Roller coasters and the ADA: It’s baaaaaaaaaaaaaaaaaaack!

blog entry rcIn a previous blog entry, I discussed the issue of accessibility to amusement park rides. Well, it is back in the news again. This time from the District Court of New Jersey in an unpublished decision dated December 31, 2014, entitled Masci v. Six Flags Theme Park, Inc., 2014 U.S. Dist. LEXIS 178666 (D. NJ December 31, 2014). As is my usual practice, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

By the way, I want to thank Richard Hunt for explaining to me how I might use a picture in a blog entry. I did it!!!!!!!!

I
Facts

The plaintiff, then 14, attempted to ride a certain ride at Six Flags great adventure only to find out that he no longer fit the ridership requirements for the ride. Further, he found out that he was no longer permitted to ride on any of the rides at the park except for two of them due to new ridership requirements at Six Flags, which for the vast majority of the rides, required a person to have at least one fully formed arm and one fully formed leg. The changes to the ridership requirements were the result of what arose out of an accident occurring at another amusement park where a passenger missing both legs fell out of the roller coaster and died when the person was lifted out of his seat and the safety restraints at an amusement park outside of Buffalo, New York. As a result of that accident, Six Flags parks started to receive service bulletins from the manufacturers of certain rides, which include the manufacturer’s determination of what ridership restrictions were warranted to make the ride safe for all customers. The manufacturer of the nitro roller coaster, Superman ultimate flight roller coaster, the bizarro roller coaster, the Batman the ride roller coaster, and the Green Lantern roller coaster changed the ridership restrictions so as to allow a rider was one amputated foot or two amputated feet to ride providing they had the ability to hold on with two functioning hands and to allow a rider with one missing arm or hand to ride providing the rider had the ability to hold on with one functioning hand and brace himself or herself with two functioning legs. Six Flags then instituted an audit of ridership requirements on its rides and assembled an executive committee to review the ridership requirements currently in place at the various parks. The committee reviewed manufacturer guidelines, manufacturer service bulletins, engineering reports from the engineering team, standards developed by the American Society for testing and materials F24 committee on amusement rides and devices, and collective knowledge of the committee members. They also looked to manufacture requirement for similar rides in any amusement park and consulted with their engineering team to decide if the ridership requirements being proposed by the executive committee were appropriate from an engineering perspective. As a result of the audit, the executive committee changed ridership requirements for all the rides except for the flat nonrotating rides so that: 1) for rides which the manufacturer had recent service bulletins, the restrictions listed by that manufacturer would be the restrictions for the amusement park ride; and 2) for rides where the manufacturer was no longer in business or had not otherwise issued current guidelines, a rider had to possess at least one fully formed and functioning leg absent a prosthetic device and at least one fully formed and functioning arm absent a prosthetic device. They also changed the ridership requirements to further restrict the use of prosthetic devices on its rides due to the risk of a prosthetic device falling off during the ride. With respect to the plaintiff, the plaintiff had two full legs but was missing the upper sections of both feet. He wore lower limb prosthetic devices but could ambulate independently indoors and outdoors and could do some modest running and jumping activities. He was also missing his right arm above the elbow and had a short left forearm with four digits in the thumb. He did have some pinch ability with his left hand when he brought the fingers against his forearm for pinching or hooking objects but had relatively little mobility with his thumb. He also utilized a right arm prosthetic device. Six Flags defended on two different grounds. First, New Jersey law required them to follow and implement ridership restrictions mandated by ride manufacturers. Second, in the alternative, the ridership requirements were necessary for the safe operation of the rides and therefore, did not violate the ADA or the New Jersey Law against discrimination. Everybody moved for summary judgment and the court denied all motions.

II
Court’s Reasoning

1. Proof of ridership requirements mandated by the manufacturer, whom are the experts for the ride, can be relied upon by Six Flags as proof of a legitimate safety requirement under the ADA. The court, relying on the California case mentioned in the blog entry referenced above, felt that it was only logical that the ride manufacturers are in the best position to determine what ridership requirements are warranted and necessary to make the ride safe for all guests.

When you think about it, this is the same concept that I discussed in my blog entry talking about using negligence per se as a way to increase accessibility. However, in this case, the manufacturer’s ride restrictions are being used as the safety standard rather than the ADAAG.

2. The court specifically quoting from the California decision said that: defendants should not be required to second-guess the manufacturer’s safety requirements; if plaintiff believed the restrictions are overprotective he or she is free to initiate an action against the manufacturer; and that New Jersey law requires Six Flags to implement the ridership safety requirements of the manufacturer.

With respect to this particular reasoning, I get the idea that a court would not want to require an amusement park operator to second-guess the manufacturer’s safety requirements. I also get how the court could say that state law required amusement park operator to implement manufacturers safety restrictions on the amusement park rides. What I find a bit harder to deal with is the assertion that the manufacturer could be sued directly for violating the ADA if it was felt that the safety restrictions somehow violated the ADA. The reason I am struggling with this concept is that the ADA is an accessibility statute not a product accessibility statute (see this article of mine for example).

3. With respect to the rides that did not have specific manufacturer’s restriction, Six Flags failed to meet its burden that those ridership requirements were legitimate safety requirement per the ADA. In particular, they failed to provide any evidence supporting why those ridership requirements were established. The ridership requirements that were established had not been shown to be necessary for the safe operation of each ride. Further, the ridership requirements failed to establish what actual risks the safety requirements were based on.

4. A blanket approach to ridership requirements of rides with varying levels of risk creates the implication that those requirements were based upon mere speculation, stereotypes, or generalizations about individuals with disabilities rather than actual risk, all of which violate the ADA (citing to the Texas case discussed in a comment to the blog entry mentioned above).

5. The burden is on the amusement park operator to establish that its ridership requirements are for legitimate safety reasons rather than based upon the plaintiff being a person with a disability.

6. Even assuming that Six Flags ridership requirements were appropriate under the ADA, it simply wasn’t clear if the plaintiff nevertheless qualified for the rides under those ridership requirements. In particular, it wasn’t clear whether the plaintiff had a functioning arm to qualify for the vast majority of the rides since the medical report submitted by the defendant only described the plaintiff’s ability to pinch and did not mention the extent to which the plaintiff could grip with his left hand.

7. The ADA requires that an individualized assessment must be made concerning whether a guest actually meets the safety requirements of a ride. In other words, Six Flags should have an employee on hand who could determine or otherwise assess if a guest meets the ridership requirements for the ride in question. That is, if you are going to create eligibility criteria, it logically follows that it includes the right to ask if an individual meets the criteria. The record was unclear whether the plaintiff was tested to see if he met the safety requirements of the various rides. Rather, it seems that the plaintiff was prevented from being on the ride based on the appearance of a disability rather than on his actual failure to meet the ridership requirements.

I get what the court is saying here too. However, it is interesting that with respect to the employee that Six Flags should use to make the assessment whether a person with a disability is qualified to go on the ride, the language the court uses is, “assumedly the ride operator.” If you have been to an amusement park, you know the ride operators are generally teenagers and certainly not people qualified to assess a person’s medical condition so as to determine whether they could safely be on a particular ride. It seems to me that you would almost need a medical professional, such as a doctor, to make that assessment. Then, what if the Doctor gets it wrong? Would the doctor and/or the amusement park, under apparent authority, somehow find a way to be protected from liability in that event?

8. If Six Flags did discriminate against the plaintiff based upon his appearance of disability, rather than any legitimate safety concerns, the safety defenses wind up being irrelevant.

III
Takeaways:

1. If you are an amusement park operator, this case and the California case allow you to rely on the manufacturer’s restrictions for the ride.

2. If you do not have manufacturer restrictions for the ride, an individual analysis of the person with a disability must be performed to see if that person could ride the ride safely. The problem here is just what employee is going to have the ability to determine that. It is hard to believe that it could be a teenager with no medical training.

3. Regardless of whether manufacturer’s restrictions exist, each ride is going to need essential eligibility requirements. Those requirements need to be based upon legitimate safety concerns. The system that Six Flags set up to figure that out simply wasn’t good enough. This decision requires an amusement park operators to first figure out the very nature of the particular ride. Then, have scientific experts and medical experts get together to figure out just what physical capabilities a person needs to be able to safely perform the ride. It probably wouldn’t hurt to have a statistical person as well to number crunch the probabilities based upon the various physical characteristics that the experts come up with.

4. I still don’t understand how the manufacturer can be sued for their product being inaccessible as the manufacturer would not be an employer, governmental entity, or a place of public accommodation with respect to riding the ride.

5. Amusement park operators need to remember that the burden is on them with respect to establishing that the ridership requirements are for legitimate safety reasons.

6. If states have not already done so, look for each one to put in place a law saying that amusement park operators must comply with manufacturer recommendations with respect to ridership requirements.

7. If you are plaintiff, this case gives you the ability to allege both actual disability and regarded as having a disability.

Survivability of ADA claims

I
Intro and Facts

When I was trying to figure out what to write on this week, one of the cases that I came across involved Barbara Walters (Walters v. Cowpet Bay West Condominium Association, 2015 U.S. Dist. LEXIS 13 (D. Virgin Islands, January 2, 2015)). Really, no kidding! Except, it is not THE Barbara Walters. Rather, this is a person from the Virgin Islands who sued her condominium association because they initially did a very poor job of understanding the law when it came to the dog she used, which was suggested by her doctor, to help her cope with her anxiety. She sued under the Fair Housing Act as well as the ADA. During the pendency of the litigation, she passed away. The issue raised by this case is whether her Fair Housing Act and ADA claims survive. I have divided this blog entry into categories: introduction and facts; court’s reasoning; and takeaway. However, this blog entry is so short that the reader should have no problem reading all of it in one sitting.

II
Court’s Reasoning

The court said that in this particular situation her Fair Housing Act and ADA claims did not survive her death and here is why:

1. Neither the Fair Housing Act nor the ADA provide for what happens when a plaintiff dies;

2. In that situation, the law in the Third Circuit is that federal courts have to seek guidance from state survival acts providing they are not inconsistent with the policies underlying the federal statute;

3. The Virgin Islands has two different survival statutes. The first one is a general survival statute. The second one is a survival statute for actions sounding in personal injury or tort. The general survival statute is broader than the one sounding in personal injury or tort because the one sounding in personal injury or tort is restricted to physical injuries.

4. Federal appellate courts applying state survival law to civil rights actions as a matter of course treat civil rights actions in the same manner as torts;

5. It makes sense for courts to treat civil rights laws in the same manner as torts because they operate very similarly: A) civil rights laws consist of duties owed by individual to the public just like tort law does; and B) people do not consent to the duties rather they are imposed upon them by society. I might add that damages even work similarly between the two, though not exactly in the same way.

6. Since the statute sounding in personal injury or tort is the most analogous survival statute, it is that statute that must be looked at to see whether the cause of action survives. Unfortunately for the plaintiff, there was no physical injury alleged and no physical injury could have been proven.

III
Takeaway

In many ways, this particular blog entry is very similar to the blog entry discussing the applicable statute of limitations. In that particular blog entry, we discussed what is the applicable statute of limitations for ADA claims. The way it worked was that you had to find the most applicable state statute of limitations. It is the same way here. As mentioned in that blog entry and as mentioned by the court here, the most applicable statute, whether it be statute of limitation discussed in that blog entry or whether it be survival discussed here, is probably going to be the personal injury statute. That said, as discussed in a comment to the statute of limitations blog entry, it is possible that a state might have a statute that is even more appropriate than the statute sounding in personal injury or tort. For example, if a state had a survival statute for violations of civil rights, then arguably that survival statute would trump a survival statute sounding in personal injury or tort or a general survival statute.

A triple play: causation, adverse action and hostile environment all in one case

Happy new year everyone!

Hope everybody had a happy and safe new year. Back to it!

Today’s case is Sherman v. County of Suffolk, 2014 U.S. Dist. LEXIS 177780 (E.D. NY December 29, 2014). The case talks about numerous issues: causation under title I and title V of the ADA; adverse action under title I and title V of the ADA, hostile environment as it applies to ADA claims, and several other related issues. As is my usual custom, the entry is divided into categories. They are: facts; thoughts on the facts; issues before the court and holdings; court’s reasoning on the issue; and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

In January 2010, plaintiff, 55, received and accepted a conditional job offer as a correction officer from the Suffolk County Sheriff’s Department. A correction officer is responsible for guarding prisoners and maintaining order and security at Suffolk County detention and correctional facilities. They must have a strong knowledge of the rules and regulations governing Suffolk County correctional facilities as well as possessing the intelligence, communicative ability, and physical or mental fitness appropriate to a position involving risk and responsibility and safety of himself and others. The plaintiff understood that his offer was conditional upon passing established academic and physical training requirements and he commenced the Academy’s 13 week training program. Here’s what happened next:

1. Plaintiff injured his quad muscle in his left leg while doing a drill called the “mountain climber;”

2. While plaintiff self medicated the day of injury, he did go to his personal physician the following day who diagnosed the quad strain. He asked his physician that he start physical therapy as soon as possible;

3. On February 4 of 2010, the plaintiff was called to the command office to discuss his injury. On the way in, plaintiff alleged that he was apologized to by a person in the Suffolk County Sheriff’s office for what she considered to be the inappropriately early administration of the “mountain climber.” At the meeting, the option of leaving and rejoining the Academy in the following class of recruits was discussed, though a dispute existed as to whether the plaintiff was encouraged to do so. After the meeting, the plaintiff, since he was unsure when the next class would be, remain enrolled at the Academy and informed his supervisor that he had started physical therapy;

4. Both the command officer and the person who apologized to him assured him that they would do whatever they could to help him recover;

5. On February 11, 2010, plaintiff spoke to an investigator at the medical evaluation unit. According to the plaintiff, he was told that the investigator tried to persuade him to deny his injury and rejoin the physical training saying that the Academy will come after him because of his age;

6. On February 15, 2010, the plaintiff submitted a letter from his physical therapist saying that failing to abstain from strenuous activity during the next 4-6 weeks could result in further injury;

7. On February 22, 2010, the plaintiff submitted a letter to the person who allegedly had apologized to him earlier asking her for help and advice on rehabilitating his injury. That letter was never answered;

8. On April 2, 2010, an MRI revealed that he had no significant tear but did have bursitis of the hip and tendinitis. Plaintiff contended that was the result of being forced to use the stairs during the period following his injury;

9. In July of 2010, plaintiff participated in and completed firearm training, which included running. Plaintiff testified that he did not go against his physician’s orders by participating in firearm training because the leg was feeling well enough for him to attempt to do it so he did it;

10. Beginning in March 2010, plaintiff began to feel isolated from his fellow recruits through such acts as: everybody receiving handcuffs except for him; being berated by a commanding officer; and being told to copy military protocol regarding proper treatment of superior officers;

11. On March 22, 2010, plaintiff filed an informal written complaint to personnel relations alleging that he was being treated in an unfair manner because of his age and injury. He withdrew that complaint four days later so as to not jeopardize the individual defendants careers. On April 8 of 2010, plaintiff wrote a letter to a superior informing her of his reason for not pursuing the discrimination complaint and expressing to her that he believed that the situation was resolved. However, he did say that while he did not have any desire to pursue the matter further, he would do so if the situation presented itself again;

12. Plaintiff was not allowed to participate in the graduation ceremony and was required to climb stairs in order to pose with his fellow recruits. The climbing of stairs violated his medical orders and a superior’s authorization to allow him to abstain from using stairs. It should be pointed out the defendants maintained that he climbed the stairs voluntarily;

13. Plaintiff alleged that he only received his badge after having to beg for it thereby causing him further humiliation. Defendants had a different view, characterizing the giving of the badge and diploma prior to completion of physical requirements of the Academy in New York State as a courtesy;

14. Suffolk County granted the plaintiff an extension of a year to satisfy his physical training requirements.

15. On April 27, 2010 plaintiff started his position at the Suffolk County correctional facility working on light duty at station one. He did wear a knee brace but did not tell a superior officers for fear of reprisal;

16. On June 30, 2010, plaintiff was cleared to return to full duty. However, plaintiff alleged that from April through August 2010 he felt incapable of fully performing his duties as a result of severe pain in his left knee stemming from his injury;

17. On June 22, 2010 and on June 30, 2010, plaintiff received negative evaluations;

18. On July 20, 2010, plaintiff received a letter from the Academy requesting that he complete the physical training requirements;

19. In August 2010, plaintiff supplied a note to the defendant from his position indicating that he could not complete the mile and a half run and could not complete the physical part of the Academy at that time;

20. On October 7, 2010, plaintiff was approached by three officers when he arrived home from work and informed of the termination;

21. Subsequent to termination, beginning on March 26, 2012, plaintiff began an antidepressant treatment, which he attributed to the alleged discrimination he faced while at Suffolk County correctional facilities and that he was less depressed and able to manage his anxiety.

22. Plaintiff ultimately sued the County of Suffolk, the Suffolk County Sheriff’s Department, and three individuals for disability discrimination under the ADA, § 1983 claims, as well as for disability and age discrimination under New York State law. Of course, defendants moved for summary judgment.

II
Thoughts on the facts:

1. I find it very odd that nowhere in the discussion of the opinion, as far as I could find, is it mentioned that the plaintiff filed a claim with the EEOC or the equivalent New York State agency. I find it odd that I cannot find that in the opinion since for a person to be able to bring an ADA claim in federal court, administrative remedies must be exhausted first. One has to assume that despite the fact that I cannot find it in the opinion, such a filing had to have been done because otherwise the defense most assuredly would have raised that issue as a defense;

2. I am certainly aware of the right of an employer to make a job offer conditional on a physical exam. However, what I have not seen before, and I am not saying that it doesn’t happen, is making a job offer conditional on completing a several weeks course containing numerous physical requirements in a variety of situations.

III
Issues before the Court and Holdings:

1. Who are the proper defendants?

Answer: County of Suffolk

2. Is there individual liability for ADA discrimination or ADA retaliation claims?

Answer: no

3. What is an adverse action under title I of the ADA?

Answer: whenever a plaintiff endures a materially adverse change in the terms and conditions of employment. That change must be a change in working condition that is more disruptive than a mere convenience or an alteration of job responsibilities.

4. Did the transitory and minor exception for a regarded as claim under the ADA apply?

Answer: no

5. Was the plaintiff otherwise qualified?

Answer: a genuine issue of material fact exists.

6. What is the standard for causation under title I of the ADA?

Answer: Second Circuit has not decided the issue. Regardless of the standard that may apply, sufficient facts were presented to create a genuine issue of material fact.

7. What is the standard for causation under title V of the ADA (retaliation)?

Answer: But for

8. What is an adverse action under title V of the ADA (retaliation)?

Answer: anything that might dissuade a reasonable worker from making or supporting a charge of discrimination.

9. Is a hostile work environment claim actionable under the ADA?

Answer: Second Circuit has not decided, but assuming that the claim is actionable, the elements of a hostile work environment claim are not satisfied.

III
Court’s Reasoning on the Issues

1-2. The proper defendant is the county because the Suffolk County Sheriff’s Department is not a suitable entity and claims against it are the same as those against the County. Also, it is clear under the case law based upon the applicable statutes that there is no individual liability for ADA discrimination or retaliation claims;

3. With respect to title I of the ADA, an adverse action occurs whenever a plaintiff endures a materially adverse change in the terms and conditions of employment. That change must be a change in working condition that is more disruptive than a mere convenience or an alteration of job responsibilities. Outside of the termination, no such adverse action occurred because any such action did not materially alter the terms and conditions of the plaintiff’s employment;

4. For the transitory and minor exception under the regarded as prong of the ADA to apply, that disability must be BOTH transitory and minor. While plaintiff’s disability may have been minor, it arguably was not transitory;

5. A genuine issue of material fact existed as to whether the plaintiff was otherwise qualified (capable of performing the job’s essential functions with or without reasonable accommodations), because of deposition testimony from a sergeant of the Suffolk County Sheriff’s office saying that the negative reviews was not meant to go to the merits but really was done for the purpose of getting him more training since it wasn’t fair to evaluate him in the same way that all other officers were evaluated when those officers were getting consistent training;

6. With respect to causation under title I of the ADA, the case law is very uncertain as to whether the standard is motivating factor or but for, and the Second Circuit simply has not addressed the issue (as to why, it is far from clear that but for would apply to title I claims, see my most popular blog entry of 2014). The court spent several pages discussing how Circuit Courts and District Courts are dealing with the mixed motive issue. Nevertheless, the court found that plaintiff had established a genuine issue of material fact under either the motivating factor or the but for standard of causation. In particular, evidence existed in the record that the plaintiff informed the supervisor that he needed surgery the day of or the day before his termination. Further, the same person who testified as to the purpose of the negative evaluation, also said that it was his knowledge and personal observation that he had never seen the use of minimally acceptable scores on the evaluation to be used as the basis of termination for an employee. That said, if it subsequently develops that the standard for causation is outcome determinative, the court said that they would perhaps on their own motion certify that question to the Second Circuit for their consideration;

7. It is clear per University of Texas Southwestern Medical Center v. Nassar, that the standard for causation with respect to retaliation is but for;

8. When it comes to retaliation claims, an adverse action is anything that might dissuade a reasonable worker from making or supporting a charge of discrimination. For the reasons stated in paragraph 6 above, sufficient evidence existed for a genuine material issue of fact to exist on this point;

9. The Second Circuit has not decided whether hostile work environment claim is actionable under the ADA. That said, the Second Circuit has noted that several other circuits have decided that such a claim exists. Assuming that such a claim exists, the element for such a claim with respect to disability discrimination are that the conduct: 1) was objectively severe or pervasive. That is, was the environment such that a reasonable person would find it hostile or abusive; 2) was the environment such that the plaintiff subjectively (in his or her own mind), perceived the environment as hostile or abusive; and 3) was such an environment created because of the plaintiff’s disability. In this case, the court found that the evidence to support such a claim was not sufficient to create a genuine issue of material fact.

IV
Takeaways

1. If on the defense side, be sure that the plaintiff has exhausted their administrative remedies. I would have to believe that failure to note that fact on the part of a defense attorney if such is the fact, would have to be grounds for legal malpractice;

2. I would not take this case as giving license that a conditional job offer can be based upon completion of a physical exam occurring over several weeks under various circumstances. That is certainly not the intent of the conditional job offer system;

3. Just because some employers are essentially paramilitary, does not give the employers the right to ignore the provisions of the ADA. Key here, of course, is consistent and frequent training of all personnel.

4. Keep the lines of communications open. That includes responding to any correspondence;

5. Transparency is always better than the end run. For example, instead of giving the negative evaluations, why didn’t personnel just step up and say this person needed more training and that a waiver or modification of the rules was in order;

6. If you are going to terminate someone, don’t overkill the situation. For example, it could not have been helpful to have sent three officers to the individual’s home to terminate him;

7. Depositions matter;

8. The standard for adverse action with respect to retaliation claims is lower than the standard for adverse action with respect to title I claims;

9. For the exception under the regarded as prong to apply, the disability must be both transitory AND minor.

10. Nassar, referenced above, to my mind clearly states that mixed motive is in play with respect to title I claims but not title five (retaliation), claims. That said, a possible monkey wrench in that point of view is discussed in this blog entry.

11. The handwriting is probably on the wall with respect to whether a hostile work environment claim is possible under the ADA. The answer will probably be that it is, though such a claim would not necessarily be easy to prove. This case gives you the elements of such a claim.