Today’s blog entry deals with the question of whether the interactive process continues through any litigation and whether evidence of that interactive process taking place or not taking place when the case is being litigated can be brought into evidence. The case is Kovachich v. Department of Mental Health and Addiction Services, here, decided by the Supreme Court of Connecticut on September 27, 2022. As usual, the blog entry is divided into categories and they are: facts; majority reasoning that exhibits were properly admitted; Chief Justice Robinson’s dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts can be distilled quite a bit. What you have here is a plaintiff requesting from her employer a scent free work environment. While the employer granted accommodations, some employees failed to comply with the scent free working environment designation. As a result, plaintiff was exposed to scents at the jobsite that exacerbated her rhinitis and asthma and on multiple occasions triggered the need for emergency medical treatment. She then sought out legal counsel to ensure that she was protected in the workplace. The plaintiff, her counsel, and the human resources director did meet with the result being a notice was placed on the overtime sign-up sheet informing employees that the Brief Care Unit was scent free. However, with limited exceptions, no additional measures were taken to educate the workforce or to enforce the scent free designation by means of workforce discipline. This led to a filing with the Connecticut version of the equal employment opportunity commission.

 

At trial, plaintiff’s counsel sought to introduce into evidence an April 29, 2013, email from plaintiff’s counsel to a Connecticut Assistant Attorney General with a subject line, “request for demand.” the content of that email asked for a discussion to find a solution to ensure that plaintiff could be given a scent free environment. No such meeting took place in response to the email. Plaintiff’s counsel also offered into evidence in the email of May 30, 2013, stating that one of the plaintiff’s coworkers was also affected by scents in mandatory training situations and suggesting that online training as a possible accommodation. It also said her employer’s approach was the wrong one and that plaintiff intended to move forward with her case. It specifically inquired about what solutions the employer might propose. Plaintiff’s counsel also sought to introduce into evidence a July 22, 2013 letter containing a set of demands and ending with, “we would be happy to meet with representatives of the defendant who has authority to discuss and recommend these requests.” All of these exhibits were offered for purposes of illustrating plaintiff’s attempts at the interactive process. The trial court admitted the exhibits and wound up finding in favor of the plaintiff awarding $3800 of additional pension income. It also awarded the plaintiff $125,000 for the emotional distress caused by the actions of the employer and $415,389.50 in attorney fees.

 

The defendant appealed to the appellate court and the appellate court wound up agreeing with the defendant on that the various exhibits should not have been admitted and for other reasons as well. Plaintiff appealed to the Connecticut Supreme Court.

 

II

Court’s Reasoning That the Exhibits Were Properly Admitted

 

  1. It is true that the Connecticut Code of Evidence provides that evidence of an offer to compromise or settle a disputed claim is inadmissible on the issue of liability and the amount of the claim. Good policy reasons exist for that rule.
  2. It is also true that the Connecticut Code of Evidence allows an offer to compromise or settle a disputed claim into evidence if it is offered for another purpose. The list of purposes that appear in that statute are illustrated rather than exhaustive.
  3. Whether the exhibits should have been admitted is an evidentiary area issue reviewed for an abuse of discretion.
  4. The Connecticut Fair Employment Practices Act borrows from the ADA and requires an interactive process to figure out what accommodation can be put in place in order to overcome a person with a disability’s limitations.
  5. The need for the interactive process arises because both parties hold information that the other does not have or cannot easily obtain.
  6. The employee has the burden of initiating the interactive process must come forward with some suggestion of accommodation, and the employer then must make a good-faith effort to participate in that discussion.
  7. A plaintiff who fails to initiate or participate in the interactive process in good faith loses.
  8. An employer’s refusal to give an employee his or her specific requested accommodation does not necessarily amount to bad faith, so long at the employer makes an earnest attempt to discuss other potential reasonable accommodations.
  9. An employer’s failure to participate in the interactive process in good faith does not give rise to per se liability. However, it may be sufficient grounds for denying a defendant’s motion for summary judgment because it is at least some evidence of discrimination. In other words, in Connecticut a failure to engage in a good faith interactive process, is not a separate cause of action but can be introduced as evidence tending to show disability discrimination.
  10. The interactive process required by law is ongoing and is not exhausted by one effort. The ongoing interactive process continues during the course of plaintiff’s employment even after the plaintiff has filed a complaint alleging disability discrimination.
  11. The Connecticut Supreme Court found persuasive the reasoning of numerous federal courts that have been admitted evidence of compromise offers and negotiations for purposes of showing that the parties engaged in the interactive process.
  12. Nothing in the record establishes that the communications contained in the exhibits occurred within the context of the commission’s mandatory mediation program. In fact, plaintiff’s complaint had been pending with the commission for approximately one year and had been referred to in commission investigator at the time the document was generated, which means that the mandatory mediation had at least concluded.
  13. Although the communication contained in the exhibits occurred while the plaintiff’s complaint was pending before the commission, no evidence exists to indicate that the exhibits were part of the commission’s conciliation efforts, as opposed to their investigative efforts, or independent of the commission’s efforts altogether.
  14. The purpose of the evidentiary admissions was not to show liability but to show that a party was engaging in the interactive process.
  15. The trial court did not rely on the exhibits to find that the defendant engaged in discrimination. Instead, the trial court found that the defendant had failed to effectuate the plaintiff’s accommodations by an abject failure to make any reasonable effort to educate the staff about what a scent free environment meant and a supervisor’s refusal to do anything whatsoever about the scent free workplace environment provided by the ADA committee.
  16. While the trial court did rely on the defendant’s failure to respond to one of the exhibits to find that the good faith interactive process had broken down, that finding was based on defendant’s failure to present any evidence that it responded to the plaintiff’s communication, rather than the content of the communication itself.
  17. There was no error in the trial court’s determination that the exhibits were highly relevant to the defendant’s ability to react intelligently and legally to the plaintiff’s request for accommodations.
  18. The content of the communications demonstrate that the plaintiff wanted to continue with the interactive process but was getting nowhere.

 

III

Chief Justice Robinson Dissenting Opinion

 

  1. Failure to engage in interactive process is not entirely distinct from the liability inquiry as a matter of law.
  2. Most circuits find a failure to engage in the interactive process results in liability when a reasonable accommodation would otherwise have been possible.
  3. Connecticut Code of Evidence prohibits admissibility of a variety of things when it goes to liability in general.
  4. Majority view is too narrow as to what is part of the mediation process.

 

IV

Thoughts/Takeaways

 

  1. My thanks to Daniel Schwartz, who has a blog called the Connecticut Employer Law Blog (the link will take you to his discussion of the case), for first bringing my attention to this case.
  2. Six justices were in the majority with the Chief Justice being the lone dissenter.
  3. The interactive process is a continuing duty that continues through any litigation.
  4. I am not a Connecticut licensed attorney. Mileage may also vary depending upon jurisdiction.
  5. Federal case law exists holding that request to engage in the interactive process made during ongoing litigation can be admitted for the purpose of demonstrating the continuing obligation of engaging in the interactive process.
  6. As a preventive law matter, an employer would do well to respond to any accommodation offers while litigation is ongoing. Of course, as we have discussed numerous times in our blog, such as here, once an employer is put on notice that a need for accommodation exists (magic words are not required), the employer should engage in the interactive process.
  7. In most circuits, failure to engage in the interactive process is a separate cause of action. In those circuits, the dissenting opinion here may hold quite a bit of sway because of the failure to engage in interactive process being a liability issue.

Today’s blog entry come from the First Circuit, Laufer v. Acheson Hotels, LLC, here. It discusses standing and creates a split in the circuits. Undoubtedly, this issue will go before the Supreme Court. The facts of the case are pretty straightforward. What you have is a serial plaintiff and an avowed tester of Internet sites. In this case, she focuses on the hotel reservation rule and checks sites to see if they are complying with the specific hotel reservation rules in the Code of Federal Regulations. While she has an intention of visiting the website to see if the website is complying with the rule, she has no intention of actually visiting the properties themselves. Does she have standing? The First Circuit says she does. As usual, the blog entry is divided into categories and they are: court’s reasoning that plaintiff has standing; effects of prior Supreme Court cases and other Circuit Court decisions; plaintiff has standing to seek injunctive relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning That Plaintiff Has Standing

 

  1. When a place of public accommodation violates the ADA and discriminates against a person with disability, the ADA and the regulations implementing it permit a private individual to bring enforcement actions in federal court.
  2. The question is whether a complaint contains enough facts to demonstrate that the court has subject matter jurisdiction.
  3. In order to have standing, plaintiff must show that she: 1) suffered an injury in fact; 2) the injury is fairly traceable to the challenged conduct of the defendant; and 3) the injury is likely to be redressed by a favorable judicial decision.
  4. An injury in fact means the invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.
  5. Standing doctrine has several purposes, including: 1) tends to ensure that the legal question presented to the court are resolved in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action and not in the rarefied atmosphere of a debating society; 2) ensures federal courts don’t turn into a vehicle for the vindication of the value interests of concerned bystanders; and 3) reflects the separation of powers principles that courts should not be used to usurp the powers of the political branches.
  6. Since standing is jurisdictional, it cannot be waived or forfeited and can be raised at any time by anyone. When it is raised, the burden of showing standing rests on the party invoking the court’s jurisdiction. A party has to meet that burden otherwise the case has to be dismissed.
  7. In essence, standing is the question of whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.
  8. Plaintiff’s claim is not so implausible that it is insufficient to preserve jurisdiction.
  9. The hotel reservation regulation, 28 C.F.R. §36.302(e), clearly provides that hotels in their reservation portals must provide some detail-enough detail-to allow individuals with disability to know what services they can enjoy.
  10. Concrete injuries must actually exist, though the injury does not have to be tangible. Intangible injuries, such as the suppression of free speech or religious exercise or the invasion of common law rights actionable without wallet injury, can also be concrete.
  11. In figuring out whether an injury is concrete, the Supreme Court has said that you look to both history and the judgment of Congress.
  12. It is the responsibility of judges to independently decide whether a plaintiff has suffered a concrete harm under article III even if Congress adamantly says they do.
  13. A plaintiff’s deliberate choice to see if accommodations are obeying a statute does not mean that her injury impact is any less real or concrete.
  14. The purpose of the reservation rule requiring that places of lodging make available in their accommodation descriptions on the reservation services information about the accessible feature in their hotel and guest rooms is to reasonably permit a person to assess independently whether a given hotel meets her accessibility needs, which was exactly what the plaintiff was doing.
  15. There is also no carveout in the hotel reservation regulations that the information need only be turned over if the person trying to make a reservation actually wants to make a reservation.
  16. The Supreme Court has said that a black tester has standing with respect to the Fair Housing Act because that tester had a right to truthful information but was denied. The same applies here because the plaintiff was denied information to which she has a legal entitlement. Another way to look at it is that the black tester lack of intent to rent an apartment did not negate the simple fact of injury. Therefore, plaintiff’s lack of intent to book a room at the hotel room would not negate her standing either.
  17. The Supreme Court has repeatedly said that denial of information to which plaintiffs have a legal right to can be a concrete injury in fact.
  18. Prior Supreme Court opinions have made clear that a denial of information that a plaintiff is statutorily entitled to can make for a concrete injury in fact. Those same decisions hold that the denial of information to a member of a protected class alone can suffice to make an injury impact and that the person’s intended use of the information isn’t relevant.

 

II

Effect of Prior Supreme Court Cases and Other Circuit Court Decisions

 

  1. It is up to the Supreme Court to say that a decision overrules prior decisions of the Supreme Court and not to the Circuit Courts of Appeals.
  2. Explicit holdings of the Supreme Court overrule any contrary dictum by the Supreme Court in later decisions. That is, arguments that the Supreme Court implicitly overruled one of its prior decisions are inherently suspect.
  3. It is unlikely that the Supreme Court would overrule a prior decision in dictum with only three sentences of explanation contained in a footnote.
  4. The black tester case, Havens Realty, is so similar to plaintiff’s case as to render any distinction between the two of them insufficiently material. So, the First Circuit is bound by that decision until the Supreme Court says otherwise.
  5. The ADA make the denial of information discrimination against persons with disabilities and gives that person the right to sue in response. That plaintiff had no intent to use the information for anything but a lawsuit doesn’t change anything because she was still injured in precisely the way the statute was designed to protect.
  6. The regulations at issue specifically make the denial of accessibility information actionable discrimination against persons with disabilities. That is, the regulation was not designed only to make sure that a person with a disability could book a room but to ensure that a person with a disability could independently assess whether a given hotel or guest room meets his or her accessibility needs. The reservation rule recognizes that the public information on accessibility features is necessary to make sure persons with disabilities are able to reserve hotel rooms with the same efficiency, immediacy, and convenience as those who do not need accessible guest rooms.
  7. Denying the plaintiff the same efficiency, immediacy, and convenience as those not requiring accommodations is exactly the discrimination the regulations are trying to stamp out.
  8. The decisions of other circuit courts are simply not persuasive for several reasons: 1) the decision do not explain why the ADA tester plaintiff didn’t suffer an injury but the black tester plaintiff in Havens Realty did even though her only interest in using the information was testing compliance and bringing her lawsuit, just as is the case with an ADA reservation rule tester; 2) regardless of whether the rule involves a misrepresentation or any representation, it is a distinction without a difference. In either case, the law conferred on the plaintiff a legal right to truthful information about an accommodation; 3) the Supreme Court recently reaffirmed that the violation of a procedural right granted by statute can be sufficient in some circumstances so that plaintiff’s need not allege any additional harm beyond the one Congress has identified; 4) downstream effects is not something that appears in the most relevant Supreme Court case law governing standing.
  9. Discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of a disfavored group as innately inferior and therefore as less worthy participants in the political community, can cause serious noneconomic injury to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.
  10. Trans Union, discussed here, cited discriminatory treatment as an example of concrete de facto injuries that were previously inadequate at law that Congress could elevate to the status of legally cognizable injuries.
  11. Plaintiff alleges that she suffered frustration and humiliation when the hotel reservation portals did not give her adequate information about whether she could take advantage of the accommodations. Without that information, plaintiff is not put on an equal footing to experience the world in the same way as those who do not have disabilities. Avoiding precisely that part is the point of the ADA which was designed to advance equal citizenship for persons with disabilities by aiming to guarantee a baseline of equal citizenship by protecting against stigma and systematic exclusion from public and private opportunities. When faced with exactly this situation, the 11th Circuit, discussed here, found standing
  12. Even assuming downstream consequences are a thing, plaintiff’s feelings of frustration, humiliation, and second-class citizenry are downstream consequences and adverse effects of the informational injury she experienced.
  13. Plaintiff’s injuries are particularized. In particular, she personally suffered the loss of dignity and feeling less than equal and endured humiliation, frustration, and embarrassment.
  14. The injury is also differentiated from others because plaintiff is a person with a disability who personally suffered the denial of information the law entitles her to have.

 

III

Plaintiff Has Standing to Seek Injunctive Relief

 

  1. Standing to seek injunctive relief turns on the question of whether the plaintiff has shown a sufficient likelihood that she will again be wronged in a similar way, sometimes referred to as imminence.
  2. Imminence requires that the injury not be conjectural, hypothetical, or simply possible. Describing this concept, the Supreme Court has said that a plaintiff’s proclaimed intent to return to the place that they have visited before is by itself simply not enough.
  3. Plaintiff’s intent to revisit the website are the farthest thing from those same day intentions found insufficient in Supreme Court decisions. She specifically alleges that she has concrete plans to go back to the websites in the near future. In fact, she has a sophisticated system to continue monitoring the noncompliant website she finds.
  4. Plaintiff is a self-proclaimed ADA tester who makes it her job to test website for ADA compliance.
  5. Plaintiff also asserts that while the hotels reservation system had made its website ADA compliant, it had not persuaded third-party reservation services to do the same. So, her likelihood of future injury is far from conjectural or hypothetical rather it is imminent.
  6. Defendant’s mootness argument does not fly because mootness is a demanding standard. For a case to be moot, it must be shown that it is impossible for a court to grant any effectual relief whatsoever to plaintiff assuming the plaintiff prevails. Further, the party asserting mootness bears the burden of showing that it exists. As mentioned above, the third-party reservation sites have yet to comply with the reservation rule.
  7. Plaintiff’s claims against the third-party websites are not insubstantial and frivolous.
  8. The reservation rule extends to reservations made by any means including through a third-party.
  9. The defendant has not represented that it made the information available now on its website to all of the 13 third-party booking websites that plaintiff alleges are noncompliant.

 

IV

Thoughts/Takeaways

 

  1. Judge Howard agreed that the complaint adequately alleges standing for declaratory relief, but was doubtful that it sufficiently alleges standing to pursue injunctive relief. That said, Judge Howard did not file a separate opinion.
  2. I previously wrote a blog entry discussing a Seventh Circuit dissenting opinion arguing that emotional distress damages were a part of the Fair Debt Collection Practices Act, here. I argued that that dissenting opinion was a strong argument for the Supreme Court to distinguish tester standing under the Fair Housing Act from standing under title III of the ADA. In particular: 1) the Fair Housing Act has specific references to perceivable emotional harm within its statute but title III explicitly does not; 2) per Cummings, which we discussed here, the Rehabilitation Act does not allow for emotional distress damages; 3) since damages are not an element of title III of the ADA, it is impossible to show that damages are allowed under title III. Therefore, remedies incorporating an element of emotional distress have not been around for a long time; 4) the judgment of Congress pronged is going to be a difficult bar for a plaintiff to get over because of the statutory provisions of title III of the ADA, which doesn’t even allow for damages; 5) there is nothing in the ADA’s findings section explicitly addressing intangible harms. That is, you do not see language like you do in the Fair Debt Collection Practices Act that foreseeably lead to the conclusion that emotional distress is in play; 6) Justice Thomas’s private v. public right distinction that he discussed in TransUnion won’t help a person with a disability because disability discrimination is a public right.
  3. Emotional distress damages are not a thing under title III of the ADA. All you can get is injunctive relief and attorney fees. That raises a real question to my mind as to the dignitary harms suffered by the plaintiff being sufficient for a plaintiff to get standing because emotional distress damages are not a thing under title III.
  4. The court finesses the intent to return by suggesting that the proper analysis is an intent to return to the website and not to the hotel because the reservation rule involves a website and not the physical place. It’s an interesting argument taken by the court as I have not seen intent to return parsed that way before.
  5. Not every Code of Federal Regulations results in a private cause of action being available. See, Schmidt v. Pennymac Loan Services, LLC, 106 F. Supp. 3d 859 (E.D. Mich. 2015).
  6. TransUnion specifically said that a statutory injury by itself is not sufficient.
  7. Since the Fair Housing Act implicitly recognizes that emotional harms are in play when housing discrimination occurs but the ADA does not have any similar language, certainly not in title III, the Supreme Court decision in Havens Realty can be distinguished.
  8. The Supreme Court frequently narrows cases without explicitly doing so, particularly when Chief Justice Roberts was a swing vote.
  9. On a personal level, it is very unclear to me whether the hotel reservation rule really makes a difference for people with certain kinds of disabilities. I can’t tell you how often I go into a hotel room where the hotel simply does not understand what it means to have a room that is accessible to a deaf individual. It is not unusual for me to get into a back-and-forth with the hotel to explain to them that the room is not accessible even though they are convinced that it is. In other words, if a website were to tell me that a room was accessible to a deaf individual I wouldn’t believe it unless they were to list out what exactly is in that hotel room.
  10. The burden of showing standing is on the complainant, while the burden of showing mootness is on the defendant. Mootness was never easy to show and standing no longer is.
  11. I fully expect my colleague Richard Hunt to eventually blog on this case, and I look forward to reading his take on the First Circuit decision.
  12. This case is undoubtedly headed to the Supreme Court. Figuring out what the Supreme Court is going to do in disability discrimination matters is a fools errand. That said, for the reasons I discuss in this blog entry I do not like the chances of the plaintiff when it gets to the Supreme Court.

 

Go Braves!

Before getting started on the blog entry of the week, I want to wish the members of the Jewish faith celebrating Yom Kippur this week a pleasant fast if you are fasting’s as well as a pleasant end to the 10 days of reflection.

 

Also, I wanted to report that my case against LawPracticeCLE settled with a consent decree. I note the following:

 

  1. Before we could even get to the consent decree, we had to survive a motion to dismiss. The order denying the motion to dismiss is here and has some great language in it. It also provides very useful context.
  2. My attorney, John Waldo, Esq., did get his fees as part of the settlement, which is contained in a confidential side agreement. He did a fabulous job.
  3. The consent decree specifically states that online CLE providers are subject to §309 of the ADA, 42 U.S.C. §12189.
  4. The consent decree requires captioning for all programming as well as dial-in access and captioning for any live programming.

On a lighter note, if you have a team in the baseball playoffs, I wish your team the best of luck unless you are playing my team of course, the Atlanta Braves. For the first time in history, the National League East very well could have two teams with 100 wins in the same season. Congratulations to the Dodgers for 110 wins in a season. Only two teams in history have ever won more.

 

Our case of the day is Bax v. Doctors Medical Center of Modesto, Inc., here, A published decision from the Ninth Circuit decided September 12, 2022. The question presented by the case is whether the primary consideration rule found in title II of the ADA’s effective communication regulations applies to either §504 claims or to claims under the Affordable Care Act (ACA). As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that appropriate auxiliary aids and services were provided under §504; court’s reasoning that §504 does not contain title II of the ADA primary consideration rule; court’s reasoning that the ACA has a primary consideration rule but the rule was not applicable at the time of the occurrences; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Mark and Lucia Bax, a married couple, have each been deaf since early childhood. Mr. Bax considers his first language to be American Sign Language (ASL)1 and his second language to be English. Mrs. Bax considers her first language to be Spanish, her second language to be ASL, and her third language to be English. DMC is an acute care hospital in Modesto, California. Mr. Bax was a patient at DMC in October and November 2015, and Mrs. Bax accompanied him during his stays. Mrs. Bax was a DMC patient in January 2017, accompanied by Mr. Bax. During the period of the Baxes’ stays, DMC contracted with an interpreting service to provide in-person ASL interpreters for patients. DMC also contracted with another company to provide ASL interpretation via video remote interpreting (VRI)—an interpreting service that uses real-time, full-motion video and audio over a high-speed internet connection to permit a live ASL interpreter to communicate with a doctor and patient through a portable screen from a remote location. Mr. Bax received in-patient medical care at DMC from October 13 to 27, 2015, and November 12 to 18, 2015, to treat his diabetes and a wound infection on his foot, which required three surgeries and ultimately amputation of his left pinky toe. Mr. Bax’s treatment at DMC also included a 1 “ASL is a visual, three-dimensional, non-linear language, and its grammar and syntax differ from the grammar and syntax of English and other spoken languages.” EEOC v. UPS Supply Chain Sols., 620 F.3d 1103, 1105 (9th Cir. 2010). His treatment also included a diabetes diagnosis, physical therapy, and various patient education sessions concerning diabetes. During his fifteen-day October 2015 hospital stay, Mr. Bax requested an in-person interpreter on eight days. DMC provided an in-person interpreter on six of those days. On a seventh day, DMC attempted to use VRI to communicate with Mr. Bax, but the equipment malfunctioned due to internet connectivity issues, precluding meaningful communication with the remote interpreter. On the remaining day, DMC denied Mr. Bax’s request for an interpreter to translate a Medicare notice. In addition to using interpreters, DMC staff often communicated with the Baxes during Mr. Bax’s stay by writing notes, including to convey his diabetes diagnosis, conduct patient education sessions, and discuss postoperative care. Mr. Bax returned to DMC for a surgical follow-up appointment on November 12, 2015. He was ultimately hospitalized for seven days of treatment, including a third foot surgery. During this hospitalization, Mr. Bax requested an in-person interpreter on three days, and DMC provided an interpreter on each of those days. On November 13, DMC provided in-person interpretation during the day and VRI at night. Connectivity issues with the VRI, however, interfered with Mr. Bax’s ability to use it to communicate with DMC staff. On the remaining days of Mr. Bax’s November hospitalization, DMC staff communicated with him in writing, including for emergency room evaluation, diagnosis, treatment counseling, and patient education. On January 12, 2017, Mrs. Bax sought treatment at DMC’s emergency room for pain in her kidney, neck, and back, and was admitted to the hospital for a few hours. During her stay, Mrs. Bax communicated with an emergency room physician assistant via VRI.

 

The Baxes, along with co-Plaintiff Mary Birmingham, filed this action against DMC, alleging disability discrimination under (1) Title III of the ADA; (2) Section 504; (3) Section 1557 of the ACA; (4) the Unruh Act; and (5) the California Disabled Persons Act (CDPA), Cal. Civ. Code § 54 et seq. Plaintiffs sought declaratory and injunctive relief concerning DMC’s policies for providing communication aids, including interpreter services, for deaf or hard-of-hearing individuals. They also sought monetary damages and attorneys’ fees. The district court granted partial summary judgment to DMC and dismissed the CDPA claim, the Unruh Act claim (to the extent based on intentional discrimination), and Mrs. Bax’s compensatory damages claim under Section 504 and the ACA. The district court denied summary judgment on Mr. Bax’s compensatory damages claims under Section 504 and the ACA and on each Plaintiff’s “companion claims.”2 Plaintiff Birmingham’s claims were resolved by her acceptance of an offer of judgment under which the district court issued an injunction against DMC concerning its practices for communicating with deaf patients. 2 “Deaf persons are protected by the ADA and [Section 504] not only as patients, but also as companions to patients who are seeking treatment.” Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 830 n.3 (11th Cir. 2017) (citing 28 C.F.R. § 36.303(c)(1)); see also Ervine v. Desert View Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014) (same).

 

The Baxes and DMC proceeded to a bench trial on the four remaining claims—the ADA, Section 504, ACA, and (to the extent not based on intentional discrimination) Unruh Act claims. Over the course of three days, the district court heard testimony from nine witnesses and considered 132 exhibits. Of the Baxes, the district court stated that it found them to be “poor historians with contradicting and inconsistent accounts of what happened during their hospitalizations.” It also “question[ed] the[ir] credibility . . . as witnesses.” The district court ultimately issued findings of fact and conclusions of law in favor of DMC on all remaining claims and entered judgment for DMC. It concluded that DMC provided an in-person interpreter almost every time one had been requested and that DMC’s use of in-person interpreters and other communication methods, including VRI and note-writing, had afforded the Baxes effective communication under the relevant statutes. The Baxes timely appealed.

 

II

Court’s Reasoning That Appropriate Auxiliary Aids and Services Were Provided under §504 of the Rehabilitation Act

 

  1. When a person seeks compensatory damages under §504, intentional discrimination i.e. deliberate indifference must be shown.
  2. 504 regulations, 45 C.F.R. §84.4(b)(1),(2), says that to be equally effective, the aids, benefits, and services need not produce the identical result or level of achievement, but rather have to ensure that person with disabilities have an equal opportunity to obtain the same result, to gain the same benefit, and to reap the same level of achievement, in the most integrated setting appropriate to the person’s needs.
  3. Auxiliary aids, per 45 C.F.R. §84.52(d)(3), may include interpreters and other aids for persons with a hearing loss.
  4. Whether an entity provided appropriate auxiliary aids necessary to afford effective communication is a fact intensive exercise. Factors that must be weighed include: the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.
  5. The requirement that an entity provide effective communication does not mean that deaf patients are entitled to an on-site interpreter every time they ask for it. Instead, the test is whether an individual has received an auxiliary aid sufficient to prevent any real hindrance in her ability to exchange information.
  6. Claims under §504 are governed by the same substantive standard of liability as ADA claims. Therefore, ADA and §504 claims are often addressed together. Similarly, the court relies on ADA regulations to elaborate the substantive standard for effective communication under §504.
  7. Covered entities should consult with individuals with disabilities whenever possible in order to determine what type of auxiliary aid is needed to ensure effective communication.
  8. The ADA regulation, 28 C.F.R. §36.303(c)(1)(ii), applicable to places of public accommodations makes clear that the ultimate decision as to the ultimate auxiliary aid chosen lies with the place of public accommodation so long as the method chosen results in effective communication.
  9. Given the totality of the circumstances, the district court correctly concluded that the hospital effectively communicated with the plaintiffs through the course of their respective treatments using a variety of auxiliary aids, including in-person and remote interpreters and written notes.
  10. Isolated technical glitches do not necessarily establish ineffective communication. Also, credibility of witnesses matters.

 

III

Court’s Reasoning That §504 Does Not Contain Title II of the ADA Primary Consideration Rule

 

  1. DOJ regulation covering title II entities effective communication obligations, 28 C.F.R. §35.160(b)(2), states that such entities have to give primary consideration to the request of the individual with disabilities when determining what type of auxiliary aids to use. Giving primary consideration mean that a title II entity has to honor the person’s choice unless it can demonstrate that another equally effective means of communication is available, or that the use of the means chosen by the person requesting the modification will result in a fundamental alteration to the entity’s program or an undue burden.
  2. There are material differences between §504 and title II of the ADA.
  3. In promulgating regulations to implement the ADA title III, which covers places of public accommodations like Doctors Medical Center of Modesto, DOJ explicitly declined to apply the primary consideration rule to title III entities. DOJ guidance further stated that Congress did not intend under title III to impose upon a place of public accommodation the requirement that it give primary consideration to the request of an individual with a disability.
  4. Plaintiffs have not identified any language within §504 to support the contention that it contains a primary consideration requirement for all covered entities, regardless of whether they are an ADA title II public entity or an ADA title III place of public accommodations. Plaintiffs have not indicated that anything in §504 would support such a requirement.
  5. Under plaintiffs propose interpretation of §504, federally funded place of the public accommodations would be subject to a primary consideration requirement, a title II requirement, in direct contravention of Congress’s intention that such a rule not apply to those entities under the ADA.
  6. 504 was enacted well before title II primary consideration regulation was implemented. The primary consideration rule was promulgated in 1991 while §504 was enacted in 1973.

 

IV

The ACA Has a Primary Consideration Rule but That Rule Was Not Applicable at the Time of the Occurrences

 

  1. 1557 of the ACA, 42 U.S.C. §18116(a) provides that an individual shall not, on the ground prohibited under the Rehabilitation Act, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any health program or activity, any part of which is receiving federal financial assistance.
  2. On September 8, 2015, HHS proposed a rule applying title II’s effective communication standards, including the primary consideration rule, to title III entities such as the Doctors Medical Center of Modesto. In adopting the rule, HHS reasoned that it is appropriate to hold all recipients of federal financial assistance from HHS to the higher title II standard as a condition of their receipt of assistance and to hold HHS itself to the same standards to which the department subjects the recipients of its financial assistance.
  3. The HHS rule went into effect July 18, 2016, after Mr. Bax’s hospitalization.
  4. A proposed regulation is entitled to respect if it has the power to persuade. Factors relevant to persuasiveness include: the agency’s thoroughness; the validity of its reasoning; and its consistency with earlier and later pronouncements.
  5. While the rule certainly meets the persuasiveness test, primary consideration is an ADA title II rule and the plain text of §1557’s disability discrimination provision incorporates the Rehabilitation Act but not the ADA. Since, as mentioned above, the Rehabilitation Act does not contain a primary consideration requirement for title III entities, it doesn’t make sense to interpret the ACA as having imposed a primary consideration requirement before the HHS rule became effective. Cases from other circuits saying to the contrary are easily distinguishable.

 

V

Thoughts/Takeaways

 

  1. The ADA and §504 of the Rehabilitation Act are often said by the courts to be interpreted in the same way. However, differences between the two laws exist. In particular, causation, program accessibility, and the primary consideration rule are different.
  2. Another difference is compensatory damages. We know from Cummings, which we discussed here, that emotional distress damages are not available for §504 claims. It is an open question whether they are available for title II claims because the ADA and the Rehabilitation Act are different kinds of legislation (ADA is not spending clause legislation while the Rehabilitation Act is).
  3. As pointed out in the petition for rehearing for Cummings, it is a different situation when it comes to §501 claims. Looking at that statute, the statute clearly suggests that compensatory damages, including emotional distress claims, are available in §501 of the Rehabilitation Act claims. See 29 U.S.C. §791(f).
  4. The Deaf community absolutely despises VRI. However, the DOJ regulations and the DOJ are quite enamored of it. Thus, the applicability of the primary consideration rules matters a great deal.
  5. Whenever dealing with effective communication cases, it is really helpful if expert testimony regarding the English level abilities of a particular plaintiff is utilized.
  6. The Bax decision allows you to make the strong argument that whether appropriate auxiliary aids and services were provided is a question of fact not appropriate for summary judgment.
  7. §504 does not have a primary consideration rule while title II of the ADA does. Title III of the ADA explicitly does not contain a primary consideration rule.
  8. I have not yet read the cases distinguishing the applicability of the primary consideration rule to places of public accommodation. However, this opinion makes you wonder whether a circuit court split exists. I will have to undertake further analysis to see whether I believe that is the case.
  9. The decision quotes Silva I numerous times. We discussed Silva I here. Silva I is must reading for anyone dealing with an effective communication issue.
  10. The ACA, since July 18, 2016, does have a primary consideration rule.
  11. For a discussion of deliberate indifference, see this blog entry discussing the leading case on the question.
  12. I have been blogging quite a bit lately about cases involving Andrew Rozynski of Eisenberg & Baum LLP. He is doing absolutely fascinating work in the area of deaf rights.

Before getting started on the blog entry for the week, I want to wish all those celebrating, a happy Jewish new year.

 

The blog entry of the week comes from an unpublished decision from the 11th Circuit decided on September 19, 2022, Sugg v. City of Sunrise. It deals with the following questions: is it sufficient to establish a disability if it is just the plaintiff that testifies; is a failure to accommodate a separate cause of action; and does a failure to accommodate case require an adverse action. Keep in mind, that this court holds explicitly that a plaintiff by himself can establish the disability. As the case is decided, the only conclusion that can be reached is that a failure to accommodate cause of action in the 11th Circuit is a separate cause of action that does not require an adverse action beyond the failure to accommodate. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiff properly exhausted administrative remedies with respect to his retaliation claim, but the claim fails because of the lack of causation; court’s reasoning that a plaintiff may establish an ADA disability with his own testimony; court erred by ignoring plaintiff’s own testimony about his request for reasonable accommodation; court’s reasoning that plaintiff’s claim that he was terminated because of the disability failed for lack of causation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

In May 2014, Sugg was officially hired as the Chief Electrical Inspector for the City of Sunrise. He was employed on a probationary basis for a nine-month term. City of Sunrise probationary employees can be terminated at any time and for any reason during their probationary period, so long as the reason is not illegal or unlawful.

 

In October 2014, about five months into the probationary period, Sugg suffered a heart attack. He was hospitalized for four days and was on leave for two weeks following his discharge. Two days into his recovery, Sugg’s name was no longer listed on the website under the title of Chief Electrical Inspector. In its place was the name of Brian Epstein, a Broward County employee. The City of Sunrise claims the probationary period is vital to its employment process and its purpose was to “evaluate [Sugg’s] performance as the City’s Chief Electrical Inspector and to determine whether [he] was a good fit to maintain future employment with the City.” Sugg claims that the City of Sunrise had a “Prolonged Observation Period” through his employment with Broward County, and that his probationary employment status was just a formality.  According to the City of Sunrise, this change was required as the Board of Rules and Appeals (“BORA”) regulations require a Chief Electrical Inspector to be in place at all times, so the City of Sunrise needed to appoint someone sometime during his recovery, Sugg was decertified as a Chief Electrical Inspector. According to the City of Sunrise, this decertification was required because Christopher Augustin—who took over as Building Official during Sugg’s recovery—discovered that Sugg was missing a necessary BORA certification to serve as Chief Electrical Inspector. And Augustin also testified that Sugg’s certification had lapsed, and he encouraged Sugg to fill out the necessary paperwork to become recertified.

 

Upon his return to work, Sugg “noticed that management was treating him differently.” Sugg testified that Steve Busick, a City Plans Examiner and Inspector, told him he “better watch [his] back” and “they’re after you.” Sugg’s doctor provided a note that stated he could return to work on October 22, 2014, “on light duty.” Sugg says he gave a copy of the doctor’s note to the newly appointed Building Official, Chris Augustin, and to then-Director Lubelski’s assistant. Sugg followed up with an email to Lubelski stating he was back at work on “light duty” and that he gave the doctor’s note to Lubeski’s during Sugg’s absence. But Sugg contends that the BORA regulations also provide that the City Plans Examiner “shall” fill in during a Chief Electrical Inspector’s absence. The City Plans Examiner at the time was Ed Wanamaker. Sugg contends that other Chiefs had been absent longer than he, without being replaced or removed from the website. Lubelski replied later that day, welcoming Sugg back and stating, “If there is anything you need, please let me know.” The City of Sunrise had a policy of allowing employees to accept donated leave time from other employees. Although Lubelski asked Sugg if he would like employees to donate leave time, Lubelski told him one week later that he did not qualify to receive leave donations. Sugg claimed several other employees had received donated leave time, including an employee who had a heart condition. Sometime during the remaining four months of his probationary employment Sugg was involved in an altercation with a City Plans Examiner, Ed Wanamaker. Sugg had performed an employment evaluation of Wanamaker on behalf of the City and Wanamaker was displeased with his evaluation. The conversation got heated; both men claim that the other acted aggressively and they both feared the other would become violent.

 

Having been decertified since October 2014, Sugg completed the necessary paperwork to once again be listed as the City’s Chief Electrical Inspector in January 2015. BORA approves such recertifications, and Sugg’s recertification was on its consent agenda for February 12, 2015. At the meeting, Sugg was recertified as the City’s Chief Electrical Inspector without issue. That same day, Sugg emailed then-Department Director Shannon Ley and his direct supervisor, Augustin, wanting to know if February 13, 2015, which was the last day of his probationary period, would be his last day of employment, given that he had not received any further information from Human Resources about approving his permanent employment. Without a response to his email, he was discharged by the City on February 13, being told only that he was “not a good fit.” Ley was the department Director at that time and thus the final decisionmaker on Sugg’s termination, though she made the decision with input from former Director Lubelski and Augustin. The City claimed that Ley, Lubelski, and Augustin all agreed that Sugg “was not a good fit” based on Sugg’s alleged use of “vulgar and offensive language in the workplace,” “abrasive encounters with co-workers,” “receipt of customer complaints,” and Sugg’s “significant confrontation with Wanamaker where he aggressively got in Wanamaker’s face.” However, Sugg claims that two people later told Sugg he was terminated because of his heart attack: Broward County Building Official Jack Fisher and the previous Building Official, Dennis Pustizzi.

Sugg testified that he did not know that his heart condition could be a disability under the ADA until after he left the City’s employ. About a month before filing his EEOC charge, Sugg was listening to the radio and heard about an employee who was fired because of his heart condition; he “knew at that point that [he] was covered” by the ADA. Sugg filed a charge with the EEOC about seven months after his discharge, on September 15, 2015.

 

The EEOC charge form included a series of boxes listing different kinds of discrimination under the heading “DISCRIMINATION BASED ON (Check appropriate box(es).)” Sugg checked the “disability” box and left the “retaliation” box unchecked. In the area titled, “THE PARTICULARS ARE,” he wrote:

 

“I am a qualified individual with a disability. I was admitted to the hospital on 10/9/14. I was immediately removed from my position as Chief Electrical Inspector. When I returned to work, I requested but was denied a reasonable accommodation on 11/9/14 from Mark Lubelski, Assistant City Manager. My duties were taken from me, I was demoted and I was terminated on 2/13/15. I believe I was discriminated against because of my disability in violation of The Americans With Disabilities Act of 1990, as amended.”

 

On August 28, 2019, Sugg received a “Notice of Right to Sue” from the Civil Rights Division of the U.S. Department of Justice about his EEOC charge. He filed his initial complaint on November 19, 2019. His amended complaint claimed he exhausted administrative remedies with the EEOC and alleged two counts under the ADA: Count I for disability discrimination and Count II for retaliation for exercising his rights under the ADA. The City filed a Rule 12(b)(6) motion to dismiss on both counts. The district court denied the City of Sunrise’s motion to dismiss the disability discrimination claim (Count I) but granted its motion to dismiss the retaliation claim (Count II) for failure to exhaust his administrative remedies by failing to check the retaliation box on his EEOC charge. The district court did not reach the City’s alternative argument that Sugg failed to properly plead his retaliation claim. The City of Sunrise moved for summary judgment on Sugg’s disability discrimination claims. The district court granted the City’s motion for summary judgment after finding that (1) Sugg failed to produce sufficient evidence that he was disabled under the ADA; (2) Sugg’s “self-serving declaration and his own deposition testimony” were not sufficient to establish a genuine dispute as to whether he requested a reasonable accommodation, and moreover his purported requests were not “specific and identifiable”; and (3) there was no evidence of discriminatory intent for Sugg’s termination. Sugg timely appealed both the dismissal of his retaliation claim and the grant of summary judgment for the City of Sunrise on his discrimination claims.

 

II

Court’s Reasoning That Plaintiff Properly Exhausted Administrative Remedies with Respect to His Retaliation Claim, But the Claim Fails Because of Lack of Causation.

 

  1. Courts are extremely reluctant to allow procedural technicalities to bar claims brought under discrimination statutes. Accordingly, courts have held that the scope of an EEOC complaint should not be strictly interpreted.
  2. A party whose EEOC charge is only based on discrimination can also claim retaliation in a complaint filed in court if the facts alleged in the EEOC charge could have reasonably been extended to encompass a claim for retaliation because they were completely intertwined with the complaint of discrimination.
  3. Defendant agrees that plaintiff’s ADA retaliation claim could have reasonably grown out of his charge for discrimination.
  4. The 11th Circuit has held that a lapse of three months between the protected activity and the retaliation is too long to satisfy the causation element of a retaliation claim absent other evidence. In this case, plaintiff fails to allege any facts supporting the claim that other evidence existed aside from the three-month proximity to his termination.

 

III

Court’s Reasoning That a Plaintiff May Establish Disability with His Own Testimony

 

  1. The ADA directs that disability be construed in favor of broad coverage.
  2. Per 29 C.F.R. §1630.2 (j)(1)(ii), an impairment rises to the level of a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
  3. Substantial limitation must be construed broadly in favor of expansive coverage.
  4. Per 29 C.F.R. §1630.2(j)(1)(i)-(iii) and 42 U.S.C. §12102(4)(B), determining whether an impairment is substantially limiting does not demand extensive analysis.
  5. Major life activities include all kinds of activities and also includes the operation of a major bodily function, including but not limited to circulatory (also called cardiovascular) functions. 42 U.S.C. §§12102(2)(A), (B); 29 C.F.R. §§1630.2(i)(1)(i), (ii).
  6. 11th Circuit precedent requires that a plaintiff’s evidence of disability include the timing, frequency, and duration of his impairments in order to survive summary judgment.
  7. In the absence of any citation to a case from the 11th Circuit, the court declined to find that a diagnosis based solely on self-described complaints or subjective pain cannot qualify as a disabling impairment under the ADA.
  8. As the regulations accompanying the ADA do not require medical evidence to establish a disability, plaintiff’s own testimony is sufficient where it would allow a jury to reasonably determine that the plaintiff was a person with a disability under the ADA.
  9. Plaintiff presented declaration from two doctors to establish that he was a person with a disability. In particular, he submitted declarations from his cardiologist and his primary care physician.
  10. Even though the declarations from his doctors were rather conclusory, plaintiff’s own testimony was not conclusory at all. He testified that he was diagnosed with heart disease at the emergency room following his heart attack. Heart disease satisfies the low threshold of impairment under the ADA.
  11. Plaintiff also testified how his heart disease and corresponding heart attack limited his daily activities. In particular he talked about how his ability to lift things was so limited that he could not lift anything and that he could not move things like pieces of drywall. He also testified that he could only go like 15 minutes spurts before having to stop to catch his breath. Therefore, plaintiff specifically alleged enough non-conclusory information so that a jury could reasonably find that his heart disease is substantially limited in the major life activities of at least lifting and walking.

 

IV

Court Erred By Ignoring Plaintiff’s Own Testimony about His Request for Reasonable Accommodation

 

  1. The ADA explicitly provides a cause of action to disabled otherwise qualified individuals denied reasonable accommodations.
  2. The term “discriminate against a qualified individual on the basis of disability,” includes not making a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an employee in the absence of an undue hardship on the operation of the business.
  3. Triggering an employer’s duty to provide a reasonable accommodation does mean that the plaintiff must make a specific demand for such an accommodation.
  4. The plaintiff has the burden of showing that the accommodation allows him to perform the job’s essential functions-i.e. that the accommodation is reasonable.
  5. While the 11th Circuit has not determined precisely what form a demand for an accommodation must take, whatever the precise standard may be it is not a demanding one.
  6. A plaintiff must at least provide enough information so that the employer can be fairly said to know of both the disability and the desire for an accommodation.
  7. The record shows that around November 10, 2014, plaintiff requested to work from home but the City denied that request without any consideration or dialogue. His deposition testimony was quite clear that he requested to work from home, though he would have preferred to stay in the office on light duty. His deposition testimony was also clear that he supported those requests by referring to his disability. Accordingly, plaintiff made more than one specific demand for accommodation and notified the City of Sunrise multiple ways to accommodate his limitations. He also established the reasonableness of the accommodation by showing that the applicable regulations explicitly provided that the chief electrical inspector did not have to be personally present at the governmental department as long as that person was available by telephone, computer, etc. and could perform their duties.

 

V

Court’s Reasoning That Plaintiff’s Claim That He Was Terminated Because of His Disability Failed for a Lack of Causation

 

  1. Plaintiff does not allege that there was any change in his compensation and his attorney conceded at oral argument that his duties never changed either. It was a demotion in name and not in practice.
  2. Plaintiff does not claim that his request for leave was ever denied.
  3. Plaintiff’s claim that two other individuals told him that he was fired because of his disability does not hold up on further analysis because one does not work for the defendant and the other died before his deposition.

 

VI

Thoughts/Takeaways

 

  1. I usually don’t focus on the conclusion of an opinion because it just states in legalese the result of a court’s reasoning. However, the conclusion of the court in this case is very important. More specifically, the court said:

 

For all these reasons, we affirm the district court’s dismissal of Sugg’s retaliation claim, not for failure to exhaust administrative remedies, but for failing to state a plausible claim for relief. We reverse the district court’s grant of summary judgment on his reasonable accommodation theory of discrimination because genuine issues of fact exist as to (1) whether Sugg was disabled and (2) whether he requested a reasonable accommodation. And we affirm summary judgment on all other theories of discrimination because Sugg could not show discriminatory intent. REVERSED IN PART AND AFFIRMED IN PART.

 

A plain reading of this conclusion can only mean that a failure to accommodate cause of action is a separate cause of action and does not require an adverse action to support it because the failure to accommodate claim survived while the discrimination based upon disability failed due to lack of an adverse action.

 

  1. In this particular case, the plaintiff was able to essentially supplement the declarations of his doctors with his own testimony so as to establish a disability. As a matter of best practices on the plaintiff side, it is a really good idea for declarations of healthcare providers to be as specific as possible with respect to any physical or mental impairment and how that physical or mental impairment limits the plaintiff’s major life activities.
  2. A plaintiff is able to establish a disability under the ADA directly with his/her/they testimony.
  3. There is a case pending before the 11th Circuit that was just argued asking the question whether a failure to accommodate claim requires an additional adverse action or whether the failure to accommodate claim is an adverse action by itself/does not require an adverse action. It will be interesting to see what that panel of the 11th Circuit decides in light of Sugg. The disposition of Sugg in my opinion, can only be read to say that a failure to accommodate claim is a separate cause of action and that no additional adverse action besides the failure to accommodate is necessary for the claim to go forward. If the panel hearing the case that was just argued decides otherwise, it will be interesting to see where it goes from there because you then arguably have two different panels of the same circuit reaching opposite conclusions. In that situation, most circuits will automatically grant a rehearing en banc.
  4. Sugg is an unpublished decision and will be interesting to see whether it gets mentioned by the panel hearing the case just argued about whether a failure to accommodate claim requires a separate adverse action. It will also be interesting to see whether that pending decision is designated for publication or not.
  5. The ADA applies to probationary employees.
  6. EEOC charges are not strictly construed against the charging party.
  7. Magic words are not required to trigger the interactive process. It does not take a high bar to trigger the interactive process.
  8. The Circuit Courts are split on whether a failure to accommodate is a separate cause of action. Courts also go both ways on whether failure to accommodate claims require an adverse action beyond the failure to accommodate.
  9. On a personal note, I can say that as a person with a disability who makes reasonable modification/accommodation requests for my own disabilities all the time, that the failure to accommodate always has an adverse effect on me. For example, my stress levels go way up if I have to stay in a hotel room by myself that is not meaningfully accessible to a deaf person (happens to me all the time when I travel. In fact, I am amazed when it doesn’t happen to me when I travel). It is not only a matter of stress but it creates a dangerous situation during the overnight hours. If a failure to accommodate requires an independent adverse action, do I even have standing because title III does not allow for damages. Similar thought process for an entity that takes federal funds as a result of Cummings, which we discussed here. It may or may not be a similar thought process (§504 is spending clause legislation but title II is not), for a title II entity as well.

Today’s blog entry is a case sent to me by Prof. Leonard Sandler, a clinical law professor at the University of Iowa. The case of the day is Wilds v. Akhi LLC decided on July 29, 2022 by Magistrate Judge Jones of the Northern District of Florida. It deals with the question of what happens when a person with a service animal shows up at the federal courthouse with his service animal not on a leash. Plaintiff alleged that the animal was under his control and could not be on a leash in order to best compensate for his disability as he has blackouts. The security agency refused to let him in the federal courthouse. So, he sues alleging violation of the ADA and state law claims. As usual, the blog entry is divided into categories and they are: Federal Buildings Are Exempt from the ADA and a Federal Courthouse Is Not a Place of Public Accommodation; While Plaintiff Has a Constitutional Right of Access to the Courts, He Cannot Enforce That Right against the Defendants under §1983 or under Bivens; While No Private Cause of Action Exists under Florida Statute §1413.08(3), Plaintiff Does Have the Ability to Sue for Damages for Violations of the Florida Civil Rights Act; and Thoughts/Takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Federal Buildings Are Exempt from the ADA and a Federal Courthouse Is Not a Place of Public Accommodation

 

  1. Only one Federal District Ct. has addressed the question of whether a federal courthouse constitutes a place of public accommodation under title III of the ADA. That court held that a federal courthouse was not a public accommodation.
  2. The lack of case law on whether a federal courthouse constitutes a public accommodation under title III of the ADA is likely because federal governmental buildings are generally exempt from the ADA.
  3. Federal buildings are governed by the Architectural Barriers Act of 1968.
  4. The Architectural Barriers Act does not provide a private right of action and courts have refused to imply one.
  5. An aggrieved person under the Architectural Barriers Act may file a complaint with the U.S. Access Board regarding any alleged Architectural Barriers Act violation.
  6. Courts allowing a private cause of action under the Architectural Barriers Act, have insisted that a litigant must first exhaust his administrative remedies with the Architectural Barriers Board before filing suit in federal court. Accordingly, a remedy the plaintiff has is to file a complaint with the Access Board.

 

II

While Plaintiff Has a Constitutional Right of Access to the Courts, He Cannot Enforce That Right against the Defendants under §1983 or under Bivens

 

  1. The defendants, the security companies providing security services to this particular federal court, are not state actors.
  2. The United States Supreme Court has refused to extend Bivens to private entities.
  3. Defendants are federal contractors and §1983 does not provide a cause of action against a federal official or contractor.
  4. By its own terms, §1983 only applies to state actors acting under color of state law and not to federal actors acting under color of federal law.
  5. A Bivens claim is available when a federal actor violates a plaintiff’s federal rights while acting under color of federal law. However, the United States Supreme Court has refused to extend Bivens liability to private entities that contract with the federal government.
  6. Since the purpose of Bivens is to deter individual federal officers from committing constitutional violations, inferring a constitutional tort remedy against a private entity is not possible.
  7. The defendants are private security companies providing security services for U.S. District Court for the Northern District of Florida in the Gainesville division under a federal contract.
  8. The Supreme Court has said that merely private conduct, no matter how discriminatory or wrongful, does not constitute state or federal action and is excluded from §1983 or Bivens.

 

III

While No Private Cause of Action Exists under Florida Statute §413.08(3), Plaintiff Does Have the Ability to Sue for Damages for Violations of the Florida Civil Rights Act

 

  1. Florida courts have refused to recognize a private right of action under §413.08 of the Florida statutes.
  2. Plaintiff may seek relief under Florida statute §760.01.
  3. The Florida Civil Rights Act provides a mechanism to obtain private relief and damages under §413.08 because §760.07 states that any violation of any Florida statute making discrimination unlawful gives rise to a cause of action for damages.
  4. Since plaintiff is proceeding pro se, the court construes a state law claims for violations of §413.08(3) to arise under the Florida Civil Rights Act.
  5. Whether plaintiff can bring a Florida Civil Rights Act claim against defendants denying him access to a federal building is a question that should be decided by Florida courts and not the federal court because plaintiff has no federal claim.
  6. A court should decline to exercise supplemental jurisdiction over state law claim when the court is dismissing all federal causes of action.
  7. In a footnote, the court noted that even if a federal courthouse was somehow considered to be a place of public accommodation under title III, the particular defendants sued in this case do not own, lease, or operate it. Instead, federal courthouses are owned and operated by the Gen. Services Administration of the United States government. Also, very few courts have considered whether security officers can be characterized as owners, lessors, or operators under title III of the ADA and those that did decided in the negative.
  8. In another footnote, the court noted that the Supreme Court recognize a constitutional right of access to the courts arising under the 14th amendment in the case of Tennessee v. Lane. Florida courts have recognized a number of affirmative obligation flowing from that principle, including: the duty to waive filing fees and in certain family law and criminal cases; the duty to provide transcript to criminal defendants seeking review of their conviction; and the duty to provide counsel to certain criminal defendants. Each of those cases make clear that ordinary considerations of cost and convenience alone cannot justify a State’s failure to provide individuals with meaningful right of access to the courts.
  9. In another footnote, the court notes that the Florida Civil Rights Act has exhaustion requirements.

IV

Thoughts/Takeaways

 

  1. I cannot see how federal courthouses can be a place of public accommodation.
  2. Courts are split on whether the Architectural Barriers Act allows for a private cause of action. At a minimum, a person would need to exhaust administrative remedies first before filing such a suit, assuming such a suit flies in the first place.
  3. Bivens and §1983 are of no help to a plaintiff faced with a similar situation.
  4. State law is something plaintiffs lawyers should look to when dealing with disability discrimination matters. They sometimes go further than federal law or are applied more broadly.
  5. About a month after this decision, the U.S. District Court accepted the magistrate’s report without objections from the parties.
  6. The General Services Administration is an executive agency. So, one wonders why a plaintiff when faced with this situation would not pursue a claim under §504 of the Rehabilitation Act. See for example, Bartell v. Grifols Shared Servs. NA, 1:21CV953 (M.D.N.C. Aug. 15, 2022)-holding that the Rehabilitation Act and the ADA get interpreted the same way when it comes to service animals.
  7. The court did direct the clerk to conduct a reasonable investigation, whatever that means, to see whether plaintiff’s request that he be permitted to enter the courthouse building with his service dog unleashed could be accommodated.

Before we get to the blog entry of the week, a housekeeping matter. I will be out of the office from Friday evening and returning late Tuesday. So, a blog entry for the week after this will come up later in that week rather than earlier to middle of the week as is usually the case.

 

Our case of the day is Luke v. State of Texas, here, a published decision from August 19, 2022. The case asked the question about whether denying a culturally deaf individual, Deaf, an interpreter during his criminal proceedings violates the ADA. The Fifth Circuit holds that it does. As usual the blog entry is divided into categories and they are: facts; court’s reasoning on sovereign immunity and that Luke did adequately state a claim for violating title II of the ADA; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Like many Deaf individuals, Luke has trouble speaking and reading English. He also has difficulty lip reading. In order to effectively communicate, Luke requires an American Sign Language (ASL) interpreter.

 

Such an interpreter was never provided during Luke’s case for marijuana possession. No interpreter was provided the night of his arrest during a traffic stop, even though his mother, who was watching the scene via FaceTime, urged the officers to provide him with one. No interpreter was present when Luke was booked and detained at Lee County Jail. Nor was one present when a Lee County justice of the peace arraigned him and released him on bond. No interpreter ever explained to Luke his legal rights, the charges against him, or the terms and conditions of his bail.

 

The county court said that an interpreter would be provided for the hearing at which Luke was going to plead guilty in exchange for one year of probation. But the court did not follow through on that commitment. Instead, it insisted that Luke’s mother, who has only basic knowledge of sign language, interpret for her son during the hearing. Thus, no qualified interpreter ever explained to Luke the terms of his probation.

 

Luke’s experience on probation, which began with Lee County’s Community Supervision Corrections Department but was later transferred to San Jacinto County’s, was more of the same. Neither department provided Luke with an interpreter for his meetings with probation officers. Just like at the hearing, the probation officers instead had Luke’s mother interpret for him. No qualified interpreter ever explained to Luke what happened during those meetings or whether he was satisfying the terms of his probation.

 

Contending that the lack of interpreters left him “isolated and confused” during the criminal proceedings, Luke sued the following entities under Title II of the Americans with Disabilities Act: (1) Lee County, which operated the jail and court; (2) the Community Supervision and Corrections Departments of both Lee County and San Jacinto County (the “Supervision Departments”), the Texas state agencies that oversaw his probation; and (3) the State of Texas. Luke sought injunctive relief against the Supervision Departments and the State of Texas and compensatory and nominal damages from all defendants.

 

The District Court wound up concluding that the supervision department enjoyed sovereign immunity. It also granted Lee County’s motion for judgment on the pleadings for the same reason. It granted the state of Texas motion to dismiss for improper service of process because Luke serve the wrong Texas official. Luke appealed.

 

II

 

Court’s Reasoning on Sovereign Immunity and That Luke Did Adequately State a Claim for Violating Title II of the ADA

 

 

  1. Lee County is a political subdivision of Texas and not an arm of the State. Therefore, it does not enjoy state sovereign immunity.
  2. To make out a claim under title II of the ADA, Luke had to show: 1) that he is a qualified individual with a disability; 2) that he was excluded from participation in, or denied the benefits of, services, program, or activities for which the public entity is responsible, or was otherwise being discriminated against; and 3) that such discrimination is because of his disability.
  3. Luke’s deafness makes him a qualified individual with a disability.
  4. Luke can show that he was discriminated against because of his disability as both Lee County and the Supervision Departments knew he was Deaf yet failed to provide an accommodation despite multiple requests for an interpreter.
  5. Title II regulations, 28 C.F.R. §35.160(b)(1), lists auxiliary aids, which include qualified interpreters, as reasonable accommodations that public entities have to provide when necessary.
  6. Luke also alleged that he was denied the benefit of meaningful access to public services. In particular he alleged that he was not able to understand his legal rights or effectively communicate throughout his proceedings. Not being able to understand a court hearing or a meeting with the probation officer is by definition a lack of meaningful access to those public services.
  7. Citing to Tennessee v. Lane, the court said that a core purpose of title II is for public entities to accommodate persons with disabilities in the administration of justice.
  8. A theory that Luke was not denied a public service because he successfully completed his probation anyway is entirely inconsistent with the ADA. Nothing in the ADA’s text or the case law applying it requires Luke to have alleged a bad outcome. There is a good reason for that because lack of meaningful access itself is the harm under title II regardless of whether any additional injury follows. Luke’s title II injury is not being able to understand the judges and probation officers as a defendant who is not Deaf would.
  9. Under the District Court’s reasoning, the state could refuse to provide an ASL interpreter for a culturally deaf individual’s trial and then avoid title II liability if the defendant is acquitted. It simply doesn’t work that way and courts have rightly rejected that position.
  10. While it is true that the positive outcome of Luke’s criminal case may affect his damages, that does not allow courts to escape their ADA obligations.
  11. The argument that Luke’s mother served as an interpreter means there was no ADA violation doesn’t wash either for several reasons: 1) his mother knows only basic sign language. So, his mother’s involvement would not have fully informed him of the proceedings or otherwise provide the meaningful access the ADA requires; and 2) if one considers 28 C.F.R. §35.160(c)(2) public entities cannot force a person with a disability’s family member to provide the interpretation services for which the entity is responsible.
  12. Since Luke sufficiently stated a title II claim, his claim against Lee County gets past the pleading stage.
  13. With respect to the Supervision Departments, Luke clearly satisfied the first step of the sovereign immunity abrogation elements in that he clearly stated violations of title II. However, it remains for the District Court on remand after full briefing and consideration to determine whether the misconduct also violated the 14th amendment and if not, whether Congress’s abrogation of sovereign immunity to that particular conduct was nevertheless valid.
  14. With respect to the State of Texas, Luke did indeed serve the wrong officer. Therefore, Texas is dismissed from the case.
  15. The District Court erred when it said that Luke failed to specifically allege facts supporting compensatory damages. Luke alleged that not being able to understand the proceedings against him caused him fear, anxiety, indignity, and humiliation.
  16. In a footnote, the court noted that it is a separate issue whether compensatory damages are available to title II plaintiffs at all because of Cummings v. Premier Rehab Keller, which we discussed here. It is up to the District Court on remand to decide what effect if any Cummings has on Luke’s ability to recover emotional distress damages under title II. Regardless, Luke also seeks nominal damages.
  17. In another footnote, the court noted that meaningful access is a standard that comes from the Supreme Court in a Rehabilitation Act case. However, the ADA and Rehabilitation Act are interpreted the same way. So, that standard applies equally to the ADA.

 

III

Thoughts/Takeaways

 

  1. For sovereign immunity to apply, an entity must be an arm of the State. Political subdivisions do not get the benefit of sovereign immunity.
  2. Communication with a culturally deaf individual must be effective communication as we discussed in this blog entry.
  3. Tennessee v. Lane did hold that when it comes to accessing the courts people with disabilities are at least in the intermediate scrutiny category if not higher with respect to equal protection jurisprudence.
  4. The lack of meaningful access itself is the harm under title II and an injury is not required. So, by way of analogy you might also be able to argue that a failure to accommodate in a title I case does not require an adverse action.
  5. Escaping damages under the ADA is not the same as escaping liability.
  6. When we discussed Cummings v. Premier Rehab Keller, a question I raised was whether damages under title II are ever in play because title II’s remedies are hooked into the Rehabilitation Act remedies. This case specifically mentions that Cummings may preclude damages for violations of title II of the ADA. The court did note that nominal damages would still be in play even so. It will be interesting to see how this plays out.
  7. Both title II and title III of the ADA work off a meaningful access standard.
  8. Remember, as we discussed here, that ADA causation is undoubtedly not sole cause.
  9. As we discussed here, the ADA is a nondelegable duty.

We just moved our daughter into college this week and are back home now. Now, the roller coaster begins. So far so good. One thing I did realize is that I now have about an extra 15 hours per week I calculated. My brother says that I should get a new hobby, but I already love legal writing. I do look forward to having the ability to do more trainings and to take on more matters.

 

When a case comes down, it usually doesn’t have much of a shelf life before people move on to other things. William v. Kincaid, here, is not such a case. I am still seeing people blogging on it, and I am still getting Google alerts on this case even though it came down August 16, 2022. By now, you may already know what this case is. The case is the Fourth Circuit published decision saying that gender dysphoria is protected under the ADA. There was also a statute of limitation question and the question of whether gross negligence had been sufficiently alleged. We are not going to focus on those two questions. Finally, there was a concurrence/dissenting opinion as well. As with the majority opinion, we will just focus on the ADA part of the concurrence/dissent. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that gender dysphoria is not covered by the gender identity disorder exclusion in the ADA; court’s reasoning that gender dysphoria in this case may very well be based upon a physical impairment; Judge Quattlebaum’s concurrence/dissent; and if I were on the panel and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Kesha Williams, a transgender woman with gender dysphoria who had not undergone trans feminine bottom surgery, spent six months incarcerated in the Fairfax County Adult Detention Center. Though prison deputies initially assigned her to women’s housing, they quickly moved her to men’s housing when they learned she was transgender. There, she experienced delays in medical treatment for her gender dysphoria, harassment by other inmates, and persistent and intentional misgendering and harassment by prison deputies. Following her release from the detention center, Williams filed a § 1983 action against the Sheriff of Fairfax County, a prison deputy, and a prison nurse alleging violations of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, the United States Constitution, and state common law. The district court dismissed the case, holding that the complaint failed to state grounds for relief with respect to some claims and that the statute of limitations barred others.

 

For those interested in the specific facts, the opinion goes into greater detail. Considering you are talking about a transgender inmate who had not undergone bottom surgery even though she had been on hormone for years, I can’t say any of things that happened to her were particularly surprising.

 

II

 

Court’s Reasoning That Gender Dysphoria Is Not Covered by the Gender Identity Disorder Exclusion in the ADA

 

  1. The ADA, 42 U.S.C. §12211(b), excludes from the ADA coverage transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorder not resulting from physical impairments, and other sexual disorders as well as compulsive gambling, kleptomania, pyromania, or psycho active substance use disorders resulting from current illegal use of drugs.
  2. In 2008, Congress amended the ADA and stated that the ADA needs to be construed in favor of broad coverage of individuals to the maximum extent permitted. They also said that courts need to construe the ADA as amended as broadly as possible, which also means that courts must construe the exclusions narrowly.
  3. The text of the ADA does not define the term gender identity disorders and does not mention gender dysphoria at all.
  4. Looking at the meaning of the ADA’s terms at the time of its enactment, leads to the conclusion that gender identity disorders did not include gender dysphoria.
  5. In 1990, the medical community did not acknowledge gender dysphoria either as an independent diagnosis or as a subset of any other condition.
  6. In 2013, the American Psychiatric Association decided to remove gender identity disorders from the DSM manual. At the same time it added a diagnosis of gender dysphoria, which did not exist as a diagnosis in 1990.
  7. The very fact of revision mean that a meaningful difference exists between gender identity disorder and gender dysphoria and that difference is more than just semantic. In fact, the definition of gender dysphoria differs dramatically from the now rejected diagnosis of gender identity disorder. Rather than focusing on gender identity, gender dysphoria focuses on clinically significant distress felt by some of those experiencing an incongruence between the gender identity and their assigned sex. In a footnote, the court notes that WPATH (World Professional Association for Transgender Health), standard also focuses on the discomfort or distress caused by a discrepancy between a person’s gender identity and the persons assigned sex at birth.
  8. Being trans alone does not sustain a diagnosis of gender dysphoria under the DSM 5 as a code for a diagnosis of gender identity disorder under the earlier versions of the DSM.
  9. The Fourth Circuit and other courts have explained that a diagnosis of gender dysphoria unlike that of gender identity disorder concerns deals primarily with distress and other disabling symptoms rather than simply being transgender.
  10. Not only are gender identity disorder and gender dysphoria characterized by different symptoms, they affect different populations. That is, gender dysphoria is a disability suffered by many but certainly not all transgender people, since many transgender individuals are completely comfortable living with an incongruence between the gender identity and their assigned sex.
  11. Gender nonconformity is not in itself a mental disorder.
  12. The ADA excludes from its protection anything falling within the plain meaning of gender identity disorders as the term was understood at the time of its enactment. However, nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a gender identity disorder excluded from ADA protection.
  13. Given Congress expressed instruction that courts construe the ADA in favor of maximum protection for those with disabilities, it is not proper to adopt an unnecessarily restrictive reading of the ADA. To do otherwise would mean that the court would pencil in a new condition into the list of exclusions in the ADA. It would also erase Congress’ command to construe the ADA as broadly at the text permits.
  14. A growing number of district courts have reached the conclusion that gender dysphoria and gender identity disorder are not at all the same thing.

 

III

Court’s Reasoning That Gender Dysphoria in This Case May Very Well Be Based upon a Physical Impairment

 

  1. The ADA does not define the phrase, “physical impairments.”
  2. EEOC has promulgated regulations, 28 C.F.R. §35.108(b)(1)(i), defining the term expansively as any physiological disorder or condition affecting one or more body systems, such as neurological and endocrine. The court must defer to the EEOC’s reasonable interpretations of ambiguous terms in the ADA.
  3. Plaintiff has alleged sufficient facts to render plausible the inference that her gender dysphoria results from physical impairments. In particular, she alleged that medical treatment for her gender dysphoria consisted primarily of hormone therapy that she used to effectively manage and alleviate the gender dysphoria she experienced. She also alleged that she had received that medical treatment for 15 years.
  4. In her complaint, she stated that gender dysphoria for her required hormone treatment. In fact, she said as much in her complaint upwards of 10 times. In her complaint, she explained that hormone treatment enabled both feminization or nationalization of the body and said that without it (the prison failed to provide that treatment), she experienced emotional, psychological, and physical distress. These allegations sufficed to raise the reasonable inference that plaintiff’s gender dysphoria resulting from the physical impairment.
  5. Medical and scientific research identifies a possible physical basis of gender dysphoria, and the DOJ has agreed that this emerging research renders the inference that gender dysphoria has a physical basis sufficiently plausible to survive a motion to dismiss.
  6. Courts typically lacks sufficient expertise in physiology, etiology, psychiatry, and other potentially relevant disciplines to determine the cause or causes of gender dysphoria. So, dismissing a case based on such unknowns is wholly premature and speculative.
  7. Statutes should be interpreted to avoid a serious constitutional question.
  8. The court has little trouble concluding that a law excluding from ADA protection both gender identity disorders and gender dysphoria discriminates against transgender people as a class in violation of the equal protection clause of the 14th
  9. The Fourth Circuit has held that intermediate scrutiny applies to laws discriminating against transgender individuals. Accordingly, such laws fail unless they are substantially related to a sufficiently important governmental interest. Further, to survive intermediate scrutiny the state must provide an exceedingly persuasive justification for the law.
  10. One does not need to look too closely to find evidence of discriminatory intent toward transgender people in the enactment of §12211(b). The evidence of such intent include: 1) the provision listing gender identity disorders appears alongside pedophilia, exhibitionism, and voyeurism. Such a grouping implicitly brands all transgender individuals as equivalent to criminals thereby making it more difficult for them to be treated in the same manner as everyone else; and 2) the legislative history of the ADA reflects the moral judgment implicit in that list. In fact, Senator Helms specifically mentioned on the floor that people in wheelchairs were one thing but how in the world can you not exclude transvestites? Senator Armstrong said something similar as well.
  11. By carving a safe harbor for discrimination out of broad antidiscrimination protections, the ADA exclusion bears a striking resemblance to the Colorado law at issue in Romer v. Evans, which repealed municipal antidiscrimination ordinances to the extent they prohibited discrimination on the basis of LGB conduct practices or relationships.
  12. In Romer, the Supreme Court held that laws of that kind raise the inevitable inference that the disadvantage imposed born of animosity toward the class of persons affected.
  13. The Fourth Circuit has previously recognized that the ADA’s exclusion of gender identity disorders itself is evidence of such discriminatory intent.
  14. In light of the basic promise of equality animating the ADA, there is no legitimate reason why Congress would intend to include from the ADA’s protections transgender individuals suffering from gender dysphoria.
  15. The only reason for the exclusion that can be gathered from the text and the legislative record is a bare desire to harm a politically unpopular group, which simply cannot constitute a legitimate governmental interest.
  16. There are two ways to avoid the serious constitutional question. First, the argument that gender dysphoria does not constitute a gender identity disorder for purposes of the ADA exclusion. Second, the argument that gender dysphoria results from a physical impairment. Plaintiff has properly alleged both of those claims.

 

IV

Judge Quattlebaum Concurrence/Dissent

 

Judge Quattlebaum concurs in the majority’s decision concerning the district court’s dismissal on statute of limitations grounds. He also concurs in remanding the Eighth Amendment deliberate indifference claim against Wang, the Fourteenth Amendment Equal Protection claim against Garcia and the gross negligence claim against Wang. He also agrees with the majority that the district court erred in concluding that Garcia followed the prison’s policies and, therefore, could not have committed gross negligence as a matter of law and joins with the majority in remanding that claim as well. And because the district court granted Sheriff Kincaid’s motion for summary judgment as to the gross negligence claim based on the theory of respondeat superior as to Garcia’s conduct, he would likewise vacate and remand that portion of the order as it relates to Sheriff Kincaid.

 

  1. As noted in the majority opinion, the ADA specifically excludes, “gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.
  2. The ADA does not define gender identity disorders. For that matter, the phrase has not been interpreted by the Supreme Court or any of the other circuit courts. Accordingly, one has to look to the understanding of gender identity disorders at the time the statute was written, 1990.
  3. In 1990, the DSM was in the third, revised edition. That edition of the DSM provided that the essential feature of gender identity disorders was an incongruence between the assigned sex and gender identity. It added that even in mild cases of gender identity disorder, discomfort and a sense of inappropriateness about the assigned sex are experienced. In fact, the first diagnostic criteria for gender identity disorder under the DSM at the time was persistent or recurrent discomfort and a sense of inappropriateness about one’s assigned sex.
  4. Plaintiff’s allegations that referred to discomfort or distress caused by the discrepancy between her gender identity and her sex assigned at birth would have fallen into the gender identity disorder exclusion as understood at the time the ADA was written.
  5. Even accepting plaintiff’s allegations as true does not require turning a blind eye to the plain language of the statute. It also does not permit the plaintiff to use a word and declare it means just what the plaintiff chooses to have it mean.
  6. From 1990 to today, gender identity disorder has been understood to include distress and discomfort from identifying as a gender different from the one assigned at birth.
  7. In a footnote, Judge Quattlebaum notes that gender identity disorder and gender dysphoria are often cross-referenced or referred to as synonyms in a variety of different publications.
  8. The text of 42 U.S.C. §12211(b)(1) excluded gender identity disorders not resulting from a physical impairment. The plural use of the term “disorders,” should not be overlooked because it indicates that Congress considered this class to include more than one diagnosis. In fact, the DSM in effect at the time specified certain gender identity disorders and also included a category of gender identity disorders not otherwise specified.
  9. Whether gender dysphoria is a new diagnosis or replacement for gender identity disorder isn’t the point because the plain language of the statutory exclusion excludes gender identity disorders, which at the time included an alleged disability involving discomfort or distress caused by a discrepancy between one’s gender identity and the sex assigned at birth.
  10. To say that gender identity disorder did not extend to those who experience distress and discomfort from that identification is not consistent with the actual language of the DSM in effect at the time. It is also further undermined by consistent references to gender identity disorder and gender dysphoria in dictionary medical publication from 1990 to the present. It is also inconsistent with the statutory language excluding gender identity disorders contained within the ADA itself.
  11. Evidence exists that the DSM-5’s change from gender identity disorder to gender dysphoria primarily involved nomenclature so that it could avoid the stigmatizing effect of the existing nomenclature.
  12. Gender identity disorders meaning in effect at the time the ADA was enacted, and its evolution to the meaning of words and phrases does not modify the statute’s terms. It is the legislature with the responsibility of amending statutes and not courts or the APA or WPATH. That is, the focus must be on what gender disorders meant in 1990 and not what the American Psychiatric Association or other organizations have done since. Those organizations do not have the power to effectively modify statutes passed by Congress and signed into law by the president.
  13. Judicially modifying the meaning of a statute because of society’s changing attitudes not only invades the proper space for the legislature, it also turns a statute into a moving target.
  14. The amendments to the ADA are of no help because the policy of interpreting it liberally does not justify ignoring the plain words of limitation.
  15. The amendments to the ADA did not touch the exclusion of gender identity disorders in the ADA. Therefore, the understanding of that phrase from 1990 should be the guiding principle.
  16. The majority makes quite a big deal about avoiding a constitutional issue, but before you can even use that principle the statute itself must be ambiguous, which is not the case. Further, the constitutionality of §12211(b) has not properly been brought before the court as the plaintiff did not plead that issue or raise it before the district court.
  17. With respect to the equal protection issue, plaintiff did not raise that issue before the district court. So, no record was developed about whether the exclusions are discriminatory, the government’s interest in the exclusions, or the relationship of the exclusions to those governmental interests.
  18. The court should not wade into a constitutional question on its own when it was never presented to the district court.
  19. Plaintiff’s reliance on gender identity disorder being sufficiently alleged because of physical impairment does not help her either. In particular, the amended complaint does not identify any part of plaintiff’s body that is impaired or how or why it became impaired. She does not even allege a physical impairment generally.
  20. Plaintiff’s allegation that an individual with gender dysphoria may require feminization or masculinization of the body through hormone therapy and/or surgery in order to effectively alleviate or treat the condition does not imply the existence of a pre-existing physical impairment. At most, it implies that hormone therapy and/or surgery may be helpful to treat the condition.
  21. 12211(b)(1) requires that a person’s gender identity disorder result from a physical impairment. That means the physical impairment has to come first.
  22. What Williams really seems to be arguing is that for transgender individuals experiencing stress and discomfort about their gender incongruity, the physical impairment is that for those individuals were assigned a gender at birth and have the accompanying physical characteristics different from the gender that they identify with. However, that cannot be an impairment for purposes of the exclusion because it would read “not resulting from physical impairment,” out of the statute. After all, anyone with a gender identity disorder or gender dysphoria under the respective diagnostic statistical manual was born with physical characteristics differing from the gender they identify with.

 

V

If I Were on the Panel and Thoughts/Takeaways

 

  1. If I were on the panel, I would agree with both the majority and the dissenting opinion. I would agree with the majority with respect to a question of fact being present that the plaintiff has a physical impairment that needs investigating for the reasons laid out by the majority in its opinion. Particularly significant, is that the plaintiff had been on hormone therapy for 15 years and that therapy worked very well for her. I would agree with the dissent, that gender dysphoria must have been included within the definition of gender identity disorders at the time the ADA was enacted for the reasons laid out by the dissenting opinion. I would also agree with the majority that the gender identity disorder exclusion from the ADA is undoubtedly unconstitutional. As a result of Bostock, which we discussed here, transgender individuals, as noted by the majority, fall within an intermediate scrutiny class. As the majority opinion discusses, prejudice was clearly a big factor in the gender identity disorder exclusion. Between the legislative history and Bostock, there is little doubt in my mind that the gender identity disorder exclusion is no longer constitutional.
  2. Both the majority and dissent agree that the exclusion must be viewed as it existed in 1990. However, they reach opposite conclusions from there.
  3. The decision came down August 16, 2022. So, it is simply too early to tell what is next. It wouldn’t surprise me to see a rehearing en banc petition filed. I set a law 360 alert for this case. Today, 8/31/2022, it alerted me that the individuals sued in the case did request an en banc rehearing. On October 11, 2022, it was reported that the Fourth Circuit denied the en banc rehearing request.
  4. Transgender and being gay or lesbian are undoubtedly subject to intermediate scrutiny in light of Bostock. Persons with any other disability may be subject to rational basis scrutiny or not in light of Board of Trustees of the University of Alabama v. Garrett and Tennessee v. Lane. For a group of individuals that silo terribly, which people with disabilities do, it is unfortunate that equal protection jurisprudence now sets persons with disabilities against each other.

The blog entry that goes up for this week will be the last one before the week of August 29 as we will be taking our daughter off to college this coming Friday. She moves in the following week. So, no blog entry the week after this one and this one counts for the week of August 16. The blog entry of the day is from the Sixth Circuit decided on August 12, 2022. The case is Post v. Trinity Health-Michigan, a published decision from the Sixth Circuit, which can be found here. The case involves two questions. First, when an interference claim is made what ADA title applies? Second, if you have an ADA claim, can you use a §1985 claim instead? As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that interference claims relate back to the title of the ADA that the case involves; §§1985, 1985(3) are of no help to plaintiff; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

St. Joseph Hospital hired the plaintiff in 1982 to work as a nurse in its emergency room. For the next two decades, she served in various roles at the hospital and became a certified Registered Nurse Anesthesist in 2004. In 2013, the hospital outsourced their anesthesiology services to the Wayne State University Physician Group and her decade-long employment with the hospital came to an end. In October 2016, plaintiff did not notice a protruding monitor that had not been put in its proper place and she slammed her head against it. The impact lacerated her right temple and caused a severe concussion giving her slurred speech and difficulty walking. After the accident, she suffered from postconcussion syndrome. For months, she weathered through debilitating headaches and severe fatigue. She also had problems concentrating for extended periods and trouble speaking. She was forced to take a leave of absence from work and undergo significant rehabilitation.

 

By March 2017, her condition had improved enough that her doctor authorized her to gradually begin working again under certain restrictions. Her doctor recommended that she practice administering anesthesia in a simulation room before treating real patients again. When one of her case managers sought to have her use the hospital’s simulation lab, the chair found it absolutely inappropriate for the plaintiff to use the lab because the hospital did not have the equipment or personnel to support the proposed practice sessions.

 

The other issue was her credentials. The hospital required her to submit a form signed by the chair of the hospital’s anesthesiology department. However, that Dr. refused to sign the form because of her leave of absence from the group. Until that Dr. cleared her return, the hospital could not process her application. The clearance never came and the University Physician Group, her employer, terminated her for budgetary reasons before she returned to work. The group later filed for bankruptcy. She asserted a claim in the bankruptcy case seeking damages for termination alleging that the group had engaged in age and disability discrimination. The bankruptcy court said insurance coverage existed so the bankruptcy court would not be able to take the claim. She then sued the hospital alleging that the hospital interfered with her right to a reasonable accommodation under the ADA and for conspiring with University Physician Group to deprive her of her ADA employment rights. At no point did she allege that the University Physician Group and the hospital were joint employers.

 

II

Court’s Reasoning That Interference Claims Relate Back to the Title of the ADA the Case Involves.

 

  1. The interference provisions of the ADA is found at 42 U.S.C. §12203(b).
  2. 42 U.S.C. §12203(b) does not identify the party barred from engaging in unlawful interference.
  3. Although the interference provision does not list potential defendants, the remedies clause of 42 U.S.C. §12203 clarifies the confusion. What that clause says, is that a variety of different remedies apply depending upon whether title I, title II, or title III is involved.
  4. Plaintiff alleged that the hospital interfered with rights granted by the ADA’s employment provisions.
  5. When you follow the dancing ball of the remedies provisions of 42 U.S.C. §12203 with respect to employment, you find that it takes you to the remedies under title VII of the Civil Rights Act of 1964.
  6. Title VII’s remedies and procedures permits an aggrieved party to file an administrative charge with the EEOC against four different entities, one of which of them is an employer. The aggrieved party then has to receive a right to sue letter from the EEOC before proceeding in court.
  7. Title VII permit suits only against employers and a few other irrelevant entities.
  8. Title I of the ADA adopts title VII’s remedial framework, and the ADA’s interference provision adopts the employment subchapter’s remedial framework when a suit raises an employment complaint. Accordingly, the statutory chain of cross-references leaves no doubt that the interference provision in §12203(b) permit suits only against employers when an employment situation is involved.
  9. Title I of the ADA makes it unlawful only for a covered entity to discriminate against a qualified individual on the basis of disability. The phrase “covered entity,” mirrors the list of potential defendants in title VII-an employer, employment agency, labor organization, or joint labor management committee.
  10. The reason why the interference provision lacks a single subject is because §12203 applies to title II and title III entities as well.
  11. That the interference provision relates to title I when dealing with an employment situation also follows from a Sixth Circuit decision involving the retaliation provisions of the ADA. The Sixth Circuit has previously held that employees may sue only their employers for violating the retaliation section. While that case was a Rehabilitation Act case, the Rehabilitation Act incorporates the ADA’s retaliation standard. It wouldn’t make much sense if the ADA’s retaliation section and the interference section reach opposite conclusions on the question of whether only an employer could be sued when an employment situation is involved, especially since the Rehabilitation Act section prohibiting retaliation appears to have even broader language within it than the ADA section prohibiting retaliation.
  12. Other cases cited by the plaintiff are not helpful to the plaintiff’s cause because they involved a different title of the ADA, whether it be title III or title II.
  13. It is possible that the plaintiff could have alleged some type of joint employer theory. However, plaintiff failed to argue that the hospital should be treated as an employer and thereby forfeited the Sixth Circuit’s consideration of any joint employer theory.
  14. A plaintiff can assert a claim of interference with employment related rights under §12203(b) only against an employer or the few other entities listed in 42 U.S.C. §2000e-5(b).

 

II

42 U.S.C. §1985(3) and §1985 are of No Help to the Plaintiff

 

  1. The Sixth Circuit has held that §1985(3) claims reach only conspiracies targeting a person based on a classification that receives heightened scrutiny under the Supreme Court’s equal protection framework. However, conspiracies grounded in disability-based discrimination are not covered because disability discrimination is only subject to rational basis review.
  2. While other circuit courts have held that §1985 can reach disability discrimination, only the Supreme Court or the Sixth Circuit en banc can overrule prior Sixth Circuit decisions.
  3. The Supreme Court has cautioned against allowing a plaintiff to use §1985(3) to enforce a right in another statute when the remedial limits in that statute would bar the plaintiff from suing directly under it. Since the ADA adopts title VII’s remedial framework for employment related claims, this logic applies to this case.

 

III

Thoughts/Takeaways

 

  1. Under this case, interference claims relate back to the type of matter the case involves. So if it is an employment situation, interference relates back to title I of the ADA. If it is a situation where accessing nonfederal governmental entities is involved, then interference claims would relate back to title II of the ADA. Finally, if it is a situation where a place of public accommodation is involved, the interference claim would relate back to title III of the ADA. Each of those titles have their own remedies and their own statutory and regulatory scheme.
  2. It isn’t unusual for independent contractor groups to staff hospitals. It also is not unusual for courts to find that such an arrangement to the public means that the person who works for the independent contractor group is also an employee of the hospital. This case certainly teaches the lesson that the existence of joint employers need to be considered when filing a complaint against a physician group that a hospital has outsourced operation to.
  3. One of the most common ways I see interference claims come across my desk in my practice is when a college professor interferes with what the student and disability services has worked out with respect to the student being accommodated. This case does not rule out interference claims arising from such situations because that situation would involve a title II entity and therefore relate back to title II. Whether the people interfering with the student’s right to receive accommodations could be sued individually may depend upon the jurisdiction. See this case for example, which we also discussed here.
  4. I am not sure I understand why the plaintiff could not pursue her claim against the group that went bankrupt because the physician group had sufficient insurance. If they had sufficient insurance, I wonder why the case could not go forward outside of the bankruptcy court because the bankrupt’s estate would not be jeopardized. The only reason I’m even aware of this issue is because I dealt with this very issue in a case that I was involved with in my first job as a licensed attorney out of law school. I am assuming that the physician group filed under Chapter 11, which is the chapter of the bankruptcy code I am familiar with. If they filed under a separate chapter of the bankruptcy code, then perhaps what happened in the bankruptcy court makes sense.
  5. With respect to §1985, it isn’t accurate to say that disability discrimination is only subject to rational basis review. As we know from Board of Trustees of the University of Alabama v. Garrett and from Tennessee v. Lane, the level of equal protection review that a person with a disability receives depends upon the facts of each individual case.
  6. It is accurate to say that there is plenty of case law out there saying that if an ADA claim exists, you can’t use §1985 type claims as a way to circumvent the ADA.
  7. Interesting that the case has no mention of FMLA, which has job protection features, and I have no idea why that is the case.
  8. Why wasn’t a claim alleging violations of title III of the ADA filed per the case we discussed here?
  9. For the last couple of years, a large part of my practice has involved acting as a consultant to healthcare professionals involved in disability discrimination matters (employment, licensing, credentialing, etc.). One of the things that I have seen from that experience, is that lawyers representing healthcare professionals need to realize that it is not unusual to have title I, title II, and title III of the ADA all in play simultaneously. Lawyers ignore that fact at their client’s peril.
  10. The dancing ball of the retaliation and interference provisions alluded to above can lead to some very interesting results. For example, a line of cases exists saying that only equitable remedies exist for retaliation under title I of the ADA because of the dancing ball. See this case for example.

Before getting started on our blog entry for the week, a couple of housekeeping matters are in order. First, my daughter is off to college a week from Friday. Things are very exciting and terrifying here at the same time. Accordingly, next week is going to be crazy and the week after that even more so. I may or may not get a blog entry up next week, but I will definitely not be getting up a blog entry up the week after that.

 

The case for this week is Martinez v. Cot’n Wash, a published decision from the Second Appellate District of the Court of Appeals of the State of California. The case involves an Internet only business that got sued by a person with a screen reader for an inaccessible website. Before bringing suit, plaintiff sent a demand letter. Notably, defense responded with their belief that the Internet site complied with the applicable WCAG level AA and asked for clarification from the plaintiff. Plaintiff then sues anyway. The Court of Appeals holds that the gateway principal rules in California and without a gateway the plaintiff has no case. As usual, the blog entry is divided into categories and they are: court’s reasoning that plaintiff’s claim fails because the website is not a place of public accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning That Plaintiff’s Claim Fails Because the Website Is Not a Place of Public Accommodation

 

  1. An inaccessible website is facially neutral so that the Unruh act is not activated on grounds of intentional discrimination.
  2. The listed categories in 42 U.S.C. §12181(7) mainly reference physical locations.
  3. The implementing regulations similarly define a public accommodation by referring to a “facility,” which is in turn defined, at 28 C.F.R. §36.104, as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock… or other real or personal property, including the site where the building, property, structure, or equipment is located.”
  4. A website is not identified in any of the statutory categories, which is not surprising as no commercial websites existed when the ADA was enacted in 1990. However in the 30 years since, websites have become central to American life.
  5. The regulatory agency charged with implementing the ADA for title II and title III (DOJ), of the ADA has previously endorsed the applicability of the ADA to title III websites but has not provided specific regulatory guidance.
  6. The federal courts are all over the place when it comes to whether a website must be meaningfully accessible to people with disabilities.
  7. There are two main views of whether websites are places of public accommodation. The first view is that websites are places of public accommodations under the ADA. That is the view of the First, Second, and Seventh Circuits. Courts adopting this view have relied on the service establishment category of the statutory definition, and particularly travel services being contained in the illustrative list of these establishments. That is, it would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons purchasing the same services over the telephone or by mail are not. These courts also emphasized the critical nature of websites for transacting business today, and that Congress made it clear that the ADA was meant to adapt to changes in technology.
  8. The second view is that websites are not places of public accommodations under the ADA, but a denial of equal access to a website can support an ADA claim if the denial has prevented or impeded a disabled plaintiff from equal access to, or enjoyment of, the goods and services offered at the defendant’s physical facilities. This is the view of the Third, Sixth, Ninth, and 11th These courts have said that essentially all of the categories listed in 42 U.S.C. §12181(7) describe a physical location. That said, these courts also recognize that a website can be important to providing access to defendant’s place of public accommodation and to a disabled person’s ability to use and enjoy services provided those places if a nexus exists.
  9. California courts have consistently gone with the nexus theory, or gateway, when it comes to when websites must be meaningfully accessible to persons with disabilities.
  10. The plain meaning of the term “place,” weighs against an interpretation that a public accommodation need not be a physical place.
  11. Neither title III nor any implementing regulation provide a different definition of the word for the purposes of title III when it comes to what is a place of public accommodation.
  12. For that matter, the state of technology when the ADA was passed in 1992 shows that Congress was aware that the term “place of public accommodation,” carried a connotation of physical space and thus could exclude certain sales and retail establishments from the scope of title III based on a lack of connection to a physical space. After all, there were countless businesses operating outside of brick-and-mortar premises in 1990, including some that have been in operation for decades, such as mail order catalogs. Therefore, Congress’s decision to use the phrase “place,” the plain meaning which involves physical space, could easily be understood to be an intentional exclusion of businesses without any physical presence from the scope of title III.
  13. In 2000, United States Supreme Court noted that a “place,” connotes a physical space with respect to the New Jersey law protecting against discrimination in places of public accommodations.
  14. The plain meaning of the term “place of public accommodation,” is not dispositive because decades of conflict in federal case law interpreting the phrase establishes that the term is ambiguous.
  15. For that matter, the term “facility,” under the Code of Federal Regulations is also ambiguous for largely the same reasons.
  16. Since a place of public accommodation must per the applicable federal regulation be a “facility,” the only way a website might constitute a facility is if it specifically qualifies as one of the items listed in the definition of facility.
  17. The term “other… personal property,” appears at the end of the list of exclusively physical spaces and, as to “equipment” or other “personal property,” presumes the existence of a site where the property is located.
  18. It could make perfect sense that treating retail websites in one way and physical locations in another is the way to go. It is not absurd or irrational for Congress to address discrimination by online retailers in a different manner than the way it addresses discrimination by brick and mortar retailers. Subject to a disparate bundle of economic and business concerns. Each is very much its own animal.
  19. Since brick-and-mortar stores conduct business differently than do retail website, the type and extent of the burdens antidiscrimination measures impose on a business will necessarily differ depending on whether the business is operating through a physical storefront or a purely digital one.
  20. Given the different burden benefit calculus that applies in determining how to impose accessibility requirements on the two different types of retailers, it isn’t an absurd result to say that title III addresses only physical retailers and the question of how to deal with purely digital retailers remains a future question for Congress. Accordingly, it is not an absurd result to interpret title III as treating transactions differently depending upon whether they are purely digital or have a physical component. It also does not mean that this interpretation would inevitably frustrate the manifest purposes of the ADA as a whole.
  21. The mandate to interpret language broadly to take into account changes in technology is not a blanket authorization to require anything achieving the ADA’s overall goal of equal access. It is simply not clear that Congress intended such a result when drafting title III of the ADA.
  22. Despite DOJ taking the position over the years that websites are places of public accommodations, see this blog entry for example, the DOJ has consistently passed up the chance to draft regulations with respect to website accessibility despite courts being all over the place and pressure being put on DOJ by Congress and others to do so. The only conclusion that can be drawn from the failure of the DOJ to enact regulations is that neither Congress nor the DOJ officially endorses the approach that websites are places of public accommodations.
  23. In 2008, the ADA was amended and Congress passed up a chance to make clear that Internet sites were places of public accommodations.
  24. Congress and DOJ’s failure to provide clarification in the face of tremendous confusion is not a reason for a court to step in and provide that clarification. In fact, it is a reason for a court not to step in. That is, it is the job of the courts to interpret the law as written.

 

II

Thoughts/Takeaways

 

  1. The court makes a big deal over how the DOJ has not put forward regulations with respect to Internet accessibility. Just within the last couple of weeks, DOJ has notified the public that they intend to issue rules when it comes to Internet accessibility and title II entities. The DOJ has said that there will be proposed rules coming out with respect to Internet accessibility involving title II entities in April 2023 with the final rules coming in the summer of 2023. This court makes a big deal over how there are no regulations in the area. That will be changing next year. That said, I am not aware of a notice to issue regulations on Internet accessibility with respect to title III entities, which was the kind of entity involved in this case. It is entirely possible that the title II rulemaking process will very much inform the title III rulemaking process but that remains to be seen.
  2. The strongest argument that the Internet is not a place of public accommodation is that Congress passed up a chance to say as much when the ADA was amended.
  3. It isn’t accurate to my mind to say that there are only two views with respect to when an Internet site must be meaningfully accessible to a person with a disability. To my mind, there are currently four views. There were five views before the 11th Circuit mooted Gil v. Winn-Dixie. The four views are: the Internet is always a place of public accommodation; the Internet is never a place of public accommodation; gateway; and the Internet is a place of public accommodation if what is going on is of the type listed in 42 U.S.C. §12181(7). Before Gil v. Winn-Dixie was mooted, the 11th Circuit had a fifth theory namely, the Internet is never a place of public accommodation but the question is something else entirely. We discussed the now mooted decision in Gil v. Winn-Dixie, here.
  4. The cases that go with the gateway or nexus approach are all over the place with respect to what is a sufficient nexus. Some talk about a connection to the physical place while other cases talk about the person actually having to show that he or she or they actually visit that physical place.
  5. Very strange that the court talks about a 2000 Supreme Court decision suggesting that a place is a physical location but ignores an even more recent Supreme Court decision, South Dakota v. Wayfair, which we discussed here, strongly suggesting that a place does not have to be a physical place. To my mind, any plaintiff attorney in an Internet only accessibility situation commits legal malpractice by not bringing up South Dakota v. Wayfair. I am at a complete loss as to why this case has not come up as much as it should have in this kind of litigation. Perhaps, it is because it is not a disability discrimination case at all and attorneys are not looking at tax matters for analogous cases. South Dakota v. Wayfair is, in my opinion, the strongest argument that a place of public accommodation does not have to be a physical place.
  6. Could Congress really have meant to give such an advantage to Internet sites with respect to accessibility rules over brick and mortar sites considering the difference in costs of operating each kind of place? The court says such a distinction is perfectly logical, but I am not so sure of that, especially now given the maturity of e-commerce.
  7. California, as we discussed here, has made it very easy to get standing. However just because you can get standing, does not mean you win on the merits. Martinez says that under California’s Unruh Act, Internet only businesses not attached to a brick-and-mortar store do not have to worry about being meaningfully accessible to persons with disabilities. That said, don’t forget about the Rehabilitation Act. Plaintiff’s attorney will want to consider whether the particular Internet site takes federal funds or has outstanding PPP loans. The one issue that will have to be dealt with the Rehabilitation Act, assuming federal funds are involved, is proving causation because causation under the Rehabilitation Act is, “solely by reason of,” which after Bostock means precisely that. It isn’t clear to me whether a discriminatory facially neutral site could possibly reach the level of, “solely by reason of.”
  8. WCAG level AA of the most applicable WCAG standard is the best preventive law approach for minimizing successful website and accessibility lawsuits.
  9. Expect Unruh Act lawsuits alleging Internet and accessibility issues to go away down after this decision. At a minimum, you can bet every defense lawyer “go to,” case when it comes to Unruh Act Internet inaccessibility suits. You can also expect this case to be used by defense lawyers defending website inaccessibility lawsuits under title III of the ADA because much of the reasoning in this case is easily transferable. Of course, Martinez is nothing more than persuasive authority at the federal level, but even so defense attorneys would be foolish not to bring it up.

Today’s case of the day is Harkey v. NextGen Healthcare, Inc., here, decided by the Fifth Circuit in a per curiam decision on July 15, 2022. The case is better known as the sleepwalker claiming disability discrimination case, and it has been over the legal blogosphere due to its sensational facts, which are described in detail below. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that summary judgment for the employer was justified; my thoughts on why this decision could have gone the other way; and thoughts/takeaways/questions. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken directly from the opinion)

NextGen hired Jennifer Harkey in March 2008 as an “Implementation Specialist.”[**] She worked without incident for over a decade. In September 2018, she was promoted to the position of “Sales Specialist,” effective November 1, 2018.

On the evening of October 10, 2018, Harkey was attending an out-of-town national sales conference for NextGen at a large hotel in St. Louis, Missouri. After a dinner and a few drinks with a female co-worker, Harkey headed up to her room. She then watched some television and fell asleep.

Around midnight, another employee of NextGen who was also attending the conference, Scott O’Donnell, had just returned to his room from the hotel bar when he heard a knock at the door. Rather than peering through the peephole, assuming it was one of the other men who he had just been at the hotel bar with, he opened the door. There stood Harkey, whom he did not recognize. Harkey says that she was wearing a “black cotton robe” that fell to her knees and that she was naked under the robe.

O’Donnell was startled and stepped backwards. Harkey entered the room without looking at O’Donnell. O’Donnell said something along the lines of “I think you’re in the wrong room. What are you doing here? You need to get out” and remembers repeating “You’re in the wrong room.” Harkey said nothing, walked over to a made bed and got in it, then pulled the sheets all the way up to her face. According to O’Donnell, “She just laid there, didn’t move and was nonresponsive to me asking her to leave and telling her she was in the wrong room.” Harkey did not touch O’Donnell during the incident. Moreover, O’Donnell states that she never propositioned him or sexually harassed him.

Still, O’Donnell was concerned. He was a married man on an out-of-town business trip, and a woman was in a bed in his hotel room. He called his supervisor, Sean Murtagh, to the room. Murtagh also did not recognize Harkey as a NextGen employee. Murtagh decided to contact Jill Burke, the director of Human Resources at NextGen, who was also attending the conference. When Burke arrived, she attempted to wake Harkey repeatedly. Burke pulled back the covers and Murtagh snapped a picture of her. Burke was able to waken Harkey, but Harkey was disoriented. Burke also described Harkey as “smell[ing] of alcohol” and “exposing skin.” Although he was further away, Murtagh testified that he did not smell alcohol and that her robe fully covered her, so that no “personal part[s]” were exposed.

Eventually, hotel security was called, and it was determined that Harkey’s room was next door to O’Donnell’s. According to Burke’s notes, which she discussed during her deposition, as security helped get Harkey back to her room, Harkey was “very apologetic” and embarrassed. According to Burke, Harkey stated that she must have been sleepwalking, which she had done from time to time when she was a child. Burke’s notes also recall that Harkey said that she “wasn’t assaulted or anything” in the hotel room, that she was fine, and that she was “so sorry.” O’Donnell went back into his room, gathered his stuff, and moved to a different hotel room.

O’Donnell was asked to write an e-mail about what happened. At that point, he was extremely uncomfortable “because of the accusatory-sounding questions that [Burke] had asked [him] earlier in the night about what happened.” Because of his discomfort at that line of questioning, he mentioned wanting to speak with a lawyer before writing an e-mail about the incident. He later testified about his concern with how his wife would react to learning about the situation and, more generally, about how it might be interpreted in the “Me Too” era.

The next morning, Harkey went downstairs for breakfast and business meetings. At some point in the morning, she was asked to go up to a conference room where she saw Burke sitting alone at a long conference table. Harkey said she had “a flashback” and remembered her face from the night before. Burke told Harkey to sit down and that she “was in very big trouble,” “needed to be concerned,” and that Burke wanted to discuss last night. Harkey told her about the evening, as she could recall it. Harkey told her she had sleepwalked throughout her childhood but that it rarely happens. She was also asked about what she was wearing. Harkey stated that she felt from the beginning of the conversation that Burke had made her mind up about what had happened. Burke told her to pack her bags and that she was suspended on paid leave. Multiple times in the conversation, Burke called Harkey a “liability.” Burke told Harkey to “call a doctor,” and Harkey said she would quickly do so.

Harkey called her doctor for a referral as she was waiting for her flight home and began the process for making an appointment with a diagnostician, Dr. Sudan. Harkey sent an e-mail to Burke on October 12, 2018 (the day after the incident), informing her of the medical updates and assuring her that she was taking the situation seriously. On October 16, Harkey sent an e-mail updating Burke that she had been able to get an appointment with Dr. Sudan for the following week. Later the same day that she sent that e-mail, on October 16, Harkey was terminated.

When Harkey was able to see her doctor, he diagnosed her condition as somnambulism, otherwise known as “sleep walking disorder.” On September 4, 2019, Harkey brought a lawsuit in state court alleging that she was fired on account of a disability. It was removed to federal court, with the operative complaint alleging violations of the ADA and the TCHRA.

II

Court’s Reasoning That Summary Judgment Is Justified for the Employer

 

  1. The controlling question is whether the plaintiff suffered an adverse employment action because of (emphasis in opinion) her disability.
  2. Even if plaintiff’s sleepwalking disorder was a disability under the ADA, she was properly terminated because of what happened when she sleepwalked.
  3. The Fifth Circuit has previously held that where a plaintiff’s outburst was arguably caused by his PTSD, the company was justified in terminating that individual because the outburst also violated company policy.
  4. The ADA does not insulate emotional or violent outbursts blamed on an impairment.
  5. A prior Fifth Circuit case also held that an employee verbally abusing his supervisor for denying his vacation request was also grounds for termination despite the employee suffering from bipolar disorder. That decision said that while the employee’s reaction could have been attributed to his bipolar disorder, the ADA is not a get out of jail free card to avoid accountability for the employee’s actions.
  6. That plaintiff’s severe, unprofessional, and inappropriate conduct was purportedly caused by her sleepwalking disorder is of no matter, as the ADA does not give employees license to act with impunity.
  7. When plaintiff sleepwalked into her male coworker’s room in the state that she was in, the employer had a reason to fire her, and the ADA is no barrier to that termination.

 

III

My Thoughts on Why This Decision Could Have Gone the Other Way

 

  1. It certainly appears that the director of HR rushed to judgment and that little independent investigation ever occurred. I join labor and management side lawyers on social media talking about how a rush to judgment by HR is never a good idea.
  2. There was no interactive process.
  3. Magic words are not required to begin the interactive process, as we discussed here for example, and most certainly what happened here is enough to put an employer on notice that a reasonable accommodation needed to be discussed.
  4. Plaintiff told HR the morning after the incident that she had a record of sleepwalking in childhood. Remember, a person with a record of a disability, 42 U.S.C. §12102, is protected under the ADA.
  5. Plaintiff made clear that she was seeking the assistance of medical professionals to figure all this out, but the employer terminated her before that could all be accomplished.
  6. Bostock v. Clayton County, which we discussed here, has changed causation. The question is whether the disability was a determining factor in the termination. Arguably in this case, it was. Again, magic words are not necessary and there was a complete absence of any interactive process.
  7. It is an oversimplification to say, especially after Bostock, that sleepwalking being the cause of the conduct is of no matter.

 

IV

Thoughts/Takeaways/Questions

 

  1. Was plaintiff a valuable employee? She worked there without incident for over a decade and had been promoted to the position of sales specialist.
  2. Did plaintiff ever have to work with Scott O’Donnell, the person whose room she walked into, in her job?
  3. Was plaintiff a direct threat to anyone during the incident or in the future? Could any future direct threat be eliminated with reasonable accommodations?
  4. I can’t see the United States Supreme Court deciding in favor of the plaintiff on this one.
  5. Could she do the essential functions of the job with or without reasonable accommodation? If not, might there have been another job in the company that she could have done with or without reasonable accommodations? Was traveling even an essential function of her job? Of any job in the company?
  6. The employer won this one. However, an employer would do well to look at §§III, IV of this blog entry prior to terminating an individual when something like this occurs.
  7. What company policy was violated?
  8. This isn’t the first time we talked about the line between how disability may manifest itself in the form of bad conduct. See this blog entry for example.
  9. The decision is a per curiam and is not published. I asked Prof. Leonard Sandler (a Clinical Law Professor at the University of Iowa whom I had the privilege of meeting in person just recently when I did a training for Disability Rights Iowa), for more information about per curiam opinions. He sent me this article. After reading that article, a strong argument can be made that our case of the day was not appropriate for a per curiam decision.