This week’s blog entry deals with what is a program under Title II of the ADA, and it also discusses the distinction in causation between the ADA and §504 of the Rehabilitation Act. The case of the day is Decker v. Commonwealth of Pennsylvania Department of Corrections, here, a non-precedential decision decided by the Third Circuit on January 15, 2026. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the equal protection claim does not survive; court’s reasoning that the ADA claim does survive but the Rehabilitation Act claim does not; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories. However, this blog is pretty short, the reader will probably wind up reading the whole thing anyway.

 

I

Facts

 

It is a really straightforward set of facts. A blind man’s delay in parole placement was the result of his disability as well as his classification as a sex offender. He brought suit alleging violations of the Equal Protection Clause of the 14th Amendment, ADA, and §504 of the Rehabilitation Act. The District Court dismissed all the claims and Decker appealed.

 

II

Court’s Reasoning That The Equal Protection Claim Does Not Survive

 

  1. Decker brought a “class of one,” claim under the Equal Protection Clause, alleging that he was intentionally treated differently from others similarly situated and there was no rational basis for the difference in treatment.
  2. When identifying those “similarly situated,” at the pleading stage, a plaintiff must adequately allege that they are alike in all relevant respects to the comparators by offering more than conclusory assertions.
  3. Decker fails on the comparator part because Pennsylvania law imposes unique collateral consequences on sex offenders, including consequences making it more difficult to qualify for housing. As a result, Decker is not similarly situated as to his placement in halfway houses even aside from other considerations.

 

 

 

 

III

Court’s Reasoning That the ADA Claim Does Survive but the Rehabilitation Act Claim Does Not

 

  1. The substantive standard for determining liability under §504 and Title II of the ADA are identical, except for causation.
  2. Stating a claim under the ADA or §504 means a plaintiff has to allege: 1) he is a qualified individual; 2) with a disability; 3) who was excluded from participation in or denied the benefits of the services, programs, or other activities for which a public entity is responsible, or was otherwise subjected to discrimination by a public entity; and 4) by reason of his disability. Only the third and fourth requirements are even debated in this case.
  3. Both the ADA and the Rehabilitation Act provide all-encompassing protection by defining the phrases “service, program, or activity,” under Title II and “program or activity,” under §504 to include all of the operations of a state instrumentality or anything a public entity does.
  4. Since the scope of the protection is extremely broad, plaintiff can define the specific programs or services at issue narrowly. So, the District Court defining the program broadly as any parole placement by the Department of Corrections was in error.
  5. Decker specifically sought placement in the Department of Correction’s halfway house program because halfway houses provide services that are often vital to a paroled inmate’s ability to reintegrate. For that reason, Decker rejected an offer from the Department of Corrections for placement in a personal care home reasoning that the personal care home was not a Department of Corrections owned or operated halfway house and did not offer equivalent services and benefits as provided in the halfway house program.
  6. In a footnote, the court noted that neither party disputed that Decker was a qualified individual with a disability or that he was denied participation in a Department of Corrections program. The parties also appeared to agree that the program at issue was the halfway house program. Finally, Decker did not challenge the district court’s dismissal of his ADA and Rehabilitation Act claims against individual defendants, as individual cannot be personally liable under those statutes.
  7. The District Court’s defining the program broadly so as to foreclose relief was a flawed analysis because Decker permissibly defined the relevant program with specificity. Since the program at issue as pleaded in Decker’s amended complaint, was the placement in a Department of Corrections owned or operated halfway house, Decker’s decision to refuse an offer for placement in a personal care home did not preclude his claim for denial of participation in that specific program.
  8. With respect to ADA causation, Decker’s claim survives because he has marshaled evidence showing that his disability was a reason that he was denied placement in the halfway house program since the ADA only requires but for causation.
  9. With respect to causation on the Rehabilitation Act, disability must be the sole cause of the discriminatory action. This is a standard that Decker cannot get past because of his sexual offender classification and the corresponding collateral consequences also contributing to the Department of Correction’s difficulty in placing him in a halfway house. Even the declaration that Decker obtained showing that disability was a reason for the delayed placement shows that his sexual offender classification was also a reason for the problems in placement.
  10. In a footnote, the court noted that Decker can pursue compensatory damages because he pleaded facts sufficient to show intentional discrimination under deliberate indifferent standard. Deliberate indifference means showing that the Department of Corrections: 1) had knowledge that a federally protected right is substantially likely to be violated; and 2) failed to act despite that knowledge. The relevant federally protected right is Decker’s right under the ADA to be free from disability discrimination. Decker also adequately pled that the Department of Corrections acted with deliberate indifference when despite it stating that Decker required minimal accommodations, it failed to place him in a halfway house due to the additional accommodations it maintained he needed. Further, in the same footnote, the court noted that Decker also pleaded defendant’s conduct caused him to lose his liberty as well at the benefits of the Department of Corrections’s halfway house program.
  11. Decker may pursue monetary damages to compensate for his loss of expectation interest and similar breach of contract claims flowing from that placement delay.

 

 

 

 

IV

Thoughts/Takeaways

 

  1. The equal protection claim failed because of the comparators not being equivalent. That said, equal protection claims for people with disabilities are a very tough sell to begin with as the equal protection classification that people with disabilities fall into depends upon the specific factual circumstances. With respect to accessing the courts, people with disabilities per Tennessee v. Lane, are at least in the intermediate scrutiny classification if not higher. With respect to employment, per Board of Trustees of the University of Alabama v. Garrett, people with disabilities are in the rational basis class. For everything else, people with disabilities can fall in any equal protection class depending on the facts and circumstances. It is extraordinarily difficult for a plaintiff to win an equal protection claim if they are placed in the rational basis class, which this court seemed to have been inclined to do if its reasoning is any indication. See also this blog entry.
  2. This is another case illustrating how causation under the ADA and causation under the Rehabilitation Act are very different from each other. That is, “by reason of,” and “solely by reason of,” mean very different things. Not that readers of this blog entry are surprised by any of this because we noted that probability in this particular blog entry.
  3. Courts overwhelmingly hold, as did this court, that a program of a public entity is anything a public entity does. So, that gives a plaintiff wide latitude to define a program in the way most helpful to the plaintiff.
  4. For how how to go about proving deliberate indifference, the landmark case in that area is the one that we discussed in this blog entry.
  5. We do know from this blog entry that emotional distress damages are not available under §504 of the Rehabilitation Act. We also know that the jury so to speak is out with respect to whether that same principle applies to Title II of the ADA. There are courts holding that the same principle does apply to Title II cases. Plaintiff’s lawyers are trying workarounds to that. One of the workarounds is expectation interest damages. This court specifically notes that loss of expectation interest is something that Decker can pursue. Breach of contract being another cause of action available to him as well.
  6. The decision is not precedential.
  7. Unreasonable delay can be a viable cause of action as we discussed here.
  8. With the exception of a case from the 11th Circuit when it comes to retaliation by an employee of a nonfederal governmental entity, here, the courts are unanimous in holding that none of the titles of the ADA impose personal liability.

This week’s blog entry considers the Society for Human Resource Management answer to the complaint of Fiona Torres in her case saying SHRM violated the ADA by not allowing her to have her service dog when it rescinded a conditional job offer. In the interest of full disclosure, many years ago I did speak to a SHRM conference in Rochester, Minnesota. I am also a member of SHRM as I like to keep up with what they say with respect to the ADA, though I am not active. I also do not have any SHRM certifications, though as readers know I have been in the labor and employment arena for decades (for example, 40% of my blog entries concern employment issues). Finally, I am not involved in this case. As usual, the blog entry is divided into categories and they are: the answer in Torres; and exploring SHRM’s  possible defenses in light of the answer.

 

I

Answer in Torres

 

  1. SHRM admits the case involves a Title I claim .
  2. SHRM admits that Torres represented she has Type I diabetes.
  3. Admits that a conditional job offer was made and that it was rescinded.
  4. Admits that Torres requested an accommodation upon accepting the conditional job offer to bring her service dog, which alerts her for diabetes, to work.
  5. Admits that Torres sent information on her service dog and a note from a healthcare provider to SHRM.
  6. SHRM advised Torres that the information she submitted did not appear to support that she required a service dog to perform the essential duties of the position and invited her to provide additional information, which she did do.
  7. SHRM admits that Torres told it that glucose monitors generally, and her glucose monitor specifically, were unable to accurately capture fast-moving trends leading to hypoglycemic episodes, and that she had not had a hypoglycemic episode necessitating medical assistance from paramedics since obtaining her service dog other than on one occasion.
  8. Admits that Torres sent SHRM email stating she relied on her service dog but that he was not always with her, such as when he was being groomed and when she believed the environment she was entering was unsafe for her service dog. Torres also stated in that email that when she was away from her service dog, there was a greater risk of a hypoglycemic episode.
  9. SHRM admits that Torres sent numerous notes from her health care provider regarding her service dog.
  10. SHRM admits that it did not communicate to Torres its concerns about her ability to control her service dog.
  11. SHRM admits that it did not communicate to Torres its concerns about the service dog being in the office for their service dog’s effect on other workers.
  12. SHRM offered multiple accommodations, including but not limited to: 1) use of her continuous glucose monitoring system at work; 2) breaks as needed to check her blood sugar levels; and 3) the ability to use her insulin pump and consume food or drink as needed at or near her workstation.
  13. SHRM admits that it was told by Torres that the glucose monitor she wore was insufficient and explained the reasons why it was insufficient by itself.
  14. SHRM admits that Torres told them that she may not have a glucose monitor for an unspecified number of days if her pharmacy had a delay in shipment or her insurance led to a delay in filing the prescription refills for the monitor.
  15. SHRM admits that Torres told them that if the monitor falls off, she needs to change it in order to avoid a two hour delay in reading. Also, if she does not keep a backup at work, she has to drive to the pharmacy, which she stated was incredibly dangerous.
  16. SHRM admits that Torres told them that approximately twice per year the monitor malfunctions or produces an error so that the glucose reading access goes down for two or more hours.
  17. While SHRM admits that it was told by Torres that she had type I diabetes, it doesn’t admit that she actually has it.
  18. SHRM admits that she was qualified for the position for which she applied and that a conditional job offer was extended and later rescinded.
  19. SHRM alleges several defenses, including undue hardship.

 

II

Exploring SHRM Possible Defenses In Light of the Answer

 

  1. While SHRM does not in fact acknowledge that Torres actually has Type I diabetes, it’s really hard to believe that whether Torres has this disability will be seriously contested.
  2. A person rejecting a reasonable accommodation is no longer qualified under the ADA. The question will be whether the accommodations offered by the SHRM were in fact reasonable. Just because accommodations are offered does not make them reasonable per se. A reasonable accommodation must be an effective accommodation, i.e gets a person with a disability to the same starting line as a person without a disability.
  3. Judging from the answer, SHRM may very well argue that it is the essential functions of the job being accommodated and not the disability. We have discussed that issue before, such as here.
  4. SHRM claims undue hardship on its operations. That may be a tough sell for a couple of reasons. It also opens up other problems. First, can a service animal really create an undue hardship, which is a very high standard, on the operations of a business? Second, undue hardship on its operations is just one of many factors to consider in 28 C.F.R. §1630.2(p). As a result, it opens up the SHRM to discovery as to its financial resources, which is another one of the factors to consider when assessing undue hardship.
  5. When a conditional job offer is rescinded, an employer has to show per 28 C.F.R. §1630.14(b)(3) that it was job related, consistent with business necessity, and no reasonable accommodations were possible in order to enable the person to perform the essential functions of their job. Whether something is job-related and consistent with business necessity is something that we have discussed many times before, such as here by way of example.
  6. SHRM could possibly argue that the dog was not a service dog because it wasn’t always under the control of the handler. The problem with this argument is that the EEOC has absolutely no regulations concerning animals in the workplace. Another problem is even if the DOJ regulation on animals but somehow persuasive authority in the employment context, Loper Bright will allow a court to use common sense with respect to the control piece (for example it is perfectly okay to still have a service animal if the animal is not with a person while it is being groomed for a person is going into a dangerous area pretty animal).
  7. SHRM may also argue that Torres and not SHRM blew up the interactive process (but see the discussion that an accommodation must be effective to be reasonable).
  8. Unclear what the likelihood of this case settling is.
  9. One wonders if Torres won’t argue that SHRM requested excessive documentation, which we discussed here.

Congratulations to the Indiana Hoosiers on an undefeated season culminating in the national championship. Also, congratulations to the remaining teams in the NFL playoffs. My Bears lost, but that play to send the game to overtime was incredible.

 

This week’s blog entry is a non-precedential decision from the Third Circuit decided on October 8 of 2025, which was on my birthday. Before getting to that, a brief update on Nawara v. County of Cook, which we discussed here. The update is that the Supreme Court refused to hear the case, so the case went back down to the trial court to determine damages where: 1) The trial court wound up determining that the plaintiff should get a backpay award of $30,773.93 minus the amount of his income during a temporary work as a security guard with UPS and Amazon, which was $4,715.57; 2) the court also reduced the award by the health insurance premium paid by Cook County while the plaintiff was on leave, an amount of $624.06; 3) the court also granted prejudgment interest based upon the average prime rate over the time period of the litigation, which came to $16,101.56; 4) the court required Cook County to make the plaintiff whole by calculating the value of the life pension contributions using reasonable actuarial assumptions in order to pay the plaintiff directly the full monetary equivalent of those contributions; 5) the court granted restoration of 88 days of vacation, holiday, comp time, and sick days without the award of any additional monetary relief: 6) the court stood by its order granting restoration of plaintiff’s seniority, which was 153 days; and 7) the court ordered that new petitions for prevailing party fees and costs be submitted.

 

Turning to the case of the week, Murphy v. State of Delaware, here, the blog entry is divided into categories and they are: facts; court’s reasoning allowing the Title II and §504 claims to survive a motion to dismiss; court’s reasoning allowing the §1983 claim against the constables carrying out the eviction order to survive a motion to dismiss; a brief note on Judge Matey’s concurring and dissenting opinion; and thoughts/takeaways

 

I

Facts

 

Kenneth Stamford owned an apartment and previously leased it to Viola Wilson. After Wilson vacated the apartment, he leased it to Murphy. Even though he knew that Wilson had vacated the apartment and that the Murphys occupied the apartment under a valid lease, he filed an eviction notice against Wilson as if she still occupied the apartment. He did that without providing notice to the Murphys (the actual tenants), as required by Delaware law. He obtained a final judgment against Wilson in February 2021. He then had the JP court to issue a writ of possession to remove all persons from the property. A notice to Wilson was posted on the apartment door on February 5. However, Murphy was blind and could not read the notice. The constables executing the writ of possession observed that Murphy was blind and also that he was not obviously Viola Wilson, the person named in the eviction order. When Murphy provided the lease to the constables, one of them accused him of making it up. The constables called their supervisor for guidance who told them to remove all persons from the apartment and they could later challenge the eviction order in court. Murphy and his family was given 30 minutes to vacate the apartment and left on the street during a snowstorm. They were also forced to leave behind most of their possessions, including an urn containing the ashes of Murphy’s late wife and the laptop computers of his minor daughters that were being used for schooling as they were remote during the Covid-19 pandemic. The constables informed Murphy that his recourse was filing a complaint for wrongful eviction in the JP court, which he did. The JP court held an emergency hearing ruling in Murphy’s favor. The court was so appalled that it referred the matter for a criminal investigation. It also gave them the option of moving back into the apartment or terminating the lease. Due to Murphy’s deep distrust of Stanford, Murphy chose the latter option and subsequently filed lawsuits against Stanford (which settled), the JP court, and the constables executing the eviction claiming violations of title II, §504, and §1983.

 

 

 

II

Court’s Reasoning Allowing the Title II And §504 Claims To Survive A Motion To Dismiss

 

  1. Title II of the ADA prohibits discrimination based on disability.
  2. Title II’s final implementing regulation, 28 C.F.R. §35.130(b)(7), requires a public entity to make reasonable modifications to its policies, practices, or procedures when necessary to avoid such discrimination. The same prohibition per §504, applies to any federally funded program or activity
  3. To state a claim under either Title II or §504 a plaintiff has to show: 1) he is a qualified individual; 2) with a disability; 3) who was excluded from participation in or denied the benefits of the services, program, or activities of a public entity, or was subjected to discrimination by any such entity; and 4) by reason of his disability.
  4. Title II requires but for causation, while §504 requires that a plaintiff’s disability be the sole cause of the discrimination.
  5. Plaintiff plausibly pleaded that his blindness led the defendant to evict him without notice readable by a blind person.
  6. The constables gave him written notice of the eviction that he could not read because of his blindness. Nevertheless, they evicted him and his family anyway. Therefore, they denied the Murphys the benefit of a service, program, or activity that the constables provide 24 hours notice before an eviction.
  7. Since Murphy’s disability was plausibly the only reason for being deprived of his notice, the causation standards under Title II as well as §504 were both satisfied.
  8. Federal law requires the constables to make reasonable modifications to policies, practices, or procedures when necessary to avoid discrimination based on disability unless they can demonstrate making the modification fundamentally alters the nature of the service, program or activity. At the pleading stage, the constables have not carried that burden.
  9. Since the constables refused Murphy’s request to stop the eviction when he had not been given notice in a form understandable to a person with blindness, sufficient facts were alleged showing causation under both Title II and §504.
  10. The constables are not entitled to an inference that someone read the complaint notice to Murphy, or that the person did so in a manner as effective as a notice provided in a format understandable to a person with blindness.
  11. 28 C.F.R. §35.160(c)(2) states that a public entity cannot rely on an adult accompanying an individual with a disability to interpret or facilitate communication.
  12. The constables are not entitled to an inference that Murphy would have not taken any action to avoid the eviction if he had been given notice in a form understandable to a person with blindness.

 

 

III

Court’s Reasoning Allowing The §1983 Claim Against the Constables Carrying The Eviction Order To Survive A Motion To Dismiss

 

  1. The official capacity claims are dismissed because Murphy did not plausibly allege an ongoing violation of federal law supporting the request for a prospective relief.
  2. The §1983 claims against the constables can move forward because the quasi-judicial immunity does not extend to the manner in which the court order was executed, though it does extend to the court order itself.
  3. At this stage of the litigation, the court is unable to conclude that the constables lacked the discretion to postpone evicting Murphy and his family under the circumstances alleged prior to any discovery having taken place.

 

 

IV

A Brief Note on Judge Matey’s Concurring And Dissenting Opinion

 

  1. Judge Matey agreed with the court dismissing the official capacity claims. However, he believed the responsibility lies with the landlord and the claims against everyone else should be dismissed as a result of quasi-judicial immunity concerns.

 

 

 

V

Thoughts/Takeaways

 

  1. I get calls at least once a month, and it is not unusual for me to get them twice a month from around the country, where a person with a disability informs me that a court is denying them access to the court proceedings because of their disability. I would say 90% of the time it is family courts that are the problem but not always.
  2. Title II and §504 apply to everything that a public entity does.
  3. Causation is different under §504 (sole cause), v. Title II of the ADA (by reason of, i.e. but for). The difference between the two is significant, though it wasn’t an issue in this case.
  4. In a footnote, the court mentions that the Third Circuit has not squarely addressed the question of whether claims may be brought against government officers in their individual capacities under Title II. I can say that with the exception of the 11th Circuit when it comes to retaliation by an employee of a public entity, the courts are uniformly rejecting individual liability under Title II of the ADA.
  5. In that same footnote, the court says that a public entity may be vicariously liable for its employees conduct under Title II of the ADA and that the defendant did not dispute that. As we have discussed previously, such as here, it is not a slam dunk that a public entity is automatically vicariously liable for its employees conduct under Title II of the ADA. So, be sure to check your jurisdiction when faced with this question.
  6. Title II of the ADA and §504 require pro-active measures to avoid discrimination, which includes making reasonable modifications to policy, practices, or procedures absent a fundamental alteration to the service, program, or activity.
  7. Remember the do’s and don’ts of the interactive process, which can be found here.
  8. The ADA is a nondelegable duty and a public entity does not get the ability to rely on someone else doing their obligations for them, i.e. having someone else read and inaccessible eviction notice to a person with a disability.
  9. While the judge issuing the court order gets immunity, that doesn’t extend necessarily to individuals carrying out that order.
  10. The §1983 piece of this case is interesting because I have seen cases saying that §1983 is not possible when in reality you are looking at a violation of Title II of the ADA. So, be sure to check your jurisdiction when that situation comes up.
  11. Training, training, training by individuals knowledgeable in the ADA is so important. Such training would have likely prevented this scenario.

It’s time to get back to the grind after the holiday season. I hope everyone had a great holiday season.

 

Today’s blog entry deals with the implications of what happens when a reasonable accommodation request of a plaintiff is facially unreasonable. What does that mean for a plaintiff’s reasonable accommodation claim? What might that mean for a plaintiff’s claim that the employer failed to engage in the interactive process?

 

The case of the day is Bowles v. SSRG II, LLC, dba Chicken Salad Chick, a published decision decided by the Sixth Circuit on December 17, 2025, here. As usual, the blog is divided into categories and they are: facts; court’s reasons for granting summary judgment on the failure to accommodate claim; court’s reasons for granting summary judgment on the failure to engage in the interactive process claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken directly from the opinion, though the order these paragraphs appear are not the same)

 

Tawna Bowles applied for a cashier/service-team member position at the Chicken Salad Chick location in Crestview Hills, Kentucky. Bowles suffers from arthritis in her knees. During her interview, she disclosed that she had difficulty standing for a long period of time and thus would require an unspecified amount of rest while working. That disclosure did not derail Bowles’s candidacy—Chicken Salad Chick told Bowles she was hired before the interview concluded. And soon thereafter, the company sent her various onboarding documentation to complete for an expected start date of Monday, January 2, 2023. Bowles submitted her onboarding materials a few days before her start date. In those papers, Bowles indicated that she needed to be able to “sit down when needed” or “sit and work.”

 

The cashier/service role has many aspects. To start, as the name implies, cashier/serviceteam members are expected to operate a point-of-sales system for taking customer orders, both dine-in and carry-out. But those team members are also responsible for stocking the restaurant’s drink station as well as the refrigeration unit, which houses premade cartons of chicken salad. The position also must expedite food orders, which includes taking food from the prep window adjacent to the kitchen as well as preparing beverages and then delivering those items to customers, whether at checkout or at their table. And to maintain the guest area, cashier/serviceteam members are expected to clean tables, vacuum, take out trash, and maintain the cleanliness of the customer bathrooms. Given the nature of the restaurant, all Chicken Salad Chick team members are understood to operate in a “fast-paced environment” where effective multitasking and “well-paced mobility” for the “duration of the workday” are required skills.

 

When Bowles arrived for work, she was told by management that she could not start due to a “paperwork issue.” The issue concerned her accommodation request. The morning of her ostensible first day, her request had triggered a message to Mary Lou Atkins, Chicken Salad Chick’s Vice President of Human Resources. Atkins, in turn, had notified the manager overseeing the Crestview Hills restaurant that Bowles could not begin until her request was resolved. Atkins called Bowles to request medical documentation of her condition. Bowles later obtained a note from her doctor, which asked that Bowles be “supplied a chair for standing limitations due to knee arthritis.” Eventually, the note made its way to Atkins. Atkins, however, asked for more specifics, namely, how long Bowles could stand and how often she would need to sit, and for how long. Bowles called Atkins in early February, at which point Bowles sought an accommodation where she “could . . . stand for ten minutes at a time and then would need to sit for five minutes . . . .” Atkins informed Bowles that Chicken Salad Chick could not accommodate her specific request and likewise did not have a position for which she could continually sit.

 

Plaintiff sued and defendant moved for summary judgment.

 

 

II

Court’s Reasons For Granting Summary Judgment On The Failure To Accommodate Claim

 

  1. In the Sixth Circuit, a burden shifting framework is used to measure whether the plaintiff has put forward a legally sufficient claim of being denied an accommodation.
  2. Plaintiff’s initial burden is to show that her proposed accommodation is objectively reasonable.
  3. If the threshold criteria is met, the burden of production shifts to the defendant to show that plaintiff’s proposed accommodation would specifically cause an undue hardship.
  4. Once the company puts forward its arguments for an undue hardship, plaintiff has the burden of coming forward with evidence to rebut the employer’s evidence.
  5. The ultimate burden is on the plaintiff to persuade that the plaintiff has been the victim of illegal discrimination.
  6. Plaintiff cannot satisfy her initial burden of showing that her propose accommodation is objectively reasonable. The employer’s words, policies, and practices are overwhelming and undisputed that an accommodation of being able to sit for five minutes for every 10 minutes of standing is not reasonable for the cashier/service role at issue.
  7. Granting the accommodation would necessarily change the nature of the position altogether. For example, for 1/3 of her shift, plaintiff’s job would be isolated to manning the cash register, regardless of whether there was a customer waiting at the register. During that time, she would also be unable to tackle numerous duties, from greeting a customer at the door, to rushing in order out to a hungry patron, to cleaning up the spill at the drink station, etc., any of which could occur at a moment notice considering the job’s setting.
  8. Allowing the accommodation would fundamentally alter the position by turning the position into a master of the cash register for significant parts of the shift. As such, the accommodation request is facially unreasonable.
  9. Allowing the accommodation would also affect defendant’s broader workforce, as other team members would have to pick up the slack for the plaintiff being tied to the cash register.
  10. The title of the position is irrelevant, rather the focus is on the fundamental job duties of the employment position.
  11. The nature of the accommodation plaintiff requested is so nebulous so as to amount to no accommodation request at all.

III

Court’s Reasons For Granting Summary Judgment On The Failure To Engage In The Interactive Process Claim

 

  1. A failure to engage in the interactive process is only an independent violation of the ADA if the plaintiff establishes a prima facie showing that she proposed a reasonable accommodation.
  2. A viable interactive process claim presupposes the existence of a reasonable accommodation.
  3. Since plaintiff presented a facially unreasonable request to the defendant, the interactive process claim fails.

 

 

IV

Thoughts/Takeaways

 

  1. I am now seeing cases where the court is assessing whether the proposed accommodation request is facially reasonable in the first place. The conclusion a particular court reaches very much depends upon the particular judge, the particular facts, etc. For example, I recently saw a case, here, involving the Chicago Transit Authority where the District Judge there said that a request for light duty was presumptively a reasonable accommodation request considering the CTA’s practices and policies even if the plaintiff did not have specific evidence at the moment that a light duty transfer was possible. On the other hand, you have a case like this particular blog entry.
  2. Be prepared in light of the way the case law is beginning to trend, for a judge to first assess whether there is a facially reasonable accommodation request in the first place.
  3. The essential functions of the job are what matters and not the title of the position
  4. This case should make clear that a plaintiff when dealing with reasonable accommodation requests should have as their first step, reaching out to the Job Accommodation Network for suggestions as to what might work for the particular issues the plaintiff is facing with respect to the plaintiff’s particular job. Once that information is obtained, plaintiff should make that part of their advocacy for a reasonable accommodation. Hard to believe that the Job Accommodation Network ideas for what might work wouldn’t presumptively be deemed a reasonable request sufficient to enable the plaintiff’s case to go forward or sufficient for a court to demand the interactive process should have proceeded (assuming the court is in a jurisdiction that demands a facially reasonable accommodation request in order to activate the interactive process).
  5. The court to my mind confuses two distinct concepts when it comes to the ADA. Those concepts are whether a particular reasonable accommodation request should have been granted and whether the interactive process should have started in the first place. They are entirely two separate issues. A specific reasonable accommodation request does not have to be granted where it fundamentally alters the nature of the position, or if it will fundamentally alter the employer’s operations. That said, preventive law and much of the current case law demands once an employer has notice that an employee is in need of an accommodation because of a disability as a result of some information that the employer has received, the interactive process should begin. Of course, the employee is not entitled to the accommodation the employee wants, but rather is only entitled to a reasonable accommodation arrived as a result of the interactive process. Requiring a facially reasonable accommodation request in order to trigger the interactive process, defeats the whole purpose of the interactive process in the first place.
  6. This is yet another case using a McDonnell Douglas burden shifting approach. However two circuits (the Seventh and Eleventh), have made it clear here and here that they have lost patience with the McDonnell Douglas burden shifting approach. Also, as we discussed here, two Supreme Court justices, have signaled that they believe McDonnell Douglas burden shifting has run amok and should be reconsidered.
  7. Title I doesn’t actually use the term fundamental alteration at all with respect to how a business operates. Instead, fundamental alteration in that context are Title II and III concepts. That said, Chai Feldblum, a former EEOC Commissioner and very involved with the ADA from its inception, once referred to the undue hardship faced by a business with respect to its operations in a CLE I attended, as logistical undue hardship when used in the context of title I. She also said it was best thought of in fundamental alteration of the business/operations terms. We now have a case explicitly endorsing that approach.
  8. In many jurisdictions, a failure to engage in the interactive process is an independent cause of action, but that is not true everywhere. So, be sure to check your own particular jurisdiction for how it deals with that question.

Welcome to the new year everyone.

 

This week’s blog entry is an update on Granas v. Union Pacific Railroad Company, which we blogged on here. Subsequent to that blog entry, Union Pacific moved for judgment as a matter of law or a new trial. The court, here, was having none of it. Since we blogged on the case previously, we don’t need to explore the facts. So, the categories for this blog entry are: when can a jury verdict be overturned by a post-trial motion; when can a bench trial decision be overturned by a post-trial motion; the jury heard plenty of evidence showing that the plaintiff was a qualified individual under the ADA and Oregon law; Union Pacific’s business necessity and job-related defenses do not rise to the level where post-trial motions can be granted; substantial evidence exists for the punitive damages award; excessive punitive damages verdict argument does not fly; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

When Can a Jury Verdict Be Overturned by a Post-trial Motion

 

  1. A jury verdict can be overturned with a post-trial motion only if under the governing law, there is one reasonable conclusion to the verdict.
  2. In deciding to whether to overturn a jury verdict, a court has to view the evidence in the light most favorable to the nonmoving party and draw all reasonable evidentiary inferences in favor of the nonmoving party.
  3. The court has to uphold a jury’s verdict even if the record contains evidence that might support a contrary conclusion to the jury’s verdict.
  4. In the Ninth Circuit, a trial court may grant a new trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.
  5. The jury verdict is generally upheld on appeal if there is some reasonable basis for the jury’s verdict.

 

II

When Can a Bench Trial Decision Be Overturned by a Post-trial Motion

 

  1. While compensatory damages were decided by the jury, punitive damages and equitable damages are decided by the court.
  2. Three grounds exist for granting new trials in court-tried actions and they are: 1) manifest error of the law; 2) manifest error of fact; and 3) newly discovered evidence.
  3. With respect to a motion for reconsideration, it doesn’t get granted absent highly unusual circumstances, unless the court is presented with newly discovered evidence, committed clear error, or in the event of an intervening change in the controlling law.

 

III

The Jury Heard Plenty of Evidence Showing That the Plaintiff was a Qualified Individual per the ADA and Oregon Law

 

  1. The elements of a disability discrimination claim under the ADA and the Oregon law applicable to disability discrimination are the same and they involve the employee proving that he was: 1) disabled under the Act; 2) a qualified individual with a disability; and 3) discriminated against because of the disability.
  2. As discussed in the previous blog entry, here, plenty of evidence existed to support a jury reasonably finding that the plaintiff was a qualified person with a disability when the evidence is viewed in the light most favorable to the non-moving party. Further, nothing exists to suggest that the trial was not fair to the defendant.

IV

Union Pacific’s Business Necessity and Job-Related Defenses Do Not Rise to the Level Where Post-trial Motions Can Be Granted

 

  1. Per 42 U.S.C. §12112(b)(6) (the opinion has a typo in it as it references 42 U.S.C. §1211(b)(6) when it should be 42 U.S.C. §12112(b)(6)), an employer can only use a standard, test, or selection criteria if it is shown to be job-related and consistent with business necessity.
  2. Business necessity standard is met if the employer is faced with significant evidence causing a reasonable person to inquire as to whether an employee is still capable of performing his job.
  3. The employer has the burden of proving that a screening standard satisfies the business necessity defense.
  4. The business necessity standard is a high one and not to be confused with mere expediency.
  5. In the Ninth Circuit, the business necessity defense is rarely demonstrated, and courts have had little occasion to apply the defense.
  6. Evidence at trial showed that Union Pacific’s decision to remove plaintiff permanently was not the result of careful evaluation, but instead was the result of an application of a strict policy that automatically disqualified employees with shoulder dislocation.
  7. To show that its policy was job-related, Union Pacific needed to prove at trial, that the blanket policy used to disqualify the plaintiff fairly and accurately measured the individual’s actual ability to perform the essential functions of the job.
  8. When every person excluded by the qualification standard is a member of the protected class (disabled in this case), an employer has to demonstrate a predictive or significant correlation between the qualification and performance of the job’s essential functions.
  9. An employer using a business necessity defense must validate the test or exam in question for job-relatedness to the specific skills and physical requirements of the position.
  10. From the testimony of the people treating the plaintiff as well as expert opinion, a reasonable jury could conclude that the blanket rule prohibiting the continued employment of any individual with an anterior shoulder dislocation was arbitrary. Accordingly, viewing the evidence in the light most favorable to the nonmoving party, the jury’s verdict that Union Pacific had a discriminatory policy gets upheld.

 

V

Substantial Evidence Exists for the Punitive Damages Award

 

  1. Substantial evidence existed (see the discussion in our original blog entry, here), to support a finding that Union Pacific had sufficient malice, or a reckless and outrageous indifference to a highly unreasonable risk of harm.
  2. The court did not make the punitive damages decision lightly as it took briefing on the issue after trial and made extensive findings in its opinion. Accordingly, no reason exists for the court to depart from it findings and legal conclusions it previously adopted so as to necessitate nullifying the loud and clear mandate from the jury’s advisory verdict.

 

VI

Excessive Punitive Damages Verdict Argument Doesn’t Fly

  1. In determining whether a verdict is excessive, a court looks to: 1) the degree of reprehensibility of the defendant’s misconduct; 2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and 3) the difference between the punitive damages and the civil penalties authorized or imposed incomparable cases.
  2. The court found that Union Pacific was reckless and outrageous in its indifference by ignoring plaintiff’s medical documentation, his own representation about his individual abilities and his physical capacity to perform the duties of his job, and his treater’s recommendations. Also, testimony at trial, established that Union Pacific would refuse to allow plaintiff to return to work no matter what, based on its policy of excluding anyone from safety-sensitive jobs who have sustained a shoulder dislocation (a view consistently maintained by Union Pacific in its briefings as well).
  3. The disparity between the actual harm and the award was not great considering that plaintiff lost out on his livelihood that was not easily replaceable in the small community he lived in.
  4. The court also determined that as far as punitive damages awards go, the award was not remarkable when considered against the number of cases plaintiff had compiled supporting large punitive damages awards.
  5. Union Pacific has not presented any newly discoverable evidence, a basis for showing that the court committed clear error, or that there was an intervening change in the controlling law.
  6. From the beginning of the lawsuit through each stage of litigation, plaintiff has met his burden to show that Union Pacific imposed a blanket requirement that employees in certain positions disclose specific health conditions. Further, once they did that, Union Pacific automatically restricted the employee from working, regardless of whether the employee is physically able to perform the essential functions of the job, as plaintiff showed that he could.

 

VII

Thoughts/Takeaways

 

  1. It is not easy to overturn a jury’s verdict or the decision of a judge by way of post-trial motions.
  2. The business necessity defense is an affirmative defense and is a high standard to meet if it is to be successfully utilized.
  3. A touchtone of the ADA is the performing of an individualized analysis. Things can go really wrong if that is not done.
  4. One of the hot areas in ADA litigation right now, is employers insisting on persons returning to their physical locations for work. Lawyers representing persons with disabilities would do well to zero in on the aspect of the court’s reasoning where it said that with respect to a qualification standard, it was up to the employer to demonstrate a predictive or significant correlation between the qualification and the performance of the job’s essential functions. In the rush to return people to their offices, I have seen lots of articles talking about culture, collaboration, etc. However, I have yet to see myself articles talking about the demonstrations a predictive or significant correlations between the return to office mandate and the performance of the job’s essential functions. While I have read many articles talking about how the ability to move up in an organization can depend upon physical presence at the office, that isn’t at all the same thing as being able to do the essential functions of the job remotely.
  5. It will not surprise anyone that Union Pacific filed a notice of appeal to the Ninth Circuit on December 29, 2025. Seems to me, that Union Pacific’s best argument on appeal is going to be whether the award is excessive. Plaintiff would seem, to my mind anyway, to have a very strong case with respect to the discriminatory policy.

As promised below is the greatest hits for the Understanding the ADA blog for 2025. Some of the entries that appear in the greatest hits section were not the greatest hits of 2025, but are so important that I keep them in there any way. Here goes the list for 2025 in reverse order of popularity:

 

  1. At number 14, with 673 views: Indian Tribes, Sovereign Immunity, and the ADA.
  2. At number 13, with 694 views: ADA Disparate Impact Claims.
  3. At number 12, with 706 views: Shot across the Bow to Judges and Court Systems.
  4. At number 11, with 762 views: 309 Contains a Fundamental Alteration Defense.
  5. At number 10, with 804 views: But for and Motivating Factor Are Two Different Things.
  6. At number nine, with 821 views: Religious Freedom and Remote Work ADA Implications and Latest with HUD and Animals in Housing.
  7. At number eight, with 825 views: Landlord Can Charge a Fee for ESA’s and Pets and the Impact of Loper Bright.
  8. At number 7, with 898 views: Do’s and Don’ts of the Interactive Process.
  9. At number 6, with 923 views: Why All Colleges and Graduate Programs Need to Do the Two-Step: Essential Eligibility Requirements and Direct Threat.
  10. At number 5, with 977 views: Insurance Policy for Landlords Containing Breed Restrictions for ESA/SA Can Violate the FHA.
  11. At number 4, with 1,100 views: Unreasonable Delay in Granting a Reasonable Accommodation Request Is Actionable.
  12. At number 3, with 1156 views: Temporary Disability Can Be a Protected ADA Disability and Other Stuff.
  13. At number 2, with 1,691 views: Failure to Accommodate, Direct Evidence, and Adverse Action.
  14. At number 1, with 1,737 views, and the one that wins it all yearly, at least for the last several years: ADA And the Applicable Statute of Limitations.

Happy holidays and happy new year to everyone!!!

I did not anticipate doing another blog entry until the week of Christmas. However, my daughter’s flight into Atlanta is delayed, and so I have some time. I actually relax by writing (weird I know), and this blog entry is extremely short. So why not? My next blog entry will be the greatest hits of 2025, that I will put up Christmas week.

 

The blog entry is a two-for-one. First, a per curiam decision from the United States Supreme Court in Doe v. Dynamic Physical Therapy, LLC, has the potential to be incredibly significant. That decision can be found here. Second, Representative Lawler of New York has introduced the “ADA 30 days to comply act,” that bears looking at. As usual, the blog entry is divided into categories and they are: Doe v. Dynamic Physical Therapy, LLC facts; Doe v. Dynamic Physical Therapy, LLC reasoning; Doe thoughts/takeaways; ADA 30 Days to Comply Act; and ADA 30 Days to Comply Act thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Doe v. Dynamic Physical Therapy, LLC Facts

 

Louisiana immunizes healthcare providers from civil liability during public health emergencies. Plaintiff brought suit under a federal law and the Louisiana Court of Appeal held that the state statute barred plaintiff’s federal claims. As we will see below, the Supreme Court was having none of it.

 

II

Doe v. Dynamic Physical Therapy, LLC Reasoning

 

  1. Defining the scope of liability under state law is the prerogative of the State. However, a State has no power to confer immunity from federal causes of action.
  2. The judges in every State are bound to follow federal law, anything in the Constitution or laws of any State to the contrary notwithstanding.
  3. While plaintiff’s federal claim may well fail on other federal grounds, that is a decision for the Louisiana courts to decide in the first instance. It is not the same thing at all as a State immunizing a party from liability from federal claims.

 

III

Doe Thoughts/Takeaways

 

  1. As readers know, over the last few years a significant part of my practice has been working with licensing counsel representing persons with disabilities that are being forced into PHP programs solely because of their disability. I discussed the issues with that in this blog entry (this blog entry is also mentioned in this recent editorial on the same subject from Dr. Lawrence Huntoon). It isn’t unusual to see States immunize from liability people working with PHP’s. People participating on licensing boards might have immunity as well (check your jurisdiction), but this case says that federal law liability cannot be waived by the States.
  2. I can’t recall the last time there was a one-page per curiam Supreme Court decision with such a potentially huge impact.

 

IV

ADA 30 Days to Comply Act

 

  1. Referred to House Judiciary.
  2. Remedies per Title III of the ADA stay the same.
  3. A futile gesture is not necessary. A futile gesture exists if a party has actual notice that a person or organization covered by the Act does not intend to comply with its provisions.
  4. Only applies to architectural barriers.
  5. A person cannot bring an architectural barrier violation lawsuit without meeting certain criteria first: A) the plaintiff has provided to the owner or operator of the accommodation a written notice specific enough to allow the owner operator to identify the barrier and; B) the owner operator has 30 days from when the notice is received to provide the plaintiff a written description outlining improvements that will be made to remove the barrier; or C) the owner or operator fails to remove the barrier or, in case of a barrier, the removal of which requires additional time as a result of circumstances beyond the control or operator, fails to make substantial progress in removing the barrier during the period beginning on the date the owner provide the description and ending 30 days after that date.
  6. The written notice must specify in detail the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, whether request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.
  7. “Notice specific enough,” means that the notice allows such owner or operator to identify the barrier to accessing question.

V

Thoughts/Takeaways on the ADA 30 Days to Comply Act

 

  1. No change in the remedies available under Title III.
  2. A lot of the litigation in this area has to do with standing and intent to return. These cases often turn on nebulous factors trying to establish an intent to return or how actively the plaintiff partook of the business. The notice required in this act goes a long way towards solving those issues.
  3. The act doesn’t change the strict liability nature of Title III architectural barrier litigation.
  4. A person suing on architectural barrier grounds has to give notice to the party potentially being sued and then that party has 30 days to respond to that notice. Once the description is given by the business to the prospective plaintiff, the business has 30 days to make substantial progress in removing the barrier.
  5. The Act in some ways is actually less favorable to businesses from what currently exists. That is, the way the final implementing regulations are currently set up, certain barriers need to be rectified immediately and others can be prioritized for later. This particular act seem to suggest that all barriers are the same in terms of the priority to fix.
  6. The legislation is definitely worth following.
  7. Introduced by a Republican but it does have bipartisan backing.
  8. Not clear what “substantial progress means.”
  9. Logical to assume that DOJ would be responsible for any final implementing regulations carrying out this law, assuming it becomes law.
  10. Still very early in the legislative process.

This week’s blog entry will be the last substantive blog entry of the calendar year. As mentioned previously, I will put up the greatest hits of 2025 for the Understanding the ADA blog the week of Christmas.

 

Turning to the blog entry for the week, on November 19, 2025, the United States District Court for the Eastern District of Michigan denied William Beaumont Hospital’s motion to reconsider, which can be found here. We have blogged previously the court’s decision on the summary judgment motions, here. There is no need to go into the facts as we have previously blogged on it, so the categories for this blog entry are: overview of when a motion for reconsideration should be granted; when can an employer can request what updated medical documentation; whether the initial care coordinator position was vacant is a question of fact; with respect to the initial care coordinator position, William Beaumont Hospital was responsible for the breakdown in the interactive process; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Overview of When a Motion for Reconsideration Should Be Granted

 

  1. A motion for reconsideration should not be used for a second bite of the apple.
  2. Defendant’s original motion for summary judgment did not make the argument that it had no duty to accommodate until the plaintiff provided the requested medical documentation.
  3. Defendant’s argument for summary judgment rested on several other grounds, and not on the alleged requirement for medical documentation or its necessity. If it was truly a necessity as defendant now asserts, the court would expect that the point should have been front and center during the initial consideration of the issue and it was not. Therefore, it is within the court’s right to deny the motion for reconsideration on procedural grounds alone. That said, the court proceeds to address the merits, as discussed in the below categories, because that discussion is undoubtedly relevant to the remaining issues at trial.

 

 

 

II

When Can an Employer Request Updated Medical Documentation

 

  1. Case law indicates that an employer, as part of the interactive process, may request documentation from the employee to verify that they have a disability, but it says nothing about when that documentation is due as a matter of law.
  2. The case law also does not state that an employer can take no action on a plaintiff’s request or pause the interactive process entirely when it is already on notice of an employee’s disability.
  3. An employer’s requirement of providing paperwork is permissible when necessary to establish that an employee’s disability is medically supportive in the first place.
  4. Defendant was already aware that plaintiff had a medically diagnosed disability, and she had already provided them medical paperwork to that effect both when receiving a prior reasonable accommodation and when taking FMLA leave.
  5. A jury could find that imposing a requirement to provide the defendant with updated medical documentation before they took any action (emphasis in opinion), on her request to be transferred to a position with fewer hours as bad faith where the defendant (a hospital, no less, words precisely in the opinion), had relevant information about her disability in their possession already.
  6. There is no general requirement as a matter of law that a plaintiff who has already provided medical documentation must provide updated medical documentation prior to triggering any obligation on the part of the employer to continue the interactive process.
  7. If defendant wishes to make the factual argument that this specific (emphasis in opinion), interactive process was caused entirely while they waited for updated paperwork, for them to be entitled to summary judgment, they will still have to prove that such a policy existed at Beaumont, that Beaumont in fact applied such a policy to the plaintiff and relied on that rationale to pause the interactive process, that such a policy was applied in good faith to the plaintiff under the circumstances, and/or that they clearly communicated that requirement during the interactive process.
  8. Looking at the evidence in the light most favorable to the plaintiff, Beaumont never told the plaintiff that the medical form was necessary for the mandatory reassignment process. Instead, plaintiff was told that the form would “assist,” or “expedite,” reassignment in some undescribed way.
  9. The EEOC also raises factual questions concerning whether a policy requiring employees to provide documentation was generally in place, thereby raising the question of why it was necessary to ask the plaintiff specifically for a new, updated medical form.
  10. Whether a new “request form,” was actually necessary for Beaumont to make effort to transfer her to a part-time role as an accommodation is a question best left to the jury, who could find that Beaumont “unreasonably stalled,” plaintiff’s request in light of the information already in their possession.
  11. There is also evidence in the record indicating Beaumont firmly stated that it would consider plaintiff for vacant positions despite not having updated paperwork, and that it acted as though it did not need a form, thereby raising factual issues about their argument that they required her to provide the paperwork first and relied on that rationale.
  12. The ability to apply for a position and a request to be transferred as an accommodation are two entirely different things.
  13. The EEOC identified multiple communications indicating that plaintiff should go ahead and apply to open positions as an accommodation, and that Beaumont did not mention to her a requirement that she first had to submit new paperwork. A reasonable jury can read that evidence as stating that plaintiff was always allowed to apply to positions to move the process along, and that medical documentation was not required to trigger an “expedited,” process for being considered. That is, she could have provided medical documentation to Beaumont at some later point while the interactive process continued in the meantime.

 

 

 

III

Whether The Initial Care Coordinator Position Was Vacant Is a Question of Fact

 

  1. Beaumont’s arguments that the positions were not vacant at the time plaintiff submitted her updated medical form appeared nowhere in the original argument for summary judgment and therefore, is not properly brought in a motion for reconsideration.
  2. The no vacancy argument of Beaumont fundamentally rests on the factual disputes pertaining to: 1) whether Beaumont clearly communicated to the plaintiff that it would not consider her for any open position until the moment she provided updated documentation; 2) whether such a policy in fact existed; 3) whether such a policy would properly apply to the plaintiff; and 4) whether the lack of updated medical information was the reason that Beaumont did not consider her for those positions.

 

 

 

IV

With Respect to the Initial Care Coordinator Position, William Beaumont Hospital Is Responsible for the Breakdown in the Interactive Process

 

  1. The undisputed evidence is that Beaumont personnel did not reject plaintiff’s candidacy for the initial care position for lack of a medical accommodation form. Instead, Beaumont personnel declined to consider the application because of the belief that the hiring manager already had two other candidates in mind.
  2. When the interactive process is triggered but not successfully resolved, courts have to isolate the cause of the breakdown and then assign responsibility to whoever blows up the interactive process.
  3. Since the evidence showed that the absence of a medical form had nothing to do with Beaumont’s rejection of plaintiff’s application for the first care coordinator vacancy, it is irrelevant to their liability as to that position because responsibility for cutting short the interactive process undisputedly lies with Beaumont alone.

 

 

 

 

V

Thoughts/Takeaways

 

  1. If you are going to make a motion for reconsideration, the arguments in that motion need to have been made before that point in time.
  2. An employer cannot pause the interactive process or unreasonably delay it when it is already on notice of an employee’s disability.
  3. Requesting further medical documentation is permissible if used to establish that an employee’s disability is supported by the medical evidence in the first place.
  4. Asking for excessive documentation is an indicator of bad faith. See also this blog entry.
  5. No requirement as a matter of law exists, that a plaintiff who has already provided medical documentation must provide updated medical documentation prior to triggering an obligation on the part of the employer to continue the interactive process.
  6. The ability to apply for a position in the ability to request to be transferred as an accommodation are entirely two different things.
  7. An employer does not get the right to delay or not pursue the interactive process when it is already on notice of an employee’s disability.
  8. Remember, magic words are not required to initiate the interactive process. However, also remember just what words are required can vary from jurisdiction to jurisdiction so be sure to check that.
  9. The party that blows up the interactive process bears the ultimate responsibility.

Before getting started on the blog entry of the week, a housekeeping matter, I am thinking that there may be one additional substantive blog for the rest of the year before I do the 2025 greatest hits. My thinking is that one more substantive blog entry after this will appear the week of December 8. Over Christmas week, I will put up the 2025 greatest hits. After that, my plan is to pick up blogging again after the new year.

 

Turning to the blog entry of the week, did you know when it comes to employment matters, that §504 of the Rehabilitation Act, and probably §501 as well, do not support a cause of action for retaliation? Until this week, I didn’t know that either. However, that is exactly what the Sixth Circuit in a published decision, held in Smith v. Michigan Department of Corrections decided on November 21, 2025, here. As usual, the blog entry is divided into categories and they are: facts; whether §504 retaliation cause of action existence been addressed squarely by the Supreme Court or by the Sixth Circuit in the past; whether an implied cause of action under §504 exists; how significant is 29 U.S.C. §794(d)’s reference to standards of Title I of the ADA to the question of whether a retaliation cause of action exists under §504; Title IX is of no help to plaintiff with respect to plaintiff’s claim that §504 includes a retaliation claim; Department of Labor regulation allowing for a retaliation cause of action is of no help to the plaintiff; it would be unconstitutional to find that a §504 retaliation claim exists; summary judgment properly granted on the failure to accommodate claim; concurring (failure to accommodate claim), and dissenting (retaliation claim existence), opinion by Judge Bloomekatz; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Facts

 

The facts are really quite simple for our purposes. You have a person that becomes a person with a disability and requests accommodations. After that, the allegations are that the Michigan Department of Corrections retaliated for requesting those accommodations and ultimately terminated the plaintiff. Plaintiff brought suit under §504 of the Rehabilitation Act and not under Title I of the ADA. The district court grants summary judgment on the failure to accommodate claim but allows the retaliation claim go to trial. At trial, plaintiff loses on the retaliation claim and appeals. During the appellate process, the Sixth Circuit sought supplemental briefing on whether §504 of the Rehabilitation Act even supports a retaliation claim.

 

 

 

II

Whether §504 Retaliation Cause of Action Existence Has Been Addressed Squarely By The Supreme Court or by The Sixth Circuit In The Past

 

  1. The Supreme Court has never held that any provision of the Rehabilitation Act creates a private right of action for retaliation.
  2. No binding precedent from the Sixth Circuit exist on the question either.
  3. For a prior panel’s conclusion about an issue to be part of its holding, it must be clear that the court considered the issue and consciously reached a conclusion about it. No cases from the Sixth Circuit exists meeting this standard with respect to whether §504 supports a retaliation cause of action.
  4. The Sixth Circuit has proceeded under the assumption that §504 does support a retaliation cause of action, but it has never explicitly held as much. The specific reasoning for the assumption tends to be all over the place and lacks rigorous statutory analysis or clear confrontation of the issue.
  5. Other circuits assuming the existence of a retaliation cause of action under §504 also apply divergent and inconsistent rationales as well.

 

 

 

 

III

Whether An Implied Cause Of Action Under §504 Exists

 

  1. The presumption against implied causes of action carry particular weight per statutes enacted under the spending clause, which the Rehabilitation Act is one of those statutes.
  2. Spending legislation functions much in the nature of a contract between the federal government and state governments. Accordingly, when Congress legislates under its spending power, any conditions it attaches to the receipt of federal funds, including exposure to private lawsuits, must be stated unambiguously.
  3. Recipients of federal funds have to have clear notice of the obligation they are undertaking, including the scope of any potential liability.
  4. 504(a) of the Rehabilitation Act, which talks about the causation standard for Rehabilitation Act claims under §504, contains no mention of retaliation.
  5. Without evidence of statutory intent, a cause of action does not exist and courts cannot create one regardless of how desirable that might be as a policy matter or how compatible it might be with the statute.
  6. If Congress intended to impose liability on states for retaliation under the Rehabilitation Act, it has to do so with a clear voice, but §504 is silent (emphasis in opinion), as to retaliation.
  7. In deciding whether a statute creates a private right of action, the controlling question is whether Congress intended (emphasis in opinion), to authorize that cause of action in the text. That standard is especially demanding when it comes to spending clause legislation because a state’s consent to private enforcement suit cannot be fairly inferred unless Congress provided clear and unambiguous notice that the statute created a personally enforceable right.
  8. Congress knows how to explicitly create retaliation claims and such claims are commonly found in a range of other federal statutes, including: Title VII; ADEA; ADA; OSHA; FLSA; and FMLA. What all of the statutes have in common is that when Congress intend to authorize a retaliation cause of action, it does so in a straightforward fashion by separating the anti-retaliation provision from any underlying prohibition or discrimination. On the other hand, the Rehabilitation Act contains no express anti-retaliation provision, which raises a serious question about whether such a cause of action exists in the first place and if it does, what legal foundation exists for it. The distinction is critical when one considers that the Rehabilitation Act is spending clause legislation and Title VII, the ADA, and the ADEA rest on other sources of congressional power.
  9. Congress’s decision to omit a retaliation provision from the Rehabilitation Act after (emphasis in opinion), it included a provision in statutes such as the ADA, Title VII, and the ADEA, is strong evidence that it did not intend to authorize private retaliation claims under the Rehabilitation Act.

 

V

How Significant Is 29 U.S.C. §794(d)’s Reference to Standards Of Title I Of The ADA To The Question Of Whether A Retaliation Cause Of Action Exists Under §504

 

  1. 29 U.S.C. §794(d) provides: “Standards used in determining violation of section The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 to 12204 and 12210), as such sections relate to employment.”
  2. “Standards,” is not synonymous with “cause of action,” in legal parlance.
  3. Standards refer to how claims are adjudicated and not to whether a cause of action exists in the first place. For example, pleading standards refer to the level of detail a complaint must allege in order to survive a motion to dismiss. Evidentiary standards describe the burden of proof a party must meet. In the employment context, evidentiary standards commonly pertain to the familiar McDonnell Douglas burden shifting framework for cases lacking direct evidence of discrimination. In other words, “standards,” refers to how courts measure whether the facts meet the legal requirements for a cause of action or defense and not to the creation of a right to sue.
  4. Far from establishing new causes of action, “standards,” has been understood to refer to the substantive rules or burden, in this case the standard of causation, that govern how courts evaluate claims under the Rehabilitation Act.
  5. In prior cases, the Sixth Circuit has held that claims brought under §501 of the Rehabilitation Act, which contains within it an identical clause to 29 U.S.C. §794(d) for applicable standards, that but for causation rather than solely by reason is the applicable standard to use. Those holdings confirm that “standard,” refers to the rule or burden used to evaluate a claim rather than the source of the claim itself.
  6. The ADA points in the same direction as the ADA includes both an express retaliation provision and its own references to standards.
  7. Accordingly, the use of “standards,” by Congress was meant to inform how claims are assessed and not to authorize new categories of claims, such as retaliation.
  8. When the Supreme Court has referred to “standards,” it has generally done so regarding substantive legal criteria or methods of analysis and not with respect to the scope of claims that a plaintiff may bring, which makes sense because the word “standards,” speaks only to how (emphasis in opinion), existing liability is assess as opposed to what kinds (emphasis in opinion), of liability are available.

 

VI

Title IX Is Of No Help To Plaintiff With Respect To Plaintiff’s Claim That §504 Includes A Retaliation Claim

 

  1. The Rehabilitation Act does not contain within it a similar history of expansive judicial interpretation like was seen in Title IX when the Court decided that an implied cause of action for retaliation existed.

 

VII

Department Of Labor Regulations Allowing For A Retaliation Cause Of Action Is Of No Help To The Plaintiff

 

  1. An agency regulation cannot create a private right of action in the statute itself does not.
  2. The particular regulation mentioned by plaintiff, is a Department of Labor regulation and does not apply to state entities like the Michigan Department of Corrections.
  3. Even if the regulation somehow applied, agency regulations cannot expand the scope of liability beyond what Congress has authorized in the statute.

 

VIII

It Would Be Unconstitutional To Find That A §504 Retaliation Claim Exists

 

  1. The Constitution prevents subjecting states to liability for claims based upon indirect statutory cross-references, which are largely indeterminate provision susceptible to a range of plausible meetings.
  2. Reading a private right of action for retaliation into §504 fails to provide a clear notice demanded by the Constitution.
  3. Congress has never said that the Rehabilitation Act independently authorize a retaliation claim through indirect reference alone.
  4. If Congress intended to create a new retaliation cause of action Rehabilitation Act, it could have done so as it has done precisely that in other contexts numerous times before.

 

IX

Summary Judgment Properly Granted on The Failure To Accommodate Claim; Concurring (Failure To Accommodate Claim)

 

  1. Failure to accommodate claims necessarily involve direct evidence.
  2. Proving up a failure to accommodate claim involves showing plaintiff is: 1) a person with a disability; 2) is otherwise qualified; 3) the employer knew or had reason to know about plaintiff’s disability; 4) plaintiff requested an accommodation; and 5) the employer failed to provide an accommodation.
  3. Plaintiff also bears the burden of demonstrating that the requested accommodation was reasonable. If plaintiff succeeds on the showing that requested accommodation was reasonable, the burden then shifts to the employer to show that a challenged criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.
  4. When an employee remains officially classified in his or her permanent role and continues to receive the corresponding salary and benefits even while working in a temporary or modified position, the position is not redefined based on the duties of the temporary assignment. Therefore, the correct reference point is the permanent position, in this case the corrections officer.
  5. Plaintiff concedes that he could not perform the essential functions of a corrections officer.
  6. Plaintiff’s proposed accommodation reassignment to a different position was not a reasonable one because reassignment under the ADA requires more than a general assertion of what plaintiff believes is available. Also, the record makes clear that plaintiff was in a temporary assignment that was not permanent and not one eligible for reassignment.
  7. A general need for position does not transform a temporary assignment into a vacant, budgeted position eligible for reassignment.
  8. An employer is not required to create a permanent position simply because an employee’s transitional role happens to meet a temporary operational need.
  9. A breakdown in the interactive process is actionable only if it prevents identification of an appropriate accommodation for a qualified individual, which simply can’t be true here because plaintiff’s proposed accommodation was not reasonable.
  10. Since plaintiff cannot meet the prima facie showing of discrimination, the question of undue hardship never arises.

 

X

Concurring (Failure to Accommodate), and Dissenting (Retaliation Claim Existence), By Judge Bloomekatz

 

Judge Bloomekatz agrees that summary judgment was proper on the failure to accommodate claim and does not spend any time on that point. So, the rest of this section focuses on his view that §504 supports a retaliation claim.

 

  1. The Sixth Circuit has consistently held that §504 provides a cause of action for retaliation.
  2. The consensus that §504 supports a retaliation claim cause of action, grounded in statutory text, is also based on the reality of employment discrimination claims. In employment discrimination claims, protection against retaliation is essential to effective enforcement of antidiscrimination statutes because those statutes depend on individuals coming forward to report violations. This is especially true in the disability realm, where statutory protections apply after an employee assert the right by disclosing the disability and seeking accommodation, which is a step that makes the employee vulnerable to retaliation.
  3. Congressional prohibition on discriminating against a disabled employee accomplishes very little if an employer can legally retaliate against that same employee for requesting an accommodation. It therefore follows that Congress applied a critical enforcement mechanism when it incorporated the ADA’s anti-retaliation provision to employment discrimination claims brought under the Rehabilitation Act.
  4. Since the employer conceded from the outset of the case, including throughout the appeal process until the very end when supplemental briefing was requested, that §504 has a retaliation cause of action and that question is not jurisdictional, there is no reason for the Sixth Circuit to decide the issue. The fact that the issue first arose in supplemental briefing should not give the employer a second bite of the apple.
  5. The majority opinion is too quick to dismiss the long line of cases permitting a retaliation claim under §504.
  6. 29 U.S.C. §794(d) creates a carveout for employment discrimination claims. This particular section expressly references several ADA provisions including §503 (42 U.S.C. §12203(a)-the anti-retaliation cause of action. The Sixth Circuit has read this language in the ADA in the past as authorizing a private right of action for victims of retaliation, and the answer should be no different under §504 of the Rehabilitation Act.
  7. In a footnote, Judge Bloomekatz says that adopting a but for causation standard for employment discrimination claims does not create any sort of conflict at all because §504(d), 29 U.S.C. §794(d), says that the “standards,” used in employment discrimination claims are the standards applied by the ADA.
  8. 504(d) of the Rehabilitation Act expressly incorporates the ADA retaliation provision thereby giving clear and unambiguous notice that the Rehabilitation Act creates a personally enforceable right.
  9. Congress need not use magic words in order to speak clearly, which is what the majority seems to suggest in its opinion.
  10. Congress chose to proceed by incorporating the ADA’s anti-retaliation clause into the statute through directly cross-referencing rather than laying it out explicitly. However, that doesn’t make the inclusion of a retaliation claim unclear. The cross-references are absolutely clear that the anti-retaliation provision of the ADA is specifically included in §504 of the Rehabilitation Act.
  11. The majority opinion views “standards,” too narrowly and also makes much of §504(d) of the Rehabilitation Act meaningless.
  12. “Standards,” can also encompass substantive prohibitions, metrics for evaluating those prohibition, and corrective action alike.
  13. Prohibiting retaliation and providing a remedy, can be “standards,” prescribed by a statute.
  14. “Standards,” can still incorporate prohibitions, such as a ban on retaliation.
  15. No one disputes that a cause of action for violating §504(a) of the Rehabilitation Act exists.
  16. The cross reference provisions to the ADA mean if the ADA is violated, then the Rehabilitation Act is also violated.
  17. It cannot be assumed that the cross-references to the ADA do nothing to the statute, but that is exactly what the majority opinion assumes.
  18. 42 U.S.C. §12203 of the ADA contain three provision: retaliation; interference; and a provision establishing remedies and procedures for those claims. The majority opinion renders the entire cross reference relevant. Under its logic, the majority opinion does not allow any new categories of claims such as retaliation and presumably for interference as well, all of which renders the cross reference to both of those prohibition absolutely meaningless, along with the provision setting forth the remedy for violating those provisions. That simply is not how statutes are supposed to be read.
  19. Courts must give affect to every clause and word of a statute.
  20. Since a retaliation claim is allowable, the jury instruction that focused on solely by reason of as the proper causation standard was not harmless error.

 

XI

Thoughts/Takeaways

 

  1. We have seen the argument before that a long line of cases saying that something is allowed does not preclude the US Supreme Court from saying that what everybody assumed for years was wrong. This is exactly what happened when the Supreme Court decided that emotional distress damages were not available under §504 in Cummings, which we discussed here.
  2. 501 of the Rehabilitation Act contains an identical clause as §504 of the Rehabilitation Act. So, that leads to the question of whether this decision would preclude federal employees from claiming retaliation and/or interference under §501 of the Rehabilitation Act.
  3. The Supreme Court certainly does not like to find implied private right of actions if it all can help it. The question here is whether the cause of action for retaliation under §504 is actually implied. It could be argued, as the dissent does, that the cause of action is not implied at all even if it is inartfully worded.
  4. The best argument that a retaliation cause of action does not exist is probably that the retaliation cause of action is not explicitly stated in the Rehabilitation Act, and Congress will specify retaliation when it chooses to do so. On the other hand, the dissent points out that failing to incorporate the retaliation cause of action into the Rehabilitation Act, makes much of the cross-references in 29 U.S.C. §794(d) meaningless. Also, even if you assume “standards,” means what the majority says it means, it is hard to understand why Congress would incorporate standards with respect to a certain cause of action that doesn’t even exist. Hard to say what a majority of the Supreme Court would do when faced with these diametrically opposed views. If I’m having to guess, one would think that the Supreme Court would lean towards the majority opinion and not to the dissent but one never knows.
  5. This is not an easy case to get a handle on. One wonders if an en banc hearing will not be requested by the plaintiff.
  6. The Supreme Court will undoubtedly have to step in at some point.
  7. This is a published decision. Accordingly, one can certainly now expect an avalanche of defense attorneys moving to dismiss any retaliation or interference allegations from lawsuits claiming employment discrimination under §504 or §501 of the Rehabilitation Act.
  8. I am seeing cases saying that failure to accommodate claims are direct evidence claims and not subject to McDonnell Douglas. That said, even though failure to accommodate claims are direct evidence claims, there is still burden shifting that goes on.
  9. I suspect that the reason why Title I of the ADA was not pursued in this case had to do with issues pertaining to sovereign immunity (the Supreme Court has held that sovereign immunity is not forcibly waived when it comes to employment matters per this decision, here. On the other hand, the courts are virtually unanimous that taking federal funds waives sovereign immunity for purposes of Rehabilitation Act claims).
  10. The majority opinion may go too far with respect to its very narrow view of when reassignment is in play. Regardless, such a narrow view is not great preventive law. We have discussed numerous times how courts are all over the place when it comes to mandatory reassignment. See this blog entry for example. See also this blog entry discussing the notice required when it comes to reassignment, which will probably be the subject of my final substantive blog entry for the year (the court denied a motion for reconsideration worth discussing).

When the Federal Bar Association national convention was held in Kansas City Missouri, I was part of a panel that explored outside the box uses of the ADA. One of the panelist, Jamie Strawbridge, talked about how the ADA/504 can be an alterative to excessive force §1983 cases. The case of the week explores exactly that.

 

The case of the day is the estate of Ryan Leroux v. Montgomery County, here, decided on October 24, 2025, in the United States District Court for Maryland, Southern Division. This is an excessive force case which was pursued as an ADA/504 claim instead of as a §1983 claim. As usual, the blog entry is divided into categories (lots of them), and they are: facts; a reasonable jury could find that plaintiff had a mental impairment as defined by the ADA; a reasonable jury could find that plaintiff’s impairment substantially limited major life activities; a reasonable jury could find that Montgomery County knew of plaintiff’s disability and the need for accommodation; a reasonable jury could find that Montgomery County failed to provide reasonable accommodations; exigent circumstances is not a get out of jail free card in this case; defendants have not conclusively established the affirmative defense of direct threat; a reasonable jury could find that Montgomery County’s failure to reasonably accommodate proximately caused plaintiff’s death, and therefore  the claims survive plaintiff’s death; a reasonable jury could find that Montgomery County discriminated against plaintiff based on his disability; a reasonable jury could find that Montgomery County acted with deliberate indifference; a reasonable jury could find that a Montgomery County official knew of the need to accommodate plaintiff and failed to act; reasonable jury could find that an officer of Montgomery County did not provide plaintiff with an accommodation and was an official with authority to correct the discrimination against the plaintiff; a reasonable jury could find that Montgomery County was deliberately indifferent in failing to train officers on federal disability law; a reasonable jury could find that the defendant officers are not entitled to public official immunity and genuine issues of material fact exists; and thoughts/takeaways.

 

I

Facts

 

For purposes of this blog entry, the term “plaintiff,” either refers to the person who was killed or to what his attorneys did in proving up the case.

 

The specific facts are in the opinion and they are quite extensive. I will try to condense it considerably in this section of the blog entry, especially given all the categories needing to be covered in this blog entry. Other facts might come up and be mentioned in the various categories of this blog entry.

 

Basically, you have a person with a documented history of mental illness, including paranoia, that was well-known to the Montgomery County police. The person (plaintiff), pulls into a drive-through at McDonald’s, orders his food, receives his food, but does not pay. When challenged about that, he tried to convince McDonald’s that he had paid for the food. That led to a 911 call where the situation was discussed and then put on the list of pending nonpriority calls for service. Another officer happened by and checked on the situation with the McDonald’s employee. McDonald’s employee said that the plaintiff was just sitting there and not saying much, though he was still blocking the drive-through lane. At 10:28 PM, Ofc. Brooks Inman arrived and when he checked on the situation he noticed that there was a handgun in the seat next to the plaintiff. Plaintiff was unresponsive to any of the commands issued by the officer. The officer then backed up keeping his firearm drawn and called for backup. Eventually a total of 17 officers were present at the McDonald’s. They surrounded plaintiff’s car at a distance of about 10 yards, drew their handguns, and one even trained an assault rifle on the plaintiff. What follows subsequently was disorganization by the officers with no plan at all. Eventually, a crisis negotiator radioed that he was two minutes away. A few seconds later, plaintiff again raised the gun with his right arm and several officers opened fire by firing a total of 23 shots at the plaintiff where he died after being transported to a hospital. Again, the facts are extremely extensive and go into far more detail than what is described here, and the reader is referred to the actual opinion for that. I tried to keep the facts to the critical points in the interest of space.

 

Plaintiff’s estate sues under §504, Title II of the ADA, and Maryland state law and NOT §1983. As typical, the defendants moved for summary judgment after discovery. The court wasn’t having it.

 

II

A Reasonable Jury Could Find That Plaintiff Had a Mental Impairment as Defined by The ADA

 

  1. When assessing claims filed under the ADA, the definition of disability gets construed broadly in favor of expansive coverage. Such an approach is consistent with the amendments to the ADA whose purpose was to make it easier for people with disability to obtain protection under the ADA by focusing on whether entities complied with their obligations and whether discrimination occurred rather than on definitional matters.
  2. Plaintiff produced sufficient evidence to show that he suffered from a mental impairment as defined by the ADA. Such evidence includes: 1) being involuntarily committed for inpatient treatment with the diagnosis of unspecified mental health disorder; 2) treating physicians checking a box saying that he had a mental disorder; 3) being discharged with a diagnosis of psychosis; 4) being prescribed antipsychotic medication; 4) plaintiff expert stating that he most likely has schizophrenia; and 5) the way he reacted during the fatal police encounter by remaining uncommunicative and unresponsive for a period of over two hours was also typical of someone with a mental illness.
  3. The Fourth Circuit has declined to require that medical evidence is necessary to always establish a disability at the summary judgment stage, even where an alleged impairment might be unfamiliar to a lay jury.
  4. Nothing in Title II of the ADA requires a person to be formally diagnosed with a mental health disorder before finding the person has a mental impairment.
  5. The fact that a non-examining expert declined to formally diagnose an impairment based on the record alone does not support a finding of no disability.
  6. The argument that a diagnosis of psychosis is not a mental impairment runs counter to federal guidance that the definition of disability must be construed broadly in favor of expansive coverage to the maximum extent permissible under the ADA.
  7. Plaintiff produced an expert opinion indicating that the prolonged paranoia of the plaintiff as he experienced it after October 2020 is more consistent with a mental health disability rather than a one time consumption of any drugs. Further, there is no evidence that drug use played a role in the instances plaintiff put forward with respect a previous incident at a hotel and what happened at McDonald’s.

 

III

A Reasonable Jury Could Find That Plaintiff’s Impairment Substantially Limited Major Life Activities

 

  1. In considering whether an impairment substantially limits an individual in a major life activity, the statutory text must be broadly construed in favor of expansive coverage. It is not a demanding standard to meet.
  2. Plaintiff’s estate put forward evidence that when plaintiff was experiencing the effects of his mental health disability, it impacted his ability to think, communicate, interact with others, and speak.
  3. Without his medication, he said he dreamt about people trying to kill him.
  4. It is not normal to act unresponsive to the police.

 

IV

A Reasonable Jury Could Find That Montgomery County Knew of Plaintiff’s Disability And The Need For Accommodation

 

  1. Title II of the ADA applies to police activities and investigations.
  2. Under Title II of the ADA, a public entity must make reasonable modifications when the entity had knowledge of a person’s disability related limitations.
  3. A person’s need for accommodation must be clear.
  4. A plaintiff may establish that a defendant knew of an individual’s need for accommodation by showing that the individual with a disability or a third party lucidly asked for a modification, but a specific request is not required.
  5. A plaintiff can also demonstrate knowledge by showing that an individual’s disability and resulting need for an accommodation were obvious or apparent.
  6. Evidence indicating that a person’s disability and need for an accommodation were obvious includes evidence that officers on the scene: 1) observed behavior suggesting that an individual suffered from a disability; 2) received training on behavior indicators associated with particular disability; or 3) received information from third parties suggesting the presence of the disability.
  7. The court was not buying the argument of Montgomery County that officials were never told that plaintiff had a disability and plaintiff never requested an accommodation because neither action is necessary in order to establish knowledge under the ADA. Instead, to establish that Montgomery County had an obligation to provide reasonable accommodations under the ADA, all plaintiff had to show was that his disability related limitations and subsequent need for an accommodation were obvious.
  8. Plaintiff produced evidence that County officials knew of his disability early. Specifically, a McDonald’s employee told the dispatcher that plaintiff was acting crazy. That employee also elaborated by describing abnormal behavior, i.e. refusing to exit the drive through line, stopping communicating or responding, and putting on his headphones as well as making statements that were simply not true to the McDonald’s employee.
  9. Plaintiff’s expert on emergency response communications stated that based on the call, the call taker knew or should have known that the call for service involved a mental health component and required a modified response.
  10. Plaintiff’s experts reported that symptoms of plaintiff’s mental illness were readily observable and obvious once officers arrived on the scene. The expert testified that plaintiff presented as mentally disorganized, with flat affect, and engaged in abnormal behavior. The expert also testified that his behavior included symptoms of catatonia, such as not moving, not talking, staring, or sluggish responses, all of which were observed by the officers on the scene. The observable nature of plaintiff’s symptoms not only supports an inference that County officials knew of plaintiff’s disability, but also to knowledge of the limitations caused by that disability and the need for an accommodation to address those limitations.
  11. While at the scene, officers observed plaintiff’s inability to engage, answer questions, or follow basic commands. One officer even noted the abnormality of the behavior by saying that he had no idea what was going on with the guy, and it was like a suicide by cop type of thing. Another officer expressed similar sentiments. Several of the officers testified they knew there was something wrong and that this was not a normal situation. Further, after only two minutes on the scene, the commanding officer requested a dispatch of crisis negotiators.
  12. Plaintiff’s also produced evidence that Montgomery County officers are trained on recognizing and interacting with people with mental illness. That training included information on recognizing potential symptoms of people in emotional distress, mental distress, and instructed officers that when a person with a mental illness does not comply with orders, it is entirely possible they are not intentionally ignoring orders or being defiant. The training also noted that many people with mental health disorders experience processing delays and/or may be distracted by hallucinations or other stimuli.
  13. Montgomery County was familiar with plaintiff through past interaction. Prior encounters with the police predicated on the same individual’s suspected mental illness can imply knowledge, even if it involves separate officers in the same department.
  14. The fact that abnormal behavior could indicate either a mental illness or indicate substance use is not enough to allow an entity to be free and clear of knowledge of a disability under the ADA.
  15. Officers at the scene were not operating under the assumption that plaintiff’s abnormal behavior was due to substance use.
  16. All an individual has to do is demonstrate obvious limitations and a clear need for accommodation. Where the circumstances indicate that an individual has an obvious need for accommodation, the ADA shifts the burden of compliance on to public bodies and their employees.
  17. In a footnote, the court noted that in the Fourth Circuit satisfying the knowledge requirement means a plaintiff has to show: 1) the physical or mental disability related limitation is known; and 2) the need for accommodation is clear. That is, it is the need for the accommodation and not the specific necessary accommodation itself that must be obvious. Many other circuits agree with this principle.

 

V

A Reasonable Jury Could Find That Montgomery County Failed to Provide Reasonable Accommodations

 

  1. A modification is reasonable if it is reasonable on its face or ordinarily in the run of cases and does not cause an undue hardship.
  2. What constitutes a reasonable accommodation during a police investigation is a question of fact and varies according to the circumstances.
  3. Exigent circumstances are considered as part of the reasonableness of the accommodation rather than as a separate inquiry. The existence of such circumstances does not excuse officers from providing reasonable accommodations.
  4. When the County first became aware of plaintiff’s abnormal behavior, the McDonald’s employee stated that the plaintiff was not a danger to those around him. At that point, plaintiff’s expert stated that Montgomery County knew or should have known that plaintiff was exhibiting disability related limitations and required an accommodation, thereby triggering the County’s obligation to accommodate under the ADA. So, given the content of the call and the opinions of the experts, a reasonable jury could find that Montgomery County had a responsibility to provide a reasonable accommodation at the 911 call stage but failed to do so.
  5. A reasonable jury could find that the accommodations provided were ineffective or unreasonably delayed and therefore, inadequate under the ADA. For example, the presence of trained officers in mental health awareness was not provided until 75 minutes after the initial 911 call. Once those officers were on the scene, they did not adhere to their training thereby providing accommodation in name only.
  6. Nearly all of the mental health trained officers who were asked about their training could not answer any questions about the content of the training.
  7. Asking for crisis negotiators was arguably just too late as the crisis negotiators were not asked for until 97 minutes after the 911 call and 21 minutes after the first officer arrived on the scene.
  8. Unreasonable delay may constitute a denial of an accommodation. While relatively short delays do not support such an argument, the circumstances surrounding a delay are part of a larger reasonableness inquiry and have to be considered within the context of an individual incident.
  9. A delay is more likely to be reasonable when an entity is actively working towards securing an accommodation or when an entity has no reason to believe harm may follow from a brief delay.
  10. If a genuine factual dispute exists surrounding such a delay, that question is one for the factfinder to figure out.
  11. Prior to the event or a request for a crisis intervention team, no officer attempted to secure such an accommodation, and the scene was tactical chaos with 17 officers without any clearly assigned roles and without any coordinated response plan or any form of organization of the scene.
  12. County officials had good reason to believe that harm may come to the plaintiff if the situation continued.
  13. Plaintiff produced evidence that the County’s failure to call for negotiators and implement mental health accommodation sooner was counter to Montgomery County’s own policies and training.

 

VI

Exigent Circumstances Is Not A Get Out Of Jail Free Card In This Case

 

  1. The behavior of officers at the scene undercuts any argument that exigent circumstances were involved. In particular: 1) in the 34 minutes between when the first officer on the scene arrived and plaintiff’s death, groups of officers milled around making small talk or joking around; 2) the commanding officer on the scene walked around the scene for 10 minutes without any sense of urgency and almost never giving any proactive instruction to anyone; 3) throughout this period, plaintiff was calm and had made no threats or shown any signs of violence or escalation; 4) a Sgt. described the scene as secure, noting that innocent were out of the way and the McDonald’s was sealed off; and 5) plaintiff’s expert in police training in crisis intervention stated that based on plaintiff’s behavior, the environment, and the context of the situation, the gun in the seat next to plaintiff did not pose an immediate threat for much of the time.
  2. When plaintiff pointed the gun at officers, that event occurred well after the officers obligation to provide a reasonable accommodation arose, which was over 90 minutes after the 911 call and 18 minutes after officers arrived on the scene.
  3. Plaintiff’s action did not impact the officer’s ability to summon mental health resources before he raised the weapon.
  4. 17 officers were on the scene, most without any clearly assigned roles.
  5. What constitutes a reasonable accommodation is a question of fact.

 

VII

Defendants Have Not Conclusively Established The Affirmative Defense Of Direct Threat

 

  1. In order to determine whether an individual poses a direct threat per 28 C.F.R. §35.139, a public entity must make an individualized assessment, based on a reasonable judgment relying on current medical knowledge are on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
  2. When summary judgment is sought on an affirmative defense, the movant must conclusively establish all essential elements of that defense.
  3. Defendant must conclusively show that Montgomery County conducted an individualized inquiry to ascertain the nature of the risk, the probability that potential injury will occur, and whether modifications would mitigate that risk.
  4. Plaintiff produced plenty of evidence that the County did not utilize resources available-either the County’s mental health resources or the resources available to officers by way of their laptops in their cruisers-in order to learn more about the plaintiff, past police involvement, or his mental health history, all of which could have been easily found if they had done so.
  5. More than one officer stated that they did not consider calling any mental health resources to the scene.
  6. Defendants simply have not conclusively shown that plaintiff posed a direct threat that could not be eliminated through reasonable modifications, nor that the County made an individualized assessment based on the best available objective evidence.

 

VIII

A Reasonable Jury Could Find That Montgomery County’s Failure to Reasonably Accommodate Proximately Caused Plaintiff’s Death, and therefore the claim survived the plaintiff’s death.

 

  1. In the Fourth Circuit as well as in other circuits, courts have tended to hold that federal common law rather than state law, governs the survival of claims for compensatory damages under the ADA.
  2. Remedial actions survive the death of a plaintiff.
  3. An action for compensatory damages under the ADA is remedial and not punitive in nature.
  4. Plaintiff produced evidence demonstrating that had plaintiff’s disability been accommodated in a reasonably timely manner, the incident at McDonald’s would not have resulted in plaintiff’s death.

 

IX

A Reasonable Jury Could Find That Montgomery County Discriminated Against Plaintiff Based On His Disability

 

  1. Failure to provide accommodations may constitute a form of disability discrimination.
  2. Failure to accommodate claims focus on whether a defendant failed to respond reasonably to the individual’s disability and therefore harms the victim.
  3. In the context of a failure to accommodate claim how plaintiff’s own behavior impacts the reasonableness of an accommodation is considered within the greater totality of the circumstances involved.

 

X

A Reasonable Jury Could Find That Montgomery County Acted with Deliberate Indifference

 

  1. Citing to cases we have previously discussed in our blog, here and here, the court noted that a plaintiff may demonstrate discriminatory intent through a showing of deliberate indifference. A position most of the circuits have taken as well.
  2. For a plaintiff to establish deliberate indifference, a plaintiff must show in the Fourth Circuit: 1) an ongoing or likely violation of a federally protected rights; 2) knowledge of a substantial risk of deprivation of those rights; and 3) a failure to act to resolve that risk.
  3. Deliberate indifference is an actual notice standard and requires a deliberate or conscious choice to ignore something. In other words, an official have to know of the dangers to federal rights and none of the less disregard them. That official must know of the facts from which a federal rights violation could be inferred and then actually draw the inference from that.

 

XI

A Reasonable Jury Could Find That A Montgomery County Official Knew Of The Need To Accommodate Plaintiff And Failed To Act

 

  1. When a risk is so obvious that an official must have had knowledge, that is sufficient to get a deliberate indifference question to a jury.
  2. Obvious goes beyond what a reasonably prudent person would know, but rather looks to whether a risk was so obvious they must have known.
  3. Liability can be imputed to a county only when a county official with authority to address the discrimination knew of the likely federal rights violation but failed to act.

 

XII

Reasonable Jury Could Find That An Officer Of Montgomery County Did Not Provide Plaintiff With An Accommodation And Was An Official With Authority To Correct The Discrimination Against The Plaintiff

 

  1. The strongest argument for deliberate indifference is against defendant Ofc. Inman.
  2. Inman was one of those people with mental health awareness training and must have been exposed to indicators of mental illness. What the officer encountered at the scene should have been put him on notice that he was dealing with a person with significant mental health issues and would have to adjust his behavior accordingly. In fact, he repeatedly remarked to others about plaintiff’s behavior.
  3. Inman directly observed and commented on the obvious impact of plaintiff’s disability, including his abnormal behavior, inappropriate response to police present, and plaintiff’s inability to effectively communicate or respond to police commands.
  4. Rather than implement de-escalation tactics, officer Inman engaged in escalatory behavior by holding the plaintiff at gunpoint, screaming at him, and suggesting that other officers, “Pepper spray his ass.”
  5. Inman did not take any affirmative steps to implement any plan or accommodations and in fact asked people multiple times what was the plan and what did everybody else wants to do. Accordingly, the officer did not make good faith effort to remedy plaintiff’s problems either by applying his training, implementing de-escalation tactics, or calling for mental health supports.
  6. An official for the purpose of imposing liability on an entity like Montgomery County, is a person who has some discretion at a key decision point in the administrative process.
  7. Plaintiff produced evidence that Ofc. Inman had both the discretion at key decision points and the authority to implement accommodations on the night plaintiff was killed. He was empowered to call for crisis negotiators or implement other accommodations. He also had mental health awareness training and was the primary officer tasked with determining if other mental health resources were needed.

 

XIII

A Reasonable Jury Could Find That Montgomery County Was Deliberately Indifferent in Failing To Train Officers On Federal Disability Law

 

  1. Plaintiff put forward evidence indicating that Montgomery County failed to uniformly train their police officers on disability law.
  2. Multiple officers testified in the deposition that they either did not receive training on disability law or they did not remember the training.
  3. While Ofc. Inman did receive ADA training, he did not receive it until he had been with the Montgomery County Police Department for over nine years.
  4. While the training included several sessions on identifying and interacting with individuals with mental health disabilities, it provided no information on disability law or on an officer’s statutory duty to provide reasonable accommodations.
  5. A jury could reasonably find that Montgomery County’s failure to uniformly or comprehensively train officers on their obligations under the ADA and the Rehabilitation Act present an obvious potential for violations of federal rights.
  6. Without specific training on disability law, there is no reason to assume that an officer knows how to comply with the sensitive and nuanced obligations imposed upon him by the ADA and the Rehabilitation Act.
  7. Training on mental illness generally is not a substitute for training on the sensitive and nuanced obligations that police officers under the ADA and the Rehabilitation Act.
  8. Insufficient evidence exists that the mental illness trainings informed officers of their statutory obligations to provide individuals with mental health disabilities with reasonable accommodations when necessary.

 

XIV

A Reasonable Jury Could Find That The Defendant Officers Are Not Entitled To Public Official Immunity And Genuine Issues Of Material Fact Exists

 

  1. Maryland law provides that an official of a municipal Corporation when acting in a discretionary capacity without malice and within the scope of their employment or authority, is immune as an official or individual from any civil liability for the performance of the action. However, no such immunity exists for intentional torts, acts committed with actual malice, or acts that are grossly negligent.
  2. Gross negligence is defined as an intentional failure to perform a clear duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the making of any effort to avoid them.
  3. The question of whether an officer acted with gross negligence or malice is generally a question for the jury.
  4. Plaintiff need not show malice or gross negligence as to the use of force, but rather as to their conduct across the police response as a whole.
  5. A reasonable jury could find that the officers were grossly negligent by failing to implement de-escalation tactics and failing to attempt to secure mental health resources for the plaintiff despite the readily observable nature of his disability and his related limitations.
  6. All of the officers received mental health awareness training where they should have been able to recognize that mental health issues were involved. That training also encouraged officers facing this kind of situation to consider reaching out to the crisis center in order to see if they have any history with the individual that would be useful in diffusing the current crisis. The training also talked about how interaction with people with significant mental health issues can be entirely different than interaction with those without such issues. Finally, Montgomery County’s own expert stated that it would be appropriate to have a crisis negotiator involved in the scene when the initial levels and initial efforts of communication from the responding officers to an individual in an agitated state or in a moment of crisis had proven unsuccessful.

 

XV

Thoughts/Takeaways

 

  1. This case is an excellent example of how a plaintiff attorney might forgo entirely §1983 in favor of ADA Title II claims and §504 claims. One advantage to doing it that way, is to circumvent qualified immunity arguments. The two disadvantages are: 1) that it is very much an unknown as to what kind of damages might be available; and 2) causation is different between the ADA and the Rehabilitation Act.
  2. While the Rehabilitation Act and the ADA get interpreted in the same way, causation is not the same with the ADA being “by reason of,” and the Rehabilitation Act being “solely by reason.” The distinction as we discussed here, matters.
  3. Medical evidence is not always necessary to establish a disability at the summary judgment stage even where the particular impairment at issue might be unfamiliar to a lay jury.
  4. A formal diagnosis is not necessary in order for a person to have a disability under the ADA.
  5. Title II of the ADA applies to police activities and investigations. See also this blog entry.
  6. A plaintiff doesn’t have to make clear that they have a disability or request an accommodation if the disability related limitations and subsequent need for an accommodation are obvious.
  7. I have noticed in my practice that police officers are routinely trained on mental health awareness but are lacking in training with respect to their obligations under the ADA and the Rehabilitation Act. It has been particularly noticeable in the area of service animals (full disclosure: training on what the ADA does and does not require is a huge part of my practice), but it also impacts excessive force training as well.
  8. I previously discussed in this blog entry how the training on excessive force is using a case that would in all probability violates               the ADA. This is a case that illustrates how police department need to think beyond the traditional excessive force situations, and expand their thinking to how to deal with persons with disabilities in terms of the obligations they have under the ADA and §504 of the Rehabilitation Act.
  9. Exigent circumstances are not a get out of jail free card for police departments. You have to look at the overall circumstances involved.
  10. Unreasonable delay in granting an accommodation is actionable.
  11. I still have no idea what it means that a modification is reasonable if it is reasonable on its face or ordinarily in the run of cases.
  12. Direct threat is an affirmative defense and all of its elements must be conclusively shown by the party setting forth the defense.
  13. It is going to be very interesting to see how the court deals with damages going forward. This decision says deliberate indifference has been shown or certainly arguably has been shown. However, that doesn’t answer the question because the question is still what kind of compensatory damages can the plaintiff receive. We know on the Rehabilitation Act side that emotional distress damages are out per Cummings, here. We also know that many courts are saying that emotional distress damages are also out with respect to Title II cases. It is an open question to eventually be decided by the Supreme Court whether Title II of the ADA prohibits emotional distress damages because it is not spending clause litigation unlike the Rehabilitation Act. The Supreme Court in Cummings specifically reserved that question for a later time. If Cummings does apply, what other kinds of damages might there be. One argument might be lost opportunity. There may be other arguments as well. Damages under state law may be another way to get significant damages, such as we discussed here. How much interest plaintiff side lawyers will have in pursuing ADA/§504 claims as an alternative to §1983 claims will very much depend on how the courts wind up looking at damages.
  14. Survival of ADA claims is a federal question, and it depends upon whether the claim is remedial in nature or not. Compensatory damages are remedial in nature. See also this blog entry.
  15. It is also an open question on what the courts are split as to whether vicarious liability exists to a Title II entity when its employees violate the ADA. In the 11th Circuit, here, and arguably in the Fourth Circuit as well per this case, liability only happens if a an official with authority to address the discrimination knew of the likely federal rights violation but failed to act. There are cases saying that vicarious liability is possible as well. So, be sure to check your jurisdiction.