Our blog entry of the day reminds me of the situation where a team wins the football game but loses a key player in the process. I thought of that when reading EEOC v. Walmart Stores East, L.P., here, decided by the Seventh Circuit on August 27, 2024. As usual, the blog entry is divided into categories, and they are: facts; Walmart’s knowledge of plaintiff’s disability and the interactive process; sufficiency of evidence for punitives and compensatory damages should not be reduced; need to revisit the district court’s injunctive relief order; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The person the EEOC went to court for, Marlo Spaeth (referred to in this blog entry as plaintiff for simplicity purposes), has Down syndrome. She spent 15 years working for Walmart on the 12 PM to 4 PM shift typically working up to four days per week, and never had any performance problems. In fact, over that time, plaintiff earned positive annual performance evaluations and steady raises. In none of her reviews was plaintiff cited for attendance problems.

 

November 2014, Walmart’s home office in Bentonville, Arkansas, issued a directive that managers were to cease making manual adjustments to computer-generated staff work schedules in the absence of a business justification for doing so. The computerized work schedules were intended to ensure that staffing met the needs of the store based on customer traffic patterns. Prior to this announcement, store managers had possessed the discretion to alter such schedules as they saw fit: indeed, managers at the Manitowoc store had exercised this discretion in Spaeth’s case in order to maintain her regular noon to 4:00 p.m. work schedule. (That modified schedule had never presented a problem for the domestics department to which Spaeth was assigned so far as Personnel Coordinator Becker was aware. R. 245 at 129, 131–32.) Under the new regime, although it was still possible to manually alter a computer-generated work schedule, managers no longer had the discretion to make such changes unilaterally; any such adjustments were subject to “a strict approval process.” R. 247 at 141. Moreover, if an employee’s declared work availability (as disclosed on a form that employees were required to complete) did not match the scheduling generated by the computer system, he or she was given no hours at all. This very thing happened to Spaeth in the immediate aftermath of the policy change: Her work availability form (completed in 2006) indicated she was available only from 12:30 to 4:00 p.m.3, and the computer did not schedule her for any shifts. When Spaeth complained, she was advised that she would now need to accept a 1:00 to 5:30 p.m. shift, which she did.

 

Persons with Down syndrome have a great difficulty of adjusting to changes. Accordingly, plaintiff had incredible difficulties in adapting to her new schedule. She frequently expressed to Walmart employees a desire to return to road schedule. Her work performance suffered significantly and she would clock out before her time ended on the new schedule. Eventually, Walmart terminated her for attendance issues and had her escorted from the store. After the termination, plaintiff’s sister and plaintiff’s mother subsequently met with several managers to discuss plaintiff’s termination. At those meetings, plaintiff’s sister expressly invoked plaintiff’s right to accommodation under the ADA and asked that plaintiff be given her job back and restored to her old work schedule. Walmart managers in attendance understood that they were asserting that plaintiff should have been given a schedule accommodation but was not. They also interpreted plaintiff’s sister’s remarks as a threat that the family intended to file suit if plaintiff was not reinstated and given her schedule back. Walmart then conducted an investigation and sustained the termination. As a result, the scheduling accommodation request was never explored in any detail.

 

A four day trial resulted in plaintiff receiving an award of $150,000 in compensatory damages and $125 million in punitive damages. The District Court reduced the punitive damages award to $150,000 in order to bring the total award in line with the ADA’s damages $300,000 for large employers. The court also awarded equitable relief in the form of $44,757.80 in back pay, $5978.63 in prejudgment interest, and $68,926.60 for tax consequences. The EEOC filed a motion asking that the court order the plaintiff reinstated to her position and also requested a variety of other injunctive measures pertaining to Walmart’s disability related policies and practices. The District Court agreed to order the plaintiff reinstated and also to order that Walmart contact plaintiff’s guardian regarding any future coaching, disciplinary, or other accommodation issues. The court declined to order the additional forms of injunctive relief requested by the EEOC that were aimed at preventing a recurrence of what happened to the plaintiff.

 

II

Walmart’s Knowledge of Plaintiff’s Disability and the Interactive Process

 

  1. Walmart knew plaintiff had a disability.
  2. That plaintiff had Down syndrome was obvious to Walmart’s managers and they said as much at trial.
  3. When plaintiff’s schedule changed, plaintiff exhibited immediate and obvious difficulties in complying with the new schedule. After 15 years of reliable work attendance, plaintiff was suddenly clocking out hours early, expressing fears that she would miss her bus or her dinner, and on multiple occasions with absent altogether without notice. When scolded about not working her new schedule, plaintiff repeatedly expressed confusion, insisting that her schedule was the old schedule and asking that she be restored to that schedule. A reasonably astute manager, having in mind the prior challenges of the plaintiff and experiencing handling new duties, might have considered whether her inability to adapt to the new schedule could be due to her Down syndrome.
  4. The jury could also found that any doubts on whether the difficulties in adjusting to her schedule were due to her disability were resolved when plaintiff’s sister, both before and after her discharge, expressly advised Walmart managers that the plaintiff could not adapt to the new schedule because of her disability.
  5. While Walmart was never given a Dr.’s note or other medical evidence supporting plaintiff’s sister assertions, the critical point is that Walmart never asked. Reviewing the evidence, the jury could have found that plaintiff and plaintiff’s sister have requested a schedule accommodation for plaintiff’s disability. At that point, Walmart would have been within its rights to act for medical evidence backing up the notion that the plaintiff required in the combination because of her Down syndrome, but things never progressed that far as Walmart dismissed plaintiff’s requests out of hand. If any of Walmart’s managers had asked plaintiff’s sister to supply such evidence and none was forthcoming, Walmart might have a point, but that isn’t what happened.
  6. Multiple cases within the Seventh Circuit have held that when clarification is needed as to the nature of an employee’s disability or the particular accommodation required, it is the employer’s responsibility to solicit that information from the employee. After all, Walmart knew better than anyone else what information it needed to evaluate plaintiff’s request for a schedule accommodation.
  7. If Walmart needed information from plaintiff’s physician supporting the requested accommodation, it was obligated to ask for it. In fact, that is what its own accommodation policy for Wisconsin employees actually stated.
  8. “There is ample evidence in the record that Wal-Mart was on notice that a schedule accommodation for Spaeth was medically necessary, particularly once Stevenson intervened on Spaeth’s behalf to advise Wal-Mart’s managers that Spaeth’s Down syndrome made it extremely difficult for Spaeth to adapt to her new work schedule. At that point, Wal-Mart had a duty to seek out from Spaeth and her family members whatever medical documentation it needed to corroborate the medical need for an accommodation and to explore what type of accommodation would be suitable.” (This particular paragraph is intentionally a direct quote from the opinion for reasons that will be explained in our thoughts/takeaways section. Also, Wal-Mart used to be spelled that way but has since changed to Walmart).

 

 

III

Sufficiency of Evidence for Punitives and Compensatory Damages Should Not Be Reduced

 

 

  1. Plenty of evidence existed that Walmart was recklessly indifferent to plaintiff’s statutory rights as an individual with a disability. See the rest of this section.
  2. Plaintiff’s sister intervened and told Walmart’s managers of the link between plaintiff’s disability and her trouble with the new schedule.
  3. Even after plaintiff’s mother and sister met with Walmart managers following plaintiff’s discharge and invoked her right to a schedule accommodation under the ADA, Walmart still did nothing to address the possibility of an accommodation.
  4. Walmart did not consider given what it was hearing from plaintiff’s family members (plaintiff’s disability may have contributed to her failure to show up for work and to her pattern of leaving work early). It also did not reconsider its rationale for discharging plaintiff in light of that information.
  5. Walmart did not ask plaintiff’s family for corroboration from a physician if that was what was needed.
  6. Walmart did not meaningfully consider whether it would have been feasible to grant plaintiff the scheduling accommodation she and her family members have requested. Instead, Walmart limited its post-discharge investigation to the question of whether plaintiff was in fact guilty of multiple attendance infractions despite warnings and, once it answered that question in the affirmative, deemed the discharge decision valid and considered the matter closed.
  7. Walmart personnel cut off communications with plaintiff’s family after the post-discharge meeting despite plaintiff’s sister invocation of the ADA and plaintiff’s right to an accommodation at the meeting.
  8. Walmart’s national ethics manager indicated that the managers at Walmart’s store that employed the plaintiff had been too lenient with plaintiff’s attendance infractions.
  9. In deciding whether compensatory damages should be reduced, one has to look at whether the jury’s verdict was rationally related to the evidence and also whether the award was roughly comparable to other awards made in similar cases.
  10. Given plaintiff’s disability, she had a limited ability to put into perspective the company’s decision to terminate her. Therefore, the jury might have found that plaintiff’s disability magnified her emotional injury, a viewpoint supported by the testimony given at trial by others.
  11. While it is true that plaintiff’s mother died not long after her termination and that may have been exacerbated her emotional injuries, emotional injuries often have multiple causes. That said, the jury was entitled to infer that Walmart’s decision to discharge the plaintiff was a major cause if not the primary cause of her resulting depression. For example, testimony showed that plaintiff covered her face whenever she saw a Walmart commercial.
  12. The award was also roughly comparable to compensatory damages awards in other cases. Multiple witnesses, including a medical doctor, established that plaintiff experience significant and lasting emotional distress and depression as a result of the loss of her job. Comparable cases have resulted in similar if not greater awards.

 

 

 

IV

Need to Revisit the District Court’s Injunctive Relief Order

 

  1. The trial court incorrectly wrote off all seven of the injunctions requested by the EEOC as “obey the law,” injunctions, particularly where some of them (including the provision requiring the company notify employees of the verdict and train its supervisors and managers regarding the propriety of schedule accommodations), related specifically to the type of misconduct that Walmart committed and are aimed at preventing a recurrence.
  2. There were at least two shortcomings in the way Walmart managers handled plaintiff’s request for reinstatement of her original work schedule. First, store personnel utterly failed to treat the request as a request for an accommodation and initiate the constructive give-and-take process that the ADA, case law, and Walmart’s own policies require, even after plaintiff’s sister alerted store manager to the connection between plaintiff’s disability and her difficulties in complying with her new work schedule. Second, Walmart’s manager were evidently under the impression that long-term schedule modifications could not be granted to an employee, a perspective arguably consistent with the company-wide directive issued to managers in 2014 that the computer generated schedules not be modified except for business reasons.
  3. While some of the circumstances were unique to the plaintiff, other circumstances were not-including the company’s unwillingness to entertain the possibility of a long-term schedule accommodation. While Walmart now says that its disability policies allow for long-term schedule accommodation, the contrary position they took at trial certainly presents the possibility that other employees might be denied such an accommodation if sought.
  4. The shortcomings of Walmart’s response to plaintiff’s request for a schedule accommodation raises the possibility that this may have been more than an isolated incident. Walmart is a national employer with over 1 million workers on its payroll. Accordingly, it is unlikely that the plaintiff would be the first or the last employee with a disability who might need a work schedule accommodation but who also might have difficulty invoking their rights under the ADA.

 

 

V

Thoughts/Takeaways

 

  1. The reason why I thought this case reminded me of the situation where a team wins a game but loses a key player is because of the court’s discussion of “medical necessity,” when it comes to reasonable accommodations. Regarding the court’s discussion of, “medical necessity” with respect to accommodations, there is absolutely no support in the applicable ADA statutes or in the final implementing regulations of either of EEOC or the DOJ for such a principal. On the employment side, the statute itself says it is discrimination to not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individualwith a disability who is an applicant or employee, unless an undue hardship is present. 42 U.S.C. §12112(b)(5)(A). 29 C.F.R. §1630.9(a) says that reasonable accommodations must be made to the known physical or mental limitations of an individual with a disability unless an undue hardship is present. Nowhere in either place does the term “medical necessity,” appear. Further, if you go beyond the employment world of the ADA to the world of accessing nonfederal governmental entities and to the world of accessing place of the public accommodations, you don’t see “medical necessity,” there either. For example, both the final implementing regulations for Title II and Title III have auxiliary aids and services requirements. They both demand that those services and aids be provided where necessary to ensure effective communication with individuals with disabilities. See 28 C.F.R. §§35.160(b)(1), 36.303 Outside of the effective communications sphere, the final implementing regulation for both Title II and Title III have very similar regulations with respect to the need to modify policies, practices, or procedures. Both of those regulations talk about whether they are necessary to allow a person with disability to access a place of public accommodations in various ways, or whether they are necessary in order for a person with the disability to avoid discrimination by a nonfederal governmental entity. See, 28 C.F.R. §§35.130(b)(7)(i), 36.302(a). You can be sure that defense lawyers will push for a “medical necessity,” requirement when it comes to reasonable accommodations. I have already seen a defense oriented blog make the statement that “medical necessity,” is a requirement when it comes to reasonable accommodations. It simply isn’t so. To require it to be so, would severely limit the congressional intent of the scope of the ADA in addition to it not being supported by either the statute or any of the final implementing regulations of either the EEOC or the DOJ. The language used by the court also seem to suggest that unnecessary medical inquiries can be made, which is not the case. So, the offending paragraph to be accurate with the statutory and regulatory provisions of the ADA should have read (the bolded language is my thoughts on what should have been changed for accuracy sakes from what appears in the opinion):

“There is ample evidence in the record that Wal-Mart was on notice that a schedule accommodation for Spaeth was related to her disability, particularly once Stevenson intervened on Spaeth’s behalf to advise Wal-Mart’s managers that Spaeth’s Down syndrome made it extremely difficult for Spaeth to adapt to her new work schedule. At that point, Wal-Mart had a duty to seek out from Spaeth and her family members the medical documentation necessary to corroborate the need for an accommodation and to explore what type of accommodation would be suitable.”

 

  1. Magic words are not required to activate the interactive process as we have talked about numerous times before, such as here. Of course, the closer a plaintiff can get to magic words the better off they are. In this case, magic words were used and that may have been a factor in the court’s upholding the punitive damages award.
  2. Legislation has been introduced to get rid of the statutory damages caps. I don’t see any of that happening before the election. Whether anything happens after the election will inevitably depend upon election results.
  3. Employers are always asking for litigation if they take away an accommodation that is working for a particular employee.
  4. Remember the do’s and don’ts of the interactive process, which we discussed here.
  5. It is the employer’s responsibility to seek clarification of any reasonable accommodation request and not the employee.
  6. In Title I cases, punitive damages are a possibility.
  7. This court says that to find emotional injuries, it is sufficient for plaintiff to show that the termination was a major cause of those emotional injuries. Emotional causes often have multiple causes and termination being a sole cause is simply not necessary to recover emotional injuries.
  8. “Obey the law,” injunctions are more favorably thought of when they are specifically related to the underlying facts at issue.
  9. The Job Accommodation Network had just come up with a tool whereby anyone can go online to try and figure out what kind of an accommodation might work in various situations. Of course, it isn’t a substitute for legal advice but nevertheless could be helpful. Before this tool, I would just call them up and asked for their opinion. I could see why this tool could be really useful and more efficient, especially if the search engine is top-quality. Keep in mind, I have not tried the tool out myself yet. It can be found at https://askjan.org/sitsol/index.cfm .
  10. I do not see any “not for publication,” notice on the opinion. So, this very well may be a published opinion. If so, that makes the discussion in §V(1) of this blog entry even more significant.
  11. ADA training should be conducted by knowledgeable individuals (it is something that I do quite a bit up in my practice), and the training should not be a one-off.

 

Before proceeding with today’s blog entry, I want to wish everyone celebrating a happy new year. I realize that my blog entry is late this week, but I have a good reason for it. We got back from parents weekend last Sunday, then had to deal with Helene damage, which fortunately was not anything that couldn’t be handled, and then we had the Jewish new year.

 

The blog entry of the week continues our theme from last week, which is nondelegable duties of Title II entities and how they may face direct liability for that delegation or for ignoring their obligations. The case of the week is Access Living of Metropolitan Chicago, Inc. v. City of Chicago, here, a summary judgment denial decided by the United States District Court for the Northern District of Illinois on September 30, 2024. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning denying summary judgment on the ADA and §504 claims; court’s reasoning denying summary judgment on the FHA claim; court’s reasoning finding a continuing violation for statute of limitation purposes; court’s reasoning that Access Living has a private right of action to sue the City under each of the federal accessibility laws; court’s disposition; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The City of Chicago receives $100 million annually from the US Department of Housing and Urban Development for the purpose of building, preserving, and rehabilitating affordable housing properties. The City of Chicago doesn’t do that rather it is done by developers and nonprofits. The City’s development contracts with developers gives developers funds or tax credits and in return, the developer is obligated to comply with federal and state laws, including §504 and Title II of the ADA. Developers must also document compliance with accessibility requirements and the contract sets out remedies for noncompliance. Once the building is completed, the Chicago Housing Department must inform HUD and the public that the building was inspected and incorporated federal accessibility requirements. The City of Chicago also plays a considerable role in the design and construction of affordable housing developments. For example, developers have to apply for a building permit issued by the City’s Department of Buildings. During the permit process, the City’s Mayor’s Office for People with Disabilities reviews the building plan for compliance with federal, state, and local accessibility laws and standards.

Access Living sued saying that there was a lack of sufficient supply of accessible affordable housing units leaving Chicagoans with certain disabilities unable to find affordable housing.

 

II

Court’s Reasoning Denying Summary Judgment on the ADA and §504 Claims

 

  1. With respect to disability discrimination in housing, Congress specifically found, 42 U.S.C. §12101(a)(5), that individuals with disabilities continually encounter various forms of discrimination, including the discriminatory effects of architectural barriers even in housing.
  2. §504 requires that individuals with disabilities be provided with meaningful access to the benefit that the grantee offers, which includes the benefit of the elimination of architectural barriers.
  3. City of Chicago receive federal funds under §504. In particular, it received federal funding from HUD for the purpose of providing affordable housing for Chicagoans.
  4. §504 includes all of the operations of the local government or the entity of such local government distributing such assistance. See 29 U.S.C. §794(b)(1); 24 C.F.R. §8.3.
  5. A violation of Title II of the ADA or §504 means proving: 1) a qualified individual with a disability 2) was denied the benefits of the services, program, or activities of a public entity 3) because, or on the basis of their disability.
  6. A reasonable jury could find that the affordable housing scheme is a service, program, or activity of the City.
  7. Neither the statutory language nor the regulations shine much light on what kinds of undertaking the statutes are meant to cover. However, the regulations do suggest that the scope of protection is broad, applying to all services, programs, and activities provided or made available by public entities. See 28 C.F.R. §35.102(a).
  8. The Seventh Circuit has identified two different principles to help courts work out when a service, program, or activity of a governmental agency is involved. First, a governmental entity cannot avoid its obligations under the statute by ceding its governmental functions to private entities. Therefore, the question is whether the affordable housing scheme is a program or activity where the city itself is doing, providing, or making available the affordable housing, rather than the private developers. Second, governing regulations contemplate that liability may attach to some relationships between public and private actors. That is, a public entity may not discriminate on the basis of disability, directly or indirectly, such as through contractual, licensing, or other arrangements. See 28 C.F.R. §35.130(b)(1).
  9. The City may not avoid liability by framing its role in the affordable housing scheme as merely providing funding tax credit to developers in a way that completely absolves the City from its own duty of complying with the federal accessibility laws. To hold otherwise, goes directly against the principle that the City may not avoid its obligations under the statute by ceding its governmental function to private entities. Saying this, is not the same thing as saying that any time a municipality provides some funding to private entities, the government then becomes liable for any of the project’s failures or legal violations.
  10. The contracts the City enters into with the developers contemplate the general oversight or compliance obligation on the City by requiring the developers to comply with federal laws before receiving funding. For example, the City agrees in those contracts, per the municipal code of Chicago, to supervise and coordinate the formulation and execution of projects and programs so as to create safe, decent, and affordable housing for residents of the City. Certain agreements even explicitly require the developer to comply with §504 and the ADA and permit the City to inspect the developments for compliance. Accordingly, this contractual relationship between the City and the developers is evidence that the affordable housing scheme is a program or activity made available by the City.
  11. The City cannot cede its governmental functions-ensuring compliance with federal accessibility laws-to the developers.
  12. The City has a regulatory obligation to ensure that private developers comply with the federal accessibility laws. For example, the city is required to comply with HUD program requirements and to monitor subcontractors for such compliance. This includes an obligation that HUD recipients inspect each project for compliance with the federal accessibility laws and other property standards, both upon completion of the building and also periodically during the rental property’s affordability in order to ensure ongoing compliance.
  13. Title II regulations requires accessibility and facility newly constructed or rehabilitated by, on behalf of, or for the use of a public entity. 28 C.F.R. §35.151(a)(1). If recipient of federal funds could evade liability by simply placing the burden on third parties with which the recipient enters into a contract, then the statute would lose much of their force.
  14. If a jury finds that the affordable housing scheme is a program or activity of the City, then the program in its entirety must comply with federal accessibility laws even if developments do not directly receive federal funds by way of the City. The development must comply with the ADA because a public entity, the City, is providing the service or program.
  15. Even though certain developments do not receive federal funds, the entire program must comply with §504 because the statute defines “program or activity,” as “all of the operation,” of the funding recipient. 29 U.S.C. §794(b)(1); 24 C.F.R. §8.3.

 

III

Court’s Reasoning Denying Summary Judgment on the Fair Housing Act Claim

 

  1. Discrimination under the Fair Housing Act includes a failure to design and construct those dwellings in such a manner that they are readily accessible to and usable by handicapped persons and contain best-of-five features of adaptive design. 42 U.S.C. §3604(f)(3)(C).
  2. A reasonable jury can find that the City have to comply with the FHA because of Chicago’s role in the design and construction of the affordable housing developments.
  3. The FHA’s prohibitions are not directed at a specific actor, rather the prohibition bans an outcome without requiring who the actor is, or how such actors discriminate against potential tenants. As such, it is reasonable to hold that the City-,in its role in providing funding for housing developments, approving construction and rehabilitation of the development, and its contractual obligation to ensure that the development comply with federal law-, discriminated against a person in the conditions of sale or rental of a dwelling because of a failure to design and construct those dwellings in such a manner that is readily accessible to and usable by handicapped persons.
  4. Question of fact exists as to whether the City is responsible for the property based upon the City’s extensive role in the affordable housing scheme.

 

IV

Court’s Reasoning Finding a Continuing Violation for Statute of Limitation Purposes

 

  1. The City engaged in a pattern of discrimination in its affordable housing scheme so that there is a continuing violation of the federal accessibility laws.
  2. The Seventh Circuit currently recognizes the continuing violation exception for FHA discriminatory practice claims but has yet to apply the exception to ADA or §504 claims. Given the similarity of the statutes and the close relationship of the claims, and consistent with other district courts, the continuing violation exception applies to Access Living’s ADA and §504 claims.
  3. Access Living in its complaint challenges the City’s ongoing failure to comply with and enforce the federal accessibility laws. They are not challenging a single or multiple past violations. The distinction is important. If Access Living were to claim that his client were suffering the ongoing effects of noncompliant housing, like a building having a defective elevator, much of the claim would likely not fit the continuing violations exception. However, it is a different story here because Access Living is alleging an ongoing, systemic failure of the City to fulfill what contractual and statutory obligations, which is a completely different matter altogether. That kind of failure is ongoing and not a single isolated incident. Also, each day brings with it a renewed violation of the laws because the City is not performing its statutory duties.

 

V

Access Living Has a Private Right of Action to Sue the City under Each of the Federal Accessibility Laws

 

  1. Access Living has a private right of action to sue the City under each of the federal accessibility laws.
  2. Private rights of action to enforce federal law must be created by Congress. To determine whether a statute creates a private cause of action, the statute Congress passed must be looked at in order to determine whether it displays an intent to create not just the private right of action but also a private remedy.
  3. The City does not actually contest that each of the federal accessibility laws contains a private right of action, rather they are saying that the regulations themselves do not contain a private right of action. However, that position misreads the complaint. Access Living only cites the regulations in order to provide the background and the definitions necessary to apply the statutory provisions. Access Living is not asking for the enforcement of the regulations that it cites in its complaint. In this case, each statute supplies a cause of action and Access Living falls within the intended class of plaintiffs of each statute.

 

VI

Court’s Disposition

 

  1. Summary judgment is denied.
  2. Question for the jury include: 1) how the facts apply to the definitions of program or activity in order to trigger the application of the federal accessibility laws; 2) whether the City’s involvement in design and construction trigger the obligation under the FHA; and 3) whether the continuing-violations exception apply to set the proper statute of limitations.
  3. The parties are ordered to engage in good faith settlement negotiations. If negotiations stall or falter, then a trial schedule will be set. The parties have to file a status report on or before November 4, 2024, on the status of negotiations and the proposed next step of the litigation.
  4. During pretrial litigation, the parties are to address whether the court would be bound for purposes of injunctive relief by any jury decision on liability as well as what the damages presentation at trial would entail.
  5. The court believes that both sides would want to minimize the risks and delay of further litigation, and that the City naturally would want to fashion affordable housing program promoting compliance with federal accessibility laws.

 

VII

Thoughts/Takeaways

 

  1. The whole idea of the ADA being a nondelegable duty started with the Nevada Supreme Court, and it started catching on after that. Now we are seeing that the courts are holding Title II entities to a high standard. That is, the you are now seeing courts having none of it if the Title II entity either delegates its ADA responsibilities to someone else or just ignores what it has to do with ensuring that others comply with their ADA responsibilities.
  2. In many ways, this case resembles Rolf Jensen when the Nevada Supreme Court discussed how Mandalay Bay still had the duty to ensure that the architect was getting it right with respect to building out its facility in accordance with the ADA. We discussed that case here.
  3. This week’s blog entry as well as last week’s blog entry have important implications beyond the context of these two cases. For example, medical licensing boards, as we discussed here, routinely offload, or possibly even ignore, their ADA responsibilities in favor of deferring to third parties.
  4. This was not an equal protection case, but the court notes that housing discrimination is specifically mentioned in the findings to the ADA as amended. As such, a strong argument would be created that a State forcibly waives sovereign immunity should they be sued in a similar way. Municipalities are not subject to sovereign immunity.
  5. Extensive case law exists saying that Title II of the ADA applies to all operations of a governmental entity. You need to look at 29 U.S.C. §794 to see which kinds of entities have §504 apply to all of their operations and activities. For example, local governmental entities, healthcare entities, and educational entities all have to have all of their operations meaningfully accessible to persons with disabilities.
  6. It is rare to see a federal court say that a continuing violation is occurring. This court found the continuing violation because of the pattern of discrimination alleged.
  7. It is also difficult to sue for violating regulations rather than a statute. After Loper Bright, which we discussed here, that may or may not become even more so the case. Here, Access Living did a great job of showing the court that they were alleging statutory violations and that the regulation just provided background. That approach is even more necessary now after Loper Bright where a plaintiff is suing for violations of something clearly prohibited by a regulation.
  8. The trial judge in it disposition of the case very strongly encourages settlement. It will be interesting to see if that occurs. The Seventh Circuit, less so at the trial level, can be very friendly to those defending disability discrimination claims.
  9. “Handicapped,” is still used in the Fair Housing Act (FHA) unfortunately. It is highly offensive to persons with disabilities and should be stayed away from at all costs unless citing to it in a specific statute.
  10. The ADA, FHA, and §504 are all nondelegable duties!!!!!!

On Friday of last week, I presented to the Minnesota CLE Health Law Institute in Minneapolis on working with disabled clients and disabled attorneys. One of the cases that came up is the one that we are going to be talking about this week, Battle v. state of Tennessee, here, decided by the Middle District of Tennessee on September 6, 2024. If the reasoning of this case proves persuasive in other courts, this decision could be a very big deal indeed for the reasons we will discuss. As usual, blog entry is divided into categories, and they are: facts; court’s reasoning that Tennessee can be directly liable for failing to ensure the group homes carry out their obligations to Deaf residents; court’s reasoning that sovereign immunity applies to Title II damage claims but not to Rehabilitation Act damage claims; Disability Rights Tennessee has standing to sue; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts of the case can be greatly simplified from what is in the opinion. In Tennessee, you have two different state entities responsible for administering services supporting Tennesseans with disabilities. You have the Department of Intellectual and Developmental Disabilities (DIDD), and you also have the Department of Mental Health and Substance Abuse Services (DMHSAS). They each deal with different disabilities. DIDD is responsible for system planning, setting policy and quality standards, system monitoring and evaluation, disseminating public information, and advocacy for persons of all ages with the disabilities it serves. DIDD publishes a detailed provider manual setting forth directive to licensees. The provider manual informs licensees that it is participating in the Tennessee service delivery system for individuals with intellectual and developmental disabilities by being a party of the provider network. As such, the manual explained that private providers are partners in the common goal to provide quality, person-centered and cost-effective services to individuals with intellectual and developmental disabilities. It requires person-centered plans.

 

DMHSAS provides direct services through regional mental health institutes and licenses certain types of residential facilities for adults with mental illnesses. Those facilities are formally referred to as Mental Health Adult Residential Facilities and Mental Health Adult Supported Residential Facilities, but they can be described collectively as mental health group homes. DMHSAS, as does DIDD, engages in a mixture of direct service provision, licensure administration, and regulation.

 

Disability Rights Tennessee, the Protection and Advocacy group for Tennessee, on behalf of several individuals in group homes regulated by each of the above agencies sued saying that the people they were suing on behalf of were not receiving effective communication. All of the plaintiffs identified ASL as their primary language. Each of the group homes were privately operated. However, the plaintiffs alleged that the state of Tennessee was responsible for the group homes failures because it had the responsibility of developing and overseeing the group homes and failed to provide or require the following: 1) appropriate communication evaluations conducted by a person fluent in ASL and familiar with culturally deaf individuals; 2) programs, services, and activities offered with signing staff or qualified sign language interpreters; 3) qualified sign language interpreters for planning meetings; 4) qualified mental health sign language interpreters for mental health treatment; 5) qualified sign language interpreters for habilitative, rehabilitative, behavioral, occupational, vocational, community, and other services; 6) coordination of and scheduling qualified sign language interpreters for medical appointments; 7) provision of group homes meeting the communication needs of culturally deaf individuals including but not limited to, sign fluent staff and necessary assistive technology, such as videophones, flashing fire alarms, and bed shaker alarms; 8) ongoing, strong connection with the culturally deaf community including but not limited to sign fluent interpreters and continued ASL exposure; 9) person-centered planning and supports. The allegations with respect to DMHSAS failures were substantially similar as to DIDD’s failures with language changes recognizing that different disabilities were involved.

 

II

Court’s Reasoning That the State of Tennessee Can Be Directly Liable for Failing to Ensure the Group Homes Carry out Their Obligations to the Deaf, culturally deaf, Individuals They Serve

 

  1. While Title II of the ADA and §504 are different in their sources (civil rights v. spending power), they both prohibit discrimination against persons with disabilities under a paradigm very similar to each other. So, the two statutes get interpreted the same way.
  2. In order to prevail, a plaintiff has to establish that: 1) plaintiff has a disability; 2) plaintiff is otherwise qualified for the benefit or services at issue; and 3) plaintiff was excluded from participation in, denied the benefits of, or was subjected to discrimination under the program by the defendant because of plaintiff’s disability.
  3. 28 C.F.R. §35.130(b)(6) provides that: “a public entity may not administer any licensing or certification program in a manner that subjects qualified individuals with disability to discrimination on the basis of disability, nor may a public entity established requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.” As phrased, this regulation leaves open the possibility of liability based upon an agency’s operation of the licensure authority in a manner resulting in discrimination.
  4. 28 C.F.R. §35.130(b)(6) recognizes that a government agency’s decision to rely on a privatized and license model rather than on a direct services model, does not inherently excuse it from its antidiscrimination obligations in performing the underlying public services.
  5. Plaintiff’s have adequately pleaded that the group home licensure system and practice are mechanisms by which those two agencies themselves render public services. Further, the plaintiffs allegations largely focused not on the day-to-day operation of group homes, but on the defendant agency roles in coordinating care and setting minimum standards-both of which are services the agency to provide, even if they do not pay for the underlying placements.
  6. Every group home in which the plaintiffs resided was allegedly part of the care system developed and shaped by the defendant agencies in furtherance of those agency specific and acknowledged statutory responsibilities and for the express and intentional benefit of individuals like the plaintiffs.
  7. The agency powers, responsibility, and missions when combined with the allegations in the complaint, are sufficient to establish, for pleading purposes, that the agencies are administering their licensure authority in a manner subjecting qualified individuals with disabilities to discrimination in the provision of public services, including with regard to both care itself and any associated case management services over which the agencies exercise direct or indirect control. Going forward, the plaintiffs still have the ultimate burden to establish that the agencies actually used the kind of authority that the plaintiff’s claim and that the agency’s actions do in fact result discrimination the provision of public services.

 

II

Court’s Reasoning That Sovereign Immunity Applies to Plaintiffs Title II Claims for Damages But Not to the Rehabilitation Act Claims for Damages

 

  1. Title II of the ADA contains statutory language forcibly waving sovereign immunity.
  2. With respect to whether Title II forcibly waives a state’s sovereign immunity, the approach works as follows: 1) forcible waiver is applied where the alleged misconduct violates both Title II and a plaintiff’s constitutional rights under the 14th Amendment (including the incorporation of any of the Bill of Rights into that amendment); 2) where the conduct violates Title II but not the 14th Amendment, the court must consider whether sovereign immunity applies to that class of conduct. Doing that, means looking to whether the statutory scheme with proportional to the harm being redressed. It essentially means determining what equal protection tier a person with a disability falls in with respect to the facts of that particular case.
  3. Citing to Board of Trustees of the University of Alabama v. Garrett, States are not required by the 14th Amendment to make special accommodations (term “special accommodations,” appears in the opinion itself), for the disabled so long as their action toward such individuals are rational.
  4. With respect to §504 to Rehabilitation Act, sovereign immunity poses no obstacle because Tennessee waived sovereign immunity in return for accepting federal funds. It also provides no basis for dismissing Title II claims for injunctive relief as the 11th Amendment does not bar an ADA Title II claim for prospective relief against state officials in their official capacities.

 

III

Disability Rights Tennessee Has Standing

 

  1. The unique structure of Protection and Advocacy systems create something of a challenge for traditional standing principles.
  2. Protection and Advocacy agencies are entrusted with roughly the equivalent of enforcement power by the federal and state governments, but lack the government’s standing to enforce its own laws.
  3. Protection and Advocacy organization must rely on the principle that an association for standing to sue on behalf of its members when: 1) its members would otherwise have standing to sue in their own right; 2) the interests at stake are germane to the organization’s purpose; and 3) neither the claim brought nor the relief requested requires the participation of individual members in the lawsuit.
  4. The individuals for whom a Protection and Advocacy agency is called on to protect are typically not members of the organization or more like constituents or beneficiaries. Therefore, in the absence of a formal membership structure, the Protection and Advocacy agency can rely on the constituent for the purposes of standing only if it can establish a sufficient indicia of membership. So, a Protection and Advocacy organization has standing to assert the injuries of any constituent with whom it has a demonstrated relationship sufficient to establish the indicia of membership.

 

 

IV

Thoughts/Takeaways

 

  1. This case basically involves the principle that the ADA and the Rehabilitation Act are nondelegable duties (see this blog entry). Not carrying out those duties can potentially lead to direct liability even if the nonfederal governmental entity is not the one administering the programs and activities.
  2. The court gets it wrong with respect to stating that failure to accommodate cases fall within the rational basis class. That simply isn’t true. Failure to accommodate (actually, any suit for damages against an employer by a person with a disability), in the employment context per Board of Trustees of the University of Alabama v. Garrett, here, does fall within the rational basis class. However, that is not the same thing as saying that failure to accommodate always falls in the rational basis class. That simply isn’t true. For example, in Tennessee v. Lane, here, the court held that the specific equal protection tier that a person with a disability falls into depends upon the individual facts of the case. They also held that with respect to accessing the courts, a person with disabilities are at least in the intermediate scrutiny class if not higher. So, it simply isn’t right to say that failure to accommodate cases regardless of the context they occur in, fall within the rational basis class.
  3. The reasoning of this decision essentially sets up a system of vicarious liability. I have a hard time with saying that vicarious liability applies to the ADA and Rehabilitation Act in light of their statutory scheme and the case law over the years. That said, there is another way the court could have gone about it. There are numerous other regulatory provisions that offered a tighter fit for independent liability of the nonfederal governmental entities. Those regulatory provisions include 28 C.F.R. §§35.130(b)(1)(i-v,vii), (b)(2), (3), immediately below:

 

(b)

(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability—

(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;

(v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity’s program;

(vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

(2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.

(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;

(ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities; or

(iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State.

 

  1. A separate question is whether 28 C.F.R. §§35.130(b)(1)(i-v,vii), (b)(2), (3) would survive Loper Bright, discussed here. I think a strong argument exist that it would because these regulations are very closely tied to the statutory language of the ADA. Keep in mind, we don’t actually know what is the standard that courts will use in deciding that regulations are extremely persuasive to a matter being considered by the court. Things would have been a lot simpler if Loper Bright had said that Kisor v. Wilkie, here, applied to final regulations as well to agency interpretations of their regulations.
  2. If this decision holds, it has absolutely huge implications in other worlds. For example, medical licensing boards delegations of their duties to PHPs is one such area.
  3. The court gives a nice discussion of how standing works with Protection and Advocacy groups. Every state has a Protection and Advocacy group. What they do vary considerably from state to state as well as the amount of litigation that they get involved in.
  4. Deaf or deaf mean very different things. Deaf means: 1) ASL or a sign language is the primary language; 2) 65-120 db hearing loss; and 3) attended a state school for the deaf. Deaf is just someone with a severe to profound hearing loss, 65-120 db.
  5. Until this case, I never thought of licensing regulatory provisions of the regulations as applying in this context. I always viewed the licensing regulatory provisions as applying to the licensing of professionals. Was I being too narrow? Maybe, maybe not. I might not have been because the very last sentence of that regulatory provision says that the programs and activities conducted by the licensee are not covered by that particular provision. Regardless, as noted in §IV(3) of this blog entry, there are numerous other regulatory provisions applicable to this kind of situation.
  6. This case involved a motion for judgment on the pleadings.
  7. You can’t get damages under Title II and §504 simultaneously. It is either one or the other. So, I am not sure it matters if Title II damages claims were dismissed when the §504 claims were allowed to go forward.
  8. “Special accommodation,” is a term that drives disability activists absolutely bonkers. Use “reasonable accommodations,” or “reasonable modification,” instead. Nothing special at all about the accommodations a person with a disability needs to get to the same starting line as a person without a disability as it is a matter of right.
  9. Sovereign immunity, with one very rare exception, here, does not apply to prospective relief against officials sued in their official capacity.

Before getting started on the blog entry for the week, I did finish Over Ruled. What is clear from reading the book, is that Justice Gorsuch clearly believes that the administrative state had gotten too big and that sufficient guardrails for the administrative state do not exist. Also, from reading that book, it is pretty clear to me that he would think Loper Bright overruled Kisor v. Wilkie. So, administrative regulations he will uphold will have to have a very tight relationship to the particular statute and even more so with respect to any guidances. It will be interesting to see what standard ultimately comes into being with respect to carrying out Loper Bright.

 

This week’s blog entry returns us to Batson challenges. Batson is a criminal version but there is also a civil version as well. It seems that everything goes by Batson in terms of the vernacular regardless of whether it is a criminal or civil division issue. Consider the following. In response to a Batson challenge in Illinois in the case of the People of the State of Illinois v. Wright, decided by the Appellate Court of Illinois, First District, on May 31, 2024, here, the prosecutor says as the reason for exclusion:

 

“In addition to his questionable demeanor-when I say demeanor, that’s what I’m talking about, that back and forth in the not volunteering any information and not listening to the questions. He was young, he was living at home, and the concern there is that he also was a young African-American who might identify with the defendant who was around the same age at the time that this offense, the actual shooting of Officer Bansley, was committed.”

 

In Colorado, in the case of People of the State of Colorado v. Romero, here, decided by the Colorado Supreme Court on September 9, 2024, the prosecutor says as the reason for exclusion:

 

“So, Your Honor, I reason for striking with due to the fact that he appeared very disinterested and kind of had seemed to have a wandering mind at times when the court was reading the instructions and going over concepts,… When we were asking questions of everyone, he just didn’t seem particularly focused or interested in what was going on.”

 

This blog entry will explore why the Batson challenge gets thrown out in Colorado but upheld in Illinois. As usual, the blog entry is divided into categories and they are: how Batson works; Colorado Supreme Court’s reasoning in Romero on why the Batson challenge fails; Illinois appellate court’s reasoning in Wright as to why the Batson challenge prevails; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

How Batson Works

 

  1. Batson deals with peremptory challenges, which is the ability of a trial attorney to excuse a prospective juror for any reason whatsoever. Batson says that a process needs to occur if an attorney challenges the exclusion of jurors based upon a protected characteristic.
  2. The process works like this: A) the person making the Batson challenge bears the burden of making a prima facie showing that the strike was based on a protected characteristic; B) the person striking the prospective juror bears the burden of articulating a neutral reason for the strike; and C) the trial court then determines whether the person making the Batson challenge has met the burden of showing by a preponderance of the evidence purposeful discrimination against a person with the protected characteristic.
  3. The court’s conclusion as to whether to allow a Batson claim does not get disturbed unless it is clearly erroneous.

 

II

Colorado Supreme Court’s Reasoning in Romero on Why the Batson Challenge Fails

  1. Clear error standard of review is highly deferential to trial courts because trial courts are in a unique position to make first-hand observations related to demeanor and credibility.
  2. When it comes to Batson challenges, the burden of proof always rests with the objecting party, i.e. the person making the Batson challenge. That objecting party must show by a preponderance of the evidence that the peremptory strike in question was motivated by purposeful discrimination.
  3. The trial court was unable to independently say whether the juror was disinterested.
  4. It is not up to the appellate courts to conduct a de novo review (a review from the beginning without considering what the trial court did), when it comes to Batson challenges. An appellate court is precluded from substituting its reading of the cold record for the trial court’s in the moment and better informed determination. As such, an appellate court must give deference to a trial court’s ruling on a Batson challenge so long as the record: 1) reflected that the trial court considered all relevant circumstances; and 2) supported the trial court’s ruling as to whether the objecting party crew purposeful discrimination on the basis of a protected characteristic by a preponderance of the evidence.
  5. In a footnote, the Colorado Supreme Court noted that “race,” encompasses both race and ethnicity.
  6. In a footnote, the Colorado Supreme Court notes that as a practical matter the Batson steps, particularly at step one and two, often get combined into a single instance so that it becomes impossible for the court to separate out step one from step two.
  7. A trial court’s finding that a prosecutor’s articulated reason for excluding a prospective juror is credible does not require such a finding to be explicit.
  8. Batson challenges have been difficult and unwieldy to apply both at trial and on appellate review.
  9. Batson challenges have been in the line of fire for nearly 40 years as an ever-growing number of courts and commentators have exposed the troublesome flaws and validated Justice Marshall’s dire prognostication that Batson would prove ineffective.
  10. Some states have abolished peremptory challenges altogether, such as in Arizona.
  11. Some Colorado Supreme Court justices have suggested doing away with Batson challenges. However, that decision ultimately lies with the Colorado legislature because peremptory strikes are provided by statute and not by court rule as was the case in Arizona.
  12. Batson challenges have to continue so long as the Colorado legislature continues to allow for peremptory strikes.
  13. It isn’t hard for a person making a Batson challenge to satisfy step one of the Batson process. Although a person making the challenge have to show that the totality of the circumstances gives rise to an inference of motivation based upon a prohibited characteristic.
  14. A neutral reason that an attorney must make in response to a Batson challenge means a reason based on something other than the protected characteristic of the prospective juror. When considering that neutral reason, the trial court may not consider the plausibility or persuasiveness of the stated reason. All a court can consider is whether on its face the reason is not based upon a protected characteristic. In other words, the question is whether assuming the reason for the peremptory challenge is true, the challenge is based on something other than the protected characteristic.
  15. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason will be deemed to be neutral.
  16. At the final step of Batson, the trial court has to consider the persuasiveness of the striking party’s reason for the peremptory strike in light of any rebuttal offered. In doing that, the trial court must ponder all of the relevant circumstances bearing upon the issue of purposeful discrimination. Those relevant circumstances include, but are not limited to: 1) the striking party’s demeanor; 2) the reasonableness of the offered explanation that it was not based upon a protected characteristic; 3) whether the rationale advanced is rooted in accepted trial strategy; and 4) the plausibility of the striking party’s nondiscriminatory explanations.
  17. The ultimate burden of persuasion regarding motivation based upon a protected characteristic rests with and never shifts from the person opposing the Batson challenge. After all, the opponent of the strike is the party alleging purposeful discrimination based upon a protected characteristic.
  18. In considering whether the objecting party has shown discrimination by a preponderance of the evidence based upon a protected characteristic, the test to use is the substantial motivating factor test. That is, if the peremptory strike was motivated in substantial part by discriminatory intent, the Batson challenge gets upheld.
  19. An implausible or fantastic explanation for a strike upper peremptory juror should probably be found to be a pretext for purposeful discrimination based upon a protected characteristic.
  20. In a typical peremptory challenge inquiry, the decisive question will be whether counsel’s neutral explanation for peremptory challenge should be believed. However, there is seldom much evidence pertaining to that issue.
  21. Credibility of a neutral reason is intrinsically difficult to assess because the exercising of peremptory strikes is often a matter of instinct and even articulating a reason for a strike can be difficult.
  22. The demeanor and credibility of the attorney exercising the peremptory strike frequently constitute the best evidence of whether the objecting party can establish purposeful discrimination, which is a matter particularly suited for the trial judge.
  23. The preferred practice is to have trial court make explicit demeanor and credibility findings because such findings are helpful on appellate review.
  24. Implicit demeanor and credibility findings are okay, but what is not okay is no demeanor and credibility findings, explicit or implicit. In this case, the trial court implicitly found that the prosecutor’s neutral reasons were credible and sincere. At no point did the trial court state or even hint that it thought the prosecutor was being disingenuous or untruthful.
  25. The question to consider in a Batson challenge is whether affirmative evidence in the record existed refuting the alleged neutral reason for the strike given by the attorney making the strike.
  26. While the prosecutor’s reason was subjective, the trial court realized that it still could be the basis for a valid peremptory challenge.
  27. Trial judges are urged to make explicit demeanor and credibility findings when making their ultimate ruling on a Batson challenge.
  28. In many cases a subjective demeanor based reason will not be enough to survive clear error review because of the highly deferential standard given to trial courts when making Batson determinations.

 

III

Illinois Appellate Court’s Reasoning in Wright As To Why the Batson Challenge Prevails

 

  1. At step two of the Batson process, a neutral explanation is one based upon something other than the protected characteristic. The prosecutor has to give clear and reasonably specific, legitimate, neutral based reasons for the strike.
  2. A legitimate reason is not a reason that makes sense, but is a reason that does not deny equal protection.
  3. Discriminatory intent may found to be inherent in an explanation where the offer of a supposedly neutral explanation has an ingredient based upon a protected characteristic.
  4. The prosecutor’s reasons challenging the prospective juror based upon his demeanor and status as a young African-American male creates an inference of purposeful discrimination.
  5. The court could not find that the prospective juror’s behavior demonstrated disinterest or disrespect any more than it shows cooperation with the questioning process.
  6. Explanation pertaining to demeanor must be harshly scrutinized because they are so subjective and can be easily used by prosecutors as a pretext for excluding persons on the basis of a protected characteristic.
  7. The prosecutor never sought to clarify the distinction between the prospective juror’s age and his race, which raises doubt as to the plausibility of the prosecutor’s concern.
  8. The record does not support that the person struck from the panel had a significantly different demeanor from jurors that were not black. Also, the person struck life’s experiences were similar as to the life experiences of jurors that were not black who were not struck. Finally, the record demonstrated that many other jurors answered the questions similarly as to the juror struck.

 

 

IV

Thoughts/Takeaways

 

  1. Throughout the blog entry, I used the term “protected characteristic,” and not race. After Tennessee v. Lane, here, it is clear to me that persons with disabilities are in a sufficiently high equal protection class for purposes of Batson challenges. Tennessee v. Lane held that people with disabilities when it comes to equal protection, are at least in the intermediate scrutiny class if not higher when it comes to accessing the courts. Certainly, serving on juries is a critical component of accessing the courts.
  2. You might also be able to argue by analogy via Bostock, that persons of differing sexual orientation and gender identity would also have Batson challenges available, though Bostock is not an equal protection case.
  3. The way Batson challenges work is pretty similar everywhere. Batson has a civil equivalent, here.
  4. The big difference between Illinois and Colorado is that neutral reasons based upon demeanor get harshly scrutinized in Illinois, while in Colorado, such a reason gets the full benefit of the clear error rule.
  5. I am not a trial attorney. However, if I heard the explanation of the prosecutor in Colorado, my immediate response would be that the explanation was discriminating on the basis of a protected characteristic. That is, the explanation given describes classic behavior of someone with ADHD. I am not saying that prospective juror had ADHD, but that it was a possibility. I would make the argument that the prosecutor may be regarding the juror as having a disability (ADHD). In Illinois, a demeanor-based explanation gets searching review. Even in a searching review jurisdiction, I might throw in the regarding a person as having ADHD to help with the searching review process.
  6. The Colorado Supreme Court seems a bit torn with the decision when it goes out of its way to say that judges need to make explicit demeanor and credibility findings.
  7. While Batson challenges work the same everywhere, there may be critical differences in your particular state concerning how an appellate court reviews a Batson determination for clear error.
  8. I have not done a search for whether there is a similar difference of opinion with respect to clear error, such as what exists between Illinois and Colorado, in various federal courts, but there very well could be.
  9. The ADA prohibits regarding a person as having a physical or mental impairment. It also frowns upon myths, generalization, and stereotypes. An argument can be made that is exactly what goes on when it comes to using peremptory challenges. I can understand why Arizona got rid of peremptory challenges altogether. Keep in mind, I am not a trial attorney, so it is easy for me to say that it might make a great deal of sense to get rid of peremptory challenges.
  10. It is unclear whether Colorado’s substantial motivating factor test matches up with or is significantly different from the substantial factor test discussed in Bostock, here.
  11. Implausible or fantastic explanations are in the eyes of the beholder, which is another reason it makes sense for Illinois to be extremely skeptical of demeanor-based explanations.

I hope everyone had a good weekend. I just got back from the Federal Bar Association national convention in Kansas City, which was fabulous. I was part of a fantastic panel speaking on policing and persons with disabilities. In particular, we talked about a lot of different things. My part focused on why Graham v. Connor should no longer be used as the basis for training (we discussed that issue in this blog entry), and the police responsibility for getting the laws regarding service animals, particularly with respect to title III of the ADA, correct. The panel was fabulous and consisted of myself, Aisha Novasky of Disability Rights California, and two Brown Goldstein attorneys-Jamie Strawbridge and Michael Abrams.

 

Turning to the blog entry of the day, it is a case discussing the following (which will also serve as my blog categories): 1) whether temporary disabilities are covered by the ADA; 2) what does it mean to have a disability that is minor for purposes of the regarded as exception; 3) when is medical testimony required to establish a disability; and 4) miscellaneous matters. After describing the facts of the case, we will discuss each one of those topics below. Of course, at the end of the blog entry, we will have our thoughts/takeaways section. The case of the day is Morgan v. Allison Crane and Rigging, LLC, a published decision decided by the Third Circuit on September 4, 2024, here.

 

I

Facts

 

In the fall of 2019, Andrew Morgan was employed by Allison Crane and Rigging as a millwright laborer until he was terminated on November 18, 2020.

 

On September 29, 2020, while working at the Williamsport location, Morgan injured his lower back. Although he was in “severe pain,” Morgan completed his shift. He informed at least one co-worker, as well as Hastings (his supervisor), about his back injury. Hastings told Morgan that he would “relay the message” to Mundrick. Morgan continued working his regular shift through the remainder of the week but informed his crew that he was still in pain and considering chiropractic treatment.

 

Several days later, on October 1, 2020, Morgan saw a chiropractor. Morgan testified that the chiropractor diagnosed him with a bulged or herniated disc in the lower back and recommended that Morgan return twice weekly for treatment to alleviate the lower back pain. Morgan’s back became inflamed when he sat, walked, or turned left or right. Morgan complied with the treatment plan by making twice-weekly visits to his chiropractor, and the chiropractor further advised Morgan to switch to “light duty” work.

 

On October 7, 2020, Morgan had a meeting with several supervisors—including Bonislawski and Thomas Ungard. Morgan again informed them of his back injury at that meeting and he was told that he would be placed on light duty. He was also advised to not file a workers compensation claim on the grounds his injury was not sufficiently severe.

 

On October 8, and again on October 22, 2020, Morgan’s chiropractor wrote a note stating that Morgan should be excused from “bending or lifting” items over fifteen pounds through November 4, 2020. 8 Then, on November 5, 2020, the chiropractor further restricted Morgan from bending or lifting items over thirty pounds for another thirty days; a period which would have run through December 5. However, on November 25, 2020, Morgan’s chiropractor released Morgan “to his full occupational duties without restrictions.” In total, from October 8 until November 25, 2020, Morgan’s chiropractor placed him on bending and lifting restrictions for forty-eight days. Morgan shared the chiropractor’s notes with Bonislawski, and Morgan concedes that Allison Crane did indeed place him on light duty restrictions, until it terminated him.

 

According to Allison Crane, Morgan’s actions during one week in November led to his termination. On November 13, 2020, Bonislawski warned Morgan about not wearing the appropriate protective equipment while working. Several days later, Morgan was assigned to drive a truck to escort a crane from a job site in Syracuse, New York. Morgan texted the dispatcher that he could not perform the task because the timing conflicted with an important back appointment that he did not want to miss, but he was willing to do another job that did not conflict with the appointment.

 

Morgan testified that, later that day, he was again contacted by dispatch, and he told dispatch that he could not do the job because he could not “sit for that long of a time” without inflaming his back but that he could do “light duty” work. According to Morgan, the dispatcher said “they would be able to find somebody else.” Morgan claims that he went to work in the yard on November 17, 2020.

 

The next day, on November 18, 2020, Bonislawski fired Morgan, purportedly because Morgan failed to “follow the day off request process as well as other policies” when he did not “show for work” on November 17.12 Prior to Morgan’s termination, he continued to work full time, for the same wages, and did not miss any workdays.

 

II

 

Court’s Reasoning That Temporary Impairments Can Qualify As an Actual Disability under the ADA

 

  1. Prior to the enactment of the amendments to the ADA, the Supreme Court had held in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams that an impairment must prevent or severely restrict the individual when doing activities that are of central importance to most people’s daily lives and be permanent or long-term in order to qualify as a disability.
  2. In enacting the amendments to the ADA, Congress rejected the Supreme Court’s permanency standard. More specifically, Congress mandated that the definition of disability must be construed in favor of broad coverage of individuals and to the maximum extent permitted. In response to that admonition, the EEOC explained that even an impairment expected to last less than six months can constitute an actual disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
  3. Other Circuits since the amendments, have held in published opinions that temporary impairments can qualify as an actual disability under the ADA. The Third Circuit has reached the same conclusion in unpublished opinions. Even the defendant, now agrees that an impairment lasting fewer than six months can constitute a disability.
  4. The trial court’s reliance on a prior Third Circuit decision is misplaced because that decision applied the pre-amendment standard to what constitutes a disability. While that decision came down after the amendments, the actual case was filed before the amendments. So, the law before the amendments was the law in effect at the time the case the trial court relied on was decided.
  5. The analysis of Morgan’s general back pain under the ADA must focus on whether his injury substantially limited his ability to perform a major life activity as compared to most people in the general population. Morgan clearly established such a limitation with his allegations. In particular: 1) Morgan testified that it hurt to sit, to walk, and hurt to turn left or right; 2) from October 8 until November 5, 2020, Morgan’s chiropractor advised him against lifting anything over 15 pounds and from bending; and 3) from November 5 until November 25, Morgan was still advised not to bend and was further restricted from lifting more than 30 pounds.
  6. Given that lifting and bending are major life activities, a reasonable jury could find that Morgan’s back pain, even though it was temporary, constituted an actual disability because it substantially limited the ability to perform major life activities as compared to most people in the general population.
  7. The amendments to the ADA makes clear that the duration of an impairment is not dispositive of whether someone is disabled.
  8. All short-term impairments do not necessarily rise to the level of disability under the ADA because a plaintiff must still demonstrate that the short-term impairment substantially limits a major life activities.

 

III

Court’s Reasoning That Sufficient Allegations Exist to Show That Morgan’s Temporary Impairment Was Not Minor and Therefore Is Not Precluded by the Regarded As Exception

 

  1. An impairment lasting fewer than six months is transitory. However, for the transitory and minor exception to apply, the impairment must be BOTH transitory and minor.
  2. Minor is not defined by statute, but coverage under the regarded as prongs should not be difficult to establish.
  3. The determination of whether an impairment is minor must be made on a case-by-case basis, and the factors to be considered depend on the particular impairment.
  4. The requirement for a prima facie regarded as claim are less demanding than those for an actual disability claim.
  5. The only issue the trial court had to determine was whether his back pain was also minor.
  6. It would be paradoxical to conclude that Morgan’s back pain that limited the major life activities of bending, lifting, walking, and sitting was minor given that the substantially limits requirement is a higher burden to meet.
  7. The minor requirement of the regarded as exception is only intended to include impairments at the lowest end of the spectrum of severity, such as common ailments like the cold or flu. Back pain that causes difficulty and bending, lifting, walking, and turning left or right, is undoubtedly more than minor pain.

 

IV

Court’s Reasoning as to When Medical Testimony Is Required in Order to Establish a Disability

 

  1. Medical testimony is not always required to establish a disability.
  2. The necessity of medical testimony is decided on a case-by-case basis, and it turns on the extent to which the alleged impairment is within the comprehension of a jury that does not possess a command of medical or otherwise scientific knowledge.
  3. Generally, ailments that are the least technical nature and are the most amenable to comprehension by a lay jury need not be established by medical evidence.
  4. Arm and neck pain are among those ailments not requiring medical evidence. However, a herniated disc is a spinal injury not within the comprehension of a jury that does not possess a command of medical or otherwise scientific knowledge. Accordingly, Morgan’s claim that he was unlawfully discriminated against because of an actual herniated or bulged disc disability is dismissed.

 

V

Miscellaneous Matters

 

  1. The Third Circuit also said that the trial court erred in dismissing Morgan’s retaliation and failure to accommodate claims. In particular, the defendant did not even move for dismissal of the retaliation claims and the trial court did not report to dismiss the retaliation claims on its own motion. Accordingly, the order dismissing the retaliation and failure to accommodate claims must be vacated and remanded to be addressed by the trial court. On remand, the trial court needs to consider whether the defendant failed to preserve its arguments against the retaliation claim.
  2. The court also said that the defendant may have run itself into trouble when it tried to discouraged Morgan from filing a workers compensation claim and he in fact refrained from doing so.

 

VI

 

Thoughts/Takeaways

 

  1. Temporary impairments can be a disability under the ADA after the amendments (since 2009).
  2. Toyota Motor, here, is no longer good law.
  3. Sutton v. United Airlines, here, is still good law with respect to any allegation that the major life activity of working was substantially limited. After the amendments, there should be almost no reason why a plaintiff would allege working as the major life activity. In fact, I have argued I have argued in the past that it would be legal malpractice for a plaintiff to do so except in the most unusual of cases.
  4. Disabilities lasting less than six months can constitute an actual disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. That is, the duration of an impairment is not controlling when determining whether a person is disabled under the ADA.
  5. Establishing a substantial limitation on a major life activity should not be difficult in most cases. It becomes even less difficult if the argument is that the defendant regarded the plaintiff as having a physical or mental impairment (regarded as claim).
  6. For the regarded as exception to apply, the disability must be BOTH transitory and minor.
  7. Whether a disability is minor turns upon whether there was a substantial limitation in a major life activity compared to most people in the general population.
  8. Medical testimony may or may not be required to establish a disability. However, the standard set by the court is ambiguous. Therefore, as a matter of preventive law, a plaintiff will want to have at the ready a person to discuss why the physical or mental impairment is a disability.
  9. Courts need to be clear when dismissing claims to why they are doing it. For example, are they dismissing claims on their own motion or upon a request from the party.
  10. Dissuading a person from filing a claim is never a good idea. See this blog entry.
  11. This case illustrates that the minor exception of transitory and minor in regarded as cases leads back to the actual disability prong. That is, you look to whether a substantial limitation on a major life activity exists. Such an analysis lead to a rather quirky situation where for regarded as claim, you don’t need a substantial limitation on a major life activity. However, if defendant argues the transitory and minor exception, then a substantial limitation must be shown, though the burden for showing a substantial limitation (not clear at all who has that burden), is not nearly as high as it is for an actual disability claim.

I hope everyone had a great holiday weekend.

 

This week’s blog entry is a case out of the Second Appellate District of the Court of Appeal of the State of California. It is a case involving whether attorney fees can be imposed upon plaintiff’s counsel as a sanction when the lawsuit is frivolous. The case is Morgan v. Zarco Hotels Inc. decided on August 21, 2024 and can be found here. As usual, blog entry is divided into categories and they are: facts; court’s reasoning the award of attorney fees against plaintiff’s counsel as a sanction must be thrown out; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts are really straightforward. A plaintiff and the law firm she used, Center for Disability Access, filed a failure of a website to be accessible to a person with a disability lawsuit. While the plaintiff asserted no cause of action under the ADA, the complaint did seek a permanent injunction ordering compliance with the ADA and that defendant’s actions violated the ADA. Early in the litigation, defendant’s counsel contacted plaintiff’s counsel and explained that the hotel’s website was fully accessible and ADA compliant. He also said that the complaint lacked merit and the lawsuit should be dismissed. The defendant then filed a motion for summary judgment supported by a declaration from an expert who conducted an accessibility audit of the hotel website attesting to its accessibility by persons using screen reading technology. Plaintiff did not oppose the summary judgment motion and the action was dismissed. The defendant then filed a motion for attorney fees against the plaintiff and the plaintiff’s attorneys under §12205 of the ADA and California Rules of Court. The trial court found that the plaintiff’s action was meritless, frivolous, unreasonable, and without foundation, based on defendant’s evidence and plaintiff’s failure to present any evidence supporting the merits of the case. The trial court denied the motion as to plaintiff finding no evidence that the plaintiff did anything improper. The trial court granted the motion against plaintiff’s counsel because the court believed that the parties communication should have put plaintiff’s counsel on notice of the problems with the case. Accordingly, the trial court ordered plaintiff’s counsel to pay $55,414.84 in attorney fees. Plaintiff and plaintiff’s counsel appealed.

 

II

Court’s Reasoning That the Award of Attorney Fees Against Plaintiff’s Counsel as a Sanction Must Be Thrown out

 

  1. Under the ADA, a prevailing defendant can only recover attorney fees if the ADA claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate it after it clearly became as such.
  2. The ADA clearly applies to the case as the complaint referenced it in various ways.
  3. Fee awards against attorneys are ordinarily available only as sanctions and are generally not allowed under routine fee shifting provisions.
  4. Trial courts cannot award attorney fees as a sanction for misconduct in the absence of statutory authority or agreement of the parties.
  5. §12205 of the ADA, here, does not expressly authorize an award of attorney fees as sanctions against a party’s counsel. The silence of the statute as to whether attorney fees may be assessed against a party’s counsel does not authorize a court to do so.
  6. Defendant cited no authority where attorney fees under the ADA were assessed against a party’s counsel and the court found no such authority. Accordingly, case law supports the presumption that fee shifting statutes apply only to parties unless the statute expressly states otherwise.
  7. The Supreme Court has declined to make lawyers responsible for fees under other fee shifting statutes, and Federal and California appellate courts have applied that principle to other similar fee shifting statutes.
  8. Cases interpreting fee shifting statutes with similar language to §12205 uniformly disallow attorney fees award against a party’s counsel. There is no reason to interpret the ADA fee shifting statutes differently. The similar language of other fee shifting statutes is a strong indication that they are to be interpreted in the same way.
  9. §12205 of the ADA does not authorize assessment of attorney fees against a party’s attorney.

 

III

Thoughts/Takeaways

 

  1. In most situations, a plaintiff involved in serial lawsuits is likely to be judgment proof. So, that may explain why the defense went after plaintiff’s counsel as well as the plaintiff.
  2. Attorney fees cannot be awarded as a sanction against a plaintiff’s attorney in an ADA matter.
  3. Since most serial plaintiffs are likely to be judgment proof, one wonders how a defendant could collect any attorney fees award in the event of a frivolous lawsuit.
  4. Oftentimes, defendants will just settle a serial web site lawsuit instead of litigating it. This is a situation where the defendant refused to do that.
  5. This is a California case interpreting the ADA. Accordingly, one wonders whether federal courts will interpret the ADA in the same manner. It will be interesting to follow how this particular issue plays out in the federal courts.
  6. The trial court did not award attorney fees against the plaintiff because the plaintiff did nothing wrong. Interesting phrasing. It also makes you wonder whether to recover attorney fees against a plaintiff, the defendant would have to prove some form of wrongdoing involving the plaintiff beyond hiring counsel to prosecute the claim.

Did you know that asthma might not be a disability? How is that even possible? After all, asthma is certainly a physical impairment that limits breathing and the immune system. Even so, the Sixth Circuit in Andrews v. Tri-Star Sports and Entertainment Group, Inc., here, on August 21, 2024, said that a plaintiff’s asthma was not a disability under the ADA. How did they get there? There was also a dissenting opinion worth discussing as well. As usual, the blog entry is divided into categories and they are: facts; majority opinion’s reasoning that Andrews forfeited certain arguments; majority opinion’s reasoning that Andrews did not sufficiently claim her asthma substantially limited the major life activity of breathing; Judge Clay’s dissenting opinion stating that the majority gets it wrong when it says Andrews asthma is not a disability protected by the ADA as amended; Judge Clay’s dissenting opinion stating that the defendant can have liability for failure to engage in the interactive process; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Andrews was diagnosed with asthma when she was fourteen or fifteen. She uses three medications daily and an inhaler as needed. Prior to her work at Tri Star, Andrews cheered competitively, sang and danced in a professional musical production in New York City, and coached cheerleading. While working at Tri Star, Andrews competed in exhibition cheerleading. She also attended 100-200 minute “heavy exertion” CrossFit classes two or three time weekly before suffering a rotator cuff injury. Since her termination from Tri Star, she went on cruises both to Alaska and the Caribbean, traveled to Spain and Orlando, and participated in gymnastics twice a week.

 

In March 2020, the Covid-19 pandemic forced the sudden cancellation of many live events. Tri Star earns commissions from live events and lost much of its revenue. To reduce its force, Tri Star’s CEO determined that only those she deemed “essential employees”—those who generate money for the company—would be able to work from home, while “nonessential employees” who requested to work from home would be laid off.

 

Around this time, Andrews asked her primary care provider, a nurse practitioner, if she should take any specific precautions against Covid-19. Andrews’s provider instructed her to “wash [her] hands, work from home if . . . able,” and to “self-quarantine” if she experienced symptoms. The next day, when Andrews went to the office, Tri Star employees—including her desk mate—were using Lysol spray cleaner. Irritated by the spray, Andrews went to the bathroom, used her inhaler, and returned to her desk for the remainder of the day. After Andrews’s supervisor expressed concern about Andrews’s cough possibly being Covid-19, Andrews assured him that it was “just a cough from asthma.” That same day, the Human Resources (HR) manager sent an email asking employees to speak with her and their supervisors immediately if they needed to work from home.

Andrews emailed her supervisor and the HR manager requesting to work from home. She falsely claimed that her “doctor” was “pissed at [her] and called [her] irresponsible for not staying at home[.]” Although Andrews told the HR manager that she would come into the office the next day, she later called her supervisor and said that her asthma and cough were getting worse. Again fearing that Andrews may have Covid-19, Andrews’s supervisor instructed her to stay home for the day. The next day, Andrews emailed the HR manager a note from her primary care provider stating that she has “well controlled” asthma but would “benefit from working at home due to the rising risk of COVID-19.” Meanwhile, the CEO deemed Andrews’s position “nonessential.” Two days later, Tri Star fired Andrews and nine other nonessential employees who requested to work from home.

According to the majority opinion, in the complaint: 1) Andrews never alleged that her asthma compromised her immune system or put her at an increased risk of contracting Covid-19. Instead, defendant only learned of those allegations when Andrews responded to its motion for summary judgment; 2) In briefing, Andrews failed to support her assertions with accurate record cites or any record cites at all; 3) Andrews failed to respond to the arguments made by the defendant that she had failed to allege she had a record of her asthma substantially limiting a major life activity.

 

II

Majority Opinion’s Reasoning That Andrews Forfeited Certain Arguments

 

  1. New claims may not be raised in response to a motion for summary judgment.
  2. The claim that her asthma substantially limited her immune function was missing from the complaint. Andrews never alleged that her asthma compromise her immune system or put her at an increased risk of contracting Covid-19. Since defendant only learned of those allegations in Andrews’ response to its motion for summary judgment, the defendant was not afforded fair notice of her immune related arguments or the grounds upon which they rested. Therefore, the defendant had no opportunity to investigate them during discovery. As a result, Andrews waived her arguments that her asthma was substantially limited, or was perceived as substantially limiting, her immune function.
  3. Andrews failed to respond to the defendant’s argument that she failed to allege that she had a record of asthma that substantially limited a major life activity. Therefore, she forfeited that argument.
  4. Andrews failed to allege that the defendant regarded her as being immunocompromised. Accordingly, that argument was forfeited as well.

 

III

Majority Opinion’s Reasoning That Andrews Did Not Sufficiently Claim That Her Asthma Substantially Limited the Major Life Activity of Breathing

 

  1. Andrews did not describe the impact of her asthma as severe enough to qualify as a substantial limitation on her breathing. The ADA says that a major life activity is substantially limited when an individual cannot perform that activity as an average person in the general population could perform, or if the individual faces significant restrictions in the condition, manner, or duration under which he can perform the activity. 29 C.F.R. §1630.2(j)(i)-(ii).
  2. Andrews told her medical provider that there was very little she couldn’t do. Extra strenuous activities could be a problem. She said there were a few extreme things that she wouldn’t do and that she avoided cardio intensive things. She also avoided: dogs that shed; using spray cleaner; or being in the cold for long periods of time. As a result, Andrews is able to physically perform well beyond the average person. After all, she goes to gymnastics twice a week, travels internationally, attends CrossFit workouts two or three times a week, was a competitive cheerleader and cheerleading coach, and sang and danced in a professional musical production. Since Andrews only alleged to her asthma prevented her from participating in just a few activities or settings, she did not raise a genuine issue of material fact as to whether she was substantially limited in the major life activity of breathing.

 

IV

Judge Clay’s Dissenting Opinion Stating the Majority Gets It Wrong When It Says That Andrews Asthma Is Not a Disability Protected by the ADA As Amended

 

 

  1. The majority determination that Andrews does not have a disability under the ADA wrongfully assumes those who are disabled cannot find ways to participate in everyday activities and blatantly contradicts the 2008 amendment to the ADA.
  2. By ignoring the text and intent of the amendments to the ADA, the majority erroneously determined that Andrews’asthma does not qualify as a disability because she is able to engage in various exercise related activities with the routine use of her inhaler and medication, a fact the majority opinion declined to acknowledge.
  3. Andrews provided a legitimate Dr.’s note stating she had asthma. It also stated that while the asthma was well-controlled, that she would benefit from working at home due to the rising risk of Covid-19.
  4. The defendant listed Andrews as being immunocompromised on a list of 12 employees that had requested to work from home. Three days after making that list with a compromised immune system noted, Andrews was told that she was being laid off as part of a reduction in force.
  5. The majority opinion rest upon the assumption that an individual with a disability cannot find ways to cope with his or her disability and still be considered disabled. Such an approach ignores the amendments to the ADA express instruction to reject any consideration of mitigating measures and to broadly construe what constitutes a disability.
  6. Prior to the passage of the amendments to the ADA, individuals who took self-help measure to improve their conditions were frequently deemed not covered by the protections of the ADA as a result of the Supreme Court opinion in Sutton v. United Airlines.
  7. Sutton resulted in serious conditions, such as epilepsy, diabetes, cancer, bipolar disorder, depression, and asthma, being categorically excluded as a disability under the ADA. So, Congress stepped in with the amendments to the ADA. The purpose of the amendments was to shift the focus in ADA litigation from whether an individual’s impairment substantially limits a major life activity to the more important question of whether covered entities have complied with the ADA and whether the discrimination has actually occurred.
  8. The amendments to the ADA prohibited courts from considering mitigating measures when assessing whether impairment substantially limits a major life activity.
  9. The amendments also made it no longer relevant to determining whether the impairment substantially limits a major life activity that the disability may be episodic in nature or occur infrequently.
  10. It does not matter Andrews’ asthma flares up only occasionally. Further, Andrews’use of the inhaler should not be considered when determining whether her asthma is a disability.
  11. The amendments to the ADA specifically stated that the substantial limitation standard is not meant to be a demanding one and that the ADA mandates the definition of disability should be construed in favor of broad coverage of individuals.
  12. The majority opinion mirrors outdated case law Congress expressly overturned with the amendments to the ADA. That outdated case law is no longer good law and cannot be relied upon. Prior to the passage of the amendments, Andrews’ asthma likely would not have constituted a disability because she is essentially able to function normally with the use of the her inhaler. However, after the amendments, courts can no longer consider mitigating measures when assessing whether an individual has a disability. Instead, the appropriate inquiry is whether the plaintiff’s asthma would substantially limit a major life activity when active without the consideration of the relief she gets from using her inhaler and her other medications.
  13. The answer to the inquiry as to whether she is substantially limited in the major life activity of breathing absent use of her inhaler and other medications is obviously yes for many reasons: 1) she was diagnosed with asthma during high school; 2) the parties agree that her asthma triggers include the wind blowing interface, being in cold temperatures, high humidity, stress, strong smells, perfume, synthetic fog, and aerosol cleaning products. Each of those triggers inhibits her ability to breathe.
  14. Andrews also testified that she has to deal with her asthma every day and tries to not let it get in her way and that it can be debilitating.
  15. Defendant does not dispute that she uses her inhaler regularly and must do so.
  16. Andrews elaborated that her asthma can culminate in bronchitis or pneumonia, resulting in shortness of breath even if she simply gets up and tries to move around.
  17. She also testified that there were a lot of things she would like to do that she chooses not to do because they would be a problem as a result of her asthma.
  18. She testified that her asthma would not be well-controlled in the absence of her inhaler and additional medications.
  19. To combat the simple conclusion that she is substantially limited in the major life activity of breathing when mitigating measures are not considered, the majority ignores the amendments to the ADA saying that her transient and isolated asthma does not qualify as a disability. Such an outdated analysis is no longer permissible. That is, whether it disability occurs only in response to stimuli or can be controlled with mitigating measures is no longer relevant to the disability inquiry.
  20. The majority compounds its error by implying that Andrews cannot possibly claim to be disabled due to asthma and at the same time maintain an active lifestyle. That conclusion is absolutely wrong. Importantly, Andrews engages in those activities only with the assistance of her inhaler, which can’t be considered when determining whether she has a disability.
  21. By not evaluating whether Andrews has substantial limitation during exercise if she did not use her inhaler or other medication, the majority followed the District Court’s perfunctory conclusion that she did not adequately cite to the record to support that her active lifestyle is possible only due to her medications. Even a quick review of the undisputed facts show that Andrews always uses her rescue inhaler prior to exercising to keep her asthma controlled. By refusing to consider the effects of her asthma without regards to mitigating measures, the majority’s opinion puts its analysis within the rubric of pre-2008 case law, which Congress overruled with the amendments to the ADA.
  22. In a footnote, Judge Clay notes that contrary to the majority’s holding, the district court did consider Andrews’ mitigation argument.
  23. In emphasizing her ability to attend exercise classes, the majority relies on the long outdated presumption that someone who is truly disabled could not engage in strenuous activities. Just because she found ways to cope with her asthma does not bar her from being considered disabled within the purview of the ADA. After all, a court would not hold that a plaintiff with a prosthetic leg claims he is substantially limited in his ability to walk would not be disabled if he attended workout classes as such an interpretation would be absolute nonsense.
  24. Although there are certainly circumstances in which asthma would not substantially limit a major life activity, there is sufficient evidence in this case that a reasonable trier of fact could conclude that when Andrews’ asthma was active that she was substantially limited in her ability to breathe compared to most people in the general population.
  25. In a footnote, Judge Clay notes that the majority argument is very similar to an argument that Congress specifically rejected when passing the amendments to the ADA. For example, Congress stated that when considering the condition, manner, or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking.

 

V

Judge Clay’s Dissenting Opinion That the Defendant Can Face Liability for Failure to Engage in the Interactive Process

 

  1. Tri-Star admitted that it did not engage in any interactive process.
  2. Andrew triggered the defendant’s obligation to engage in the good faith interactive process by sending a written request to work from home accompanied by a Dr.’s note.
  3. Andrews’ requested accommodation could be viewed by a jury as objectively reasonable as the defendant was soliciting such requests and she had worked from home successfully in the past.
  4. After she made her requests, she was entitled to an interactive process built around communication and good-faith exploration of possible accommodation by both the employee and the employer.
  5. Had the defendant attempted to engage in the interactive process as it was obligated to do, the parties may have found a variety of alternative options allowing Andrews to perform in person work throughout the duration of the pandemic. For example, Andrews may have agreed to continue working in person if the office agreed to implement a policy of using disinfectant wipes instead of aerosol cleaning spray. Although it is possible that she may have ultimately insisted on the accommodation of working remotely, the defendant did not engage in any form of a conversation that could have led them to that conclusion.

 

VI

Thoughts/Takeaways

 

  1. When it comes to complaints, this case illustrates that it is really important for a plaintiff to list absolutely everything that may be a major life activity that is substantially limited by the client’s physical or mental impairment. The amendments to the ADA gives quite a long laundry list of possibilities. That list is also not exclusive, though it helps to stick to the list.
  2. It is important to respond to arguments raised in a motion for summary judgment and to make sure that the complaint is as comprehensive as possible.
  3. Complaints need to state enough facts so as to give a reasonable person notice as to what is being complained of. Notice pleadings is dead after Iqbal/Twombly, but fact-based pleadings isn’t entirely required either. Preventive steps means approaching a complaint more on the fact based side rather than on the notice side.
  4. I can understand the forfeiture arguments. However, in my opinion, the dissenting opinion overwhelmingly carries the day with respect to whether Andrews is a person with a disability for all the reasons the dissent mentions.
  5. This is a decision out of the Sixth Circuit, which encompasses Kentucky, Michigan, Ohio, and Tennessee. The court sits in Cincinnati Ohio. One has to wonder in light of the dissenting opinion’s strong arguments whether an en banc rehearing would be sought. Also, while I rarely suggest that it is a good idea from the person with a disability side to seek an appeal to the United States Supreme Court in an employment matter, this may be an exception to that rule. While the case concerns an employment matter, which may present a problem for the person with a disability at the Supreme Court typically, this case is about definitional matters. It seems possible to me that the Supreme Court would have problems saying that Sutton (with the exception of working as a major life activity, which remains good law), still applies even in the absence of specific statutory authority stating otherwise. As the dissent points out, the majority opinion make some unfortunate assumptions about what people with disabilities are capable of (for example, the Paralympics start this week), and that also may not sit well with the Supreme Court.
  6. The employer may have dodged a bullet here with the majority’s ruling on there being no disability. If it hadn’t dodged that bullet, the failure to engage in an interactive process would have been very problematic for this employer. Always engage in the interactive process. Remember, it doesn’t take much to trigger the interactive process. For example, magic words aren’t required. Also, don’t forget about the do’s and don’ts of the interactive process. Finally, after the amendments, it is a very rare case where a defendant can successfully claim that a disability is not involved.
  7. After the amendments, mitigating measures cannot be considered when deciding whether a person has a disability unless eyeglasses are involved. Mitigating measures can be considered with respect to reasonable accommodations but the two concepts are not at all the same.
  8. The decision is not published.
  9. I am not sure I understand the majority’s statement that Andrews failed to respond to arguments that she did not allege a record of having asthma. After all, the majority opinion itself said she was diagnosed with asthma back in high school.
  10. The EEOC has made it clear that in the vast majority of cases whether an impairment is substantially limited is not a demanding inquiry, which is not how the majority opinion goes about it.

Before getting started on the blog entry of the day, I am currently reading Over Ruled by Justice Gorsuch and Janie Nitze. My passion for constitutional law and legal theory started in college when I took those two separate classes from Professor Rumble while majoring in political science at Vassar College. Now, I enjoy reading books like that to get a sense of what a jurist’s philosophy might be. Justice Gorsuch, regardless of whether you agree with him or not, is a fabulous writer and very enjoyable to read. One thing is clear from reading the book is that it should not be a surprise the position he took in Loper Bright. It also creates a real question as to whether Loper Bright, which we discussed here, overruled Kisor v. Wilkie, which we discussed here. I think from Justice Gorsuch’s perspective, you could make the argument that Loper Bright prevails over Kisor v. Wilkie.

 

Turning to the blog entry of the day, it involves a particularly egregious set of facts. If this was an employment situation, I would hope that Jon Hyman, Esq. would nominate the employer for a worse employer of the year award. However, it is not an employment situation, so I don’t think the entity in this case is eligible for that award. The case explores the question of when is something medical malpractice v. disability discrimination and why does it matter. The case is Costin v. Glen Falls Hospital decided on June 12, 2024 by the Second Circuit, here. As usual, the blog entry is divided into categories and they are: facts (taken directly from opinion); court’s reasoning that plaintiff has standing; court’s reasoning denying certain ADA and Rehabilitation Act claim; court’s reasoning allowing certain ADA and Rehabilitation Act claims (instigation of CPS investigation and administration of drug tests), to go forward; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken directly from opinion)

 

When Costin’s water broke in March 2021, she was met at the Hospital by Nurse Stacy Ralph. Nurse Ralph and Costin discussed her medical history and birth plan, including Costin’s wish for an epidural injection. When asked what medications she was taking, Costin responded that she takes Subutex twice a day (as prescribed by her primary care physician). Subutex, like related medication Suboxone, is used to treat individuals with substance-abuse disorder. Notwithstanding her treatment with Subutex and rehabilitation, Costin “still has substance abuse disorder[,]” but she “is no longer using illicit opioids.” A26 (Am. Compl. ¶ 29).

After a change in shift, Nurse Ralph informed the incoming nurse, Nurse Karen Ranttila, that Costin was taking Subutex. Nurse Ralph also advised that the Hospital was awaiting the results from a urine-toxicology screen, a test that Costin was not informed about and did not consent to.

As Costin’s labor resulted in intense contractions that caused her to go “in and out of consciousness[,]” she asked Nurse Ranttila to prepare her epidural shot; Nurse Ranttila responded that the Hospital’s anesthesiologist was on call and that she would contact him to start the epidural process. A27-28 (Am. Compl. ¶ 33). Over the next hour, Costin’s contractions intensified, but she did not receive an epidural.

At one point, Nurse Midwife Nicole Bennett entered Costin’s hospital room and “blurted” out, “[y]our urine test came back with positive results for both cocaine and PCP.” A28 (Am. Compl. ¶ 34). Costin “immediately informed everyone in the room that the positive results were wrong, she did not take cocaine or PCP during her pregnancy, and the [H]ospital must have made an error in the lab or tested the wrong patient’s urine.” Id. Costin asked Nurse Ranttila to immediately redo the urine test or to conduct a blood test, and Costin continued to “beg” for an epidural. A28 (Am. Compl. ¶¶ 34-35).

As Nurse Ranttila collected a second urine sample, she asked Costin if she was “sure [she] didn’t do cocaine before coming in?” A28 (Am. Compl. ¶ 35) (internal quotation marks omitted). Nurse Ranttila also stated that (1) the Hospital “drug tests pregnant women who take Suboxone or Subutex `all the time'”; and (2) the Hospital “compares Subutex patients’ prescribed dosage against the levels in their system to try to determine whether they are illegally selling their pills.” Id. (emphasis omitted).

Approximately one hour later, Nurse Midwife Bennett informed Costin that her second urine sample tested negative for all substances. Nurse Ranttila informed Costin that the Hospital was withholding the epidural. Hospital staff then connected a bag of fluids to Costin’s IV drip. Costin again asked for an epidural, but Nurse Ranttila informed Costin that the bag of fluids contained Pitocin (a drug given to accelerate labor) and that the Hospital staff were waiting for her to finish receiving the fluids. Although Costin continued to ask for an epidural and did not want to accelerate her labor, Hospital staff refused to administer pain relief, ignored her request to withhold the Pitocin, and proceeded with inducing labor.

When Baby A was born later that evening, he had a bruised face, burst blood vessels in both eyes, and severe jaundice, attributable to the “violent nature” of his birth. A29-31 (Am. Compl. ¶¶ 38, 41, 42). Despite Costin’s protests, Nurse Ranttila collected Baby A’s urine and meconium to run additional toxicology screenings. Baby A was then placed into an incubator, which prevented him from having skin-to-skin contact with Costin. During this same period, Hospital staff sewed Costin’s vaginal tear closed without any form of pain relief, despite Costin’s “relentless[ ] yelling . . . for them to stop.” A30 (Am. Compl. ¶ 40).

The next day and the day after, Costin wanted to leave the Hospital to take a shower. Nurse Jodie Smith told Costin that she could not leave until she spoke to the attending physician, who would be visiting her room by 4:00 p.m. But the Hospital was actually delaying Costin’s discharge because it had contacted the New York State Child Abuse and Maltreatment Register “to report suspicions that . . . Costin was `responsible for causing or allowing to be inflicted injury, abuse, or maltreatment'” on Baby A. A33 (Am. Compl. ¶ 49). A caseworker from Warren County Child Protective Services (“CPS”) arrived at approximately 4:00 p.m. and directed Costin to submit to a third urine-screening test. The caseworker also directed Baby A’s father to take a drug test. After the caseworker left, Costin was allowed to go home to shower.

Upon her return to the Hospital, Costin met with Hospital representatives, who assured her “that they would change the manner in which they operate so that no patient is ever treated the way that Ms. Costin was treated,” and told her that “CPS would not conduct a home visit until further notice, given the circumstances,” and that a social worker employed by the Hospital, “would follow the case.” A37 (Am Compl. ¶ 58). Nevertheless, the Hospital refused to discharge Baby A until CPS could conduct a home visit. When Costin expressed confusion as to why CPS was still involved, Dr. Kevin Grassi informed Costin that the Hospital “reports possible child abuse by every patient that comes in on Suboxone.” A38 (Am. Compl. ¶ 60) (some emphasis omitted).

The next day, the Hospital informed Costin that her initial drug test was a false-positive and that CPS had closed its investigation. She was then allowed to go home with Baby A. But, within five minutes of Costin’s return home, the CPS caseworker arrived and informed Costin that the CPS investigation would not be closed without the test results from Baby A’s meconium. Ultimately, Costin received a letter from CPS stating that the Hospital’s suspicions of child abuse were unfounded.

Costin’s lawsuit alleges violations of Title III of the ADA, Section 504 of the RA, and numerous state laws. Most relevant to this appeal, Costin alleges that the Hospital violated the ADA and RA through: (1) the drug tests conducted without informed consent; (2) the report to CPS based on a drug test that it was aware produced a false-positive result; (3) the withholding of pain relief; (4) the induction of labor without consent; (5) the decision to keep Costin and Baby A in the Hospital; (6) the refusal to explain alternative treatments available to Baby A; and (7) the failure to take steps to remedy the Hospital’s abuse.

 

II

Court’s Reasoning That Plaintiff Has Standing

 

  1. Plaintiff plausibly alleged her intent to return to the Hospital despite how crazy things became because: 1) the Hospital was the only hospital within 15 miles of her home; 2) prior to giving birth, plaintiff had been a patient at the Hospital on at least three different occasions, including on an emergency basis; 3) the Hospital was the only one she can go to an emergency situation; 4) since birth of the child, she has already had to return to the Hospital with the baby and the baby’s father during an emergency; and 5) she is still very much of the age range when having another baby is a possibility.
  2. Plaintiff only needed to allege that she was likely to return to the Hospital as a patient and not necessarily as a pregnant one because her allegations suggest that the policies she seeks to enjoin are not specific to the maternity ward.
  3. Plaintiff has plausibly alleged that the Hospital policies discriminate against individuals with substance abuse disorder because they rely on stereotypes and pejorative views of Subutex users, regardless of whether those users are pregnant.

 

III

Court’s Reasoning Denying Certain ADA and Rehabilitation Act Claims

 

  1. The term “discrimination,” in the medical context can be potentially confusing because it could refer to discriminating by drawing distinctions relevant to the qualities or characteristics of the thing observed. It also could referred to discriminating by withholding advantages or inflicting disadvantages on the basis of irrelevant criteria, such as under the influence of irrational bias.
  2. Since disability is so often associated with a medical condition, the distinction of what discrimination might mean in the medical context is super important. That is, the federal law of discrimination does not review the conduct of the doctor administering a medical treatment to a patient or who withholds it because the doctor’s medical training leads the doctor to conclude that the treatment is medically appropriate or inappropriate. If the treatment is merely deficient, imprudent, or harmful, then the matter is one for medical malpractice. This is the case even if the doctor’s medical understanding is flawed and that doctor’s knowledge is deficient.
  3. A doctor who inflicts or withholds a type of medical treatment for reasons having no relevance to medical reasons dictated by bias rather than medical knowledge-is practicing the pejorative form of discrimination, the kind of discrimination prohibited by disability discrimination laws.
  4. A plaintiff pleads an actionable claim of discrimination for violations of the ADA or the Rehabilitation Act in the medical treatment context when a plaintiff alleges that the defendant made treatment decisions based on factors unrelated to and therefore improper to consideration of the inquiry in question.
  5. The disability discrimination claims against the Hospital for denying her an epidural, accelerating her labor, failing to discharge her child, preventing skin to skin contact between her and her child, and failing to explain treatment alternatives are medical decisions and sound in medical malpractice rather than in disability discrimination. Even if the decision-making was faulty or constituted malpractice, those claims cannot support claims under the Rehabilitation Act or the ADA.
  6. Medical decisions based on experience and judgment can easily be mischaracterized at the use of stereotypes.

 

IV

Court’s Reasoning Allowing Certain ADA and Rehabilitation Act Claims (Instigation of a CPS Investigation and Its Administration of a Drug Test), to Go Forward

 

  1. Plaintiff alleged that she was told the Hospital reports possible child abuse by every (emphasis in opinion), patient that comes in on Suboxone.
  2. Plaintiff alleged that she was told the Hospital drug test pregnant women taking Suboxone or Subutex all the time.
  3. Plaintiff also alleged that she was told that the Hospital compared Subutex patient test results with their prescribed doses in order to determine whether they are illegally selling their pills.
  4. Plaintiff has plausibly alleged that the Hospital had a blanket policy with respect to Subutex users to both report them to CPS for potential child abuse and to drug test them in order to determine whether they are illegally selling their pills.
  5. Plaintiff has sufficient allegations to support the inference that the Hospital instigated the CPS investigation solely due to the plaintiff’s history of substance abuse disorder.
  6. The Hospital agrees that such a policy has no relevance to medical decision-making.
  7. With respect to the drug testing claim, it is possible for a hospital pursuant to a medical decision, to institute a blanket policy subjecting an individual with a disability to different medical testing or treatment based on that individual’s disability without exposing itself to liability under the ADA or the Rehabilitation Act. However, plaintiff alleges that the policy is based upon a discriminatory motive. That is, the policy is based upon a pejorative view of Subutex and Suboxone users as being dishonest or even drug dealers, rather than based upon any medical rationale.
  8. The ruling is a narrow one because it does not address whether ADA or Rehabilitation Act liability is present. That determination requires further proceedings, including any affirmative defenses that the Hospital might raise.
  9. Since plaintiff only has a claim as to the CPS investigation and the administration of the drug tests, damages for liability under the Rehabilitation Act are limited to those claims.
  10. In a footnote, the court said that to the extent the plaintiff alleged she was prevented from leaving the Hospital due solely to the policy, that claim was vacated and remanded as well.

 

V

Thoughts/Takeaways

 

  1. The facts are truly awful.
  2. As far as I can tell, the decision is  not published.
  3. Medical malpractice cases and disability discrimination cases can certainly go together. I actually successfully co-counseled on such a case (happened to be plaintiff side), involving both medical malpractice and disability discrimination at the same time.
  4. Blanket policies are always a bad idea.
  5. When it comes to ADA or Rehabilitation Act matters, the individualized analysis reigns supreme.
  6. The distinction between disability discrimination and medical treatment makes sense. The danger is when medical professionals believing they know what is best for the person without a disability regardless of engaging the person with a disability in the first place. See also this blog entry.
  7. The distinction between disability discrimination and medical treatment does not mean no liability in either case. Rather, it means there may be liability for medical malpractice AND for disability discrimination simultaneously. The particular facts of the case will drive how that evolves in any particular situation.
  8. States can vary widely on their medical malpractice laws with respect to when they are available and what damages may be pursued. Medical malpractice claims also have different statute of limitations than disability discrimination claims.
  9. As a result of Cummings, here, you cannot get emotional distress or punitive damages for violations of the Rehabilitation Act. There are also cases coming down now saying that you cannot get either of those damages with respect to Title II of the ADA, such as if a public hospital was involved.
  10. Causation is not the same for Rehabilitation Act cases (solely by reason of), v. ADA cases (on the basis of or by reason of). The cases are quite clear on that with the Rehabilitation Act having the higher causation standard.
  11. Never assume and always do an individualized analysis. Also, always be sure to explore any and all reasonable accommodations/modifications.

When Cummings v. Premier Rehab Keller was decided, discussed here, it was inevitable that eventually courts would start addressing the issue of whether Title II of the ADA allows for emotional distress damages. During Cummings oral argument, a couple of the Justices anticipated that, and court decisions are beginning to come on this issue. The latest, which is the blog entry for this week, is a published decision from the 11th Circuit in A.W. by and through J.W v. Coweta County School District, here, decided on August 7, 2024. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that Title II of the ADA does not allow for emotional distress damages; court’s reasoning that plaintiffs are entitled to other kinds of relief besides emotional distress damages; court throws out §1983 claim against the principal; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Facts

 

According to the complaint, various students with disabilities were physically and mentally abused in a classroom by their special education teacher. Georgia law requires school administrators with reasonable cause to suspect that child abuse has occurred to report the suspected abuse to authorities immediately but in no case later than 24 hours from the time there is reasonable cause to believe that suspected child abuse has occurred. The district superintendent acknowledged that the principal failed to report the abuse allegations as promptly as state law required. The principal was suspended for two days without pay and required to undergo training about the reporting requirements. The student sued the school district and the principal alleging violations of due process and Title II of the ADA. In the complaint, they sought damages for mental anguish and pain and suffering and special damages for the federal claims, as well as punitive damages from the principal under §1983. A few months after the student sued, the Supreme Court decided Cummings v. Premier Rehab Keller. Accordingly, the school district and the principal moved to dismiss the complaint for failure to state a claim arguing that the Supreme Court decision prevents emotional distress damages in Title II matters.

 

II

Court’s Reasoning That Title II of the ADA Does Not Allow for Emotional Distress Damages

 

  1. Title II of the ADA expressly incorporates the remedies of the Rehabilitation Act. The Rehabilitation Act, in turn, incorporates the remedies, procedures and rights set forth in Title VI of the Civil Rights Act of 1964. So, the remedies available under Title VI are the same remedies available under the Rehabilitation Act and Title II.
  2. Since Cummings held that emotional distress damages are not recoverable under the Rehabilitation Act, it necessarily follows that emotional distress damages are not recoverable under Title II.
  3. The Supreme Court in Barnes v. Gorman, here, rejected the argument that although punitive damages are unavailable under Title VI, they remain available under the ADA because it was not enacted under the spending clause. The Supreme Court explained that the ADA could not be clearer that its remedies are the same as those of the Rehabilitation Act, which is spending clause legislation. The incorporation of those remedies make discussion of the ADA’s status as a non-spending clause tort statute quite irrelevant.
  4. Barnes requires the remedies available under Title II of the ADA to mirror the remedies under Title VI of the Civil Rights Act of 1964.

 

III

Court’s Reasoning That Plaintiffs Are Entitled to Other Kinds of Relief besides Emotional Distress Damages

 

  1. Requesting an improper remedy is not fatal to a claim because a complaint is sufficient if it alleges facts establishing that the plaintiff is entitled to any relief the court can grant.
  2. Just because a plaintiff might misconceive a remedy, it does not warrant dismissal of the complaint unless he is entitled to no relief under any state of facts.
  3. A district court must consider whether a complaint that seeks an improper remedy might warrant another form of relief.
  4. Rule 54(c) of the Federal Rules of Civil Procedure states that a district court must grant the relief to which each party is entitled, even if the party had not demanded that relief in its pleadings, when it enters any final judgment except a default judgment.
  5. The selection of an improper remedy in the demand for relief is not fatal to a party’s pleading if the statement of the claim indicates the pleader may be entitled to relief of some other type.
  6. Other relief that was possible for the plaintiffs include: damages for physical harm; compensation for loss educational benefits; remediation; and nominal damages.

 

III

Court Throws out §1983 Claim against the Principal

 

  1. For a supervisor to be liable for subordinate’s constitutional violation, that person must have participated in violating the student rights or caused them to suffer a violation of such rights at the hands of the teacher.
  2. Students are in a noncustodial relationship with the state.
  3. In a noncustodial relationship situation, conduct by a government actor violates substantive due process only where the act can be characterized as arbitrary or conscience shocking in the constitutional sense. Therefore, the principal’s liability as a supervisor turns on whether she participated in or caused conscience shocking conduct. Her independent liability turns on her alleged deliberate indifference to the alleged abuse shocking the conscience.
  4. The 11th Circuit has never held that deliberate indifference of an official in a noncustodial setting can shock the conscience.
  5. Allegations of the teacher’s intentional abuse are ordinarily the problems of state tort law and not constitutional law.

 

IV

Thoughts/Takeaways

 

  1. At oral argument in Cummings, a couple of the Justices expressed concern about how holding that emotional distress damages were not available under the Rehabilitation Act might mean that they are not available under Title II of the ADA. Those concerns have come to pass.
  2. The problem with saying that the ADA is a Civil Rights Act and the Rehabilitation Act is a spending clause act and that makes a difference for emotional distress damages, is Barnes v. Gorman where the Supreme Court explicitly rejected that argument. So, a majority of the Supreme Court would have to somehow distinguish Barnes if it were to say that the spending clause v. civil rights distinction matters. I can’t imagine this Supreme Court doing that. It is also for this reason that I will be surprised if the plaintiffs ask for review by the Supreme Court.
  3. Shortly after Cummings, legislation was introduced to make clear that emotional distress damages were available under §504 of the Rehabilitation Act as well as Title II of the ADA. Whether that legislation will go anywhere may depend upon the outcome of the election. It certainly will not go anywhere before then. In the absence of legislation, it is likely you will see more and more courts throwing out emotional distress damages in Title II cases.
  4. Just because emotional distress damages get thrown out, doesn’t mean that other damages are not in play. Damages might include such things as: physical harm; compensation for loss educational benefits; remediation; and nominal damages. Any of those remedies would also get attorney fees for the plaintiff. It is possible that there might be other remedies as well.
  5. It is very difficult for plaintiffs to find attorneys to prosecute Title II cases. The inability to obtain emotional distress damages will only make the number of attorneys willing to take on Title II cases even smaller.
  6. Incredibly high standard for holding a supervisor liable for unconstitutional conduct that occurs in a noncustodial setting.

Before getting started on the blog entry of the day, I wanted to mention a decision decided by the California Supreme Court on July 29, 2024, here. In that case, Bailey v. San Francisco District Attorney’s Office, the California Supreme Court held that: hostile work environment must be viewed in the totality of circumstances; hostile work environment must be viewed from the perspective of the person with the protected characteristic; a single occurrence might possibly suffice to have a hostile work environment; and retaliation doesn’t have to involve anything other than an effect on terms and conditions of employment. The decision is very similar to the decision of the Minnesota Supreme Court in the case that we discussed here. With respect to its discussion of retaliation, it isn’t surprising in light of the Supreme Court decision in Muldrow, discussed here, which interestingly was not cited in the California Supreme Court decision.

Turning to the blog entry of the day, the question is whether the HUD circular dealing with animals in dwellings survives Loper Bright. As usual, blog entry is divided into categories and they are: thoughts on why the HUD circular just might survive Kisor; thoughts on why the HUD circular just might survive the major question doctrine; whether the HUD circular survives Loper Bright; and thoughts/takeaways. The first two categories you have seen before in this blog entry, but I have amended the content in those categories a bit from that blog entry.

 

I

Thoughts on Why the HUD Circular Just Might Survive Kisor

 

  1. Previously we talked about Kisor v. Wilkie, here. In that blog entry, we discussed how the Supreme Court will look at whether agency interpretations of their regulations is entitled to judicial deference. Let’s do a deeper dive into that by looking at the factors laid out in that decision.
  2. Is 24 C.F.R. §100.204(b) genuinely ambiguous? It certainly is. We do know that seeing-eye dogs are protected under the HUD final regulations, but what about dogs used by people with disabilities that act as service dogs for other kinds of disabilities? What about what HUD calls assistance animals? What about emotional support animals? All of that is far from clear from just looking at the regulation.
  3. Is the circular a reflection of HUD’s authoritative, expertise-based, fair, or considered judgment? You certainly could argue that it is (but see, §III (3) of this blog entry). After all, Justice Kagan in her opinion specifically mentioned ADA regulations as being within an agency’s authoritative, expertise-based, fair, or considered judgment, and Fair Housing Act is a similar kettle of fish to the ADA.
  4. Uncertainty certainly exists when looking at the regulation, and more than one right answer also exists when looking at the regulation.
  5. The text, structure, history, and purpose of the regulation certainly leads to the circular as being one possibility.
  6. The circular is certainly an authoritative or official position of HUD and it implicates HUD’s expertise in some form. Finally, HUD certainly has expertise in this area of the law, and the circular quite arguably reflects the fair and considered judgment of HUD.
  7. The current circular did not create any unfair surprise to regulated parties, even if it did make a mess of things.

 

II

Thoughts on Why the HUD Circular Might Survive the Major Question Doctrine

 

  1. Justice Gorsuch listed several criteria in EPA v. West Virginia, here, about when would the major question doctrine apply, including: 1) doctrine applies when an agency’s claim to power involves a matter of great political significance; 2) doctrine may apply when seeking to regulate a significant portion of the American economy; and 3) doctrine may apply when an agency seeks to intrude into an area that is a particular domain of state law.
    1. Unclear whether animals in dwellings involves a matter of great political significance.
    2. The circular certainly regulates a significant portion of the American economy.
    3. Animals in housing is not a particular domain of state law.
    4. Unclear what other factors Justice Gorsuch might think is important.

 

  1. Justice Gorsuch also said that when figuring out congressional intent the following factors must be looked at: 1) the legislative provisions that which the agency seeks to rely with a view to their place in the overall statutory scheme. Oblique or elliptical language will not supply a clear statement; 2) examination of the age of focus of the statute the agency invokes in relation to the problem the agency seeks to address; 3) examination of the agency’s past interpretation of the relevant statute. A contemporaneous and long-held executive branch interpretation of the statute is entitled to some weight as evidence of the statute’s original charge to an agency; and 4) skepticism is merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise. That is when an agency has no comparative expertise in making certain policy, Congress presumably would not task it with doing so.

 

    1. The legislative provisions with respect to the Fair Housing Act is just the general grant of authority that one typically sees with respect to agencies having the ability to make regulation to carry out the legislation.
    2. The Fair Housing Act has been around for some time and is clearly focused on preventing discrimination so that people can find, use, and enjoy their dwellings.
    3. The original circular came out in 2013. So, the idea of emotional support animals/service animals in dwellings has been around for some time. While the current circular has made a mess of things, it wasn’t really a surprise in light of the 2013 circular and in light of case law that has evolved over time.
    4. There is no mismatch between the circular and HUD’s congressionally assigned mission and expertise as HUD certainly has comparative expertise in making policy in this area.

III

Whether the Circular Survive Loper Bright

  1. I am not the first to be thinking about how Loper Bright, here, affects the world of the Fair Housing Act. My colleague, Richard Hunt, did so in his July 6, 2024, blog entry, here, and his points on this subject are worth exploring in more detail. See §III(2), (3) of this blog entry).
  1. Richard mentions in his blog entry (the following comes verbatim from his blog entry), that Loper Bright does not mean, of course, that the courts should simply ignore what the Administration says about the laws it is supposed to implement. In Loper Bright the Supreme Court acknowledged and left in effect Skidmore  Swift & Co., 323 U. S. 134 (1944). In Skidmore the Supreme Court recognized (as described in the Loper Bright opinion): that the “interpretations and opinions” of the relevant agency, “made in pursuance of official duty” and “based upon . . . specialized experience,” “constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,” even on legal questions. Id., at 139–140. “The weight of such a judgment in a particular case,” the Court observed, would “depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”
  1.  Richard follows up on the points made in §III(2) when he states it is his opinion that (quoting from his blog entry): “HUD’s guidance concerning service and assistance animals, FHEO-2020-01, also fails the Skidmore test for useful guidance. With respect to assistance animals FHEO-2020-01 must ultimately rest on an evaluation of how individuals with every kind of disability imaginable might be helped by an untrained animal in a way that improves their equal access to housing. There is no reason to believe HUD has the required expertise to make this determination. HUD’s sister agency, the Social Security Administration, does not accept evidence of disability from many of the professionals HUD says can be relied on for a disability determination. The Department of Defense conducted a thorough and expensive study of the effectiveness of assistance animals for individuals with PTSD and could not reach a conclusion that they were effective. HUD does not appear to have conducted any scientific studies of its own and does not seem to have referred to any of the relevant scientific literature concerning assistance animals. Instead, consistent with HUD’s political agenda, HUD’s concern was making it as easy as possible for those with disabilities to obtain housing despite “no pet” rules or pet deposit requirements. An analysis using Skidmore criteria leads to the conclusion that this guidance can and should be ignored by federal courts.”
  1. Richard’s opinion on whether the circular survive Loper Bright is certainly provocative and you can certainly see how he arrived there. My quibble is that I have personally seen the difference assistance animals and psychiatric service animals can make to the lives of individuals with disabilities. Also, the distance between an emotional support animal and a psychiatric service animal can be incredibly small. In fact, I would venture to say that the majority of emotional support animals with proper framing from a skilled attorney knowledgeable in this area, could be considered psychiatric service animals per the Title II and Title III DOJ regulatory scheme on service animals.
  2. Loper Bright can actually cut in favor of persons with disabilities. As I read Loper Bright, the key is whether there is a tight fit between the regulation and the legislation. The nature of the delegation of authority also informs that decision. As mentioned above, the delegation of authority is pretty general when it comes to the FHA. Is there a tight fit between the FHA regulation dealing with service animals and the FHA? What about a tight fit between the FHA regulation and the circular? Turning to the first question, one could argue that a tight fit does exist between the FHA and the service animal regulation the FHA has. This is especially so in light of DOJ’s more comprehensive regulations on service animals that you find in DOJ’s Title II and Title III final regulations, here and here. As such, one wonders whether the assistance animal part of the circular (the part of the circular talking about assistance animals can be animals acting as a service animal but are not dogs), would not survive after Loper Bright. On the other hand, one does have to wonder whether the ESA part of the circular can survive after Loper Bright because the fit between the statute, regulation, and the circular appears to be much more attenuated with respect to emotional support animals.

 

IV

Thoughts/Takeaways

 

  1. With NFL season starting shortly, it is perfectly appropriate to conduct further review. Upon further review, an argument can be made that the circular does survive Kisor and may be entitled to judicial deference for the reasons mentioned above.
  1. An argument can also be made, as discussed above, that the circular with respect to its provisions involving any animal not performing as a service animal, will not survive Loper Bright.
  2. It would take a lot of money for a Condominium Association or a landlord to argue that the circular should not get deference after Kisor. Further, it is not a slam dunk that the circular will not receive deference per Kisor. So, when it comes to animals and dwellings, preventive law would demand that the circular be the first authority that is looked at if an animal is requested as a reasonable accommodation in order to allow a person with a disability to enjoy his or her or they dwelling. On the plaintiff side, when dealing with an emotional support animal situation, you must investigate whether that animal is in fact a psychiatric service animal as that will put the matter in a much stronger position for a plaintiff.
  3. Did Loper Bright overrule Kisor v. Wilkie, which we discussed here. Both the majority and dissenting opinion cite to Kisor with approval. However, logically it is hard to square Loper Bright not overruling Kisor. It is not unusual for the Supreme Court to overrule prior decisions or severely narrow them without explicitly saying so and that may have happened with Loper Bright when compared to Kisor.
  4. The Fair Housing Act still uses the term “handicapped,” unfortunately. “Handicapped,” under the Fair Housing Act is defined in the same way as the ADA and the Rehabilitation Act, though there is a dispute about whether the ADA amendments, which amended how certain definitional terms must be interpreted, are applicable to the Fair Housing Act.
  5. It is unclear whether the major question doctrine would apply to the circular because the case establishing the doctrine involved a regulation and not an agency interpretation of its regulation. Logically speaking, it would seem Kisor would be the case that would apply to the circular and not EPA v. West Virginia. As mentioned above, the wildcard is the applicability, if at all, of Loper Bright to the HUD circular.
  6. It is also possible that you may get a different answer for the continuing viability of ESA’s in housing when it comes to public housing authorities. HUD actually has a regulation dealing with animals in public housing, 24 CFR §5.303 and that regulation has been interpreted to allow for ESA’s. So, a legal argument can be crafted that ESA’s in private housing simply can’t survive Loper Bright but it might when it comes to public housing. With respect to public housing, the court would have to visit the question of just how close the fit is with the statute.