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Welcome to the Summer 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.

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  VOLUME 5, ISSUE 2 SUMMER 2015 

Title I

Despite the ADA Amendments Act's prescription that courts not focus on whether people have a disability, the outcomes of ADA employment cases are still turning on this issue. In Howell v. Holland, a staff perfusionist (a person who operates heart and lung machines during heart surgery) requested an accommodation to no longer work with a specific heart surgeon after a serious workplace dispute where the doctor threatened him. Due to this incident, the perfusionist had taken time off for anxiety and depression. Considering that this heart surgeon performed 80 percent of the heart surgeries for the hospital, this request would cause a serious impact on the workload of other perfusionists. The inability to work with a specific doctor was not considered a disability to accommodate.

In Martinez v. University Medical Center, a warehouse technician had injured his back while lifting boxes. While working on temporary modified duty that complied with his doctor's restrictions, a supervisor requested him to work an assignment that would strain his back. The technician refused and was suspended. The technician sued his employer for several causes over this incident including their failure to accommodate him and retaliation. The court granted summary judgment to the employer on the accommodation issue because he never requested an accommodation. He had refused the assignment. However, the court did not give summary judgment to the employer over their retaliation (the suspension) when he refused his assignment. This issue will be decided by a jury.

Title II

Educators have an obligation to accommodate students with disabilities and their service animals. In Alboniga v. School Board of Broward County, the court ruled that the defendant violated Title II by failing to provide the plaintiff with a reasonable accommodation through its initial denial of the child's service animal access to his school and then by implementing procedural barriers to the use of that service animal in school. A.M., a six year old boy with a number of disabilities, used a service dog to detect, alert and respond to seizures. The service dog was not a part of the plaintiff's IEP. On condition of allowing Stevie, the service dog, on school grounds, the School Board requested that the plaintiff provide proof of liability insurance and vaccinations. The requested vaccinations exceeded those related to the regulation of animals permitted in schools. Moreover, the School Board notified the plaintiff that a "handler" needed to be provided for the service dog.

The plaintiff asked that the School Board permit A.M. to attend school accompanied by his service dog without having to provide a separate "handler" for the dog and without having to pay for additional liability insurance and additional vaccinations. Considering A.M. the dog's "handler," the plaintiff further asked the School Board to accommodate him by accompanying A.M. and the animal outside of the school premises when it needs to urinate. The court found the liability insurance and extra vaccinations to be a surcharge prohibited by Title II. Furthermore, the court ruled that the School Board was required to provide A.M. with an employee to assist him to lead his dog outside the school to relieve itself. The court dismissed the defendant's argument that it is not responsible for the "care and supervision" of the service animal. The court reasoned that the School Board is not being asked to provide an employee to walk Stevie. Rather, the School Board is being asked to help A.M. do so. That is, the School Board is being asked to accommodate A.M., not to accommodate, or care for, Stevie.

Moreover, educators may have an obligation to ensure that students with disabilities are not being harassed or bullied; but the ADA may only expect this obligation when the harassment is based on disability. For example, in Eskenazi-McGibney v. Connetquot Central School District, the plaintiffs brought suit alleging discrimination and retaliation under Title II. JEM, the plaintiffs' minor child, was regularly physically and verbally assaulted and threatened by a classmate at school. The plaintiffs notified and complained to school officials about the repeated harassment. The school and district officials failed to take any action, and even forbid the plaintiffs from communicating with some of JEM's teachers.

The plaintiffs alleged that the defendants violated Title II by failing to take appropriate action in relation to the harassment. The defendants countered by arguing that the defendants' failure to act was not causally related to JEM's disability. The court agreed with the defendants, noting that the facts did not support a finding that the harassment was "based on disability." The court ruled that Title II was not violated since there was no link between the bullying and disability, and to rule otherwise would turn the ADA into a "generalized anti-bullying statute." The court used the same reasoning to also dismiss the retaliation claim; noting that complaining about bullying, without a link to JEM's disability, is not "protected activity."

Finally, in Owens v. Florida Department of Corrections, the plaintiff alleged that the prison's staff was deliberately indifferent to his medical needs and did not make reasonable accommodations for him. The appellate court upheld the district court's dismissal since the complaint was now moot. The plaintiff sought injunctive relief, but he was transferred to a different prison since filing the initial complaint. The appellate court also did not find that the district court abused its discretion by denying the plaintiff leave to amend his complaint. The court found that the complaint would be "futile," even if amended, since Title II was not violated: "Owens had access to medical services and used those services."

Title III

When multiple entities have control over the place of public accommodation, determining which entity is responsible for any violations may be very fact specific. For instance, in Ritchie v. National Football League, the plaintiff alleged violations of the ADA based on the defendants' refusal to allow the plaintiff to access the front-row seat she purchased for the 2013 Pro Bowl at Aloha Stadium. The plaintiff, who uses a wheelchair, had regular communications with the NFL and stadium authorities about her desire to sit in the front row seat she purchased as opposed to the accessible seat she was offered. While the staff and authorities encouraged her to use the accessible seat, they stated that they would not block her from going to her seat as long as she did not use the Aloha Stadium staff to do so. When the plaintiff arrived at the stadium, a stadium employee became concerned that the plaintiff could not walk down the stairs safely to her front row seat; and the plaintiff was moved to the accessible seat.

In her motion for summary judgment, the plaintiff sought a declaration that the NFL was responsible for the decision to have her moved to the accessible seat. The court denied the plaintiff's motion, reasoning that stadium employees, security guards and HPD officers were all present when the decision was made; and there was no evidence that "the NFL controlled all of these individuals and/or controlled seating decisions."

A medical provider's duty to effectively communicate with patients is not exclusive to communications with people with hearing loss. In Reed v. Columbia Saint Mary's Hospital, the appellate court vacated the district court's dismissal of the plaintiff's case. Reed has tardive dyskinesia, a neurological disorder that causes involuntary facial and limb movements and makes speaking difficult. Because tardive dyskinesia makes speaking difficult, Reed uses a computer to communicate. During a hospital visit, Reed asked that staff bring the computer to her, which they refused. When she repeated her request, she alleged the staff retaliated against her by grabbing her and throwing her into a "seclusion room." Later, staff summoned Reed to a meeting with a doctor to discuss her discharge, where, still without her computer, she was unable to communicate. She was eventually escorted out of the hospital by security and injured in the process.

The appellate court ruled that the plaintiff had sufficient facts to support claims under the ADA and the Rehabilitation Act, notably the denial of use of the computer that helps her communicate.

To hold a defendant liable for impermissible architectural barriers, a plaintiff may need to prove that the defendant had control over the facility. For example, in Kohler v. Bed Bath & Beyond, the appellate court upheld the district court's ruling that the defendant had not violated the architectural standards of the ADA. First of all, the court found that the ADA does not require wall space within the maneuvering clearance next to the frame of a restroom door that must be pulled open. Furthermore, the court ruled that the defendant could not be held liable for the architectural barriers in the parking lot because, as a tenant, the defendant had no "preexisting control" of the property. The appellate court, however, reversed the district court's award of attorney fees to Bed Bath and Beyond because the plaintiff's claims were not "frivolous, unreasonable, or without foundation."





Other Disability Law Websites
These 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