Does the ADA encompass a hostile work environment claim?

Does the ADA encompass a hostile work environment claim? (I have mentioned hostile environment before but that was in the context of the Office of Civil Rights and education). According to the Northern District of Oklahoma in Callahan v. Communication Graphics, 2014 U.S. Dist. LEXIS 172148 (N.D. Okla. December 12, 2014), the answer is yes. This case also has an interesting piece in it about pleadings with respect to ADA cases as well. As is my usual custom, I have divided the blog entry into categories: facts, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

In this particular case, the plaintiff worked for Communication Graphics for five years where he worked on two different machines, a wrapper and a slitter. More specifically, he alleged that his coworkers, supervisors and managers mistook his ADD for symptoms of old age, alcoholism and mental illness and intentionally harassed him to make him sick. He was called old, senile, crazy, psychotic, and spaz. He alleged that the harassment was instigated by a safety manager and caused him physical reactions, including high blood pressure and a mild stroke. Further, he alleged that after reporting their harassment, his supervisor did nothing to prevent the harassing behavior. Further, after enduring the harassment for a couple of years, he complained to three different people. Instead of the harassment stopping, the harassment escalated and he was: excluded from production meetings; no longer considered for employee of the month; and eventually terminated. Also, when the plaintiff tried to report a work-related neck injury, his supervisor tried to talk him out of it. The next day, he was told by two different people three reasons why he could be fired. Plaintiff alleged that they did this in order to prevent him from reporting his neck injury. Ten months later, when he finally saw a doctor for the injury and the doctor placed him on work restrictions, plaintiff alleged that the defendant required him to do work against the restrictions and then moved him from the wrapper to the slitter machine (the slitter machine did not comply with the restrictions and worsened his neck condition). He then started hearing rumors that he would be fired, and he was fired two months later. Finally, in his pleadings, the plaintiff did not explain how his ADD substantially limited a major life activity.*

* The case also contains a same-sex harassment claim but that is not addressed in this entry.

II
Court’s Reasoning

1. Citing to a 10th circuit case from 2004, the court holds that the ADA does encompass a hostile work environment claim because of the parallel purposes and remedial structures of title VII and the ADA.

2. Since a hostile work environment claim is actionable under the ADA, the court then had to set forth what you would have to show to make a prima facie case of that claim. In particular, a plaintiff would have to show: 1) he or she is a member of a protected group (in this case, a person with a disability as defined by the ADA); 2) he or she was subject to unwelcome harassment; 3) the harassment was based on the alleged disability; and 4) due to the harassment’s severity or pervasiveness, the harassment altered a term, condition, or privilege of the plaintiff’s employment and created an abusive working environment.

3. The court believed that the allegations were sufficient to get the plaintiff beyond Iqbal and Twombly.

4. With respect to the plaintiff not pleading that ADD substantially limited him in a major life activity, the Northern District of Oklahoma concluded that even under Twombly and Iqbal, a plaintiff is not required to provide particulars about the major life activity limited by the impairment or explain how the impairment limits that activity at the pleading stage.

III
Takeaways

1. The plaintiff was pro se. Thus, from the defense perspective, they should not assume that just because the plaintiff filed the claim on his or her own, that they can coast. I am seeing a surprising number of claims filed pro se that get to first base. That said, if a pro se plaintiff does get to first base, it is hard for me to believe that a pro se plaintiff could navigate discovery without an attorney. That said, having gotten to first base, it would probably make it easier for a pro se plaintiff to retain counsel for the discovery portion of the case.

2. A strong argument can be made that hostile work environment claims involving disabilities are actionable under the ADA because, as mentioned by the court in this case, of the parallel purposes and remedial structures of title VII and the ADA.

3. While this case says that pleadings do not have to contain a description of how the disability substantially limits a major life activity, preventing problems later demands that a plaintiff not rely on this. That is, to avoid unnecessary risks (it is not obvious to me as to why listing how a disability substantially limits a major life activity would not be required by Iqbal and Twombly), a plaintiff should list how the disability substantially limits one or more major life activities.

By the way, you still have the chance to vote, until December 19, 2014, for my blog to be the best of the category(niche) here, and please do so.:-)

Meaningful access does not mean total access

Previously, I have blogged that with respect to title II, the critical question is whether a person has meaningful access to the services, programs, activities of the public entity. This week’s case, Medina v. City of Cape Coral (an unpublished decision), , 2014 U.S. Dist. LEXIS 168680 (M.D. Fla. December 5, 2014), stands for the proposition that meaningful access does not mean total access nor does it mean that plaintiff’s preferences determines meaningful access. As is my usual practice, I have divided this blog entry into categories: facts, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

A child who had participated in defendant’s school programs and summer camp since the age of five was diagnosed with type I diabetes. As a result, the child requires various treatments, including daily monitoring of her blood glucose levels and weekly maintenance of her insulin pump. The child is able to monitor her glucose levels independently but is unable to self administer insulin injections if needed. In anticipation of having the child participate in the defendant’s 2012 summer camp, plaintiff contacted the defendant’s risk manager informing him of her child’s diagnosis and requesting that they provide a staff member at the summer camp whom would be able to administer insulin injections if needed. While the defendant refused that request, the defendant did have a comprehensive diabetes accommodation policy, which they also amended during the course of litigation. In particular, the policy provided that: the defendant would assist in monitoring the child’s glucose levels; if the child’s glucose level fell outside the target range, the defendant agreed to take action such as providing fast acting carbohydrates and contacting the plaintiff so that she could take her to a physician; in the case of more serious symptoms, calling paramedics to the scene; and providing glucagon injections in the event of an emergency. Other important facts included: 1) it was rare that the child needed the requested insulin injections. In fact, plaintiff stated that the child only needed three insulin injections since her diagnosis in 2012, and in those situations, it was absolutely not an emergency because the child’s insulin pump kept the child regulated; 2) plaintiff could not remember a time in the last year when the child’s school nurse was required to give the child an insulin injection; and 3) plaintiff admitted that assuming glucagon injection could be given, her child would be able to attend camp with just an insulin pump.

II
Court’s Reasoning for Granting Defendant’s Motion for Summary Judgment

1. With respect to title II of the ADA, when it comes to deciding whether a modification/accommodation to a public entity’s service, program, or activities is reasonable, the question is whether the modification/accommodation results in meaningful access.

2. When an individual already has meaningful access to a benefit to which he or she is entitled, then no additional accommodation, regardless of whether it is reasonable or not, need be provided by the governmental entity.

3. The defendant’s diabetes accommodation policy, mentioned above, was quite extensive. That the policy did not provide access to trained individuals capable of administering insulin injections, did not prevent the child from enjoying meaningful access to the defendant’s program.

4. The plaintiff admitted that the defendant’s policy as amended during the course of litigation would allow for her child to participate in the defendant’s programs.

5. Even without staff available to administer injections, the child was able to participate in and enjoy the defendant’s program to the same extent as any other participant except for rare occasions when the child might miss a single meal.

6. The ADA entitles persons with disabilities to reasonable accommodations not to optimal ones finely tuned to their preferences.

7. Since the defendant already has a system so that the child can meaningfully access their programs, insulin injections are not a necessary accommodation.

III
Takeaways:

1. A defendant can go a long way towards becoming victorious in an ADA lawsuit by having a comprehensive policy based upon the best available scientific or medical evidence. That policy should lay out detailed steps that the defendant will take. Doing so, can go a long way in showing the court that the defendant’s policy ensures that meaningful access is granted to the person with a disability.

2. Meaningful access does not mean total access nor does it mean that a plaintiff’s preference has to drive the outcome (be careful here because if you are dealing with effective communications, it doesn’t work that way as seen in this blog entry).

3. It doesn’t say in the case that the plaintiff’s admissions were from a deposition, but one has to assume that such was the case. If so, one wonders just what the deposition preparation involved.

4. It is also curious as to why once the defendant amended their policy during the course of the litigation, that the case did not settle. For example, why not settle the case, insist on a consent decree to ensure that the amended policy is implemented, and then go for attorneys fees on the grounds that the plaintiff prevailed because the defendant changed their policy as a result of the litigation?

Lest I forget, you still have the chance to vote for my blog to be the best of the category(niche) here, and please do so, if you are so inclined. I am fortunate that there are so many great blog entries in the category. Also, I am even more fortunate that none of these blog entries in the niche category overlap with each other. That way, regardless of who wins in this category, I can’t get an inferiority complex:-)

Police liability for ADA/fourth amendment violations comes to the Supreme Court

It has been awhile since the United States Supreme Court dealt with an ADA question. A fact I am happy with as predicting what the United States Supreme Court does with an ADA question is impossible since the ADA does not break down along traditional liberal conservative lines.

This particular blog entry focuses on a case that I came very close to blogging on before. In fact, I came so close to blogging on this one before, that I was absolutely stunned to find out that I had not blogged on it. At any rate, the case is Sheehan v. City and County of San Francisco.

As is my usual practice, I have broken down the blog entry into categories: facts; issues presented; holdings; court’s reasoning; and takeaways. The reader is free to focus on any or all of these categories.

I
Facts:

The plaintiff, a woman in her mid-50s suffering from severe mental illness, lived in a group home. Her social worker became concerned about her apparently deteriorating condition to the point where he summoned police for help in transporting her to a mental health facility for 72 hour involuntary commitment for evaluation and treatment under California state law. The social worker deemed the plaintiff gravely disabled because she was not taking her medication and taking care of her self and was also a danger to others because she had threatened him when he attempted to perform a welfare check on her. When the police officers arrived, they entered the plaintiff’s room without a warrant in order to confirm the social worker’s assessment and to take her into custody. The plaintiff reacted violently to the officers presence by grabbing a knife and threatening to kill the officers. She also told the officer that she did not wish to be detained in a mental health facility. All of which forced the officer to retreat to the hallway outside the plaintiff’s closed door for their safety. The officer called for backup, but rather than waiting for backup or taking other actions to maintain the current situation or de-escalate the situation, the officers instead drew their weapons and forced their way back into the plaintiff’s room, presumably for the purpose of disarming, subduing, arresting, and preventing her escape. The plaintiff once again threatened the officers with a knife causing the officers to shoot the plaintiff five or six times. She then filed a § 1983 action against the officers and the city asserting violation of the fourth amendment and the ADA as well as tort and statutory claims under California law. The District Court granted summary judgment to the defendants and the plaintiff appealed to the Ninth Circuit.

II
Issues presented:

1. Did the first entry into the plaintiff’s room violate the fourth amendment?

2. Did the second entry into the plaintiff’s room create a triable issue of fact that the fourth amendment was violated?

3. Is there a triable issue of fact that the police officers used excessive force in violation of the fourth amendment when they resorted to using deadly force to shoot the plaintiff?

4. If the police officers arguably used excessive force in violation of fourth amendment when they resorted to using deadly force to shoot the plaintiff, are they protected by qualified immunity?

5. Does title II of the ADA apply to arrests?

6. If title II of the ADA does apply to arrests, is there liability for violating title II of the ADA when the officers forced their way back into the plaintiff’s room without taking the plaintiff’s mental illness into account or employing generally accepted police practices for peaceably resolving a confrontation with the person with a mental illness?

III
Holdings:

1. No

2. Yes

3. Yes

4. Not as a matter of law

5. Yes

6. There could be; a factual question for the jury to decide

IV
Court’s Reasoning

Issue 1

1. The emergency aid exception to the fourth amendment allows for a warrantless search or seizure in a person’s home where the officers have an objectively reasonable basis to believe that a person is in need of emergency medical assistance and the search or seizure is conducted in a reasonable manner. Under the facts of this case, while officers are expected to air on the side of caution, nevertheless, the officers could reasonably believe that the plaintiff’s situation presented a genuine emergency and that entering as they did was a reasonable means of providing her with assistance. After all, the officers knew that the plaintiff was off her medication, was not taking care of herself, had acted in a threatening manner towards the social worker, and was viewed by the social worker as being gravely disabled and in need of temporary, involuntarily hospitalization to receive psychological evaluation and treatment. They also knocked and announced that they were police officers, used a pass key supplied by the social worker to let themselves in so that they could assess the situation, did not have their weapons drawn when they entered, and had no reason to believe that their entry would trigger a violent confrontation.

Issues 2-3

1. If the officers were acting under the emergency aid exception, they are required to carry out the search or seizure in a reasonable manner.

2. If the officers were acting under the exigent circumstances exception, they are required to use reasonable force.

3. No meaningful distinction exists between a search or seizure being conducted in a reasonable manner and the fourth amendment’s requirement that such as search and seizure be carried out without the use of excessive force.

4. Even where there is a lawful defensive use of deadly force, there can be an independent fourth amendment violation when the officers intentionally or recklessly provoke a violent confrontation through their actions.

5. A reasonable jury could find that it was not reasonable for the officers to force a second entry without taking the plaintiff’s mental illness into account and to do so in an apparent departure from police officer training.

6. The court was persuaded by the plaintiff’s arguments: once the officers exited her room and her door was shut, the threat to the safety of the officers or others was under control and there was no need to force a confrontation; all of the information known to the officers suggested that the plaintiff only wanted to be left alone in her home since she had shown no desire to leave her room; even though she had acted in a threatening manner, she was doing that only to those who had entered her home without permission; and the officers were also aware that the plaintiff, whom they knew to be both mentally ill and emotionally disturbed, was not likely to respond rationally to police officers breaking down her door.

7. The police training that officers receive is contrary to the actions of what the officer did with respect to the second entry.

Issue 4

1. Relevant case law is such that a competent police officer would have been on notice that it is unreasonable to forcibly enter the home of an armed person with mental illness who has been acting irrationally and has threatened anyone who entered when there was no objective need for immediate entry. Accordingly, the court could not say that as a matter of law qualified immunity for the officers existed.

Issue 5

1. While there is a split among the circuits, the Ninth Circuit agreed with the majority of circuits addressing the question (11th Cir., 4th Cir., 10th Cir., and 6th Cir.), that title II of the ADA does apply to arrests since title II of the ADA applies to services, programs or activities, which has been interpreted to encompass anything a public entity does.

Issue 6

1. There are two types of title II claims when it comes to arrests. First, wrongful arrest where someone is arrested because the police erroneously perceives the effects of the disability as criminal activity. Second, reasonable accommodation where that police failed to reasonably accommodate a person’s disability in the course of investigation or arrest thereby causing the person to suffer greater injury or indignity in that process than other arrestees.

2. The plaintiff asserted that the officers should’ve respected her comfort zone, engage in nonthreatening communication, and used the passage of time to diffuse the situation rather than precipitate a deadly confrontation. The court recognized that assertion and also acknowledged that the officers were forced to make split-second decisions. Even so, a reasonable jury could find that the situation had been diffused efficiently following the initial retreat from the plaintiff’s room so as to allow the officers an opportunity to wait for backup and to employ less confrontational tactics, such as the accommodations mentioned by the plaintiff in her assertions.

V
Takeaways:

1. This is not the first time that had I have blogged on police liability with respect to persons with disabilities. You can find other blog entries on the subject here, here, here, and here.

2. Police training is critical. In this case, the City was able to escape liability for fourth amendment violations because the city had proper training in place and in this situation, the officers did not carry out the training.

3. I’m inclined to agree with the Ninth Circuit, based upon the overwhelming case law that title II basically applies to everything that a public entity does, saying title II of the ADA does apply to arrests. Even so, that isn’t the end of the matter because of the nature of what it means for a policeman or policewoman to do his or her job. For example, we have discussed previously that one line of thought might be to suspend the ADA until the situation is under control. Once the situation is under control, then all the rules of the ADA apply.

4. As mentioned previously in our other blog entries noted above, failure to accommodate a person with a disability in the context of police work may in addition to allegations of violation of title II of the ADA may also lead to allegations of violating constitutional rights, such in this case the fourth amendment. Therefore, police forces need to be thoroughly acquainted with the provisions of title II of the ADA and, for that matter, title III of the ADA as well.

5. The Supreme Court has now granted certiorari in this case. Here are the two questions before it:

A. Does title II of the ADA require law enforcement officers to provide accommodation to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody?

B. Was it clearly established under the fourth amendment that a search could be unreasonable even where excigent circumstances existed?

Very interesting as to how the questions are phrased. If the first question had been phrased in terms of whether title II applies to arrests, that might lead to one conclusion. The fact that it is phrased the way it is suggest that we may be looking at the approach of suspending the ADA until the situation is under control. That said, predicting the Supreme Court in ADA matters, and most certainly in ADA matters outside of employment, is extraordinarily difficult, and I am not going to wade into those waters.

With respect to the second issue, that is clearly going to the qualified immunity piece and the § 1983 claims of the fourth amendment violation. That will come down to whether the Supreme Court views the relevant case law cited by the Ninth Circuit in the same way as the Ninth Circuit.