ADA Case of the Week... {2}

Thanks to Susan Stefan, J.D.

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September 1998

The two ADA cases of the week are both good news. The Second Circuit affirmed the result in Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 (2nd Cir. 1998), although on arguably better grounds than the district court's decision below.

Bartlett revolves around the efforts of a 49 year old woman with a learning disability to receive accommodations on the New York State Bar exam. The defendants argued that their finding that she did not have a disability should be treated with deference. The Second Circuit rejected that argument, finding that when deference was due to a state agency, it was not because of the fact-finder's status as a state agency, but because of the expertise of the agency in the area in question. The Board of Law Examiners has no expertise in determining learning disabilities. Moreover, the Second Circuit cautioned, "even when an agency has expertise, courts should not allow agency factual determinations to go unchallenged, and deference is particularly inappropriate once that agency is a defendant in a discrimination suit."

Although the district court had found that Dr. Bartlett was not substantially limited in the areas of reading and learning because she had self-accommodated to the point that she had average reading skills compared to the rest of the population (but very low skills compared to the average law student), and instead found her substantially limited in the major life activity of working, the Second Circuit disagreed. A person's ability to self-accommodate does not foreclose a finding of disability. Referring to another case involving a policeman who was blind in one eye, the panel found that "personal, subconscious adjustments to the impairment" do not "take her outside the protective provisions of the ADA." Although the Second Circuit approved the finding of liability for damages, it remanded for reconsideration of the amount.

Your worst nightmare about psychiatric expert testimony came true in the district court's decision in Nichols v. American National Life Insurance, but was fortunately shot down by the Eighth Circuit in the decision of that name, 168 F.3d 1318 (8th Cir. 1998). The defendants in that case hired an expert, Dr. Elizabeth Pribor, who opined that the plaintiff, who complained about sexual harassment, had "poor psychiatric credibility." This was defined as "poor ability to assess the cause of her own psychological state or to report her psychological symptoms accurately." The psychiatrist further opined that the plaintiff was "malingering" for "secondary gain." The Eighth Circuit found that this opinion did not meet the standards of Daubert v. Merrell-Dow for expert testimony, and impermissibly invaded the province of the jury in judging credibility. The Eighth Circuit also found that the decision of the district court to admit testimony regarding the plaintiff's earlier abortion was error.

Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 (2nd Cir. 1998).

Nichols v. American National Life Insurance, 168 F.3d 1318 (8th Cir. 1998).

August 1998

I decided to investigate the impact of the Pennsylvania Dept. of Corrections v. Yeskey and Bragdon v. Abbott on lower court decisions, and so far it's looking pretty good.

The Eighth Circuit partially reversed a district court's grant of summary judgment in Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998) (at the district court level, this case was Gorman v. Bishop). In this case, a man in a wheelchair was not permitted on a dance floor in a bar; when he protested, he was thrown out of the bar. When he sought police assistance to gain readmission to the bar, he was arrested. When he asked permission to go to the bathroom before being transported to the police station, the police said no. He was then transported in a van that was not equipped for people in wheelchairs, tied to wire mesh of the police van, which gave way, so that he fell to the floor and lay there in his own urine. The district court granted the police department's motion to dismiss and found that the individual officers had qualified immunity against suit in their personal capacities, since they could not have known that what they were doing was illegal. The Eighth Circuit reversed as to the police department, rejecting its arguments that because Gorman did not voluntarily seek the services of the police, he was not a qualified individual with a disability. The court did so on the basis of Yeskey. Imagine what damage a holding that the ADA only applied to services voluntarily sought by the plaintiff could wreak. The court repeated Justice Scalia's injunction in Yeskey that the scope of the ADA was broad; and that the intention to cover all activities of public entities was not ambiguous. The Eighth Circuit did hold, however, that the individual officers were entitled to qualified immunity in the actions against them in their individual capacity.

In O'Keefe v. Varian, No. 95C 4281, 1998 U.S. Dist. LEXIS 11382 (N.D. Ill. July 23, 1998), a woman with diabetes, depression and bulimia brought suit against her employer. The court, referring to Bragdon v. Abbott, found that "a number of principles emerge from this decision." It is "clear that a disease must not produce continuous, identifiable (to the casual observer) symptoms in order to constitute an impairment." (Nevertheless, while finding that the plaintiff's diabetes was a disability, the court found that the plaintiff had not produced sufficient evidence of the impact of depression and bulimia on plaintiff's major life activities for them to constitute disabilities.) Furthermore, the court pointed out that after Abbott, the adverse employment action need not necessarily be based on the substantial limitation of the disability on major life activities, since in Abbott, the refusal to provide dental services in an office environment was not based on the Abbott's limitations in reproduction. Both of these observations will be helpful to people who have or are perceived as having psychiatric disabilities. Finally, the court emphasized the requirement that both sides engage in discussions and attempts to discern reasonable accommodations, and made it clear that the employer's failure to do so in this case constituted a problem for it as a defendant.

Bragdon v. Abbott also had an interesting discussion about the level of scientific authority necessary to butress direct threat decisions, which is already creeping as dicta into analyses under Daubert v. Merrell-Dow, 509 U.S. 579 (1993). For a very interesting, detailed blueprint on how to attack certain forms of psychological/psychiatric expert witness testimony based on surveys done at the behest of plaintiffs' counsel, see Black v. Rhone-Poulenc, 19 F. Supp. 2d 592 (S.D. W.Va. 1998). The interesting question is whether this decision can be applied to the kind of expert testimony on individuals' mental condition that comes up so often, and if so, how.

Pennsylvania Dept. of Corrections v. Yeskey*, 524 US 206 (1998).

Bragdon v. Abbott*, 524 U.S. 624 (1998).

July 1998

Two ADA cases of major significance were decided on consecutive days at the end of June. Both are generally good news for plaintiffs, although both raise almost as many questions as they answer.

The first, of course, is Bragdon v. Abbott, 118 S.Ct. 2196, 1998 U.S. LEXIS 4212, 1998 WL 332958 (June 25, 1998). If you have wondered why you voted for Bill Clinton, count the votes in this 5-4 decision and imagine how appointees selected by George Bush would have voted.

Before Abbott, lower courts had been headed in the direction of finding that no one qualified as a disabled person under the ADA. It made you wonder where the 43 million people Congress found had disabilities were, reading decisions like Runnbaum (HIV infection not even an impairment under the ADA) and Ellison (breast cancer not a disability under the ADA). That trend should slow down now, due to several aspects of Abbott.

First, the Supreme Court determined that HIV-seropositivity was a disability by looking at the medical literature about the course of the disease, and its impact on a life activity determined to be a major life activity, without any close examination of Sidney Abbott's life. (This is one of the major criticisms of the dissenters). Courts had recently been finding that conditions such as cancer, diabetes, epilepsy and even tuberculosis were not disabilities by close scrutiny of how the plaintiff lived his or her life. Plaintiffs who struggled to maintain their jobs and lead a semblance of a normal life were penalized by being found not to be substantially limited in a major life activity. It appears that the Court is signalling lower courts to investigate the disability rather than the plaintiff.

Second, the Court noted that the ADA must grant at least as much protection as the Rehabilitation Act. While the Rehabilitation Act left much to be desired, recent court decisions were clearly giving even less in some cases.

Finally, the Court sent a strong signal about the appropriate level of deference to be accorded to agency interpretations by heavily citing Justice Department and EEO regulations and interpretations. Of particular joy to attorneys seeking to end segregation in institutional settings, the Court appeared to explicitly give a great deal of weight -- the controlling weight of law -- to the so-called coordination regulations on which the Department of Justice regulation mandating services in integrated settings is based. Interestingly, the Court hardly cited legislative history or Congressional debates at all, although both were replete with evidence supporting its conclusions and holding.

Although the Court claimed not to decide whether HIV-seropositivity was a per se disability under the ADA, its approach left little room for argument in any case that being HIV-positive is not a disability. The Court held that being HIV-positive constituted an impairment from the moment of infection as a matter of law. It held that reproduction was a major life activity, and that being HIV-positive substantially limited reproduction both because of the risk of infection to the child and to the partner (thus, people with vasectomies or who are sterilized are still covered). I believe that the Supreme Court ducked the per se disability issue because it did not want to have to come up with a standard by which to judge whether other conditions were per se disabilities, and it envisioned a flood of litigation from per se wannabes (although if you are not going to answer a question, you should have enough consideration for the attorneys writing the briefs and preparing the argument to not grant cert. on it).

Although it did not address a question on which it had granted cert., the Court did pursue an issue on which it had explicitly refused to grant cert., Question 5: Did petitioner Bragdon raise a genuine issue for trial as to whether he was warranted in his judgment that performing the filling in his office would have posed a direct threat?

This direct threat issue is, of course, of vital concern to all who litigate on behalf of people perceived as being psychiatrically disabled, as was Dr. Bragdon's attempt to assert a professional judgment standard for determining direct threat. The Supreme Court thankfully rejected that effort in no uncertain terms, holding clearly that "petitioner receives no special deference simply because he is a health care professional." The folks who are entitled to special deference are the U.S Public Health Service, the CDC, and the National Institute of Health. This has troubling implications about the status of NIMH, but it is clearly a lot better than the standard proposed by Dr. Bragdon and may be the best we could hope for.

The direct threat discussion, and its counterpart in the dissent, is what makes a vote for Bill Clinton worthwhile after all. Justice Rehnquist would have found that "Given the severity of the risk... and the fact that no public health authority had outlined a protocol for ELIMINATING THE RISK emphasis mine... it seems likely that petitioner can establish that it was objectively reasonable for him to conclude that treating respondent in his office posed a direct threat to his safety." The majority more reasonably states, "Because few, if any activities in life are risk free, Arline and the ADA do not ask whether a risk exists, but whether it is significant." (Phew! And they are the majority). The existence of a significant risk must be based on medical or other objective evidence. "Our conclusion that the courts should assess the objective reasonableness of the views of health care professionals without deferring to their individual judgments" leads the Court to remand, although the majority decision is written in terms that makes clear that they won't swoon with surprise if the courts below reach the same decisions the second time around. The majority further states that "Scientific evidence and expert testimony must have a traceable, analytic basis in objective fact before it may be considered on summary judment." Gives psychiatric expert witnesses something to think about.

More on the second case, Kathleen S. v. Department of Public Welfare, below. That case is, by the way, the very first case to cite Bragdon v. Abbott, which was decided the day before Kathleen S. was issued.

Bragdon v. Abbott, 118 S.Ct. 2196 (1998).

July 1998

Kathleen S. v. Department of Public Welfare, 10 F. Supp. 2d 460 (E.D. Pa. 1998) can be seen as the beginning of the next generation of Helen L. cases under the ADA. It is one of the first major class actions requiring substantial desegregation under the ADA, and its division of sub-classes probably foretells the categories of the future: people the State has planned to place in the community (but just hasn't gotten around to); people the State believes could be placed in the community if sufficient resources were available, and people the State thinks should stay in the institution. (Look for that last category to increase in the coming years). boogaThe court in Kathleen found that people in the first two categories were subject to inappropriate segregation under the ADA, and ordered that they be placed in the community. The clearest indication that this case is the beginning of a second wave of ADA litigation is that the court told defendants when to do this: in eighteen months, rather than the defendants' schedule of three years. This may be the part of the court's ruling most vulnerable on appeal, although this is the Third Circuit, and the judge laid a good foundation for selecting this timetable in terms of the defendants' own past practices. It is noteworthy that the court in Charles Q v. Houston, an individual case, gave the defendants three weeks to come up with a discharge plan for Charles and 60 days to get him out of the hospital where he had spent 44 years of his life. Finally, the defendants' defenses, although given short shrift by this court, show that defendants are finally beginning to give some thought to procedural defenses that other courts might be more receptive to considering: abstention and Rooker-Feldman arguments. The Rooker-Feldman doctrine holds that a federal district court may not serve as an appellate court for state court decisions. The defendants' argument was apparently (it's hard to tell from the case) that plaintiffs were in effect appealing commitment decisions to the federal court. The defendants also argued that the plaintiffs were inappropriately using the ADA as a habeas corpus remedy, a less troubling argument.

Finally, the court rejected defendants' fundamental alteration argument,noting that the language of the Pennsylvania statute defining the department's duties spoke in precisely the same terms as the plaintiffs: the primacy of community based care over institutions. Because so many state statutes mouth the same noble principles, never having thought they would actually be taken seriously, this is a great source for attorneys doing these cases across the country to defeat defenses of fundamental alteration. Thanks to the plaintiffs' lawyers and Judge Broderick -- it's nice to get some good news for a change.

Kathleen S. v. Department of Public Welfare, 10 F. Supp. 2d 460 (E.D. Pa. 1998).

April 1998

The Eleventh Circuit decided L.C. v. Olmstead, 138 F.3d 893, on April 8, 1998 (the decision can also be found at 1998 WL 163707, and at 1998 U.S. App. LEXIS 6878).

In L.C. the Eleventh Circuit followed the lead of the Third Circuit in Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), holding that "where...the State confines an individual with a disability in an institutionalized setting when a community placement is appropriate, the State has violated the core principle underlying the ADA's integration mandate."

The Court rejected the State's argument that the ADA only protects against discrimination that disadvantages disabled people compared to non-disabled people in the strongest terms, and at great length. Noting (correctly) that this argument means that "the ADA affords no protection to individuals who receive public services designed only for individuals with disabilities," the Court conducted an exhaustive review of statutory provisions, legislative history, and the Department of Justice regulations that support the contrary conclusion. The Court distinguished Traynor v. Turnage, 485 U.S. 535 (1988), in a footnote as standing for the proposition that benefits may be accorded one group of people with disabilities without the requirement that they be extended to all people with disabilities, and having nothing to say about the question of whether segregation of people in institutions is appropriate.

In addition to finding that the claims were not moot because of the plaintiffs' placement in community settings, and in addition to holding that the ADA imposes duty on states "to place individuals with disabilities in the most integrated setting appropriate to their needs when receiving services for their disabilities to ensure that they become integrated into communities, not isolated from the rest of our society in state-run institutions," the Court had significant things to say about the role of budget shortfalls in ADA anti-segregation claims.

First, the court rejected the argument that denial of community placement because of lack of funding was not based on disability and therefore not discriminatory. The Court essentially found that cost concerns were always matters of affirmative defense in ADA cases (not, as the defendants were trying to argue here, a trump to plaintiff's prima facie case requiring the plaintiffs to prove discrimination). Judge Barkett wrote that "the plain language of the ADA's Title II regulations, as well as the ADA's legislative history, make clear that Congress wanted to permit a cost defense in only the most limited of circumstances." The court said flat out that a public entity could not justify its refusal to comply with the ADA by asserting that it lacked the money to do so.

The court did caution that its holding does not mandate deinstitutionalization, and is limited to circumstances where the disabled individual's treting professionals find that a community-based placement is appropriate for the individual. Even the best of the district court decisions have not held as a matter of law that segregation in institutions always violates the ADA (although Judge Broderick in Pennsylvania just certified a Helen L.-type class).

I read this as giving the district court a blueprint for making the kind of factual findings that would support affirmance if and when the state appeals the district court's findings regarding fundamental alteration, and a good opportunity to make more good law on these ADA issues. Interestingly, the panel indicated its awareness that "the State will be able to save money by moving patients from institutionalized care to community-based care only when it shuts down entire hospitals or hospital wings, but not when it moves one or two patients hospital into the community." Thus, it is possible that the panel is setting up a very astute doctrinal path for plaintiffs to travel: in individual cases, the cost of moving people into the community will always be de minimus as compared to the State's budget, and therefore a fundamental alteration defense will fail; however, if the remedy requested is on a larger scale, it will become more financially feasible, and therefore costs as a premise for fundamental alteration defenses are difficult to assert. The court does seem to indicate that a defense that eliminating institutions entirely would fundamentally alter a mental health system would be received with more sympathy, and makes clear that this holding does not serve as precedent for deinstitutionalizing an entire hospital.

We seem to have entered an era where deinstitutionalization is not permitted, but desegregation is. Let us make the most of it.

L.C. v. Olmstead, 138 F.3d 893 (11th Cir. 1998)

March 1998

The Supreme Court just decided to hear its third ADA case this term, making it clear that the Court is intending to shape ADA jurisprudence in a wide variety of areas. In addition to Abbott v. Bragdon, 107 F.3d 934 (1st Cir. 1997), which will permit the Court to decide whether any disabilities are per se disabilities (a likely negative answer to that question despite persuasive legislative history to the contrary), whether reproduction is a major life activity, and (of greatest importance to people in the mental health field) how professional judgment intersects with the ADA, the Supreme Court has agreed to decide whether the ADA applies in the prison setting, and, recently, whether a claimant under the ADA must submit his claim to arbitration under a collective bargaining agreement prior to bringing a court action.

All of these cases have one thing in common: the circuit courts are badly split on the issues involved. There are a number of other issues dividing the circuits that the Supreme Court has not decided to hear (so far): whether mitigating measures such as medication or glasses should be considered in deciding whether an individual is disabled; whether application for disability benefits judicially estops a plaintiff from claiming that he or she is qualified for the job; and (another important one for the mental health community) whether and how the ADA applies to decisions by state agencies to terminate parental rights.

Recently, the Fifth Circuit, arguably the most conservative circuit in the country, reexamined the question of whether Congress had the power to pass the ADA at all and answered in the affirmative, in Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998).

The decision regarding the intersection of the ADA and collective bargaining/labor law is Wright v. Universal Maritime Service Corporation, 1997 U.S. App. LEXIS 19299, 1997 WL 422869 (4th Cir. July 29, 1997).

February 1998

The cases from the Circuit Courts, in Februrary so far lo,ok like versions of the Good News/Bad News joke. The good news is Ralph v. Lucent Technologies, 135 F.3d 166 (1st Cir. 1998). This case is good news on a variety of fronts. The facts in the case are that Ralph, who worked for Lucent successfully for over twenty years, began to be harassed by his co-workers for being "a homosexual" and "a child molester" (the court informs us that he is neither). There is a fairly substantial set of cases involving people alleging that their psychiatric disabilities were caused by harassment at work because of gender, sexual orientation, race and/or physical disability. These cases tend to fare badly, and no case involving harassment because of purported sexual orientation has ever succeeded before. In this case, Ralph ended up trying to kill himself and hospitalized, but he came back to work, where he found allegations about being a child molester on his locker. He took some time off, but his psychiatrist (the mental health professionals are the good guys in this case) said (1) medication would cause him more harm than good, and (2) he really should get back to work. The company tried to force him to take disability. There is also a substantial body of case law involving employers who try to get rid of problem employees by urging / encouraging / forcing them to go on disability (the same disability plans that give limited benefits for emotional disabilities compared to physical disabilities). He requested an accommodation of being allowed to return to work part-time for four weeks. The company said no. The district judge issued a preliminary injunction requiring the company to grant the accommodation, which the company appealed (?!) to the First Circuit. This seems a little extreme for a time-limited accommodation, and the First Circuit pointed this out. It affirmed the injunction of the District Court.

The bad news is EEOC v. Prevo's Market, 135 F.3d 1089 (6th Cir. 1998). The EEOC has been losing a lot of ADA Title I cases lately. They should have won this one. A grocery clerk who was HIV-positive was fired for refusing to undergo medical examination after he revealed his condition to his employer, and the court upheld this result. In a memorable line, the Sixth Circuit says, "This is not the sort of unfounded and biased discrimination the ADA was created to prevent." Rather, I suppose, it is considered to be founded and unbiased discrimination. The food handler exception in the ADA was clearly limited to food handlers; there is no medical indication whatsoever that a grocery clerk who is HIV-positive poses a direct threat to anyone. This is a sad day, and an outrageous case.

Ralph v. Lucent Technologies, 135 F.3d 166 (1st Cir. 1998).

EEOC v. Prevo's Market, 135 F.3d 1089 (6th Cir. 1998).

February 1998

The case of the month (a little belated) is Chris Doe et al. v. Dr. Carlos Stincer, et al., 990 F. Supp. 1427 (S.D. Fla. 1997), which found that a Florida statute requiring medical facilities to release all medical records to former patients upon their request, but permitting the facilities to deny requests for mental health records, violated Title II of the Americans with Disabilities Act. This case is important for a variety of reasons. First, while the disparity between the right of access to medical and mental health records in most states is not as egregious as it is in Florida (for example, in most states, a facility must make a finding that releasing the records would be harmful to the patient, and provide for some right of appeal; the Florida statute required no finding of harm, and provided no right of appeal), all states have some differentiation in their statutes. The plaintiff's position was that any differentiation is unsupported by the substantial research literature developed over the last twenty years in this field.

The case also held that the Advocacy Center, which is the Florida Protection and Advocacy Agency, had independent standing to bring this suit, which was fortunate. In other rules, the court appeared to cast doubt on the standing of the individual plaintiff. This highlights a real problem with the Americans with Disabilities Act: under Title III, a plaintiff cannot sue for damages (although the Department of Justice can). Every time a person with a psychiatric label sues under the ADA, the defendants can simply turn over the records, and potentially moot the case, since the plaintiff will be unable to bring a lawsuit for damages. Plaintiffs can sue for damages under Title II of the ADA, but this would be an extremely weak claim since it was not the government but the facility that denied our plaintiff access to her records.

This case is being appealed to the Eleventh Circuit. Briefing schedules have not yet been set.

Doe v. Stincer, 990 F. Supp. 1427 (S.D. Fla. 1997).

Last updated January 2005, by Tom Behrendt. (Links updated November 2019.)