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42 U.S.C. §12201

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.

I

Elements of the Legal Malpractice Claim

  1. 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).
  2. 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.
  3. 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.
  4. 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).

II

Specific Legal Malpractice Risks

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

IV

Court’s Reasoning Upholding the Jury Verdict

  1. 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.
  2. The defense never addressed the effect of the 2008 amendments until its briefing on appeal.
  3. At no time did the defense object to plaintiff’s regarded as theory despite numerous opportunities to do so.
  4. 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.
  5. An alleged error is waived when the defense fails to raise the objection at trial and fails to include it in post trial briefing.
  6. 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.
  7. 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.
  8. 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.
  9. Verdict of $22,501 affirmed.

IV

Takeaways

  1. 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.
  2. 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.
  3. Don’t assume model jury instructions are accurate. They do not substitute for knowing the law in the area.
  4. 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.

Filed Under: General Tagged With: 42 U.S.C. §12201, ADA, ADA compliance, ADA compliance attorney, ADA compliance consultant, ADA consultant, ADA defense attorney, but for, cause in fact, Cleveland v. Policy Management Systems Corporation, Duty of competence, EEOC v. St. Joseph's Hospital Inc., Jury instructions, legal malpractice, legal malpractice claim, licensing authorities, litigation matters, model jury instructions, powers v. USF Holland Inc., proximate cause, reasonable accommodations, Regarded as, Robinson v. first State community action agency, Sutton v. United Airlines, title I, title II, title III, transactional matters, Union Planters Bank N.A. v. Thompson Coburn LLP, waiver

Another Arrow in the Bag for Plaintiffs when it Comes to Disability Discrimination by Governmental Entities

December 5, 2018 by William Goren 2 Comments

Before getting started on the blog of the week, I want to express my condolences to the Bush family on the passing of George H.W. Bush. He signed the Americans With Disabilities Act on June 26 of 1990. His son also has a powerful legacy in that regards as he signed the ADAAA. Simply put, for my ability to participate in the mainstream world as well as the specialty I have carved out for my legal career, I owe a great debt to both of them. In keeping with their legacy, I was incredibly moved that H.W.’s service dog was front and center in the papers. G-D speed H.W. May H.W. rest in peace.

Today’s case will revolutionize the consequences for what happens when a nonfederal governmental entity, and possibly a federal governmental entity as well, discriminates on the basis of disability. As I have mentioned before, at least once a month, I get a call about a court system somewhere around the country discriminating against a person with a disability before it. Previously, I have written about two different cases involving suing court systems successfully for disability discrimination. A discussion of those cases can be found here and here.

The case of the day is a case from the Sixth Circuit decided September 25, 2018, Bullington v. Bedford County, Tennessee, which can be found here. As usual, the blog entry is divided into categories and they are: facts; opinion for the court; concurring opinion; and takeaways/thoughts. The reader is free to focus on any or all of the categories.

I

Facts

Bullington worked as a dispatcher at the Bedford County Sheriff’s Department for eight years. Sometime during that period, she developed Hodgkin’s lymphoma that was treated with chemotherapy. However, the chemotherapy caused neuropathy and scar tissue in her lungs so that she needed additional treatment. As a result of that diagnosis and treatment, she asserted the department treated her differently than the other employees. She filed suit alleging: violation of her constitutional rights under the 14th amendment to be free from discrimination and retaliation; violation of her constitutional rights because the County did not provide adequate supervision and training; violation of the Tennessee human rights act; and violation of the ADA. The defendant moved for judgment on the pleadings, which was granted by the District Court, and Bullington appealed.

II

Opinion for the Court

  1. Plaintiff admitted that she did not file a charge with the EEOC. Accordingly, she did not exhaust administrative remedies. Further, while she may have followed prior counsel’s advice on whether to file a charge with the EEOC, which was mistaken, that is not enough to allow for equitable tolling. Accordingly, the ADA claim has to be dismissed.
  2. Determining whether Congress precluded a remedy under §1983 turns on congressional intent.
  3. A distinction exists between §1983 claims premised on constitutional violations and those based on statutory violations in determining whether a §1983 claim is precluded.
  4. Where the contours of rights between the statutory claim and the constitutional protection diverge in significant ways, it is not likely that Congress intended to displace §1983 suits involving important constitutional rights.
  5. Both the Third and the Eighth Circuits have held that the ADA does preclude §1983 claims for violations of the ADA. Even so, that is not what is going on here. Rather, plaintiff alleges constitutional violations and not violations of the ADA itself. So, her claims are being brought under the 14th amendment’s equal protection clause and not under the ADA.
  6. Several Circuits have allowed constitutional claims to be brought under §1983 even where the plaintiff’s constitutional claims run parallel to claims brought under analogous statutes. Further, other courts have allowed plaintiffs to pursue claims under §1983 for disability discrimination even when they run parallel to ADA violations.
  7. The court looked to a Supreme Court case, Fitzgerald v. Barnstable School Committee 555 U.S. 246 (2009), holding that a §1983 claim for an equal protection violation was allowed to run parallel to a title IX claim. In reaching that decision, the Supreme Court look to title IX’s enforcement mechanism, the scope of title IX rights and 14th amendment rights, and to the context and history of title IX.
  8. Based upon Fitzgerald, there are three things to consider when examining congressional intent to preclude a constitutional claim, and they are the statute’s: text and history; remedial scheme; and the contours of its rights and protections.
  9. The burden of proving preclusion of a §1983 claim lies with the defendant.
  10. Neither the statutory text nor the legislative history of the ADA contains a clear indication of congressional intent to preclude simultaneous constitutional claims.
  11. 42 U.S.C. §12201(b) expressly provides that nothing in the ADA shall be construed to invalidate or limit remedies, rights, and procedures of any federal law or law of any State or political subdivision of any State or jurisdiction providing greater equal protection for the rights of individuals with disabilities than afforded by the ADA. Such language is strong evidence that Congress did not intend to preclude remedies under §1983 for constitutional violations.
  12. The Committee on Education and Labor’s report as well as the Committee on the Judiciary’s report both make clear that the ADA was not intended to preclude other remedies, including those of constitutional law.
  13. The ADA’s relation to title VII of the civil rights act also suggests that Congress did not intend to include alternative remedies for disability discrimination as the ADA uses the procedures set forth in title VII. That relationship is important because at the time Congress passed the ADA in 1990, courts frequently held that the comprehensive scheme provided in title VII does not preempt §1983, and that discrimination claims may be brought under either statute, or both.
  14. At the time Congress enacted the ADA, the Sixth Circuit had already allowed plaintiffs to bring parallel concurrent title VII and §1983 constitutional claims.
  15. Congress’s presumed familiarity with title VII case law and the numerous references to title VII within the ADA suggest that Congress could not have intended for the ADA to preclude a §1983 claim.
  16. With respect to title II of the ADA, it’s remedies are tied into title VI of the Civil Rights Act. Title VI of the Civil Rights Act as far back as 1967 was routinely interpreted to allow for parallel and concurrent §1983 claims.
  17. Where an employee establishes employer conduct violating both title VII and rights derived from another source, whether it be the Constitution or federal statutes existing at the time of the enactment of title VII, the claim based on the other sources are independent of the title VII claim.
  18. In 2012, the Sixth Circuit held that a §1983 claim regarding a constitutional violation could survive despite title VII.
  19. Where the contours of such rights and protections between the two laws diverge in significant ways, it is not likely that Congress intended to displace §1983 suits enforcing constitutional rights even where there is some overlap in coverage.
  20. Rights created by the ADA are strikingly different from those already protected by the equal protection clause as the stated purpose of the ADA as found in 42 U.S.C. §12101(b)(1)-(3) is: providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; and to ensure that the federal government plays a central role in enforcing standards set forth in the ADA on behalf of individuals with disabilities.
  21. In addition to invoking its power under §5 of the 14th amendment, Congress also invoked a broad power under the commerce clause.
  22. The protections available under the ADA and the equal protection clause are critically different from each other. For a person to prove an ADA claim, the plaintiff has to show: that she was in a class of persons protected by the ADA; that she was otherwise qualified for the position; that she suffered an adverse employment action; that the employer knew or had reason to know of her disability; and that the adverse employment action occurred under circumstances raising a reasonable inference of unlawful discrimination.
  23. The equal protection clause requires a very different showing than the ADA. With respect to the equal protection clause, citing to Heller v. Doe, 509 U.S. 312 (1993), and to Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), a plaintiff has to show that there was no rational basis for the State action to treat her differently because of her disability.
  24. Given the different requirements for proving the claim under the ADA and the equal protection clause, it makes sense that even if the comprehensive remedial scheme of the ADA somehow precluded utilizing §1983 to assert an ADA violation, the plaintiff still gets to assert a violation of the equal protection clause based on alleged disability discrimination through 1983.
  25. Since both the rights created by the ADA and the equal protection clause very significantly as do the elements required to prove both of those claims, that evidences a lack of congressional intent that the ADA precluded separate enforcement of individuals with disabilities constitutional rights.

III

Concurring Opinion of Judge Kethledge

  1. Extrinsic materials like legislative history have a role in statutory interpretation only to the extent they shed a reliable light on the enacting legislature’s understanding of otherwise ambiguous terms.
  2. Legislative history by itself has zero significance in statutory construction. Legislative history only matters to the extent it clarifies a specific ambiguity in the statutory text.
  3. Nothing in the text or structure of the ADA supports preclusion of a parallel constitutional claim. Accordingly, that is reason enough to hold that the ADA and constitutional claims can parallel each other. Therefore, referring to legislative history to justify that conclusion is completely unnecessary.

IV

Takeaway/Thoughts

  1. This case is absolutely huge with respect to the consequences of what happens when a State court engages in disability discrimination. Now, under this decision, a person with a disability has parallel tracks they can pursue (the ADA as well as procedural and substantive due process).
  2. Very interesting that the court cites to Heller and Board of Trustees of the University of Alabama for two reasons. First, as I have written in all of the Editions of my book, Understanding the ADA, which can be found here, in Heller, the United States Supreme Court assumed that persons with disabilities were in the rational basis class since both parties didn’t contest that. It is true that Board of Trustees of the University of Alabama said that persons with disabilities with respect to employment are in the rational basis class. However, Board of Trustees of the University of Alabama relied upon Heller, where a rational basis classification was assumed without argument, and upon Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), which would be more appropriately classified as a rational basis plus classification. So, putting persons with disabilities in the rational basis class with respect to employment does not follow squarely from precedent.
  3. Regardless of persons with disabilities being classified in the rational basis class when it comes to employment not squarely following from precedent, it is now settled that persons with disabilities are in the rational basis class with respect to employment. However, that is simply not the case with respect to title II of the ADA. Under Tennessee v. Lane, 541 U.S. 509 (2004), which we discussed here, when it comes to accessing the courts, persons with disabilities are in a much higher classification than rational basis. Accordingly, that means rebutting an equal protection violation or a substantive due process violation under title II of the ADA means the State showing it had a compelling interest in the discrimination. Considering the ADA, that is going to be an almost impossible bar for the State to jump over.
  4. Since the equal protection clause and the substantive due process clause mirror each other, one wonders whether this decision cannot be used to address disability discrimination by a federal court, where it happens, even though the federal courts are not subject to the ADA.
  5. Will the courts split on this thereby leading to a U.S. Supreme Court decision? Hard to tell. However, the concurring opinion provides a way for the courts to avoid splitting, as any split would likely come from judges that frown on legislative history. It is possible, even if it is very unlikely, that the United States Supreme Court could decide to hear a matter without a split among the Circuits.
  6. Title I of the ADA requires exhaustion of administrative remedies, but keep in mind, that title II and title III of the ADA do not. When exhaustion is required is absolutely something the attorney has to know unless they want to be contacting their malpractice carrier.
  7. The concurring opinion believes that it was so clear that the ADA does not preclude equal protection claims that you don’t even have to look at legislative history. That is important because many people on the U.S. Supreme Court don’t like to look at legislative history unless they have to. That said, it is concerning that this is a title I case as persons with disabilities have not fared well at the Supreme Court level when it comes to disability discrimination in employment. I would feel more comfortable about a person with a disability chances at the Supreme Court over the issue of constitutional law and the ADA running in parallel to each other if this was a title II case.
  8. Failure to provide training on the ADA possibly could violate a person with a disability equal protection rights under this decision.
  9. The burden of showing preclusion is on the defense.

I am figuring on one more blog entry before our annual greatest hits issue. I have an entry in mind, but you never know what will come up.

Filed Under: General Tagged With: §1983, §1983 preclusion, §5 of the 14th amendment, 42 U.S.C. §12101, 42 U.S.C. §12201, ADA, ADA prima facie case, administrative exhaustion, Board of Trustees of the University of Alabama v. Garrett, Bullington v. Bedford County Tennessee, burden of proving preclusion of §1983, Cleburne v. Cleburne living Center Inc., commerce clause, compelling interest, due process clause, enforcement clause of the 14th amendment, Equal protection class, equal protection clause, equal protection prima facie case, failure to provide training, Fitzgerald v. Barnstable school committee, Heller v. Doe, intermediate scrutiny, legislative history, parallel tracks, preemption of §1983, rational basis, rational basis plus, substantive due process, Tennessee v. Lane, title I, title II, title VI, title VII

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