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

 

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

 

I

Facts (Taken Directly from the Opinion and Also Paraphrased)

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

II

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

 

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

 

III

MSPB’s Discussion of Remedies Available

 

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

 

IV

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

 

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

 

V

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

 

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

 

VI

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

 

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

 

VII

Thoughts/Takeaways

 

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

Today’s blog entry comes from Minnesota. It was actually sent to me by the plaintiff’s attorney on the case. It has also been blogged on already by others, but I wanted to offer my own perspective. The case of the day is Frost v. Lion Brand Yarn Company, here, decided by the United States District Court of Minnesota on February 6, 2025. It makes the case for why an Internet site doing activities within one of the categories of 42 U.S.C. 12181(7) is a place of public accommodation. The facts are pretty typical. A person who uses a screen reader could not access the company’s website and sues for disability discrimination. Importantly, the plaintiff actually enjoys the activities related to what the website offers, which is material for knitting, as she knits frequently herself. Lion Brand filed a motion to dismiss, which for the reasons discussed below the court denied. As usual, the blog entry is divided into categories and they are court’s reasoning as to why Lion Brand’s Internet site is a place of public accommodation and thoughts/takeaways. The reader will probably want to read the whole thing.

 

I

Court’s Reasoning As to Why Lion Brand’s Internet Site Is a Place of Public Accommodation

 

  1. Congress enacted the ADA in 1992 to remedy widespread discrimination against persons with disabilities.
  2. The element of a disability discrimination claim under Title III of the ADA are: 1) the plaintiff is a person with a disability; 2) the defendant owns, leases or operates a place of public accommodation; 3) the defendant engaged in conduct adverse to the plaintiff because of the plaintiff’s disability; and 4) the defendant failed or refused to provide the plaintiff a reasonable accommodation for the plaintiff’s disability.
  3. Title III of the ADA contains a broad definition of the term “public accommodation.”
  4. The 12 extensive categories of facilities in 42 U.S.C. §12181(7) are to be construed liberally in order to ensure people with disabilities equal access to the wide variety of establishments available to the nondisabled.
  5. The Eighth Circuit has been silent on whether an Internet site is a place of public accommodation.
  6. There is a split in the circuits on the question of whether an Internet site is subject to Title III of the ADA. The Third Circuit, Sixth Circuit, and Ninth Circuit have all held that Title III of the ADA unambiguously applies only to physical structures.
  7. The 11th Circuit has not taken a clear position on the issue.
  8. The First Circuit and the Seventh Circuit have held that Title III’s definition of public accommodation includes areas that are not physical structures.
  9. Many district courts have been asked to decide whether websites are themselves places of public accommodations under the ADA and have been deciding in the affirmative.
  10. The decisions from the Third Circuit, Sixth Circuit and Ninth Circuit are not binding on a District Court in Minnesota. Also, those decisions did not touch on the issue of whether businesses are free to operate websites denying disabled Internet users equal access to the goods and services they offer because of the user’s disability. Instead, those cases dealt with the issue of whether Title III’s prohibition on discrimination in places of public accommodation requires a long-term disability insurer to treat mental and physical disability the same in terms of the insurance policy itself. Concluding that Title III of the ADA does not apply to the content of insurance policy did not require the sweeping conclusion that only physical structures are places of public accommodations. In other words, those three cases would have come out the same regardless of whether a Title III place of public accommodation is or is not limited to places that have a physical structure.
  11. The court respectfully disagrees with an interpretation from those cases that a physical structure is necessary for the applicability of Title III of the ADA. The canons of construction used by those courts play too great a role in their analysis as canons of construction need not be conclusive and are often encountered by some other canon pointing in a different direction. Application of the Canon of construction used by those courts results in too narrow a reading of the term “public accommodation,” because the physical structures only construction ignores the maxim that a remedial statute needs to be read broadly.
  12. A physical structures only construction, also runs counter to the ADA’s intent, which Congress enacted to eliminate discrimination against persons with disabilities, and to integrate them into the economic and social mainstream of American life through a comprehensive law targeting widespread discrimination.
  13. The relevant statutory language does not reflect congressional intent to limit “places of public accommodation,” to locations with a physical structure thereby excluding places like websites from Title III’s coverage.
  14. The operative language of Title III, 42 U.S.C. §12182(a), prohibits discrimination that prevents a person with a disability from the full and equal enjoyment of the goods, services, facility, privileges, advantages, or accommodations of any place of public accommodation (emphasis in opinion).
  15. Neither 42 U.S.C. §12182(a) nor the 12 broad categories included in the definition of public accommodation in §12181(7), expressly put limits on the places where disability discrimination is prohibited to those that are “physical structures.” As the First Circuit recognized, examples of “service establishments” in §12181(7)(F), often conduct their business in ways that do not require their customers to enter an office in order to obtain their services.
  16. Reference to dictionary definitions of the term “place,” does not resolve the question. Although contemporary dictionary definitions can be useful in understanding the meaning of an undefined term in the statute, the definition of words in isolation is not necessarily controlling in statutory construction.
  17. The definitions of ”place,” found in dictionaries around the time of the ADA’s passage referred to buildings and other physical locations, however they did not suggest that all places are necessarily physical structures. In fact, during the years just before the passage of the ADA, the American Heritage Dictionary, Second College Edition, said that a “place,” meant “a portion of space”; “an area with definite or indefinite boundaries,” “an area occupied by or set aside for a specific person or persons,” and a “business establishment or office.” Other dictionaries at the time compiled similar ranges of definitions of which an office or building was but one example. For example, Webster’s Dictionary of the English Language, the New Lexicon, defined a place as including: “a particular part of space,” “position in space, or in some hierarchy, scale, orderly arrangement,” “a building or area appointed for a specified purpose.” The Random House dictionary of the English language at the time contained a similar definition. None of those dictionary definitions, nor the list of examples within the statutory definition of “public accommodation,” resolve conclusively the question of whether a “place of public accommodation,” is limited to physical structures.
  18. A website is not inconsistent with the noun “place.” A website is a location in the space known as the Internet, and the word “place,” can be defined as a particular position or point.
  19. The Supreme Court has characterized cyberspace as the most important place for the exchange of views.
  20. A reading of “place,” not being confined to physical structures is consistent with Congress’s decision to prevent discrimination in “any (emphasis in opinion), place of public accommodation.”
  21. Preventing discrimination in any (emphasis in opinion), does not reflect an unstated intent to allow businesses to deprive individuals with disabilities equal access to the goods and services whenever those businesses lack a brick-and-mortar store.
  22. The court also finds that title III’s legislative history supports the conclusion that a standalone website is a place of public accommodation. This is true even though the ADA was passed prior to the advent of the Internet. In fact, legislative history reflects that Congress intended the ADA to adapt to changes in technology, and that the specific examples in §12181(7) were intended only to require a plaintiff to show that the defendant’s place of public accommodation falls within a general category listed under the ADA.
  23. In the standalone websites of today, customers engage in an enormous amount of interstate commerce, that reasonably fall into one or more of the categories of public accommodation reflected in the statutory definition. This is especially true when one reads those categories in the context of the injustice Title III of the ADA was meant to remedy.
  24. A website operating a store like Lion Brand’s is not meaningfully different from a physical shopping center, and is functionally a sales or rental establishment when it comes to the need for persons with disabilities to have access. A brick and mortar sales establishment can discriminatorily prevent disabled person from gaining meaningful access to its goods and services by failing to install ramps for wheelchair access or omitting braille signage for persons who are blind or visually impaired to find public restrooms. In similar ways, online sales establishments failing to maintain websites that can be navigated by those who are blind or visually impaired prohibits these customers from gaining equal access to the goods and services because they cannot navigate those websites even when using screen reader technology.
  25. Citing to a Seventh Circuit case, the court noted that the Seventh Circuit said that the site of the sale is irrelevant to Congress’s goal of granting the disabled equal access to seller of goods and services. Instead, what matters is that the good or service be offered to the public.
  26. Citing to a District Court case from Virginia, the court noted in a footnote of a case that mentioned people shop in virtual marketplaces for everything from luxury to necessities, and we now rely even more on online shopping as a result of the recent pandemic.
  27. The court is also not convinced that the absence of any amendment of the ADA since the advent of web-based commerce, indicates congressional intent to exclude websites from Title III’s coverage. Construing a statute by reference to post enactment legislative silence is a fraught enterprise rarely yielding clear answers.
  28. In the years since the Internet has become a place where customers engage in significant commerce, the fact that the ADA has not been amended to expressly include websites in the list of place of the public accommodation could just as easily reflect Congress’s understanding that no amendment was necessary.
  29. For all these reasons, the court holds that a website is a place of public accommodation for purposes of Title III of the ADA.

 

II

Thoughts/Takeaways

 

  1. The Circuits are definitely split on the issue of whether an Internet site is a place of public accommodation. The Supreme Court will ultimately have to step in.
  2. As mentioned in this blog entry, the Supreme Court has already given a strong indication of how it will decide whether Internet sites are a place of public accommodation. As mentioned in that blog entry, which involved the question of whether South Dakota had the right to tax an entity doing a tremendous amount of business in South Dakota but did not have a physical presence there, the Supreme Court came up with 23 different statements about why a “place,” is not limited to physical structures. Accordingly, I would not bet against the Supreme Court, even with this current configuration, holding that Internet sites are places of public accommodations if engaged in one of the 12 categories listed in 42 U.S.C. §12181(7). I do know that South Dakota v. Wayfair was cited by the plaintiff’s attorney in their motions, but for whatever reason the court’s opinion didn’t mention it.
  3. For anyone arguing that the Internet is a place of public accommodation, this case gives the arguments in favor of that as well as the arguments to be made against the other side.
  4. The case involved a motion to dismiss, so the next stage will be the motion for summary judgment after discovery occurs.
  5. Lion Brand will probably spend a lot more money through the trial and possibly appellate process, considering what attorneys cost nowadays, than it would take to fix their website, but that is for Lion Brand to decide.
  6. The term “visually impaired,” is perfectly okay to use in the vision loss community, though some may prefer blind. Do not use the term “hearing impaired,” with respect to the hearing loss community as that term drives us crazy. In the hearing loss community, the terms are Deaf, deaf, and hard of hearing.
  7. There was not an issue with standing in this case because the plaintiff was a knitter and wanted to buy supplies on the website related to knitting.
  8. In designing accessible websites, the go to is WCAG 2.0, 2.1 level AA.
  9. In designing accessible websites, don’t forget about voice dictation users. What works for screen reader users does not always work for voice dictation users and vice a versa, though that is usually the case.

Before getting started on the blog entry for the week, there is a reason why the blog entry is late this week. I was out of town visiting family Monday through Wednesday of this week. Then, I spent Thursday catching up on things. So, the blog entry is coming at the end of the week. Today’s blog entry comes to me courtesy of Prof. Leonard Sandler, a clinical law professor at the University of Iowa. It discusses the situation of what happens when a person with a service animal shows up at a business, get kicked out of the business, the police get involved but don’t know the law, and the individual winds up suing both the police and the business for ADA violations. The case of the day is Taylor v. K N B’s Inflatable’s Please, LLC, decided by the United States District Court for the Middle District of Pennsylvania on February 25, 2025 (Taylor v. K N B’s Inflatables Please, LLC, 2025 U.S. Dist. LEXIS 33696). As usual, the blog entry is divided into categories and they are: facts; service dogs overview under Title II of the ADA; service dogs overview under Pennsylvania law; court’s reasoning granting summary judgment for Borough of State College with respect to Taylor’s Title II of the ADA claim; court’s reasoning granting summary judgment to Borough of State College with respect to the aiding and abetting claim under Pennsylvania statute; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Facts

 

Taylor is a combat veteran of the Vietnam War and relies on a service animal to aid with PTSD and his physical conditions, including those related to his mobility. His service animal is with him every step of the way.

 

One day, his grandson said to him let’s go to the bounce house, and they traveled to the Nittany Mall in College Township, Centre County, Pennsylvania. The defendant operates a kids playground business at the mall, which includes several bounce house inflatable structures. Taylor intended to watch his grandson play in the bounce houses. Taylor’s wife, daughter, and son-in-law were also present, though they drove separately and entered the business later.

 

When Taylor attempted to enter the business with his service animal, the owner of the business told Taylor to leave. He advised Taylor that no dogs were allowed in the business at the direction of the business’s insurer. The individual also told Taylor that if he did not leave, the business would have them arrested. An owner of the business may have also called the police.

 

The plaintiff then spoke with the mall security employee who advised Taylor that the business was wrong, but also told him that the mall could not address the issue. Taylor then called 911. A patrol officer for the state college Police Department responded to the call. Taylor advised the officer that he was a disabled veteran, the dog was his service dog, and that he was denied entry into the business because of his service dog. He also said he wanted access to the store. The patrol officer responded firmly that she could not force the business to allow him in. For the next 14 minutes, Taylor and the officer engaged in a vigorous discussion over the issue that ultimately ended respectfully and cordially.

 

At one point during the discussion, the patrol officer told the plaintiff to show her in the Crimes Code where it is a criminal matter at her level, and she would definitely enforce it, but it was not such a criminal matter. That assessment turns out to be wrong because the Pennsylvania Crimes Code makes it a summary offense to deny people access to certain businesses when they are using service dogs to assist with the disability. It is undisputed that the patrol officer did not advise the business that they were committing a summary offense by excluding Taylor from the premises because of a service dog. The patrol officer did not detain, arrest, or chart Taylor with any crimes.

 

The business owner told the officer that he had no problem with service animals, but his insurance company would not allow them in the business.

 

Taylor brought suit against the business under Title III of the ADA, a suit that the business never responded to, and against the police force (Borough of State College), for violating Title II of the ADA. Borough of State College filed a motion to dismiss.

 

II

Service Dogs Overview under Title II of the ADA

 

  1. DOJ issued regulations applicable to service dogs under Title III of the ADA in 1991 and then made them applicable to public entities (Title II), in rules published in 2010.
  2. Both set of regulations (§§28 C.F.R. §§36.302(c), 136 (a)), provide that policies, practices, or procedures need to be modified to permit the use of a service animal by an individual with a disability. While there are exceptions as to when a service dog must be allowed, if those exceptions are inapplicable, a person with a disability use of a service animal is reasonable under the ADA as a matter of law.

 

III

Service Dogs Overview under Pennsylvania Law

 

  1. The Pennsylvania antidiscrimination statute directly addresses the use of support animals by individuals with disabilities. In particular, the Gen. Assembly has declared that the opportunity for an individual to obtain all the accommodation, advantages, facilities and privileges of any public accommodation without discrimination because of the use of a support animal because of the physical handicap of the user is a civil right enforceable by the Pennsylvania Human Rights Act.
  2. The Pennsylvania Human Rights Act makes it an unlawful discriminatory practice for a business to refuse, withhold from, or deny to any person due to the use of a guide or support animal because of physical handicap of the user either directly or indirectly, any of the accommodation, advantages, facilities or privileges of the public accommodation, resort or amusement.
  3. Under the Pennsylvania Human Rights Act the term “public accommodation, resort or amusement,” specifically references businesses like the one involved in this case in several different ways.
  4. Pennsylvania has also made it a summary offense for businesses to exclude individuals using service or support animals to assist with their disability. Summary offenses are punishable by up to 90 days imprisonment and a fine of up to $300 if no higher fine is established. Under Pennsylvania law and its rules of criminal procedure, summary offenses are enforceable by law enforcement officers who institute summary proceedings by citation.

 

III

Court’s Reasoning Granting Summary Judgment for Borough of State College with Respect to Taylor’s Title II ADA Claim

 

  1. To succeed with his Title II ADA claim, Taylor has to show: 1) he is a qualified individual; 2) with a disability; 3) excluded from participation in or denied the benefits of the services, program, or activities of a public entity, or was subjected to discrimination by any such entity; and 4) that such exclusion or discrimination occurred by reason of the disability.
  2. Taylor had not demonstrated that the patrol officer discriminated against him in her response to the incident.
  3. The patrol officer in her deposition admitted that in retrospect, imposing a summary offense on the business would have been appropriate for what occurred.
  4. The patrol officer did not enforce any laws in her response to the incident. She did not cite the business for violating the criminal code, but she also did not cite Taylor. While Taylor contends that the patrol officer threatened to arrest him for trespassing, that claim cannot even be inferred from the body cam video.
  5. In the quarter hour the patrol officer interacted with Taylor in the middle of the mall, she said many things, but she did not threaten to charge Taylor with trespassing. Any discussion of trespassing occurred in a hypothetical sense.
  6. During the conversation, the patrol officer deferred to de-escalation techniques and the civil process. She chose to diffuse the situation at hand between Taylor and the business in order to prevent a larger disturbance at the mall. In that sense, the patrol officer treated all parties equally.
  7. The patrol officer did not force Taylor to leave the business. Taylor left at the direction of the business. The patrol officer also did not prevent Taylor from accessing the business. Rather, the patrol officer encountered Taylor in the common area of the mall after Taylor had already departed.
  8. Under the circumstances, the failure of the patrol officer to impose summary proceedings or to ensure that Taylor could enter the store does not evidence discrimination by the police officer. She referred Taylor to civil recourse against the business. As such, none of this reflects a violation of Title II of the ADA.
  9. Cases cited by the plaintiff are distinguishable. For example, Taylor has not demonstrated that local authorities previously impeded his access into a public building or another place of public accommodation.
  10. In a case that could be found in an Understanding the ADA blog entry in the comment section before Understanding the ADA migrated over to LexBlog, the court cited to Gipson v. Popeye’s Chicken & Biscuits, 942 F. Supp. 2d 1303, which also involved a very similar fact pattern where the police were called and behaved similarly after they were called. The Gipson court said that the police provided equal services to both the plaintiff and the restaurant manager. Further, that court said that if the court were to determine the plaintiff was denied services based on his disability because the officer did not convince the restaurant manager that the plaintiff and her service dog to remain in the restaurant, the police would become responsible for sorting out civil liabilities. Further, that court said that there could be no expectation that police officers are equipped to address that type of situation when responding to a disturbance call. County police officers are not civil lawyers.
  11. While the patrol officer did not cite the business for violation of the Pennsylvania criminal code, she did advise the plaintiff about his ADA rights and civil remedies. She also agreed with Taylor when he asserted that he would go to the media, and even advised Taylor that he should go on social media as well. She also informed Taylor that she would document the incident and that he could subpoena the police report for the civil action he stated he would bring against the business. Accordingly, Taylor cannot demonstrate public services discrimination by the patrol officer in her response to the incident.

 

IV

Court’s Reasoning Granting Summary Judgment to Borough of State College with Respect to the Aiding and Abetting Claim under Pennsylvania Statute

 

  1. Taylor’s aiding and abetting theory of liability relies upon a lone allegation that the police also aided and abetted the business in its discrimination and directly and indirectly discriminated against the plaintiff by threatening the plaintiff with arrest if he tried to enter the business with the support animal. Otherwise, this count is exactly the same as his Title II ADA count. Unfortunately for Taylor, the facts, as mentioned earlier in this blog entry, simply don’t support the claim. So, summary judgment gets granted on that claim as well.

 

V

Thoughts/Takeaways

 

  1. This case seems to suggest that the police are free to ignore relevant state criminal code violations, if they exist, as well as the ADA providing they go about the situation nicely.
  2. As mentioned above, I previously mentioned the Gipson case as a comment to a blog entry. Unfortunately, the comment section of Understanding the ADA disappeared shortly after I migrated to LexBlog. Apparently, there is now a way to turn that feature back on, which is now under consideration.
  3. I was part of a panel at the last Federal Bar Association convention, held in Kansas City, where the panelists discussed how it might make sense in many situations to migrate §1983 claims to Title II of the ADA claims instead for a variety of reasons. This case actually suggests the opposite. That is, it might make sense in some situations to pursue a §1983 claim rather than a Title II of the ADA claim. After all, the police officer was operating under the color of law and did not issue a citation that should have been issued, even by her own testimony.
  4. The case clearly illustrates the need for police to be trained (training is a frequent issue in §1983 cases as well), on the various rules involving service animals (there are actually four different paradigms involved: Title I of the ADA; Titles II-III of the ADA, the Fair Housing Act; and the Air Carrier Access Act, though I realize that police officers would most likely not get involved with Air Carrier Access Act Enforcement).
  5. While it is true that police officers are not civil lawyers, Pennsylvania does have a statute that made the denial of entry for Taylor with his service dog to the business a summary offense. Summary offenses (check your jurisdiction to see if it has such a statute or a statute making it a misdemeanor because not all jurisdictions do), are most certainly within a police officer’s purview.
  6. The default motion against the place of business has been refiled. Considering this opinion, it is hard to believe that the business won’t settle or will not allow the default motion to proceed. The opinion basically says that the business blew it under Title III of the ADA and is fortunate that it was not criminally cited. Such a statement from the court is not conducive to a defense by the business.
  7. The opinion is a memorandum opinion, so as far as I can tell, it is not published.
  8. Interesting thought arises about whether the family could have claimed their own claim for association discrimination against the business and/or the police force.
  9. We recently discussed, here, how an insurer’s policy is not a get out of jail free card for failing to allow an animal that is an accommodation for a disability.
  10. I am not a Pennsylvania licensed attorney.

Today’s blog entry come to me courtesy of Clinical Law Professor Leonard Sandler of the University of Iowa, and deals with the question of whether there is an FHA violation when an insurance company allegedly refuses to insure a landlord because the ESA owned by the tenant was one of the prohibited breeds contained in the insurance exclusion. The case is Chhang v. West Coast USA Properties LLC, decided by the U.S. District Court of the Eastern District of California on February 11, 2025, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning denying the insurance brokers motion to dismiss the FHA claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Facts Taken from the Opinion

 

Pharilyn Chhang (“Plaintiff”) filed the operative second amended complaint on September 16, 2024. (Second Am. Compl. (“SAC”), ECF No. 65.) Plaintiff names the following Defendants: (1) West Coast USA Properties LLC (“West Coast”), a California limited liability company that holds title to the Cypress Apartment located at 121 Cypress Street in Madera, California; (2) Sergio Madrigal, the landlord, managing member, agent, and chief executive officer of West Coast; and (3) Dibuduo & Defendis Insurance Brokers, LLC (“D&D”), the insurance broker from which West Coast obtained its Mercury Casualty Company (“Mercury”) policy to insure the Cypress Apartments. (SAC ¶¶ 5-7.)

Plaintiff and Madrigal signed a one-year lease from August 1, 2022 to July 31, 2023 to rent an apartment at the Cypress Apartments. (SAC ¶ 16.) Plaintiff told Madrigal that she lived with her emotional support pit bull terrier, Onyx, and requested an exception to the lease’s rule prohibiting pets. (SAC ¶ 17.) When Madrigal refused, Plaintiff explained she was disabled, and that Onyx was necessary for her use and enjoyment of the apartment. (Id.) Madrigal told Plaintiff that the property’s insurance company prohibited him from renting to a tenant with a dog of Onyx’s breed, even if it was an emotional support animal (“ESA”). (Id.) Plaintiff signed the lease, moved into the apartment, and placed Onyx with friends. (SAC ¶ 18.)

On October 16, 2022, Plaintiff asked that Madrigal reconsider her request for a reasonable accommodation. (SAC ¶ 19.) Madrigal confirmed that the lease could not be modified for insurance reasons. (SAC ¶ 20.)

On October 18, 2022, Christina Quijano, Madrigal’s property manager, asked D&D via email whether West Coast’s insurance policies had any restrictions on allowing pit bulls on the property. (SAC ¶ 24.) Andrew Shaffer of D&D responded with a copy of what he described as Mercury Insurance’s guidelines for habitational exposures, including apartments, which stated:

The following risks are ineligible:

  1. Tenants who own or board Akitas, Cane Corsos, Chows, Pit Bulls, Presa Canario (canary dog), Rottweilers, Staffordshire Bull Terriers, wolf hybrids, zoo animals, exotic animals, saddle animals or any animal with a biting history. Any “mixed breed” dog that has any unacceptable breed as part of the dog’s lineage is unacceptable.

(SAC ¶ 25.) Shaffer also advised that knowingly allowing animals of the listed breeds could result in cancellation of West Coast’s policy or denial of claims. (Id.) Plaintiff alleges, however, that the Mercury policy contained no limitation on dog breeds that could be owned by tenants residing on the property. (SAC ¶ 26.) Nor did the policy contain any cancellation provision or other penalty if West Coast allowed a tenant to keep one of the listed dog breeds. (Id.)

On October 25, 2022, Madrigal sent Plaintiff a letter denying her request for a reasonable accommodation. (SAC ¶ 27.) Madrigal advised Plaintiff that they had contacted their insurance carrier regarding Plaintiff’s request to have a pit bull on the property as a service animal. (Id.) Madrigal relayed that the insurance carrier informed them that if Plaintiff’s request was accommodated, the insurance carrier would no longer provide coverage because having a pit bull on the property is too much of a risk and is therefore excluded in the policy. (Id.)

On October 28, 2022, Plaintiff renewed her request to Madrigal via email, stating in pertinent part that denying her request for her ESA based on breed and size restrictions are prohibited, including those imposed by insurance companies. (SAC ¶ 29.)

On November 5, 2022, Madrigal mailed a sixty-day notice to Plaintiff terminating her tenancy without stating a reason. (SAC ¶ 32.) On November 8, 2022, Quijano served a new notice on Plaintiff entitled, “Ninety Day Notice of Termination of Tenancy Due to Owner Move-In” and a cover letter advising Plaintiff that the lease would end on February 8, 2023. (SAC ¶ 35.) Plaintiff vacated the apartment by February 8, 2023, and she and her daughter were homeless until April 25, 2023. (SAC ¶ 38.)

II

Court’s Reasoning Denying the Insurance Brokers Motion to Dismiss the FHA Claim

 

  1. A prohibited activity under the FHA, 24 C.F.R. §100.70(d)(4), is to refuse to provide property or hazard insurance for dwellings or to provide insurance differently because of handicap.
  2. Citing to several different court decisions, the court said that courts have concluded that refusing to provide insurance to the landlord rather than to the tenant can violate the FHA. In particular: 1) a large body of case law exists holding that insurers can be held liable under the FHA because they provide the financial assistance necessary to maintain a dwelling, and therefore denial of insurance has the effect of making housing otherwise unavailable to the tenant; and 2) when considering housing discrimination against tenants with disabilities, it does not matter whether the denial of insurance is to the landlord or to the tenant because if a landlord must risk losing her home through loss of insurance, the landlord will be disinclined to rent to persons with disabilities.
  3. 42 U.S.C. §3604(c) makes it unlawful to make or cause to be made any statement with respect to the rental of a dwelling that indicates any preference, limitation, or discrimination based on a handicap, or an intention to make any such preference, limitation, or discrimination. In determining whether an oral or written statement violates this section, a plaintiff need not present evidence that the defendant harbored a discriminatory purpose. Instead, a violation occurs if an ordinary listener would believe that it suggests a preference, limitation, or discrimination based on a protected status.
  4. 42 U.S.C. §3617 makes it unlawful to coerce, intimidate, threaten, or interfere with any person on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by the FHA.
  5. 3617 reaches all practices that have the effect of interfering with the exercise of rights under the federal fair housing laws.
  6. While §3617 gets interpreted broadly, the plaintiff still has to show that the defendant’s actions affected the exercise or enjoyment of any right granted or protected by the FHA.
  7. Plaintiff did not bring FHA claims against a passive third-party insurance broker that did nothing more than secure a policy for West Coast. Instead, plaintiff alleges that the insurance broker, through its own acts and/or statements violated the FHA in three different ways: 1) making housing otherwise unavailable by refusing to provide insurance or providing insurance differently because of plaintiff’s handicap; 2) making or causing to be made a statement with respect to the rental of the apartment indicating a preference, limitation, or discrimination based on a handicap; and 3) interfering with plaintiff’s exercise or enjoyment of rights granted or protected by the FHA. Accordingly, the alleged duty owed to the plaintiff comes from the insurance broker’s own acts and/or statements that allegedly made housing unavailable to the plaintiff or interfered with her fair housing rights.
  8. Plaintiff was informed by the landlord on at least three different occasions that her request for reasonable accommodation to allow her to live with her ESA was denied for insurance reasons.
  9. Plaintiff further alleged that the landlord reached out to the insurance broker to inquire whether their insurance policy had any restrictions on allowing pitbull’s on the property.
  10. Plaintiff also alleged that other defendants were provided with a purported copy of the insurance guidelines that listed pit bulls as an ineligible risk and further advised the other defendants that allowing certain breeds of animals could result in cancellation of the policy or denial of claims despite the facts possibly being otherwise.
  11. Plaintiff also alleged that she received a letter from the landlord stating in part that they could not allow the ESA because the insurance company had said that her breed was excluded from the policy and posed too much of a risk.
  12. In a motion to dismiss, plaintiff’s allegations are accepted as true. Accepting those statements and making a reasonable inference that the insurance carrier informed the landlord that pit bulls were a prohibited breed, means that the insurance broker allegedly had knowledge of the plaintiff’s request to have a pit bull on the property as a service animal.
  13. Plaintiff’s second amended complaint sufficiently alleges that if the landlord granted plaintiff’s request for reasonable accommodation to allow her ESA to live on the property, the insurance broker allegedly had informed the landlord that the insurance company would no longer provide insurance coverage.
  14. The question of whether the insurance broker had knowledge of plaintiff’s requests, or disability, her ESA, or made a discriminatory statement based upon her disability are questions of fact that cannot be determined on a motion to dismiss.
  15. Plaintiff sufficiently alleged that the insurance broker had knowledge of plaintiff, her ESA, and her request for accommodation when it allegedly made the statement to the landlord.
  16. The court is unpersuaded that the insurance broker did not create a duty owing to the plaintiff under the broad scope of the FHA by its own alleged actions and/or statements.
  17. For the same reasons, the court found that plaintiff had also sufficiently alleged violations of similar provisions, though not identical, of the California Fair Employment and Housing Act,

 

III

Thoughts/Takeaways

 

  1. There were actually three defendants in this case; 1) the California limited liability company holding title to the apartments; 2) the landlord, managing member, agent, and Chief Executive Officer of the limited liability company; and 3) the insurance broker. For purposes of this blog entry and to keep it simple, the references to landlord in this blog entry includes both the limited liability company as well as the landlord, managing member, agent and CEO of the limited liability company.
  2. Breed restrictions in insurance policies covering rental units is a very common practice.
  3. The particular breed is never the problem, it is the way the dog has been trained or the particular dog that could be the problem.
  4. As we discussed here, breed restrictions are also a no go under the ADA.
  5. This case stands for the proposition that insurance brokers with breed restrictions in the policy they sell to landlords cannot be used as an excuse by the landlord for failing to comply with the FHA.
  6. As for how a landlord should go about dealing with ESA or service animal requests, see this blog entry. See also this blog entry as well.
  7. There is a portion of the case where the opinion conflates service animals with ESA’s. As we know, see here for example, they are not at all the same thing.
  8. Insurance brokers by having such exclusions in their policies do create a duty to tenants with disabilities.
  9. The FHA unfortunately uses the term handicap in places instead of disability. So, the opinion’s reference to “handicap,” are statutorily driven. Stay away from using that term whenever possible. If you have to use the term for statutory reasons, it is better to note why you are using that term and then refer to “disabled,” or “person with a disability,” the rest of the time.

This week’s blog entry is a case that I have had in my blog to file for some time. This is one of Andrew Rozynski’s cases, and it is not the first time I have blogged on one of his cases. In the interest of full disclosure, he and I do stay in touch and also have been on a panel together. The case is Luke v. Lee County decided in August and September 2023 (here and here). As usual, the blog entry is divided into categories, and they are: facts; magistrate’s discussion that due process violations do not survive the motion to dismiss; magistrate’s discussion that the equal protection claims do survive the motion to dismiss; magistrate’s discussion that emotional distress damages for Title II claims are not allowed after Cummings; District Judge’s discussion of why expectation damages survive the motion to dismiss; and thoughts/takeaways. Of course, the reader is free to focus on any all of the categories.

 

I

Facts

 

Luke, a Deaf claims that after he was arrested for marijuana possession, the Defendants, including the CSCDs, failed to provide him with an ASL interpreter throughout “the investigation, arrest, booking, detainment, arraignment, release, court proceedings, and probation.” .

After Luke initially filed suit, the CSCDs filed a motion to dismiss, which the District Court granted.

Luke appealed to the Fifth Circuit, which analyzed whether Luke’s claims were in fact barred by sovereign immunity or whether sovereign immunity had been validly abrogated. The Fifth Circuit found that sovereign immunity did not apply to Lee County as it was a political subdivision rather than an arm of the State. It also found that Luke successfully pleaded a Title II claim satisfying step one of the [Georgia] abrogation test.” The court vacated the dismissal as to the CSCDs and remanded the case for disposition upon further briefing from the parties as to whether Luke’s claims satisfy the second and third steps of the abrogation test. Id. The Fifth Circuit also ordered the District Court to determine whether emotional distress damages are available under Title II after finding that Luke pleaded sufficient facts supporting compensatory damages in stating that he suffered “fear, anxiety, [and] humiliation” as a result of the alleged Title II violation.

Additionally, the Fifth Circuit remanded this case (1) for “consideration of whether Congress validly abrogated state sovereign immunity for the claims against the Supervision Departments” and (2) to “decide the effect, if any, Cummings has on Luke’s ability to recover emotional distress damages under Title II” and nothing more.

After the magistrate decision, the decision was appealed to the district judge with respect to the question of whether expectation damages were permissible after Cummings.

 

II

Magistrate’s Discussion That Due Process Violations Do Not Survive the Motion to Dismiss

 

  1. An essential component of due process rights is that individuals be given fair warning of acts that may lead to revocation.
  2. A lack of a qualified interpreter can implicate due process.
  3. Luke failed to explain how the lack of fair warning was implicated in his meetings with the probation officers.
  4. While the Fifth Circuit stated that Luke’s claims against Lee County on the basis of the denial of an interpreter throughout his criminal proceedings should proceed past the pleading stage, Luke did not sufficiently plead a 14th amendment due process violation as to the Community Supervision and Corrections Department of San Jacinto County, Texas.

 

III

Magistrate’s Discussion That the Equal Protection Claims Do Survive the Motion to Dismiss

 

  1. Disabled individuals are not a suspect class, which means they are usually subject to rational basis scrutiny. Under that standard, a legislative classification gets upheld against an equal protection challenge if there is any reasonable conceivable state of facts that could provide a rational basis for the classification.
  2. Since parties attacking the presumption of rational basis have the burden to negative every conceivable basis that might support it, Luke did not meet his burden in order to overcome the presumption of validity afforded to classification subject to rational basis review, which in this case was the Community Supervision and Corrections Department cost-saving justification.
  3. In Tennessee v. Lane, here, the Supreme Court found Title II’s accessibility requirements congruent and proportional to its object of enforcing the right of access to the courts. It further found that Title II unquestionably valid §5 legislation as it applies to the class of cases implicating the accessibility of judicial services.
  4. The ADA forbids discrimination against persons with disabilities in the provision of public services, program, and activities under Title II by public entities, including state and local governments, as well as their agencies and instrumentalities.
  5. In Tennessee v. Lane, the Supreme Court found that Title II also seeks to import a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review, like the right of access to the courts, that are protected by the Due Process Clause of the 14th
  6. The Supreme Court in Lane went on to explain that Congress enacted Title II against the backdrop of pervasive unequal treatment in the administration of state services and program, including systematic deprivations of fundamental rights, such as the pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including the penal system.
  7. The Supreme Court noted that Congress had heard numerous examples of the exclusion of person with disability from state judicial services and programs, including exclusion of persons with visual impairments and hearing impairments from jury service, failure of state and local government to provide interpretive services for the hearing impaired, failure to permit the testimony of adults with developmental disabilities and abuse cases, and failure to make court rooms accessible to witnesses with physical disabilities.
  8. Lane held that with respect to the right of access to the courts, States sovereign immunity was abrogated (forcibly waived).
  9. Lane makes clear that the right of access to the court falls under the wider umbrella of judicial services.
  10. The failure to provide an ASL interpreter implicates the accessibility of judicial services for several reasons: 1) the Lee and San Jacinto County Community Supervision and Corrections Departments supervise offenders who were sentenced to community supervision by local courts; 2) They are also established by district judges in each judicial district and organized within local judicial districts; 3) supervision department employees work for the judicial districts, and the judicial districts pay their salary and provide office space, equipment, and other forms of support; 4) given the relationship between the Community Supervision and Corrections Departments and the Local court districts per the Texas Local Government Code, it is reasonable to infer that Luke’s claims implicate a judicial service, namely the oversight of his probation period.

IV

Magistrate’s Discussion That Emotional Distress Damages For Title II Claims Are Not Allowed After Cummings;

 

  1. Cummings, which we discussed here, clearly established that emotional distress damages are not recoverable under spending clause antidiscrimination statutes, such as the Rehabilitation Act. It follows that the interpretation of remedies under the Rehabilitation Act is also applicable to Title II of the ADA.
  2. The plain reading of the language of 42 U.S.C. §12133 reflects a congressional policy that the remedies under the Rehabilitation Act are the remedies available under Title II of the ADA.
  3. Since the general principle is that the rights and remedies under Title II and the Rehabilitation Act are the same, emotional distress damages are not available under Title II.

 

 

V

District Judge’s Discussion of Expectation Damages Survive The Motion To Dismiss

 

  1. Whether expectation damages are workarounds to Cummings does not necessarily render them unavailable as a matter of law.
  2. A party’s expectation losses are not necessarily the same as their emotional distress.
  3. Cummings instructed that court should examine whether a remedy is traditionally, generally, or normally available for contract actions.
  4. Just as it is hornbook law that emotional distress damages are not available for contract claims, it is also hornbook law that expectation damages are available for contract claims.
  5. Contract damages are ordinarily based on the injured party’s expectation interest and are intended to give the person the benefit of the bargain by awarding the person a sum of money that will, to the extent possible, put that person in as good a position as he/she/they would have been in had the contract been performed.
  6. By entering into a contract under Title II remedies, the Community Services Correction Department was on notice that it could potentially be liable for standard contractual remedies.
  7. In general, recovery under expectation damages is limited to an amount that the evidence permits to be established with reasonable certainty.
  8. The reasonable certainty inquiry is a question of fact and simply cannot be determined at the motion to dismiss stage.
  9. While certain losses of Luke may be incapable of quantification, other instances, such as loss of employment through prolonged confinement, may result in damages capable of calculation.
  10. At the pleading stage, each subset of family does not need to be pled with specificity or directly supported with evidence.
  11. Even if expectation damages are unlikely to prove quantifiable at a later stage of litigation, which very well may be the case in this situation, they are not barred as a matter of law.
  12. In a footnote, the court noted that since expectation damages are a standard contractual remedy, Community Services Corrections Department had notice by definition under Cummings.
  13. Any concern that expectation damages are not intuitive and seemingly inapplicable to ADA violations, is addressed by the fact that expectation damages must be quantifiable.

 

VI

Thoughts/Takeaways

 

  1. Persons with disabilities are the only class of people whose equal protection category varies depending upon the particular factual situation. For example, with respect to employment, persons with disabilities are in the rational basis class per Board of Trustees of the University of Alabama v. Garrett. As we see in the case discussed this week, with respect to judicial services they are in the highest class. It just depends from one factual situation to the other as to where people with disabilities will land with respect to the equal protection classification.
  2. This decision holds that “accessing the courts,” mentioned in Lane is actually far broader and applies to judicial services.
  3. The courts are holding that emotional distress damages are not available under Title II of the ADA even though Cummings specifically said they were saving that question for another day.
  4. Expectation damages may be a workaround to the Cummings prohibition on emotional distress damages. However, those damages require reasonable certainty in order to be allowed, but it is nevertheless possible such damages could be shown.
  5. The case settled.
  6. “Visual impairments,” is acceptable in the vision loss community. However, “hearing impairment,” drives most in the hearing loss community absolutely bonkers.

Today’s blog entry comes to me courtesy of Prof. Leonard Sandler, a clinical law professor at the University of Iowa. He sent me the case of Goldup v. Casino decided by the United States District Court for the Southern District of California on January 31, 2025. There are two aspects of the case, which can be found here. The first aspect of the case is a ringing endorsement by a federal judge concerning the right of a person with a disability, in this case someone who is severely dyslexic, to get reasonable accommodations from the court. The second aspect of the case involves whether there are any limits on the sovereign immunity of Indian tribes. We previously discussed how far sovereign immunity can go with respect to Indian tribes, here. As usual, the blog entry is divided into categories and they are: court’s ringing endorsement of the right of a person with a disability to receive accommodations from the court; thoughts/takeaways on the court’s endorsement of disability inclusion; why I put this case on my to follow list; and thought/takeaways on plaintiff’s claims in his motion opposing the motion to dismiss.

 

I

Court’s Ringing Endorsement of the Right of a Person with a Disability to Receive Accommodations from the Court (Taken From the Actual Opinion)

 

  1. Plaintiff represents that he has been diagnosed with dyslexia and a learning disability, thus presenting “significant challenges in written communication, including organizing and articulating complex legal arguments effectively.” Mot. at 2. Citing this nation’s longstanding recognition of leniency afforded pro se litigants and the United States Supreme Court’s extension of Title II of the Americans with Disabilities Act (“ADA”) to judicial proceedings, see id. at 3 (citing Tennessee v. Lane, 541 U.S. 509 (2004)), Plaintiff essentially seeks a reasonable accommodation to ensure his disabilities do not “impair his ability to communicate effectively” with the Court, see id. In short, Plaintiff argues that holding [*4]  an oral argument would aid the Court in addressing the complex issues at the heart of this case in light of Plaintiff’s struggle to communicate in writing. See id. at 4 (citing Greenwood v. Fed. Aviation Admin., 28 F.3d 971 (9th Cir. 1994)). Defendants have not filed a response.

 

  1. Nevertheless, “[t]he [*5]  Judicial Conference of the United States has long supported full access to judicial proceedings by all segments of the disabled community.” at *4. To that end, the Judicial Conference has “adopted a policy that all federal courts should provide reasonable accommodations to persons with communications disabilities.” Report of the Proceedings of the Judicial Conference 75 (Sept. 1995); see also Guide to Judiciary Policy (the “Guide“), Vol. 5, Ch 2, § 255 (requiring courts to “provide sign language interpreters or other auxiliary aids and services to participants in federal judicial proceedings who are deaf, hearing impaired, or have communication disabilities”).3 Thus, although the Court finds that the written materials Plaintiff has filed with the Court are coherent and clearly articulate Plaintiff’s arguments as they pertain to Defendants’ Motion to Dismiss, it is in the interests of justice, because of Plaintiff’s purported dyslexia and learning disabilities, to permit Plaintiff an opportunity to orally express to the Court his positions as they relate to Defendants’ Motion to Dismiss. However, “to secure the just, speedy, and inexpensive determination of [this] proceeding,” Fed. R. Civ. P. 1, the Court [*6]  will not require the Parties to appear in person and will only allow each side a modest ten (10) minutes to make their presentation.

3 The Guide, available only to the federal judiciary at http://jnet.ao.dcn/Guide/Index.html, “is the official medium by which direction as to courtroom procedures and other information are provided to the Federal Judiciary in support of its day-to-day operations. The Guide also codifies policies which are promulgated

II

Thoughts/Takeaways on the Court’s Endorsement of Disability Inclusion

 

  1. The plaintiff is proceeding pro se.
  2. Footnote 3 in the opinion, which is reproduced above, appears to be missing information (there would seem to be words that follow after the word, “promulgated), and it doesn’t appear in the opinion. Maybe, the court will fix that at a later time.
  3. While I did not excerpt it to this blog entry, the court does say that title II of the ADA does not apply to the federal government.
  4. Federal courts that are not part of executive agencies do not have to comply with the Rehabilitation Act of 1973.
  5. Federal courts that are part of executive agencies do have to comply with §504 of the Rehabilitation Act.
  6. Federal courts that are part of executive agencies do have to comply with §501 of the Rehabilitation Act with respect to their employees. §501 uses the liability and standards of Title I of the ADA.
  7. When one looks at the Administrative Office of The Courts regulations, which are extremely difficult to find, there isn’t much there beyond accommodating those with hearing loss. See here. What is important for our purposes is the sentence in the opinion saying that, “[t]he Judicial Conference of the United States has long supported full access to judicial proceedings by all segments of the disabled community.” (Emphasis added). This court is saying that all segments of the disabled community need to have full access to judicial proceedings.
  8. Also important, is the sentence that, “the Judicial Conference has “adopted a policy that all federal courts should provide reasonable accommodations to persons with communications disabilities. Report of the Proceedings of the Judicial Conference 75 (Sept. 1995).” So, this court is saying that the judicial conference has made it clear that communication disabilities, a concept that goes beyond hearing loss, also need to be accommodated.
  9. I get cases at least once a month from around the country regarding courts denying access to persons with disabilities. They are very rarely about the actions of federal courts, which is very good news considering the tremendous discretion that federal judges have with respect to accommodating persons with disabilities outside of those with hearing loss. Most of those cases I hear of involve family law judges from around the country, and it does not break down into traditional red or blue states either. If it is not a family law court that is coming across my desk, it is invariably a state court of some kind. I have had one situation come across my desk involving federal courts, but it is not common at all.
  10. I chair the Federal Bar Association Disability Best Practices Working Group. Within the next two months, we will be putting out an accessibility manual for the federal courts. Our hope is that if the federal courts have an easy to understand and use manual, that it will be much easier for persons with disabilities to access federal courts, whether the courts are a part of executive agencies or not. When the manual goes live, I will certainly make a note of that in the blog entry for that week.

 

III

Why I Have Put This Case on My to Follow List

 

  1. This case involves an individual who sued a casino run by an Indian tribe for disability discrimination. His brief against the motion to dismiss mentions a service animal. So, it is likely that this is a case where the casino refused to allow him into the casino with his service animal. The Indian tribe defended on the grounds that the claim should be thrown out because of sovereign immunity. We discussed such a case  here. That case went quite far with respect to sovereign immunity of Indian tribes saying that both damages and injunctive relief were subject to sovereign immunity.
  2. Plaintiff’s make several arguments in his memorandum against the motion to dismiss, see immediately below, that will be very interesting to see how the court reacts to.
  3. Plaintiff claims that sovereign immunity is waived when it comes to commercial enterprises interacting with non-tribal members.
  4. Plaintiff claims Indian casinos are places of public accommodations under 42 U.S.C. §12181(7).
  5. Plaintiff claims that there is a distinction to be made between a tribe’s governmental and commercial functions and therefore, federal civil rights laws, such as the ADA, apply to tribal-run businesses operating as public accommodations.
  6. Plaintiff claims that the current parties to the litigation are fully capable of adequately representing the interests of any absent entities.
  7. Plaintiff claims that through the collection of taxes, the IRS becomes a federal partner thereby subjecting the casino to federal laws.
  8. Plaintiff claims that an individual responsible for enforcing discriminatory policies can be held personally liable under the ADA.

 

IV

Thoughts/Takeaways on Plaintiff’s Claims in His Motion Opposing the Motion to Dismiss

 

  1. Plaintiff is going to have to get around the case we discussed here, which is a published decision. Granted, that case is also a district court case, out of Arizona and not the Southern District of California, but it is published. As a published case, that means it is precedential, though certainly not binding on another district court even if it is published.
  2. Undoubtedly, the casino would be covered as a place of public accommodation under 42 U.S.C. §12181(7).
  3. If it can be shown that the casino receives federal funds, cases invariably hold that sovereign immunity is waived by the receipt of federal funds.
  4. The distinction between tribal functions and commercial enterprise functions is a very interesting one, and I am definitely interested to see how the court ultimately rules on that.
  5. The IRS involvement as a federal partner is definitely, as the plaintiff notes, a novel one.
  6. The cases with a rare exception from the 11th Circuit involving retaliation by a title II entity against a person with a disability, here, do not allow for individual liability under the ADA.

I will be very interested to see the ruling on this case and whether it is appealed. I am not sure when that ruling will come down.

 

I thought I would do a different kind of blog entry this week. With the new administration, there have been so many dizzying developments. Also, the EEOC recently filed a spate of cases that bear watching as well. I thought I would highlight some of those developments.

 

I

Equal Employment Opportunity Commission v. BellSouth Telecommunications (No. 2:25-cv-137, United States District Court for the Eastern District of Louisiana)

 

In this case, the EEOC sued AT&T on January 17, 2025, with respect to a policy that screened out people with class III obesity, which is people with a BMI of 40 or greater. In particular, AT&T set up a weight limit for using equipment that was actually lower than the weight limit suggested by the manufacturer of the particular equipment. They then took adverse action against people who could not make that weight limit, including the plaintiff. One of the things that this will come down to is the question of direct threat, which we have discussed many times in the blog, such as here. We actually discussed a similar issue with respect to amusement parks, here.

 

 

II

Davis v. Laboratory Corporation

 

The Supreme Court decided to hear this case, which we blogged on here. In particular, the question the Supreme Court decided to hear is the question of whether a federal court may certify a class action under Federal Rules of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury. Predicting what the Supreme Court will do is a fool’s errand, but the way the question as phrased that the Supreme Court will consider does not bode well for plaintiffs, but you never know. You might also want to check out the Supreme Court decision in Laufer, which we discussed here.

 

 

III

EEOC Guidance on AI Withdrawn

 

The EEOC removed a stack of AI-related documents from its website on January 27, 2025. We have blogged on the EEOC guidance on AI previously, here. Also, I wrote a law review article on persons with disabilities and AI in employment, here. I agree with others discussing this development in a Law360 article by Anne Cullen, here (subscription required), that taking down the guidance doesn’t really change anything because using AI to screen out people with disabilities is still going to be a problem under the ADA.

 

IV

A.J.T. v. Osseo Area Schools

 

In this case, the Eighth Circuit ruled in March 2024, here, that children with disabilities claiming disability discrimination in educational settings under Title II of the ADA must meet a high standard to potentially receive monetary damages. In particular, the Eighth Circuit said that a deviation must be so substantial that it demonstrates wrongful intent. The Supreme Court decided to hear the case as the U.S. Court of Appeals are split. Again, predicting what the Supreme Court will do is a fool’s errand. That said, the Muldrow case decided by the Supreme Court, which we discussed here, may play a role in this analysis. I am not going to go out on a limb here and predict which way the Supreme Court, even configured the way it is, might decide this case.

 

V

EEOC v. Sam’s East Inc. (No. 1:25-mi-99999, United States District Court for the Northern District of Georgia)

 

On January 17, 2025, the EEOC sued Sam’s East Inc. for unlawful employment practices whereby the defendant had a policy of refusing to grant accommodation because the injury was not on the job. I have actually seen these policies come across my desk, especially when it comes to light duty situations. I strongly recommend that an employer simply not do this. It simply does not matter how a person become disabled for them to be protected under the ADA. To think otherwise, destroys the very purpose of the ADA as the incredible vast majority of people become disabled as a result of situations outside their workplace.

 

VI

EEOC Commissioners Are Terminated

 

Pres. Trump terminated Democratic EEOC commissioners whose terms had not yet expired. One of the Commissioners has hired a top-notch plaintiff side employment firm to consider the matter. Pres. Trump may have more authority to terminate the EEOC’s General Counsel than he does the actual Commissioners. Look for this to be tied up in litigation for quite some time.

 

VII

Federal Employees Return to Office

 

The new administration has made it very clear that it wants its employees in the office five days a week full time. There are many people with disabilities that benefit from working remotely. §501 of the Rehabilitation Act still applies. By statute, the §501 rules and liability standards are the same as title I of the ADA. So, expect lots and lots of litigation over remote work. The best preventive law way for dealing with remote work is a case that we discussed here. As a result of the pandemic, I strongly suggest that for the first two Samper factors attorneys add an “in person,” requirement to those criteria.

 

Interesting times. For those needing a distraction, we have the Super Bowl coming up, which promises to be a very good game between Kansas City (first team in history to go to three consecutive super Bowls), and Philadelphia. I will actually be visiting my daughter in college during basketball weekend at that time, so it will be fun to watch at least some of it with her.

I hope everyone’s new year is off to a fabulous start. Congratulations to Ohio State for winning the NCAA FBS championship.

 

Today’s blog entry deals with whether a temporary disability can be a disability under the ADA. The answer is most certainly yes. There is also some other good stuff to cover as well from the opinion. The case of the day is Sutherland v. Peterson’s Oil Service, Inc., here. It is a published decision from the First Circuit decided on January 16, 2025. As usual, the blog entry is divided into categories and they are: facts; a temporary knee injury may indeed be a disability under the ADA; genuine issue of material fact exists as to whether the plaintiff was a qualified individual with a disability; a reasonable jury could conclude that an adverse action occurred; the retaliation claim needs to be considered on remand; the failure to accommodate claims survive summary judgment; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Two months into his new job with the company, Sutherland (plaintiff), injured his right knee, tearing his meniscus in two places and damaging his patella. Because of his injury, Sutherland twice requested that Peterson’s reduce the length of his workday. Eventually, he took a 12-week leave of absence to undergo knee surgery and recover. When he tried to return to work, in April 2020, Peterson’s was not receptive. Instead, Sutherland learned that Peterson’s had terminated him, effective the date he was supposed to return from leave, “due to lack of work during the COVID-19 pandemic.” Sutherland ultimately sued Peterson’s for disability discrimination and related claims. The district court granted summary judgment to Peterson’s, and Sutherland appealed. On appeal, the First Circuit reverses and vacates the grant of summary judgment on the discrimination and retaliation claims as well as the discrimination and failure to accommodate claims under Massachusetts laws. It upheld summary judgment grant with respect to wrongful termination based on violation of Massachusetts public policy, which had to do with plaintiff’s view whether biofuels were dangerous and the concerns he raised about that. We won’t cover the public policy section of the opinion in this entry.

The specific facts are of course much more detailed than this, but the above, taken directly from the opinion, is an excellent summary.

 

II

 

A Temporary Knee Injury May Indeed Be a Disability under the ADA

 

  1. In a footnote, the court noted that the amendments to the ADA fundamentally changed the analysis of whether temporary disabilities are covered by the ADA.
  2. Since Massachusetts law and the ADA are so similar in their phrasing, both get the same legal framework applied to the disability discrimination claims.
  3. To make out a prima facie case of disability discrimination, a plaintiff has to show that he (in this case): 1) has a disability within the meaning of the ADA; 2) is qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) was subject to an adverse employment action based in whole or in part on his disability.
  4. A disability under the ADA includes a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
  5. The definition of disability must be construed in favor of broad coverage of individuals.
  6. In enacting the amendments to the ADA, Congress expressly rejected the Supreme Court’s overly strict interpretation of disability. In fact, Congress directed that the EEOC enact regulations to implement the ADA’s broad scope of protection. The EEOC did that in 29 C.F.R. §1630.2(j)(1)(vii)-(ix) when it stated that an injury need not be permanent or long-term to be considered sufficiently severe and therefore qualify as an impairment.
  7. The EEOC regulations at 29 C.F.R. §1630.2(i)(2), also clarify that major life activities are not determined by reference to whether they are of central importance to daily life and that the term major shall not be interpreted strictly to create a demanding standard for disability.
  8. In a footnote, the court said that these EEOC regulations pass the Loper Bright standard as Congress in the amendments to the ADA, explicitly granted the EEOC the authority to issue regulations implementing the definitions of disability. As such, that is the perfect example of Congress expressly delegating to an agency the authority to give meaning to a particular statutory term thereby passing the Loper Bright test for a court to rely on final regulations.
  9. In enacting the amendments to the ADA, Congress expressly rejected previous Supreme Court precedent and concluded that a temporary injury can qualify as a disability if it is sufficiently severe.
  10. No per se rule exists about either the type or amount of evidence a plaintiff needs to have for an impairment to exist. Some conditions plainly fall within the universe of impairments that a lay jury can figure out without expert guidance and one of those conditions is a knee injury.
  11. A lay jury would have no difficulty grasping the connection between a knee injury and problems in conducting major life activities, such as standing, walking, and bending. In this case, plaintiff explained in vivid details that his knee hurt so badly that he wished his leg would be ripped off. He also told Peterson’s personnel that his knee was so swollen that he could not bend it, and that after working long days, he would have to reduce the swelling by way of icing in order to use the knee at all.
  12. Plaintiff also demonstrated that he had a record of a disability for the period following his recovery from surgery. A record of disability may be satisfied by a showing that the plaintiff had a disability in the past.
  13. Plaintiff also satisfies the standard of showing that he was regarded as having a disability given that it is undisputed that Peterson’s was either aware of or perceived the impairment that his knee injury presented at the time it terminated him. With respect to a regarded as claimed, the amendments make clear that a substantial major life activity being perceived by the employer is completely irrelevant to the regarded as claim.

 

III

 

Genuine Issues of Material Fact Exists As to Whether the Plaintiff Was a Qualified Individual with a Disability

 

  1. The EEOC final regulations at 29 C.F.R. §1630.2(n)(1) say essential functions are fundamental job duties of the employment position.
  2. Factors to be considered in evaluating whether a function is essential include the employer’s judgment, written job description, work experience of past incumbents of the job, and the current work experience of incumbents in similar jobs. Courts grant a significant degree of deference to the employer’s judgment.
  3. A reasonable jury could find that installations and night shifts were not essential functions of the service technician position. In fact, Peterson’s hired the plaintiff before he had any history of injury on the express understanding that he would not perform those duties. Further, there is also evidence that other service technicians either did not perform installations or did not take night shifts. Accordingly, a jury could credit the evidence that Peterson’s did not universally require it technicians to perform these duties in order to conclude that the company did not view those duties as essential.

 

IV

A Reasonable Jury Could Conclude That an Adverse Action Occurred

 

  1. The effective date of plaintiff’s termination was the same day his doctor cleared him to return to work after knee surgery. As such, the timing is enough for a reasonable jury to infer a causal connection between his disability (at least with respect to his record of and his regarded as claims), and the discharge.
  2. On remand, the district court will have to consider whether Peterson’s has put forward a legitimate, nondiscriminatory reason for firing the plaintiff, and whether the plaintiff has introduced sufficient evidence to show that the reason offered by Peterson’s, a business slow down during Covid-19 pandemic, was pretextual.

 

V

The Retaliation Claim Needs to Be Considered on Remand

 

  1. A retaliation claim is distinct from disability related claims.
  2. It is possible for a jury to determine that an employer was willing to accommodate plaintiff’s request for reduced hours and medical leave initially, but nevertheless terminated the plaintiff in retaliation for having availed himself of those accommodations. Similarly, plaintiff’s retaliation claims based upon a protected conduct of requesting an accommodation, does not depend on whether plaintiff’s knee injury qualified as a disability under the ADA.

 

VI

The Failure to Accommodate Claim Survives Summary Judgment

 

  1. To assert a claim for failure to accommodate, a plaintiff has to show that they: 1) have a disability within the meaning of the ADA; 2) are a qualified individual and that they can perform the essential functions of the job with or without an accommodation; and 3) the employer knew about plaintiff’s disability and did not reasonably accommodate it.
  2. To demonstrate that Peterson’s knew about plaintiff’s disability, plaintiff was required to make a sufficiently direct and specific accommodation requests and explain how the accommodation was linked to a disability.
  3. To establish that Peterson’s acted unreasonably, plaintiff must show that the proposed accommodation would have enabled him to perform the essential functions of a job, and also that, at least on the face of things, it would have been feasible for Peterson’s under the circumstances. If plaintiff satisfies that burden, Peterson’s must demonstrate that the accommodation would impose an undue hardship on the operation of the business in order to defeat the claim. Mere assertions by the defendant are not sufficient. Instead, the employer must produce at least some modicum of evidence of the asserted hardship, financial or otherwise.
  4. In the failure to accommodate process, the scope of the employer’s obligation is not crystal clear. However, the employer has at least some responsibility in determining the necessary accommodation since the regulations envision an interactive process requiring participation by both parties. An employer’s refusal to participate in the process may itself constitute evidence of a violation of the statute.
  5. Plaintiff gave adequate notice of a disability that needs accommodation when he explained that he was requesting a reduced schedule because his meniscus was torn pretty bad and he was in excruciating pain. In light of the parties prior discussions about plaintiff’s knee and his work schedule, that description was sufficiently direct and specific for a jury to conclude that Peterson’s was on notice that plaintiff was requesting a reduced work schedule because of his knee injury even in the absence of a Dr.’s note.
  6. Plaintiff made another request for reduced work schedule on December 18, 2019. That request was accompanied by a Dr.’s note explaining that plaintiff needed surgery.
  7. Plaintiff’s previous request not to do installation work and night shifts cannot be considered a part of his disability accommodation request because Peterson’s had agreed that Sutherland would not do this type of work when it offered him the job, well before his knee injury.
  8. Modified work schedules are examples of possible reasonable accommodations. As such, plaintiff’s request for a shorter work schedule was reasonable at least on the face of things.
  9. Plaintiff also showed that Peterson’s employee handbook define part-time employees as those who regularly work less than 30 hours per week and Peterson’s had a part-time employee on staff. As such, that evidence was sufficient to allow a factfinder to conclude that plaintiff’s request for an identical schedule was a reasonable one.
  10. On remand, the district court should consider whether Peterson’s actions amounted to a failure to engage in the interactive process under Massachusetts law, and whether that failure itself was a violation of the Massachusetts antidiscrimination law or at least evidence that Peterson’s acted unreasonably.

 

VII

Thoughts/Takeaways

 

  1. Temporary disabilities are protected under the ADA if they are a physical or mental impairment that substantially limits a major life activity.
  2. The EEOC regulations defining disability pass the Loper Bright test.
  3. Medical evidence is not always necessary for establishing whether a substantial limitation on a major life activity exists. It depends upon the physical or mental impairment.
  4. You can be protected under the ADA by having an actual disability, a record of a disability, OR being regarded as having a physical or mental impairment. Any of those work. It is possible that just one, two, or even all three will apply simultaneously.
  5. An employer’s judgment as to what essential functions of a particular job are is not dispositive. Courts will look under the hood so to speak. The extent they look under the hood can vary quite a bit.
  6. Timing between a reasonable accommodation request and an adverse action matters a great deal to many courts.
  7. Requesting an accommodation can serve as the basis for a retaliation claim.
  8. The court uses a bit of a different formulation for what is sufficient notice than I have seen in other cases. It talks about the notice having to be, “sufficiently direct and specific.” Magic words are not required but common sense is.
  9. In failure to accommodate cases, it is the responsibility of the plaintiff to show that a proposed accommodation would have enabled him to perform the essential functions of the job.
  10. Employer’s should always engage in the interactive process.
  11. Modified work schedules are examples of possible reasonable accommodations.
  12. Don’t forget that the cases are all over the place with respect to whether failure to accommodate is by itself an adverse action. As we discussed here, it is certainly looking like the law is headed towards a failure to accommodate by itself being an adverse action.

As promised, here is a blog entry on the Stanley oral argument. This blog entry will discuss the question that the various Justices asked to each of the attorneys presenting arguments to the Court. In the last section, I will give my thoughts on what transpired. The blog entry is a quick read, and so the reader will probably want to read the whole thing.

 

I

Questions Asked by the Justices to Stanley’s Attorney

 

  1. Justice Thomas and Justice Jackson started off by wondering whether the narrow way to resolve the case had been properly preserved. That is, the facts of this case are such that you could decide that the plaintiff was a qualified person with a disability while she was still working for her employer. She had developed Parkinson’s but worked for a while before having to retire. Plaintiff’s attorney and the Solicitor Gen. argued that this argument had been properly preserved below.
  2. Justice Jackson wanted to know if the plaintiff had made out a prima facie case of discrimination while she was still employed by her employer. If so, she wondered whether that would be post-employment discrimination not subject to the ADA arguably.
  3. Justice Alito wondered if the qualified requirement even applied to the situation where compensation and benefits were involved.
  4. Chief Justice Roberts sought clarification as to what qualified means with respect to Title I of the ADA.
  5. Justice Sotomayor wondered if Stanley’s argument would not open a big trapdoor expanding the reach of the ADA in a way that could be worrisome. She also wondered whether Stanley’s attorney agreed with the Solicitor General view that an employer discriminates against a retiree with respect to benefits she earned while she was a qualified individual.
  6. Justice Alito wondered quite a bit how courts would go about looking at cases like this since this case does not involve reasonable accommodations, which is the kind of case most courts are familiar with. In the discussion of this question, whether the ADA covers disparate treatment and the safe harbor for insurance making decisions came up.
  7. Justice Sotomayor wondered if not allowing people to pursue a claim with respect to retirement benefits they previously earned would not discourage people with disabilities from going into the workplace.
  8. Justice Sotomayor asked whether there were other laws that might serve as a remedy besides the ADA.
  9. Justice Jackson wondered if the facts of this case were such that the case didn’t necessarily involve just post-employment discrimination.

 

II

Questions Asked by the Justices to Solicitor Gen.

 

  1. Justice Thomas asked whether the narrow argument that the case could be decided upon was properly preserved below.
  2. Justice Alito wanted to know if the Lilly Ledbetter pay act was an alternative.
  3. Justice Alito wanted to know how a case like this would be decided by the courts since reasonable accommodations were not involved.
  4. Justice Kagan wanted to know if other discrimination laws might be applicable.
  5. Justice Alito wanted to know how this case gets considered in light of the fact that the Civil Rights Act and the ADA are fundamentally different in that the ADA is insisting on something different from equal treatment, at least with respect to reasonable accommodations.
  6. Justice Sotomayor wanted to know whether this case could be resolved under a disparate treatment theory. She also wanted to know if other laws might serve as a remedy.
  7. Justice Kagan wanted to know if the question they granted cert. on was really the right question, and whether they have the authority to decide the case in a different way. Justice Kavanaugh also expressed this concern as well.
  8. Justice Jackson wondered whether it was enough to move the case forward that Stanley was discriminated against during the period of her employment.

 

III

Questions Asked by the Justices to City of Sanford, Florida, Attorney

 

  1. Justice Thomas wanted to hear the City of Sanford’s view on just what was presented to the Court to decide and what was covered by the courts below. Justice Kagan had a similar question and wondered whether there were sufficient facts in the record and in the question presented below and how they were covered, so as to be able to decide the case on a narrower ground than what was presented for cert.
  2. Justice Jackson wanted to know if there was any dispute whether Stanley was disabled before she retired.
  3. Justice Jackson wanted to know if there was ever a remedy for a person disputing disparate treatment with respect to retirement benefits because they would not be eligible for the retirement benefits while they are working and would no longer be qualified once they stop.
  4. Justice Jackson wanted to know why the qualified individual even applied when compensation and benefits were involved when the ADA specifically says it covers discriminatory treatment and compensation and benefits. Also, as Justice Alito also noted, this is not a reasonable accommodation situation.
  5. Justice Jackson wanted to know why the ADA could not be handled the same way as civil rights cases are with respect to disparate treatment. The City pushed the argument here that everything revolves around “qualified,” as the critical factor.
  6. Justice Sotomayor wondered whether the City’s position meant that a retiree could never proceed under the ADA. She and Justice Jackson also wanted to know whether Stanley was qualified per the ADA at the time she got Parkinson’s.
  7. Justice Kagan wanted to confirm that Stanley was a qualified individual when the City adopted its policy and whether that was a critical question with respect to retirement benefits being taken away later in an allegedly discriminatory manner.
  8. Justice Alito wanted to know if a person’s would have standing to pursue an ADA claim if they develop a disability while employed and then decide to contest an allegedly discriminatory structure of retirement benefits.
  9. Chief Justice Roberts wanted to know if a breach of contract claim was viable.
  10. Justice Kavanaugh wanted to know if Medicare might play some role in the analysis of this case and what role that might be. Justice Sotomayor also wondered about that as well and whether it even made sense to have Medicare be a factor in how the case is decided.
  11. Justice Jackson wanted to confirm that a person is no longer subject to Title I of the ADA if they are no longer employed by the employer.
  12. Justice Kagan wondered whether the City’s position meant that there was no such thing as being able to sue in the time when a person was still working about a retirement benefit that is going to kick in when that person is no longer working.

 

IV

My Thoughts on the Oral Argument

 

  1. I have learned over the course of doing this blog that predicting decision based on oral arguments at the Supreme Court is a fools errand. That said, it would seem that persons with disabilities would have a right to be cautiously optimistic about this case turning out favorably.
  2. I am really surprised that nobody raised the question of whether Title II or Title III would also apply. It will be interesting to see whether this question will be discussed in the actual opinions by one of the Justices.
  3. A critical fact in this particular case may be that the policy was in effect while Stanley was still working. Another critical fact is that Stanley was working when she became disabled and worked for a time after that.
  4. The Supreme Court really seemed to struggle with the position of the City in the oral arguments. The City’s argument was basically that the retirement benefits having kicked in while she is working but wasn’t eligible for the retirement benefits until she stopped working. Then, once she stopped working she was no longer qualified. That view seemed a bit extreme to many of the Justices.
  5. Justice Gorsuch and Justice Barrett did not say anything during the course of the oral argument, so impossible to know what they might be thinking.
  6. I do not focus on the Lilly Ledbetter Pay Act in my law or consulting practice. So, it will be interesting to see how the Justices discuss the applicability of that law and whether that law is even applicable. It also won’t be surprising if the decision that comes down talks about the applicability of other laws (again, very curious about whether the other titles of the ADA will come into that discussion).
  7. Entirely possible that the decision that comes down will reiterate that when it comes to the ADA, three avenues exist: disparate impact; disparate treatment; and reasonable accommodations.
  8. As mentioned on Monday, i.e. the last blog entry before this one, it is pretty clear to me that Titles II or III could apply when it comes to retirement benefits being decided based upon a disability rather than through actuarial means. Accordingly, regardless of how this case comes down, employers would be wise as a matter of preventive law, to focus on the safe harbor and not on disability based decision-making when it comes to the structure of retirement benefits.

I wanted to tell everyone that my thoughts are with you with respect to weather-related disasters. California struggling terribly with the fires. The South got hit with winter storms. We had 4 inches of snow in Atlanta. Fortunately, it should all be gone by later this afternoon. Again, my thoughts are with everybody.

 

I wanted to discuss the upcoming argument the Supreme Court will hear on January 13, 2025, in the Stanley matter, which we discussed here. Here is what I will be looking for. Title I of the ADA is very much written in terms of whether the person is a current employee as are the final implementing regulations. Does that mean that Title I will not apply to a situation where a former employee allegedly has their benefits cut on the basis of their disability? It will be interesting to see the arguments on that. That said, I am also terribly curious to see if there is any discussion about the applicability of Title II and Title III to situations like this. Both of those titles are not written in terms of whether the person is an employee at that time. So, it is entirely possible that you could have a decision saying that Title I does not apply but Title II or Title III does apply, depending on whether a nonfederal governmental entity or a place of public accommodation is involved. The rest of the blog entry discusses my thought processes in more detail. Of course, I don’t exactly know how the argument is going to go. Also, this is completely my thinking process. I have not looked at any of the briefs that were placed before the Supreme Court. This is a real short blog entry and doesn’t divide neatly into our usual category types, so the reader will probably want to read the whole thing.

 

I

Title I is in Employee Centric Terms and So Does Not Apply

 

 

In order to be protected under Title I of the ADA you have to both be a person with a disability and qualified. Title I of the ADA at 42 U.S.C. §12111(8),  defines a qualified individual with a disability as: “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Similarly, 29 C.F.R. §1630.2(m) defines qualified as meaning: “an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” So, it is easy to see how an argument can be made that Title I would not apply to a former employee.

 

II

Title I Even Though It Is in Employee Centric Terms, Might Still Apply

 

Title I at 42 U.S.C. §12112(a), states: “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” So, it is quite clear that Title I of the ADA applies to compensation and to employee benefits.

 

The other argument that might be made is that at the time the benefit was received by the plaintiff, the plaintiff was entitled to get those benefits. Therefore, that status continues even after they are employed.

 

III

 

Title II of the ADA Has a Different Definition of Qualified

 

Title II of the ADA has a completely different definition of what qualified means. In particular 42 U.S.C. §12131(2) states: “The term “qualified individual with a disability” means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Similarly, 28 C.F.R. §35.104 defines a qualified individual as: “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”

 

The statutory and regulatory phrasing are not tense specific as they are talking about whether a person is eligible for a particular program in that given moment and not with respect to a past situation.

 

IV

Title III of the ADA Does Not Even Contain the Word Qualified

 

Title III of the ADA does not even use the word qualified. However, I don’t know how that term cannot play a role considering the concepts of undue burden and fundamental alteration contained in Title III.

 

Also: 1) Title III of the ADA at 42 U.S.C. §12182(a) states: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation;” 2) 42 U.S.C. §12182(b)(1)(A)(ii) states: “It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals;” 3) 42 U.S.C. §12182(b)(1)(D) states: An individual or entity shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration—(i) that have the effect of discriminating on the basis of disability;” and 4) Similar language can be found in 28 C.F.R. Part 36, DOJ’s final implementing regulations for Title III. A plain reading of all the statutory provisions of Title III clearly suggests that a former employee would be able to pursue a claim under Title III if a private entity did something similar to the public employer in Stanley.

 

V

Conclusion

 

I strongly suspect that grammar will play a big role in the argument. What I am incredibly curious about is whether any of the Supreme Court Justices will zero in on how the other titles of the ADA could very well apply even if Title I of the ADA does not. I do not know why this case was structured as a Title I case and not as a Title II case, since a nonfederal governmental entity is involved. One possibility is that lawyers are specialists and may not have been all that familiar with the other titles. The more likely possibility, given the economics of law practice, is that the remedies are much more inviting with respect to Title I than they are with respect to Title II, especially after Cummings, which we discussed here. The transcript of the Supreme Court oral argument comes out in the late afternoon of argument day, so I will be very interested to read the transcript. My next blog entry after this one will be an entry discussing the oral argument. I am hoping to get that up this week, but my schedule is pretty packed.