Understanding the ADA

The Blog of William D. Goren, J.D. LL.M. - Of Counsel, Kitchens New Cleghorn, LLC

adverse employment action

Does a Failure to Accommodate Claim Require an Adverse Action?

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Today’s blog entry will be the last substantive blog entry of the year. Next week, is the annual Understanding the ADA greatest hits for 2018. This week’s case deals with the question of what happens when you have both a failure to accommodate and a lack of adverse action. Is the plaintiff out of luck? The case of the day is Exby-Stolley v. Board of County Commissioners, Weld County, Colorado. It came down from the 10th Circuit on October 11, 2018. As usual, the blog entry is divided into categories and they are: facts; majority opinion; dissenting opinion; and takeaways. The reader is free to focus on any or all of the sections.

I

Facts

The facts are pretty straightforward and are covered in great detail in the opinion. Basically, you have a person that broke her right arm on the job leading to two surgeries. That led to an interactive process that did not satisfy the plaintiff and perhaps miscommunication as well. Instead of pursuing the interactive process to the end, plaintiff resigned. Nevertheless, plaintiff brought suit alleging violations of the ADA. At trial, the jury found that the plaintiff had a disability, but also found that the plaintiff had not proven by a preponderance of the evidence that she was discharged from employment. That is, the jury bought the county’s argument that the placement of plaintiff on temporary half-time office duty was not an adverse employment action because she fully agreed with the change, and there was no reduction in pay since the reduction was offset by workers compensation payment. Also, the county took no later action against her because she voluntarily resigned.

II

Majority Reasoning

  1. An adverse employment action is an element of a failure to accommodate claim.
  2. 42 U.S.C. §12112(a) says a covered entity cannot discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, condition, and probative of employment. So, any discrimination has to be in regards to certain features of employment.
  3. While the language adverse employment action does not appear in the ADA, the terminology is well established in judicial opinions when it comes to the Civil Rights Act of 1964, which has a very similar provision with respect to its antidiscrimination clause.
  4. An adverse employment action is one that materially affects the compensation, terms, condition, or privileges of employment.
  5. In a footnote, the court said that “terms and conditions,” appearing in the ADA’s statutory provisions is very significant because it was the lack of that language that led the United States Supreme Court to say a retaliation claim could be based upon any action, whether or not significant to the employee’s job, that a reasonable employee would have found to be materially adverse.
  6. The failure to accommodate statutory provision doesn’t change the terms and conditions requirement. Rather, it just sets forth that an employee does not have to show she was treated worse than a person without a disability when he or she brings a failure to accommodate claim. That is, even after proof of the failure to accommodate, the requirement that discrimination be in regard to job application procedures or other terms, condition, or privileges of employment remains.
  7. For those who don’t believe an adverse employment action is required for a failure to accommodate claim, they may be just getting confused by the McDonnell Douglas burden shifting framework, which has to be modified in order to apply to failure to accommodate claims.
  8. Since McDonnell Douglas can only apply to discriminatory failure to hire, courts have modified the test to other circumstances by saying that the employer took an adverse employment action.
  9. While proving a failure to accommodate claim does not involve showing a person with a disability is treated worse than a person without a disability, that hardly means none of the requirements set forth in McDonnell Douglas apply to failure to accommodate claims. That is, McDonnell Douglas enables the plaintiff to prove her claim in its entirety, not just that she was treated worse than people not in her protected class.
  10. The reason to require that the discriminatory act involves an adverse employment action is because not every discriminatory act by an employer entitles an employee to a remedy under the employment discrimination statutes. The discriminatory act must be in regard to, or with respect to, the terms or conditions of employment. In fact, there could be a failure to accommodate that does not result in termination and is not otherwise connected to an adverse employment action. Mere inconvenience or an alteration of job responsibilities is not an adverse employment action.
  11. Once it is recognized that requiring an adverse employment action simply means requiring the discrimination be in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment, it necessarily follows that the requirement applies to every discrimination claim under the ADA, including failure to accommodate claims. Cases cited by the dissent to the contrary are dicta.
  12. Several Circuits have explicitly required an adverse employment action in failure to accommodate cases (1st, 2d Cir., 7th Cir., 8th Cir., and 9th Cir.).
  13. In a footnote, the court said that it is unlikely an employee would pursue a failure to accommodate claim when there is no adverse employment action.

III

Dissenting Opinion by Judge Holmes

  1. It was reversible error for the judge to instruct the jury that an adverse employment action element is required for failure to accommodate claims under the ADA.
  2. The cases the majority said are dicta are not dicta at all.
  3. The 10th Circuit has previously distinguished between ADA discrimination claims based upon a disparate treatment theory and those based upon a failure to accommodate theory making clear the content and structure of its analysis that it is only the disparate treatment theory that includes an adverse employment action element. The court’s disregard of an adverse employment action in that case was intentional because an adverse employment action was irrelevant in applying the standards defining whether an employer had met its reasonable accommodation obligations.
  4. The majority’s confusion stems from its failure to clearly differentiate between disparate treatment and failure to accommodate claims with the former requiring an adverse action showing, but not the latter.
  5. In a failure to accommodate case, the purpose of the plaintiff’s prima facie case is not to raise a rebuttable presumption of discriminatory intent, but rather to determine the factual question of whether the employer complied with the statutory obligations to provide reasonable accommodation.
  6. Any failure to provide reasonable accommodation for a disability is necessarily because of a disability. That is, the accommodations are only deemed reasonable if they are needed because of the disability and no proof of particular discriminatory intent is necessary.
  7. In a footnote, the dissenting judge said that the EEOC in its regulations and interpretive guidance on the ADA also suggests that an adverse employment action is not an element of failure to accommodate claim. In particular, it says that once the plaintiff has shown the accommodation he or she needs is reasonable, the burden shifts to the defendant to provide case specific evidence proving the reasonable accommodation would cause an undue hardship. Nowhere in that language is there any adverse action requirement.
  8. Congress has already determined that a failure to offer reasonable accommodation to a qualified employee with a disability is unlawful discrimination.
  9. In a footnote, the dissent said that it doesn’t make a lot of sense that federal judges would cavalierly tolerate the serious risks going with omitting an essential element of a claim from their decisions as that would mislead the public and the lower courts regarding the state of the relevant ADA law. Instead, the dissent believed that the omission of adverse employment action from the elements necessary for proving a failure to accommodate claim, was intentional. It defies logic to suggest otherwise.
  10. It doesn’t follow that the language in 42 U.S.C. §12112(a) pertaining to other terms, conditions, and privileges of employment is necessarily a shorthand for an adverse action requirement and case law is not to the contrary.

IV

Takeaways

  1. Reading this decision is very strange. The majority and the dissent reach opposite conclusions interpreting the same exact case law and the same exact statutory provisions. In my experience, you usually don’t see such a stark differentiation that way.
  2. I certainly look for a split to develop among the Circuits considering the ambiguity of case law and the statutory provisions. It would be very unclear as to what would happen at the United States Supreme Court with respect to the question of whether a failure to accommodate claim involves an adverse action. It is true that persons with disabilities have not fared well at the Supreme Court in employment matters, but a failure to accommodate may or may not resonate differently.
  3. It is not as unlikely as the majority seems to suggest that a failure to accommodate claim does not involve an adverse action. It happens more often than you would realize, especially if the employer has far thinking management counsel, and the employer is well trained on the rights of people with disabilities.
  4. I also don’t see how the language of “in regards to…,” necessarily requires an adverse action, particularly since adverse action is not the same thing as any action.
  5. If this decision prevails, plaintiff lawyers will have to get creative in their advocacy to show that a failure to accommodate a person with a disability has very serious consequences to the person with the disability and is certainly adverse. This means a plaintiff lawyer will have to educate the judge as to how the person with the disability perceives what happens in a failure to accommodate case and how the consequences of failing to accommodate are very real indeed.
  6. It will be also interesting to see how other courts deal with the issue of many Court leaving off an adverse employment action from their listing of what is required in the prima facie case approving a failure to accommodate claim. The majority passes that off as dicta, while the dissent views those omissions as critical.
  7. For plaintiffs, education about the mindset of a person with a disability is going to be absolutely critical. If you are on the defense side, this case gives you lots of leeway to make sure that a plaintiff with a disability continues in the same way as they are in their current employment in some manner or another until the interactive process is fully completed.
  8. This case could have been handled completely differently by the court. That is, instead of focusing on adverse action, the court could have found that the plaintiff was responsible for the breakdown in the interactive process by resigning and therefore, the defendant prevails.
  9. For a case involving a failure to accommodate where adverse action is never mentioned and certainly seem to not be part of the equation, we have already talked about one, Silva v. Baptist Health South Florida Inc., which we discussed in this blog entry.

 

What Not to do With Respect to Pre-employment Disability Related Inquiries and Retaliation

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Here in Atlanta, we have finally moved into fall weather. That means temperatures in the afternoons in the upper 60s and low 70s and temperatures in the evenings and mornings in the 50s. The 20 to 30° range of temperature that Atlanta gets in the winter and in the fall took some getting used to.

Today’s case is Ward v. United States Xpress. It deals with preemployment medical inquiries and retaliation. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff was diagnosed with thyroid cancer around 2012 and 2013. She was recruited by the defendant for employment as an over the road truck driver, and she attended the training orientation at Tunnel Hill, Georgia, during which she filled out a medical history form in which she disclosed she previously had thyroid cancer. A manager allegedly pulled plaintiff aside several times during the training to inquire about her health and ability to work in light of her prior cancer diagnosis. Each time, plaintiff insisted that she was in good health, willing and able to work, and that she was healthy and had been in remission since 2013. After the manager told her she could become sick while driving and become a liability, plaintiff researched the law and returned to the training to inform the manager that it was discriminatory for the company to deny her employment because of her history of cancer. Later that same day, the manager pulled the plaintiff from training to meet with him and the company’s human resources representative, during which they informed her of her removal from the training purportedly due to her driving record. However, plaintiff contended that defendant approved her driving record prior to the training and that her record only contained minor incidents similar to other similarly experienced drivers. Defendant filed a motion to dismiss.

II

Court’s Reasoning

In denying defendant’s motion to dismiss, the Northern District of Alabama reasoned as follows:

  1. 42 U.S.C. § 12203(a) prohibits retaliation against an individual because the individual opposed any act or practice made unlawful by the ADA.
  2. To make a prima facie case of retaliation, a plaintiff has to show that she: 1) engaged in statutorily protected conduct; 2) suffered an adverse employment action; and 3) there was a causal connection between the protected conduct and the adverse employment action.
  3. When it comes to retaliation, it isn’t necessary for a plaintiff to prove that the underlying discriminatory conduct she opposed was actually unlawful, but rather the plaintiff must show a good faith reasonable subjective belief that the employer was engaged in an unlawful employment practice so long as that belief is objectively reasonable in light of the facts and record presented.
  4. Plaintiff sufficiently pled engagement in a protected activity and a causal connection to the adverse employment action. In particular: 1) plaintiff alleged that after being pulled out of training, she performed an online search related to employment discrimination and shared the results with the manager by telling him it was discriminatory for her to be denied employment because of her previous history of cancer.
  5. Plaintiff’s allegations rise above mere speculation because existing substantive law establishes the reasonableness of her belief the defendant engaged in an unlawful employment practice.
  6. With respect to the causal connection, plaintiff has to demonstrate that the decision-makers were aware of the protected conduct and that the protected activity and the adverse actions were not wholly unrelated. One of the ways plaintiffs do that is showing a close temporal proximity between the protected activity and the adverse action.
  7. Plaintiff sufficiently alleged facts suggesting a temporal proximity between the protected activity and the adverse action. In particular, after plaintiff informed the manager about her research on discrimination and disability, that same day the manager pulled her aside for a meeting with the human resource representative who informed her that she was no longer a candidate for the truck driving position.
  8. While it is possible that plaintiff’s driving record prevented her from being further considered, at the stage of a motion to dismiss, plaintiff’s pleading must be taken as true. Here, plaintiff contended that defendant had approved her driving record before training began, and her record became an issue only after she raised her discrimination concerns.
  9. The ADA provides that an employer cannot require a medical examination and cannot make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is job-related and consistent with business necessity. An employer does have the right to make inquiries into the ability of an employee to perform essential functions of the job. The key here is that the manager purportedly pulled the plaintiff aside several times during the training to follow up on her medical questionnaire and inquire about her health. During those conversations, the plaintiff alleged that the manager called her a liability even though she insisted she had no significant chance of relapse and was in good health, willing, and able to do the job.
  10. In the 11th Circuit, a private right of action exists under the ADA for a prohibited medical inquiry in the pre-offer phase of the job application process, irrespective of disability status.
  11. A company does not have an unfettered right to make disability inquiries and conduct medical examinations. For example, the withdrawal of a conditional offer after a job applicant revealed a prior back surgery is not acceptable under the ADA because there was no individualized assessment as to applicant’ ability to perform essential functions.
  12. Plaintiff alleged: the manager removed her from training multiple times; repeatedly ignored her representation that her cancer was in remission; and that she posed no threat. Further, the manager in the company purportedly ended her training solely based on their own assessment about her abilities without consulting her medical providers to show the job-related and business necessity of the inquiry. Accordingly, plaintiff sufficiently alleged that the defendant made inquiries likely to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries.

III

Takeaways

  1. We have discussed the pre-employment medical inquiries scheme and what it means to be job-related and consistent with business necessity here.
  2. I have read many articles in numerous places saying that there is a tremendous shortage of over the road truck drivers, and especially women drivers. It would seem to me that it would be in the best interest of a truck driving company to adhere closely to the ADA medical inquiries scheme in order to maximize the possibility of bringing on over the road truck drivers in light of the incredible shortage.
  3. It is mind-boggling to me why the case didn’t settle prior to the motion to dismiss. I would expect it to settle now. The court’s opinion pretty clearly lets readers know that the defendant is probably in deep trouble here, which wouldn’t surprise readers of this blog.
  4. When it comes to retaliation, the key is whether a plaintiff has a good faith reasonable subjective belief that his or her employer is engaged in an unlawful employment practice. Whether that is actually the case as a matter of law doesn’t matter.
  5. You don’t have to have a disability to allege a violation of the ADA prohibited medical inquiries scheme.
  6. In the 11th Circuit, a private right of action exists with respect to violations of the prohibited medical inquiries scheme.
  7. Always a mistake to terminate a person with a disability without engaging in an individualized analysis of the situation.
  8. Always a mistake to not engage in the interactive process with a person with a disability.
  9. For the disability related inquiry violation to occur under the ADA, the plaintiff has to show that the inquiry is likely to elicit information about a disability. My position has long been that when it comes to the analysis of whether an inquiry is likely to elicit information about a disability, an employer is well served to have persons with disabilities involved in that determination.
  10. Despite what it looks like, this case is not a fear of future disability case, which we discussed here, at all. Rather, it is a record of a disability case.
  11. In this blog entry, I discussed the situation where the human resources department did the right thing. I can’t say that here. The principles involved here are well-known to readers of this blog. Human resources should have stepped up to stop this process rather than go along with it. Also, if human resources did not feel comfortable stepping up, human resources should have at least suggested bringing in an ADA knowledgeable attorney. If either would have occurred, chances are very high, assuming the facts are indeed what the plaintiff has alleged, that this situation would have been stopped in its tracks, and the company would have had a competent sorely needed over the road truck driver. The company would have also saved considerable litigation costs.
  12. The Internet can be a boon for a person establishing a good faith belief of employer conduct violating the law. For example, it is certainly possible with respect to these facts that the plaintiff could have found her answers allowing her to reach the conclusion she did in Robin Shea’s, Eric Meyer’s, Jon Hyman’s, or even this blog (Robin’s-labor and employment law insider blog- , Eric’s -the employer handbook blog-, and Jon’s- Ohio employer’s law blog- are all in my blog roll. Further, there are other labor and employment law blogs where she could have found her answers in as well).
  13. I just don’t understand how these mistakes keep happening. Who is doing the training and how often? Where is ADA knowledgeable legal counsel? Well… y’all know where to find me;-)

File/Amend an EEOC Charge As Often As You Have To and Other Goodies

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Today’s case raises the point that an EEOC charge needs to cover the claim. Further, don’t assume that just because there is a prior EEOC charge on file that a subsequent claim will be automatically covered. The case is Martinez v. University Medical Center. The case also has some other interesting points in it that we will discuss as well. As is my usual practice, the blog entry is divided into categories: facts, issues, holdings, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

On August 4, 2011, Martinez suffered a hernia and an L5-S1 disc protrusion while lifting boxes in the warehouse. He was placed on temporary modified duty with no lifting over 10 pounds, no repetitive bending, and no climbing. He filed a worker’s compensation claim for those injuries on the same date. University Medical Center and Martinez then entered into a modified duty work contract to commence on September 12, 2011. Under that contract, he was given a 90 day assignment with the central supply department and the clinical lab to perform work consistent with the doctor’s restrictions. However, on December 1, 2011, he received a phone call from the manager of pathology advising him that he needed to perform duties related to the third floor tubing system. He had previously worked with the tubing system and knew he could not do what was asked because that work strained his back. He told the manager of pathology precisely that. The manager of pathology responded that because he could not do those job tasks he would be transferred. Martinez also stated that the manager of pathology suspended him. He contacted workers compensation personnel and they told him to clock out and go home because there was no other light duty to perform at the moment, and that he would be contacted when something was available. According to the plaintiff, he remained on suspension from December 1 through January 4 of 2012. Further, when Martinez did not appear for work on December 8, 9th, or 14th, he was suspended for three days for his unexplained absenteeism. He then sent a letter to the director of HR complaining of discrimination based on age, race, and disability. In January 2012, he filed a charge of discrimination with the EEOC marking the boxes on the form to indicate he was alleging discrimination based upon national origin, disability, and retaliation. He identified the beginning date of the discriminatory conduct as December 1, 2011 and the last date as the date he filed the charge, though he did check continuing action as being what the charge related to. This led to another modified work duty contract. He also requested leave under the family medical leave act, which was granted. On June 5, 2012, the University Medical Center sent Martinez a letter indicating that because his medical condition remain unchanged and Martinez confirmed he would not be able to return to work, he was a candidate for a medical separation. Under that system, University Medical Center conducts a 30 working day job search for available alternative work for which that person may qualify with or without an accommodation. He applied for numerous job but did not get any of them. As a result, at the end of that time, he was advised by the University Medical Center that he had 10 days under his collective bargaining agreement to file a grievance or he would be terminated. He did not file any such grievance and he was terminated. Further, he did not file a separate charge of discrimination with the EEOC relating to his efforts at finding another job at the University Medical Center that he could perform with or without reasonable accommodations nor did he file a charge relating to his separation from employment. After the EEOC issued a right to sue letter on the claim that he did file, he sued alleging disability discrimination from the December 1 incident, his efforts to find another position, and his eventual separation from employment. He also alleged retaliation for his refusal to perform work that would have violated his Doctor’s restrictions and for retaliation for filing his EEOC claim. Finally, he also alleged that he was discharged for filing a worker’s compensation claim in violation of Nevada State law.

II
Issues:

1. Did the plaintiff exhaust administrative remedies with respect to all of his ADA claims?

2. Was the plaintiff a person with a disability since his disability was only temporary?

3. Did University Medical Center have the obligation to engage in the interactive process?

4. Did an adverse employment action occur?

5. Are compensatory and punitive damages available for a retaliation claim available?

6. Do the ADA retaliation claims survive a motion for summary judgment?

III
Holdings

1. No

2. Temporary Disabilities are covered by the ADA as amended.

3. No

4. Yes

5. No

6. Yes, but not for the reasons you expect.

IV
Court’s Reasoning

Issue 1

1. The December 1 charge survives because the EEOC charge clearly describes that claim.

2. A court cannot consider incidents of discrimination not included in an EEOC charge unless the new claims are like or reasonably related to the allegations contained in the EEOC charge. A claim is like or reasonably related to allegations contained in the EEOC charge if the claim falls within the scope of the EEOC’s actual investigation or an EEOC investigation that can be reasonably expected to grow out of the charge of discrimination. Factors a court considers in making that determination include: the alleged basis of the discrimination; dates of discriminatory act specified within the charge; perpetrators of discrimination named in the charge; and any locations at which discrimination is alleged to have occurred.

3. The driver in all of this is the factual statement contained in the charge. Since EEOC charges are generally prepared by laymen, the court construes charge language with “upmost liberality.” However, principles of notice and fair play do act as a limit on judicial tolerance. That is, a plaintiff does not have the unlimited ability to extend the claim endlessly beyond the bounds and parameters of the administrative charge because to allow such unwarranted extensions of the scope of the investigation effectively nullifies the administrative exhaustion requirement and converts it into a simple notice requirement that some claim may be brought. That in turn deprives private employers of the opportunity to resolve issues at an early stage and renders the EEOC and state level equivalent agencies unnecessary.

4. The reasonable accommodation claims, the termination claims, and the retaliation claims are not sufficiently like or reasonably related to the allegations in the EEOC charge filed by the plaintiff on January 12 even though all the claims pertain to disability discrimination. While it is true that he alleged continuing violations, he did not allege any facts supporting a pattern or practice of alleged discriminatory conduct. Rather, he just referenced a single incident in his charge against a manager in the department in which he no longer worked in by the time he filed a charge. Therefore, a reasonable EEOC investigation would not have encompassed the various acts related to the plaintiff’s claim that the University Medical Center not only failed to accommodate his disability but then terminated him when he could not find a suitable position.

5. While he did keep EEOC in the loop, at no time did he amend the original charge. Providing documents to the EEOC is not the same thing as amending an original charge. To hold otherwise, allows the plaintiff to avoid requirements for filing a charge, which includes that the charge be filed in writing under oath or affirmation and that the charge be served on the person against whom the charge is made. It would also deprive the EEOC of an opportunity to investigate any new charges. Finally, to hold otherwise would not put the employer on notice of the alleged discrimination nor would it allow the employer an opportunity to address any such issues before the matter goes into litigation.

Issue 2

1. Under the first or second prong of what is a disability under the ADA as amended, an impairment does not have to last for more than six months in order to be considered substantially limiting.

2. Since the University Medical Center failed to address the ADA as amended, it did not meet its initial burden of establishing that the plaintiff was not covered by the ADA at the time of the December 1 incident due to a temporary injury.

Issue 3

1. There was no evidence in the record that the plaintiff had a disability that prevented him from requesting a reasonable accommodation.

2. The plaintiff did not respond to the argument made by the defendant that transferring him to another department where he could perform light duty work was a reasonable accommodation.

Issue 4

1. An adverse employment action includes a suspension. The plaintiff stated under oath that the pathology manager suspended him and that he remained on suspension from December 1, 2011 through January 4 of 2012. Since at this stage of the litigation, the plaintiff’s version of the facts must be accepted as true, the court denied University Medical Center’s motion for summary judgment to the extent was based upon lack of an adverse employment action.

Issue 5

1. Punitive damages may not be recovered against a government, government agency, or political subdivision for an ADA violation.

2. Compensatory and punitive damages are not available for an ADA retaliation claim.

Issue 6

University Medical Center cited no law regarding a prima facie retaliation claim, what constitutes protected activity under the ADA, or pretext and the burdens with respect to summary judgment motions on a retaliation claim. Further, they did not explain the significance of the statement they made that there was no evidence the nondisabled employees were treated more favorably. They also failed to file points and authorities in support of those contentions. Accordingly, by failing to present factual and legal support for its motion with respect to retaliation, the defendant failed to meet its burden under Rule 56 and therefore, summary judgment on this point was denied.

V
Takeaways:

1. Most EEOC charges are filed by individuals and not by attorneys. This case is Exhibit A for why that isn’t always a good idea. Further, you can’t assume that just because an initial charge is on file, the initial charge will cover other related incidents arising subsequent to the initial charge. New EEOC charges or at the very least amending the existing charge, may well be in order. The key is whether the future conduct is like or is reasonably related to the existing charge. As a matter of preventive law, if you are on the plaintiff side, it would probably be a good idea to err on the side of filing a new claim or amending the charge if there is any doubt whatsoever as to whether the new events are like or reasonably related to the charge.

2. Under the first and second prong of the ADA as amended, a temporary disability could well be a disability under the ADA. The six-month figure (transitory and minor), only applies to the regarded as prong.

3. Before an employer has the obligation to engage in the interactive process, they have to be put on some kind of notice that the interactive process is called for as a result of a disability.

4. A suspension is an adverse employment action.

5. It is absolutely true that punitive damages are not available against an entity covered by title II of the ADA. It is also true that punitive damages are not available under the Rehabilitation Act. However, the court just makes the conclusory statements that compensatory and punitive damages are not available for retaliation claims and cites to a Ninth Circuit case. However, as we have discussed here, it isn’t a foregone conclusion that compensatory and punitive damages are not available for ADA retaliation claims.

6. If someone raises an argument in their motions, it is always a good idea to respond to it.