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Welcome to the Fall 2016 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 6, ISSUE 3 Fall 2016 

Title I

The Americans with Disabilities Act (ADA) prohibits employers from requiring a medical examination unless the requirement is job related and consistent with business necessity. In Pena v. City of Flushing, a city employee, Pena, requested medical leave due to stress at work. His supervisor noticed that the employee was behaving strangely and differently than he had ever seen him. Because of the supervisor concern, the city requested a medical exam as a condition of returning to work. Pena refused to be examined by the city's doctor and was fired for insubordination. The court determined that the city had good reason to seek information about Pena's fitness for continued employment based on his lengthy medical leave, the City's lack of information about the reasons for Pena's medical leave, and the supervisor's observation that Pena had acted differently before taking his leave.

Issues over to return to work was also the focus of Wheatley v. Factory Card and Party Outlet. The employee, Wheatley, had taken medical leave after injuring her foot. The employer told her that she would be terminated if she could not return to work after her leave was exhausted. She requested to return to work wearing a walking boot, but the employer would not allow this. Wheatley sued her employer for failing to accommodate her. The court sided with the employer because she could not show that she was qualified to perform her job even with the walking boot. Her job requires her to climb ladders and stand for hours at a time. Wheatley had admitted under testimony that she could not stand up long enough for a full workday.

In Dunderdale v. United Airlines, Inc., an airline employee twice suffered an injury at work and returned to work with permanent work restrictions. United Airlines reassigned him to another position for a period, but the employee eventually lost this position because of a collectively-bargained seniority system. He asked to be put into a position that was not subject to the seniority system, but there were no open positions. He sued United for failing to accommodate him, but the court sided with the airline because there were no open positions for him to be reassigned to given the seniority system.

Title II

Last year, we highlighted Ivy v. Williams. That case dealt with driver education certificates that were only available from private education schools licensed by the state agency. People who are deaf or have hearing loss are unable to participate in the driver education courses because the schools do not provide ASL interpreters. An individual under 25 cannot apply for a driver license without a driver education certificate. In effect, people who are deaf and under 25 have a barrier to obtaining a driver license in Texas. The Supreme Court is planning to hear this case, now designated as Ivy v. Morath to decide if the state agency is violating Title II of the ADA.

The "services, programs, or activities" of state and local governments encompass virtually all of the governments' programs. In King v. Marion Circuit Court, the plaintiff alleged that the defendant violated Title II when he was denied an American Sign Language (ASL) interpreter for an alternative dispute resolution (ADR) program. The Marion Circuit Court created an ADR program for domestic relations matters in the county to minimize adversarial processes, promote agreed resolutions, avoid post-decree processes, maximize timely case management, and conserve family relations and resources. Mr. King, the plaintiff, is deaf and communicates primarily through ASL. Mr. King was a party in state court action with respect to custody and parenting time for his daughter. He requested to participate in the mediation program and later requested an ASL interpreter. His request to participate in the mediation program was granted, but his request for an ASL interpreter was denied.

At trial, the defendant argued that the ADR program is not a state program, service, or activity as defined under Title II. The court disagreed and held the program to be a judicial service subject to the provisions of Title II of the ADA. Marion Circuit Court also argued that it provided an alternative reasonable accommodation when it released Mr. King from the obligation to attend the mediation program. The court did not find this accommodation to be reasonable as it denied the plaintiff the opportunity to participate in the program.

Under some circumstances, the police may not be bound by the ADA. For example, in Haberle v. Troxell, the court analyzed whether Title II of the ADA applies to police activities under exigent circumstances. The plaintiff's boyfriend Timothy Nixon had psychiatric disabilities and told her he was contemplating suicide. The plaintiff later learned that Nixon had a firearm, and fearing that he would carry out his threat, she contacted the Borough of Nazareth police department. After arriving at the scene, some of the police officers recommended that a perimeter be established and that trained crisis negotiators from the Pennsylvania State Police be summoned to the scene. Troxell disregarded the suggestions and knocked at the door of the apartment where Nixon was located and presumably identified himself as a police officer. Nixon responded by walking into another room of the apartment alone and putting the gun to his head, tragically taking his own life.

The court held the ADA is categorically inapplicable under these circumstances, at least during the time prior to the officer's securing the scene and ensuring that there is no threat to human life. It reasoned that requiring the officers to factor in whether their actions are going to comply with the ADA, in the presence of exigent circumstances and prior to securing the safety of themselves, other officers, and any nearby civilians, would pose an unnecessary risk to innocents. When Troxell approached the apartment and knocked on the door, the responding officers did not know whether Nixon was still in the apartment or whether he was at large in the community with the firearm he had stolen, whether he may have posed a threat to anyone who was in the apartment, or whether Nixon or anyone else in the apartment was in need of medical attention.

Title III

Under the ADA, the term disability means a physical or mental impairment that substantially limits one or more major life activities of an individual. In Bibber v. National Board of Osteopathic Medical Examiner, the plaintiff sought an injunction from the defendant's denial of her request for additional time to complete the Comprehensive Osteopathic Medical Licensing Examination. The plaintiff is deaf and has dyslexia and requested extended testing time. Her request was denied by the defendant. Bibber received accommodations through high school and college. Bibber took the MCAT and GRE without accommodations and received average scores.

The court analyzed the evidence to determine whether Bibber's dyslexia substantially limits her ability to read and process information. The court noted that an analysis as to whether one's impairment substantially limits her performance in a major life activity must compare the individual's abilities to those of most people in the general population and not her academic peers. The court weighed the evidence and found that Bibber's reading and processing abilities are average when compared to the general population. The court held that the plaintiff's dyslexia does not substantially limit her ability to read or process information as compared to the general population, and thus she is not a person with a disability under the ADA. In other words, the court reasoned that the plaintiff's academic success is inconsistent with the notion that her dyslexia substantially limits her ability to read and process information compared to the general population.

Public accommodations ought to consider waiving admission fees for personal care attendants when reasonable. In Anderson v. the Franklin Institute, the plaintiff alleged the defendant failed to grant people with disabilities full and equal access to its facilities. Specifically, the plaintiffs argued that the Franklin Institute discriminates against people with disabilities by charging an additional and separate admission fee to personal care attendants, whose sole purpose is to provide individuals with disabilities with the opportunity to fully participate in the services offered by the museum.

The crux of the plaintiff's contention was that charging PCAs for admission effectively doubled the cost of admission for this class of citizens. The defendant countered that people with disabilities are treated equally to all other patrons who are required to pay an additional admission fee when accompanied by a guest, such as a child's nanny or chaperone, as examples. The court disagreed with the defendant, reasoning that a PCA is more comparable to a service animal; and children are not a protected class. The court found the plaintiff's position to be reasonable since the defendant could not show an undue financial burden.

Title III of the ADA strictly exempts entities controlled by religious organizations. For example, in Sky R. v. Haddonfield Friends School, the plaintiffs alleged that the defendants failed to properly accommodate Sky R. At the time of the suit, Sky R. was a ten year old boy with attention deficit disorder and dyslexia. The defendant argued that they are not subject to Title III of the ADA because of the religious exemption. The court ruled in the defendant's favor. It reasoned as a private school with a religious affiliation with the Religious Society of Friends (Quakers) and under the control of a religious organization, the defendant is excluded from the ADA.

Conversely, a place of public accommodation is broadly defined. In Levorsen v. Octapharma Plasma, the appellate court held that the defendant's plasma donation centers (PDCs) are covered entities under Title III. The appellate court reversed the district court's ruling, which reasoned that PDCs are not service establishments; because rather than accepting payment from the public in exchange for a service that PDCs provide, PDCs instead offer payment to the public in exchange for a service that PDCs receive. The plaintiff has psychiatric disabilities and gives plasma at the defendant's PDC to supplement his income. When an Octapharma employee learned Levorsen has schizophrenia, the employee became concerned that Levorsen might have an episode while donating and dislodge the collecting needle, possibly injuring himself or someone else. The employee thus advised Levorsen that he was ineligible to donate plasma.

The appeals court disagreed with the lower court's conclusion that PDCs are not service establishments because they don't provide a service to the public in exchange for a fee. Instead the appellate court looked at the plain meaning of the term "service establishment" and found that PDCs meet the definition; since they are an "establishment" that provides a "service."





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