Tag Archives: Americans with Disabilities Act

Dawg Bones

Don’t make me go to a pep rally! I’ve got PTSD!

New Caney ISD was faced with an interesting situation when teacher Stephen Seidel asked his principal for an accommodation of his PTSD.  Mr. Seidel is an Iraq War vet, and he informed his principal that loud noises in enclosed spaces would exacerbate his symptoms. Of course there are few things in life louder than a high school pep rally in the gym. So Mr. Seidel asked to be excused from pep rallies at the school.  The principal agreed to this. The plan was for Mr. Seidel to patrol the hallways during the pep rally, rather than attending.

Apparently, this worked just fine for a year and a half.  Then, on December 21, 2012, the high school held a “Lip Dub.”  The court tells us that this event “resembles a pep rally in its loudness.”  Mr. Seidel’s supervising teacher, who was also his department chair, perhaps unaware of the agreement, told him to attend.  Mr. Seidel told her that he could not do this. He explained that “he does not go to the pep rallies.”  According to the court, the supervising teacher insisted that he needed to go into the gym, like the other teachers.

The court’s opinion tells us that Mr. Seidel at first stayed near the door to the gym, but “Later, other unnamed administrators forced him into the bleachers, over his objections.” The “Lip Dub” included “students rushing in, screaming, popping balloons, shooting off confetti cannons.”  In other words, it was loud in there.

Mr. Seidel claims in his lawsuit that all this chaos did, in fact, bring about a “flashback” to his days in Iraq.  With help from his students he left the gym, but he experienced panic attacks and flashbacks the rest of the day.  He left the school, and did not return “out of fear of having a flashback and possibly hurting a child.”

Eventually, Mr. Seidel filed suit, alleging disability discrimination.  New Caney filed a Motion to Dismiss the suit, arguing that Mr. Seidel was not a “qualified individual” able to perform the work of a teacher. In a suit under the ADA (Americans with Disabilities Act), the employee must establish that he or she was able to perform the essential functions of the job. Here, the district cited Mr. Seidel’s own admission that “he can no longer work as a teacher.”  Mr. Seidel’s argument was that he was fully capable to work as a teacher until the “Lip Dub” incident when the district revoked the accommodation he had had.

The court said that the key issue was “the relevant time for assessing whether Mr. Seidel can work as a teacher.”  The court held that the “relevant time” is “when the alleged ADA violation occurred.”  In other words: was Mr. Seidel qualified and capable of serving as a teacher on December 21, 2012, the day when he alleges that the district violated the ADA.  He was. Thus the court refused to dismiss his lawsuit.

This case has a long way to go.  Mr. Seidel has only jumped the first hurdle. He still faces a heavy burden of proof.  If the case ends up going to trial, Mr. Seidel will have to prove the truth of his allegations.  He did not have to do that in this proceeding.  On a Motion to Dismiss, the court assumes the truth of the allegations, thus giving the plaintiff the benefit of every doubt.  On top of that, if it goes to trial, Mr. Seidel will be asked to explain why he felt bound by the directions of a department chair when he already had an agreement in place with the principal.  The district will argue that Mr. Seidel could have respectfully refused to comply with the direction to enter the gym.

But there is a good legal nugget for us here. See today’s Dawg Bone!  The case of Seidel v. New Caney ISD can be found at 2015 WL 6549895. The federal court for the Southern District of Texas ruled on the Motion to Dismiss on September 18, 2015.

DAWG BONE: A PLAINTIFF IS A “QUALIFIED INDIVIDUAL” UNDER THE ADA IF HE WAS ABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB AT THE TIME WHEN A REASONABLE ACCOMMODATION WAS DENIED OR WITHDRAWN.

 

Dawg Bones

IT’S STILL HOT AROUND HERE!! CAN I DRIVE THE AIR CONDITIONED BUS?

We do look for fall to befall us sometime this month, but it has been known to stay mighty hot in Texas in late September and early October. So we read with interest the recent 11th Circuit decision about the bus driver who requested a transfer to an air conditioned bus.  When this request was not granted, the driver sued, alleging racial discrimination, illegal retaliation, and a failure to accommodate her disability.

The 11th Circuit found possible merit in only one of those theories—the one based on disability. In the muggy heat of August in Atlanta the driver alleged that she had to pull over to the side of the road due to shortness of breath. Two medical opinions bolstered her case, stating that her difficulty breathing during extreme weather was indicative of a physical impairment.

The school district claimed that it could not accommodate this request. It had some buses with AC, but they were all spoken for by drivers with more seniority.  The Americans with Disabilities Act requires employers and governmental entities to “reasonably accommodate” people with disabilities unless doing so would cause “undue hardship” to the employer. The court noted that the plaintiff had previously driven an air conditioned bus, and “so it is difficult to understand how reassignment would upset the bus-allocation process in such a way as to cause undue hardship.”

This case has a long way to go, but at this stage, the court has held that the plaintiff should have her day in court.  Her allegations create fact issues that a judge or jury will need to sort out.

So what can we learn from this case?  Pay attention to medical reports you receive that indicate that an employee has a “physical or mental impairment” that substantially limits them in a “major life activity.” I think we can all agree that breathing ranks right at the top of “major life activities.”  If you get such a report, get creative and flexible in devising “reasonable accommodations” that will enable the employee to continue to work.

The case is Hill v. Clayton County School District, decided by the 11th Circuit Court of Appeals on August 7, 2015. You can find the case at 2015 WL 4663755.

DAWG BONE: SWITCHING THE DRIVER TO A BUS WITH A.C. MIGHT BE A “REASONABLE ACCOMMODATION.”

Dawg Bones

SAD ACCOMMODATIONS

Dear Dawg: One of my teachers sent me a memo that said: “I am SAD.  I’d like to meet with you to discuss how you can accommodate me.”  What the hell is this about?  He’s SAD?!  Well, I’m so sorry about that. I’ve had my SAD days too, but you press on. What am I supposed to do by way of “accommodation”?  Give him a candy bar?  Tell him to take the day off?  Maybe a nice shoulder rub?  I’ve drafted a response, and I’d like your input. Here’s what I plan to say:

Dear Teacher: I hear you are SAD.  Awwwwww!  You poor thing!!   I am soooooo sorry!  Now kindly get over your self pity and get back in the classroom to do the job we pay you to do.  I am often SAD as well. At other times I am HAPPY.  Sometimes I feel ANGRY.  Like when teachers put their personal problems ahead of their professional responsibilities.  That makes me ANGRY.  Sometimes I get so ANGRY that I fire the teacher.  This makes me HAPPY.  I THINK YOU GET THE MESSAGE.

Waddyathink, Dawg?

Dawg:  We think you should slow down, Pardner.  We expect that the teacher did not mean “sad” but rather, S.A.D.—Social Anxiety Disorder.  This condition, previously called “social phobia” is recognized by the DSM-V as a mental disorder.

This came up in an employment case recently decided by the 4th Circuit. The employee claimed that she was terminated because she had a disability (S.A.D.) and because she sought accommodation for it. The court held that she presented a plausible case, and was entitled to a trial to attempt to prove up her facts.

This is one of the first cases to reach a Circuit Court level that addresses the expansion of the Americans with Disabilities Act.  In 2009, Congress deliberately broadened the scope of this law in an effort to cover more people.  In this case, the employer argued that whatever the plaintiff’s condition, it did not “substantially limit” her in any “major life activity.” The plaintiff asserted that her S.A.D. rendered her substantially limited in her ability to “interact with others.” The employer countered by arguing that “interacting with others” is not a “major life activity.”

The statute (ADA) includes a list of “major life activities” and it does not include “interacting with others.” But the EEOC regulations do include it.  The court held that the ADA list was “nonexhaustive” and it was well within the discretion of the EEOC to include “interacting with others” as a major life activity. The Court looked at it this way:

Few activities are more central to the human condition than interacting with others.  If “bending” and “lifting” are major life activities, [cite omitted] it is certainly reasonable for the EEOC to conclude that interacting with others falls in the same category.”

So don’t blow this off, Buddy.  Call your teacher in for the beginning of the “interactive process.” Keep in mind that S.A.D. as a mental disorder is a serious condition—it’s a long way from simple shyness or slight nervousness in social situations. But if a teacher claims to have this condition, you should explore it, and determine if accommodation is called for, and reasonable.

The case is Jacobs v. North Carolina Administrative Office of the Courts, decided by the 4th Circuit Court of Appeals on March 12, 2015.

DAWG BONE: S.A.D. IS NOT THE SAME THING AS SAD. 

 

 

Dawg Bones

CAN YOU DISCRIMINATE BASED ON DISABILITY WHEN YOU DIDN’T MEAN TO?

A federal court has concluded that the Ohio High School Athletic Association may be guilty of disability discrimination, even though it had no intention of doing so. The case illustrates an important point regarding Section 504 and the Americans with Disabilities Act.

The case involved a student with a learning disability who attends a private high school in Cincinnati. He wants to play soccer for his high school team. In Ohio, private schools are part of the OHSAA, so that’s not the issue. The problem is that he doesn’t live in Ohio—he lives across the river in Kentucky. The OHSAA has an “Instate Residency Rule” that simply says you have to live in Ohio to participate in interscholastic sports. There are some exceptions, but none that applied to this student. So his parents went to court to seek an injunction to allow him to play.

They got it.

The court ruled that the parents did not have to prove that the OHSAA acted with any sort of bad intention. They only had to prove that the Association refused to provide an accommodation that was reasonable. The requested accommodation would be deemed “reasonable” unless the OHSAA could prove that granting the request would create an undue burden, or require a fundamental alteration of the program.

The OHSAA was unable to convince the court that granting this waiver would open up the proverbial floodgates. Restricting participation to Ohio residents had no bearing on safety, and was not necessary to prevent “redshirting.” The court was convinced that the Association could craft a limited waiver process “based on easily verifiable, objective criteria” that “would apply to only a narrow pool of potential students, and would not result in a substantial administrative burden.”

The case is Steines v. Ohio High School Athletic Association, decided by the federal court for the Southern District of Ohio on November 10, 2014. We found it at 64 IDELR 165.

DAWG BONE: IF YOU CAN ACCOMMODATE THE DISABILITY WITHOUT “UNDUE BURDEN” OR “FUNDAMENTAL ALTERATION” YOU HAVE TO DO SO.