Today’s blog entry takes on the question of what happens if a person with a disability decides they want to have a fun time at an Indian owned casino. However, the Indian owned casino does not accommodate their disability. Can the person with the disability go after the Indian owned casino?

 

The case of the day is Drake v. Salt River Pima-Maricopa Indian Community decided by Judge Liburdi of the District Court in Arizona on October 31, 2019. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and thoughts/takeaways. The reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff has PTSD, severe anxiety, and suffers from panic attacks. Her service dog helps her deal with those conditions. She went with her service dog to the Community Talking Stick Casino and Resort in 2019. Once arriving at the resort, the resort’s employee told her that the service dog had to go even when she had a companion try to retrieve her bag to provide the service dog’s service credentials to casino staff. As a result, plaintiff suffered a panic attack. She brought suit alleging violation of title III of the ADA as well as state suits for intentional and negligent infliction of emotional distress. The casino defended on sovereign immunity grounds.

 

II

Court’s Reasoning

 

  1. Federal laws do not apply to Indian tribes: 1) when applying the law would interfere with internal matters of tribal self-governance; 2) when applying the law would run afoul of rights a treaty guarantees the tribe; or 3) when legislative history or other indicators show Congress did not intend for the law to apply to tribes operating within the territorial boundaries.
  2. The court relied heavily on a 1999 11th Circuit case, Florida Paraplegic Association, Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th 1999), here.
  3. Parties agreed that the self-governance exception does not apply and no treaty was applicable. So, the only question was a matter of congressional intent. Relying on the 11th circuit case, the ADA has to be liberally construed to promote equal access. So, the third exception of general applicability does not apply either.
  4. Native American tribes enjoy sovereign immunity as a necessary corollary to Indian sovereignty and self-governance. That immunity respects their unique status as domestic dependent nations with inherent sovereign authority of their members and territories.
  5. Since Congress holds immunity in trust for the tribes, they can abrogate tribal immunity if they expressly do so. However, courts will not infer congressional abrogation of sovereign immunity absent clear congressional intent.
  6. When a tribal defendant raises sovereign immunity, the burden of demonstrating the immunity does not apply falls on the plaintiff. A plaintiff can satisfy that burden by showing either that the tribe has waived its immunity or that Congress abrogated that immunity with respect to the particular cause of action involved.
  7. Sovereign immunity for tribes is not coextensive with sovereign immunity for the respective States. That is, just because Congress abrogates sovereign immunity for the States, that does not mean that they automatically abrogate tribal sovereign immunity.
  8. A basic Canon of statutory construction is that expression of one type of immunity excludes those which Congress does not list. So, that Congress did not clearly waive tribal immunity but did so with respect to state sovereign immunity, shows that tribal immunity should remain intact.
  9. Indian tribes do not lose their sovereign immunity when they engage in commercial enterprises.
  10. For the same reasons, plaintiff’s state law claims are also barred by sovereign immunity.

 

III

Thoughts/Takeaways

 

  1. The case relies heavily on the 11th Circuit decision in Florida Paraplegic Association, Inc. v. Miccosukee Tribe of Indians of Florida, here.
  2. What is interesting about Indian tribe sovereign immunity, is that as far as I can tell, sovereign immunity, unlike sovereign immunity in general, applies across the board. That is, even a suit for injunctive relief against an Indian tribe seems to be prohibited. After all, title III of the ADA does not allow for damages.
  3. You have to look at the 11th Circuit decision to figure out where would a plaintiff turn to when an Indian tribe casino violates their rights under the ADA. The 11th Circuit tells us that Congress created an alternative method of enforcement. That is, the U.S. Atty. Gen. can bring a civil action to compel compliance with the ADA. More specifically, title III authorizes the Atty. Gen. to bring suit against any person or group of persons engaged in a pattern or practice of discrimination. Title III of the ADA most certainly applies to Indian tribes. Further, tribal sovereign immunity does not bar suits by the United States. So, the Atty. Gen. can pursue an action against Indian tribes failing to comply with title III just as it can enforce the act against any other entity violating the statute.
  4. In a way, the option facing a person with a disability discriminated against by an Indian tribe in violation of the ADA is essentially the same as the option faced by a person with a disability with respect to the Air Carrier Access Act. That is, the only option for vindicating a person with a disability rights in either case is to file a claim with the appropriate federal agency, in this case the Department of Justice. Under title III of the ADA, the DOJ also has the authority to levy civil fines and to seek damages for the individual plaintiff.
  5. I see no record of any appeal filed.
  6. Many cases hold that the taking of federal funds waive sovereign immunity under §504 of the Rehabilitation Act. So, if a plaintiff can show the casino takes federal funds, they may be able to have an individual claim for violating §504 of the Rehabilitation Act, 29 U.S.C. §794.
  7. Remember, causation under §504 of the Rehabilitation Act, “solely by reason of,” is different than causation under title III of the ADA, “on the basis of.” This difference in causation, which many but not all courts assume as true, may come into further clarity as the result of a federal Age Discrimination in Employment Act case (Babb), that the Supreme Court is hearing today, January 15, 2020.
  8. Taking the facts as true, there is no dispute that ADA violations occurred when the casino asked the plaintiff to leave the casino with her service dog and even refused to look at documentation.
  9. Filing with DOJ has to be done within six months of the claim arising unless you can get a waiver.

Happy new year everybody. Hope everybody enjoyed their holiday and is now raring to get back to work. Just to give everybody a heads up, the week of January 28 and February 3 may not see a blog entry for me at all. During those two weeks, I will be testifying in two different trials and attending and speaking at a convention. That means in that period of time I will be in three different cities (Houston-trial testimony; Austin-attending and speaking at the Accessibility Professionals Association convention; and Albuquerque-trial testimony).

 

Also, worth noting is the 11th Circuit just came down with another huge decision in favor of Deaf, deaf, HOH communities. That case, which deals with the lack of captioning for legislative streaming by the State of Florida, can be found here. I blogged on the District Court opinion here.

 

Turning to today’s blog entry, I have a whole bunch of cases in my pipeline. For some time I have been thinking about doing a blog entry discussing how to plead ADA cases. I thought a list of tips would be very helpful. So, here goes:

 

  1. Especially when it comes to disability discrimination cases, notice pleading is going to get a plaintiff into trouble. Much better off using a fact-notice hybrid. I’d like to think of it as the way Illinois does pleadings. That is, give enough facts to put a reasonable person on notice as to what the claims are. This applies regardless of whether exhaustion of administrative remedies is required first.
  2. See if you can’t structure your substantial limitations on a major life activity allegations in such a way so that medical testimony will not be required.
  3. Know the prima facie elements of the cause of action you are pleading. Depending upon the particular cause of action alleged and the jurisdiction you are in, those elements can vary.
  4. Keep in mind that when it comes to summary judgment you will deal with any or all of the principles of direct evidence, indirect evidence, or convincing mosaic. These distinctions are not necessarily important for pleadings, but they are certainly important down the road when it comes to summary judgment.
  5. If a title II case is involved, know how your court deals with intentional discrimination. What is intentional discrimination with respect to title II most certainly varies from jurisdiction to jurisdiction. This is much less of an issue with respect to title I cases.
  6. If a title II entity is involved and the defendant is the State or an arm of the State, be prepared for a sovereign immunity defense. Know that sovereign immunity and persons with disabilities gets decided on a case-by-case basis and such analysis can get very complicated.
  7. Know the various ways courts deal with when the statute of limitations in a disability discrimination case begins to run. Also, investigate what is the statute of limitations for disability discrimination in your state. The particular state statute used and the length of time can vary radically from State to State.
  8. Depending upon the jurisdiction, not everything may be a separate cause of action. Rather, it may be part of another cause of action. For example, jurisdictions differ on whether failure to engage in the interactive process is a separate cause of action.
  9. If a plaintiff, never plead working as the major life activity unless you absolutely have no choice.
  10. On the defense side, don’t forget about any affirmative defenses, such as: undue hardship; undue burden; fundamental alteration; readily achievable, etc.
  11. If a title II architectural barrier case, remember readily achievable doesn’t enter into the equation.
  12. On the defense side, don’t forget about standing.

 

It is time for my annual greatest hits blog entries of the year. Before getting to the greatest hits blog entries of the year, a few blog entries are so important that they make it every year regardless of where they fit in the greatest rankings. Those blog entries are: ADA compliance in higher education, which can be found here; the issue of whether the ADA is a nondelegable duty or not, which can be found here and here; and service dogs v. emotional support animals, which can be found here.

 

Turning to the greatest hits. They are in reverse order:

 

  1. With 763 views, be careful about taking away accommodations already in place. This entry is new to the greatest hits list.
  2. With 796 views, issues arising from filing and amending an EEOC charge. This entry is also new to the greatest hits list.
  3. With 806 views, why all colleges need to do the two-step, which discusses determining essential eligibility requirements among other things. This entry is also new to the list.
  4. Returning to the list and with 1106 views, suing a state court system is difficult but it can be done.
  5. New to the list with 1220 views, just what is a private club.
  6. Returning to the list with 1563 views, just when does the statute of limitations begin to run.
  7. Returning to the list with 1645 views, what do you have to show to get damages under title II of the ADA.
  8. Returning to the list with 2110 views, the ADA and the applicable statute of limitations.
  9. Returning to the list with 2589 views, the ADA and ADA related cases at the Supreme Court.
  10. Returning to the list at the number one slot, which it has been in ever since the year it debuted, with 2984 views, can you get compensatory and punitive damages in retaliation cases. I might add that the ADA and ADA related cases at the Supreme Court blog entry is rapidly closing the gap with our perennial number one blog entry of a year.

 

Happy holidays everyone and wishing everyone the best on the new year. Will be back in the new year with more blogs. Thank you everybody for your readership. I wouldn’t do it but for that. Look forward to blogging in the new year. I already have a whole bunch of cases in my pipeline.

Today’s blog entry is going to be my last substantive blog entry of the year. My daughter is on break the last two weeks of December, and just about everybody takes the Christmas season off anyway. The very last blog entry of the calendar year is when I traditionally do my top 10 Understanding the ADA blog entries of the year. I have not been following what is the top 10 from month to month. So, I am really curious to see how that is going to work out.

 

Today’s blog entry is actually on a case that my fellow bloggers have blogged on before. This particular case involves blogging on a case that my colleague Jon Hyman blogged on previously here. The case is Morrissey v. Laurel Healthcare Company, a published decision from the Sixth Circuit decided on December 3, 2019. Jon did an excellent summary of the facts and his takeaways are excellent as well.  I thought I could bring a different spin to his blog entry and so here goes. As usual, the blog entry is divided into categories and they are: court’s reasoning; and thought/takeaways. I am going to dispense with the facts except as far as they are part of the court’s reasoning because Jon already covered them in brief in his blog entry.

 

I

Court’s Reasoning

 

  1. The McDonnell Douglas test is not necessary where there is direct evidence because defendant has already admitted the wrongdoing. Where direct evidence exists, the factfinder is not required to draw any inferences to conclude that disability was at least a motivating factor.
  2. Since not making reasonable accommodations is listed in the ADA’s definition of disability discrimination, claims premised upon an employer’s failure to offer reasonable accommodation necessarily (emphasis mine), involve direct evidence.
  3. Under the direct evidence framework, a plaintiff has the burden of establishing: 1) he or she is a person with a disability; and 2) that he or she is qualified/otherwise qualified for the position despite his or her disability: A) without accommodation from the employer; B) with an alleged essential job requirement eliminated; or C) with a proposed reasonable accommodation.
  4. With respect to this case, plaintiff alleged a failure to accommodate and a constructive discharge claim under the direct method and a retaliation claim under the indirect method.
  5. The District Court erred in requiring plaintiff to prove she suffered an adverse employment action to pursue a claim for failure to accommodate. Under the direct evidence test, a plaintiff need not prove he or she suffered an adverse employment action separate from the failure of the employer to reasonably accommodate the employee. In other words, failing to make a reasonable accommodation falls within the ADA’s definition of discrimination and that necessarily means an employer’s failure to offer a reasonable accommodation involves an adverse action.
  6. Of course, to establish a claim for failure to accommodate, a plaintiff has to show that he or she has a disability first.
  7. A disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or is regarded as having such an impairment. 42 U.S.C. §12102(1)(A)-(C).
  8. The amendments to the ADA defined major life activities in very broad terms. 42 U.S.C. §12102(2).
  9. The amendments to the ADA also makes clear that the definition of a person with a disability in the definition of substantially limited are to be construed broadly in favor of expansive coverage. 29 U.S.C. §12102(4)(A),(B); 29 C.F.R. §1630.2(j)(1)(i).
  10. Under 29 C.F.R. §1630.2(j)(1)(ii), determining substantial limitation mean comparing the person with a disability to most people in the general population. That is not a demanding standard and in general, a plaintiff does not need to submit scientific, medical, or statistical proof to establish such a limitation.
  11. The amendments to the ADA overruled the Toyota Motor standard that an impairment had to prevent or significantly or severely restrict a major life activity to be substantially limiting.
  12. The EEOC removed from the text of its regulations a discussion of the major life activity of working because Congress intended for courts to analyze whether plaintiff can perform certain jobs only when a plaintiff claims she is substantially limited from working but not for other major life activities. Also, no other major life activity received special attention in the EEOC regulations and with the expanded definition of major life activity in the ADA, the major life activity of working would only be used in very targeted situations.
  13. Pre-2008 cases are not good law when it comes to determining whether a plaintiff is a person with a disability.
  14. Numerous facts exists that plaintiff has a disability as defined by the ADA as amended, including: 1) plaintiff asserted she was substantially limited in her ability to walk, stand, bend, and lift repetitively due to scoliosis, bulging disc, Ehlers- Danlos syndrome, Buschkes-Ollendorf syndrome; 2) plaintiff never argued that she had a disability because of an inability to work and such an allegation is not necessary to her claim; 3) plaintiff did not have to tell her employer about her specific diagnosis; 4) plaintiff did tell her employer that she could not work more than 12 hours per shift because she suffered a disability as defined by the ADA as amended.
  15. For an employer’s obligation to activate the duty to accommodate, the employee does not need to use the word “disabled,” rather the employer must know enough information about the employee’s condition to conclude that he or she is a person with a disability. Information that could help figure out whether a person has a disability under the ADA could include such things as a diagnosis, treatment plan, (severe symptoms,) and physician imposed work restrictions.
  16. Medical records establish that the plaintiff suffered from disc disease.
  17. Plaintiff submitted plenty of evidence to show that she was substantially limited in her ability to walk, stand, lift, or bend. In particular, after an 8 to 12 hour shift: 1) plaintiff had difficulty walking, standing, lifting, and bending; 2) plaintiff was in pain constantly and her nursing shifts made the pain worse; 3) plaintiff had severe pain in her buttocks and right leg and numbness and tingling in her feet; 4) plaintiff had so much trouble bending over that it was difficult for her to put on her underwear; 5) plaintiff’s daughter submitted an affidavit stating that plaintiff did not walk at all or walked with a slight hunch and a pained expression after completing a day of work; 6) plaintiff’s daughter also stated that plaintiff could not complete household chores requiring lifting, bending, or stooping after working.
  18. Factual issues exist as to whether defendant regarded plaintiff as having a disability.
  19. Defendant had a policy where it would not accommodate an individual with a disability unless the injury was job-related.
  20. Plaintiff alleged that she requested moving to a unit that required nurses to work only eight hour shifts and that she requested to be moved to a casual status. If granted, she would not have had to work in excess of 12 hours. Plaintiff alleged that the defendant denied both requests.
  21. Plaintiff’s personnel file had medical notes supporting her restrictions. She also repeatedly told her employer that she was under restrictions. For a time, the employer even honored the restrictions. So, plaintiff brought forth enough evidence to claim that she has a record of a disability under the ADA.
  22. In short, plaintiff brought forth enough evidence to show that: 1) her employer had a blanket policy of denying accommodation for all non-work-related disabilities; 2) her employer knew that the plaintiff was under a 12 hour work restriction; 3) (employer knew that plaintiff had requested an accommodation); 4) her employer forced plaintiff to work beyond the restrictions on January 31, 2016, and attempted again to have her do so five days later.
  23. Plaintiff asked her employer for an accommodation due to a disability, and her employer did not accommodate her. So, plaintiff was not required to establish anything more for her claim to be viable.
  24. Defendant makes no argument that plaintiff’s proposed accommodation would impose an undue hardship.
  25. The de minimis employment action defense does not apply to a failure to accommodate situation. Application of such a rule would not only be cruel, but it would contravene previous precedent from the Sixth Circuit as well as the ADA.
  26. The constructive discharge claim moves forward because a disputed question of material fact exists over whether the plaintiff had a disability (see above paragraph). The constructive discharge claim also moves forward because a complete failure to accommodate in the face of repeated requests can suffice as evidence to show constructive discharge.
  27. The employer cannot escape liability by arguing a blanket policy of denying accommodation for all non-work-related disabilities is ostensibly neutral. The court uses an interesting example of a school lacking an elevator for a teacher with mobility impairments to explain what it means. It then concludes that a defendant cannot refuse to provide a plaintiff with a reasonable accommodation and then argue the plaintiff did not qualify for her position because she cannot meet her job’s requirements without an accommodation.
  28. The retaliation claim gets analyzed under the indirect evidence test. To establish retaliation the plaintiff has to show: 1) plaintiff engaged in activity protected under the ADA; 2) the employer knew of that activity; 3) the employer took an adverse action against plaintiff; and 4) a causal connection existed between the protected activity and the adverse action.
  29. Constructive discharge qualifies as an adverse employment action and the record supports a finding that plaintiff was constructively discharged.

 

II

Thoughts/Takeaways

 

  1. It doesn’t matter how a person becomes a person with a disability. I have seen employers think that it does. The very nature of the ADA makes it obvious that how a person becomes a person with the disability is absolutely irrelevant. It is great to see a court saying as much. Interesting that the court looked at it from the view of essential functions. It just as easily could have flat out said it doesn’t matter how a person becomes a person with a disability. Regardless, you get to the same place either way.
  2. Under the court’s reasoning, failure to accommodate claims are analyzed under the direct evidence test, which means that it could be very difficult for defendants to prevail on summary judgment with respect to failure to accommodate claims.
  3. Under the court’s reasoning, failure to accommodate claims do not require an independent adverse action. That is, the failure to accommodate is the adverse action.
  4. This whole direct indirect evidence thing is very confusing, even for me. As we discussed here, the Seventh Circuit is more than ready to blow that whole analysis up completely.
  5. This case is now the second time where I have seen a prima facie for a failure to accommodate claim talk about how a plaintiff can show that they could have performed a job with an essential job requirement eliminated. I’ve said before with respect to this element that I just don’t get it. The ADA does not require the elimination of an essential function of the job.
  6. I’ve also said before that working is not a major life activity that should be used by plaintiffs except under extraordinary situations. The court here says precisely that. In fact, unless extraordinary situation exists, my view for years has been for a plaintiff to allege working as the major life activity is legal malpractice.
  7. Magic words are not required as we have discussed here. All that is required is for the employer to have enough information about the employee’s condition to conclude that the employee has a disability. That is not a high standard.
  8. When it comes to determining substantial limitation, the question is how does that person compare to most people in the general population.
  9. If you have a policy setting up a distinction as to when you will accommodate based upon the origin of the disability, get rid of it.
  10. De minimis employment action defense not available in the Sixth Circuit with respect to a failure to accommodate claim. Check your jurisdiction to see how it handles this question.
  11. The reasoning of the court is such that it open the door to many more constructive discharge claim when a failure to accommodate is involved. The court uses the language “complete failure,” but the decision itself doesn’t seem to be talking about a “complete failure,” being necessary for a constructive discharge claim. Jurisdictions may vary on this.
  12. Court says that retaliation claim can analyze under an indirect evidence test, though I don’t know why that would necessarily need to always be the case.
  13. What Jon said in his blog entry on the case.
  14. The decision is published.
  15. The Sixth Circuit presumes in this case that motivating factor is the causation standard.
  16. Not every court agrees that a failure to accommodate constitutes an adverse action. We discussed one such case here. So, check your jurisdiction on this. This also means a split now exist among the Circuits. Will that split result in Supreme Court review? If it does, I will have to do some serious thinking as to which way the court would go. Offhand, not clear to me at all.
  17. Pre-2008 law discussing how to determine a disability is no longer good law.

Hope everyone had a great Thanksgiving week and did not have too hard of a time getting the kids back to school.

 

Today’s blog entry is going to discuss a couple of cases dealing with standing. In the first, we will discuss standing with respect to physical stores. In the second, we will discuss standing with respect to a physical place accessed only through the Internet. My colleague, Richard Hunt, blogs on these issues all the time. It is not unheard of for me to blog on them either. The reason I want to blog on these two cases discussing is because these two cases show that courts and judges may be beginning to resist a broad notion of what standing is.

 

As I mentioned in another blog entry of mine, the California Supreme Court came down with a decision that was likely to blow the lid off Internet accessibility litigation in California. We are already seeing that happen as seen in this case, Thurston v. Midvale Corporation, for example.

As usual, the blog entry will be divided into categories and they are: Mosley v. Kohl’s Department Stores, Inc. facts; Mosley’s majority reasoning; Mosley’s dissent by Judge McKeague; Mosley takeaways/thoughts; Castillo v. The Jon Gore Organization Inc. facts; Castillo court’s reasoning; and Castillo takeaways/thoughts. Of course, the reader is free to focus on any or all of the categories.

 

I

Mosley v. Kohl’s Department Stores, Inc. Facts

 

In April 2018, plaintiff visited Kohl’s stores in Northville and Nuvi Michigan and encountered architectural barriers to access in each of the restrooms, including: inaccessible doors; improperly spaced grab bars; and sinks, mirrors, and toilet paper dispensers that were too high. Plaintiff has filed similar lawsuits throughout the country. Plaintiff is a resident of Arizona and has family and friends residing in the Detroit area he tries to visit at least annually in the summer. At the time of filing his amended complaint, plaintiff, a career musician, had scheduled upcoming visits to Flint and to other areas in southeast Michigan in September and October of 2018 to perform and attend shows at various places. He was also planning to visit his family in Detroit on November 11, 2018. Finally, he stated he would return to the two stores if they were modified to be ADA compliant.

 

II

Mosley’s Majority Court Reasoning

 

  1. An injury is concrete and particularized where the plaintiff alleges that he personally observed and encountered architectural barriers to access and those barriers interfere with a mobility impaired individual’s full and equal enjoyment of the property.
  2. An ADA tester does not deprive a person of standing, assuming that plaintiff is such an individual, because title III of the ADA guarantees the right to be free from disability discrimination and enjoyment of the facility regardless of plaintiff’s motive for visiting the facility.
  3. If testers were not meant to have standing to challenge discrimination, Congress could have set up the statute to limit its protection to clients or customers as it did another provisions of title III of the ADA. It also could have imposed a bona fide usage requirement akin to the bona fide offer requirement for housing discrimination suits. Congress did not do either.
  4. When it comes to intent to return, the question is whether the plaintiff intends to return to the geographic area where the accommodation is located and has a desire to visit the accommodation if it were made accessible. So, once a plaintiff establishes both more than a someday intent to return to the geographic area and an interest in the accommodation, an intent to return to the accommodation can be inferred.
  5. Citing to PGA Tour, Inc. v. Martin, the court said requiring a plaintiff to provide a definitive plan for returning to the accommodation itself would frustrate the ADA’s aim of integrating individuals with disabilities into the economic and social mainstream of American life. If this wasn’t the case, plaintiffs would have more success bringing title III actions against accommodations that are booked for travel, such as hotels, then for accommodation they spontaneously choose to enjoy, such as markets and stores.
  6. Persons with disabilities are entitled to full and equal access to all public accommodations wherever they may be and any point in time.
  7. Although the Constitution requires plaintiff to show a real and immediate threat of future injury, it doesn’t require plaintiff to allege such specifics as the precise dates, arrangements for the return to the accommodation, and the reason for returning.
  8. It is enough to allege an intent to return to the area and an interest in visiting the accommodation in the future when it becomes ADA compliant. That is, while the plaintiff must show more than a someday intent to return to the accommodation, frequent visits and concrete plans to return to geographic area support a plausible inference of intent to return to the accommodation.
  9. Plaintiff are not required to have visited the place of accommodation more than once and that flouts title III’s requirement that plaintiffs not be asked to engage in a futile gesture once they have actual notice of the barrier access.
  10. Title III of the ADA does not require persons with disabilities to subject themselves to repeated instances of discrimination in order to invoke its remedial framework.
  11. Plaintiff suffers an injury once he or she becomes aware of the discriminatory conditions existing at a place of public accommodation and thereby deterred from visiting that place of public accommodation.
  12. While the plaintiff lives in Arizona, he has family and friends in the Detroit area whom he tries to visit at least annually in the summer. In fact, he had scheduled visits already.

 

III

Mosley Dissent by Judge McKeague

 

  1. “Who plans on going to a suburban Kohl’s on a trip to Detroit?”
  2. The majority’s view of standing is better termed, “discount standing.” “While 20% off works for Kohl’s, it doesn’t work for the Constitution.”
  3. Courts generally consider three factors with respect to intent to return: 1) the distance between the plaintiff’s residence and the accommodation; 2) the frequency of the plaintiff’s past visits both to the area where the accommodation is located and to the accommodation itself; and 3) the definiteness of the plaintiff’s plans to return to the accommodation in the future, including reasons for making the return trip and visiting the place of public accommodation.
  4. Plaintiff lived nearly 2000 miles away from the stores complained of.
  5. Plaintiff visited the stores only once in the past. While it is true that a plaintiff is required to make repeat visits, the fact that he has made infrequent past visits cuts against the plausibility of claiming prospective injury.
  6. While plaintiff alleged he planned to return the Detroit area in the future, his allegations do not plausibly suggest that plaintiff would return specifically to the specific stores alleged in the complaint. Such an allegation is a legal conclusion even if it looks like a factual allegation. More facts are needed. For example, plaintiff doesn’t allege any facts explaining his desire to return to those Kohl’s stores. That is, an intent to return to an accommodation is plausible when a plaintiff explains why he wants to return and he did not do so in this case.
  7. Plaintiff never alleges an interest in Kohl’s specifically. He doesn’t allege that he likes to shop there for reasonably priced clothing. He also doesn’t allege why he prefers Kohl’s over Target or T.J. Maxx or Marshalls or other similar retailers with a large presence in southeast Michigan. In fact, plaintiff fails to allege a reason for going to Kohl’s at all.
  8. Plaintiff doesn’t allege why he wants to return to those specific stores. For example, are those stores near stores he otherwise frequents? Do those stories have excellent customer service? Plaintiff simply doesn’t say one way or the other.
  9. Majority opinion doesn’t address all the other Kohl’s location closer to Detroit, the airport, and major roads like I-75 and US 23. Why would plaintiff bypass them all to go to the particular stores alleged in the complaint? While it is conceivable that he would do so, that isn’t enough. It has to be plausible.
  10. If it is convenience plaintiff is after, there are 18 Kohl’s Department stores in his home county in Arizona.
  11. Plaintiff has filed over 180 ADA lawsuits, most of them in Arizona, but a handful in Colorado and four in Michigan. If he alleged tester motivation, it might make it more plausible that the plaintiff would return to the particular stores alleged in the complaint. However, he doesn’t make any allegations that he intends to return to those particular stores to test their ADA compliance.
  12. Judge McKeague simply doesn’t buy the majority test that an intent to return can be inferred once a plaintiff has established more than a someday intent to return to the geographic area and an interest in the place of accommodation. Judge McKeague believes that such an analysis contradicts a couple of different United States Supreme Court opinions.

 

IV

Mosley Takeaways/Thoughts

 

  1. The Mosley majority adopts a deterrence standard.
  2. The Mosley majority states that testers have standing.
  3. The decision is recommended for publication.
  4. Considering the current configuration of the United States Supreme Court, I think the dissenting opinion will get a very receptive review by the United States Supreme Court should there be an appeal to the United States Supreme Court. I wonder if an en banc rehearing won’t be sought first.
  5. Judge McKeague’s opinion in terms of its writing style almost reads like a Justice Gorsuch opinion. Justice Gorsuch is not afraid to use common sense when deciding his cases.
  6. The dissent provides a very useful roadmap to plaintiff attorneys as to how they may configure their complaint to get around the concerns that the dissent raises.

 

V

Castillo v. John Gore Organization, Inc. Facts Taken Directly from the Opinion

 

In or around December 2018, from Kings County, New York—where she resides—the plaintiff visited the defendant’s website because she “intended to buy tickets to attend” a “concert” there. However, the plaintiff “did not book a ticket” after seeing on the defendant’s website that the defendant had a policy prohibiting patrons from bringing outside food into the theater. Because she has diabetes, the plaintiff must have specific types of snacks with her at all times, as her blood sugar can drop suddenly, and she must immediately eat an appropriate food item to stabilize it. Thus, the defendant’s policy banning outside food from its theater deterred the plaintiff from visiting the theater. The defendant notes that the performance that the plaintiff alleges she intended to see was a play and not a concert.

 

The plaintiff claims that she “intends to take advantage of the facilities offered by Defendant in the future once the access barriers are remedied” and that she “intends to attend a similar event at the [theater] as soon as Defendant fixes its discriminatory policies.” However, she does not claim that she has ever visited the defendant’s theater—or Boston—in the past. In fact, she claims that she “did not attempt to attend an event” at the theater “because she understood Defendant’s discriminatory policy and knew that such an attempt would be futile.”

 

According to the defendant, in December 2018, its website’s homepage contained an “accessibility” policy that invited visitors to contact the theater about any accessibility concerns. Spry Decl. Specifically, that policy stated that “[t]he Charles Playhouse is accessible to all patrons. Guests with accessibility questions or who require additional assistance may email the Playhouse directly . . . or call the House Manager . . . .” It also provided an email address and phone number for such accessibility questions or requests. See id. It further provided more specific accessibility information for wheelchair users and individuals with visual impairments. See id. The website’s homepage also contained a “code of conduct” that included a policy prohibiting “outside food or beverage[.]”All of the website’s homepage content—including the accessibility policy and the code of conduct—appeared on one page. Spry Decl. The defendant sequenced its website content such that before reaching the policy prohibiting outside food, a website user must have first scrolled past the theater’s accessibility policy. Between December 2018 and at least September 2019, when the defendant’s employee David Spry submitted the latest declaration in connection with this case, “the substantive content, language and sequencing of all relevant portions” of the defendant’s website “have remained the same,” although the defendant migrated its website to a new platform for aesthetic reasons in March 2019.

The plaintiff claims that when she accessed the defendant’s website in or around December 2018, she encountered the portion of the website prohibiting outside food, but she does not claim to have contacted the theater to ask a question about accessibility or to request assistance.

Plaintiff then filed suit in January 2019 bringing her claims as a class-action and seeking injunctive and declaratory relief as well a compensatory damages under both the ADA and related New York State and City llaws. Defendant moved to dismiss for lack of standing and for failure to state a claim.

 

VI

Castillo Court’s Reasoning

 

  1. In order for standing to exist, three criteria must be met in the Second Circuit: 1) the plaintiff alleged a past injury under the ADA; 2) it was reasonable to infer that the discriminatory treatment would continue; and 3) it was reasonable to infer based upon the past frequency of plaintiff’s business and the proximity of defendant to plaintiff’s home, that plaintiff intended to return to the subject location.
  2. If a plaintiff has not personally encountered a barrier to access, she nevertheless suffers an injury if she has actual knowledge of the barrier complained of and has been deterred from visiting the public accommodation because of that barrier.
  3. A plaintiff has to at least prove actual knowledge of the barriers and show that he or she would visit the building in the imminent future but for those barriers.
  4. An injury has to be imminent rather than conjectural or hypothetical.
  5. In assessing imminence, one looks at the likelihood of return (we often see it in the case law as intent to return). Four factors are used when analyzing intent to return and they are: 1) the proximity of the place of public accommodation to plaintiff’s residence; 2) plaintiff’s past patronage of defendant’s business; 3) the definiteness of the plaintiff’s plan to return; and 4) the plaintiff’s frequency of travel near the defendant.
  6. A plaintiff has to support each element of standing in the same way as any other matter on which he or she bears the burden of proof.
  7. Plaintiff does not allege that she ever visited the theater or that the defendant physically barred her from entering. So, the only injury that plaintiff could have suffered was deterrence.
  8. While deterrence can get you standing, the plaintiff still has to have actual knowledge of a barrier to access.
  9. In December 2018, the theater’s website homepage content appeared on one page. The homepage was set up in such a way so that before even reaching the theater’s policy prohibiting outside food or beverage, a website user had to have first scrolled past the theater’s accessibility policy. That policy stated that the theater was accessible to all patrons. Further, guests with accessibility question requiring additional assistance could email the Playhouse directly or call the house manager. Finally, it also provided an email address and phone number for such accessibility questions or requests.
  10. The plaintiff made no claim that she contacted the theater as the defendant’s website invited her to do and that she was then denied permission to bring in outside food. Accordingly, she could not have had actual knowledge that the defendant’s outside food prohibition would bar her access to the theater as the defendant’s website made it abundantly clear there was at least a possibility of obtaining an accommodation.
  11. At the time plaintiff filed her complaint in January 2019, it was not reasonable to infer that any alleged discriminatory treatment would continue as content, language and sequencing of all relevant portions of the website remained the same. As such, the more reasonable inference to be drawn is that any discrimination inflicted by the outside food prohibition would disappear once the defendant received and responded to a request for reasonable accommodation.
  12. A broad allegation of intent to return or visit is not sufficient. Plaintiff has not alleged that she made any past visits to the theater. She also did not state that she had attempted to attend an event at the defendant’s theater in the past but did not do so because of the discriminatory policy and that such an attempt would be futile.
  13. The theater is nowhere near plaintiff’s home as she resides in King County, New York and the theater is in Boston.
  14. Plaintiff’s allegation that she intends to attend a similar event at the theater in the future is vague and not definitive. In fact, plaintiff made no allegation that she ever traveled to the area near where the theater is located.
  15. Claims under the State and City laws fail for the same reasons.

 

VII

Castillo Takeaway/Thoughts

 

  1. Castillo clearly represents a pushback on a broad notion of standing.
  2. If you are a physical place of public accommodation, an accessibility policy is a really good idea.
  3. If you have an accessibility policy, this decision requires a plaintiff to take advantage of it before they could be found to have standing.
  4. Not said in this opinion is that your Internet site should be meaningfully accessible to persons with disabilities.
  5. Judge Ross in many ways is taking a very similar approach to Judge McKeague when it comes to standing. So, on the plaintiff side, the more specifics you have, the better off you will be. On the defense side, a lack of specifics by plaintiff in the complaint could prove very helpful in getting the case dismissed.
  6. Castillo did not involve an Internet only place of public accommodation.

Next week is Thanksgiving week. My daughter has that entire week off. So, I am not sure about a blog entry for next week.

 

I have a whole bunch of cases in my pile that I can blog on. When I was going through them this morning, I ultimately decided to blog on a couple of cases dealing with hostile work environment and the ADA. I have blogged on hostile work environment and the ADA before, here. At the time I previously blogged on it, it wasn’t entirely clear whether hostile environment claims applied to the ADA at all. Now, it is becoming increasingly clear that hostile work environment claims do apply to the ADA. Most recently, the Tenth and Seventh Circuits have held as much. Considering the Seventh Circuit has not been particularly friendly to persons with disabilities, that holding is particularly significant. The Seventh Circuit case, which is published, also raises the question of whether hostile work environment claims can ever be split into two and whether a demotion can ever be a reasonable accommodation. As usual, the blog entry is divided into categories and they are: Mestas v. Town of Evansville, Wyoming; Ford v. Marion County Sheriff’s Office, which is then divided into subcategories of: basic facts taken directly from opinion; issues presented and holdings; court’s reasoning viability of hostile work environment claims; court’s reasoning severability of hostile work environment claim; court’s reasoning demotion as a reasonable accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Mestas v. Town of Evansville, Wyoming

 

In this particular case, the Tenth Circuit in an unpublished opinion, basically held that hostile work environment does apply to ADA claims, though it didn’t explicitly say so. Also, worthwhile noting is the court said that for retaliation claims a plaintiff does not have to show he or she suffers from an actual disability. Rather, plaintiff only has to show he or she had a reasonable good faith belief he or she had a disability. In this particular case, the court said plaintiff brought forth enough facts create a question of fact for a jury with respect to retaliation and hostile work environment.

 

Ford v. Marion County Sheriff’s Office

 

I

Basic Facts Taken Directly from Opinion:

 

Plaintiff Brigid Ford worked as a deputy in the Marion County Sheriff’s Office until her hand was seriously injured in a car accident while on duty. After assigning Ford to light duty for about a year, the Sheriff’s Office told Ford that she must either transfer to a permanent position with a cut in pay or be terminated. After some back and forth, Ford accepted a civilian job as a jail visitation clerk. In the following years, Ford alleges, she suffered disability- 2 No. 18-3217 based harassment by co-workers, refusals to accommodate her scheduling needs, and several discriminatory promotion denials. Ford sued the Sheriff’s Office for discriminatory employment practices in violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. The district court granted summary judgment on most of Ford’s claims. Two claims were tried to a jury, which rendered a verdict for the defense.

 

II

Issues Presented and Holdings:

 

  1. Is a hostile work environment actionable under the ADA? (Yes)
  2. Can a hostile work environment claim ever be separated by the court into two different hostile work environment claims? (Yes)
  3. Can a demotion be a reasonable accommodation? (Yes)

 

III

Court’s Reasoning Viability of Hostile Work Environment Claims

 

  1. Every Circuit to consider the question of whether a hostile work environment claim exists under the ADA has held it does.
  2. Congress wrote the ADA using the language of title VII, and title VII recognizes hostile work environment claims.
  3. Five Circuits have held that hostile work environment claims are permitted under the ADA (Fourth, Fifth, Eighth, and Tenth). Further, the First, Third, Ninth, Eleventh, and D.C. Circuits have assumed without deciding that such claims are possible.

 

IV

Court’s Reasoning Severability of Hostile Work Environment Claims

 

  1. Hostile work environment claims can be severed after looking at three factors: a significant gap between alleged incidents of discriminatory harassment; a change in managers; and intervening action by the employer.
  2. With respect to time, no magic number exists. Rather, the question is whether the series of allegations describe continuous conduct rather than isolated incidents. In this particular case, there was a gap of 18 months between the two series of disability harassment.
  3. With respect to a change in manager, while routine personnel actions are not sufficient to break up hostile work environment claims, a change in supervisor, which happened here, is.
  4. With respect to intervening action, prompt and appropriate corrective action reasonably likely to prevent harassment from occurring beats employer liability for coworker harassment. In this case, the alleged first set of harassers were removed permanently. Accordingly, such removal brought an end to the unlawful employment practice at issue. Also, incidental rotation of coworkers not calculated to address the harassment does not sever the hostile work environment claims. Rather, it has to be a transfer amounting to intervening action by the employer in order to close out a distinct unlawful employment practice before the hostile work environment claim can be severed. Permanent removal of supervisors qualifies in either situation.

V

Demotion as a Reasonable Accommodation

 

  1. A demotion can be a reasonable accommodation when the employer cannot accommodate the employee with the disability in his or her current or prior jobs or in an equivalent position.
  2. The ADA does require an employer to offer an employee a vacant position that more closely matches his or her previous job.
  3. The EEOC’s interpretive guidance said that an employer may reassign an individual to a lower graded position if there are no vacant equivalent position that the individual was qualified to do with or without reasonable accommodations.
  4. The 10th Circuit has said and the court in this case agrees, that the employer should first consider a lateral move to positions regarded as equivalent before demoting an employee.
  5. For a plaintiff to prevail on the question of whether the employer did not consider first a lateral move to positions that were equivalent, the plaintiff has to come forward with evidence that a more equivalent position for which he or she would qualify was vacant at the relevant time, which the plaintiff did not do in this case.
  6. In the Seventh Circuit, a problem in the interactive process is not actionable in and of itself because the ADA looks at ends and not means.

 

VI

 

Takeaway/Thoughts

 

  1. It’s becoming really clear that a hostile work environment claim is a viable claim under the ADA providing traditional hostile work environment principles are met.
  2. For purposes of proof at trial as well as for purposes of statute of limitations, attorneys want to keep in mind that circumstances exist as to when hostile work environment claims can be severed into separate hostile work environment claims.
  3. The three factors to consider when deciding whether hostile work environment claim can be severed do appear to stand on their own. However, if Ford is any guide, a court will look to all three of the factors even if one of them might be the deciding factor.
  4. A demotion under certain circumstances can be a reasonable accommodation. While the burden is on the plaintiff to show that a more equivalent position that he or she was qualified for was vacant at the relevant time, as a matter of preventive law, it makes sense for the employer to assist the employee in helping to determine whether any such vacant positions exist (see also this blog entry discussing mandatory reassignment). An employer that leaves it entirely open to the plaintiff to figure out whether there are equivalent vacant positions would leave themselves open to a claim that a more equivalent position was not really considered by the employer. If you’re the employer, why bother to take such a chance. Also, by providing assistance to find equivalent positions, you probably lessen the chance of litigation to begin with, and you certainly lessen the chance of successful litigation by the plaintiff.
  5. As we have mentioned before, such as here, the Circuits are all over the place with respect to whether violation of the interactive process is actionable in and of itself. Very much depends upon the jurisdiction.

 

Happy Thanksgiving!

I recently had the privilege of presenting at the Georgia ADA Coordinators conference held at the Georgia aquarium. In the room that I presented in, it ran right up against the beluga whales exhibit. There were times when I would look around the room, and I would see a couple of beluga whales staring at me. Kind of cool and weird at the same time. I had the opportunity to present on effective communications as well as be a co-panelist for an excellent presentation by Cheryl Frazier of the Georgia ADA Coordinator’’s office’s office on transition plans and self-evaluation plans. However, before I did those presentations, I had the opportunity to go to any presentation I wanted. I chose to go to Professor Simpson’s of the University of West Virginia presentation where after a brief presentation, which was also excellent, from an EEOC attorney, Professor Simpson spoke about the framework for the interactive process. I asked her for permission to use her presentation as the basis for a blog entry. She said absolutely but wanted to be sure I gave a shout out to the Job Accommodation Network as that is where her presentation came from. She used to work at the Job Accommodation Network, which is associated with the University of West Virginia, before moving into the faculty at the University of West Virginia. Professor Simpson’s website can be found here, and the Job Accommodation Network appears in my blogroll. I also thought the blog entry would do a nice job of building on my do’s and don’ts of the interactive process blog entry. You really need both. Think of this blog entry as the framework for the house, and my do’s and don’ts blog entry as a way the people are supposed to behave within the house. I do want to thank Stacey Peace, the Georgia ADA Coordinator, and Cheryl Frazier for allowing me to participate in the convention. They did a really great job. I also want to thank them both for the fabulous CART services they provided me so that I was able to equally benefit from the communications at the conference. The blog entry is really short. So, I am not going to break it down into categories. The framework for the interactive process goes like this:

 

  1. Recognize the accommodation request. Doing this means doing the following: remembering that magic words are not required, which we discussed here among other places; acting quickly; assigning responsibility so that it happens; and conducting training done by a qualified individual.
  2. Gathering information. Doing this means doing the following: finding out the individual’s limitations and problems; talking to the employee; remembering the rules on medical exams and disability related inquiries, which we discussed here among other places; remembering that the ADA has confidentiality rules, particularly for employment.
  3. Exploring accommodation options. Doing this means the following: consulting with the employee and making calls. I would add that be sure to consult with the employee first as the employee or the person with a disability as that person generally knows what works best. You can waste a lot of time trying to figure out a solution if you don’t ask the person with the disability first.
  4. Choosing the accommodation. Choosing the accommodation can get complicated. For example, if effective communication is involved and you are outside of the employment context, you have title II and title III effective communication rules to consider. As we have mentioned previously, those two rules are not the same in that under title II, primary consideration must be given to the person with a disability preferred mode of communicating while that is not the case with respect to title III. If effective communication is not involved, then you want to conduct the interactive process described in the do’s and don’ts blog entry. Remember, with respect to title I, reasonable accommodations have to be made unless an undue hardship is involved. With respect to title II title III, reasonable modifications have to be made unless an undue burden or fundamental alteration exists.
  5. Implement the accommodation. Doing this means doing the following: making sure all necessary steps are taken to implement the accommodation; and communicating with essential personnel about the accommodation.
  6. Monitoring the accommodation. Doing this means doing the following: checking on the effectiveness of the accommodation over time; and maintaining the accommodation. That is, don’t take it away if it is working; and making sure ongoing communication occurs.

 

So, there you have it. Between this blog entry in my dues and don’ts blog entry, you now have the house and the rules of the house.

Before getting started on the blog entry of the week, I want to congratulate the Washington Nationals on their World Series victory where for the first time, a road team won every single game. Congratulations. I will be very curious to see whether the Washington nationals go to the White House. As everyone knows, a lot of professional sport teams are handling that different ways.

Turning to the blog entry of the week, on October 29, 2019, the Seventh Circuit decided here Shell v. Burlington Northern Santa Fe Railway Company. I have previously blogged on that case here. So, no need to go into the facts of the case. Accordingly, that means our blog entry is going to be divided into the categories of court’s reasoning and takeaways/thoughts. The reader, of course, is free to look at any and all of the categories.

I

Seventh Circuit’s Reasoning Reversing the District Court’s Denial of Summary Judgment

  1. The alleged disability of obesity only works if there is evidence the obesity is caused by an underlying physiological disorder or condition. Plaintiff presented no such evidence to the District Court. For that matter, plaintiff did not present any evidence that the defendant regarded his obesity as having a physiological origin either.
  2. Plaintiff based his claim upon medical conditions the defendant feared he would develop-sleep apnea, diabetes, and heart disease. It is true that those conditions are physical or mental impairments under the ADA. However, plaintiff did not have those impairments at the time he applied to work for the defendant, and the company had no perception to the contrary. That is, the defendant did not believe that plaintiff had any of the feared impairments at the time it refused his application.
  3. The regarded as prong of the ADA, 42 U.S.C. §12102(1)(C), defines disability as being regarded as having a physical or mental impairment. As such, the very text of the statute encompasses only current impairments and not future ones. Regardless of how the grammar is debated, no one would understand the sentence to mean anything other than currently suffering from the disability. That is, “having,” means presently and continuously. It does not include something in the past that has ended or something yet to come.
  4. 42 U.S.C. §12102(3)(A) also mentions an individual is regarded as having a disability when he or she has been subjected to an action because of an actual or perceived physical or mental impairment. If the impairment does not yet exist, it can’t be actual or perceived.
  5. While you can argue over whether the Dictionary Act compels a different conclusion, such reasoning can’t overcome the plain meaning of the ADA’s statutory text.
  6. Other Circuits agree that fear of disability is not a cognizable claim. Those Circuits include: the 8th Circuit; the 11th Circuit; the 9th Circuit; and the 10th Circuit.
  7. The EEOC’s own interpretive guidance says the definition of impairment does not include physical characteristics or predispositions to illness or disease.
  8. The EEOC’s Compliance Manual genetic profiling example is divorced from the text of the ADA as it is in tension with other EEOC interpretive guidance. So, that doesn’t work with respect to persuading the court to differ from the ADA’s unambiguous text.
  9. A valid point exists about how the ADA combats accumulated myths and fears about disability and disease. However, to the extent a stereotype is involved, it is a stereotype about obesity, and obesity is only protected by the ADA if there is an underlying physiological cause. Without that underlying cause, obesity is not a disability the ADA protects.
  10. While Congress does say that the definition of disability must be construed broadly in favor of the individual, that doesn’t give the court license to go beyond the terms of the statute. To do otherwise, would mean encroaching into the legislative branch’s responsibilities.

II

Thoughts/Takeaways

  1. Reviewing my blog entry on the District Court decision reveals some interesting things. First, the District Court said that a question of fact existed with respect to whether the defendant actually believed the plaintiff was suffering from the conditions feared the plaintiff would develop. Second, the Seventh Circuit doesn’t address the District Court’s concern about the defendant being held to a lesser standard simply because it is engaging in adverse employment action before an impairment arises when there was no doubt that the defendant was acting based upon its belief that the plaintiff posed a present safety risk as a result of potential disabilities. Similarly, the District Court said that it was facially illogical and antithetical to the protections afforded by the ADA to argue that the defendant could not discriminate against individuals who actually have a disability but could discriminate against those individuals likely to have a disability but have yet to develop them.
  2. Absolutely true that the vast majority of courts are saying that with respect to obesity there has to be an underlying impairment. I wonder if plaintiff could not borrow from the definition of major life activity in the ADA as amended per 42 U.S.C. §12102(2)(B), and argue that the way the body operates with respect to a person who is obese constitutes a physical impairment vis a vis normal cell growth, brain, neurological, etc.
  3. Obesity is the only physical or mental impairment requiring an additional underlying physiological condition. That is, just about all of the other physical or mental impairments by their very definition have such a condition automatically contained within the diagnosis. So, even under the Seventh Circuit’s decision, would the same conclusion follow if a different disability was involved. For example, would the Seventh Circuit reach the same conclusion as the 11th Circuit with respect to a fear of a contagious disease? What if that individual the employer feared getting a contagious disease already had his or her immune system compromised in some way to begin with?
  4. I do think the Shell District Court’s reasoning is still worthwhile for plaintiff attorneys to use. On the plaintiff’s side, I would definitely allege an underlying physical or mental impairment whenever bringing a fear of future disability claim. I also think the myths, fears, and stereotypes angle is well worth pursuing.
  5. No dissenting opinion in this case. So, not sure if a rehearing en banc will be sought. Regardless, I doubt plaintiff will prevail in the Seventh Circuit even if a rehearing en banc is granted considering the Seventh Circuit’s track record of late with respect to persons with disabilities.
  6. Impossible to say how the United States Supreme Court would deal with a case like this. We currently do not have a Circuit Court split that I am aware of. So, it is entirely possible that United States Supreme Court will wait until such a split develops.
  7. One of the labor and employment law blogs I read regularly is the OhioEmployers Law Blog authored by Jon Hyman. His blog is a very interesting perspective. He is a management side attorney. However, he isn’t afraid of talking about how employers should do the right thing regardless of what the law allows. Sure, there is a moral side to that. However, there is also a monetary side to that as well. With respect to fear of future disability cases, the law is really unclear. Does the employer really want to risk spending $250,000 to prove a point when they can obtain the use of a valuable employee in the meantime? There isn’t a day that goes by where I read articles, in such places as the Wall Street Journal, talking about how employers of all kinds simply can’t find enough employees anymore. Even if the employer takes a risk in hiring such an individual, the ADA does allow for that employer to take certain actions if they become aware of issues. For example, as we discussed here for example, should the employer become aware of issues that are job-related and consistent with business necessity, they can always insist on a medical exam.
  8. Fear of future disability cases ultimately come down to company preference. That is, do they want to go to just where the law allows and make a defense litigation firm happy. Or, do they want to engage in preventive law by going further than the law allows initially, and then using what the law does allow them to do to deal with issues as they come up. I am pretty sure I know what Jon would say, but he can correct me if I’m wrong.

This week the United States Supreme Court will be considering a petition for cert. in the case we discussed here, which deals with the same defendant and the issue of who pays for the medical exam. I will certainly be following what happens with that case. Oftentimes, petitions for cert. get relisted. So, we may not know for a while what the United States Supreme Court elects to do in that case.

As I mentioned last week, I have a whole bunch of cases to blog on my pipeline. It took me quite a bit to decide on what to blog on. Ultimately, I decided to blog on Doe v. Northrop Grumman Systems Corporation, a decision that came down from the United States District Court of the Northern District of Alabama on October 22, 2019. I seriously debated whether I should blog on this at all because my colleague, Robin Shea, in her excellent blog, which is in my blog roll, beat me to it here. Her blog entry is excellent, and I already used it to teach my seventh grade class at Congregation Bet Haverim over the weekend. As everyone knows, just because someone beats me to it, does not necessarily mean I preclude myself from blogging on it. Ultimately, I decided to blog on it for a couple of reasons. First, I do think I have a slightly different perspective to offer to Robin’s excellent blog entry. Second, I felt that as a member of my synagogue, which, as I have mentioned previously, was founded about 25 years ago as the home for the LGBT Jews in the Decatur, Georgia area, I felt a blog was in order for that reason as well. So, here goes. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways/thoughts. The reader is free to concentrate on any or all of the categories.

I

Facts:

Around 2014, plaintiff was diagnosed with gender dysphoria. That led the plaintiff to begin a gender transition by undergoing hormone replacement therapy during March of 2016, while still on active duty with the U.S. Army. One of the reasons, she wanted to work at Northrup was their diversity policy, which specifically stated that the Corporation was committed to retaining and hiring a diverse workforce. Further, they stated they were proud to be an EEO Affirmative Action employer and did not make decisions based on a variety of factors including sex, sexual orientation, and gender identity. Plaintiff’s original supervisor at Northrup had no problem with plaintiff making the transition to another sex and assured the plaintiff everything was in order going forward with respect to her work environment. However, that supervisor was replaced by another person three months later. That person, a Brian Walker, according to the complaint, simply did not see things the same way. In particular: 1) he informed the plaintiff that he would not allow her to deploy to a foreign position because of concern that something might happen to her as a result of her transitioning to another sex; 2) his solution was to deny plaintiff’s request for the opportunity to deploy to a foreign position; 3) he also sought plaintiff’s transfer to a different department; 4) he undertook efforts to hinder plaintiff’s ability to deploy, derail plaintiff’s career and seek plaintiff’s transfer because of plaintiff’s female sexual characteristics and/or plaintiff’s transitional state; 5) once Walker made the decision to essentially end plaintiff’s engineering career, plaintiff contacted the HR department to complain about the supervisor’s discriminatory actions; and 6) a few weeks later, the HR department informed plaintiff that plaintiff would be laid off in two weeks as deployment was a requirement of the job plaintiff was performing. Plaintiff filed a charge of discrimination with the EEOC alleging both violations of the ADA and title VII, and plaintiff was eventually notified of the right to commence suit within 90 days. That suit was filed within the 90 day period.

II

Court’s Reasoning Granting the Motion to Dismiss

  1. Plaintiff’s complaint alleging discrimination because of the perceived stereotypes regarding the female gender and subjecting plaintiff to less favorable working conditions as a result are barely sufficient to meet the Twombly-Iqbal pleading standards. Nevertheless, barely sufficient works, and the title VII hostile work environment claims get to go forward.
  2. The question in this case is whether the plaintiff has a disability at all under the ADA.
  3. 42 U.S.C. §12211(b) specifically says that disability under the ADA does not include, “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”
  4. 42 U.S.C. §12211(b) has not been amended since it was enacted on July 26, 1990. While the statute utilizes the term “gender identity disorders,” that term was replaced in 2013 by the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders with the term, “gender dysphoria.” Accordingly, “gender identity disorder,” and “gender dysphoria,” are legally synonymous for purposes of ADA coverage.
  5. No clear allegations in the plaintiff’s complaint exists stating plaintiff’s gender dysphoria resulted from a physical impairment.
  6. Doe v. Massachusetts Department of Corrections and Blatt v. Cabela’s Retail Inc, I have blogged on both cases previously, are not persuasive authority for a case arising in Alabama.
  7. Plaintiff in plaintiff’s response to defendant’s motion to dismiss the ADA claim does allege a violation of equal protection clause of the U.S. Constitution. However, the burden is on the plaintiff to disprove every conceivable basis supporting the classification whether or not the basis has a foundation in the record. Plaintiff has not done so in this case.

III

Takeaways/Thoughts

  1. Did I say how much I enjoyed Robin’s blog entry on this case?
  2. How the title VII case ultimately fares will very much depends upon the Supreme Court decision in the transgender case just heard, which we discussed here. It wouldn’t surprise me if the defense petitions the court to put the case into a state of suspended animation pending the Supreme Court decision, which probably won’t come down until June of next year.
  3. When it comes to any kind of disability discrimination case, do not go with notice pleadings. As a result of the way Twombly-Iqbal have been interpreted over the years, the best approach for a plaintiff is to allege enough facts so as to put a reasonable person on notice at to what the problem is. Think of it as a fact-notice based hybrid system.
  4. The roadmap for a violation of the equal protection clause can be found in Doe v. Massachusetts, which we discussed here. Doe also has a discussion about how gender identity disorder and gender dysphoria are not the same thing. An attorney bringing forth a disability discrimination case on behalf of a transgender individual will definitely want to rely on Doe for the proposition that gender identity disorder and gender dysphoria are not the same.
  5. An attorney bringing a claim on behalf of a transgender individual alleging the ADA’s exclusion violates the transgender individual’s equal protection rights will also want to rely on Doe for how it places transgender individuals into the equal protection scheme. Here, it is clear that the Alabama District Court places transgender individuals into the rational basis class when it states that the plaintiff has to knock out every conceivable reason for the exclusion.
  6. Doe arguably placed transgender individuals into a higher equal protection class than rational basis thereby making it unnecessary to knock out every conceivable reason for the exclusion.
  7. Especially in light of the oral argument in the transgender case before the Supreme Court, discussed here, I do expect this case to gain a lot of currency around the United States. So, that means transgender individuals alleging discrimination under the ADA should allege if at all possible, the gender dysphoria results from a physical impairment. Also, a transgender plaintiff will want to allege in the alternative that the plaintiff’s equal protection rights are violated.
  8. As I have mentioned previously numerous times, the 11th Circuit has been very friendly to people with disabilities. However, I have no idea what the 11th Circuit might do with respect to how it would handle the questions: 1) are gender dysphoria and gender identity disorder really the same?; and 2) what equal protection class transgender individuals fall in? Complicating things further, is the oral argument that took place in the Supreme Court on the transgender case. As I mentioned in that blog entry, a big question exist as to whether the transgender individual will be successful and even whether such lack of success will be close. Ultimately, unless the ADA is amended, both of these issues will wind up at the United States Supreme Court.
  9. In some jurisdictions, the plaintiff may have a breach of contract action for the company’s violation of its employee handbook.
  10. I can’t tell you how many times a new supervisor messes up a perfectly working situation. Why fix it if it ain’t broke.
  11. Training, training, training of current supervisors and anybody who is a new supervisor is essential.

Before getting started on our blog entry of the week, good luck to the Houston Astros and the Washington Nationals in the World Series starting tonight. Turning to the blog entry of the week, I really really struggled with what to blog on this week. It wasn’t for lack of cases in my pipeline, I have about a dozen, I just couldn’t figure out what to blog on. Ultimately, I decided on a case my colleague, Richard Hunt, has previously talked about in his blog, which you can find in my blog roll. I decided there was something in that case I wanted to address specifically, and so here goes. The case is Smith v. Golden China of Red Wing, Inc., which can be found here, a decision from the District Court of Minnesota decided on July 22, 2019. As usual, the blog entry is divided into categories, and they are: facts; court’s reasoning; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Plaintiff is a Minnesota resident suffering from arthrogryposis and uses a wheelchair for mobility. On May 25, 2017, plaintiff along with a paralegal from a law firm drove around testing businesses in the Red Wing area for ADA compliance. He visited Golden China during this trip and noted there were no fully compliant accessible parking spaces. Plaintiff requires fully compliant accessible parking spaces to safely transfer between his car and wheelchair. He did not attempt to exit the vehicle and use the ramp to enter the restaurant building. Rather, he determined based upon his experience, he would not have been able to enter the premises and dine or order on an independent basis and was deterred from attempting what would have been an unsafe and futile act.

As far as being able to return to the restaurant, he did allege he was in the area often and would go to the restaurant if family or friends patronized it. His brother lives in Winona, and he also is in the area when he visits Treasure Island Casino.

Also, it turns out that while the facility predates the ADA, the parking lot had been resurfaced in 2001-2002. In particular, the parking lot was constructed in the 1970s. In 2001 or 2002, the restaurant resurfaced the parking lot. That resurfacing cost about $7000 or $8000 and did not involve regrading the parking lot. The old surface was scratched up to create a better bonding surface, and a new layer was put on top. They also restriped the parking lot every few years when the paint faded away. During the summer they filled potholes in the parking lot.

Plaintiff brought suit with respect to several ADA violation, including: 1) signage indicating accessible space was posted too low to the ground; 2) an insufficient number of accessible parking spaces; 3) insufficient striping for accessible spaces; 4) the accessible space lacked an adjacent access aisle; and 5) the ramp near the reserved parking space had impermissible slopes and landing. The court decided that only one accessible parking space was needed per the applicable standards. Also, Golden China fixed everything except for the ramp having impermissible slopes and landing. So, the court dismissed all of those claims as moot. With respect to the ramp having an impermissible slope and landing, Golden China argued fixing it would put it out of business. Further, it had no obligation to undertake such repairs (it had put out for bid what it would take to repair the slope), because such repairs, which would require $29,000-$39,000 worth of construction, was not readily achievable and would put them out of business.

II

Court’s Reasoning

 

  1. Plaintiff has standing to bring the suit because he has shown an intent to return. In particular, his brother lives in Winona. He also visits the Treasure Island Casino, which is nearby. Both of those allegations sufficiently show a threat of future harm.
  2. Title III of the ADA, 42 U.S.C. §12182(b)(2)(A)(iv)-(v), defines discrimination as a failure to remove architectural barriers in existing facilities where such removal is readily achievable. Further, if removal is not readily achievable, failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable is also discrimination.
  3. The resurfacing of the parking lot was an alteration. An alteration is a change to a place of public accommodation or commercial facility that affects or could affect the usability of the building or facility or any part thereof. Normal maintenance are not alterations unless it affects the usability of the building or the facility. 28 C.F.R. §36.402(b)(1).
  4. The 2010 ADAAG specifically defines alteration as including the resurfacing of circulation paths or vehicular ways and is persuasive authority.
  5. While the resurfacing has not been done in nearly two decades, the resurfacing nevertheless was an alteration.
  6. 28 C.F.R. §36.304(d)(3) requiring any noncomplying facilities in existence before March 15, 2012, to comply with the ADA where readily achievable was initially published and approved on September 15, 2010.
  7. 28 C.F.R. §36.402(a), which requires noncomplying facilities altered after January 26, 1992, to comply to the maximum extent feasible was published and approved on July 26, 1991.
  8. §36.304 and 36.402 contradict each other. Since they contradict each other with respect to facilities in existence before March 15, 2012 and altered after January 26, 1992, the regulation issued and approved at the later date, allowing for a readily achievable defense, prevails.
  9. It is up to the plaintiff to present a sufficient showing barrier removal is readily achievable. Plaintiff does that by presenting evidence of: 1) a specific design to remove the barriers allege; 2) the cost of removal or the proposed remedy; and 3) the effect on the finances and operation of the facility.
  10. Under 28 C.F.R. §36.304(a), readily achievable is something that is easily accomplished and able to be carried out without much difficulty or expense.
  11. Considerations of whether something is readily achievable are stated in 42 U.S.C. §12181(9), and include: 1) the nature and cost of the action needed; 2) the overall financial resources of the facility, the number of persons employed there, and the impact of such action on the operation of the facility; 3) the overall financial resources of the facility and its size (including number of employees, and number type and location of facility); and 4) the type of operation of the covered entity.
  12. Since the start of litigation in 2017, Golden China has suffered a net loss even despite a decrease in rent.
  13. Defendants have provided significant evidence that bringing the ramp into compliance with the applicable ADAAG standard would cost between $29,000 and $39,000, which is money they do not have.

III

Thoughts/Takeaways

 

  1. This court adopts the deterrence theory of standing. As we know from this blog entry, standing is a bit all over the place. Some courts are less flexible than others, particularly with respect to the intent to return.
  2. I am a bit surprised that an appeal was not filed for two reasons. First, the court holds that readily achievable is something that the plaintiff has to prove up. Other courts, such as here, take a very different approach. Second, it is just not obvious a readily achievable defense exist even after alterations are done. I get that the two regulatory provisions are in apparent contradiction with each other, but one wonders if it necessarily follows that readily achievable is a defense after alterations are done. As mentioned below, it would be very interesting to research how DOJ has looked at this over the years and what position they took on the matter.
  3. With respect to the current status of the case, the parties are fighting over whether the defendant should be awarded attorney fees. It is really hard for a defendant to get attorney fees. Seems to me that this case was never a slam dunk case for the defendant. Accordingly, an attorney fees petition may well prove unsuccessful. If it does prove successful, certainly worth an appeal.
  4. Resurfacing a parking lot is an alteration. We have previously discussed when an alteration occurs in this blog entry.
  5. This decision opens up another avenue of defense for title III entities with existing facilities and alterations made prior to March 15, 2012. Those entities may be able to argue that even if the alterations were not done right or the path of travel to those alterations were not done the way they were supposed to be, they still may have a readily achievable defense.
  6. It would be interesting to research what DOJ guidances, technical assistant memorandums, etc. over the years with respect to the contradiction between 28 C.F.R. §36.304(a) and 28 C.F.R. §36.402. If there is discussion by DOJ over the years on this, then the question will become whether that discussion, assuming they took a definitive position, would be given credibility by the courts per this blog entry.
  7. Title III entities should be aware that readily achievable is a moving target. It very much depends upon the financial resources of the entity involved. Sometimes, places of public accommodation with considerable resources will have significant repairs deemed readily achievable. So, it just depends.
  8. The allegations of inaccessibility made by the plaintiff in this case are quite typical for drive-by plaintiffs. Another typical allegation would be if the plaintiff had gone inside, you likely would have seen an allegation that the pipes underneath the bathroom sink were not insulated. At any rate, because these allegations are so typical, places of public accommodation may want to focus on the particular items and monitor them accordingly.
  9. The case did not deal with standing for testers.
  10. Case illustrate the point that if you fix the allegations, those claims become moot.
  11. Does the restaurant now have an obligation to post signage saying that the slope of the ramp is not to ADAAG standards if they don’t want to run the risk of a personal injury suit?
  12. Why would a person with a disability do this kind of work if they are not getting paid? Well, if not supposed to happen this way, but in Florida and in Georgia there are allegations that attorneys in those two States did pay the person with the disability a fee for what they did. That action is not ethical, but the allegations are that it happens. More charitably, the ADA went into effect in 1990, and people have had 30 years to comply. It just doesn’t seem to be happening. So, a person with a disability may make it their mission.

Lastly, one more week to vote for my blog in the lexblog contest here.