Happy Fourth of July week everyone. Hope everyone had a great Fourth of July. I am sure many are taking the week off or having an extended holiday. Have fun and be safe.
Today’s blog entry is a three in one. In particular, we will talk about how do you figure out when a temporary disability falls under the actual disability prong, the importance of the EEOC charge, and an upcoming case before the United States Supreme Court dealing with whether emotional distress damages are available under the Rehabilitation Act. As usual, the blog entry is divided into categories and they are: Hamilton v. Westchester County; EEOC charge is everything; and Rehabilitation Act come to the United States Supreme Court. There is not a thoughts/takeaways section because it is incorporated already into each section.
Hamilton v. Westchester County (Just When Is a Temporary Disability Protected under the Actual Disability Prong)
In this case, plaintiff dislocated his knee and tore his meniscus when he stepped on crumble concrete in the prison recreational yard. While the disability would have been temporary with proper medical care, he didn’t get that care and things went from bad to worse. The county defended on the grounds that his disability was temporary, and the District Court dismissed his ADA claim on that ground. Plaintiff appealed.
After laying out what is needed for a prima facie case in a title II claim and noting that title II claims are driven by the question of whether meaningful access existed, the court notes that the ADA has been held by the Supreme Court to apply to prisons. The court then goes on to talk about how the ADA was interpreted prior to its amendments and how the amendments to the ADA expanded both definitional terms and by way of regulation relaxed temporal requirements with respect to whether a temporary disability could be an actual disability. The court joined the First, Fourth, and Seventh Circuits in holding that a short-term injury can now qualify as an actual disability under the ADA. In other words, a plaintiff’s actual disability claim under the ADA does not fail solely because he failed to state that his or her disability will be permanent or chronic or because he or she fails to indicate the duration or long-term impact of the impairment. The court goes on to note that the expansion for temporary disabilities by way of regulation contrasts with the exception that exist with respect to a person regarding as having a disability. As we know, with respect to the regarded as prong a person does not have protection under that prong if the impairment is both objectively transitory, lasting six months or less, and minor. 28 C.F.R. §35.108(f)(2). However, 28 C.F.R. §35.108(d)(1)(ix) now includes temporary disability as actionable impairments under both the actual and record of prongs. Here, the complaint alleged that the plaintiff sustained a dislocated knee and torn meniscus, suffered from excruciating pain, his injuries were not properly treated, and he was placed in situation where his injuries were aggravated.
So, what is the standard for determining when a temporary disability becomes an actual disability under the ADA as amended? The answer comes from a footnote where the court cites to a First Circuit decision holding that a temporary disability falls under the actual disability prong if it is sufficiently severe. They also cite to a decision we discussed here from the Fourth Circuit that also adopted in essence a sufficiently severe standard. However, just what is meant by sufficiently severe? I think it is instructive that the Second Circuit discusses the transitory and minor exception for regarded as as a way of illustrating that temporary disabilities can be covered under the actual disability prong but not the regarded as prong. I remain convinced that as a matter of preventive law if you are trying to figure out whether a temporary disability is an actual disability, asking yourself the question of whether the disability is both transitory AND minor will solve a lot of problems. Again, that isn’t the legal standard rather but good preventive law. We do have cases now saying that the legal standard is, “sufficiently severe.” However, “sufficiently severe,” isn’t really very helpful. Hence, the preventive approach of asking whether the disability is transitory, lasting less than six months, AND minor makes a lot of sense.
EEOC Charge Is Everything
In Yarbough v. Kaiser Permanente , a decision from the Northern District of Georgia decided on June 29, 2021 by United States Magistrate Judge Christopher Bly, a person filed a class-action suit after previously submitting an EEOC charge containing no indication that a class action was involved. The defense moved to dismiss the class action charges because the EEOC claim did not put anyone on notice that a class action was coming. The magistrate judge said that nothing in the charge indicated a class action was forthcoming. As a result, the charge did not provide notice to the EEOC and the employer that the discrimination alleged was more than an isolated act and therefore could not be used to bring class action allegations. The moral of the story is the EEOC charge has to closely match up with the complaint. Also, while anyone can file an EEOC charge, it is helpful to have a lawyer do it as they are aware of how the charge and any subsequent complaint have to match up with each other. Also, even if you can get by the EEOC charge and the complaint matching up with each other, class actions with respect to disability discrimination are incredibly difficult to pursue, as we have discussed here for example.
Rehabilitation Act Comes to the Supreme Court
Just last week, the United States Supreme Court agreed to hear the case of Cummings v. Premier Rehab Keller, a 2020 decision from the Fifth Circuit holding that emotional distress damages are not available under the Rehabilitation Act. That decision takes the opposite point of view from the 11th Circuit decision of 2007 in Sheely v. MRI Radiology Network, here, holding that emotional distress damages are available under the Rehabilitation Act. Having just read the 11th Circuit decision, the two decisions cannot be reconciled and are clearly in conflict with each other. So, no surprise that the Supreme Court stepped in to resolve the conflict. Both cases turn on how do you interpret Barnes v. Gorman. Barnes holds that compensatory damages are available under the Rehabilitation Act but not punitive damages. Since title II of the ADA is tied into the Rehabilitation Act remedies, you get the same answer as Barnes for violations of title II of the ADA. However, Barnes does not answer the question of whether a subset of compensatory damages, emotional distress damages, are available. Back in 2007, the 11th Circuit said they were. In June 2020, the Fifth Circuit said they were not. It all comes down to whether the cause of action is something that an entity is on notice of when they agreed to take federal funds. The 11th Circuit says that emotional distress damages are clearly foreseeable when there is discrimination under the Rehabilitation Act. They also say that there is a presumption that all remedies apply when a wrong is committed under a federal statute. On the other hand, the Fifth Circuit says that the 11th Circuit is confusing notice with whether damages are foreseeable. They are not at all the same thing says the Fifth Circuit. At this stage, I have no idea how the Supreme Court is going to deal with this situation. The case of course has huge implications for persons with disabilities pursuing title II or Rehabilitation Act claims for both the person with a disability and for lawyers thinking about taking such cases on. Stay tuned.
Have a great Fourth of July week everybody!