Changing Role of Expert in ADA Matters?

I
Intro

Prior to the amendments to the ADA, a person with a disability had to prove that they had a physical or mental impairment that substantially limited a major life activity. A person with a disability still has to prove that. However, before the amendments a person under Toyota Motor Manufacturing, Kentucky v. Williams had to show a physical or mental impairment that severely restricted or prevented a person from performing a major life activity. Further, if the person uses mitigating measures, then those mitigating measures per Sutton v. United Airlines had to be factored in as well. What that meant as a practical matter was that 90% of ADA litigation was over whether a person had a disability in the first place. It also meant utilization of expert testimony to figure out whether a person was severely restricted or prevented from performing a major life activity. It also meant utilization of an expert if the person was using mitigating measures to figure out whether that person even after mitigating measures was severely prevented or restricted from performing a major life activity. With the amendments, the need for this kind of expert becomes far less necessary, if at all, since in most cases it’s going to be pretty obvious whether a person is an individual with a disability. That said, might there be a need for another kind of expert? That is, an ADA compliance expert that would evaluate the case and then testify as to whether the practices were in or out of compliance with the ADA, it’s implementing regulations, etc.

Full Disclosure And Note about This Particular Blog Entry: My practice has for some time included such work. Also note, that when I use the term ADA compliance expert in this blog entry , I am in no way referring to myself, but rather I am using the term in the context of a person designated as such during the course of a case in litigation involving the ADA.

Utilizing an ADA compliance expert creates several questions. First, is such testimony even admissible? Second, does it matter if such testimony is not admissible? Third, assuming the testimony is admissible, can an attorney get expert witness fees back when they prevail in an ADA case?

I got the idea for this blog entry after reading (my thanks to the Wait a Second Blog, which you can find in my blog roll), the recent case from the U.S. Court of Appeals for the Second Circuit entitled Gortat v. Capala Brothers, Inc.. That case was not an ADA case at all, but rather a Fair Labor Standards Act case. In that case, the Second Circuit held that since expert witness fees are not specified in the Fair Labor Standards Act, expert witness fees are not recoverable. In light of my disclosure above, it made me wonder whether the same would apply to an ADA matter with respect to any testimony going to ADA compliance.

As is my usual practice, the blog entry has been divided into categories: Introduction; would the ADA compliance expert testimony be admissible?; the law; what if the ADA compliance expert testimony is not admissible?; can you get the fees back in an ADA matter assuming the testimony is admissible?; and takeaways. The reader is free to focus on any or all of the categories.

II
Would the ADA Compliance Expert Testimony Be Admissible?

A. The Law

The admission of expert testimony is within the discretion of the trial court and is properly admissible when it serves to assist the trier of fact in understanding the evidence or in determining a fact in issue. However, resolving doubtful questions of law is the distinct and exclusive province of the trial judge. U.S. v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993). Further, admitting expert testimony on contested issues of law is manifestly erroneous if the judge fails to instruct the jury on those points. Id. Other cases are phrased similarly. For example, one case when dealing with experts testifying as to the Americans with Disabilities Act Architectural Guidelines (ADAAG), said that although an expert may not provide testimony on an ultimate legal issue, that person may testify as to findings supporting the ultimate issue. Further, an expert may refer to the law in expressing an opinion without crossing the line into a legal conclusion providing that opinion contains underlying factual support. See Kalani v. Starbucks Corporation.

B. So, what does this mean in plain English?

1. The ADA is an incredibly complex law as we know from our blog. Therefore, the argument certainly exists that there are situations where an ADA compliance expert would serve to assist the trier of fact in understanding the evidence or in determining a fact in issue.

2. The testimony of an ADA compliance expert would need to be phrased in terms of compliance and not in terms of whether the ADA was violated.

3. The judge would have to instruct the jury on any matters testified to by the ADA compliance expert.

4. The matters testified to by the ADA compliance expert would need to be based upon underlying facts.

C. Due to the way the architectural guidelines are incorporated into the ADA, you certainly see and will continue to see a lot of ADA compliance experts in the area of whether the architectural guidelines were satisfied and which set of architectural guidelines apply.

D. Don’t forget about Daubert. That case holds that the methodology of the expert must make sense. I don’t believe this should be an issue with respect to architects and even attorneys testifying with respect to ADA compliance as their methodology is well known.

III

What if the ADA compliance expert testimony is not admissible?

If the ADA compliance expert testimony is not admissible (it isn’t a slam dunk that such testimony is admissible and especially so if §B is not observed), does it still makes sense to utilize a person to give such testimony? The answer to that question is twofold. First, in such a situation, a person may or may not be able to retrieve those fees as part of a settlement. Even so, if my experience is typical- which or may not be the case-, utilization of such a person in the litigation could well drive settlement regardless of whether the testimony is deemed ultimately admissible since the case is better understood by all parties.

IV

Can You Get the Fees Back in an ADA matter?

The answer to this question is yes regardless of whether title I, title II, or title III is involved. 42 U.S.C. § 12205, which applies to all three titles of the ADA, specifically allows for litigation expenses as part of the award should a party prevail. Further, legislative history clearly indicates Congress included the term litigation expenses in order to authorize the court to shift costs such as expert witness fees, travel expenses and the preparation of exhibits. See, Lovell v. Chandler. It is even more clear with respect to title II matters that expert witness fees would be recoverable as the remedies for title II, 42 USC § 12133, specifically references back to the Rehabilitation Act. Further, when you follow out that string with respect to the Rehabilitation Act, the remedies specifically and explicitly includes expert witness fees.

V
Takeaways:

1. Expert testimony going to whether the person has a physical or mental impairment or whether they are substantially limited in a major life activity with or without mitigating measures would seem to be, except in the rarest of cases, no longer necessary in light of the amendments to the ADA, but that is not to say testimony isn’t needed with respect to substantiating the disability of the individual. This is a huge change from the situation before the amendments to the ADA.

2. Considering the way the ADAAG is woven into the ADA itself, certainly expect lots of expert testimony from architects and people specializing in architectural compliance vis a vis the ADA with regards to whether those guidelines are satisfied.

3. An argument exist, though is it is not a slam dunk, that utilizing an ADA compliance expert with respect to practices may be admissible as it could assist the trier of fact in understanding the evidence or in determining a fact in issue.

4. Regardless of whether the ADA compliance testimony pertains to § V2 or § V3 of this blog entry, such testimony has to be phrased in terms of compliance with the ADA and not in terms of violations of the ADA and also needs to be based upon the facts of the case. Further, there would have to be jury instructions with respect to the issue the testimony covered.

Can Employees Trust Human Resources? Maybe That’s Not the Right Question? Timing of Reasonable Accommodation Request and Causation under the ADA and the Rehabilitation Act Are Not the Same

Robin Shea’s latest blog entry, which can be found here. Discusses some of the things people say about HR, including: “HR protect the company’s interests, not yours;” “if you go to HR, HR reports the complaint back to the manager and then you are labeled a malcontent;” “I have yet to see a human resource office show any compassion or follow up on anything;” “Typically the director of HR is lazy and incompetent;” “HR doesn’t give a hoot about the employees;” and “if I were having a problem at work, the last place I would go is HR.” Of course, being in practice as long as I have been, I have a couple of my own that I have heard: “HR is mean, nasty and vindictive;” “HR people think they are lawyers when they are not;” “HR thinks it knows the law better than lawyers;” and “HR are just hatchet folks.”

I don’t think the question of whether employees can trust human resources is the right question. Rather, the question should be whether employees can trust human resources to do the right thing? It is a completely different question. That is, as Robin points out in her blog entry, HR works for the company and not for the employees. Of course, that means HR is representing the company’s interest. However, that doesn’t mean that representing the company’s interest involves not doing the right thing, which can mean advocating that an employee’s request be dealt with the way it should be; a point Robin makes at the end of her blog entry referenced above. It is also a key point of this week’s blog entry as well.

Today’s case is such a case where the HR person did the right thing, and as a result, was specifically lauded many times in an opinion for doing so. Our case is Van Drasek v. Burwell. The case is also useful for discussing the timing of accommodation requests and for seeing the difference in causation between the ADA and the Rehabilitation Act. As is typical, I have divided the blog entry into categories: facts; more facts and HR does the right thing; court’s reasoning on failure to accommodate; court’s reasoning on intentional discrimination and retaliation; and takeaways. The reader is free to focus on any or all of the categories.

I
Facts:

Plaintiff was diagnosed with a type of bipolar disorder that produces symptoms such as depression and anxiety that substantially limits many major life activities including sleeping, thinking, concentrating, processing information, impulse control, and cognitive abilities. Even so, plaintiff enjoyed a long and successful career as a chemist with accomplishments in the field, including a graduate degree in geochemistry, six publications, as well as awards and commendations for her performance. She also worked for eight years at the United States Department of Agriculture where she consistently received fully successful performance ratings. She left her post at the United States Department of Agriculture only because the particular position she held was capped at a lower salary and performance level, which meant that she had no room for promotion. In April 2008, she began working as a chemist for the FDA. She did not inform anyone at the FDA of her bipolar condition diagnosis nor did she request any accommodations at the time she began work there. By August 2009, she was having difficulty at work and sought private medical attention. She did not share with anyone at the FDA that she was seeking and receiving medical attention for her previously diagnosed bipolar disorder. In April 2010, her immediate supervisor issued a performance improvement plan, a document advising her that her on-the-job performance was unacceptable and she had 75 day to improve her work. The plan stated that her performance failed to meet minimally acceptable levels in that she failed to demonstrate technical knowledge and competency in her field and that she failed in program and project management and performance given repeated deficiencies in her analysis. It also said that the plaintiff did not seek guidance or was not capable recognizing when she needed assistance and repeatedly failed to meet deadlines. Finally, the plan described what she needed to do in order to bring her performance up to minimally successful standards and gave her 75 day to improve. It also noted that failure to improve could lead to demotion or removal. More than 180 days after receiving the document, the plaintiff contacted her treating physician and asked her to fill out a family medical leave act form, which the physician did. However, the plaintiff did not give the form to her supervisor or anyone else at the FDA prior to being contacted by her supervisor once again regarding her performance. Six months after the plan was issued, her supervisor informed the plaintiff that she still had not improved and that she was recommending her removal. Four days later, the plaintiff notified her supervisor that she had a disability, that she was in the process of getting her FMLA paperwork together, and that she was requesting accommodations. She followed up a week later by submitting the FMLA paperwork and then hired an attorney to write a letter asking that issues involving the proposed removal and the request for accommodation be addressed. Over the next few weeks, plaintiff’s attorney contacted the FDA’s reasonable accommodation specialist to ascertain the agency’s process for requesting accommodations. She thereafter submitted a formal written request for accommodation, including a letter from her physician detailing the symptoms of her disability and its effect on her job performance. That letter noted her disability and said when the anxiety becomes extreme, it could be exceedingly difficult for the plaintiff to hear and understand instructions, to remember instructions, to comprehend instructions, and to follow instructions. The letter also recommended three specific accommodations including: written instructions for assignment; additional time to complete tasks; and reassignment to a different position. In December, the plaintiff submitted a formal written response to her proposed removal in which she sought to explain why a current work environment was causing her anxiety thereby aggravating her symptoms. In particular, she claimed that another chemist in her workgroup had created an intimidating and dismaying environment by yelling and cursing at the plaintiff, responding in a very sarcastic fashion to her questions, and providing unwarranted criticism of her work. She further alleged that she and others had complained about that person’s behavior to other people in the agency but that no one ever took action.

II
More Facts: HR Does the Right Thing

Once the plaintiff submitted a request for accommodation, Saundra Anderson, the FDA’s reasonable accommodation specialist, informed the plaintiff’s supervisor that she had an obligation to notify the plaintiff of the agency’s eventual decision and a duty to engage in an interactive dialogue with the plaintiff regarding the requested accommodation. When the plaintiff’s supervisor expressed hesitation saying that the FDA did not need to accommodate because her proposed removal happened before the agency was even aware of her disability and before the accommodation request was made, the reasonable accommodation specialist responded by explaining an employee can request accommodations at any time and the agency must respond. After the FDA assigned an agency physician to evaluate the case, that physician wound up agreeing written instructions and extra time were appropriate accommodations, but did not recommend reassignment saying insufficient information existed to act on that recommendation. Neither that physician nor the plaintiff’s supervisor reached out to the plaintiff or the plaintiff’s physician to seek additional information about the reassignment request. The FDA’s physician report was forwarded to the plaintiff’s supervisor in January 2011 along with the statement from the FDA’s reasonable accommodation specialist saying that the plaintiff’s supervisor was required to respond to the accommodation request within 15 days. Even so, plaintiff’s supervisor failed to meet that deadline, and some 75 days later informed the reasonable accommodation specialist that she would not be accommodating the plaintiff. When the reasonable accommodation specialist suggested that reassignment should be offered to the plaintiff, plaintiff’s supervisor allegedly made disparaging remarks to two other FDA employees about how the reasonable accommodation specialist didn’t get it. In addition, when the reasonable accommodation specialist and others in the FDA’s human resource department told plaintiff’s supervisor that reassignment paperwork for the plaintiff was being processed, plaintiff’s supervisor wrote email to other FDA employees stating she needed to go full steam ahead and get the removal decision issued before the reasonable accommodation specialist did too much work, and that she didn’t think she could prevent the reasonable accommodation specialist from reassigning the plaintiff unless she removed the plaintiff first. On April 18 of 2011, the plaintiff’s supervisor formally denied the plaintiff request for accommodation and discharged her from federal service effective April 22, 2011 after stating that there was no position in the office or division to which she could be reassigned. Since the plaintiff was a federal employee, the ADA was not involved, and she brought suit under the Rehabilitation Act alleging failure to accommodate a disability; intentional discrimination because of her disabilities; and retaliation for requesting or seeking accommodations.

III
Court’s Reasoning on Failure to Accommodate or The reasonable accommodation specialist for President?

In denying the motion for summary judgment by both the plaintiff and the defendant on the failure to accommodate claim, the court reasoned as followed:

1. It is absolutely true that the plaintiff requested accommodations literally on the eve of her proposed dismissal. However, a request for accommodation of a disability is timely if the employer is in a position to respond to the request. So, while it is true that the plaintiff did not disclose her disability or request accommodations until months after her supervisor had warned her about her job performance and the consequences of failing to improve, nevertheless, the plaintiff did disclose her disability and sought various work-related accommodation before she was removed from her position.

2. EEOC guidance notes that the employer must make reasonable accommodations to enable the employee to succeed going forward and also notes that there is no deadline by which an employee must request an accommodation.

3. Office of Personnel Management regulations further require that an employee for whom removal has been proposed has the right to provide a written response, including providing any medical records, which the employer must consider before issuing a final decision on the proposed employment action. Further, Office of Personnel Management regulations specifically instruct that the agency allow an employee wishing to raise a medical condition that may have contributed to his or her unacceptable performance to furnish medical documentation. Also, while the preference is that employees submit such medical documentation before a proposed removal, the regulations make clear that the agency must still consider the documentation if it is not submitted until after the proposed removal has been suggested. Further, the regulations say that the agency is deemed to be aware of the reasonable accommodation duty where the employee offers medical documentation after the agency has proposed a reduction in grade or removal.

4. In short, where an employer still in a position to respond to request for accommodations because the requester is still employed, such request is timely and the employer has to consider it.

5. If you are the reasonable accommodation specialist, how would you feel if you read a court opinion that said this:

“Here, Von Drasek requested accommodation prior to being removed, and as it turned out, the FDA’s human resources specialist also specifically noted that the agency did, in fact, have a duty to attempt to honor this tardy request. This court finds that the specialist was right: Von Drasek’s request was timely, and thus, the FDA’s contention that it had no obligation to consider Von Drasek’s request for accommodations under the circumstances presented here is unavailing.”

Congratulations to Saundra Anderson. She gets what it means to be in HR. it is not whether the employees trust you in HR, but whether you can be trusted to do the right thing when the law demands such action. That is, she knew the statute and its implementing regulations and insisted that they be followed. Further, she didn’t back down when personnel did not want to do the right thing.

6. A question of fact existed as to whether the plaintiff could perform the essential functions of the employment position to which she sought reassignment to since she had a great track record prior to taking on the FDA position and she had a medical opinion stating that the particular environment at the FDA created an extremely problematic situation in light of her disability.

IV
Court’s reasoning on Intentional Discrimination and Retaliation

1. The intentional discrimination claim fails because under the Rehabilitation Act the applicable causation analysis is but for causation. That is, the Rehabilitation Act demands such a conclusion because the operative term is, “solely by reason of her or his disability.” Accordingly, motivating factor is not a proper consideration in Rehabilitation Act claims.

A. The ADA standard of causation is a lower standard than under the Rehabilitation Act because the word “solely,” does not appear in that Act when describing causation (doing the math: In title I and title III it is “on the basis of disability,” while in title II, it is, “by reason of disability.”)

B. A discrimination OR a retaliation claim brought under the ADA can rest on a motivating factor due to the difference in causation standards.

2. While it is true that the record clearly establishes that plaintiff’s supervisor personally disliked the plaintiff and wanted to have her removed, it also confirmed that the plaintiff’s supervisor had determined to set out on the path of firing her long before the plaintiff had revealed a disability to the FDA. Accordingly, it is impossible to say that the termination was solely by reason of disability and no reasonable jury could find otherwise.

3. The record is quite clear that the plaintiff was removed because of her past job performance and the FDA’s belief that she would not be able to satisfy the job requirements in the future and not because she requested an accommodation. Therefore, the retaliation claim for requesting an accommodation fails.

V
Takeaways:

1. It isn’t a matter of whether employees trust HR. They shouldn’t. HR works for the company. However, employees and the company have a right to expect that HR will do the right thing when it comes to ensuring that the company carries out labor and employment laws in the manner demanded by the applicable laws and regulations. That includes stepping up to the plate even when faced with resistance from personnel. It certainly would not have been an easy thing for the reasonable accommodation specialist to have acted in the way that she did, and you have to take your hat off to her. One wonders why legal counsel didn’t get involved at the point where there was clearly a dispute between the reasonable accommodation specialist and the plaintiff’s supervisor. Regardless, the reasonable accommodation technical specialist did the right thing.

2. It is pretty clear now that causation under the ADA is a lower standard than causation under the Rehabilitation Act. Nevertheless, especially when it comes to title III matters, it still may be useful to allege a Rehabilitation Act claim so as to open up the possibility of getting damages providing a showing of deliberate indifference can be made (admittedly a high standard, which we discussed here in this blog entry, but at least the possibility of damages exists, which is not allowed under title III of the ADA).

3. If you are an employer and have recommended termination of an employee, you still have the obligation to engage in the interactive process discussing reasonable accommodations regardless of when the employee makes the reasonable accommodation request. Also, be careful about rushing the employee out the door to avoid the strictures of this case as that may be indicative of not sufficiently engaging in the interactive process.

4. There is an interesting thing going on about what solely by reason means with respect to Rehabilitation Act claims. Does it mean “but for,” causation? Yes, it probably does, but that doesn’t answer the question because you could have more than one but for cause (see this case for example discussing this point, which I discussed in this blog entry). You see this all the time in tort law where if there is more than one but for cause, courts will go to a substantial factor test. On the other hand, the Rehabilitation Act does specifically say that causation must be, “solely by reason of disability.” Accordingly, an argument exists that Rehabilitation Act claims are something even beyond “but for,” causation and are “sole cause,” claims.

5. This court said that discrimination or a retaliation claim can be brought under the ADA using a motivating factor analysis with respect to causation. We have discussed this one before. I completely agree that with respect to a straight disability discrimination claim, motivating factor is in play, but it is a much harder case to make that it is in play with respect to retaliation claims. See this blog entry of mine.

6. On the plaintiff’s side, there can be real advantages to hiring an attorney early as the plaintiff did in this case even if that probably means paying the attorney hourly for that work.

7. When it comes to reassignment as a reasonable accommodation, the question is whether the person can do the job that she or he would be reassigned to with or without reasonable accommodations and not whether the person could do the job that he or she currently holds with or without reasonable accommodations (if things have gotten to this point, the answer to the latter question is obviously that they can’t).

8. When HR people step up and do the right thing, employers should reward them for doing so.

Failure to Promote, Failure to Accommodate, Retaliation, and Breach of Confidentiality As ADA Causes of Action

Hope everyone had a great weekend. The deadline for submitting my blog for the ABA top 100 legal blawgs expired last night. A few have let me know that they have nominated me. Also, I know from last year that it is entirely possible that someone nominated me without letting me know. In either event, your support is very much appreciated. Even if you didn’t nominate me but love to read my blog, your support is appreciated there as well. If memory serves, it won’t be until about December that I find out whether we made it again. Of course, I will keep everyone posted.

Today’s case concerns a variety of causes of action that might arise with respect to the ADA including: failure to promote, retaliation, and breach of confidentiality. The case is Gascard v. Franklin Pierce University, which can be found here (it appears to be an unpublished decision since only a Lexis cite is available). As is typical with my blog entries, I have divided the blog entry into several categories: facts, court’s reasoning (failure to accommodate); court’s reasoning (failure to promote); court’s reasoning (breach of confidentiality); court’s reasoning (retaliation); where was the FMLA claim?; Miscellaneous (individual liability); and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

Plaintiff was a professor of art history at the University and its sole art historian since 1997 as well as the director of the University’s art galleries in 1998. In late 2011, she took 2 1/2 months of short-term disability leave due to situational stress, but returned to teaching in early 2012. Later that year, in October, she applied for the position of coordinator for the Department of fine arts, a position which she was completely qualified for. Nevertheless, the University gave the post to one of her colleagues, a man under the age of 40 who had worked there only since 2010. Shortly after that, she provided her immediate supervisor with a note from a physician stating that because of stress-related factors, she was restricting the plaintiff from meeting attendance and assemblies. In response to that request, the University gave her permission only to leave meetings if she felt symptoms of situational stress, an arrangement which her physician found precarious. In February 2013, she filed a charge of disability discrimination against the University with the EEOC. Later that month, she was the sole volunteer to offer her services to a committee of long trusted colleagues (general liberal education committee), but was without discussion denied that position. The position was awarded to a male colleague that had not volunteered with the explanation that he needed more committee work. A few months later, the plaintiff received a performance review where her requirement for more service to the University was pointedly indicated. The plaintiff also alleged that after she had charged the University through the EEOC, it disseminated personal and sensitive material to a colleague in a position statement to the EEOC charge. In October 2014, she began a period of FMLA leave and returned to work in mid December 2014. On January 13, 2015, the Dean of the University informed her that she would no longer coordinator of the art gallery since she had given that responsibility to another faculty member while she was on leave. While the plaintiff acknowledged that she had been scheduled to take a sabbatical during the spring semester, the semester had yet to start at the time Dean announced that she had been relieved the responsibilities over the gallery. Further, the Dean had also suggested to her that her responsibilities would not be returned to her even after she returned from the sabbatical. She filed a pro se complaint alleging the following causes of action with respect to the ADA: failure to accommodate, failure to promote, retaliation, and breach of confidentiality. The defense moved to dismiss.

II
Court’s Reasoning (Failure to Accommodate Claim)

1. To make out a reasonable accommodation claim, a plaintiff has to show: that she is a person with a disability as defined by the ADA; that she is an otherwise qualified individual (the ADA uses the term, “qualified” now while the Rehabilitation Act continues to use the term, “otherwise qualified.” The two terms are identical in their meaning); and that the defendant knew of her disability and did not reasonably accommodate it.

2. A factual question existed as to whether the University’s claim that they allowed her either to participate by phone or to leave meetings as necessary to avoid symptoms of situational stress was a reasonable accommodation because: her physician deemed it precarious; she informed the defendants that the accommodation did not prevent the bullying at the meetings from continuing to exacerbate her stress; and other faculty members had been given a blanket waiver from attending meetings altogether.

III
Court’s Reasoning (Failure to Promote Claim)

1. To make out a claim for failure to promote, a plaintiff has to show: she is a member of a protected class; she was qualified for an open position; she was denied the position; and the position was given to someone with similar or inferior qualifications.

2. The defendants more or less acknowledged that the complaint alleges these facts as to the department coordinator role because they admitted that the plaintiff had a disability and recognized in their objections that the complaint had made allegations going to the other requirements. Finally, it is not necessary to plead facts sufficient to establish a prima facie case at the pleading stage.

IV
Court’s Reasoning (Breach of Confidentiality)

1. It is not necessary when it comes to disclosure of certain employee medical information that the disclosure be done in furtherance of some act of disability discrimination because the ADA sets forth independent prohibitions on disability-based job discrimination, including failure to accommodate and separately, the disclosure of certain employee medical information.

2. While the majority of cases have held that in order to recover for a violation of the ADA’s confidentiality provisions an employee must show actual damages (emotional, pecuniary, or otherwise), the court did not need to decide whether that requirement applied because even if the requirement did apply, the plaintiff had at this stage of the litigation alleged sufficient facts. That is, her complaint alleged that she suffered emotional distress, humiliation, and anguish and linked that to the alleged disclosure of her medical information to her colleague.

V
Court’s Reasoning (Retaliation)

1. To make out a case for retaliation, the plaintiff has to show: she engaged in protected conduct; she suffered an adverse employment action; and a causal nexus exists between the protected conduct and the adverse action.

2. Due to the timing of the adverse actions and the EEOC charges, the retaliation claim was certainly plausible.

3. The Supreme Court has held that to prevail on a retaliation claim, the plaintiff only has to show that a reasonable employee would have found the challenged action materially adverse. That is, might it well have dissuaded a reasonable worker from making or supporting a charge of discrimination. Accordingly, since this is the proper standard for retaliation claims, the allegations in the complaint were such that it is certainly plausible a reasonable worker would have found the employer’s actions materially adverse in the sense they might well have dissuaded her from making or supporting a charge of discrimination.

VI
I Bet You Were Wondering Where the FMLA Claim Was

The FMLA has its own rules with respect to a person who goes out on leave to attend to a serious health condition. If that person qualifies for FMLA leave, FMLA requires that upon return from that leave the person be restored to that job or an equivalent job. The facts here are such that such a claim would seem to be supported. The plaintiff did move to amend her complaint to add the FMLA claim, and the court granted it saying that the amendments were not the result of undue delay (she filed a motion to supplement her complaint less than two weeks later after being relieved of her responsibilities of gallery coordinator), nor would such amendment be futile because the supporting facts if taken as true, are plausible on their face.

VII
Miscellaneous (Individual Liability)

The court also threw out the individual liability claims as none of the applicable statutes allowed for individual liability.

VIII
Takeaways:

1. The ADA is a complex law and it constantly bounces into other laws as readers know very well. Knowledgeable legal counsel is always helpful when it comes to traversing the ADA and related laws. One wonders why knowledgeable legal counsel was not consulted, at least it appears that way. The type of problems that arose here would have been the kinds of problems that a knowledgeable employment lawyer would have been able to deal with long before reaching the litigation stage.

2. There are situations where you could comply with the ADA but violate the FMLA and vice a versa. Again, knowledgeable counsel is helpful. Also, this case argues for staff training by knowledgeable trainers.

3. This case is excellent for understanding how to make out various claims including: failure to accommodate; failure to promote; retaliation; and to a lesser extent, breach of confidentiality.

4. An adverse action for purposes of employment discrimination has a different meaning than an adverse action for purposes of retaliation claims; the standard for retaliation claims is far lower.

5. The case law is overwhelming that individual liability does not happen with respect to ADA claims.

6. Pro se claims must be taken seriously (I am not saying they weren’t in this case, but am making a general point).

7. An act of disability discrimination is not required with respect to a breach of confidentiality claim per the requirements of the ADA.