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A Twofer: What ADA Title Applies When Filing Interference Claims and Can You Use §1985 as a Workaround


The blog entry that goes up for this week will be the last one before the week of August 29 as we will be taking our daughter off to college this coming Friday. She moves in the following week. So, no blog entry the week after this one and this one counts for the week of August 16. The blog entry of the day is from the Sixth Circuit decided on August 12, 2022. The case is Post v. Trinity Health-Michigan, a published decision from the Sixth Circuit, which can be found here. The case involves two questions. First, when an interference claim is made what ADA title applies? Second, if you have an ADA claim, can you use a §1985 claim instead? As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that interference claims relate back to the title of the ADA that the case involves; §§1985, 1985(3) are of no help to plaintiff; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

St. Joseph Hospital hired the plaintiff in 1982 to work as a nurse in its emergency room. For the next two decades, she served in various roles at the hospital and became a certified Registered Nurse Anesthesist in 2004. In 2013, the hospital outsourced their anesthesiology services to the Wayne State University Physician Group and her decade-long employment with the hospital came to an end. In October 2016, plaintiff did not notice a protruding monitor that had not been put in its proper place and she slammed her head against it. The impact lacerated her right temple and caused a severe concussion giving her slurred speech and difficulty walking. After the accident, she suffered from postconcussion syndrome. For months, she weathered through debilitating headaches and severe fatigue. She also had problems concentrating for extended periods and trouble speaking. She was forced to take a leave of absence from work and undergo significant rehabilitation.

 

By March 2017, her condition had improved enough that her doctor authorized her to gradually begin working again under certain restrictions. Her doctor recommended that she practice administering anesthesia in a simulation room before treating real patients again. When one of her case managers sought to have her use the hospital’s simulation lab, the chair found it absolutely inappropriate for the plaintiff to use the lab because the hospital did not have the equipment or personnel to support the proposed practice sessions.

 

The other issue was her credentials. The hospital required her to submit a form signed by the chair of the hospital’s anesthesiology department. However, that Dr. refused to sign the form because of her leave of absence from the group. Until that Dr. cleared her return, the hospital could not process her application. The clearance never came and the University Physician Group, her employer, terminated her for budgetary reasons before she returned to work. The group later filed for bankruptcy. She asserted a claim in the bankruptcy case seeking damages for termination alleging that the group had engaged in age and disability discrimination. The bankruptcy court said insurance coverage existed so the bankruptcy court would not be able to take the claim. She then sued the hospital alleging that the hospital interfered with her right to a reasonable accommodation under the ADA and for conspiring with University Physician Group to deprive her of her ADA employment rights. At no point did she allege that the University Physician Group and the hospital were joint employers.

 

II

Court’s Reasoning That Interference Claims Relate Back to the Title of the ADA the Case Involves.

 

  1. The interference provisions of the ADA is found at 42 U.S.C. §12203(b).
  2. 42 U.S.C. §12203(b) does not identify the party barred from engaging in unlawful interference.
  3. Although the interference provision does not list potential defendants, the remedies clause of 42 U.S.C. §12203 clarifies the confusion. What that clause says, is that a variety of different remedies apply depending upon whether title I, title II, or title III is involved.
  4. Plaintiff alleged that the hospital interfered with rights granted by the ADA’s employment provisions.
  5. When you follow the dancing ball of the remedies provisions of 42 U.S.C. §12203 with respect to employment, you find that it takes you to the remedies under title VII of the Civil Rights Act of 1964.
  6. Title VII’s remedies and procedures permits an aggrieved party to file an administrative charge with the EEOC against four different entities, one of which of them is an employer. The aggrieved party then has to receive a right to sue letter from the EEOC before proceeding in court.
  7. Title VII permit suits only against employers and a few other irrelevant entities.
  8. Title I of the ADA adopts title VII’s remedial framework, and the ADA’s interference provision adopts the employment subchapter’s remedial framework when a suit raises an employment complaint. Accordingly, the statutory chain of cross-references leaves no doubt that the interference provision in §12203(b) permit suits only against employers when an employment situation is involved.
  9. Title I of the ADA makes it unlawful only for a covered entity to discriminate against a qualified individual on the basis of disability. The phrase “covered entity,” mirrors the list of potential defendants in title VII-an employer, employment agency, labor organization, or joint labor management committee.
  10. The reason why the interference provision lacks a single subject is because §12203 applies to title II and title III entities as well.
  11. That the interference provision relates to title I when dealing with an employment situation also follows from a Sixth Circuit decision involving the retaliation provisions of the ADA. The Sixth Circuit has previously held that employees may sue only their employers for violating the retaliation section. While that case was a Rehabilitation Act case, the Rehabilitation Act incorporates the ADA’s retaliation standard. It wouldn’t make much sense if the ADA’s retaliation section and the interference section reach opposite conclusions on the question of whether only an employer could be sued when an employment situation is involved, especially since the Rehabilitation Act section prohibiting retaliation appears to have even broader language within it than the ADA section prohibiting retaliation.
  12. Other cases cited by the plaintiff are not helpful to the plaintiff’s cause because they involved a different title of the ADA, whether it be title III or title II.
  13. It is possible that the plaintiff could have alleged some type of joint employer theory. However, plaintiff failed to argue that the hospital should be treated as an employer and thereby forfeited the Sixth Circuit’s consideration of any joint employer theory.
  14. A plaintiff can assert a claim of interference with employment related rights under §12203(b) only against an employer or the few other entities listed in 42 U.S.C. §2000e-5(b).

 

II

42 U.S.C. §1985(3) and §1985 are of No Help to the Plaintiff

 

  1. The Sixth Circuit has held that §1985(3) claims reach only conspiracies targeting a person based on a classification that receives heightened scrutiny under the Supreme Court’s equal protection framework. However, conspiracies grounded in disability-based discrimination are not covered because disability discrimination is only subject to rational basis review.
  2. While other circuit courts have held that §1985 can reach disability discrimination, only the Supreme Court or the Sixth Circuit en banc can overrule prior Sixth Circuit decisions.
  3. The Supreme Court has cautioned against allowing a plaintiff to use §1985(3) to enforce a right in another statute when the remedial limits in that statute would bar the plaintiff from suing directly under it. Since the ADA adopts title VII’s remedial framework for employment related claims, this logic applies to this case.

 

III

Thoughts/Takeaways

 

  1. Under this case, interference claims relate back to the type of matter the case involves. So if it is an employment situation, interference relates back to title I of the ADA. If it is a situation where accessing nonfederal governmental entities is involved, then interference claims would relate back to title II of the ADA. Finally, if it is a situation where a place of public accommodation is involved, the interference claim would relate back to title III of the ADA. Each of those titles have their own remedies and their own statutory and regulatory scheme.
  2. It isn’t unusual for independent contractor groups to staff hospitals. It also is not unusual for courts to find that such an arrangement to the public means that the person who works for the independent contractor group is also an employee of the hospital. This case certainly teaches the lesson that the existence of joint employers need to be considered when filing a complaint against a physician group that a hospital has outsourced operation to.
  3. One of the most common ways I see interference claims come across my desk in my practice is when a college professor interferes with what the student and disability services has worked out with respect to the student being accommodated. This case does not rule out interference claims arising from such situations because that situation would involve a title II entity and therefore relate back to title II. Whether the people interfering with the student’s right to receive accommodations could be sued individually may depend upon the jurisdiction. See this case for example, which we also discussed here.
  4. I am not sure I understand why the plaintiff could not pursue her claim against the group that went bankrupt because the physician group had sufficient insurance. If they had sufficient insurance, I wonder why the case could not go forward outside of the bankruptcy court because the bankrupt’s estate would not be jeopardized. The only reason I’m even aware of this issue is because I dealt with this very issue in a case that I was involved with in my first job as a licensed attorney out of law school. I am assuming that the physician group filed under Chapter 11, which is the chapter of the bankruptcy code I am familiar with. If they filed under a separate chapter of the bankruptcy code, then perhaps what happened in the bankruptcy court makes sense.
  5. With respect to §1985, it isn’t accurate to say that disability discrimination is only subject to rational basis review. As we know from Board of Trustees of the University of Alabama v. Garrett and from Tennessee v. Lane, the level of equal protection review that a person with a disability receives depends upon the facts of each individual case.
  6. It is accurate to say that there is plenty of case law out there saying that if an ADA claim exists, you can’t use §1985 type claims as a way to circumvent the ADA.
  7. Interesting that the case has no mention of FMLA, which has job protection features, and I have no idea why that is the case.
  8. Why wasn’t a claim alleging violations of title III of the ADA filed per the case we discussed here?
  9. For the last couple of years, a large part of my practice has involved acting as a consultant to healthcare professionals involved in disability discrimination matters (employment, licensing, credentialing, etc.). One of the things that I have seen from that experience, is that lawyers representing healthcare professionals need to realize that it is not unusual to have title I, title II, and title III of the ADA all in play simultaneously. Lawyers ignore that fact at their client’s peril.
  10. The dancing ball of the retaliation and interference provisions alluded to above can lead to some very interesting results. For example, a line of cases exists saying that only equitable remedies exist for retaliation under title I of the ADA because of the dancing ball. See this case for example.



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