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Before getting started on the blog entry of the week, some housekeeping is in order. My wife and I are celebrating our 25th anniversary next week, and we will be taking a very special trip abroad. So, after this week, my next blog entry is going to be the first week of December. Hoping everyone has a great Thanksgiving holiday, and I will be back blogging the first week of December.

 

Our blog entry for this week is a triple play. We are going to discuss three different topics: religious accommodation and how it might go further than the ADA; a fantastic Law Review article discussing tribal sovereign immunity and the ADA; and cats in hardware stores. As usual, the blog entry is divided into categories, and they are: religious accommodations may go further than the ADA; the importance of the law review article discussing tribal immunity and the ADA; and cats in hardware stores and its ADA implications. Of course, the reader is free to focus on any or all of the categories.

 

I

Religious Accommodations May Go Further Than the ADA

 

  1. Bird Facts: In Bird v. Alanson Randol DDS, PC, an unpublished decision decided on October 8, 2026, which coincidentally was my birthday, by the Ninth Circuit, here, the Ninth Circuit was faced with a situation where an employee for religious reasons refused to be vaccinated during the Covid-19 crisis, but she worked in a dentist office. She claimed that she could perform her job remotely, but her employer disagreed. The question came down to whether remote work and the burden imposed on other employees was an undue hardship.
  2. Bird reasoning:
    1. Impact on coworkers are relevant only to the extent they go on to affect the conduct of the business.
    2. Bird testified in her deposition that she could perform many but not all of her job duties remotely.
    3. Her dentist employer testified that there were seven to nine front desk staff members in total, and he never spelled out why it would be difficult for other staff to absorb Bird’s in person duties to allow her to work remotely.
    4. Bird’s employer did not set forth sufficient evidence to prove as a matter of law that reassigning Bird’s and person responsibilities to other front desk staff would impose an undue hardship.
  3. Thoughts/takeaways: The reason this case suggests that accommodating a sincerely held religious belief might involve going further than accommodating a disability is because the court does not discuss whether essential functions of the job are involved. As the opinion is literally written, it can be argued that the court’s view is that reassignment of job duties is in play regardless of whether those job duties involve essential functions. Under the ADA, eliminating essential functions of the job is not a reasonable accommodation. Of course, the ADA allows for reassigning marginal functions, but that isn’t the same as reassigning essential functions, which the ADA does not require. It will be interesting to follow how religious accommodation cases deal with the question of whether particular functions of the job that a person will not do because of their sincerely held religious belief are essential or not and whether that even matters.

II

An Important Law Review Article Discussing When the ADA Collides with Tribal Immunity

  1. We have previously blogged on Indian tribal immunity and the ADA, here for example.
  2. Indian tribal immunity and the ADA is important because many Indian tribes run gambling establishments where it is conceivable that a person with a disability might go to and face accessibility issues.
  3. Courts can be a bit all over the place when it comes to tribal immunity, the ADA, and what causes of action may be possible.
  4. In a Comment written by Baylee M. Ogle entitled, When Tribal Sovereign Immunity in the Americans With Disabilities Act Collide, Who Wins?, 50 American Indian Law Review 219 (2026), here, she persuasively argues that the reason courts are mixed up on this is because they forget about how tribal sovereign immunity originates in common law, whereas 11th Amendment sovereign immunity originates under constitutional law. The distinction is critically important because it leads to different conclusions. It also explains why it can be difficult to understand the cases dealing with tribal immunity and the ADA. In short, she argues that the common law origin of tribal immunity means Indian tribes do not have immunity for ADA claims, at least certainly with respect to injunctive relief. She also argues that it might be more appropriate to fold any litigation involving Indian tribes and disability accessibility into Title II of the ADA rather than Title III due to the nature of tribal governance. I highly commend this article for reading if you are an attorney either representing Indian tribes or an attorney representing people with disabilities not accommodated by an establishment owned and/or operated by an Indian tribe.

III

Cats in Hardware Stores

  1. Within the last week, I saw an article in the Wall Street Journal about how hardware stores have cats in them. They have found that it is actually good for business. One operator of over 100 Ace Hardware stores has a cat in each and every one of their stores. I got to thinking, what if you are allergic to cats and you want to go into that hardware store, what then? It is not just a hypothetical situation for my family as both my wife and daughter are very allergic to cats.
  2. The first question is whether an allergy to cats would be a disability under the ADA. It most certainly would seem to be. After all, the immune system is reacting to an allergen causing substantial limitation in the major life activity of breathing. Remember, episodic disabilities are protected under the ADA after the amendments to the ADA where they substantially limit a major life activity.
  3. The second question is how does a business deal with it. First, I would suggest putting something up on the Internet site of the business as well as on the door of the business that cat(s) are in the business.
  4. Second, the business needs to make clear that they will reasonably accommodate an individual who wants to shop at the hardware store but cannot do so because of their allergy. There could be a bunch of different ways to do that. For example, a person at the store could meet the individual outside of the door and the individual could explain to the employee what it is they need. The employee could then return to the store and get what the customer needs and bring it to the customer outside the store. Restaurants nowadays often have handheld payment tools, and I see no reason why a hardware store couldn’t have that as well. The business could also just take the person’s card, run it through their system, and then return the card. Another option, might be the hardware store delivering to the individual’s residence. The store may already offer that. Cash is yet another option. Even so, when I go to a hardware store, I often seek in person advice. So, the hardware store with cat(s) will need to be prepared to be able to get the individual with a cat allergy needs satisfied when they show up in person.
  5. A bad move for the business would be saying go to a different store or refusing to engage with the customer to figure out a win-win.
  6. For interactive process best practices, see this blog entry, here. I realize that the interactive process is a Title I construct but as the ADA requires an individualized analysis, it is really good preventive law regardless of whether an employment relationship is involved.
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November 3 is election day and as they say down here, it is fixin/goin to be a wild one. Regardless of your views, get out and vote. I have long believed that voting is the first duty of every American citizen.

In keeping with that spirit, this week’s blog entry deals with the question of whether California allows meaningful access to voting with respect to those who have what the court called print disabilities. The case of the day is California Council of the Blind v. Weber, here, decided by the United States District Court for the Northern District of California on October 2, 2026. As usual, the blog entry is divided into categories, and they are: facts;  why California’s remote access vote by mail system denies meaningful access to voters with print disabilities in violation of §504 of the Rehabilitation Act and Title II of the ADA; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Plaintiffs Gray, Zavoli, and Dawson Rawlings are individuals with print disabilities and organizations that represent individuals with print disabilities. Print disabilities are “disabilities that prevent a voter from reading, marking, holding, handling, and/or manipulating a paper ballot privately and independently.” The individual Plaintiffs Gray, Zavoli, and Dawson Rawlings are qualified individuals with disabilities within the meaning of the ADA, Section 504, and Section 11135. The organizational Plaintiffs California Council of the Blind and National Federation of the Blind of California, are membership associations with members who are qualified individuals with disabilities within the meaning of the ADA, §504 of the Rehabilitation Act, and California Government Code §11135.

In California, all registered voters may vote by mail. Individuals with print disabilities may receive, review, and mark their vote-by-mail ballots electronically on their own devices, such as a personal computer, using a remote accessible vote-by-mail (“RAVBM”) system that has been certified or conditionally approved by the Secretary. See California Elections Code § 3016.7. However, voters may not return ballots marked using a RAVBM system electronically. Instead, except for the option to return a ballot via facsimile, which is available to certain military voters and voters who live in other countries, voters in California must “print their ballots, place those ballots in an envelope, sign and seal the envelope, and then arrange for return of the paper ballot through a non-electronic means.” Presently, no one is authorized to return a ballot electronically in California.

Many voters with print disabilities need assistance to print and return their ballots. Many voters with visual impairments may not have a printer because they do not have a need for one. Printers are not an item that persons with visual impairments typically use regularly, and they typically would need assistance to get a printer. Even if they had a printer, persons with visual impairments would need assistance to ensure the ballot printed correctly, to put the ballot into the envelope, and to mail it. Voters with mobility issues would have similar difficulties in printing and mailing their paper ballot without assistance. The Disability Rights California’s voting hotline for 2020 received calls from people stating that they were unable to vote privately and independently even with an RAVBM system, either because they did not own a printer or could not manipulate a printout into an envelope without assistance. If someone assisted a voter with disabilities, that person could then review the voter’s selections and decide whether or not to return the ballot.

 

II

Why California’s Remote Access Vote by Mail System Denies Meaningful Access To Voters with Print Disabilities in Violation of §504 of the Rehabilitation Act and Title II of the ADA

  1. Since the affirmative defenses of fundamental alteration and undue burden were waived by the defendant, the only question is whether plaintiffs were denied meaningful access to the right to vote through the vote by mail program.
  2. The Supreme Court has previously held that §504 of the Rehabilitation Act requires that an otherwise qualified handicapped individual must be provided with meaningful access (emphasis in opinion), to the benefit a public entity offers.
  3. Most relevant is the effective communication regulation for Title II of the ADA. That regulation says several critical things. First, in determining what type of auxiliary aids and services necessary, a public entity has to give primary consideration to the requests of the individual with disabilities. 28 C.F.R. §35.160(b)(2). That same provision also specifies that in order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence (emphasis in opinion), of the individual with a disability.
  4. Many courts construing meaningful access to and limitations on voting have held that one of the central features of voting, and one of its benefits, is voting privately and independently.
  5. The Second Circuit has noted that relegating persons with disabilities to voting with the fortuitous assistance of others is contrary to the purpose of the Rehabilitation Act, which is designed to empower individuals with disabilities to maximize their employment, economic self-sufficiency, independence (emphasis in opinion), and inclusion and integration into society. The Second Circuit also noted that the right to vote should not be contingent on the happenstance that others are available to help.
  6. The Northern District of California has previously held that: 1) most voters at the polls cast their ballots in private, without threat of interference by coworkers, the government, or curious onlookers; 2) the provision of voting systems allowing for such privacy is a normal function of a government entity; 3) every state in this country has employed the use of the secret ballot since the early part of the 20th century; 4) requiring blind and visually impaired individuals to vote with the assistance of a third party, if they are to vote at all, at best provides those individuals with an inferior voting experience not equal to that afforded others. That is, those blind and visually impaired voters are forced to reveal a political opinion that others are not required to disclose.
  7. The California Constitution provides that voting shall be secret. So, requiring assistance from another person in order to complete the voting process is antithetical to voting in secret.
  8. Meaningful access to the vote by mail program includes the right to do so privately and secretly. Requiring assistance from another person to complete the voting by mail process is antithetical to voting privately and secretly. Plaintiffs are not able to print, sign, and return the ballots in paper form because of their disability without the assistance from another person.
  9. There is a significant difference between authorizing (emphasis in opinion), a person with a disability to select the people of their choice to assist with voting and requiring (emphasis in opinion), assistance to complete the voting process.
  10. Just because the Voting Rights Act addresses one aspect of discrimination in voting does not mean that the ADA and the Rehabilitation Act cannot be used to prohibit further discrimination in voting.
  11. If the Voting Rights Act set the ceiling on how to address discrimination with respect to voting for people with disabilities, then courts would not be able to consider technological advances in determining what was reasonable.
  12. The ADA and the Rehabilitation Act do not provide a set of freestanding rights, such as the right to vote, or the right to vote independently. Instead, those statutes require reasonable accommodations to provide person with disabilities meaningful access to services, programs, and activities, so long as those modifications do not result in an undue burden or fundamentally alter the nature of such program or activity.
  13. Any cases suggesting to the contrary, with the exception of one that failed to address the effective communication regulation at all, were all decided before the effective communication regulation came into effect in 2011. The effective communication regulation requires appropriate auxiliary aids and services when necessary to avoid individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of a service, program, or activity of a public entity. 28 C.F.R. §35.160(b)(1).
  14. In addition to the primary consideration rule of the regulation, that regulation also specifies that in order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way so as to protect the privacy and independence (emphasis in opinion), of the individual with a disability.
  15. The effective communication regulation informs the meaning of meaningful access to the vote by mail program.
  16. While it is true that the California constitutional provision requiring voting in the secret specifically allows to voting assistance from a person of a voter’s choice, allowing such assistance is completely different from requiring assistance to complete the voting process. Allowing a voter with a disability to select people of their choice to assist them does not render that process secret or private. Instead, it is merely a method of supporting individuals who have someone with whom they are comfortable and whom they trust to assist them with voting. Not everyone is in that position and people with disabilities should not be required to rely on someone else to assist them with voting. The two options can exist harmoniously with each other.
  17. The aspect of printing, signing the envelope, and returning the ballot cannot be separated from the vote by mail process. If plaintiffs cannot complete the process of voting by mail privately and independently, then their access to the benefits of this program is restricted.
  18. The duplicating process used for tabulating the votes through the remote access vote by mail system, is a completely different thing than requiring someone to print, sign, and return the ballot when they must obtain the help of someone in person to do so. In that situation, the assistant to the person with disability learns of that person’s specific votes. That is, the privacy and secrecy of the voter with the disability selections are disclosed to another person and are compromised.

III

Thoughts/Takeaways

  1. Since tomorrow is election day, I felt that I had to write on a voting access question.
  2. The court granted summary judgment to the plaintiff on liability, but left the remedy question to further briefing and proceedings.
  3. People with disabilities just like people without disabilities have a right to vote independently and in private.
  4. Meaningful access is the standard proposed §504 to Rehabilitation Act and for Title II of the ADA.
  5. California waived any undue burden or fundamental alteration defense.
  6. The effective communication regulation for Title II of the ADA was controlling authority to this court. Loper Bright did not come up in the opinion.
  7. Keep in mind that there is a critical difference between the Title II effective communication rule and the Title III effective communication rule. As noted in this case, the Title II effective communication rule has a primary consideration requirement. However, the Title III effective communication rule strongly encourages an interactive process to figure out what is effective communication.
  8. I haven’t seen the term “print disabilities,” before. Even so, you certainly could get to the same place by using different words so that “print disability,” is still the focus of this case.
  9. State law can go further than the ADA or §504 of the Rehabilitation Act does and the California law frequently does (I am not licensed in California).
  10. I can tell you from personal experience it is absolutely humiliating to have to rely on the good graces of private individuals to accommodate you when it is somebody else’s obligation to do that. My most recent experience with that involved not being able to hear announcements on an airplane that was diverted due to bad weather despite having told the flight attendants in advance that I would need to be informed of unusual announcements. Fortunately, a gentleman sitting next to me was kind enough to tell me what the announcements said (I recognize that this situation is governed by the Air Carrier Access Act and not the ADA, but the psychological effect is the same).
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An increasing part of my practice over the last few years has been working with licensing counsel on issues related to what we discussed in this blog entry. This week’s blog entry deals with a case very much in that subject area. The case of the week is Equal Employment Opportunity Commission v. Yale New Haven Hospital Inc. decided by the United States District Court for the District of Connecticut on October 23, 2026, here (Lexis, subscription required. I could not find it on the free Internet as of the time of this writing). This is one of those cases where plaintiff gets by summary judgment but one has to wonder if persons with disabilities really win in light of how the court reasoned a trial was necessary. A bit unusual in that both the plaintiff and the defendant filed cross motions for summary judgment, and the court winds up denying both motions. For variety of reasons, it is the defendants that usually file the summary judgment motion, and the plaintiff tries to fight off that motion but does not file a cross motion for summary judgment. As usual, the blog entry is divided into categories and they are: facts; why the EEOC’s ADEA claims must go to trial; why the EEOC’s ADA claims must go to trial; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

The EEOC brought a class action suit against Yale New Haven Hospital alleging that it’s Late Career Practitioner Policy, which screens certain physician for signs of mental or cognitive decline, is discriminatory under the Age Discrimination In Employment Act (ADEA), and is also an unlawful employment practice under the ADA.

The Late Career Practitioner Policy requires physicians and other practitioners age 70 and older wishing to obtain or renew clinical privileges to undergo ophthalmic and neuropsychological testing prior to their appointment or reappointment. It applies to all practitioners and staff required to have clinical medical privileges. It also only applies at the time of the practitioner’s initial appointment and every two years after that during their reappointment. In particular, the policy requires the following procedures:

  1. Based upon the Member’s date of birth, the Medical Staff Administration will identify practitioners who are subject to the terms of this Policy.
  2. Applicants for initial appointment who are age seventy (70) at the time their application is submitted, or anticipated to reach the age of seventy (70) prior to completion of the application process, will be informed of this Policy and its requirements by the Credentialing Specialist who is processing the application.
  3. Upon reaching the age of seventy (70), Members shall be required to fulfill the requirements listed above [(the ophthalmic and neuropsychological tests)] at the time of their next, and all subsequent, re-appointments. They shall be notified of the requirements of this Policy at the time that their application for reappointment is mailed.
  4. The Opthalmic evaluation form will be provided to the Member and he/she will be expected to make arrangements for this examination[].
  5. The completed ophthalmic examination form, and the results of any supplemental examinations that may be indicated, must be returned by the ophthalmic practitioner who conducts the examination directly to the Medical Staff Administration.
  6. Members will schedule their neuropsychologic examination with the individual identified by YNHH. The contact number will be provided by Medical Staff Administration.
  7. Practitioners who conduct the examinations noted above are asked to consider the results of the exam relative to the Medical Staff Member[‘s] ability to practice medicine and to identity any issues from the examination that may affect, or have the ability to affect, this ability.
  8. Completion of both the neuropsychologic and ophthalmic examinations are required in order for applications for initial or re-appointment to be considered “complete” as defined in the Medical Staff Bylaws.
  9. If a practitioner’s test do not result in any significant findings, then no action is taken. However, if the tests reveal signs of alleged impairment, more tests may be recommended, and a decision about the practitioner’s clinical privileges is then made by members of Yale’s Medical Staff after several layers of further review.

 

I

Why the EEOC’s Age Discrimination in Employment Act (ADEA), Claims Must Go to Trial

  1. Under 29 U.S.C. §623(f)(1), it is not unlawful under the ADEA to make age-based employment decisions where age is a bona fide occupational qualification reasonably necessary to the normal operations of the particular business.
  2. An employer may invoke the BFOQ exception in one of two scenarios, and the scenario relied upon by Yale is where the employer can establish that age is a legitimate proxy for the safety-related job qualifications by proving it is impossible or highly impractical to deal with older employees on an individualized basis.
  3. The case turns on the question of whether a BFOQ exists.
  4. The experts in the case are very much split as to the extent to which the Late Career Practitioner Policy has the ability to identify cognitive decline and whether it serves safety-related purposes. There are also questions of fact as to whether age is a legitimate proxy for the safety-related job qualifications measured by the policy.
  5. A fundamental factual dispute also exists as to whether the current method for assessing physician competence is adequate to protect against future harm. In other words, is the Late Career Practitioner Policy a solution in search of a problem.
  6. Critical factual disputes exist in the details of the Late Career Practitioner Policy, its purpose, its function, its implementation, its efficacy, and its impact.

 

II

Why the EEOC’s ADA Claims Must Go to Trial

  1. 42 U.S.C. §12112(D)(4) provides that a covered entity cannot require a medical examination of an employee unless such examination or inquiry is job-related and consistent with business necessity.
  2. With respect to the business necessity requirement, the prohibition against medical examinations does not allow an employer to simply demonstrate that an inquiry is convenient or beneficial to its business. Instead, it has to show that the reason for conducting the examination is vital to its business. See also this blog entry.
  3. Business necessity can include ensuring that the workplace is safe.
  4. The employer also has to show that the examination genuinely serves the asserted business necessity and that the request is neither broader nor more intrusive than necessary.
  5. The employer need not show that the examination is the only way of achieving the business necessity, but the examination must be a reasonably effective method of achieving the employer’s goal.
  6. Courts will readily find a business necessity where an employer can demonstrate a medical examination or inquiry is necessary in order to determine whether the employee can perform job-related duties when the employer can identify legitimate, nondiscriminatory reasons to doubt the employee’s capacity to perform his or her duties.
  7. In defining a class subject to a general policy, the employer has to show that it reasons are consistent with business necessity for defining the class in the way it does. A court does grant some deference to the employer in determining how to define a class subject to a general policy. The fact that a policy requires medical certification from some individual employees who do not pose a health or security risk does not undermine the policy if the employer has defined the class of employees reasonably.
  8. The case turns on the affirmative defense of whether a business necessity exists. Whether a BFOQ (ADEA) or a business necessity (ADA) exist, are fact intensive and cannot be resolved at summary judgment.
  9. There are significant factual disputes raised by the experts as to whether Yale’s Late Career Practitioner Policy genuinely serves the business necessity of keeping patients safe.
  10. There are also key factual disputes as to whether the Late Career Practitioner Policy is overly broad and not sufficiently tailored to serve business necessity. For example, the policy does not take into account the specific job responsibilities of the practitioners, which can vary significantly, and may therefore, render the policy overly broad in its application.
  11. In a footnote, the court noted that the EEOC raised yet another factual dispute about the business necessity of the policy by its allegations that Yale fails to rigorously enforce the policy. For example, the EEOC offered a bunch of examples of practitioners being given extensions and being permitted to practice notwithstanding troubling scores on the test battery. Case law exists that such a practice shows that business necessity is not present. So, these allegations by the EEOC also illustrate the intensely factual nature of the issue, and it is not right for the court to weigh in on summary judgment in such a situation.
  12. Whether the policy is sufficiently tailored to a reasonably defined class will at the very least include a quantitative assessment. For example, how many non-treating positions are subject to the policy? Do those non-treating physician impact, indirectly or otherwise, patient care? If so, how? (In a footnote, the court noted that both parties did a lousy job of pointing out the facts in the voluminous discovery that would aid the court in figuring this out. Further, it isn’t the court’s job to go through all that discovery itself, rather per Rule 56(a), it is the responsibility of the parties to point out that information for the court.

 

III

Thoughts/Takeaways

  1. The court recognized that this case could have significant impact across a variety of industries now that it is going to trial. As a result, the court specifically noted that because of the parties inability or unwillingness to work together to devise an appropriate, perhaps even age-based, plan or process that serves the policy’s intended purpose of protecting patient from physicians who may be suffering from cognitive decline, but which is sufficiently tailored to comply with the ADEA and the ADA, is extraordinarily and frustratingly unfortunate.
  2. An argument can be made that this is a pyrrhic victory for persons with disabilities. The reason for that is that the ADA makes clear that it isn’t safety that is the issue, rather in the employment context, it is a direct threat to the health and safety of self or others. See 28 C.F.R. §§1630.15(b)(2), 1630.2(r). “Direct threat,” is a critical qualifier on “safety,” and winds up making the “safety,” determination a completely different kettle of fish. Also, many physicians are independent contractors and not employees of the hospital at all. Nevertheless, you can see the same “direct threat,” qualifier on “safety,” in the Title III DOJ final implementing regulations as well at 28 C.F.R. §36.208. See also: Chevron v. Echazabal, here;  ,  Mentkowitz v. Pottstown Memorial Medical Center, which we discussed here.
  3. Interesting that 29 C.F.R. §1630.7, which makes it unlawful for an employer to use standards, criteria, or methods of administration that are not job-related and consistent with business necessity,doesn’t get a mention in the opinion.
  4. It seems to me that the EEOC has a strong argument that the Yale’s policy is broader and more intrusive than necessary.
  5. Per PGA Tour v. Martin, here, the ADA requires an individualized analysis. A blanket policy requiring that everybody over a certain age undergo tests regardless of whether there are any indicators that such a test is necessary appears to violate that principle. See also, §II (6) of this blog entry.
  6. Rule 56(a) seems to have not been followed by either party thereby making it impossible for the court to figure out the evidence it needed to come up with a decision granting either summary judgment motion.
  7. “Alleged impairment,” in the policy is terribly problematic vis-à-vis the ADA, and one of the prongs of a disability is regarding a person is having a physical or mental impairment. For that matter, the ADA also covers a person with a record of an impairment as well. See 42 U.S.C. §12102(1).
  8. This case would seem to be a classic disparate impact case, but yet that phrase and analysis never appears in the decision. That is probably because the EEOC has backed off on disparate impact litigation.
  9. Since the impact of this case is so high, one wonders if this case isn’t going to settle. Even if it does settle, the terms of that settlement may have wide ranging impact as well. Definitely a case worth following, and I am going to do precisely that.
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We have discussed previously whether disability related conduct is something that an employer can terminate for. The answer is complicated and it can turn on very fine distinctions. See here and here for example. The answer may also depend on the particular State a person is in. This week’s blog entry discusses a Supreme Court decision from Iowa decided on April 24, 2026, Hunter v. City of Des Moines, here.

The unanimous decision remands for a new trial the disability discrimination claims  and throws out the failure to accommodate claim. The decision concerns Iowa law, but federal law was extremely persuasive. As usual, blog entry is divided into categories and they are: facts; why plaintiff was a qualified person; why plaintiff introduced sufficient evidence to demonstrate that his disability was a motivating factor in the City’s; termination of his employment; why the appellate court directed verdict in favor of the City on plaintiff’s failure to accommodate claim was the correct decision; why the jury instruction was both fatally flawed and correct; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Plaintiff, is a highly regarded police officer who suffered a mental health crisis after his best friend on the police force died by suicide. One night plaintiff drank excessively at a wedding celebration in another town, got into his vehicle to drive home, and then was arrested and had a series of confrontations with law enforcement. During those confrontations, plaintiff repeatedly invoked his status as a police officer and threatened to do physical harm or ruin the careers of those he engaged with. Plaintiff also at times used misogynistic and homophobic language.

Plaintiff was immediately remorseful for his misconduct and sought psychological help, which led to a diagnosis of post-traumatic stress disorder (PTSD) due to the colleague’s suicide. But in the meantime, a disciplinary process went forward, and the police chief terminated plaintiff’s employment the day after he disclosed his PTSD diagnosis. Plaintiff then filed suit under the Iowa Civil Rights Act (ICRA), alleging discrimination on the basis of his PTSD disability (disparate treatment and failure to accommodate).

At trial, the jury returned a verdict holding the City liable on both claims and awarding plaintiff over $2.6 million in back pay, front pay, and emotional distress damages. It also awarded plaintiff over $426,000 in attorney fees. The City appealed to the appellate court, and in a 3-2 decision, held that there was sufficient evidence in the record that plaintiff was qualified for the job as a police sergeant and that his PTSD with a motivating factor in his termination. However, the majority also found that a new trial was required on the disability discrimination claim by the jury instruction focusing on stereotypes, which negated an intentionality requirement for disparate treatment claim and undermine the well-established motivating factor standard. The majority of the appellate court panel also held that the City was entitled to judgment as a matter of law on plaintiff’s reasonable accommodation claim because the reasonable accommodation request came too late, i.e. post misconduct. Both parties appealed to the Iowa Supreme Court.

 

II

Why Plaintiff Was a Qualified Person

  1. The Iowa Civil Rights Act makes it an unfair or discriminatory practice to discharge an employee because of their disability. The Iowa law only has a general proscription against discrimination, and so Iowa courts have looked to corresponding federal statutes for the framework to analyze claims and apply the statute.
  2. Iowa uses a McDonnell Douglas approach when it comes to disability discrimination claims. That is, a plaintiff must initially prove a prima facie case by showing: 1) they have a disability; 2) they are qualified to perform the essential functions of the position; and 3) circumstances of the termination raise an inference of illegal discrimination. Once that prima facie case is established, the burden shifts back to the employer to articulate a legitimate, nondiscriminatory reason for the discharge. After that, the employee must show that the disability was a motivating factor in the employer’s decision to take an adverse action against the employee.
  3. The parties agree that plaintiff has a disability. As such, the City could prevail if it proves it would have made the same decision even if it had not taken the plaintiff’s disability into account.
  4. Since the City presented a legitimate nondiscriminatory reason for the termination, plaintiff is required to show his disability was at least a motivating factor in his termination.
  5. In Iowa, a person is qualified if they can perform the essential functions of the position in question with or without reasonable accommodation without endangering the health and safety of himself or others.
  6. A diagnosis of PTSD does not necessarily render a law enforcement official unqualified to do their job. That determination is a question of fact and is not solely based upon the diagnosis.
  7. For approximately six months after the suicide, plaintiff continued to successfully perform the functions while privately coping with mental health struggles. On the one occasion he experienced PTSD symptoms while at work, he managed his emotions by collecting himself in another room. The City’s own psychologist concluded the plaintiff was fit for duty in October 2020. Even more importantly, the Chief of Police agreed that plaintiff was capable of performing the function of a Sgt. when he was promoted less than a month before the misconduct occurred.
  8. Plaintiff introduced a good deal of evidence that losing his job aggravated his PTSD as it eliminated his support system within the police force. Even so, plaintiff testified at trial that with the ongoing counseling he had been receiving, he was able to fulfill the duties of the police officer.
  9. Evidence existed that plaintiff could have been reassigned per the Iowa Administrative Code (which requires an employer to make every reasonable effort to continue the individual in the same position or to retain and reassign the employee and to assist that individual’s rehabilitation), to other job responsibilities. The Chief of Police testified that there were sergeant positions within the administrative services division that plaintiff could have been transferred to. The jury instruction on this issue was perfectly appropriate (a person has to be able to do the essential functions of their police officer’s job with or without reasonable accommodations and that such accommodation could include rotating employee job duties or roles).

 

III

Why Sufficient Evidence Existed That Plaintiff’s Disability was a Motivating Factor in the Termination

  1. A motivating factor exists in an adverse action if the employee’s status as a member of a protected class played a part in the employer’s decision.
  2. The discriminatory motive does not need to be the only reason for the defendant’s actions.
  3. Plaintiff’s termination came one day after he disclosed his PTSD diagnosis to his employer. Plaintiff also presented evidence of a stigma associated with mental health issues within the police department.
  4. Plaintiff introduced a good deal of comparator evidence (the court noted that the comparators all involve the same decision maker, the Chief of Police, and a jury could have seen the other conduct as misconduct of equal seriousness. The City also had the opportunity to rebut those comparators with evidence), and effectively cross-examined the Chief of Police with that evidence. From that evidence, a jury could conclude that the police department had a high tolerance threshold for off-duty, alcohol fueled misbehavior.
  5. Chief of Police did not deliberate for days on the decision to terminate the plaintiff as he promised he would. Instead he fired him the next day. So, a jury could think the Chief of Police having become aware of plaintiff’s PTSD, wanted to avoid a drawn out decision that might have brought PTSD concerns even more than the surface.

 

IV

Why The Appellate Court Directed Verdict In Favor of The City On Plaintiff’s Failure To Accommodate Claim Was the Correct Decision

  1. Seeking accommodation after engaging in terminable misconduct is too late.
  2. An employee engaging in terminable conduct cannot avoid the consequences of his actions by then requesting an accommodation for those actions.

 

V

Why The Jury Instruction Was Both Fatally Flawed And Correct

  1. Disability discrimination laws acknowledge the effects of society’s stereotypes on employers in their decision-making, and that biased decision-making based on those stereotypes can violate the law even where the decision-makers are unaware of their bias in their thinking. That makes sense because the law’s purpose is to eradicate discrimination in all forms regardless of the personal character of the individuals making discriminatory decisions.
  2. The jury instruction stated: “If you find from all the surrounding circumstances that Defendant treated Matthew Hunter differently than they would have if he had not had a disability or if he had not requested a reasonable accommodation—even if the managers do not acknowledge or realize their own motives—you may find in favor of Mr. Hunter.”
  3. Since plaintiff had to prove that he suffered intentional discrimination because of his disability, an employer who is unaware of their bias normally can’t be engaging in intentional discrimination.
  4. The law demands that plaintiff was discharged because of his disability as opposed to the misconduct caused by the disability. Plaintiff also had to show that he was still qualified to perform the essential functions of his position.
  5. The instruction’s discussion of stereotypes created more confusion rather than clarity. For example, the instruction told the jury that biased decision-making based upon stereotypes can violate the law. However, it didn’t explain how it would violate the law.
  6. Certainly, the City could be subject to liability if the Chief of Police fired the plaintiff because the Chief of Police held a stereotypical view that police officers with PTSD couldn’t do their job if in fact plaintiff could do the job. However, those qualifiers were omitted emitted from the instruction, which omission was exploited by plaintiff’s counsel during closing arguments.
  7. Believing that someone with PTSD is unfit to be a cop (“cop,” is used in the opinion), is not illegal unless all the elements of a disability discrimination claim are proven.
  8. Prejudice occurs and reversal is required if jury instructions have misled the jury, or if the trial court materially misstates the law. Both are true in this case.
  9. The same decision defense jury instruction was permissible. That jury instruction talks about the City having a valid defense if it proved by a preponderance of the evidence that it would have made the same decision even if it had not taken the protected characteristic into account.
  10. Though an employer is prohibited from discharging the employee based on a disability, an employer is not prohibited from discharging the employee based on misconduct even if that misconduct is related to a disability.
  11. Terminating somebody for conduct caused by a disability is not the same thing as firing them because of the disability.
  12. An employer can terminate an employee for misconduct, so long as the employee’s disability was not a motivating factor or, if it was, the employer demonstrated that it would’ve made the same decision without taking the disability into account.
  13. The Court of Appeals was correct in rejecting the City’s comparator instruction as that instruction was too restrictive. Requiring comparators to have engaged in the same conduct without any mitigating or distinguishing circumstances is simply unattainable and unrealistic.

 

VI

Thoughts/Takeaways

  1. There is a raging debate in the courts over whether McDonnell Douglas is going to survive for long. Already, a couple of Supreme Court justices have said that it shouldn’t, particularly with respect to deciding summary judgment motions. See this blog entry. There are also cases saying that the McDonnell Douglas approach does not apply at trial, but in Iowa it apparently does. I am not licensed in Iowa, so I don’t know if that is actually the case.
  2. Terminating someone for misconduct is perfectly appropriate, but figuring the disability into that decision is not. Admittedly, the lines can get blurred in certain circumstances.
  3. Diagnosis does not make a person with a disability unqualified for their job. Question is assuming they have a disability, can they do the essential functions of the job with or without reasonable accommodations.
  4. In failure to accommodate cases, you do not see the use of comparators because you are focusing on an individualized analysis. However, when you were talking about whether it was the disability that played a role in the termination decision v. the misconduct, it makes perfect sense that comparators would come into play.
  5. Reassignment to another position is a reasonable accommodation as a matter of last resort. See this blog entry.
  6. A motivating factor is not the same thing as sole cause. See this blog entry.
  7. Seeking an accommodation for disability after engaging interminable misconduct is too late.
  8. The ADA does prohibit using stereotypes as a basis for adverse actions. After all, one of the prongs of what is a disability is whether a person is regarded as having a physical or mental impairment.
  9. In disparate treatment cases, you have to have intentional discrimination. You get to a different answer with respect to failure to accommodate.
  10. While Iowa apparently uses an endangering health and safety of self or others standard, direct threat under the ADA is a completely different kettle of fish and a much higher standard than health and safety (I am not an Iowa license attorney, so I don’t know if the court meant to be referring to the ADA direct threat standard using incorrect language, or if Iowa actually follows a health and safety standard). We have discussed direct threat numerous times in this blog, such as here for example.
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This week’s blog entry once again goes to the dogs, but this time we discuss dogs in the employment context. One of the things I am seeing quite a bit of is persons with disabilities really get confused about the rights they have with respect to the animals they use to compensate for their disability. Those rights actually depend upon the context. For example: 1) in employment there are no rules (as we will see in this blog entry, a court could mistakenly think there are); 2) with respect to accessing nonfederal governmental entities and accessing what the ADA calls places of public accommodations, the rules are the same; 3) with respect to the Air Carrier Access Act, the rules closely resemble the rules for accessing nonfederal governmental entities and accessing places of public accommodations, but there are important differences; and 4) with respect to the Fair Housing Act, a completely different set of rules. Also, the agency implementing the various paradigms are different as well: employment is administered by the EEOC; accessing nonfederal governmental entities and places of public accommodations are administered by the DOJ; the Air Carrier Access Act is administered by the Department of Transportation; and the Fair Housing Act is administered by HUD.

The blog entry for this week deals with the question of just what are the parameters for figuring out whether a dog belongs in the workplace. The answer very much depends on what is the controlling law. As usual, blog entry is divided into categories and they are: Torres v. SHRM jury verdict form; Fisher v. City of Lansing, which is divided into three categories: 1) facts; 2) why the court grants summary judgment on the failure to accommodate claim; and 3) thoughts/takeaways; Moncini-Rotolo v. Belle Vernon Area School District, which is divided into the following categories: 1) facts; 2) why plaintiff’s retaliation and post-discharge retaliation claims under the ADA and the Pennsylvania Human Rights Act (PHRA), survive a motion to dismiss; 3) why plaintif’s PHRA hostile work environment claim survives a motion to dismiss; and 4) thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Torres v. SHRM Jury Verdict Form

 

In this case, a diabetic who was given a conditional job offer by the Society for Human Resources Management (SHRM), informed SHRM that she was a diabetic and needed her service animal to alert her to possible diabetic episodes. After a back-and-forth where various things were talked about but the service animal was not going to be allowed, the job offer was rescinded and she brought suit. SHRM after being hit with a $400,000 jury verdict has said in no uncertain terms that it will appeal.

 

  1. The jury found the following:

 

  1. Plaintiff did not prove by a preponderance of the evidence that SHRM rescinded her job offer because of her disability, and therefore, SHRM did not violate the ADA.
  2. Plaintiff did prove by a preponderance of the evidence that SHRM rescinded her job offer because of the need to accommodate her disability in violation of the ADA.
  3. Plaintiff proved by a preponderance of the evidence that SHRM failed to provide her a reasonable accommodation in violation of the ADA.
  4. Plaintiff did prove by a preponderance of the evidence that SHRM failed to provide her a reasonable accommodation in violation of the Virginia Human Rights Act.
  5. Plaintiff proved by a preponderance of the evidence that SHRM failed to provide her reasonable accommodation in violation of the Virginia Human Rights Act.
  6. Plaintiff did not prove by a preponderance of the evidence that SHRM failed to engage in a timely, good faith interactive process.
  7. Compensatory damages of $400,000 were awarded but no punitive damages.

 

  1. Discussion

 

  1. The ADA can have several different causes of actions: disparate treatment; disparate impact; and failure to accommodate. Here, judging from the jury verdict form, the jury did not find disparate treatment but they did find a failure to accommodate.
  2. Clearly, what this case came down to was whether the accommodations offered by SHRM were effective accommodations. While the interactive process is a give-and-take and the employer ultimately gets to decide on the accommodation, there are numerous cases holding that the purpose of the interactive process is to find an effective accommodation.
  3. It is significant that the jury also found violation of the Virginia Human Rights Act because finding a violation of the state law may allow the court to apportion damages so as to circumvent the statutory limits on damages under the ADA depending upon employer size. See this blog entry.
  4. I am not licensed in Virginia, so I don’t know the particulars of the Virginia law with respect to disability discrimination. I can say that the vast majority of state laws closely resemble the provisions of the ADA and are interpreted similarly. I also don’t know if Virginia has any ceiling on damages. I do know that Virginia has a one year statute of limitations for disability discrimination matters and that federal courts will look to the Virginia disability discrimination law to determine the statute of limitations. Generally speaking, courts will look to the personal injury statute of limitations but not with Virginia.
  5. With respect to the jury verdict form, there isn’t anything about the interactive process when it comes to the ADA on the jury verdict form. The reason for that may be that failure to engage in an interactive process is not a separate cause of action in many jurisdictions but rather a part of a failure to accommodate claim. An employer acting in good faith does prevent a damage claim. In the ADA world, good faith means engaging in the interactive process in the way it should be done. See this Federal Bar Association blog entry discussing best practices for the interactive process. A failure to engage in the interactive process or blowing up the interactive process is also a lack of good faith in the ADA universe. So, one wonders if one of the grounds for SHRM’s appeal will be that the jury found that it acted in good faith, so SHRM should not have any damages awarded to it under the ADA. The problem with that argument is that the jury verdict form doesn’t distinguish between ADA damages and damages awarded under the Virginia Human Rights Act, so it is possible that a court would allot the entire damages to the state law claim even assuming good faith on the part of SHRM. See also this published decision from the 11th Circuit decided on May 28, 2026, here.

 

II

Fisher v. City of Lansing

 

  1. Facts (taken from the opinion)

 

Plaintiff began suffering from PTSD around 2010. His symptoms primarily affected Plaintiff’s work at the fire station. In March 2020, Plaintiff made a request to bring his dog “Chet” to work. Plaintiff had an initial conversation with his Battalion Chief, Paul Cleveland. Then, on March 18, 2020, Plaintiff sent a text to Cleveland stating that the “plan is for 3 to 6 months with the emotional support animal”. Plaintiff testified that Cleveland ultimately approved the request. Plaintiff also testified that Cleveland did not “push[] it any higher up” because “that would be making the chiefs above him and, you know, the city administration aware of it”

Plaintiff began to bring his dog to work in March 2020 and continued to do so for about four months (id.). Plaintiff admitted at his deposition that, as of July 2020, he had not obtained approval from HR to bring his dog to work and that he did not make a request for a reasonable accommodation under the City’s policy. In July 2020, the City learned about Plaintiff’s dog. Plaintiff had transferred shifts and informed his new coworkers about the situation. Plaintiff wanted to make people aware of his dog and wanted to make any necessary adjustments if his coworkers had concerns. One of new coworkers informed HR about the dog. On July 30, 2020, the City issued a notice to all fire department employees stating that employees were not allowed to bring pets of any kind to work. The notice included a reminder that service animals may brought to work with prior approval from the Human Resources Department.

In mid-August 2020, Plaintiff submitted his request for a service animal using the City’s approved form. Plaintiff also submitted a letter from Dr. Ronald Fandrick, a licensed clinical psychologist. Dr. Fandrick concluded that Plaintiff needed an emotional support animal during work hours at the fire station. Around August 26, 2020, Kathy Woodman, the City’s Health and Wellness Director, met with Plaintiff for over an hour to discuss his request. Near the end of September, Defendant denied Plaintiff’s request for an accommodation.

Plaintiff filed a claim with the EEOC and was given a right to sue letter and then filed suit in court.

 

B.

Why The Court Grants Summary Judgment to The City Of Lansing

 

  1. Failure to accommodate cases use a direct evidence test.
  2. Proving up a failure to accommodate claim means showing: 1) plaintiff was disabled; 2) plaintiff was otherwise qualified for his position; 3) defendant knew or had reason to know of the disability; 4) plaintiff requested an accommodation; and 5) the defendant failed to provide the necessary accommodation.
  3. The employee has the responsibility for proposing an accommodation that is both reasonable and necessary. That accommodation must address a key obstacle that prevent the employee from performing a necessary function of his position. It is up to the employee to provide the employer with medical documentation to show the necessity of the proposed accommodation.
  4. When plaintiff demonstrates the employer failed to accommodate a known disability, the employer bears the burden of proof that the proposed accommodation imposes an undue hardship on the employer.
  5. Plaintiff demonstrated a genuine issue of material fact with respect to whether the dog would be under control when he was on a call away from the fire station and the dog was placed in the crate. Plaintiff testified that the additional time to create the service animal was negligible. He also testified that he had less gear to put on than other firefighters and typically has a way for other firefighters to get ready before the group can leave. In fact, there was never a time where he was the last one on the apparatus and the group was waiting for him to go on the fire call.
  6. Courts have not considered in any meaningful way the proper interpretation of the word “control,” in the regulations [the regulations come from Titles II and III and not Title I of the ADA].
  7. While the dog would be unattended for the duration of the call, defendant has not even suggested by placing the service dog in a crate or kennel would preclude the conclusion that the service animal was kept under control.
  8. Defendant demonstrated that a service dog was not necessary for plaintiff to perform the essential duties of a job at the fire station. Plaintiff could perform the firefighting functions of his job at all times.
  9. Plaintiff did not allege that his PTSD interfered with his ability to drive a fire apparatus or duties at a fire. Instead, plaintiff contended that a PTSD cause problem for him at the fire station during the time between calls.
  10. When asked if he was unable to perform his duties at the fire station, plaintiff testified that he wouldn’t say completely unable to perform. Rather, his duties were impacted and it wasn’t optimal.
  11. The letter from plaintiff’s licensed clinical psychologist referred to an emotional support dog and it being an emotional support dog was backed up by his testimony. Recommendation for the animal was made after observing the plaintiff and the dog interact.
  12. The regulation for Title II and Title III of the ADA authorize service animal but do not authorize the use of emotional support animals.
  13. The employment records of the plaintiff demonstrated that he did his job as a firefighter perfectly within norms of a firefighter even without the animal.
  14. To prevail on a failure to accommodate claim, the proposed accommodation must address a key obstacle preventing plaintiff from performing the essential function of the position.

 

C.

Thoughts/Takeaways

 

  1. This court uses Title II and Title III DOJ final implementing regulations as controlling authority. However, this is a Title I case, which is controlled by the EEOC and not DOJ. EEOC has no rules when it comes to service animals in the workplace. I have said in the past that an employer would do well to look at the Title II and Title III DOJ final implementing regulations on service animals for guidance, but that is not the same thing as saying those regulations are controlling authority in a Title I case.
  2. The court focuses on necessity for the reasonable accommodation as the reason for granting summary judgment to the city of Lansing. However, Title I does not contain any necessity requirements when it comes to reasonable accommodations. The necessity requirements is found in Title III (42 U.S.C. §12182(b)(2)(A)(ii) and not Title I nor arguably in Title II either. If one looks at 42 U.S.C. §12112(b)(5) and 29 C.F.R. §1630.9( Title I), you won’t find any reference to necessity there at all. Instead, the question is whether an undue hardship would be created by the proposed accommodation. Same arguably goes for Title II (See 42 U.S.C. §12132 and 28 C.F.R. §35.130(b)(7)(i)), but see this blog entry). One wonders if this case will be appealed by the plaintiff and Title I’s lack of a necessity requirement won’t be part of that appeal.
  3. The case illustrates the importance of knowing the distinction between a service animal and an emotional support animal. Both terms get used in this opinion and they are not interchangeable. The fact that the plaintiff and his physician talked about an emotional support animal very much impacted the court’s ultimate conclusion.
  4. In my practice, I would say close to 90% of the time when a person with a disability tells me that they have an emotional support animal, they really in fact have a psychiatric service animal. The distinction between an emotional support animal and a psychiatric service animal can be incredibly fine. However, that distinction is very important. With respect to figuring out whether it is a service animal or an emotional support animal, I make the two inquiries that DOJ talks about in their final implementing regulations for Title II and Title III of the ADA. In particular, I ask what work or task the dog has been trained to perform. Their answer automatically tells me whether it is related to the person’s disability. I have found that generally you don’t even have to ask the first inquiry, which is whether the dog is needed because of a disability, since when you ask the question about training and work or task the animal performs, the person inevitably tells you about their disability. I have also found that the person may not realize that they have trained their dog. The way you figure that out is simply a matter of asking how does the person get the dog to do what it is that the dog does and how does the person reinforce that behavior.
  5. The “control,” discussion in the case is very important because it raises the possibility that an animal could be under control even if the individual is not even present. Again, this whole concept of control has nothing to do with employment situations at all. Even so, this point is an important one for Title II and Title III situations.
  6. The court’s discussion of control possibly extending beyond a personal presence also makes sense in light of the Supreme Court decision in Loper Bright. That decision talks about a close fit between a regulation and a statute as being the reason when a regulation is given controlling authority. That decision and its decision in Kisor v. Wilkie, which we discussed here and which may or may not be still good law, could give the court some latitude with respect to exercising common sense in terms of the “control,” requirement. Flexibility with respect to “control,” would also account for how D/deaf individuals often use their hearing dogs, which is for use in the residence but not when they are outside of the residence.
  7. Did I mention that the Title II regulations do not apply to Title I? Nevertheless, this court seems to think that it did.
  8. As we discussed in this blog entry, there is an intense debate going on in the courts whether accommodating a person with a disability means accommodating the essential functions of the job or accommodating the disability. The better practice is to accommodate the disability. Focusing on accommodating the disability rather than on accommodating the essential functions of the job, will certainly prevent lawsuits. However, many courts, such as this one, are saying that the accommodation is for the essential functions of the job and not for the disability. So, be sure to check your jurisdiction.
  9. In this jurisdiction, failure to accommodate claims are direct evidence cases.
  10. There are numerous cases out there saying  a person can still be entitled to a reasonable accommodation even if they can do the job without one.

 

III

Moncini-Rotolo v. Belle Vernon Area School District (AI combined with my additions/editing).

 

Facts (a combination of AI and my editing)

 

Laura Moncini-Rotolo, a Pennsylvania-licensed nurse, worked for Belle Vernon Area School District at Rostraver Elementary School from 2009 and became a full-time Certified School Nurse in 2014. She alleged that the District terminated her employment effective April 15, 2025.

In 2022, Moncini-Rotolo told then-Superintendent Dr. Kenneth Williams that she had severe anxiety affecting major life activities and requested permission to bring her psychiatric service dog, Charleigh, to work as an accommodation. She alleged that Williams orally approved the request without requiring medical documentation, and that Charleigh enabled her to perform her essential job functions.

Charleigh reportedly worked alongside Moncini-Rotolo without problems during the 2022–23 school year. In September 2023, however, the District began requiring certification and insurance-related information for dogs in school buildings and then provided its service-animal policy. Moncini-Rotolo submitted requested materials, including a letter from her Certified Nurse Practitioner regarding anxiety.

The District’s new superintendent, Dr. Timothy Glasspool, stated that the District needed a diagnosis and information about the task the animal would perform before granting an ADA accommodation. Moncini-Rotolo alleged that the District subsequently retaliated against her by imposing additional requirements, including a demand for her entire mental-health counseling records, despite her prior successful use of Charleigh and the absence of undue hardship. She also alleged that the District failed to engage properly in the ADA/PHRA interactive process and that Charleigh was removed from service around September 12, 2023, requiring retraining at her expense.

Moncini-Rotolo filed an EEOC complaint on January 16, 2024. She alleged that the District thereafter retaliated through hyper-scrutiny of her performance and successive disciplinary actions, including Loudermill letters and hearings, unpaid suspensions, a fitness-for-duty evaluation, and a broad medical-release authorization.

The disciplinary process, where she was suspended without pay during the process, culminated in the District’s termination of her employment. Moncini-Rotolo further alleged post-termination retaliation: the District filed a complaint against her with the Pennsylvania Department of Education’s Office of Chief Counsel. That office later found no probable cause for disciplinary action, dismissed the complaint, and closed its file.

She then filed suit alleging retaliation under the ADA and the PHRA as well as alleging a hostile work environment under the PHRA

 

B.

Why Plaintiff’s Retaliation and Post-Discharge Retaliation Claims under the ADA and the PHRA Survive a Motion to Dismiss

 

  1. The elements of an ADA retaliation claim are: 1) plaintiff engaged in protected conduct; 2) plaintiff suffered an adverse employment action by the defendant; and 3) there is a causal relationship between them.
  2. The ADA retaliation provision protects any individual opposing any act or practice made unlawful by the ADA or who has made a charge under the ADA.
  3. Filing an EEOC charge and/or requesting a reasonable accommodation for disability is conduct protected from retaliation under the ADA.
  4. Suspending a person without pay is an adverse employment action as is termination.
  5. The Third Circuit has set forth no limits on what courts can consider in determining whether a causal link exists between the protected activity and the retaliation.
  6. After filing her EEOC complaint, plaintiff had to undergo several hearings, a suspension without pay, eventual termination, and an allegedly unfounded post-discharge complaint to the Pennsylvania Gov.’s Office of Chief Counsel.
  7. Prior to filing the EEOC charge, plaintiff has never been warned, reprimanded, counseled, or disciplined by defendant during 16 years of service.

 

C

Why Plaintiff’s Hostile Work Environment Claim under the PHRA Survives a Motion to Dismiss

 

  1. A district court has supplemental jurisdiction over state-law claims that are so related to claims over which the court has original jurisdiction so that they form part of the same case or controversy under Article III of the United States Constitution.
  2. A state-law claim is so related to a federal claim if the two claims are derived from a common nucleus of operative facts.
  3. A federal court may exercise supplemental jurisdiction as long as there is a federal claim giving the court jurisdiction.
  4. Since the court denied defendant’s motion to dismiss with respect to the ADA and PHRA retaliation claims, the state law claim for hostile environment, which is based on the same nucleus of facts as those claims, remains for the court to consider.
  5. Hostile work environment claims under the PHRA are subject to the same analysis of hostile work environment claims under the ADA.
  6. To establish a hostile work environment based on disability under the PHRA, a plaintiff has to show: 1) plaintiff is a qualified individual with a disability; 2) plaintiff was subject to unwelcome harassment; 3) the harassment was based on plaintiff’s disability or a request for an accommodation; 4) the harassment was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment; and 5) the employer knew or should have known of the harassment and failed to take prompt and effective remedial action.
  7. To be sufficiently severe or pervasive, harassment must be shown to be both objectively and subjectively hostile or abusive.
  8. In determining whether work environment is sufficiently abusive, courts look at all the circumstances, including: 1) the frequency of the discriminatory conduct; 2) its severity; 3) whether it is physically threatening or humiliating, or a mere offensive utterance; and 4) whether it unreasonably interferes with an employee’s work performance.
  9. Plaintiff sufficiently alleged facts to meet this standard, including: 1) being interrogated and berated by defendant’s board and outside legal counsel; 2) being directed to obtain a fitness for duty evaluation & overly-broad medical release authorizations; 3) being subject to two unjustified letters leading to three different hearings and a suspension without pay.
  10. Considered collectively, the incidents alleged are sufficient to support plaintiff’s hostile work employment claim.

 

D. Thoughts/Takeaways

 

  1. Suspension without pay and termination are adverse actions.
  2. Disciplinary hearings are adverse actions.
  3. Being berated for filing a claim is an adverse action. Human resources departments may want to take note of this, as I have seen human resources departments berate individuals for bringing disability discrimination claims to HR. That should not be the role of human resource departments. Instead, HR should be objectively figuring out what is going on. Leave it to the lawyers to do the advocacy based upon the facts that come out in the investigation.
  4. Temporal proximity between the protected activity and the retaliation is not the only thing a court considers. A court can consider a variety of other factors as well. That said, I have seen many decisions that seem to focus on temporal proximity as the end all and be all. This case illustrates that court shouldn’t be so narrow in their thinking when it comes to assessing whether an retaliation occurred.
  5. The ADA allows for a hostile work environment claim, as we discussed here.
  6. In figuring out whether a hostile work environment claim exists, courts look at all the circumstances. Particularly noteworthy, is looking at whether the hostile work environment interferes with the employee’s work performance.
  7. Hostile work environment claims are not easy to prove because of the objective and subjective requirements for showing severe or pervasive harassment.
  8. It is a big mistake to ask for a diagnosis. The EEOC and HUD for that matter will tell you that isn’t allowed. Also, requesting excessive documentation (see this blog entry), isn’t allowed either.
  9. This case was a motion to dismiss and may go differently on summary judgment.
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Baseball playoffs are here as is the start of the NFL season. Good luck to all of your teams. Two of my three baseball teams (Braves and White Sox), made it to the second round. We will see where it goes from here.

This week’s blog entry deals with the question of whether the ability of a blind person to serve on a grand jury is a real right. We already know that the ability of a blind person to serve on a traditional jury may be nothing more than a theoretical right. See this blog entry. The question is whether the same analysis as in Lakrout also applies to a blind person serving on a grand jury (this court says it doesn’t).

The case of the day is National Federation of the Blind of New York State, Inc. and Albert  Elia v. New York State Unified Court System decided on September 14, 2026 in the United States District Court Eastern District of New York in an opinion by Judge Reyes, Jr., here. As usual, the blog entry is divided into categories, and they are: facts; why Elia has standing; why the National Federation of the Blind of New York does not have associational standing; why Elia states a claim under Title II of the ADA and §504 of the Rehabilitation Act; why Elia fails to state a claim under the Equal Protection Clause of the New York State Constitution; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

A Note about the facts section for this blog entry: I am not sure I saved any time, but I got really frustrated with the amount of facts that I was going to insert into this category. So, I asked Lexis AI Protégé to condense the facts from the perspective of the author of the Understanding the ADA blog, which is me of course. It came back pretty close to what I would come up with if I had been able to get my mind around how to condense the facts. Previously, I had asked it to condense facts from the perspective of a disability rights attorney. Really interesting how changing the prompt led to a very different result. I did make a few additions to what Lexis AI Protégé came up with. Of course, I had already thoroughly read the case. One thing I am noticing is AI isn’t necessarily saving me time as much as it is getting me to work differently. It does save time in some respects with respect to my practice, but for the most part I wind up spending very close to the same amount of time but just going about it very differently. Finally, the reasoning sections and the thoughts/takeaways section of this blog entry are entirely constructed by me with no assistance from AI. As mentioned previously, I am not ever going to be using AI in any way for the reasoning section and thought/takeaways section of any of my blog entries.

 

I

 

Facts:

 

In October 2024, Albert Elia, a blind member of the National Federation of the Blind of New York who uses a guide dog, was summoned for grand jury service in Kings County Supreme Court. He was empaneled on October 4 and began service on October 7. During the first case presentation, an assistant district attorney presented video evidence without sound. Elia requested audio accommodation, but none existed. The assistant D.A. asked witnesses to describe visual evidence in subsequent cases. Later that day, Elia met with a judge and assistant D.A. to discuss his ability to assess photographic and videographic evidence. The assistant D.A. expressed concern about presenting many cases involving videos, photographs, and body-worn cameras.

Elia explained he uses assistive technology, including an AI phone application that describes images, but noted this would violate grand jury secrecy by sending visual images to AI on the web. He suggested assistant D.A.s could examine witnesses to elicit information about visual evidence. The judge stated assistant D.A.s cannot narrate what they show and that visual evidence must speak for itself. Elia clarified he was requesting witnesses describe visual evidence, as had been done in earlier cases. The judge responded that witnesses cannot narrate beyond confirming basic information like timing and location. The judge found Elia was at a significant disadvantage because he could not test witness veracity without seeing what other jurors saw.

The assistant D.A. requested Elia be excluded from deliberation on cases with video evidence. The judge permitted disqualification in cases where visual evidence was particularly important. On October 9, Elia proposed having the foreman describe visual evidence during deliberations, with other jurors correcting any inaccuracies. The judge rejected this, stating other jurors cannot tell Elia what they see because interpretations differ, and visual interpretation differs from official hearing-impaired interpretation. The judge proposed Elia could participate and listen but would be limited in cases he could vote on. Because approximately 75 percent of cases involved heavy videographic or photographic evidence, Elia requested discharge, which the judge granted.

The Unified Court System has a pamphlet that they put out with respect to accommodating individuals with disabilities. The pamphlet talks about two different kinds of accommodations: 1) administrative accommodations provided by court administrators and managers; and 2) judicial accommodations offered by a judge or judicial officer. Administrative accommodations are such things as sign language interpreters, assistive listening devices, or CART, and arranging for court service to be provided in an accessible location. Judicial accommodations implicate the rights of parties to the proceeding and may include such things as extensions of time for the filing of papers, taking frequent breaks during court proceeding, and remote appearances. While only a judge can order a judicial accommodation, non-judicial court personnel may be called upon to facilitate the accommodation. It is up to the Chief Clerk to figure out whether the request is for an administrative or a judicial accommodation. Finally, when a reasonable accommodation request is made during a judicial proceeding, the judge gets to determine whether it involves a purely judicial accommodation and should refer any request for an administrative accommodation to the Chief Clerk. An administrative accommodation may be denied only by the Chief Clerk in consultation with the ADA coordinator.

Both the National Federation of the Blind of New York State and Albert Elia then filed suit alleging violations of Title II of the ADA, §504 of the Rehabilitation Act, and the Equal Protection Clause of the New York Constitution.

 

II

Why Elia Has Standing

 

Injury

 

  1. Elia sufficiently stated an injury because: 1) Defendant empaneled Elia as a grand juror and then failed to provide reasonable accommodation for his participation; 2) the Unified Court System’s ADA pamphlet states the Unified Court System will provide reasonable accommodations to enable a person with a disability to fully participate; and 3) the court’s limit on Elia’s participation in cases without visual evidence prevents his participation in grand jury service altogether. Further, the transcript record shows that the defendant did not attempt to provide reasonable accommodations for Elia.

 

Causation

 

  1. Causation is satisfied where a defendant’s actions have a determinative or coercive effect upon the actions of someone else, and the actions of that third party caused the plaintiff’s injuries.
  2. An injury only has to be likely attributable at least in part to the actions of the defendant.
  3. A plaintiff need not quantify how much of the risk is suitable to a defendant. Instead, a plaintiff has to show some reasonable connection between defendant’s conduct and their harm.
  4. Elia’s injury de facto exclusion from service on a grand jury is fairly traceable to defendant’s conduct because the Unified Court System’s lack of an ADA accommodation procedure had a determinative effect on the judge’s decision to exclude Elia from grand jury service.
  5. The Unified Court System is responsible for training court personnel and judges on ADA requirements and reasonable accommodations so all persons have access to and can fully participate in court proceedings regardless of their disabilities.
  6. Unlike Lakrout, which we discussed here, Elia served on the grand jury. Once he was on the grand jury, the court categorically excluded him from all future cases with visual evidence.
  7. This exclusion of a prospective juror during voir dire at the consent of all parties based on the evidence in a singular case is not the same as a categorical exclusion from all cases with visual evidence, particularly when most cases today include some form of visual evidence.
  8. Unlike the judge in Lakrout, the judge in this case did not conduct a fact specific, or case-specific inquiry leading to Elia’s exclusion from voting on a particular case. Rather than a tailored determination of whether a potential juror’s disability prevented them from providing reasonable jury service even with accommodations in a particular case, the judge in this case excluded Elia from all cases with visual evidence.

 

Redressability

 

  1. Plaintiffs do not contest judicial discretion. Instead, they challenged the systemic practices of the jury clerk and commissioners.
  2. The current lack of a reasonable accommodation procedure for blind individuals ensures that the judge could not exercise any discretion.
  3. A judge cannot use discretion to grant or deny accommodations that do not but should exist.
  4. Elia’s exclusion from the grand jury stems directly from the failure of the court system to provide reasonable accommodation to ensure Elia had the opportunity to participate in the grand jury.
  5. Judicial resolution would redress plaintiffs injuries to some extent because a reasonable ADA accommodation would plausibly facilitate equal access to jury service, thereby reducing the risk of future harm.

 

III

Why the National Federation of The Blind of New York Does Not Have Associational Standing

 

  1. The associational standing claim fails because the National Federation of the Blind of New York cannot show that neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. In particular, the participation of Elia is necessary at trial to determine whether the Association has standing. In other words, standing doesn’t work because the National Federation of the Blind of New York cannot rely on the participation of Elia’s unique experience serving on the grand jury for its own claim.

 

IV

Why Elia States a Claim Under Title II of The ADA And §504 of The Rehabilitation Act

 

  1. Title II of the ADA and §504 of the Rehabilitation Act impose identical requirements, and therefore, are considered in tandem.
  2. Stating a claim under both laws means a plaintiff has to show: 1) they are a qualified individual with a disability; 2) the defendant is subject to the ADA and the Rehabilitation Act; and 3) the plaintiff was denied the opportunity to participate in or benefit from the defendant’s services, programs, or activities, or otherwise discriminated against by the defendant because of their disability.
  3. The demonstration that a disability makes it difficult for plaintiff to access benefits available to both those with and without disabilities is sufficient to sustain a claim for reasonable accommodation.
  4. In a footnote, the court noted that defendant conceded that Elia was a qualified individual with a disability and that they were subject to Title II of the ADA. They did dispute whether they receive federal funding for purposes of being subject to the Rehabilitation Act.
  5. In that same footnote (it is a bit confusing how it is phrased), but the court certainly seems to say the question of whether they receive federal funding for purposes of being included in the Rehabilitation Act should be determined in discovery and briefed at the summary judgment stage if it remains in dispute, so the court reserves its decision on that until a later time.
  6. Elia sufficiently stated a claim under Title II of the ADA and Rehabilitation Act because he alleges that defendant’s failure to provide a reasonable accommodation procedure denied him the opportunity to participate in or benefit from the defendants services, program, or activities on the basis of a disability.
  7. The court limited his participation in grand jury deliberations because of his blindness by ordering a jury instruction that disqualified him from voting on cases with any video and photographic evidence since he could not evaluate and review visual evidence. Such an instruction excluded him from about 75% of all the cases that he would hear while on the grand jury.
  8. Prior to providing the instruction, the judge stated they could not see how there could be a solution to allow him to participate in the case as it contained visual evidence. That statement contradicts defendant’s ADA pamphlet that explained to Unified Court System is responsible for training court personnel and judges in accommodation procedures and ensuring that all persons with disability Temple and equal access to the courts.
  9. To put it another way, the court empaneled Elia to the grand jury without offering an accommodation that would permit his participation alongside his peers.

 

V

Why Elia Fails to State a Claim Under The Equal Protection Clause of The New York State Constitution

 

  1. Persons with disabilities are in the rational basis class, so the New York State Equal Protection claim necessarily fails because a rational basis could be constructed for the exclusion.

 

VI

Thoughts/Takeaways.

 

  1. I am not sure that the Unified Court System distinction between administrative accommodations and judicial accommodations makes any sense whatsoever. Is it really judicial discretion to decide on a reasonable accommodation for a qualified person with a disability? I think you can make the argument that it isn’t. I do see why the distinction certainly helps any judge with respect to judicial immunity. If it is a judicial accommodation, then you could argue it involves judicial discretion and therefore, the judge should be given judicial immunity. However, judicial discretion as discussed in the Unified Court System pamphlet seems to be a bit of an artificial construct when it comes to accommodating a person with a disability. I do like how the pamphlet takes away any ability of the judge to be a final arbiter when it comes to administrative accommodations. I’m just struggling with what is a judicial accommodation in terms of whether it really involves judicial discretion outside of figuring out what might get the person with the disability and the court to a win-win.
  2. Brown, Goldstein, Levy is representing, with others, both the plaintiff in this case and in Lakrout (in the interest of full disclosure, I have presented numerous times with attorneys from that law firm, though I have not worked on a case with them as of yet).
  3. Judge Reyes uses the term “hearing-impaired interpretation.” In the hearing loss community, “hearing-impaired,” is very much frowned upon. The preferred words are Deaf, deaf, or hard of hearing. Nothing impaired (i.e. somehow less than), about my hearing for example, I just hear differently, in my case with powerful hearing aids, lip reading, and Bluetooth technology.
  4. Interesting how the court tries to distinguish the case we discussed here. For starters, the court believed that in Lakrout there really was an individualized/tailored analysis done. An argument certainly exists that no such analysis occurred. Certainly, an interactive process didn’t occur in Lakrout, though an individualized analysis might be considered a lower standard.
  5. Judicial immunity didn’t come into play here because the challenge was to the systemic practices and not to the judge’s discretion. To the court’s mind, the systemic practices prevented the judge from exercising any real discretion in the first place.
  6. With respect to causation and standing, and injury only has to be attributable at least in part to the actions of a defendant, and a plaintiff does not have to quantify how much of the risk is suitable to each defendant. All a plaintiff has to show is a reasonable connection between defendant’s conduct and the harm.
  7. For a plaintiff to sustain a claim for reasonable accommodation, at least in the setting of this case, all a plaintiff has to show is it was difficult for them to access benefits available to both those with and without disabilities.
  8. Whether a governmental entity is subject to the Rehabilitation Act based on its funding is something that should be resolved at summary judgment and not on a motion to dismiss.
  9. When it comes to accessing the courts, per Tennessee v. Lane, persons with disabilities are at least in the intermediate scrutiny class if not higher with respect to equal protection jurisprudence. Accordingly, I don’t understand how the court puts persons with disability in the rational basis class under these set of facts.
  10. One wonders if this will be appealed for a couple of reasons. First, did the way the court distinguished Lakrout really makes sense? Second, the equal protection analysis does not make sense because the court system is involved. As a result, persons with disabilities are not in the rational basis class.
  11. Courts have certainly held consistently that the interactive process applies to places of public higher education. Outside of the higher education process, you will be hard-pressed to find cases holding that Title II of the ADA requires an interactive process, though such cases can be found if you look hard enough. Regardless of whether Title II of the ADA requires an interactive process, this case illustrates nicely why preventive law demands that such an interactive process occur. For the do’s and don’ts of the interactive process, see this blog entry.
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The last week of the baseball season went down to the final day. Somehow or another, I wound up with three teams in the baseball playoffs, and in no particular order: Braves; White Sox; and Cubs. Braves and the Cubs can’t meet unless they are playing for the National League pennant. Good luck to all of your teams.

 

Today’s blog entry concerns a case out of the Northern District of Georgia. The magistrate came down with a ruling and the judge completely affirmed the magistrate’s report after the parties raised objections. In the magistrate’s report there are lots of take aways when it comes to failure to accommodate cases. I also discuss the affirmance of the magistrate report with respect to two things that struck me. The case of the day is EEOC v. Osmose Utilities Services. The magistrate report, here (Lexis), was decided on July 14, 2026. The affirmance of the magistrate report, here (Lexis), was decided on September 25, 2026. As usual, the blog entry is divided into categories, and they are:  facts; why plaintiff raised a genuine issue of material fact that she is a qualified individual with a disability; why the failure to accommodate claim for the first request does not survive summary judgment but the second request does; why an adverse action exists; why the disability discrimination claim does not survive summary judgment; why the retaliation claim does not survive summary judgment; surviving summary judgment means utilizing both McDonnell Douglas and convincing mosaic approaches; what is curious about the judge’s affirmance of the magistrate report; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. Finally, I have become concerned of late that I can go down rabbit holes with respect to my facts section. So, I asked Lexis AI to distill the key facts for me as if a disability rights attorney was looking at the case. It did a reasonable job, though not a complete one. So, my facts section is a combination of Lexis AI plus material I added myself. Depending on the case of the week, I might try this approach again. I will say I have absolutely zero plans to ever use AI for the court’s reasoning sections of my blog. I also have absolutely zero plans to ever use AI for my thoughts/takeaways section of my blog.

 

I

Facts (taken from AI and the decision itself after first thoroughly reading the case)

 

The plaintiff began her employment with the defendant as a temporary employee before being hired as a full-time “Locator” in March 2018. She successfully worked in this role for approximately one-and-a-half years through 2018 and 2019. In February 2019, she received a “performance meets standards” evaluation. On July 12, 2019, Plaintiff was in a car accident and suffered an acute left occipital stroke resulting in permanent right peripheral vision loss. This physical impairment led to driving difficulties and fears associated with her vision loss.

 

Defendant is an infrastructure support services company that assists with the inspection, restoration, and repair of utility poles throughout the United States and Canada. Plaintiff started with Defendant as a temporary employee, and on March 12, 2018, Defendant hired her as a full-time Locator working out of its Peachtree City, Georgia office.

 

Defendant’s job description for the position states that Locators support field operations, prepare and submit requests for locating and marking underground utilities near poles to state One Call centers (also referred to as state 811 centers), and routinely interact and coordinate with field operations personnel (foremen, supervisors, managers), project managers, utility companies, locating contractors, and government agencies. Essentially, Locators contact the state 811 centers—either via telephone or via an online portal on a state’s 811 center website—to have water, gas, and electricity lines marked before field operations personnel work on a given utility pole or set of poles, to ensure the safety of personnel and avoid utility disruptions caused by cut lines. Plaintiff’s primary job responsibilities were to coordinate locate requests with field personnel, submit location requests to state One Call centers, monitor the status of location requests and tickets, respond to requests and questions, and maintain documents related to her work. The requirements for reporting work to utilities vary from state to state based on state-specific requirements, but Locators are required to be able to perform such work in multiple states.

 

Plaintiff made two distinct requests for accommodations to address her vision-related driving limitations: 1) August 2019 Request: Plaintiff requested remote work from Manager Scotch. However, during this exchange, she merely stated that remote work would be “easier”. She did not identify her stroke or vision loss, nor did she explain how remote work would address any disability-related limitations; and 2) September 2019 Request: Plaintiff requested remote work again, this time directing her request to Lead Locator Swaney. In this communication, she explicitly disclosed her stroke, her permanent vision loss, and her associated driving fears.

 

II

Why Plaintiff Has Raised a Genuine Issue of Material Fact That She Is a Qualified Individual with a Disability

 

  1. Plaintiff testified at length about her stroke and its limiting effects. The fact that the testimony is self-serving is of no matter, as that kind of evidence is routinely and properly used all the time when deciding to deny summary judgment motions.
  2. Plaintiff testified she lost vision in the right eye, and was taken to the hospital because of her loss of vision, dizziness, and headache. She also testified that testing revealed she had a stroke and the peripheral vision loss in the right eye appears permanent. Her medical record confirmed she had a stroke and that she was observed to have vision loss. Her neurologist also assessed her as having suffered a cerebrovascular accident, i.e. a stroke, due to an embolism in the left posterior cerebral artery. She also testified that as a result of her vision loss, she almost caused a car accident and found driving difficult and scary for the next year and a half and was unable to view all three monitors at work. Additional medical records from 2019, also confirmed neurological difficulties. So, no doubt that plaintiff is a person with a disability because she has a physical impairment in her brain that substantially limits her sight.
  3. Defendant never identified what the essential functions of the plaintiff’s position were much less measure plaintiff against those essential functions.
  4. Defendant never explains why relatively good production numbers and unspecified good attendance were essential functions of the job that plaintiff was incapable of satisfying. Defendant also never explained what were the minimum requirements necessary to meet the essential functions or how the plaintiff failed to meet those requirements.
  5. Defendant merely compares the plaintiff’s metrics to those of other people having her position without identifying any minimum metrics required to meet its otherwise unexplained requirements.
  6. Plaintiff in fact exceeded the production figures of other people with her same position. She also never received any disciplinary write ups regarding her performance before her discharge even though the defendant has a progressive discipline policy.

 

III

Why The Failure to Accommodate Claim For The First Request Does Not Survive Summary Judgment But The Second Request Does

 

  1. When it comes to reasonable accommodation, the initial burden is on the employee to: 1) identify at least in broad strokes the limitations the mental or physical condition imposes; and 2) link the disability to the requested accommodation by explaining how the requested accommodation could alleviate the workplace challenges posed by the specific disability.
  2. Employees must give employers enough information to respond effectively to an accommodation request.
  3. It is only after the employee provides enough information to respond effectively to an accommodation request that the employer is required to initiate the informal, interactive process with the employee to discuss her specific limitations, explore potential accommodation, and select the most appropriate accommodation for both the employer and the employee.
  4. An employee must first make a specific demand for an accommodation that does both: 1) identify the disability and/or its limitations; and 2) explains how the requested accommodation would help with those limitations.
  5. With respect to the first accommodation requests, plaintiff: 1) did not identify her disability or the limitations from it; and 2) did not explain how the accommodation would help alleviate those limitations. Therefore, defendant was under no obligation to provide the accommodation or even engage in the interactive process.
  6. Just because defendant was aware that plaintiff had some health issues did not mean they were obligated to engage in an interactive process at that time. “Some health issues,” is not enough information to trigger an employer’s duties under the ADA to engage in the interactive process. So, who terminated the interactive process is irrelevant in that situation.
  7. With respect to the second request for reasonable accommodation, plaintiff specifically asked if she could work remotely because she was scared to drive due to the vision issues caused by her stroke. So, plaintiff identified her disability and its limitations and asked for an accommodation addressing those limitations (in this case working remotely so she would not have to drive or burden someone else with driving her).
  8. Plaintiff testified that she told her employer about the stroke, her vision problems, and driving issues, and requested to work remotely. She also testified that they did not discuss how she was going to get to work. However, just because the commuting options were not discussed, it does not follow that plaintiff did not still identify her stroke, explained that she have vision and driving problems, and request to work remotely as a result. So, all this information triggered defendant’s obligations to engage in the interactive process. It is also clear plaintiff’s request was not made solely for personal convenience.

 

IV

Why An Adverse Action Exists

 

  1. If plaintiff had been allowed to work remotely, a reasonable factfinder could conclude that her attendance, even if it was remote, would have improved and with it her performance, at least in terms of her overall completion rate, since she would be present at work more often.
  2. Defendant testified that plaintiff’s termination was not just motivated by her poor performance, but also by her poor attendance, which related directly to her ability to get to and from work. That goes directly to the denial of her requested accommodation, and likely would have been alleviated, at least to some degree, if the request had been granted.
  3. Defendant’s stated reason for discharge are questionable. For example, defendant claimed that she was fired solely due to poor performance. However, she was never formally reprimanded for her performance, and her poor performance was never mentioned during their separation meeting.
  4. Plaintiff was also never counseled about her work performance even though there was testimony that it was her supervisor’s practice to utilize progressive discipline.
  5. Plaintiff was discharged within six weeks after making a remote work request that her employer knew was connected to her personal health.

 

V

Why The Disability Discrimination Claim Does Not Survive Summary Judgment

 

  1. Courts have held that limited information a plaintiff has a medical condition or receive medical treatment is not enough to demonstrate a decision-maker’s actual knowledge of the disability for ADA purposes.
  2. Just because an employer knows an employee has some sort of impairment doesn’t mean that the employer automatically knows the impairment substantially limits a major life activity of that employee.
  3. A plaintiff must provide evidence that allows for the reasonable inference the decision-maker actually has knowledge.

 

VI

Why The Retaliation Claim Does Not Survive Summary Judgment

 

  1. The first accommodation request cannot be the basis for retaliation claim because plaintiff did not make a sufficient request for reasonable accommodation in the first place.
  2. With respect to the second request for reasonable accommodation, the retaliation claim fails because there is no evidence that the person making the termination decision knew about the second remote work request.

 

VII

Surviving Summary Judgment Means McDonnell Douglas Plus Convincing mosaic

 

  1. If a plaintiff fails under McDonnell Douglas, the court moves to assessing whether the plaintiff can survive summary judgment under a convincing mosaic analysis.
  2. Convincing mosaic can be shown by among other things: 1) suspicious timing, ambiguous statements, and other bits and pieces for which an inference of discriminatory intent can be drawn; 2) systematically better treatment of similarly situated employees; and 3) employer’s justification is pretextual. Convincing mosaic is a more forgiving standard that McDonnell Douglas.
  3. Even under a convincing mosaic standard, there is still no evidence that the undisputed decision-maker for plaintiff’s termination had any knowledge of plaintiff’s disability or her protected activity.
  4. An employer may fire an employee for good reason, a bad reason, a reason based on erroneous facts, or for no reason at all so long as action is not for a discriminatory reason.
  5. The relevant inquiry is whether the employer in good faith believes that the employee has engaged in the conduct that led the employer to discipline the employee.

 

VIII

What Is Curious About The Judge’s Affirmance of The Magistrate Report

 

  1. The judge affirmed the Magistrate report in all respects.
  2. The one thing curious about the affirmance of the Magistrate’s report is the District Court judge’s discussion that the permanence of plaintiff’s disability somehow matters. The way the ADA is set up after the amendments is a temporary disability can be an actual disability if it is a physical or mental impairment that substantially limits a major life activity. Certainly, the plaintiff’s physical impairment in this case substantially limited a major life activity.
  3. Also interesting is the judge’s discussion of adverse action. In the 11th Circuit a failure to accommodate claim is actionable when such a failure does not necessarily affect an employee’s hiring or firing but still negatively impacts the terms, conditions, or privileges of the employment. In particular, the judge said that plaintiff’s terms, conditions, and privileges of plaintiff’s employment could have been negatively impacted when defendants denied her request to telework.
  4. Defendant’s admission that her position could technically be performed remotely could allow a reasonable factfinder to conclude that defendant’s denial of plaintiff’s remote work request necessarily affected her ability to perform her job duties.
  5. A reasonable factfinder could find that plaintiff’s inability to perform her job duties negatively impacted the terms, conditions, and privileges of her employment.

 

IX

Thoughts/Takeaways

 

  1. In most situations, whether a plaintiff has a disability should not demand extensive analysis. In this case, the plaintiff has plenty of evidence illustrating she had a disability.
  2. Essential functions of the job are those fundamental to the position. In developing essential functions of the job, you want to make sure that you are not screening out persons with disabilities.
  3. Not having essential functions of the job in your job description can be problematic. However, having outdated essential functions of the job in your job description is also problematic.
  4. The common phrasing is that magic words are not required to activate the interactive process. However, while that is true, the continuum varies radically from place to place and from judge to judge as to what information is sufficient to activate the interactive process. With some judges, it comes pretty close to magic words being required. With others, not so much at all. On the plaintiff side, the more explicit a person with a disability can be about the reasonable accommodation request and how it links to their disability, the better off a person with a disability will be. Certainly, as a preventive law matter, the employer should aim for the continuum of not much by way of magic words being required rather than insisting on something as specific as possible. Also, the other danger for an employer with insisting on something as specific as possible by way of a reasonable accommodation request, is that seeking excessive documentation is out of bounds. See this blog entry for example.
  5. There are cases out there talking about how sick leave or FMLA leave could activate the interactive process. This particular court doesn’t seem to be buying that approach. Again, be sure to check your own jurisdiction.
  6. The judge‘s affirmance of the Magistrate’s report comes very close to saying that a failure to accommodate is by itself an adverse action.
  7. This particular court adopts the approach that surviving summary judgment means both surviving McDonnell Douglas first and then if that is not survivable, looking at convincing mosaic. Be sure to check your jurisdiction on this. Many courts use an either or approach, rather than a consecutive two-step approach. Also, there are Justices on the Supreme Court that have made it quite clear that McDonnell Douglas as a summary judgment tool should be thrown out. It won’t surprise me in the least if the Supreme Court eventually does exactly that and adopts something along the lines of a convincing mosaic standard for dealing with summary judgment motions.
  8. Whether a disability is permanent is not the issue. The only question is whether a physical or mental impairment exists that substantially limits a major life activity. That impairment can most certainly, after the amendments to the ADA, be temporary. The temporary exception only applies to the regarded as prong of what it disability is under the ADA.
  9. When it comes to deciding whether remote work is a reasonable accommodation, I like the case that we discussed here as the standard to go by. Keep in mind, since the pandemic two of the criteria set forth in that case need to be amended so that “in person,” is added. Technology being what it is today, no reason why those criteria cannot be done remotely. So, as a preventive law matter, when considering whether a job can be done remotely, consider the following: 1) must the employee work in person as part of the team; 2) the job requires in person face-to-face interaction with clients and other employees; or 3) the job requires the employee to work with items and equipment that are on site.
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For those into baseball, the last week of the season is going to be pretty wild with several wildcard teams trying to figure out positioning and some even trying to figure out if they are going to make the playoffs at all. Good luck to your teams. Also, I was honored to receive the Federal Bar Association Sarah T. Hughes Civil Rights Award over the weekend in Richmond, Virginia.  I have never given a speech before where I had to read my remarks. Fortunately, it went well. It was also great to attend the convention and meet everyone, including many that I consider good friends.

 

Turning to the blog entry for the week, it is a published decision of the Ninth Circuit decided on September 8, 2026. The case, Adom v. California Department of Corrections and Rehabilitation, here, which runs 134 pages, involves a lawsuit alleging that the prison did not provide medical care for a prisoner with a disability in accordance with its Title II obligations. What makes this case unusual, is the court’s in-depth analysis on why a Title II claim survives summary judgment. In an unpublished memorandum decision, the Ninth Circuit allows an Eighth Amendment claim, with a dissent, to go forward against one of the defendants. I am not going to focus on the memorandum decision, but rather just on the published decision discussing Title II of the ADA. For that matter, I am not going to focus on the dissent to the published opinion either, as I had real trouble following it. As usual, the blog entry is divided into categories, and they are: facts; why plaintiff is a qualified individual with a disability; why plaintiff was denied services by reason of his disability; why plaintiff’s damages claims can go forward; why the injunctive relief claim needs to be remanded for further consideration by the trial court; and thoughts/takeaways (there are lots of them). Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Adom has a spinal condition that causes him chronic, severe pain and significantly limits his mobility. He underwent spinal surgery in 2008 and has an active recommendation for a second surgery. He is also a stroke survivor. Adom uses a wheelchair to get around and wears a prison-issued vest that signals he is mobility impaired. Since 2020, Adom has suffered incontinence. He is unable to control his urinary evacuations, particularly at night, and sometimes also involuntarily evacuates stool. For nearly a year after Adom’s incontinence symptoms emerged, prison staff provided him with incontinence supplies, adult diapers, through CDCR’s Durable Medical Equipment and Medical Supply program. After Adom was transferred to a different housing unit, prison staff terminated his access to these supplies. Adom repeatedly requested restored access, but his requests were denied for nearly five months. The trial court granted summary judgment to the defendant and Adom (plaintiff), appealed to the Ninth Circuit.

 

II

 

Why Plaintiff Is a Qualified Individual with a Disability

 

  1. A qualified individual under Title II of the ADA is a person who with or without reasonable modifications meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
  2. The services plaintiff seeks are available to those, like the plaintiff, who are incarcerated. Plaintiff is therefore qualified to receive all relevant services.
  3. Plaintiff is also a person with a disability as he has a spinal condition and incontinence, which are physical impairments. He also is substantially limited in the major life activities of bowel and bladder functions.
  4. After the amendments to the ADA, the question of whether an individual’s impairment is a disability under the ADA should not demand an extensive analysis.
  5. Plaintiff’s incontinence qualifies as a disability even though his doctor did not initially understand its medical basis or believe that diapers were medically necessary.
  6. Neither the statute, regulation, nor case law require a medical diagnosis or a doctor’s determination of a medical need in order for a condition to qualify as a disability under the ADA.
  7. The ADA does not require a one-to-one analysis of impairments and substantial limitations. That is, construing the meaning of disability broadly, multiple intersecting impairments may contribute to the same substantial limitations on a major life activity.
  8. The ADA entitles inmates to receive the benefits of an incarcerating institution’s programs and services without facing discrimination on account of a disability.
  9. California Department of Corrections and Rehabilitation provides services of toileting and hygiene, i.e. providing the means for inmate to urinate and defecate, as well with the means to keep themselves clean.
  10. California regulations demand that the California Department of Corrections and Rehabilitation must provide the means for all incarcerated person to keep themselves and their living quarters clean and to practice good health habits.
  11. The broad language of Title II brings within its scope anything a public entity does.
  12. California Department of Corrections and Rehabilitation has an affirmative obligation to provide the plaintiff with meaningful access to the benefits of its services.
  13. A reasonable jury could find that plaintiff was denied meaningful access to the benefit of the California Department of Corrections and Rehabilitation’s toileting and hygienic services because he needed the accommodation of adult diapers to enjoy those benefits on par with the rest of the prison population.
  14. When a person with disability can access a public entity’s services only by experiencing pain and humiliation, that access is likely not meaningful.
  15. For a person with disabilities, meaningful access to the benefits of toileting and hygiene services may require more than physical access to a toilet, sink, and shower.
  16. Title II instructs that the requisite access for a person with a disability may be achieved through reasonable modification to rules, policy, or practices or the provision of auxiliary aids and services. Since plaintiff urinates involuntarily, without notice, and often in the middle the night, structurally accessible facilities fall short of providing the plaintiff a dignified and hygienic way to manage his bodily functions. Accordingly, a jury could find that the California Department of Corrections and Rehabilitation alternative accommodation did not suffice to ensure plaintiff meaningful (emphasis in opinion),
  17. The California Department of Corrections and Rehabilitation treated the plaintiff the same (emphasis in opinion), as inmate without disabilities when the ADA required it to treat the plaintiff differently (emphasis in opinion).
  18. The purpose of the ADA’s reasonable accommodation requirement is to guard against the façade of equal treatment when particular accommodations are necessary to level the playing field.
  19. Plaintiff sufficiently alleged the general theory of his ADA claim (denial of services by reason of disability), and the nucleus of facts entitling him to relief (the denial of incontinence supplies and the ways in which that denial left him unable to cleanly and humanely relieve himself).

 

III

Why Plaintiff Was Denied Services by Reason of His Disability

 

  1. The phrase “by reason of such disability,” does only a modest work of requiring a connection between the alleged disability and the alleged denial of benefits.
  2. Plaintiff’s incontinence and spinal condition made it harder for him to enjoy the benefits of toileting and hygiene services without diapers. Therefore, a clear basis in fact exists for a jury to conclude that there is a connection (the legal term is “nexus,” which is the one the court uses), between plaintiff’s disabilities and a benefit that he was denied.

 

IV

Why Plaintiff Damages Claims Can Go Forward

 

  1. To establish deliberate indifference under the ADA, a plaintiff has to show that the public entity: 1) was on notice as to the need for accommodation; and 2) failed to adequately act on that notice.
  2. When a plaintiff has alerted the public entity to his need for an accommodation (or where the need for accommodation is obvious, or required by statute or regulation), the public entity is on notice that an accommodation is required, and the plaintiff has satisfied the first element of the deliberate indifference test.
  3. As to the requirement of failing to adequately act on the notice, an adequate response requires at a minimum, that the public entity undertake a fact specific investigation to determine what constitutes a reasonable accommodation. Such investigation must gather sufficient information from the individual with the disability and, where necessary, qualified experts, to understand the individual’s needs.
  4. An alternative accommodation is not an adequate response if it fails to provide meaningful access to the benefits of the service at issue.
  5. If a public entity denies a request for specific accommodation, it must demonstrate that it inquired as to the feasibility of the request and why it would be unreasonable or could not be accommodated.
  6. Providing one accommodation does not necessarily defeat the argument that the public entity was deliberately indifferent to the need for different accommodations.
  7. Deliberateness may be inferred when the public entity ignores or denies requested accommodations without sufficient inquiry.
  8. In a footnote, the court noted that deliberate indifference under Title II of the ADA is a different standard than the deliberate indifference standard under the Eighth Amendment.
  9. It is unlikely that an investigation is adequate when a public entity fails to gather new information before terminating a prior accommodation.
  10. California Department of Corrections and Rehabilitation abruptly terminated plaintiff’s order for weekly incontinence supplies, which he was previously receiving without issue. The abrupt termination could amount to a rejection of a plaintiff’s prior express request for accommodation and is an affirmative act from which a jury could infer deliberateness.
  11. California Department of Corrections and Rehabilitation only had access to the same medical records on which prior staff relied upon to conclude that plaintiff needed a permanent supplies order, and that no medical or custodial staff examined or interviewed the plaintiff to understand whether he no longer needed diapers. It is unlikely that an investigation is adequate when a public entity fails to gather new information before terminating a prior accommodation.
  12. A reasonable factfinder could conclude that the California Department of Corrections and Rehabilitation failed to conduct an adequate investigation before terminating the supplies order.
  13. A rational factfinder could also conclude that the California Department of Corrections and Rehabilitation acted with deliberate indifference when it ignored and summarily rejected plaintiff’s repeated pleas to reinstate his supplies order.
  14. A jury could conclude that the California Department of Corrections and Rehabilitation acted with deliberate indifference when it repeatedly rejected plaintiff’s requested accommodation without investigating whether it was reasonable and feasible.
  15. Viewing the facts in plaintiff’s favor, accommodations given by the California Department of Corrections and Rehabilitation did not provide the plaintiff with meaningful access to the benefits of its services. That is, half-solutions rather than granting the plaintiff the accommodation he requested that he had been previously provided could be found to be deliberate indifference.
  16. Disabilities within the meaning of the ADA are not limited to conditions with clear diagnoses or medical indications.
  17. The ADA creates a framework of disability and accommodation that is not directly linked to the medical system or limited to medical accommodation programs.
  18. A public entity may be obligated to provide a reasonable accommodation even when the accommodation has not been prescribed by a medical professional and even when state policy requires the prior identification of the medical condition before issuing supplies through a medical equipment program.
  19. It cannot be the case that an individual with a disability has no recourse under the ADA when he is left to live and sleep in his own waste, simply because the precise medical cause of his incontinence is elusive or because the existing accommodation programs are inadequate. Any other result would give an institutional actor that controls the relevant medical staff total control over the realization of the protections afforded by the ADA, which simply cannot be the case. Such an approach would undermine the Supreme Court’s holding, here, that Title II of the ADA applies with full force to State prisons.
  20. The denial of a disability accommodation is reviewable even when it is grounded in medical judgment, and decisions by doctors can evince deliberate indifference.
  21. The cases cited by the dissent do not stand for the proposition that medical judgments insulate public entities from ADA liability.
  22. Public entities are vicariously liable for the acts of their employees in violation of Title II of the ADA.

 

V

Why the Injunctive Relief Claim Needs to Be Remanded for Further Consideration by the Trial Court

 

  1. Plaintiff must demonstrate that at the beginning of the litigation, he had a reasonable fear that his access to incontinence supplies would again be abruptly terminated. That is, he must show there is at least a substantial risk that the harm will occur.
  2. An insufficient record exists to assess the likelihood of whether the harm will occur again.
  3. While the parties agree that plaintiff has been receiving incontinence supplies since the commencement of the litigation, it is not clear whether he has received those supplies pursuant to a formal order or by the mere good graces of the California Department of Corrections and Rehabilitation. The record doesn’t show when plaintiff’s last temporary order was set to expire, how temporary orders are set up to renew, or whether at the time of filing, there was a risk that the latest temporary order would expire before new temporary order could be approved.
  4. On remand, the district court should clarify the nature and duration of the accommodation order in place at the time the action was filed, whether there is a substantial risk that plaintiff will experience another abrupt termination of incontinence supplies when they are indicated by his status, and whether a permanent order or other injunctive relief would remedy that risk.

 

VI

Thoughts/Takeaways

 

  1. This case does an amazing job of drilling into the essence of the ADA and those thoughts can be applied on a preventive law level to many different contexts.
  2. I have seen cases of late talking about medical necessity for a reasonable accommodation. This case directly, correctly so in my opinion, contradicts those cases.
  3. A variety of impairments may operate together in order to form a substantial limitation on a major life activity.
  4. Title II covers anything a public entity does.
  5. Meaningful access is the standard for Title II cases, particularly when it comes to failure to make reasonable modifications.
  6. Experiencing pain and humiliation is not meaningful access if that is what is necessary to benefit from a public entity’s services.
  7. Structural accessibility may not be enough for certain disabilities, and is not a get out of jail free card for all disabilities.
  8. The ADA requires persons with disability to be treated differently and not the same as everyone else.
  9. The ADA reasonable accommodation requirements exist for the purpose of leveling the playing field (I have referred to this concept for over 25 years now, as getting the person with a disability to the same starting line as a person without a disability).
  10. Causation (“by reason of such disability”), is not a high requirement. That said, readers are also encouraged to check out this blog entry, here, discussing the Supreme Court’s Bostock decision.
  11. Deliberate indifference under the ADA has a different meaning despite the terminology being the same, from deliberate indifference in Eighth Amendment jurisprudence.
  12. Check out your jurisdiction as to how it deals with deliberate indifference under the ADA. While the leading case is the one we discussed here, not all jurisdiction go about it the same way.
  13. Magic words are not required to put an entity on notice that an accommodation is required. If the disability is obvious or required by statute or regulation, notice is presumed.
  14. An adequate response to a request for a reasonable modification, requires a public entity to undertake a fact specific investigation to determine what constitutes a reasonable accommodation. Preventive law would suggest an interactive process. Regardless, a thorough individualized analysis is most certainly required.
  15. Any accommodation must provide meaningful access to the benefits or service at issue.
  16. Where a public entity denies a request for an accommodation, then it is up to the public entity to show it inquired as to the feasibility of the request and why it was unreasonable or cannot be accommodated. Keep in mind, Title II of the ADA’s final implementing regulations, here, require the head of a public entity to certify that the reasonable accommodation request would lead to a fundamental alteration or an undue burden.
  17. An investigation is not adequate when the public entity failed to gather new information before terminating a prior accommodation. Employers would also do well to keep this statement of the court in mind. I have seen too many cases where an employee’s accommodation is terminated without gathering new information prior to the termination, particularly upon a change in supervisors. Definitely look for plaintiff employment lawyers to seize on this particular language of the opinion in cases where there was a termination of an existing accommodation without any inquiry into whether a change in circumstances warranted such a termination.
  18. A clear medical diagnosis is not necessary to establish a disability under the ADA.
  19. The ADA framework of disability and accommodation is not directly linked to the medical system.
  20. A public entity may be required to provide a reasonable accommodation even when the accommodation has not been prescribed by a medical professional and even when state policy requires prior identification of the medical condition before issuing supplies through a medical equipment program.
  21. The denial of a disability accommodation request is reviewable even when it is grounded in medical judgment.
  22. Jurisdictions are definitely split on the vicarious liability for the acts of public entity employees. In the Ninth Circuit, there is vicarious liability. Other circuits use a different standard. Also, in the 11th Circuit, an individual employed by a public entity can be individually liable for any retaliation per this case (I know of no other U.S. Court of Appeals that has remotely approached Shotz). Eventually, the Supreme Court is going to have to figure vicarious liability for public entities for the discriminatory actions of their employees.
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Before getting started on the blog entry of the day, congratulations to the Los Angeles Dodgers and the Milwaukee Brewers for clinching their division. I still have three teams in the hunt. Atlanta looks like they will win the division, but you never know. The Chicago Cubs and the Chicago White Sox are still fighting for a playoff spot or playoff positioning. Lots of teams in the American League still in the hunt for that final wildcard spot.

 

This week’s blog entry is a follow-up on the Fourth Circuit decision in  Billesdon v. Wells Fargo Securities, LLC, which we discussed here. The attorney for the plaintiff was nice enough to send me her petition for rehearing, and I thought it would make sense to go over the highlights of the petition. She also sent me the amicus brief from Disability Rights North Carolina and the National Disability Rights Network supporting the petition for rehearing as well. So, the blog entry is divided into highlights of plaintiff’s petition for panel rehearing and rehearing en banc; highlights of the amicus brief filed by Disability Rights North Carolina and the National Disability Rights Network; and my thoughts/takeaways. Below, are the key contentions made in those briefs. Of course, Wells Fargo is going to think differently. My thanks to plaintiff’s attorney Michelle Gessner for sending along the petition for rehearing and the amicus brief. Keep in mind, that I often, as is my practice, paraphrase what is said in the petition for rehearing en banc and in the amicus brief. Where I do that, I am not changing the substance about what was said. Also, as is my practice, the thoughts/takeaways section represents my own thoughts.

 

I

Highlights Of Plaintiff’s Petition for Panel Rehearing and Rehearing En Banc

 

  1. The panel opinion without authority declares that 42 U.S.C. §§12112(b)(5)(A), (B) are not interchangeable and present two separate pleading concerns. Such a view also makes no sense in light of the statutory structure. That structure indicates different elements for each claim, but it says nothing about how conduct fitting one of the sections becomes unavailable under the other. The EEOC regulations also do not create mutually exclusive pleading or evidentiary silos.
  2. The division between the two sections departs from the ordinary failure to accommodate framework. A §A claim does not require discriminatory motive. However, under the majority’s reasoning, what would be a motive-neutral refusal under §A becomes, if termination intervenes, a §B claim requiring proof that the employment decision was based on the need to accommodate. This results in the termination decision changing plaintiff’s substantive burden from proving a refusal to accommodate to proving why the defendant acted. Nothing in §§A, B or the regulation says termination has that effect.
  3. The A B division conflicts with the approach in another circuit, the Fifth Circuit, which permits termination during an ongoing accommodation process to support a motive-neutral failure to accommodate claim.
  4. Rule 8 of the Federal Rules of Civil Procedure requires fair notice and not statutory labels or magic words. In ¶ 45 of the complaint, plaintiff alleged that Wells Fargo terminated him in retaliation for his accommodation request and to avoid making Wells Fargo vulnerable to other employees citing to plaintiff’s case by stating that they too should have been accommodated. ¶ 51 of the complaint alleged termination due to his accommodation request and disability.
  5. At summary judgment and at trial, plaintiff argued both that Wells Fargo actually, constructively, and effectively denied plaintiff’s work from home accommodation, and Wells Fargo’s decision to terminate him rather than accommodate his disability.
  6. The jury was instructed to determine whether Wells Fargo refused or failed to provide a reasonable accommodation.
  7. Only on appeal, the majority of the panel developed the distinction between §§A & B.
  8. Rule 50(b) permits renewal only of grounds argued before the verdict, and it does not permit a new ground after the jury has returned its verdict.
  9. The panel’s reasoning imports retaliation timing principles into disability causation.
  10. The panel’s reasoning ignores the fact that continuing disability does not become causally stale over time just because the employer has known about it for years.
  11. A case, such as this one, could have both a situation where disclosure of disability, an accommodation request, and ensuing termination, supported disability discrimination simultaneously with the employer failing to participate in the interactive process. The evidence in this case permitted both findings.
  12. The jury was asked whether Wells Fargo terminated the plaintiff because of the disability and whether it terminated the plaintiff because of his accommodation request. The jury found both. The jury instructions contained no retaliation only evidentiary limitation.
  13. The §B claim was rejected in a footnote with no analysis.
  14. The §B claim was not properly preserved by Wells Fargo, and Wells Fargo had plenty of opportunities to make that argument before verdict but did not do so.
  15. The panel’s decision on the state law claims also must be reheard because the panel applied federal rules that North Carolina has not adopted even though Wells Fargo never made that argument in the first place. Nothing in North Carolina law allows for the §§A, B distinction.
  16. With respect to damages, the argument tracks Judge Berner’s opinion.

 

II

Highlights Of the Amicus Brief Filed By Disability Rights North Carolina and The National Disability Rights Network.

 

  1. The panel erroneously concluded that an employee’s long tenure with the company means the failure to accommodate for the termination of the longtime employee cannot be based on or motivated by a disability.
  2. The panel’s decision sets a harmful precedent and undermines the central purpose of the ADA in two ways: 1) imposes a bar to liability based upon the employer’s prior knowledge of disability and presumed lack of discriminatory intent so as to inappropriately narrow the protections of the ADA; 2) permits an employer to unilaterally close the interactive process without reaching any decision about a reasonable accommodation request thereby allowing employers to be excused from making reasonable accommodations.
  3. Where a work environment or the way a job is performed undergo changes and an adverse action against an employee results, then the employer’s prior notice of an employee’s disability should not preclude the employee from seeking a remedy under the ADA.
  4. Changing circumstances may lead to disability discrimination regardless of the employer’s prior knowledge of an individual’s disability.
  5. This case presents a situation where both the work environment and plaintiff’s condition changed over time.
  6. A jury could have reasonably concluded that plaintiff’s new management despite prior notice of the disability, targeted him for layoff and discriminated against him by terminating his employment after changes in circumstances. Nothing in the ADA prevents a jury from concluding as much.
  7. The panel’s opinion imposes an unworkable rule immunizing an employer from the claimant’s disability discrimination whenever the employer has prior knowledge of disability, regardless of changes affecting the job or workplace over time.
  8. The panel’s decision endorses the idea that employers are not liable for failure to accommodate where they avoid making decision regarding the accommodation request. Such a rule allows and encourages employers to evade their obligations to process reasonable accommodation requests and engage in a finite interactive process.
  9. Courts (the Amicus brief cites to a case we discussed here), have found that an unreasonable delay in granting a reasonable accommodation is actionable, which is a view supported by EEOC in its commentary on its regulations.
  10. A refusal to conclude the interactive process with a granting or denial of an accommodation leaves the employee with a great deal of uncertainty and no recourse until the ax drops so to speak.
  11. Without a formal accommodation, plaintiff was subject to uncertainty not faced by other employees, which is why he sought the formal accommodation.

 

III

Thoughts/Takeaways

 

  1. A quite possible reason for asking for a rehearing en banc was that the effect of the panel’s ruling resulted in the jury finding that the plaintiff was intentionally terminated for seeking accommodation surviving, but the legal damages awarded for that intentional misconduct not surviving.
  2. The petition for rehearing en banc, which will of course be viewed quite differently by Wells Fargo, does make the point that the §§A,B distinction is a novel one. I agree that the distinction is novel. Until this case, I have never seen it. It will be interesting to see whether other courts start going with this regardless of how the petition for rehearing en banc turns out.
  3. The amicus brief makes the point that this case could easily turn on the interactive process not being done by the employer, which is a point I made in the original blog entry’s thoughts/takeaways section.
  4. Putting substantive legal principles into footnotes, especially without authority, is certainly something that attorneys will grab onto in their advocacy. As mentioned in my original blog entry, I found the panel’s strategy of doing that in numerous instances a bit unusual.
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I hope everyone had a great Labor Day weekend. Baseball season is winding down and if you have teams in the hunt, good luck. I actually have three teams in the hunt: Atlanta Braves; Chicago Cubs; and the Chicago White Sox. Also, the NFL starts up this week, and good luck to your teams.

 

This week’s blog entry goes to the dogs quite literally. It discusses three different cases involving the legal universe of dogs and their owners. The three cases discuss the following questions: 1) is it discrimination to deny a person the ability to rent a unit because they told the landlord they will get a service animal in the future; 2) can a person have more than one service animal and do they get a little slack if the animals misbehave because they are a service animal; and 3) in Michigan, how do you figure out whether a dog acted without provocation for purposes of the dangerous dog statute. As usual, the blog entry is divided into categories and they are: Maine Human Rights Commission v. D&L Apartments facts; why the lower court did not err in determining that the defendant violated the sale or rental of housing and other prohibited practices contained in the Maine Human Rights Act; why the lower court did not err in determining that D & L Apartments violated the service animal provisions of the Maine Human Rights Act; Derrig facts; why the Florida Division Of Administrative Hearing judge allows the animals to stay; Chance facts; why the Michigan appellate court holds that Chance may not be a dangerous dog because he might have been provoked; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

Maine Human Rights Commission v. D&L Apartments, here.

 

I

Facts

 

Engstrom, a person with PTSD as a result of serving in Afghanistan, has his primary care physician mentioned to him that he should have a service dog to help alleviate his symptoms. He gets put on a waiting list for such a dog and then applies to various apartments. At one of those apartments, he notifies the landlord/owner that he will have a service animal in the future. The landlord says that is not going to happen because they do not allow pets of any kind, and then told him not to apply even after being told that the animal was a service animal and not a pet. Engstrom files with the Maine Human Rights Commission, and the commission brings a claim alleging discrimination based on disability under the Maine Human Rights Act

 

II

Why the Lower Court Did Not Err in Determining That the Defendant Violated the Sale or Rental of Housing and Other Prohibited Practices Contained in the Maine Human Rights Act (MHRA)

 

  1. 4581-A(1)(C) of the MHRA prohibits an owner, lessee, sublessee, managing agent or other person to make or cause to be made any statement relating to the rental or lease of the housing accommodation that indicate any preference, limitation or discrimination based upon physical or mental disability or an intention to make any such preference, limitation or discrimination.
  2. 4553(9-E) of the MHRA at the time the inquiry was made defined a service animal as either: 1) an animal necessary to mitigate the effects of a physical or mental disability; or 2) an animal trained to do work or perform tasks for the benefit of an individual with a physical or mental disability.
  3. Since the MHRA’s definition of service animal is limited to animals assisting individuals who have physical or mental disabilities, and the MHRA also unambiguously prohibits discrimination based on physical or mental disability in the sale or rental of a home, a landlord’s rule against service animals is a statement of preference, limitation, or discrimination based upon physical or mental disability in violation of the statute.
  4. The federal Fair Housing Act leads one to the same conclusion as its statutory language is virtually the same as the one contained in the MHRA. Under the FHA federal courts have held that no showing of subjective intent to discriminate is necessary in order to establish a violation.
  5. Courts interpreting the FHA have also concluded that the FHA is violated by a statement that discourages that potential applicant belonging to a particular protected group.
  6. Based upon the testimony of the person making the request for the service dog, the trial court did not err in determining that the landlord’s statement indicated to an ordinary listener a limitation on individuals with a disability requiring the use of assistance dogs.

 

III

Why the Lower Court Did Not Err In Determining That D & L Apartments Violated the Service Animal Provisions of the MHRA, §4582-A.

 

  1. 4582-A(3) defines unlawful housing discrimination in two ways: 1) refusal to permit the use of a service animal; and 2) discrimination against an individual with a physical or mental disability who uses a service animal as a housing accommodation. The two prongs are not the same. With respect to the first prong, that seemingly requires a present use of the service animal. However, proper grammatical interpretation of the statute indicates that a present use requirement is absent from the second prong. Accordingly, the second prong of the statute does apply to the use of a service animal in the future.
  2. In a footnote, the Maine Supreme Court noted that the overall structure of the MHRA suggested that the legislature intended to combat discrimination against prospective tenants, so a person need not be presently using a service animal in order to be protected.

 

Derrig v. Westminster Community Association, here. (Subscription required).

 

IV

Derrig Facts

 

Derrig (petitioner) has PTSD and trauma related issues as a result of his service as a police officer. Both dogs were given special training to help him cope with his mental disability. The first dog was actually given a lot of training by several K-9 officers from the Marco Island Police Department. As that dog got older, petitioner realized he needed a dog to come in and eventually do the job of the first dog. The second dog was trained by the petitioner using the same process and materials used to train the first dog. Petitioner also trained the second dog on how to open doors, which would enable the dog to reach him anywhere in the house should the petitioner become distressed. The dogs are trained to wake the petitioner up from nightmares and to stop him from feeling anxious. They do that by sitting on or near his feet. Unfortunately, while petitioner and his wife (also a petitioner), were away from the house the dogs got loose and ran after other members of the homeowners association. The people they ran after were not injured though, a member of the homeowners association said his wife’s hand was in one of the dogs mouth. It is unclear whether the dogs were attacking the other members or simply engaging in vigorous horseplay. It did not appear that they assaulted, bit, or pounced on either person or their dog. Derrig’s dogs eventually returned to the house on their own. Of course, this led to the homeowners association getting its lawyers involved and telling the petitioners to get rid of their dogs. The petitioner’s countered by claiming that the dogs were service animals necessary for Derrig to enjoy the housing.

 

V

Why the Florida Division of Administrative Hearing Judge Allows the Animals to Stay

 

  1. Derrig clearly has a disability as defined by the applicable statute.
  2. The dogs were clearly service animals as defined by the statute.
  3. Insufficient evidence exists that the dogs are a direct threat going forward, though the petitioner do have to take steps to ensure that that type of incident did not happen in the future, which the petitioners represented they had already done.
  4. Just because a dog is of a certain breed does not necessarily make the dog a direct threat. Here, no evidence existed that the two dogs harmed the other members of the homeowners association or their dog. Further, the two dogs returned to their home after the episode without further disturbance.
  5. Considering the age of the first dog, it makes perfect sense that a second service animal would also be required.
  6. The service animals are necessary for the petitioner to use and enjoy the dwelling.
  7. It is not a demanding standard for evaluating the qualifications and training of service dogs. That is, there are no requirements as to the amount or type of training a service animal has to undergo, nor the type of work or assistance that a service animal must provide, but the animal has to be trained to perform tasks or do work for the benefit of an individual with a disability.

 

In re Chance

 

VI

Chance facts

 

Chance an 80 pound American bulldog bit off a portion of his owner’s nose when she got within 6 inches of her face and threateningly had a shoe in her hand at the same time. Animal control gets called and chance gets labeled as a dangerous dog. The trial court agreed and the owner appealed.

 

VII

Why the Michigan Appellate Court Holds That Chance Is Not a Dangerous Dog Because He Was Provoked

 

  1. Michigan at MCL 321(d) actually defines provocation with respect to with dangerous dog statute. Provocation is defined as a willful act or omission that an ordinary and reasonable person would conclude is likely to precipitate the bite or attack by an ordinary dog or animal (emphasis in opinion). A dog that acts with provocation is not a dangerous animal.
  2. The term “ordinary and reasonable person,” denotes an objective standard as does the term, “ordinary dog.”
  3. The proper standard would have been for the trial court to determine whether a person getting down on the ground and putting their face less than 6 inches from the face of a large dog that had a chewable object, such as a shoe, next to the dog while simultaneously scolding the dog and possibly waving a shoe about the dog’s head constituted a willful act or omission that an ordinary reasonable person would conclude is likely to precipitate the bite or attack by an ordinary dog or animal.
  4. Since the proper standard was not used, the case has to be sent back down for factual determinations.
  5. It is a published decision.

 

VIII

Thoughts/Takeaways

 

  1. States generally have their own fair housing act laws. They often match up with the federal fair housing act law, but not always precisely.
  2. A landlord cannot deny a person the right to use a service animal if that person tells the landlord that they will be getting a service animal in the future.
  3. Reading between the lines, service animals may get a little bit more slack than a typical pet depending on just how much proof can be put forth regarding the service animal training and the work or tasks they actually do. That said, service animal do not get a get out of jail free card if they are a direct threat. What constitutes a direct threat is very fact specific and likely varies from judge to judge.
  4. States have various ways of dealing with whether an animal acts with provocation when it comes to dog bites or dangerous animal situations. Illinois for years and years has gone with the ordinary reasonable prudent dog standard. Michigan uses a two-step approach whereby the behavior of the human is looked at through an objective lens and then the behavior of the dog in response to that behavior of the human is also looked at through an objective lens. So, in Michigan it appears to be a two-step process. However, I am not licensed in Michigan.
  5. Whether a dog is a dangerous dog is a question of the individual dog and not the particular breed that it happens to be.
  6. It is not a demanding standard for evaluating the qualifications and training of service dogs. That is, there are no requirements as to the amount or type of training a service animal has to undergo, nor the type of work or assistance that a service animal must provide, but the animal has to be trained to perform tasks or do work for the benefit of an individual with a disability.
  7. The world of emotional support animals and service animals, especially in housing, is rapidly evolving. So, getting knowledgeable counsel involved is important. I am probably doing training on this at least once every six weeks. On October 22, I will be doing a webinar on this rapidly evolving world for the Kane County (Illinois) Bar Association. I also do specific bespoke training on this as well as on numerous other issues concerning the rights of people with disabilities as well.