Today‘s blog entry comes from the Sixth Circuit and it reminds us of the following: 1) job descriptions must be kept current; 2) essential functions of the job must reflect the reality of how the job is performed; 3) whether a person is a qualified person with a disability under the ADA depends upon whether they can do the essential functions of the job with or without reasonable accommodations; and 4) if it isn’t broken, don’t fix it. The case of the day is Camp v. Bi-Lo, LLC, an unpublished decision from the Sixth Circuit on October 21, 2016.  As is usual, the blog entry is divided into categories and they are: facts; court’s reasoning as to whether lifting 35 pounds was an essential function of the job; court’s reasoning as to whether the plaintiff could perform the essential function of the job with reasonable accommodations even assuming lifting 35 pounds was an essential function of the job; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff suffered from scoliosis since he was a teenager and had worked with a bad back since that time. He worked for 38 years for the defendant and its predecessor as a stock clerk. In March 2012, he was employed on the overnight third shift in one of the stores in Chattanooga, Tennessee. He was one of three people, along with Jimmy Bishop and Kent Kountz, who worked as a team stocking the grocery with product each night. Bishop was the head stock clerk and the plaintiff’s immediate supervisor, while Kountz was a stock clerk along with the plaintiff. All three men worked to load stock from pallets and put it on store shelves. Somewhere around March 2012, the store director arrived at the store at the end of the third shift and found that the three third shift stock clerks had not finished shelving all the products. When he asked why, Bishop told him that the plaintiff had a bad back and they had to help with heavy stuff to get it done. The store director testified that Bishop told him that it was hard for them to get done with the plaintiff on restrictions. The store director was not aware that the plaintiff suffered from a bad back prior to this occasion nor was he aware of any other time that the third shift crew failed to finish on time. About two weeks later, the plaintiff met with a human resources specialists of the company who asked him if he could perform his duties to which he replied that he could still do everything. He also said that he knew what he could lift and what he could not and that he could do all the other things except lift the real super heavy items. The HR specialist gave him a store clerk job description and a physical capability testing sheet to be completed by a physician. That job description, which was created more than 30 years after he began his employment, identified lifting and that a person had to lift 20 pounds constantly and 20-60 pounds frequently. A doctor concluded that the plaintiff was capable of lifting 20 pounds frequently and less than 10 pounds constantly with a maximum safe lifting weight of 35 pounds. As a result, the plaintiff was instructed to take sick leave and vacation days followed by short-term disability in order to reach his 62nd birthday, which would enable him to start drawing Social Security and getting a retirement check. When the plaintiff’s short-term disability ended, plaintiff requested to return to work. However, the human resources specialist told him he could not return unless he had been cleared by a doctor to lift 60 pounds. A back-and-forth ensued, including the plaintiff asking for the same arrangement that had worked well before. The back-and-forth was unsuccessful and he was terminated from his position as a stock clerk. He then brought suit alleging violations of the ADA. The District Court granted summary judgment for the defendant. Plaintiff appealed to the Sixth Circuit and the Sixth Circuit, for the reasons below, vacated and remanded the lower court’s decision. Plaintiff also brought an ADEA claim, which is not the subject of this blog entry, and the Sixth Circuit vacated and remanded the District Court’s summary judgment on that point as well.

II

Court’s Reasoning with Respect to Whether Lifting 35 Pounds Is an Essential Function of the Job?

  1. It is certainly true that the ADA says that consideration shall be given to the employer’s judgment as to what functions of the job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, that description shall be considered evidence of the essential functions of the job. However, in this case, the job description was written some 30 years after he had been hired for the position.
  2. The EEOC in its implementing regulations at 29 C.F.R. §1630.2(n) lists several non-exhaustive and non-dispositive factors to consider in trying to figure out whether a particular function of the job is essential, including: the employer’s judgment; the written job description; the amount of time spent performing the function; the consequences of not requiring performance of the function; the work experience of past incumbents of the position; and the current work experience of incumbents in similar jobs.
  3. Whether a function of the job is essential is a question of fact not typically suitable for resolution on summary judgment.
  4. The human resources specialist stated that he had never observed the plaintiff’s work and had not talked with the plaintiff or his coworkers about the plaintiff’s job performance.
  5. No evidence existed in the record as to what the job description was for a stock clerk when the plaintiff was first hired in 1974.
  6. The plaintiff and his two coworkers on the third shift testified that they had never seen a job description for stock clerk before this litigation.
  7. Plaintiff’s immediate supervisor testified that heavy lifting was not an essential function of a job and that the plaintiff did his job fine. Further, the Sixth Circuit has held previously that a supervisor’s testimony may rebut the written job description concerning what constitutes an essential function of the job.
  8. The defendant did not submit any evidence outside of the job description demonstrating that heavy lifting is a significant percentage of the job requirements or that plaintiff’s inability to lift more than 35 pounds was an actual burden on the defendant. In fact, according to plaintiff’s supervisor, heavy lifting was only a very small part of the work done by third shift stock crew. Other coworkers testified that the stock the plaintiff could not lift was only a very small part of the total stock.
  9. The plaintiff and his coworkers testified that the plaintiff could be working on putting items on the shelves while the other two men lifted the heavier item so as to result in no loss in efficiency due to plaintiff’s disability.
  10. The plaintiff’s immediate supervisor testified that allowing the plaintiff to continue as a stock clerk without the ability to lift more than 35 pounds would have minimal effect on store operations.
  11. By working together, the three-man team in all but the one incident triggering the termination process, had been able to shelve all the product during the designated shift. No additional stock clerks were ever requested or needed to work the third shift. Therefore, any consequences resulting from the plaintiff’s disability were de minimis.
  12. No public safety issue was involved, which would necessitate a stricter reading of what might be an essential function of the job. Rather, this is a case where three men working the night shift together in a grocery store figured out a way to help each other out.
  13. Since the factors laid out by the EEOC as to what constitutes the essential function of the job are not exclusive and are not dispositive, another factor to consider is that the plaintiff performed these job duties for years with the help of his coworkers. So, plaintiff’s actual on-the-job experience as well as that of his coworkers provides evidence to rebut the defendant’s contention that heavy lifting is in fact an essential function of the stock clerk job.
  14. Informal accommodations should be considered in a positive light. After all, the implementing regulations at 29 C.F.R. §1630.2(o)(3) talk about an informal, interactive process between the employer and the employee in order to identify limitations arising from a disability and the eventual reasonable accommodations that can overcome those limitations.

III

Court’s Reasoning As to Even Assuming Lifting 35 Pounds Was an Essential Function of the Job, Could the Plaintiff Perform That Function with or without Reasonable Accommodations?

  1. Plaintiff was generally meeting all job expectations.
  2. Defendant did not cite any other examples where plaintiff’s inability to lift more than 35 pounds caused or contributed to a delay in restocking the store’s shelves.
  3. No indication in the record showing that plaintiff was failing to show up to work, or that his colleagues were covering for his absences, or that the third shift workers regularly failed to complete the task by the end of the shift.
  4. Plaintiff had been doing the job for a number of years without lifting the heaviest items and defendant did not present evidence to show that the informal accommodation had been a problem. Enough time had passed for any negative impact to be felt by the defendant to present additional evidence outside of the one incident triggering the termination.
  5. Defendant presented no evidence that accommodating plaintiff’s disability resulted in an undue hardship to coworkers. In fact, quite the opposite was true as the coworkers testified that it would no problem to assign the work among themselves in a way that allow them to get it all done. More specifically, his supervisor noted that the plaintiff’s inability to do heavy lifting did not create hardship on the coworkers because there was always work that the plaintiff could do that needed to be done while someone else was lifting the heaviest things. So, plaintiff’s disability had been informally and successfully accommodated by the three-man team without negatively impacting store operations for some time. Accordingly, a reasonable jury could find that the informal accommodation made by the three employees working the third shift was a reasonable response to one requirement of the stock clerk position. Therefore, even assuming lifting 35 pounds was an essential function of the job, plenty of evidence existed that the plaintiff was qualified for the stock clerk position with accommodations and that reasonable accommodation of the disability was possible without undue hardship to coworkers or disruption of the business operations.

IV

Takeaways

  1. If it ain’t broke, don’t fix it. Here, you had an informal reasonable accommodation that had worked successfully for years. You also had a valuable employee who was well-liked by his coworkers. So much so, that the coworkers, including his immediate supervisor, provided valuable testimony benefiting him and not the company. Why mess it up on a technicality, especially where the job description doesn’t reflect the reality of what is actually happening with the job.
  2. Speaking of which, make sure your job descriptions are current and reflect the reality of what is happening on the job. In that regards, it is helpful if people actually doing the job get involved in the job description writing and approval process.
  3. Informal accommodations are something that should be encouraged.
  4. If a person cannot do the essential functions of the job, that is not the end of the matter. That is, you also have to ask yourself the question of whether the employee can do the essential functions of the job with or without reasonable accommodations.
  5. If a position deals with public safety, it is possible that a court might use a stricter standard than the one here to determine whether a job’s function was essential.
  6. This is one of many cases saying that whether a job function is essential is a question of fact and one generally not suitable for resolution on a motion for summary judgment.
  7. The EEOC factors detailing how to go about figuring out what is an essential function of the job is a list that is neither exclusive nor dispositive.
  8. One wonders why the human resources specialist never talked to the plaintiff or to his co-workers about the plaintiff’s job performance. One also wonders why the defendant’s attorney would not have demanded such information from the HR specialist before issuing the termination letter (I am not saying that such a request of human resources was not made, but it doesn’t seem to be the case).
  9. This case is a lesson to the District Courts that they should not be so quick to grant a summary judgment motion on behalf of the defendant.
  10. The decision is unpublished, but nevertheless, it is a great case for understanding what it means to be a qualified person with a disability under the ADA and how job descriptions are used in that analysis.
  11. If an employee is on leave and desires to return to work, make sure you know the essential functions of the job as the job currently exists. Also, make sure when figuring out whether the person can do that job that you ask whether the essential functions of that job can be done with or without reasonable accommodations. Finally, don’t forget about the interactive process.

I normally do not blog more than once a week as readers know. However, there have been some developments at the United States Supreme Court, and I wanted to take this opportunity to expand on that. Before moving on, CUBS WIN THE WORLD SERIES!!!!!!!!!! Game seven was an epic game that ended after the trophy ceremony at 1:30 AM Eastern time. I was certainly groggy the next day:-) I do want to congratulate an excellent Cleveland team for a great season and putting up a terrific fight. It quite literally wasn’t over until it was over. ESPN had an excellent, quite long actually, article on how the Cubs victory set off a chain of generational soul-searching across Chicago. If Theo Epstein gets bored of running baseball teams, no doubt he could win mayor of Chicago or be a Senator from Illinois if he wanted to. With respect to his legal background, he actually has a law degree from my J.D. alma mater, University of San Diego. Certainly, look for Theo to go into the Hall of Fame someday for having broken two curses. At any rate, back to business.

 

In this blog entry, I mentioned that the United States Supreme Court had three disability rights cases before it this term. Now, let us say that they have one and ½ . In the Texas drivers license case, the Supreme Court vacated the lower court judgment with instruction to dismiss it as moot. It also heard oral argument on October 31, 2016, in Fry v. Napoleon Community Schools. While I did not listen to the argument, I did read the transcript of the argument, and I thought the following would be worth noting.

 

  1. Reading between the lines, it seems that Chief Justice Roberts may be concerned, in my opinion justifiably, that IDEA by itself simply does not afford the parents enough leverage if things start to go south with implementation of an IEP. In many places in the oral argument, he seemed concerned about whether the parents had sufficient leverage under the current system, especially if a broad reading of the exhaustion requirement was upheld. He also made the statement that 105 days is a big part of the school year when it comes to how long IDEA takes to run its course, which is a valid concern considering a typical school year is only 180 days of instruction.
  2. Justice Kagan and Justice Ginsburg clearly seem to be in the corner of Fry.
  3. Justice Alito and Justice Thomas were completely silent (Justice Thomas usually is, but not necessarily Justice Alito), during the oral argument.
  4. Justice Sotomayor said that allowing a dual track with respect to IDEA in every case would bother several of the Justices.
  5. Three Justices (Breyer, Sotomayor, and Kennedy), were receptive to a standard that IDEA exhaustion would depend upon reviewing the complaint to ascertain as Breyer put it, “its heart and soul.”
  6. Counsel for the school district took things way too far when he said that exhaustion should be required for students with disabilities, 700,000, who did not have an IEP but where IDEA my cover the situation if they did. Fortunately, there does not seem to be support on the Supreme Court for that proposition nor does it seem legally correct to argue that someone should be subject to a law they had not consented to be subject to where consent is necessary in the first place. That is, the special education process cannot take place without parent consent.
  7. I could also see Fry winning on the narrow grounds that exhausting administrative remedies was futile in this case. However, a decision based on that grounds would not offer much clarity for future cases.
  8. If I am reading Chief Justice Roberts’ thoughts correctly, admittedly a dangerous game with respect to trying to ascertain that based on oral argument, he may be of the opinion with respect to a case to be heard later in the term, that a school to meet its IDEA obligations has to go beyond mere minimums.
  9. At its heart, this case is a procedural question, and so the ultimate resolution may not break down on strict ideological lines. From the oral argument, I will be surprised if Fry does not win, but the question will be on just what grounds will she prevail.

 

Before getting started on the blog entry of the day, I would be remiss if I didn’t note that the Cubs are back in it! Winning two games against a very tough Cleveland team in Cleveland with a likely Hall of Fame manager is going to be very tough. Go Cubs!

Last week, a person posted a query about just how do you deal with service animals/emotional support animals in the workplace. All the hullabaloo about service animals and the implementing regulations, deal with title II and title III of the ADA, and I have written about this on several times previously. For example, here. Title I of the ADA deals with employment and the implementing regulations come from the EEOC and not the DOJ. When the person wrote me the query, they mentioned that they could not find a lot out there, save for this publication from the Job Accommodation Network talking about service animals in the workplace from the Job Accommodation Network’s accommodation and compliance series. When I did my own research, I found two cases discussing service animals in the workplace, but that is about it. The two cases I found are: McDonald v. Department of Environmental Quality, 2009 MT 209 (2009); and Branson v. West, 1999 U.S. Dist. LEXIS 7343 (N.D. Ill. May 11, 1999).

The Job Accommodation Network publication is quite good, and I thought I would track it generally. As usual, the blog entry is divided into categories and they are: must an employer automatically allow employees with disabilities to bring their service animal to work?; what kind of documentation can an employer ask for when it comes to a service animal?; Who is responsible for taking care of the service animal at work?; Do employers have to create a relief area for service animals for an employee with a disability who uses a service animal in the workplace?; Do employers have to allow employees without disabilities to train a service animal in the workplace?; What does title II or title III of the ADA have to do with service dogs in employment?; and what about emotional support animals in the workplace? The reader is free to concentrate on any or all of the categories.

I

Must an Employer Automatically Allow Employees with Disabilities to Bring Their Service Animal to Work?

If it is a service animal (a dog, and possibly a miniature horse, engaged in recognition and response) and you are in Montana, the answer is absolutely yes. Keep in mind, the Montana decision borrows heavily from interpretation of the ADA and the Rehabilitation Act. So, the reasoning of the Montana Supreme Court would apply to any service dog in the employment situation under the ADA or the Rehabilitation Act. Plaintiffs would certainly want to cite this case and its reasoning as persuasive authority for why service dogs should be freely allowed at the worksite. The Montana Supreme Court’s argument for having to allow service dogs in the workplace automatically are as follows:

  1. An employee with a disability has the right to perform her job duties in reasonable comfort and enjoy the same freedom of movement as employees without disabilities.
  2. A reasonable accommodation requirement is best understood as a means by which barriers to the equal employment opportunity of an individual with a disability are removed or alleviated.
  3. If a reasonable accommodation is available to an employer that would plausibly enable the employee with a disability to adequately perform his or her job, the employer is liable for failing to attempt that accommodation.
  4. The duty to accommodate also includes making modifications or adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities.
  5. The duty to accommodate also includes providing an opportunity for the employee with a disability to attain the same level of performance as the average similarly situated employee without a disability.
  6. Fundamentally, an employer is obligated not to interfere either by action or inaction with an employee with a disability efforts to pursue a normal life.
  7. The Rehabilitation Act calls for reasonable accommodations that permit individuals with with disabilities to lead normal lives, not merely accommodations facilitating the performance of specific employment tasks.
  8. An employee is entitled to a reasonable accommodation if that accommodation could assist the employee in performing her job duties or alleviate barriers to her ability to enjoy equal benefits, privileges, and opportunities of employment.
  9. An employee is not required to endure an unaccommodated condition to the absolute breaking point before the employee is deemed to be in need of an accommodation.
  10. A service animal is nothing more than an assistive device for an employee with a disability and therefore, needs to be treated the same as other assistive devices would be. When the accommodation is granted to an employee using an assistive device, it is an accommodation to the employee and not to the device itself.
  11. The general mandate of the ADA is accessibility for all persons with disabilities.
  12. The implementing regulations of title II of the ADA means an employer may be required to modify a floor surface so that an otherwise qualified employee with a disability can use her service animal effectively in the workplace.
  13. The functionality of the assistive device relates to the reasonableness of the necessary accommodation and not whether the employer has a duty to provide one in the first place.
  14. The duty to make reasonable accommodations does not end with allowing the assistive device through the front door. That duty also requires the employer to address any barriers to the employee’s ability to actually use that device effectively in the workplace.

If it is a service animal and you are in the Northern District of Illinois, the dog, and possibly a miniature horse, theoretically may not have to be allowed but as a practical matter will have to be allowed for the following reasons. Keep in mind, Branson v. West is a Rehabilitation Act case, but since governmental entities invariably accept federal funds, the Rehabilitation Act will apply.

  1. 501 of the Rehabilitation Act imposes an affirmative duty upon a federal agency to structure their procedures and programs in order to ensure that individuals with disabilities are afforded equal opportunity in both job assignment and promotion.
  2. A federal agency must grant a reasonable accommodation request making it possible for an employee with a disability to: perform the essential functions of the job in question; pursue therapy or treatment for their disability; or enjoy the privileges and benefits of employment equal to those enjoyed by employees without disabilities.
  3. Whether a service dog is reasonable and must be required by the employer under the Rehabilitation Act is a fact intensive inquiry requiring consideration of the costs, efficacy, and benefits of each particular situation.
  4. It is conceivable that failure to allow a service dog to be used by an employee could generate an equal protection claim. As pointed out by the court in Branson, denial of the service dog would be subject to a rational basis standard (see Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001).
  5. The applicable regulation implementing §501 of the Rehabilitation Act contain three elements: the employee must be a qualified individual with a disability; the employer must make reasonable accommodations for the known disability; and the accommodation does not have to be made if it imposes an undue hardship on the operations of the employer.
  6. An accommodation is not reasonable if it either requires a fundamental alteration in the nature of the program or imposes undue financial and administrative burdens.
  7. A service dog can benefit an employee in a myriad of different ways, both psychologically and physically.
  8. The Rehabilitation Act calls for reasonable accommodations permitting individuals with disability to lead normal lives, not merely accommodations facilitating the performance of specific employment tasks. That is, the duty of reasonable accommodation is satisfied when the employer does what is necessary to enable the worker with a disability to work in reasonable comfort.
  9. Requesting exhaustive documentation for a request for a service dog, particularly where that documentation relates to specific job duties rather than focuses on how the employee would utilize the service dog in the performance of her job duties, is inappropriate.

II

What Kind of Documentation Can The Employer Ask for Related to a Service Animal?

  1. An employer certainly has the right to request reasonable documentation that an accommodation is needed (enough information so the employer can understand why the service animal is needed and what it does for the person. Also, that the service animal is trained and will not disrupt the workplace). However, excessive documentation requests (see Branson v. West, for example), is a no no. As pointed out in the Job Accommodation Network publication, reasonable documentation may not always include a note from a doctor or some other healthcare professional. It might just come from the appropriate provider of the service i.e. whoever trained the service animal.

III

Who Is Responsible for Taking Care of a Service Animal at Work?

  1. The employee.

 

IV

Do Employers Have to Create a Relief Area for Service Animal for an Employee with a Disability who Uses a Service Animal in the Workplace?

  1. Just about always there is going to be a place outside close to the workplace where the animal can relieve itself.
  2. I completely agree with the Job Accommodation Network that an employer faced with the request to create a relief area for a service animal should consider doing so because otherwise the employee is not going to be able to use his or her service animal at work. Therefore, the employer would then wind up denying the employee’s right to use an assistive device, in this case a service animal, of his or her own choice in order to compensate for his or her disability. That would certainly create a problem of ADA compliance.
  3. IV2 is also good preventive law for title II and title III compliance for the same reason.

V

Do Employers Have To Allow Employees to Train Service Animals in the Workplace?

  1. An employer would certainly have valid concerns about potential disruptions in the workplace due to the service animal being in training. However, the critical question here is going to be just what does your state law say on the matter.

VI

What Does Title II or Title III of the ADA Have To Do with Service Dogs in Employment?

  1. If you are in the 11th Circuit, title II of the ADA does apply to employment. Admittedly, this case is an outlier, but even so, it is still good law in the 11th Accordingly, an employer in the 11th Circuit will definitely want to automatically allow a service dog to be used by their employee.
  2. Title II of the ADA applies to nonfederal governmental entities and the implementing regulations makes clear that service dogs are allowed everywhere except for certain areas, such as operating rooms etc., where it is just not possible. So, a nonfederal governmental entity that does not allow an employee to have a service dog puts itself in a situation where it has to allow service dogs for non-employees, but then has to defend why it will not allow service dogs for employees. Such a position is not defensible.
  3. VI2 applies to title III of the ADA in the same way. So, with respect to title III, a place of public accommodation that does not allow an employee to have a service dog puts itself in the situation where it has to allow service dogs for non-employees, but then has to defend the why it does not allow service dogs for employees. Again, not a defensible position.

VII

What About Emotional Support Animals (Therapy, Companion, and Social/Therapy), in The Workplace?

  1. Emotional support animals are animals that are not engaged in recognition and response. Emotional support animals are not necessarily dogs or even miniature horses.
  2. The EEOC implementing regulations contain nothing about emotional support animals.
  3. An employer certainly has a justifiable concern that an animal be sufficiently trained so as to be not disruptive to the workplace.
  4. Branson and McDonald both have reasoning within them that might extend to emotional support animals.
  5. On the other hand, an excellent defense to VII4, is the flip side of VI2-3. That is, allowing therapy, companion, and social/therapy animals would mean that the employer would be completely justified in prohibiting non-employees from using those animals to access their facilities, whether it be non-federal governmental entities or places of public accommodation, but would have to allow it for their employees. The logic of that proposition doesn’t make a lot of sense and a court might be receptive to that.
  6. Do not make assumptions that the emotional support animal, assuming it is a dog, or possibly a miniature horse, is not engaged in recognition and response. If the dog is engaged in recognition and response, then despite what the employee calls the dog, the dog is a service animal.
  7. Faced with a request by an employee to use an emotional support animal, the employer will definitely want to engage in the interactive process to do whatever it can to allow the employee to get to the same starting line as employees without disabilities short of allowing the emotional support animal. The interactive process combined with the argument listed in ¶ 5 of this section would make for a very strong defense.
  8. In EEOC v. CRST International Inc., The EEOC convinced the Northern District of Iowa to accept the proposition that an applicant for a truck driver position had a right to request an emotional support/service animal as a reasonable accommodation. That case settled for $47,500. However, a close reading of the opinion makes it very unclear whether this was a case involving an emotional support dog or a case involving a service dog or a dog acting in both capacities. So, very unclear what the EEOC will do if an employee or a prospective employee requests a reasonable accommodation for an emotional support dog rather than a service dog.

Of course, none of this is a substitute for legal advice, and a knowledgeable lawyer in this area should be consulted whenever necessary.

As you are aware, I missed a blog entry last week. I do have an explanation. At the beginning of the week, I was faced with a deadline for getting a complaint out. No, I don’t usually draft one myself, but this was an extraordinary situation. At the end of the week I had a business meeting in Washington D.C., where I am part of a Health and Human Services committee designed to bridge the gap between law and public health epidemiology. It is fascinating work. Before moving on to the blog entry of the day, I am a native Chicagoan and so I would be remiss if I did not point out that CUBS ARE IN THE WORLD SERIES!!!!!!!! for the first time since 1945. They are playing Cleveland, which has not won a World Series since 1948 (Cubs last World Series win was 1908). The first game is tonight! Now that I live in Decatur, Georgia, it is interesting to note that the last time Cleveland was in the World Series, they actually lost to the Atlanta Braves, in 1995, which is the only World Series the Atlanta Braves have won.

In other news, feedspot.com has recently included my blog as one of the top 100 legal blogs to read, which can be found here. Also, the Expert Institute has included my blog as one of the top legal blogs in the expert witness category. They are currently having a contest and the leading vote getters in each of the categories get a prize. So, if you don’t mind voting for this blog, that would be appreciated. Voting can be done here:

Today’s blog entry focuses on a case that makes it obvious that when it comes to dealing with reasonable accommodations, preventive law is everything. The case is Kowitz v. Trinity Health, an Eighth Circuit decision that came down October 17, 2016. As is usual, the blog entry is divided into categories: facts; whether life support certification was an essential function of the job; whether a reasonable accommodation request was made; reasoning of dissent; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts:

Plaintiff had cervical spinal stenosis, a degenerative disease of the spine. She began working for Trinity Health in 2007 as a respiratory therapist in the cardiopulmonary department, and later she assumed additional duties as a lead technician in the blood laboratory. On July 21, 2010, she requested leave under the FMLA to have corrective neck surgery. Trinity Health approved that request to take leave from July 27, 2010 through September. On September 7, 2010, plaintiff’s doctor made the determination that she could not return to work until October 18, of 2010. Plaintiff then requested an extension of her leave time until October, which request was granted. After that extension, plaintiff had used all of the leave time available to her under the FMLA. When she did return to work, plaintiff provided Trinity with the return to work form in which her doctor stated that she should be restricted in the following ways: working eight hour shifts; and lifting, carrying, pulling, pushing no more than 10 pounds, among other restrictions. Trinity did assign the plaintiff the eight hour shifts, but also informed her that they would not be able to accommodate the eight hour shifts indefinitely. On November 19, 2010, her supervisor posted a memorandum directing department employees to provide updated copies of the basic life support certification by November 25, 2010. It turns out that several respiratory therapist, including the plaintiff, did not have up-to-date basic life support certifications. To be certified, a person has to take a written test as well as perform a physical demonstration. Subsequently, the plaintiff took and passed the written examination. However, on November 30, 2010, plaintiff submitted a letter to her supervisor informing him that she was unable to take the physical portion of the examination until cleared to do so by her doctor. She copied in others on the letter, including the human resources department. That particular letter stated:

This is to inform you that I will not be able to do the physical part of BLS until I have clearance from Dr[.] Transfeldt. I have an appointment with him on December 2. I will inform you via fax hopefully that day.

Thank you for understanding my condition. It has been very stressful for me these past months. I am trying my best but at the same time I want to protect the surgery I had on my neck. I do go home after a[n] 8 hour shift and I have a lot of tightness in my neck and times when we are very busy, I have pain.

On December 2, 2010, plaintiff’s doctor determined that she would need to complete at least four additional months of physical therapy before she would be able to complete the physical portion of the basic life support certification. Immediately after the appointment, plaintiff left a voicemail message with her supervisor relaying her doctor’s instructions. December 3, 2010, her supervisor informed her that her employment was terminated because she was unable to perform basic life support. The District Court granted summary judgment for the employer and the plaintiff appealed. The Eighth Circuit decision was a majority decision with Judges Riley and Kelly in the majority and Chief Judge Colloton dissenting.

 

II

Court’s Reasoning with Respect to Whether Life Support Certification Was an Essential Function of the Job

 

  1. To determine whether a job function is essential, several factors are considered: the function the employer thinks are essential; written job description; how much time an employee spends on the job performing the function; the consequences of not having the employee perform the function; and whether other current employees in similar jobs perform the function.
  2. The job description for plaintiff’s position as lead technician in the blood gas laboratory states that basic life support certification is required. The employer also submitted other versions of the job description stating that basic life support certification was required or would be required within 30 days of hiring. Furthermore, both of her supervisors testified that certification was necessary for respiratory therapists to ensure the safety of the critically ill patients. Finally, one of her supervisor testified that regardless of how frequently it was required, respiratory therapists were expected to perform basic life support independently when necessary to save a patient’s life.
  3. Once the memorandum went up saying that life support certification was necessary, every respiratory therapist except for the plaintiff obtained an updated certification by the deadline posted in the memorandum.

III

Was a reasonable accommodation request made?

 

  1. When an employee with a disability requests an accommodation for a disability, the employer must engage in the interactive process to determine whether a reasonable accommodation is possible.
  2. The employee has the responsibility for initiating the process by making the employer aware of the need for an accommodation. That means providing relevant details of her disability and, if not obvious, the reason the disability requires an accommodation so as to allow the employer to identify and propose potential options.
  3. The employee need not use technical language to make the request or suggest what accommodation might be appropriate.
  4. Upon being told that her basic life support certification was due, plaintiff notified her supervisor in writing that she was unable to complete the physical component of the certification until she had been cleared to do so by her doctor.
  5. When the plaintiff notified her supervisor that she was unable to complete the physical component of the certification, the employer was already aware of her disability based upon her prior FMLA leave for neck surgery and the information she provided in her return to work form. In that notification, the plaintiff notified her supervisor that she had an appointment scheduled with her doctor in a few days and would inform her supervisors of the result of her appointment that day. She also indicated she was still experiencing neck pain, and thanked her supervisor for understanding her condition. After the doctor’s appointment, plaintiff called her supervisor and left a voicemail notifying him that she required four months of physical therapy before she would be able to complete the life support certification. The next day, plaintiff was terminated with no further discussion.
  6. While plaintiff did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to the plaintiff, facts exist as to why the letter to her supervisor stating that she would not be able to obtain the required certification until she had completed physical therapy implied (emphasis added), that an accommodation would be required until then.
  7. While the Eighth Circuit has held that a duty to accommodate an employee is not triggered until the employee clearly requests an accommodation, those cases involved significantly more ambiguous requests than this one.
  8. Several reasons exists as to why a jury could reasonably find that the employer should have understood or did understand that plaintiff’s communications to them were a request for a reasonable accommodation. More specifically: 1) plaintiff referred to her surgery, prior FMLA leave, and ongoing pain in a written notification stating that she would be unable to complete the life support certification without medical clearance; 2)her return to work form, completed less than two months before her termination, stated that she could not lift, carry, pull, or push more than 10 pounds; and 3) while that return to work form did not explicitly say that plaintiff could not complete the physical component of basic life support certification, there is nothing in the record to show that she knew at the time the form was completed, that she would be required to recertify by a date certain and before she was physically able to complete that certification. In fact, the evidence suggested that the certification requirement had not been rigorously enforced in the past and that an updated certification for employees was requested only after realizing that several therapists had expired certification.
  9. An employee is required only to provide the employer with enough information so that the employer can be fairly said to know of both the disability and the desire for an accommodation. Whether that standard is met means considering the employer’s knowledge of the disability and the employee’s prior communications about the disability. It is not limited to the precise words spoken by the employee at the time of the request. When the plaintiff advised her supervisor that she would be unable to complete the physical requirements of her basic life support certification until she had done four additional months of physical therapy, she was not required to formally invoke the magic words “reasonable accommodation,” in order to transform that notification into a request for a reasonable accommodation. In short, her written notification that she would be unable to complete the basic life support certification without medical clearance and her statement that she required four months of physical therapy before completing the certification, could readily have been understood to constitute a request for reasonable accommodation of her disability.

 

III

Reasoning of Dissent

 

  1. The majority opinion eliminates the requirement that an employee seeking a reasonable accommodation from her employer must clearly request the accommodation before the employer has an obligation to engage in the interactive process.
  2. In a reasonable accommodation case, an employee has to prove both that the employer knew about her disability and that she requested an accommodation or assistance for her disability. A request for an accommodation is a prerequisite for initiating the interactive process.
  3. While there is no requirement to use magic words like “reasonable accommodation,” the employee’s notice still must make it clear to the employer that the employee wants assistance for his or her disability.
  4. Plaintiff never requested an accommodation for her inability to perform basic life support. Rather, she merely informed her supervisor that she was unable to obtain a basic life support certification until she had completed four months of physical therapy.
  5. As the District Court stated, plaintiff never made a request or even mentioned to her supervisor, her employer, or the HR department that she was interested in transferring to a vacant position, and she never applied for any position with the employer despite knowing job vacancies were posted on the employer’s website, which plaintiff was familiar with and had access to.
  6. The majority opinion confuses the employer’s knowledge of an employee’s disability with the requirement that an employee must make a clear request for accommodation.
  7. Until this case, the Eighth Circuit had never held that implied requests are sufficient to trigger an employer’s duty to engage in the interactive process. In fact, the court had previously said the opposite. That is, the court has said that an employee seeking a reasonable accommodation cannot expect the employer to read her mind and to know she secretly wants a particular accommodation and then sue the employer for not providing it.
  8. It is not the place of the court, to impose a rule based upon how a well-meaning employer would treat an employee who notifies the employer of a disability, even if some employers might well take it upon themselves to initiate an interactive process without a request from the employee.
  9. By eliminating the requirement of a clear request for accommodation be distinct from the notice of disability, the court generates unfortunate uncertainty.

IV

Takeaways:

  1. Preventive law is everything in the Eighth Circuit when it comes to handling accommodation requests. Now that a reasonable accommodation request can be implied, an employer in the Eighth Circuit should initiate the interactive process if it can be reasonably assumed the accommodation request logically follows from the information that has been provided by the employee. In other Circuits, an employer may not have to go this far. Even so, as a matter of preventive law, an employer may want to consider this approach if it is possible.
  2. If Justice Scalia was on the court, there is no doubt in my mind, that the dissenting opinion would prevail at the United States Supreme Court. Without Scalia, a 4-4 split would be quite conceivable. Hard to say what a new Justice (Justice Garland?), would do.
  3. The concept of an implied reasonable accommodation request is something new, and so it will be interesting to see if other Circuits follow suit.
  4. On the plaintiff side, the implied accommodation request concept creates a benefit of the doubt for the plaintiff. However, I would hate to rely on this. A plaintiff is going to be much better off being explicit when asking for reasonable accommodations in order to avoid having to deal with the dissent’s reasoning.
  5. One wonders if a rehearing en banc won’t be requested in light of the implied reasonable accommodation theory posed by the majority being such a novel idea.
  6. The line between an employer knowing or should have known that a request for an accommodation was made when compared with an implied reasonable accommodation request arguably still exists and is an important distinction, especially where an employer wants to take a stand on not having to accommodate implied requests for accommodations.
  7. A function of the job can still be essential even if it is performed only rarely.

 

 

 

 

As promised, I am back. For my Jewish brethren, I want to wish everyone a happy new year and a good fast, Yom Kippur starts tonight. Today’s case comes to me courtesy of my friend and colleague from Dallas, Texas, Richard Hunt passed along the case of Ross v. City University of New York, 2016 WL 5678560 (E.D. N.Y. September 29, 2016). It has two issues that are of interest. First, does a university potentially have to accommodate a student that has graduated who desires to return to the campus to participate in a variety of activities? Second, does the receipt of federal funds waive sovereign immunity per the Rehabilitation Act? Not addressed in this opinion is whether a public place of higher education forcibly waives its sovereign immunity with respect to a title II ADA case. For the answer to that question, you want to check out this case, Toledo v. Sanchez, out of the First Circuit.

I

Facts:

The plaintiff while attending Queens College as a student tried to access numerous architectural features but encountered numerous barriers that hindered her ability to access its services and programs offered there. Nevertheless, she graduated. She resides in Queens County and as an alumni and community member,  plans to return to Queens College in the near future to utilize a variety of programs and activities administered there but could not do so due to a variety of physical barriers to access. She sued seeking: a declaratory judgment that a violation of title II of the ADA and §504 the Rehabilitation Act existed; an injunction requiring the University to make all readily achievable alterations; an award of compensatory damages; and attorneys’ fees and costs.  The City University of New York defended on two grounds. First, the plaintiff lacked standing since she was no longer a student there. Second, the suit was precluded by sovereign immunity.

II

Court’s Reasoning regarding Standing and Prima Facie Case

  1. In an ADA action seeking injunctive relief, the Second Circuit has found standing where: the plaintiff alleged past injury under the ADA; it was reasonable to infer the discriminatory treatment would continue; and it was reasonable to infer, based upon the past frequency of plaintiff’s business and the proximity of the University to plaintiff’s home, that plaintiff intended to return to the University.
  2. Although graduation may reduce frequency of visit to a university, a student’s graduation alone does not necessarily preclude standing to bring a title II ADA or a Rehabilitation Act claim against the University.
  3. The complaint included concrete allegations of past injury.
  4. There was no indication from the complaint that the University intended to remedy the alleged violations. Therefore, it was reasonable to infer that those conditions will continue to persist.
  5. Although no longer a student there, the plaintiff lives in close proximity to the University and alleged an intent to return to campus as an alumna for programs and activities and to attend public events. Indeed, she already returned to the University Center post graduation for a Thanksgiving potluck and encountered barriers to access.
  6. The argument of the defendant that even if the plaintiff has standing, she lacks standing to seek an injunction for the entire campus doesn’t work because the argument challenges the scope of the relief sought not whether she has standing to sue in the first instance.
  7. To establish a prima facie case of violating the ADA or Rehabilitation Act, a plaintiff has to show: she is a qualified individual with a disability; the University is an entity subject to the ADA and the Rehabilitation Act; plaintiff was denied the opportunity to participate in or benefit from the University’s services, program, or activities, or the university otherwise discriminated against her by reason of her disability.
  8. Plaintiff alleged numerous architectural barriers that would prevent her from having meaningful access to the University’s services and activities including: inability to access certain areas of the main library; difficulty in using bathroom due to inadequate door width, sinks with exposed pipes, absent grab bars, and amenities too high off the floor; inability to access emergency kiosks on campus due to lack of clear floor space; inability to access campus shuttle buses because they lacked the ability to serve passengers with disabilities; an inability to access seating in the student union or dining hall.

III

Sovereign Immunity with Respect to the Rehabilitation Act.

  1. Both parties to the litigation agreed that the University consented to be sued under the Rehabilitation Act because it receives federal funding. That is, Congress has the ability to require that the states, as a condition of receiving those funds, waive their sovereign immunity.
  2. The Second Circuit has held that §504 the Rehabilitation Act constitutes a clear expression of congressional intent to condition acceptance of federal funds on the state’s waiver of its 11th amendment immunity.

IV

Sovereign Immunity with Respect to the ADA

  1. While the United States Supreme Court has held in U.S. v. Georgia, that Congress forcibly waived sovereign immunity of the states under title II of the ADA where those claims also violated the 14th amendment to the U.S. Constitution, it specifically left open the question whether sovereign immunity was forcibly waived with respect to violations of title II of the ADA that not rising to constitutional violations, and the Second Circuit has not spoken on the matter.
  2. Since sovereign immunity does not bar claims under the Rehabilitation Act, the court has subject matter jurisdiction over the action regardless of whether University is immune from the ADA claim. Furthermore, the remedies available to the plaintiff under title II of the ADA and the Rehabilitation Act are identical. Therefore, as a practical matter, the case proceeds on the same course regardless of whether the University may later be found immune from the plaintiff’s ADA claim and the motion to dismiss based upon sovereign immunity fails.

 

V

Takeaways:

 

  1. One lesson from this case is that if you are suing a public college or University you want to allege both a §504 of the Rehabilitation Act claim as well as a title II of the ADA claim so that if for some reason the title II of the ADA claim gets knocked out, you still have the Rehabilitation Act claim.
  2. As the court mentioned, and we have noted before, the remedies for violating II of the ADA are the same as those for violating §504 the Rehabilitation Act. However, as we have also noted before, causation is different (Rehabilitation Act being “solely by reason of,” and the ADA being, “by reason of). Accordingly, on the plaintiff’s side, it still pays to fight to include the ADA claim, and using Toledo v. Sanchez would the way to go there.
  3. Another point with respect to causation, I am beginning to see cases confuse causation between §504 the Rehabilitation Act and title II of the ADA both ways. That is, I am seeing cases that say the standard for causation for both is “solely by reason of,” and this case talks about the standard for both being, “by reason of.” Both points of view are incorrect, as mentioned above.
  4. You be surprised who makes the claim that if a person is not a student, no obligations to accommodate the person with a disability exists. This case says that standing is the key and not whether a person is still enrolled is not the question.

 

Before we get started on the blog entry of the day, a couple of housekeeping matters are in order. First, you may be wondering why my website/blog site and my professional email went down last week. The company that was hosting my website was bought out by another company, and there were some mechanical things that had to happen in order to make the switch. It was my understanding that I had some more time to do those things, but things moved faster than I thought. At any rate, the website and professional e mail are back up. My site was never suspended, rather that was the result of the site being linked to the old company when it is actually being hosted by a new company. Second, next week is the Jewish holiday of Rosh Hashanah, and I am going to have family in for that week as well. So, I want to wish all of my Jewish brethren reading this blog a healthy and happy new year. Also, want to let you know that you shouldn’t be surprised if you don’t see a blog next week.

This week’s blog entry explores the issue of whether the Department of Justice has standing to sue to enforce title II of the ADA either on its own behalf or in intervention. It is actually two separate cases. As is usual, my blog entry is divided into categories: does the DOJ have standing to sue on its own behalf to enforce title II of the ADA?; if DOJ intervenes rather than sues on its own behalf, does that make a difference?; and takeaways. The reader is free to focus on any or all of the categories.

 

I

Does the DOJ Have Standing to Sue on Its Own Behalf to Enforce Title II of the ADA?

In C.V. v. Dudek, the Southern District of Florida in an opinion by Judge Zloch was faced with the question whether DOJ had standing to sue on its own behalf with respect to a claim of violation of title II when it came to the State of Florida’s administration of its Medicaid program with respect to how it treated medically complex and fragile children. Judge Zloch on his own motion raised the question of whether DOJ had standing to sue on its own behalf to enforce title II of the ADA. His conclusion was that no such standing existed. He reasoned as follows:

  1. The Supreme Court of the United States has made it clear that when an agency acting in its governmental capacity is meant to have standing, Congress says so.
  2. Title II’s enforcement section refers to certain remedies, procedures and rights to any person alleging discrimination on the basis of disability in violation of §12132 of the ADA. When looked at side to side with the enforcement provisions of title I and III of the ADA, title II does not confer standing on the Attorney General and the department is not a “person alleging discrimination.”
  3. Unlike title II of the ADA, where the enforcement provision refers to “persons alleging discrimination,” title I and III of the ADA quite explicitly confer standing upon the Attorney General to initiate litigation.
  4. With respect to title I, it provides that the powers, remedies and procedures set forth in title VII of the Civil Rights Act of 1964 are the powers, remedies, and procedures provided to the EEOC or to any person alleging discrimination on the basis of disability in violation of any provision of the ADA concerning employment. Further, title VII of the Civil Rights Act of 1964 authorizes the Attorney General to seek various forms of judicial relief.
  5. With respect to title III of the ADA, the ADA specifically grants the Attorney General authority to commence a civil action in any appropriate United States District Court if the Attorney General has reasonable cause to believe that: any person or group of persons is engaged in a pattern or practice of discrimination; any person or group of persons had been discriminated against and such discrimination raises an issue of general public importance.
  6. When Congress confers standing on a particular actor in one section of a statutory scheme, but not in another, which is the case with the ADA, that silence has to be read to preclude standing.
  7. In a legislative scheme of the sort like the ADA, when Congress wants the Attorney General to have standing, it says so.
  8. The Department of Justice is not a “person alleging discrimination,” as there is a long-standing interpretive presumption that “person,” does not include the sovereign. This particular principle is not just limited to the regulatory sweep of the statute, but also extends to those provisions defining who may be plaintiffs under the statute and those who have standing. Therefore, absent an affirmative showing of statutory intent to the contrary, “person,” does not include the sovereign, and statutes employing the word are ordinarily construed to exclude it.
  9. Title I of the ADA extends remedial authority, including authority to commence civil suit, to the EEOC, the Attorney General, or to any person alleging discrimination on the basis of disability. On the other hand, title II grants remedial authority only to “persons alleging discrimination.” Therefore, if the Attorney General is not a “person,” under title I of the ADA, then the Attorney General is not a “person,” under title II of the ADA either.
  10. The court disagreed with the Department of Justice’s view that whether the Attorney General was a person under the statute is besides the point, rather the court believed that who is a person under the statute is precisely the point. That is, qualified individuals with a disability are the intended beneficiaries of title II of the ADA, and private parties alleging discrimination is the mechanism by which those guarantees are enforced. The court is simply not free to ignore the statutory text to come up with a contrary conclusion.
  11. The normal rule of statutory interpretation is that identical words in different parts of the same act are intended to have the same meaning.
  12. The cardinal rule of statutory interpretation is that no provision should be construed to be entirely redundant. If the Attorney General were a “person alleging discrimination,” under title II of the ADA, then any reference to her in title I would be redundant. If not redundant, the term “person,” would have different meanings in title I and II, which to the court’s view, is absolute nonsense. That is, in both title I and title II of the ADA, the Attorney General it is not a, “person alleging discrimination.”
  13. Another Canon of statutory construction, expressio unius, also supports the view that a “person,” under title II of the ADA does not include the Attorney General. This particular Canon of statutory construction says that the provision of one method of enforcement suggests that Congress intended to preclude others. By authorizing suits by individuals, Congress intended to bar administrative agencies, such as the Department of Justice, from enforcement by litigation.
  14. Title II’s remedial scheme contains no authority for the Department of Justice to commence civil litigation. That remedial scheme incorporates remedies under §504 of the Rehabilitation Act of 1973 and makes them available to any person alleging discrimination under title II of the ADA.
  15. Remedies for title II of the ADA are tied into the Rehabilitation Act, which is tied into title VI of the Civil Rights Act of 1964. Under title VI, there is no statutory cause of action for Attorney General enforcement and therefore, none exist under title II of the ADA. Title VI does not authorize suits by the Attorney General, but instead allows enforcement of conditions attached to federal funding by any other means authorized by law, which are typically actions brought by the DOJ for breach of contract.
  16. Congress did not incorporate all remedies, procedures, and rights available under title VI of the Civil Rights Act, rather it incorporated only those remedies, procedures, and rights that may be exercised by a “person alleging discrimination.”
  17. Title VI of the Civil Rights Act, the Rehabilitation Act, and title II of the ADA each authorize suits by private individuals, including those for injunctive relief and damages.
  18. The ADA’s structure as a whole supports the conclusion that title II of the ADA incorporates only enforcement rights exercised by private parties. In particular, title I of the ADA bestows specific rights on the EEOC, the Attorney General, as well as any person alleging discrimination. Similarly, in title III of the ADA, specific provisions exist for the Attorney General to intervene in litigation at the court’s discretion. As is the case in title I, title III of the ADA quite explicitly sets forth the who and how of its remedial scheme.
  19. Considering how precisely who may be involved in suits are crafted under title I and title III of the ADA, title II’s failure to name the Attorney General or her rights under title VI is hardly an afterthought.
  20. The decision to limit enforcement of title II to suit by private parties makes a lot of sense and is not a surprise. Title II reaches into many areas traditionally the province of the states. Therefore, that imposes significant federalism costs by subjecting state run public services to federal judicial review. Title II by specifically limiting itself to private enforcement, avoids compounding those federalism costs by requiring judicial review be at the behest of recipients of those public services and not the federal government.
  21. While it is true that 12134(b) of the ADA directs the Attorney General to promulgate regulations implementing titles II with an instruction that such regulations are consistent with the Department of Health, Education, and Welfare’s regulations implementing the Rehabilitation Act. That consistency mandate does not incorporate the Rehabilitation Act’s regulations into the ADA or direct the Attorney General to promulgate identical regulations for title II of the ADA. That means the consistency mandate is to ensure that title II’s standards are analogous to those under the Rehabilitation Act. That is quite a different thing than saying that the regulations are directed to include the Rehabilitation Act’s remedies or go so far as to adopt them.
  22. The attorney fees provision of title I or title III of the ADA does not help the Department of Justice as those provisions are limited to those titles.
  23. The DOJ argument that without recourse to judicial remedies, the federal government has no effective ability to bring about compliance ignores that the proper question is whether the federal government is the proper party to affect compliance with title II of the ADA at all. Title II of the ADA, like other civil rights statutes, is using the concept of a private Attorney General (private parties empowered by a fee shifting provision), to affect compliance through litigation.
  24. In a footnote, the court said that Title VI of the Civil Rights Act’s remedies are not superfluous because title II of the ADA only incorporates from title VI of the Civil Rights Act those rights may be exercised by a private party.
  25. The decision whether to utilize private enforcement or public enforcement lies with Congress alone since it is the proper body to weigh the benefits and burdens associated with each kind of enforcement regime.
  26. There is nothing absurd in the view that Congress might elect to withhold from the federal agency a boundless discretion to sue state and local governments.
  27. The Department of Justice does have the ability under a variety of other laws to commence litigation, though admittedly those laws may set high standards for such involvement, such as seen in the civil rights of institutionalized persons act for example). Recognizing the DOJ authority to bring suit under title II of the ADA would allow for an end run around the civil rights of institutionalized persons act more stringent requirements.
  28. A statute’s purpose may not be used to add features that achieve the statutory purpose more effectively, rather that is for Congress to do.
  29. While the Attorney General does not have the ability to bring suit under title II of the ADA, it was empowered by the ADA to set the regulatory standards defining disability discrimination under title II. No role could be more central to a statute’s enforcement. In this case, the court borrowed from a football analogy by saying that the Department of Justice is demanding not only to draw up the plays, but to carry the ball as well. That is, the withholding of agency authority is as significant as the granting of and the court had no right to play favorites between the two.
  30. The DOJ view that appropriate action includes resort to department initiated litigation failed to distinguish between the concept of the scope of an agency’s authority and the scope of a court’s jurisdiction.
  31. Court’s owe no deference to an agency’s understanding of a court’s jurisdiction.
  32. Language in regulations may invoke a private right of action that Congress statutory text created, but it cannot create a right Congress has not created. That is, administrative agencies may not confer standing on private plaintiffs by regulation nor may they confer standing upon themselves. An administrative agency’s ability to seek judicial relief has to come from the statute itself. So, it is inappropriate for a court to defer to an agency’s position on whether the agency has standing to bring suit.
  33. The ADA is neither silent nor ambiguous with respect to the litigation authority of the Department of Justice. Title I and III of the ADA allow for DOJ involvement in explicit terms, while title II of the ADA provides otherwise.
  34. Contrary to the DOJ view, it is extremely significant that title II of the ADA fails to mention the Attorney General in its enforcement section. Title I and title III mention the Attorney General because the Attorney General has different rights and responsibilities than private parties under those titles. There is no reason to assume that Congress would be so deliberate in title I and title III, which sets forth both the what and whom, and yet so reckless in title II, which only sets forth the what. A court must focus on permissible statutory constructions and not ingenious academic exercises of what is possible.
  35. A cause of action brought by the Department of Justice must come from title II itself.
  36. An executive order allowing the Attorney General to fully enforce title II of the ADA is of no help for two reasons. First, it isn’t for the executive branch to say that it has the authority to enforce title II through litigation. Second, the executive order refers to cooperative efforts with states in alternative dispute resolution, not litigation.
  37. In another footnote, the court refuses to look at legislative intent because the concept as a practical matter doesn’t exist, and certainly not in the places that court’s often look to.
  38. In another footnote, the court notes that while it is absolutely true that the Department of Justice has entered into several settlement agreements and consent decrees addressing title II violations, that has nothing to do with whether the statute authorizes the department to sue.
  39. Constitutional principles of federalism erect limits on the federal government’s ability to direct state officers or interfere with the functions of state governments. In areas where Congress grants the power to alter federal-state relations, the Supreme Court requires that such intention has to be unmistakably clear. Similarly, when conditions are attached to federal funding or sovereign immunity is forcibly waived, such intention must be unequivocal.
  40. When Congress has authorized litigation by federal agencies against state and local government, that authorization has come in clear terms and often with strict conditions.

 

II

So, No Standing for DOJ to Sue on Their Own Behalf, but What about Intervention?

 

In Steward v. Abbott, the Department of Justice did not bring suit on its own behalf, but rather intervened in the litigation. Does intervention v. bringing suit on their own behalf make a difference? Judge Garcia of the United States District Court of the Western District of Texas says it does for the following reasons:

 

  1. An intervenor seeking no relief beyond that sought by the plaintiff in the underlying case does not need to possess independent standing. In that situation, the intervention is into a subsisting and continuing article III case or controversy and the ultimate relief sought by intervening party is also being sought by at least one subsisting party having standing to do so.
  2. The complaint of the Department of Justice in this case is seeking injunctive relief and declaratory relief that is substantially the same ultimate relief sought by the original plaintiffs in the case.
  3. Where intervening plaintiffs seek the same ultimate relief as the original plaintiffs but advance a different legal theory, the intervening plaintiff’s create no jurisdictional obstacles for the court.
  4. Providing a case or controversy exists, it is immaterial to the court’s jurisdiction whether an intervening party, proceeding alone, can satisfy the requirements of article III.
  5. A governmental agency’s capacity to intervene and raise claims within the scope of the original plaintiff’s complaint is not limited to the agency’s capacity to institute an independent action on its own behalf.
  6. The whole idea of adding Federal Rules of Civil Procedure 24 (b)(2) was to go in the direction of allowing intervention liberally so that governmental agencies and officers seeking to speak for the public interest could do so.
  7. The interests of the United States in the enforcement of title II of the ADA and the Rehabilitation Act provide a sufficient basis for the United States to raise claims that do not exceed the scope of the original complaint, as is the case here. Accordingly, it isn’t necessary to consider whether the United States could go further than that.
  8. In a footnote, the court said that Texas acknowledged that title II of the ADA and the Rehabilitation Act authorized the Attorney General to sue because: United States has an interest in title II of the ADA; both title II in the Rehabilitation Act allow for enforcement determination or refusal to grant federal funding or by any other means provided by law; and courts interpret “any other means provided by law,” to authorize DOJ enforcement by federal court action.

III

Takeaways:

 

  1. I would expect that every time the Department of Justice either brings a suit on its own behalf or intervenes to enforce title II of the ADA, V. v. Dudek will be trotted out by the public entity being sued by the Department of Justice. Ultimately, one wonders whether a Circuit Court split will not occur at some point in time and this will not go before the United States Supreme Court, though admittedly, this could be years down the road. Alternatively, Congress could amend title II of the ADA to specifically allow for Attorney General enforcement, but considering how polarized politics is in America at the moment and the likely control of Congress being split after November, such an amendment would be extraordinarily unlikely.
  2. If indeed private attorney general is the only way to go under title II of the ADA, things just got a lot more complicated for persons with disabilities. You see many private attorneys working in title I of the ADA and you see more private attorneys of late working in title III of the ADA. With respect to the latter, it used to be mainly disability rights groups doing title III litigation, but now you are seeing more private attorneys get involved. It is far less typical to see many private attorneys involved in title II of the ADA cases. Even in those situations, having DOJ on board can even up the odds for a plaintiff. On an economics of law practice level, that makes sense for two reasons: Damages for title II of the ADA must satisfy a deliberate indifferent standard; and often times it isn’t damages that a title II plaintiff is after. Accordingly, that makes contingency fee litigation very difficult to assess accurately. All that said, if it is strictly a matter of private attorney general enforcement for title II matters, one wonders whether attorneys affiliated with the National Employment Lawyers Association may want to think about branching out their practice. After all, they are used to taking on governmental entities. Admittedly, the rules are different as are the standard for damages, but with proper training maybe it could work.
  3. The footnote in Steward saying that Texas admitted that the Department of Justice had the ability to sue on its own behalf is interesting considering such an omission may not have been necessary in light of C.V. (see §I 18 for example above). Also, the reasoning of this footnote was specifically rejected by the C.V. court (see §I 15 above).
  4. With respect to DOJ intervening in a suit, the two cases discussed here are in conflict. Compare §I 18 above with §II.
  5. As it currently stands, the person does not have to exhaust administrative remedies before proceeding with a title II or title III suit. Of course, if this case becomes the law of the land, there would be absolutely no reason to file with the DOJ at all with respect to a title II matter. Also, if this decision becomes the law of the land, how DOJ decides to spend its resources and set up its bureaucracy will radically change. For example, it will no longer be able to bring suits on its own behalf to enforce title II. It may also be not able to bring suits intervening on title II matters. Finally, there would be no reason whatsoever for a person to file a claim with the Department of Justice with respect to discrimination by public entities even if they had the desire to do so.

As everyone knows, my blog entries usually go up on Monday of a given week. Obviously, I missed last week. Last week my daughter was on break and my wife also took the week off. So, lots of family things going on. We also have out-of-town company in for an extended weekend, but I am getting a moment to myself. So, here goes. Today’s case discusses the issue of whether the failure to repeatedly provide reasonable accommodations to a student is a continuing violation or a series of discrete acts for purposes of the statute of limitations beginning to run with respect to the ADA and the Rehabilitation Act.

The case of the day is Keith-Foust v. North Carolina Central University, a decision from the U.S District Court of the Middle District of North Carolina that came down on August 11, 2016. As is usual, my blog entry is divided into categories: facts; court’s reasoning with respect to the statute of limitations involving claims against the law school; court’s reasoning regarding the Masters of Public Administration program; court’s reasoning regarding retaliation; court’s reasoning with respect to suits against individuals in their individual and official capacities; and (a huge amount of), takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Keith-Foust, the plaintiff, is visually impaired, legally blind, as a result of glaucoma that she had while she was in her early 20s. Even so, she obtained two undergraduate degrees, business administration and also double majors in psychology and political science, from North Carolina Central University. In the spring of 2013, she applied for admission to North Carolina Central University’s School of Law. Despite her accomplishments and grade point average of 3.70, the school did not offer her unconditional admission even though it offered unconditional admission to non-disabled students with comparable credentials. Instead, they admitted her into its performance-based admission program, a program set up for those who show promise of success in law school but do not qualify for unconditional admission. That program is a two week program during which students attend class and then are evaluated for admission into the law school based upon their academic performance and professionalism during the program. Since 2008, the plaintiff had always required and utilized reasonable accommodation during her enrollment at North Carolina Central University and had met with the Office of Disability Services prior to the start of each semester. So, she did the same thing prior to starting the performance-based admission program. When meeting with the Office of Disability Services, she requested several different accommodations including: special seating in the front of the classroom; access to a table for her equipment; recorded lectures (for which she would provide the device); use of her personal laptop equipment; absences for medical appointments; electronic copies of handouts/class materials via email sent before class; an oral description of video shown in class as needed; a personal assistant in class to provide reader services; extended time on exams/tests (double time); separate setting for all exams/tests; use of the laptop to access assistive technology on tests; and extended time on assignments as needed (two additional days). North Carolina Central University did not object to any of the accommodations and orally agreed that the plaintiff was entitled to these accommodations during the performance-based admission program. North Carolina Central University determined that these accommodations were reasonable to afford the plaintiff equal access during the performance-based admission program and included the accommodations in an accommodation plan. The Director of Student Disability Services told the plaintiff that the accommodation plan was the official plan that would be used during her enrollment in the program and that she would be provided all of the accommodations under the plan. Further, although not among her requested accommodation, the Director Of Student Disability Services also told her that she would be provided a CCTV, but then took that away due to administrative issues and it was not included in the plan. Both the Director of Student Disability Services, on May 29, 2013, and the plaintiff, on May 31, 2013, signed the accommodations plan.

On May 30, 2013, the Associate Dean for Academic Affairs at the School of Law emailed the plaintiff a memorandum in which he explained how some but not all of her accommodations would be implemented. He did not mention the accommodations for providing for an oral description of video shown in class, access to a table for equipment, or providing for extended time on assignments. Further, unbeknownst to the plaintiff at the time, he responded to an email from one of her instructors stating that he purposely omitted from his memorandum the accommodation of extended time on assignments because he considered that to be an impractical request. He stated that it would be better to discourage her from the idea of receiving extended time on assignments so that it would not be an expectation later. He went on to say that if the plaintiff insisted on being provided the extended time on assignments, he would be forced to tell the plaintiff that he did not believe she was being realistic about what would be expected of her and that law school was not the route for her. It wasn’t until one year later that the plaintiff first learned of this email.

Once enrolled in the program, North Carolina Central University failed to accommodate her as it had agreed. More specifically: they did not provide her with special seating in the front of the class thereby requiring her to arrive earlier than other students in order to get preferential seating. She also had to ask classmates on occasion to relocate; the class was held in the moot court courtroom, which only had stadium seating, and the school failed to make available to her access to a table substantial enough in size to hold her equipment; professor did not consistently email her class materials before class, instead sometimes providing the material by a flash drive almost immediately before the start of class leaving little to no time to upload the materials and sometimes not even providing class material beforehand at all; during mandatory tutoring sessions, her tutor told her that they were not aware they needed to accommodate a blind student and conducted the sessions using class materials in an inaccessible format; she was required to complete a final oral argument during which she, like other students, was allowed to use notes. However, to do that, she required access to her personal equipment but the school failed to provide access to a table to hold her equipment, access to an electrical outlet in front of the classroom during her argument, and extended time to complete her oral argument; although she used a laptop for her exams as required under the plan, performance-based admission faculty transcribed the exams via handwriting so as to protect anonymity because other participants handwrote their exams. However, the staff members carelessly and inaccurately transcribed their answers and made costly grammatical errors not present in her typed exam answers.

Frustrated that the school did not provide her required accommodation during the program despite her diligent efforts, she met with the Chancellor of the School on or about Jun 20, 2013 to discuss her accommodation. She said that she needed access to a CCTV but the Office of Student Disability Services failed to provide it. About a week later, she received a letter from the Assistant Dean of Admissions at the School of Law informing her that she had been denied admission to the school of law based on the valuation from the performance-based submission program. That same day, the plaintiff emailed the associate Dean for Academic Affairs at the School of Law and the Chancellor of the school and requested a hearing and copy of her evaluation. The Associate Dean for Academic Affairs at the School of Law replied that there was not a formal appeal process or hearing from the decision not to admit her to the School of Law after her participation in the program and copied in the Chancellor, and the Dean of the School of Law, and the Assistant Dean of Admissions of the School of Law on that correspondence.

She then enrolled in the fall program of the school’s Masters of Public Administration. The school determined that she required various accommodation, including being provided electronic copies of class materials on a jump drive before the start of each class. Nevertheless, the school failed to provide the class materials until the plaintiff notified it on four separate occasions that she was not being provided the accommodation. Further, despite assurances to the contrary, a CCTV was not provided until months into the fall semester. Things didn’t get better when after taking leave during the fall of 2013, she reenrolled for the fall of 2014. She was supposed to receive several different accommodations, but was not provided with those accommodations as required until three weeks after the start of classes. She then took a medical leave on October 8, 2014, and did not return to the Masters of Public Administration program. She brought suit alleging violations of the ADA, §504 the Rehabilitation Act, retaliation, tortious interference with contract; fraud, negligence, negligent misrepresentation, and unfair and deceptive trade practices. The court wound up dismissing all of the claims except for the ADA and §504 claims.

II

Court’s Reasoning: Statute of Limitations Law School

  1. The most applicable statute of limitations for the ADA in North Carolina is the Person with Disability Protection Act. That act provides a two-year statute of limitation for non-employment claims.
  2. A civil rights claim accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action.
  3. In the Fourth Circuit, a defendant’s failure to accommodate constitutes a discrete act rather than an ongoing omission for purposes of the statute of limitations.
  4. It would have been readily apparent to the plaintiff that North Carolina Central University was discriminating against her each time it failed to accommodate her. Therefore, each discrete act starts a new time period for that act.
  5. The parties did not argue whether a failure to accommodate occurred each day during the performance-based omission program that North Carolina Central University failed to provide various accommodations in the accommodation plan or whether a failure to accommodate occurred only when the plaintiff renewed her request for an accommodation that was not being provided and the school subsequently failed to provide the accommodation. That is, for the action to accrue must the plaintiff have renewed her request for an accommodation in order to trigger a possible failure to accommodate?
  6. The parties also did not argue that if the plaintiff was required to renew her request for accommodation and, if so, to whom much she had made that request to so that North Carolina Central University would be responsible for subsequent failure to accommodate.
  7. Parties also did not argue that if a renewed request was required, whether both renewed request and the subsequent failure to provide the accommodation must occur on or after June 11, 2013 or whether it was sufficient that the subsequent failure to provide the accommodation occurred on or after June 11, 2013.
  8. The memorandum from the Assistant Dean of the law school did not purport to change the accommodation plan and in any event, the plaintiff did not know until after she began the program what if any accommodation were not being provided, which of course turned out to be more than just the three accommodations missing from the memorandum. Further, the plaintiff did not allegedly learn of the email to her writing instructor until one year later. Accordingly, the intentional discriminatory act allegations stemming from the letter of the Assistant Dean was timely.

III

Court’s Reasoning MPA Program

  1. Proving a case of discrimination under title II of the ADA or the Rehabilitation Act (assuming federal funds, which is the case here), involves showing: 1) plaintiff has a disability; 2) plaintiff is otherwise qualified to receive the benefits of a public service, program, or activity; and 3) plaintiff was excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of her disability.
  2. With respect to the third prong, the Fourth Circuit has recognized three distinct grounds for relief and they are: disparate treatment; disparate impact; and failure to make reasonable accommodations.
  3. More than enough facts were alleged to show that the school may be subject to a failure to accommodate claim. In particular, receiving materials immediately prior to class inhibited her ability to participate meaningfully in the class; she was unable to view course materials written on the board without the assistance of a CCTV, and since she was not provided with appropriate magnification equipment she suffered unnecessary strain on arise thereby requiring her to take leave from school during the fall of 2013. The failure at the start of both the fall 2013 and fall 2014 semester to provide electronic copies of course materials before class created an intolerable environment for the plaintiff and resulted in a medical leave from the program. The school’s failure to provide a CCTV until months into the fall 2013 semester prevented the plaintiff from doing much of the course material during that time and caused additional unnecessary strain on her eyes that caused her to take leave in the fall 2013.

IV

Court’s Reasoning Retaliation

  1. The court held that the facts as alleged did not rise to the level of retaliation because such conduct was not of the level that would deter a reasonable student from asserting her rights.

 

V

Court’s Reasoning regarding Suits against Defendants in Their Individual or Official Capacities

  1. The ADA and the Rehabilitation Act do not provide causes of action against individual defendants in their individual capacities.
  2. The plaintiff was not seeking injunctive relief from individuals in their official capacity, and therefore, the official capacity claims must fail.

VI

Takeaways:

  1. I am a big believer in utilizing the Office of Civil Rights of the Department Of Education whenever possible. The thing to keep in mind with OCR is that they have a six-month statute of limitations. There are many advantages to utilizing the Office of Civil Rights process. First, it isn’t litigation but much more administrative in focus. Second, it gives you an excellent chance to assess the strengths and weaknesses of your case as well as the strengths and weaknesses of the other side all for little cost. Third, it is essentially free discovery. Fourth, schools take Office of Civil Rights investigations very seriously. Finally, if the Office of Civil Rights does get involved it completely changes the dynamic of the case as now the federal government is involved rather than just a plaintiff with a disability whose resources are often not substantial. It seems to me, that a filing with the Office of Civil Rights would have been in order right after she was formally dismissed from the performance-based admission program. Same could be said for when she had to leave the Masters of Public Administration program.
  2. The allegations, if proven, are fairly egregious and so one wonders whether the plaintiff does not have a good shot at proving deliberate indifference so as to be able to get damages (see this blog entry).
  3. The plaintiff was very upfront about her disability and tried to get on top of it from the get go; a strategy that I highly recommend for students with disabilities. It isn’t a bad idea if such a person is running into obstacles to get legal counsel involved sooner than later.
  4. It is a State-By-State situation as to what is the most applicable statute of limitations with respect to ADA/Rehabilitation Act claims. The statute of limitations can be all over the place, 1 to 3 years is not unusual. Most often times it seems to be two. In any event, legal research is needed every time the situation arises.
  5. Continuing violation doctrine exists in theory but it is almost impossible to convince a court that such a violation exists. In the Fourth Circuit anyway, failure to accommodate claims are a discrete act.
  6. In this case, the court held that the allegation did not rise to the level of retaliation. That said, one wonders why an interference claim was not alleged since that is a much lower standard than retaliation.
  7. The overwhelming line of authority is that the ADA and the Rehabilitation Act do not provide a cause of action against individual defendants in their individual capacity.
  8. Disability services need to take the lead. In particular, should a school of the University or faculty have a problem with the accommodation that disability services comes up with, they need to interface with disability services in order to straighten it out. Also, the programs of the particular school of the University would be wise to have its essential eligibility requirements in order as seen in this blog entry.
  9. Whether a reasonable accommodation request is impractical is not the standard, rather the question is whether an undue burden or a fundamental alteration is involved.
  10. I don’t understand the need for the exams to be handwritten in law school.
  11. Never forget about the Job Accommodation Network.
  12. An ADA compliance audit, which might cost you a decent sum of money up front, may save you a bunch of money later.
  13. Make sure you have a §504/ADA coordinator as well as a §504/ADA grievance procedure.
  14. The court said that it was readily apparent that the plaintiff was being discriminated against each time a reasonable accommodation request was denied. As someone who has represented persons with disabilities in graduate schools, I can say that to the student it isn’t necessarily so readily apparent. Oftentimes, to the student it appears that it is all part of a continuing process rather than separate items with their own cause of action. For example, see this unpublished case, Pollowitz v. University of Medicine and Dentistry, 2007 N.J. Super. Unpub. LEXIS 1269 (N.J. App. July 27, 2007), holding that depending upon what discovery revealed, a constructive discharge of a student by a university was a possible cause of action and that the actions leading up to that could be a continuing violation.
  15. Considering the open questions, it may make sense if you are representing a plaintiff and the school has not been forthcoming with its reasonable accommodations, to make the renewal request. Once that happens, it may make sense to confirm after a period of time, that they have no intention of following through on the accommodations. That way, it is pretty clear as to when the statute of limitations starts to run.
  16. The fact pattern of this case is such that one wonders how the burden of proof will work. See this blog entry .
  17. The prima facie case for title II of the ADA and for §504 the Rehabilitation Act cannot, despite the court’s assertion to the contrary, be the same as causation is different. That is, causation under title II of the ADA is “by reason of,” and causation under §504 the Rehabilitation Act is, “solely by reason of.” The term used by the court “on the basis of,” is actually not a title II or §504 of the Rehabilitation Act concept at all. Rather, it is found in title I and in title III of the ADA.

Hope everybody had a great Labor Day weekend. Today’s blog entry discusses the professional obligations associated with a person with a disability in litigation. I can’t tell you how often I get a call from a person, generally a couple of times a week, talking about how the court system is not accommodating their disability. Sometimes those calls include questions about whether their attorneys properly approached the court with respect to getting their disabilities accommodated. So, I thought I would talk about some of the issues that arise. As is typical with my blog entries, I have divided into categories: professionalism issues and takeaways. The reader is free to focus on either or both of the categories.

I

Professionalism Issues

  1. If a person with a disability seeks accommodations from the court, the first step would be to go through the court’s ADA/504 coordinator. However, sometimes the courts in an effort to maximize judicial immunity, have a judge acting in that role. So, if a judge denies a reasonable accommodation request, you definitely want to go on the record and object to that. Also, if you are going to appeal that decision, make sure everything is in place for that appeal to be properly heard. Finally, to maximize your chances of going after the judge for injunctive relief for constitutional violations, i.e. § 1983 (claims of procedural due process and/or equal protection), file a motion for declaratory relief to declare just what is the court’s obligations to accommodate the litigant per the ADA.
  2. If you are representing a person with a disability in litigation and you do not reasonably accommodate their disability with respect to your services or you do not advocate that your client’s disability be reasonably accommodated by the court, you may be facing legal malpractice claims, ethical claims, and even, if a criminal case, a claim of ineffective assistance of counsel (there are a group of people working on the proposition that the ADA requires a civil Gideon for persons with disabilities, but the courts are not having it yet).
  3. Legal malpractice exposure (litigation matter): the legal malpractice exposure comes from the elements of proving a legal malpractice claim. For a litigation matter, it varies from State to State, but generally it goes something like this: attorney owed the plaintiff a duty of due care arising from the attorney-client relationship; attorney breached that duty; and as a proximate result, the client suffered injury. An injury is a pecuniary injury to an intangible property interest caused by the lawyer’s negligent act or omission. Union Planters Bank, N. A. v. Thompson Coburn LLP, 402 Ill. App. 3d 317, 342 (fifth district 2010). Causation means means showing both that but for the negligence of the attorney, the outcome of the case would have been different (cause in fact), and foreseeability (legal causation, oftentimes also called proximate cause, mistakenly so in my opinion). Since the ADA has so many moving parts, showing that an error of the attorney would have led to a different result can be very difficult. Even so, I can see two areas where such a legal malpractice claim using the litigation elements may be viable vis-à-vis the ADA. They are: judicial estoppel, which I discussed in this blog entry, and a plaintiff attorney alleging that the major life activity being substantially limited is working. The major life activity of working is very difficult to prove because it means showing that the person cannot do a broad class of jobs (see this blog entry for example), and that can be very difficult to show. Relying on working as the major life activity is simply silly because with the amendments to the ADA, it is now much easier to show a substantial limitation on a major life activity, whether it be a life activity or a bodily function.
  4. Legal malpractice exposure (transactional matter but could also apply to litigation). For transactional matters, proving up a legal malpractice claim means showing what was described in paragraph 3 above, but causation with respect to cause in fact is a bit different. In a transactional matter, cause in fact, or actual cause, means had the undisclosed risk been known, he or she would not of accepted the risk and consented to the recommended course of action. Id. at 344. So, the reason this might be important in the litigation context is that if the person cannot follow the proceedings because of a lack of reasonable accommodations for their disability, how could they possibly discuss with their attorney the options that arise during the course of those proceedings? The two areas of malpractice that could be impacted by the transactional matter elements in addition to what was just discussed are: indemnification agreements when they are not phrased as reimbursement agreements; and where a defense attorney insists on a full return to work.
  5. Recently, the American Bar Association House of delegates passed Resolution 109 saying that it was unethical for an attorney to discriminate based upon a protected characteristic, including a disability. The phrasing of the rule with respect to what is discrimination is rather funny, but from reading the comments, it would seem that the intent of the rule would extend to disability discrimination, which can go beyond verbal or physical conduct. Interestingly enough, it is not a violation of this rule where a trial judge finds that peremptory challenges were exercised in a discriminatory manner. So, failure of an attorney to comply with the ADA, excluding the impermissible use of peremptory challenges, may lead to an ethical violation, assuming the various States adopt this rule. In a funny sort of way, the exclusion of peremptory challenges from the rule is an admission that they are used for discriminatory purposes, but that is another story…
  6. If an attorney is representing someone in a criminal matter and they do not advocate for reasonable accommodations/modifications for the client, they may be hit with a viable ineffective assistance of counsel claim per this case.

II

Takeaways:

  1. If you are a pro se litigant with a disability or are representing a person with a disability in court and the ADA/504 coordinator has proven to be of no help or the judge does his or her own thing, all of which results in a lack of reasonable modifications, consider filing a motion for declaratory relief to declare what accommodations/modifications are reasonable per the ADA. Doing it this way, preserves a 1983 action against the judge in addition to creating a record of disability discrimination in violation of the ADA. You might also want to take a look at this blog entry as well.
  2. If you are an SSDI attorney, make sure you advise your client of the risk of judicial estoppel with respect to future ADA claims.
  3. If you are a defense attorney or an in-house attorney, make sure you are not insisting on a 100% return to work.
  4. If you are doing transactional work and draft indemnity agreements with respect to ADA responsibilities, make sure the agreement is phrased in terms of reimbursement and not indemnification.
  5. If you are a plaintiff attorney, there is almost no reason why working should be alleged as the major life activity that is substantially limited. You are better off finding another major life activity as surely one exists.
  6. If you are representing someone with a disability in court, be aggressive in finding out what that person with a disability needs so as to be able to have meaningful access to the courts. Also, don’t forget about the effective communication rule. Failure to do this might result in legal malpractice and if a criminal case, result in a claim of ineffective assistance of counsel.
  7. Many States have a duty of competence. If we have learned anything from the 253 blog entries here on understanding the ADA, the ADA is incredibly complex. If you’re at all feeling out of your element with respect to an ADA case, get someone involved who can help with that.

As everyone knows, I keep a list of my favorite blogs in my blogroll section. One of those blogs on the list is Jonathan Hyman’s Ohio Employer’s Law Blog, An ABA Blawg 100 Hall of Fame Blog.  I highly recommend it. Jon has a very unusual perspective on labor and employment law. In a recent blog entry discussing a case from the Seventh Circuit, he posits that the Seventh Circuit in a recent decision may have killed McDonnell-Douglas Corp. v. Green. His blog entry got me thinking. So, I read both this Seventh Circuit decision, Ortiz v. Werner Enterprises, Inc., and reread McDonnell-Douglas. I wound up reaching the exact opposite conclusion. That is, far from killing McDonnell-Douglas, McDonnell-Douglas in the Seventh Circuit is the only paradigm that matters. Let me explain why. Before proceeding further, this blog entry as usual is divided into categories: Historical overview; McDonnell Douglas everywhere and convincing mosaic as a separate standard thrown out; and takeaways. The reader is free to focus on any or all of the categories.

I

Historical Overview

In McDonnell-Douglas, a 1973 decision written by Justice Powell involving violations of title VII of the Civil Rights Act of 1964 for racial discrimination, the court discusses the order and nature of proof for such actions. More specifically: plaintiff must establish a prima facie case; the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse action; and if the employer does that, the plaintiff has to be given a full and fair opportunity to demonstrate that the nondiscriminatory reason was in fact a pretext for the discriminatory decision. I have seen, for example here, McDonnell Douglas carry over to non-employment situations, such as Title II of the ADA, as well. After McDonnell Douglas, case law winds up evolving so that you have three different standards. First, with respect to indirect evidence, McDonnell-Douglas is the way to go. Direct evidence has a different system (see this blog entry for example), and then a third standard was developed, convincing mosaic. With respect to the direct and indirect evidence dichotomy, it is interesting that things evolved that way because while McDonnell-Douglas was an indirect evidence case, nothing in that decision suggests that McDonnell-Douglas is limited to indirect evidence. In fact, the term “indirect evidence,” doesn’t even appear in the decision.

II

McDonnell Douglas Everywhere and Convincing Mosaic as a Separate Standard Thrown out

In this section, we will explore the Seventh Circuit’s reasoning in Ortiz v. Werner Enterprises, Inc., to see why it is my conclusion that McDonnell Douglas is everywhere.

  1. The Seventh Circuit noted that the District Court treated each method as having its own elements and rules. However, these methods are just means to consider whether one fact (ethnicity in Ortiz), caused another and the methods are not elements of any claim.
  2. The District Court’s effort to shoehorn all evidence into two methods and its insistence that either method be implemented by looking for a convincing mosaic, detracted attention from the only question that matters, namely whether a reasonable juror could conclude that the plaintiff would have kept his job if he had a different ethnicity and everything else had remained the same.
  3. The use of disparate methods and the search for elusive mosaics has complicated and sidetracked employment-discrimination litigation for many years. In fact, in the Seventh Circuit, every member has disapproved both the multiple methods and the search for mosaics. So, to the Seventh Circuit, the time has come to jettison the diversions and focus analysis on the substantive legal issue.
  4. Convincing mosaic was never designed as a separate standard, rather it was supposed to be a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence. That particular case explained that all evidence is inferential and cannot be sorted into boxes. However, instead of persuading district judges and litigants to merge the direct and indirect methods into a unified approach, this particular case, Troupe v. May Department Stores Company, was understood by many to add a new test that had to be satisfied, convincing mosaic. How a mosaic could be a test rather than a mental picture never was addressed. For that matter, the question how such a legal test was rooted in the statute governing employment-discrimination cases was never addressed either. Therefore, convincing mosaic is not a legal test and opinions saying otherwise are overruled.
  5. In addition to the Seventh Circuit saying that convincing mosaic is not a legal test and overruling decisions saying it was, it went even further by saying that an employment-discrimination case is subject to summary reversal with respect to any decision that treats convincing mosaic as a legal requirement.
  6. The proper legal standard is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action. The evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself (or trying to figure out whether you get there by direct or indirect evidence). Evidence is evidence and relevant evidence must be considered while all irrelevant evidence disregarded. No evidence should be treated differently from other evidence because it can be labeled “direct,” or, “indirect.” After all, why have two tests if they consider the same information and answer the same question.
  7. Few discrimination cases are straightforward and usually involve factually complex and the sifting of ambiguous pieces of evidence. The direct and indirect framework does nothing to simplify the analysis. Instead, it complicates matters considerably by forcing parties to consider the same evidence in multiple ways and sometimes to disregard evidence that doesn’t seem to fit one method rather than the other. Accordingly, district courts have to stop separating “direct,” from “indirect,” evidence and proceeding as if they were subject to different legal standards.
  8. The Seventh Circuit has to accept its share of the responsibility because even as some panels were disparaging the “direct,” and “indirect,” approaches, other panels were circulating them as governing legal standards. Accordingly, to bring harmony to Seventh Circuit law, those cases are overruled.
  9. I usually don’t quote directly from a decision, but the importance of the following is so critical, that I will do so here: “One point of clarification may be helpful. The burden shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), sometimes is referred to as an “indirect,” means of proving employment discrimination. Today’s decision does not concern McDonnell Douglas or any other burden-shifting framework, no matter what it is called as a shorthand. We are instead concerned about the proposition that evidence must be sorted into different piles, labeled “direct” and “indirect,” that are evaluated differently. Instead, all evidence belongs in a single pile must be evaluated as a whole. That conclusion is consistent with McDonnell Douglas and its successors. With the rat’s nest of surplus “tests” removed from the law of the Circuit, we can turn back to Ortiz’s claim and his supporting evidence. Stripped of the layers of tests, our analysis is straightforward.”
  10. Since the opinion overruled two lines of cases in the Seventh Circuit, it was circulated before release to all judges in active service on the Seventh Circuit and none of them favored a hearing en banc.
  11. The Seventh Circuit for these reasons winds up saying that in light of what is now the proper standard with respect to the burden of proof, summary judgment was inappropriate and a trial was necessary.

III

Takeaways

  1. This decision will have a huge impact and not just on employment cases. As mentioned above, Title II cases have employed the direct and indirect distinctions as well.
  2. Convincing mosaic as a separate standard in the Seventh Circuit is dead. However, convincing mosaic as a metaphor for viewing the evidence is everything.
  3. Paragraph II9 above, to my mind, essentially says that McDonnell Douglas– without the direct and indirect evidence distinction and viewed through the metaphor of convincing mosaic,- is the only burden of proof paradigm that works. As mentioned above, no distinction between direct and indirect evidence is made in McDonnell Douglas.
  4. In the Seventh Circuit, a District Court decision from Wisconsin, Indiana, or Illinois focusing on indirect and direct evidence will run into serious problems on appeal. Same goes for any District Court decision utilizing convincing mosaic as a separate standard rather than as a metaphor to view the evidence.
  5. Part of the problem here is that unlike other Circuits, the Seventh Circuit does not have a system to deal with situations where panels start contradicting each other. In some Circuits where a panel starts contradicting another panel, it triggers automatic en banc review. Historically (it has been a while since I checked on this), that was not the practice in the Seventh Circuit, which explains why so many panels went so many different ways. It is also the reason why you see this panel saying that they ran the decision by the entire Seventh Circuit before issuing it. One wonders if this kind of decision wouldn’t lead to the Seventh Circuit adopting the approach seen in some other Circuits of triggering automatic en banc hearing when panels start contradicting each other, particularly when it happens often.
  6. This case is revolutionary in what it does, and I would expect an appeal to the U.S. Supreme Court for that reason.

 

In a recent blog entry, I discussed a 10th Circuit opinion that talked about just what is a service establishment. This blog entry talks about a similar issue, which is just what is a sales establishment? The case of the day essentially adopts the dissenting view of Judge Holmes in Levorsen, the case referenced above. As such, it makes you wonder whether there is not a split in the Circuits with respect to just what does it mean for a place of public accommodation to exist. I realize the issues are not exactly the same, since one involves sales establishments and the other involves service establishments. However, the applicable analysis is identical but with completely different outcomes. Therefore, one has to wonder whether the defendant in Levorsen have now increased its chances for an en banc rehearing and/or appeal to the U.S. Supreme Court.

Today’s case is Magee v. Coca-Cola Refreshments USA, Inc., a published Fifth Circuit decision. As is usual, my blog 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

Coca-Cola’s glass-front vending machines are self-service, fully automated machines dispensing bottles and cans of Coca-Cola sodas, as well as juices, energy drinks, and waters. They have been around since 2000 and are equipped with many different features including: the ability to accept payment from smart phones and other near field communication devices; wireless Internet capabilities; credit and debit card processing; motion sensing technology; and onboard computer systems. Even so, the vending machines lack any meaningful accommodation for use by the blind. In particular, the machines use an alphanumeric keypad. Such a keypad does not contain a tactile indicator differentiating between letters and numbers, but yet the users have to identify and input selecting codes of the beverage they wish to purchase. Of course, a blind user (the plaintiff suffers from macular degeneration and is considered legally blind), can’t do that since the selecting codes are printed in place below each beverage inside the machine and are visible to the machine’s glass front. It is also possible that the vending machines could be made accessible to the blind by doing any of several different things including: retrofitting the machine with an audio interface system and a tactile alphanumeric keypad; developing a smart phone application capable of displaying a non-visual representation of the contents and corresponding prices for the vending machine; or imprinting a nonvisually displayed toll-free hotline that the visually impaired person to call for assistance in purchasing a beverage. The plaintiff encountered the vending machines at East Jefferson General Hospital in Metairie, Louisiana, and at a bus station in New Orleans, Louisiana. He has regularly used both of those places and reasonably expects to use those places in the future. The plaintiff’s filed suit against Coca-Cola Refreshments alleging that they were violating title III of the ADA by not having a sales establishment accessible to him. He did not sue the bus station or the hospital.

II

Court’s Reasoning

In rejecting plaintiff’s claim that a sales establishment was present, the court reasoned as follows:

  1. 42 U.S.C. § 12181(7)(E) states that a place of public accommodation includes, “a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment.”
  2. Two principles are critical for assessing whether the vending machine is a sales establishment. The first is noscitur a sociis, which means a word is known by the company it keeps. Second, ejusdem generis, which means when a general word or phrase follows a list of the specific, the general word or phrase will be interpreted to include only items of the same class as those listed.
  3. The relevant portion of the statute uses the term “sales establishment,” following a list of retailers occupying physical stores.
  4. The Third, Sixth, and Ninth Circuits have recognized that every term listed in 42 U.S.C. § 12181(7) is a physical place open to public access. That is, they are actual, physical places where goods or services are open to the public, and places where the public get those goods or services. The court does note a split among the Circuits on this point as the First, Second, and Seventh Circuits have interpreted the term, “public accommodation” to extend beyond physical places.
  5. Although the term “establishment,” could possibly be read to include a vending machine, a vending machine is not like any of the listed examples in the applicable statute.
  6. A look at various dictionaries reveals that an establishment would not include a vending machine. The dictionaries consistently talk about places of business or residence with furnishings and staff when it comes to establishments.
  7. The United States Supreme Court, in a Fair Labor Standards Act case, has recognized that the term “establishment,” is normally used in business and in government as meaning a distinct physical place of business.
  8. Legislative history also backs up the use of noscitur a sociis and ejusdem generis. In particular, a House Report said that although not expressly mentioned, bookstores, video stores, stationery stores, pet stores, computer stores, and other stores offering merchandise for sale or rent are included as retail sales establishments. Another House Report notes that the category including a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or retail establishment is only a representative sample and that other retail or wholesale establishments selling or renting items include such things as: a bookstore; videotape rental store; or pet store, all of which are physical places and actual stores.
  9. The Department of Justice has noted that the category sales or rental establishments includes many facilities other than those specifically listed such as: video stores; carpet showrooms; and athletic equipment stores. Again, all of which are actual stores.
  10. Holding otherwise leads to an absurd result, though the Fifth Circuit didn’t say it quite that way. For example, the Department of Justice has said that a building with five or more sales or retail establishments is a shopping center or mall. Accordingly, if the plaintiff’s theory is correct, that would mean that any building containing five vending machines would qualify as a shopping center or mall, which is clearly not the intent of the various drafters. That Department of Justice guidance also refers to counters and large windows and check out aisles as special features for sales or rental establishments, which are clearly not applicable to vending machines.
  11. All of this is not to say that vending machines are not subject to various requirements under the ADA by virtue of their being located in a hospital or a bus station as both of those places are undoubtedly places of public accommodation per 42 U.S.C. § 12181(7)(F) and 42 U.S.C. § 12181(7)(G).

III

Takeaways:

  1. For the reasons stated by the court, it is curious why the bus station and the hospital were not sued instead of Coca-Cola Refreshments. If the vending machines are still in the hospital and the bus station, it would make sense for the plaintiff to immediately go after the hospital and the bus station.
  2. With respect to the hospital, since they take federal funds, the plaintiff will also have the option, assuming the vending machines are still there, of suing the hospital under § 504 of the Rehabilitation Act. It would also make sense to investigate whether the bus station takes federal funds. If the Rehabilitation Act is applicable, that opens up the possibility of damages, though that would involve meeting a high standard, in addition to attorneys fees and injunctive relief.
  3. One wonders why it was not argued that the vending machines were an establishment serving food or drink per 42 U.S.C. § 12181(7)(B), but even there, you would have to get around the “establishment,” language for the vending machines to come within coverage of that clause. For that, you might argue for adoption of the majority decision in Levorsen, which basically says the key is the adjective and not the noun. That is, an establishment is simply a place carrying out a service or in this case, a sale.
  4. The court also specifically references the split among the Circuits with respect to whether a place of public accommodation extends beyond physical spaces.
  5. As mentioned above, we now have two United States Court of Appeals cases discussing places of public accommodations reaching diametrically opposite conclusions, albeit discussing different categories. One wonders if that doesn’t set up a Circuit court split or at a minimum, as mentioned above, increase the chances of an en banc hearing in Levorsen.
  6. Common sense says to me that this would be a very difficult case to win on appeal, assuming the United States Supreme Court would take the case in the first place, since vending machines are involved and it involves a logical stretch from the statutory language. It is also worth noting that there was no dissent in Magee. That said, as mentioned above, this case does, to my mind, increases the possibility of a rehearing en banc in Levorsen or if that does not happen, an appeal to the United States Supreme Court on a Circuit court split theory.