I am back from a week of doing the family thing in Chicago. Of course, I need a vacation. That said, nothing like relaxing by putting up a new blog entry. That said, for reasons I don’t know when I pasted the entry from word into the appropriate box in word press (word press is not accessible to voice dictation for the main entry at least for now), I got a very different look and feel than I have seen in the past. I apologize for that and will try to figure out the culprit. I am in the process of revising the look and feel of my web site and blog, and so hopefully everything will improve soon.
Today’s case is Griesinger v. University of Cincinnati, 2016 U.S. Dist. LEXIS 58931 (S.D. Ohio, May 3, 2016). We have talked about the University of Cincinnati before here, albeit at the medical school. We have also talked about in this blog entry (in the comment section), the need to include externship and internship programs in your ADA compliance plan. As is usual, my blog entry is divided into categories, namely: facts; court’s reasoning; takeaways; and preventive steps. The reader is free to focus on any or all of the categories.
Plaintiff was a student in the medical assisting program at Blue Ash College, a University of Cincinnati entity. As a result of being treated as an infant for a brain tumor with chemotherapy and surgery, she has a learning disability. That learning disability includes a significant memory impairment and inability to process information at a normal rate. For example, after a 20 minute delay, her ability to remember information that was verbally related to her is worse than 998 out of 1000 people of her age. In high school, she utilized an IEP and received a variety of accommodations including: extended time to take quizzes or tests; access to a resource room with individualized assistance from an instructor; tests read aloud; the use of notes on tests; the option for a notetaker in class; and a separate, quiet room for taking tests and quizzes. With those accommodations, she graduated high school. Once in college, she provided defendant’s Disability Services Office with a copy of her high school transcript and IEP. The IEP noted that work completion within a specific amount of time is tough for the plaintiff. Further, the mother testified that in the fall of 2008, she accompanied the plaintiff to the Disability Services Office and informed them that plaintiff would need extended time. At the start of each quarter, the plaintiff submitted the accommodation request form listing the accommodation she needed and throughout her enrollment, she requested accommodations for extended time for testing, quiet testing environment, notetaker, and use of a tape recorder. With those accommodations, she completed the class coursework, receiving mostly A’s during the third and fourth years in the program.
In order to graduate from the medical assisting program, students were required to complete a clinical component. That component required 320 hours in a medical setting, split equally between administrative and clinical work. The person in charge of placing students in externship sites said that because placement facilities were limited, she focused primarily on whether a site’s geographical location was accessible for the student. She also acknowledged that the obligation to provide reasonable accommodations under the ADA extended to the student’s externship requirement. In October 2011, plaintiff requested to begin the externship in the spring 2012 term to complete a medical assisting degree. She testified that beyond her accommodation request form, she did not tell defendant she would need any other accommodation related to her externship at Cincinnati Pain Management Consultants. She figured that since this was another class that her teachers would tell them for her because in the manual it said they were going to take into consideration the pace and the flow of each student. On May 3, 2012, Cincinnati Pain Management Consultants informed the externship site coordinator that the externship needed to be terminated for several reasons: plaintiff copied previous entries from a patient’s history instead of writing a new entry concerning the patient’s current symptoms; plaintiff was a slower learner; plaintiff was unable to properly attach a blood pressure cuff; plaintiff would not finish assigned tasks; and plaintiff appeared to have problems with her vision and hearing. After plaintiff was terminated from her externship, the externship site coordinator had a number of meetings with the plaintiff and her parents before placing plaintiff in the second externship site. Plaintiff’s mother testified that at one of those meetings, she and her husband asked the externship site coordinator to make sure that she was with somebody patient who would take the time to train the plaintiff because of her disability. The answer they received were things along the lines of, “no, we expect you to be on the ground running.” The mother also testified that the externship site coordinator was very nonchalant about it and didn’t really want to discuss it. The mother also testified that she told the externship site coordinator that the plaintiff needed repetition and extended time to learn at her second externship site. In particular, at one of the meetings, it was brought up that the plaintiff would need extra time so that she could repeat the task until mastery and then move onto the next task. Otherwise she would be overloaded with a multitude of varying responsibilities. They also asked for someone who could be patient with the plaintiff, understood what a disability was, and understood how she would learn so that she could be successful.
The externship coordinator then arranged a second externship opportunity for the plaintiff at Family Medical Care Associates. The externship site coordinator testified that she told the externship site that plaintiff may need some extra time to learn but did not inform the site that plaintiff received accommodation through the Disability Services Office. Ten days after starting the second externship, plaintiff was terminated from the site because: plaintiff was unable to complete simple clerical task without assistance; plaintiff consistently was unable to take blood pressure, pulse, respiration, temperature (digital speaking thermometer); and plaintiff’s inability to take accurate vitals, perform EKGs, and communicate with patients could well endanger the outcomes of patient health. On July 26, 2012 the externship site coordinator notified the plaintiff by letter that she was being dismissed from the medical assisting program based on her failing grades for the externship site requirement.
In holding that the plaintiff survives the defendant’s motion for summary judgment, the court reasoned as follows:
1. While plaintiff mistakenly in their complaint cited to title III of the ADA instead of title II as relating to the defendant, a liberal construction of the complaint revealed that the defendant was given fair notice of the claim anyway. In particular, in the complaint the plaintiff did allege that the defendant was a public University receiving federal financial assistance. Accordingly, the defendant should have had fair notice of the applicability of title II of the ADA. Further, the defendant fully briefed the issue of a failure to accommodate claim brought under title II and so therefore, knew that title II of the ADA was involved. Finally, federal rules permit pleadings to be amended during and after trial to conform to the evidence presented in the case. Accordingly, the court granted leave to amend her complaint to include the correct title and citation of the ADA.
2. In order to make a prima facie case of dismissal from an academic program in violation of the ADA or Rehabilitation Act, a plaintiff must show that: she is handicapped or a person with a disability; she is otherwise qualified to continue in the program; and she was dismissed on the basis of her handicap or disability.
3. A publicly funded university is not required to provide accommodation to a student under the ADA or Rehabilitation Act until the student provides a proper diagnosis of her claimed disability and specifically requests an accommodation.
4. There is no dispute that the plaintiff is handicapped or a person with a disability. Regardless, a reasonable jury could find that the plaintiff had a disability based upon the IEP, the evaluations of several different doctors, and her history of being granted accommodations in pre-externship coursework.
5. A reasonable jury could find that the plaintiff was otherwise qualified to continue in the medical assisting program with accommodations. For example, when she was granted accommodation for coursework, she received mostly A’s and B’s during her third and fourth year in the program. Further, doctors testified that plaintiff could successfully complete the externship requirement if she received reasonable accommodation for a disability.
6. Plaintiff presented evidence from which a reasonable jury could find that her failure to complete the externship was attributable to a disability and the defendant’s failure to accommodate it.
7. Defendant had granted plaintiff accommodation for years and so a reasonable jury could find that the defendant should’ve required a more extensive diagnosis earlier in the process instead of relying on the lack of a proper diagnosis as an after-the-fact justification for denying plaintiff externship accommodations.
8. A reasonable jury could find that the IEP was sufficient to show that the plaintiff has been diagnosed with a learning disability so as to activate the defendant’s duty to engage in the interactive process concerning accommodations.
9. At a minimum, a genuine issue of fact was created as to whether the plaintiff made a sufficient request for accommodations before the second externship so as to trigger the interactive process. For example, the externship site coordinator had a number of meetings with the plaintiff and her parents before placing plaintiff in a second externship site. Plaintiff also produced evidence that at one of those meetings, the mother asked the externship site coordinator to make sure that she was with somebody patient who would take the time to train her because of her disability. Her mother also testified that the plaintiff needed repetition and extended time to learn at a second externship site. Her father also testified that they reminded the externship site coordinator about the accommodations, things that the plaintiff would need, which they felt she didn’t get in the first externship. Finally, her father testified that he asked the externship site coordinator to communicate the request to someone at the externship site.
10. Defendant argued that tremendous deference should be given to the professional judgment of faculty when considering accommodation requests and academic settings. The court wasn’t buying it because defendant did not provide any evidence that they exercised professional academic judgment in relation to plaintiff’s request for a reasonable accommodation. In particular, defendant did not provide any evidence that they considered plaintiff’s requested externship accommodations and found that they were not feasible or would result in a fundamental or substantial modification to the program. Accordingly, because defendant did not present any evidence that it thoughtfully considered and rejected plaintiff’s request for externship accommodations, deference to professional academic judgments was not warranted.
1. A requirement of an externship or internship or practicum is not unusual at all. For example, before moving down to Atlanta, I was the paralegal program coordinator for South Suburban College in the Chicago area. I don’t know if it is still true, I suspect it is, but the paralegal program there required as a condition of graduation, that a student do two externships.
2. Interactive process is actually a title I requirement and you don’t see it in title II or title III. However, there is a long history in the case law, such as this one, of requiring an interactive process with respect to figuring out reasonable accommodations for current students. Considering both title II and title III require reasonable modifications, it makes no sense that an interactive process would not be a requirement under both title II and title III of the ADA.
3. I am not sure why the externship site coordinator would not have informed the site that plaintiff received accommodation through the Disability Services Offices. Perhaps, they would have been concerned about privacy or the student being stereotyped. In that situation, the University should put in place a consent form that would allow the University to release to the externship site the list of accommodations given by the Disability Services Office.
4. The court uses the term “on the basis,” to describe both Rehabilitation Act claims and title II claims. Matching it up that way doesn’t work because title II claims would be “by reason of,” and Rehabilitation Act a would be, “solely by reason of.”
5. The court refers to not feasible, fundamental, or substantial modification to the program and that also doesn’t work for me because the defenses are fundamental alteration or undue burden.
1. Read this blog entry so as to determine the essential eligibility requirements for an internship, practicum, or externship program. Remember, the standard is whether the person can complete the essential eligibility requirements of the program with or without reasonable modifications/accommodations.
2. Revise as necessary any nondiscrimination policies and procedures in order to ensure that they adequately address and provide sufficient options for responding promptly and appropriately to incidents of discrimination and harassment at the College or University, including all approved fieldwork practicum, internship, and externship sites.
3. Make sure the revised procedures encourage students to report all such incidents and specify that each one will be investigated. Include in those policies examples of the type of conduct and behavior covered by the procedure, if at all possible, and make clear that university-approved fieldwork practicum’s, internship, and externship sites are included in the policy.
4. Provide training, using someone thoroughly knowledgeable about the ADA/Rehabilitation Act, on university nondiscrimination policies and procedures to all staff members affiliated with the selection, monitoring, and approval of practicums, internship, and externship sites.
5. During any investigation, evaluate whether any adjustments or modification could be implemented without fundamentally altering the essential eligibility requirements or resulting in an undue burden.
6. While it is absolutely true that the externship, internship, or practicum sites do not have to cooperate with a university investigation or take any corrective action because they are independent entities, there are two factors that would encourage them to do so. First, make it clear in the externship, practicum, internship site agreement that as a condition of taking on a student, they agree not to discriminate against any student on the basis of a disability (I am presuming a title III entity is the externship, practicum, or internship site. If a title II entity, the appropriate standard would be, “by reason of.)”, and that they agree to cooperate with any investigation and remediate any issues as a result of that investigation. Second, make it clear to them that while the student is not an employee because they are receiving class credit, nevertheless, failure to reasonably modify their activities may activate liability under title III or possibly title II, whichever applicable, of the ADA.
7. If you are representing an entity that takes on people from the University who are completing their externship, internship, or practicum requirements, make sure you have determined what are the essential eligibility requirements/essential functions of the job for what that student will be doing. Also, make sure you remember that the question is whether they can do the essential eligibility requirements or essential functions of the job with or without reasonable accommodations (i.e. without a fundamental alteration or undue burden being the case).