substantially limits

Accommodating Nut Allergies

June 13, 2019 by William Goren 3 Comments

I know it has been awhile since I did a blog entry, but I have a really good excuse. The last day of May was my daughter’s last day of her freshman year in high school. Then, the following week dealt with chasing her around and also going to Portland Maine for the ABA Law Practice convention. Beautiful country up there. Then, when I came back, I had to make sure that my daughter had everything she needed and was all packed to go off to overnight camp for four weeks in the Georgia mountains. It is her second year there, and so we are optimistic that she will have an even better time than last year, and she liked it a lot last year. I got her off the camp yesterday morning. So, my wife and I are now empty-nesters for the next four weeks.

Today’s blog entry is a twofer. That is, one Department of Transportation letter and one case. In both cases, the plaintiffs were represented by Mary Vargas of the law firm Stein and Vargas. Full disclosure: I refer probably three cases a month to Mary. She and her firm do fabulous work, and it is not unusual for me to blog on her cases. Also, with respect to the case that we are going to discuss, my colleague Richard Hunt, beat me to it here. Richard’s blog entries are always provocative. He and I are going to be presenting on two different webinars in Dallas, Texas, on June 26 and June 27. The difference in our perspectives should make for a very lively webinar. The two webinars will discuss the whole deal with service animals and emotional support animals under federal laws and separately, the wild west of Internet accessibility litigation. With respect to signing up for the first seminar dealing with animals under federal laws, you can do so here if you are a member of the Federal Bar Association and here if you are not. As usual, the blog entry is provided into categories and they are: DOT letter facts and holding; DOT letter takeaways; JD v. Colonial Williamsburg foundation introduction and facts; majority reasoning vacating summary judgment and remanding case for further proceedings; dissenting opinion; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories. This blog entry is unusual in that you might get away with respect to the JD v. Colonial Williamsburg sections of the blog entry just reading the facts and the takeaways. I don’t recommend it, but it’s possible as the thought/takeaways section evolved into something rather different this time.

DOT Letter Facts and Holding

May 21, 2019 letter from the General Counsel’s office of the US Department of Transportation involving American airlines and a person with severe peanut allergies.

This matter involved a seven-year-old girl with a severe allergy to peanuts, tree nuts and seeds and at risk of anaphylactic shock if she is exposed to or ingests these allergens. Accordingly, upon arrival at the airport to take an American Airlines flight, her father identified her daughter’s severe food allergy to an agent and requested pre-boarding in order to wipe down their assigned seats and tray tables. The American Airlines agent refused the request to pre-board. Also, it was alleged that the agent became hostile when the family identified the disability as a food allergy. A similar set of occurrences occurred in advance of the return flight from Charlotte to Portland.

American Airlines asserted that unlike some carriers, it doesn’t serve peanuts. However, it does serve other nut products. While the airline cleans its aircraft regularly, those cleanings are not designed to ensure the removal of nut allergens nor is its air filtration system designed to ensure the removal of nut allergens. Finally, American Airlines indicated that other customers can bring peanuts or tree nuts on board. Subsequent to the complaint being filed with the Department of Transportation, American Airlines amended its pre-boarding policy to allow pre-boarding for nut allergies effective December 2018.

Based upon the above facts, the Department of Transportation concluded that passengers with severe nut allergies are passengers with disabilities for purposes of the Air Carrier Access Act. Further, when a passenger with a severe allergy asks for pre-boarding to wipe down seating surfaces, that passenger is requesting additional time to be seated because from the passenger’s perspective, the seating area cannot be safely access unless totally wiped down. Accordingly, the Department of Transportation believes that when an airline fails to allow passengers with severe nut allergies to pre-board to wipe down seating services, 14 C.F.R. §382.93 is violated, and therefore, American Airlines gets a warning from the Department of Transportation.

DOT Letter Takeaways

14 C.F.R. §382.93 requires carriers to offer pre-boarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, store accessibility equipment, or be seated. Department of Transportation is going on record here that nut allergies are a disability.
Since Delta basically owns Atlanta, has 80% of the gates I have read, Delta is pretty much the option for flying out of Atlanta. Southwest does have a hub here, but I can never get used to the cattle call on Southwest. Also, I have always enjoyed the Delta experience. That said, I know Southwest has a lot of fans out there. What I am trying to say is that Delta is one of those airlines offering nuts on its flights. I happen to love nuts, and they can be healthy too. In fact, just last week, on my way to and back from Portland, Maine, I had almonds as my snack with my usual tomato juice on ice. It would be hard to say how many people on Delta choose nuts for their snack. It would make sense that this family would choose an airline not offering nuts. I suppose this family would have to fly as a group to ensure that a person sitting next to their daughter does not eat nuts. Apparently, the aircraft filtration system works for the daughter so long as her area is wiped down. That may or may not be true for everyone.
The Air Carrier Access Act, as we have discussed here, contains no private cause of action. So, it is remarkable that an attorney of Mary’s stature took on the filing of a matter with the Department of Transportation.

III

J.D. v. Colonial Williamsburg Foundation Introduction and Facts

As I mentioned above, I was first alerted to this case by Richard Hunt’s blog entry on it. I know Richard quite well. His blog entries are always very thought-provoking. He is also extremely knowledgeable about title III of the ADA and the Fair Housing Act as well. He and I communicate regularly. It also is not unusual for he and I to discuss the same cases since our perspectives are so different from each other. The particular blog entry where he discussed this case was so thought-provoking that I had people encouraging me to write my own blog entry on this. Finally, I have warned Mary that this blog entry may not go precisely as she would like, and she was okay with that. Even so, this blog entry has a different take on the case from Richard’s. I do hope you can join us for our webinars in a couple of weeks. I have never actually met Richard in person, and I am looking forward to doing so.

Facts:

JD is an 11-year-old boy suffering from several health problems and experiences a host of symptoms whenever he ingests gluten. Those symptoms include: significant constipation; abdominal pain; foot pain; numbness; cognitive impairment; elevated liver enzymes; and temporary loss of consciousness. The diagnosis is either celiac disease or non-celiac gluten sensitivity. For such a condition, the only medically accepted treatment is a strict gluten-free diet, and JD’s physician is of the opinion that a gluten-free diet is medically necessary for JD. Further, JD’s parent testified that his health significantly approved once he is on a strict gluten-free diet. However, whenever he accidentally ingests gluten even in trace amounts, the symptoms come crashing back. Accordingly, JD’s parents regularly prepare his food and use separate tableware to ensure that he can participate in school parties, celebrations, and meals to the greatest extent possible. Although there are some restaurant his parents do trust, in general, they no longer eat out as a family due to the risk of gluten exposure.

The school went on a field trip to Colonial Williamsburg. That trip included dinner at Shields Tavern. The restaurant has a policy against allowing outside food into its restaurant subject to two exceptions: 1) parents can bring baby food or snacks for infants and toddlers; and 2) patrons may bring cakes and wine for a band subject to a plating and corkage fee. Shields Tavern also appears to allow outside food at the discretion of the manager (emphasis mine).

Months before the trip, JD’s father informed the school that he and JD wouldn’t be eating at any of the restaurants but instead would bring their own food. However, nothing in the record suggested that the school relayed that message to the restaurant. In fact, an invoice from Colonial Williamsburg showed that the school placed an order for two gluten-free meals at Shields Tavern. The parties disputed whether those meals were intended for JD and his father.

When JD and his father arrived at the restaurant, they sat down at a two-person table. The father informed a server not to bring out any food for them. He then unpacked a cooler filled with plates, cups, and utensils, and began making a gluten-free chicken sandwich. Another server told JD’s father that he couldn’t bring in outside food because it would violate the health code. The father then asked to speak to the manager, who confirmed the policy, and insisted that they would have to eat their food outside. The head chef soon arrived and offered to prepare a gluten-free meal for JD.

The Virginia Health Code prohibits food prepared in a private home from being used or offered for human consumption in a food establishment unless the home kitchen is inspected and regulated by the Virginia Department of Agriculture and Consumer Services. That code also requires that food that is unsafe or contaminated must be rendered unusable and discarded.

According to Colonial Williamsburg, the head chef had already prepared the gluten-free meals based on the order placed by the school. JD’s father testified that the meals were not yet prepared and that the head chef offered to prepare them on the spot. The father alleged that he did not trust the tavern to be able to prepare gluten-free meals after preparing fried chicken meals for the other guests. The court said that the District Court properly viewed these facts in the light most favorable to JD.

Majority’s Reasoning Vacating the District Court’s Grant of Summary Judgment and Remanding the Case for Further Proceedings

The ADA was enacted to remedy widespread discrimination against people with disabilities and to provide clear, strong, consistent and enforceable standards addressing such discrimination.
Title III provides that no individual can be discriminated on the basis of disability in the equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
Prevailing under title III of the ADA means a plaintiff has to show: 1) he is a person with a disability within the meaning of the ADA; 2) the defendant owns, leases, or operates a place of public accommodation; and 3) the defendant discriminated against him because of his disability.
The parties did not dispute that Shields Tavern was a place of public accommodation. They did dispute whether JD was disabled and whether he was discriminated against because of his disability.
The ADA defines a disability as a physical or mental impairment substantially limiting one or more major life activities. Eating is a major life activity.
Viewing the facts in the light most favorable to the plaintiff, the district court correctly believed that JD’s impairment qualified as a disability under the ADA.
Any time you consider whether an impairment substantially limits an individual in a major life activity, that has to be looked at broadly in favor of expansive coverage. That approach is consistent with the purpose of the amendments to the ADA. Finally, the amendment to the ADA make clear that whether a major life activity is substantially limited has to be decided without regards to any mitigating measures, including learned behavioral modifications.
JD submitted extensive evidence about the serious consequences to his health when he ingests gluten.
While no one can eat whatever he or she desires without experiencing some negative health effect, persons with disabilities who have a disability due to severe dietary restrictions must be allowed to enjoy the protections of the ADA. Unlike a person with simple diet restrictions, JD must monitor everything he eats and there is no margin for error. Accordingly, the District Court correctly determined that a genuine dispute of material fact existed as to whether JD was disabled within the meaning of the ADA.
42 U.S.C. §12182 is the failure to accommodate provisions of title III of the ADA. That particular provision requires a place of public accommodation to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities in the absence of a fundamental alteration.
Proving up a claim under 42 U.S.C. §12182 involves showing: 1) whether the requested modification is necessary for the individual with a disability; 2) whether it is reasonable; and 3) whether it would fundamentally alter the nature of the public accommodation. For each element, the ADA requires an individualized inquiry based upon the particular circumstances of that case.
In determining whether a modification is necessary, the Fourth Circuit uses a like experience standard. That is, you start by considering how the facility is used by persons without disabilities and then consider what are the necessary and reasonable steps to provide guests with disabilities with a like experience.
The District Court erred by not drawing the factual inferences stemming from JD’s history of repeatedly getting sick when eating purportedly gluten-free meals prepared by commercial kitchens, which he says shows that he was at a significant risk had they accepted the gluten-free meal offered by the restaurant.
In a footnote, the court could not see how sitting at a restaurant and not eating would have provided JD a like experience to the people without disabilities.
The necessary inquiry requires an individualized inquiry into the plaintiff’s capacity. Here, the evidence showed that JD repeatedly became sick when exposed to gluten at restaurants and that happened despite his parents best effort to ensure gluten-free meals.
While it is true that the restaurant averred that rigorous protocols existed for preparing gluten-free needles and that a jury might well reject JD’s evidence about the severity of his gluten intolerance and find that the restaurant’s protocols were sufficient to account for his disability, JD did put forth enough evidence to raise a genuine dispute of material fact as to whether that accommodation sufficiently accounted for his disability. So, the District Court’s granting of summary judgment that the accommodation proposed was not necessary must be overturned.
Whether an accommodation is reasonable is a fact specific inquiry looking to whether modification is reasonable under the circumstances. One of the things to think about is whether the cost of the accommodation does not clearly exceed its benefits.
JD pointed out that the restaurant allows parent to bring in outside food for toddlers and infants. The record also shows that two weeks after the events in this case, the restaurant granted a similar accommodation to a child visiting a different one of its restaurants. In that situation, the restaurant was notified before the child’s visit of severe allergies and Colonial Williamsburg determined that it could not accommodate him. So, it allowed the child to eat a homemade meal in the restaurant. The fact that Colonial Williamsburg granted a similar request speaks directly to the reasonableness of JD’s request.
Colonial Williamsburg’s argument that advanced notice is required makes no sense. Nothing in title III of the ADA or the implementing regulations mandate prior notice at a place of public accommodation. In fact, the regulations emphasized that advanced notice requirement are generally undesirable and should only be used when necessary to ensure the accommodation can be made.
In this situation, advanced notice wasn’t necessary because JD was not asking the restaurant to take any action or provide any additional services. Further, the restaurant allows outside food for toddlers and infants without prior notice.
With respect to the state health code provision, Virginia case law has never interpreted the provision. The Fourth Circuit believed that the provision was actually vague because while the provision does prohibit restaurants from serving food prepared in a private home, that provision doesn’t necessarily prohibit customers from bringing in outside food.
While a place of public accommodation can impose legitimate safety requirements necessary for safe operation per 28 C.F.R. §36.301(b), those safety requirement don’t always override a reasonable modification request. Further, it is not even clear here whether JD’s request posed a safety concern in the first place since there is no evidence of the risk of contamination from JD’s meal and the restaurant permits guest to bring outside food in other circumstances.
The defendant bears the burden of proof when it comes to fundamental alteration, and the Fourth Circuit holds that a genuine issue of material fact exists here as well.
A fundamental alteration is anything that is a modification to an essential aspect of the place of public accommodation’s program.
Food service is an essential aspect of the restaurant.
No evidence exists that Colonial Williamsburg has been deluged with request from people seeking to bring in outside food to the extent that it could not give individualized attention to the handful of requests that it might receive.

Dissenting Opinion by Judge Wilkinson

Judge Wilkinson also refers to 42 U.S.C. §12182(b)(2)(A)(ii), title III failure to accommodate provisions with respect to policy, practices, and procedures.
He also agrees with the three-part inquiry for handling cases under this regulation.
Necessity is determined with respect to the person with a disability ability to obtain full and equal enjoyment of the place of public accommodation. That means the ADA requires a customer with a disability to have an experience that is as equal as possible.
As long as a guest with a disability has meaningful access to a place of public accommodation, the ADA’s requirements are satisfied.
The availability of the restaurant’s gluten-free meal allowed JD meaningful access to the restaurant offering and renders the modification sought by JD unnecessary.
When JD arrived at the restaurant on a class trip, the head chef, Anthony Zurowski, offered to personally make and serve JD a gluten-free meal. Had JD accepted the offer, he would have been able to sit with his classmates inside the tavern and enjoy its educational offering alongside them. Instead, JD decided to eat a meal prepared at home. He was asked by the restaurant to do that at some nearby picnic tables. After finishing his home prepared meal, JD rejoined his classmates in the tavern for the remainder of their time there.
JD’s own expert testified that the meal offered by the head chef would have been gluten-free. Also, no dispute existed that the head chef had extensive training as a chef, including one-on-one training from Colonial Williamsburg’s head chef specifically focused on gluten-free meal preparation. Therefore, the head chef: knew how to ensure that JD’s gluten-free meal was not contaminated by any trace amounts of gluten; knew how to use a separate designated area to prepare the meal; knew how to sanitize the area and his utensils beforehand; knew how to use a fresh set of gloves and aprons; and knew to use a separate oven. Further, once the meal left the kitchen, no dispute existed that the restaurant’s procedures required that JD’s meal be labeled gluten-free and that the food be specially covered with a meal lit to avoid cross-contamination. Other facts include: the restaurant had extensive experience preparing gluten-free meals for patrons with disability similar to JD’s; over the past five years, the head chef had prepared roughly 4 to 5 gluten-free meals a day for a total of over 5000 meals without ever receiving a single complaint that the meals actually contain gluten; and JD’s father even admitted he had no reason not to trust the tavern’s kitchen staff.
If JD had accepted the restaurant’s genuine offer of a gluten-free meal, he would have had a virtually identical experience to that of his classmates.
The ADA does not require places of public accommodation to provide the precise modification requested by an individual with a disability. Instead, the ADA allows places of public accommodations the freedom to decide how to best provide meaningful access to patrons with disabilities.
Reasonableness must be evaluated with respect to the disruption of the restaurant’s business and the threat to safety occasioned by the modification. A policy allowing patrons to consume home prepared meals inside the restaurant with no advance notice affects a significant disruption on the restaurant’s business.
Allowing patrons to ignore the restaurant’s menu disrupts business. It would let people bring in their own meals, occupy the restaurant’s tables, and take time and attention of the servers, and otherwise divert resources from paying customers all without ever purchasing food from the restaurant itself. Such a policy denies the restaurant much needed revenue in an industry that is notoriously low margin. It also denies the servers gratuities they rely on to make ends meet as tips are usually calculated based upon the cost of the food ordered from the restaurant. Such disruptions are in no way mandated by the ADA.
Allowing patrons to consume home prepared meals opens the gate to all manners of cuisines without any respect for the restaurant’s historical theme. People can bring in food utterly inconsistent with the atmosphere provided by the restaurant. The smell of the food or even its appearance might spoil and undercut the experience for paying customers.
Food brought from home may pose a safety hazard to the restaurant’s other customers. The presence of outside food in the restaurant also increases the risk of provoking food allergies and sensitivities in other patrons.
The proposed modification is unreasonable because it imposes a vague and unmanageable standard on restaurants everywhere. Under the majority rule, a patron requests to be allowed to eat outside food will sometime be reasonable and other times not, thereby, putting managers in the middle of a crazy line drawing exercise without any defined criteria for them to apply. Under the majority rule, advanced notice is not even required. Therefore, restaurant managers would have to evaluate any disruption in the safety hazard of the customer’s outside meal on the fly with the specter of litigation overhead. Finally, under the majority rule, even restaurants that have made intense efforts to prepare gluten-free meals are strung up for liability. Such a rule could only be dreamed up in the judicial monastery.
While it is possible that Colonial Williamsburg may well prevail at trial, the majority reasoning has the flavor of a de facto per se rule. That is, restaurants must either allow patrons to consume food prepared outside the premises or they must justify that refusal at a costly trial.

Thoughts and Takeaways:

What is really going on here and how did we get here? In my opinion, what is really lurking here, is that title III of the ADA contains no specific requirements of an interactive process. If title III of the ADA contained an interactive process requirement, then you could argue that the restaurant and JD’s family had the obligation to engage in an interactive process. Such an interactive process may have included the chef specifically explaining and even showing JD and his family just how the gluten-free meal would be prepared and where it would be prepared. I don’t see why the family would necessarily have to enter the kitchen to do that. Even so, perhaps the restaurant could have taken the same health precautions that their cooks take prior to entering the cooking area so that they could see how the gluten-free meal would be prepared.
If an interactive process was required by title III, then if the restaurant specifically showed JD and his family how the gluten-free meal would be prepared and all the precautions they took, and the family nevertheless walked away from the accommodation, then you could say that the family blew up the interactive process. Under title I of the ADA and case law interpreting the interactive process, the party blowing up the interactive process bears the consequences.
Arguing that an interactive process applies to title III is not a stretch. There are cases interpreting title II holding the interactive process applies to title II. After all, how can you come up with a reasonable modification if you don’t engage in an interactive process?
The other problem here is that title III has no explicit provisions for a person with a disability being otherwise qualified/qualified. If title III had such explicit provisions, then you would look to the essential eligibility requirements of the business and try to determine whether a reasonable accommodation makes any sense. It isn’t a stretch to find an otherwise qualified requirement in title III because how can you figure out if a fundamental alteration exists without knowing the essential eligibility requirements of the business? Judge Wilkinson essentially takes this approach in his dissent. In fact, the majority and the dissent disagree on just what is the essential eligibility requirement at issue. The majority view is that the essential eligibility requirement is eating in the restaurant. However, the dissent’s view is that the essential eligibility requirement is eating food prepared by the restaurant. You get to different places depending upon how you characterize the essential eligibility requirement.
The ADA requires an individualized analysis based upon the particular circumstances of the case. The history that JD and his family had with other restaurants is historical, but shouldn’t be the deciding factor with respect to the particular restaurant. The key should be just what are the individual facts found in this situation. Again, importing essential eligibility requirements from title II and the interactive process from title I would solve a lot of his confusion.
Is there a title II case against the school? The parents notified the school that they needed a gluten-free meal. The school then may or may not have relayed the message to the restaurant. Since the essential eligibility requirements of the field trip was going to Colonial Williamsburg and having lunch at the restaurant, an argument exists that the school may have violated its title II obligations. I also don’t think that the plaintiff would have to exhaust administrative remedies either in an action against the school system given the case we discussed here.
I agree with the majority that the Virginia Health Code prohibiting food prepared in a private home from being used or offered for human consumption in a restaurant is vague.
If you are a restaurant and a person shows up with home food because of a gluten-free allergy situation, it would be a really good idea to engage in an extensive interactive process with the family to see if there is some way the restaurant can serve food to the family. It would also be a good idea for a restaurant that does prepare gluten-free meals for its customers to have rigorous protocols for doing so and to be able to explain and demonstrate them if need be.
I find the like experience standard a bit unwieldy. The problem with the like experience standard is that it most likely involves a person without a disability, a judge, trying to compare that experience to the experience of people with disabilities. That, is a very difficult task indeed.
The restaurant ran itself into a problem with its policy of allowing parents to bring in outside food for toddlers and infants. It ran itself into a bigger problem when Colonial Williamsburg granted a similar accommodation to a child visiting another of its restaurants. Moral of the story here: training, training, training, and more training is necessary across all of a company’s restaurants. Further, everybody should receive the same high quality training and the restaurant needs to be monitored to ensure that they are doing it right.
As a person with a disability, I get the whole advanced notice debate. I want to be able to show up anywhere I want without advanced notice and be accommodated. For example, I expect restaurant, movie theaters, and entertainment venues to have what I need if I just want to show up on the spur of the moment. On the other hand, sometimes it is more complicated than that. For example, as a consultant, I do some traveling. It is a real pain in the tuchas, but after making my hotel reservation at the hotel’s central reservation booking system and asking for a room for persons with disabilities, I always call the hotel directly and have an elaborate conversation with them about what it means to accommodate a deaf patron in the hotel room. If I don’t have that extensive conversation with the hotel itself, no way are the accommodations put in place when I walk into the room. Even if I have that conversation, it is anybody’s guess as to whether the room will accommodate me once I get there.
Another thing missing from this case, is the concept of direct threat, which we discussed here. Both the majority opinion and the dissenting opinion talk about safety requirements and reach different conclusions. To borrow from other sections of the ADA, direct threat needs to be based upon the best objective and current medical evidence. Of course, that is nice to say, but how that can possibly be carried out in the restaurant setting is a difficult question for sure, especially when a restaurant allows food to be brought in in some circumstances.
Fundamental alteration is an affirmative defense and the burden is on the defendant.
The dissent’s standard that a person with a disability is only entitled to an experience “as equal as possible,” as a person without a disability also troubles me. The reason it troubles me is once again you have a judge, probably one without a disability, deciding what is an equal as possible experience when compared to persons without disabilities. I would prefer the more objective meaningful access standard over an “equal as possible,” standard.
One thing that is happening more and more now is you are seeing litigation over what is necessary. Litigation over what is necessary is a recent development, but I would expect that trend to continue.
Absolutely agree that the ADA does not require places of public accommodation to provide the precise modification requested by the disabled individual. However, if that is the case, then the ADA must require outside of the employment context an interactive process. How else can this be figured out?
I don’t agree with the dissent’s view that people who bring in home-cooked meals will stiff the servers on tips. It doesn’t work like that. Oftentimes, a person is so grateful for being accommodated, that they will leave a tip as if they had purchased a meal even though they didn’t.
A petition for an en banc rehearing would not surprise me.
The majority keep referring to “because,” when it comes to causation. However, that isn’t the standard. For title III claims, the standard is on the basis of per 42 U.S.C. §12182(a).
Appealing this decision to the United States Supreme Court would be very dangerous assuming that the United States Supreme Court would take it. There are all kinds of wildcards here. For example, the Supreme Court could decide that on the basis and because mean two different things. Also, the Supreme Court could decide that title III incorporates an otherwise qualified/qualified element into it. They could also decide that title III incorporates an interactive process. It is not a given at all that the United States Supreme Court would necessarily decide with the Corporation when it come to this scenario, which is a nonemployment scenario. As I have mentioned before, persons with disabilities have fared very well at the Supreme Court outside of the employment context. So, if I was on the defense side here, I would probably pass on appealing to the United States Supreme Court. I might go for an en banc rehearing. Otherwise, I would take my chances at trial. Just too many things could happen at the Supreme Court with this particular case to risk it.

Bet You Didn’t Know That Alberson’s v. Kirkingburg Was Still Good Law

April 21, 2016 by William Goren 1 Comment

Today’s case, Bibber v. National Board of Osteopathic Medical Examiner, Inc., a decision that came down April 11, 2016, from the U.S. District Court for the Eastern District of Pennsylvania is ostensibly about one thing but turns out to be about something else. That is, it raises the real question as to whether Albertson’s, Inc. v. Kirkingburg, by 527 U.S. 555 (1999) might still be good law despite the amendments to the ADA found at 42 U.S.C. § 12102(4)(E)(i)(IV). As is typical for my blog entries, I have divided the blog entry into categories: facts; court’s reasoning; and takeaways. As always, the reader is free to focus on any or all of the categories.

Facts

The plaintiff is a third year medical student scheduled to take the Comlex I exam on April 13, 2016. She is seeking accommodations on that exam because she is a slow reader as a result of her congenital deafness and being dyslexic. She only can read one word at a time and usually uses her finger, pencil, or note card to follow along. She drops her head close to the table to be able to read in order to ensure her visual field is close to the words. She often has to reread long passages to confirm her understanding of the material. Considering her deafness and her dyslexia, it isn’t surprising that she has a lifelong struggle with reading. She had to repeat kindergarten after failing to master the alphabet. In first grade, she was sent to separate reading classes and given accommodations, such as extended time for exams. She was also taken out of class so she could receive specialized instruction in other subjects and various occupational therapies. In fourth grade, she began working with a reading specialist using the Orton-Gillingham and Wilson reading methods (well-known methods for helping dyslexics learn how to read). During that time, she learned strategies to improve her reading, including how to appropriately sound out words and process word with multiple syllables. The program turned out to be a great help. Through high school she continued to receive accommodations, including extra time to complete exams. She also received extra time to complete standardized test, such as the PSAT, the SAT, the SAT II, and advanced placement exams. She then went on to Colby College, a very selective small liberal arts school in Maine, where she was also granted accommodations, including time-and-a-half on exams and quizzes. Since it took so long for her to complete her schoolwork, she didn’t have much of a social life in college. She did try to increase the speed at which she got her work done by working with study groups and having friends read to her. She also had classmate take notes for her in the classes. She also received an exemption from Colby College’s foreign language requirement. In 2008, she wanted to take the MCAT exam, but when she contacted the administrators of the MCAT, she was informed that her evaluation was out of date and that she would have to be evaluated in order to be considered for any accommodations. Not surprisingly, the evaluations the testing entity wanted her to do would have cost upwards of $5000. She could not afford that and so instead she studied for a 10 hours a day using study materials from both Princeton and Kaplan. When she took the MCAT, she nonetheless received average scores on the sections. She then applied to medical school after taking the exam but was not accepted to any school. She then pursued a teaching career for three or four years after that. Next, she attended what is now the Rutgers School of Biomedical Sciences. Before getting into that program, she had to take the GRE where she achieved an average score on the GRE, where she received a score in the 71^st percentile on the verbal reasoning section and a score in the 93^rd percentile in the analytical writing section, which was enough to get her into the school. She did not request accommodations for the GRE. While in graduate school she was granted accommodations, including receiving 50% extended time to complete examinations. She was successful in graduate school and graduated with a GPA of 3.71. After finishing the graduate school, she once again applied to medical school and took the MCAT a second time. This time, she received an average overall score and also an average score on the verbal reasoning section. She attributed that improvement to her test taking strategies on the physical science section of the exam. She applied to several medical schools and was accepted to the Ronan School of Osteopathic Medicine where she again requested accommodations. After being evaluated, she received accommodations, including extra time to take examinations. She achieved good grades in medical school, earning grades of pass, high pass, and honors. She also has taken several standardized tests while in medical school both with and without accommodations. At trial she testified that she enjoys reading despite it being difficult for her and said that she could read and write. She also noted that she can read menus and stop signs. Finally, she stated that she can read things normally as long as she is not timed. As part of the run-up to trial, she was administered a test that showed she was in the 5^th percentile reading comprehension when compared to other college graduates and that her reading rate was measured to be in the 1^st percentile when compared to other college graduates. On the other hand, experts for the National Board of Osteopathic Medical Examiners said that she would not entitled to extended time because she received average MCAT and GRE scores without accommodations and she had average scores on another test. In particular, her scale reading comprehension scores were average compared to a population of readers spanning 10^th-graders through students in the second year of college. On the Woodcock-Johnson reading mastery test, she achieved scores in the 41^st percentile in word reading, the 75^th percentile in word comprehension, and the 91^st percentile in passage comprehension.

Court’s Reasoning

In holding that the plaintiff was not substantially limited in the major life activity of reading and processing information, the court reasoned as follows:

An analysis as to whether an impairment substantially limits performance in a major life activity must be compared to the individual’s ability to those of most people in the general population.
The Department of Justice heavily favors an individualized assessment or evidence that a qualified professional has individually and personally evaluated the candidate as opposed to simply considering the scores from review of documents.
Factors considered by courts across the country include: 1) an individual’s objective test results in comparison to an average person; 2) the individual’s other life activities, including extracurricular activities; 3) any pattern of substantial academic difficulties; and 4) whether the individual has been afforded testing accommodations in the past.
Department of Justice has taken the position that if an applicant had been granted accommodation post high school by a standardized testing entity, then there is no need for reassessment for subsequent examination.
Referencing a decision by now Justice Sotomayor when she was a U.S. District Court judge, Bartlett v. New York State Board of Law Examiners, 2001 U.S. Dist. LEXIS 11926, 2001 WL 930792 (S.D.N.Y. August 15, 2001), a disability cannot be based on outcomes alone, particularly in the context of learning disabilities, especially where plaintiff is extremely bright and hard-working and uses alternative route to achieve academic success. That is, the focus is on how a major life activity is substantially limited and not on what outcomes an individual can achieve.
The amendments to the ADA flatly state that the determination of whether the impairment substantially limits a major life activity has to be made without regard to mitigating measures.
Psychometric data shows that the plaintiff reads at an average level. Accordingly, her disabilities do not substantially limit her ability to read and process information as compared to the general population. In particular, on one test when compared to other 28 year olds, she scored in the 68^th percentile in word reading, the 53^rd percentile and to pseudoword decoding, and the 82^nd percentile in spelling, all of which were squarely within the average range for people in her age group (makes you wonder about the literacy of 28 year olds in the U.S.…)
Her own expert testified that the plaintiff was entitled to only 25% more time on the exam.
Without accommodation, the plaintiff scored in the 71^st percentile in the verbal reasoning section when compared to college graduates and college seniors seeking to attend graduate school. When she took the MCAT twice, both times she scored in the average range on the most reading intensive section of the test when compared to college seniors the graduate wishing to attend medical school. She also completed all three of those exams without any accommodations. Therefore, her confidence in taking those exams without even attempting to receive accommodations speaks big volumes about whether her dyslexia is substantially limiting when compared to high achieving groups of people, let alone the general population.
On the COMSAE test (essentially the PSAT for COMLEX), when she took it a second time, she finished the exam in less than the time provided and received an acceptable performance score.
She testified that she is an avid reader and has no problems reading menus, and traffic signs; she can read, though it takes her longer to do so. Thus, she presents the picture of a slow reader who can read effectively in both academic situations and daily activities.
Since the court has no evidence of the plaintiff’s reading abilities prior to fourth grade other than her testimony, it was not possible to conclude that without using the mitigating measures she uses that she was substantially limited by her dyslexia.
The court distinguished the Sotomayor opinion in several ways.
1. The plaintiff here is a better student, a better standardized test taker, and has much better grades.
2. The plaintiff did not struggle on the GRE in the same way.
3. The plaintiff reads for pleasure and has no trouble with everyday reading tasks.
4. The plaintiff failed to produce sufficient evidence that her reading process is slow, labored, and difficult when compared to the general population.
The decision should not be read by the National Board of Osteopathic Medical Examiners as a license to deny accommodations to individuals with a history of accommodations and a dyslexia diagnosis from childhood. Even so, unique facts of this case necessitate the conclusion that the plaintiff is not a person with a disability as defined by the ADA.

III

Takeaways:

In Albertson’s, the Supreme Court said that mitigating measures included any mitigating measures that a person develops on his own, even including neurological accommodations. As mentioned above, the amendment to the ADA explicitly overruled that decision. However, this case has you wondering whether that is indeed the case. The court says that they simply don’t have evidence before fourth grade to make the call. However, objectively speaking, it is pretty obvious that the mitigating measures she developed changed the trajectory of her reading and processing abilities. In particular: she had trouble reading since the earliest days of her formal education; she repeated kindergarten after struggling to learn the alphabet; in first grade she was tested and found to have learning disabilities related to reading and was subsequently placed in a special reading class and given accommodations on test; between fourth and eighth grade, she was provided with frequent afterschool instruction using the Orton-Billingham and Wilson reading programs; and she still uses many of the same tools she learned while working with her instructor utilizing those techniques in grade school. She also received accommodations through her high school years, both in school and with respect to standardized testing. Finally, I might add that the overwhelming majority of children with severe to profound hearing impairment upon completion of their mandatory school period, do not read above the fourth grade level when compared with their peers who are typically hearing. See, Godbey v. Iredell Memorial Hospital, Inc. 2013 U.S. Dist. LEXIS 117129, at *4 fn 4 (W.D. N.C. August 19, 2013). Accordingly, one is left with the conclusion that despite statutory provision to the contrary, Albertson’s might still be good law.
Part of the problem is that there is no standard for determining the ameliorative effects of mitigating measures that a person develops that are not related to equipment or personnel. I would submit that the standard should be whether the trajectory changed and that such a standard should not need overwhelming evidence as to whether the person was substantially limited without the mitigating measures. The advantage of the trajectory change standard is that it should be relatively easy to prove up as contrasted to the standard that the court came up with here requiring an analysis of evidence prior to her receiving mitigating measures in fourth grade.
An argument can be created that the plaintiff is certainly being penalized for having worked hard to develop her own successful mitigating measures and for being intelligent; neither of which is supposed to happen per the ADA.
The court said that the National Board of Osteopathic Medical Examiners should not take the decision as a license to deny accommodation to individuals with a history of accommodations and a dyslexia diagnosis from childhood. However, one wonders if this case will not give NBOME encouragement to do that anyway. One also wonders, whether this case won’t give testing entities encouragement to ignore the LSAT settlement, which I discussed here, as the plaintiff here had a long record of receiving accommodations for standardized testing.
If plaintiff fails to file an appeal, not only does she lose the chance for accommodation for standardized testing, one wonders if the University she is at will not take away her accommodations.
The problem I have with this case is its theoretical construct with its focus on substantial limitation. As the EEOC and the DOJ say, whether a person is substantially limited should not generally require a great deal of analysis, and a great deal of analysis is exactly what happened here. Also, objectively speaking, it is pretty obvious that her trajectory changed as a result of the mitigating measures she developed on her own. That said, I would have been more pleased with the theoretical construct of saying that this person had a disability but a question of fact exists as to the affirmative defense of whether allowing the accommodations would fundamentally alter the nature of the test.
While litigation over substantial limitation has gone way down since the amendments to the ADA, you do see it coming up occasionally, such as in this case (considering the dueling experts, getting the case to this point had to be extremely expensive).
If a plaintiff needs accommodations on a standardized test, not seeking them may be used against them later should they subsequently seek reasonable accommodations.
The focus on Woodcock-Johnson may be problematic. I am aware that learning disability specialists have varying views of this test and what it might mean for a particular individual.

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

March 28, 2016 by William Goren 1 Comment

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

Facts

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

The Jury Instructions

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

III

Court’s Reasoning Causation Jury Instruction

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

III

Court’s Reasoning Definition of Disability

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

Court’s Reasoning Regarded As Jury Instruction

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

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

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

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

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

VII

Takeaways

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

substantially limits

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