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.

Today’s blog entry is Short v. City of Rochester, which can be found here. In this case, a young black man with mental illness was killed by the police. His family sues for violation of the ADA, the Rehabilitation Act, and under §1983. The City of Rochester moved to dismiss all claims. For the reasons discussed below, the court was having none of it and denied the motion to dismiss.

As usual, the blog entry is divided into categories, and they are: Facts; Court’s Reasoning That the ADA and Rehabilitation Act Claims Can Go Forward; Court’s Reasoning That the §1983 Claim Can Go Forward; Court’s Reasoning That the State Law Claims 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)

 

Jones was “a young Black man with mental illness.” (Id. at ¶ 1). He had been diagnosed with post-traumatic stress disorder, anxiety, and borderline personality disorder, and his mother “also believes he exhibited signs of schizophrenia.” (Id. at ¶ 29).

At approximately 4:00 p.m. on March 9, 2021, Jones was observed walking around the Town of Gates, just outside the City, without any shoes. (Id. at ¶ 35). A security guard at a residential building, seeing that Jones was visibly distressed, called the police. (Id.). Gates police brought Jones to a homeless shelter on Hobart Street in the City. (Id. at ¶ 36). Jones was provided with shoes and granted entry. (Id.). He spent the rest of that afternoon and most of the evening at the Hobart Street shelter. (Id.).

Jones began experiencing acute mental distress and voluntarily left the Hobart Street shelter around midnight on March 10, 2021. (Id. at ¶ 37). By 2:00 a.m., he had arrived at the Open Door Mission (the “Mission”), a shelter located at 210 West Main Street in the City. (Id. at ¶ 38). The Mission is a not-for-profit organization that provides emergency food and services to the City’s homeless community. (Id.). Many of the individuals whom the Mission serves suffer from mental illness, and the RPD is aware of this fact. (Id. at ¶¶ 38-39).

When Jones arrived at the Mission, he was greeted by employee Allen Woodruff (“Woodruff”). (Id. at ¶ 40). Woodruff opened the door and Jones walked inside to the kitchen, where he grabbed “a bucket of ordinary kitchen knives used for food preparation at the shelter[.]” (Id.). Jones then left, without encountering any other guests or attempting to harm anyone. (Id.). Woodruff called the police and reported that Jones had taken knives from the Mission. (Id.).

Several nearby RPD officers, “including Officers Drake, Audrey Jackson, Sir Glynn, and Jared Carello,” were dispatched to the scene and arrived shortly before 3:00 a.m. (Id. at ¶ 42). Officer Drake located Jones, who was in severe mental distress, at approximately 3:03 a.m. (Id. at ¶ 44). Officer Drake reported to dispatch that Jones was at the intersection of Cascade Drive and Industrial Street and was “actively cutting himself.” (Id. at ¶ 44). At this time, no civilians other than Jones were on the street, and Officer Drake was aware of that fact. (Id. at ¶ 45).

The responding RPD officers lacked the appropriate equipment to engage with Jones in light of his mental state. (Id. at ¶ 46). “Acknowledging this, a fellow officer said to Officer Drake, `just get in your car, Drake, and let’s back off.'” (Id.). However, Officer Drake, flanked by Officers Glynn and Jackson, surrounded Jones and shone bright lights in his eyes while pointing their guns at him. (Id.).

Jones was in clear distress and experiencing a severe mental health episode. (Id. at ¶ 47). Jones stated that he was dangerous and begged the officers to shoot him, telling them that if they did not kill him, he would have to kill them “for Jesus.” (Id.). Officers Drake, Glynn, and Jackson shouted commands at Jones, including telling him to drop the knife he had in his hand, which he was using to cut himself. (Id. at ¶ 49). Jones did not acknowledge their requests, but instead began to walk towards Officer Drake. (Id.). As Jones continued walking towards Officer Drake, who was on the sidewalk at the time, Officer Drake fired five fatal shots, striking Jones once in the chest, twice in the abdomen, once in the groin, and once in the arm. (Id. at ¶ 50). Jones was transported to the University of Rochester Medical Center, where he was pronounced dead by 4:30 a.m. (Id. at ¶ 54).

II

Court’s Reasoning That the ADA and Rehabilitation Act Claims Can Go Forward

  1. In order to prove a violation of title II of the ADA or §504 of the Rehabilitation Act, a plaintiff has to show: 1) he is a qualified individual with a disability; 2) he was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by a public entity; and 3) such exclusion or discrimination was due to his disability.
  2. Courts have generally found that title II of the ADA applies to the interaction between law enforcement and persons with disabilities, but the reasonableness of the accommodation required must be assessed in light of the totality of the circumstances of the particular case.
  3. Plaintiffs alleged that the person killed was: 1) in visible mental distress; 2) was actively engaging in self harm; 3) was begging the responding officers to shoot him; and 4) had come from a place known to the Rochester Police Department as a place serving individuals with mental illness. Therefore, a reasonable inference exists that the responding officers were aware of the person ultimately killed as having a mental disability.
  4. Plaintiffs identified several proposed reasonable accommodations that may have prevented the person from being killed, including: 1) waiting to engage with him; 2) equipping the responding officers with nonlethal weapons; 3) using alternative means to remove the knife from his possession; and 4) utilizing the City’s Person in Crisis Team.
  5. Whether defendant’s claim that it was unreasonable to suggest that the police should have remained in the vehicle and attempted to block the street because of danger to individuals, is a factual dispute not amenable to resolution on a motion to dismiss.
  6. Whether the use of force was objectively reasonable is not the point. The ADA and the Rehabilitation Act claims address action taken and decisions made before a shot was ever fired. To phrase it another way, if he was not reasonably accommodated that conclusion is not undermined by a holding that the police officer was ultimately justified in using deadly force.
  7. Case law does not address a standard for asserting a viable disability discrimination claim with respect to the fourth amendment.
  8. Numerous courts within the Second Circuit have concluded that the ADA requires police departments to make reasonable accommodations for disabled suspects. For example, it cited to one case holding that the only reasonable interpretation of title II is that law enforcement officers acting in an investigative or custodial capacity are performing services, programs, or activities within the scope of title II. Whether a person with the disability succeeds in proving discrimination depends upon whether the accommodations were reasonable under the circumstances. See also this blog entry.
  9. The qualified immunity argument of the defendant simply doesn’t work because no individual defendants are present in this case. Qualified immunity is only available to individuals sued in their individual capacity. Whether qualified immunity exists for an individual is irrelevant to the liability of the municipality.

III

Court’s Reasoning That the §1983 Claim Can Go Forward

  1. The complaint contained numerous factual allegations regarding alleged policies and practices by the Rochester Police Department using unconstitutional force against people who are black and people with mental illnesses. Those factual allegations are sufficient to survive a motion to dismiss and defendant has not articulated otherwise.

 

IV

Court’s Reasoning That the State Law Claims Can Go Forward

  1. New York law allows for municipalities to be held vicariously liable for the wrongdoing of its employees even if the employees themselves enjoy immunity.
  2. Cases cited by the defendant involving negligence do not apply to the context of intentional torts, which is what is involved here. That is, New York law makes clear that municipalities may be held vicariously liable for tortious conduct by their police officers.

 

V

Thoughts/Takeaways

  1. We discussed previously how courts have found that title II of the ADA applies to the interaction between law enforcement and persons with disabilities, such as here. It also makes absolute sense to me to say that the reasonableness of the accommodation needs to be considered in light of the totality of the circumstances of each individual case.
  2. We have frequently talked about how magic words are not required to initiate the interactive process, such as here. In this case, we see that a situation can in essence serve as magic words.
  3. You are beginning to see several cases talking about how an interactive process is required with respect to title II even if the court does not explicitly say it quite like that.
  4. Always a good idea for a plaintiff to make clear that several proposed reasonable accommodations were suggested by him or her or they.
  5. You are seeing lots of police forces beginning to use social workers and mental health professionals to respond either on their own and/or with the police to individuals in obvious mental distress.
  6. Excessive force applies to the force used while the ADA and the Rehabilitation Act applies to what happened before that force is used.
  7. Qualified immunity only applies to individual defendants and not to their employers.
  8. You want to check your jurisdiction to see whether your state law allows for municipality to be held vicariously liable for the wrongdoing of its employees even if the employees themselves enjoy qualified immunity.
  9. You also want to check your state law to see how it deals with vicarious liability for intentional torts of their employees.
  10. Another question is whether police officers are being appropriately trained on excessive force, especially with the ADA and its amendments being around. A separate question is whether police departments are being trained on the rights of people with disabilities in general. We discussed the excessive force issue here. We discussed the question of the police departments not being aware of disability rights and what that might mean here.
  11. You wonder about the Rochester’s Police Department sensitivity to disabilities in general. I have read before that the City of Rochester has more deaf/Deaf individuals than just about anywhere else in the United States because of the city being the home for the Rochester Institute of Technology and the National Technical Institute for the Deaf within it.

Today’s blog entry is a case from the Eastern District of New York, Martinez v. Gutsy LLC, here, which makes the case for why standalone websites can be a place of public accommodation providing that site is functioning for one of the purposes laid out in 42 U.S.C. §12181(7).

 

Once again, a person using a screen reader could not access a website. In this case, a company sold probiotic soda through its website. Defendant filed a motion to dismiss, and it is that motion that the case considers. As usual, the blog entry is divided into two categories, and they are court’s reasoning that a Gutsy’s standalone website is a place of public accommodation  and thoughts/takeaways. Of course, the reader is free to focus on either category.

 

I

Court’s Reasoning That Gutsy’s Standalone Website Is a Place of Public Accommodation.

 

  1. The United States Courts of Appeals are split on whether a standalone website is a place of public accommodation under the ADA.
  2. The First Circuit and the Seventh Circuit have found that electronic space can itself be a place of public accommodation.
  3. The Third Circuit, Sixth Circuit, Ninth Circuit, and 11th Circuits have held that places of public accommodation are limited to physical spaces, but that goods and services provided by a public accommodation, including those provided through a website, could conceivably fall within the ADA’s protections if a sufficient nexus exists. The Second Circuit has yet to weigh in.
  4. District courts within the Second Circuit are split on the issue of whether standalone websites are places of public accommodation under the ADA.
  5. The vast majority of courts in the Second Circuit at the District Court level have taken the position that a standalone website is a place of public accommodation under the ADA independent of any nexus to a physical space.
  6. That so many judges have diverged in their interpretation over this question means that the plain language of title III of the ADA is ambiguous as to whether standalone websites are covered entities under title III of the ADA. Accordingly, a court can use cannons and other interpretive tools to understand the statute in question. If after that, the text of the statute is not entirely clear, a court turns to broader statutory context and its history. When using this methodology, the courts are split as well.
  7. The common thread running through the list contained in 42 U.S.C. §12181(7)(E), (F) are threads of common function, rather than one defined by physical presence. In other words, the statutory focus of §12181(7) is on the entity’s function, such as serving food, creating space for the public to gather, offering entertainment, providing education, offering banking or transportation services, etc. §7(E) is a list of entities engaged in commerce, while §7(F) must be one engaged in the provision of services. Therefore, the ADA provides a guiding limiting principle for courts to use, namely a function-based analysis in applying the ADA’s antidiscrimination requirements online.
  8. Courts assessing ADA public accommodation discrimination claims need to first assess whether the entity with an Internet presence has a function like one on the non-exhaustive list of public accommodations in §12181(7).
  9. Place of public accommodation is a term of art common to remedial civil rights statutes. In such statutes definitions have varied wildly, which serves to demonstrate how the term changes in order to deal with the harms such statutes are intended to remedy.
  10. The phrase “place of public accommodation,” should be read within its context and related history. When reading it that way, a court cannot rule out that the definition sensibly includes electronic space as well as physical spaces.
  11. The change in word choice from public accommodation to facilities when intending to discuss a physical space, further bolsters the interpretation of §12181 as concerned with the functions of the various entities rather than their physical spaces.
  12. In March 2020, the near entirety of everyday American life moved online: grocery shopping moved entirely online just about; kids attended school online; white-collar workers were working remotely; and families went to the movies by streaming in their living room, etc. In short, the dramatic extent to which the Internet has changed what it means to participate in American society came front and center.
  13. As vaccinations have become widespread and pandemic restrictions have loosened across the country, some Americans have returned to in person movie theaters, physical shopping centers, and lengthy commutes. However, many others have not done so.
  14. If it was not already clear before 2020, it is clear today that an enormous share of activities of daily life now happen online.
  15. Commerce is now transacted online as often as not: artisans sell on Etsy; Amazon has largely replaced the in-person convenience store; brick-and-mortar public facing locations can be and appended to core online business and not the other way around, and the Internet is replete with how to guides for creating your own E store and navigating the broader e-commerce landscape.
  16. As an ever greater proportion of the activities of everyday life and commercial transactions take place online, a reading of the statute limiting its effect to enter the transacting commerce in person becomes one that render the statute increasingly meaningless.
  17. A core maximum statutory interpretation, the presumption against absurdity, means that a court should never describe an absurd meeting to Congress. That is, a court must always presume congressional rationality in its drafting. As such, that also favors an interpretation of the ADA that includes standalone commercial websites within its coverage.
  18. Per PGA Tour v. Martin, which we discussed here, the ADA must be broadly construed to effectuate its purpose of eliminating discrimination against individuals with disabilities.
  19. Legislative history of the ADA also weighs in favor of a dynamic interpretation of the statute accounting for changes in technology over time. In fact, the House committee report published in the lead up to the bill’s passage specifically specified that the committee intended that the types of accommodation and services provided to individuals with disabilities under all titles of the ADA should keep pace with the rapidly changing technology of the times.
  20. While no federal agency has promulgated regulations clearly defining public accommodations for purposes of the ADA in relation to the Internet, the DOJ has issued a guidance in that area. That guidance is entitled to deference per Supreme Court decisions because it is informed by DOJ’s specialized experience and consistent with the DOJ’s position in its recent cases and settlements.
  21. DOJ has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.
  22. While not controlling, DOJ’s understanding of a public accommodation is any business open to the public and its specific position that the ADA’s requirements apply in the Internet context, further weighs in favor of interpreting title III to include standalone commercial website as places of public accommodations.
  23. A nexus need not be found for a standalone website to be a place of public accommodation under title III of the ADA. Instead, the key is to focus on whether the websites operate in one or more of the functional categories that forth by the statute.

 

II

Thoughts/Takeaways

 

  1. I read lots of these kinds of decisions. I am always mystified that South Dakota v. Wayfair, which we discussed here, never gets mentioned. I just don’t understand it. In fact, not mentioning it may even be legal malpractice because it is relevant United States Supreme Court authority very much suggesting that a standalone website can be a place of public accommodation.
  2. Undoubtedly, the issue of whether standalone Internet sites are places of public accommodation is headed to the United States Supreme Court eventually.
  3. This case does an excellent job of laying out the reasons why the ADA can be interpreted to include standalone websites within title III of the ADA providing those websites are serving a function within one of the categories listed in 42 U.S.C. §12181(7). As such, this case falls within the line of cases, such as here, saying that the Internet must be meaningful accessible to people with disabilities if what is going on, i.e. the function, falls within one of the categories listed in §12181(7).
  4. The list of entities in §12181(7) is not exclusive even if the categories are.
  5. Interesting how the court talks about the use of place of public accommodation v. facility and how that means place of public accommodations can include electronic space.
  6. Can’t argue with the proposition that online drives everything nowadays. Also, remote work isn’t going away either. If online websites do not have to be meaningfully accessible to persons with disabilities despite whether their functions fall within one of the enumerated categories, people with disabilities will certainly be on the outside looking in.
  7. Also interesting is that the opinion does not cite Kisor v. Wilkie, which we discussed here, but does cite the Supreme Court cases coming before that. From reading this decision, the court is clearly of the view that the DOJ guidance will pass muster per Kisor.
  8. The 11th Circuit is uncertain on the issue of standalone websites because Winn-Dixie was mooted. We discussed the very difficult to understand and now mooted 11th Circuit decision and Winn-Dixie here.
  9. 42 U.S.C. §12181(7)(E) is a category involving sales or rental establishments. Commerce, the term used by the court, is much broader than what the actual category is.
  10. The case is making its way through trial and undoubtedly will head to the Second Circuit eventually.

This blog entry discusses just what is an IDEA FAPE anyway. It is a Sixth Circuit published decided on January 4, 2023, in the case of Doe v. Knox County Board of Education, here. As usual the blog is divided into categories and they are: key facts taken directly from the opinion; issues presented; court’s reasoning that IDEA exhaustion is not required because a FAPE is not involved; court’s reasoning that plaintiff’s request for preliminary injunction must be referred to the lower court; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Key Facts Taken Directly from the Opinion

 

The complaint describes misophonia as “a disorder of decreased tolerance to specific sounds or their associated stimuli.” Id. According to Doe, the normal sounds of eating food or chewing gum cause her to suffer “great fear and anxiety.” Id., PageID 252. These common noises trigger a “fight or flight” sensation, forcing Doe to escape from areas in which she hears them. Id. They also exacerbate her recurring migraines. Id.

Before high school, Doe’s misophonia did not affect her academic performance. Id., PageID 255. Her private middle school barred students from eating food and chewing gum in classrooms. Id. She thus could attend class without incident and excelled at her academics. Id., PageID 253-54. Doe was a “straight A student” and National Junior Honors Society member. Id., 253, 255; Doe Decl., R.27-2, PageID 265.

According to Doe’s complaint, most of Knox County’s public high schools likewise bar students from eating food and chewing gum outside the cafeteria. Compl., R.27, PageID 255. Yet Doe decided to attend L&N STEM Academy. Id., PageID 250. This high school’s policy allegedly allows each teacher to decide whether students may eat food and chew gum on a class-by-class basis. Id., PageID 255-56. Some teachers, like Doe’s ninth-grade math teacher, prohibit food and gum, so she has flourished in this class. Id., PageID 256. The high school also prohibits eating food or chewing gum in areas with “expensive equipment,” such as digital-art classrooms. Doe Decl., R.27-2, PageID 266. But other teachers, like Doe’s ninth-grade history teacher, allegedly allow “rampant” eating and chewing. Compl., R.27, PageID 256. The high school also allows students to eat throughout an 80-minute elective (“Genius Hour”) that Doe would like to take. Id., PageID 257. L&N’s permissive policies have forced Doe to avoid this elective and to leave her regular classes about 50% of the time, rendering her “physically and emotionally exhausted” at day’s end. Id., PageID 256.

Doe’s parents repeatedly asked Doe’s teachers to ban eating and chewing during her classes. Id. But some teachers allegedly have refused on the ground that L&N’s official policy permits this conduct. Id., PageID 257. Doe’s parents thus turned to the school’s administrators, asking them for this accommodation about halfway through her ninth-grade year in December 2021. Id. The administrators denied the request. Id., PageID 258-59. But they noted that Doe’s parents could appeal this decision administratively. Id., PageID 259 n.8.

The next month, her parents instead brought this suit on Doe’s behalf against Knox County. They alleged that the county’s refusal to grant Doe the requested accommodation—a classroom ban on eating and chewing for all students except those with medical needs—violated the ADA and Rehabilitation Act. Id., PageID 255, 259-60. They requested a permanent injunction that would require L&N to implement the accommodation for Doe. Id., PageID 260-61.

Knox County also described the accommodations that L&N had provided to Doe. Since her arrival at the school as a ninth grader, Doe has had a “504 plan” (a plan under § 504 of the Rehabilitation Act). Odom Decl., R.44-2, PageID 451. Among other things, this plan gives Doe preferential seating near the teacher and allows her to wear noise-cancelling headphones. Id. It also gives her additional time to complete assignments and permits her to take tests in isolation. Id. Under a “`break’ system” that administrators developed with Doe’s parents, moreover, she could signal to a teacher that she needed a break of a specified length and obtain a new seat on her return to class. Id. But administrators allege that Doe stopped using this “collaborative” system and started leaving class without attempting to return. Id., PageID 452.

According to L&N’s principal, Doe’s teachers have all requested that her peers limit eating in class. Allen Decl., R.44-1, PageID 446. But Doe responds that her case has now attracted unwanted local attention. The Knox County mayor, a retired professional wrestler who competed under the moniker “Kane,” has described the suit as “gum gate” on Twitter. Br., R.15, PageID 168. (The mayor has no affiliation with the Knox County Board of Education.) According to her father, this attention has caused some cruel students to target Doe by making noises that trigger her condition. K.M. Decl., R.31-1, PageID 359.

II

Issues Presented

  1. Does this case require exhaustion under the IDEA?
  2. If, exhaustion is not required, should the court grant plaintiff’s request for a preliminary injunction?

 

 

III

Court’s Reasoning That the Case Does Not Require Exhaustion under the IDEA Because a FAPE Is Not Involved

 

  1. Fry, which we discussed here, is the first thing that has to be looked at.
  2. In Fry, the Supreme Court identified the relief that the IDEA makes available to students. It then held that the IDEA allows parent to seek relief for only one injury, which is the denial of a free appropriate public education (FAPE). The Supreme Court added that parent need not exhaust IDEA if they seek some other benefit that an IDEA hearing officer could not provide.
  3. In Fry, the Supreme Court adopted a complaint centered approach. It held that the key was figuring out whether a free appropriate public education was the crux of the complaint. If it was, exhaustion was required. If it was not, exhaustion was not required.
  4. Fry posed three questions. First, could a student’s parents have sought the relief if the challenged conduct had arisen outside the school in say a public theater or library? Second, could a teacher or guest at the school rather than the student have requested the same relief? If the answer was no to those questions, the parents were likely seeking a free appropriate public education. However if the answer was yes to those questions, a student was likely not seeking a free appropriate public education. Another factor the Supreme Court considered was whether the parents were using IDEA processes before bringing suit. If they were, that would suggest that they believed they were seeking an IDEA related remedy.
  5. Although Fry directed courts to ask whether the key to the complaint was whether a free appropriate public education was the sought for relief, it didn’t offer much input into what the term of art meant.
  6. The IDEA text and circuit precedent makes it clear what is required when parents are seeking relief that is available under the IDEA only. In that situation, parents are seeking relief under IDEA only if a child needs an instructional change and not just a noninstructional accommodation to some school rule or policy.
  7. IDEA requires States to give a free appropriate public education only to students with disabilities. IDEA connects both phrases to the term, “special education.” A free appropriate public education is defined as special education and related services provided in conformity with a child’s IEP. It defines a child with a disability as a child with certain impairments who by reason thereof needs special education and related services. In other words, free appropriate public education and special education, for a child with a disability is a student needing that type of education.
  8. The definition of special education in the IDEA shows that a request for a free appropriate public education is a request for uniquely tailored teaching. Special education under IDEA means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and other institutions, in other settings, and instruction in physical education.
  9. To request a free appropriate public education, parents must seek instruction that is specially designed. That is, they have to seek relief about the action of instructing or teaching their child or imparting of knowledge or skill to him or her. That requested teaching must also exceed what is usual or customary. An IDEA regulation puts it as parents must seek a change to the content, methodology, or delivery of the teaching to address the unique needs of a child ensure access of the child to the general curriculum.
  10. The definition of related services confirms that a child must need teaching changes in order to receive services. The phrase includes transportation and developmental, corrective, and other supportive services that may be required to assist a child with a disability to benefit from special education. It is therefore expanding the available relief the cover items required for a child to obtain specially designed instruction.
  11. IDEA does not allow parents to seek the services independent of specially designed instruction. In other words, services cannot be related to special education if the child does not need special education. As an IDEA regulation explains, a child does not qualify for the benefits of the IDEA if the child only needs noninstructional accommodations.
  12. A child may qualify for relief under the ADA or the Rehabilitation Act and not IDEA because the ADA and the Rehabilitation Act cover children who need regular and not just special education.
  13. Circuit court cases agree with the general rule that the IDEA requires instructional changes. Courts also require administrative exhaustion when parents are seeking a change to the delivery or methodology of their child’s instruction.
  14. Courts also generally hold that parent need not exhaust claims challenging noninstructional harms, such as a service animal.
  15. The court saved the question of whether the IDEA exhaustion rule is jurisdictional for another time.
  16. Plaintiff did not need to proceed through the IDEA administrative processes because there complaint did not request any instructional changes. Instead, they asked for a ban on eating and chewing in all of her academic classrooms, which has nothing to do with an instructional change.
  17. A ban on eating and chewing is neither special education nor a related service. Also, no ordinary speaker would describe such a ban as specially designed instruction either because there is nothing innately instructional about the prohibition. That is, such a prohibition would not change the content, methodology, or delivery of the instruction given to the plaintiff. Instead, this change would be more naturally described as a change to the physical school environment much in the way a ramp would change the environment for a person in a wheelchair or a peanut prohibition would change the environment for student allergic to peanuts.
  18. Limits on eating and chewing gum in a classroom could not be typically called a service. Even so, it doesn’t matter whether a service is involved at all because the plaintiff does not allege any facts suggesting that their child needed other specially designed instruction. In fact, the complaint alleged that she excelled at her educational endeavors when the problematic sounds have not pervaded her classroom. Allegations were also made that she had no problem with the content of the instruction or the way that teachers deliver it. So, the plaintiff is requesting the accommodation to gain access to regular education and not to special education.
  19. The request made by the plaintiff looks nothing like the typical kind of request that courts have found falling within the IDEA, such as a request for a one-on-one aide or for a teacher to integrate a child’s iPad into the teacher’s lesson plans.
  20. Fry’s two hypothetical questions also support this conclusion. For one, plaintiff could have tried to seek an eating and chewing ban in many other places beside the school. Also, other people could have requested the same type of ban sought by plaintiff’s parents in this case.
  21. Plaintiff’s parents have never sought an IEP for plaintiff under the IDEA. Instead, she has only been provided with a §504 plan under the Rehabilitation Act. In fact, litigation already occurred specifically making it clear that plaintiff was not eligible for IDEA services.
  22. Trying to apply the Fry questions does not mean confusing the challenged conduct with the resulting injury. That approach was specifically rejected by Fry.
  23. Since plaintiff seeks no instructional changes, plaintiff did not need to exhaust IDEA processes.

 

 

IV

Court’s Reasoning That Plaintiff’s Request for Preliminary Injunction Must Be Referred to the Lower Court.

 

 

  1. The DOJ has issued regulations, 28 C.F.R. §35.130(c)(7)(i), that a public entity has to make reasonable modifications to policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modification fundamentally alters the nature of the service, program or activity. So, plaintiff’s parents must show that a switch from a policy allowing food in the classroom to a policy prohibiting food qualifies as a moderate rather than a significant change in the relevant policy. They also must deal with the proposition put forward by the school that a change like that requires the college -like school to alter its entire (i.e. a fundamental alteration), because it does not have a designated cafeteria.
  2. In Rehabilitation Act cases, courts have held that parents must show not just that their preferred accommodation was reasonable but also that the provided the accommodation was unreasonable. Further, the law suggests that plaintiff’s parents would have to show that the §504 plan provided to her by the school district was unreasonable giving due regards to the professional judgment of school administrators.

 

V

Knox County Board Takeaways

 

  1. I have always thought that Fry was very difficult to apply in the real world.
  2. If Doe prevails, by definition it would be very unlikely that a person in a 504 plan would ever have to exhaust administrative remedies because 504 plans do not involve specially designed instruction.
  3. Depending upon the Supreme Court decision in Perez, which is the other blog entry for today, the issue of instructional changes may become a very big deal indeed.
  4. Doe means that school districts need to have separate procedures for violation of an IDEA FAPE v. a Rehabilitation Act FAPE.
  5. The court gets it wrong in its preliminary injunction discussion with respect to what is a reasonable modification. A reasonable modification has nothing to do with it being moderate. Instead, the question is whether it constitutes an undue burden or a fundamental alteration, which is a completely different question. One can even argue that a significant change is a lower bar than a fundamental alteration.
  6. Professional judgment of school administrators is a thing. That is, courts will respect the judgment of school administrators providing the school goes through its proper paces, such as we discussed here and what happens when they don’t, here.
  7. This case will also ask plaintiff attorneys to carefully consider whether their client’s situation can be handled entirely under a 504 plan because under this case, the odds would be very high that exhaustion of administrative remedies would not be required for a student only in a 504 plan.
  8. This case may also force plaintiffs and their attorneys to consider whether they want to resist any effort by the school to force their student into the IDEA system rather than the 504 system.

Today’s blog entry is the blog entry that I was going to do last week until the EEOC guidance on hearing disabilities in the workplace intervened. That particular guidance was the most personal one that I have ever written. Today, we go back to a more traditional type of blog entry. On January 18, 2023, oral argument occurred in Perez v. Sturgis Public Schools. Perez considers the question of whether a person is preempted from filing an ADA claim because the plaintiff had previously settled his IDEA claim. Perez doesn’t really answer the question as to when IDEA exhaustion required in the first place. What I am doing today is posting simultaneously two different blog entries because it gets real long otherwise. The first one is a discussion of the Perez oral argument and my thoughts takeaways on that. The second one is a discussion of Doe v. Knox County Board of Education, here, a published decision from the Sixth Circuit that goes into depth on what an IDEA FAPE is.

 

I

Perez Oral Argument

 

  1. Justice Thomas right out of the gate wondered if the ADA and the IDEA were two completely different types of remedies meant for two completely different types of things? He returned to that thought on more than one occasion. For example, he later said that where you had exhaustion requirements, the relief would normally be similar to the exhaust the claims, which is not the case when you compare IDEA with the ADA.
  2. Chief Justice Roberts essentially wondered about both IDEA and §504 both having free appropriate public education requirements (F.A.P.E.), and what that might mean for resolving the case.
  3. Justice Kagan wondered if a decision in favor of the student would lead to cases focusing on form over substance so that certain remedies were placed in a complaint just to avoid the exhaustion requirement. She also wondered about the parallel proceedings that would be created.
  4. Justice Jackson said that the plain meaning of both statutes projected that dual tracks (one for IDEA and one for ADA), were perfectly permissible. She also wondered whether this truly was a situation where a person was doing an end run around the IDEA.
  5. Justice Alito inquired whether the use of the term remedies and the use of relief in the IDEA exhaustion statute was of any significance. That is, are the two terms synonymous?
  6. Justice Alito also explored whether a settlement on an IDEA matter would activate a futility exception with respect to an ADA matter on the same facts.
  7. Justice Thomas wondered about the claim that is being exhausted, IDEA, doesn’t naturally fit the claim that the plaintiff is trying to pursue in this case (the ADA claim). In other words, normally informal, administrative, and then judicial proceedings are all about the very same thing pursuing similar remedies at different stages, which is not the case here. In response, the attorney for the student was unaware of any statute that had a similar exhaustion requirement as the IDEA does.
  8. Justice Alito wondered whether this case was about the denial of a FAPE? The student’s attorney admitted that a FAPE was involved but that wasn’t important to the case. In other words, Fry does not drive the issue here, which is a question of remedies and what happens to remedies under other laws when an IDEA case settles.
  9. Justice SotoMayor wondered whether the situation did not involve two separate proceedings mandated by circumstances creating a very odd creature.
  10. Justice Barrett inquired whether under a broad reading of IDEA’s exhaustion requirement that the only way to preserve an ADA claim would be to reject an IDEA settlement, which would also jeopardize attorney fees.
  11. Justice Jackson inquired about the legislative history behind the IDEA exhaustion statutory provision.
  12. Justice Alito wondered if the IDEA was not on the books, would the claim be a denial of a reasonable accommodation under the ADA.
  13. Justice SotoMayor asked whether the elements of an ADA claim and an IDEA claim were different. In responding to the question, the DOJ attorney (amicus to the student), also noted that the offenses under the two laws were different as well.
  14. Chief Justice Roberts wondered if the term relief and the term remedies in the IDEA exhaustion statutory provision did not in fact mean different things.
  15. Justice Alito wondered whether the ADA required a school to provide auxiliary aids regardless of the cost. The DOJ attorney responded in the negative to that because, as we all know, of the undue burden defense.
  16. Justice Alito inquired whether the IDEA may demand certain things that would even be more expensive than what the ADA demands.
  17. Justice Jackson wondered whether forcing people into IDEA to pursue ADA claims due to the IDEA exhaustion statutory provision limited remedies contrary to Congressional intent, which says that the exhaustion requirement in the IDEA is not meant to limit other remedies.
  18. Justice Barrett wondered about the ability to tack on compensatory damages at the end of a request for IDEA relief and whether that would even work.
  19. Justice SotoMayor wondered if there how much parallel litigation currently existed with respect to IDEA and the ADA. The DOJ attorney responded that IDEA relief was the first choice for parents and this parallel litigation is not something seen much.
  20. Justice Kagan wondered whether compensatory relief under title II of the ADA was even available after the Cummings decision. The DOJ attorney said they were not taking a position on that.
  21. Justice Thomas wondered why the school didn’t get a general release when it settled the IDEA claim.
  22. Justice Jackson wondered about the history of the IDEA exhaustion statutory provision in that Congress did not want all claims to go through the IDEA administrative process or they wouldn’t have put in this section a clause about not limiting other remedies.
  23. Chief Justice Roberts wondered whether the denial of a FAPE in an IDEA case constitutes the same harm as in an ADA case.
  24. Justice Kagan wondered how you could possibly be seeking relief under the IDEA if you are also seeking damages.
  25. Justice Jackson wondered whether the legislative history of the IDEA exhaustion provision meant that the statutory provision only applied to cases where the hearing official could grant the relief requested.
  26. Justice Gorsuch wondered if under the school district’s analysis of the case, it meant ADA claims would be prevented unless the IDEA was exhausted first, assuming there was no waiver. The school district attorney agreed with that interpretation of their analysis.
  27. Justice Barrett wondered whether a broad IDEA exhaustion requirement would prohibit ADA claims altogether. Alternatively, whether it would only be a narrow world where ADA claims could be pursued at all under the school district’s analysis of the situation. In response, the attorney for the school district also brought up Cummings and its possible impact under title II of the ADA.
  28. Justice Jackson wondered whether a student would have to exhaust IDEA even if they did not want a FAPE?
  29. Justice Jackson also wondered whether a broad reading of the IDEA exhaustion requirement throws out the refusal to limit other remedies provision also appearing in that statutory provision.
  30. Justice Kagan wondered whether a broad reading of the IDEA exhaustion requirement would force plaintiff to turn down an IDEA settlement in order to pursue an ADA claim.
  31. Justice Kagan wondered if IDEA claims were not going to be the first choice of parents because those claims would get resolved much faster and more inexpensively than any I ADA claim. So, she wondered since parents always go IDEA why would that foreclose the ADA?
  32. Justice Barrett wondered whether a futility exception would not apply in the event of settlement and noted that a majority of the circuits dealing with the question had decided such was the case.
  33. Justice Thomas wondered if the school district’s interpretation of the situation would not require all ADA claims to go through the IDEA exhaustion process first.
  34. Justice Gorsuch wondered why does it even matter that the key focus of the complaint was based on IDEA given the text of IDEA.
  35. Justice Gorsuch wondered if the text of the IDEA is not pretty clear that it’s all about the relief under IDEA as to what is being limited by the exhaustion requirement and not anything else.
  36. Justice Jackson wondered whether what the person is seeking is what really matters. She also wondered whether disability discrimination claims need to be exhausted.
  37. Justice Jackson wondered if under the school district’s analysis, ADA claims would be prohibited if a FAPE was involved absent administrative exhaustion.
  38. Justice Kagan noted that Fry, which we discussed here, did not say anything whether exhaustion would be required if compensatory damages was being sought. In fact, the Court specifically reserved that question for a later time.

 

II

Thoughts/Takeaways on the Oral Argument

 

  1. It is a real dangerous game to predict results of Supreme Court cases based upon the questions asked in oral argument. I have done that before and have often failed in my predictions. I asked a person who had clerked for a federal appellate judge why I kept missing taking that approach. She informed me that the questions asked by federal appellate judges at oral argument should not be taken literally. That is, often those questions are asked for other purposes other than revealing where the specific judge or Justice might be leaning. All this said, it looks like this decision could very well go the way of the student with a disability. It probably helps that the facts are particularly egregious. What I found surprising from the oral argument was that Justice Thomas in particular seemed to be very much leaning in favor of the person with a disability, which is not usually the case with him.
  2. Behind Chief Justice Roberts questions was at least an implicit recognition that a FAPE under the IDEA and a FAPE under §504 are not at all the same thing. The former is based upon a set of goals and the IDEA focusing on specialized instruction, as we will discuss in the other blog entry posted today. The latter is all about getting a person with a disability to the same starting line as a person without a disability. Those two are very different concepts.
  3. Justice Kavanaugh didn’t say anything in the oral argument. So, no way to even guess which way he might be leaning. It is fair to say that Justice Alito was leaning in favor of the school district, which isn’t surprising.
  4. Hard to say about Justice Barrett. In the past, there have been some cases where oral argument suggested that she would leaning on the side of a person with a disability but it didn’t work out that way in the end. It is public knowledge that Justice Barrett has a child with Down syndrome. So, she might be particularly aware of the IDEA. What that awareness means for the case is very hard to say.
  5. There does seem, with the emphasis on “seems”, to be a majority of this court that will decide in favor of the student with a disability. It remains to be seen what the contours of that decision will be. One effect of that decision may mean that school districts will no longer, as many do, be able to insist that persons with disabilities in 504 plans have to go through the same administrative exhaustion process as students with disabilities with IEP’s.
  6. Just how far does Cummings, which we discussed here, go, i.e. whether title II of the ADA prohibits emotional distress damages, is on the mind of some of the Justices.
  7. What really is an IDEA FAPE all about? For the answer to that, please turn to the second blog entry that I am posting today discussing the case of Doe v Knox County Board of Education.