Today’s case of the day is a published decision from the Sixth Circuit decided March 8, 2022. The case is Blanchet v. Charter Communications, LLC, here, and it contains a couple of lessons for employers. First, outsourcing HR doesn’t mean that you lose responsibility for what happens if the third-party administrator doesn’t comply with federal law. Second, medical leave beyond FMLA leave can be a reasonable accommodation. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that direct evidence applies to failure to accommodate claims; court’s reasoning that a genuine issue of material fact exists as to whether plaintiff was otherwise qualified; court’s reasoning that a genuine issue of material fact exists as to whether a reasonable accommodation was possible; Judge Kethledge’s dissent; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

In July of 2014, Charter Communications hired Kelly Blanchet as a Direct Sales Representative (“DSR”). As a DSR, Blanchet was responsible for selling Charter’s services door-to-door in residential neighborhoods. Blanchet quickly excelled in her role, receiving positive feedback from her closest supervisors. For example, her long-time supervisor, Ryan Quigley, identified her as “one of [his] top producers.” Quigley added that she “always was at work on time” and that he could “always depend on her being where she should be.” Another supervisor, Jayson Docter, stated that Blanchet was “probably the top person on [his] team every month.”

 

During Blanchet’s employment, she became pregnant and requested maternity leave. She applied for and received Charter’s standard maternity leave, short-term disability benefits, and Family and Medical Leave Act (FMLA) benefits until September 4, 2016. After giving birth to her child on July 11, 2016, Blanchet developed postpartum depression. As a result of her medical condition, Blanchet requested an accommodation of additional leave under the FMLA, which extended past her initial return-to-work date of September 4, 2016. At that time, Sedgwick, a third party who administered disability leave for Charter, was primarily responsible for all direct communications with employees who requested leave.

 

Charter made clear that Blanchet should not communicate directly with the company regarding disability leave, but should communicate with Sedgwick only. For example, Blanchet’s supervisor, Ryan Quigley, directed Blanchet to speak with Sedgwick only. Thus, Sedgwick was the only party that Blanchet communicated with to request leave for her disability.

 

Charter approved Blanchet’s requests for accommodations from September 4, 2016, to February 1, 2017. Blanchet first sought and was approved for FMLA leave until it was exhausted on September 30, 2016. Blanchet then obtained short-term disability leave until it was exhausted on January 8, 2017. Charter subsequently approved Blanchet for long-term disability leave through February 1, 2017, as an ADA accommodation.

 

During that time, Sedgwick had a pattern and custom of having paperwork approvals delayed long after the initial verbal approval. For example, Blanchet did not receive formal approval for her first request for disability leave until February 3, 2017, two days after she was expected to return to work.

On February 3, 2017, Sedgwick received a letter from Blanchet’s doctor which indicated that Blanchet’s return to work date was “unknown at this time” but that Charter should “expect April” as a timeframe for her to return to work. The letter also indicated that Blanchet “would not be capable of working from home or in any other setting due to her severe depression.”

 

On the same day, Blanchet contacted a Sedgwick representative because she was concerned that she had exhausted her FMLA benefits and did not know how that would impact her employment with the company. Blanchet requested a 60-day accommodation, from February 2017 through April 3, 2017, to allow herself time to adjust to her new medications. When Blanchet contacted the Sedgwick representative about this extension, the representative assured Blanchet “not to worry about [her] job” and that “they were [her] job protection.” After Blanchet followed up a few weeks later with a Sedgwick representative, she was assured that “all was ok,” the representative “knew of no reason this [application] would not be approved,” and that Blanchet should be “receiving [her] approval letter for April 3, 2017.”

 

Blanchet relied on that verbal approval and continued her treatment with the psychiatrist. On March 9, 2017, Blanchet received a termination letter from Charter stating that she was separated from the company “effective January 10, 2017.” Prior to receiving this termination letter, no representative from Charter or Sedgwick contacted her to explain that her request for an accommodation was not reasonable. In addition, no representative from either Charter or Sedgwick requested additional medical records or reached out to inquire for more details on Blanchet’s condition.

 

Ten days after Blanchet received her termination letter, she received an approval letter for her request for extended leave as an accommodation. Unbeknownst to Blanchet, Fred Contreras, the HR Manager of Charter, had been in conversation with Sedgwick after an inquiry requesting his response to Blanchet’s request for approval. On February 22, 2017, Sedgwick emailed Contreras, informing him that a request for a leave of absence was pending for Blanchet, but that it received notice of termination as of January 9, 2017. Sedgwick asked Charter to “review this employee[’]s employment status and confirm.” On March 2, 2017, Sedgwick “escalated” the response as it had not heard from Contreras regarding the request. By March 10, 2017, one day after Blanchet received the termination letter, Contreras sent an email to Sedgwick that he has “responded twice to the request for extension before” and it is “ok with [Charter].”

 

Blanchet subsequently sued Charter after having filed a discrimination charge with the Equal Employment Opportunity Commission. The first count of her operative complaint, entitled “Disability Discrimination,” alleges that “[t]he action of Defendant Charter Communications in firing Plaintiff Kelly Blanchet is in violation of The Americans with Disabilities Act of 1990.” Charter moved for summary judgment, and the district court granted the motion. Blanchet appealed.

 

II

Court’s Reasoning That Direct Evidence Applies in Failure to Accommodate Cases

 

  1. Since failure to accommodate is explicitly listed in the ADA’s definition of disability discrimination, claims based upon the employer’s failure to offer reasonable accommodation necessarily involve direct evidence.
  2. A plaintiff only needs to allege facts premised upon an employer’s failure to accommodate for a court to apply the direct evidence test at summary judgment.
  3. In Blanchet’s complaint, she alleged that she requested an extension of her leave as a workplace accommodation from October 1, 2016, through February 3, 2017. She also argued that Charter unlawfully fired her because her termination was effective during her approved accommodation. Since it is clear from the allegations that her claim was based upon Charter’s failure to accommodate, the claim necessarily involves direct evidence of discrimination under the ADA. Since plaintiff’s claims were so clearly made, Blanchet did not waive any argument that failure to accommodate claim necessarily involves direct evidence.
  4. Even if Blanchet did forfeit her argument that the direct evidence test should apply, this would be one of those exceptional situations when an application of the rule would produce a plain miscarriage of justice.
  5. While the court’s application of the indirect evidence standard was not correct, it did mean that the issue of the reasonableness of Blanchet’s requested leave was fully briefed before and considered by the district court because indirect evidence requires that a plaintiff show that she is qualified, i.e. can perform the essential functions of the job with or without reasonable accommodations. For that matter, the issue was fully briefed at the appellate court level as well.
  6. Under the direct evidence test, Blanchet bears the initial burden of establishing that: 1) she is a person with a disability; and 2) she is otherwise qualified for the position despite his or her disability. Charter then bears the burden of proving that a challenged criterion is essential, and therefore a business necessity, or that the proposed accommodation would impose an undue hardship upon the company.

 

III

Court’s Reasoning That a Genuine Issues of Material Fact Existed as to Whether Blanchet Is Otherwise Qualified

 

 

  1. For Blanchet to be otherwise qualified, she must show that she is otherwise qualified for the position despite her disability: 1) without accommodation from the employer; 2) with an alleged essential job requirement eliminated; or 3) with a proposed reasonable accommodation.
  2. When it comes to an employee’s proposed accommodation of medical leave, it doesn’t do any good to examine her qualifications on the date of her termination because that would not indicate whether the employee is otherwise qualified with an accommodation.
  3. Employees requesting medical leave often cannot perform their jobs at the moment they request the medical leave because it is the medical leave that allows them time to recover from illnesses or medical procedures. Accepting such a rule would mean that an employee requesting medical leave could always be terminated if she were unable to work at the time of her request, which is not consistent with precedent holding that medical leave can constitute a reasonable accommodation under the ADA. In other words, the question becomes whether Blanchet would be otherwise qualified to perform her essential job functions with her proposed accommodationwhen she returned to work.
  4. Prior to her illness, Blanchet was a top producer, was always at work on time, and probably the top person on her team. At the time Blanchet requested her accommodation, Charter had no reason to conclude that her performance would deteriorate when she came back on her proposed return date.
  5. Blanchet was not requesting an accommodation that would permanently remove attendance as a requirement for her position. Instead, she was asking for an extension of medical leave as a temporary accommodation in the hope that she could fully fulfill the attendance requirement once her medical leave was over.
  6. Since a reasonable jury could find that Blanchet could have returned to work and attended her job after she recovered from her illness, a genuine dispute of material fact exists as to whether she was otherwise qualified for her position.

 

IV

Genuine Issues of Material Fact Exists as to Whether a Reasonable Accommodation was Possible

 

  1. Determining the reasonableness of a proposed accommodation is a question of fact.
  2. Once an employee meets her burden, the employer must then show an undue hardship or that the accommodation would eliminate an essential job requirement.
  3. Medical leave as an accommodation is not a novel concept (the court actually cited to cases going back to 1986).
  4. Charter itself considered the proposed accommodation reasonable. Blanchet testified that the third-party administrator told her that it was in communication with her employer and the new HR representative and that she would shortly be receiving her approval letter. Further, a senior HR official at Charter stated that the type of accommodation she was seeking could be possible for a Charter employee. That such a leave was possible was confirmed by the record when the third-party administrator administrator contacted a Charter employee regarding Blanchet’s request for extended leave on March 10, 2017, before she receives her termination letter but after she was effectively terminated. Finally, an employee of Charter confirmed that he responded twice to her request for an extension before and that it was okay with Charter, and Charter followed up 10 days after she received a termination letter with an approval for her extended accommodation.
  5. A jury could conclude from this that Charter considered the leave reasonable and fired the plaintiff anyway. It’s fatal administrative mistakes and lack of clarity regarding Blanchet’s termination date raises genuine disputes of material fact as to whether reasonable accommodation was possible.
  6. Blanchet requested approval from Charter before taking any leave, requested leave for specifified periods, and provided medical support for each of her absences in advance. Further, she did not have a history of absenteeism before she became pregnant and had excellent attendance. Blanchet’s physician also indicated that she was treating her with therapy and medications. So, a reasonable jury could find that Blanchet would recover from her illness within acceptable time.
  7. Blanchet believing that her leave was approved from the third-party administrator administrator and Charter’s representations, did not know that she had to credibly prove anything.
  8. When Blanchet received her termination letter in Marc 10, 2017, no one in the HR leadership at Charter or the HR’s third-party administrator contacted her to indicate that her request for an extended leave was unreasonable. Further, no one contacted her to request medical records or to inquire for further information about her current condition. Finally, when Blanchet contacted the third-party administrator to express concerns about her employment status and to communicate reason for the additional extension, she was told that there would be no reason her application would not be approved. So, it makes no sense for a court to require that a plaintiff provide an exact return date when an employer leads the plaintiff to believe she does not have to do so.
  9. Once an employee requests an accommodation, the employer has a duty to engage in the interactive process.
  10. Both parties have a duty to participate in good faith, and an employer is not participating in the interactive process in good faith if it determines what accommodations it is willing to offer before ever speaking with the employee. In this case, Charter never spoke directly with Blanchet, decided to fire her before even telling her that the accommodation was unreasonable, and led her to believe that her accommodation would be approved. Accordingly, Charter cannot use its failure to engage in the interactive process to argue that Blanchet’s proposed accommodation was unreasonable. This is especially the case when the evidence viewed most favorably to Blanchet shows that the request was reasonable enough for Charter to approve it.
  11. In a footnote, the court notes that while Blanchet did not independently allege an interactive process claim, Charter’s failure to engage in the interactive process is directly related to determining whether her proposed accommodation would reasonable.

 

V

Judge Kethledge Dissent

 

This dissent is very short. It basically echoes a Seventh Circuit case, which is a minority view and which we discussed here, saying that additional leave is not a reasonable accommodation except in very few cases. Here, the dissent said that additional leave is objectively unreasonable when employee has already received significant amount of leave and has demonstrated no clear prospect for recovery (Charter had already provided her seven months of paid disability leave and had extended her leave five times).

 

VI

Thoughts/Takeaways

 

  1. If you are going to outsource your HR function, you need to make sure that some kind of check is in the system so that decisions of the third-party administrator can be reviewed. After all, it is still your company on the hook.
  2. One of the things that I did when I was a General Counsel was insist that anybody thinking of being terminated needed to have it reviewed by in-house legal counsel first. Also, I made it clear that employment at will really didn’t mean much anymore with all the protected classes and that termination should be for cause with employment at will only being used on the margins. By taking both approaches, outside legal fees were reduced by 80%.
  3. The decision is published.
  4. In the Sixth Circuit, failure to accommodate claims go off on direct evidence. This case does a good job of explaining why the direct evidence v. indirect evidence distinction matters. As we have discussed previously, one court was ready to throw up its hands with respect to all the arguing that goes on over direct evidence v. indirect evidence. Instead, as we discussed here, the Seventh Circuit suggested you might look to, “convincing mosaic.”
  5. This is not the first time I have seen otherwise qualified talked about by a court in terms of a plaintiff could show that allege essential job requirement could be eliminated and still be otherwise qualified. I simply don’t get it. An employer does not have to modify or waive an essential job requirement. The only way this makes sense is if the court is saying that the essential job requirement that is alleged is not in fact essential.
  6. Otherwise qualified is no longer the term under the ADA, rather the term is, “qualified.” “Otherwise qualified,” is still the term used in the Rehabilitation Act. Regardless, the two terms have identical meanings.
  7. In evaluating medical leave, the question is whether the medical leave would allow the person to perform the essential functions of his or her job with or without reasonable accommodations at the point in time they return and not at the point in time they request leave.
  8. Medical leave is a reasonable accommodation but indefinite medical leave is not. This case illustrates that there can be lots of gray areas in between the two.
  9. In the Sixth Circuit, an interactive process claim is an independent cause of action, which is not always the case in every circuit.
  10. One wonders if the United States Supreme Court will not get involved as to when medical leave is a reasonable accommodation because the United States Court of Appeals are certainly all over the place on the question. Compare this blog entry with here and here for example.
  11. Interactive process, interactive process, interactive process! Also, don’t forget the do’s and don’ts of the interactive process, here.

Today’s blog entry deals with the situation where a person get Covid-19, goes through most of the quarantine period, and then is fired by the employer during the quarantine period despite the employer knowing that the person had Covid-19 symptoms. The case is Brown v. Roanoke Rehabilitation and Healthcare Center, here, decided by the Middle District of Alabama on February 22, 2022. As usual the blog entry is divided into categories and they are: facts; court’s reasoning that Covid-19 may be an actual disability; court’s reasoning that plaintiff sufficiently alleged that she was regarded as having a disability; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Plaintiff was employed as a certified nursing assistant September 16, 2019 until July 13, 2020. On June 29, 2020, plaintiff went to her physician to be tested for Covid-19 because she was suffering from severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes. While she awaited her test results, her physician directed her to self isolate. Two days later, on July 1, 2020, Brown’s test results came back positive for Covid-19. She then provided her physician’s instructions and her positive Covid-19 test results to the defendants. At the time, plaintiff’s employer maintained a policy requiring a 14 day isolation period for any employee testing positive for Covid-19. So, plaintiff was to isolate until July 14, 2020. Despite that, plaintiff’s supervisor, called plaintiff on July 7, seven days into her 14 day isolation, and instructed her to report to work to be tested again for Covid-19. Plaintiff responded that she was still under isolation and that she continued to experience the same severe systems. On July 10, 2020, her employer contacted plaintiff again and repeated the instruction that she would report to work to take a Covid-19 test. Again, plaintiff told her employer that she was still suffering from Covid-19 symptoms. She then remained in isolation and did not report to work to take the Covid-19 test. The following day, plaintiff was contacted again for a third time. This time plaintiff was informed by her employer that if she did not return to work on July 13, 2020, the employer would consider her as having voluntarily quit. Plaintiff did not in fact return to work because she was still suffering from severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes. Her employer terminated her that day, which was the 13th day of her 14 day isolation. The following day after her termination, plaintiff’s doctor retested her for Covid-19 and she was still positive. Plaintiff then filed suit suit, presumably after exhausting the EEOC administrative processes.

 

II

Court’s Reasoning That Covid-19 May be an Actual Disability

 

  1. To have an actual disability under the ADA, an individual must have a physical or mental impairment substantially limiting one or more major life activities.
  2. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
  3. Guidance jointly issued by the Department of Health and Human Services and the Department of Justice, which we previously discussed here, indicate that certain forms of Covid-19 may be considered a disability under the ADA. That guidance states that certain forms of Covid-19 can substantially limit major life activities of respiratory function, gastrointestinal function, and brain function, even months after being first infected.
  4. The EEOC has said in their guidance, which we have discussed here among other places, that persons with sufficiently severe impairment from Covid-19 may be covered even if those impairments are not long-term. While that guidance is neither determinative nor binding on a court, it is helpful in deciding the issue of whether Covid-19 can be a disability. That guidance informs that Covid-19 can be a disability so long as the condition is sufficiently severe to impair major life activities.
  5. Plaintiff’s symptoms included severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes. Such symptoms could substantially limit any of many major life activities, such as: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Plaintiff’s amended complaint makes clear that the symptoms impacted her ability to breathe, concentrate, and work, all of which are statutorily recognized major life activities.
  6. The defense arguments that the typical nonsevere, short-term conditions associated with Covid-19 are a short-term condition not protected by the ADA are better dealt with at the summary judgment stage than they are at the motion to dismiss stage. It is possible that the plaintiff gets by the motion to dismiss but loses at the summary judgment stage.

 

III
Court’s Reasoning That Plaintiff Alleged Sufficient Facts that She Was Regarded as Having a Disability

 

  1. The ADA does not allow for reasonable accommodations for regarded as claims. So, the failure to accommodate claim gets dismissed because it is hooked into the regarded as claim.
  2. Discriminatory discharge claims can be based on the employer’s perception that an employee has a disability.
  3. Under the 2008 amendment to the ADA, an individual is regarded as disabled when she is perceived as having a physical or mental impairment, regardless of whether the impairment actually exists or is perceived to limit a major life activity.
  4. An individual cannot be regarded as having such an impairment if the impairment is transitory and minor.
  5. A transitory impairment is an impairment with an actual or expected duration of six months or less.
  6. What matters for the regarded as theory is whether the employer perceived the plaintiff as having a physical or mental impairment and not whether the plaintiff was actually impaired.
  7. Many lower courts have found that the transitory and minor exception is a defense that the defendant bears the burden of establishing, rather than an element of the plaintiff’s pleading requirement. So, a plaintiff is not required to plead facts plausibly suggesting that the transitory and minor defense fails.
  8. Since transitory and minor is a defense, plaintiff’s claim can only be dismissed if it is apparent from the face of the complaint that her Covid-19 case was transitory and minor, and plaintiff’s allegations of severe symptoms certainly do not make it apparent that her Covid-19 case was either transitory or minor.
  9. Transitory and minor means exactly that. That is, the condition must be both transitory and minor.
  10. The severity of an impairment is an objective and factual inquiry. Plaintiff alleges she told the defendants that she was suffering from a severe and symptom laden case of a Covid-19 and those allegations are sufficient to allege that her impairments were not minor. In any event, whether her impairment was minor, is better addressed at the motion for summary judgment stage than at the motion to dismiss stage, especially since, as the court noted in a footnote, the physical impact of Covid-19 differ widely from person to person. After all, individuals diagnosed with Covid-19 may suffer from no symptoms at all or only minor symptoms on a short-term basis. On the other hand, individuals have been noted to suffer from extremely severe symptoms that have required months long hospitalization and even death. Then you have long-haul Covid-19, which can happen regardless of the symptoms a person has when they get Covid-19. The category that plaintiff falls into is a fact driven inquiry not appropriate in a motion to dismiss.
  11. Plaintiff’s allegations, which only require a short and plain statement of the claim, are more than sufficient in this case could get by a motion to dismiss.

 

IV

Thoughts/Takeaways

 

  1. For a regarded as claim, all a plaintiff has to show is a physical or mental impairment.
  2. Interesting that the court did not pursue how a major life activity also includes bodily functions. They did mention it a bit implicitly but they didn’t address it head-on.
  3. The court cited favorably to both EEOC guidances as well as the joint Department of Health and Human Services and DOJ guidance that we have previously discussed, here, for example, and here.
  4. For the regarded as exception to apply, it has to be BOTH transitory and minor.
  5. Regarded as claims do not have reasonable accommodation requirements with them.
  6. The transitory and minor exception is a defense that the defendant has the burden of establishing rather than an element of plaintiff’s pleading requirements.
  7. Whether a condition is minor is an objective and factual inquiry not normally suitable on a motion to dismiss.
  8. While theoretically a short and plain statement of the claim are all that is required, I have found that when it comes to disability discrimination cases, you want to allege sufficient enough facts to put a reasonable person on notice as to exactly what is going on. Notice pleading may be theoretically still in play, but as a practical matter, a plaintiff alleging disability discrimination makes a mistake by going about it that way.
  9. It is a bad move for a defendant to terminate an employee during a quarantine period demanded by the CDC.

With the nomination of Ketanji Brown Jackson by Pres. Biden to the United States Supreme Court, it is time for me to do my analysis of the nominee’s decisions pertaining to disability rights.  My search was done in casetext and it was, “judge/4 Brown-Jackson and ADA or 501 or 504 and disability. I also did an IDEA search for good measure. I did not see any decisions involving the Air Carrier Access Act or the Fair Housing Act with respect to disability. When it came to the ADA related decisions, I wound up reading about 23 cases and distilled it down to a select few to blog upon those here. I also saw that she had written opinions on about a dozen or so IDEA cases. I will leave the IDEA cases to a special education attorney and not focus on that here. This blog entry is going to be a bit different in terms of how it is laid out. I will discuss what each case is about briefly and then discuss the key holdings from her opinion in that case. In the other section, I will give my thoughts/takeaways. I was reading in the Wall Street Journal today that the Republicans are not expected to throw a monkey wrench into this and that the Democrats will hold firm. Even so, it is interesting to see what her views are with respect to the rights of people with disabilities.

 

I

Cases

 

Brooks v. Goodwill

 

This is a pretty straightforward case where the plaintiff failed to file a claim within 90 days after receiving a right to sue. Understandably, Judge Jackson grants the motion to dismiss.

 

Southerland v. SOC, LLC

 

This is also a straightforward case where she holds that the venue was improper for an ADA/title VII suit.

 

Pierce v. District of Columbia

 

This particular decision has been featured quite a bit in the press. It involves a culturally deaf individual who was not accommodated while in prison despite the prison knowing that he was culturally deaf and despite the culturally deaf individual asking for an ASL interpreter. Judge Jackson was having none of it. In particular, the following bears discussing:

 

  1. Title II of the ADA essentially requires an interactive process (see §6 of this section).
  2. Disability discrimination occurred as a matter of law because the district’s employees and contractors did nothing to evaluate the plaintiff’s need for accommodation despite their knowledge that he was disabled.
  3. There must be a typo in the decision because on page 266 of the opinion “accommodations,” and “modifications,” should be in each other’s place. That is, it is “modifications,” that is §504 and title II parlance and “accommodation,” that is title I parlance and not the other way around as it exists in the opinion.
  4. Deliberate indifference occurs where the prison took an obviously disabled inmate into custody without undertaking any evaluation of his accommodation requirements, and when he later requested aid, either rebuffed his inquiries entirely or provided him with whatever auxiliary tools it had on hand.
  5. Failure of prison staff to conduct an informed assessment of the abilities and accommodation needs of a new inmate who is obviously disabled is intentional discrimination and deliberate indifference.
  6. Prison officials have an affirmative duty to assess the potential accommodation needs of inmates with known disabilities when taken into custody and to provide the accommodations that are necessary for those inmates to access the prison’s programs and services, without regards to whether or not the disabled individual has made a specific request for accommodation and without relying solely on the assumptions of prison officials regarding that individual’s needs.
  7. The district’s knowing failure to evaluate plaintiff’s need for accommodation and provide auxiliary aids easily satisfies a deliberate indifference standard.

 

Equal Rights Center v. Uber Techs.

 

This is a decision dealing with Uber and whether they are accessible to persons with disabilities. It also discusses whether the person with the disability needed to download the app in order to bring a claim. We have discussed this kind of case before, such as here. Here are some of the critical statements made in this case:

 

  1. Deterrence can get a person with a disability standing. All the person with a disability has to show to get standing is that they were deterred from patronizing or visiting that accommodation.
  2. The Seventh Circuit’s view that heightened pleading requirements are somehow required does not wash. The only question is whether a reasonable similarly situated person would be deterred from seeking to avail themselves of the defendant’s services. In a footnote, she notes that the Seventh Circuit decision also makes no sense because by forcing a person with a disability to download the app, you are forcing the person with disability into arbitration. This set of circumstances is manifestly (her words), inconsistent with Congress’s express intent to allow plaintiff to challenge public accommodations that are not in compliance with the ADA even if they do not personally encounter the discriminatory barriers themselves.
  3. Complaint sufficiently allege facts that Uber is a transportation entity subject to 42 U.S.C. §12184 and sufficient allegations existed to make the claim that Uber was primarily in the business of transporting people. That is, an entity can provide a public transportation service without actually conveying or transporting people itself.
  4. A specified public transportation service per the ADA includes a vehicle taking a person to any other location in the metropolitan area at a predetermined price.
  5. Under the District of Columbia code, the lack of a real physical space associated with the Uber app does not at all mean that Uber cannot plausibly be considered a place under the District of Columbia Human Rights Act. Further, the District of Columbia Human Rights Act can extend beyond brick-and-mortar buildings because the definition of a place of public accommodation expressly includes all public conveyances operated on land or water in the air.

 

Von Drasek v. Burwell

 

In this particular case a federal employee waited until the very last minute to let her employer know that she had a disability. That is, when she received notice that she was about to be separated from employment soon, she then filed her reasonable accommodation requests. Her employer was having none of it and claimed that the notification simply came too late. Judge Brown Jackson disagreed but nevertheless finds causation not present. This one is interesting, and I may have a dissenting view. Let’s explore below:

 

  1. Rehabilitation Act causation is according to 29 U.S.C. §794(a) is, “solely by reason of.” Therefore, motivating factor is out and but for is in. But for means the employer’s conduct “was the reason,” that the employer decided to act citing to Gross.
  2. A request for accommodation of a disability is timely if the institution is in a position to respond to the request.

 

I dissent: Readers of my blog entries will probably not be surprised to find out that with respect to the causation analysis in this decision, I respectfully dissent so to speak. First, federal employees are subject to §501 of the Rehabilitation Act. 29 U.S.C. §791(f) provides that the standards used to determine whether employment discrimination occurs shall be the standards applied under title I of the ADA of 1990. Title I of the ADA of 1990 is “on the basis of.” Second, I am aware that a line of cases exists saying that but for causation is essentially sole causation. However, Bostock, which we discussed here, has changed all of that so that but for, by reason of, and on the basis of now mean determining factor. To be fair to Judge Brown Jackson, Bostock was not decided at the time of this opinion. Even so, I just don’t follow the causation analysis because the plaintiff was a federal employee and therefore, §501 was in play and not §504.

 

Alford v. Providence Hospital

 

This is a very interesting case whereby a plaintiff filed a lawsuit alleging violations of the FMLA and the District of Columbia’s FMLA while her ADA claim was working its way through the EEOC. Once the EEOC gave a right to sue sometime later, she filed a separate ADA claim in federal courts. The defense said that res judicata prevented the separate ADA claim from going forward. Judge Brown Jackson agrees and the case gets thrown out on res judicata grounds. To Judge Brown Jackson the problem was the plaintiff could have done other things to prevent the problem from happening. For example, the plaintiff could have done any of three things: 1) filed the EEOC complaint, weight its outcome, and then file all the claim simultaneously in the same complaint in District Court; 2) file one administrative complaint and one complaint in federal court, then seek to stay the federal court proceedings pending the outcome of the EEOC proceedings; or 3) file both EEOC complaint in the federal district complaint, request the right to sue notice after 180 days, then seek to amend the federal complaint to include the additional claims.

 

Mitchell v. Pompeo

 

In this case, an asthmatic employee could not meet the physical requirements of the job. There wasn’t much dispute about that, but she did make clear that she wanted to work with the State Department somehow if possible. The State Department terminates her instead, and she sues under both the ADA and the Rehabilitation Act. Here are some of the salient points from that decision:

 

  1. The ADA does not apply to the federal government.
  2. Citing favorably to a decision saying that mandatory reassignment was in play for persons with disabilities, she said that an employee seeking reassignment to a vacant position is within the definition of a qualified individual with a disability if with or without reasonable accommodations, she can perform the essential functions of the employment position to which she seeks reassignment.
  3. A qualified individual is an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
  4. When accommodation cannot be made in the employee’s current position, the federal employer must (italics of this word is in the actual opinion), consider the feasibility of reassigning the disabled employee to a vacant position.
  5. The State Department did not present any evidence to show that there was no available position that the plaintiff could have performed.
  6. A straightforward request is asking for continued employment is a sufficient request for accommodation.
  7. “It does not appear that State perform its duty of actually helping Mitchell [the plaintiff] to find another position, beyond just pointing her to job postings.”
  8. While there is no independent cause of action for failure to engage in the interactive process, not doing so is prima facie evidence that the employer is acting in bad faith.

 

II

 

Thoughts/Takeaways

 

  1. Unusual for a hearing Judge, which I presume she is, Judge Brown Jackson truly gets Deaf and deaf.
  2. Mandatory reassignment cases will make their way to the Supreme Court undoubtedly while she is still on the bench. Mitchell v. Pompeo gives a strong indication that she is likely to come down on the side of the Seventh Circuit or something very close to that rather than on the side of the 11th Circuit.
  3. One wonders if she will not revisit her view of causation with respect to federal employees once on the Supreme Court when the federal employee representatives points out that §501 of the Rehabilitation Act is a completely different animal than §504 Rehabilitation Act.
  4. Judge Brown Jackson is likely to be very receptive to review that title III of the ADA does not require a physical place, a view we discussed here.
  5. If I gleaned a judicial philosophy at all it would be that she appears to very much look to what is the purpose of the legislation and then will interpret provisions broadly in order to carry out that purpose. You see that in particular with Pierce and Equal Rights Center. You also see that in Von Drasek where she has a very broad notion of when accommodation request is timely.

Y’all may be wondering where my blog entry from last week went. I was absolutely slammed with client matters and could not get to it. I’ve got a moment now. So, this blog entry is going up at the beginning of this week. Before moving onto the blog entry of the day, there have been some interesting developments in the area of regulatory bodies and disability rights recently. First, the pandemic has raised the issue of whether persons with disabilities are being valued less when it comes to deciding on medical care when choices have to be made. The Federal Constitutional Court of Germany said that isn’t going to happen, here. Also, the Department of Health and Human Services recently put out a question and answer document, here, saying essentially the same thing. Finally, in other regulatory developments, DOJ added to its Common Questions about Covid-19 and the ADA document, here, a section dealing with hospitals and medical facilities excluding all visitors and a section on outside eating spaces at restaurants. For those in the ADA world all the time like myself, I did not find the DOJ information particularly surprising.

 

Turning to the blog entry of the day, it deals with the question of when and if a request for documentation pursuant to legitimate disability related inquiries goes too far. I have not seen a lot of case law in this area before. For current employees, the ADA prohibits medical exams/disability related inquiries unless they are job-related and consistent with business necessity. That limitation also serves to limit any further medical exam or disability related inquiry to those narrow issues. Title II and title III in their technical assistance memorandum also prohibit unnecessary inquiries. Even with all this, it can be difficult to figure out when a document request has gone too far. Cofffey v. Norfolk Southern Railway Company from the Fourth Circuit decided January 14, 2022, here, helps answer the question as to how far a document request can go. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning federal regulatory background; court’s reasoning that Norfolk Southern acted in accordance with its due diligence obligations because its inquiries were job-related and consistent with business necessity; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

As a locomotive engineer, he, plaintiff, was responsible for operating the train, and he had to perform such tasks as responding to hazards on the railroad tracks to prevent collision or derailment. The position required him to walk across uneven tracks and climb steps to board and deboard the train multiple times per shift. Locomotive engineers are subject to Federal Railroad Administration (FRA) regulations regarding alcohol and drug use.

In 2012, a train that Coffey was operating derailed. Shortly thereafter, a drug test revealed the presence of amphetamines in Coffey’s system. Coffey was permitted to continue working, but he was subject to follow-up drug testing for five years. In April 2016, one of these drug tests showed the presence of amphetamines and codeine. Coffey explained that he had prescriptions for both medications: the amphetamines were Adderall, which he took for Attention Deficit/Hyperactivity Disorder (ADHD), and the codeine was Tylenol #3, which he took for a back condition.

In response, Norfolk Southern requested that Coffey provide certain records relating to his medication usage within thirty days. The letter stated that Coffey’s treating physicians should address, among other things, Coffey’s diagnoses, significant symptoms, medication regimen and compliance with that regimen, medication side effects, awareness of other medications prescribed by other doctors, ability to safely perform essential job functions, and recommended work restrictions or accommodations. According to Coffey, he asked his doctors to send the records and he believed they followed through. Norfolk Southern denies having received any records within the thirty-day time frame.

Six weeks later, in June 2016, Coffey ruptured his Achilles tendon and took medical leave from Norfolk Southern. Norfolk Southern requested that when Coffey was ready to return to work, he provide medical information about his injury so that it could determine his fitness for service as an engineer. Coffey remained on medical leave from Norfolk Southern for approximately ten months, and in April 2017 his primary care physician cleared him to return to work. At that point, Norfolk Southern sent Coffey a follow-up letter seeking all the records it had previously requested regarding both his medication use and his injury. Coffey says that he repeatedly asked his doctors to provide the requested information to Norfolk Southern. Norfolk Southern repeatedly denied having received the records, and it sent two more letters demanding compliance within certain time frames. Coffey says that this became a recurring pattern where Norfolk Southern would demand records, Coffey would ask his doctor to send them, and Norfolk Southern would inform him that it had not received anything.

In June and July of 2017, Norfolk Southern eventually received certain records from Coffey. Those submissions included a two-sentence note from Coffey’s treating physician clearing him to work without restrictions after the injury; the results from a functional capacity evaluation completed some months prior; a one-page note from one of Coffey’s doctors verifying that he had a Tylenol #3 prescription; and a one-page note from another of Coffey’s doctors verifying that he had an Adderall prescription. However, Norfolk Southern was unsatisfied with the records it received, stating that they failed to include specifically requested information such as medication side effects or the physicians’ knowledge of other prescriptions. It therefore notified Coffey that he would be subject to a disciplinary hearing to be held on September 7, 2017. For that hearing, Coffey submitted approximately four hundred pages of medical records. Upon determining that the records produced still did not address much of the required information, Norfolk Southern terminated Coffey’s employment.

II

Court’s Reasoning Federal Regulatory Background

  1. Since the beginning of railroad transportation, courts have recognized that railroads present all kinds of danger to the community.
  2. The operation of railroads require the use of instruments and agencies attended with special risk and dangers, the proper management of which involves peculiar knowledge, training, skill and care. If that isn’t done, there can be serious ramifications including loss of human life or property, toxic environmental damage, and infinite litigation. It isn’t surprising that the term “train wreck,” is a shorthand for mishaps of all sorts.
  3. Railroad operators have a very strict responsibility for preventing damage.
  4. The railroad industry is regulated pervasively to ensure safety by both the federal and state governments.
  5. Locomotive engineers in particular are engaged in safety sensitive task because they discharge duties with such risk of injury to others that even a momentary lapse of attention can have disastrous consequences. Not surprisingly, the Supreme Court has upheld constitutional challenges to regulations requiring drug and alcohol testing of certain railroad employees, including engineers because of the great potential of human loss. The Supreme Court emphasized the great public interest in ensuring railway safety underlying those regulations.
  6. Engineers must be aware of whether there are items or obstructions on the track, such as branches, animals, or even pedestrians. They also have to slow down at certain points in the journey where a stop was not planned or respond to unexpected weather conditions. They have to ensure that all personnel are on board when departing the station. They have to navigate switches and intersection where cars cross the rails. Even with technology, the human element can never be removed entirely, so the need for sound judgment remains.
  7. Federal regulations say that no regulated employee may use or possess any controlled substance when the employee is on duty and subject to performing regulated service for railroad. Those regulations also say that an employee may not report for duty or remain on duty while under the influence of or impaired by any controlled substance.
  8. The regulations do allow for medications prescribed or authorized by a medical practitioner only under three conditions: 1) if a physician has made a good faith judgment with notice of the employee’s assigned duties and on the basis of the available medical history, that use of the substance by the employee at the prescribed or authorized dosage level is consistent with the safe performance of the employee’s duties; 2) if the employee uses the medication at the doses prescribed or authorized; and 3) if the employee is being treated by multiple physicians, at least one has been informed of all medications authorized or prescribed and has determined that use of the medications is consistent with the safe performance of the employee’s duties. Finally, amphetamines and coding are specifically listed as substances to which the regulations apply.
  9. The regulations also impose on railroads a duty to exercise due diligence to assure compliance by each regulated employee. So, Norfolk Southern was under an obligation to make further inquiries to ensure that plaintiff’s use of his medication complied with the applicable safety regulation. It also had to investigate whether plaintiff had valid prescriptions, whether he was using the medications as prescribed, whether the position thought he could safely perform his duties well on the medication, and whether at least one physician was aware of any other prescriptions and thought they could all be used safely together.

III

Court’s Reasoning Norfolk Southern Acted in Accordance with Due Diligence Obligations Because Its Inquiries Were Job-Related and Consistent with Business Necessity

  1. Job related and consistent with business necessity is an objective inquiry.
  2. Citing to Kroll, which we discussed here, the Fourth Circuit said that job related and consistent with business necessity standard is satisfied if the employer reasonably believes that an employee’s medical condition impaired his ability to perform the essential functions of the job or the employee poses a direct threat to himself or others.
  3. Business necessity must be based upon more than just mere expediency. That is, the employer must show that the asserted business necessity is vital to the business and that the request is no broader or more intrusive than necessary.
  4. Once plaintiff’s drug test revealed that he was using codeine and amphetamines, Norfolk Southern had an objective basis to believe that those substances could impact plaintiff’s ability to operate a train.
  5. EEOC’s enforcement guidance even says that certain employers may be able to demonstrate job-related and consistent with business necessity when it comes to requiring employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions.
  6. Each of Norfolk Southern’s specific inquiries into plaintiff’s medication usage were related to plaintiff’s job. The information they sought was unquestionably consistent with the necessity of ensuring the safe operation of its trains. That the inquiries require plaintiff to provide ample record does not change the conclusion.
  7. Norfolk Southern, given its public safety responsibilities, was more than justified in my collecting enough information to permit an informed decision about whether it was safe for its employee to operate a train.
  8. The inquiries of Norfolk Southern were not only related to plaintiff’s job but were in fact required by federal regulations. Complying with legally binding federal regulations is by definition a business necessity. So, a court cannot read the ADA to subject railroad to substantial liability when attempting to obtain information required by federal regulation that is highly germane to public safety.
  9. The business necessity defense is not negated even though there may have been a better way for Norfolk Southern to get the information it needed other than the way it chose. That is, the employer does not have to show that the examination or inquiry is the only way of achieving a business necessity, instead the employer has to show that the examination or inquiry is a reasonably effective method of achieving it. So, Norfolk Southern’s request for plaintiff to submit his own medical records in response to specific queries was clearly a reasonably effective method of investigating medication use.
  10. Plaintiff’s response to Norfolk Southern’s inquiries with one-page letters was not sufficient to satisfy Norfolk Southern’s regulatory requirements, and plaintiff even recognize that the letters he submitted did not address the issues that Norfolk Southern had to address because of federal regulations.d
  11. In a footnote, the court said that improper medical inquiry claims under the ADA stand apart from general claims of discrimination and do not require the plaintiff to show that he has a disability. After all, it would make little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability.

IV

Thoughts/Takeaways

  1. This case does give useful guidance on when a documentation request goes too far. That said, it is very important to remember that pervasive final federal regulations played a critical role in the court’s decision.
  2. As a preventive law matter, any inquiries should be no broader nor more intrusive than necessary. The TAM’s for title I-III all have unnecessary inquiry prohibitions. See, EEOC title I Technical Assistance Memorandum, I-6.6; DOJ title II Technical Assistance Memorandum, II-3.5300; DOJ title III Technical Assistance Memorandum, III-4.1300 .If specific federal regulations are involved, an employer may have more leeway with respect to the amount of information requested. Even then, be sure to stick to the regulations closely with respect to the information requested.
  3. Kroll has been one of my go to decisions for years as readers of the blog know.
  4. Direct threat is a very high standard. See this blog entry for a discussion of direct threat.
  5. Business necessity is also a high standard as it must be vital to the business.
  6. It’s one thing to mandate reporting the medications, but don’t forget what you do with that information must also be consistent with the ADA. For example, you still have to ascertain whether the person is otherwise qualified, whether it be under title I or title II when you are dealing with an employer or with a nonfederal governmental entity.
  7. When it comes to medical exams and disability related inquiries, it is clear that it is a separate cause of action, and you do not have to have a disability to assert such a claim.

In a prior blog entry, here, I discussed how there is an opportunity for plaintiff lawyers when it comes to medical licensing boards and professional recovery programs. On February 2, 2022, that opportunity only increased as a result of a letter from the Department of Justice to the Supreme Court of Pennsylvania and its Administrative Office of Pennsylvania courts. The Pennsylvania courts frequently prohibit and sometimes limit the use of disability related medication to treat opioid use disorder (OUD) by individuals under their supervision.  The DOJ believes that such policies violate the ADA in several different ways. This letter has absolute huge implications because professional recovery programs frequently insist on abstinence as a condition of completing their programs. In many professional recovery programs, if the individual does not prove abstinence through an elaborate testing ritual over a period of many years, their license to practice their healthcare profession is severely at risk. As usual, the blog entry is divided into categories and they are: OUD treatment possibilities; the ADA violation by Pennsylvania courts; corrective measures needing to be taken by the Pennsylvania courts; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

OUD Treatment Possibilities

 

When it comes to treating drug addiction, everybody thinks of twelve-step programs. However, those programs do not work for everybody. When it comes to treating opioid use disorder, there are medications approved by the Food and Drug Administration that are proven effective in treating OUD, including methadone, naltrexone, and buprenorphine. Methadone and buprenorphine help diminish the effect of physical dependency and opioids, such as withdrawal symptoms and craving, by activating the same opioid receptors in the brain targeted by prescription or illicit opioid without producing euphoria. Naltrexone treats OUD by blocking opioid receptors and thereby preventing rewarding effects such as euphoria or pain relief. When taken as prescribed these medications are safe and effective.

 

How long a patient receives the medication is tailored to the needs of each patient and sometimes can be indefinite. According to the US Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, OUD medication can be taken on a short or long-term basis, including as part of medically supervised withdrawal and as maintenance treatment. The best results occur when patients receive medication for as long as it provides a benefit. The medication gives people the time and ability to make necessary life changes associated with long-term remission and recovery, minimizes cravings and withdrawal symptoms, and lets people better manage other aspect of their life, such as parenting, attending school, or working.

 

The US Department of Health and Human Services Substance Abuse and Mental Health Services Administration cautioned that patients who discontinue OUD medication generally return to illicit opioid use. If a patient plans to stop using those medications, the Department of Health and Human Services Substance Abuse and Mental Health Services Administration advises that they and their providers base decisions on knowledge of the evidence base for the use of these medication, individualized assessment, and an individualized treatment plan they collaboratively develop and agree upon. Arbitrary time limits on the duration of treatment with OUD medication is not advisable.

 

II

The ADA Violation by Pennsylvania Courts

 

DOJ singled out the Jefferson County Court of Common Pleas, the Northumberland County Court of Common Pleas, and County treatment courts for requiring abstinence or severely limiting the use of OUD medications for people who were benefiting from such medications but had to forgo those medications in order to participate in the court programs.

 

The DOJ says violations of the ADA by such practices are numerous, including:

  1. Discriminating against a person because that person takes medication to treat a disability.
  2. Denying people equal opportunity to benefit from its programs because of their disability by requiring under threat of incarceration that they stop taking medication they had been legally prescribed to take.
  3. With respect to a person that tried to stay on the medication, the drug court violated the ADA by denying access to programming available to other participants, subjecting her to more stringent supervision and treatment requirements, and substantially delaying her progress through the drug court program despite meeting the criteria for advancement.
  4. The tapering off requirements imposed by the Jefferson and Northumberland County Court of Common Pleas penalized individuals for their disabilities and were not justified by any individualized medical or security assessments.
  5. Imposed an eligibility criterion that screens out or tend to screen out individuals with OUD thereby preventing them from fully and equally enjoying the court’s programs when the criterion is not necessary for the provision of those programs. That is, the policies requiring individuals to stop using buprenorphine were not necessary to ensure that they or other individuals under the court supervision achieved stability and sustainable sobriety and avoided recidivating. In fact, the doctors of these individuals had prescribed that medication because the individuals had struggled to remain sober without the assistance of that medication. The treatment experiences of those individuals aligned with research showing that long-term use of OUD medication minimized cravings and withdrawal symptoms. It also lets individual better manage other aspect of their lives, including parenting, attending school, and working.
  6. The practices of the Pennsylvania courts constitute discriminatory methods of administration in violation of title II of the ADA. The bans and limitations imposed by the courts subject qualified individuals with OUD to discrimination and impair or defeat accomplishment of the objectives of the very programs in which those individuals participate.

 

III

Corrective Measures Needing to Be Taken By the Pennsylvania Courts

 

  1. The Pennsylvania courts must adopt or revise written policies to explicitly state that none of their courts can discriminate against, exclude from participation, or deny the benefits of their services, program, or activities-including County court proceeding, probationary program, and treatment to qualified individuals with disability because they have OUD.
  2. Identify an ADA coordinator responsible for monitoring court program, training court staff, and overseeing investigations and resolutions of ADA complaints or grievances.
  3. Update their complaint process as needed to ensure that ADA related complaints filed against any court in the Pennsylvania court system are promptly reviewed, investigated and addressed by appropriate action, and that the results of the review are provided in a timely manner each individual complainant.
  4. Appropriately train and educate all court staff about opioid use disorder and the nondiscrimination requirements of title II of the ADA.
  5. Pay compensatory damages to the complainant’s and other aggrieved individuals for injuries caused by the county court actions described in the letter.
  6. Provide the United States with written status reports setting forth all the steps taken to comply with these requirements, including the dates on which each step was taken, and, where applicable, information sufficient to demonstrate compliance.

 

 

IV

Thoughts/Takeaways

 

  1. The letter is essentially a demand letter. If the Pennsylvania courts do not agree to cooperate or negotiations are not successful, the United States may pursue further action under 28 C.F.R. §§35.173, 35.174.
  2. The people making the complaint are free to file their own private lawsuits.
  3. There are court decisions out there saying that abstinence only is a violation of the First Amendment. See this case for example.
  4. The DOJ is now on record that imposing abstinence only requirements on people dealing with addiction when an individualized analysis says other approaches work for an individual with the addiction, violates the ADA.
  5. Professional recovery programs now need to seriously reconsider whether their abstinence only requirements should continue, especially when an individualized analysis of that individual strongly suggest another way to go about it.
  6. People representing individuals with disabilities in professional recovery programs now have a letter from DOJ to fight back against any abstinence only requirements, especially if they can show that another system is working.
  7. It isn’t just addiction that gets hit with these abstinence only requirements. I have seen ADHD medications get hit with abstinence only requirements in professional recovery programs as well.
  8. Keep in mind, that this is a title II matter and not a title III matter. Nonfederal governmental entities are subject to title II. However, professional recovery programs are more often than not subject to title III. However, just because professional recovery programs are subject to title III, does not give them a get out of jail free card with respect to the DOJ letter. The reason is because title III final implementing regulations have similar provisions that would also make the DOJ letter equally applicable to title III situations.
  9. The corrective measures require the ADA coordinator position that have real teeth by requiring that individual to be responsible for monitoring ADA compliance, training court staff, and investigating and resolving ADA complaints and grievances.
  10. Training, training, training. Make sure your trainer is ADA knowledgeable (training is a large part of my practice).
  11. While professional recovery programs are title III entities, it is possible that they may also be title II entities if they are considered a state actor per this case.
  12. The DOJ letter put title II entities on notice of the ADA violations inherent in abstinence only policies, practices, and procedures. As such, failure to correct such policies is arguably deliberate indifference per this case and could subject the title II/state actor entity to damages.
  13. Cummings, oral argument discussed here, to be decided by the Supreme Court soon may also allow for emotional distress damages upon a showing of deliberate indifference.

Today’s blog entry is a two for one, both dealing in the failure to accommodate space broadly speaking. The first case is Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001). That case considers the question of whether conduct related to a disability has to be evaluated differently with respect to the same conduct that is not related to a disability. I realize the case is 21 years old, but it is still good law. Also, it provides a useful counterpoint to this blog entry, where we discussed how having a disability is not a get out of jail free card for bad conduct. Can the two cases be reconciled? I believe they can be. The second case is Adams v. Stealthbits Techs, here, what appears to be an unpublished decision decided by the United States District Court for the Southern District of Ohio on January 3, 2022. That case asks the question of whether a leave of unspecified duration is protected under the ADA. As usual, the blog entry is divided into categories and they are: Humphrey facts; Humphrey reasoning; Humphrey takeaways; Adams facts; Adams reasoning; and Adams takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Humphrey Facts:

 

The facts are quite involved but they can be simplified greatly. What you have here is the plaintiff had obsessive-compulsive disorder and as a result had difficulty in getting to work on time if at all. Her employer was fully aware of the situation. The employer also allowed other employees who did the plaintiff’s job (medical transcriptionist), to work from home. The employer refused to allow her to work from home because of her history of not showing up to work on time and missing work, all of which was related to her disability. Plaintiff’s work that she did do from home was outstanding. Despite entreaties from the plaintiff, the employer refused to engage in an interactive process and subsequently terminated her. She filed suit.

 

II

Humphrey Reasoning

 

  1. Plaintiff was substantially limited in her ability to care for herself in that it took her significantly more time than the average person to accomplish the basic task of washing and dressing. According to the plaintiff, the process of washing and brushing her hair alone could take several hours, and she at times would prepare for work from 8 o’clock in the morning until 5 or 6 o’clock in the evening.
  2. An individual who has a physical or mental impairment causing him or her to take inordinately more time than others to complete a major life activity is substantially limited in that activity per the ADA.
  3. Plaintiff had the skills, training, and experience to transcribe medical records.
  4. Either the accommodation of granting her a leave of absence or allowing her to become a home-based transcriptionists were reasonable accommodations per the ADA that may have enabled the plaintiff to perform the essential functions of her job with or without reasonable accommodations.
  5. It is inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated. Therefore, plaintiff’s disciplinary record does not constitute an appropriate basis for denying her a work at home accommodation.
  6. The employer had an affirmative duty under the ADA to explore further methods of accommodation before terminating the plaintiff.
  7. An employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodations and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. Such a rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective.
  8. An attempt by the plaintiff to perform her job function by means of a less drastic accommodation does not forfeit her right to a more substantial one upon the failure of the initial effort.” The employer had a duty to explore further arrangements to reasonably accommodate plaintiff’s disability.
  9. Plaintiff realized that the accommodation was not working and requested a work at home position. When the employer received that request, the employer could have either granted that or initiated discussions with the plaintiff regarding other alternatives. Instead, her employer denied the request without exploring any alternative solutions or even exploring with her the possibility of other accommodations. Rather than fulfill its obligation to engage in a cooperative dialogue with the plaintiff, the employer suggested the matter was closed.
  10. An employer fails to engage in the interactive process as a matter of law when it rejects the employee’s proposed accommodation by letter and offers no practical alternatives.
  11. With few exceptions, conduct resulting from a disability is considered to be part of the disability rather than a separate basis for termination. That link between the disability and termination is particularly strong where its the employer’s failure to reasonably accommodate a known disability that leads to discharge for performance inadequacy resulting from that disability.
  12. In a footnote, the court notes that the texts of the ADA authorizing discharges for misconduct or inadequate performance that may be caused by a disability is in only one category of cases-alcoholism and illegal drug use. In line with that provision, the Ninth Circuit has applied a distinction between disability-caused conduct and the disability itself as a cause of termination only in cases involving illegal drug use or alcoholism.

 

III

Humphrey Takeaways

 

  1. OCD is a disability under the ADA. However, do not get hung up on diagnosis. Your best approach is to evaluate whether you have a physical or mental impairment that substantially limits a major life activity rather than focus on any diagnosis.
  2. Magic words are not required.
  3. The interactive process is always a good idea. Sound preventive law demands that the interactive process continue until it is clear the process had reached a dead end. In that way, the employer can satisfy its affirmative duty to explore further methods of accommodation before termination. The employer should always be sure to offer alternatives. Work with the person with the disability and call the Job Accommodation Network if your stuck.
  4. Interactive process
  5. If conduct is occurring that is arguably related to a disability, initiate the interactive process.
  6. Remember the do’s and don’ts of the interactive process, which we discussed here.
  7. The case is good law. If you look at the cases citing it, most of them are in the Ninth Circuit jurisdiction but not always.
  8. Be careful about policies that automatically deny accommodations for prior conduct where that conduct is a manifestation of an individual’s disability.
  9. While disability is not a get out of jail free card for bad conduct, as we discussed here, that doesn’t mean the employer can forget about the interactive process. In that way, I don’t think the two cases being discussed in this blog entry are irreconcilable at all.

 

IV

Adams Facts

 

The facts of this case can also be simplified greatly. What you have here is a plaintiff with a long history of major depressive disorder. She gets recruited to work for another company as a result of a successful working relationship with an individual who moved over to that company whom she used to work with. The medication that she was on for years stopped working effectively and she has tremendous difficulty getting a medication regimen going that worked. That was not unusual for her, and in the past she would take leave from wherever she worked so that she could get the medication regimen ironed out. Plaintiff suggested 4 to 6 weeks of short-term leave as a reasonable accommodation to work out the medication regimen because that amount of time was sufficient in the past. The employer was having none of it and depending upon who you believe, either terminated her or plaintiff resigned. She then brought suit.

 

V

Court’s Reasoning

 

  1. The two kinds of voluntary resignation or constructive resignation and effective resignation.
  2. An effective resignation requires that the employee express an intention to resign and that the employee take some action to demonstrate that he or she is relinquishing his or her position.
  3. When plaintiff went to her employer to ask what her options were for a short medical leave to adjust to her new depression medication and told her employer that 4 to 6 weeks was needed in light of her past experience, that was not an intent to resign. Rather, a jury could conclude that was a request for medical leave and not an intention to quit.
  4. Medical leave can in some circumstances constitute a reasonable accommodation under the ADA. Factors to consider are the length of the requested leave, whether leave was provided previously, and whether the duration is definite.
  5. Even though plaintiff did not provide a specific return date, she did provide an expected duration.
  6. Whether three, or 4-6, or 6 to 8 weeks, a jury could reasonably conclude that the cost of the leave is not clearly exceeded by the benefit of plaintiff’s controlling her major depression.
  7. An employee has the burden of proposing an initial accommodation, and the employer had the burden of showing how the accommodation would cause an undue hardship. However, the employer is not required to propose a counter accommodation in order to participate in the interactive process in good faith. If a reasonable counter accommodation is offered, the employee cannot demand a different accommodation.
  8. The employer never commented on any hardship that plaintiff’s leave would cause. Further, a person from HR testified in her deposition that she and the plaintiff did not get into the interactive process and go down that route.
  9. The employer did not establish that a reduction in work hours was a reasonable counter accommodation since her doctor had recommended that she take a short leave while her body adjusted to the new medication. So, a jury could conclude that her employer terminated the plaintiff without considering her initial accommodation request and therefore failed to engage in the interactive process in good faith.
  10. There was also a failure to rehire claim that the court threw out.
  11. The court also allowed a wrongful discharge as against public policy claim under Ohio law to proceed to trial. Also,with respect to Ohio law claims, the court threw out several claims, including: reasonable accommodation; failure to engage in the interactive process in good faith; failure to rehire the plaintiff in retaliation for exercising her right to request reasonable accommodation and refusing to sign away protective rights; and discrimination by unequal treatment.
  12. The court also denied summary judgment on the Ohio law claim for breach of implied covenant of good faith and fair dealing.
  13. The court also denied summary judgment for the employer’s counterclaim for misappropriation of confidential and proprietary information under Ohio and federal law.

 

VI

Adams Takeaways

 

  1. Indefinite leave is not the same thing as a leave of unspecified duration and the distinction matters a great deal.
  2. Empathy on the part of the employer can go a long way towards preventing litigation.
  3. Interactive process
  4. It is helpful to think of a reasonable accommodation as whatever gets the person with the disability to the same starting line as a person without a disability. Be creative and be sure to involve the person with the disability.
  5. Don’t forget about state law claims. Many times the state antidiscrimination laws can go further than the ADA or they can be quite a bit different.
  6. Interactive process
  7. Remember the do’s and don’ts of the interactive process.

Today’s blog entry returns us back to the world of legal malpractice. You simply do not see a lot of legal malpractice with respect to ADA matters, and I have always wondered why. We have discussed legal malpractice with respect to ADA matters before, such as here. The case of the day is Suburban Real Estate Services, Inc. v. Carlson decided by the Illinois Supreme Court on January 21, 2022, which can be found here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and what does this have to do with the ADA-thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories. Before moving into the blog entry, a note about what you see when you pull up the case. Illinois some years ago adopted an Internet-based citation format. The paragraph symbols in the opinion essentially substitute for what you would usually think of page numbers. Illinois also doesn’t deal with the published/unpublished distinction.

 

I

Facts

 

In May 2010, Barus retained William Roger Carlson Jr. and his law firm Carlson Partners, Ltd., (collectively defendants) for legal advice in unwinding Suburban’s relationship with ROC/Suburban. After obtaining defendants’ assistance, Barus sent a “break-up” letter to Siurek, notifying him of the steps he planned to take to terminate Suburban’s relationship with ROC/Suburban. In August 2010, ROC sued Suburban, alleging that the actions taken by Suburban, by and through Barus, pursuant to the “break-up” letter constituted a breach of fiduciary duty owed to ROC/Suburban. In October 2010, Barus retained the law firm of Gaspero & Gaspero, Attorneys at Law, P.C. (Gaspero Law Firm), to defend Suburban in the ROC litigation. In June 2015, after a bench trial, the trial court entered judgment for ROC. The court found that Suburban, through Barus, had breached its fiduciary duties and ordered it to pay ROC 50% of the fair value of the assets that Barus had improperly transferred out of ROC/Suburban. The court awarded damages against Suburban in the amount of $336,652.26. Thereafter, in May 2016, plaintiffs filed a legal malpractice action against defendants. In their first amended complaint, they alleged that defendants were negligent in that they failed to properly advise plaintiffs of the proper steps to obtain – 2 – a judicial dissolution of ROC/Suburban, recommended and/or approved the selfhelp actions that resulted in plaintiffs breaching fiduciary duties owed to ROC/Suburban, and failed to advise them of the consequences of these actions. They further alleged that, as a direct and proximate cause of defendants’ negligence, they suffered damages in excess of $600,000.

 

Defendants moved for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2018)), asserting that the legal malpractice claim was barred by the two-year statute of limitations (735 ILCS 5/13- 214.3(b) (West 2018)). They argued that the plaintiffs sustained an injury resulting from defendants’ alleged negligence beginning in November 2010, when they retained new counsel and began paying them attorney fees. Defendants argued plaintiffs knew they were injured in April 2013 at the latest, when the trial judge in the underlying action told plaintiffs’ new counsel that a malpractice action was a certainty and when plaintiffs sought advice about whether a malpractice claim should be filed. In support, defendants attached various exhibits, including the deposition testimony of both Carmen and Lisa Gaspero of the Gaspero Law Firm. According to their testimony, at a pretrial settlement conference in April 2013, the trial judge made it clear to Carmen and Lisa Gaspero that he would likely find Barus liable for breach of fiduciary duty if the ROC lawsuit went to trial. The court also voiced its belief that the attorney representing Barus in June 2010 “one hundred percent” committed malpractice. After the pretrial conference, the Gasperos consulted with a lawyer specializing in legal malpractice claims to evaluate a potential claim against defendants. That lawyer advised them to wait until the ROC litigation was resolved to file a claim.

 

The trial court granted summary judgment in favor of defendants, finding that plaintiffs had notice of the malpractice claim as early as 2010, when ROC filed the underlying lawsuit, and no later than April 2013, when the trial judge told counsel that plaintiffs’ malpractice action was a certainty and when counsel sought advice as to when a malpractice action should be filed. The appellate court reversed and remanded, finding that plaintiffs timely filed their legal malpractice claim. The court reasoned that plaintiffs did not suffer a realized injury until the trial court found a breach of fiduciary duty and entered a judgment against them in June 2015. The court further rejected defendants’ theory that plaintiffs’ payment of attorney fees purportedly related to defendants’ negligent advice constituted an injury, triggering the statute of limitations.

 

II

Court’s Reasoning

 

  1. A legal malpractice claim accrues when the client knows or reasonably should have known of the injury for which damages are sought.
  2. To figure out when a claim for legal malpractice accrues, you have to identify the injury and then determine when the injury was discovered or should have been discovered.
  3. The injury in a legal malpractice claim is not a personal injury or the attorney’s negligent act. Instead, it is a pecuniary injury to an intangible property interest caused by the lawyer’s negligent act or omission.
  4. In a legal malpractice action, a client is not considered injured unless and until he or she has suffered a loss for which monetary damages may be sought. No action can be sustained against the attorney unless that negligence proximately caused damage to the client.
  5. The existence of actual damages is essential to a viable cause of action for legal malpractice. That is, unless the client can demonstrate that he has sustained a monetary loss as a result of some negligent act on the lawyer’s part, his or her cause of action cannot succeed. Further, demonstrating the existence of damages requires more than supposition or conjecture, and where damages are speculative, no cause of action for malpractice exists.
  6. No injury exists and therefore no actual claim arises, unless and until the attorney’s negligence results in the loss of the underlying cause of action.
  7. In some cases, such as this one, the alleged negligence relates to legal advice given by a transactional attorney during his representation of a client. After allegedly following counsel’s legal advice, the client is subsequently sued by a party involved in the transaction. Thus, to determine when a legal malpractice claim accrues, you first have to figure out the alleged injury for which damages are sought.
  8. A variety of Illinois cases stand for the proposition that unless the client can demonstrate he or she has sustained a monetary loss as the result of some negligent act on the lawyer’s part, his or her cause of action cannot succeed. It is the realized injury to the client and not the attorney’s misapplication of expertise that marks the point in time for measuring compliance with a statute of limitation period.
  9. Merely hiring new counsel to defend against a lawsuit challenging the attorney’s legal advice and incurring fees does not by itself trigger a cause of action for malpractice. By providing legal representation, an attorney is not guaranteeing the client he or she represents will never be sued or agreeing to indemnify the client if it is sued.
  10. Even though plaintiff may have been alerted in April 2013 to the trial court’s assertion that counsel badly advised them in unwinding the company, the possibility of damages was not actionable unless and until the underlying litigation ended adversely to plaintiffs with a finding that plaintiff breached their fiduciary duties. It was not until then that plaintiffs became obligated to pay a sum that they otherwise would not of had to pay but for defendants alleged negligence. Had the action resulted in an outcome favorable to plaintiffs, no cause of action for legal malpractice would have accrued.

 

III

What Does This Have to do with the ADA-Thoughts/Takeaways

 

  1. Legal malpractice is a state law proposition. So, be sure to check your state law on the applicable rules. It is entirely possible that your State would not agree with this decision. It is also possible it will.
  2. In the blog entry we discussed here, we talked about the elements of the legal malpractice claim and some particular areas of the ADA that are particularly prone to legal malpractice claims. In particular, there are three areas that could be affected by a decision like the one we are discussing here. First, let’s say you have a situation where a client files for SSDI, but the attorney does not formulate the papers in such a way to make clear accommodations are not factored into the SSDI analysis in deciding whether a person can perform jobs in the economic marketplace. Further, let’s say the attorney does not advise the client of the risk of filling out and getting an SSDI award with respect to his or her ability to work in the future and be reasonably accommodated for the disability. In that situation, the statute of limitations per this decision, would not begin to run until that individual has been terminated from the job and had judicial estoppel, per the case discussed in this blog entry, applied against him or her. In such a case, it could be many years beyond the personal injury statute of limitations (most states use the personal injury statute of limitations when it comes to disability discrimination claims but not all, Virginia for example), that the SSDI applicant would have to pursue a legal malpractice claim.
  3. Let’s say you have an in-house counsel that insists on 100% return to work (check out this blog entry), such insistence would definitely be legal malpractice, and I have said as much for years. It would seem under this case, that the statute of limitations would begin to run at the point in time a court throws out the 100% return to work policy. Again, many years after the lawyer’s advice to insist on a 100% return to work.
  4. Let’s say you have licensing counsel representing a healthcare professional who is having their professional license threatened unless they work with a professional recovery program. The professional recovery programs are cash basis. We have discussed the opportunity for plaintiff lawyers when it comes to medical licensing boards and the professional recovery programs here. Let’s assume that the licensing counsel does not work the ADA into the advocacy for the client thereby subjecting the client to onerous requirements and substantial loss of funds that very well could have been partially or completely prevented with judicious use of the ADA. That system is entirely cash based and the costs are entirely imposed upon the healthcare professional. In that situation, the lack of licensing counsel not utilizing the ADA would, under this decision, give rise to legal malpractice only after thousands of dollars were incurred by the healthcare professional in the professional recovery program and/or his or her license was restricted or taken away. Again, many years after the initial legal malpractice.
  5. In Illinois, a legal malpractice claim must contain both the bad advice and damages from that advice or claim to move forward. This case stands for the proposition that the statute of limitation begins to run from the damages being accrued and not from the bad advice or when the individual should have discovered or knew of the bad advice.
  6. Did I mention that you need to be sure to check your state law on when the legal malpractice statute of limitation begins to run. It is entirely possible that your state will take a different approach from Illinois.

Today’s case comes from 2003 and represents the start of a line of cases that I am not sure I have discussed before. I am authoring a chapter in a federal employment litigation treatise on disability discrimination and the case came up during the course of that work. The case is Felix v. New York City Transit Authority, 324 F.3d 102 (2d Cir. 2003). As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that a causal link between the major life activity and the accommodation is required; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

In 1994, plaintiff was hired as a railroad clerk by the New York City Transit Authority. At the time, it employed approximately 3,417 railroad clerks who overwhelmingly worked in token booths and subway stations selling tokens, commuter passes, and fare cards. They also provided information to passengers. Only approximately 50 railroad clerks worked in office jobs, who were also deployed to work in token booth a few days a year. In November 1995, plaintiff was assigned as an extra railroad clerk relieving railroad clerks who were on breaks. While on route to relieve a railroad clerk on the northbound platform of the station, she was informed that the railroad clerk on the southbound platform of the station had been killed in a firebombing accident. She saw the smoke from the platform and was stuck inside the railroad car for some time. As a result of that, she was diagnosed with post dramatic stress disorder. Her doctor specified that she could not do any subway work, but could do clerical work. Not later than August 13, 1996, she requested a reassignment to a position that would not require her to work in the subway as an accommodation of her medical problems. Two days later, her employer designated her as “no work temporary,” and one month later she was terminated under a rule authorizing termination of an employee who had been unable to return to work for a year. After exhausting her administrative remedies, she sued. The employer defended on several grounds, including: 1) she received SSDI; 2) no reasonable accommodation was available because working in the subway was an essential function of her job; and 3) there was no nexus between the major life activity impaired and the accommodation requested. The District Court rejected the first two arguments but granted summary judgment in favor of the employer on the ground that there was no nexus between the major life activity impaired and the accommodation requested. Plaintiff appealed.

 

II

 

Court’s Reasoning That There Must Be a Causal Link between the Specific Condition Limiting a Major Life Activity in the Accommodation Required

 

  1. The court only addressed the issue of a causal connection and not the other two issues where the lower court denied the summary judgment motion.
  2. An employer discriminates against an employee with a disability only by failing to provide a reasonable accommodation for the disability, which is the impairment of the major life activity.
  3. Plaintiff’s inability to work in the subway did not substantially limit any major life activity. She was fully able to work just not in the subway.
  4. While her inability to work in the subway was related to her insomnia because they both stemmed from the same traumatic incident and the PTSD, that origin alone does not mean that the non-disability impairment is entitled to an accommodation.
  5. The impairment for which plaintiff sought an accommodation did not flow directly from the disability itself. That is, she sought a workplace accommodation for a mental condition that does not flow directly from her insomnia.
  6. Plaintiff did not argue that she was unable to work in the subway because the work aggravated her insomnia. Instead, she argued that she could not work in the subway because she was terrified of being alone and closed in.
  7. Adverse effects of disabilities and adverse or side effects for medical treatment of disability arise because of the disability. However, other impairments not caused by disability need not be accommodated.
  8. Plaintiff’s insomnia and her fear of the subway are two mental conditions deriving from the same traumatic incident.
  9. In situations where it is not clear that a single particular medical condition is responsible for both disability and the lesser impairment, the plaintiff must show a causal connection between the specific condition impairing a major life activity and the accommodation.
  10. The ADA mandates reasonable accommodation of people with disabilities in order to put them on an even playing field with the nondisabled; it does not authorize a preference for disabled people generally. To hold otherwise, transforms the ADA from an act prohibiting discrimination into an act requiring treating people with disabilities better than others who are not disabled but have the same impairment for which accommodation is sought.
  11. The ADA does not require the accommodation of impairments that do not limit major life activities whenever the person with an impairment happens to also have a disability.
  12. To hold otherwise, would mean that an ADA plaintiff who was not otherwise impaired in a major life activity but suffered debilitating anxiety or stress from a particular job could get to a jury merely by alleging that the job causes insomnia, difficulty breathing, or some other set of disabling symptoms that can be characterized as a syndrome.

 

III

Thoughts/Takeaways

 

  1. There was a concurring opinion in the case that seemed to misunderstand entirely the nature of disability and why a reasonable accommodation is requested.
  2. There was also a dissenting opinion that argued that a causal link between the specific condition limiting a major life activity and the accommodation existed in this case.
  3. Underlying the case is the question of when an employer has to reassign an employee that is no longer qualified for the job; a question where the circuit courts are currently split, as we discussed here.
  4. This case occurred long before the amendments to the ADA, which radically changed what is a major life activity.
  5. The amendments to the ADA also made clear that how the courts had interpreted substantial limitation was far too narrow. In light of the amendments, it shouldn’t be that difficult for a plaintiff attorney to properly allege a physical or mental impairment that substantially limits a major life activity.
  6. The EEOC, 29 C.F.R. §1630.2(j)(ii), defines substantial limitation as a matter of being whether the person is substantially limited in a major life activity as compared to most people in the general population.
  7. This case actually helps a plaintiff arguing for an animal to assist them in the workplace because the case talks about a reasonable accommodation for the disability. It isn’t talking about a reasonable accommodation relating to the essential functions of the job. Solid preventive law practice means linking the accommodation to the disability and not to the essential functions of the job.
  8. Plaintiff s would do well to make sure that the accommodation they are requesting relates to their disability. The case does give plaintiffs an argument that the critical question is how the disability relates to the accommodation and not how the accommodation relates to the essential functions of the job.
  9. We don’t know why the court did not address the first two issues. It is worth noting that the Cleveland case (SSDI can estop a reasonable accommodation request under some circumstances), that was decided by the Supreme Court was only four years old at the time of this decision. The Barnett decision (you do not have to reassign a person to a position if it means trumping seniority rights), was only one year old at the time.
  10. Working is still a major life activity and Sutton is still the operative standard. That said, with the amendments to the ADA, working should hardly ever be alleged as the major life activity, and it may even be legal malpractice to so allege absent no other alternative major life activity. That is, absent working it is now very difficult for a defendant to rebut that a physical or mental impairment does not substantially limit a major life activity, though on rare occasion it does happen.
  11. “Other impairment not caused by the disability,” is a strange turn of phrase looking at things in 2022 because a disability is a physical or mental impairment that substantially limits a major life activity. Today, it difficult to think of a situation of an “other impairment not caused by the disability,” because the chances are very high that the “other impairment,” is associated with a disability of its own. I have the same concern for the court’s phrase, “lesser impairment.” The court’s very limited view of what a disability is may be a reflection of the Toyota Motor decision, which was one year old at the time Felix was decided.
  12. Toyota Motor, which held that to be substantially limited in performing manual tasks the person had to have an impairment that prevented or severely restricted the individual from performing such tasks, was overruled by the amendments to the ADA.
  13. Hard to understand how you could have today a situation where a person is not disabled but had the same impairment for which an accommodation is sought.
  14. A person can have more than one disability needing accommodations.
  15. I actually like this case in many respects even though much of its reasoning is outdated now due to the amendments to the ADA. A critical piece of this case is the accommodation focuses on the disability not on the essential function of the job. Also, it is a word to the wise to ensure that a plaintiff attorney makes clear how the accommodation relates to the disability. For the most part, that shouldn’t be too hard to do. Even so, a plaintiff attorney has to be conscious of making the link between the accommodation and the disability.

Today’s blog entry concerns the question of whether a person acting as a tester can ever have standing to pursue ADA claims. The case of today is Lauffer v. Looper, a published decision from the 10th Circuit decided on January 5, 2022, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiff lacks standing; and thoughts/takeaways. Considering how short the blog entry is, the reader will probably want to read the whole thing.

 

I

Facts

 

Plaintiff is a resident of Pascoe County Florida, uses a wheelchair, and requires accommodation due to her disability. In her complaint, she described herself as an advocate of the rights of similarly situated disabled persons and a tester for the purpose of asserting her civil rights in monitoring, sharing, and determining whether places of public accommodation and their websites are in compliance with the ADA. Defendant own the Elk Run Inn, a hotel in Craig, Colorado. Plaintiff alleges that their website did not identify accessible rooms, did not allow for booking of accessible rooms, and provided insufficient information as to whether the rooms at the hotel are accessible. While her complaint did allege an intention to revisit the website to see if the website had come into compliance with 28 C.F.R. §36.302(e), at no time did she allege an intent to use the website to book an accessible room for her actual use.

 

II

Court’s Reasoning That Plaintiff Lacks Standing

 

  1. In Spokeo v. Robbins, the United States Supreme Court said that Article III standing requires a concrete injury even in the context of a statutory violation.
  2. In Trans Union, LLC v. Ramirez, the Supreme Court emphasized that Congress’s creation of a statutory prohibition or obligation and a cause of action does not relieve the courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III. That is, for standing purposes an important difference exists between a plaintiff’s statutory cause of action to sue a defendant over the defendant’s violation of federal law and a plaintiff’s suffering concrete harm because of the defendant’s violation of federal law. In other words, under Article III, an injury in law is not equivalent to an injury in fact.
  3. Article III grants federal courts the power to redress harms that defendants cause plaintiffs. It does not grant federal courts a freewheeling power to hold defendants accountable for legal infractions.
  4. Plaintiff conceded that she has no concrete plan to visit Craig, Colorado, or to book a room at the Elk Run Inn.
  5. Article III standing requires a concrete injury even in the context of a statutory violation. The concrete injury must affect the plaintiff in a personal and individual way.
  6. Plaintiff made no allegation that she was given false information based upon discrimination as is the case when it comes to testers under the Fair Housing Act.
  7. Status as a tester alone is insufficient to confer standing.
  8. Plaintiff did not allege that information was denied to her because of her disability nor could she because all individuals had access to the same information on the website. A lack of information is not the same thing as information grounded in misrepresentation and racial animus.
  9. Plaintiff identified no downstream consequences from failing to receive the required information. That is, plaintiff did not allege that she had any interest in using the information she obtained from the website beyond bringing this lawsuit. She has no plan to visit Craig, Colorado. She did not attempt to book a room at the defendant’s place of business and has no intent to do so.
  10. In a footnote, the court mentioned that the Fifth Circuit said that to allege an informational injury, plaintiff would need to allege at least that the information had some relevance to her. Even so, violation of a legal entitlement is not the same as an injury in fact.
  11. While it is true that the 10th Circuit has previously held that anyone who has suffered an invasion of a legal interest protected by title III may have standing regardless of his or her motivation in encountering that invasion, that same decision also emphasized that the general requirements of standing were not being displaced. In this case, plaintiff did not allege that she would encounter any accessibility barriers because she had no intention of attempting to access the Elk Run Inn itself.
  12. Testers must satisfy the constitutional requirements of Article III.
  13. Plaintiff’s status as a tester did not defeat standing, but nor does it automatically confer standing.
  14. Plaintiff did not allege that she was prevented from accessing the website because of her disability.

 

III

Thoughts/Takeaways

 

  1. The decision is a published decision and so can be freely cited.
  2. Tester standing under this decision is sort of a thing but is also not sort of a thing. That is, being a tester by itself is insufficient. There has to be some misrepresentation involved or the tester actually has to demonstrate that they intend to show up at the physical space and take advantage of it. In theory, tester standing exists but not without more, which means that tester standing along the lines of the Fair Housing Act does not exist with respect to title III of the ADA, at least when it comes to the rules pertaining to accessibility of hotel rooms being advertised. A lack of information is simply not enough.
  3. A person could also allege that there are downstream consequences from failing to get the required information. However, that allegation without more isn’t enough either. In that situation, plaintiff would have to at least allege an intent to visit the locale, or to book a room at the defendant’s place of business.
  4. Legal entitlement is not the same as an injury in fact.
  5. Importantly, this is not a case where the plaintiff said that the website itself was inaccessible due to her disability.
  6. I could see the principles of this case being applied to Article III standing issues generally, such as in architectural barrier cases.
  7. On the plaintiff side, a plaintiff needs to be specific about how the statutory harm makes it a personal problem for that individual. It certainly does appear that courts are getting very frustrated with serial plaintiffs and will start using standing principles, such as the ones laid out here, to cut down on their filings. I have said for quite a long time that a hybrid fact-noticed based pleadings approach is the best way to go.
  8. This decision is not as clearly applicable to an inaccessible website situation because in that situation, a plaintiff cannot meaningfully access the website in the first place.
  9. Considering the current configuration of the Supreme Court, I would expect this decision to be affirmed if this case were appealed to the Supreme Court by at least a 6-3 margin and probably larger.

Happy new year everyone! Today’s blog entry deals with the question of what happens when a state passes all kinds of laws to cut down on serial plaintiffs who then flood the federal courts, which do not have the same restrictions, with similar cases. The case of the day is Arroyo v. Rosas, here. A decision from the Ninth Circuit Court of Appeals decided that on December 10, 2021. As usual, the blog entry is divided into categories and they are: background; facts; court’s reasoning that the lower court should not have denied supplemental jurisdiction; court’s reasoning that the lower court should not have denied supplemental jurisdiction BUT; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Background

 

  1. The California antidiscrimination law, the Unruh Act, contains a specific provision stating that a violation of the right of any individual under the ADA is also a violation of the California law. Unlike the ADA, the Unruh Act allows for a person to recover actual damages as well as any amount that may be determined by a jury up to a maximum of three times the amount of actual damages but in no case less than $4000.
  2. In 2012, the California legislature in an effort to restrict the number of cases being filed by serial plaintiffs instituted several reforms, including: 1) prohibiting upfront requests for money and prelitigation demand letters sent by attorney to business owners; 2) imposing heightened pleading requirements on construction related accessibility claims; and 3) requiring that any such complaint be verified by the plaintiff.
  3. In 2015, the California legislature imposed additional requirements on a high-frequency litigant, including: 1) the plaintiff must disclose he or she is a high-frequency litigant; 2) the plaintiff must disclose how many complaints he or she has filed in the prior 12 months; 3) the plaintiff must state the reason he or she was in the geographic area of the defendant’s business; and 4) the plaintiff must state why he or she desired to access the defendant’s business. A high-frequency litigant is someone defined as a plaintiff who has filed 10 or more complaints alleging a construction related accessibility violation within the 12 month period immediately preceding the filing of the current complaint alleging a construction related accessibility violation. Finally, the California legislature imposed a $1000 additional filing fee over and above the ordinary civil filing fees for each new case filed by a plaintiff who is a high-frequency litigant.
  4. As a result of the California legislation, serial plaintiffs moved their cases to the federal courts in a big way. By the first six months of 2019, 24% of civil cases filed in the central district of California where ADA construction related accessibility claims that also alleged violations of the Unruh Act. By 2019, the number of state complaints had dropped so dramatically that the ratio of federal to state complaints was 10 to 1 (311 state complaint versus 3211 federal complaints).

 

II

Facts

 

  1. The plaintiff filed the action in the U.S. District Court for the Central District of California on July 23, 2018. Within the preceding 12 months, he had filed at least 38 cases thereby classifying him as a high-frequency litigant had he filed the case in California state courts.
  2. After a year from filing the action, plaintiff moved for summary judgment. Defendant proceeded pro se and unsuccessfully sought an extension of time to file her opposition to the summary judgment motion. Defendant thereafter failed to file any response by the court’s deadline. So, in August 2019, District Court granted plaintiff’s summary judgment on the ADA claim but declined jurisdiction over the state law claim. Plaintiff appealed the court’s refusing to take on the state law claim after granting summary judgment.

 

III

Court’s Reasoning That the Lower Court Should Not Have Denied Supplemental Jurisdiction

 

  1. The only question is whether exceptional circumstances under 28 U.S.C. §1367(c)(4) exists.
  2. Deciding whether exceptional circumstances exist involves the lower court: 1) articulating why the circumstances of the case are exceptional; and 2) considering what best serves the principles of economy, convenience, fairness, and comity underlying the pendent jurisdiction doctrine.
  3. The recent combination of several California law rule changes combined with how the ADA goes about determining whether architectural barriers are discriminatory clearly threatens to have a significant adverse impact on federal-state comity as now federal court is very attractive for filing claims and state court is not, particularly for serial litigants.
  4. Due to the shift of cases to the federal courts, California is simply unable to accomplish the legislature’s goal of simultaneously providing damages relief for ADA violations while limiting the financial burdens California businesses face for claims of statutory damages under the Unruh Act. In short, the procedural structures of California have now been rendered largely toothless.
  5. Retention of supplemental jurisdiction over ADA-based Unruh Act claims threatens to substantially thwart California’s carefully crafted reforms and to deprive the state courts of their critical role in effectuating the policies underlying those reforms.

 

IV

Court’s Reasoning That the Lower Court Should Not Have Denied Supplemental Jurisdiction

BUT

 

  1. Given the very late stage District Court declined supplemental jurisdiction in this case, the District Court should have retained jurisdiction over the plaintiff’s Unruh Act claim and therefore, abused its discretion in dismissing that claim.
  2. From the perspective of judicial economy and convenience, it makes no sense to decline jurisdiction as the District Court did over a pendent state law claim already decided by the court. Under the plain language of the Unruh Act, a violation of the ADA is automatically, without more, a violation of the Unruh Act. Accordingly, the District Court’s ADA ruling already established that the defendant violated the Unruh Act, and it identified the specific respects in which the defendant did so.
  3. The District Court waited too late in the litigation process to invoke the interest of comity. If the District Court had declined supplemental jurisdiction over plaintiff’s Unruh Act claim at the outset of litigation, it might then still have been possible to further California’s interest in channeling Unruh Act damages claim through the imposition of heightened pleading requirements and a substantial upfront filing fee. However, once the District Court granted summary judgment upholding the merits of plaintiff’s ADA claim and by implication its Unruh Act claim, it was no longer possible to satisfy the interests underlying California’s various devices for prescreening of Unruh Act claims. Having already granted summary judgment in plaintiff’s favor, the District Court by that point had identified the specific access barrier barriers the individual encountered, the way in which the barrier denied the individual equal user access, and the particular date in which the claimant encountered the specific access barrier.
  4. When the court granted summary judgment, it knew the plaintiff was a high-frequency litigant. While the lower court would not have been aware of that necessarily at the beginning of the litigation, the defendant could have explored those points in discovery.
  5. There is no point in exploring the high-frequency of the litigant when the merits of the claim already have been litigated and resolved. At that point, the only thing accomplished by sending the Unruh Act claim back to state court, other than burdening the state court with pointless work, would be to impose a fee on the plaintiff for the $1000 special filing fee for high-frequency litigants as well as the other standard filing fees.
  6. There is no sense in which the district court’s dismissal can be said to further the interest of ensuring federal courts are not burdened with combined ADA/Unruh Act cases that would not survive California’s upfront screening mechanism. After all, any burden from this particular litigation has already occurred, and all that remains is a relatively ministerial task of entering judgment on the Unruh Act claim. In short, it is simply too late to undo the now sunk costs already incurred by litigating this matter to its inevitable conclusion.

 

IV

Thoughts/Takeaways

 

  1. Not all states have state antidiscrimination laws. For example, Georgia, with rare exceptions, doesn’t. If you are in a state with an antidiscrimination law containing heightened pleading requirements v. the ADA, this case is something you very much want to keep in mind.
  2. Missing court deadlines is never a good idea.
  3. Check your state law to see just how broad the additional pleading requirements are on a serial litigant. For example, here we are only talking about architectural barriers and not barriers that exist when someone tries to access an Internet site.
  4. Moral of the story is that every lawyer on the defense side in California, or in a state with similar rules, defending an architectural barriers case needs to immediately move to remand the Unruh Act claim to state court when it is filed in federal court. I realize that is a bit of a reversal because it is generally defendants prefer to be in federal court and not plaintiffs. You might even try removing the entire case back to state court and have the state take the ADA claim with supplemental jurisdiction. After all, state courts do decide ADA claims with some frequency, with the variability of that depending upon the jurisdiction.
  5. Part of the problem is that when it comes to architectural barriers, the ADA is a strict liability statute if the applicable Americans with Disabilities Act Architectural Guidelines, ADAAG, is not complied with. This is an issue that my colleague, Richard Hunt, has written about with great frequency in his blog, access defense, which is in my blogroll.
  6. Since the ADA is a strict liability statute when it comes to the applicable ADAAG guidelines, an argument can be created that a defense attorney, in California or in a similar state, who fails to file early in the litigation a motion to remand a serial litigant architectural barrier claim might even be committing legal malpractice (see this blog entry for a discussion of legal malpractice involving ADA matters).