One of the publications that I subscribe to is Disability Compliance for Higher Education . It is an excellent publication for anyone involved with ADA compliance in higher education. Its audience is mainly University 504 and ADA coordinators, University administrators, and professors. One of the cases it featured in its most recent publication was the case of Dickinson v. University of North Carolina. The write up of that case in Disability Compliance for Higher Education focused on two of the issues dealing with the merits of the case [whether the person was a qualified individual with a disability (yes), and whether the University could be justified in imposing a probation agreement because of a disability on a student where that agreement had no basis in the policies of University (no)]. In addition to those two issues, the court also looked at other issues on the merits including:individual liability for public officials in North Carolina (individual liability exists when the conduct complained of is malicious or corrupt, outside the scope of official authority, or where the public employee was negligent in the performance of his governmental or discretionary duties), whether sufficient facts existed to allege retaliation (yes); and whether sufficient allegations were made to support a tortious interference with contract claim (yes).
Keep in mind, that as far as I can tell, this decision is unpublished, and so it’s precedential value is going to depend upon the jurisdiction you are in. You want to check your local rules on that. Also, keep in mind that this case talks about denying a motion to dismiss and we simply don’t know how this is all going to work out once the defendant files a motion for summary judgment after discovery occurs.
All this said, this case is a game changer if the reasoning takes hold in other jurisdictions, especially if this reasoning takes hold in published decisions. The game changer is not on any of the issues noted above, but rather on just what is the statute of limitation for ADA claims. Consistently, in every quarter, one of my greatest hits is my blog entry dealing with the applicable statute of limitation for ADA claims. It makes perfect sense to me that such a blog entry would be a greatest hits every quarter because the ADA itself does not contain an explicit statute of limitations. Also, the ADA has different titles that work different ways leading to different theoretical and practical statute of limitations, which is all discussed in the aforementioned blog entry. If one reviewed the blog entry on the applicable statute of limitation for ADA claims, you will recall I reached the conclusion that the four-year federal statute of limitations could well apply where the individual was making a claim of disability discrimination where either the claim was that they were regarded as being a person with a disability or the claim was based upon them using mitigating measures to compensate for the disability. I came to that conclusion because of the case that was discussed in that blog entry differentiated between interpretation and actually granting new rights and responsibilities. If it was simply a matter of interpretation, then the four-year statute of limitation would not apply. However, if new rights were involved that were not involved before the federal statute of limitations law was enacted in December 1990, then the four-year statute of limitations would apply to mitigating measures and regarded as claims.
Facts and Setting the Table
So why is this particular case a game changer if it becomes widely adopted? Well, first you have to know the facts about the person making the claim with respect to her disability. Her disabilities were severe migraine headaches and polycystic ovary syndrome, both of which are periodically completely disabling. Polycystic ovary syndrome can cause a person to be in debilitating pain for weeks at a time. It was undisputed that when the applicable state law is looked to for the applicable statute of limitations, she was not within the applicable statute of limitations. However, she would be within the four-year statute of limitations if it applied.
In holding that the four-year statute of limitations applied, the court reasoned as followed:
1. As mentioned in my post on the applicable statute of limitations, whether the four-year statute of limitations applies depends upon how Jones v. RR Donnelly and Sons Company, 541 U.S. 369 (2004), is interpreted. In that case, the court unanimously held that a cause of action follows the four-year statute of limitations if the plaintiff’s claim against the defendant was made possible by a post-1990 enactment.
2. Prior to the ADAAA, the ADA contained no definition of physical or mental impairment, substantially limits, or major life activities.
3. In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the United States Supreme Court said that mitigating measures had to be factored into whether a person was substantially limited in a major life activity.
4. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the United States Supreme Court held that in order to be substantially limited in a major life activity you had to be severely restricted or prevented from performing a major life activity. For that matter, this case also talked about how a disability could not be temporary in order to be protected by the ADA, and Fourth Circuit case law was in agreement with that. For example, the Fourth Circuit had previously held that a person with an episodic disability was not protected by the ADA because in general she was not severely restricted or prevented from performing a major life activity.
5. The court looked to the rules of construction contained in the ADAAA whereby the rules of construction say: that the definition of disability needs to be construed in favor of broad coverage of individuals with disabilities to the maximum extent permitted by the ADA; the term substantially limits needs to be interpreted consistently with finding and purposes of the amendments to the ADA; a person can satisfy the substantially limit definition if just one major life activity is substantially limited; episodic disabilities are protected if when active the disability substantially limits a major life activity; and whether a person has a disability must be determined without respect to mitigating measures that the person uses (eyeglasses being the exception).
6. University of North Carolina did not attempt to explain how the plaintiff’s claims would have been viable under the ADA and Rehabilitation Act as they existed prior to the ADAAA. Further, it wasn’t entirely clear to the court that her claim would have been viable.
1. Doing this particular blog entry has allowed me to revisit my prior blog entry on statute of limitations. Doing that, forces me to conclude that if a case is going to adopt the distinction between interpretation and the granting of rights, that there is a third possibility as to when the statute of limitations of four years will apply. That is, in addition to regarded as and mitigating measures, where a person has a disability that is episodic, it would seem pretty clear that a new right was likely created and the four-year statute of limitations would be in play.
2. This case goes beyond the right v. interpretation distinction in reaching the conclusion that if the claim would not have been viable prior to the ADAAA as the ADA had been interpreted by the courts but would be viable now after the ADA amendments, then the four-year statute of limitations is in play.
3. Paragraphs 1 and 2 of the Takeaways section mean that if you are a defendant, you want to argue that there is a distinction between new rights being created and interpretation being clarified. Keep in mind, that even if you are arguing successfully for that distinction, you still may wind up playing with the four-year statute of limitation quite easily if mitigating measures, regarded as, or an episodic disability is involved. With respect to being a plaintiff, this case allows you to argue that the key question is whether the claim was viable before the ADAAA when compared to after the ADAAA regardless of whether it was a matter of new rights and liabilities or just a matter of interpretation.
4. Also, very significant is two references by this court with respect to who has the burden of proof. In particular, the court said, “Defendants do not attempt to explain how Dickinson’s claims would’ve been viable under the ADA and Rehabilitation Act as they existed before the ADAAA…. Also, the court said that “… The court is not persuaded that Defendants have demonstrated that Dickinson’s allegations of disability would have been sufficient to state a claim before the ADAAA, thus requiring application of the two-year statute of limitations.” The quote taken together leads to the implication that the burden could be well upon the defendant to show that the two-year statute of limitations is in play. It also means a trial within a trial, which is likely to be very expensive, whereby a defendant has to show that a plaintiff’s claim would have gotten them to first base before the ADAAA. In addition to being very expensive to show , the ADAAA is such a game changer on the definitional questions, that such a showing may be an uphill climb in any event.
5. As a practical matter, this case, if it takes, this case will mainly be a game changer with respect to title II of the ADA because, as mentioned in my prior blog entry on statute of limitations, title I of the ADA has strict limitations associated with it and title III of the ADA issues go away if the problem is fixed (think architectural accessibility). Of course, when it comes to a title III matter, if the problem is not fixed, then this blog entry is certainly in play (i.e. the four-year statute of limitations). Also, private universities are subject to title III and so this blog entry will come into play in that context.