ADA in the News August 27, 2020

Crothall Healthcare Sued by EEOC for Disability Discrimination

According to the EEOC’s suit, Crothall interviewed Billy Pack for a laundry services worker position. Pack presented for the interview with an American Sign Language interpreter and mobility aids and asked for a stool as an accommodation for his disability. Crothall refused to extend an offer to Pack and claimed the position had been filled, but hired more than 80 non-disabled workers for the posi­tion shortly after Pack applied, the EEOC said.

Such alleged conduct violates the Americans with Disabilities Act (ADA) which prohibits discrimination based on a disability. The EEOC filed suit (EEOC v. Crothall Healthcare, Inc., Civil Action No. 4:20-cv-190-HLM-WEJ) in U.S. District Court for the Northern District of Georgia, Rome Division, after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seek­ing reinstatement, back pay and compensatory and punitive damages for Pack, as well as injunctive relief designed to prevent future discrimination.

“An employer cannot legally refuse to hire a qualified applicant because of his disability,” said Robert Weisberg, acting regional attorney for the EEOC's Atlanta District Office. “The EEOC is here to vindicate the rights of victims of unlawful employment discrimination.”

Man wins new trial in disability rights case against Belfast business

A Belfast man who lost his unemployment discrimination case in federal court two years ago over his disability has been granted a new trial because of faulty jury instructions.

Brian Bell, 32, sued his former employer, O’Reilly Auto Parts in Belfast, in 2016 after he allegedly was fired when he sought an accommodation for his mental health issues, including Tourette’s syndrome and depression. Bell sought to limit his scheduled hours to 45 hours per week rather than the nearly 100 hours he had been working due to a staff shortage.

A federal jury in Bangor ruled in favor of the auto parts store on July 20, 2018, following a week-long trial. Bell appealed the decision the following November. A three-judge panel with the First U.S. Circuit Court of Appeals heard oral arguments in Boston last September.

In a rare reversal, the appeals court found on Friday that U.S. District Judge Jon Levy incorrectly told jurors that to find in Bell’s favor they had to conclude he needed an accomodation to do his job and could not fulfill the requirements of a manager’s position without one. In reversing the verdict, the judges found that under the Maine Human Rights Act and the Americans with Disabilities Act, Bell had to prove three things: that he was handicapped within the meaning of those laws; that he was qualified to perform the job with or without an accommodation; and that his employer knew about the disability and failed to accommodate it, Judge Michael Boudin wrote for the appellate court.

“An employee who can, with some difficulty, perform the essential functions of his job without accommodation remains eligible to request and receive a reasonable accommodation,” the judge said. “The ADA prohibits an employer from ‘not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee.’”

Bell’s attorney, Allan Townsend of Portland, said the case is important not just for his client but for the rights of all disabled workers.

“The First Circuit’s decision makes clear that employers may not refuse to provide reasonable accommodations to employees who are struggling through pain or stress to perform their jobs,” he said. “If reasonable accommodations would relieve this pain or stress, an employer must provide those accommodations to the disabled employee.”

Christopher Taintor of Portland, who represented the auto parts store, declined on Tuesday to comment on the reversal.

How an HIV Long-Term Survivor Sued an NYC Cosmetic Surgeon for Refusal of Service—And Won

Mark Milano, 64, of New York City, is a true survivor. Not only was he diagnosed with AIDS in 1982, even before there was an actual test to detect HIV, he’s a longtime ACT UP New York member, nearly died in 2007 from anal cancer but lived to tell, and currently serves as lead trainer at ACRIA, which, in collaboration with GMHC, supports efforts to increase health literacy, improve HIV services, and meet the needs of older folks living with HIV.

In other words, he’s used to fighting for his life—and his rights. And that’s exactly what he did in July 2014, after a disastrous visit to New York City’s Emmanuel Asare, M.D., who is well known for liposuction-like procedures that correct gynecomastia. That’s the condition of fat build-up in male breasts, usually due to a hormone imbalance, making them look somewhat like female breasts. During his cancer, Milano dramatically lost weight. After the cancer, he put it back on, which, he thinks—perhaps along with decades on HIV meds—may have led to his gynecomastia.

Whatever the reason, he wanted to get rid of it. “Nothing I did in six years with diet and exercise helped,” he says. So he made an appointment with Asare’s office, and, upon arrival, decided not to fill out the medical history form, given the complexity of his own history, and to relate it to Asare in person.

“When I opened my shirt,” Milano recalls, “he said, ‘Yes, we can do something about this.’ I asked, ‘What caused this? Gaining weight back after cancer?’ He said, ‘Maybe.’ I said, ‘I also read that one of my HIV meds could’ve caused this.’ His tone suddenly changed. He said, ‘You didn’t check HIV on your form.’ I said, ‘I know, I’m telling you now.’ Then, very seriously, he said, ‘I should inform you that it’s our policy to not perform procedures on any patients with HIV.’”

Milano says he was “dumbfounded—it was a gut punch.” He told the doctor that what he was doing was illegal under the Americans with Disabilities Act (ADA)—a fact Milano knew from his years as a special investigator for the New York State AIDS Institute. According to Milano, Asare said that his own lawyers had told him he was exempt from the law because he was in private practice and because cosmetic surgery was elective. (Asare did not return a call from TheBody asking for comment.) Milano told Asare he would report him—to which, says Milano, Asare replied, “Be my guest.”

Instantly, Milano filed his complaint with the U.S. Department of Justice (DOJ), the HIV Law Project (whose legal director Armen Merjian took on the case), and the New York City Human Rights Commission. According to Milano, Asare not only ignored the first letter from the DOJ but replied to the second one by openly admitting that he indeed turned away people with HIV. In 2015, Asare refused a DOJ settlement offer and agreed to go to court. “His first lawyer even told him to cut a deal, and he said no,” says Milano.

In December 2017, a New York State Supreme Court judge ruled in favor of Milano, saying that the illegality in the case was clear-cut. Around the same time, Milano, on an online review page of Asare, found half a dozen people with HIV who’d said Asare had turned them away as well but had not taken legal action. Two of them agreed to testify in Milano’s case. At the October 2018 hearing, says Milano, one of them even said that Asare had learned of their HIV status and turned them away after administering anesthesia. It also came out during the trial that Asare was actually illegally screening all his patients for HIV without their consent. He even once gave a patient a false-positive HIV test result, says Milano.

Finally, this month, Asare was ordered to pay $375,000 in damages to Milano and the other two plaintiffs, plus $15,000 to the government and lawyers’ fees. But Milano says they won’t see that money anytime soon; Asare will likely appeal the decision, “and even if we win the appeal, we have to get the money out of him.”

Teachers’ Union to File ADA Grievances Against Principals

The Orange County Classroom Teachers Association (OCCTA) plans to file grievances against principals it claims are not providing disability accommodations at school.

Justice Department Settles Dispute With School District Over Service Animals

A school district is agreeing to pay up and change its ways after federal officials say a student with disabilities was denied access to her trained service dog.

The U.S. Department of Justice said that it has reached a settlement with the Gates Chili Central School District in Rochester, N.Y. in a lawsuit that the agency brought accusing the district of disability discrimination in violation of the Americans with Disabilities Act.

According to the lawsuit, the school district would not allow a student known as D.P. — who has Angelman syndrome, autism, epilepsy, asthma and hypotonia — to be accompanied by her service dog unless the girl’s mother provided a full-time dog handler. This was the case even though D.P. showed that she could control the animal with limited assistance and the dog had extensive training to respond to her, the Justice Department said.

Injured employee sues Salem rehab center over accommodations

Complaint claims Neuro-Rehab Associates reneged on schedule arrangement

A company that provides rehabilitation services – including for people suffering from concussions – denied reasonable accommodations for a longtime employee who experienced a brain injury, according to a suit filed last week in U.S. District Court in Concord.

Dawn Calautti of Methuen, Mass. filed suit on Aug. 17 against Neuro-Rehab Associates of Salem, NH, part of the Northeast Rehabilitation Hospital Network.

According to the complaint filed on her behalf by Benjamin King of the Concord law firm of Douglas, Leonard and Garvey, in September 2016, after having been with the company for 25 years, Calautti struck her head on the corner of a cabinet when exercising, and then on a marble countertop, losing consciousness for nearly a half-hour, Calautti was diagnosed with a traumatic brain injury, limited in her vision, hearing, speaking, memory and comprehension, according to the complaint.

Calautti couldn’t work until January 2017. She was able to return to work with reduced hours, but still needed time for her physical therapy appointments as well as “cognitive breaks,” according to the suit.

After a meeting, she did get the accommodations needed, and the situation improved, but within months the company increased her schedule to five days a week. Eventually a deal agreeable to all parties was worked out, the suit says, but when Calautti received her new schedule, it did not allow her the dedicated time she says she needed.

Calautti filed a complaint with the federal Equal Employment Opportunity Commission, which found “there is reasonable cause to believe that [Ms. Calautti] was denied a reasonable job accommodation and discharged because of [her] disability in violation of the ADA.”

Calls to King and Neuro-Rehab Associates were not returned by deadline.

Accessible design has evolved to become user-friendly, safe — and beautiful

Thirty years since the Americans with Disabilities Act was enacted in 1990, an abundance of attractive, convenient design features are finding their way into many homes, even when the homeowner doesn’t have an existing disability. For some, it’s a desire to age in place, while for others, it’s an appreciation for new designs that are stylish, affordable, and accessible to all.

“The ADA does not apply at all to residential housing,” said Nancy Horton, information specialist for the Mid-Atlantic Americans with Disabilities Act Center, based in Rockville, Md. Guidelines for individual homes come from the Fair Housing Act. But, she said, the ADA has brought a greater awareness to accessibility and inspired many conveniences and attractive designs.

“Fifty years ago, accessibility had an institutional look,” she said. “But that’s not the case any longer. It’s a combination of being more user-friendly and safer.”

7th Circuit Focuses On Evidence To Avoid Distraction In Associational Discrimination Case

On August 18, 2020, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment on a plaintiff’s associational disability discrimination and retaliation claims, finding the plaintiff failed to support his allegations with sufficient evidence. The decision prevents plaintiffs with associational discrimination claims from relying on unsupported allegations of “distraction” to explain their poor performance, and reinforces a plaintiff’s obligation to present evidence establishing adverse employment actions in support of their discrimination and retaliation claims..

Plaintiff/Appellant Frank Pierri (Pierri) began working as a chemist for Defendant/Appellee Medline Industries, Inc. (Medline), in 2011. In his first four years Pierri performed well and advanced his position in the company. In 2015, Pierri’s grandfather fell ill with cancer, resulting in Pierri’s request to his supervisor to modify his schedule to four ten-hour shifts per week to care for Pierri’s grandfather. After six months of Pierri working the modified schedule, his supervisor ordered him to return to his normal schedule as a result of poor work performance. Pierri argued he needed at least one week-day off per week in order to care for his grandfather, and his supervisor offered him a modified Tuesday-Saturday schedule in order to accommodate Pierri’s needs. Pierri declined the accommodation because he wanted to attend school on Saturdays, and reported the dispute to Human Resources. As a result, Pierri applied for and received leave under the Family Medical Leave Act (FMLA), permitting him one day of leave per week to care for his grandfather.

According to Pierri, his supervisor began a pattern of harassment when he began his alternate schedule. His supervisor began belittling and micromanaging Pierri’s work, and refused to assign him research and development projects, on which Pierri’s bonus primarily depended. As a result of stress and anxiety from the alleged harassment, Pierri sought and received full-time FMLA leave on March 30, 2016. Pierri also filed an EEOC charge, alleging that Medline discriminated against him based on his grandfather’s disability, and retaliated against him for reporting the alleged harassment to Human Resources.

After allowing Pierri to remain on FMLA leave for nearly one year, Medline contacted his attorney on March 28, 2017 to find out whether Pierri planned on returning. Medline warned that if it did not hear from Pierri by the end of the week, he would lose his job. Pierri did not contact the company, and Medline terminated his employment.

On September 27, 2017, Pierri received a right-to-sue letter from the EEOC, and subsequently filed his complaint in the Northern District of Illinois. Pierri alleged two claims in his complaint: (1) that Medline had discriminated against him in violation of the Americans with Disabilities Act (ADA) for his association with his ill grandfather; and (2) that his supervisor retaliated against him for complaining to Human Resources and filing a charge with the EEOC.

The District Court granted summary judgment to Medline on both claims, and the Seventh Circuit affirmed. According the Seventh Circuit, Pierri failed to establish a prima facie case of associational discrimination. Citing Larimer v. Int’l Bus. Mach. Corp., 370 F.3d 698 (7th Cir. 2004), the Court identified three situations in which a plaintiff may bring a claim of associational discrimination: (1) the “expense” variant, where an employee’s relative has an expensive disability which is covered under the employer’s plan; (2) “disability by association,” where an employer fears that an employee may have become infected with a disease because of the known disease of an associate of the employee; and (3) “distraction,” where an employee’s family member’s disability causes him to become inattentive to his own work.

Pierri cited the “distraction” prong, and argued that the “distraction” caused his poor work performance. But he failed to produce any evidence in support of that assertion.. Pierri did not present any evidence that he was distracted, that Medline regarded him as distracted, or that Medline took any action against him due to his distractedness. Indeed, Pierri failed to produce any evidence at all to support any theory of associational discrimination. The record instead demonstrated that Medline made sincere efforts to accommodate Pierri’s need to care for his grandfather, permitting him first to adjust his work schedule, and asking him to return to his former schedule after it became clear that his work performance had deteriorated. At that point, Medline offered a Tuesday-Sunday schedule to accommodate Pierri’s needs, but Pierri declined for a reason unrelated to his grandfather’s disability (his desire to go to school on Saturdays).

Even more damaging to Pierri’s claim of associational discrimination, he never demonstrated that any adverse employment action occurred. Pierri’s supervisor general rudeness and attitude towards Pierri do not constitute an adverse employment action, nor did Pierri’s subsequent “average” rating on his performance review. Further, any reduction in Pierri’s bonus occurred primarily as a result of Pierri’s decision to stop working and take long-term FMLA leave. Finally, a simple shift in the balance of job responsibilities, where plaintiff remained at the same position, and performed tasks which had always been a part of his job, did not constitute the “wholesale change of duties” reflecting a de facto demotion for purposes of the ADA.

The apparent lack of any adverse employment action was also fatal to Pierri’s retaliation claim. The critical point in a retaliation claim is to “offer evidence that would allow the factfinder to conclude that the employer took the adverse action because of the protected activity.” After Pierri had already taken a full year of FMLA leave, Medline informed him that it would fire him if he did not provide notice of his intent to return to work within two weeks, and Pierri never responded. The only reasonable conclusion is that it was Pierri’s failure to respond, not retaliation by Medline, that led to his termination.

This case presents several key takeaways. First, the holding demonstrates the critical importance of supporting arguments with sufficient evidence. Specifically, a plaintiff cannot sustain a claim for associational discrimination under the ADA based solely on his allegation that his poor work performance resulted from “distraction” due to his need to care for a disabled family member. Such allegations must be supported by evidence sufficient for the court to determine that the poor work performance was indeed caused by the alleged distraction. Employers should also take special note of the Seventh Circuit’s assertion that the three situations described in Latimer are not meant to be exhaustive of the potential justifications for an associational discrimination claim. Employers should be prepared to defend against any well-supported allegations of associational discrimination, even if those allegations do not fall into the categories recognized by Latimer.

With respect to Plaintiff’s retaliation claim the case reinforces that employers can protect their lawful employment decisions through good documentation. Where employers thoroughly and appropriately document their legitimate, non-retaliatory reasons supporting employment decisions, they have a stronger chance of successfully defending those decisions in litigation.

COVID-19 shows that accessibility and productivity aren't mutually exclusive

Employers must continue to support nontraditional work plans that include those with disabilities and chronic illnesses, writes the CEO of Chronically Capable.

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