Employee with prosthesis who was removed from trainman position advances ADA claim
An employee who uses a prosthesis as a result of a below-the-knee amputation of his right leg, and whose offer of a trainman position was revoked by Union Pacific based on its need to ensure the safety of the public and other railroad employees, raised a triable fact issue as to whether he was able to perform the essential functions of the job, a federal court in Idaho ruled, denying summary judgment against his ADA claim. The court noted evidence of his prior work history in a physically strenuous position, professional and expert opinions concluding he was not restricted by his prosthesis, video and photo evidence showing him walking on uneven terrain and climbing ladders without issue, and evidence that he performed many of the trainman duties without incident during his training. Fact issues also existed regarding what limitations resulted from his prosthesis, what accommodation might be available, and whether Union Pacific participated in good faith in the interactive process. ( Campbell v Union Pacific Railroad Co, DIdaho, September 4, 2020, Windmill, B.L.)
No ADA claims for fired city employee whose CBD use for anxiety resulted in positive drug test
A bipolar municipal employee who used cannabidiol (CBD) to treat her anxiety, chronic fatigue syndrome, and other symptoms, and who was forced to resign after failing a drug test required for promotion to a full-time position (she tested positive for marijuana), failed to show that the individual responsible for her forced resignation, the city's HR director, knew about her disability, a federal court in Tennessee ruled, granting the city's motion for summary judgment against the employee's ADA disability bias claim. Although she talked to her supervisor about her use of CBD to treat her various symptoms, even telling her she had researched CBD usage and the risks of a positive drug screen, and there was also evidence her supervisor's boss knew of her disability, there was no evidence they told the HR director, or anyone else in the HR department, of her bipolar disorder and anxiety. (Hamric v City of Murfreesboro, MDTenn, September 10, 2020, Campbell, W., Jr.)
Judge Orders Sanctions, Tosses RICO Class Action Targeting Lawyers Behind ADA Lawsuits
Judge Steven Grimberg granted attorney fees after finding the lawsuit was a "retaliatory action brought against disabled plaintiffs and their attorneys."
A federal judge in Atlanta swatted down a putative class action leveling racketeering charges against two lawyers who have filed hundreds of Americans with Disabilities Act cases against business owners over noncompliance claims.
The complaint filed last year in the U.S. District Court for the Northern District of Georgia accused Atlanta attorney Craig Ehrlich and Douglas Schapiro of Boca Raton, Florida, an ADA consulting firm, and several of their clients of ginning up “boilerplate” lawsuits alleging false ADA violations, then pressuring the defendants “to settle cases early to avoid distraction to their business and avoid costly litigation.”
In a sharply worded order, Judge Steven Grimberg said there is no indication any of the lawsuits were based on false allegations, that the plaintiffs were not actually disabled or that the claims were so frivolous that “[n]o reasonably competent attorney could conclude that he had a reasonable chance of success based on the information known and available to him at the time of filing.”
Grimberg also awarded the defendants their attorney fees and expenses for defending the suit and instructed plaintiffs lawyer Hassan Elkhalil to attend four hours of continuing legal education on federal practice and procedure.
Elkhalil did not immediately respond to a request for comment Tuesday.
The named defendants—including Ehrlich’s Law Office of Craig J. Ehrlich, Ehrlich & Schapiro LLC, and an LLC Schapiro owns, ADA Consultants of America, and eight of their disabled clients—are represented by Bruce P. Brown Law principal Bruce Brown.
In an email, Schapiro said the “RICO lawsuit was a clear and illegal attempt to use the court system to impair attorneys and disabled individuals from enforcing the Americans with Disabilities Act.”
The complaint Elkhalil filed in August 2019 said the lawyers and their clients had filed at least 558 ADA lawsuits, mostly in Georgia’s Northern District, as part of a “criminal enterprise” of filing fraudulent claims in violation of the federal Racketeer Influenced and Corrupt Organizations Act.
The disabled clients, some of whom were the plaintiffs in more than 100 cases, were accused of accepting “finders fees” for leveling claims of inaccessibility. The suit also questioned whether their testimony regarding their disability was factual.
The plaintiffs are two businesses that were sued for ADA violations. One settled after agreeing to pay $4,200 in attorney fees and to become ADA compliant; the other was dismissed with prejudice during the course of litigation.
Grimberg said the plaintiff’s motion for class certification was both untimely and futile, granting the defense motion to dismiss.
The most obvious deficiency, Grimberg wrote, was the lack of any basis for the RICO claims, which “depend on ‘a pattern of fraud and deception by participating in the preparation, drafting, filing and prosecution of fraudulent ADA lawsuits.’”
The defendants were accused of committing mail and wire fraud and of money laundering.
“Plaintiffs’ allegations regarding the mail and wire fraud claims center solely on Defendants’ allegedly fraudulent litigation activities,” the judge wrote, while their money laundering claims “are entirely dependent on the mail and wire fraud claims—with Plaintiffs contending that Defendants engaged in financial transactions with the proceeds from unspecified unlawful activity, to wit, their allegedly fraudulent litigation activities.”
But “Eleventh Circuit precedent holds that the threat of filing or the actual filing of a civil action cannot support a RICO claim when the claim is predicated on extortion,” he said.
Detailing several prior cases supporting that proposition, Grimberg said the bar “applies even more so in this case, where Plaintiffs’ RICO claims are predicated on the novel theory that the frequent filing of ADA litigation is somehow illegal.”
“Plaintiffs have not, and apparently cannot, identify a single fraudulent statement, filing, or activity by Defendants,” Grimberg said. During a hearing, Elkhalil “conceded that Plaintiffs have no knowledge of any defendants in the underlying litigations who were not, in fact, in violation of the ADA as had been alleged.”
The plaintiffs “appear to take issue with the ADA itself and its process for filing litigation,” said Grimberg, quoting Elkhalil as saying that under the statute “they’re not doing anything that they’re not supposed to do.”
“Plaintiffs, it seems, are petitioning the wrong branch of government about their statutory grievance,” Grimberg wrote.
As to the defense motion for sanctions, Grimberg found them warranted.
“A reasonable attorney would have known that the claims were frivolous at the time the action was filed. This action is not one that simply seeks to advance a novel legal argument or one of first impression. Rather, it is a retaliatory action brought against disabled plaintiffs and their attorneys who successfully sued Plaintiffs for admittedly meritorious ADA violations.”
“Plaintiffs had no good faith, viable legal theory or factual support to smear Defendants with allegations of criminal activity—i.e., mail fraud, wire fraud, and, most astoundingly, money laundering.”
“While the Court, unfortunately, cannot undo the damage done to Defendants’ reputation, it finds that it is certainly appropriate to sanction Plaintiffs’ counsel for their conduct,” he said, instructing the defense to provide “declarations and other materials” supporting their claim for fees and expenses.
“To be clear,” Grimberg wrote, “the monetary sanctions awarded shall be paid by Plaintiffs’ counsel or Plaintiffs’ law firm and shall not be passed on to Plaintiffs themselves.”
Mother sues Disney after her autistic son was barred from Lehigh Valley Mall store for not wearing a facemask
A Northampton mother is suing the Walt Disney Co. after her autistic son was barred from entering the Disney Store at the Lehigh Valley Mall because he was not wearing a mask.
The lawsuit says the 7-year-old boy, who is identified in the court filing only by his initials, is highly sensitive to touch, especially on his face, like many people diagnosed with autism spectrum disorder. For that reason, the lawsuit says, his mother decided after experimenting with different face coverings not to force him to wear a mask in public.
Hospitality Design and the ADA
This year marks the 30th anniversary of the Americans with Disabilities Act (ADA), a revolutionary piece of legislation that has had long-lasting effects, both on the country and the hospitality industry.
“It is probably the largest piece of civil rights legislation in the last 30 years,” said Bryan Soukup, VP of government and public affairs, American Society of Interior Designers (ASID). “At ASID, our motto is ‘Design Impacts Lives.’ I don’t think there is a greater example of how design impacts lives than the Americans with Disabilities Act and the building standards that go into implementing the Americans with Disabilities Act. Whenever I am talking about the subject of accessibility design and universal design generally, I always tell folks from outside the industry and the practitioners as well that design has the opportunity to be such a great equalizer for all people, Americans and people around the world.
A complete guide on making a website accessible
Learn how to make your website accessible and why you need to do itThe web is the most valuable resource available today. As such, it should be accessible to all people. This includes people with disabilities. As the web was constructed and developed without special attention to people with disabilities, there’s a wide effort in recent years to reverse this trend and level the playing field, meaning, allowing people with disabilities the same ease of use of the web that the rest of us are used to.