In a previous blog entry, I discussed the case of Holmes v. Godinez. In that decision, which involved a class action brought on behalf of deaf inmates, the U.S. District Court for the Eastern District of Illinois said:
While it is true that typical ADA claims regarding employment must be brought under title I of the ADA and not title II of the ADA, prison job programs do not constitute employment under title I of the ADA because such a person is an inmate of the prison and not an employee or job applicant. As such, the Illinois Department of Corrections job assignment program constitutes services, programs or activities under title II of the ADA.
One wonders whether the above statement has now been overruled by the Seventh Circuit in Neisler v. Tuckwell decided November 25, 2015. As is typical of my blog entries I have divided the blog entry into categories: facts; issue; holdings; court’s reasoning (title II); court’s reasoning (title I); court’s reasoning (sovereign immunity); court’s reasoning (title III); did the court get it right or is Holmes v. Godinez correct; and takeaways. The reader is free to concentrate on any or all of the sections of the blog entry.
The plaintiff worked as a stockman in food service during his incarceration. The Wisconsin Department of Corrections does not permit prisoners to hold the same position for more than two years. Under that policy, the plaintiff’s job as a stockman was scheduled to end in November 2012. In March of that year, an improperly loaded cart overturned on the plaintiff as he was unloading an elevator. The falling cart broke his prosthetic leg and left a 1 inch cut where the prosthesis had been attached. After the accident, the plaintiff managed for a time to continue working using a temporary prosthesis. However, four months later he was in too much pain to work and medical staff accordingly put him on “sick cell,” a designation that prohibits an inmate from working because of an illness. While on that status, the plaintiff continued to receive the same hourly wage of $.42 per hour. Three months after that, the plaintiff was fired by the food service administrator at the correctional institution citing medical reasons for his action. That firing caused the plaintiff to be removed from sick cell status and to lose his wage supplement. On the same day as his firing, the plaintiff filed a grievance asserting that he had been penalized for being unable to perform his job duties because of a work-related accident and asked to be paid until his prosthesis to be repaired or when he could begin another job. The inmate complaint examiner recommended denying the plaintiff’s grievance and that recommendation was adopted by the warden. Plaintiff’s administrative appeal was unsuccessful. In January 2013, the plaintiff began a new job. Later that month he received $76.96 in back pay covering the seven week gap between the cessation of his wage supplement and the time when his position of the stockman had been scheduled to end. Unsatisfied by that adjustment, the plaintiff sued seeking workers compensation and alleging that he is been fired because of a disability in violation of title II of the ADA. The suit asked for monetary damages. Ultimately, the District Court allowed the claim to go forward but wound up granting summary judgment against the plaintiff on the ground that the plaintiff was fired because he was too sick to work and not because of any disability. The plaintiff appealed.
1. Is the plaintiff’s claim of discrimination in prison employment subject to title II of the ADA?
2. Is the plaintiff’s claim of discrimination in prison employment subject to title I of the ADA?
3. Is sovereign immunity applicable and therefore prevents the plaintiff’s claim, assuming he even has one?
4. Is the plaintiff’s claim of discrimination in prison employment subject to title III of the ADA?
Court’s Reasoning (Title II)
1. Title II provides that public entities may not exclude a qualified individual with a disability from participating in or receiving the benefits of services, program, or activities or otherwise subjecting that person to discrimination. It does not apply to claims of employment discrimination. For such claims, title I of the ADA is the exclusive remedy under the ADA.
2. A prison job is not the same thing as a vocational program because vocational programs are schools in which inmates are instructed in trades and domestic science. On the other hand, prison employment entails work necessary to be done in the regular business thereof and for which prisoners may receive pecuniary earnings and rewards.
Court’s Reasoning (Title I)
1. It is questionable whether a prisoner working at a prison job qualifies as an employee within the meaning of title I or for that matter within the meaning of the Rehabilitation Act.
Court’s Reasoning (Sovereign Immunity)
1. Since this suit involves a claim for damages, the plaintiff runs into the 11th amendment. No claims were made that the defendants waived their sovereign immunity.
Court’s Reasoning (Title III)
1. Title III of the ADA applies to discrimination by places of public accommodation and has nothing to do with employment discrimination.
Did the Court Get It Right or is Holmes v. Godinez Correct?
The answer to that question all comes down to how Pennsylvania Department of Corrections v. Yeskey is analyzed. In that case, a unanimous Supreme Court in an opinion written by Justice Scalia held that the ADA applied to prisons. They specifically saved for another day whether sovereign immunity applied to prisons. Later, in U.S. v. Georgia, the Supreme Court held that the sovereign immunity of prisons was waived if their actions rose to a constitutional violation. In helping to figure out whether Neisler or Holmes is correct, the following from the Supreme Court opinion in Yeskey is instructive:
1. The statutory language of the ADA unmistakably includes state prisons and prisoners within its coverage.
2. In particular, state prisons fall squarely within the statutory definition of “public entity,” which includes, “any department, agency, special-purpose district, or other instrumentality of the State or States or local government.”
3. Modern prisons provide inmates with many recreational “activities,” “medical services,” and educational and vocational “programs,” all of which at least theoretically benefit the prisoners (and any of which disabled prisoners could be excluded from participation in).
Clearly, it is this particular sentence that the Seventh Circuit is relying on with respect to whether Yeskey applies to employment. However, an argument exists that it is very important not to read this particular sentence in a vacuum because the prior sentence states:
“petitioners contend that the phrase “benefits of the services, program, or activities of a public entity,” § 12132, creates an ambiguity, because state prisons do not provide prisoners with “benefits” of “programs, services, or activities” as those terms are ordinarily understood. We disagree.” Reading this sentence in context with the following sentence suggests strongly that the Supreme Court was not being exclusive in this list when it listed the type of activities in prisons being subject to title II of the ADA. Further, the cases it cites to strongly suggest that it is referring to prisons broadly in terms of programs offered to rehabilitate offenders, of which a prison job would be one of them.
4. Eligibility and participation as those terms are contained in 42 U.S.C. § 12131(2) do not require a voluntariness component in the plain meaning of those terms for the dictionary does not suggest that any voluntary component need be present.
5. The findings listed in 42 U.S.C. § 12101 mention a reference to discrimination on the basis of disability with respect institutionalization, which can be thought to include penal institutions.
6. The fact that the statute can be applied in situations not expressly anticipated by Congress did not demonstrate ambiguity, rather it demonstrates breadth.
1. If Neisler stands, prisoners are without any remedies with respect to discrimination based upon disability in their prison jobs.
2. If title I of the ADA is clearly the applicable title with respect to prisoners being discriminated against on the basis of disability in their prison jobs, the EEOC workload just became enormous. Hard to believe that Congress could have intended that and certainly not something the EEOC wants.
3. Why wouldn’t an inmate be an employee? Clearly, the prison controls when, where, and how to do the job (the traditional markers of an employment relationship). I suppose you could argue that prison employment is not voluntary, but the voluntary concept with respect to ADA applicability was specifically rejected by the United States Supreme Court in Yeskey. Also, I could see the argument that the inmate is really participating in the program rather than in an employment relationship. However, if that is the case, then § 504 of the Rehabilitation Act and title II of the ADA would be applicable and not title I. Either way, the prison inmate would have a remedy.
4. The reference to sovereign immunity not being waived is the case for Wisconsin, but the practitioner needs to check each state when it comes to whether there has been a waiver. For example, Illinois has waived sovereign immunity with respect to housing discrimination and with respect to employment when it comes to disability discrimination. Also, get arounds for sovereign immunity include not suing for damages, but rather just for injunctive relief as well as suing under the Rehabilitation Act and arguing that the receipt of federal funds waived sovereign immunity. Keep in mind, that Neisler relies on a case saying that inmates are not employees under the Rehabilitation Act. On the other hand, courts are split on whether § 504 applies to employment. See here. Finally, keep in mind that courts are split on whether the receipt of federal funds waives sovereign immunity under the Rehabilitation Act.
5. One wonders if this decision will stand up. If I was on the plaintiff’s side, I would consider a rehearing en banc on the grounds that the panel got Yeskey wrong. While there is most certainly a circuit court split on whether Title II applies to employment, an argument exists that prison jobs are part of a larger program and even if they would not be considered an employee per the ADA, they would be considered a program under title II of the ADA. Therefore, if the rehearing en banc was not successful, this may be the unusual situation where I might tell an ADA plaintiff to take it all the way to the Supreme Court.