Takeaways and How Murray Might Impact ADA Jurisprudence

 

  1. This case may have significant repercussions with respect to the ADA. For example, the retaliation provision of the ADA, which can be found at 42 U.S.C. §12203(a) is written in the same way at the retaliation statute in Sarbanes-Oxley. That is, the word “discriminate,” leads off the statutory provision. As a result, a strong likelihood exists that any effort of a defense attorney to show that retaliation with respect to the ADA involves showing retaliatory animus will likely fail.
  2. What is missing from the ADA in terms of the statutory provisions is the burden-shifting baked into Sarbanes-Oxley. As we have discussed multiple times, such as here, McDonnell Douglas has over the years taken over summary judgment when it comes to ADA cases, particularly on the employment side. We know from this blog that whether that kind of approach will continue to make sense is very much up in the air. The hard thing to figure out from Murray is whether the discussion of burden shifting and motivating factor is expressing some kind of affinity for that kind of framework or whether the discussion is occurring because of the statutory provisions contained in Sarbanes-Oxley. The answer to that question matters because of trying to hazard a guess as to whether the Supreme Court will continue with McDonnell Douglas as a summary judgment tool or whether it will adopt an approach like the Seventh Circuit, which we discussed here, or an approach like the 11th Circuit, which we discussed here.
  3. It is also interesting to think about this case with respect to whether a person alleging retaliation can get damages, a point with the courts are all over the place on as we discussed here. As I mentioned in that blog entry, Justice Alito when he was on the Circuit Court bench wrote an opinion where he said that retaliation is discrimination. That decision combined with this decision does have you wondering whether damages are possible in a retaliation case.
  4. Bostock, which we discussed here, is an absolute must read when it comes to causation.
  5. As Justice Alito says, you still have to show intentional discrimination.
  6. We know that compensatory damages under title II are only possible upon a showing of deliberate indifference, see this blog entry for example. We also know that deliberate indifference can mean different things depending upon the jurisdiction you are in, such as here for example. As far as I can tell, “deliberate indifference,” is a judicially created standard for Rehabilitation Act cases and for title II cases. The language of this decision is broad enough to create a real issue in my mind whether “deliberate indifference,” for the reasons the Court describes in Murray, is still good law. Definitely look for plaintiffs attorneys to begin exploring this in title II and §504 cases. It also raises the issue of what might be the likelihood or not of the Court deciding whether emotional distress damages can be available under title II of the ADA. We already know from Cummings, here, that emotional distress damages are not available under the Rehabilitation Act absent a change in the law from Congress. The jury is still out so to speak, and especially now after Murray, as to whether the same analysis will apply to title II cases.

Normally, as you all know, I don’t blog on more than one case in a week. However, I will be out of town the first part of next week, and I generally prefer to get blog entries up at the beginning of the week. I am also headed out of town the following week as well (middle to end of that week). So, I thought I would put up a blog now and also establish a game plan for the blog entries for the next two weeks. Our topic for the day and for our next blog as well is retaliation. There are two cases that we will look at in this blog and in the following blog (we can call it part I and part II). In part I, which is the blog entry for the week of February 12, the case is Dupree v. Owens, here, a published decision from the 11th Circuit decided February 6, 2024. In part II, which will be the blog entry for the one after this one, we will discuss Murray v. UBS Securities, LLC, here,  decided by the United States Supreme Court on February 8, 2024. Dupree asks the question of whether sovereign immunity applies to a retaliation claim involving a Title I situation. It also asks the question of whether sovereign immunity dismissals must be done without prejudice. Murray asks the question of whether the Sarbanes-Oxley act requires animus when it comes to proving retaliation. As usual, the blog entry is divided into categories and they are: Dupree v. Owens facts; Dupree’s court’s reasoning that sovereign immunity applied to the retaliation claim; Dupree’s court’s reasoning that sovereign immunity dismissals must be without prejudice; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Dupree v. Owens Facts:

 

The facts are pretty straightforward. Two different employees of the State of Georgia, Dupree and Battle (one with the Department of Human Services and one with Georgia Department of Corrections), were both terminated after putting their employer on notice about their disability, seeking accommodations, and then being terminated. They both filed Title I claims as well as retaliation claims.

 

II

 

Dupree’s Court’s Reasoning That Sovereign Immunity Applied to the Retaliation Claim

 

  1. Sovereign immunity is inherently jurisdictional in nature and thus, the appellate court can review lower court determinations with a de novo standard.
  2. Overcoming sovereign immunity means having to show that Congress unequivocally declared its intent to abrogate sovereign immunity. It also means having to show that Congress did so pursuant to a valid grant of constitutional authority.
  3. In figuring out whether a valid grant of constitutional authority exists, a court looks to see whether the law Congress came up with was congruent and proportional to the harm being redressed. In particular, courts look at: 1) the right Congress sought to enforce when it enacted the ADA; 2) examine whether a demonstrated record of unconstitutional discrimination existed to support Congress’ decision that preventative legislation was warranted; and 3) determine whether the ADA provision at issue was an appropriate response to the history of mistreatment.
  4. No controlling case law from the 11th Circuit or the United States Supreme Court exists concerning whether the 11th amendment specifically bars Title V ADA claims against State entities when brought with Title I claims. In a footnote, the court notes that the Ninth Circuit has said that sovereign immunity applies when a Title V claim is based on an underlying Title I violation.
  5. Tennessee v. Lane, here, doesn’t help either plaintiff because that case did not concern Title I of the ADA.
  6. Plaintiffs claims have to fail because the Supreme Court in Board of Trustees of the University of Alabama v. Garrett, here, specifically held that the ADA does not forcibly waive sovereign immunity when it comes to Title I matters. Here, the underlying situation that the retaliation is based upon is an employment matter (Title I), which was specifically part of the complaint.

 

II

Court’s Reasoning That the Dismissal Must Be without Prejudice

 

  1. Dismissals for a lack of jurisdiction are not judgments on the merits and are to be entered without prejudice.
  2. Since sovereign immunity is jurisdictional in nature, sovereign immunity dismissals should be done without prejudice.
  3. District courts should err on the side of clarity and indicate in their orders whether prejudice has attached. As a result, the case is vacated and remanded for the limited purpose of allowing the district court to dismiss the case without prejudice.

 

III

Dupree Thoughts/Takeaways

 

  1. When it comes to retaliation, retaliation claims just about always attach to an underlying situation involving Title I, Title II, Title III of the ADA. Accordingly, courts will relate the retaliation claim back to one of those situations when they deal with retaliation claims.
  2. Interesting that the court says it will leave for another day as to whether sovereign immunity might apply if only a retaliation claim standing by itself would be brought. Considering how courts invariably look to the situation behind the retaliation, I am not sure the answer would be any different in that eventuality, but it might be.
  3. The Georgia Atty. Gen. is well known for employing sovereign immunity at every possibility when they are faced with a lawsuit.
  4. District courts should specify in their orders when dismissing cases whether prejudice attaches.
  5. The dismissal without prejudice is significant for a couple of reasons. Assuming the statute of limitations is not an issue, both of the plaintiffs have opportunity to proceed under other theories. First, the 11th Circuit is the only circuit that I am aware of that has held that Title II of the ADA applies to employment situations, here. Second, plaintiff’s could get around sovereign immunity by bringing a §504 claim as courts just about always hold that the receipt of federal funds waives sovereign immunity. Finally, the 11th Circuit has also said that individuals working for nonfederal governmental entities (Title II) can be held individually liable for retaliation, here (I know of no other circuit saying this). It will be interesting to see how and whether this case develops further with respect to future claims of individual liability for retaliation or for Title II claims.

 

Have fun watching the Super Bowl y’all.

Today’s blog entry considers the question what happens when you have an individual with a disability seeking to perform a job that the person can do but in order to do that particular job they also have to be simultaneously eligible to do a different job which they may or may not be able to do. Being simultaneously eligible for a prior job in order to do a different job, is what called a nested position. The case of the day is Newton v. Pennsylvania State police decided in an unpublished opinion on January 9, 2024, by the Third Circuit, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that a jury has to decide first whether a position was nested, and if so, whether the individual could then perform the essential functions of the job for both positions simultaneously; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

After being forced to resign from his position as a Pennsylvania State Trooper once he was eligible for retirement, Robert Newton added a claim for wrongful termination to a pre-existing discrimination lawsuit that he had brought against his former employer, the Pennsylvania State Police. That additional claim for disability discrimination under § 504 of the Rehabilitation Act as codified, see 29 U.S.C. § 794, was the only count on which he succeeded at trial in the District Court, which had subject-matter jurisdiction over his claims. See 28 U.S.C. § 1331. Still, Newton won big. A jury awarded him $100,000 in compensatory damages, and the Magistrate Judge who presided over the trial by consent of the parties, see id. § 636(c), imposed the equitable remedies of back pay, front pay, prejudgment interest, and lost benefits. Only his claim for §504 wrongful termination and a §504 failure to promote claim survived to trial.

 

After experiencing pain in his left arm and shoulder, Newton was subsequently diagnosed with stage IV metastatic osteosarcoma, a type of bone cancer. He then went to chemotherapy for 13 months and also had surgery. While the surgery was successful in removing the cancer, left him with permanent limited use of his left arm and shoulder.

 

Under the collective bargaining agreement, Newton was given a permanent limited duty employee with a nonwork related disability as such, he would not guaranteed entitlement of continuing limited duty beyond the date after he reached 25 years of credible service

 

Even with his physical limitations, he could perform tasks for the state police when he came back initially he assisted the procurement and supply officer in ensuring that the troop had needed supplies and equipment. That position was a specialized position open only to troopers serving in a patrol function for at least three years and who had qualifications beyond those required of patrol troopers when the trooper holding that position for troop be retired in August 2003, Newton replaced him. He then held that position at the Butler barracks and until his forced retirement when he reached 25 years of credible service in September of 2020.

 

The state police challenged the liability finding by attacking the jury instruction on whether Newton was qualified for his position because the position was nested.

 

 

II

Court’s Reasoning That a Jury Has to Decide First Whether a Position Is Nested. If the Position is Nested, the Jury Has To Consider Whether the Individual Was Otherwise Qualified for Both Positions Simultaneously.

  1. In order for a person with a disability to be protected under §504, the person has to be otherwise qualified. That means having both a disability as the term is defined and being able to perform the essential functions of the job with or without reasonable accommodations.
  2. In determining whether a person is a qualified individual under the ADA, the EEOC says the first step is to figure out whether the plaintiff satisfies the prerequisites for the position.
  3. The second step involves assessing whether the plaintiff had the ability to perform the essential functions of the job with or without reasonable accommodation.
  4. When you have a situation where eligibility for one position depends upon holding another position, those two steps have to be applied to both positions. Accordingly, the magistrate erred by not allowing a jury instruction inquiring whether to hold the position he was in, he also had to meet the qualifications of a separate position as well.
  5. Whether the procurement and supply officer position was a nested position was a question for the jury. The jury instruction should have further addressed Newton’s ability to hold any identified position under the two-step inquiry for the otherwise qualified element once the jury decided whether the position was nested. In other words, the jury should have been instructed to determine first whether Newton was qualified for any required position (trooper, procurement supply officer, or both), and second whether Newton could perform the essential functions of any such position(s) with or without reasonable accommodations. By not accounting for the potential nested nature of the trooper procurement supply officer position, the jury instructions were inadequate as a matter of law.
  6. In a footnote, the court said that if the nested nature of the trooper procurement supply officer position is not disputed on remand, then it would be necessary to instruct the jury to determine first whether Newton met the qualifications for being a trooper AND a procurement supply officer and second, whether he could perform the essential functions of both positions with or without reasonable accommodations.
  7. In another footnote, the court noted that one judge, the chief Judge, would affirm the judgment because the jury instructions were legally adequate and there was sufficient evidence for the jury to conclude that Newton was a qualified individual able to perform with or without reasonable accommodations, the essential functions of the job of a trooper assigned to the position of procurement and supply officer. In particular, the Chief Judge’s view was that the applicable job description expressly contemplated that Newton could still perform the essential functions of a procurement and supply officer with medical limitations and that for the majority to discuss the trooper and the procurement and supply officer position as standalone positions contradicted the job description and unnecessarily complicated and inherently fact-based analysis.

III

Thoughts/Takeaways

 

  1. I don’t recall blogging on a nested position situation before, which is why I thought a blog entry was deserved.
  2. This case was not an ADA case at all, but rather a §504 case. However, the ADA and the Rehabilitation Act are so similar that with rare exceptions, they get interpreted in the same way.
  3. “Otherwise qualified,” and “qualified,” (ADA and Rehabilitation Act respectively), mean the exact same thing.
  4. This case if its reasoning spreads to other courts, could have a big impact on people who wind up in light duty after becoming a person with a disability or aggravating an existing disability.
  5. Whether a position is nested, is a jury question.
  6. Jury instructions matter. My experience is that jury instructions when it comes to ADA matters may not be as precise as they can be.
  7. One of the footnotes, gives a roadmap to the plaintiff attorney on how that attorney might approach things on remand. That particular judge, the chief judge, believed that the job description of a procurement and supply officer was sufficient to show that a plaintiff could perform the essential functions of the job with or without reasonable accommodations even with medical limitations.
  8. A question to my mind is whether this reasoning shoots down reassignment as a reasonable accommodation when a person can no longer do the essential functions of the job with or without reasonable accommodation that they currently hold. The ADA makes it quite clear that reassignment to a vacant position as a last resort, is a reasonable accommodation if the person can no longer do the essential functions of the position they are currently in with or without reasonable accommodations. We have discussed reassignment previously in the blog, such as here for example.

When it comes to the ADA, there are three possible kinds of lawsuits. First, disparate treatment. Second, failure to accommodate. Third, disparate impact. You don’t see a lot of disparate impact cases. As a result, I thought it would be useful to blog on a decision dealing with the disparate impact issue. Our case of the day is Oross v. Kutztown University decided by the Eastern District of Pennsylvania on January 8, 2024, here.. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning changing its mind from prior ruling and holding that plaintiff’s disparate impact claim can proceed; court’s reasoning that plaintiff’s emotional distress claim goes nowhere; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff, a tenured Associate Professor of Psychology at Defendant Kutztown University (“Kutztown” or the “University”), brought this action claiming the Defendants Kutztown and its President, Dr. Kenneth Hawkinson (“Dr. Hawkinson”) and its Vice President for Equity, Compliance, and Liaison for Legal Affairs, Jesus Pena (“Mr. Pena”) violated Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794, when they denied his request for a remote work accommodation for the Fall Semester of 2021. Plaintiff claims that in denying his request, the Defendants refused to consider his individual circumstances of having recently undergone a heart transplant that requires life-long immunosuppressive medications to reduce his risk of organ rejection and which place him at a higher risk of contracting COVID-19 and instead relied on a recently formulated general policy that any request to change the course modality from in-person to remote would be considered a substantial alteration to the course offerings and would represent an undue hardship to the University.

The Complaint consisted of the following 12 counts: Failure to Accommodate (Count One); Facial Invalidity of Defendants’ Full-duty Requirement (Count Two); Intentional Discrimination Because of Disability (Direct Evidence)(Count Three); Intentional Discrimination Because of Disability (Pretext) (Count Four); Disparate Impact based on Prohibited Standards, Criteria, or Methods of Administration (Count Five); Kutztown University’s Retaliation and Interference under Section 504(Count Six); Section 504 Retaliation and Interference Claims against Dr. Hawkinson (Count Seven); 42 U.S.C. Section 1983 claims against Dr. Hawkinson for Deprivation of Federal Statutory Rights under Section 504 (Count Eight); Section 1983 Claims against Dr. Hawkinson for Violations of First and Fourteenth Amendments (Count Nine); Mr. Pena’s Retaliation and Interference under Section 504 (Count Ten); Section 1983 Claims against Mr. Pena for Violations of Plaintiff’s Federal Statutory Rights under Section 504 (Count Eleven) and Section 1983 Claims against Mr. Pena for First Amendment Violations (Count Twelve).

Both Plaintiff and the Defendants filed motions for summary judgment. In granting and denying both motions in part, the Court entered judgment in favor of Plaintiff and against Defendants on Counts I, II, III, IV, VI (interference), of the Complaint [ECF 69 and 70]. The Court also entered judgment in favor of the Defendants and against the Plaintiff on Counts V, VII, VIII, IX, X, XI, XII of the Complaint. Id. Finally, the Court ordered that Plaintiff’s request for emotional and punitive damages under the Rehabilitation Act (RA) be stricken from the Complaint. Id.

Plaintiff then filed a motion for partial reconsideration.

II

Court’s Reasoning Changing Its Mind from Prior Ruling and Holding That Plaintiff’s Disparate Impact Claims Can Proceed

  1. A plaintiff can prove a prima facie case for disparate impact under the ADA and under the Rehabilitation Act by simply establishing that the plaintiff alone was screened out in Violation of 42 U.S.C. §12112(b)(6). Therefore, no supporting statistical evidence is required.
  2. 42 U.S.C. §12112(b)(6) prohibits using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard test or other selective criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.
  3. To establish a prima facie disparate impact claim, a plaintiff must: 1) identify the challenged employment practice or policy; 2) demonstrate that the practice or policy had an adverse impact on the plaintiff with a disability; and 3) demonstrate a causal relationship between the identify practice and disparate impact.
  4. With respect to the ADA, unlike title VII, a plaintiff can satisfy the second prong of ¶ 3 above by demonstrating an adverse impact on himself rather than on an entire group.
  5. The undisputed record shows that the plaintiff identified the challenged policy as the University’s full-time full duty policy.
  6. Plaintiff also clearly demonstrated that the full-time full duty policy had an adverse impact on himself by demonstrating that he was: 1) denied a reasonable accommodation of remote teaching in office hours that forced him to use up the remainder of his paid leave and into an unpaid leave status for the fall semester of 2021; 2) denied a restoration of health sabbatical that forced him to use up the remainder of his paid leave and into an unpaid leave status for the fall semester of 2021; and 3) informed that a full-time full duty release member turning to work in person that not only forced him to use up the remainder of his paid leave but also forced him into an unpaid leave status for the fall semester of 2021 as well as forced him to give up his medical benefits as of December 29, 2021, and limit his return to work rights.
  7. Plaintiff established a causal connection between the full-time full duty policy and the disparate impact on the plaintiff in several ways: 1) his request for an accommodation was denied based upon a recently devised mantra that any accommodation request which any change to the modality for a scheduled class would fundamentally alter the course and therefore place an undue burden on University. That mantra made no sense because the University offered 1700 classes each semester, the vast majority of which are in person, and it would not have fundamentally altered the University’s pedagogical model.
  8. For a defendant to assert a business necessity defense, a defendant has to show that the allegedly discriminatory qualification requirement is all of: 1) job-related; 2) consistent with business necessity; and 3) that the performance cannot be accomplished with a reasonable accommodation. Defendant simply failed to demonstrate any of those elements.

III

Court’s Reasoning That Plaintiff’s Emotional Distress Claims Go Nowhere

  1. Cummings held that emotional distress damages were not available under §504 of the Rehabilitation Act, as we discussed here.
  2. Even though this is an employment case, Cummings still prevails. It might be a different story if the plaintiff was a federal employee, in which event the case would be governed by §501 of the Rehabilitation Act and not §504, but that is not the case here.

IV

Thoughts/Takeaways

  1. You don’t see a lot of disparate impact cases. Lots of good things can be taken from this case. The biggest thing being, it is enough to allege an impact on just one individual and no statistical evidence is needed.
  2. It makes a world of difference if the employment discrimination claim is based upon §504 v. §501 of the Rehabilitation Act when it comes to emotional distress damages as a result of Cummings, which we discussed here.
  3. Be careful of mantras demanding a return to office when the facts don’t support it given the job of the person with a disability has and the person’s disability.
  4. Nice explanation of what a defendant must show to assert a business necessity defense.

Today’s blog entry discusses the oral argument in two cases heard by the United States Supreme Court last week. Both of which asked the question of whether Chevron deference will continue to be a viable doctrine. We know from reading cases over the years, cases the various justices were involved in while on the various circuit courts, as well with their writings that a majority of the Supreme Court exists to get rid of Chevron deference as we know it. The question is what will replace it. Predicting what this Supreme Court will do is a bit of a fools errand, but it does seem clear that the most likely outcome will be what a few of the Justices referred to as “Kisorizing,” Chevron. The facts of the cases the Supreme Court had before are pretty straightforward. Basically, large fisheries by statute pay a certain small percentage for investigations of their boats. However, by final regulations smaller fisheries pay 10 times more than that. The small fisheries challenged the distinction. The oral argument heard last week concerned final regulations whereas Kisor concerned agency interpretation of regulations. As usual, the blog entry is divided into categories and they are: Kisor recap; where did the problem start; and what are you likely to see from the Supreme Court. Of course, the reader is free to focus on any or all of the categories.

 

I

Kisor Recap

 

In explaining how courts need to deal with agency interpretation of regulations after Kisor, I lifted the below statements from Kisor. For a deeper dive into that opinion, check out the blog entry discussing Kisor v. Wilkie, here.

 

  1. For deference to apply to an agency interpretation, the regulation must be genuinely ambiguous after a court has resorted to all the standard tools of interpretation.
  2. Deference is not warranted where a court concludes that the interpretation does not reflect an agency’s authoritative, expertise-based, fair, or considered judgment.
  3. Only when the legal toolkit is empty and the interpretive question still has no single right answer does the judge get to conclude that deference applies.
  4. The deep dive includes carefully considering the text, structure, history, and purpose of the regulation as if the interpretation of the regulation did not exist.
  5. Even if genuine ambiguity exists, the interpretation of the regulations still has to be reasonable.

 

II

Where Did the Problem Start

 

The whole problem with Chevron deference seems to have started with dueling footnotes, shown immediately below, in the Chevron opinion, here.

 

 

 

[Footnote 9]

The judiciary is the final authority on issues of statutory construction, and must reject administrative constructions which are contrary to clear congressional intent. See, e.g., FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27454 U. S. 32 (1981); SEC v. Sloan, 436 U. S. 103436 U. S. 117-118 (1978); FMC v. Seatrain Lines, Inc., 411 U. S. 726411 U. S. 745-746 (1973); Volkswagenwerk v. FMC, 390 U. S. 261390 U. S. 272 (1968); NLRB v. Brown, 380 U. S. 278380 U. S. 291 (1965); FTC v. Colgate-Palmolive Co., 380 U. S. 374380 U. S. 385 (1965); Social Security Board v. Nierotko, 327 U. S. 358327 U. S. 369 (1946); Burnet v. Chicago Portrait Co., 285 U. S. 1285 U. S. 16 (1932); Webster v. Luther, 163 U. S. 331163 U. S. 342 (1896). If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law, and must be given effect.

 

[

Footnote 11]

The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. FEC v. Democratic Senatorial Campaign Committee, 454 U.S. at 454 U. S. 39Zenith Radio Corp. v. United States, 437 U. S. 443437 U. S. 450 (1978); Train v. Natural Resources Defense Council, Inc., 421 U. S. 60421 U. S. 75 (1975); Udall v. Tallman, 380 U. S. 1380 U. S. 16 (1965); Unemployment Compensation Comm’n v. Aragon, 329 U. S. 143329 U. S. 153 (1946); McLaren v. Fleischer, 256 U. S. 477256 U. S. 480-481 (1921).

 

The result of the two footnotes as interpreted by the courts over the years, is that Chevron has come to mean that any ambiguity in a statute at all leads to automatically deferring to agency regulations.

 

III

What Are You Likely to See From The Supreme Court

 

  1. The Supreme Court basically has four options before it and they are: 1) getting rid of Chevron deference and replacing it with nothing; 2) keeping Chevron deference as is; 3) Skidmore, which would mean that all regulations are just persuasive authority and nothing more; or 4) Kisorizing Chevron.
  2. A majority of Justices seemed very concerned about getting rid of Chevron deference and replacing it with nothing.
  3. Keeping Chevron deference as is, from reading the views of the various justices they have expressed over the years in one form or another, is also not an option.
  4. There didn’t seem to be much interest in just going with Skidmore, which would mean that the regulations are just persuasive authority but could be freely ignored by the courts.
  5. Kisorizing Chevron seem to be the most likely option. They can do that by saying that courts needed to take the dueling footnotes of Chevron seriously and do a deep dive before giving deference to regulations. That is, lifting the statements made in Kisor, such as the ones covered in §I of this blog entry, would be a place to start.
  6. Of course, one never knows what the Supreme Court will actually do, so it will be interesting to see how close Chevron will come to Kisor. My guess is that it will be very close.
  7. Legislation is necessarily something that have to be phrased in such a way so that a majority of legislators will go for it. As a result, legislation is inherently ambiguous. How Congress chooses to talk about the implementing authority to carry out the legislation may become increasingly important. Also, one wonders whether statutory language may try to be less ambiguous than it usually is. The problem with that is the less ambiguous you make statutory language, the less likely the legislation will pass in the first place.
  8. Many States have a Joint Commission on Administrative Rules (such entities are actually a division of the legislature and not the executive agencies. Also, I worked for such an entity in Illinois at one point in my career), and one wonders whether those kinds of entities will become even more important. For those who don’t know, those kinds of entities have dual roles. One role is proofreading the regulations that come out. The role that I really enjoyed was seeing if the regulations that came out were consistent with legislative intent. If they were not, you had to negotiate with the executive agency to make sure the regulation was consistent with legislative intent. If the agency did not agree to modify the regulations, the legislators on the committee (if memory serves correctly, there was an even split among the parties with respect to representation on that committee), could vote against the proposed regulation. Such a vote would create a record that the regulation exceeded legislative intent thereby making it more likely for a court to throw out the regulation itself when challenged as exceeding legislative intent. I did not work for that committee for a long period of time (though my time working for that committee has profoundly shaped my view of administrative law), and so I am not aware of any instances where the members of the committee voted against a regulation. In my experience, the mere fact a negative vote against the regulation could happen was enough to get the executive agency to do the right thing. As far as I know, the federal government does not have such an entity. Perhaps, it is time to consider one. Certainly, all states should consider one if they don’t already have it.
  9. When the decision does come down, probably in June, I will be sure to have a blog entry discussing the decision. It will be interesting to see how far the Supreme Court Kisorizes Chevron or if they take some other approach.

 

I hope everyone is getting back into the swing of the new year. Next week, I will be visiting my daughter in between January term and second semester. I will be here Monday but leave Tuesday and back Friday. So, I am not sure of the timing of the blog entry for next week. This week we revisit an issue that we have discussed before. The question is whether the evidentiary framework set out in McDonnell Douglas is a stand-in for the ultimate question of liability. Again, the case of the day is not even an ADA case but a title VII case. Nevertheless, it is instructive. The facts aren’t terribly significant because of the issue involved. Basically, plaintiff had enough evidence to get by summary judgment but that evidence was not set up in such a way the plaintiff could survive McDonnell Douglas as a stand-in for the ultimate question of liability. Does the plaintiff get to go forward to trial anyway? The 11th Circuit in Tynes v. Florida Department of Juvenile Justice, here, says yes. As usual, the blog entry is divided into categories, and they are: recapping Ortiz v. Werner Enterprises, Inc.; Tynes reasoning that McDonnell Douglas is not a stand-in for the ultimate question of liability in title VII discrimination cases; Judge Newsom’s concurring opinion that convincing mosaic is not only a separate legal standard but the only one that should be used for summary judgment analysis; Judge Newsom’s section of his concurring opinion that there is a lot to like about the convincing mosaic standard; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Recapping Ortiz v. Werner Enterprises, Inc.

 

  1. In Ortiz v. Werner Enterprises, Inc. decided by the Seventh Circuit in August of 2016 and discussed here, the Seventh Circuit said that the indirect or direct evidence distinction McDonnell Douglas creates is silly because evidence is evidence. That is, all evidence belongs in a single pile that must be evaluated as a whole.
  2. The Seventh Circuit simply will not play ball anymore trying to figure out whether the evidence is direct or indirect.
  3. Convincing mosaic is not a legal standard and should not be used as such. Rather, it exists as a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence.
  4. The Seventh Circuit went so far as to overrule cases saying that convincing mosaic was a legal test, and they also said that they would summarily reverse any lower court decision treating convincing mosaic as a legal requirement.

 

II

Tyne’s Reasoning That McDonnell Douglas Is Not a Stand-In for the Ultimate Question of Liability and Title VII Discrimination Cases

 

  1. McDonnell Douglas is an evidentiary tool functioning as a procedural device designed only to establish an order of proof and production.
  2. McDonnell Douglas is not an independent standard of liability under title VII or §1981.
  3. McDonnell Douglas is not a first step either. That is, it was never intended to be the end-all and be-all for a plaintiff to survive a summary judgment motion.
  4. The prima facie case laid out in McDonnell Douglas is not a substantive standard of liability.
  5. Within the McDonnell Douglas framework, the term prima facie case has a different meaning. That is, it marks the establishment of a legally mandatory, rebuttable presumption.
  6. In the typical summary judgment context, a prima facie case typically does mean enough evidence for a plaintiff to prevail on a particular claim. However, the meaning is different when utilizing McDonnell Douglas. In McDonell Douglas, a prima facie case just allows the plaintiff to be entitled to a legally mandatory, rebuttable presumption that the employer intentionally discriminated against her. All that means, is that once a plaintiff satisfies her prima facie burden, the defendant knows its failure to introduce evidence of a nondiscriminatory reason will cause judgment to go against it. This presumption thus helps to narrow things down and frame the factual issue by drawing out an explanation the plaintiff can then see to demonstrate is pretextual.
  7. The McDonnell Douglas prima facie showing exerts a sort of practical coordination forcing the defendant to come forward with evidence explaining its actions. It also offers a benefit for the defendant employer who now has a better idea of what evidence needs to be rebutted.
  8. Once the McDonnell Douglas prima facie case has fulfilled its role, and forces the defendant to come forward with some response, it no longer has any work to do. This is because the District Court then has before it all the evidence it needs to decide whether the defendant intentionally discriminated against the plaintiff. So when the defendant employer offers evidence of the reason for its actions towards the plaintiff, the presumption of discrimination created by the McDonnell Douglas prima facie case simply drops out of the picture. This is not at all the same thing as a substitute standard necessary for surviving summary judgment.
  9. Another reason for all the confusion with the prima facie case terminology is that prima facie case often also reflects a failure of the overall evidence. However, that isn’t what is going on with the McDonnell Douglas paradigm. The key question is whether the plaintiff can prove a necessary element for his employment discrimination case. The prima facie distinction between McDonnell Douglas and the typical discussion of a prima facie case is an important one because the components of a prima facie case are not necessarily coextensive with the evidence needed to proven employment discrimination claim. It also explains why courts in the 11th Circuit do not instruct juries on the prima facie case or the McDonnell Douglas framework.
  10. The distinction is important because a plaintiff’s failure to produce a comparator does not necessarily torpedo a plaintiff’s case. Indeed, plaintiff always survive summary judgment if he presents circumstantial evidence creating a triable issue concerning the employer’s discriminatory intent.
  11. McDonnell Douglas is just one method by which the plaintiff can prove discrimination by circumstantial evidence. A plaintiff who cannot satisfy the McDonnell Douglas framework may still be able to prove her case by putting forth a convincing mosaic of circumstantial evidence allowing a jury to infer intentional discrimination by decision-maker.
  12. A convincing mosaic of circumstantial evidence is simply enough evidence for a reasonable factfinder to infer intentional discrimination in an employment action, which is the ultimate inquiry in a discrimination lawsuit. Utilizing convincing mosaic as an approach to analyzing the evidence, treat an employment discrimination suit in the same way as it would treat any other case, i.e. jumping directly to the ultimate question of liability in deciding whether the moving party is entitled to judgment at that stage of the case. It isn’t any different than the standards ordinarily applied in deciding summary judgment and post-trial motions. That is, if the plaintiff presents enough circumstantial evidence raising a reasonable inference of intentional discrimination, the claim survives summary judgment.
  13. Parties already understand that when using the convincing mosaic standard, a court is looking beyond the prima facie case to consider all relevant evidence in the record to decide the ultimate question of intentional discrimination. However, that understanding is not always clear when the McDonnell Douglas standard is utilized. With McDonnell Douglas, stating that a prima facie case has not been satisfied might mean that there was not enough evidence to infer discrimination. It also might mean that there was no adverse employment action.
  14. Cases should turn on the substantive claims and evidence and not on the evidentiary framework. The only question that should be asked is whether there is sufficient evidentiary basis for the jury to find the defendant intentionally discriminated against the plaintiff.

 

 

III

Judge Newsom’s Concurring Opinion That Convincing Mosaic Is Not Only a Separate Legal Standard but the Only One That Should Be Used

 

  1. McDonnell Douglas lacks any real footing in the text of Rule 56 and actually obscures the answer to the only question that matters in summary judgment, which is whether the plaintiff has shown a genuine dispute of any material fact.
  2. Neither the Supreme Court nor the 11th Circuit has ever said that McDonnell Douglas provides the sole mechanism for adjudicating summary judgment motions.
  3. Upon further review, Judge Newsom believes that convincing mosaic more accurately captures and implement the summary judgment standard.
  4. McDonnell Douglas distinguishes between direct evidence and indirect evidence. The problem with that is that direct evidence cases are very rare, so most title VII suits turn on circumstantial evidence. In that situation, McDonnell Douglas is clearly the dominant framework with convincing mosaic as something of an afterthought.
  5. Upon further thinking, McDonnell Douglas is the actual interloper and convincing mosaic is the more appropriate standard.
  6. McDonnell Douglas is a judge-concocted doctrine that makes a mess of the critical inquiry. Whereas, convincing mosaic is basically just Rule 56 in operation. Convincing mosaic unlike McDonnell Douglas, actually asks the key question, which is whether the record viewed in the light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence allowing a jury to infer intentional discrimination by the decision-maker. If you strip away all the legal mumbo-jumbo, convincing mosaic of circumstantial evidence just means evidence, which is exactly Rule 56’s summary judgment standard.
  7. McDonnell Douglas doesn’t reliably get a court to the result that Rule 56 requires.
  8. McDonnell Douglas prima facie case is not necessarily coextensive with the evidence needed to prove an employment discrimination claim.
  9. McDonnell Douglas forces courts to ask and answer a series of questions only peripherally relating to the one Rule 56 poses, which is whether the plaintiff has presented a genuine issue of any material fact.
  10. McDonnell Douglas seems in retrospect to be awfully made up because there is no basis in the texts of title VII or in the Federal Rules for so elaborate a scheme and no one has ever sought to justify it as being rooted in either. McDonnell Douglas may have been a product of its time but seems to be quite legislative, which creates a flashing red light that something is very wrong.
  11. McDonnell Douglas has taken on a life of its own. That is, McDonnell Douglas’s burden shifting framework has become the presumptive means of resolving cases at summary judgment despite the fact that McDonnell Douglas arose not on summary judgment but out of a bench trial. Also, the Supreme Court has specifically addressed McDonnell Douglas’s application to title VII cases at summary judgment just once and held the decision didn’t apply.
  12. Despite the Supreme Court’s occasional reminders that McDonnell Douglas’s procedural device was intended only to establish an order of proof and production, courts have become progressively obsessed with its minute details thereby allowing it to drive substantive outcomes. Those details have grown increasingly intricate and code like, as courts have taken to forcing a holistic evidentiary question-whether all the evidence, viewed in the light most favorable to the plaintiff, actually creates a genuine factual dispute-into a collection of distinct doctrinal pigeonholes. In fact, courts have often treated McDonnell Douglas requirements as a series of standalone case dispositive elements, i.e. boxes to be checked, rather than simply asking the controlling question whether the facts give rise to a triable issue of discrimination.
  13. McDonnell Douglas actually obscures the key title VII inquiry, especially when it comes to summary judgment. Other jurists have said the same. For example, Justice Kavanaugh, then Judge Kavanaugh, has described the fixation on the plaintiff’s prima facie case in the McDonnell Douglas context as largely an unnecessary sideshow not benefiting employees or employers. In fact, it has done exactly the opposite by spawning enormous confusion and wasting litigation and judicial resources. He went further by explaining that McDonnell Douglas isn’t just wasteful, it is also potentially misleading in that it encourages reviewing courts to focus on non-core issues. As Justice Kavanaugh stated, at summary judgment, the prima facie case is almost always irrelevant and usually a misplaced inquiry because once the defendant offers an explanation for its decision, it no longer matters whether the plaintiff really made out a prima facie case. Justice Kavanaugh then went on to say that once the defendant explains itself, it is up to the district court to resolve the one central question, which is whether the employee produced sufficient evidence for reasonable jury to find that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin, which is the rule 56 question. Justice Gorsuch while on the 10th Circuit made similar observations. He said that McDonnell Douglas sometimes proves a sideshow and the framework itself has proven of limited value. He also said that courts too often get bogged down engaging in the business of trying to police fine lines, which can be very fine, between when McDonnell Douglas does and does not apply.
  14. McDonnell Douglas did not even arise on a summary judgment question. Even so, it has emerged as a purported procedural device in its day-to-day operations, disregards the promulgated rules of summary judgment procedure, overwrites the substance of title VII, and obscures the decisive question with its elaborate scheme. The only question is whether the summary judgment record reveals a genuine dispute of material fact about whether an employer discriminated against this employee because of a protected characteristic.

 

IV

Judge Newsom’s Section of His Concurring Opinion That There Is A Lot to like about the Convincing mosaic Standard

 

  1. The convincing mosaic standard, even if it is a bit clumsy, points right at Rule 56. Under the convincing mosaic standard, a plaintiff always survives summary judgment, if they present circumstantial evidence creating a triable issue concerning the employer’s discriminatory intent. A triable issue of fact exists if the record, viewed in the light most favorable to the plaintiff, presents a commencing mosaic of circumstantial evidence allowing a jury to infer intentional discrimination by the decision-maker. Stripped of the legalese, convincing mosaic is in essence just a restatement of Rule 56’s summary judgment standard without the bells and whistles and just with reasonable inferences and triable facts.
  2. There are several reasons why convincing mosaic has failed to really launch, including: 1) McDonnell Douglas has been debated and applied for decades; 2) convincing mosaic framework suffers from a branding problem of sorts as the name just sounds contrived thereby sending formalists, which includes many judges, into a tailspin; 3) convincing mosaic is also a little bit misleading because satisfying the test requires neither convincing a reviewing court nor presenting enough evidence to compose a mosaic. Instead, it turns on the existence of a genuine factual dispute. It also send judges into a tailspin because courts when deciding summary judgment motions, don’t weigh evidence, and they don’t decide whether they are convinced. Finally, a mosaic in the truest sense is unnecessary to the beat summary judgment as a single item of evidence can at least theoretically defeat a summary judgment motion.
  3. Despite the reasons that might be behind the convincing mosaic standard failure to launch, the convincing mosaic standard, which might be better off being rebranded as the Rule 56 standard so as to get rid of unnecessary and confusing ornamentation, comes much closer to capturing the essence of summary judgment than does McDonnell Douglas.

 

V

Thoughts/Takeaways

 

  1. Is there a Circuit Court split between the Seventh and 11th Circuits? On the one hand, the Seventh Circuit goes out of its way saying that it wants nothing to do with the convincing mosaic legal test. On the other hand, it says that convincing mosaic must be used by way of a metaphor so that court do not get caught up between direct and indirect evidence. In the Seventh Circuit, it would seem that McDonnell Douglas burden shifting standard is still very much alive with the exception of the direct evidence and indirect evidence distinction. On the other hand, an argument can be made, as Jon Hyman has made in his blog, that in the Seventh Circuit McDonnell Douglas is dead because how can you have McDonnell Douglas if you get rid of the indirect and direct evidence distinction. Regardless, whether evidence is direct or indirect chews up a tremendous amount of court time and litigant time unnecessarily.
  2. While I have not done the research, it is quite likely that there are circuits all in on McDonnell Douglas as a means of deciding summary judgments. In that eventuality, a Circuit Court split exists thereby making it more likely that the Supreme Court will visit this issue.
  3. Personally, I have found McDonnell Douglas to be terribly confusing. Sometimes, I have wondered whether a person on the plaintiff side is not actually better off going for the burden shifting of McDonnell Douglas for indirect evidence rather than the direct evidence approach. As far as I can tell from reading the case law, the significance of direct evidence existing in a McDonnell Douglas framework, means that a plaintiff just about automatically survives summary judgment. If it is not direct evidence, then all the ensuing gyrations mentioned in this blog entry ensue and whether that gets to the proper Rule 56 inquiry is highly debatable.
  4. The 11th Circuit decision, which is published, seems to be written with Supreme Court review in mind when it cites to both Justice Kavanaugh and to Justice Gorsuch.
  5. This is not an ADA case, but ADA cases do get analyzed through the McDonnell Douglas prism all the time.
  6. In both the Seventh and 11th Circuits, McDonnell Douglas is just one method by which the plaintiff can prove discrimination by circumstantial evidence regardless of whether direct or indirect evidence is involved.
  7. I am not sure why the Seventh Circuit went out of its way to say that using convincing mosaic as a legal standard rather than as a metaphor is automatically subjected to summary reversal. The 11th Circuit on the other hand focuses on convincing mosaic as a standard. Why not utilize it as a standard rather than as just a metaphor when as a de facto matter, it is convincing mosaic being utilized as a standard?
  8. From the many many cases that I have read over the years, I certainly agree that courts have become progressively obsessed with the minute details of the McDonnell Douglas paradigm. I also certainly agree that courts have often treated McDonnell Douglas requirements as a series of standalone case dispositive elements rather than simply asking the controlling question of whether the facts gave rise to a triable issue of discrimination.
  9. Judge Newsom makes a lot of sense in describing the reasons why convincing mosaic hasn’t launched yet. One wonders whether that might change now that there are two circuits calling out the problems associated with McDonnell Douglas and preferring convincing mosaic, whether it be as a metaphor or as an actual legal standard. It will also be interesting to see whether a court doesn’t rebrand convincing mosaic as Rule 56. After all, branding can matter quite a bit.

Today’s blog entry come from the Supreme Court of Maryland in a case called In the Matter of Antavis Chavis, here. The case, a 4-3 decision in favor of the plaintiff, should have high-stakes testing entities, and even colleges, and universities reevaluating the documentation they demand before deciding to make accommodations/modifications for an individual with a disability. As usual, the blog entry is divided into categories and they are: facts; court’s discussion of when testing accommodations must be provided; court’s discussion of whether a disability existed; board rules/operations need to be reconsidered; plaintiff’s test accommodation request was reasonable; dissenting opinion by Justice Booth; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff graduated from law school and petitioned to take the Maryland bar exam. Plaintiff has ADHD and requested 50% extra time to take the bar exam. In support of his request, he attached an ADHD verification form produced by Southern University Law Center, from which he graduated law school. In particular, the doctor completing that form said the plaintiff met the four criteria in the DSM for ADHD inattentive type. He said that his diagnosis was based upon an evaluation of the plaintiff’s personal experience as well as neuropsychiatric testing. He indicated that self-reported symptoms of ADHD included poor attention and focus, taking longer to complete tasks, and often not completing tasks due to distraction. He also said that plaintiff was diagnosed with ADHD at age 8. Further, he said that the plaintiff had difficulty completing tasks, often left them undone, at work and at home. Finally he noted that the plaintiff had taken Adderall, a commonly used prescription medication to treat ADHD. He then recommended that the plaintiff be given additional time to complete exams and an isolated testing environment to limit distractions if possible. He also stated that plaintiff would be adversely affected if not given additional time and that this particular kind of ADHD typically responds well to accommodations.

 

Plaintiff also attached to his accommodation request a memorandum from the Health, Wellness, and Disability Director of the Southern University Law Center. In that memorandum, it said that disability services would grant plaintiff’s request protect accommodations, he would get 50% additional time to take exams and quizzes and the ability to take them in a low distraction testing room. It also said that those accommodations were required by §504 of the Rehabilitation Act. Plaintiff also attached a very similar memorandum from a certified rehabilitation Counselor of the Accessibility Resource Center at the University of the District of Columbia David A. Clarke School of Law, where he also took classes at.

 

Once the State Board of Law Examiners received the request, they turned it over to a Dr. Lewandowski. Without a citation to any legal authority, Dr. Lewandowski said that for an applicant to qualify for a test accommodation, the applicant had to have an evidence-based diagnosis of a mental or physical disorder from a qualified professional, which ideally would not be based upon the self-report of the person himself. The applicant also had to show that the disorder substantially limited them in a major life activity as compared to most people. Dr. Lewandowski said that the plaintiff did not meet the first criteria because there was no objective data to prove the validity of the diagnosis, and that he could not confirm the diagnosis based on the little information in the file. He also said there was insufficient documentation to satisfy the second criteria as well. Accordingly, the State Board of Legal Examiners in reliance on that opinion of Dr. Lewandowski rejected plaintiff’s request for accommodation to take the bar exam.

 

Dr. Lewandowski reviews accommodation request for multiple jurisdictions, medical boards, and business boards. He has done that since 1994 and reviews between 100 and 200 test accommodation requests every year.

 

Plaintiff appealed and after that appeal did not go well, he appealed it to the Maryland Supreme Court.

 

II

Court’s Discussion of When Testing Accommodations Must Be Provided

 

  1. While the ADA does not have any express provisions stating that public entities have to provide reasonable accommodation for testing to those requesting such accommodations based upon their disability, various parts of the ADA when read together establish the principle.
  2. 42 U.S.C. §12132 (title II of the ADA), prohibits public entities, which include the Maryland Judiciary and agencies within it, from discriminating against individuals with disabilities.
  3. Title I of the ADA (employment provision), provides that discrimination against a qualified individual on the basis of disability includes the failure to make reasonable accommodations to a qualified person with a disability unless an undue hardship exists.
  4. 42 U.S.C. §12189 (§309 of the ADA), provides any person offering examinations or courses related to applications or licensing for professional purposes has to offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangement for such individuals. While the word person is not defined in that section, it is defined in title I of the ADA, which provides that the term person has the same meaning as given to it in §2000e. 42 U.S.C. §2000e(a) provides in relevant part that the term person includes government and governmental agencies.
  5. Courts in other jurisdictions have interpreted 42 U.S.C. §12189 as requiring that a State Board of Law Examiners or a State Bar, which are public entities, must provide reasonable testing accommodations for applicants establishing their disability.
  6. For a plaintiff to succeed in a failure to provide accommodations in a testing situation, the plaintiff has to show: 1) that he is disabled; 2) his request for accommodations was reasonable; and 3) those requests were denied. Further, an individualized analysis is always required for each and every request for accommodations and the determination of whether the accommodation is reasonable must be made on a case-by-case basis.
  7. Although no language in the ADA expressly requires public entities to make reasonable test accommodation for applicants establishing disability, it is clear that 42 U.S.C. §12189 gets interpreted as applying to public entities. Also, once an applicant establishes a disability under the ADA per 42 U.S.C. §12102(1), the applicant must also show that the requested accommodation is reasonable.

 

III

Court’s Discussion at the Whether a Disability Existed

 

  1. 42 U.S.C. §12102(1)(A) provides that a person with a disability is a person with a physical or mental impairment that substantially limits one or more of its major life activities (in a footnote, the court notes that disability also includes a person with a record of such an impairment or a person who is regarded as having such an impairment).
  2. The amendments to the ADA at 42 U.S.C. §12102(4)(A) make clear that the definition of disability have to be construed in favor of broad coverage of individuals under the ADA to the maximum extent permitted by the terms of the ADA.
  3. Legislative history makes clear that Congress intended to make it relatively simple for an individual to establish disability. Also, in the section of the ADA Amendments Act of 2008 containing legislative findings and purposes, Congress declared the question of whether an individual’s impairment as a disability under the ADA should not demand extensive analysis. Those findings went on to say that one purpose of the amendments to the ADA was to reject the Supreme Court’s reasoning in Toyota Motor Manufacturing, Kentucky v. Williams, that the ADA needed to be interpreted strictly to create a demanding standard for qualifying as disabled. Congress went on to state that it expected the EEOC to revise the regulation so that the demanding standard and for the Supreme Court held was a substantial limitation on a major life activity (significantly restricted), was no longer the standard.
  4. The EEOC in response to the ADA Amendments Act did revise the regulation. That regulation now reads that an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. 29 C.F.R. §1630.2(j)(1)(ii). The regulation also acknowledges that the phrase “substantially limits,” is not meant to be a demanding standard and that the threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis. 29 C.F.R. §1630.2(j)(1)(i),(iii).
  5. Conclusions with respect to disability must be made on an individualized fact specific case-by-case basis.

 

IV

Board Rules/Operations Need to Be Reconsidered

 

  1. The ADA establishes a floor or minimum standards for the protection of rights of individuals with disabilities. While the ADA specifically allows States to give more protection than what is established by the ADA, States cannot go below the floor is set by the ADA by requiring individuals with this ability to meet a higher standard. Therefore, the ADA preempts inconsistent state law when appropriate and necessary to effectuate a reasonable accommodation. That is, the court has the obligation under the ADA to ensure that the decision reached by the state authority is appropriate under the law and in light of the propose alternatives. To hold otherwise, would allow a state to adopt requirements imposing unreasonable obstacles to individuals with disabilities and then defend itself successfully by saying that the state authority considered possible modifications and rejected them.
  2. Board rules cannot impose a higher burden than the ADA when it comes to determining whether to grant an applicant’s test accommodation request. That is, board rules cannot raise the requirements established by the ADA for accommodation requests to be granted.
  3. While the ADA requires proof that the applicant has a disability and that the requested test accommodation is reasonable, there is no express obligation under the ADA for an applicant to prove that the requested test accommodation would be consistent with the nature and purpose of the examination and necessitated by the applicant’s disability.
  4. The question of whether a requested accommodation is consistent with the nature and purpose of the uniform bar exam and necessitated by the applicant’s disability is intertwined with the question of reasonableness and is not a requirement imposing additional hurdles or burden of proof. Instead, it is part of the reasonableness analysis.
  5. The requirement that a test accommodation is reasonable is satisfied in part by showing that a person has an impairment involving a need for a test accommodation, which is a low threshold. For example, where a person can establish that they have a physical or mental impairment substantially limiting one or more major life activities, such as learning, reading, concentrating, thinking, communicating, and working, that would in most instances automatically demonstrate that the person has an impairment making testing accommodations on the bar examination necessary.
  6. A basic premise of the bar examination is that it is an exam intended to test an applicant’s knowledge of designated areas of the law.
  7. A request for a test accommodation is consistent with the nature and purpose of the bar examination so long is that basic purpose can be achieved. On the other hand, a request for a test accommodation might be inconsistent with the nature and purpose of the examination where, for example, the request seeks to excuse an applicant from taking all or a portion of the bar examination.

 

V

Plaintiff’s Test Accommodation Requests Was Reasonable

 

  1. Plaintiff’s request of 50% additional time was reasonable and consistent with the nature and purpose of the examination and necessitated by his disability.
  2. 42 U.S.C. §12102(4)(A) mandates that the ADA be construed in favor of broad coverage of individuals with disabilities. It also mandates that the question of whether an individual has a disability should not demand extensive analysis. Finally, it mandates that the phrase “substantially limits,” should not be strictly interpreted, deemed to set forth a demanding standard, or viewed at the same as the phrase “significantly restricts.”
  3. DOJ has promulgated a regulation providing any private entity offering examinations or courses related to applications or licensing must assure that when considering request for modification, accommodations, or auxiliary aids or services, must give considerable weight to documentation of past modification, accommodation, or auxiliary aids or services received in similar testing situations. 28 C.F.R. §36.309(a), (b)(1)(v).
  4. 36.309 gets interpreted by the DOJ (in Appendix A to Part 35), as applying also to public entities offering examinations related to applications or licensing and not just to private entities offering such examinations. Therefore, when considering a request for testing accommodations, a public entity offering a licensing examination, such as the bar examination, has to give considerable weight to documentation of past documentations received in similar testing situations.
  5. Going forward, a two-step process must be employed for figuring out whether an applicant for the bar exam is entitled to reasonable accommodations. Those steps are: 1) is the person a person with a disability; and 2) is the test accommodation requested by the applicant reasonable, consistent with the nature and purpose of the examination and necessitated by the applicant’s disability. The first prong of the test requires a person to satisfy the definition of a disability under the ADA. The second prong of the test requires that the accommodation be reasonable and incorporates language from a board rule requiring that the accommodation be consistent with the nature and purpose of the examination and necessitated by the applicant’s disability. In a footnote, the court notes that the two-step test is very similar to the standard for a failure to accommodate claim involving an employer under title I of the ADA.
  6. Plaintiff established that he has a mental impairment substantially limiting the major life activities of learning, reading, concentrating, thinking, communicating, and working. The documentation he submitted was sufficient for that purpose.
  7. Lewandowski’s opinion was not entitled to any degree of deference or be treated any differently than the way courts assess any other expert opinion.
  8. It is possible that when Dr. Lewandowski came up with his conclusions that he was relying in part on information put forth by the State Board of Law Examiners indicating that all reports of health professionals supplied by an applicant seeking a testing accommodation must reference evaluation conducted within the past three years and, in some cases of permanent disability, testing conducted within the past five years if the applicant was over the age of 18 at the time of testing.
  9. Lewandowski’s report went beyond a typical expert report and veered into setting forth his own definition of the necessary requirements under the ADA. That simply doesn’t work because an expert is not permitted to express an opinion on a question of law.
  10. No legal support exists stating that to qualify for a test accommodation, an applicant has to prove an evidence-based diagnosis. Nothing in the ADA requires proof of a diagnosis, let alone proof of an evidence-based diagnosis in order to gain relief under the ADA. The definition of disability under the ADA does not refer to establishing a diagnosis. Instead, it simply requires that the individual has a physical or mental impairment substantially limiting one or more major life activities. The EEOC regulation regarding definitions under the ADA, is also silent as to diagnoses. In fact, courts have held that a diagnosis is not necessary for an ADA claim to succeed. Finally, the State Board of Legal Examiners counsel acknowledged at the show cause hearing that a formal diagnosis is not necessary. So, Dr. Lewandowski used a criterion exceeding the definition of the word disability under the ADA and applied a higher standard in evaluating the request than what the ADA requires.
  11. Even though plaintiff did not have to do so, plaintiff did prove that he was diagnosed with ADHD. Dr. Thiebaud’s diagnosis and findings concerning the plaintiff having ADHD were sufficient to establish a disability even though they were not accompanied by specific test results and were partially based upon information that the plaintiff self-reported.
  12. Since the ADA does not require a diagnosis in the first place, it follows that the ADA does not require diagnosis to be supported by specified test results.
  13. Routinely requiring an applicant for admission to the bar to submit specific test results in support of a position’s diagnosis when requesting a test accommodation is inconsistent with 28 C.F.R. §36.309(a), (b)(iv), which provide that any private entity offering examinations or courses are related to applications or licensing have to assure that any request for documentation, if such documentation is required, is reasonable and limited to the need for the accommodation requested.
  14. Self reporting plays a critical role when it comes to establishing just what is going on with a person’s mental health (or I would add even a learning disability). So, it is unsurprising that no citation or evidence exists that support challenging a finding of disability on the basis that the doctor making that finding relies in part on a patient’s self-report. In a footnote, the court notes that the state Board of Law examiners may wish to reconsider a current rule prohibiting self-reporting to a healthcare professional as a basis for getting an accommodation.
  15. Plaintiff not seeking a diagnosis or test accommodation until law school appears to have been held against him.
  16. It certainly makes sense that a person could have a hidden disability for years but then get a proper diagnosis and/or make reasonable accommodation requests later in their educational career. It is also entirely understandable that an applicant may not seek a diagnosis and/or test accommodations until the applicant is well into adulthood. Reasons why such disclosure may be late include an incorrect view that attention issues are behavioral problems rather than learning disabilities, parents seeing discipline as a solution to such issues, and fear of embarrassment or stigmatization in school.
  17. Establishing whether a requested accommodation is consistent with the nature and purpose of the bar examination and necessary poses no greater burden than what is inherent in the reasonableness requirement of the ADA. The accommodation recommended by plaintiff’s Dr. were carried out by two different law schools and those law schools felt that the documentation he submitted was more than sufficient.
  18. An applicant requesting accommodation for the bar examination is not required to demonstrate that a prior test accommodation was given in law school or in any other setting. The applicant is also not required to demonstrate a nexus between the bar examination and any other test for which an accommodation may have been afforded in the past. While such a demonstration could be helpful, it isn’t required.
  19. Considerable weight must be given to the plaintiff having been given test accommodation by two different law schools and that the uniform bar exam and law school exams involve similar testing situations. Both tests are hours long, strictly timed, intensive written examinations on various legal topics comprising multiple-choice questions, prompts for essays, and/or similar assignments.
  20. The court declined the invitation to adopt as a rule for assessing test accommodations requesting that the DOJ’s guidance regarding proof of past testing accommodations be sufficient to support a reasonable accommodation request because that guidance is just a guidance. Even so, the court was persuaded that proof of testing accommodations in law school generally should be given considerable weight in determining whether the same testing accommodation is warranted for bar examination. That is, testing accommodations given in law school are certainly relevant to testing accommodation requested, and must be given considerable weight.
  21. It is possible that consulting with other experts about testing accommodation request beyond Dr. Lewandowski would provide the State Board of Law Examiners with a wider range of perspectives than it currently gets. So, the State Board of Law Examiners may wish to consider using additional experts to evaluate testing accommodation request.

 

VI

Dissenting Opinion by Justice Booth.

 

  1. Insufficient evidence exists to determine whether the plaintiff has ADHD.
  2. Evidence of childhood diagnosis is not required to receive an ADA accommodation and should not be held against the plaintiff.
  3. Testing accommodations given in law school are certainly relevant to a test accommodation for the Uniform Bar Exam and the State Board of Law Examiners should give prior accommodation considerable weight in accordance with the Department of Justice’s regulations and guidance document. That said, the verification form submitted by the plaintiff was incomplete and did not satisfy the accommodation requirements established by the University.
  4. The majority opinion goes too far in attacking the credibility of Dr. Lewandowski and in demanding additional experts be used going forward.
  5. It was not unreasonable or clearly erroneous to conclude that there was no objective evidence or testimony presented by the plaintiff to establish that he had been diagnosed with ADHD. Also, there was no objective evidence or testimony relating to a showing of substantial limitation and any major life activity, nor how there were limitations regarding functions required on the Maryland bar exam.
  6. The solution is to remand the matter to the State Board of Law Examiners with instructions to give the plaintiff an opportunity to correct any deficiencies in the accommodation request before the filing deadline for the next administration of the bar examination.

 

VII

Thoughts/Takeaways

 

  1. All titles of the ADA share a reasonable accommodation/modification scheme for persons with disabilities. They also share the same definition of disability. That said, they each have their own statutory and regulatory provisions as well with their own guidances. The trick often is getting title II and title III to do what title I does when the statutory and regulatory provisions are different. This case says that title I provisions can be very instructive when dealing with similar issues in title II and in title III.
  2. Title I of the ADA specifically deals with excessive documentation issues. However, title II and title III only have a reference to unnecessary medical inquiries in the Technical Assistance Memorandum for each of those titles. This case strongly suggests that excessive documentation concerns apply across title I, title II, and title III.
  3. From my experience, it is not unheard of for colleges and universities to demand a whole battery of tests before disability services will grant a person accommodations. Colleges and universities may want to reconsider just how much documentation they request. They also may want to reconsider just how current they demand that documentation be, especially for disabilities that don’t improve or are static over time.
  4. Establishing a disability for the most part does not require extensive analysis.
  5. The ADA Amendments Act did not overrule Sutton v. United Airlines approach to evaluating whether working is a disability.
  6. 12189 applies to public entities even though it appears in title III of the ADA.
  7. People making determinations as to whether a disability exists need to be familiar with the definition of a disability under the ADA and how it works. They should not be using a higher standard than what the ADA demands.
  8. State Bar rules have to at least be on the level demanded by the ADA and not less, though they can go further.
  9. It is not explicitly stated but you can see “fundamental alteration,” analysis between the lines of this opinion. For example, look at the court’s discussion of what is not a reasonable accommodation/modification. See also, PGA Tour v. Martin, here.
  10. Prior accommodations for similar tests must be given considerable weight. From reading the opinion, that weight isn’t conclusive but it’s close. It also isn’t conclusive that prior accommodations were not given for similar testing situations.
  11. 50% additional time for a person with ADHD is a pretty standard request and entities are going to have a hard time rejecting requests when given an ADHD diagnosis.
  12. Evidence-based diagnosis is not necessary to establish a disability. In fact, a diagnosis of any kind is unnecessary.
  13. Demanding a childhood diagnosis to establish a disability is not a good idea. It never was and especially after this decision, it isn’t now.
  14. Much of this decision has me thinking about federal pleading requirements. Depending on when you went to law school, you would have learned that notice pleadings was the rule in federal courts. Iqbal/Twombly changed all of that. Now, you want to give as much facts as necessary to put the defense I noticed that to what the claims are. It is not facts based pleadings but it isn’t notice based pleading either. Adopting this kind of approach for accommodation requests in high stakes situations (colleges, universities, standardized testing, etc.), would seem to make a lot of sense.

Happy new year everyone and hope everyone had a great holiday season.

 

Today’s blog entry deals with the issue of what happens when an employer doesn’t keep disability related information confidential. The case of the day is Purvenas-Hayes v. Saltz, Mongeluzzi & Bedensky, P.C. decided by the United States District Court for the Eastern District of Pennsylvania on December 15, 2023, here. As usual the blog entry is divided into categories and they are: facts; general discussion of disability related inquiries and its confidentiality provisions; discussion as to what is an acceptable inquiry under the ADA; ADA’s confidentiality requirements and injuries; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff worked at the law firm as a litigation paralegal until July 2021. During her employment, the law firm required her to provide certain medical information, including her Covid-19 vaccination status, and she did so. In June 2022, plaintiff sued the law firm alleging that she wasn’t paid for overtime work. A few days later, the Legal Intelligencer reported that a name partner told the paper the plaintiff left the firm because she did not wish to receive the Covid-19 shot. Plaintiff alleged that she suffered significant embarrassment, emotional distress, and pain and suffering as a result of the disclosure. On June 22, 2023, plaintiff sued the law firm a second time. This time she alleged the law firm violated the confidentiality requirements of the ADA and the law firm filed a motion to dismiss.

 

II

General Discussion of Disability Related Inquiries and Its Confidentiality Provisions

 

  1. The ADA at 42 U.S.C. §12112(d)(4)(A), provides that a covered employer cannot make inquiries of an employee as to whether such employee is an individual with a disability as to the nature or severity of the disability unless the inquiry is shown to be job-related and consistent with business necessity.
  2. An employer may make inquiries into the ability of an employee to perform job related functions. 42 U.S.C. §12112(d)(4)(B).
  3. An employer receiving information pursuant to §12112 must treat the information as a confidential medical record and can only disclose it to supervisors needing to know about job-related restrictions, to first aid and safety personnel, and to government investigators evaluating ADA compliance.
  4. To make out a case for violation of the ADA’s confidentiality provision, a plaintiff must show that: 1) the employer obtained her medical information through an employment -related medical examination or inquiry; 2) the employer disclosed that information; and 3) the plaintiff suffered an injury as a result of the disclosure.

 

II

Court’s Reasoning As to What Is an Acceptable Inquiry under the ADA

 

  1. The ADA doesn’t define the term “inquiry,” so the term’s ordinary meaning must be looked at.
  2. According to the dictionaries in 1990 when Congress passed the ADA, “inquire,” meant “to seek information; ask a question or questions.”
  3. When 12112(d)(4)(A) prevents an employer from making inquiries of an employee as to whether such employee is an individual with a disability, it is prohibiting the employer from asking questions as to whether the employee is an individual with a disability.
  4. When §12112(d)(4)(B) permits an employer to make “inquiries into the ability of an employee to perform job -related functions,” it is permitting the employer to ask questions about the employee’s ability to perform those functions.
  5. There are two possible ways to read the word “inquiries.” First, it could mean any request (subject to the other limiting language in the statute). Second, given the ADA’s context and structure, one can reasonably read it only to mean, “medical inquiries.” Either way, plaintiff has sufficiently alleged the law firm made an inquiry of her when it required her to provide it with certain confidential medical information, including Covid-19 vaccination status, in response to a medical inquiry.
  6. In §12112(d)(4)(A), Congress explained the type of inquiry that an employer could not make, i.e. those as to whether such employee is an individual with a disability or as to the nature or severity of the disability. Congress’s inclusion of that limiting language show that Congress understood the word “inquiry,” standing alone was not limited to inquiries about disabilities. It is for that reason why Congress had to add language to limit the scope of covered inquiries. However, Congress did not include the same limiting language in subparagraph (B). Instead, it permitted inquiries into the ability of an employee to perform job related functions. The use of different words or terms within the statute demonstrates that Congress intended to convey different meanings for those words.
  7. Congress in drafting subsection (B) could have linked back to subparagraph (A), but it did not do so. It could also have defined the word “inquiry,” at the beginning of paragraph (4) but it did not do that either. Instead, it use different words to limit “inquiry,” in subparagraphs (A) and (B).
  8. Citing to a case we discussed here, Conroy v. New York State Department of Correctional Services, the court noted that the Second Circuit said that the ADA does not prevent all medical inquiries, but only those as to whether such employee is an individual with a disability or as to the nature or severity of the disability.
  9. Citing to an 11th Circuit case we discussed here, Harrison v. Benchmark Electronics Huntsville, Inc., the court said that while it is appropriate for an employer to inquire into an applicant’s ability to perform job related functions, it is illegal for the employer to make targeted disability -related inquiries.
  10. EEOC guidance says that questions not likely to elicit information about a disability are always permitted and they include asking employees whether they can perform job functions.

 

III

ADA’s Confidentiality Requirement & Injury

 

  1. When an employer’s inquiry of an employee yields information “regarding the medical condition or history of any employee,” the employer must treat the information as a confidential medical record. 42 U.S.C. §§12112(d)(3)(B), (d)(4)(C). So, when the law firm asked the plaintiff for her Covid-19 vaccination status, the requested information about her medical history, and she provided it, the law firm had the obligation to keep that information confidential.
  2. Subparagraph (B) permits inquiry beyond those that are disability related, while subparagraph (C)’s confidentiality obligation covers medical information obtained from any of those inquiries.
  3. Speculation about congressional intent cannot vary the meaning of the statute.
  4. When the named partner told the legal publication that plaintiff did not wish to be vaccinated, it is reasonable to infer that the partner was disclosing that she wasn’t vaccinated, rather than just her esoteric preference. The fact of her vaccination or non-vaccination is health information, and not just a personal political view.
  5. For a person to prevail for violating the ADA’s confidentiality provisions, she has to demonstrate more than a bare violation of the statute. There has to be a tangible injury, which can include emotional, pecuniary, or otherwise. The complaint makes those allegations.

 

IV

Thoughts/Takeaways

 

  1. Persons with disabilities have a very sensitive antenna as to what is a disability related inquiry, and an employer would be wise to get person with disabilities involved in the process of trying to figure those things out.
  2. Covid-19 by itself may or may not be a disability depending upon the facts. Long Covid-19 most probably is. Regardless, Covid-19 status inquiries are disability related inquiries.
  3. The court does a nice job of laying out how to make a prima facie case, though the court does not use that term, when it comes to violating the ADA’s disability related inquiries and its confidentiality provisions.
  4. The confidentiality provision for disability related inquiries only applies to title I (employment), matters. You do not find similar provisions in title II and title III.
  5. Don’t forget about the scheme that the ADA has in place when it comes to medical exams and disability related inquiries, which we discussed here.
  6. Don’t forget about not making unnecessary medical inquiries. Title I has provisions explicitly dealing with that, as we discussed in this blog entry and in other places in the blog. The technical assistance memorandum put out by DOJ for both title II and title III has provisions prohibiting unnecessary medical inquiries.
  7. One wonders whether the plaintiff amended her wage and hour lawsuits to include a retaliation claim as a result of the disclosure of disability related information.
  8. While it is debatable under title II of the ADA after Cummings, discussed here, as to whether emotional distress damages are in play, that decision doesn’t affect title I remedies, which clearly allow for emotional distress damages.

I hope those that celebrated had a happy Hanukkah. Merry Christmas, happy new year, and happy holidays to everyone.

 

Today’s blog entry is my top 11 or so for the year. As is my past practice, I have included important blog entries that do not make the list . Most of those though were in the top 15. A few from last year dropped and there are a few additions as well. It is a mix of laws involved. You see the Fair Housing Act, and IDEA. You also see a mix of title I and title II cases. Not a lot with title III. Here they are in reverse order.

 

  1. If it looks like a duck, quacks like a duck, it is not a duck. The blog entry discussing the Supreme Court case Perez v. Sturgis Public Schools, which discusses exhaustion under the IDEA and how that works in the case of a compensatory damages claim.

 

  1. Why all colleges must do the two-step. The blog entry discussing the best preventive law steps for dealing with essential eligibility requirements at colleges and universities.

 

  1. ESA in Iowa. The blog entry discussing the conundrum of what happens when you have a resident that needs an ESA and other residents who are allergic to them.

 

  1. Fundamental alteration, undue burden, deliberate indifference, facially neutral rules can be challenged. This one is a new blog entry to the list.

 

  1. Failure to accommodate: what is sufficient notice to an employer. This one is a new blog entry to the list.

 

  1. ADA claims when collective bargaining agreements exists. A new blog entry to the list.

 

  1. Does the ADA and §504 allow for disparate impact claims: the view from the Ninth Circuit.

 

  1. Indian tribes and sovereign immunity.

 

  1. Can you get compensatory and punitive damages in retaliation cases.

 

  1. Unreasonable delay in granting a reasonable accommodation is actionable. This one is new to the list.

 

Winner is: It’s not even close. This entry has twice as many views at the second place entry. The blog entry that was the most popular for this calendar year is The ADA and the applicable statute of limitations.

 

Have a happy and safe new year and have a happy holidays. Will be back after January 2. I have a whole bunch of cases in my pipeline to blog on.

Free Glock Gun photo and picture

Picture: A glock pistol, set against a dark background, standing up with barrel pointed down on a brown hardwood floor with its magazine lying next to it.

This blog entry will be the last substantive blog entry of the year. The next blog entry for the calendar year will be my greatest hits and other important blog entries that I put up every year around this time. I do want to wish everyone celebrating, a happy Hanukkah (last I checked, there were at least eight different English spellings of the holiday).

 

Of course, I write frequently on failure to accommodate cases as that is certainly a big part of the ADA, though certainly not the only part. The one thing I have never done is exploring the possibility of what happens when a job requires firearm proficiency where the particular firearm required is something that a person with a disability can’t use effectively, but he can use other firearms. Is using a different firearm a reasonable accommodation? The case of the day is Hampton v. Utah Department of Corrections, here, a published decision from the 10th Circuit decided on December 4, 2023. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning why the failure to accommodate summary judgment gets reversed; court’s reasoning why summary judgment gets affirmed when it comes to the disparate treatment claim due to a lack of causation; court’s reasoning why summary judgment gets affirmed when it comes to the disparate treatment claim due to the lack of an adverse action; court’s reasoning why summary judgment on the retaliation claim gets affirmed; Judge Bachrach’s concurring opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Mr. Hampton was born missing the second and fifth digits on both hands, the result of a congenital birth condition.[2] Mr. Hampton’s hand and wrist structures also lack the bones, tendons, and muscles associated with those fingers. Because of this disability, Mr. Hampton encounters difficulties “grasping, pulling, or performing other . . . functions with his hands.”

In May 2016, UDC hired Mr. Hampton to serve as a Corrections Officer. Mr. Hampton had previously worked for the Arizona Department of Corrections. UDC Warden Larry Benzon hired Mr. Hampton with knowledge both of his disability and Mr. Hampton’s possible future need for accommodations.

Mr. Hampton worked first as a “Utility,” a nonpermanent role in which he rotated through different assignments at UDC. While the Utility role itself is generally unarmed, some of Mr. Hampton’s assignments required him to carry a firearm. Indeed, the record indicates Mr. Hampton had occasion to carry a weapon almost 80 times while serving in the Utility position.

As a condition of eligibility for permanent employment, UDC requires Corrections Officers to complete the Department’s Training Academy. Corrections Officers must train and qualify on UDC-approved “department-issued firearms.” Department policy approves only Glock-brand firearms.

During his employment interview, Mr. Hampton informed Warden Benzon he “may need an accommodation in the weapons when he goes through the [A]cademy.”

After he was hired, and several weeks before beginning the required firearms training at the Academy, Mr. Hampton remained concerned about his ability to complete the training and qualify on the Department-approved Glock 17 because of his disability. Mr. Hampton reached out to Aaron Horsley, then serving as UDC Firearms Training Coordinator. Mr. Horsley provided Mr. Hampton a plastic gun similar to the Glock 17 and a holster for practice before the training began. On July 7, 2016, Mr. Hampton successfully completed the firearms training, qualifying to use all three UDC-issued firearms: the Remington, the Colt, and the Glock.[6] He requalified, as the Department requires, in July 2017.

Though he had passed the firearms training, Mr. Hampton was still worried about using the Department-issued Glock on the job. On February 8, 2017, Mr. Hampton wrote to UDC’s Human Resource Specialist, Jennifer Wilde, to request an accommodation. After receiving an email requesting specific information about the proposed accommodation, Hampton sent information about a 911 series handgun manufactured by Springfield Armory that would accommodate his disability.

Mr. Hampton received no response from UDC for two months, so in April 2017, he took it upon himself to speak with Mr. Knorr about his requested accommodation. Mr. Knorr denied Mr. Hampton’s accommodation after deciding the Department “do[esn’t] hand out 1911s.” Id. at 1334. Mr. Knorr never informed Mr. Hampton of this rejection in writing. Ms. Wilde likewise never provided Mr. Hampton a written denial of his February 2017 accommodation request.

While still serving in the temporary Utility role, Mr. Hampton applied for multiple permanent armed positions with the Department. He ultimately secured an unarmed permanent position as a “Timpanogos Rover” (Timp Rover) on June 17, 2017. In certain circumstances and during some overtime assignments, however, Mr. Hampton was still required to carry a firearm.

Six days into his assignment at Timp Rover, one of his rotations, he became the subject of an administrative review regarding two separate incidents, one of which involved handling the weapon that he had never been trained on. He was subsequently fired apparently with no knowledge of his prior accommodation requests. When he found out that the grievance policy didn’t apply because he was a probationary employee, he filed a charge with the EEOC and subsequently brought suit for violation of §504 of the Rehabilitation Act.

Hampton’s particular claims alleged failure to accommodate, retaliation, and disparate treatment. For the reasons we will discuss below, the 10th Circuit reverses the summary judgment on the failure to accommodate claim and remands that claim for further proceedings. They also affirmed the summary judgment on the disparate treatment and on the retaliation claims.

II

Court’s Reasoning Why the Failure to Accommodate Summary Judgment Gets Reversed

 

  1. The definition of disability discrimination in the ADA includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.
  2. To state a claim for failure to accommodate, a plaintiff has to show: 1) he is disabled; 2) he is otherwise qualified for the job; and 3) he requested a plausibly or facially reasonable accommodation, all of which is not an onerous test.
  3. Plaintiff does not need to establish discriminatory intent because the law assumes that any failure to provide reasonable accommodation for disability is necessarily because of the disability.
  4. A reasonable accommodation are those accommodations which presently, or in the near future, enable the employee to perform the essential functions of his job.
  5. Essential functions of the job are the fundamental job duties of the employment position the individual with the disability holds or desires.
  6. In determining whether a function is essential, relying, in part, on what the employer says the fundamental duties are is perfectly appropriate. Courts must give consideration to the employer’s judgment as to what functions of the job are essential.
  7. A function of the job does not become essential just because an employer says so. It is true that courts will usually defer to the employer’s judgment absent evidence suggesting the purportedly essential function has a tangential relationship with the actual job, is inconsistently enforced, or otherwise lacks a connection with business needs.
  8. An employer cannot turn every condition of employment it elects to adopt into a job function, let alone an essential job function, by merely including it in a job description.
  9. The simple fact that accommodation requested would permit the worker with a disability to violate a rule that others must obey cannot in and of itself automatically show that the accommodation is not reasonable. Concluding otherwise would prevent Congress’s disability legislation from accomplishing its intended objective.
  10. Most employers have neutral rules governing the kinds of actions most needed to reasonably accommodate a worker with a disability. Where the fact of a neutral rule’s existence enough to defeat a requested accommodation that is otherwise reasonable, accommodations would be very rarely granted.
  11. Congress said nothing suggesting that the presence of neutral rules would create an automatic exemption sufficient to defeat a request for reasonable accommodations.
  12. By the departmental policy’s own terms and be defendant’s own summary of those policies, the relevant essential function of Hampton’s employment would seem to be his ability to safely carry and use a firearm rather than just the departmental approval firearm when required.
  13. The proposed accommodation would help Hampton perform that essential function, which is enabling him to carry a firearm safely on an equal footing with his peers. At a minimum, Hampton has raised a genuine issue of material fact on the essential functions of his employment. His requests certainly fit neatly within the categories of accommodations contemplated by Congress.
  14. The ADA and its final implementing regulations make clear at 42 U.S.C. §12111(9)(B) and 29 C.F.R. §1630.2(o)(2)(ii), that reasonable accommodations include the acquisition or modification of equipment or devices. Accordingly, to find the acquisition of or modification of equipment or devices facially unreasonable when Congress used it as a classic example of a reasonable accommodation, would frustrate Congress’s stated ends.
  15. This is not a situation where Hampton seeks to eliminate an essential function of the position. Instead, he sought an accommodation in furtherance of doing his job. That is, he requested acquisition of equipment or devices so he could perform his job safely on an equal footing with his peers.
  16. The idea of an accommodation is to allow an employee to perform the essential functions of his job.
  17. Using a Glock-platform handgun was not an essential function of Hampton’s employment.
  18. When it comes to showing that a facially reasonable accommodation was requested, that is not a heavy burden for plaintiff to meet. A plaintiff only has to suggest the existence of a plausible accommodation, the cost of which on its face do not clearly exceed its benefits.
  19. It is possible that the costs of providing Hampton a handgun other than a preapproved Glock could result in an undue hardship to the department, but that is a matter for the district court to address on remand if the defendant seeks to establish the affirmative defense of undue hardship (the court lays out what is involved in the undue hardship inquiry in a footnote).
  20. In a footnote, the court said that they do not need to address the interactive process argument because the district court was reversed in its essential function determination.

 

III

Court’s Reasoning Why Summary Judgment Gets Affirmed When It Comes to the Disparate Treatment Claim Due to a Lack of Causation

 

  1. Hampton did not allege sufficient facts to show that he was terminated because of his disability. That is, while Hampton’s employer undeniably knew of his disability, there isn’t sufficient evidence to show discriminatory animus (intent). In fact, defendant accommodated Hampton throughout the on boarding process and through the firearm training.

 

IV

Court’s Reasoning Why Summary Judgment Gets Affirmed When It Comes to the Disparate Treatment Claim Due to a Lack of an Adverse Action

 

  1. An adverse employment action is one causing a significant change in employment status or benefits.
  2. While the 10th Circuit liberally defines “adverse employment action,” it still requires a change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.
  3. While Hampton’s responsibilities were clearly altered when he was assigned from a temporary post to a permanent one, alteration of responsibilities alone does not make an employment action adverse.

 

V

Court’s Reasoning Why Summary Judgment on the Retaliation Claim Gets Affirmed

 

  1. Hampton cited no evidence in the record indicating that the decision-makers with respect to the termination decision were aware of the accommodation requests prior to the termination decision.

 

VI

Judge Bachrach’s Concurring Opinion

 

  1. To determine whether a job function is essential, a set of regulatory factors, 29 C.F.R. 1630.2(n)(3), is reviewed.
  2. Applying those factors, leads a reasonable factfinder to conclude that the ability to safely use a department issued handgun was not an essential function of the job.

 

VII

Thoughts/takeaways

 

  1. How the essential function of the job is phrased can be important. For example, in this case, is the essential function of the job using a Glock handgun or is the essential function of the job using a firearm? As you can see from the majority and concurring opinions, you can get to two different places depending upon the answer to this question.
  2. This is a Rehabilitation Act claim. So, using the term “otherwise qualified,” was perfectly appropriate. The ADA uses the term “qualified,” but the two terms are identical in their meaning.
  3. One may wonder why title I of the ADA was not involved as it is clearly an employment matter involving an employer of more than 15 individuals. The obvious answer is that receipt of federal funds waives sovereign immunity under the Rehabilitation Act according to the overwhelming number of cases addressing that question. A title I case would have undoubtedly run into sovereign immunity. §504 does apply to employment.
  4. Discriminatory intent is not necessary in failure to accommodate cases, but it is required in disparate treatment cases.
  5. Courts give consideration to the employer’s judgment as to what functions of the job are essential, but that judgment isn’t necessarily dispositive. Keep in mind, how likely a court is to look under the hood so to speak varies from judge to judge.
  6. Very helpful guidance from the court as to when a court will look under the hood with respect to the employer’s judgment regarding essential functions of the job. In particular, the court says that courts usually defer to the employer’s judgment absent evidence supporting the purportedly essential function as a tangential relationship with the actual job (i.e. a marginal function of the job), is inconsistently enforced, or otherwise lacks a connection with business needs.
  7. Just because an essential function is in the job description and listed as such doesn’t make it so.
  8. Reasonable accommodations may include modifying neutral policies and procedures.
  9. It is clear from the decision that plaintiff’s burden to suggest a plausible accommodation is not a heavy burden for a plaintiff to meet. However, I don’t understand what the phrase “a plaintiff only has to suggest the existence of a plausible accommodation, the cost of which on its face do not clearly exceed its benefits,” actually means. That is, I get the first part of the phrase, but I don’t get the part that states, “the cost of which on its face do not clearly exceed its benefits.”
  10. As the court points out in a footnote, it is not a simple matter at all for an employer to show undue hardship because you look to the entire resources of the entity. Impossible to believe that the entire resources of the Utah Department of Corrections are going to be jeopardized by providing Hampton with an alternative handgun.
  11. Yesterday, I blogged briefly on the Muldrow oral argument, here. Look to that case for any indication about whether adverse employment actions will be required in failure to accommodate cases. For now, the cases on that issue are all over the place, so be sure to check your own jurisdiction.
  12. I am not sure I entirely follow how the retaliation claim gets tossed because the ADA with the exception of the 11th Circuit when it comes to nonfederal governmental entity employees, here, does not have any individual liability under any circumstances for retaliation. Accordingly, it is the entity that has the responsibility and any notice to an employee of that entity would imbue to the entity as a whole.
  13. It seems to me that Judge Bachrach’s concurring opinion suffers from the fact that the question is whether a person can do the essential functions of the job with or without reasonable accommodations. My read of that opinion is that the “with or without reasonable accommodations,” piece gets short shrift in the concurrence. That is, don’t fall into the trap of forgetting that qualified/otherwise qualified refers to with OR without reasonable accommodations.
  14. You see the ADA mentioned throughout this opinion, but this is a Rehabilitation Act case. The ADA and the Rehabilitation Act are very close in their statutory and regulatory provisions but are not identical (for example, two notable differences are in the area of causation and program accessibility). So, they get interpreted in the same way.
  15. When it comes to interactive process, courts vary on whether that is a separate cause of action. So, be sure to check your particular jurisdiction on that score.