Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

McDonnell Douglas

Judge Kavanaugh and Persons with Disabilities

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Before getting started on the blog entry of the week, next week is the Jewish new year. I want to take the opportunity to wish all of my Jewish brethren a happy and healthy new year for them and their families. It also means that no one should be surprise if the blog entry for next week goes up on Wednesday since Monday and Tuesday are the Jewish new year.

As I write this, Judge Kavanaugh is appearing before the United States Senate. Previously, I wrote about how then Judge Gorsuch might deal with persons with disabilities on the Supreme Court, and I promised I would do the same for Judge Kavanaugh. So, I did a search for the cases involving the ADA and the Rehabilitation Act to see how he went about dealing with the rights of persons with disabilities. I also looked into Chevron and Auer deference as well. The blog entry will be divided into two categories. First, the cases and a brief description of what Judge Kavanaugh decided either by joining an opinion, concurring, or dissenting. Second, overall themes of his jurisprudence. I will say that unlike Judge Gorsuch I don’t see an overriding judicial philosophy from the opinions, though there are certain themes that emerge.

I

The Cases

  1. In Adams v. Rice, Judge Kavanaugh joined an opinion written by Judge Tatel with Judge Henderson dissenting reversing summary judgment for the United States Foreign Service. The case involved a candidate for the United States Foreign Service being discriminated against on the basis of her had breast cancer. There are several things that are interesting about the case. First, the majority opinion held that cancer in remission is not a physical impairment. Second, the majority held that sexual relations is a major life activity. Third, a person with cancer in remission does have a record of an impairment. Finally, the majority opinion held that the employer’s knowledge of a physical or mental impairment is sufficient to trigger ADA coverage. That is, to trigger the ADA the employer did not need to know just how the physical impairment substantially limited a major life activity to have ADA obligations.
  2. In Johnson v. Interstate Management Company, LLC, Judge Kavanaugh wrote the opinion where he said: 1) he was not going to find a cause of action if the authority for that was not explicitly laid out in the statute; and 2) the plaintiff did not produce enough evidence to overcome the legitimate nondiscriminatory reason offered by the employer for termination as part of the McDonnell-Douglas process.
  3. In Koch v. Cox, Judge Kavanaugh joined an opinion with Judge Ginsburg and Judge Brown holding an acknowledgment of depression is not the same as putting a person’s mental health at issue where no emotional distress claim existed. The issue in the case was whether to quash a subpoena for the plaintiff’s therapist records. Also, in that case the court noted that it did consider the motivation of the litigant in revoking his consent that his therapist record be disclosed. The court believed that the motivations were not nefarious.
  4. In United States Department of State v. Coombs, Judge Kavanaugh joined an opinion with Judge Garland and Judge Silberman writing in reversing the District Court’s award for summary judgment on behalf of the United States Department of State. The holding of the case was the Foreign Service Board needed to consider the Rehabilitation Act as it goes about its business and had not properly done so.
  5. In Baloch v. Kempthorne, Judge Kavanaugh wrote the majority opinion holding that the plaintiff could not show any adverse action. Also, the plaintiff did not present sufficient evidence to show the employer’s reason for termination was not discriminatory under the McDonnell-Douglas scheme.
  6. In Stuart v. St. Elizabeth’s Hospital, Judge Kavanaugh wrote an opinion holding that a request for reasonable accommodation must be clear before the employer has an obligation to engage in the interactive process. He was part of a per curiam opinion in Thompson v. Rice, holding the same thing as well.
  7. In Long v. Howard University, Judge Kavanaugh wrote the opinion for the court in a §504 case holding that the statute of limitation could begin to run at the time of the request made or at the time of the denial. For a blog entry on this subject, see this one.
  8. In Northeast Hospital Corporation v. Sibelius, Judge Kavanaugh filed a concurring opinion saying that the relevant inquiry was a narrow reading of statutory text.
  9. In Sims v. Johnson, involving a dispute over a settlement agreement, Judge Kavanaugh dissented essentially on the grounds that the motive of the plaintiff in contesting the settlement cut against the claim that the settlement terms should be figured out by the lower court.
  10. In Allen v. Johnson, Judge Kavanaugh joined a unanimous opinion by Judge Rogers giving latitude to the employer with respect to whether the employer held an honest belief. Further, to find that the employer was culpable more evidence was needed than just proximity of the adverse action. Finally, there was no material dispute of fact over the reason offered by the employer as a legitimate basis for the termination.
  11. In Doe by her next friend Tarlow v. District of Columbia, Judge Kavanaugh wrote the opinion holding that he was not inclined to expand statutes as they were written. This is a case that has disability rights advocates concerned. This case involved persons with disabilities in the District of Columbia who could not consent for healthcare and never could consent for healthcare. Further, they had no particular individual whom could exercise such consent. So, the issue is whether the statutory scheme was inconsistent with District of Columbia statutes and the due process clause of the Fifth Amendment. I can see where disability rights advocates are coming from in this case as the opinion is written in a way that some might construe as paternalistic, which is a real sensitive spot for people with disabilities.
  12. In Carter v. Carson, Judge Kavanaugh joined a per curiam opinion holding that the complaint did not satisfy Iqbal/Twombly standards, which we discussed here.
  13. In Hester v. District of Columbia, a special education case, Judge Kavanaugh wrote the opinion where he decided the case based upon a literal reading of the four corners of the critical document.
  14. In Redman v. Graham, Judge Kavanaugh dissented saying that he was not inclined to expand the statute as written.
  15. In Hill v. Associates for Renewal in Education, Inc., Judge Kavanaugh joined an opinion by Judge Wilkins in an absolutely fascinating case. In this case, the court held a request for reasonable accommodation must be related to the limitation rendering the person disabled. The court affirmed the District Court’s conclusion that the plaintiff did not bring forth sufficient facts to establish a hostile work environment claim. However, the court reversed the summary judgment and remanded for trial on the failure to accommodate claim. The case is also fascinating because it came down July 27 of 2018. The related piece is interesting. In just about all cases, I don’t see how the related piece is going to be much of an issue. A big exception would be dealing with the situation where an employee needs a service dog with them because of his or her disability. I could see in that situation a dispute over “relatedness,” assuming that is the standard a court wants to use. See also this blog entry for a similar discussion.
  16. In City of Anaheim, California v. FERC, Judge Kavanaugh said that Chevron deference was not applicable because the statute was clear that what California did was not permissible.

II

Themes

Unlike my review of Justice Gorsuch, I don’t see an overriding judicial philosophy in these opinions. However, I do see certain pillars and they are:

  1. In city of Anaheim, California v. FERC Judge Kavanaugh said, “The precise words of the statutory text matter.” Judge Kavanaugh clearly will look to what the statute literally says and interpret those statutes whenever possible before looking to other matters to explain what the statute might mean.
  2. In a couple of cases, the motivation of plaintiffs with respect to their litigation strategy are a factor in his conclusions.
  3. Chevron deference is not something he is against. However, he doesn’t like to go there unless he has to. With respect to agency interpretations of their regulations, Auer deference, he does not have a judicial opinion on that. However, when I did a Google search on the Internet, I did come across a speech where he praises Justice Scalia’s opinion, which we discussed here, saying that Auer deference should be thrown out.
  4. He seems to be quite comfortable with the McDonnell-Douglas scheme, which we discussed here. Further, he expect plaintiff’s to meet their burden of proof to overcome nondiscriminatory reasons offered by the employer.
  5. We have often said that magic words are not required to trigger the interactive process. Just what words are required depends. With respect to Judge Kavanaugh, the closer a plaintiff comes to magic words, the better off a plaintiff will be in arguing that the interactive process should have been triggered.
  6. Judge Kavanaugh seem to be quite willing to give employers latitude with respect to the honestly held belief rule.
  7. With respect to the rights of persons with disabilities, the two most interesting cases I find are Hill and Long. In the former, Judge Kavanaugh says that the statute of limitations with respect to a reasonable accommodation request can start either at the time of the request made or at the time of denial. In the latter, Judge Kavanaugh joined an opinion saying that the accommodation sought must be related to the disability. Both of those decisions could have a significant impact on ADA jurisprudence if they become the law of the land.

Happy new year y’all!

Honest Belief Rule

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Today’s case, to DeWitt v. Southwestern Bell Telephone Company deals with the honest belief rule. This rule allows an employer to justify a termination if it honestly believes its reason for doing so was valid regardless of whether it actually was. As is usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to read any or all of the sections.

I

Facts

Plaintiff has type I diabetes and is insulin-dependent. She monitors her blood sugar levels many times a day. When her blood sugar levels are relatively low, she experiences sweating, shakiness, fatigue, lethargy, confusion, and poor coordination. She told her managers at Southwestern Bell telephone that she had diabetes and that she may experience low blood sugar levels. At such times, she would need to eat or drink something to correct it. Throughout her employment, defendant allowed her to take breaks to eat or drink in order to raise her blood sugar as needed. On January 21, 2010, plaintiff mistakenly left phone service on a customer’s account after the customer canceled the service. Such an action is known as a cramming violation, which is the failure to remove the service plan from a customer’s account after the customer canceled the service. Such an act is a violation of the defendant’s code of business conduct and a terminable offense. Plaintiff was suspended the following day. On January 29, 2010, plaintiff attended a meeting to address the cramming incident and determine her punishment. As punishment for the cramming violation, her second line supervisor in consultation with the third line supervisor decided to place her on a last chance agreement. That agreement stated that even one incident of failing to maintain satisfactory performance in all components of her job would lead to further disciplinary action up to and including dismissal. Two months later, plaintiff suffered a severe drop in blood sugar while at work and was unable to stabilize her blood sugar even after eating food and drinking juice. As a result, plaintiff experienced lethargy, disorientation, and confusion, and was unable to communicate with anyone. Plaintiff noticed that she was locked out of her computer and called her first line supervisor for assistance. Instead of addressing the computer issues, he informed a manager that he had been monitoring plaintiff’s calls and that she had hung up on at least two customers. The manager responded by doing a dance and saying, “I finally got that bitch.” The first line supervisor told the manager that her behavior was not appropriate whereby the manager responded, “you don’t understand. I’ve been chasing after her long before, since you got here.” A meeting subsequently ensued to discuss the incident whereby the plaintiff said she simply didn’t remember hanging up on people due to her blood sugar not being in control at the time. Nevertheless, the defendant terminated her on March 15, 2010. Plaintiff brought suit and defendant defended on the honest belief rule.

 

II

Court’s Reasoning

In affirming the lower court’s grant of summary judgment for the defendant, the 10th circuit reasoned as follows:

 

  1. When it comes to prtext, the court’s role is not to ask whether the employer’s decision was wise, fair or correct, rather it is to ask whether the employer honestly believed the legitimate nondiscriminatory reason it gave for the conduct and whether it acted in good faith on those beliefs.
  2. Mistaken or poor business judgment is not sufficient to show that an employer’s explanation is unworthy of credibility.
  3. The role of the court is to prevent intentional discriminatory practices and not to act as a super personnel department second-guessing employers’ honestly held, even if erroneous, business judgments.
  4. The critical question is whether a reasonable factfinder could reasonably find the employer’s rationale unworthy of credence.
  5. Plaintiff could not identify any evidence from which a reasonable jury could rationally find that her disability and not the drop calls motivated her termination.
  6. The third line supervisor had a reasonable basis to believe that plaintiff intentionally hung up on the customer considering the complex nature of the hang up process.
  7. Once an employer has put forth a legitimate, nondiscriminatory reason for terminating an employee, the employee may access a variety of evidentiary tools in order to expose the employer’s stated reason is pretext. For example, a plaintiff may raise a triable inference of pretext by showing weaknesses, implausibility, inconsistencies, incoherency, or contradictions in the employer’s stated reason for terminating the employee.
  8. Another option, and a particularly good one, for the plaintiff is to demonstrate that the employer treated employees similarly situated to the plaintiff differently.
  9. So, the honest belief doctrine does not prevent a plaintiff from showing pretext vis-à-vis McDonnell Douglas. Instead, the honest belief doctrine contemplates that an employer would have professed an honest belief in the legitimate nondiscriminatory reason for the adverse action. Even so, that then establishes the context for an employee to test the plausibility or coherency of the reasons supposedly underlying that honest belief with the aim of showing that such a belief actually may not be honestly held. So, it is up to the plaintiff to marshal evidence undercutting the operation of the honest belief rule.
  10. A case out of the Sixth Circuit, Smith v. Chrysler Corporation, turns everything on its head by requiring the employer to establish reasonable reliance on specific facts before it at the time the decision was made. The 10th Circuit has recognized no such obligation on the part of the employer. While the employer certainly can fortify its litigation position by the identification of specific facts it reasonably relied upon in forming its honest belief, McDonnell-Douglas does not require the employer to do that. In a footnote, the court noted that adopting the 10th Circuit rule would not help the plaintiff in any event.
  11. Plaintiff’s failure to accommodate claim fails because instead of requesting a reasonable accommodation to address concerns regarding the possibility of drop calls, she requested retroactive excusal for her misconduct. It simply doesn’t work that way. That is, the ADA as amended does not require an employer to reasonably accommodate an employee’s disability by overlooking past misconduct regardless of whether the misconduct resulted from the employee’s disability.
  12. EEOC Enforcement Guidance states that the requirement to provide reasonable accommodations is always prospective and that an employer does not have to excuse past misconduct even if it is the result of a person’s disability.
  13. Several other Circuits have also said that a requested accommodation excusing past misconduct is unreasonable as a matter of law. So, the ADA as amended does not require employers to accommodate employees with disabilities by overlooking past violations of a workplace rule.
  14. Southwestern Bell Telephone Company code of business conduct is a workplace rule.
  15. Employers are permitted under the ADA as amended to apply the same performance standards to employees with disabilities applicable to employees without disabilities.
  16. An employer has no obligation under the ADA as amended to excuse performance problems occurring prior to an accommodation request.

III

Takeaways:

  1. This is a mixed decision. On the one hand, the honest belief rule most certainly benefits employers over plaintiffs. On the other hand, the 10th Circuit makes it clear that the honest belief rule is not a get out of jail free card for an employer.
  2. For example, evidence of differential treatment and any evidence showing weaknesses, plausibility, inconsistencies, incoherency, or contradictions is fair game for the plaintiff. For a case where the plaintiff did exactly that, see Caldwell v. KHOU-TV.
  3. An employer does not have to overlook an employee’s past misconduct regardless of whether that misconduct resulted from the employee’s disability.
  4. Employers are permitted under the ADA to apply the same performance standard to employees with disabilities applicable to employees without disabilities. While true, don’t forget about reasonable accommodations if you are the employer.
  5. Since an employer is not required to excuse performance problems occurring prior to an accommodation request, it is important for the employee with a disability when needing accommodations to disclose that need to the employer early.
  6. Whenever defending failure to accommodate claims, it always helps if there is a history of reasonably accommodating the plaintiff in the past.
  7. This is a title I case and obviously from the reasoning of the court, mixed motive is very much in play here.
  8. Differential treatment is a hard thing to pull off because of the requirement of finding someone else similar. Nevertheless, see Caldwell above for an example of when the plaintiff pulled this off.
  9. The ruling puts a premium on thorough discovery.

McDonnell-Douglass and the ADA; An Imperfect fit

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In employment discrimination cases, there are two kinds of cases (those involving direct evidence and those involving indirect evidence). Direct evidence cases are the proverbial smoking gun. That is, the plaintiff has explicit evidence that discrimination occurred. However, in most situations, it is difficult if not impossible to find direct evidence, rather things taken together (indirect evidence), indicate discrimination. To deal with the situation of indirect evidence, the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), set forth a paradigm that works as follows. First, the plaintiff has to establish a prima facie case of discrimination (see blog entry on motion to dismiss for some helpful thoughts on that). Second, if the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for the employee’s rejection. Third, if the defendant is able to articulate a legitimate nondiscriminatory reason for the employee’s rejection, the plaintiff must then prove by a preponderance of the evidence that the legitimate, nondiscriminatory reason offered by the defendant were a mere pretext for discrimination. Throughout, the plaintiff has the ultimate burden of persuasion at all times. McDonnell Douglas has a fourth step, which said that after the person have been rejected, position remained open and the employer continue to seek applicant from persons of the plaintiff’s qualifications.

If you are looking for a cite to the above, look at Id. at pp. 802-803, 805. See also Golembeski v. Moorestown Township Public Schools, 2013 WL 1007672, *4 (D. N.J. March 13, 2013).

All this raises two questions. First, if you have a person already working for you and that person is discriminated against on the basis of a disability, is it a defense to say that the position was phased out and therefore, the plaintiff cannot meet a prima facie case because the company did not continue to seek applicants? Second, let’s say that the position was continued to be advertised and that a person was hired to replace the discriminated individual, must the discriminated individual, in order to make out a prima facie case, show that the person hired was outside of the protected class?

Golembeski addresses both issues. Before proceeding further, this case is in unpublished case. Thus, anybody seeking to rely on this should be aware that the various jurisdictions have restrictions on how you can cite unpublished decisions. Thus, while this decision is very useful for guidance, how persuasive it is going to be in a particular court is going to depend upon the court’s jurisdiction rules and upon whether any published authority is out there that might be better than this particular case for the situation at hand.

In Golumbeski, the plaintiff was hired by the defendant in 2004 to be an auditorily impaired paraprofessional whose job was to assist the classroom teacher and work one-on-one with deaf and hard of hearing children requiring more individualized attention than they would otherwise receive. She was expected to help assist the classroom teacher and work one-on-one with deaf and hard of hearing children requiring more individualized attention. When she was hired, the plaintiff alleged that she was told that she would be working primarily with one student and that is what she did. While the plaintiff’s contract stated that her employment terminated at the end of each year, the plaintiff alleged that she did not have to reapply for a position after the 2004-2005 school year and after the 2005-2006 school year. At the end of 2005/2006 school year, the school district informed the plaintiff that she would be transferred to a high school to continue working with the student that she has been working with. However, upon transferring to the high school, the school district informed her that the student she had been working with was going to work with an interpreter instead of a one-on-one aide. She then began working at the high school with a new student who had Downs Syndrome and was also deaf, but after one month, realized that she was not equipped to handle the particular needs of the student and requested a new assignment. She was then transferred to another school, where she worked as an aide and then subsequently transferred to yet another situation where she remained as an aide in the classroom environment until the end of the 2006/2007 school year. At some point during that year, the school district informed the plaintiff that there was going to be a change in the way the deaf classroom works. They informed her that each classroom would have two aids, one of which would be deaf and the other hearing. Since plaintiff worked in a room with another deaf aide, she was informed that the position would not be available for the next school year and she would have to reapply for the 2007/2008 school year. Plaintiff was able to show that at least one other classroom continued to have two non-deaf aides due to the classroom teacher’s preference for hearing assistant despite the change in the paradigm. During the summer 2007, she was told that there were not going to be any positions available for her. Since her benefits were tied to a job at the school district, she decided to apply to any available position in order to remain employed with the school district. She did find and accepted a position as a one-on-one aide with a student with cerebral palsy where she received less pay than she was making prior. She also applied for other positions and then in the process discovered that the school district was continuing to advertise for two openings for the position she originally had, auditorily impaired paraprofessional, and she inquired of her former supervisor why she had not been given one of those assignments if they were available. The former supervisor responded that one was at a school in which she had asked for a transfer and the other was for the classroom she had previously worked in and reiterated the paradigm they were using, saying that the setting was not a good fit for her. She then was placed in several positions for which she wasn’t qualified. After inquiring as to why she was not being given an interview for an auditorily impaired paraprofessional, a job where she had worked successfully in for years, she was granted an interview but did not ultimately get hired. Instead, they hired another person who was hearing impaired. The person hired was also deaf but used a cochlear implant to function like a hearing person. Whereas, the plaintiff was culturally deaf and used ASL to communicate.

As a result of all this, the plaintiff brought suit alleging violations of the ADA for failing to renew her contract, failing to accommodate her in various positions and, failing to hire her to do the type of job she was originally qualified for.

You can find all these facts at Golembeski at **1-2.

With respect to the first issue, the defendant argued that since they did not seek another person to perform the same work that the plaintiff had been doing during the 2006/2007 school year as a result of the position being eliminated, the plaintiff could not meet her prima facie case. The court wasn’t buying this for a couple of different reasons. First, the school district internal emails were inconsistent in terms of how it referred to the position thereby creating an issue of fact as to whether the position had been eliminated at all. Id. at *4.

Second, to the court, the whole argument was a bit of a red herring because in order to make out a prima facie case under the ADA, all the plaintiff has to show is that she: 1) had a disability within the meaning of the statute; 2) was a qualified individual; and 3) had suffered an adverse employment action because of that disability. Id. at *4. The court said that the facts were such that the plaintiff had satisfied a prima facie case. While McDonnell Douglas does refer to continuing applications, the court noted that it was following McDonnell Douglas with respect to the burdens but not because the claim was identical. That is, they specifically noted that McDonnell Douglas explicitly said what is a prima facie case cannot be the same standard with respect to every different factual situation. Id. at *4 at n.5.

Finally, the court said that while it was going through the McDonnell Douglas paradigm anyway, it wasn’t sure that it had to since the defendant admitted that the plaintiff was not rehired because of her disability as well as, to an extent to be determined, her incompatibility with the new model for the program for deaf education (arguably, direct evidence). See Id. at *4 n.2.

With respect to her failure to hire claim for the 2008/2009 school year, the defendant argued that since they had hired a deaf person, there was no way the plaintiff could meet her prima facie case. That is, the argument was that the plaintiff was not able to show that they were ultimately replaced by a person sufficiently outside her protected class to create an inference of discrimination. The court wasn’t buying this either for three reasons. First, the plaintiff noted that the were critical distinction between a person who is deaf with a cochlear implant and a person like the plaintiff who is culturally deaf, and relies on ASL, and therefore a resolution was particularly inappropriate on a motion for summary judgment. See Id. at **5-6.

Second, the court noted that the Third Circuit specifically rejected the requirement that a person in a title VII situation must be ultimately replaced by a person sufficiently outside the protected class because such a requirement was particularly inappropriate when the classification of such individuals was categorical and not continuous. Id. at *6 n.6.

Third, such a requirement was not mandatory in the Third Circuit to begin with. That is, to establish a prima facie case under the ADA for failure to hire, all the plaintiff has to show was that: 1) she belonged to the protected category (person with a disability); 2) she applied for and was otherwise qualified for the job for which the employer was seeking applicants; 3) despite her qualification, she was rejected; and 4) after her rejection, the position remained open and the employer continue to seek applicants. Id. at *5. Filling the position with someone from outside the protected class was not a mandatory thing to show but rather could be shown in the alternative, if the person could not show that after her rejection, the position remained open and the employer continued to seek applicants. Id.

The Third Circuit approach of specifically rejecting a requirement that person needs to be ultimately replaced by a person sufficiently outside the protected class in order to make a prima facie case, has very good policy reasons to support it, particularly with respect to ADA matters. First, the ADA has been amended so that many more people are included within the definition of a person with a disability. Second, and more importantly, no two disabilities, even the same ones, are handled the same by different people. For example, a person who is culturally deaf (born deaf, state schools for the deaf, and ASL) may have the same hearing loss as a person with a cochlear implant, but the way they go about their business is going to be dramatically different. Also, you may have people of the same hearing loss but function entirely differently. In both of these situations, I am referring to people of the same type of disability and even here, it would be very difficult to show true comparability. Let alone, what would happen, if you try to compare different kinds of disabilities with each other.

For the reasons discussed here, I have never really understood how some opinions, and they are not many, try and look for comparatives with respect to ADA matters. Since disabilities are very different, both across disabilities and even within the same disabilities, the full on McDonnell Douglas paradigm fails. Furthermore, this case makes clear that such a paradigm isn’t required in the first place. What this case does, it returns the inquiry to whether the person with a disability of otherwise qualified and whether they were in fact discriminated against rather than focusing on extraneous matters which don’t deal with the question of whether the discrimination of an otherwise qualified individual with a disability took place in the first place. In short, a company, in light of this case, has two choices. The preventive approach would be to narrowly focus on what is a prima facie case as laid out in this decision. That said, a company would be perfectly within its rights to continue with advocacy with respect to positions being eliminated and with respect to hiring people outside of protected classes as being necessary elements of a prima facie case, but such litigation would likely be very costly and complicated, particularly when it comes to comparing disabilities across the spectrum and even within the same disabilities.