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Litigation over commas: How far Does Title II Extend?

April 16, 2018 By William Goren Leave a Comment

 

My colleague, Jon Hyman, has previously written about what can happen when commas are not used when they should be. You can find that blog entry here. Today’s blog entry raises the question as to what happens when a comma is used when perhaps it shouldn’t have been. The case is Haberle v. Troxell, decided by the Third Circuit on March 20, 2018, and it deals with the question of accessibility upon arrests. The case had various issues, but we are only going to focus on the ADA issue. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning allowing amending of ADA portion of complaint; and takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Timothy Nixon had a variety of mental health problems, including longtime depression. He lived off and on with his longtime partner and their two children. On May 20th, 2013, Nixon had a serious mental health episode involving severe depression and called his longtime partner saying that he was suicidal. He then broke into her friend’s home and took a handgun. He next went to his cousin’s apartment. Fearing for Nixon’s life, Nixon’s partner contacted the Borough of Nazareth Police Department where police officer Troxell obtained a warrant for Nixon’s arrest and then went with other officers to Nixon’s cousin apartment. Upon arriving at the apartment, some of the officers suggested setting up a perimeter and asking the Pennsylvania State police to send in crisis negotiators. Other officers suggested asking Nixon’s partner to help communicate with Nixon. Troxell turned away all those suggestions calling the other officers, “ a bunch of f—ing pussies.” He declared his intention to immediately go to the apartment because that is how they do things in Nazareth. He did exactly that, knocked on the door the apartment, and identified himself as a police officer. Nixon then promptly went into one of the bedrooms of the apartment, turned the stolen gun on himself, and killed himself. According to Nixon’s partner, Nixon was not a danger to anyone and was peacefully drinking beer with his cousin when the police knocked on the door. That said, no allegations were made that Troxell knew what was happening inside the apartment when he knocked. Nixon’s partner then sued alleging a myriad of causes of action, including violation of title II of the ADA.

 

II

Court’s Reasoning Allowing Amendment of ADA Portion of Complaint

  1. The ADA does generally apply when police officers make an arrest.
  2. In order to state a claim under title II of the ADA, a plaintiff has to demonstrate: 1) he or she is a qualified individual; 2) with a disability; 3) who was excluded from participation in or denied the benefits of the services, program, or activities of a public entity, or was subjected to discrimination by any such entity; 4) by reason of his or her disability.
  3. An ADA violation occurs if and when a disabled individual is excluded from participation in or denied the benefits of the services, program, or activities of the public entity, or is subjected to discrimination by any such entity. So, it is the denial giving rise to the claim.
  4. Nothing categorically excludes people who are arrested from the ADA’s broad coverage. So, people who are arrested can be qualified individuals under the ADA, though not always.
  5. Arrestees certainly may have a disability covered by the ADA.
  6. If the arrestee’s disability plays a role in the decision-making process and has a determinative effect on the outcome of that process, i.e., if the arrestee’s disability was a “but for,” cause in the deprivation or harm he suffered, then causation is satisfied.
  7. Police departments fall squarely within the statutory definition of a public entity.
  8. Persuasive precedents indicate that the ADA’s reference to the services, program, and activities of a public entity must be interpreted broadly to encompass virtually everything that a public entity does.
  9. 42 U.S.C. §12132 as phrased makes it unnecessary to figure out whether arrests are a service, program, or activity of a public entity since the very last clause is a catchall phrase prohibiting all discrimination by a public entity regardless of the context.
  10. Discrimination under the ADA includes not only adverse action motivated by prejudice against persons with disabilities, but also includes failing to make reasonable accommodations for plaintiff’s disabilities.
  11. The catchall phrase means that police officers may violate the ADA when making arrests by failing to provide reasonable accommodation for a qualified arrestee’s disability thereby subjecting him to discrimination.
  12. While there is some disagreement in the courts concerning the point during a law enforcement encounter at which the ADA applies to police conduct, no Court of Appeals has held that the ADA does not apply at all.
  13. While plaintiff cannot show deliberate indifference and so the complaint fails with respect to damages, allegations could have been made to show deliberate indifference. Those allegations could have included facts suggesting that existing policy caused the failure to adequately respond to a pattern of past occurrences of injuries like Nixon’s. It might have also included facts indicating that the risk of calculable harm was so great and so obvious that the risk and failure to respond alone supports a finding of deliberate indifference. Accordingly, Nixon’s partner should be given an opportunity to amend her complaint since it could not be definitively said that amendment would be futile.

III

Takeaways:

  1. 42 U.S.C. §12132 actually states: “Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
  2. As an attorney who has done a lot of contracts work over the years, the biggest issue that a contracts attorney deals with when drafting contracts is the difference between parenthetical and restrictive. That is, if information is parenthetical, it is not something that has to be done but could be. On the other hand, if information is restrictive, then it is something that has to be done. Where a phrase is surrounded by commas, the information is parenthetical. If commas are missing, then the information is restrictive. With respect to the actual wording of 42 U.S.C. §12132 it isn’t clear to my mind whether the very last clause is parenthetical because it is surrounded by a comma and a period. It would be an easier call if it was surrounded by commas, then it would be clearly parenthetical. The phrasing of the statute makes it unclear. If no comma appeared after “public entity,” then clearly, “or be subjected to discrimination by any such entity” would be restrictive and an additional requirement. However, the comma is there, which creates in my mind, the argument that it might be parenthetical. On the other hand, if it is indeed the Oxford comma, which Jon discusses in the above-mentioned blog entry, then you get to the same place as it being an additional requirement. So, in this situation, if it is indeed an additional requirement, the drafters would have been better off leaving out the last comma in the series.
  3. Why am I making such a big deal over this comma? The answer is because until this case, I have not seen a title II case talk about accessibility in any other way besides programs, services, and activities. The issue doesn’t come up that often because as the court mentions, title II has been held to apply to virtually everything that a public entity does. Even so, this case says that there is more to it.
  4. Expect this case to be used by plaintiff’s attorneys to say that even if they cannot show that a program, service, or activity is involved, it doesn’t matter because public entities cannot discriminate against people with disabilities even where there is no program, service, or activity.
  5. If the last phrase is indeed a catchall provision going beyond program, services, and activities, then why is the phrase, “program, services, and activities” in there at all?
  6. We have previously discussed Sheehan here. In that decision, both parties told the Court that the ADA does apply to arrests and so the Court didn’t deal with that issue when it decided that certiorari had been improvidently granted.
  7. This case is going to be very interesting to follow because it takes the ADA to a place I have not seen before. One wonders whether the arrests issue will be appealed to the United States Supreme Court. In that eventuality, I don’t even want to hazard a guess at the how the Court will go.
  8. Preventive law would demand focusing on program, services, and activities first with respect to title II compliance. If somehow the situation does not seem to involve a program, service, or activity, then you do want to think about accommodating the person anyway under the so-called catchall phrase. Remember, title II case law is very clear that the ADA applies to just about everything a public entity does. Alternatively, you could elect as a public entity to stand your ground and claim that the last phrase is parenthetical as described above, but that might be expensive.
  9. It isn’t clear from this decision whether the court is looking at causation in terms of mixed motive or but for. They do use the term “but for,” but they also used the phrase, “disability plays a role in the decision-making process….” The reader may want to review this blog entry of mine discussing causation when it comes to the ADA.
  10. Moral of the story is that you can’t be cavalier about when you use commas. That is, there is the Oxford comma, but maybe sometimes it is better off not following that rule strictly and remembering that commas also deal with the issue of restrictive and parenthetical information.

Filed Under: ADA, Federal Cases, Title II Tagged With: 42 U.S.C. §12132, ADA, arrests, but for, catchall phrase, City and County of San Francisco v. Sheehan, deliberate indifference, Haberle v. Troxell, mixed motive, or is subjected to discrimination by any such entity, Oxford comma, parenthetical, Police, police officers, prima facie case, qualified individual with a disability, reasonable accommodation, reasonable modification, restrictive, services programs or activities, Timothy Nixon, title II, University of Texas southwestern medical center v. Nassar

ADA and the High School Athletic Association

February 13, 2018 By William Goren 1 Comment

Before starting the blog for this week, a couple of preliminary matters. First, about a month ago, I hit 300 blog posts. I simply could not do it without the loyal readership of the people here. Thank you! Also, my last blog entry dealing with animals on planes really took off. The Texas Bar informed me that it was a top 10 blog entry for the week (I had posted a link for it on the animal law section of the Texas Bar listserv). So, again thank you!

The case of the day comes from the Seventh Circuit and is A.H. v. Illinois High School Association. The case contains some strange reasoning and a vigorous dissent as well as being about a topic, ADA and sports, that has long interested me. As usual, the blog entry is divided into categories and they are: facts; majority reasoning causation; majority reasoning fundamental alteration; dissenting opinion; and takeaways/thoughts. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff is a three sport athlete in Cross-Country, swimming, and track and field at Evanston Township High School (north suburban Chicago) since his freshman year. He is a full member of the track and field team and has never been prevented by his school or the Illinois High School Association from being on the team or participating in individual school meets. For a paralympian, he is considered an elite athlete and competed at the US Paralympic trials in 2016. The Illinois High School Association is a not-for-profit voluntary association that organizes and regulates interscholastic high school athletic events throughout Illinois. It has a Board of Directors as well as an executive director that oversee day-to-day operations. The Executive Director has complete authority to decide accommodation requests, which can be brought by member schools or by an individual. There is no public criteria the Executive Director consults when evaluating such requests. Further, the Executive Director’s ruling on accommodation requests can be appealed to the ten member board, which then holds a hearing with the student athlete and other relevant parties. The Illinois High School Association does have a nondiscrimination policy for students with disabilities and has established a para-ambulatory division for swimming and a wheelchair division at track and field meets, but it does not have a para-ambulatory division for runners like the plaintiff. Qualification for the State tournament is based upon time, which most people, even able-bodied ones, cannot meet. Certainly, the plaintiff cannot meet that time and even the world record holder in the plaintiff’s classification could not meet that time. Plaintiff requested that the Illinois High School Association create a separate division with different time standards for para-ambulatory runners for the Illinois State championship track meets as well at the annual 5K Road race. The Executive Director denied that request relying on a guidance from the US Department of Education Office of Civil Rights that said that schools were under no obligation to create separate or different activities for students with disabilities. At the District Court level the Illinois High School Association won on summary judgment and plaintiff appealed.

II

Majority Reasoning Causation

  1. The standard for causation under the ADA and the Rehabilitation Act is the same and requires but for causation.
  2. In order to establish causation, plaintiff would have to prove that but for his physical disability, the normal operation of the qualifying times would have allowed him to qualify for State, which is something he cannot do.
  3. Plaintiff has not established that were he not disabled, he would be among the 10% of track and field athlete that qualify for State each year.

III

Majority Reasoning Fundamental Alteration

  1. Plaintiff’s requested accommodations are unreasonable as a matter of law.
  2. The creation of a new division would lower the current qualifying times and make it easier for certain runners to qualify for State or medal in the road race.
  3. The essential nature of a track and field race is to run a designated distance in the shortest time possible. The time standards governing which runners qualify for State championship is the essence of the sport, which is that a person must run as fast as possible to achieve the predetermined times. Those standards ensure a certain level of competition and maintain a necessary scarcity of opportunity. Lowering the qualifying time for State by creating a new division of runners fundamentally alters the essential nature of the sectional and State track and field meets as well as the road race.

IV

Dissent by Judge Rovner

Judge Rovner had a vigorous dissent and it goes as follows:

  1. Judge Rovner agrees that but for causation is the standard.
  2. While but for causation is the standard, she disagrees as to what the but for standard is in this case. For Judge Rovner, the question is whether the plaintiff furnished sufficient evidence to create a material dispute of fact as to whether but for his disability, he would have a meaningful opportunity to qualify for the State finals.
  3. The majority gets it wrong when it concludes that what the plaintiff desires is not only the meaningful opportunity to qualify for State finals but to actually qualify for those finals.
  4. Judge Rovner analogizes the whole thing to a female runner seeking to establish a separate classification for girls. Although it is true that qualifying time for female runners might mean that a female runner is very likely to qualify for the State finals, that is not the same thing as asking to automatically qualify for the State finals. A female runner should not be punished merely because of her hard work and good fortune placed her in the top percentage of female runners. In fact, any female would have standing to file a lawsuit asking for a female division so that she might have the opportunity to participate in a Statewide competition.
  5. A female runner would not need to demonstrate that but for the fact she was born female, she would have a chance to make the qualifying time for the State finals, as it is the opportunity to try that she is missing. The same reasoning applies to a student with a disability.
  6. The current set up of the Illinois High School Association denies the plaintiff a meaningful opportunity to try. How could any athlete ever demonstrate that but for his disability he would qualify for State finals. In fact, the pursuit is absurd.
  7. Creating a new division would not be a fundamental alteration since that is exactly what the Illinois High School Association did when it created a separate divisions for female runners, wheelchair athletes, and runners from smaller schools. When it did that, it lowered the qualifying standards for the State finals by creating a new division with different required qualifications. If doing that altered the essential nature of the State finals and the road race, then any of those division should never have been created or the fundamental nature of the program has already been modified.
  8. Running a designated course and distance in the shortest period of time is not the essential nature of a track or road race. Rather, it is running that race in the shortest period of time as compared to one’s peer group (emphasis in Judge Rovner’s dissent). No one would think it fair if Usain Bolt signed up to compete in the Illinois High School Association State final despite the fact that he could surely run the designated course in the shortest period of time.
  9. The argument that lowering the qualifying standards diminishes the competitiveness of the State championship meet and road race makes no sense whatsoever. That would be the same as arguing that allowing separate division for women and students with disabilities somehow undermines the competitiveness of a sporting event or diminishes the accomplishments of elite male athletes. That would be the same as saying that allowing women to run Olympic track events, where the qualifying times are lower, undermines the competitiveness of the men’s events. It would also be like arguing that Serena Williams playing tennis at Wimbledon or Katie Ledecky swimming at the Olympics somehow strips those competitions of their identity and prestige thereby devaluing the achievement of Roger Federer and Michael Phelps.
  10. The Illinois High School Association created a separate division for smaller high schools, which is particularly good evidence that creating new categories does not fundamentally alter the nature of the program or undermine the competitiveness of the championship. In that situation, there is no physical or genetic reason a runner from a small school could not be able to run just as fast as a runner from a larger school. Instead, a separate division for smaller schools was created for reasons other than just allowing the fastest runners in the State to complete -most likely to allow greater access to the finals for runners who might not otherwise have a meaningful chance to compete in a State finals.
  11. The Illinois High School Association allows only its two top runners to compete in each event at the sectional tournaments, which is the tournament through which runners qualify for the State finals. If they were truly interested in the fastest times, then the Illinois High School Association would only open the finals to the top 10% of runners in the State regardless of gender, ability, school site or sectional results.
  12. The cases cited by the majority only speak to whether a person was otherwise qualified. Here, the plaintiff is otherwise qualified to run in the track event and the reasonable accommodation he requests will not change the nature of any other event or the competition as a whole. The success of any para-ambulatory athlete in no way diminishes the success of any other athlete or alters the fundamental nature of the competition and the majority offers no explanation why that would be the case.
  13. Plaintiff has more than earned the opportunity to compete at the highest levels.

V

Takeaways/Thoughts

  1. It wouldn’t surprise me in the least if an en banc hearing was sought or if it was appealed to the United States Supreme Court. Remember, at the United States Supreme Court level, persons with disabilities have been very successful outside of the employment context.
  2. I find the majority reasoning of but for causation absurd. It reminds me of the time back in 1989 when I published my thesis on wrongful life in the Journal of Health and Hospital Law while getting my LL.M. in Health Law. The problem with that tort is assessing damages. That is how could you say that a person could receive damages for being born? In fact, that is the reason why courts have just about always rejected the tort. In my thesis, I tried to construct an argument as to how damages for wrongful life could be assessed consistent with legal principles (using the mathematical concept of zero is another approach I proposed, but that didn’t make it into my thesis).
  3. It is indeed a futile gesture and an absurd pursuit to ask an athlete to demonstrate that but for his disability he would qualify for State finals. Such a causation requirement means that an athlete with a disability never has the right to have a separate division set up for athletes like him or her absent the good graces of the State High School Association regardless of whether sufficient membership or demand exists for such a division.
  4. Judge Rovner makes a lot of excellent points with respect to fundamental alteration. She notes that the Illinois High School Association has already created numerous other separate divisions and none of those divisions fundamentally altered the nature of their programming.
  5. The majority and dissent both get it wrong when they say that causation under title II of the ADA is the same as under the Rehabilitation Act. Under the Rehabilitation Act, causation is “solely by reason of,” (29 U.S.C. §794(a), while under title II of the ADA, causation is, “by reason of.” (42 U.S.C. §12132).  The term “solely,” is completely missing from the causation standard under title II of the ADA.
  6. Congress when it amended the ADA left the causation standard under title II the same while leaving the Rehabilitation Act causation standard the way it was. The presumption is that Congress knew what it was doing when it did that.
  7. In this blog entry, we discussed that the Supreme Court has held status-based discrimination is subject to a mixed motive standard.
  8. The Illinois High School Association has said that it doesn’t mind creating separate divisions, but it wants it to come from its members rather than the courts. If the majority decision stands, then it is entirely up to the Illinois High School Association good graces to establish subdivisions as a person could never prove causation.
  9. With respect to the fundamental alteration analysis, my view is that Judge Rovner probably got it right. I do think the Illinois High School Association would be in a better position if it could show that the number of paralympians that would be the plaintiff’s peers would be extremely small so that the selectivity of the division would be compromised.
  10. An appeal may resolve the issue of causation when it comes to cases before and after the amendments to the ADA. Also, it would cement causation being different between the Rehabilitation Act and the ADA. Again, if I am on the plaintiff side, I would most certainly go for an en banc hearing and/or an appeal to the Supremes. If it were to go to the Supreme Court, I am not sure how it would turn out. However, it is definitely worth a shot if I am the plaintiff even with the current configuration of this Court.
  11. A guidance from a federal agency, which the majority opinion relied on, may not be entitled to deference. See this blog entry.

Filed Under: ADA, Federal Cases, Guidances, Rehabilitation Act, Title II Tagged With: A.H. v. Illinois high school Association, accommodation requests, ADA, Auer deference, but for, by reason of, Chevron deference, Chevron v. Natural Resources Defense Council, Compared to one's peer group, Evanston Township high school, fundamental alteration, fundamentally alter, genuine dispute of material fact, high school athletic Association, high school sports, IHSA, judge Rovner, Katie Ledecky, Michael Phelps, mixed motive, otherwise qualified, Perez v. mortgage bankers Association, reasonable accommodation, reasonable modifications, rehabilitation act, Roger Federer, Serena Williams, solely by reason of, sports, state championship, summary judgment, time standards, title II, title IX, track and field, University of Texas southwestern medical center v. Nassar

You’re Not Going to Believe This, but I Say Appeal This One to the Supremes before, after, or In Lieu of an En Banc Hearing

March 28, 2016 By William Goren Leave a Comment

First off, I hope that everybody who celebrated Good Friday and Easter had a happy one. Today’s case, Gentry v. East-West Partners Club Management Company, Inc. is a published decision from the Fourth Circuit, which came down on March 4, 2016. I don’t believe in all my blog entries that I have ever taken the position that a plaintiff might want to consider appealing to the United States Supreme Court, particularly on an employment matter, but there is a first time for everything. For the reasons to be explained below, the plaintiff may very well want to consider appealing this to the United States Supreme Court assuming they don’t seek an en banc rehearing first. As in my usual practice, I have broken down the blog entry into categories. They are: facts; the jury instructions; court’s reasoning causation jury instruction; court’s reasoning definition of disability jury instruction; court’s reasoning regarded as jury instruction; court’s reasoning record of jury instruction; why the plaintiff may want to think about appealing this to the United States Supreme Court; and takeaways. The reader is free as always to focus on any or all of the categories.

I

Facts

Plaintiff was an executive housekeeper at the Maggie Valley Club and Resort supervising a staff of 8 to 10 housekeepers at an annual salary of $39,381. In July 2007, she fell at work, injuring her left foot and ankle. She filed for workers compensation benefits. In January 2010 or so, the club’s insurance carrier offered to settle her workers compensation claim, but she declined expressing concern that she might be terminated if she accepted, and instead pursued mediation. In November 2010, her workers compensation claim was ultimately settled at mediation. In December 2010, she was terminated. The club presented evidence that they had been losing money since its inception and was particularly hard-hit during the recession, operating a net loss of approximately $2 million in both 2008 and 2009. They maintained that her position was eliminated solely to reduce costs. However, the plaintiff testified that after her termination she met with an executive of the club who informed her that the club had admitted to terminating her because of the issues with her ankle and because she could be a liability to the club. This testimony was also confirmed by the EEOC investigator, though the executive denied making those statements to the investigator. Plaintiff also presented evidence undercutting the club’s cost-saving rationale, including that the person who had assumed the responsibilities performed only minimal maintenance duties and that his pay eventually increased to be only $4000-$5000 less than hers. She also established that there was no memorialization of the spring and summer 2010 meeting that discussed the club’s restructuring plan, which included a discussion of her termination. Additionally, an executive of the club testified that he only learned of her impending termination in the fall 2010, when the club’s general manager called to inform him of her workers compensation claim. No one contended that she was terminated for reasons related to her work performance or that anyone had ever criticized or complained about her performance. An executive of the club described her as an outstanding employee who did an excellent job. She sued the club and East-West partners for: disability discrimination under the ADA and North Carolina law; sex discrimination under title VII and North Carolina, law; retaliation against the plaintiff for pursuing a workers compensation claim in violation of the North Carolina, law; and a tortious interference claim. After a weeklong trial, the jury found East-West liable for workers compensation retaliation and awarded her $10,000. They also found liability against East-West and the club’s general manager for tortuously interfering with her employment and awarded separate damages of $5000 against each of those. The jury found in favor of the defendants on all other claims. After the plaintiff moved for a new trial, which was denied, she appealed. She argued that the District Court incorrectly instructed jury with respect to the ADA claims (the appeal did involve other issues, but we are just focusing on the ADA ones).

II

The Jury Instructions

  1. The jury was instructed that the plaintiff has to demonstrate that her disability was the but for cause of her termination.
  2. An impairment substantially limits a major life activity if it prevents or significantly restricts a person from performing the activity, compared to an average person in the general population.
  3. Disability discrimination laws are designed to protect individuals who may be perceived as disabled from being discriminated against in the workplace and that you must decide whether a perception that she was disabled was the but for reason that the defendant terminated her employment.
  4. An individual has a record of a disability if the individual has a history of a mental or physical impairment that substantially limits one or more major life activities.

III

Court’s Reasoning Causation Jury Instruction

  1. After discussing in a footnote where the motivating factor standard originated, the court relies on Gross v. FBL Financial Services, Inc., which held that but for was the standard with respect to Age Discrimination in Employment cases.
  2. The 1991 act that added motivating factor standard to title VII also amended provisions of the ADA but did not add motivating factor to the ADA.
  3. While the ADA does contain language incorporating title VII enforcement provisions, that language does not incorporate the specific sections establishing mixed motive as unlawful employment practices.
  4. No meaningful textual difference exists between “on the basis of,” and “because of.” The court cited to University of Texas Southwestern Medical Center v. Nassar as a case supporting this proposition.
  5. While it is true, that legislative history says that “on the basis of,” was inserted so that the emphasis and question of disability discrimination is properly on the critical inquiry of whether a qualified person with a disability had been discriminated against on the basis of that disability takes away the focus on the preliminary question of whether they had a disability in the first place, nothing in that legislative history suggests that the language suggests that the language was meant to lower the causation standard.
  6. The “on the basis of,” language was enacted before Gross, and therefore, is not in response to the causation analysis in that case.
  7. The court also cited to the dictionary, both the new Oxford American dictionary and Merriam-Webster, to say that on the basis of essentially means the same thing as because of.

III

Court’s Reasoning Definition of Disability

  1. The plaintiff did not object to the jury instruction that said an impairment substantially limits a major life activity if it prevents or significantly restricts a person from performing the activity, compared to an average person in the general population and therefore, the jury instruction can only be reviewed for plain error.
  2. To establish plain error, she has to show that: 1) that the District Court erred; 2) that the error was plain; and 3) that the error affected her substantial rights. That is there must be a reasonable probability that the error affected the outcome of the trial.”
  3. Even if the assumption was made that the court’s instruction was erroneous and that the error was plain, she had not shown that it affected her substantial rights as she offered little to suggest that her disability discrimination claims failed because the jury believed that her impairment did not meet the District Court’s definition of substantially limits. She did not contend that the defendants argued to the jury that the standard for disability was demanding or that her impairment was not severe enough. For that matter, she did not demonstrate that the extent of her impairment was a seriously contested issue at trial. There were also plenty of facts from which the jury could have found that her termination was not the result of an impairment to her foot, regardless of how severe. After all, she was not terminated until more than three years after injury and more than two years after her surgery. Further, at no point did her employer complain about her ability to perform her job duties, and in fact, thought she was an outstanding employee. Finally, the plaintiff offered no argument as to how failure to correct this instruction resulted in a miscarriage of justice or seriously affected the fairness, integrity, or public reputation of the judicial proceedings.

IV

Court’s Reasoning Regarded As Jury Instruction

  1. There is a question as to whether the plaintiff promptly preserved an objection to this particular instruction. In any event, the court did not see how she was prejudiced by the instruction as the instruction implicitly conveyed that the plaintiff did not actually have to be disabled.
  2. The District Court acted within its discretion when it determined that the full regarded as instruction proposed by the plaintiff was not warranted under the circumstances of the case after he heard all of the evidence and mindful that the jury was already dealing with complex and nuanced instructions on multiple discrimination and related claims under state and federal law. In particular, the court felt that the jury would get there any way if they believed there was discrimination on the basis of disability.

V

Court’s Reasoning on “Record of,” Jury Instruction

  1. Her contention was that the EEOC regulations contain an additional phrase that a record of having a disability includes a person who was misclassified as having a disability and that phrase was not included by the court in its jury instructions. However, the plaintiff did not object to this instruction, and on appeal, she did not explain how the omitted language applied to her case. Therefore, the court had no basis for finding that the District Court erred or otherwise abused his discretion with respect to this jury instruction.

VI

Why the Plaintiff May Want to Think about Appealing This to the United States Supreme Court

  1. It is absolutely true that Gross, held that but for was the standard for causation with respect to age discrimination in employment act cases. It is also absolutely true that University of Texas Southwestern Medical Center v. Nassar, held that but for causation was the standard with respect to retaliation claims. However, as discussed in this blog entry, which is one of two that is the most popular blog entry of mine of all time, that does not mean that the answer is the same with respect to status-based discrimination. In Nassar, Justice Kennedy is quite clear about the distinction between status-based claim and retaliation claims. Second, Justice Kennedy mentioned that if Congress wanted mixed motive to apply to retaliation claims, it could have inserted the motivating factor provision as part of the section applying to all such claims, such as 42 U.S.C. § 2000 e- 5. The ADA specifically references this provision as the remedies available to a plaintiff alleging discrimination on the title I of the ADA per 42 U.S.C. § 12117(a). Finally, Justice Kennedy specifically cites to the ADA when he says that the ADA is also a comprehensive statutory scheme and that Congress and the ADA clearly spoke to retaliation separate and apart from status-based claims.
  2. As discussed in my blog entry discussing the Nassar case, referenced above, the legislative history clearly mentions that Congress wanted to make clear that the indirect burden of proof, which presumes a motivating factor, was still in play.
  3. It is true that you can find a case from the United States Supreme Court saying that “on the basis of,” and “because of,” are synonymous terms as discussed in this blog entry of mine. However, the person that wrote that decision, Justice Scalia, is no longer with us. Also, his statement in that decision is most assuredly dicta.
  4. All it takes for the court to agree to hear the case is four Justices. There is also the possibility that by sometime next calendar year the Justices may have a very different configuration (keep in mind, I have not yet had the time to do an analysis of Judge Garland’s decisions involving the ADA and the Rehabilitation Act. Also, any such analysis, irregardless of what it might show, is not necessarily a predictor of what he would do on the Supreme Court).
  5. The U.S. District Court clearly got it wrong when it comes to the jury instruction talking about substantially limits. The “prevents or significantly restricts,” language clearly comes from Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, a standard specifically overruled by the ADA amendments act. In particular, the amendment to the ADA specifically states that the EEOC standard, which was far higher than the Toyota Motor standard, was still too high. Also, the amendments act to the ADA specifically gave regulatory bodies the authority to implement definitional terms. When the EEOC took advantage of that authority in 29 C.F.R. § 1630.2(j)(ii), it defined substantially limits as being a matter of whether the person is substantially limited in a major life activity as compared to most people in the general population. That said, the plaintiff in this case with respect to the definition of what is a disability will still have a major problem because the objection to the jury instruction was not properly preserved, and there is a serious question as to whether the facts were such that substantial rights of hers were affected.
  6. Since the EEOC had the authority to implement definitional terms, an argument exists that the record of jury instruction was in plain error because of the absence of the misclassified language. However, even so, the plaintiff did not bring forth evidence to show how that particular absence affected anything.
  7. I don’t think the court’s jury instruction was sufficiently clear with respect to what it means to be perceived as having a disability. That is, the full definition of what it means to be perceived or regarded as having a disability would have clarified things immensely. That said, was the jury instruction such so as to rise to plain error in the absence of an ambiguous preserved objection to the particular instruction?
  8. The court relies on the decision of Lewis v. Humboldt Acquisition Corporation, Inc. from the Sixth Circuit. However, while it is true that the majority opinion adopted in that case adopted the but for standard, it is also true that there were vigorous concurring opinions as well as dissents, and questions were raised about what but for actually means. That is, for example, but for might mean the same thing as substantial factor in torts cases.

VII

Takeaways

  1. If you are not satisfied with a jury instruction that the court comes up with, make sure there is an unambiguous objection to that jury instruction in order to preserve your appeal.
  2. Jury instructions should reference the ADA as amended in addition to any applicable case law.
  3. I do believe it may be worthwhile to take this case up with the Supreme Court, particularly with respect to the mixed motive portion of the jury instruction. Even if Judge Garland is not confirmed, Justice Kennedy has very strong language in University of Texas Southwestern Medical Center v. Nassar making it clear that disability discrimination is status-based discrimination and should be treated differently than retaliation causes of action. To hold that mixed motive does not apply to title I cases would mean that Justice Kennedy would have to disagree with his reasoning in a prior case (if that holds, that would mean in a configuration without Judge Garland, it would still go 5-3 in favor of the plaintiff on the mixed motive question). It would also be interesting to see how the Supreme Court views whether objections to the jury instructions were properly preserved and whether plain error exists. The jury instructions and what actually should have been used are sufficiently different that reasonable jurists might disagree on whether plain error occurred. Also, in the case of the regarded as jury instruction, it was ambiguous as to whether the objection was properly preserved and reasonable jurists may disagree on whether it was preserved or not.

Filed Under: ADA, Constitutional law, Federal Cases, Final Federal Regulations, Title I, Title V Tagged With: 29 C.F.R. § 1630.2, 42 U.S.C. § 12117, Burrage v. U.S., but for, but for causation, Country v. East-West partners club management company inc., EEOC, Fourth Circuit, gross v. FBL financial services, Inc., Jury instructions, Lewis v. Humboldt acquisition Corporation Inc., Maggie Valley club and resort, mixed motive, prevents or significantly restricts, record of, Regarded as, retaliation, substantially limits, title I, Toyota motor Manufacturing Kentucky v. Williams, University of Texas southwestern medical center v. Nassar

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