|VOLUME 5, ISSUE 1||SPRING 2015|
An employer may have legitimate reasons for letting go of an employee for performance issues. When it happens after the employee files a complaint with the federal government, those reasons may be scrutinized as to whether they were pretext for retaliation under the ADA. In Collazo-Rosado v. University of Puerto Rico, the employer had documented the employee's unannounced leaves, early takeoffs and late arrivals, and poor performance reviews to prove that their reasons were not pretext. In Krasner v. City of New York, the employee engaged in serious misconduct, including instances of insubordination, use of profane language, and threats to co-workers of serious physical harm. They may have been a result of his Asperger's syndrome but workplace misconduct is a legitimate reason to terminate someone.
In employment law, an employee may claim a constructive discharge if they resigned due to intolerable work conditions. In Shryer v. University of Texas Southwestern Medical Center at Dallas. a supervisor gave an employee poor performance reviews, sighed and occasionally commented on her mobility issues in her presence, asked if she had a medical condition, and expressed frustration to his head that the employee was not adequately carrying out her responsibilities. The Fifth Circuit ruled that tension between an employer and employee is not enough by itself to be considered a constructive discharge.
As we noted in the summer 2014 issue of the digest, the Court of Appeals in Sheehan v. City and County of San Francisco held that the duty to reasonably accommodate under Title II applies to arrests made by police officers. The City and County of San Francisco appealed that decision, and the Supreme Court is set to rule on the issue.
Nonetheless, under some extreme conditions, police officers may be unable to reasonably accommodate arrestees. For instance, in De Boise v. St. Louis County the plaintiffs claimed that the defendants failed to provide reasonable accommodations under Title II of the Americans with Disabilities Act in relation to an arrest. The events leading to the suit occurred when De Boise, who had schizophrenia, left his home naked and roamed the neighborhood, beating houses with a stick, and claiming to be God. After returning home and while still delusional, his mother called 911 from a neighbor's house. After the officers arrived on scene, De Boise's mother informed them that she had a firearm in the house and that De Boise had schizophrenia. Believing that De Boise posed a threat, one of the officers instructed De Boise several times to lie down on the grass; and when De Boise refused, he fired his taser gun. De Boise was tasered several times because he continued to get up, walked toward the officers, and kicked and flailed his arms when the officers attempted to arrest him. On his way to the hospital De Boise went into cardiac arrest and was pronounced dead upon his arrival at the hospital.
The Court of Appeals agreed with the District Court which found that no violation of the ADA occurred because the officers were faced with unexpected and exigent circumstances to which no reasonable accommodations could be made until after the scene was safely secured. The Court found it significant that the officers received information that De Boise had assaulted his mother and observed De Boise's aggressive and irrational behavior and his continued non-compliance with their demands; and reasoned that due to the unexpected and rapidly evolving circumstances, the officers were not required "to hesitate to consider other possible actions in the course of making such split-second decisions."
Efforts to integrate the population with disabilities, post Olmstead, have to take into account the numerous interests at hand. In Illinois League of Advocates for the Developmentally Disabled v. Illinois Dept. of Human Services, the plaintiffs challenged the defendants' decisions to close a state-operated institution for people with developmental disabilities and to assess its residents for potential transfers into community living arrangements. The plaintiffs argued that not all people do better in community living arrangements, and some people require constant 24 hour care and supervision. The Court ruled against the plaintiffs because it found that the state's plan would keep other state-operated institutions open, and the guardians had the option to opt for private institution placement. In other words, the record showed that the defendants are not impeding or would impede the plaintiffs' right to consent to, or reject, community placement. Moreover, the Court held the defendants' predisposition in favor of the integration of the developmentally disabled population cannot alone constitute unlawful discrimination, and this position is entirely consistent with the Supreme Court's decision in Olmstead.
In Estrada v. San Antonio Indep. Sch. Dist., the plaintiff alleged that the defendant failed to provide reasonable accommodations for his disability and grossly mismanaged his educational plan. The plaintiff, who has cerebral palsy and uses a wheelchair, needs help with transfers to and from the bathroom. The school principal assigned an aide to help the plaintiff with his mobility needs. The aide attended most of the plaintiff's restroom visits with a coworker. Sometimes, however, no other adult was available to assist the aide, and he accompanied the plaintiff alone. The aide molested the plaintiff on three of those occasions. In support of the ADA claim, the plaintiff alleged that the District: (1) failed to have an accessible, safe bathroom for a student that uses a wheelchair; (2) failed to provide him with two-person transfers; (3) did not have accessible doors across the campus that he could utilize; and (4) did not enact an evacuation plan for him in case of an emergency.
The Court sided against the plaintiff, finding that the bathroom had safety devices installed to assist students with disabilities; and two employees accompanied the plaintiff for the vast majority of his bathroom visits, and there is no authority suggesting that the District's failure to provide two-person transfers on every occasion supports a finding of intentional discrimination. Finally the school had three automatic door openers, and the District had emergency evacuation plans for "students in wheelchairs" and for the plaintiff specifically.
The inquiries that a bank can make about a loan applicant's disability may be limited. For example, in Wigginton v. Bank of America, the plaintiffs claimed that the defendant violated Title III of the ADA in relation to information requested for a mortgage loan. The plaintiffs receive disability benefits from the Social Security Administration. After applying for a mortgage loan, the defendant asked the plaintiffs for information from their physicians, or the Social Security Administration, showing that the benefits would last for at least three years. Because the information was never provided, the defendant denied the loan. The Court sided with the defendant, finding that the inquiry or loan denial was not discrimination because the bank asks everyone who applies for a loan to provide a good reason for it to think that the applicant's current income will continue. The Court also did not find it of value that the Department of Justice had settled another suit with the defendant; the terms of which state that the defendant will use an applicant's history of receiving benefits as sufficient reason to think that they will continue.
A student with disabilities that attends a post-secondary university has an obligation to request accommodations in a timely manner. For instance, in Shaikh v. Lincoln Memorial Univ., the Court sided with the defendant and found that the University did not violate Title III by refusing to provide the requested accommodations. The plaintiff, who has ADHD and dyslexia, initially requested time and a half and a quiet room for exams; which was granted. After failing two courses, the plaintiff met with the University's Student Progress Committee to discuss his academic performance. Plaintiff advised the Committee that he believed he would benefit from a decelerated program that would allow him to complete his education at LMU in five years rather than four years. The proposal was rejected because it was made after the plaintiff had already failed two classes, and it would be an administrative burden. The Court held that the defendant's decision was reasonable since the request was made after the fact. What's more, the Court reasoned that the plaintiff is not a "qualified" individual since he was unable to meet the academic demands with the agreed accommodations.
Welcome to the Spring 2015 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. Prepared by George Powers and Vinh Nguyen, Southwest ADA Center.
If you would like
to learn more about
these cases and others,
please visit the
Great Lakes ADA Center
University of Illinois Chicago
1640 West Roosevelt Road, Room 405
Chicago, IL 60608
Southwest ADA Center
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2323 South Shepherd Boulevard
Houston, Texas 77019
Phone: (713) 520-0232 (V/TTY)
Fax: (713) 520-5785
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