|VOLUME 3, ISSUE 2||WINTER 2013|
Reassignment to another job position is a potential accommodation if an employee is unable to perform the essential functions of his current position and is qualified for the new one. However, there must be a position available to reassign to. In Turner v. City of Paris, an employee had injured his back on the job. He was temporarily assigned to light duty work due to weight lifting restrictions by his doctor. When the weight lifting restriction became permanent, the employer determined that he was no longer qualified to perform the essential functions of his original position with or without reasonable accommodation and terminated him. At the time the employee was terminated, there were no vacant positions open in which he was qualified for. However, vacant positions became available within a short period of time after he was terminated. The plaintiff argued that the employer knew about the pending openings but did not offer evidence confirming this.
An employee with a disability is expected to perform the essential functions of his job with or without reasonable accommodation. In Gober v. Franklin Family Trust, a newly hired maintenance foreman for an apartment complex was terminated when the property owners learned that he was not available to be on call because of an 8-hour work day restriction based on his heart issues. The property manager who had recruited him and objected to his termination was also fired for mishandling his job accommodation. The court determined that being available after-hours (on-call) was an essential function of the maintenance position and that the foreman was not qualified. The court also ruled against the property manager's retaliation charge because she could not show that the person who had fired the property manager knew that she had objected against the legality of the foreman's firing.
Title IITitle II of the ADA prohibits discrimination on the basis of disability by state and local government entities. Title II also prohibits discrimination by these entities when they operate their programs and services through contracts. However, a plaintiff can only sue the government entity under Title II, not the contractor. In Castle v. Eurofresh Inc., a prisoner worked for a prison contractor picking tomatoes as part of his sentence. He requested intermittent breaks due to an ankle condition but the request was denied and no accommodation was made. The prison reassigned him to a lesser paying job. The Ninth Circuit ruled that he could not sue the contractor under the ADA because he was not their employee. However, it also ruled that the state is liable if a jury found that the contractor had discriminated against him.
Title II also prohibits a public entity from discriminating on the basis of disability through its licensing practice. In Lamberson ex rel. Reynolds v. Commonwealth, the Pennsylvania state board of nursing suspended a nurse's license based on its policy against allowing nurses on methadone to practice. In 2006, plaintiff had signed a consent agreement under which she would be allowed to keep her license if she provided her state's impaired professionals' program with an evaluation and releases of information, attended support group meetings, and detoxed from methadone. The plaintiff did not comply with this agreement, providing some false or incomplete statements in her releases of information and failing to attend many support group meetings, as well as failing to detox from methadone. Due to her noncompliance, her license to practice was suspended. She sued, claiming that the state's methadone policy was the reason her license was suspended and that the state's policy of suspending nurses' licenses for methadone use violated Title II of the ADA and the Rehabilitation Act when methadone is used as a maintenance treatment for previous opioid addiction. During the course of litigation, in 2012, the plaintiff died from drug-toxicity after mixing methadone and Xanax, and the lawsuit was taken over by the administrator of the plaintiff's estate. The dispute was whether the methadone policy caused the plaintiff's discharge. The court determined that, in order for plaintiff to prove discrimination, she would have to prove that the state's methadone policy was the "but-for" cause of her license suspension. Because the nurse did not comply with other aspects of the consent agreement, the court held that a reasonable juror could not find the state's methadone maintenance policy was the but for cause of the plaintiff's license suspension; therefore, the court granted summary judgment for the state.
The ADA's prohibition on discrimination in a public entity's licensing includes zoning practices. In Pacific Shores Properties LLC v. Newport Beach, City of, the city of Newport Beach passed an ordinance that prohibited most group homes from being able to open in most residential neighborhoods. In the ones that they can open, the homes must go through a permitting process. Even though the ordinance was facially neutral prohibiting group homes in general, there was evidence that the city was acting in response to complaints against homes for recovering alcoholics and drug users. The district court had ruled for the city because the ordinance did not treat these group homes worse than other group arrangements. The Ninth Circuit reversed noting that the city's motivation in passing the ordinance was enough evidence for the case to go to trial.
Title IIITitle III cases regarding physical access often involve the use of expert witnesses to testify about barriers in a place of public accommodation. In Strong v. Valdez Fine Foods, the plaintiff missed the deadline for disclosing his expert witness and attempted to use the expert's opinions in his own presentation instead. The plaintiff was present on site when the expert made the measurements. The court reasoned that because lay witnesses could make observations about size and speed and because jurors could easily understand the issues (e.g. "no handle below the lock on the stall door"), expert testimony was not necessary. Furthermore, the plaintiff's presence at the site with the expert and plaintiff's own familiarity with the physical barriers that people who use wheelchairs might face established sufficient personal knowledge to qualify him as a lay witness to the inaccessible conditions at Valdez Fine Foods. Because the conditions described were understandable by an ordinary juror, having an expert make measurements in plaintiff's presence was no different in this specific case from having another layperson assisting in making measurements.
In Tamara v. El Camino Hospital, a patient sued a hospital because of its blanket policy excluding service dogs from the psychiatric ward because of the purported disruption the dog would cause to the other patients. The plaintiff used her dog to help her balance when walking and perform other physical tasks, such as picking up dropped objects, to improve her mobility and independence. The hospital provided a walker in place of the service dog, but this made mobility more difficult. The plaintiff couldn't pick up dropped objects and could not maneuver in the bathroom, so she had to request a portable toilet to be placed by her bed. The court found that the hospital's policy of blanket exclusion of service animals without conducting an individualized assessment violated the ADA and the Rehabilitation Act. Evidence of direct threat must be based on actual risk determined from an individualized assessment. The court found that the walker was more likely to be used as a weapon than the service dog's harness, which would be difficult to undo because it was secured by multiple buckles. The court found that the ward's most unstable patients were kept in a locked ward and therefore would not have any contact with the plaintiff's service dog. The court further found that the hospital should have assessed the plaintiff's ability to care for the dog and made reasonable accommodations for this, such as allowing a friend or a staff member to take the dog out of the ward for care. Finally, the court found that other hospitals had a policies which allowed service animals into psychiatric wards and also that an occupational therapist was repeatedly allowed to bring a dog into the ward.
Welcome to the Winter 2013 edition of the ADA Case Law Digest. The digest features recent additions to the ADA Case Law Database. The database is a comprehensive search tool that allows the user to find significant court cases, settlement agreements, and consent decrees that help interpret the Americans with Disabilities Act. The database and the digests are produced through the collaboration of the Great Lakes ADA Center and the Southwest ADA Center.
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please visit the
Great Lakes ADA Center
University of Illinois Chicago
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Southwest ADA Center
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Phone: (713) 520-0232 (V/TTY)
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cases represent an excerpt of the additions to the database. If you
would like to learn more about these cases and others, please visit the
ADA Case Law Database at http://www.adacaselaw.org