In order to get damages under title I of the ADA, you have to show intentional discrimination. In order to get damages under title II of the ADA, you have to show deliberate indifference. But what does intentional discrimination mean with respect to a regarded as claim? Must there be discriminatory animus or can there be an innocent misperception and that is enough? Also, with respect to a regarded as claim, do you have to show that the person who was regarded as having a disability was able to perform the essential functions of the job (assuming a title I context). The answer to that question is not as straightforward as you would think because the ADAAA makes clear that a person who is regarded as having a disability is not entitled to reasonable accommodations. That leads to the question of whether the analysis that goes along with determining whether a person can perform the essential functions of the job is still in play in a regarded as claim case.

A case that answers this question is Nelson v. City of New York, 2013 WL 4437224 (S.D. N.Y. August 19, 2013). In this case, the plaintiff was a police officer with the New York Police Department. She was placed on medically restricted duty in August 2000 as a result of swelling in her hand and thumb. In September of that year she was injured in a car accident while on duty and suffered injuries to her knees shoulder and back causing her to undergo several surgeries. Two years later, the plaintiff contacted the New York Police Department early intervention unit and from their things became a big mess. They diagnosed her with passive suicidal ideation without intent or plan, a diagnosis which the plaintiff denied. She then went ahead and applied for an ordinary disability pension and saw a psychologist for two years. The medical board originally denied the ordinary disability pension but eventually two years after originally applying for an ordinary disability pension benefit, they granted her the ordinary disability pension based on a diagnosis of somatization disorder, a diagnosis that neither the plaintiff nor any of her physicians believed she had. She then retired from the force with an ordinary disability pension. In December 2005, the plaintiff began applying for reinstatement and her psychologist wrote a letter saying that her mental status would not interfere with her work as a police officer if she was fully functional physically. Also, her psychologist strenuously disagreed with the medical board’s diagnosis. In 2008, the police pension fund notified her that she would no longer considered disabled by them and was eligible to apply for reinstatement to the New York Police Department. Therefore she underwent a psychological evaluation and met with a psychologist. That psychologist reviewed the documents of plaintiff’s psychologist and said (the court used the term, “purported”), that she also considered the results of the psychological tests given to the plaintiff as part of her evaluation. She then concluded that the plaintiff was not fit to be a police officer due to her significant psychological history.

In saying that the plaintiff’s case could proceed against the non-individual defendants because questions of fact existed, the court reasoned as follows:

1. Since there was abundant evidence that two doctors advised against reinstating the plaintiff based upon her extensive psychological history, the plaintiff was perceived as disabled and the City’s decision not to reinstate her was the result of a perceived mental impairment.

2. A regarded as claim does not require invidious discriminatory intent in order to be actionable. The court adopted the EEOC interpretive guidelines on this point as well as a decision from the Third Circuit all of which said that even an innocent misperception based on nothing more than a simple mistake as to the severity or even the existence of an individual’s impairment can be sufficient to satisfy the definition of a perceived disability under the ADA. Accordingly, plaintiff had demonstrated that the City decided not to rehire her because it regarded her as disabled.

3. With respect to essential functions of the job, the court cited to a law review article saying that the regarded as provision of the ADA is intended to benefit only those erroneously perceived to be disabled and who can perform the essential functions of that job. When the claims of the litigants were sorted out by the court, the court believed that what was really at issue was whether the plaintiff was a direct threat to herself or others. This led to the question of who had the burden of proof of showing whether a direct threat existed. The court said that the Second Circuit had not spoken directly on this issue but had said that the employer generally bears the burden of demonstrating that the plaintiff poses the direct threat to herself or others. That said, ultimately who bears the burden of showing direct threat didn’t matter to the court, because the court said that it could not conclude as a matter of law that the plaintiff posed a direct threat to herself and others. In other words, the City could not demonstrate beyond genuine dispute that the plaintiff was a direct threat to himself or others.

4. With respect to proving up direct threat, the court looked to the EEOC regulations on that. In particular, the factors needing to be shown to show a direct threat include: the duration of the risk; nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. 29 C.F.R. § 1630.2(r). The court said that a genuine dispute of material fact existed as to the nature and severity of the potential harm with respect to the plaintiff rejoining the force and the likelihood that the harm would occur. A genuine dispute of fact also existed as to whether she could return to the Police Department and perform the essential functions of a police officer. Also, the court noted that the plaintiff’s psychologist after assessing the plaintiff in 2007, reached the conclusion that she no longer met the criteria for histrionic personality and no longer suffered from posttraumatic stress disorder. Further, the plaintiff’s psychologist suggested that many of the plaintiff’s past symptom were largely the result of an undiagnosed thyroid cancer and an undiagnosed specific kind of autoimmune disorder. Finally, the court found plaintiff’s psychologist to be highly credible.

5. The court said that the plaintiff’s psychologist statements about those with mild histrionic disorders being able to serve as police officers were credible. In fact, the plaintiff’s expert said that if the Police Department was really relying on that diagnosis being disqualifying, they would never be able to fill out their police force.

6. The report that the police department relied upon focused on the plaintiff’s psychological history rather than on the impressions of the plaintiff from their interview and the plaintiff’s performance on various psychological tests that she had administered, or even the more recent findings of the plaintiff’s psychologist. In fact, the report explicitly said that the primary area of concern is the plaintiff’s psychological history and not her current psychological profile. In fact, the report did not even devote one sentence to the impressions about the plaintiff’s current psychological profile and the report seemed to imply that the plaintiff’s history rendered her per se unqualified to serve as a police officer regardless of her current psychological profile. The endorsement of this particular report also ignored the plaintiff’s current psychological profile.

Takeaways: The first thing we can take away from this case is that determining essential functions of the job may involve getting to the root of a medical diagnosis and expert testimony can be critical in sorting that out. Second, if an employer is going to deny reinstatement to someone, that termination needs to be based upon the person’s current mental or physical condition and the employer needs to be wary of over relying on the plaintiff’s past mental or physical condition. The question is whether they can do the essential functions of the job with or without reasonable accommodations at the time they apply or seek reinstatement and not as they were in the past. Third, if an employer is going to argue direct threat, that assessment must be based on a reasonable medical judgment relying on the most current knowledge and/or the best available objective evidence ( see also Chevron v. Echazabal 536 U.S. 73 (2002)). Fourth, if the plaintiff is arguing a regarded as claim, the defendant needs to be aware that authority exists for saying that a regarded as claim can proceed even in the absence of discriminatory animus and where there is nothing more than an innocent misperception of an individual’s impairment. Finally, whether a person can perform the essential functions of the job is a relevant question when a plaintiff pursues a regarded as claim.

I do not normally blog more than once a week. You would be surprised how time-consuming writing a blog entry really is. Also, I don’t like to have blog entries that cannibalize each other. Rather, I like to have a blog entry get a chance to stand on its own for a while. That gives me a better idea as to what the interest might be in a particular subject matter. That said, with the final rules issued by the Office of Federal Contract Compliance Programs dealing with affirmative-action of persons with disabilities, I felt compelled to make an exception in this case. Also, I refer the reader again to the disclaimer on my blog site so that the reader keeps in mind that the opinions expressed here are my own and do not necessarily represent the opinions of any organization that I may be associated with or any clients that I may represent or advise.

Turning to the matter at hand, back in February 2012, I wrote a blog entry on the Office of Federal Contract Compliance Programs proposed rules dealing with affirmative-action and persons with disabilities. They have now issued the final rules.

The promise of the Americans with Disabilities Act was that it would improve the workforce participation of persons with disabilities. It hasn’t happened. Therefore, the federal government is beginning to go further. The final regulations mandate affirmative-action for persons with disabilities for every government contractor that has 50 or more employees and a contract of $50,000 or more. They also amend the nondiscrimination rules so as to be consistent with the Americans with Disabilities Act Amendments Act. The nondiscrimination rules apply to all government contracts and subcontracts in excess of $10,000 for the purchase, sale or use of personal property or nonpersonal services (including construction). Nonpersonal services include, but is not limited to: Utility, construction, transportation, research, insurance, and fund depository.

A detailed look at the final regulations would be way beyond the scope of this blog. However, we can highlight. First, the final regulations are divided into five parts, A-E plus two appendices. Part A, B, D, E , apply to everyone. Part C, the affirmative-action obligations, as noted above , only applies to government contractors with 50 or more employees in a contract of $50,000 or more. Second, the substantive changes in the regulations are really straightforward. The changes are made to be consistent with the Americans with Disabilities Act Amendments Act and will not be a surprise to anyone familiar with the regulations implementing that act issued by the Equal Employment Opportunity Commission. Third, the final regulations only apply to employment activities within the United States and not to employment activities abroad. Finally, a mandated equal opportunity for workers with disability statement must be used and must be in the form required by the Office of Federal Contract Compliance Programs. Interestingly enough, the very first paragraph of that form uses language that was in the Americans with Disabilities Act and was stricken from the Americans with Disabilities Act as amended. More specifically, the first paragraph of this statement says, “the contractor will not discriminate against any employee or applicant for employment because (emphasis added) of physical or mental disability…” However, the Americans with Disabilities Act Amendments act deleted the word, “because” in favor of, “on the basis of.” The difference is more than academic as the change to, “on the basis of” allows for the argument that a plaintiff may be able to use the mixed motive line of attack in a case. Whereas, the, “because” language has been held to prohibit a plaintiff from being able to use the mixed motive line of attack. See Serwatka v. Rockwell Automation Inc., 591 F.3d 957 (Seventh Circuit 2010).  As mentioned previously in my blog entry dealing with the proposed regulation, it seems that the office of federal contracting compliance is using “because,” and “on the basis of,” as synonyms. For reasons mentioned in a variety of blog entries that I have written on before, I am not sure that that is an argument that withstands scrutiny.

For those contractors subject to the affirmative-action rules, some of the highlights include. First, an employer can ask a person to voluntarily self identify as an individual with a disability at the pre-offer stage as well as after receiving a job offer. The pre-offer stage refers to when the employer is actually considering a job seeker for employment. The federal contractor also has to regularly invite current employees to voluntarily self identify on a regular basis, at least every five years. With respect to self identification in general, the Office of Federal Contract Compliance Programs has a prescribed form that is to be used.

Second, federal contractors subject to the affirmative-action requirements are mandated to take affirmative-action to advance in employment qualified individuals with disabilities at all levels of employment, including the executive level.

Third, the information collected for affirmative-action purposes is to be kept in the data analysis file and not in other places. While affirmative-action is mandated, the process must ensure that individuals with disabilities are not stereotyped. This is not a small concern. Back in college, I did work for the state of Illinois with respect to section 504 to Rehabilitation Act and was involved in assessing whether the affirmative-action program was working. What we found was that the program was not working because when a person saw that a person had a disability on their form, they immediately went into stereotype mode and wrote the person with a disability off. That was many years ago and society was different. While we are many years later, that issue hasn’t gone away. Accordingly, the federal contractor needs to think about an affirmative-action plan design that can get around this problem.

Fourth, organizations subject to subpart C of the regulations get a year to become compliant.

Fifth, federal contractors have a three-year recordkeeping requirements with respect to the data they collect.

Sixth, the Office of Federal Contract Compliance Programs notes that it is a best practice for electronic or online job application systems to be compatible with assistive technology (such as screen readers and voice dictation). I would argue that this would be required by title I of the ADA and § 504 of the Rehabilitation Act in any event.

Seventh, an employer subject to the affirmative-action requirements, must consider an applicant with a disability for any available position they qualify for within the company when the position that they did apply for is unavailable.

Eighth, specific data collection requirements are mandated.

Ninth, in the proposed regulations, there were elaborate reasonable accommodation procedures that needed to be followed. In the final regulation, the elaborate reasonable accommodation requirements have been dropped. Instead, those requirements so to speak are now just reference points and can be found in two different appendices that the federal contractor can look at for guidance.

Tenth, utilization goals are set. That is a percentage, 7 %, is set as a goal for the government contractor to meet with respect to persons with disabilities being in their workforce. Furthermore, it is broken down by specific jobs rather than as an aggregate. The exception to that is if the federal contractor has 100 or less employees than the 7% utilization goal becomes one that applies to the entire organization rather than to specific job groups.

Eleventh, employers subject to the affirmative-action requirements, are encourage to voluntarily develop and implement programs that provide priority consideration to individual disabilities in recruitment and/or hiring.

Twelfth, the equal employment opportunity clause, which is quite extensive, is not required in the contract but an Office of Federal Contract Compliance Programs prescribed equal employment opportunity statement is.

Thirteenth, the federal contractor is given the ability to put a person with a disability into the affirmative action statistics even where that person with a disability doesn’t volunteer or self identify as having a disability. The office of Federal contract compliance programs says that this has been done for years with respect to other protected groups and that it should be no different for persons with disabilities. That may be true, but those other protected group do not deal with the issue of whether a person is perceived as having a disability. The Office of Federal Contract Compliance Programs recognizes that problem. In their view, affirmative-action data goes into a separate file, a data analysis file, and is kept confidential and away from personnel files. Also, the office of Federal contract compliance programs notes that perceiving a person as having a disability is not enough to create a problem under the ADA as there also has to be intentional discrimination. The Office of Federal Contract Compliance Programs says that you can put such a person in the disability affirmative action statistics if you are not guessing or speculating or assuming that the person has a disability or if the disability is obvious. I understand where the Office of Federal Contract Compliance Programs is coming from. However, if a person is being put into the disability statistics without their consent, and then that person isn’t hired, it would seem that an argument could be created that there would be some linkage between being perceived as having a disability (being put in the disability affirmative-action pile), and not getting the job.

Fourteenth, the federal contractor needs to have a schedule for periodic review of all physical and mental job qualification standards.

Fifteenth, the federal contractor must do affirmative-action program audits and document actions to comply with the audit findings.

Finally, the final regulations have provisions in there for dealing with what must be in the complaint, a process of conciliation, and when a show cause order will be sought by the Solicitor of Labor with respect to any enforcement proceedings.

Again, none of this is meant to be all-inclusive (the final regulation and its commentary go on for over 200 pages). However, this is a start. Anybody needing specific advice in this area should seek competent legal counsel.

Here’s the thing. Did the Office of Federal Contract Compliance Programs slit their own throat with respect to their discussion of the 7% being a utilization goal rather than a quota? An argument can be made that they did. Consider the following.

First, the Office of Federal Contract Compliance Programs states, “an affirmative-action program is more than a paperwork exercise and includes reasonable objective quantitative analysis and internal auditing and reporting systems.” That means the imposition of a substantial burden on the employer is intended by these regulations.

Second, the Office of Federal Contract Compliance Programs states that the 7% utilization goal is not a quota and it does not require a disability-based decision making. Failure to reach the 7% utilization goal results in no fine, no penalty, and no sanctions. Rather, the goal is just a tool to measure effectiveness and only triggers a critical review of the contractor’s employment practices. It goes on to say that the 7% goal is rationally related to a legitimate governmental interest and that persons with disabilities are in the rational basis class.

Given this, how does it all play out. As regular readers of my blog know, the classification of persons with disabilities under the equal protection clause is a big interest of mine, which we have discussed many times. Further, how a person with a disability is classified under the equal protection clause may extend beyond sovereign immunity. For example, in one blog entry , I discussed how a governmental entity defended on the ground that the law went beyond the ability to enforce the equal protection clause of the 14th amendment and therefore was invalid. In my opinion, the language contained in the comments discussing why the final regulations are what they are with respect to the classification in equal protection jurisprudence of persons with disabilities sets up a constitutional challenge to affirmative-action under the Rehabilitation Act, especially in terms of how these regulations carry it out. As we have discussed previously in other blog entries, the lower the classification, the less likely a comprehensive scheme to address the problem will be upheld. Here, the Office of Federal Contract Compliance Programs is saying that persons with disabilities are in the lowest classification. The proposed regulations impose quite a substantial burden on employers, which include by the way state entities (the equal protection clause applies to States and to the federal government through the Fifth Amendment due process clause). Accordingly, since we know that persons with disabilities are in the rational basis class under title I of the ADA when it comes to employment, an argument exists under Board of Trustees of University of Alabama v. Garrett that this scheme is too comprehensive to be proportional to the harm being addressed (employment discrimination against persons with disabilities), to be consistent with enforcing the 14th amendment to the U.S. Constitution. Please note, I am not saying that the 7% quota is a good or bad idea, rather I am laying out some of the highlights of the regulations and then positing that under the law as it exists, a credible argument can be created that this entire scheme is unconstitutional as it is arguably not a proportional enforcement of the equal protection clause under the 14th amendment. The Office of Federal Contract Compliance Programs would have been better off arguing (which would be a difficult argument in light of the Board of Trustees of the University of Alabama v. Garrett decision), that persons with disabilities were not in the rational basis class. As we have discussed before, it isn’t a given that persons with disabilities are in a rational basis class to begin with, and under the case law as it currently stands, the equal protection class that persons with disabilities are in is going to vary depending upon the facts. A response that the Office of Federal Contract Compliance Programs has to this is that the affirmative-action program just a matter of data analysis and doesn’t involve disability-based decision-making. I understand that. However, one wonders how an affirmative-action program would work in terms of reaching its goal if disability-based decision-making, albeit one in favor of persons with disabilities, was not happening.

Summing up: For those contractors with the federal government that have more than 50 employees and a contract of $50,000 or more, there is a lot here. Further, I only scratched the surface and the contractor and/or their attorneys would do well to thoroughly read these final regulations to understand all of their obligations. Also, I definitely look for a constitutional challenge to these regulations saying that the affirmative-action requirements of the Rehabilitation Act, particularly when these regulations are added to it, are a response that is not proportional to the harm seeking to be redressed and therefore are unconstitutional.

Consider: Employee/volunteer/Intern… with a disability is sexually harassing his or her coworkers. The disability is such that the employee/volunteer is unlikely to stop. The hiring authority terminates the employee/volunteer and the employee/volunteer sues the hiring authority for disability discrimination. This sounds very much like what could’ve been the case with the former Mayor of San Diego, but he never claimed having a disability and he wound up resigning after reaching an agreement in mediation. In fact, these facts are not the Mayor of San Diego at all, rather they are from an actual case, McElwee v. County of Orange, 700 F.3d 635 (2d Cir. 2012).

In McElwee, the plaintiff served as a volunteer, starting in 1996, at Valley View Center for nursing care and rehabilitation, a federally funded entity operated by Orange County. The plaintiff had pervasive developmental disorder, a disorder on the autism spectrum. His IQ was 79, lived with his mother, never had a job, and will always require assistance in managing money and completing non-routine tasks. In November 2009, Valley View received a complaint from employee saying that the plaintiff was sexually harassing her. An investigation ensued, and that investigation revealed a total of five women reporting that the plaintiff had behaved inappropriately towards them and a security guy reporting that he has seen the plaintiff bothering nursing students and visitors. Further, when the plaintiff was confronted about the allegations, he exhibited disturbing behaviors. As a result, in December 2009, Valley View terminated the plaintiff. The plaintiff then filed suit under title II of the ADA (title I was not a possibility since he was not an employee. Title II was, since the place where he volunteered was run by the county), and the Rehabilitation Act. He alleged that the dismissal was wrong and also that he was not reasonably accommodated.

The Second Circuit was having none of it. First, the Second Circuit noted that workplace misconduct is a legitimate and nondiscriminatory reason for terminating employment even when the misconduct is related to a disability (emphasis mine).

Second, the Second Circuit said that a requested accommodation that excuses past misconduct is unreasonable as a matter of law.

Third, the Second Circuit noted that whether a person was protected under the ADA and the Rehabilitation Act meant that a person had to have both a disability as well as be qualified. A person is a qualified individual with a disability under title II of the ADA if he meets the essential eligibility requirements for participating in that program with or without reasonable accommodations. That means knowing the essential eligibility requirements for the program. The Second Circuit said that the essential eligibility requirements of volunteering at Valley View meant that a person not only has to be mentally and physically able to perform the task but also be emotionally able to conduct himself in an appropriate manner when dealing with resident, supervisors and other staff members. In other words, it would be fair to say that being able to interact with others with or without reasonable accommodations/modifications was an essential eligibility requirement of participating in the program.

Fourth, the court said that the plaintiff’s claim was as much about getting his past misconduct excused as it was about requesting a future accommodation. The court noted that the plaintiff admitted that he followed and stared at female employees and that his conduct was objectively unreasonable. Plaintiff also admitted that when confronted about his behavior he became obsessed and made disturbing statements and gestures. The Second Circuit said that such inappropriate behavior was a legitimate nondiscriminatory reason for dismissing plaintiff from the volunteer program even if the behavior resulted from his disability. The court said that such a holding was consistent with the mandate of the ADA which is all about putting people with disabilities on an even playing field as those without disabilities but not giving people with disabilities any kind of preference.

Fifth, the plaintiff suggested two accommodations. The Second Circuit said both of those suggestions were unreasonable as a matter of law. First, plaintiff said that Valley View should have spoken to a therapist or encourage him to get therapy to behave more appropriately in the workplace. However, the Second Circuit said that accommodation was unreasonable as a matter of law because the evidence was such where even if the accommodation had been offered, he still would not have been able to meet the essential eligibility requirements of the volunteer program anytime in the near future.

Sixth, the other accommodation was for Valley View to work with the women who complained about his behavior. That is, demand that others be more tolerant. The Second Circuit found this unreasonable as a matter of law as well because requiring others to tolerate misconduct is not the kind of accommodation the ADA contemplates. Also, the court said that employees, volunteers, and visitors should not be required to tolerate harassing behavior and that allowing such behavior would constitute an undue hardship.

Takeaways: There are several important things you can take from this case. First, there is a big difference between the disability and any conduct that is associated with it. In other words, workplace misconduct is a legitimate and nondiscriminatory reason for terminating employment even when the misconduct is related to a disability. That said, that does not mean that an employer/program/hiring authority has the ability to refuse to deal with the disability or refuse to accommodate the disability. Second, depending upon the job, program, or activity, interacting with others could very well be an essential function of the job, program, or activity. Certainly, interacting with others would be an essential function of the job for any politician. Third, a person has to have a disability as well as be a qualified individual in order to be protected under the ADA. Fourth, there may be certain suggested accommodations that will be unreasonable as a matter of law, such as an accommodation that simply excuses past misconduct or an accommodation that tolerates harassment in the workplace. Finally, this is a case where the hiring authority/program/employer focused on the conduct rather than on the disability. However, an employer/program/hiring authority does want to be careful so that they do not focus on disability rather than on the conduct (See Miners v. Cargill Communications Inc. 113 F.3d 820 (8th Cir. 1997), where an employer ran into trouble because they focused on the perceived disability of alcoholism rather than on the misconduct of drinking on the job)).

In a prior blog entry, I discussed a situation where the police intentionally aggravated a person with a disability pre-existing condition eventually leading to that person’s death. The court in that case held that the police force could be liable for violating title II of the ADA. This particular blog entry will once again look at liability for violating title II when it comes to a police response. It will also look at liability that the police force may have under other theories, such as § 1983 (a claim for violating a person’s constitutional rights).

In this case, Glover v. City of Wilmington, 2013 WL 4035253 (D. Del. August 7, 2013), an unpublished decision, the plaintiff was a passenger in her own vehicle when her car was struck by a drunk driver. When an officer arrived on the scene, the plaintiff informed the officer that she was not driving the vehicle when the collision occurred and that she was having a panic attack. Another officer subsequently arrived on the scene and she told that officer the same thing. The officer believing that the symptoms of plaintiff’s panic attack showed she was intoxicated administered a portable breath test, which showed a blood-alcohol concentration of 0.000. Plaintiff did tell one of the officers she had taken Percocet the day before and that it might still be in her system. One of the officers asked the plaintiff whether she wanted an ambulance and the plaintiff refused. That officer then told her she was being arrested for refusing medical care. She was then handcuffed and pushed to the ground violently causing her to sustain deep cuts on her knees. The plaintiff was then transported to the police station and imprisoned for several hours while she continued to have panic attacks. She was later charged with resisting arrest, but the state in the end filed a nolle prosequi thereby terminating the prosecution. The plaintiff sued both the City of Wilmington and one of the officers for violating title II of the ADA, § 504 of the Rehabilitation Act, fourth amendment malicious prosecution, fourth amendment unlawful detention, fourth amendment use of excessive force, 14th amendment equal protection, a Monell claim, failure to provide medical care, and state malicious prosecution. Both defendants filed a motion for summary judgment.

The court wound up granting summary judgment as to some of the claims and denying it as to to others. The court got there in the following way. The first thing the court had to do was figure out whether the police officer had qualified immunity from suit. Law enforcement officers get qualified immunity from suit when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In making that determination the relevant question is whether a reasonable officer could have believed that his or her conduct was lawful in light of the clearly established law and the information in the officer’s possession. The court concluded that the officer did not have probable cause to arrest the plaintiff for DUI because based upon the information that the plaintiff had told the officer that arrived prior to him as well as the information the plaintiff had told him, no probable cause existed because there was no probable cause that she had driven the vehicle. However, that isn’t the end of the matter, because the court goes on to say that the officer did have enough information to have a reasonable suspicion that the plaintiff was driving under the influence. After all, the plaintiff owned the car and she had the car key shortly after the accident. Reasonable suspicion gives the officer the right to take the plaintiff to the police station for further investigation. However, Delaware law says that such a period of detention cannot exceed two hours and she was in custody for more than four hours, which violated Delaware state law. Accordingly, the court held that the officer was not entitled to qualified immunity on plaintiff’s § 1983 claim.

The court then moved on to federal and state malicious prosecution claims. With respect to malicious prosecution under both federal and Delaware state law the elements are the same. Those elements include: 1) the initiation of a criminal proceeding; 2) the criminal proceeding ending in the plaintiff’s favor; 3) the proceeding being initiated without probable cause; 4) the defendant acting maliciously or for a purpose other than bringing the plaintiff to justice; and 5) the plaintiff suffering deprivation of liberty consistent with the concept of seizure as a consequence of the legal proceedings. The only issue was whether the criminal proceeding ended favorably for the plaintiff. On this, federal and state law differ. Under federal law, nolle prosequi does not result in a favorable decision for the plaintiff so to speak unless the reason is indicated for the nolle prosequi. On the other hand, under Delaware law, nolle prosequi does mean a favorable decision for the plaintiff. Accordingly, the court granted summary judgment with respect to the federal malicious prosecution claim but denied it with respect to the malicious prosecution claim based on state law.

With respect to the unlawful detention claim under § 1983 (under § 1983, an arrestee has a claim for false imprisonment based on detention from an arrest where the police lacked probable cause to make that arrest), the court denied defendants motion for summary judgment because, as mentioned above, a jury could reasonably conclude that the officer did not have probable cause to arrest the plaintiff for DUI, and while the officer did have reasonable suspicion, as mentioned above, he did not have the authority to detain her for more than two hours.

Turning to excessive force, the plaintiff’s arguments carried the day but the plaintiff still lost. The court noted that both the plaintiff and the person who was the driver of the vehicle said that the officer pushed the plaintiff after she was handcuffed and that the officer was rough with putting the cuffs on. Assessing the facts, the court believed that a reasonable jury could include that the plaintiff was not a serious threat to the officer or to others and that it could be reasonably concluded that the officer pushed the plaintiff without provocation while she was handcuffed and suffering from a panic attack. In short, it would be reasonable for a jury to conclude that the officers reaction to the plaintiff was not warranted. Even though the plaintiff’s argument carried the day, the court wound up granting summary judgment to the defendant on this claim because the plaintiff had waived her claim since it was not addressed in her responsive brief to the officer’s motion for summary judgment.

Turning to the ADA and § 504 of the Rehabilitation Act, the court denied the officer’s and the city’s motion for summary judgment on both claims. The court reasoned as follows. First, the court said that the ADA simply doesn’t apply to a police officer’s on the street response to a reported disturbance prior to the police having the situation under control. That said, once the situation is under control the police do have a duty to accommodate that disability. Under the facts of this case, the situation was secured before any of the problematic action took place. With respect to the vicarious liability of the city (holding the city liable for the actions of the officer), the plaintiff was able to show that the officer knew or should have known that she was disabled; that she was arrested because he confused her disability with criminal activity; and that she had a disability. Determining whether all of these elements are satisfied (the court said enough evidence existed to show that the officer should have known the plaintiff was a person with a disability and also that the officer mistakenly arrested her), necessarily assumes that the officers are given the resources to figure out how to deal with persons with disabilities in a variety of situations. The court said that they were simply unconvinced the evidence offered by the City, containing conclusory descriptions of training, was sufficient to show training meeting the minimal standard that could be reasonably said to allow officers to have an understanding of what they need to know in order to make informed judgments while performing their jobs.

Finally, the court granted the defendants motion for summary judgment with respect to a failure to provide medical care (no evidence was submitted that she requested medical treatment after she was taken into custody or that any such request was denied), and it also denied the Monell claim because while there certainly was a lack of training that is not the same thing as saying that the city from on high had a policy of carrying out unconstitutional discrimination.

Takeaways: So what does this case tell us? First, it says that there can be a myriad of consequences where a police force takes action against a person with a disability and that either leads to a wrongful arrest and/or failure to accommodate. In addition to violating title II of the ADA or §504 of the Rehabilitation Act, there may be constitutional and state law claims, such as what was seen in this case, filed as well. Second, police forces need to be trained in how to deal with persons with disabilities. It would be a good idea if such training included actual role-playing rather than just lectures. Failure to have such training may result in personal liability to the officer as well as in vicarious liability to the officer’s employer. Third, the police also need to be trained on just what are their legal obligations under the Americans With Disabilities Act (title II), and § 504 to Rehabilitation Act.

Finally, police forces still have some slack. For example, until the scene is secured, the police force has the ability to do what it needs to do. Also, the police may have more freedom from liability if it is not their own actions involved but rather is a situation as what was the case in Gipson v. Popeye’s Chicken and Biscuits, _F. Supp. 2d_, 2013 WL 1737208 (N.D. Ga. April 22, 2013), which dealt with the police erroneously interpreting the law as it applies to a person with a disability and a private entity. While this distinction may be something that a court would accept, on a preventive level, it would certainly behoove the police force to train its personnel on the obligations of title III entities with respect to persons with disabilities. After all, why take the chance that this distinction will be followed by a court considering the expense of litigation?

Back in 1997, I wrote an article for the Florida bar Journal discussing the relationship between the Individuals with Disabilities in Education Act and the Americans With Disabilities Act. I have had the good fortune to see that article cited numerous times in various law review articles. If I were to update that article today, I would most certainly want to include K.M. v. Tustin Unified School District _F.3d_, 2013 WL 3988677 (9th Cir. August 6, 2013).

This case involved two students, both deaf, who wanted communication access real-time transcription translation services in the classroom so that they could access their educational programming without undue strain and consequent stress. Both students had their requests for such service to be included in their Individual Education Plan (IEP) denied by the school district. Both students exhausted their administrative remedies as required whenever a person subject to the Individuals with Disabilities in Education Act wants to file a § 504 and/or Americans With Disabilities Act claim. The District Court granted summary judgment to the school district saying that a valid IEP satisfied the school district’s § 504 obligations. It also said that § 504 and title II of the ADA were substantially similar statutes. Finally, it said that a valid IEP also satisfied title II of the ADA.

The Ninth Circuit disagreed with the District Court and how it reached its conclusions. Therefore, it reversed the grant of summary judgment and remanded the case back to the District Court for further proceedings. In reversing the District Court, the Ninth Circuit reasoned as follows. First, the Ninth Circuit began by talking about the statutory background of the various laws. With respect to the Individuals with Disabilities in Education Act, that law requires schools to make available to children with disabilities a, “free appropriate public education” tailored to their individual needs. With respect to a child who is deaf or hard of hearing, the team putting together the IEP is required to consider the child’s language and communication needs, opportunities for direct communication with peers and professional personnel in the child’s language and his or her way of communication, academic level, and full range of needs, including opportunity for direct instruction in the child’s language and way of communication. The team putting together the IEP also has to consider whether the child needs assistive technology devices and services. Finally, the Ninth Circuit notes that the Individuals with Disabilities in Education Act is heavy on process but only has a very modest substantive component to it. In other words the IEP that is developed only has to be reasonably calculated to enable the child to receive educational benefits. That is, an IEP is presumptively valid so long as it is reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.

Second, the ADA while imposing less elaborate procedure requirements, establishes very different substantive requirements that are obligatory for public entities. The ADA (title II), as we know, prohibits a qualified individual with a disability from being excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or being subjected to discrimination by any such entity by reason of disability. The ADA specifically says that with respect to title II that the Department of Justice has the authority to issue regulations implementing title II of the ADA, and the court said that those regulations control unless they are arbitrary, capricious, or manifestly contrary to the statute.

Third, the Ninth Circuit proceeds to talk about how the Department of Justice in implementing title II, formulated one regulation, the “effective communication regulation,” (28 C.F.R. § 35.160), that spells out the communication-related duties public entities have towards persons with disabilities. Under that regulation, public entities have to take appropriate steps to ensure communication with applicants, participants, and members of the public with disabilities are as effective as communication with others. They also must furnish appropriate auxiliary aids and services when necessary in order to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the public entity. Just what are auxiliary aids and services? The definition of auxiliary aids and services in the regulation includes real-time computer-aided transcription services and it also forces the public entity to give primary consideration to the request of the individual with disabilities. All of which goes far beyond the requirements of the Individuals with Disabilities in Education Act. The court does note that public entity has the defense of undue burden and/or fundamental alteration of the program or activity but those defenses require a fairly high bar to achieve. Finally, the court summarized the relationship between the Individuals with Disabilities in Education Act and the ADA as being one where the Individuals with Disabilities in Education Act sets the floor of access to education for children with communication disabilities while title II of the ADA and its implementing regulation require public entities to take steps to not only make existing services accessible but make those services equally accessible to people with communication disabilities so long as no undue burden or a fundamental alteration of the program occurs.

Fourth, the Ninth Circuit notes that Congress made clear that the Individuals with Disabilities in Education Act does not prevent other additional constitutional federal statutory claims children with disabilities may have so long as, as mentioned above, administrative remedies through the Individuals with Disabilities in Education Act process are exhausted first.

Fifth, the Ninth Circuit said that the District Court got confused with a prior line of cases when it held that compliance with the Individuals with Disabilities in Education Act necessarily meant compliance with § 504 of the Rehabilitation Act. The Ninth Circuit said that its prior case law did no such thing. Rather, the prior case law said that provision of a free appropriate public education under the Individuals with Disabilities in Education Act satisfies the school district’s provision of a free appropriate public education under § 504 of the Rehabilitation Act, but that does not mean that particular line of cases precluded liability where other theories are involved, in this case the effective access communication regulation.

Sixth, the court dealt with causation. This particular discussion may in fact be the part of the decision that will have the biggest impact on title II ADA jurisprudence. It is also one that might be overlooked considering the overall context of the case and it shouldn’t be. More specifically, the Ninth Circuit noted that the Rehabilitation Act and the Americans With Disabilities Act (Title II) were significantly different from each other with respect to causation. In particular, the Rehabilitation Act requires that a person with a disability show the discrimination was solely by reason of their disability. Whereas, title II of the ADA only requires that the person with a disability show the discrimination was by reason of the disability. Therefore, the difference between the two statutes means that title II of the ADA establishes a motivating factor standard for causation for liability whenever two or more possible reasons for a decision exist. We have talked about mixed motive before on several different occasions, and I find this discussion by the Ninth Circuit in this case extremely significant. In particular, this reasoning gives plaintiffs the opportunity to say that even though the remedies for title II of the ADA are keyed into the Rehabilitation Act, that does not mean the causation standard for the two laws are the same even if the remedies are.

Seventh, while it is true that Congress said that the regulations implementing title II of the ADA needs to be consistent with the regulations implementing § 504 of the Rehabilitation Act, that consistency did not extend across the board to all § 504 matters. That is, Congress did not mandate that title II of the ADA regulations had to be consistent with § 504 regulations dealing with free appropriate public education.

Eighth, the Ninth Circuit said that after reviewing the statutory regulatory text dealing with free appropriate public education and the title II of the ADA communication requirements, you wound up in different places in several respects. First, the Ninth Circuit held that schools can be required under the ADA to provide services to deaf or hard of hearing students that are different or in addition to the services required by the Individuals with Disabilities in Education Act. Further, the ADA, unlike the Individuals with Disabilities in Education Act, mandates that a public entity give primary consideration to the request of the individual with disabilities. Second, the providing of additional services to deaf or hard of hearing students under title II of the ADA is mandatory unless it presents an undue burden or a fundamental alteration to the program or activity. Third, the effective communication regulation duly promulgated by the Department of Justice pursuant to their regulatory authority mandates that a person with a disability be given an equal opportunity to participate in and enjoy the benefits of the school’s program, a quite different animal than what is required by the Individuals with Disabilities in Education Act.

For all these reasons, the court held that the failure of an Individual with Disabilities in Education Act claim does not prevent a title II claim grounded on another theory, in this case the effective communication regulation.

Takeaways: We can take several things away from this case. First, beware of the over specialization of lawyers. That is, as lawyers, we are very specialized. However, sometimes that specialization means that other laws that very much impact on the situation may be missed or not taken fully into account. It also means that nonlawyers who are used to dealing with one set of laws may not realize that their other laws out there that they have to deal with as well. Accordingly, K-12 systems and their lawyers need to be aware that the Rehabilitation Act and the Americans With Disabilities Act give students with disabilities and their advocates additional options beyond just those of the Individuals with Disabilities in Education Act. Second, plaintiffs have been given a huge opportunity here to use this case to argue that whenever a claim under title II of the ADA is involved, causation is a motivating factor calculus rather than a but for calculus, especially where more than one cause is involved, which is usually the case.

Title I of the ADA requires that before a plaintiff can go to court they must first exhaust administrative remedies first. That means receiving a right to sue letter from the EEOC and filing your claim with the EEOC or an equivalent state agency within the requisite time period. It also means giving the EEOC or the equivalent state agency sufficient notice in the claim as to what you are expecting the EEOC to investigate. Failure to give that notice can subject the plaintiff to a failure to exhaust administrative remedies argument even if the plaintiff has received a right to sue letter. This was precisely the issue in Agnew v. Achievement Services of Northeast Kansas, Inc., 2013 WL 3895316 (D. Kan. July 29, 2013). In this case, the plaintiff filed an EEOC charge and neglected to check the retaliation box, though she did check the disability discrimination box. After receiving the right to sue letter, the plaintiff filed a claim with the United States District Court of Kansas alleging disability discrimination and retaliation. By failing to check the retaliation box, a presumption was created that the plaintiff was not asserting a claim represented by the box not checked. That said, the court also said that if the plaintiff could show that the narrative established sufficient facts for a prima facie case for retaliation than the presumption was rebutted. In particular, her claim stated:

“I was employed by respondent as a residential supervisor from approximately 1989 to December 5, 2011, when I was terminated. I had informed respondent of my condition and in November 2011 requested a reasonable accommodation based on my medical restrictions. While I was able to follow my restrictions for a time, I was then terminated soon after. I believe I was denied a reasonable accommodation and terminated based on disability, in violation of the Americans with Disabilities Act as amended.”

The court found that this language was sufficient to put everyone on notice that a retaliation claim was involved. In particular, the narrative shows: that she suffered an adverse employment action; that she was alleging that her termination was based on disability and came soon after her request for reasonable accommodation; and that a causal connection existed between the protected activity and the adverse action due to the timing between her request for reasonable accommodation and when she was terminated (one month). Accordingly, the court found that the narrative portion of her filing with the EEOC was sufficient to set forth a prima facie case of retaliation thereby rebutting the presumption against exhaustion, which existed because she did not check the box for retaliation. Thus, the court denied the motion to dismiss.

Takeaways: What this case illustrates is that if you are a plaintiff with a disability discrimination case, the better option may be to seek legal counsel first before filling out the EEOC claim. If a plaintiff has already filed a charge with the EEOC and then retained an attorney, the attorney after reviewing the facts, may want to seek, if he or she feels it necessary and is able to do so, to amend the EEOC charge. It also means that the EEOC charge should be written broadly enough so that there is greater flexibility when it comes to the complaint to be filed later.

In a previous blog entry, I talked about a case that illustrated what not to do if you are a place of higher education seeking to dismiss a student with a disability from your program. This particular blog entry will briefly talk about another case involving a medical school and then explore the concept of ADA compliance auditing and what such an audit might encompass when it comes to higher education.

The case is Argenyi v. Creighton University, 703 F.3d 441 (8th Cir. 2013). In this case, the plaintiff had a serious hearing impairment and was accepted into medical school at Creighton University. Before enrolling, he requested specific accommodation from Creighton for his hearing impairment, which were denied. Once in medical school he repeatedly renewed them during his first two years saying that he was unable to follow lectures, participate in lectures and to communicate with patients. What is interesting is that the person decided to enroll in this medical school even though going in he knew that the medical school had rejected his requested accommodations.

More specifically, from the age of one until the age of 18, the plaintiff wore hearing aids and relied on cued speech to help function in the hearing world. He never learned sign language. In the eighth grade, the plaintiff began using communication access real-time transcription, which transcribes spoken words into text on a computer screen, in real time. Before starting his undergraduate studies, the plaintiff received a cochlear implant in his right ear. While an undergraduate, Seattle University provided him with communication access real-time transcription for his lectures and a cued speech interpreter for the lab courses. He graduated from college with a 3.87 GPA. Before starting medical school, the plaintiff received a bilateral cochlear implant. Also, prior to starting medical school, plaintiff had his otolaryngologist write to the medical school saying that the plaintiff would benefit from close captioning as well as communication access real-time transcription for his lectures, a cued speech interpreter for labs, and an FM system for small learning groups of the students or fewer. There was a series of back-and-forth between the plaintiff’s medical team and the University with respect to the accommodations necessary for the plaintiff with the plaintiff’s team saying that the plaintiff needed access to visual cues for everyday communication in education including: Close captioning on videos and film, real-time captioning for lectures and discussions, and speech reading cued for one-on-one interactions. The medical school simply wasn’t willing to go that far. Instead, they offered the plaintiff FM listening system only, which he tried and which did not work for him effectively. After that didn’t work, and in response to the plaintiff’s medical team, the medical school only offered the plaintiff enhanced note taking services. The plaintiff had his medical team actually test him with respect to the FM system and found that the FM system was actually making things worse for him and not better. Since Creighton provided no further support services during his first year in medical school, the plaintiff borrowed $53,000 to pay for the communication access real-time transcription service himself. Since the school denied the computer access real-time transcription in his second year as well, the plaintiff had to take out a loan to pay for that as well, totaling $61,000. In his second year, the school refused to allow the plaintiff to use an interpreter even if he paid for one himself. Somehow, the plaintiff passed his clinical and other courses in his second year. However, it all by proved too much, and the plaintiff took a leave of absence pending resolution of the lawsuit. At the District Court level, the University won and the plaintiff appealed. The University also appealed with respect to seeking its costs. Unfortunately, for the University, the Eighth Circuit had other ideas.

The court in reversing and remanding the case to the District Court reasoned as follows. First, the Eighth Circuit said that the District Court erred when they said that the plaintiff’s affidavit was unsupported by other evidence. The Eighth Circuit said that the plaintiff’s affidavit was backed up by numerous other pieces of evidence and therefore, could not be deemed to be unsupported.

Second, the court noted that both the ADA and the Rehabilitation Act require the provision of necessary auxiliary aids and services to individuals with disabilities. Turning to the case law, the Eighth Circuit said that term required that a person be given meaningful access to a University’s program and activities.

Third, the meaningful access standard means that aids and services are not required to produce the identical result or level of achievement for persons with disabilities and those without disabilities, but aids and services must afford the person with the disability equal opportunity to gain the same benefit. The court believed that such a standard was consistent with the purpose of title III of the ADA as well as with § 504 of the Rehabilitation Act.

Fourth, the Eighth Circuit said that the District Court applied the wrong standard when it said that the standard was whether the plaintiff was effectively excluded from the place of public accommodation and not whether the plaintiff had been given meaningful access. The Eighth Circuit said that the effective exclusion standard was inconsistent with the purpose of the ADA and the Rehabilitation Act. Instead, the ADA and the Rehabilitation Act require the medical school to consider how its educational programs are used by those without disabilities and then take reasonable steps to provide people with disabilities with a like experience.

Finally, in a footnote, the Eighth Circuit said that on remand, Creighton could submit evidence of the costs of the plaintiff’s requested auxiliary aids and services for determination of whether providing them would impose an undue burden on the University. This particular footnote is very interesting because it is one of the few situations that I have seen where the possibility of a financial undue burden is in play. Just because the Eighth Circuit has put it in play does not mean that the University on remand would be successful. Particularly so, if the entire operations of the medical school are looked at with respect to determining whether an undue burden exists.

In short, for all the reasons above the Eighth Circuit said that a reasonable fact finder could determine that the plaintiff was denied an opportunity to benefit from medical school equal to that of his classmates without disabilities and reversed and remanded the District Court’s summary judgment for the defendant.

Before moving on, on July 19, 2013, on remand, the United States District Court for Nebraska denied Creighton University’s motion for partial summary judgment with respect to plaintiff’s claim for compensatory damages and it also denied Creighton University’s motion to strike plaintiff’s jury demand. (2013 WL 3790962, D. Neb. July 19, 2013). The District Court held that a question of fact existed as to whether Creighton failed to provide auxiliary aids necessary to ensure that the plaintiff have meaningful access to the education and training that the medical school offered. The District Court also held that a question of fact existed as to whether the University acted with deliberate indifference with respect to the plaintiff’s federally protected rights.

Being a deaf person myself, albeit one that functions entirely in the hearing world with the use of lip reading and technologically advanced hearing aids, it is obvious from reading the case that the medical school simply did not understand what is involved with being deaf and having to function in the hearing world. If someone had been involved in the process that had an excellent understanding of how a deaf person needs to function in the hearing world and what would have to happen to make that so, the whole process may have been different. All this brings up the point that places of higher education really need to do ADA compliance auditing to make sure that their programs and activities are in compliance with the ADA.

So what might an ADA compliance audit look like? What would it cover? Here are some things to consider:

1. Is the faculty trained on the requirements of the ADA/Rehabilitation Act?
2. If the faculty distributes materials in their classroom, is a system in place to make those materials accessible to the person with a disability.
3. Has the institution’s policies and procedures been reviewed to ensure that persons with disabilities have meaningful access to the institution’s programs and activities?
4. Does the institution’s office of disability services take an active role in working with persons that provide services/instruction to students so as to promptly and effectively resolve disability related concerns of the students?
5. Is the office of disability services the main point of contact on issues related to ADA/§ 504 compliance for persons involved in class instruction at the institution?
6. Is faculty trained on when to get the office of disability services involved?
7. Has each program within the institution determined its essential eligibility requirements. Has the institution ensured that those requirements do not screen out persons with disabilities?
8. Does the office of disability services follow-up with instructors of students with known accommodation letters to ensure that the faculty has made appropriate arrangements with respect to exams and projects? Of course, this assumes that the student with a disability has taken the modification/accommodation letter to the Professor/instructor in the first place.
9. Does the institution have a system for timely responding to accommodation/modification requests that are not anticipated?
10. Does the institution have an ADA/§ 504 grievance procedure and is that grievance procedure triggered any time the office of disability services does not fully resolve the student’s complaint.
11. Is everyone within the institution aware of the ADA/§ 504 grievance procedure?
12. Does the institution regularly train its faculty, administration, and staff members on the requirements of the ADA/§ 504? What are the qualifications of that trainer? Does the institution have a knowledgeable source (in-house or outside), to turn to with respect to ADA/§ 504 matters.
13. Does the institution have a § 504/ADA coordinator?
14. Has the institution assessed its Internet site and any offering that it has in the electronic medium to ensure accessibility for persons with disabilities? (For example, are they accessible to people who use screen readers and voice dictation technology?)
15. Does the University have a system in place to ensure that any time it buys a product or technology that the product or technology is accessible to persons with disabilities?
16. Has the University when it comes to buying a product made its best effort to ensure that the product is accessible to persons with disabilities and has it also entered into an indemnification agreement with the vendor of that product so as to allow indemnification if that product is not accessible? Interestingly enough, the Department of Justice in a settlement with Louisiana Tech insisted in its settlement agreement that Louisiana Tech ensure that such indemnification clauses are present whenever they buy a product or take on new technology. Whether such an indemnification clause would be upheld is, as we have seen elsewhere, debatable.
18. Does the institution have an office that provides resources to the institution’s stakeholders with respect to ensuring that webpages, instructional materials, and other technology are accessible to persons with disabilities? Has that personnel received the proper training to accomplish that?
19. Do any reasonable accommodations/modifications offered ensure that a student has meaningful access to the institution’s programs and activities?
20. Has the institution considered how its educational program is used by those without disabilities, and has it taken reasonable steps to provide people with disabilities with a like experience?
21. If a reasonable accommodation/modification is denied, has the institution determined that such a request either constitutes an undue burden or a fundamental alteration in the nature of the program/activity/business?
22. If a public entity, were a self-evaluation plan and transition plan ever performed? If so, have those planned been reviewed? If not, has the institution begun that process? (See 1-21 for things that the institution would want to review for example).

Believe it or not, this list is not meant to be exhaustive but only illustrative.

In a comment to a prior blog post, I mentioned a case, Gipson v. Popeye’s Chicken and Biscuits, where a court, the Northern District of Georgia, found no ADA liability when a police officer not knowing the ADA, told a person who otherwise had a right to be in a restaurant with his service dog that he had to leave that restaurant. That court said since the police officer was not acting in a biased manner, there could be no liability. However, what happens if the police do take actions that do not account for the disability and wind up causing the person harm? Is there ADA liability?

A case exploring this question is Wingard v. Pennsylvania State Police, 2013 WL 3551109 (W.D. Pa. July 11, 2013). The facts of this case are particularly egregious and you can read the opinion to see the details. For our purposes, the court itself towards the end of the opinion does a great job of summarizing the facts. In particular, state troopers were called to a house where they found the victim mentally impaired, anxious, and reacting to medication for his Crohn’s disease. That said, he was unarmed and seated on a couch talking to his mother. Rather than accommodate the victim’s mental illness by modifying their approach and providing support until medical treatment arrived, the defendant taunted him until a physical confrontation ensued, and then left him unconscious, in cardiac arrest, and failed to commence CPR. The victim wound up dying and a wrongful death suit ensued alleging violations of title II of the ADA. In particular, in the amended complaint, it was alleged that the Commonwealth and State police failed to properly train troopers to have peaceful encounters with persons with mental and physical disabilities. It was also alleged that they failed to establish proper policies for handling such encounters. As a result of all this, the victim suffered injuries and death. The complaint also alleged that the victim was entitled to the benefit of the lawful exercise of police powers, including the right not to be subjected to unlawful use of force and the right to emergency care.

For plaintiff attorneys looking to hold police forces accountable for not accommodating persons with disabilities, this decision has some great language in it. First, the court noted that the defendants in this case conceded that a duty of reasonable accommodation in the course of a police response existed and that the duty can be breached where police are aware of the disability and then respond in such a manner so as to cause the person to suffer greater injury or indignity than what would otherwise occur if they had accommodated the disability. This is extremely broad language. For example, certainly the police by not enforcing the law properly in the restaurant case linked to above, caused the person with a disability to suffer greater indignity. Thus, the question becomes, if the Western District of Pennsylvania was faced with the same case as the Northern District of Georgia, our restaurant case, would they reach the same conclusion? The answer to that question is maybe. While it is true that the person in the restaurant case in the Northern District of Georgia faced greater indignity because the police did not apply the law properly, such a plaintiff would still have to get around causation. As we have mentioned elsewhere, when it comes to title II matters, the remedies are hooked into § 504 of the Rehabilitation Act. See 42 U.S.C. § 12133. Also, title II uses the phrase “by reason of,” and not “on the basis of,” with respect to causation. See 42 U.S.C. § 12132. Therefore, the police in the situation of the Georgia case noted above, could argue that being ignorant of the law was not the same as discriminating against a person by reason of their disability. Therefore, it is possible that the Western District of Pennsylvania would reach the same conclusion at the Northern District of Georgia with respect to the restaurant case.

Second, the court said that where first responders are both aware of the disability and can safely modify police practices to accommodate the disability reasonable accommodation of the disability is required.

Third, if an individual suffers from mental illness but is not presenting a danger to himself or anyone else, the duty of reasonable accommodation could well encompass a requirement on the part of the police to better train its police officers so that they recognize disturbances likely to involve persons with mental disabilities and to investigate and arrest that person in a manner that reasonably accommodates the disabilities. One such accommodation would be to have the police refrain from taking aggressive action up until the point the plaintiff presents an immediate threat to human life.

Takeaways: If this case does anything, it says that the police would do well to audit their practices and procedures to ensure that such practices and procedures are in compliance with Title II of the ADA. Also, if the police force truly wants to prevent exposure to ADA liability, it would be a good idea for the police force to not only be trained on their obligations under title II of the ADA but also to be trained so that they understand the obligations of places subject to title III of the ADA as well. That way, they would have a better understanding of what to do in situations where a title III entity wrongfully discriminates against a person with a disability and then calls in the police to enforce their wrongful decision. By doing this, the police force would be able to avoid the problem of having argue that no causation exists in the restaurant case. After all, it seems to be a very fine line between not enforcing the law properly and acting by reason of the disability, especially where the police officer is on notice that potential disability discrimination is involved. Finally, training the police on the legal requirements of title III of the ADA would also prevent the argument that the police was not properly trained to have peaceful encounters with persons with disabilities. After all, persons with disabilities are oftentimes quite aware of their rights and should a police officer wrongfully tell a person with a disability what their rights are, an explosive situation could be created.

The ABA Journal is, again, seeking nominations for its list of the 100 best legal blawgs, the “Blawg 100.” The nomination process is simple. Go here and answer a few simple questions touting your favorite blawgs. In addition to this one, there are many good blogs out there. For example, the ones that I use frequently, I have listed in my blog roll.

Turning to the question of the week. Let’s say an employer has someone who is 4’10” tall. That someone gets on the employer’s nerves and the employer retaliates by telling her that she has to drive a car that she can’t possibly drive due to her height. She of course can’t do that. Therefore, the employer fires her. She sues alleging disability discrimination because she is only 4’10” tall. Does she survive a motion to dismiss? Will she survive a motion for summary judgment?

The above was pretty much the scenario in the case of McElmurry v. Arizona Department of Agriculture (Docket number:CV-12-02234-PHX-GMS, D. Ari. June 11, 2013). In this case, the plaintiff worked at a lab in Yuma, Arizona, and her job consisted of screening traps set by other employees in the field. It wasn’t a happy place to work, and the plaintiff attempted to raise health concerns with the person who oversaw the program she worked in. Those concerns were not taken seriously, and people who complained of health problems were sent to the field of fired regardless of their physical condition. They also had their workers compensation claims denied. Things went from bad to worse. In the end, her supervisor assigned her to fieldwork despite the fact that the plaintiff said that she would not be able to drive the vehicle due to her small stature. Once she was in fieldwork, she suffered an injury. Eventually, the plaintiff was fired and was told that since Arizona’s a right to work State, they could fire you anytime they wanted without reason. She filed suit under both the Age Discrimination in Employment Act and under the ADA. The defendant filed a motion to dismiss.

The defendant’s motion to dismiss was based on two grounds. First, sovereign immunity prevented a lawsuit involving the Age Discrimination in Employment Act. Second, since all the plaintiff was, was short, being short was not a disability under the ADA. With respect to the Age Discrimination in Employment Act claim, the court held that the state was protected by sovereign immunity. With respect to the ADA claim, the court relied on the EEOC’s interpretation of 29 C.F.R. § 1630.2(h) that said their view (EEOC), of the term “impairment,” does not include physical characteristics such as eye color, hair color, being left-handed, height, weight, or muscle tone that are within normal (emphasis mine) range and are not the result of a physiological disorder. The court said that a motion to dismiss was too soon to throw out the case because her height was alleged to be outside the normal range. Also, the court said that it was plausible that height in some contexts could substantially limit one or more of the major life activities of the individual. Accordingly, the defendant’s motion to dismiss on the ADA claim was denied.

One of the things that academicians (which I used to be), share with attorneys who counsel in the ADA (which I am), is that they are always looking for cases that push the envelope. Academicians do that to move the legal paradigm. Whereas, people who counsel in the ADA, do that to get a sense of where the law might be heading and to suggest ways to head off future lawsuits. That said, in a case such as this, it’s important to delve deeper to see just what are the risks, in this case to the employer. Once you do that, I do believe that an employer has many ways to defend claims such as this.

First, it is curious as to why sovereign immunity was raised successfully with respect to the Age Discrimination in Employment Act, but does not appear to have been raised with respect to the ADA. That seems to be a bit odd. After all, under Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), sovereign immunity with respect to title I of the ADA is very much in play. On the surface, it seems there may have been a missed opportunity here unless, Arizona did not waive its sovereign immunity with respect to the Age Discrimination in Employment Act but did with respect to the ADA (I have not done the research on that, but this would seem very unlikely to be true).

Second, there is a roadmap for successfully defending against a claim of height being a disability where that height is not due to any physiological disorder or condition. That roadmap would work like this. First, the ADA, even as amended, doesn’t define what a physical or mental impairment is. Second, the EEOC in their final regulations does define what a physical impairment means. They say that a physical impairment (emphasis mine), is, “ any physiological disorder or condition, (emphasis added) cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.” 29 C.F.R. § 1630.2(h)(1). The way this regulation is phrased, it would seem clear that a physical impairment must be a physiological disorder or condition. It would also seem clear that “physiological,” applies to both “disorder,” and, “condition,” and that some kind of impairment must be involved. Third, it is true that in the appendix the EEOC says that impairment might include a physical characteristics such as height that is outside the normal range and not the result of a physiological disorder (see above), but anything that appears in the appendix is an interpretation of the regulation put out by the EEOC and since that interpretation itself did not go through the formal rulemaking process, the court is free to ignore it.

Lesson learned: there are several things we can take away from this case. First, just because an employer is in a right to work state, that does not mean they are free to ignore applicable antidiscrimination laws. Second, on the defense side, if a defendant has the opportunity to do so, it should argue sovereign immunity. Sovereign immunity is very much in play with respect to title I of the ADA. Third, if you are an employer, and you get sued claiming discrimination under the ADA because a person was short, you are going to want to assess whether that person’s height is due to a physiological condition or disorder that is the result of an impairment versus whether he or she is just short. Also, you are going to want to argue, that the “outside normal range,” language contained in the appendix is not something that the court should follow since that language did not go through proper rulemaking process. Finally, employers need to have systems in place so that their employees are trained so that the kind of environment detailed in this case does not occur and when it does, it is not tolerated.

What happens if a state court system discriminates against a person with a disability? That was the situation in Prakel v. State of Indiana, 2013 WL 3287691 (S.D. Ind. June 28, 2013). In this case, a deaf individual (while the court refers to him as hearing impaired, I use the term deaf because you don’t think of a hearing impaired person knowing and using ASL as the primary means of communication), requested a sign language interpreter services for hearings in which his mother was a party but he was not nor was he a witness. He attended his mother’s hearing but there was no sign language interpreter provided. Defendant again requested interpreter services for an upcoming hearing before the same judge who then set a hearing to determine whether the County Court would provide interpreter services. However, no interpreter was present at that hearing. Further, the clerk’s office for that court refused to communicate with him in writing. Another hearing for his mother was set and he again requested interpreter services and once again the superior court refused to accept his relay call and also did not provide an interpreter for that hearing. He took it further by calling the chambers of a magistrate judge who told him that the circuit court did not provide interpreter for spectators. As a result, his mother wound up paying for interpreter services for her May 2010 hearing before the magistrate judge. The National Association for the Deaf then got involved and sent a letter requesting reimbursement for the interpreter services paid by the mother. The judge in the circuit court did not respond nor for that matter did the Chief Justice of the Indiana Supreme Court respond to a similar letter from the National Association for the Deaf. Suit was then brought alleging violation of title II of the ADA and section 504 of the Rehabilitation Act and seeking reimbursement for the mother’s expenditures on interpreter services, compensatory damages and attorneys fees.

This is all straightforward enough so far. Title II of the ADA applies to programs and activities of a governmental entity. Under title II of the ADA and § 504 of the Rehabilitation Act, reasonable modifications to programs and activities must be made unless to do so would constitute an undue burden or fundamentally alter the nature of the program or activity. Certainly, the court system is a program and/ or activity for which both title II of the ADA would apply to. Also, the State of Indiana court system takes federal funds and therefore, they are subject to § 504 of the Rehabilitation Act as well. The problem here is not in that the rules apply (hard to believe that an undue burden or a fundamental alteration could be shown here), but in how you go about proving the case considering the various privileges and immunities that the defense may trot out. Let’s look at some of those.

First, there is sovereign immunity, which we have talked about numerous times in various contexts elsewhere. That principle says that a sovereign cannot be sued without their consent. The two sovereigns that we have in the United States are the federal government and State governments. States are free to waive their sovereign immunity. However, you need to check your jurisdiction because it is possible that a State will not waive its sovereign immunity for all purposes with respect to the ADA. For example, Illinois is a State that has waived sovereign immunity with respect to the ADA but only for limited purposes. Thus, if you have a State that has not waived their sovereign immunity for situations involving access to the courts, a State may well defend on the grounds of sovereign immunity. If you are a plaintiff you can get around this in two ways. First, it is possible for a State to be forced to waive its sovereign immunity if Congress says so and if it is consistent with the enforcement clause of the equal protection clause to the U.S. Constitution. Fortunately, when it comes to the courts, a forced waiver is likely to be upheld because Congress has waived sovereign immunity with respect to the ADA and because access to the courts is a fundamental right. See Tennessee v. Lane, 541 U.S. 509, 522, 524, 529, 531, 534 (2004). The other avenue is to make sure that you also sue under § 504 of the Rehabilitation Act as there are court opinions out there that say receipt of federal funds waives sovereign immunity.

Second, once you get by sovereign immunity, you have other obstacles to consider as well. In this situation, the plaintiff wanted to depose sitting judges who were or may have been involved in the process of deciding not to accommodate the plaintiff. If you are going to depose an attorney or a sitting judge, you’re going to have to show that the information sought is unavailable from any other source, is relevant and central to the case and is unprivileged. In this situation, the court found that a magistrate judge and two judges were the only sources of information on whether the Dearborn courts complied with title II of the ADA and § 504 of the Rehabilitation Act when they refused the accommodation because in Indiana, County level courts have complete autonomy with respect to making decisions about accommodations for spectators. Further, the evidence showed that the Dearborn County Court did not provide official guidelines for judges and how to evaluate such requests.

With respect to the necessity of relevance of the information sought, the plaintiff said that they needed to question the two judges and the magistrate judge about the Dearborn courts procedures, whether they were on notice of plaintiff’s request and whether they attempted to obtain interpreters. The court said that they agreed with the plaintiff that the subject matter in which they sought to depose the defendant was absolutely essential to proving their claims of intentional discrimination and that the issues of the Dearborn court and Indiana’s respective title II of the ADA and § 504 policies and procedures was information that could not be obtained in any other way and therefore, was relevant and necessary. Finally, the court did conclude that deposing the former Chief Justice of the Indiana Supreme Court imposed too great a burden in light of the relevant information sought because there were no statewide standards for ensuring compliance with title II of the ADA or § 504 the Rehabilitation Act and that ensuring compliance with those laws did not fall within the job of the Chief Justice. Instead, the court believed that a representative of a county division, was better equipped to testify as to the state of Indiana’s policies and procedures regarding title II of the ADA and § 504 of the Rehabilitation Act regarding accommodations and reimbursement requests. Also affecting the calculus of why the former Chief Justice should not have to testify, were the facts that the case was not a class action, minimal damages were sought, and that the Chief Justice had never been a party to the case.

Finally, the State of Indiana said that the information sought could not be obtained because of the deliberative process privilege. Think of that privilege the same way you might think of as a work product privilege. That is, the mental impressions, thoughts and reasoning of judges in deciding how they ruled are privileged information. However, plaintiff successfully argued that the privilege did not apply because the subject matter of the deposition was to be focused on factual matters: policies and training for title II of the ADA and § 504 of the Rehabilitation Act; the notice each defendant had of the request for an interpreter and reimbursement and the action, if any they took; and the role the division plays in providing sign language interpreter to Dearborn courts.

In the end, to conserve judicial resources, the court did hold that one of the judges could fairly represent the Circuit Court with respect to discussing title II of the ADA and § 504 policies and procedures and how those policies were applied to plaintiff’s request to the Dearborn courts and that it wasn’t necessary for the magistrate judge to get involved. The court also said that unless the State of Indiana took the position that they had a unified court system, that another judge, who would represent the Superior Court and not the Circuit Court, would need to testify as to the same thing. With respect to the state of Indiana, the court said that a person had to be designated who would then be able to discuss the State’s title II of the ADA obligations and its § 504 policies and procedures.

The need for preventive systems and concluding thoughts:

First, if this case illustrates anything, it is the need for preventive systems. The State, Superior Court, and Circuit Courts, should have a § 504 compliance system in place as well as a compliance system in place for title II of the ADA matters (since all these entities have more than 50 employees, by law they are required to have a § 504/ADA coordinator designated and a § 504/ADA grievance procedure). If that system had been in place or utilized, including proper training of course, then in the end, all the judges and administrators being deposed would not have been necessary. It is hard to believe on the merits (both § 504 and title II of the ADA), that an interpreter should not of been provided in the first place. Further, the cost of providing the interpreter was very little. Certainly, the costs of defending this case cost many thousands of dollars more than if they had simply furnished the interpreter services (where, as mentioned above, a very strong argument, if not a slam dunk, suggests that the applicable law required such interpreter services to be furnished).

Second, it is certainly appropriate to sue a State court system if they discriminate against persons with disabilities in terms of how they carry out their operations. If this case illustrates anything else, it is the merits of the case may be one thing but proving it up may be quite another. That is, the plaintiff may have to overcome a reticence to have certain people testify as well as the assertion of sovereign immunity and numerous other privileges. In the right situation, such as this case, those immunities and privileges can be overcome but that doesn’t make it easy to do so.