Muskegon Family Care to Pay $21,500 to Settle EEOC Disability Discrimination Lawsuit
A medical services provider serving the Muskegon region will pay $21,500 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had charged that Muskegon Family Care violated federal law by firing an employee on the basis of her medical condition.
According to the EEOC's lawsuit, Avis Lane worked for Muskegon Family Care as an outreach-enrollment coordinator. Before she began work, the company required that she submit to a post-offer, pre-employment physical. The medical specialist who conducted that physical recommended that Lane be put on a medical hold due to medications she was taking. Notwithstanding the recommended medical hold, the company allowed Lane to work for over a month. Eventually, Muskegon Family Care fired her based on the recommended medical hold, the EEOC said.
Firing an employee on the basis of disability violates the Americans with Disabilities Act (ADA). And an employer is liable for the actions of its agent, such as a medical specialist who conducts pre-employment physicals. EEOC filed its lawsuit in U.S. District Court for the Western District of Michigan (EEOC v. M.G.H. Family Health Center d/b/a Muskegon Family Care, Civil Case No.: 15-952) after first attempting to reach a pre-litigation settlement through its conciliation process.
In granting the EEOC's motion for partial summary judgment, the court found that "this case presents a peculiar fact pattern that represents a textbook case for unlawful discrimination under the regarded-as-disabled prong of the ADA."
In addition to providing monetary relief to Lane, the company entered into a three-year consent decree requiring it to develop and implement policies that comply with the ADA. The decree further requires the company to conduct annual training for employees and managers, to post an employee notice regarding federal anti-discrimination laws, and to provide periodic reports to the EEOC.
"The court's decision highlights an employer's responsibilities to comply with federal anti-discrimination laws," said Miles Shultz, trial attorney for the EEOC. "The ruling makes clear that an employer cannot hide behind a third party's recommendation without determining for itself whether the employee can actually do the job."
JD Supra
On July 9, 2012, David Moore filed a Charge with the United States Equal Employment Opportunity Commission (“EEOC”) (Charge No. 530-2012-02470) alleging that the City of Philadelphia failed to reassign him to a new job as a reasonable accommodation when a heart condition left him unable to perform his current job. Instead, the City of Philadelphia terminated his employment.
By way of background, Mr. Moore was a sanitation worker for the Streets Department of the City of Philadelphia. In April of 2011, Mr. Moore suffered a heart attack which left him with permanent, severe cardiac conditions. Mr. Moore’s doctor imposed a 20-pound lifting restriction, leaving Mr. Moore unable to fulfill the duties of his position. As a result of the lifting restriction, Mr. Moore had requested several times to be reassigned to one of the Streets Department’s open positions or to be put on light duty. At one point, Mr. Moore informed the Streets Department that he was “willing to accept whatever work assignment that is available.”
Federal judge allows blind man to sue McDonald's over drive-thru only ordering
kfor.com
A blind man from Louisiana gets the green light from a federal judge that he can sue McDonald's.
The man wants the restaurant to find a different option for people who cannot physically drive through a drive-thru after the building closes down.
He says the restaurant goes again the Americans with Disabilities Act.
Last week, a federal judge said he could continue with the suit, despite McDonald's attempt to have the case dismissed.
Many people WQAD spoke with think the case just doesn't add up.
"I think the lawsuit is ridiculous. He could get somebody to drive him so he could get his McDonald's Big Mac if he wanted," said Kathleen Mecham.
However, others think the man has a right to sue.
ADA claims can live on even after death
Business Management Daily
A federal appeals court has decided ADA disability discrimination claims can continue even though the employee has died. The 8th Circuit noted that the ADA is intended to protect employees whose disabilities may in fact make them more likely to die before their cases can be heard.
Recent case: In 2012, construction company employee Semmie learned he had prostate cancer and took off about three weeks for treatment.
He returned to work, but by the next year, he learned the cancer had spread throughout his body. Semmie told his employer he would need another three weeks of leave.
Instead, the company fired him. Not only that, it cut off his health insurance coverage.
Semmie filed an ADA disability discrimination complaint with the EEOC. Almost two years after his termination but before the EEOC could issue a right-to-sue letter, Semmie died.
When the EEOC did issue the letter, Semmie’s estate filed a federal ADA lawsuit. The construction company moved to have the case dismissed under a state law that said legal claims terminate on death if they have not yet been filed. A lower court agreed.
The estate appealed and the case made its way to the 8th Circuit Court of Appeals. The 8th Circuit considered the ADA’s legislative history, especially its broad remedial purpose to prevent discrimination against disabled Americans. The court concluded that Congress intended for claims to survive even if victims of disability discrimination did not.
The court said the estate’s case can proceed. (Guenther v. Griffin Construction Company, No. 16-1760, 8th Cir., 2017)
Arizona Judge Finds Standing is Must for Serial ADA Plaintiff, Dismisses More Than 1,100 Cases
The National Law Review
An Arizona judge dismissed more than 1,100 lawsuits against Arizona businesses alleging that their parking lots are not accessible to persons with disabilities. Judge David M. Talamante rejected the plaintiffs’ argument that the Arizonans with Disabilities Act (AzDA) permits any person who believes a place of public accommodation has violated the act to bring a civil action.
The court found that any plaintiff in an Arizona court must demonstrate that it has experienced injury or harm to establish standing to sue. The court further found that these plaintiffs failed to make such a showing, since they did not allege that they ever visited or attempted to visit the businesses they sued.
In 2016, the plaintiffs filed more than 1,500 virtually identical lawsuits alleging minor, technical violations of Title III of the Americans with Disabilities Act of 1990 (ADA) and the AzDA, such as a lack of “van-accessible” signage or signs that are posted a few inches too low. In September of 2016, the court entered orders consolidating more than 1,100 pending cases and permitting the Arizona Attorney General’s Office to intervene as a limited purpose defendant in order to pursue dismissal of all the actions.
Prior to the February 17 oral argument, the court denied denied plaintiffs’ motion to present additional briefing in light of a bill pending in the Arizona Legislature that seeks to revise the AzDA to expressly clarify that only an aggrieved person who believes a place of public accommodation has violated the Act may bring a civil action.
Upon granting the motion to dismiss, the court directed the Attorney General to file a proposed form of judgment, along with any motion for sanctions, attorneys’ fees, and costs, within 10 days. The plaintiffs’ counsel, Peter Strojnik, asked that the final judgment be entered as soon as possible, suggesting he may pursue an appeal of the dismissal on behalf of his clients. The Arizona Court of Appeals previously denied the plaintiffs’ petition for special action review of an earlier order denying its motion to strike Judge Talamante from presiding over the cases brought by AID.
What Can Your Business Do?
While Judge Talamante’s order brings the first round of litigation to a close, the appeals process may keep the Arizona businesses affected by these lawsuits in the court system for at least another year or two. Business owners should also note that this decision will not signal the end of these kinds of lawsuits, which remain on the rise around the country. Business owners in Arizona and other states should carefully assess their physical places of business and the way they provide their services to ensure that they comply with the ADA.
Your property was hit with an ADA lawsuit – now what?
JD Supra
Over the last couple of years, Florida has seen a proliferation of lawsuits alleging violations of Title III of the Americans with Disabilities Act (“ADA”). Many of the cases are filed by “serial” filers – plaintiffs that have each filed dozens or even hundreds of lawsuits against various properties. The growing number of these lawsuits in Florida has been covered extensively by the national and local media (see, for example, here and here).
So what do you do when you’re sued for having a property alleged to be out of compliance with the ADA? In some instances, it could make sense to litigate and try and defend against the allegations. Some properties are exempt from ADA compliance and some kinds of modifications don’t need to be made, even if the plaintiff alleges that they do. Sometimes allegations about particular violations are just wrong. In many cases, just as in all lawsuits, a settlement may be the most cost-effective option. Defending an ADA Title III case can be expensive. Figuring out whether there are violations of the ADA may require the assistance of an ADA compliance expert. If you choose to litigate and lose, the court may order the property owner to pay all or some of the plaintiff’s attorneys’ fees.
Owners with tenants, such as shopping centers, should review their leases to see how they treat ADA compliance responsibility. While the landlord is ultimately responsible for ADA compliance, commercial leases may re-allocate that responsibility to tenants. Those tenants are often sued along with their landlord.
Because these suits are being filed by the dozens each day in Florida, commercial property owners, and especially owners of larger public sites like hotels and shopping centers, should review whether their properties are in compliance. Some preemptive work could prevent an otherwise inevitable lawsuit.
Nurse sues Southern Illinois Healthcare Enterprises for terminating employment after breast cancer
Madison County Record
A nurse is suing Southern Illinois Healthcare Enterprises for allegedly terminating her employment after she took leave for breast reconstruction surgery following breast cancer.
Donna Crow filed a complaint on Feb. 6 in the U.S. District Court for the Southern District of Illinois against Southern Illinois Healthcare Enterprises Inc., alleging the facility violated the Americans with Disabilities Act and Age Discrimination in Employment Act.
According to the complaint, Crow alleges that on Sept. 11, 2013, she was diagnosed with breast cancer for a second time and had to apply for Family Medical Leave Act leave for breast reconstruction surgery. She returned for work on April 14, 2014, and learned she had been replaced. She was later terminated from employment for what she claims was a pretextual reason, the suit says.
As a result, Crow claims she has suffered loss of income and benefits, mental anguish and loss of reputation.
The plaintiff alleges Southern Illinois Healthcare Enterprises failed to accommodate her for her second reconstruction surgery, retaliated against her for seeking surgery outside of her employer and replaced her with a younger employee at a lower rate of pay.
The plaintiff requests a trial by jury and seeks judgement for back pay and loss of employment benefits, injunctive relief, reinstatement to her previous position and such other and further relief as this court deems just and proper.
She is represented by Teresa Machicao-Hopkins of Machicao and Associates in Marion.
U.S. District Court for the Southern District of Illinois case number 3:17-cv-117
US, ACLU join deaf litigant in ADA suit against Indiana court
Indiana Lawyer
A deaf litigant who was denied a sign language interpreter for court-ordered mediation in his child-custody case has the support of the U.S. Department of Justice and the American Civil Liberties Union of Indiana in his federal disability-discrimination lawsuit against Marion Circuit Court.
The Department of Justice on Friday filed an amicus brief on behalf of Dustin King, who last year won a federal district court ruling in his favor on his discrimination claim.
“Marion Circuit Court has failed to show that intentional discrimination requires prejudice or ill will. The district court appropriately determined that Marion Circuit Court was deliberately indifferent to King’s rights and was subject to damages,” the DOJ concludes in its brief.
Chief Judge Jane Magnus-Stinson awarded King $10,380 in damages in September, ruling that Marion Superior Court violated Title II of the Americans with Disabilities Act. Magnus-Stinson found King was entitled to damages. His attorneys likely will be entitled to legal fees paid by Marion Circuit Court, the policy arm governing Marion Superior Court.
Man's Best Friend in School - What's Next For Administrative Remedies?
Lexology
Do individuals have to exhaust administrative remedies outlined under the federal Individuals with Disabilities Education Act (IDEA) prior to bringing suit for damages in federal court? That is the question asked of the U.S. Supreme Court in Fry v. Napoleon Community Schools during oral arguments at the end of October. The Supreme Court is expected to rule this summer.
The case arose when a student with cerebral palsy wished to use a service dog, which helped her live independently, at school. Initially, the school refused to permit the service dog to accompany the student because the student’s Individualized Education Plan (IEP) provided for human aid, rendering the service dog unnecessary. After months of mediation, the school temporarily allowed for a trial period, but ultimately refused to permit the service dog to accompany the student the following year.
The parents brought suit against the school district under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (504), bypassing IDEA. The United States District court for the Eastern District of Michigan granted the school district’s motion to dismiss because the claims necessarily implicated the IDEA, which requires the parents to exhaust all administrative remedies before suing under the ADA and 504. The parents appealed and argued that the exhaustion requirement did not apply because they were seeking damages, which is not the sort of relief the IDEA provides. The U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal and held that the parent’s claims were essentially educational, which are precisely the sort of claims the IDEA was meant to address, and therefore the exhaustion requirement applied.
At least five federal appellate circuits – First, Second, Seventh, Eleventh, and Sixth that presided over this case – require the exhaustion of IDEA administrative remedies prior to bringing suit in federal court for damages under the ADA and 504. There are several negative implications for school districts if parents are allowed to circumvent the exhaustion requirement. First, this would cut against the speedy resolutions that the IDEA carefully sets up. IDEA procedures provide for mandatory timelines to resolve disputes, whereas federal litigation may take months, if not years, creating a financial burden on schools.
Second, IDEA requires disputes that are adjudicated to be decided by a state hearing officer who is familiar with the statute and meets certain qualifications, such as experience serving children with disabilities. This requirement helps to ensure that the decision maker is both familiar with the complexities of providing Free Appropriate Public Education (FAPE) and administering IEPs and 504 plans. Moreover, by not exhausting the administrative process, a judge does not have the benefit of a detailed factual record from a qualified hearing officer.
The ability to file directly in federal court, without first exhausting IDEA, could have far-reaching effects on school districts. We will keep you updated as this Supreme Court case progresses.
Q: When we fired "Earl" this morning after he screamed at his supervisor on two separate occasions, we were ready for him to blow up. Instead, in an eerily calm voice Earl told us that our firing him would give him everything he wanted, because he could then sue us. Earl said he had bipolar disease and we were violating the Americans with Disabilities Act because he was being unfairly terminated.
We told Earl that he wasn't being fired because of any disability and hadn't even known there was a "bipolar issue." We were firing him because we placed him on a performance improvement plan the first time he'd screamed abusive insults and then he did it again. We added that he'd also been rude and aggressive to co-workers.
Earl laughed in our faces and played a recording he had on his smartphone in which his supervisor referred to him as "that bipolar guy."
Can he sue?
A: He can sue, though he might not win.
Bipolar affective disorder is a disability, offering "qualified" employees affected by this mental disorder protection under the ADA. To be "qualified," employees have to be able to perform the essential functions of their job, with or without reasonable accommodation.
Your supervisor's casual comment potentially drags your company onto thin ice. According to the Equal Employment Opportunity Commission (eeoc.gov/laws), disability discrimination can occur when an employee is treated less favorably because he has a disability, a history of a disability or is believed to have a mental or physical impairment even if he doesn't.
Based on what you've outlined, however, Earl likely fails to meet the "qualified" standard. Courts have routinely ruled that the "ability to get along with others," "mental stability" and "ability to handle stress" are all essential job functions. In Walz v. Ameriprise Enterprises, when Ameriprise terminated Marissa Walz, a bipolar employee, despite her mostly positive performance reviews, the court ruled that while an employer must make reasonable accommodations for a disabled employee, it doesn't need to tolerate misconduct that would result in the termination of a nondisabled employee. The court ruled in Ameriprise's favor, given that Walz's bipolar disorder caused her to "interrupt meetings, disturb her coworkers, disrespect her supervisor" and act rudely, aggressively and erratically.
If you've accurately documented Earl's behavior, including the performance improvement plan you placed him on, and can prove that Earl's job requires that he get along with others — and if there aren't other facts out there you don't yet know — you have a good chance of prevailing should Earl sue.
Meanwhile, train your supervisors not to throw around terms like "bipolar."
EIN News
Looking for a simple lunch, a deaf woman recently went into an Alabama restaurant and jotted down her order on a piece of paper. The waiter hustled the request to the kitchen, where preparers tried to decipher the woman's handwriting.
But when the sandwich she wanted was delivered, it contained tomatoes, which she had said in writing she did not want.
Frustrated, the woman went back-and-forth with the waiter for a few minutes to explain exactly what she wanted. The sandwich ended up having to be remade.
"That experience might keep her from going back to that restaurant,” said Grace Vasa, CEO of technology firm Juke Slot. “Unfortunately, such communication mix-ups are not isolated incidents in the larger restaurant field."
The inability of restaurants to communicate effectively with all customers both threatens to hurt their businesses and serves as an opportunity to generate additional revenue. But what might seem like an operational hurdle actually can be an easy fix with long-term financial benefits.
Self-ordering kiosks featuring capabilities such as sign language and foreign language translations allow people with conversational difficulties to communicate more easily represent solutions that minimize order errors and strengthen the customer experience.
Such technology would enable restaurants to cater to a different segment of the population – scores of people who struggle with basic communication, not only those who are deaf.
Just as important: It’s good business, industry experts say. Implementing kiosk solutions provide an easy avenue for ordering for those with physical impairments, brain injuries and mental disabilities. That can be of particular importance for those with communications problems who also suffer food allergies, to ensure their messages or notes aren’t misunderstood.
The count: New Orleans bus stops that are not ADA compliant
bestofneworleans.com
Nearly 94 percent of New Orleans bus stops fail to meet the needs of disabled riders, and the city has until 2031 to update them. On Feb. 10, the city, the New Orleans Regional Transit Authority (RTA) and its owner Transdev settled a lawsuit filed by three wheelchair users arguing the city's transit stops are not compliant with the Americans with Disabilities Act (ADA).
Plaintiffs Francis Falls, Mitchell Miraglia and Thad Tatum with attorney Andrew Bizer of Bizer & DeReus filed the suit. In 2015, Manning Architects released its report and found that only 5.7 percent (126) had a compliant transit stop area and pedestrian access route. The plaintiffs then filed a lawsuit in U.S. District Court. Eleven months later, the parties settled. U.S. Magistrate Judge Karen Wells Roby and Bizer will monitor the city's progress following a five-year inspection period for the city and RTA to determine the scope of renovations. The report estimates ADA compliance will cost the city between $10.7 million and $12.6 million.
The firm also is representing the plaintiffs in a separate lawsuit over the city's historic streetcars' ADA accessibility. — ALEX WOODWARD