Before getting started on the blog entry of the day, HUD has asked for public comments on amending their §504 regulations. See here. The public comments will serve as the basis for a proposed rule. Comments are due July 24, 2023.

 

Today’s case is Ambrose v. St. Johns County School Board, here, an unpublished decision decided by the Middle District of Florida on March 27, 2023. The case deals with several questions including essential eligibility requirements, meaningful access, causation, and whether a person who associates with a person with a disability has standing to pursue a title II claim in addition to the person with the disability. As usual, the blog entry is divided into categories, and they are: facts; court’s reasoning that the two-mile rule is not a bar to the case moving forward; court’s reasoning that Ambrose’s lack of meaningful access claim can go forward; court’s reasoning that Ambrose plausibly alleged causation; B.D.’s claim of associational discrimination can go forward; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (Taken Directly from the Opinion)

 

Ambrose is a disabled veteran. Complaint ¶ 1. She suffers from lupus, rheumatoid arthritis, an anxiety disorder, and a panic disorder. Id. ¶ 14. Her young son, B.D., attends Hickory Creek Elementary School, which is in Defendant’s school district. See id. ¶¶ 1, 19. Other Hickory Creek students in B.D.’s subdivision take the bus to school, see id. ¶¶ 37-38, but, because of Defendant’s bus transportation policy, B.D. cannot do so. See id. ¶¶ 40-41. Pursuant to its policy, Defendant does not provide bus transportation for families that live less than 2 miles from the school. Id. ¶¶ 3, 33. B.D. lives 1.9 miles from the school, and as a result does not qualify to ride the bus. See id. ¶¶ 4, 40. But Ambrose cannot drive B.D. to school because of her disabilities, which frequently prevent her from leaving the house. See id. ¶¶ 43, 46. She also cannot walk B.D. to school due to her mobility constraints. Id. ¶ 44. And B.D., who is five years old,[4] cannot walk to school safely by himself. See id. ¶¶ 44-45.

With B.D.’s inability to ride the bus and Ambrose’s inability to provide reliable transportation, Ambrose must “beg family members and neighbors for assistance” in taking B.D. to and from school. Id. ¶¶ 47-48. When no assistance is available, B.D. misses school. See id. ¶¶ 49, 54. According to Plaintiffs, Defendant had “a `hardship exemption’ to the two-mile rule” at the beginning of B.D.’s kindergarten year, so Ambrose requested a waiver to allow B.D. to ride the bus. Id. ¶¶ 51-52. But Defendant denied the request, and later “removed the hardship exemption from its policies.”[5] Id. ¶ 53. A few months later,[6] Ambrose asked Defendant to modify the two-mile rule to “provide her a reasonable modification to the two-mile rule by allowing B.D. to use the bus stop at the front of their subdivision.” Id. ¶ 55. Defendant declined to do so. Id. ¶ 56. Ambrose asked Defendant to reconsider in March of 2022, asserting that the denial violated her and B.D.’s federal rights, but Defendant ignored her request. Id. ¶¶ 57-58. To date, Defendant has not provided Ambrose or B.D. with any accommodation or modification to its rules. Id. ¶ 59.

In the Complaint, Plaintiffs seek compensatory and declaratory relief, along with an injunction requiring Defendant “to provide a reasonable modification to the two-mile rule.” Id. at 20. In Count I, Ambrose asserts that Defendant was deliberately indifferent to her rights under the Americans with Disabilities Act (“ADA”) by failing to accommodate her disability. See id. ¶¶ 70-74. In Count II, B.D. raises a claim of associational discrimination under the ADA based on his mother’s disability status. See id. ¶¶ 78-85. In Counts III and IV, each Plaintiff asserts the same claim as in Counts I and II, respectively, but under Section 504 of the Rehabilitation Act (“Section 504”). See id. ¶¶ 89-96, 100-07. Last, in Count V, Ambrose alleges that she experienced unlawful discrimination under Article I, Section II of the Florida Constitution. See id. ¶¶ 110-15.

II

Court’s Reasoning That the Two-Mile Rule Is Not a Bar to the Case Moving Forward

  1. Under title II of the ADA, a qualified individual with a disability is someone who has a disability and meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity with or without reasonable modifications.
  2. A public entity cannot state that the discriminatory requirement is essential to the fundamental nature of the activity at issue without providing evidence that the procedural requirement is necessary to the substantive purpose behind the requirement.
  3. Distinguishing essential eligibility requirements from their rules, policy, and practices is a fact specific inquiry.
  4. The term essential eligibility requirements does not refer to all formal legal eligibility requirements.
  5. Defendant points to no analogous cases where courts determine that the cited eligibility requirement is essential to the program without a waiver of which would result in a fundamental alteration. Instead, defendant refers to the convenience of a bright line rule.
  6. Not only does defendant fail to explain why its two-mile rule is essential to a transportation scheme, any explanation would require consideration of information beyond the four corners of the plaintiffs complaint, which exceeds the scope of deciding a motion to dismiss.
  7. In a footnote, the court notes that the reasonableness of an accommodation is a highly fact specific inquiry.
  8. Even assuming defendant could show the two-mile rule is or was essential to defendant’s transportation policy, it is not apparent that transportation in the general sense has ever been the service or benefit in question. In fact, plaintiffs allege that the defendant had a hardship exemption to the two-mile rule and that they had made exception to that rule for parents who were not persons with disabilities.
  9. Assuming the hardship waiver allegations are correct, which must be taken as true for purposes of the motion to dismiss, it is a reasonable inference that Ambrose, as one such parent, met the eligibility requirements for the exemption either as written or with reasonable modifications.

III

Court’s Reasoning That Ambrose’s Lack of Meaningful Access Claim Can Go Forward

  1. Ambrose pleaded that she had no consistent alternative for driving her son to school and that the defendant has not offered any accommodations.
  2. Ambrose further pled that her son often misses school entirely when assistance is unavailable.
  3. In a footnote, the court noted that while the defendant need not provide the same accommodation a plaintiff requests, that only relates to whether the defendant refused to provide an accommodation and not to whether one was requested in the first place. Therefore, defendant’s argument that Ambrose cannot state a claim without having to suggest an alternative accommodation does not address the claims involved here.

IV

Court’s Reasoning That Ambrose Has Plausibly Alleged Causation

  1. Ambrose alleges that defendant has made exceptions to the two-mile rule for some parents who did not have disabilities.
  2. A facially neutral rule can give rise to an ADA or §504 claim because allowing uniformly applied disability neutral policies to trump the ADA’s requirement of reasonable accommodations/modifications would utterly eviscerate that ADA requirement.
  3. Since Ambrose has alleged that defendant waived the two-mile rule for nondisabled individuals but not for her, she has plausibly alleged discrimination on the basis of disability.

V

B.D.’s Claim of Associational Discrimination Can Go Forward

  1. Title II of the ADA at 42 U.S.C. §12132, prohibits discrimination against a qualified individual with a disability by reason of such a disability.
  2. Title II’s standing provision at 42 U.S.C. §12133, goes even farther by providing a remedy to any person alleging discrimination on the basis of disability in violation of title II.
  3. Nondisabled individuals only have standing if they allege that title II has been violated.
  4. Title II is only violated when there is discrimination against a qualified individual with a disability. Prior 11th district court case law in the 11th Circuit is consistent with this principle and 11th Circuit case law, because a person without a disability must allege an injury flowing from discrimination against someone with a disability.
  5. The threshold for associational standing under both the Rehabilitation Act and the ADA is the same in that persons without disabilities have standing to seek relief under either statute only if they allege that they were personally excluded, personally denied benefits, or were personally discriminated against because of their association with a person with a disability.
  6. If the discrimination was against a person without a disability, the standing provision does not apply because title II has not been violated. On the other hand, if a person without a disability brings a claim based on discrimination against a person with a disability, §12133 appears to supply that person with the remedy.
  7. B.D. has alleged discrimination against a person with a disability, i.e. Ambrose, and that the discrimination denied him meaningful access to his education.
  8. In a footnote, the court noted that title I and III of the ADA unlike title II of the ADA, affirmatively protects nondisabled people rather than merely granting them third-party standing.

VI

Thoughts/Takeaways

  1. In talking about how title I and title III affirmatively protect people without disabilities if they associate with a person with a disability, the court references 42 U.S.C. §12111(8) as its reasoning. While I don’t agree with the choice of statutory authority the court uses, the court does get the conclusion correct. Both 42 U.S.C. §12112(b)(4) (title I) and 42 U.S.C. §12182(b)(1)(E) (title III) explicitly protect people from discrimination who are discriminated against because of their association with the person with the disability.
  2. This is not the first case holding that title II protects people from discrimination if the discrimination is because of their association with a person with a disability. We discussed another case like this in this blog entry.
  3. A very interesting discussion by the court about essential eligibility requirements, particularly the court’s noting that rules, policy, and practices are not necessarily the same as essential eligibility requirements.
  4. The decision provides a standard for determining an essential eligibility requirement. More particularly, for an eligibility requirement to be essential, it must be necessary to the substantive purpose behind the requirement.
  5. Just what is an essential eligibility requirement is very fact specific, and that may may make getting summary judgment on the grounds a person is not a qualified person with a disability that much more difficult.
  6. How you phrase the program, activity, service, or benefit can make a difference.
  7. Requesting an accommodation and being denied an accommodation are two different concepts.
  8. Even if a policy is facially neutral, that doesn’t mean you can dispense with the ADA requirements of reasonable accommodations/modifications.
  9. Bright line rules are always problematic under the ADA because the ADA requires an individualized analysis.

In going through my cases in my blog pipeline, I decided to blog on the case of Basta v. Novant Health Inc. It was decided on December 27, 2022, and it is a published decision from the Fourth Circuit. It is a case concerning the effective communication obligations of hospitals to their patients and to the family members of those patients. The case is also about what do you have to show to get compensatory damages under Rehabilitation Act. After the opinion was issued, the parties reached a confidential settlement, so I do not know what the settlement terms are. As usual, blog entry is divided into categories, and they are: facts; court’s reasoning that damages under Rehabilitation Act were plausibly pled; that plaintiff was not the patient doesn’t matter; 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).

 

Neil Basta sought medical care for his pregnant wife at Novant Health Huntersville Medical Center (Novant Health) from June 2, 2017 to June 4, 2017. Am. Compl. ¶ 5. Basta is a “profoundly deaf individual,” with “limited proficiency in written English,” whose chosen form of communication is American Sign Language (ASL). Am. Compl. ¶¶ 13-14. Because of these limitations, Basta “requires auxiliary aids and services to communicate effectively in a medical setting.” Am. Compl. ¶ 14.

Mrs. Basta, who is not deaf, had experienced life-threatening complications that caused her to become unconscious during her first childbirth. Am. Compl. ¶ 32. When she was again expecting, Mr. Basta sought to act as her healthcare proxy. In that capacity, he would communicate with the hospital during Mrs. Basta’s second childbirth in the event that his wife could no longer advocate for herself. See Am. Compl. ¶¶ 30-33. Novant Health has a section on its website entitled “Interpretive Services,” which states that:

If you or your family have special communication needs, we offer free interpreter services, which include: Foreign language interpreters for those with limited English proficiency, Sign language interpreters, Oral interpreters, TTY and other services for deaf or hard-of-hearing individuals. When you arrive at one of our Novant locations, if you or your 313*313 family need assistance from an interpreter, let our staff know. Am. Compl. ¶ 10.

Prior to June 2, 2017, Basta contacted Novant Health to request that he be provided with a qualified ASL interpreter when the couple arrived for the birth. Am. Compl. ¶ 16. According to the complaint, a Novant Health staffer assured him that there would be an in-person ASL interpreter if Basta contacted the hospital when they were on their way to the facility. Am. Compl. ¶ 17.

When Mrs. Basta went into labor, Mr. Basta contacted Novant Health to advise them that he was bringing his wife into the hospital. Am. Compl. ¶ 18. At that time, he repeated his request for an interpreter. Id. However, the staff member Mr. Basta spoke to said that he had to wait until the time of arrival at the hospital to request an interpreter. Id. Upon arriving at the hospital, Basta and his wife reiterated their requests. Am. Compl. ¶ 19. Novant Health staff advised them that they were “working on it.” Id.

Novant Health staff then provided Mr. Basta with a Video Remote Interpreting device (VRI), which allows deaf people to communicate with an interpreter via streamed video over the internet. Am. Compl. ¶ 20. Federal regulations require that VRI services have a high-speed internet connection to deliver the high-quality images that enable deaf users to see the sign language properly. 28 C.F.R. § 36.303(f). According to the complaint, this VRI device malfunctioned. It was “blurry, choppy, and did not have a clear enough picture” for Basta to communicate with a remote interpreter. Am. Compl. ¶ 20. Hospital staff then brought a second VRI device into the room. Am. Compl. ¶ 21. However, this device malfunctioned in the same manner. Id. Further, the hospital staff plugged the device into an electrical outlet away from his wife’s hospital bed, which required Basta to leave his wife’s bedside to use it. Id.

After the second VRI device malfunctioned, Novant Health did not provide a live in-person interpreter or any other auxiliary devices for Basta for the rest of the stay. Am. Compl. ¶ 22. He made repeated requests for interpreters during this time, but none were provided. Am. Compl. ¶ 26. Instead, Novant Health required Basta to communicate with doctors and staff via lip-reading, a method of communication which Basta is unable to fully understand. See Am. Compl. ¶ 2. Basta claims he was thus unable to comprehend what was happening throughout the delivery process and was unable to ask questions to hospital staff. Am. Compl. ¶ 23.

Neil Basta then filed a lawsuit alleging violations of §504 to Rehabilitation Act, §1557 of the patient protection and affordable care act, and title III of the ABA. He sought declaratory and injunctive relief under the ADA and compensatory damages under the Rehabilitation Act and the affordable care act. The District Court held that deliberate indifference could only be found if the plaintiff had alleged systemic and pervasive problems rather than an isolated incident related to the malfunctioning of the VRI devices. Since the allegation concerned only an isolated occurrence of malfunctioning VRI devices, the District Court found that he failed to make out a claim entitling him to compensatory damages under Rehabilitation Act. The court applied the same reasoning to the affordable care act claim. Plaintiff dropped the injunctive relief claim by failing to object to the magistrate’s recommendation with respect to injunctive relief.

II

Court’s Reasoning That Compensatory Damages under the Rehabilitation Act Were Plausibly Pled

 

  1. Establishing a prima facie violation of the Rehabilitation Act against a private entity taking federal funds means showing that the plaintiff is: 1) a disabled individual; 2) otherwise qualified to participate in the offered activity or to enjoy its benefits; 3) excluded from such participation or enjoyment solely by reason of his or her handicap (disability); and 4) that the program administering the activity receives federal financial assistance.
  2. With regards to 1(3), immediately above, citing to the case that we discussed here, one way of showing an exclusion from participation or enjoyment solely by reason of his or her disability is to show that the hospital failed to adequately accommodate a hearing-impaired (“hearing-impaired,” is the term used in the decision, though I would not use it myself. I would have used in this case “Deaf),” individual by providing ineffective auxiliary aids under the Rehabilitation Act.
  3. Recipients of federal funds have to ensure that otherwise qualified handicapped individuals are provided with meaningful access to the benefit that the grantee offers.
  4. The Department of Health and Human Services has issued regulations further defining what meaningful access is in the hospital setting and those regulations warrant respect by the court.
  5. Those regulations prohibit a recipient of federal funds from providing a disabled individual an opportunity to participate in or benefit from the aid, benefit or service that is not equal to that offered to non-handicapped persons or that is not as effective as the benefits or services provided to others. 45 C.F.R. §84.52(a)(2)-(3). Although those aids, benefits, and services, are not required to produce the identical result or level of achievement for handicapped and non-handicapped persons to be equally effective, they must afford handicapped persons equal opportunity to obtain the same result. 45 C.F.R. §84.4(b)(2).
  6. A recipient of federal funds with more than 15 employees must provide appropriate auxiliary aids to persons with impaired sensory skills where necessary to afford such persons in equal opportunity to benefit from the service in question. 45 C.F.R. §84.52(d)(1). These auxiliary aids may include interpreters or other services for hearing-impaired individuals. 45 C.F.R. §84.52(d)(3).
  7. Citing to Silva, which we discussed here, the court said that both the statute and regulations make clear that the Rehabilitation Act focuses on the equal opportunity to participate in obtaining and utilizing services in hospital settings.
  8. Since the ADA and the Rehabilitation Act are interpreted in lockstep, regulations interpreting the ADA can still be helpful when trying to understand the Rehabilitation Act’s requirements.
  9. The ADA regulations at 28 C.F.R. §36.303(c)(1), provides that a public accommodation shall furnish appropriate auxiliary aids and services were necessary to ensure effective communication (emphasis in opinion), with individuals with disabilities. Significantly, an entity choosing to provide interpretive services with VRI must ensure that it meets certain performance standards including real-time, full-motion video over a sufficiently strong wireless network delivering high-quality video images that do not produce lags, choppy, blurry or grainy images, or irregular pauses in communication. A hospital must also adequately train users of the technology so that they may quickly and efficiently set up and operate the VRI. A VRI system not meeting the regulatory standards is not an effective method of making orally delivery materials available to individuals with hearing impairments. 28 C.F.R. §§36.303(f), (f)(1)-(4). All of which means a noncompliant VRI system is not an appropriate auxiliary aid per screen 42 U.S.C. §12103(1)(A).
  10. Plaintiffs proving a prima facie violation of the Rehabilitation Act can seek the remedies under title VI of the civil rights act including damages, providing the plaintiff can show intentional discrimination.
  11. Citing to the case that we discussed here, most of the Circuit Courts have found that intentional discrimination can be proven with deliberate indifference and the court adopts that approach.
  12. A showing of deliberate indifference requires much more than a showing of pure negligence. That is, deliberate indifference lies somewhere between the poles of negligence on one end and purpose or knowledge at the other.
  13. Proving deliberate indifference means plausibly alleging that a defendant: 1) knew (emphasis in opinion), that harm to a federally protected right was substantially likely; and 2) failed to act (emphasis in opinion), on that likelihood.
  14. When it comes to the failure to provide an effective auxiliary aid, a plaintiff has to show that the defendants knew there was a substantial likelihood that they would be unable to communicate effectively with a Deaf patient or companion but still made a deliberate choice not to provide one.
  15. Deliberate indifference does not require some obvious pattern of mechanical failure in auxiliary aids provided by the hospital.
  16. Requiring a pattern improperly shifts the emphasis on the Rehabilitation Act from the violation of an individual right at its discrete point in time to widespread violations spanning across multiple people or multiple visits. That just doesn’t work because it is well-known that civil rights statutes exist to protect a single individual from a statutory violation without the need to prove a systemic and pervasive problem. The Rehabilitation Act seeks to provide individual citizens effective protection against discriminatory practices. So, requiring plaintiffs suffering a violation of the Rehabilitation Act to show a long-standing pattern of similar violations defeats that goal.
  17. While a history of violations is relevant evidence to proving deliberate indifference, it cannot be equated with the standard itself.
  18. Deliberate indifference at its core is an actual notice standard.
  19. The simple failure to provide an in person interpreter on request is not necessarily deliberately indifferent to an individual’s rights under the Rehabilitation Act. However, demonstrating that the hospital had notice of a patient’s need for auxiliary aids and failed to provide them despite knowledge that the patient could not effectively communicate without such aids, supports a finding of deliberate indifference.
  20. The complaint made a showing that staffers of the hospital both knew of a substantial likelihood that the plaintiff would be unable to communicate without an appropriate auxiliary aid, yet they still made a conscious choice not to provide one.
  21. The failure to address the substantial shortcomings of the VRI devices over a three day timeframe despite repeated requests for an interpreter, gives rise to a plausible inference of deliberate indifference. More specifically, the complaint alleged: 1) Basta is a “profoundly deaf” individual who requires “auxiliary aids and services to communicate effectively in a medical setting.” Am. Compl. ¶¶ 3-4; 2) Basta alleged that he alerted Novant Health of his need for an interpreter well in-advance of his arrival, pursuant to its policy of providing free interpreter services to the hearing-impaired. Am. Compl. ¶¶ 10, 16; 3) Hospital staff allegedly stated it would comply with that request. Am. Compl. ¶ 17; and 4) Basta then again told Novant Health of his need for an interpreter on his way to the hospital. Am. Compl. ¶ 18.
  22. The VRI devices furnished by the hospital would have satisfied the hospital’s §504 obligations if they functioned correctly. However, those devices did not function correctly. If a hospital is going to go with VRI, the VRI must work. Here the plaintiff allegations are that they didn’t. More specifically, both machines were blurry, choppy, and did not have a clear enough picture for him to understand what the remote interpreter was conveying. Further, the second VRI device was plugged in far away from his wife’s bed, forcing him to leave her in order to understand what was going on.
  23. The hospital did nothing (emphasis in opinion), to ensure that he could communicate with the staff during his three days at the hospital. The complaint alleged: 1) he made repeated requests for interpreters from June 2 to June 4; 2) he was unable to understand what was happening throughout the delivery process; 3) he was not given the opportunity to ask any questions concerning his wife’s treatment and was thus unaware if she had any medical concerns; 4) after the VRI devices malfunctioned, he repeatedly requested an interpreter; 5) the hospital’s staff requested that he sign a form regarding the malfunctioning VRI machine, which raises a plausible inference that the hospital knew of its inefficacy and of his need for continued interpretive services; and 6) the hospital require Basta to communicate by lip reading, which he alleges that he could not understand.
  24. The hospital did nothing (emphasis in opinion), to remedy the situation despite having ample time to do so. In essence, the plaintiff pled a sort of apathy showing the hospital’s indifference to his rights may have been so pervasive so as to amount to a choice.
  25. What is an effective accommodation is based upon the abilities of the individual, the nature and complexity of the information exchanged, and the overall context of the situation. So, determining whether an entity subject to the Rehabilitation Act has provided appropriate auxiliary aids when necessary is inherently fact intensive. As a result, more factual development is needed and the District Court erred in dismissing the Rehabilitation Act claim at the motion to dismiss stage.

 

III

That Plaintiff Was Not the Patient Doesn’t Matter

 

  1. It doesn’t matter that the plaintiff was not himself the patient.
  2. Regulations, in this case under the ADA at 28 C.F.R. §36.303(c)(1), create an obligation to provide effective communication to companions with disabilities.
  3. Given the often interlocking nature of the disability statutes, it is easy to see why ADA guidance in their regulations are applicable here. Patients often arrive at hospitals in pain, unconscious, or feeling intense stress. In that situation, which cannot only be confusing but overwhelming, a patient’s companion, often a spouse or a family member, may be the only advocate available. To have that single advocate prevented from communication with the hospital and its staff is to leave the patient stranded. The plaintiff was unable to communicate his wife’s complicated medical history to her doctors during childbirth, despite repeated requests for some effective means of doing so. The situation was a high-risk one for the couple and the medical event one of the highest urgency and meaning.
  4. Since the Affordable Care Act claim is predicated on the plausibility of the Rehabilitation Act claim, the court reversed the judgment dismissing that claim as well.

 

IV

Thoughts/Takeaways

 

  1. The case settled. We don’t know the details since the settlement was confidential.
  2. Auxiliary aids and services requirements extend beyond a hospital’s patient to a patient’s family member as well.
  3. We don’t know from the opinion whether the plaintiff’s wife was deaf, hard of hearing, or a hearing person. Regardless, it is safe to assume that his wife was fluent in ASL.
  4. Since the Deaf primary/first language is ASL, it makes perfect sense that lip reading is not going to be that helpful to members of that community. Also, even the best lip reader, which my daughter and I are, only get 50% of what is on the lips. That said, facial expressions are critical for the Deaf to place the ASL in context.
  5. Two cases that feature prominently in this opinion are ones that we have discussed previously: 1) Silva, here; and 2) Liese, here.
  6. If a hospital is going to use VRI machines, the Department of Justice doesn’t mind them at all, the machines have to work. Be aware that the Deaf do not like the machines, and it wouldn’t take much to aggravate such an individual should the machines not be up to par. If the machines are not up to par, this case makes it clear that the hospital has a problem on its hands and needs to shift to ASL interpreting services immediately. As a preventive law matter, a hospital may want to consider developing a system so that for Deaf patients and family members, ASL interpreters are the first option rather than the last.
  7. As a result of Cummings, which we discussed here, emotional distress damages are not available under §504 of the Rehabilitation Act. However, I do know that attorneys are trying various ways to get around the Cummings decision. I was on a panel at the Federal Bar Association’s Civil Rights Section Etouffee in New Orleans with Andrew Rozynski, the plaintiff’s attorney in this blog entry and Cummings attorney in the case that was argued before the United States Supreme Court. One such workaround that he mentioned on that panel was consequential damages pursuant to a breach of contract claim. I could certainly see how a breach of contract claim and consequential damages would be a plausible argument in Basta’s case.
  8. Very interesting how the court uses italics at various places in the opinion. The court was clearly aggravated by the hospital’s conduct.
  9. Deliberate indifference does not require showing an obvious pattern.
  10. The Rehabilitation Act and the ADA both focus on individualized analysis. Since every individual is different, it is going to be difficult to get a case thrown out at the motion to dismiss stage because effective communication is so fact intensive.
  11. Rehabilitation Act causation is “solely by reason of,” which is not at all the same as “by reason of,” (title II) or “on the basis of,” (title III). See this blog entry.
  12. “Handicap,” has long passed from being an acceptable term to describe persons with disabilities, but the term is still found in the Rehabilitation Act. You can also find determine the Fair Housing Act.
  13. Deaf, deaf, and hard of hearing (HOH), have very different meanings. Deaf meets the following criteria: 1. ASL first/primary language; 2. Attended a state school for the Deaf; and 3. A hearing loss of 65-120 db; deaf is a hearing loss of 65-120 db; and HOH is anyone else with a hearing loss.
  14. Silva talks about really hindering communication as not being effective communication. Much of the court’s reasoning seems to implicitly adopt that standard.

I hope everyone had a happy holiday weekend. In many places around the world, today is also a holiday as it is Easter Monday.

 

On April 7, 2023, the Seventh Circuit came down with a decision discussing the de minimis rule when it comes to accommodating an employee’s religious needs. I got to thinking about how would that case play out if the ADA concept of undue hardship was used in religious accommodation cases. As you know, the court is currently considering a case that would abolish the de minimis exception in favor of the ADA/Rehabilitation Act concept of undue hardship. The Supreme Court’s reasoning would probably go something like this. The case establishing undue hardship with respect to religious accommodations was decided by the Supreme Court in June of 1977 in TWA v. Hardison, here. As anybody who has seen Crip Camp knows, the very first Rehabilitation Act regulations didn’t come around until May of 1977 after the late Judy Heumann led a sit in, in San Francisco. If you look at the U.S. Department of Education website, it tells you that they were the first Department to come up with Rehabilitation Act regulations and other departments used their regulations as their model. The Rehabilitation Act and their final regulations were used as the basis for the ADA in 1990 (as readers know, the ADA extended the Rehabilitation Act and its paradigm to: employers of 15 or more employees; nonfederal governmental entities; and places of public accommodations as defined in title III of the ADA). So, there is no way the Supreme Court in June 1977 would have been aware of the U.S. Department of Education regulations in May of 1977. Even if they were, the regulations would not have applied to TWA v. Hardison. One the ADA was enacted, the EEOC and the DOJ both put in their own final regulations. The ADA and the Rehabilitation Act regulations share common definitional terms, such as what is an undue hardship. Case law has only expanded on that over the years. As a result of all this, the Supreme Court may very well say that when they decided that undue hardship meant de minimis, that notion has now been overruled by parallel statutes and final regulations now in place for decades. Therefore, TWA v. Hardison is overruled and the ADA scheme for undue hardship is what is meant when it comes to what has to be done to accommodate the sincerely held religious beliefs of employees. The blog entry for the week deals with two topics. First, how does it play out under the current de minimis situation when you have an employee of the school system (who teaches music at the high school and is the only teacher for that discipline), whose sincerely held religious beliefs says transgender is something that he cannot promote. Second, even assuming that the ADA paradigm of undue hardship would be the law with respect to deciding this particular case, would the employee still lose?

 

The case of the day is Kluge v. Brownsburg Community School Corporation decided by the Seventh Circuit on April 7, 2023, here. It is 134 pages, but it isn’t that hard to condense. As usual, the blog entry is divided into categories and they are: facts; majority reasoning that the reasonable accommodation requested by plaintiff was more than de minimis; Judge Brennan’s dissenting opinion; plaintiff still likely loses, in my opinion, even under ADA paradigm; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

Facts

 

Kluge, the plaintiff, was the music director for the high school in Brownsburg, Indiana, which is 28 minutes from Indianapolis by car without traffic. The high school realized that two transgender individuals were going to be entering the freshman class, so the high school convened study groups to figure out how to deal with it. They eventually decided that they would develop a system where the teachers would call all students by the name that appears in a certain school document. If BOTH a parent and a healthcare provider said that the student wanted to be called by a preferred name that was different from their legal name, then the school would put that name on the school document that everyone had to use. The plaintiff explained to the school that his religious beliefs prohibited him from promoting transgender in any shape or form. So, the school and the plaintiff worked out a system where he could call everyone in his class by their last name. There is some debate as to whether the plaintiff over the next year slipped up with respect to pronoun use and first name use, but he did stick to calling everyone by their last names with perhaps some exceptions on occasions. Interestingly enough, at the formal band award ceremony, the plaintiff did call everyone by the name that appeared on the school document saying that the formality of the occasion dictated that he temporarily make an exception to how he went about his business during the school day with respect to the names that he used.

 

The last name approach simply didn’t work and it caused all kinds of trauma among the students because the transgender students felt they were being singled out since there were no other reason why a teacher would be using last names. It also made students that were not transgender extremely uncomfortable and they took that with them into other classrooms. Finally, parents got really upset as well. In the end, the school gave the plaintiff a choice to either call people by the name on the school document or resign. He resigned and then tried to take back the resignation. When the school would not take back the resignation, he sued claiming that the school discriminated against him on the basis of religion and his sincerely held religious beliefs.

 

I

Majority Reasoning That the Reasonable Accommodations Requested by Plaintiff Was More Than De Minimis

 

  1. In TWA v. Hardison the United States Supreme Court said that requiring the employer to bear more than a de minimis cost is an undue hardship.
  2. The school produce uncontradicted evidence that plaintiff’s last names only practice stigmatized the transgender students and caused them demonstrable emotional harm as reported to the administration by staff who personally witnessed the emotional harm.
  3. Plaintiff was told that students reported feeling disrespected, targeted, isolated, and dehumanized.
  4. The school has a legitimate interest in the mental health of its students.
  5. An accommodation is not reasonable when it is detrimental to kids.
  6. The plaintiff’s practice also adversely affected the classroom environment for both transgender and non-transgender students as it made the classroom environment tense, awkward, and uncomfortable.
  7. Administration told the plaintiff that based on reports from students and faculty, his practice resulted in students being uncertain about how to behave and how to address their transgender classmates.
  8. The last name practice also disrupted other classrooms when student brought their concerns and discussions about the practice to other teachers in other classrooms.
  9. The school’s policies sought to address the special challenges transgender students face in school while balancing those concerns with the preferences of the students parents and healthcare providers.
  10. Allowing the last name practice, placed an undue hardship on Brownsburg’s mission to educate all of its students, and a desire to treat all students with respect and affirmation for their identity in the service of that mission.
  11. The plaintiff’s retaliation claim also fails because of the inability to show causation.

 

II

 

Judge Brennan’s Dissenting Opinion

 

  1. Judge Brennan would reverse the District Court in part and grant partial summary judgment for the plaintiff on the grounds that his religious beliefs are sincerely held and then he had a prime facie case for religious discrimination. He would allow for a trial to ascertain whether the last name policy was more than a de minimis cost.

 

III

Plaintiff Still Likely Loses, In My Opinion, Even under ADA Paradigm of Undue Hardship

 

  1. As readers of the blog know, an undue hardship under title I of the ADA can either be logistical (think fundamental alteration) or financial.
  2. Financial undue hardship is not an issue in this case. Logistical undue hardship is.
  3. The majority goes into extensive detail about how the ability of the school to operate effectively to educate its kids was fundamentally altered in the ADA/Rehabilitation Act sense by the last name reasonable accommodation policy.
  4. Since a fundamental alteration is present, i.e. logistical undue hardship, the plaintiff still loses.

 

IV

 

Thoughts/Takeaways

 

  1. I do think it is extraordinarily likely that the Supreme Court using something along the lines of the reasoning at the very top of this blog entry, will say in the case they are currently considering that undue hardship for purposes of accommodating sincerely held religious beliefs needs to match up with the ADA and the Rehabilitation Act.
  2. This case illustrates the proposition, in my opinion anyway, that even under the higher standard of the ADA/Rehabilitation Act with respect to what is an undue hardship, it is still possible for a plaintiff to lose.
  3. Hazarding a guess as to what the Supreme Court would do when faced with a case is a fool’s errand. Nevertheless, while one never knows what the Supreme Court will do, I would not like the chances of the plaintiff in this case before the United States Supreme Court even after the United States Supreme Court comes down with a decision saying that undue hardship in the religious accommodation arena matches up with undue hardship in the ADA/Rehabilitation Act arena.
  4. The majority opinion is some 76 pages in the dissenting opinion is some 58 pages. The majority opinion goes into great detail as to the negative effects of plaintiff’s reasonable accommodation on the school operations over a year period while using plaintiff’s reasonable accommodation.
  5. Both the majority and dissenting opinion agree that something along the lines of the ADA’s fundamental alteration defense exists in religious accommodation cases, though they disagree as to where that line might be.
  6. On July 28, 2023, the Seventh Circuit Court of Appeals remanded the case back to the District Court to apply to the case the standard set forth in Groff v. DeJoy.

Before getting started on the blog entry of the day, I do want to wish everyone celebrating, a happy Passover and a happy Easter. Also, major league baseball has started, so good luck to any of your teams.

 

Turning to the blog entry of the day, one wonders why anyone in the state of Texas would now ever write a supporting letter saying that a person needed an animal for emotional support or needed a service animal. The case of the day is Liebman v. Waldroup, from the Texas Court of Appeals for the first District of Texas, which is Houston. The case can be found here. My thanks to Prof. Emeritus Michael Masinter of Nova Southeastern Law School for alerting me to this case on the AHEAD listserv. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that a healthcare liability claim was not involved; court’s reasoning that deviation from safety standards are not involved; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

The plaintiff sued Dr. Liebman and other defendants after a dog bit their three-year-old daughter in the Loose Caboose restaurant in Spring, Texas. The plaintiffs alleged that upon entering the restaurant a pit bull dog named Kingston wearing a “service dog,” vest attacked their child without provocation biting her cheek and severely injuring her. They also allege that the owner of the service dog and her friend, who later told police that he had been previously attacked by that service dog, did not offer to help and then fled the scene with the dog.

 

In the complaint, plaintiffs allege that the owner of the dog’s gynecologist, Dr. Liebman, provided the letter to her solely at her request for the purpose of avoiding eviction from her apartment stating that she required her service animal on the basis of generalized anxiety disorder. The obstetrician took no steps to ascertain whether the dog was actually a service animal, that is whether the dog performed specific works or tasks related to her disability. There were three subsequent letters too, including: 1) a letter from Dr. Liebman dated May 9, 2017 stating that the owner of the dog had depression/anxiety disorder requiring that she have four service animals all of which are certified to be with her to help her with the disorder; 2) a letter from Dr. Liebman dated August 3, 2017 stating that the owner of the dog had generalized anxiety disorder and having her service animals helps her with the disorder. That letter said that she was also taking medication for the disorder; and 3) a letter from December 17, 2019 stating: “Due to Jennifer Romano[’s] anxiety disorder she needs all her service animals. Kingston walks into every entrance before her, everywhere we go. Daisy licks her entire face, Molly brings her toys and sits in her lap, Maddie sits on her chest, Milly puts her paw on her face and Major si[ts] at her side and Lulu sits at her head. It appears as she needs these service animals to control her anxiety and perform her daily duties.”

 

Dr. Liebman filed a motion to dismiss arguing that the claim did not have an affidavit that is required under Texas law whenever healthcare liability claims are filed and because of the lack of that expert report the case had to be dismissed. In Texas, a healthcare liability claimant must serve within 120 days after defendant’s original answer is filed, the defendant healthcare provider with an expert report.

 

II

Court’s Reasoning That a Healthcare Liability Claim Is Not Involved

 

  1. Whether a healthcare liability claim is involved is a question of law that appellate courts get to review with a fresh eye, i.e. de novo.
  2. To answer the question of whether a healthcare liability claim is involved, the court looks at the claim’s underlying nature rather than its label. That means considering the entire court record, including the pleading, motions and responses, and relevant evidence properly admitted. The focus is on the essence of the claim, the alleged wrongful conduct, and the duties allegedly breached.
  3. Where the essence of the suit is a healthcare liability claim, a party does not avoid the requirements of the statute through artful pleading.
  4. Under Texas law, a healthcare liability claim is a cause of action against a healthcare provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare resulting in injury to the claimant regardless of whether that injury sounds in contract or tort law.
  5. Healthcare is any act or treatment performed or furnished, or that should have been performed or furnished, by any healthcare provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.
  6. A healthcare liability claim has three elements: 1) the defendant is a physician or healthcare provider; 2) the claim or claims at issue concerning the treatment, lack of treatment, or a departure from accepted standards of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare; and 3) the defendant’s conduct proximately caused the injury.
  7. If expert medical or healthcare testimony is necessary to prove or refute the merits of the claim against a physician or healthcare provider, the claimant has a healthcare liability claim.
  8. Plaintiffs allege that this claim is based on Dr. Liebman’s statements in his letters about the dog. More specifically, his statement that the dog was a service animal and was certified and his description of the dog’s behavior. They argue that those letters assisted the owner of the dog in obtaining a service vest for the dog and aided and abetted that owner in deceiving the public that the dog was a service dog when in fact it was not.
  9. Plaintiffs do not take issue with Dr. Liebman’s diagnosis of the dog’s owner as a person with generalized anxiety disorder or with his medical judgment that she may benefit from a service animal to help with her disorder. Instead, the claims are based upon his statement that the dog was a service animal and was certified.
  10. Liebman’s statements that the dog was a service animal who was certified and his comments about the dog’s behavior was not an inseparable or integral part of the rendition of healthcare to the dog’s owner.
  11. There is no accepted standard related to when a medical doctor for humans can offer his opinion about the qualifications and behaviors of animals.
  12. Liebman had no basis or qualification for making the statements about the dog for the purpose of helping the dog’s owner avoid eviction which also assisted her in obtaining a service vest for the dog and deceiving the public that the dog was a service dog. Such allegations do not give rise to a cause of action for healthcare liability in Texas. That is, the act giving rise to plaintiff claims are not inseparable from the rendition of healthcare and are not based upon a breach of the standard of care applicable to Dr. Liebman.

III

Court’s Reasoning That Deviation from Safety Standards Are Not Involved

 

  1. In a footnote, the court said that the ADA prohibits employment discrimination against qualified individuals with a disability because of their disability.
  2. In another footnote, the court noted that the Texas Fair Housing Act provides rights and remedies substantially equivalent to those granted under the federal Fair Housing Act.
  3. Liebman did not argue in the lower court that claims against him alleged departure from safety standards pursuant to the ADA and the federal Fair Housing Act, so those arguments are waived.
  4. Despite the argument being waived, the court went ahead and addressed the question of whether the safety standard based claim implicates the defendant’s duties as a healthcare provider, including a duty to provide for patient safety. To answer that question, seven factors are involved: 1. Did the alleged negligence of the defendant occur in the course of the defendant’s performing tasks with the purpose of protecting patients from harm; 2. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special medical care was implicated; 3. At the time of the injury was the claimant in the process of seeking or receiving health care; 4. At the time of the injury was the claimant providing or assisting in providing health care; 5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider; 6. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; or 7. Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety related requirements set for health care providers by governmental or accrediting agencies?
  5. To answer the questions above, the court said: 1) the primary purpose of the letter was to help the dog’s owner avoid eviction; 2) Dr. Liebman did not articulate what safety standards, if any, arising from his professional duties as a healthcare provider applied to the statements in his letters that the dog was certified as a service animal; 3) that the letters he provided may have been physician letters of a type that physicians issue on behalf of their patients is a conclusory argument unsupported by the evidence in the record; 4) the record does not support the argument that the letters were supplied to comply with federal safety related requirements and no such evidence was presented to the trial court; and 5) since there was no evidence pertaining to any applicable safety related standard, it cannot be concluded that Dr. Liebman’s provision of letters opining on the qualifications of the dog as a service animal was integral to his treatment of her.

 

IV

Thoughts/Takeaways

 

  1. Nowhere in the opinion is the HUD circular on animals ever mentioned. You can find our discussion about the circular here.
  2. As readers of the blog know, the ADA is much more than just an employment statute. It also deals with accessing nonfederal governmental entities and accessing places of public accommodations. The court only mentions explicitly the employment provisions even though the statutory site it gives goes across the titles. Also, technically speaking, ADA causation is not because of but on the basis of or by reason of depending upon the title. See also this blog entry.
  3. The court’s discussion about safety standards is arguably dicta because the court said that the argument was waived by Dr. Liebman because of his failure to raise it at the lower court. The appellate court nevertheless went ahead and discussed the question anyway.
  4. A bit strange that the court talks about how the letter assisted the dog’s owner in obtaining a service vest because such vests can easily be obtained without any such letters over the Internet.
  5. No certification of service animals exists in this country.
  6. This case raises the importance of just who should be writing letters saying that a person needs an emotional support animal or a service animal. If the healthcare provider is not someone with training concerning the disability and also has knowledge of the person’s disability, this case has one wondering whether a Texas healthcare liability claim could ever be involved.
  7. This case also raises the question of what should be said in such letters. Assuming you have a person with expertise in mental health conditions, the next question becomes under this decision what should the letter say. It would seem that if the letter goes into any specifics at all about what the dog does, the argument gets created under this decision that a Texas healthcare liability claim would not be involved. One also wonders whether a statement in the letter to the effect that the provider is making no representations about whether the dog is a direct threat or the specifics of what the dog actually does is not also needed. Of course, inserting such a statement would help with respect to preserving a healthcare liability claim argument, but it would make carrying out the HUD circular very difficult as well as very difficult to carry out requests for accommodations under title I of the ADA.
  8. The case goes too far in some ways. In that you almost have to wonder whether you don’t need a person that evaluates the mental state of the person requesting the service animal or emotional support animal plus a person that can assess whether the dog is behaving as a service animal or an emotional support animal.
  9. Service animals are not trained to attack others. In fact, the ADA final regulations are clear that a dog constituting a direct threat to others is not a qualified service animal.
  10. Whether this decision blows up the HUD circular in Texas remain to be seen.
  11. Jurisdictions will certainly vary in their rules that are attached to healthcare liability claims as well as how they decide when a healthcare liability claim exists. So, make sure you consult a licensed attorney in your jurisdiction to handle that question.
  12. The case also raises the question of whether it is not medical malpractice for a physician not specializing in mental health to recommend an emotional support animal or a service animal. Of course, service animals can perform other duties besides those related to mental health. One also wonders whether under this decision, the healthcare expertise must be related in some way to the work or tasks performed by the service animal in order to preserve the argument that a healthcare liability claim is involved.
  13. The case also raises the question of whether expert testimony would be needed to determine whether the animal was a service animal (in the interest of full disclosure, I was once certified as an expert by a court to opine on exactly that in a case, but that case settled shortly before trial). An open question exists as to whether that kind of testimony would be medical or healthcare testimony. Arguably, the answer to that question would be no. How the answer being probably no effects whether the claim would be a healthcare liability claim is not exactly clear to me.
  14. If a provider does write a letter saying that a person needs an emotional support animal or a service animal, the provider most certainly should not say that the dog has been certified because no such thing exists in this country.
  15. In Texas, a claim against a healthcare provider may be a healthcare liability claim if it implicates a healthcare related safety standard even if the standard is not directly related to the provision of healthcare. So, any healthcare provider faced with a suit like this will certainly want to argue at the lower court level, which Dr. Liebman did not do, that a plaintiff making a similar claim as to this case is alleging departures from safety standards pursuant to the ADA and the Fair Housing Act.
  16. I don’t think of the service animal regulations in title II and title III of the ADA as being safety standards, but that argument is possible under this decision. Same answer for the HUD circular.
  17. I once ate barbecue at a restaurant in Spring, Texas.
  18. Pit bulls are not a breed per se. They are also not inherently dangerous. Many pit bulls make excellent service animals, pets, and emotional support animals. The key is training.
  19. As we discussed here, breed restrictions are not kosher.
  20. One of the letters written by Dr. Liebman mentioned four service animals. If that were really the case, I would want to know what worker task each of those animals performed and how that related to the person’s disability. In fact, Dr. Liebman tried to do exactly that in one of his letters.
  21. It is not unusual for a State to impose civil and/or criminal penalties for misrepresenting a dog as a service animal when it isn’t.
  22. Is the circular such that it is a right of persons with disabilities so that Texas has to respect what is in the HUD circular? The answer to that question depends upon this blog entry, here.
  23. It will be interesting to see if this case is appealed to the highest court in Texas. I don’t view the appellate court decision as being without question with respect to its reasoning.

Before getting started on the blog entry for the week, breaking news today. The Supreme Court agreed to hear a case involving tester standing involving serial plaintiff Deborah Laufer. We discussed the case here in a blog entry that correctly predicted that the Supreme Court would hear the case. Now if only my predictive abilities were that good when it came to picking teams in the NCAA men’s tournament. For the second year in a row, I finished dead last in the men’s pool I was in. During the first two rounds of the tournament, my daughter was home for spring break, and it was a blast watching her school’s mens and women’s teams win both their conference tournament and participate in the NCAA tournament.

 

Turning to the case of the day it is Makekau v. Charter Communications, LLC decided on February 13, 2023, out of the United States District Court for Hawaii, which can be found here. As usual, the blog entry is divided into categories and they are: facts; when does the statute of limitations begin to run; burden of proof in reasonable accommodation cases; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff worked as a customer service representative for Charter Communications for approximately seven years when she was placed on leave for a worker’s compensation injury. Her essential job duties were sitting at her desk, taking calls, and answering emails to try to sell Charter’s services to current and potential customers. The job did not require any heavy lifting or other physically taxing manual labor. During her seven years she performed her job duties without any substantial issues.

 

Plaintiff is clinically obese with a long history of diabetes and hypertension resulting in physical limitations related to neuropathy in her hands and feet. Her condition may impair her ability to walk, talk, see, work, and perform day-to-day activities. Her supervisors were aware of her symptoms, and her managers assisted her when she had diabetic episodes at work.

 

Over the course of her employment, she made three different requests for reasonable accommodations, including: 1) a parking accommodation request so that she did not have to walk so far to the facility after arriving; 2) requesting additional leave while injured on workers compensation and awaiting surgery; and 3) requesting that she be extended on the recall list.

 

II

When Does the ADA Statute of Limitations Begin to Run

 

  1. Request for ADA accommodations not filed with the EEOC within 300 days of the denial of the reasonable accommodation are time-barred.
  2. Each denial of a request for an ADA accommodation constitutes a separate and discrete discriminatory act, subject to its own unique statute of limitation timeline.
  3. You can have a continuing violation in a hostile work environment claim if: the events as part of that claim were sufficiently severe or pervasive; and 2) whether the earlier and later events amount to the same type of employment actions, occurring relatively frequently, or perpetrated by the same managers.

 

III

Burden of Proof in Reasonable Accommodation Cases

 

  1. When an individual notifies an employer of a need for an accommodation, that triggers a duty to engage in an interactive process by which the employer and employee can come to understand the employee’s ability and limitations, the employer’s needs for various positions, and a possible middle ground for accommodating the employee.
  2. In Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th 2000) (en banc), a case that was vacated by the United States Supreme Court on other grounds, the Ninth Circuit held that an employer failing to engage in the interactive process in good faith is liable under the ADA if a reasonable accommodation would have been possible.
  3. At summary judgment, the burden rests with the defendant to demonstrate the unavailability of a reasonable accommodation.
  4. “Recognizing the importance of the interactive process, the Ninth Circuit also held that if an employer fails to engage in good faith in the interactive process, the burden at the summary judgment phase shifts to the employer to prove the unavailability of a reasonable accommodation.”
  5. Defendant had an affirmative duty to engage in the interactive process to find or attempt to find a reasonable accommodation for plaintiff, and there is no evidence in the record that the defendant did so or even attempted to do so.
  6. Defendant also failed to demonstrate at this stage that a reasonable accommodation would have been unavailable to the plaintiff even if it had engaged in the interactive process. Accordingly, a genuine issue of material fact exists as to whether reasonable accommodation would’ve allowed the plaintiff to perform her essential job functions with respect to request to have her leave extended and to be extended on the recall list.
  7. In a footnote, the court noted that plaintiff claimed that had defendant engaged in the interactive process to find a reasonable accommodation, she could have been able to return to work with breaks to stand up periodically from her desk, return on limited duty or for limited hours, take an alternative available job placement, work from home, etc. or do anything else to return to work.
  8. In a footnote, the court noted that unpaid medical leave may be a reasonable accommodation under the ADA. Even extended medical leave, or an extension of an existing leave can be a reasonable accommodation if it does not pose an undue hardship on the employer.

 

IV

Thoughts/Takeaways

 

  1. This is not the first case we have seen using a repeated violations theory when it comes to the statute of limitations. We previously encountered that in a title II case out of Colorado, which we discussed here. It is important to keep in mind that the statute of limitations begins to run at the moment in time a request for a reasonable accommodation is denied and not when the person is terminated.
  2. Continuing violations is a doctrine the federal courts talk about a lot, but I rarely see accepted by the federal courts in a particular fact pattern.
  3. Magic words are not required to initiate the interactive process as we have discussed many times, such as here.
  4. The language of the court is a bit confusing. There is an entirely separate sentence saying that at summary judgment the burden rests with the defendant to demonstrate the unavailability of a reasonable accommodation. However, the very next sentence is quoting from another decision saying that the employer acting in bad faith with respect to the interactive process appears to be a condition precedent to the burden shifting with respect to showing the unavailability of a reasonable accommodation. As a preventive law matter, it wouldn’t be a bad idea, as the plaintiff did in this case, for a plaintiff to put in their complaint the types of accommodations that may work. I have seen many cases talking about the obligation of a plaintiff to put forward accommodations that might work in failure to accommodate cases.
  5. The interactive process is absolutely critical whenever a request for a reasonable accommodation is made. Don’t forget about its do’s and don’ts, which we discussed here.
  6. Be sure your job description discussing an employee’s essential job functions are current and based upon reality. Ultimately, it is what is happening on the ground that is going to be a critical factor in determining what are essential functions.
  7. Depending upon the jurisdiction, courts vary in how far under the hood they will look with respect to determining the essential functions of the job.
  8. Extending leave can be a reasonable accommodation. Reassignment to another position if it is a last resort can also be a reasonable accommodation. For that matter, just about anything can be a reasonable accommodation providing it gets the person with a disability to the same starting line as a person without a disability.
  9. Don’t forget about the Job Accommodation Network, here.
  10. The person who blows up the interactive process bears the liability.
  11. It may not always be clear when a reasonable accommodation request is denied. We do know that unreasonable delay in granting an accommodation is actionable under the ADA. We discussed such a case here.

 

In addition to the NCAA men and women’s tourney, baseball season starts up next week. Good luck to your teams. Go Braves, Cubs, and Chicago White Sox.

Sometimes I just don’t know until the last minute as to what case I will blog on for the week. I originally thought I would blog on a religious accommodation case. Then, this morning I saw a Fifth Circuit decision involving mandatory reassignment. Right when I was finishing up reading that decision, I saw an email come in from my colleagues in the Deaf and Hard of Hearing Bar Association saying that the Supreme Court had just decided Perez v. Sturgis Public Schools, opinion here, which I have previously blogged on before here. Once I saw that email, there was no question as to what I would blog on for this week. Since I have previously blogged on this case, there is no need to go into the facts of the case. So, the blog entry is divided into the categories of Court’s reasoning that plaintiff need not exhaust IDEA before filing suit for violations of the ADA, and thoughts/takeaways. The opinion was unanimous and was written by Justice Gorsuch.

 

I

Court’s Reasoning That IDEA Need Not Be Exhausted First Prior to Filing the ADA Claim

 

  1. IDEA in 1415(l) has two critical features to it. First, it states that nothing in IDEA shall be construed to restrict the ability of individual to seek remedies under the ADA or other federal laws protecting the rights of children with disabilities. Second, IDEA contains a qualification prohibiting certain suits where those suits seek relief available under IDEA, then the procedures in IDEA must be exhausted first. With respect to that exception, IDEA goes on to say that affected children and their parents have a right to a due process hearing before a local or state administrative official followed by an appeal to the state education agency.
  2. The first clause of §1415(l) focuses the attention on remedies. A remedy denotes enforcing a right and may come in the form of money damages, an injunction, or a declaratory judgment. The statute then proceeds to instruct that nothing in the IDEA shall be construed as restricting or limiting the availability of any remedies under other federal statutes such as the ADA.
  3. The limiting language in the IDEA does not apply to all (emphasis in opinion), suits seeking relief that other federal laws provide. Instead, the administrative exhaustion requirement applies only (emphasis in opinion), to suits seeking relief also available under IDEA. That particular condition is not met in situations like Perez where the plaintiff brings a suit under another federal law for compensatory damages, which is a form of relief everyone agrees IDEA does not provide.
  4. Admittedly, this logic treats remedies as being synonymous with the relief a plaintiff seeks. However, a number of contextual clues persuaded the Court that is exactly how an ordinary reader would understand this particular provision of the IDEA.
  5. 1415(l) begin by directing a reader to the subject of remedies by offering first a general and then a qualifying rule on the subject. Also, in at least two other places, IDEA treats remedies and relief as synonyms. The Court could not conceive a persuasive reason why IDEA would operate differently only in this section.
  6. 1415(i)(2)(C)(iii) direct courts in IDEA cases to grant such relief as the court determines is appropriate. That statutory instruction authorizes a court to grant as an available remedy (emphasis in opinion), reimbursement of past educational expenses. Elsewhere, IDEA, §1415(i)(3)(D)(i)(III), sometimes bars those who reject the school district’s settlement offer from recovering attorney’s fees for later work if the relief (emphasis in opinion), finally obtained is not more favorable than the offer. Here again, relief means the same thing as remedy.
  7. Other provisions in the U.S.C. treat remedies and relief as synonyms. For example, in 18 U.S.C. §3626(d) that provision provides that the limitations on remedies in that section shall not apply to relief (emphasis in opinion), entered by a State court based solely upon claims arising under state law. Also, 28 U.S.C. §§3306(a)(2)-(3) indicatethat United States may obtain a remedy (emphasis in opinion), under this chapter or any other relief (emphasis in opinion), the circumstances may require.
  8. Influencing the Court’s thinking is the fact that the second clause in §1415(l) refers to claims seeking (emphasis in opinion), relief available under IDEA. To seek relief is to ask for or request according to the Oxford English dictionary. Further, often enough the phrase seeking relief or some variant of it in the law refers to the remedies a plaintiff requests. For example, under the Federal Rules of Civil Procedure, a plaintiff’s complaint must include a list of requested remedies, or what the law calls a demand for the relief (emphasis in opinion), sought.
  9. Many Supreme Court opinions similarly speak of the relief a plaintiff seeks as the remedies the plaintiff requests.
  10. Fry is of no help to the defendant because it went out of its way to reserve the question now before the Court in Perez.
  11. In Fry, the Court held that the IDEA exhaustion requirement does not apply unless the plaintiff seeks relief for the denial of a free and appropriate public education because that is the only relief IDEA administrative processes can supply. This case presents an analogous but very different question, which is whether a suit admittedly premised on the past denial of a free and appropriate education may nonetheless proceed without exhausting IDEA’s administrative processes if the remedy plaintiff seeks is not one IDEA provides. In either case, a plaintiff need not exhaust administrative processes under IDEA because those processes cannot supply what the plaintiff seeks.
  12. It is the Court’s job to apply faithfully the law Congress has written. It is not up to the Court to replace the actual text of the law with speculation as to congressional intent.
  13. Under Supreme Court decisions, a plaintiff who files an ADA action seeking both damages and the sort of equitable relief IDEA provides may find his request for equitable relief barred or deferred if he has yet to exhaust IDEA remedies.
  14. It isn’t difficult to imagine that a rational Congress might have sought to temper demand for administrative exhaustion when a plaintiff seeks a remedy IDEA can supply with a rule of not requiring exhaustion when a plaintiff seeks a remedy IDEA cannot provide.
  15. It isn’t necessary for the Court to deal with the issues raised at oral argument about whether a judge made futility exception exists and whether Perez can obtain compensatory damages in his title II of the ADA suit because there isn’t any reason to address those issues at this time in light of the reasoning in this opinion. In the proceeding below, the court held that the IDEA exhaustion requirement included plaintiff’s ADA lawsuit and that is simply not the case.

 

II

Thoughts/Takeaways

 

  1. Unanimous opinion! From the oral argument, it looked like it might have been Justice Alito in sole dissent.
  2. The issue of when a free appropriate public education is involved will now become paramount. We previously predicted that might be the case in this blog entry when we discussed a case talking about how a free appropriate public education under IDEA necessarily involves specialized instruction. Expect lots and lots of litigation over whether specialized instruction is involved. 504 plans can include specialized instruction pieces. Plaintiff attorneys may want to think twice about doing that if they want to avoid exhaustion litigation.
  3. A plaintiff will have to exhaust administrative remedies where they have both IDEA concerns as well as ADA concerns.
  4. School districts often have an internal procedure for dealing with both IDEA and §504/ADA claims that are identical to each other. That simply will not work anymore.
  5. 504 also refers to a free and appropriate public education but that does not even come close to the same meaning as a free and appropriate public education under IDEA. This case makes it important that §504 plans do not blur into the specialized instruction of IEP’s (See also 2 above). Think of §504 as getting a person with a disability to the same starting line. On the other hand, think of IEP’s as trying to achieve specific goals while utilizing specialized instruction.
  6. Per Cummings, which we discussed here, a §504 claim does not allow for emotional distress damages.
  7. The Court specifically says that it is not going to deal with the question of whether title II of the ADA allows for compensatory damages. I do expect that question to come before the Court eventually. There are two things to keep in mind with respect to that. First, the remedy provisions of title II of the ADA, 42 U.S.C. §12133, refers to 29 U.S.C. §794a in total and not to any specific provision. Therefore, the argument is created that all of the remedies in §794a are in play. Second, title II of the ADA is not spending clause legislation but legislation based upon enforcing the rights of persons with disabilities per the 14th amendment to the U.S. Constitution.
  8. In my experience with matters that have come across my desk, school districts are very familiar with IDEA. They are also familiar with §504 with respect to “§504 plans.” They are less familiar with §504 in general. They are often not as aware as they should be about title II of the ADA. This case forces school districts get up to speed on title II of the ADA and on §504 outside of the “504 plans.”
  9. In light of this decision, this blog entry discussing how IDEA is fundamentally a matter of specialized instruction is now mandatory reading.
  10. It will be interesting to see if school districts try to convert §504 plans to IEP’s to ensure that IDEA processes become involved.
  11. 504 damages means having to show intentional discrimination, such as deliberate indifference per this case.
  12. This decision definitely changes the balance of power between school districts and the parents of those with kids with disabilities.
  13. Did I mention that the decision was unanimous?

I recently blogged on the EEOC guidance on the hearing disabilities in the workplace, here. I noted several problems with it. Not the least of which was how it confused Deaf, deaf, and Hard of Hearing. There were some other issues as well. That isn’t to say that the guidance did not contain its good points as it most certainly did. I have also seen lawyer after lawyer take the guidance as gospel without considering the specifics of the hearing loss community. I was certainly expecting that to happen even if it is unfortunate. I have previously written that I am generally not a fan of guidances because lawyers will just take them uncritically and offer them to their client as a way of complying with the ADA. There are some exceptions to that rule when it comes to guidances, such as here, but they are few and far between. After reading one too many of these uncritical looks at this EEOC guidance and their lack of understanding about how the hearing loss community is not monolithic, I thought it would be worthwhile to assess whether this guidance would survive Kisor v. Wilkie. As usual, the blog entry is divided into categories and they are: 1) when Kisor deference is in order; 2) how does the guidance play out under the majority opinion in Kisor; 3) how does the guidance play out under Justice Gorsuch’s opinion in Kisor; and 4) thoughts/takeaways. As this is a short blog entry, you probably will wind up reading the whole thing.

 

I

When Kisor Deference Is in Order

 

As we discussed in my blog entry discussing Kisor, here, Chief Justice Roberts in his concurring opinion nicely summarized the two approaches for figuring out whether Kisor deference would be in order. The majority opinion said that it came down to the following: 1) the underlying regulation must be genuinely ambiguous; 2) the agency’s interpretation must be reasonable and must reflect its authoritative, expertise based, and fair and considered judgment; and 3) the agency must take account of reliance interest and avoid unfair surprise.

 

Chief Justice Roberts noted that Justice Gorsuch had a different formulation. Justice Gorsuch’s formulation said that a court might be persuaded by the interpretation of the regulation if the court found: 1) the agency considered the problem; 2) the agency offered a valid rationale; 3) the agency brought its expertise to bear; and 4) the agency interpreted the regulation in a manner consistent with earlier and later pronouncements.

 

II

How Does the Guidance Play Out under the Majority Opinion in Kisor?

 

  1. The EEOC doesn’t have any effective communication regulations, though 29 C.F.R. 1630.2(o)(2)(iii), does talk about auxiliary aids so to speak. Therefore, you could say that the regulation is arguably ambiguous with respect to hearing disabilities in the workplace.
  2. Is the EEOC’s interpretation reasonable? I don’t see how it is reasonable to assume that deaf, Deaf, and HOH can lead you to the same answers. That also creates a question as to how expertise based and how fair and considered the judgment was in drafting the guidance.
  3. Is the guidance authoritative? People may not realize that guidances actually come in different shapes and forms. For example, it is possible that a guidance could come from the Chair of the EEOC’s office by itself or it could be something voted on by all the Commissioners regardless of the office that it comes from. Which type the hearing disabilities in the workplace guidance is might very well be important with respect to assessing the authoritative piece mentioned in the Kisor majority opinion.
  4. Since another document was revised by this EEOC guidance, I would have to compare the older document with this EEOC document in order to assess any reliance interest or any unfair surprise.

 

III

How Does the Guidance Play Out under Justice Gorsuch’s Opinion in Kisor?

 

  1. The EEOC certainly considered the problem or we wouldn’t have a guidance in the first place.
  2. Did the EEOC offer a valid rationale? Perhaps. Certainly, lots of folks would be interested to know what the EEOC was thinking with respect to accommodating hearing disabilities in the workplace since hearing disabilities in the workplace are not unusual.
  3. Did the EEOC bring its expertise to bear? That is a harder question because of the nonsensical nature of several of the hypotheticals. Certainly, the EEOC brought its expertise to bear, but the question is whether the EEOC had to demonstrate it had expertise in the way it discussed the problem. An argument exists that the EEOC did not demonstrate expertise because of the way it conflated Deaf, deaf, and HOH.
  4. Did the EEOC interpret the regulation in a manner consistent with earlier and later pronouncements. Previously, the EEOC had issued a document on May 7, 2014, entitled “Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act.” I have not compared the 2014 document with this document.

 

IV

Thoughts/Takeaways

 

  1. In my opinion, the EEOC guidance on hearing disabilities in the workplace fails either of the approaches found in Kisor.
  2. With respect to the majority approach, an argument exists that: 1) the EEOC’s interpretation was not reasonable; and 2) the EEOC’s interpretation might not be authoritative. I would want to conduct further investigation in terms of how the guidance actually came into existence. For example, did it emanate from the Chair only or did all the commissioners vote on it. The answer to that question might make a difference with respect to how authoritative a court would view the guidance.
  3. Can an agency be said to have brought its expertise when it fundamentally misconstrues the nature of the community that is the subject of the guidance? I’m not sure the answer to that question would be yes.
  4. I would have to compare the 2014 document with this document to see if reliance interest or unfair surprise was involved. It is possible sometimes that a guidance can make things worse than what existed before. We certainly saw a new guidance be much more complicated and perhaps worse than an old guidance with respect to the latest HUD circular dealing with animals in housing, which we discussed here.
  5. Guidances should never be a substitute for critical thinking. If you are on the plaintiff side and an employer slavishly follows this EEOC document on hearing disabilities in the workplace and defends on that basis, you might consider arguing that the guidance should not be given any deference for the reasons stated in this blog entry.
  6. A separate question exists as to whether parts of the document could be given deference while other parts of the document are not given deference. I am not sure how a court would approach that situation. In another life, I did a fair amount of contract law. Often times, the question would be whether the whole contract would go down in flames if one section of the contract went down in flames. On the contract side, you get around that by putting in a clause stating that if one clause fails the rest of the contract remains. I don’t know if the same logic would apply to a guidance.

Good luck to all if you have a team or teams in the NCAA tournament.

 

 

Before getting started on the blog entry of the week, I want to acknowledge a great loss for the disability rights community. Judy Heumann died two days ago. She was a pioneer in the disability rights movement. She also led the charge for the final Rehabilitation Act regulations, which took four years to finalize from when the law was passed and testified on behalf of the ADA when the ADA was being considered. For those who may not know Judy Heumann, here is something from NPR talking about her life. I was lucky enough to have a couple of calls with her but unfortunately never met her in person. It is a great loss for the disability rights community. To learn more about her, I highly recommend the movie crip camp and the book Being Heumann, both are fabulous.

 

Turning to the blog entry of the day, I thought I would look at a bill introduced in the California legislature to deal with Internet accessibility litigation. As readers know, if you violate the ADA you also violate the California Unruh Act, which allows for damages unlike title III of the ADA. As a result, California has a great deal of Internet accessibility litigation. We have talked about how tester standing and Internet accessibility is definitely heading to the Supreme Court, here for example. The bill introduced as AB 950 by California State Representative Maienschein, who represents a district encompassing northeast of San Diego, including Escondido among other places. The bill has been referred to the California’s State Assembly’s judiciary committee. As usual, the blog entry is divided into categories, and they are what the legislation does and thoughts/takeaways. Since the entry is so short, you will undoubtedly want to read the whole entry.

 

I

What the Legislation Does

 

  1. Liability under the Unruh act only happens if the website fails to provide equally effective communication or does not facilitate full and equal enjoyment of the entity’s goods and services to the public, including to any member of the public with a disability.
  2. To get statutory damages for Internet website accessibility, a plaintiff must prove one of the following: A) a plaintiff has to show that they personally encountered the barrier that did both of the following: 1) interfered with their ability to access all or part of the entity’s Internet website; 2) caused the plaintiff to experience a difference in their ability to access or use the website as compared to other users so that the plaintiff was unable to acquire the same information, engage in the same interactions, or enjoy the same services with substantially equivalent ease of use, or to have the same level of privacy and independence as other users who are not disabled; or B) the plaintiff was deterred from accessing all or part of the website because of the website’s failure to provide equally effective communication or to facilitate full and equal enjoyment of the entity’s goods and services to all members of the public.
  3. An Internet website is presumed to provide equally effective communication for purposes of preventing the minimum statutory damages if the Internet website complies with WCAG 2.1 level AA standard for the accessibility of Internet websites or any more stringent subsequent update, revision, or replacement to WCAG published by the entity that puts out WCAG.
  4. The presumption of the Internet site being accessible affects the plaintiff’s burden of proof and is rebuttable by evidence showing by a preponderance of the evidence the elements of one of the violations mentioned in ¶ 2 above.
  5. Adds a provision to the government code saying that information about compliance with the state’s disability access laws have to include a statement that a business’s website is required to be accessible and provide equally effective communication and facilitate full and equal enjoyment of the entity’s goods and services to the public, including any member of the public with a disability.
  6. Requires the California Commission on Disability Access to review the WCAG standards to determine whether they are the most up-to-date standards for effective communication by means of Internet websites and to notify the legislature they are not up-to-date and should be revised. If those standards are not up-to-date, the Commission has 30 days to notify the leadership of the State Assembly and the State Senate of that fact and that the standard should then be revised.
  7. The bill defines an entity as a business establishment open to the public, a public place, or place of public accommodation.
  8. The bill defines an Internet website as including all Internet web-based technology, including but not limited to, a mobile application or app that can be accessed by a mobile device.

 

II

Thoughts/takeaways

 

  1. I am not a licensed attorney in California even though I did get my first law degree from the University of San Diego (I also have an LL.M. in health law from Depaul University). It is always a good idea to get a licensed attorney in California when interpretation of California state law is involved.
  2. My initial review of the legislation is that it seems highly sensible. It is impossible to tell what will happen to the legislation as it moves forward in the California legislative process. I did recently read that Internet accessibility cases now constitute a majority of the cases filed in federal court that allege disability discrimination.
  3. The legislation includes mobile applications and apps on mobile devices.
  4. The bill does not use the term contained in ADA jurisprudence of, “meaningful accessibility.” However, the language of the bill strongly suggests that meaningful accessibility is what is involved in this bill.
  5. Level AA compliance with the WCAG guidelines will solve most of the accessibility problems but not necessarily all of them. An individualized analysis is key as is setting up systems to work with people to ensure meaningful accessibility when they still do not have full and equal enjoyment of the website even though it is compliant with WCAG level AA.

I have quite a stack of cases in my pipeline to blog on. When I went digging through them, I came across a decision from April 7 of 2022 (that isn’t a misprint). The case is King v. Stuart Trumbull Memorial Hospital, Inc., a published decision from the Sixth Circuit, here, and it has all kinds of interesting tidbits in it that I thought I would pass along. As usual, blog entry is divided into categories and they are: facts; King was a qualified employee; hospital knew or should have known of plaintiff’s disability; plaintiff adequately requested an accommodation; hospital failed to carry out its interactive process obligation; undo hardship has not been shown; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

King, a registered nurse who started working for the hospital in 2002, was diagnosed with asthma as a young adult, which worsened around 2013 and 2014. The asthma was often triggered by stress and seasonal allergies causing intermittent flareups and severe asthma attacks. At times, the flareups left King unable to perform her work duties. Her co-workers occasionally helped her by giving her more stationary tasks. During particularly bad flareups, King could not complete daily tasks like cooking and doing dishes. On those days, King would call in sick and tell the hospital why she could not work that day.

 

To call in sick, King usually called the central staffing office and spoke to the house supervisor who was not always her immediate supervisor. However, King did call her immediate supervisor directly several times saying that she needed time off because of her asthma. In particular, she would tell him that she literally could not breathe and could hardly talk and that she could not get off the couch without being out of breath and wheezing. Her supervisor admitted that he was aware of King’s asthma and that it was common knowledge among the hospital staff. He also knew that King was off work sometimes because of her asthma. Finally, King allegedly told her immediate supervisor that her asthma was so debilitating that it was disabling.

 

The hospital allows employees to seek medical leave of absence to handle personal illnesses and disabilities through two separate channels. One channel is the FMLA. The other channel is the collective bargaining agreement that allowed employees to seek unpaid medical leave even if they were not eligible for FMLA leave. The collective bargaining agreement allows up to one year of non-FMLA leave. In order to apply for the collective bargaining leave an employee has to submit a written request and medical documentation from their physician either two weeks before the start of the leave or as soon as circumstances allow.

 

The hospital uses a third-party administrator called FMLASource to handle both FMLA and non-FMLA leave requests. King had experience dealing with the third-party administrator as she received both FMLA and non-FMLA leave on several occasions in 2015 and 2016. The hospital has an attendance policy and allows for discipline of employees for excessive absenteeism after three different occasions in a year.

 

Over the years, her immediate supervisor gave King several written and verbal warning for attendance issues but those warnings were occasionally withdrawn because the absences were approved under a medical leave policy.

 

On April 28, 2017, King reported for her 12 hour shift but did not complete the shift because about eight hours into the workday, she had an asthma attack leaving her unable to breathe. Over the next five weeks, King continued to suffer from severe asthma related symptoms. At the peak of that flareup, her symptoms landed her in the emergency room of the hospital seeking treatment. King could not work throughout this time and called in sick for her next 14 shifts. Throughout, she followed hospital protocols and either called her immediate supervisor or the house supervisor at least two hours before her shift and reported that she could not work because of the asthma flareup. Even though King missed 14 days of work, her immediate supervisor did not remember having to cover any of her shifts nor did he recall her absence causing any problems.

 

At some point between April 28 and May 15, 2017, her physician said that she was not able to return to work until a better treatment plan was developed. She then notified FMLASource consistent with hospital policies of the need for more leave. FMLASource said that she did not have any hours of FMLA leave left and did not even consider the collective bargaining agreement leave. She also informed her immediate supervisor of the problem with the leave and what she believed was FMLASource erroneous calculation.

 

While King was trying to sort out her leave hours, the hospital terminated her employment. On June 5, three days after her termination, King reached out to FMLASource again to see if they had updated their hours and apply for leave. Upon further investigation, she did not have FMLA leave but she did have leave available under the collective bargaining agreement. FMLASource retroactively approved part of King’s leave request. Despite retroactively approving periods of non-FMLA leave, nothing about that decision affected her termination on June 2.

 

II

King Was a Qualified Employee

 

  1. A qualified person with a disability is one who can safely and substantially perform the essential functions of the job with or without reasonable accommodations.
  2. A job function is essential if removing the function fundamentally alters the job.
  3. Reasonable accommodations include any reasonable adjustment made to a job and/or the work environment and can include job restructuring and modified and part-time work schedules.
  4. While attendance is an essential function of many jobs, medical leave is a reasonable accommodation to enable that person to meet attendance requirements at a definite later point in time.
  5. Plain language of the ADA defines a qualified individual is an individual who with or without reasonable accommodation can perform the essential functions of the job. The purpose of the ADA’s reasonable accommodation requirement is to require employers to change the way things are customarily done to enable employees with disabilities to work.
  6. Leave as a reasonable accommodation is consistent with that that the ADA’s purpose because it enables the employee to return to work following the period of leave requested as an accommodation. That is, medical leave enables the employee to perform the essential function of attendance at a later time.
  7. While regularly attending work on site is essential to most jobs, that doesn’t automatically apply where medical leave enables the employee to return to work and perform the essential job duties. Approved medical leave may be a reasonable accommodation and the inability to work while on such leave does not mean that the individual is automatically unqualified.
  8. In figuring out whether medical leave is reasonable, a court considers: 1) the amount of leave sought; 2) whether the requested leave generally complies with the employer’s leave policies; and 3) the nature of the employee’s prognosis, treatment, and likelihood of recovery.
  9. There is no bright line rule with respect to defining a maximum duration of leave that can constitute a reasonable accommodation, though requests for indefinite leave are likely unreasonable. According to the hospital’s own policies, King only requested five weeks of leave, which was not an unreasonable amount of leave according to the policies.
  10. Retroactively granting emergency leave can be a reasonable accommodation.
  11. FMLASource own errors caused some of King’s failure to give advanced notice. The third-party administrator miscalculated her hours and violated its own policies by refusing to consider her eligibility for both FMLA and non-FMLA leave when she first sought leave. King cannot be faulted for the lengthy application process when the hospital, through its agent, caused the delays.
  12. By granting King’s leave request, even if only partially, the hospital admitted that retroactive non-FMLA leave was a reasonable accommodation.

 

III

Defendant Knew or Should Have Known of Plaintiff’s Disability

 

  1. An employer has notice of the employee’s disability when the employee tells the employer that she is disabled.
  2. An employee need not use the word “disabled,” but the employer must know enough information about the employee’s condition to conclude that she is disabled. Relevant information could include, among other things, a diagnosis, treatment plan, apparent severe symptoms, and physician imposed work restrictions.
  3. An employee does not have to use magic words or explicitly used the word “disability,” to put her employer on notice of her condition.
  4. King raised sufficient factual disputes whether the hospital knew that her condition substantially impaired her ability to perform the job’s essential functions. King repeatedly telling her immediate supervisor that she literally could not breathe and could not get off the couch without being out of breath and wheezing and that the asthma was debilitating is certainly sufficient notice of a disability.

 

IV

Plaintiff Adequately Requested an Accommodation

 

  1. Plaintiffs have flexibility in how they request an accommodation.
  2. An employee need not explicitly used the word, “accommodation.”
  3. Medical documentation is not required, and a plaintiff’s own requests, whether written or oral, can be a sufficient request for an accommodation.
  4. Once an employee requests an accommodation, the employer has to engage in the interactive process.
  5. The employer must participate in good faith and conduct an individualized inquiry into possible accommodations as part of their interactive process obligations.
  6. Beginning on May 19, King started calling in and telling the on-call supervisor, whoever that might be, she was trying to get a leave but she hadn’t gotten it yet so she was reporting off again for the next day. A jury could reasonably find that King was requesting an accommodation by telling her supervisor that she wanted medical leave to handle her asthma flare up. By May 19, multiple people within hospital leadership knew that King was seeking medical leave to deal with harassment flareups.
  7. Her dealings with FMLASource also make clear that medical leave as the reasonable accommodation was being sought.

 

V

The Hospital Failed to Carry out Its Interactive Process Obligations

 

  1. The record indicates that FMLASource violated the hospital’s own policies when it did not consider King’s eligibility for non-FMLA leave. Instead, they told King that she was ineligible for FMLA leave and refused to allow her to actually make a request for non-FMLA leave.
  2. The hospital unreasonably stalled King’s request because of FMLASource’s errors. Although the hospital and FMLASource caused the error in the hourly calculation, they did nothing to fix it even after being approached by King that it needed fixing. It took several weeks for the hours to be updated, and when it was no one told King. Ultimately, the hospital put the burden on King to fix its own mistake. So, a jury could reasonably find that the hospital obstructed King’s attempt to apply for leave and thereby failed to participate in the interactive process in good faith.
  3. Failing to assist an employee in seeking accommodations may suggest bad faith.
  4. The hospital prematurely halted the interactive process by terminating King while her leave request was still outstanding.
  5. An employer may not stymie the interactive process by preemptively terminating the employee before an accommodation can be considered a recommended.
  6. If an employer terminates an employee before fully considering the request for an accommodation, the employer may need to reconsider the decision to terminate the employee.
  7. King’s immediate supervisor terminated her for failing to timely seek leave even though he knew that she was trying to do just that.
  8. Even though the hospital ultimately approved King’s request for leave, it never gave her the benefits of an approved leave, which would have included reinstatement.
  9. Employers cannot avoid ADA liability by rubberstamping a medical leave after terminating the employee.

 

VI

Undue hardship Has Not Been Shown

 

  1. When an employer believes that granting medical leave causes an undue hardship, courts look first to the employer’s leave policies.
  2. If the employer’s policy provide for the kind of leave plaintiff seeks, courts will presume that granting the plaintiff’s request is not an undue hardship.
  3. King’s request fell within the hospital’s policies. It also fell below the prolonged leaves that the Sixth Circuit has found unduly burdensome.
  4. The hospital allowed its employees to seek emergency medical leave without advanced notice and even had policies in place for handling retroactively requests.
  5. Accommodating sudden flareups does not mean an undue hardship exists merely because handling those situations requires more flexibility.
  6. The hospital did not have any significant staffing disruptions and her immediate supervisor did not remember having to pick up any of King’s missed shifts.
  7. King’s absences did not amount to excessive absenteeism under the hospital’s disciplinary policies as they amounted to only a single occasion not warranting any disciplinary action.
  8. The hospital has not shown that keeping King’s job open while she applied for leave would have caused it an undue hardship. That is, keeping a job open long enough to allow the employee to apply for leave does not constitute an undue hardship.

 

VII

 

Thoughts/Takeaways

 

  1. It isn’t my usual practice to blog on a case that is 10 months old. However, there are so many good things in this decision with respect to understanding how the ADA processes work in title I of the ADA that I simply couldn’t resist.
  2. A real nice explanation by the court as to when a job function is essential, i.e. when removing that function fundamentally alters the job.
  3. Medical leave is a reasonable accommodation even in the face of attendance policies.
  4. A nice explanation from the court as to when medical leave is considered reasonable. That is: 1) look to the amount of leave sought; 2) the employer’s leave policies; and 3) the employee’s prognosis, treatment, and likelihood of recovery.
  5. Courts can vary with respect to how much leave becomes unreasonable, so be sure to check your jurisdiction on that.
  6. Retroactive leave can be a reasonable accommodation.
  7. Magic words are not required when seeking a reasonable accommodation. That magic words not being required applies to both the disability portion of the request and to the accommodation portion of the request.
  8. When requesting an accommodation, medical documentation is not required to make that request.
  9. Employers need to be aware that as part of the interactive process they should not seek excessive documentation to confirm the situation. See this blog entry.
  10. We discussed the do’s and don’ts of the interactive process here.
  11. Unreasonable delay in granting a reasonable accommodation is actionable. See this blog entry.
  12. Employers need to allow the accommodation process to complete its course before terminating an employee.
  13. Leave policies need to be in order if you’re the employer.
  14. Undue hardship is an affirmative defense, and the burden is on the employer.
  15. I was a bit confused by the language of the court talking about whether a condition substantially impairs the person’s ability to perform the job’s essential functions. It seems like the court is getting ADA definitions mixed up. Whether a person is qualified depends on whether they can do the essential functions of the job with or without reasonable accommodations. It is a separate question whether the person has a disability, which points actual disability is a physical or mental impairment that substantially limits a major life activity. The other questions in this case were whether the employer was on notice of a disability and whether the plaintiff has sufficiently informed the employer of a request for a reasonable accommodation for their disability so that they could do the job’s essential functions with or without reasonable accommodations.
  16. Some of the language the court uses, leads to the question of whether an interference claim may not have been in order in this case. As I said before, plaintiff attorneys really should use interference claims more often than they do.
  17. Also interesting, is the court’s language that a qualified person with a disability is one who can safely and substantially perform the essential functions of the job with or without reasonable accommodations. That is not exactly how it works. With respect to qualified under the ADA, the question is whether the person can do the essential functions of the job with or without reasonable accommodations. It is true that a person is not qualified if they are a direct threat to self or others with respect to title I of the ADA. Direct threat, as we have discussed numerous times such as here, is a term of art and is a high standard to meet. However, none of this is the same as safely performing the essential functions of the job.

Can a single person cause a split among the US Court of Appeals all by herself? The answer in the case of Debra Laufer is absolutely. Today’s blog entry explores the published decision, here, from the Fourth Circuit on February 15, 2023 holding that Laufer has standing to pursue her case against a hotel that she believed was not in compliance with the hotel reservation rule. She is undoubtedly headed to the United States Supreme Court because of the Circuit Court split. The facts are really straightforward. Laufer is a tester with no intention of returning to the hotel but with an intention of returning to the website to see if the hotel reservation rule, 28 C.F.R. §36.302(e), is complied with. The question is whether she has standing to pursue such a claim in that set of circumstances. As usual, blog entry is divided into categories and they are: 1) court’s reasoning that Laufer does have standing to proceed; 2) court’s distinguishing of contrary decisions; and 3) and thoughts/takeaways.

 

I

Court’s Reasoning That Laufer Has Standing to Proceed

 

  1. In order to possess article III standing, a plaintiff must suffer an injury in fact-an invasion of a legally protected interest that is: 1) concrete and particularized; 2) actual or imminent, which also requires a causal connection between the injury and the conduct complained of; 3) likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision; and where injunctive relief is concerned 4) plaintiff must show a real or immediate threat of being wronged again.
  2. The Fifth, Tenth, and Second Circuits have all held that either Laufer or another identically situated plaintiff did not have standing because they did not sufficiently allege a proven intention or need to actually book rooms at the defendant’s hotels.
  3. The 11th Circuit held that Laufer had standing to sue based on her allegation of stigmatic injury. That particular decision, which we discussed here, generated three concurring opinions, including one stating that Laufer also has standing premised on alleged informational injury.
  4. The First Circuit, which we discussed here, also ruled in favor Laufer based on her allegation of an informational injury alone. In both the First and 11th Circuit cases, Laufer admitted that she had no intention or need to book rooms at the hotels, but the court did not see that issue as an impediment to standing.
  5. Informational injury is sufficient for standing under article III under a line of Supreme Court cases starting with Havens Realty Corporation v. Coleman, here, and two others.
  6. In Havens, the Supreme Court described testers as individuals with or without an intent to rent or purchase a home or apartment posing as renters or purchasers for the purpose of collecting evidence of unlawful steering practices. The Supreme Court found that the Fair Housing Act’s discriminatory representation provision made it unlawful for an individual or firm to represent to any person because of race, color, religion, sex, or national origin that a dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. That is, Congress had conferred on all persons a legal right to truthful information about available housing.
  7. Havens held the discriminatory representation provision to be the type of enactment under which actual or threatened injury required by article III can exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.
  8. Havens said that it simply didn’t matter that the tester may have approached the real estate agent fully expecting that he would receive false information and without any intention of buying or renting a home. That person could still suffer an injury within the meaning of the discriminatory representation provision.
  9. In a separate case, the Supreme Court held that just because other citizens or groups of citizens might make the same complaint after unsuccessfully demanding disclosure under the Federal advisory committee act does not lessen the plaintiff’s asserted injury. In another case, the Supreme Court held that a plaintiff suffers an injury in fact when they failed to obtain information that must be publicly disclosed pursuant to a statute. In both of these cases, the plaintiff identified uses for the information sought.
  10. Laufer alleged that she failed to obtain information that must be publicly disclosed pursuant to a statute.
  11. It doesn’t matter that Laufer is a tester because a tester didn’t matter to the Havens Court.
  12. The hotel reservation regulation is designed to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs. Nothing in that hotel reservation regulation or elsewhere in the ADA expressly requires an intention to book a hotel room to prove a discriminatory failure to provide accessibility information. That is, nothing says that the information only needs to be provided to the individual where that individual actually wants to make a reservation.
  13. If a black tester has standing in Havens because of a right to get truthful information under the statute, then Havens also mean that Laufer has standing because she was denied information she has a legal entitlement to.
  14. Even though Laufer’s alleged informational injury may be widely shared, it is also concrete and particularized to her.
  15. The location of the informational injury is not the hotel itself, but rather the hotel reservation website. Since she intends to continually return to the website to check for compliance, she has sufficiently alleged an intent to return.

 

II

Court’s Distinguishing of Contrary Opinions

 

  1. The Second Circuit interpreted TransUnion, which we discussed here, to hold that the type of informational injury alleged-the failure to obtain information that must be publicly disclosed pursuant to a statute-what not sufficiently concrete for article III standing to sue unless the plaintiff had a personal use for the information that was unlawfully withheld.
  2. The Second Circuit’s interpretation only works if Trans Union overruled Havens and the other two cases. That is a conclusion that doesn’t hold up: 1) Trans Union can be reconciled with the earlier precedents because TransUnion distinguished the informational injuries and those precedents from the purported informational injury before TransUnion, which was the receipt of required information in a different format. Only after distinguishing the earlier precedents did TransUnion discuss the need for downstream consequences and adverse effects.
  3. Supreme Court decisions remain binding precedent until the Supreme Court sees fit to reconsider them regardless of whether subsequent cases have cast grave doubts about their continuing vitality.
  4. No statement or even a suggestion exist in TransUnion that the Supreme Court was reconsidering the earlier precedents. Instead, the earlier precedents were distinguished without questioning their validity.
  5. The Supreme Court has subsequently cited to Havens after TransUnion and described Havens favorably when referencing that Havens held that a tester plaintiff posing as a renter for purposes of housing discrimination litigation suffered an injury under article III.
  6. The Fifth Circuit did not offer a sound basis for distinguishing Havens. Here, Laufer alleges that the accessibility information missing from the hotel reservation website has relevance to her because the hotel reservation regulation requires providing to her and other individuals with disabilities that information regardless of whether she needed that information for some other purpose.
  7. The 10th Circuit disregards the plain holding of Havens and its line of decisions. Those precedents reflect that the failure to obtain information may be because of a misrepresentation or because of a wholesale refusal to provide it. Racial or other discriminatory animus was not an element of the statutory violations there and such lack of animus did not deprive the plaintiffs of informational injury per article III.
  8. The Havens line of cases are clear that a plaintiff need not show a use for the information being sought in order to establish an injury in fact.
  9. The First Circuit got it right when it said that no other courts holding otherwise have convincingly explained why Havens doesn’t illuminate the path to the decision. Judge Jordan of the 11th Circuit put it that he had yet to see any good answer to the question as to why Havens is different persuasively. Further he said that Havens was still on the books and the 11th Circuit was bound to apply it.
  10. The credit union line of cases have no applicability here because this is not a situation where membership is restricted to certain people and Laufer falls outside that membership category. The District Court was not free to follow the credit union line of cases when applicable Supreme Court decision by way of the Havens line of cases existed. The Havens line of decisions has direct application and therefore controls the situation.

 

III

Thoughts/Takeaways

 

  1. This case is undoubtedly headed to the Supreme Court as a Circuit Court split exist even with respect to the same plaintiff.
  2. The Havens line of cases is based upon specific statutory references in the Fair Housing Act. The hotel reservation regulation is a final regulatory provision and not a statute. That distinction might matter as there are a whole bunch of Justices on the Supreme Court that are not a fan of Chevron deference. One wonders if this might not be a case where the Supreme Court uses it as a vehicle to re-examine Chevron’s validity.
  3. The Fair Housing Act also contains statutory provisions clearly suggesting emotional injuries are in play but that is not the case with the ADA (see 42 U.S.C. §12101 for example). With respect to title III of the ADA, it only allows for attorney fees and injunctive relief and not for damages of any kind. The Fourth Circuit did not deal with the question of stigmatic injury in its opinion but other courts have dealt with that. Where that question arises, one wonders whether the statutory differences in language with respect to emotional harms between the Fair Housing Act and the ADA might not matter to the Supreme Court. It would seem that when the Supreme Court gets this case or one just like it that it would have to cover both informational injury and stigmatic injury.
  4. We previously discussed TransUnion here. You can make a strong argument from that case that tester standing for article III purposes is dead. Whether tester standing for article II purposes exist with respect to stigmatic injury depends upon whether emotional distress damages are available under title II of the ADA. You can make the argument that such damages are available under title II because the remedies provisions for title II of the ADA, 42 U.S.C. §12133, refers to 29 U.S.C. §794a in total and not by any specific provision within that statute.
  5. TransUnion is clear that a statutory right by itself does not confer article III standing.
  6. In short, the Supreme Court could easily find that tester standing is not a thing under title III of the ADA without overruling Havens.
  7. The ADA does not have a representation statutory provision similar to the Fair Housing Act.
  8. As a deaf person who has tried looking at websites in order to see if the hotel has any hearing accessible rooms, I can tell you that such information is often lacking. I can also tell you that often times when a hotel says on the website that a room is hearing accessible, the actual realities on the ground are otherwise.
  9. It is not a slam dunk at the whether the location of the informational injury is the website of the hotel or the hotel itself. The answer as to the location makes a huge difference in these cases.
  10. I’m not going to even hazard a guess as to what this Supreme Court will do and how they will do it with respect to whether Laufer or a similar plaintiff has article III standing. I can tell you that courts are pushing back hard against serial plaintiffs in website accessibility litigation, particularly in California. So, one wonders if that is not going to be in the background when the Supreme Court looks at this case.