Can You Get Compensatory and Punitive Damages in Title II ADA Retaliation Claims

Previously, I have written on whether you can get compensatory and punitive damages in ADA retaliation claims. That particular blog entry despite its title was restricted to title I claims of the ADA. That is, claims arising from employment. But what about title II claims of the ADA. That is, a retaliation claim arising from a situation where a governmental entity retaliates against someone who is advocating for the governmental entity to do the right thing so to speak for a person with a disability. As we are about to find out, you wind up with a different answer with respect to whether compensatory damages are available for retaliation claims based on title II of the ADA , though, for different reasons, you do wind up with the same answer that punitive damages are not available for retaliation claims based on title II of the ADA. As is typical with my blog entries, this particular blog entry is divided into three sections: facts, court’s reasoning, and takeaways. The reader is free to concentrate on any or all of the sections, though considering that this blog entry is on the short side for my blog entries, you will probably wind up reading all of it:-)

I
Facts

You might ask how might you see a retaliation claim in the context of title II. Lee v. Natomas Unified School District, 2015 U.S. Dist. LEXIS 24253 (E.D. Cal. February 27, 2015), is such a case. In that case, the plaintiff had a child that was found through a psycho-educational assessment to have a disability falling along the autism spectrum. The plaintiff was not at all happy with that determination. After that, the plaintiff became quite aggressive with trying to get the school district to change the classification. The school district took umbrage at the plaintiff’s efforts, including ultimately seeking a series of injunctions that would have effectively barred him from the school’s campus. The plaintiff files a retaliation claim alleging violations of § 504 the Rehabilitation Act and title II of the ADA.

II
Court’s Reasoning

There is a section of the opinion talking about how do you make a prima facie case out with respect to retaliation claims, and I commend that to your reading. However, for our purposes I want to focus on the damages section of the case. With respect to the damages section of the case, in finding that compensatory damages but not punitive damages are allowed for retaliation claims under title II of the ADA, the court reasoned as follows:

1. Since remedies for violations of title II of the ADA and § 504 of the Rehabilitation Act are coextensive with each other and link to title VI of the Civil Rights Act of 1964, the ADA and the Rehabilitation Act remedies must be construed in the same manner applicable to remedies under title VI of the Civil Rights Act.

2. The ADA does have a retaliation provision. With respect to title II of the ADA, the remedies for retaliation link back to 42 U.S.C. § 12133. The remedies available under that section are coextensive with the remedies available in a private cause of action brought under title VI of the Civil Rights Act of 1964, which includes monetary damages.

3. Barnes v. Gorman, 536 U.S. 181 (2002), holds that when it comes to a private cause of action brought under title II of the ADA and § 504 of the Rehabilitation Act, only compensatory damages are allowed and not punitives because the remedies involving title VI of the Civil Rights Act are inherently contractual in nature and punitive damages are not allowed for breach of contract.

III
Takeaways:

1. This case illustrates that there is a very important difference with respect to damages for retaliation claims depending upon the title of the ADA that is involved. As mentioned previously in the blog entry discussing compensatory and punitive damages with respect to a title I claims, title I retaliation claims relate back to 42 U.S.C. § 12117. If you play the string out in terms of where it leads, you wind up with the argument that compensatory and punitive damages are not available for retaliation claims under title I. As also mentioned in that blog entry, a contrary argument can be constructed. However, with title II retaliation claims, 42 U.S.C. §12203(c) specifically relates back to 42 U.S.C. § 12133, which if you follow that string out, takes you into title VI of the Civil Rights Act, which does allow, per case law, for compensatory damages.

2. Punitive damages are out for title II retaliation claims per Barnes v. Gorman, mentioned above.

Service dogs: you may be surprised how much there is to think about

Back from vacation and so it is time to get another blog entry up.

I have written about service dogs before (they are in reverse chronological order here, here, and here).

When it comes to service dogs, there may be a lot more to think about than what first appears. the case of Alboniga v. School Board of Broward County Florida from the Southern District of Florida is such a case. As is my usual practice, I have divided the entry into categories: facts; issues; holdings; court’s reasoning; and takeaways. The reader, as always, is free to focus on any or all of the categories.

I
Facts

The child in this case is a six-year-old child with multiple disabilities who has cerebral palsy, spastic quadreparesis, a seizure disorder, is nonverbal, and is confined to a wheelchair. He needs care and support for all aspects of daily living and education. He attends public schools and has an IEP. Plaintiff then gets a trained service dog that meets all applicable standards for the purpose of meeting the child needs with respect to his seizures. The service dog performs very specific functions with respect to helping the child deal with his seizures. The service dog also has a special vest carrying pertinent medical supplies and information important for the care of the child in the event of an emergency. When the plaintiff asked the school board for the ability to have her child be accompanied to school with a service dog, the school requested information regarding liability insurance for the service animal and information about vaccinations of the service dog neither of which the plaintiff furnished. The vaccinations required by the school board mirrored those applicable to dog breeders with respect to ensuring the health of a dog before its sale but exceeded those related to the regulation of animals permitted in schools under Florida statute. Subsequently, the school board sent a letter requesting the additional vaccination information as well as proof of liability insurance in an amount to be determined by the school board’s risk management office. It then also required that the plaintiff provide a handler for the dog. The plaintiff did serve as the handler for the dog for four months and was not paid for doing so nor did she assist school staff with any activities regarding the child in the classroom. At the end of those four months, the school board provided a handler for the service dog. The responsibilities of the handler were to walk the dog with the leash instead of allowing the dog to be attached to the child’s wheelchair, take the dog outside of the school premises to urinate, and to ensure that other people do not approach pet or play with the dog while he is working as a service dog. The handler did not have any duties regarding the child’s education or care. At all times while at home and in other public places, the dog is tethered to the child. Finally, the plaintiff submitted declarations, which were not disputed by the defendant, that the dog and the child form a service dog team. Therefore, separation of the service animal from the target member of the team is detrimental and diminishes the animal’s responsiveness and effectiveness. Neither the child’s healthcare plan, his IEP, or his section 504 plan mentioned anything about service dogs. The plaintiff brought suit to allow the service dog in the school: without having to pay for additional liability insurance and additional vaccinations; without having to provide an additional handler; and to accommodate the child by walking his service dog when necessary.

II
Issues

1. Was it necessary for the plaintiff to exhaust the IDEA process first prior to bringing suit alleging violations of the ADA and § 504 of the Rehabilitation Act?

2. Since the school board has always allowed the child to attend school with the service animal, is the case moot?

3. Are the relevant implementing regulations pertaining to service dogs permissible and entitled to deference?

4. Are the insurance and vaccination requirements a surcharge in violation of the ADA?

5. Must the child have a handler excluding the child himself in order to be consistent with the Department of Justice regulations?

6. Was what the school’s handler was doing care and supervision under the Department of Justice regulations, which require that care and supervision be done by the person using the service dog?

III
Holdings:

1. No

2. No

3. Yes

4. Yes

5. No

6. No

IV
Court’s Reasoning:

1. With respect to service dogs, I have previously written on whether exhaustion of IDEA is required before bringing suit with respect to allowing a service dog in the schools. As I mentioned there, there are two views on this. That is, one view says the parent does not have to exhaust remedies, while the other view says that they do. Judging from my research on Westlaw, the minority view is represented by Sullivan by and through Sullivan v. Vallejo City Unified School District, 731 F. Supp. 947 (E.D. Cal. 1990). In that case, the Eastern District of California held that whether the child could have a service dog with him or her in the school had nothing to do with the child’s IEP since the child was happy with that plan. Rather, this was a substantive question arising under § 504 of the Rehabilitation Act. In fact, IDEA doesn’t have anything to do with whether a court could mandate a service dog on a school district regardless of whether that service dog was educationally necessary. The majority view, represented by Cave v. East Meadow Union Free School District , 514 F.3d 240 (2d Cir. 2008), is that if the child has an IEP, then the remedy clause mentioned above applies if the situation is related to or has an impact on the IEP. The fact that relief may be sought that is different than what can be obtained under IDEA is of no matter.

The Southern District of Florida in this case opts for Sullivan and indeed cites to that decision. In particular, the court notes that the plaintiff is not claiming a denial of a free appropriate public education and that IDEA and its administrative scheme are simply not implicated by the kind of claims made in this case.

2. The court found that the case was not moot because when a party abandons a challenged practice freely, the case only becomes moot only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. That in turn depends upon the analysis of three different factors: whether the termination of the offending conduct was unambiguous; whether the change in government policy or conduct appears to be the result of substantial deliberation, or simply an attempt to manipulate jurisdiction; and whether the government has consistently applied a new policy or adhered to a new course of conduct. Applying those factors, the court found that the elements of the case being moot were not satisfied because a change in government conduct by administrative fiat in violation of its own rules cannot constitute unambiguous or consistent termination of the claimed improper conduct. Further, it wasn’t clear that the conduct wouldn’t start all over again once the threat of the lawsuit was removed.

3. The regulations were a permissible construction of the statute and entitled to deference under Chevron because:

A. The regulations were reasonable in light of the language, policies, and legislative history of the statute;

B. The regulation, which honored the choice of an individual with a disability to be accompanied by a service animal in all aspects of community life-including schools- promotes the ADA’s ultimate aim of ensuring equal opportunity for, and full participation by, individuals with disabilities in all aspects of civil life. In particular, the regulations carry out congressional direction that the ADA goes beyond prohibiting outright discrimination to require modification to existing facilities and practices in order to accommodate individuals with disabilities;

C. The legislative history of the ADA confirmed that DOJ regulations are consistent with congressional intent;

D. Over the years, there has been extensive judicial support, both before and after the DOJ added specific service animal provisions to title II regulations, for the principle that the ADA generally requires public entities to permit individuals with disabilities to be accompanied by their service animals;

E. The DOJ regulations also contain exceptions so as to not make mandatory the inclusion of service animals in all circumstances. That is, the DOJ regulations set forth certain circumstances where it is not reasonable to allow the service animal. The fact that such exceptions exist is another indicator that the regulations are reasonable.

4. The school board’s requirement that plaintiff maintain liability insurance for the service animal and procure vaccinations above and beyond the requirements under Florida law, are surcharges because the policy in effect amounts to an extra upfront charge to the plaintiff in order for the child to use his service dog. Further, the insurance costs are in excess of what other students are required to spend in order to attend school. Finally, the vaccinations, as mentioned above, exceed what is ordinarily required under Florida law regarding the regulations of animals permitted in schools.

5. The court had several reasons for holding that the child did not need to have a handler (excluding the child himself), in order to be consistent with the Department of Justice regulations:

A. Permitting a person with a disability to use a service animal is generally reasonable;

B. A public entity is not permitted to survey the universe of reasonable modification to determine what is in the best interest of the person with a disability since it is persons with disabilities that typically have the most accurate knowledge about the functional limitations imposed by the disability and the individual is not obligated to accept an alternative accommodation suggested by the provider if he or she believes it will not meet his or her needs and the preferred accommodation is reasonable;

E. A public entity cannot dictate the type of services a person with a disability needs in contravention of that person’s own decisions regarding his own life and care;

F. It was not disputed that separating the child from the service animal during the school day has a detrimental effect on the child-service animal bond and diminishes the animal’s responsiveness and effectiveness outside of the school setting;

G. It is not a reasonable accommodation for the public entity to act as the handler for the service animal. However, if one looks at the handler regulation as a whole, it is clear that tethering a service animal to a wheelchair of a person with a disability constitutes control over the animal by the person with a disability and therefore, that person with a disability is acting as the service animal’s handler. Accordingly, the child is the handler for purposes of the DOJ regulations, and therefore, it is perfectly reasonable to allow the service animal to be tethered to the child.

6. The school was not being asked to engage in care or supervision of the service animal since under the DOJ guidance to the revised ADA regulations, care and supervision means routine animal care such as feeding, watering, water washing the animal. Case law is similar. For example, the court cited to a Montana case where the Montana Supreme Court said that caring for a service animal means looking after the service animal in the owner’s absence, which is not the case here. Finally, the court makes a very important distinction that the school board is not being asked to accommodate or care for the dog, rather the school board is being asked to help the child as a reasonable accommodation to provide an employee to walk the dog when necessary so that the dog could relieve himself. In that way, it is no different than a school assisting a diabetic child with her insulin pump,
assisting a child with disabilities in employing her motorized wheelchair, or assisting a child with vision impairments to help her deploy her white cane, or assisting that same child with her seeing-eye dog.

V
Takeaways

1. I look for this case to be appealed to the 11th Circuit if for no other reason because there is a split of authority on just when IDEA remedies need to be exhausted when it comes to the issue of a service animal accompanying a child into the schools. I do find it interesting that the court does not mention the majority view on this subject in its opinion. The case law surrounding exhaustion of IDEA remedies creates an interesting situation. That is, generally the rule of thumb is for an IEP to be comprehensive and include everything that is possible to include in it. However, in light of the case law, if you’re on the plaintiff’s side and faced with a service dog issue, it may make a great deal of sense to demand the service dog a company the child to school but also fight against the service dog being included in the IEP so as to maximize your remedies later. On the defense side, it may make sense to encourage the inclusion of the service dog in the IEP. If the person does not have an IEP but does have a § 504 plan, it probably doesn’t matter if the § 504 plan contains a reference to the service dog or not.

2. Just because you allow the plaintiff to get some of what they want that does not make the case moot necessarily, especially if the plaintiff is only getting some of what they want. On the defense side, you would want to make sure that the entire system moves in the direction it needs to move in and for the right reason. On the plaintiff side, you want to keep a lookout to see if a person is going at it alone or if the conduct is otherwise violating school policy, even if that policy itself is discriminatory.

3. Considering what we have discussed before regarding whether the service dog regulations would withstand a challenge, it isn’t surprising that the DOJ regulations were found by the court to be permissible and entitled to Chevron deference.

4. Be sure to remember that when it comes to the ADA, regardless of title, surcharges are not appropriate.

5. The term handler is being construed by this court in a way that maximizes the independence of a person with a disability, which is the goal of the ADA in the first place.

6. The court makes a very important distinction between accommodating the service animal v. accommodating the child himself. That is, since the child and the service animal are a team, it is the principal of that team that the accommodation relates back to. Further, care and supervision is being interpreted in a broad sense.

transvestism, transsexualism, gender identity disorders and ADA; True-False version

First, a housekeeping matter. I will be away next week, and so the next blog you will see after this week, unless I somehow blog later in the week, will be two weeks from today. Recently, the constitutionality of the transvestism exclusion in the ADA has been in the news.

True or False:

1. If a person has a disability and is a transvestite, transgender, or a person with a gender disorder not resulting from physical impairments, the ADA can’t be used regardless of what the disability is.

2. Proving that the transvestism, transsexualism, gender identity disorder, etc. exclusion is unconstitutional will be extraordinarily difficult if not virtually impossible.

Answers: The answers are my own opinion based on the law as it stands currently and no personal opinion is meant.

1. False

2. True

Reason for Answers:

1. 42 U.S.C. § 12211(b) specifically has an exclusion in it for protection under the ADA. More specifically, it excludes from protection under the ADA, “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairment, other sexual disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance abuse use disorders resulting from current illegal use of drugs. 29 C.F.R. 1630.3(d) is identical. 42 U.S.C. § 12211(a) and 29 C.F.R. 1630.3(e) also state that homosexuality and bisexuality are not disabilities as they are not impairments. This is not the same thing as saying that a person who has one of these conditions but also has another condition that would be considered a disability under the ADA as amended, would not be protected by the ADA because of their status in one of these categories. The statute clearly refers to these particular conditions as not being disabilities; it isn’t talking about removing people from coverage based upon their status regardless of the disabilities.

2. Presumably, the challenge to the exclusion is on equal protection grounds. That means first determining what equal protection class a person falls into. In this particular situation, it is hard to believe that the list of conditions mentioned in paragraph 1 above would fall into any class other than the lowest equal protection class, rational basis. This is especially so since persons with disabilities who are covered by the statute are with respect to employment, in the rational basis class, and with respect to things outside of employment, it is a case-by-case situation. Assuming that the conditions in paragraph 1 above would fall into the rational basis class, then Congress would only need a rational basis for coming up with the exclusions that it did. That is a very low standard to meet. Accordingly, getting a judge to find a constitutional violation for the exclusions of these conditions from the ADA will probably be extraordinarily difficult.

Again, none of this represents a personal opinion of mine. Rather, I am just analyzing the law as it currently exists. Also, we don’t know the actual facts of this particular case nor do we know how things will shake out during discovery. For example, perhaps status-based discrimination is going on. That is, maybe the employer is saying that it doesn’t matter what the person’s disability is, they do not have to do anything because the plaintiff falls into one of these categories. If that is what is going on, the above analysis might go differently.