I

This is just outrageous!* People shouldn’t say these things, such as:**

  1. “I’m not going to change anything with respect to IEP’s. After all, appropriate progress means anything you want it to mean.”
  2. “Since I don’t want your money, I can do what I want.”
  3. “A cool website is more important than an accessible website. Besides, my business is entirely on the website, so no worries.”
  4. “I hired someone to give me the down and dirty on my hotel being in compliance with the ADA. So, if it isn’t, not my problem since that person has to indemnify me anyway.”
  5. “Just more efficient if I accommodate the same disability in the same way regardless of the individual.”
  6. “Judges need not worry about accommodating litigants with disabilities since they have judicial immunity anyway.”
  7. “A person on a jury with a disability, NAAAAH.”
  8. “For real… affirmative action for persons with disabilities? What is next?
  9. “You can’t do the essential functions of the job, hit the road.”
  10. “You have to be at work unless of course, I-85 has been destroyed.”
  11. “Don’t worry about reasonable accommodations unless the employee says please.”
  12. “Ignorance of the law is no excuse unless you are the police.”
  13. “Addicts are addicts, and so I am going to treat drug addicts and alcoholics in the same way.”
  14. “You have got to be kidding; athletes subject to the ADA. Good Grief.”
  15. “Since Auer is dead anyway, I don’t need to care about what an agency says about how it would interpret its own regulations.”
  16. Dogs!
  17. “I love people on SSDI since I don’t have a duty to accommodate them.”
  18. “A disability is a get out of jail free card.”

 

*APRIL FOOLS!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

** My thanks to Robin Shea for giving me the idea and the courage to do this April fools post. Her April fools blog entry is really cool!

II

Can they really do that or say that?

  1. Relying on “appropriate progress,” to think that the old world of IEP’s can remain is very dangerous. It is clear when the Court used the term “appropriate progress,” they had something quite a bit different in mind than the old paradigm. A better way to look at it would be to think of it in terms of “progress appropriate…” See this blog entry.
  2. If you refuse to take money, because you want to discriminate, that is not going to work as seen here.
  3. This one is really complicated. See my friend and colleague’s, Richard Hunt, blog entry on it. It is indeed a mess. For now, the thing to keep in mind is meaningful access.
  4. The ADA is a nondelegable duty as discussed here, but see here as well.
  5. The ADA requires an individual analysis. Do you really need a citation for that?:-)
  6. Judges do have to worry about accommodating litigants with disabilities even though they have judicial immunity. See here and here.
  7. Person’s with disabilities do have a right to serve on juries. See here.
  8. Not outrageous at all; A person opposed to affirmative action for persons with disabilities just may have a case as discussed here.
  9. Just because a person cannot do the essential functions of the job, does not mean they can’t do the job with reasonable accommodations. See here for example. For other examples, just plug-in “essential function,” into my blog search engine, and you will see many different blog entries discussing essential functions.
  10. This particular statement is happening all over the Atlanta area. As many of you may be aware, it appears that a group of homeless people started a fire and that caught a bunch of flammable items on fire as well as items that made the heat even worse. The result of which is that I-85 completely busted up in a very busy corridor of Atlanta. Employers are encouraging their employees to telecommute. So, I sure hope they have telecommuting policies. Also, I sure hope they have read this blog entry as well.
  11. Magic words are not required as discussed here. See also ¶ II 2.
  12. Not exactly. The police get some slack but not a free pass.
  13. It is a real common misperception that drug addicts and alcoholics are treated the same way under the ADA. They aren’t. See this blog entry and its comments.
  14. Athletes are most definitely covered by the ADA. See this blog entry and comments for example.
  15. Auer (the doctrine that gives deference to agency interpretation of its own regulations), will shortly be dead, but that doesn’t mean a guidance can’t be great preventive law, such as here.
  16. As everyone knows, I love dogs! See here and here for example.
  17. Outrageous, but complicated.
  18. A disability is not a get out of jail free card.

Hope you enjoyed this blog entry. Remember, it was written on April fools. Good luck to everyone on the upcoming baseball season. The prognosticators are saying the Cubs and the Tribe will be back, but we will see.

Today’s blog entry concerns the Supreme Court case decided yesterday, Moore v. Texas, talking about how do you go about figuring out whether a person with an intellectual disability is eligible for the death penalty. Before proceeding further, a couple of notes. First, this is the third decision in a matter of a few weeks coming down in favor of persons with disabilities. This one is a 5-3 (Kennedy with the swing vote), split rather than the unanimous opinions of the other ones. Second, I never in a million years, would have thought that a Supreme Court opinion would result in a straightforward and short blog entry, but this one does. So, here goes a practical guide for dealing with intellectual disabilities and the death penalty.

  1. Figuring out whether a person has an intellectual disability sufficient for not being eligible for the death penalty involves looking at: 1) intellectual functioning deficits. That is, whether the person has an IQ score of 70 adjusted for the standard error of measurement; 2) adaptive deficits, which is the inability to learn basic skills and adjust behavior to changing circumstances; and 3) the onset of those deficits while still a minor.
  2. When an IQ score is close to but above 70, courts must account for the test’s standard error of measurement. The range is the key and not the actual given score.
  3. When an individual’s IQ score, adjusted for the test’s standard error, falls within the clinically established range for intellectual-functioning deficits, courts must continue the inquiry by considering other evidence of intellectual disability.
  4. The focus when it comes to adaptive functioning is on adaptive deficits and not on how a person might have potential strengths and some adaptive skills, such as the ability to adapt to life in prison (the Court specifically says that adaptation to life in prison is not negative evidence of the existence of an intellectual disability).
  5. The presence of mental health issues does not rule out intellectual disabilities.
  6. Mild levels of intellectual disability are intellectual disabilities and States may not execute anyone in the entire (emphasis mine), category of offenders with intellectual disabilities.
  7. In figuring all this out, medical professionals are critical. Those medical professionals, as well as the courts, must also focus on the medical evidence and not upon stereotypes.
  8. While States have flexibility in figuring out how to deal with offenders with disabilities eligible for the death penalty, if the States were to have complete autonomy in that respect, then the Eighth amendment’s protection of human dignity would be illusory.

So, there you have it; a roadmap for those defending persons with intellectual disabilities in capital murder situations. Of course, those situations are becoming less and less. Politicians on both sides of the aisle are reaching the conclusion for different reasons that the death penalty is not the way to go.

As you know, it is rare that I blog more than once a week. I do make exceptions for extraordinary situations. This is one of those situations. Yesterday, the United States Supreme Court decided Endrew The decision contains stirring language, and is a huge victory for students with disabilities with IEP’s. It will also fundamentally change the way the vast majority of school districts go about dealing with students with IEP’s. Finally, it is also going to change the lives of special education attorneys on both sides of the aisle. Let’s see why by looking at the court’s reasoning. Of course, I have some takeaways for you as well. The reader is free to read either of the categories or both.

I

Court’s Reasoning:

  1. For those interested in the oral argument that led up to this decision, check out this blog entry.
  2. The decision, written by Chief Justice Roberts, was unanimous.
  3. To say that Rowley imposed no explicit substantive standard is incorrect for several reasons: 1) the Court said that a substantive standard was implicit in IDEA; 2) the Court in Rowley had no need to say anything beyond what it did, since that case involved a child whose progress plainly demonstrated that her IEP was designed to deliver more than adequate educational benefits; 3) the Court was not concerned in that case with precisely articulating a governing standard for closer cases; 4) the Court’s statement in Rowley that IDEA did not guarantee any particular level of education simply reflected the unobjectionable proposition that IDEA does not promise any particular educational outcome; 5) the Court stated in that case that determining whether children with disabilities were receiving sufficient educational benefits presented a difficult problem. That being the case, it would have been easy for the Court to say when educational benefits were sufficient if it had just said that any educational benefit was enough. It also would have been very strange for the Court to refuse to set out a test for the adequacy of educational benefits if the Court had already done that.
  4. IDEA is a substantive obligation.
  5. To meet the substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
  6. “Reasonably calculated,” reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials and a very fact intensive one at that. Further, that process involves not only the expertise of school officials, but also the input of the child’s parents or guardians.
  7. The key is whether the IEP is reasonable and not whether the court regards it as ideal.
  8. Since the essential function of an IEP is to set out a plan for pursuing academic and functional advancement, the IEP must aim to enable the child to make progress in a way appropriate to the child in light of his or her circumstances.
  9. IDEA requires that children with disabilities receive education in the regular classroom whenever possible. When that is the case, the system itself monitors the educational progress of the child. That is, regular examinations are administered, grades are awarded, and yearly advancement to the higher grade levels is permitted for those children attaining an adequate knowledge of the course material. Progress through that system is what the United States generally means by an education, and access to an education is what IDEA promises.
  10. For a child fully integrated in the regular classroom, an IEP should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.
  11. The IEP provisions reflect Rowley’s expectation that for most children a free appropriate public education involves integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade.
  12. Any instruction and services must be provided with an eye towards progress in the general education curriculum.
  13. For students not fully integrated in the regular classroom, his or her educational program must be appropriately ambitious in light of his circumstances just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child must have the chance to meet challenging objectives. True, this is a general standard, but nevertheless, it is definitely more demanding than “merely more than de minimus,” which is what the 10th Circuit applied.
  14. A student offered an educational program providing merely more than de minimus progress from year to year can hardly be said to have been offered an education at all. For children with disabilities receiving instruction so low, that is tantamount to sitting idly waiting for the time when they were old enough to drop out. IDEA demands more by requiring an educational program to reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.
  15. Rowley specifically rejected the view of the Endrew plaintiff that IDEA required an IEP giving a student with a disability the opportunity to achieve academic success, attain self-sufficiency, and contribute to society substantially equal to the opportunities afforded children without disabilities. While that formulation was virtually identical to a concurring opinion by Justice Blackmun in Rowley, the majority rejected that standard in clear terms. Since Congress has not materially changed the definition of a free appropriate public education since it was enacted, the Court declined to interpret the concept of a free appropriate public education in a manner so much at odds with the majority opinion in Rowley.
  16. Appropriate progress will vary from case to case and that is appropriate since the adequacy of an IEP turns on the unique circumstances of the child for whom it was created. That said, such a standard should not be mistaken for an invitation to other courts to substitute their own notions of sound educational policy for those of the school authorities they would review.
  17. It is proper to give deference to the exercise of judgment by school authorities when reviewing an IEP because the nature of the IEP process, from the initial consultation to state administrative proceeding, ensures that parents and school representatives fully air their respective opinions on the degree of progress a child’s IEP should pursue.
  18. By the time any dispute reaches court, school authorities have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. Accordingly, a reviewing court may fairly expect those authorities to offer a cogent and responsive explanation for their decisions showing that the IEP is reasonably calculated to enable the child to make progress appropriate in light of his or her circumstances.

II

Takeaways:

  1. This case will fundamentally change the way many school districts, hearing officers, and special education attorneys on both sides of the aisle go about their business.
  2. One way that it will change things is that currently the process is very adversarial in most places. Considering the primacy the court places on the IEP process and the importance of both the parent’s input and the school’s input when it comes to deference, this will force the schools to act in a much more collaborative way if they want to ensure that their IEP determination is upheld.
  3. Many schools in the past would do the advance and drop out routine, and that is not going to fly anymore.
  4. IDEA is more than just a set of procedures; it also contains substantive obligations as well.
  5. For a child fully integrated in the regular classroom, the school and the parents are going to have to work together to develop an IEP reasonably calculated to enable that child to achieve passing marks and advance from grade to grade. Instruction and services have to be provided with an eye towards progress in the general education curriculum.
  6. Every child must have the chance to meet challenging objectives. One problem that I have consistently seen is that the goals in many situations were set too low. Doing that now is inexcusable and violates this decision because every student must have the chance to meet challenging objectives, and the IEP must be appropriately ambitious for that to happen.
  7. For those students not fully integrated into the classroom, IDEA requires an educational program reasonably calculated to enable the child to make progress appropriate in light of his or her circumstances.
  8. While a thorough collaborative process will result in a court giving deference to the school with respect to the determination of whether the IEP meets the requirements of a free appropriate public education, it does seem from this decision that the burden of proof for the sufficiency of an IEP is on the school district. That is, the court may fairly expect a cogent and responsive explanation from the school district showing that the IEP is reasonably calculated to enable the child to make progress appropriate in light of his or her circumstances.
  9. It is clear the Court believes it has set forth a clear and workable but yet flexible standard for lower courts to apply and that outside of that flexibility the Court is not looking for freelancers (i.e. courts coming up with their own standards or variations on the standard set forth by the Court).
  10. 16-0 in favor of persons with disabilities with respect to the two IDEA cases the Court had before it this term.
  11. IDEA has teeth.
  12. Advancing the student so they graduate without any skills will not fly.
  13. Setting goals that are not challenging and not appropriately ambitious for the student will not fly.
  14. Are deaf schools history? I am a member of the Deaf and hard of hearing Bar Association, and when this case came up, the impact of this decision on deaf schools naturally arose. Deaf is a different kettle of fish than other disabilities. A Deaf, culturally deaf, person is a person that is medically deaf (I qualify); ASL (never learned it; long story); and attended a state school for the Deaf (I do not qualify, as I was completely mainstreamed). A deaf person is just someone who is medically deaf (severe to profound hearing loss). As I have mentioned previously, I consider myself deaf proud, with a small d. With the incredible emphasis on mainstreaming in this decision, does this mean state schools for the deaf are in trouble? A great question, and one without an easy answer. For Deaf advocates, it means having to thoroughly show that a state school for the Deaf is going to be the most appropriate placement. For the school, it is going to mean doing everything it can to show that it is trying everything short of that. Complicating things is that if a child is deaf, the chances are very high that his or her parents are hearing. The opposite is also true where if the parents are deaf, the child is likely to be hearing. I do look for lots of litigation over whether placement in a state school for the Deaf is appropriate, since under this decision, mainstreaming is the first option. It also means that getting into a deaf school by virtue of an IEP where that is a prerequisite for admission (the case with the Atlanta Area School for the Deaf for example), may become more difficult. That said, there is another side to it. That is, this decision would also support the proposition that closing deaf schools will be much more difficult if the deaf school can show that the kids are thriving in a challenging curriculum.
  15. This decision creates even more incentive for a school system to make the IEP as comprehensive as possible. See also ¶ 16.
  16. Don’t forget about this blog entry too.

Today’s case, Aguirre v. California School of Court Reporting-Riverside, 2016 U.S. Dist. LEXIS 167980 (C.D. Cal. December 2, 2016), comes from a publication that I subscribe to call Disability Compliance for Higher Education. It is an excellent publication geared towards the professionals that serve people with disabilities in higher education. It also will have short discussions about cases and OCR rulings. While the case of the day appears in the latest issue of that publication, I thought I could bring a different spin to it, and so here goes. As usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff was in a car accident leaving her permanently disabled. As a result, she had to find new work that she could do while seated. She applied to the defendant’s court reporting program. Later that month, a representative of the program called her to discuss the program and encouraged her to enroll by April 20, 2015 when the next session began. After that, plaintiff contacted the California Department of Rehabilitation to apply for a grant to cover costs and tuition. On April 7, 2015, a representative of the college contacted the plaintiff again to express interest in moving her through the admission process. The plaintiff responded that she was still trying to secure funding through the Department of Rehabilitation. The Department of Rehabilitation could not secure funding in time for the April 20, 2015 session, and so the plaintiff did not enroll. On May 5, 2015, the college emailed the plaintiff again to continue the admission process and informed her that the next session would begin in June. The plaintiff responded that she was still interested in the program and would enroll as soon as she obtained funding from the Department of Rehabilitation. On June 25, 2015, the plaintiff received the following email from her Department of Rehabilitation counselor (emphasis mine):

Hi Cristina. Lauren from Sage called and talked to Monica saying that they can’t take anyone from the Department of Rehabilitation because they don’t feel that they can accommodate them. We told them that we would only refer qualified and capable students and she still wouldn’t accept our payments. We didn’t mention your name. She told Monica to put Sage on the inactive vendor list.

Here’s what Monica reported to my supervisor yesterday.

“Lauren Somma Director of Sage college called me back today regarding a call I placed requesting school information for a client. . . . Ms. Somma stated today that she would like to be put on the inactive list because the school feels that they are ‘unable to accommodate anyone with a disability at this time since they are a small school.’ . . . Ms. Somma closed our conversation stating again that she would like Sage College to be on DOR’s inactive list because they do not feel they can accommodate our clients.”

After receiving this information, plaintiff began looking for other educational opportunities, including other court reporting schools. She alleged in her complaint that but for the defendant’s withdrawal from the Department of Rehabilitation vendor list, she would have completed the admission process and enrolled in the college’s court reporting program. Plaintiff brought suit under title III of the ADA, Unruh Civil Rights Act, common-law negligence, and intentional infliction of emotional distress.

II

Court’s Reasoning

In denying defendant’s motion to dismiss, the court reasoned as follows:

  1. The college has a duty not to adopt discriminatory policies related to the acceptance of grant money.
  2. While a college is not under a duty to participate in a Department of Rehabilitation program, it cannot withdraw from that program if doing so has the effect of discriminating on the basis of disability.
  3. A variety of statutory and constitutional provisions recognize that an entity can be liable for discriminating in the provision of a benefit or service even when it is under no duty to provide the benefit or service in the first place.
  4. While a college is well within its right to refuse Department of Rehabilitation funding pursuant to a general policy of refusing grant money, that is not the same thing as withdrawing from a program if the decision to withdraw has the effect of discriminating on the basis of disability.
  5. Since the plaintiff plausibly alleged that the college withdrew from the Department of Rehabilitation program due to a discriminatory policy, the fact that the college could have refused to participate in the program in the first place is irrelevant.
  6. Title III does not require a person with a disability to request an accommodation before bringing suit. For that matter, such a requirement makes no sense where the defendant engages in affirmative discrimination.
  7. An entity taking affirmative steps to exclude persons with disabilities cannot reasonably be expected to grant a request to accommodate those individuals. Requiring an individual to request an accommodation in such a case, contravenes Congress’ determination that a person with a disability does not have to engage in a futile gesture if that person has actual notice the entity covered by title III does not intend to comply with the provisions of title III.
  8. By plaintiff informing the college she was seeking Department of Rehabilitation funding, that was enough to put the college on notice that plaintiff was a person with a disability.
  9. It is reasonable to infer that the college knew its decision would affect the plaintiff because the Department of Rehabilitation told the college it was seeking information for a client and the college knew at the time of the conversation that plaintiff was seeking Department of Rehabilitation funding.
  10. The complaint reasonably alleges that the college knew its withdrawal from the Department of Rehabilitation program would prevent the plaintiff from enrolling.
  11. The plaintiff has standing because she actually applied for admission to the program and was denied it as a direct result of the college’s discriminatory policy.
  12. To establish standing, plaintiff does not have to allege that she was totally precluded from enrolling in the college, rather all she has to allege is that she was subjected to unequal treatment on the basis of her disability. So, regardless of whether the denied benefit was the financial aid program or admission into the program itself, plaintiff has stated a sufficient claim.
  13. When the college allegedly withdrew from the funding program it knew the plaintiff was relying upon because of its view that it was unable to accommodate anyone with a disability, it arguably denied the plaintiff an equal opportunity to participate in its educational programs.
  14. Since the college repeatedly reached out to her about completing the admission process, it is reasonable to infer that the college would not have encouraged the plaintiff to enroll if she was not qualified to attend the College.
  15. The State law claims survive a motion to dismiss because the ADA claims survive, though there was a dispute between the parties as to whether the state claims were based upon or independent of the ADA claims.

III

Takeaways:

  1. This may be one of those cases that down the road turns into the rare victory for plaintiff on summary judgment because of the smoking gun email.
  2. One lesson for this case, is to perform a higher education compliance audit if you have not already done so.
  3. It is one thing to have a general policy of not accepting state or federal funds, it is quite another to say no to such funds because you do not want to deal with the issues of accommodating persons with disabilities.
  4. This also may be one of those cases where the plaintiff would be able to avoid the burden shifting of McDonnell-Douglas and rely on direct evidence vis-à-vis the email.
  5. When affirmative acts of discrimination are occurring, a plaintiff is under no obligation to request accommodations to remedy those acts.
  6. Magic words are not required to inform a defendant that the person has a disability. Some common sense is in order. Clearly, funds would not be requested from the Department of Rehabilitation if the person did not have a disability.
  7. Colleges and universities need to make sure that their recruiting program is in sync with the essential eligibility requirements of the particular program the prospective student is interested in.
  8. Interesting that the plaintiff did not sue under §504 of the Rehabilitation Act since it is probable that the college accepted federal funds. The advantage to suing under that law would be that §504 requires that nondiscrimination against persons with disabilities extend to all of the operations of an educational entity. The disadvantage to suing under §504 is that causation is solely by reason of, which is not the case for the laws the plaintiff did sue under.

 

 

Today’s case, Deutsch v. Abijaoude, from the Western District of Texas (Austin) is a tour de force for discussing the possible standards for standing under title III of the ADA. As is usual, the blog entry is divided into categories: Facts; just what is necessary to show standing?; attorney’s fees and costs; and takeaways. The reader is free to read any or all of the sections. That said, this is a real easy to read blog entry and the reader will probably want to read all of it.

I

Facts:

The facts are really straightforward. The defendant is the owner of a bakery and got hit with a lawsuit by a serial plaintiff acting on behalf of a lawyer that sues hundreds of people a year for violations of title III of the ADA. The difference here is that instead of settling with the lawyer, this defendant elected to fight. In particular, he argued that the plaintiff did not have standing. Not only that, the defendant moved for attorneys fees and costs.

II

Just what is necessary to show standing?

  1. One approach that many courts take when deciding whether a person has standing under title III of the ADA it to try to figure out whether the plaintiff is likely to return to the defendant’s business. Figuring that out means looking at four different factors: A) the proximity of the defendant’s business to the plaintiff’s residence; B) the plaintiff’s past patronage of the defendant’s business; C) the definiteness of the plaintiff’s plan to return; and D) the plaintiff’s frequency of travel near the defendant.
  2. With respect to ¶ 1 post-suit efforts to burnish standing doesn’t help, because a court has to judge standing based on the facts at the time the suit is filed.
  3. Another approach that courts take is trying to determine whether a title III plaintiff has suffered a cognizable injury if he is deterred from visiting a noncompliant place of public accommodation because he has encountered barriers related to his disability there. This theory is based upon the language in the ADA that states a plaintiff does not have to engage in a futile gesture if such person has actual notice a person or organization does not intend to comply with the ADA. This approach involves assessing whether: the discriminatory barriers remain in place; the plaintiff remains a person with a disability; and the plaintiff is able and ready to visit the facility once it is made compliant. Under this approach, the plaintiff also has to show knowledge of the barriers and that they would like to visit the building in the imminent future but for those barriers.
  4. Either approach requires an intent to return. However, an intent to return does not mean just showing up at the site, rather a person has to show that they actually intend to patronize that business. In this case, the attorney testified that he gave the plaintiff a list of businesses to go and check out to see whether or not they were ADA compliant and when he did so, a log would be checked off by the plaintiff. Further, this particular plaintiff sued 385 businesses in 306 days, including the intervening Saturdays, Sundays, and holidays when the courthouse was closed. No business pre-suit notices or any efforts to allow the businesses to cure the deficient parking issues before suing were made. Finally, the attorney demanded payment of thousands of dollars in attorney’s fees before he would dismiss the suit even when the problems were quickly remedied.
  5. Notice and an opportunity to cure before suit is filed is relevant to assessing whether a plaintiff intends to return to actually patronize that business.

III

Attorney’s Fees and Costs:

  1. The defendant moved for attorney’s fees and costs. With respect to attorney’s fees, the court denied that request because the court never reached a decision on the merits since the case was dismissed on standing grounds.
  2. With respect to costs, the award of costs under the Federal Rules of Civil Procedure and applicable federal statutes allows the District Court to award just costs and does not require a finding of a party being the prevailing party in order to do so. Accordingly, the District Court awarded the defendant his costs.

IV

Takeaways:

  1. In this blog entry, I discussed an approach for fending off the serial plaintiff. I still stand behind that blog entry. This particular blog entry is a preliminary step that can be used while you are putting the preventive law pieces discussed in my fending off the serial plaintiff blog entry together.
  2. What this case shows is that the requirements for standing under title III are a bit all over the place, perhaps even within the same jurisdiction, and so you want to check out what your rules are for your jurisdiction.
  3. This case presents the argument that while testers may have standing under title III, they still have to show they truly intend to patronize the establishment in the future. Also, the context which the tester is operating in matters as well.
  4. While notice and opportunity to cure before suit is not currently required, though it may be soon as discussed in this blog entry, it is relevant to assessing whether a plaintiff is intends to return to actually patronize that business.
  5. While attorney’s fees are not going to fly where a case get dismissed on standing grounds, it may be possible to get costs. One wonders if that might not include the costs of having the building assessed for ADA compliance. If so, that itself could easily run $5-$10,000 or so.
  6. With respect to a plaintiff’s attorney demanding thousands of dollars in attorney’s fees before dismissing a suit even when the problems are quickly remedied, a plaintiff may run themselves into a situation where the claims are mooted, as discussed in this blog entry, and to subjecting himself or herself to attorney’s fees on the part of the defendant, as discussed in this blog entry.
  7. This case is an important tool for defendants when dealing with a serial plaintiff, especially when combined the steps discussed in my blog entry on fending off the serial plaintiff.

Today’s case, to DeWitt v. Southwestern Bell Telephone Company deals with the honest belief rule. This rule allows an employer to justify a termination if it honestly believes its reason for doing so was valid regardless of whether it actually was. As is usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to read any or all of the sections.

I

Facts

Plaintiff has type I diabetes and is insulin-dependent. She monitors her blood sugar levels many times a day. When her blood sugar levels are relatively low, she experiences sweating, shakiness, fatigue, lethargy, confusion, and poor coordination. She told her managers at Southwestern Bell telephone that she had diabetes and that she may experience low blood sugar levels. At such times, she would need to eat or drink something to correct it. Throughout her employment, defendant allowed her to take breaks to eat or drink in order to raise her blood sugar as needed. On January 21, 2010, plaintiff mistakenly left phone service on a customer’s account after the customer canceled the service. Such an action is known as a cramming violation, which is the failure to remove the service plan from a customer’s account after the customer canceled the service. Such an act is a violation of the defendant’s code of business conduct and a terminable offense. Plaintiff was suspended the following day. On January 29, 2010, plaintiff attended a meeting to address the cramming incident and determine her punishment. As punishment for the cramming violation, her second line supervisor in consultation with the third line supervisor decided to place her on a last chance agreement. That agreement stated that even one incident of failing to maintain satisfactory performance in all components of her job would lead to further disciplinary action up to and including dismissal. Two months later, plaintiff suffered a severe drop in blood sugar while at work and was unable to stabilize her blood sugar even after eating food and drinking juice. As a result, plaintiff experienced lethargy, disorientation, and confusion, and was unable to communicate with anyone. Plaintiff noticed that she was locked out of her computer and called her first line supervisor for assistance. Instead of addressing the computer issues, he informed a manager that he had been monitoring plaintiff’s calls and that she had hung up on at least two customers. The manager responded by doing a dance and saying, “I finally got that bitch.” The first line supervisor told the manager that her behavior was not appropriate whereby the manager responded, “you don’t understand. I’ve been chasing after her long before, since you got here.” A meeting subsequently ensued to discuss the incident whereby the plaintiff said she simply didn’t remember hanging up on people due to her blood sugar not being in control at the time. Nevertheless, the defendant terminated her on March 15, 2010. Plaintiff brought suit and defendant defended on the honest belief rule.

 

II

Court’s Reasoning

In affirming the lower court’s grant of summary judgment for the defendant, the 10th circuit reasoned as follows:

 

  1. When it comes to prtext, the court’s role is not to ask whether the employer’s decision was wise, fair or correct, rather it is to ask whether the employer honestly believed the legitimate nondiscriminatory reason it gave for the conduct and whether it acted in good faith on those beliefs.
  2. Mistaken or poor business judgment is not sufficient to show that an employer’s explanation is unworthy of credibility.
  3. The role of the court is to prevent intentional discriminatory practices and not to act as a super personnel department second-guessing employers’ honestly held, even if erroneous, business judgments.
  4. The critical question is whether a reasonable factfinder could reasonably find the employer’s rationale unworthy of credence.
  5. Plaintiff could not identify any evidence from which a reasonable jury could rationally find that her disability and not the drop calls motivated her termination.
  6. The third line supervisor had a reasonable basis to believe that plaintiff intentionally hung up on the customer considering the complex nature of the hang up process.
  7. Once an employer has put forth a legitimate, nondiscriminatory reason for terminating an employee, the employee may access a variety of evidentiary tools in order to expose the employer’s stated reason is pretext. For example, a plaintiff may raise a triable inference of pretext by showing weaknesses, implausibility, inconsistencies, incoherency, or contradictions in the employer’s stated reason for terminating the employee.
  8. Another option, and a particularly good one, for the plaintiff is to demonstrate that the employer treated employees similarly situated to the plaintiff differently.
  9. So, the honest belief doctrine does not prevent a plaintiff from showing pretext vis-à-vis McDonnell Douglas. Instead, the honest belief doctrine contemplates that an employer would have professed an honest belief in the legitimate nondiscriminatory reason for the adverse action. Even so, that then establishes the context for an employee to test the plausibility or coherency of the reasons supposedly underlying that honest belief with the aim of showing that such a belief actually may not be honestly held. So, it is up to the plaintiff to marshal evidence undercutting the operation of the honest belief rule.
  10. A case out of the Sixth Circuit, Smith v. Chrysler Corporation, turns everything on its head by requiring the employer to establish reasonable reliance on specific facts before it at the time the decision was made. The 10th Circuit has recognized no such obligation on the part of the employer. While the employer certainly can fortify its litigation position by the identification of specific facts it reasonably relied upon in forming its honest belief, McDonnell-Douglas does not require the employer to do that. In a footnote, the court noted that adopting the 10th Circuit rule would not help the plaintiff in any event.
  11. Plaintiff’s failure to accommodate claim fails because instead of requesting a reasonable accommodation to address concerns regarding the possibility of drop calls, she requested retroactive excusal for her misconduct. It simply doesn’t work that way. That is, the ADA as amended does not require an employer to reasonably accommodate an employee’s disability by overlooking past misconduct regardless of whether the misconduct resulted from the employee’s disability.
  12. EEOC Enforcement Guidance states that the requirement to provide reasonable accommodations is always prospective and that an employer does not have to excuse past misconduct even if it is the result of a person’s disability.
  13. Several other Circuits have also said that a requested accommodation excusing past misconduct is unreasonable as a matter of law. So, the ADA as amended does not require employers to accommodate employees with disabilities by overlooking past violations of a workplace rule.
  14. Southwestern Bell Telephone Company code of business conduct is a workplace rule.
  15. Employers are permitted under the ADA as amended to apply the same performance standards to employees with disabilities applicable to employees without disabilities.
  16. An employer has no obligation under the ADA as amended to excuse performance problems occurring prior to an accommodation request.

III

Takeaways:

  1. This is a mixed decision. On the one hand, the honest belief rule most certainly benefits employers over plaintiffs. On the other hand, the 10th Circuit makes it clear that the honest belief rule is not a get out of jail free card for an employer.
  2. For example, evidence of differential treatment and any evidence showing weaknesses, plausibility, inconsistencies, incoherency, or contradictions is fair game for the plaintiff. For a case where the plaintiff did exactly that, see Caldwell v. KHOU-TV.
  3. An employer does not have to overlook an employee’s past misconduct regardless of whether that misconduct resulted from the employee’s disability.
  4. Employers are permitted under the ADA to apply the same performance standard to employees with disabilities applicable to employees without disabilities. While true, don’t forget about reasonable accommodations if you are the employer.
  5. Since an employer is not required to excuse performance problems occurring prior to an accommodation request, it is important for the employee with a disability when needing accommodations to disclose that need to the employer early.
  6. Whenever defending failure to accommodate claims, it always helps if there is a history of reasonably accommodating the plaintiff in the past.
  7. This is a title I case and obviously from the reasoning of the court, mixed motive is very much in play here.
  8. Differential treatment is a hard thing to pull off because of the requirement of finding someone else similar. Nevertheless, see Caldwell above for an example of when the plaintiff pulled this off.
  9. The ruling puts a premium on thorough discovery.

Last week the United States Supreme Court came down with the decision in Fry v. Napoleon Community Schools, the oral argument of which I discussed here. A whole bunch of people have blogged on the case, but I thought I would share my thoughts here. The blog entry is divided into three categories:  court’s reasoning; concurrence reaoning; and takeaways. The reader will probably want to read all of it. It was a unanimous decision with Justice Kagan writing the decision for the court and Justice Alito and Justice Thomas writing a concurring opinion.

I

Court’s Reasoning

  1. Exhaustion is not necessary when the gravamen (legalese for substance), of the plaintiff’s suit is something other than the denial, of the IDEA’s core guarantee of a, “free appropriate public education.”
  2. An eligible child acquires a substantive right to a free appropriate public education once a state accepts IDEA’s financial assistance.
  3. IDEA is not the only federal statute protecting the rights of students with disabilities. Of particular relevance, are title II of the ADA and §504 the Rehabilitation Act.
  4. Under title II of the ADA, public entities are required to make reasonable modifications to its policies, practices, or procedures when necessary to avoid such discrimination. Also, §504 of the Rehabilitation Act has also been interpreted by the courts as requiring reasonable modification to existing practices in order to accommodate persons with disabilities.
  5. To fall within the standard where the IDEA requires exhaustion, a suit must first seek relief for the denial of a free appropriate public education because that is the only relief IDEA makes available.
  6. If an accommodation is needed to fulfill the IDEA free appropriate public education requirement, under IDEA, the hearing officer must order relief. However, if that accommodation is not needed to fulfill the free appropriate public education requirement, the hearing officer under IDEA has no authority to order that relief even though other federal laws, such as title II of the ADA or the Rehabilitation Act might require the accommodation on one of those alternative grounds. The sole role of the IDEA hearing officer is to enforce the child’s right to a free appropriate public education.
  7. Where a suit is brought under a different statute and the remedy sought is not for the denial of a free appropriate public education, exhaustion of the IDEA processes is not required.
  8. A school’s conduct toward a child with a disability might injure that child in ways unrelated to her free appropriate public education, which would beaddressed by statutes other than the IDEA. Such a complaint seeking redress for harms independent of a free appropriate public education denial, does not subject itself to the IDEA exhaustion requirement because the only relief the IDEA makes available is relief for the denial of a free appropriate public education.
  9. The key is the substance of the complaint and not any, “magic words.
  10. IDEA protects only children and adolescents with respect to their schooling. On the other hand, title II of the ADA and §504 the Rehabilitation Act cover people with disabilities of all ages both inside and outside schools.
  11. IDEA guarantees individually tailored educational services, while title II and section 504 promise nondiscriminatory access to public institutions. It is possible that the same conduct could violate all three statutes. Nevertheless, the statutory differences are sufficient so that a complaint brought under title II and §504 might seek relief for discrimination independent of the IDEA free appropriate public education obligation.
  12. In figuring out whether the substance of the complaint involves something other than a free appropriate public education, one can look to several clues: A) could the plaintiff have brought essentially the same claim had the alleged conduct had occurred at a public facility that was not a school, such as a public theater or library?; and B) could an adult at the school, such as an employee or a visitor, have brought essentially the same claim? When the answer to both of these questions is yes, the complaint that does not expressly allege the denial of a free appropriate public education is also unlikely to be truly about that subject. If the answer to these two questions is no, then the complaint probably does concern a free appropriate public education.
  13. In fleshing out ¶ 12, Justice Kagan gives several examples, including: a child in a wheelchair suing the school for discrimination under title II because the building lacks access ramps; a teacher striking a student with a disability; a child with a learning disability suing under title II for failing to provide remedial tutoring in mathematics; and later on in the opinion, the situation of a child suing for the right to use his or her service dog.
  14. Besides the clues in ¶ 12 above, another signal that the substance of the suit is a denial of a free appropriate public education might emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA formal procedure to handle the dispute-thereby, starting to exhaust IDEA’s remedies before switching midstream. The plaintiff’s initial choice to pursue that process may suggest that she is indeed seeking relief for the denial of a free appropriate public education with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy. If there is a switch in processes, it is then up to the court to decide whether that switch reveals that the substance of the complaint is indeed the denial of a free appropriate public education and therefore, necessitates further exhaustion.
  15. The Court of Appeals used the wrong standard by looking to see whether the injuries were free appropriate public education focused in nature. The standard that should have been used is what was the substance of plaintiff’s complaint. Since information is lacking because the wrong standard was utilized, the court remanded the issue back to the Court of Appeals.
  16. The plaintiff’s complaint focused on equal access and nothing in the complaint suggest any implicit focus on the adequacy of the plaintiff’s free appropriate public education.

II

Concurrence Reasoning (Alito and Thomas):

  1. The clues offered by the court only makes sense if one assumes there was no overlap between the relief available under the IDEA and the relief provided by other laws, such as the Constitution, the ADA, and the Rehabilitation Act.
  2. The court admits in its opinion that such overlap exists.
  3. Since the clues only work in the absence of overlap, Justice Alito joined by Justice Thomas would not use them.
  4. The clue of how the proceedings start is ill advised. After all, it is easy to imagine circumstances where the parent starts down the IDEA road and then changes course and files an action under the ADA or the Rehabilitation Act seeking relief that the IDEA cannot provide. It is possible that the parents might be advised by their attorney that the relief they were seeking under the IDEA is not available under that law but is available under another. Or, the parents might change their minds about the relief that they want, give up on the relief that the IDEA can provide, and turn to another statute.
  5. Although the court provides these clues for the purpose of assisting the lower courts, Justice Alito joined by Justice Thomas was afraid that the clues may have the opposite effect by confusing and leading courts astray.

III

Takeaways:

  1. My initial reaction is that I agree with Justice Alito and Justice Thomas regarding the clues section of the opinion. The laws certainly do overlap to quite a degree, especially when one considers that is that the rare IEP that does not have accommodations in it. Also, I also find it easy to imagine circumstances where parents, who very well may not be assisted by a lawyer or by an advocate at the initial stages, inadvertently start down the IDEA process before realizing that the IDEA process was not necessary in light of the facts being alleged. That said, to be fair to Justice Kagan, she did say that the court had an independent obligation to evaluate whether the switch revealed a complaint that at its core was about a free appropriate public education rather than something else. In essence, what Justice Kagan has done with the switch clue is to create a rebuttable presumption that the switch involved a complaint whose substance is about a free appropriate public education, which can be rebutted by a plaintiff showing to the contrary.
  2. The decision is a big win for students with disabilities, but it is going to make the life of lawyers representing students with disabilities much more complicated. Now, the incentives are going to be for the school district to put everything and anything in the IEP so that it can rely on the IDEA processes needing to be exhausted first, especially with Justice Kagan’s rebuttable presumption thrown in. On the other hand, if you are representing a student with a disability, you very well might want to consider having two plans for the student. One plan focusing on the free appropriate public education through the use of the IEP. Then, having a separate §504 plan focusing on all of the nonrelated reasonable modifications the student needs. That way, if something goes amiss with the §504 plan, you do not have to worry about the IDEA process. From a plaintiff’s side this approach makes a great deal of sense. However, there may be some resistance as school districts are not used to having both IEP’s and §504 plans simultaneously. Creating two separate plans simultaneously may be quite a complex task since, as mentioned above, it is the rare IEP that is focused on services only rather than a combination of services and accommodations. This also raises the question of whether the student with a disability can get by entirely with the § 504 plan rather than an IEP. That indeed may be possible in some cases but not in others.
  3. From reading the tone of this decision and the oral argument in Endrew, which was discussed here, it is pretty easy to predict that the court is going to say in Endrew that schools will have to do something more than the minimum to meet their obligation under IDEA.
  4. The rebuttable presumption also means that if an attorney does decide to go the route of not exhausting the IDEA process, it would be a good idea for the pleadings to clearly set forth what concerns would fall under the IDEA process and why the concerns of the claim being alleged are independent of that process. That task is made even easier if two simultaneous plans (IEP and §504), exist. This task is made more complicated by the fact that IDEA and title II of the ADA/§504 have different philosophies even though the term “free appropriate public education,” is used by both IDEA and §504. IDEA is all about setting goals and seeing if progress is met towards those goals. Whereas, §504 and the ADA are about figuring out the reasonable modifications that enable the student with a disability to get to the same starting line as others.
  5. I agree with Justice Alito and Justice Thomas that these clues are going to be locked in and that subsequent litigation is going to involve the application of the clues. I also agree that the opinion for the court may have underestimated the extent of the overlap between the laws and the complexity of disentangling that overlap.
  6. It isn’t unusual for school systems to issue the same packet of rights to parents for students with an IEP and for students with a §504 plan. While that may be a common practice, which was never supported by the law, it certainly isn’t supported by the law now. This case makes it quite clear that the rights under §504 and the ADA are entirely different than the rights under IDEA. It will be interesting to see how school districts inform parents, if at all, of the separate rights available to them when it comes to IDEA and §504/ADA.
  7. When a special education lawyer receives the case and it is possible that the accommodation/modification involved are §504/ADA focused rather than IDEA focused, the lawyer as a result of justice Kagan’s rebuttable presumption, is going to have to make an election at the top as to whether to go through the IDEA process or go to the courts under §504/ADA.

Obviously, I missed a blog entry last week. I have an explanation. My daughter was on break, my wife took a couple of days off towards the end of the week, and client matters intervened. Also, last week, I added an article to my in the media section, where I can be found discussing in the Washington Post the case of an armless man fired by his employer as a result of the way he had to transport himself to work. Jon Hyman has a blog entry on that case as well. Fortunately, I still have client matters, but my daughter is back to school and everything else is back to normal. So, back to the blog entry for the week. The case, Sheng v. MTBank Corporation, came to me courtesy of one of the blogs, Wait a Second, that I subscribe to and can be found in my current blog roll. The case explores two issues. First, are settlement offers admissible? Second, does the interactive process include what is contained in an offer to settle claims? As we will see, the answer to both questions is no. As is usual, the blog entry is divided into categories, and they are: facts; issues; court’s reasoning; and takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts:

In January 2010, plaintiff began her employment with the bank in Buffalo, New York as a lead on its quality assurance test team in the bank’s central technology department. That team executes system testing of computer programs for bank applications. In March 2011, she decided to resign her position and relocate to Los Angeles on account of her husband taking a job there. However, her supervisor suggested that she continue to work at the bank remotely through the bank’s alternative work arrangement policy. Under that policy, when an employee fails to resume the traditional work schedule or location upon revocation of the alternative work arrangement, it is considered a voluntary resignation of employment. She accepted the offer and began working remotely from California. In the spring of 2012, the bank began exploring the reorganization of her department, and in May 2012, announced that reorganization to employees. At the meeting announcing the reorganization, the bank made clear that alternative work arrangements would be reviewed. The bank that same day called the plaintiff who confirmed she understood her status could be affected by the reorganization. The next day plaintiff notified her supervisor she was pregnant and expressed concern about the alternative work arrangement being revoked. The bank responded that under the new organizational system, team leads would have to be physically present in Buffalo at least two days per week in order to communicate and work directly with the individuals implementing the particular project. On June 27 of 2012, her supervisor notified the plaintiff that her alternative work arrangement status would be altered and she would need to begin traveling to Buffalo. The following day the plaintiff emailed her supervisor and the bank’s human resources department requesting a meeting to discuss the possibility of delaying the start of a commute to Buffalo until after she gave birth. That request was denied. On July 19, the plaintiff submitted a letter from her obstetrician to her supervisor and to the bank’s human resource department stating that for health reasons she should not engage in air travel for the duration of her pregnancy. After receiving the letter, the bank’s management and its human resources department determined that there was not enough work available besides the particular project her team was focused on to keep her occupied. For the next eight weeks, little communication between the plaintiff and the bank occurred. Finally, on September 11, of 2012, the bank notified the plaintiff that she should either permanently relocate to Buffalo within 30 days or apply for and take early short-term disability leave. Failure to do either of these options would result in termination and being given 11 weeks of severance pay. On September 14, plaintiff rejected those offers. On September 20, an attorney she hired wrote a letter to the bank’s general counsel stating that the plaintiff had been effectively terminated because of her pregnancy. Settlement talks then ensued. At the start of that settlement talk, her attorney made clear to the bank’s general counsel that Rule 408 of the Federal Rules of Evidence, which provides that offers a settlement are inadmissible in later proceedings under certain conditions, would apply to the conversation. Plaintiff’s attorney made a settlement offer demanding $200,000. The bank’s general counsel responded that that was not going to happen, but did suggest that the plaintiff be reinstated and that should be allowed to work remotely from Los Angeles for the remainder of her pregnancy. No explicit statement was made that the reinstatement offer was conditioned upon the execution of a release of claims for monetary damages. Plaintiff then filed a charge with the EEOC and eventually proceeded to the courthouse. At trial, the bank was successful in getting the offer of settlement, which contained the ability to work remotely, admitted. The court also declined to instruct the jury that the ADA imposes an affirmative duty on employers to engage in an interactive process with all employees requesting accommodations. When the jury came back with a verdict for the defense, plaintiff appealed.

II

Issues:

  1. Are settlement offers admissible?
  2. Does an offer of settlement count towards the interactive process?

III

Court’s Reasoning

In holding that settlement offers are not admissible and that an offer of settlement does not count towards the interactive process, the court reasoned as follows:

  1. Federal Rule of Evidence 408(a) prohibits the admission of evidence to prove or disprove the validity or amount of a disputed claim offering valuable consideration in attempting to compromise that claim.
  2. Where a party is represented by counsel, threatens litigation, and initiates the first administrative steps in that litigation, any offer made between attorneys will be presumed to be an offer within the scope of Federal Rule of Evidence 408.
  3. Where a lawyer informed counsel for a potential plaintiff that the potential defendant agrees to all relief believed to be demanded, it is assumed that some sort of release, at the very least, is expected in return. This expectation, which litigators assume as a matter of course universally, absent express reservation to the contrary, makes the offer conditional and subject to exclusion under Federal Rules of Evidence 408.
  4. In this situation, the assumption that such a release would have been forthcoming isn’t even necessary to think about because the bank’s general counsel admitted to the EEOC that the offer was conditioned on the plaintiff forgoing litigation when he said that the offer he made was not unlike any other offer of compromise that would be offered to stave off the vagaries of litigation, and that the bank had decided to capitulate to plaintiff’s demand solely because it recognized that it would be better to do that than to incur time and expense fighting the issue.
  5. Admitting the offer of settlement was not harmless error because the jury could have well asked himself the question what are they doing there if the bank had offered her what she wanted in the first place. Accordingly, the reinstatement offer may have substantially affected the jury’s verdict.
  6. While there is no independent claim for failure to engage in the interactive process, district courts may admit an employer’s failure to engage in an interactive process as evidence of discrimination under the ADA. The ADA’s reference to a qualified individual and the EEOC’s final regulations make it clear that the employer’s failure to engage in a good faith interactive process can be introduced as evidence tending to show disability discrimination were the employer has refused to make a reasonable accommodation.
  7. An employer’s failure to engage in a sufficient interactive process does not form the basis of a claim under the ADA and allow the plaintiff to survive summary judgment unless the plaintiff also establishes that he or she was a qualified person with a disability (in this case, capable of performing the essential functions of the job with or without reasonable accommodations).
  8. An offer of accommodation conditioned upon the dropping of monetary claims does not fulfill the requirements of the ADA as to an interactive process. The ADA clearly imposes a duty on the employer to provide an accommodation in job requirements, if feasible. Such a discussion relates to the feasibility of accommodating the needs of both the employee and the employer. Conditioning proposed accommodations on the dropping of claims does not satisfy that obligation.

IV

Takeaways

  1. While the interactive process in the Second Circuit is not an independent violation of the ADA, failure to engage in the interactive process is indicative of disability discrimination. Therefore, what you have is a matter of form. That is, alleging interactive process deficiencies as a violation of the ADA doesn’t work, in the Second Circuit anyway, but alleging that disability discrimination occurred because of interactive process deficiencies does work.
  2. Settlement offers are presumptively inadmissible.
  3. Settlement offers are not part of the interactive process. So, if an employer has failed to engage in the interactive process sufficiently, what happens in any settlement negotiations will not be counted towards the interactive process.
  4. The Second Circuit’s focus on feasibility with respect to the accommodation process is a bit unfortunate because it suggests a lower standard than what the law provides. My guess is that use of feasibility by the Second Circuit wasn’t intended that way. After all, the ADA requires accommodations for a qualified person with a disability unless an undue hardship exists (logistical or financial).
  5. By this opinion, the Second Circuit joins the majority of Circuits in holding that violations of the interactive process do not constitute an independent cause of action for violating the ADA.

For those in New England, congratulations on a phenomenal come back. Greatest comeback in Super Bowl history. As you can imagine, people in Atlanta are a bit besides themselves. I am relatively new to the Atlanta area, going on five years now, and so perhaps it didn’t hit me quite so hard. Also, growing up in near north suburban Chicago a Cubs fan and seeing what happened to them over the years, before last year anyway, I can say that I have kind of been there before. I was actually in Jack Murphy Stadium when the ground ball went through Leon Durham’s legs. At any rate, Atlanta has a great coach and a young team, and we will be back.

Turning to the blog entry of the day, as everyone knows Judge Gorsuch of the 10th Circuit was nominated by Donald Trump to the Supreme Court. Lots of my fellow bloggers have talked about his record and what it might mean for their particular discipline. However, I have not seen anybody focus on the record with respect to the rights of persons with disabilities, and so I thought I would give it a shot. The blog entry is divided into two categories: from his opinions, and takeaways. It is a short blog entry, and so I imagine you will want to read all of it.

I

From His Opinions

  1. While he is not a legislative history guy, he is not adverse to trying to figure out what the idea behind the law is (what we call policy). Also, he would not have supported a broad exhaustion requirement under IDEA, which dispute we discussed in this blog entry. See, Muskrat v. Deer Creek Public Schools.
  2. Title II of the ADA does not apply to employment. Elwell v. Oklahoma ex rel. Board of Regents of the University of Oklahoma.
  3. Despises Chevron deference and would like Auer even less. Gutierrez-Brizuela v. Lynch. For those unaware, Chevron forces the courts in most circumstances to grant deference to agency regulations that go through the proper rulemaking process, while Auer does the same for agency interpretations of their own regulations.
  4. Inflexible leave policies are okay and may, in his view, even benefit persons with disabilities. Hwang v. Kansas State University. This case involved an inflexible six months of sick leave policy before termination. In this case, he also seems to value the interactive process.
  5. A reasonable accommodation request can be per se unreasonable. Id.
  6. Whether a reasonable accommodation exist is an independent question from whether an undue hardship exist. Id.
  7. Would likely not decide in favor of mandatory reassignment to a vacant position being something demanded by the ADA. Hwang; Iverson v. City of Shawnee.
  8. He is not in favor of criminalizing student behavior when not supported by common sense. AM v. Holmes.
  9. An employer violates his interactive process obligations where the plaintiff can show the employer’s failure to engage in the interactive process results in a failure to identify an appropriate accommodation for the qualified person with a disability. Lowe v. Independent School District No. 1.
  10. Proving an interactive process violation requires a plaintiff showing that the interactive process would have likely produced a reasonable accommodation. Iverson.
  11. Plaintiff will lose on summary judgment a plaintiff failed to show that a reasonable accommodation was possible and that the interactive process would have led to an accommodation. Id.
  12. Employee has the burden to identify vacant position existing at time of reassignment requests. Id.

II

Takeaways:

  1. Judge Gorsuch from these opinions seem to be a four corners guy. That is, he narrowly focuses on the dispute and on the wording involved in the applicable law and is not quick to look for ambiguity. Not a fan of legislative history, but it isn’t adverse to using common sense and trying to figure out what the law is attempting to accomplish.
  2. Could very well take a narrow view of an employer’s obligations with respect to reassigning an employee no longer qualified for their current job to a vacant position they are qualified for. See this blog entry for example.
  3. Has a very strict view of the separation of powers and will aggressively protect that view. That is, all three (emphasis mine), branches of government have very strict constitutional parameters they are supposed operate on and they should not go further.
  4. Giving deference to agency interpretations of their own regulations is likely dead once he joins the court. See this blog entry for example.
  5. Unclear as to what premium he puts on the interactive process. The cases discussed here send mixed signals on that.
  6. An interesting view is that reasonable accommodation exists independent of undue hardship. See this blog entry for example.

Two years ago, I discussed in this blog entry the issue of whether ADA claims survive. In that case, the court looked to local law to decide whether the ADA claim survived. Today’s case, Guenther v. Griffin C  Inc., goes one further by holding that it isn’t local law that decides whether claims for compensatory damages under the ADA survive, rather it is a uniform federal rule that applies. Before proceeding further, keep in mind that my prior blog entry on survivability was a title III case, while this blog entry concerns a title I case. As is typical, my blog entry is divided into categories: facts; issue, court’s reasoning, and takeaways. The reader is free to read any or all of the categories.

I

Facts:

The facts are pretty straightforward. Plaintiff oversaw construction projects across Arkansas and Texas for four years for Griffin Construction. In the spring of 2012, he was diagnosed with prostate cancer. He requested and received roughly 3 weeks of leave from work to receive treatment and returned to work when it appeared the treatment was successful. In 2013, plaintiff learned that the cancer had spread throughout his body. He notified his employer that he would need to take another three weeks of leave to undergo radiation therapy. Griffin Construction then fired him and told him he could reapply for any openings in the future if he wished. Despite promises they made to the contrary, Griffin Construction also immediately canceled his insurance policies. He filed a charge of discrimination with the EEOC. From filing to the time the EEOC reached its conclusion that reasonable cause existed, 20 months transpired, and plaintiff had died 12 months previously. Accordingly, the special administrator of his estate filed suit under title I of the ADA and the defendant responded by claiming that the plaintiff’s claim did not survive his death. The District Court bought that argument after applying Arkansas law, and the plaintiff appealed.

II

Issue

Regardless of State Law, Does a Claim for Compensatory Damages under the ADA Survive a Plaintiff’s Death?

III

Court’s Reasoning

In Reversing the District Court and Holding that Regardless of State Law, a Claim for Compensatory Damages under the ADA Automatically Survives a Plaintiff’s Death, the Court Reasoned as Follows:

  1. Whether a federal claim survives is a question of federal law.
  2. Congress did not supply any answer to how courts should treat survivability of ADA claims and there is no general survival statute for federal question cases.
  3. Survival questions are governed by federal common law when there is no expression of contrary intent from Congress. However, the devil is in the details. That is, sometimes it is best to incorporate state law, while at other times, a uniform rule is best.
  4. State law should not be incorporated where doing so frustrates specific objectives of the federal program. That is, federal courts have to be vigilant in order to ensure that application of state law poses no significant threat to any identifiable federal policy or interest.
  5. 1983 actions and the approach they take to survivability doesn’t apply to ADA because in §1983 matters Congress clearly expressed a preference for state law. Further, the Supreme Court case holding as such clearly stated that their holding would have no independent adverse effect on the policies underlying §1983, which is not the case with the ADA if the Eighth Circuit held similarly.
  6. Abatement of compensatory ADA claims pose a special threat to enforcement because the very nature of the ADA makes it more likely than would be typically the case for an aggrieved party to die before the case is completed given the health issues which bring a person with a disability under the statute’s protection. That is, ADA claims specifically involve plaintiff with disabilities alleging they were discriminated against because of their disability. The ADA was specifically passed to eradicate discrimination against persons with disabilities, some of whom may be targeted precisely because of his or her poor health. Following state law to allow claims to abate when the aggrieved party dies gets in the way of this broad remedial purpose. In a footnote, the court notes that this is not a fanciful situation. With respect to filing a title I claim, a plaintiff has to first exhaust the administrative process. In this case, the exhaustion took two years. Further, it is quite conceivable that defendants may prolong litigation with the hope that the claim would abate. This type of thinking is contrary to the overall purpose of the ADA.
  7. State law is not suited to fill gaps in federal law where the scheme in question evidences a distinct need for nationwide legal standards.
  8. The ADA embodied Congress’s attempt to create a comprehensive national mandate with the federal government having a central role in enforcing consistent standards. For example, in Clackamas, which we discussed in this blog entry, the United States Supreme Court created a uniform definition for an employee under the ADA.
  9. In many states, such as Iowa for example, the plaintiff’s claim would have survived.
  10. Both Congress’s call for a national mandate with consistent standards and the desire to affect evenhanded application of the ADA’s antidiscrimination provisions weigh in favor of a uniform federal rule.
  11. There is a critical difference between a statute of limitations and a survivorship statute. With respect to statute of limitations, they do not entirely bar a diligent plaintiff. On the other hand, a survivorship statute is an absolute barrier to a plaintiff and to his or her estate who does everything he or she can to assert his or her rights. Further, in the statute of limitations situation, there is an element of control by the plaintiff, but that is not the case with respect to survivorship matters.
  12. Federal courts have historically applied a well-established uniform rule to address survivorship.
  13. It may be inappropriate to conclude that Congress would choose to adopt state rules at odds with the purpose or operation of federal law.
  14. With respect to the ADA, it is federal law and not state law that is the dominant source of disability antidiscrimination law. To have a uniform rule would not require fashioning an entire body of law out of nothing. Further, allowing claims to survive would not upset the employer-employee balance struck by state laws because federal law and many state laws already prohibit discrimination.
  15. The court takes no view on whether a claim for punitive damages survives, especially since it is traditional federal common law that penal claims abate on death.
  16. The court also took no position whether a claim under any other federal scheme warranty uniform rule of survivorship.

IV

Takeaways:

  1. Courts continue to use “because of,” language and not “on the basis of,” language when it comes to referring to causation in title I of the ADA matters. As we have discussed numerous times previously, such as here, the two standards are not the same.
  2. Despite the difference in standard for getting compensatory damages under title II of the ADA, this court’s reasoning could have equal application to survival of compensatory damages claims arising under title II of the ADA.
  3. It is a bit more complicated with respect to title III claims, since the only relief a person can get is injunctive relief and attorneys fees. Even so, if you are a plaintiff and the survival statute of a state would abate a title III claim, it would still be worth using this case to see if that statute could not be circumvented.
  4. If on the defense side on a title II or title III matter in this case comes up, it would be worthwhile to argue that neither of those titles contain an exhaustion requirement. With respect to title II it is even possible, as discussed here, that a plaintiff may not even be able to go DOJ for redress in the first place.

Since I am in the Atlanta area, Go Falcons!