Jury instructions

Legal Malpractice Risks and the ADA

April 30, 2019 by William Goren Leave a Comment

Previously, I have talked about how the EEOC if it wasn’t the EEOC would have committed legal malpractice in the case we talked about here. From going through my search engine, it doesn’t seem like I have talked about where the legal malpractice risks are with respect to the ADA. In going through my publishing and presenting files, I did find a presentation that I made back in 2012 on the ADA and legal malpractice risks. Our case of the day coming from the Third Circuit, Robinson v. First State Community Action Agency, a published decision from April 1, 2019, is a case where the defense undoubtedly needs to be contacting its legal malpractice insurance carrier. All of this caused me to dig up my 2012 presentation and talk about legal malpractice risks when dealing with the ADA. As usual, the blog entry is divided into categories and they are: elements of a legal malpractice claim; specific ADA legal malpractice risks; case of the day facts; court’s reasoning upholding the jury verdict; and takeaways. As usual, the reader is free to focus on any or all of the categories.

Elements of the Legal Malpractice Claim

The elements of a legal malpractice claim vary depending upon whether litigation or transactional matters are involved. The elements may vary from State to State since legal malpractice is a state matter. Nevertheless, the elements are probably similar no matter where you are. With respect to litigation or a transactional matter, typical elements are: 1) the attorney owes the plaintiff the duty of due care arising from the attorney-client relationship; 2) attorney breached that duty; and 3) as a proximate result, the client suffered an injury. With respect to the injury, the injury is to an intangible property interest caused by the lawyer’s negligent act or omission (actual damages).
With respect to proximate cause in a litigation matter, that breaks down into cause in fact and into legal cause. Cause in fact turns on showing that but for the negligence of the attorney, the client would have prevailed. Legal cause is foreseeability.
With respect to cause in fact in a transactional matter, the question is whether had the undisclosed risk been known, he or she would not have accepted the risk and consented to the recommended course of action.
With respect to damages in a transactional matter, damages are any damages that proximately follow from the client’s acceptance of the advice that fell below the standard of reasonable legal services.

Union Planters Bank, N.A. v. Thompson Coburn LLP, 402 Ill. App. 3d 317, 342 (fifth district 2010).

Specific Legal Malpractice Risks

In Cleveland v. Policy Management Systems Corporation, 526 U.S. 795 (1999), United States Supreme Court said that an SSDI filing may under certain circumstances prevent a person from being able to argue later that the employer did not reasonably accommodate them with respect to the disability because the way the SSDI claim was filed meant that the person with the disability was not qualified to do the job. So, an SSDI lawyer needs to make sure that when filling out the SSDI application that somehow it is made sure that the claim that the person cannot do any job in the economic marketplace is not factoring in reasonable accommodations. Also, the SSDI attorney as a matter of course needs to advise there is a risk that by filing the SSDI claim, a future ADA claim may be put at risk.
Alleging working as the major life activity. In Sutton v. United Airlines, 527 U.S. 471 (1999), the Supreme Court held that to be substantially limited in the major life activity of working, the person must be unable to perform a broad class of jobs. While the ADA amendments did overrule Sutton with respect to mandating mitigating measures be factored into whether a person has a disability, the working as a major life activity part of Sutton is untouched. It is next to impossible for a plaintiff to prevail whenever working as the major life activity is alleged. Further, since the amendments to the ADA broadened the reach of who may have a disability, using working as the major life activity is virtually always unnecessary.
100% return to work or insisting on full duty. In this blog entry, we discussed how 100% return to work policies are dead under the ADA. I have taken that position since the first edition of my book came out in 2000, but as we have seen in our blog, cases now support that position. If your company’s lawyers are signing off on full duty irrespective of reasonable accommodations or are signing off on 100% return to work policies, they have a problem.
If you are licensing counsel and you have a client that is the subject of licensure proceedings because they are either being regarded as having a disability or they have a record of a disability and you don’t know the ADA, the chances are high that your client will be subject to a variety of adverse actions that may not be consistent with the ADA. You don’t want to let that happen. In my opinion, definitely a malpractice risk if it does happen.
Regarded as. Before the amendment to the ADA, it wasn’t clear whether a plaintiff could argue that they needed reasonable accommodation in a regarded as case. The amendments to the ADA explicitly say that a person who is regarded as having a disability is not entitled to reasonable accommodations. If someone doesn’t realize how the law has changed here, a whole heap of trouble can ensue as we find out in the next sections of this blog.

III

Case of the Day: Robinson v. First State Community Action Agency

Facts

Robinson was told by her manager that her work performance was so poor that she either didn’t know what she was doing or she had a disability where she was dyslexic. The plaintiff taking her words seriously decided to undergo testing for dyslexia. The plaintiff sent her manager an evaluation that concluded that she had symptoms consistent with dyslexia and requested certain accommodation from the manager of human resources. The plaintiff was told that any diagnosis she received would not prevent her from performing her work in a satisfactory manner and she was advised to focus on improving her performance. Weeks later she was fired.

During litigation, plaintiff acknowledged that she could not prove she was dyslexic. She proceeded on the theory that she was perceived or regarded as dyslexic by her employer, and therefore, she was entitled to reasonable accommodation the same way someone who was dyslexic would’ve been. Both parties proceeded under this regarded as case theory through litigation, trial, and post trial briefing. Only on appeal, did the defense seek to overturn the jury’s verdict that the regarded as jury instruction was erroneous and therefore, the jury’s verdict could not stand.

Court’s Reasoning Upholding the Jury Verdict

The amendments to the ADA, per 42 U.S.C. §12201(h), make it clear that a person who is regarded as having a disability but who failed to demonstrate that he or she is actually a person with the disability is not entitled to a reasonable accommodation. We actually discussed the case the Third Circuit relied upon for this proposition here.
The defense never addressed the effect of the 2008 amendments until its briefing on appeal.
At no time did the defense object to plaintiff’s regarded as theory despite numerous opportunities to do so.
The defense waived its regarded as argument in several different ways: 1) the defense was routinely confronted with plaintiff’s erroneous regarded as case theory and never objected; 2) the defense never corrected plaintiff’s error of law when plaintiff raised them in the summary judgment proceedings. Instead, the defense responded that plaintiff did not have a substantially limiting impairment; 3) the defense filed no objections to the Magistrate’s report and recommendation when the magistrate held that there was a question of material fact regarding whether the defense considered the plaintiff disabled. Further, the defendants failed to argue that a plaintiff could no longer proceed under the regarded as a disability theory for reasonable accommodation claims in light of the amendments to the ADA; 4) the viability of the regarded as case theory of the plaintiff’s was squarely before the defense again at trial. At trial, the defense voiced support for plaintiff’s proposed jury instruction even though it was informed by the plaintiff that the plaintiff was not arguing that the plaintiff actually had a disability; 5) the defendant specifically agreed that the reasonable accommodation language should be included in the jury instruction anyway; 6) at the charge conference, defense counsel voiced support for the plaintiff’s jury instruction; 7) once the jury verdict came in against the defense, the defense moved for a new trial but did not raise the error in the regarded as case theory at post trial briefing nor did it move for judgment as a matter of law on those grounds.
An alleged error is waived when the defense fails to raise the objection at trial and fails to include it in post trial briefing.
When a party jointly recommends a jury instruction, it cannot later complain about that very instruction. In this case, the defense did not merely failed to object to an instructional error at a charging conference, it also played along with a flawed theory of liability throughout the litigation and ultimately endorsed the specific instruction embodying that theory.
The defense was initially made aware in mid-2016 of the erroneous case theory and did nothing. It also did nothing again at the beginning of trial. Finally, it invited the trial court to use a case no longer accurate that came down prior to the amendments act.
While it is true that the model jury instructions are erroneous, judges and parties are not free to incorporate incorrect legal principles simply because an error exist in a model jury instruction. After all, model instructions are designed to help litigants in trial courts and not to replace their shared obligation to get the law correct when drafting proposed jury instructions. Accordingly, erroneous model jury instructions are no defense.
Verdict of $22,501 affirmed.

Takeaways

I look for a legal malpractice claim to follow here. The damages awarded to the plaintiff was $22,501. Since the plaintiff prevailed, the defense is on the hook for attorney fees. Also, the defense probably spent $100,000-$300,000 defending the claim through trial. It will be interesting to see how the attorney fees award goes since the plaintiff had no business winning their case under the theory they proceeded under. Nevertheless, the plaintiff did take it to trial and prevailed.
The amendments to the ADA made it crystal clear that a person who is regarded as having a disability is not entitled to reasonable accommodations. Accordingly, but for the negligence, the defense would have won. Accordingly, the legal malpractice cause in fact standard for litigation is met here.
Don’t assume model jury instructions are accurate. They do not substitute for knowing the law in the area.
Lawyers owe a duty of competence to their clients. That means if they don’t know the area as well as they need to, get someone involved as early as possible who does. Having been in this business, ADA compliance, since 1990, I have found that lawyers generally don’t do this. Perhaps, that is a reflection of the competitive pressures of law as well as lawyers thinking that all they have to do is look up statutes, regulations, and read case law. This behavior of lawyers doesn’t make a lot of sense. After all, I wouldn’t ask an eye surgeon to operate on a hernia.

This just in. Law 360 is reporting today, May 1, 2019, that the Third Circuit has denied a petition for rehearing in this case.

Applicability of DOJ Service Dog Regulations to Rehabilitation Act Cases

August 21, 2018 by William Goren Leave a Comment

Today’s blog entry deals with the question of whether the DOJ final regulations on service dogs are applicable to a case arising under the Rehabilitation Act and not the ADA. The case is Berardelli v. Allied Services Institute of Rehabilitation Medicine, a published decision from the Third Circuit decided August 14, 2018. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader, of course, is free to read any or all of the sections. As a heads up, the court’s reasoning is quite detailed.

Facts

The facts are pretty egregious. What you have is an elementary school student with dyslexia and epilepsy where the school consistently turned away efforts for her to be accompanied by her service dog to school. The school was subject to title III of the ADA and the Rehabilitation Act but not title II of the ADA. As the child grew older and became more independent, her pediatric neurologist recommended that she obtain a service dog so that the dog could monitor her with respect to any seizures and take action when those seizures occurred. She was okay in second grade with the service dog, but when she switched in third grade to the dePaul school, which had a specialized program for dyslexic students, things went downhill fast even though her mother had served notice that a service dog would be coming to school. In the end, things got so bad that she had to repeat an earlier grade when she transferred to a public school some two years later. In particular, the things that happened included: 1) principal consistently denied the use of a service dog; 2) principal repeatedly denied, citing distraction to others, the use of a service dog even though it was made clear that the service dog would alert during seizures and also could predict and alert to them minutes before they even began; 3) principal denied use of service dog based upon worry about allergic reaction to others and made the dog wear a vest to prevent allergies. The vest overheated the dog and prevented the dog from doing his job; 4) when mother came with the child and the service dog to school, the principal stopped them at the entrance of the school and refused to allow the service dog to enter; and 5) the resistance to the dog continued even when a teacher furnished the principal an article on what seizure alert dogs do, and the family of the student allergic to dogs said that they would get their child allergy shots rather than deny a service dog for a child that needs it. Of course, all this made for an impossible situation for the child since it created a great deal of stress and anxiety and it also caused her to fall behind her peers by a year when she transferred back to public schools.

At trial, the District Court proceeded as if the DOJ service regulations applied to a Rehabilitation Act matter, but in midstream reversed course and said that the DOJ regulations did not apply. Further, it rejected a proposed jury instruction tracking DOJ regulations on service dogs. Instead, the jury instruction it wound up giving instructed the jury that:

To prevail on a claim for failure to accommodate, the plaintiff had to prove by a preponderance of the evidence that the requested accommodation was reasonable. If further defined that term as meaning necessary to avoid discrimination on the basis of disability or, in other words, necessary to permit meaningful participation. Only if the plaintiff prove the accommodation was necessary to avoid discrimination on the basis of disability, the burden then shift the school to prove by a preponderance of the evidence that the requested accommodation were unreasonable.

Understandably, this jury instruction really confused the jurors (I can’t understand it either), but when the jury sought clarification, the court refused to clarify. The jury returned a verdict for the school, and the child’s parent timely appealed seeking reversal of their State law claim as well as a new trial on the Rehabilitation Act claim because the District Court did not properly instruct the jury on the applicable law.

Court’s Reasoning Reversing the State Law Claim and Awarding a New Trial

Since substantive standards for liability under the Rehabilitation Act and the ADA are the same, the service animal regulations interpreting reasonable modifications under the ADA apply equally to reasonable accommodations under the Rehabilitation Act.
The Rehabilitation Act was the first broad federal statute aimed at eradicating discrimination against individuals with disabilities.
§504 of the Rehabilitation Act established that no otherwise qualified individual with a disability shall solely by reason of his or her disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. The Supreme Court has interpreted this to mean that an individual with a disability must be provided with meaningful access and that federally funded programs were required to make reasonable accommodations or reasonable modifications, but not fundamental or substantial one when necessary to assure such meaningful access.
After two decades of experience with the Rehabilitation Act, Congress acknowledged the limited extent of its coverage impeded its effectiveness in eliminating disability discrimination and enacted the ADA.
Congress designed the ADA to fit hand in glove with the Rehabilitation Act leaving intact the scope of protection under the Rehabilitation Act, but extending its reach beyond federally funded programs to three major areas of public life [i.e. title I, II, and III of the ADA].
The most far-reaching portion of the ADA was extending the Rehabilitation Act concepts to places of public accommodations as title III prohibit discrimination on the basis of the disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
Title III of the ADA also codified the concept of reasonable accommodations recognized by the Supreme Court when interpreting the Rehabilitation Act when it adopted 42 U.S.C. §12182(b)(2)(A)(ii). That particular provision says discrimination occurs when there is a failure to make reasonable modifications in policies, practices or procedures where such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities unless a fundamental alteration exists.
While title III and title II of the ADA the use term “reasonable modification,” and title I uses the term “reasonable accommodation,” it is pretty clear that the two terms are interchangeable.
Both the Rehabilitation Act and the ADA recognize that disabilities do not diminish the right to full inclusion in American society. Both statutes also target the same critical areas, including education. Finally, history teaches that both statutes aim to root out disability-based discrimination thereby enabling a person with a disability to participate equally to all others.
As a general rule, repetition of the same language in a new statute indicates the intent to incorporate those provisions and the judicial interpretations of that language as well. Case law interpreting the Rehabilitation Act have used the terms reasonable accommodations and reasonable modifications interchangeably.
Although the Rehabilitation Act and the ADA diverge with respect to the entities they cover and the remedy they provide (I might add they diverge on causation as well), they impose the same substantive liability standards, and therefore, require a unified approach to the reasonableness of accommodations and modifications.
Case law invariably says that the Rehabilitation Act and the ADA are to be interpreted in the same way.
The Third Circuit has assumed that the term reasonable accommodations and reasonable modifications are synonymous. For that matter, the Supreme Court has done the same. Finally, other Courts of Appeals have also recognized that while title III of the ADA uses “reasonable modification,” rather than “reasonable accommodations,” the term did not differ in the standards they create.
The reasonableness of an accommodation or modification is the same under Rehabilitation Act as it is under the ADA. Therefore, while the Rehabilitation Act does not explicitly resolve whether accommodating the use of service animals by individuals with disability is generally reasonable, it is appropriate to consider the DOJ regulations and guidance applicable to the ADA’s reasonable modification requirements when answering that question.
Citing to a case that we discussed in this blog entry, the court said that the service animal regulations are consistent with and a specific application of the reasonable modification requirement of the ADA. More specifically, those regulations present DOJ’s holistic view in enforcing the ADA when it is reasonable and unreasonable to require accommodating service animals.
Defendants do not always have to allow service animals if to do so would fundamentally alter the nature of the program, pose a direct threat to the health or safety of others, or if the animal is either out of control or not housebroken. Further, in a footnote, the court notes that service animal under 28 C.F.R. §§104, 36.104 has a very precise definition namely, any dog individually trained to do work or perform tasks for the benefit of an individual with a disability.
Under the DOJ final regulations on service dogs, a person with a disability proposed accommodation of her service animal is reasonable as a matter of law in the absence of direct threat, fundamental alteration, dog out of control, or the dog is not housebroken.
The DOJ regulations are entitled to Chevron deference.
The DOJ interpretation of its regulations must be deferred to as well because such an interpretation is not plainly erroneous or inconsistent with the regulation.
The DOJ regulations on service dogs fulfill Congress’s intent to provide the broadest feasible access to service animals in all places of public accommodations, with few exceptions.
Considering all of the above, logic dictates that the service animal regulations are no less relevant to the interpretation of the Rehabilitation Act even though they technically are only interpreting the ADA. Accordingly, where no exception for the allowance of a service dog applies per the applicable DOJ regulations, the use of a service animal by a person with a disability is per se reasonable.
Numerous agencies have indicated in one form or another that a person’s request to be accompanied by a service animal is generally reasonable.
HUD has even indicated that the Rehabilitation Act might go even further than the ADA when it comes to service animals. As we have discussed previously, HUD has interpreted the Fair Housing Act as going further than the ADA.
While responsibility for administering the Rehabilitation Act was not delegated to a single agency, the body of work of the agencies implementing the Rehabilitation Act does constitute a body of work that courts and litigants can resort to for guidance.
Congress has given no indication that service animals should be less accommodated in the school setting then in another setting covered by the Rehabilitation Act or the ADA. In fact, the Rehabilitation Act specifically notes that individuals with disability continually to encounter discrimination in education. Further, the Rehabilitation Act at 29 U.S.C. §701 has an integration and inclusion requirement built into it.
Claims alleging failure to accommodate under the Rehabilitation Act involve the same inquiry as those alleging failure to accommodate under the ADA, namely: 1) was the requested accommodation reasonable?; 2) Whether the requested accommodation was necessary; and 3) would the requested accommodation fundamentally alter the nature of the program?
The jury instructions were flawed for two reasons. First, the accommodations were reasonable as a matter of law in light of the facts as applied to the DOJ final implementing regulations. Second, the jury instructions confused the reasonable accommodation with the separate requirement that the accommodation be necessary. Accordingly, the jury wasn’t instructed properly.
Compelling evidence existed that the dog accompanying the child was indeed necessary for providing meaningful access to the school’s programs and activities.
The alternatives offered by the school simply did not cut the mustard (the court uses the term, “woefully short.)” In particular, the child was subjected to additional safety risk, increased anxiety leading to more seizures, and a gaping educational deficit causing her to regress to a prior year when she transferred to a public school. Further, forcing the dog to wear a vest prevented the dog from doing the job it was supposed to do.
The facts and the law are such that a reasonable jury would award a verdict for the plaintiff.
In a footnote, the court notes that where a trial judge rules early in litigation that a rule of law applies to the facts and that ruling shape the course of the trial and strategy, but then the judge reverses course, the parties may be prejudiced under a doctrine called law of the case.
Dismissing the state law claim was improper because while the liability standards for the Pennsylvania Human Rights Act and the ADA are the same, the remedies are not. More specifically, the Pennsylvania Human Rights Act expressly permits damages. Further, the Pennsylvania Human Rights Act specifically has a provision that prohibits places of public accommodation from denying any person the use of a guide or support animal in order to access accommodations, advantages, facilities, or privileges of a place of public accommodations. Accordingly, the dismissal of the Pennsylvania Human Rights Act claim has to be reversed.

III

Takeaways

Absolutely mind-boggling to me the efforts that the mom went through to get the school to do the right thing. Few people would have stayed with it that long. Curious, as to why the board of the school was never contacted. At least, nothing in the opinion indicates as much.
Also, mind-boggling to me is the school’s behavior with respect to service dogs. Certainly, not good preventive law at all. I can only imagine how much money was spent on the defense in this case and the appeal only to see it all go up in smoke. Further, liability is certain as is damages. So, the defense is going to have to pay for its attorneys fees, plaintiffs attorneys fees, and whatever damages are awarded. Hard to believe this case won’t settle for a substantial sum and a substantial award of attorney’s fees.
The court’s reasoning is exhaustive. Hard to argue that the Rehabilitation Act and the ADA should not be interpreted in the same way.
I find it interesting that the Administrative Procedure Act did not come up. Ordinarily, the way that it works is that the agency responsible for implementing the regulations goes through a rule making effort. Once that effort has been completed, those regulations become final and are binding upon the courts. So, each agency could through the rulemaking system have its own spin on service dogs. The problem here is, as the court noted, the Rehabilitation Act does not designate a single agency for carrying out the law. That is not the case with the ADA (it’s either the EEOC or the DOJ). The lack of a single agency being given implementing authority may be another reason why the DOJ regulations could be imposed upon the Rehabilitation Act.
Considering the United States Supreme Court decision in the case we discussed here with respect to service dogs, I don’t see how an appeal by the school to the Supreme Court will be successful.
The decision is published and is thereby likely to be cited frequently around the country.
The DOJ service dog implementing regulations are entitled to deference. That shouldn’t surprise readers of this blog as we discussed that issue many moons ago here.
One does not have to look further than this case to realize that jury instructions are a big deal.
Who is educating the judges? I had the privilege of doing an education training session on service dogs and effective communication to municipal judges in Georgia. This case does raise the issue that District Court judges when they are getting trained should revisit the ADA as part of that training. It would make a difference with respect to service dog issues as well as accommodating people with disabilities in the court system generally (the latter issue we discussed previously in our blog, such as here).
Schools need to be aware that the world does not end with IDEA, but rather they have to consider the ADA and the Rehabilitation Act as well.
While title III of the ADA does not contain a right to damages, applicable state law might. Further, applicable state law may have a much lower threshold for coverage than the ADA does.
What this case says is that interpretation differences between the Rehabilitation Act and the ADA are going to be few and far between, if ever. The biggest difference out there now is that causation and damages (damages would be different if a title III matter was involved), are different between the two laws.

Mandatory Reassignment yet Again, Rule 59(E), EEOC Legal Malpractice?, And Other Matters

December 12, 2016 by William Goren 1 Comment

I know I said that last week’s blog entry would be my last substantive blog entry of the year, but events can always happen to change my mind. Recently, the 11^th Circuit came down with a published decision on December 7, 2016, in EEOC v. St. Joseph’s Hospital, Inc. , which has several issues worth talking about, including: what it means to have a disability; whether a person is a qualified person with a disability; whether the ADA mandates reassignment when a person is no longer qualified to do the job they are currently in; Rule 59(e) motions, EEOC legal malpractice, and why it is important for a plaintiff to have their own attorney. As is usual, the blog entry is divided into categories and they are: facts; was the plaintiff a person with a disability under the ADA; was a plaintiff a qualified individual under the ADA; does the ADA require mandatory reassignment where a person is no longer a qualified individual with a disability for their current job; whether the court erred in granting a Rule 59(e) motion; did the EEOC commit legal malpractice; is there a Circuit court split; and takeaways. Of course, the reader is free to concentrate on any or all of the categories. Later in the week, I will be posting my top 10+1 blog entries of 2016 as determined by your views.

Facts

In short, the plaintiff sought a reasonable accommodation in the form of a job reassignment to another unit at the hospital because she required the use of a cane that posed a safety hazard in the psychiatric ward where she worked. She was given the opportunity to apply for other jobs at the hospital, but was required to compete for them. When she did not obtain another hospital position, the hospital terminated her employment and the EEOC brought suit on her behalf. While that is an excellent summary, much more detail is needed. In particular:

Plaintiff had a condition called spinal stenosis. She also developed arthritis and underwent hip replacement in 2009. It was at that point in time she began to use a cane to alleviate her back pain and to provide support. Without the cane, the plaintiff, 62 years old and obese, could only walk short distances and would need to stop to realign her body.
During the course of a disciplinary action in October of 2011, she was observed using a cane in the psychiatric ward. The Director of Behavioral Health Operations was concerned that patients could use the cane as a weapon. Once the plaintiff was demoted, the hospital advised her that she could no longer use the cane in the psychiatric ward because it posed a safety risk.
The Manager of Team Resources spoke to the plaintiff and offered her the opportunity to remain employed with the hospital and gave her 30 days to identify and apply for other positions.
Normally, the hospital did not permit an internal candidate to apply for a transfer unless they had been in the current position for at least six months and had no final written warnings in their record, and the plaintiff met neither criteria. Even so, the hospital waived the requirements and allowed her to compete with other internal applicants as opposed to being in the general pool of job applicants. Although the hospital authorized the plaintiff to apply to internal channels as an active employee, all of her job applications were as an external applicant.
The Team Resources Director told the plaintiff that it wasn’t the hospital’s job to get a job for the plaintiff, but they were available to answer questions and guide her through the process. She also stated to the plaintiff that she was not charged with reassigning the plaintiff to another position.
The plaintiff advised the Team Resources Director that she was going on vacation for two weeks at the start of the 30 day period, and that she would not look at the hospital’s job board until her return. The plaintiff never came to the Team Resources Director with questions about the application process, the website, or the particular details of any position. Further, she did not apply for another position until November 11, 2011, which was three weeks into her 30 day allowance. A hospital job board listed over 700 jobs available. The plaintiff did apply for seven positions, three of which were applied for on the last day of the 30 day period and one of which she applied for after her 30 day application had expired.
At trial, the parties focused on three positions that the plaintiff applied for during the 30 day period: educational specialist, care transition coordinator, and home health clinician. The plaintiff was not interviewed for any of these positions.
Following the expiration of her 30 day application, the hospital terminated the plaintiff, but she continued to have access to the hospital’s job board. Even so, she only applied for one additional position on December 17, 2011. Had the plaintiff been further along in the interview process at the 30 day mark, the hospital would have also extended her employment to allow time for the interviewing process.
At trial, the trial court instructed the jury as follows: the jury first had to determine whether the hospital had failed to provide a reasonable accommodation by not assigning plaintiff to the educational specialist, care transition coordinator, or home health clinician position; if yes, the jury had to decide whether the hospital established its affirmative defense that it made a good-faith effort to provide a reasonable accommodation; if no, the jury had to figure out whether the hospital established its affirmative defense that the proposed accommodation would have constituted an undue hardship; and if no, the amount of damages that should be awarded.
Both the EEOC’s and the hospital’s proposed verdict form required the jury to cease deliberations upon a finding that the hospital made good faith efforts to reasonably accommodate the plaintiff.
The jury answered the first question yes finding that the hospital failed to provide a reasonable accommodation. They also answered the second question yes finding that the hospital made good faith efforts to identify reasonable accommodations for the plaintiff. In accordance with the jury verdict form, they then ceased deliberations. Neither party requested the District Court to instruct the jury to render a verdict on the undue burden defense, in addition to its finding of good faith. Accordingly, the District Court entered judgment in favor of the hospital.
Perhaps, in an effort to undo its mistake, the EEOC filed a rule 59(e) motion for alteration of the judgment asking the district court to vacate the good-faith finding, find the hospital liable, and remand for a trial and damages. The EEOC argued the jury’s good-faith finding applied only as a defense to compensatory and punitive damages and not as a defense to liability. The court held that good faith was a defense only to jury awarded damages and not to liability. It then turned to equitable relief and decided that the plaintiff was entitled to reinstatement. The District Court ordered the parties to mediate to determine the specific parameters for the plaintiff’s application for reinstatement, but after one month, the mediator notified the court that the parties had reached an impasse. Plaintiff eventually found full-time work as a telephonic behavioral nurse at a satellite of the MacDill Air Force Base.

Was the Plaintiff A Person With A Disability?

The plaintiff had spinal stenosis and had undergone hip replacement in 2009. The evidence clearly shows that she was substantially limited in her ability to walk. She depended on the cane to alleviate back pain and provide support for her hip. Without it, she could only walk short distances and would have to stop, line up her body, and balance herself.
Walking is a major life activity under the ADA.
With the amendments to the ADA, the threshold issue of whether a person has a disability does not require extensive analysis. Accordingly, plaintiff was a person with a disability under the ADA.

III

Was The Plaintiff Qualified Individual Under The ADA?

It is not relevant whether the plaintiff could perform her then-current job in the psychiatric ward because she sought reassignment. When an employee seeks reassignment as a reasonable accommodation, the critical question is deciding whether she is a qualified individual for those new jobs and not whether she was qualified for her current position. That view is supported by the ADA itself, 42 U.S.C. §12111(8), which says that the relevant position is the one that the individual holds or desires.

Does the ADA Require Reassignment Without Competition for A Person with A Disability No Longer Qualified for Their Current Job and Who Is Seeking Reassignment?

While the ADA says an employer must reasonably accommodate the employee with a disability, it does not say how an employer must do that. Rather, it offers a nonexclusive list of accommodations that may be reasonable with one of them being reassignment to a vacant position.
The ADA does not say or imply that reassignment is always reasonable. In fact, the use of the word “may,” argues just for the opposite. Namely, that reassignment is reasonable in some circumstances but not in others.
In the 11^th Circuit, employers are only required to provide alternative employment opportunities reasonably available under the employer’s existing policies.
In a footnote, the court notes that had Congress understood the ADA to mandate reassignment, it could easily have used mandatory language but it did not. Such a decision reflects that Congress did not intend reassignment to be required in all circumstances.
Requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable in the run of cases. Since employers operate their businesses for profit, as a general rule, which requires efficiency and good performance, passing over the best qualified job applicants in favor of less qualified ones is not a reasonable way to promote efficiency or good performance. Further, when it comes to hospitals, the well-being and lives of patients can depend upon having the best qualified personnel. Undermining a hospital’s best qualified hiring transfer policy imposes substantial costs both on the hospital and potentially on patients as well.
The intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities.
The ADA was never intended to turn non-discrimination into discrimination against persons without disabilities.
The ADA is not an affirmative action statute and only requires the employer to allow the person with a disability to compete for the job; it does not require the employer to turn away a superior applicant. Accordingly, the District Court did not err by failing to instruct the jury that the ADA requires reassignment without competition.
The 30 day period to identify a new position was a reasonable amount of time. In particular: in addition to the 30 days to find a job, the hospital told her that the time period would be extended for any position for which the plaintiff was being considered; the Team Resources Director instructed the plaintiff’s supervisor to check with her before terminating the plaintiff’s employment because the Team Resources Director knew that plaintiff could still have outstanding applications at the time; and even once terminated, the Team Resources Director told the plaintiff she could continue identifying and applying for positions.
The evidence was such that the jury’s verdict that the hospital failed to reasonably accommodate the plaintiff by not assigning her to one of the three positions was not an appropriate one to be disturbed.
The evidence also supported the jury’s finding that the hospital acted in good faith when it: waived the prohibition against applying for an internal job transfer despite the plaintiff’s disciplinary history and demotion; assigned a person to assist the plaintiff in the application process for other positions and gave her 30 days to identify and apply for jobs; waived the requirements for internal transfer; and would have extended her employment if she was in the process of seeking reassignment to another position.

Did the Court Err in Granting the Motion to Alter the Judgment?

Both parties proceeded as if a good-faith finding absolved the defendant of all ADA liability.
The EEOC’s own proposed jury instructions and verdict form read together, treated good faith as a complete defense to liability. The verdict form unequivocally did so by instructing jurors that if they found that the hospital had made a good-faith effort to identify and make a reasonable accommodation for the plaintiff, they were to end of deliberations without deciding whether the plaintiff’s requested accommodation would impose an undue hardship on the hospital.
The jury instructions on good faith and undue hardship both state that a finding of either good faith or undue hardship obviates the need for a verdict on damages.
Undue hardship is a complete defense to ADA liability.
No doubt exists that any reading of the jury instruction and verdict leads to the logical conclusion that the parties believed that the jury’s finding of good faith equated with a hospital verdict.
It was only after the District Court entered judgment that the EEOC filed a rule 59(e) motion for the first time raising the issue that good faith only precludes jury awarded damages. As such, this rule cannot be used to raise new legal theories or arguments, much less one contradicting verdict forms or instructions that the moving party proposed to the District Court.
Accordingly, the District Court abused its discretion and should have denied the motion and left in place the original judgment for the hospital instead of allowing the EEOC to correct it decision because of its poor strategic choices.
Since the Rule 59(e) standard was not met, the court specifically declined to address whether a good faith defense is an absolute defense to ADA liability. For that matter, it wasn’t necessary to address the hospital’s undue burden defense or the denial of equitable remedies to the plaintiff.

Could You Argue That the EEOC Committed Legal Malpractice?

The ADA makes it quite clear that good faith is a defense to damages (see, 42 U.S.C. §1981a(a)(3), but not to liability. Accordingly, if an employer shows good faith, they can escape damages, but that does not mean they can escape equitable relief.
In light of that, it is quite odd that the EEOC did not ask the court to render a verdict on the undue burden defense, in addition to its finding of good faith.
Even assuming the EEOC committed legal malpractice, an argument which I think can be made, does the plaintiff have any recourse. That is, could the aggrieved person sue the EEOC for legal malpractice? The answer is unequivocally no because the EEOC cannot engage in an attorney-client relationship with an aggrieved person since it does not represent that person’s interest. See Adler v. United States, 2012 U.S. Dist. LEXIS 3321 (D. Nev. January 10, 2012).

VII

Is There a Circuit Court Split?

The Seventh Circuit has an opinion on mandatory reassignment that we discussed here. As discussed in that blog entry, the Seventh Circuit took the following approach. First, one has to decide whether mandatory reassignment was ordinarily, in the run of cases, a reasonable accommodation. Second, if so, are there fact specific considerations particular to the employment system that create an undue hardship and make the mandatory reassignment unreasonable. Third, the employee has insert to show that the accommodation is of the type that is reasonable in the run of cases. Fourth, if the employee makes that showing, the burden then shifts to the employer to show that granting the accommodation would impose an undue hardship under particular circumstances of the case. Finally, if the accommodation is not shown to be a type of accommodation reasonable in the run of cases, the employee can still prevail by showing that special circumstances warrant a finding that the accommodation was reasonable under the particular circumstances of the case.
In the Seventh Circuit, the ADA requires employers to appoint employees with disability to the vacant position unless an undue hardship is present or a collective bargaining agreement dictates otherwise.
Comparing the Seventh Circuit decision, including the one from the Northern District of Illinois, with the 11^th Circuit, there certainly seems to be a difference in tone between the Seventh and 11^th Circuit, particularly with respect to burdens of proof. Also, while not a direct conflict between Circuits, the 11^th Circuit opinion is certainly in conflict with the decision from the Northern District of Illinois, which we discussed in this blog entry. In that decision, Judge Kennelly held that an attempt to reassign an employee with a disability to an alternative position is required where that an employee cannot perform the essential function of her position and there are no other available accommodations. He also said that in considering reassignment to a different position, the employer must make a reasonable effort to explore the possibilities with the employee.
The 11^th Circuit specifically relies on Huber v. Wal-Mart Stores, a decision which the Seventh Circuit specifically disowns in their decision, for the proposition that the ADA allows for competitive bidding.

VIII

Takeaways:

If this case shows anything, it shows the importance of a plaintiff having his or her own attorney to represent his or her own interest. If the EEOC brings a claim, the actual person alleging discrimination has the absolute right to intervene. If that had happened in this case, presuming an attorney well-versed in the ADA represented the plaintiff, the attorney for the plaintiff could have argued at trial that good faith was not an absolute defense to all ADA liability and upon winning that argument, the jury verdict form would have been corrected. That would have prevented all the problems.
I think an argument can be made that a Circuit court split does exist now on mandatory reassignment. Certainly, the 11^th Circuit relying on Huber with the Seventh Circuit explicitly saying they were overruling a case that relied on that decision indicates as much. We also do not know who the next Supreme Court Justice will be. Keep in mind, 60 votes of the U.S. Senate will be needed for the U.S. Supreme Court Justice to even be considered. That said, the United States Supreme Court, even as currently configured, has not been a big fan of affirmative action lately, or anything resembling it. So, competitive bidding is something likely to appeal to the U.S. Supreme Court. Also, competitive bidding is definitely something likely to appeal to the new incoming president considering his business background and his well-known statements over the years of saying that the only thing he is interested in is the best person for the job.
Correcting strategic errors are not grounds for a successful Rule 59(e) motion.
Whether a person has a disability under the ADA doesn’t usually require extensive analysis.
When dealing with cases of reassignment, the issue is entirely focused on whether the individual is a qualified person with a disability for the job that they are seeking. It of course assumes that the person is no longer qualified for the job they currently hold.
30 days for a person to find another job is a very tight timeframe and an aggressive policy by the employer. One thing this case shows, is that having a policy on reassignment of workers with disabilities is a must. It seems to me that this employer took a chance by being so aggressive in that it gave the employee little time to find a job and the employee had to do it all by herself. Preventive law suggests a better approach might be actively assisting the employee to find a suitable position.
A plaintiff should take full advantage of what an employer offers with respect to finding other jobs in the company when they are no longer qualified in ADA parlance for their current job. Also, the employee would be wise to put off that vacation and take it while in between jobs rather than while the time is running out on their current job.
If you are going to go with the competitive bidding route, my guess is that the Supreme Court will ultimately agree that you can comply with the ADA by using a competitive bidding process, as a preventive measure, it is a good idea to have your reasons in order as to why you hired other candidates and not the person with a disability seeking reassignment.
Jury instructions are critical. Here, it should have been made clear that undue hardship is an absolute defense to ADA liability but if not shown, there can still be ADA liability regardless of whether the employer acted in good faith.
Due to “the strategic errors,” of the EEOC in this case, I don’t think this case would be the best one to take up with the United States Supreme Court.
Attorney fees is an interesting question. The plaintiff winds up losing despite getting a couple of favorable verdicts. But for the EEOC strategic errors, the plaintiff could have received equitable relief. Not sure about the equities in awarding attorney fees where the strategic errors were responsible for jettisoning the case and where the plaintiff did not have her own counsel.
About that jury instruction… A jury instruction that gets it right so to speak like might look like this: 1) Did the employer fail to provide a reasonable accommodation by not assigning plaintiff to a particular job; 2) If yes, did the employer establish its affirmative defense that it made a good-faith effort to provide a reasonable accommodation; 3) If no, what is the amount of damages that should be awarded? 4) Regardless of the answer to whether the employer made a good-faith effort to provide a reasonable accommodation, did the employer establish its affirmative defense that the proposed accommodation would constitute an undue hardship?

Jury instructions

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