“Ancient Gesture of Insult” Does Not Justify Traffic Stop

By Stacey Rose Harris
DiMuroGinsberg, P.C.

Don’t flip off a traffic cop. But if you do, they can’t pull you over. At least, they can’t pull you over JUST for that. The U.S. District Court for the Western District of Virginia has decided that a police officer was not justified in stopping a vehicle whose passenger flipped him the middle finger. In 2016, Brian Clark had been a witness in a civil proceeding in the Patrick County Courthouse, a Courthouse from which he had been banned except under certain circumstances, as a result of his behavior. Lieutenant Coleman was aware of Clark and had observed him during the case. When Court adjourned, Lieutenant Coleman proceeded to the parking lot of a nearby grocery store to stop and check his messages. The car in which Clark was driving passed him, and as it did, Clark flipped him off. Coleman proceeded to stop the car, and when he radioed dispatch, learned that Clark had outstanding papers to be served on him. Coleman served the papers, and then let Clark go.

Clark sued Coleman for violating his constitutional rights in conducting an illegal stop, arguing that there was not probable cause. Coleman argued that he has never been given the middle finger unless that person was intoxicated, and that was his justification for the stop. However, his testimony that he had seen Clark in court immediately before, where he had not appeared to be intoxicated, contradicted his assertion that he pulled Clark over for such a suspicion. At trial, the jury found that Clark’s rights were not violated. The Court, however, granted his motion to set aside the verdict, as contrary to law, on the grounds that Coleman lacked reasonable suspicion to detain Clark. The Court denied Clark’s motion for a new trial on the issue of damages, and awarded him $1 and attorneys’ fees.

Under well-settled law of the Fourth Amendment, the Court held, any search or seizure must be based on reasonable suspicion to believe the plaintiff had committed or was committing a crime. “Displaying one’s middle finger is not illegal, nor does the gesture ‘on its own create probable cause or reasonable suspicion’” that Clark violated the law. The mere fact that, in Coleman’s experience, he has never been flipped off unless the person stopped is intoxicated, is not enough, particularly when Clark had seen Coleman just minutes before in Court, where he appeared fine. Nor did either exception to “reasonable suspicion” apply, that is, there was no basis for application of the community caretaking doctrine (routine procedures such as impoundment of a vehicle that impedes traffic or entry into a car after an accident to assess passengers’ conditions), nor were there exigent circumstances (emergencies of any nature or danger to public safety).

DiMuroGinsberg has decades of experience in representing parties to proceedings with constitutional issues like this one, including which raises both Fourth Amendment (search and seizure) and First Amendment (freedom of speech and expression) questions. Our attorneys have represented both plaintiffs and defendants subject to these types of claims, and have a depth of experience in a broad array of civil rights cases, including issues like the ones presented here, as well as excessive force and other Section 1983 actions. Reach out to our firm if you would like to speak to someone further about representation in connection with a constitutional rights claim.

DGRead 20.06.15

Jonathan Mook Looks Back to the Future with the ADA; Rocket Docket Update; “You’re in Trouble” says the Judge Before Awarding $21,000 in Sanctions! DG/30 Milestone

Americans with Disabilities Act Recent Case Law Developments

By Jonathan R. Mook, Esq.
DiMuroGinsberg, P.C.

Title I – Employment Provisions

Is Plaintiff Actually Disabled Under ADA?

In order to have an actual disability cognizable under the Americans with Disabilities Act, an individual must be able to demonstrate that he or she has a physical or mental impairment that substantially limits a major life activity. Merely having an impairment, even a permanent one, is not sufficient, as the Eleventh Circuit Court of Appeals explained in Lewis v. City of Union City, 934 F.3d 1169 (11th Cir. 2019). In that case, the court considered whether a police officer who had suffered a heart attack that left her with a permanent injury to her heart was disabled under the ADA. The court concluded that she was not because the only limitation resulting from the officer’s heart impairment was a periodic shortness of breath.

Broad Construction of Disability

In passing the ADA Amendments Act in 2008, Congress sought to broaden the interpretation of the definition of disability and to increase the number of individuals protected by the statute. Thus, in Morrissey v. Laurel Health Care Co., 943 F.3d 1032 (6th Cir. 2019), the Sixth Circuit Court of Appeals held that an employee had presented sufficient evidence to raise a fact question for the jury as to whether she was disabled under the amended ADA. The employee suffered from a number of back impairments, and after working an eight to twelve-hour shift, she had difficulty walking, standing, lifting and bending and experienced pain constantly. The employee testimony was supported by that of the employee’s daughter, who reaffirmed her mother’s limitations. The Sixth Circuit said that because the ADA Amendments Act requires that coverage under the statute is to be construed broadly, the employee had presented sufficient evidence for her case to be heard by the jury.

Regarded as Disabled

Even if an individual does not come within the definition of having an actual disability under the ADA, the person still may be protected by the statute if the employer regards the person as disabled. That was the case in Lewis v. City of Union City, 934 F.3d 1169 (11th Cir. 2019) in which the Eleventh Circuit Court of Appeals held that a police officer who had suffered a heart attack had raised a jury issue as to whether her employer had regarded her as disabled by placing her on leave without pay due to concerns about her heart condition.

Qualified Individual with a Disability

Not every person who has an ADA disability is entitled to the statute’s protections. The individual must be a qualified individual with a disability, that is a person who, with or without reasonable accommodation, can perform the essential functions of the job. What constitutes a job’s essential functions was the subject of the Fifth Circuit Court of Appeals’ decision in Clark v. Champion Nat’l Sec., 947 F.3d 275 (5th Cir. 2020). The case involved a diabetic employee, who would fall asleep at his desk during the work day. Since the employee’s job was to perform uniformed security services, the court held that the employee was not qualified because maintaining consciousness is a basic element of any job.

Retaliation

It is unlawful to retaliate against a disabled employee for seeking a reasonable accommodation. That principle was reaffirmed by the Sixth Circuit in Morrissey v. Laurel Health Care Co., 943 F.3d 1032 (6th Cir. 2019), where a former employee claimed that her employer had targeted her to work a twelve-hour shift even though she had been medically restricted from doing so because the employee had requested a reasonable accommodation consistent with her medical restrictions. The circuit court said that the employee’s requests for an accommodation constituted protected activity, and the employer’s refusal to adhere to the employee’s medical restrictions was retaliatory and unlawful.

Reasonable Accommodation

An employee need not use any magic words such as “ADA” or “reasonable accommodation” to trigger the ADA reasonable accommodation interactive process with the employer. That principle was highlighted by the Eighth Circuit in Garrison v. Dolgencorp., 939 F.3d 937 (8th Cir. 2019), where the court held that an employee had made a sufficient request for a reasonable accommodation when the employee informed her employer that she suffered from depression and anxiety and made it clear that she was seeking a leave of absence due to her medical condition.

Title III – Public Accommodations and Commercial Facilities

What is a Disability Under Title III?

Learning disabilities are covered under Title III of the ADA. That is the case even though an individual diagnosed with a learning disability is able to achieve academic success. That was the situation in Ramsay v. Nat’l Bd. of Med. Examiners, 2019 U.S. Dist. LEXIS 222782 (E.D. Pa. Dec. 31, 2019)where the federal district court for the Eastern District of Pennsylvania held that a medical student who had been diagnosed with ADHD was disabled despite her prior academic successes and her performance on standardized tests.

Are Websites Covered by Title III?

In Thurston v. Midvale Corp., 2019 Cal. App. LEXIS 830 (Cal. App. Sept. 3, 2019), the California Court of Appeals ruled that Title III of the ADA applies to a restaurant’s website and that the restaurant was obligated to make its website compliant with the Web Content Accessibility Guidelines under both Title III of the ADA and California state law.

Service Animals

As an accommodation under Title III of the ADA, a public accommodation may need to alter a no dogs allowed policy to allow an individual with a disability to be accompanied by a service animal. In Matheis v. CSL Plasma, Inc., 936 F.3d 171 (3rd Cir. 2019), the Third Circuit Court of Appeals held that it would be for a jury to determine whether a plasma donation center was obligated to alter its no animals policy to allow a patient who suffered from anxiety to be accompanied by her service animal.

Franchisor/Franchisee Liability

If a franchisee is sued for its failure to remove architectural barriers, can the franchisor be sued too? In most cases the answer is no because the franchisor had no specific control over the franchisee’s accessibility to the disabled. This was the outcome in Sullivan v. Doctor’s Assocs. LLC, 2020 U.S. Dist. LEXIS 11562 (S.D.N.Y. Jan. 17, 2020), where the federal district court for the Southern District of New York dismissed a franchisor as a defendant in a Title III lawsuit alleging that the franchisee had failed to remove architectural barriers. In doing so, the district court reasoned that the plaintiff merely alleged that the franchisor exerted “general control” over the franchisee’s restaurant, but had failed to allege any facts to show that the franchisor specifically controlled the restaurant’s accessibility.

Jonathan R. Mook, Esq.; DiMuroGinsberg, P.C. Mr. Mook is a nationally recognized practitioner in employment law and has written two treatises : Americans with Disabilities Act: Employee Rights and Employer Obligations and Americans with Disabilities Act: Public Accommodations and Commercial Facilities, both published by LexisNexis. He represents employers and businesses on matters relating to employment law, business torts and business disputes.

Mr. Mook frequently counsels employers on issues involving compliance with the ADA and accommodating disabled employees, as well as other employment related matters. Mr. Mook is a co-editor of the Mid-Atlantic Employment Law Letter and is a regular contributor to several legal publications, including Bender’s Labor & Employment Bulletin. He is included in Best Lawyers in America (2019 ed.) for employment law.

Mr. Mook is a member of the Virginia and District of Columbia Bars, and is a member of the Labor & Employment Law Section of the District of Columbia Bar and has been a member of the Alexandria Commission on Persons with Disabilities. He earned his Juris Doctor from Yale Law School.

The ADA Thirty Years Later:
An Interview with Jonathan R. Mook

By Corey Pray
DiMuroGinsberg, PC

This year marks the 30th anniversary of the Americans with Disabilities Act (ADA). The enactment of the ADA in 1990 was a major step forward for persons with disabilities in the United States, many of whom faced significant forms of discrimination in the workplace. Corey Pray spoke with Jonathan R. Mook, a partner at DimuroGinsberg and nationally recognized authority on the ADA, about the development of the ADA and its continuing positive impact for both persons with disabilities and employers. Mr. Mook is also the author of two treatises published by Matthew Bender Company, “Americans with Disabilities Act: Employer Rights and Employee Obligations” and “Americans with Disabilities Act: Public Accommodations and Commercial Facilities.”

Q: How did you become interested in the ADA?

A: About 30 years ago, when I was practicing employment law, Congress was considering passage of a statute that would provide legal protections for persons with disabilities in the private sector along the lines of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, age, national origin, etc. I knew at that point it was clear that legislation which had been talked about in the past was probably going to get passed and would have incredible ramifications for the country by imposing new obligations on employers and other entities. I started reading up on the ADA and discrimination law. At that time, a federal statute still in existence today, the 1973 Rehabilitation Act, accorded protections for persons with disabilities who worked for the federal government, government contractors, or entities who receive federal funding. The statute, however, applied to a more limited scope of employers, so the ADA was going to pick up on the protections in the Rehabilitation Act and apply them to all private employers of 15 or more employees. At the time, I was considering that the ADA would probably become law. I was fortunate to get a contract with Matthew Bender, which now operates as a division of LexisNexis, to write a law book about the ADA, the manuscript of which would be due within a year or so of the ADA’s enactment. I started researching the ADA, the status of people with disabilities, and the reasoning for the legislation, which was all incorporated into the book I wrote.

Q: Before the ADA, what was the status of people with disabilities in the United States? What sparked efforts in the late 1980s to create and pass the ADA?

A: The period during which the ADA was passed was a remarkable time because both Republicans and Democrats were in agreement that there was widespread discrimination against people with disabilities in our society. We were really ignoring a great resource for our country both in terms of people with disabilities becoming more employable and participating more fully in society. Legislation was needed to combat the myths and stereotypes against people with disabilities, and overall would make our country a much more productive place if enacted. In 1990, during the presidency of George H.W. Bush, a coalition of Republicans and Democrats, including Ted Kennedy and Bob Dole, the latter of whom had a war injury to his arm, all came together to pass the ADA. The ADA was passed in spring 1990 with overwhelming bipartisan support in both the House and Senate, and a signing ceremony took place on the White House lawn on July 26, 1990. July 26, 2020 will be the 30th anniversary of that signing ceremony. The ADA was a remarkable piece of legislation, one that had been fought for by disabilities advocates for many years and represented a great triumph for the legislative process. It had great buy-in by the business community, who understood that persons with disabilities have many talents that we have overlooked and with reasonable accommodations they could participate in society and help society grow.

Q: The ADA is a sizable piece of legislation. Can you describe, in your opinion, its most important provisions?

A: At its core, the ADA requires all private employers of 15 employees or more to (1) not discriminate against persons with disabilities and (2) make reasonable accommodations for persons with disabilities to enable them to work. These were strong add-ons to traditional non-discrimination statutes, particularly Title VII. The ADA introduced these general concepts of non-discrimination and reasonable accommodation. It was the responsibility of the enforcement agencies, most frequently the Equal Employment Opportunity Commission (EEOC), to write regulations to enforce the ADA. The regulations were promulgated in 1991, exactly one year after the ADA was enacted. The Act took effect in 1992 for larger employers and in 1994 for smaller employers which included employers of 15 or more.

Q: Turning to how the ADA is applied, how has this played out in the courts?

A: While the EEOC is responsible for issuing regulations, in a granular fashion it is left up to the courts to apply the ADA in specific situations. Who is disabled? The statute and regulations say a person is actually disabled if he or she has a “physical or mental impairment that substantially limits one or more major life activities.” This is a broad definition. Additionally, the definition encompasses having a record of disability or regarded as having a disability, so even if you do not have a disability but an employer thinks you do and won’t hire you, you are deemed to be disabled to enforce the nondiscrimination portions of the statute. How does this apply to someone who has a leg impairment who is able to walk just fine but has difficulty running? Or what about someone with an eye impairment who can see fairly well with glasses but without glasses cannot? What about someone with very high blood pressure who needs to take medication but can perform the job with medication? These represent just some the various issues that courts face on a daily basis. Further, what is a reasonable accommodation? The statute and regulations say an employer must accommodate a person with a disability unless it would create an “undue hardship.” An undue hardship is defined as a “significant difficulty or expense.” It was left to the courts to figure out what this means. For one employer, making an accommodation that costs $1,000 may be an undue hardship, but for a larger employer it may not be. The courts are still addressing these issues on an individual basis.

Q: Have courts treated the ADA consistently since 1990? If not, what has changed?

A: My interest as a lawyer has been in the case law development of the statute. There have been some significant developments since the ADA was passed. In 1999, the Supreme Court significantly narrowed the interpretation of who is disabled under the ADA. In many cases, even if a person was able to meet the Supreme Court’s definition, he or she might not be able to perform a job even with a reasonable accommodation. In 2008, during the final year of the George W. Bush administration, Congress reversed several prior Supreme Court decisions by enacting the ADA Amendments Act of 2008. This piece of legislation significantly broadened the definition of disability. Now, if an individual has a diagnosed impairment that limits to any significant extent that individual’s ability to perform any major life activity (e.g. seeing, hearing, walking, lifting, bending, sleeping, thinking), that person will be disabled under the ADA. So what counts as a reasonable accommodation now? There is no single answer and court decisions are issued almost every day on this.

Q: What should lawyers keep in mind when advising clients on issues that fall under the ADA?

A: The job of a lawyer is to understand the trends of where courts have been going on specific issues and to predict for your client how a court might rule in the fact-specific situation that a client is asking advice for. It continues to be an interesting area of the law because there are no easy answers and there is no one answer. The answer you give to a client is the best answer that you as an attorney can construct, as well as the reasons for the answer that you believe a court would accept. But you can’t tell your client yes or no in terms of compliance with the ADA. You can only say, “this is my best analysis and here are the reasons for it.” So attorneys need to be creative because this was a statute that was not intended to provide a specific yes-or-no answer. It set forth principles that needed to be applied in specific, fact-dependent circumstances.

Q: Are there any current ADA cases or issues to watch out for?

A: One area that has been percolating for a number of years is to what extent obesity is covered by the ADA. In 2013, the American Medical Association designated obesity as a disease. The extent to which it constitutes a physical or mental impairment for purposes of the ADA is somewhat up in the air. Courts are faced with questions such as, “what substantial limits on life activity are caused by obesity?” This issue is an interesting trend because the case law is still developing.

“You’re in Trouble,” Says Judge to Bladder Injury Plaintiff Who Failed to Disclose Doctor’s Visit in Discovery, and Awards $21,000 in Sanctions

By Stacey Rose Harris
DiMuroGinsberg, PC

Plaintiff Richard Robbins sued Sentara Hospital in Norfolk Circuit Court, alleging that he suffered permanent injury to his bladder following knee surgery, due to negligent bladder management by the nursing staff (likely arising out of catheter care). During discovery, Robbins’ counsel did not disclose that Robbins had visited a bladder specialist in Baltimore, and Sentara’s counsel caught wind of it when they saw reference to a John’s Hopkins appointment in other medical records. The records revealed the Hopkins’ specialist opinion that the bladder issues likely arose “over the span of many years” and were not the result of treatment during his surgery stay.

This revelation was explosive, and Sentara’s counsel sought dismissal of the case or to have the issue of causation taken from the jury, arguing that “Plaintiff and/or his counsel deliberately gave evasive and incomplete responses to avoid production of dispositive evidence.” Sentara’s counsel also pointed to the fact that they had asked for Plaintiff’s counsel to authorize a medical subpoena, and he has put a tight expiration date on it—three weeks. This delayed their obtaining the records. Further, even after being made aware of the existence of new records, he did not supplement Robbins’ discovery responses. Robbins, in an affidavit to the Court, swore that he never disclosed the Hopkins visit to his lawyer. The lawyer, for his part, and represented by his own counsel, stated that he had not seen the Hopkins records until Sentara moved for sanctions, and that his clients had not mentioned the doctor’s statements.

Sentara’s lawyers were galled at Robbin’s position. Nevertheless, on their motion for sanctions, they asked the Court, “What’s your analysis?” The Court found that they “should have disclosed a visit to a world-renowned hospital for a second opinion about the very condition that caused Plaintiff to bring this malpractice suit; and once that omission came to Plaintiff’s attention, he and his counsel should have addressed the oversight immediately. They did not.” Although that omission was suspicious, the Court decided that there was no evidence that this information was intentionally concealed, and declined to dismiss the case or find that Robbins should be precluded from presenting evidence on causation. It did enter an award of sanctions against the Plaintiff of over $21,000, with a stern warning that this type of relevant discovery must be leaked much earlier in the case.

The lawyers at DiMuroGinsberg regularly represents attorneys who find themselves similarly situated to Robbins’ lawyer. Ben DiMuro, managing partner of the firm, has over 30 years of experience in counseling other attorneys on professional responsibility matters and defending them against sanctions motions and before the Virginia State Bar in ethics proceedings.

New Virginia Worker Protections: What You Need to Know

The 2020 Virginia legislative session increased statutory protections for workers to an unprecedented degree. These new protections will begin taking effect on July 1st.

On June 2 DiMuroGinsberg held for an informative webinar on these significant changes to Virginia’s employment laws. A panel of DiMuroGinsberg attorneys will address such important developments as:

  • New protections for LQBT workers;
  • Ban on hair discrimination, including hair styles;
  • Expanded protections for “whistleblowers with a statutory wrongful discharge claim;
  • Providing a private right of action under the Virginia Human Rights Act, with compensatory and punitive damages and attorney fees now available;
  • Prohibiting non-competes for “low-wage” workers;
  • Crack down on misclassification of workers as independent contractors, with a private right of action and treble damages for wage violations; and
  • Significant increase in Virginia’s minimum wage, with more increases to come.

DiMuroGinsberg put together a panel of it’s attorneys to discuss these important topics.
Watch a recording of the presentation here:
https://us02web.zoom.us/rec/share/691NP5_ux3pJaYn89H3nZ6cCPq_raaa8hihP-Kdcyk5jN7bUX458ACUcsOzwdiyl
Password: 4b*G#.&B

DGRead 20.06.01

New Virginia Worker Protections: What You need to Know; Rocket Docket Update; Workplace Mental Health; DG/30 Milestone