Northwest Education Law Blog : Northwest Education Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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Parents Spring and Charles Towry have filed suit, on behalf of themselves and their daughter, against the Kootenai Elementary School, Lake Pend Oreille School District No. 84, and Bonner County Sheriff’s Department, alleging nine separate causes of action arising out of their 8 year-old daughter’s arrest in January 2009.

According to the complaint, the Towry child was diagnosed with Autistic Spectrum Disorder in August 2008. In December 2008, officials at Kootenai Elementary in Idaho held a meeting and instituted an Individual Education Plan (“IEP”) and Behavior Intervention Plan (“BIP”), entirely without the Towry’s knowledge or participation. The plans authorized police intervention to deal with the child, with no requirement of prior notice to the Towrys.

The Towrys allege that on January 9, 2009, the 8-year-old Towry child was arrested at the behest of her teacher, Louise Zumuda, and Kootenai Elementary principal, Betsy Walker, without notice to her parents. According to the complaint, Bonner County Sheriff’s Department Deputies Justin Collins and Kurt Lehman handcuffed the 8-year-old and took her to the Bonner County Juvenile Detention Center, where she was “patted down.”

The Towrys seek relief on nine separate causes of action, including: negligence; intentional infliction of emotional distress; negligent hiring/supervision/retention; breach of contract; disability discrimination under the Americans with Disabilities Act (“ADA”), the Individuals with Disabilities Education Act (“IDEA”), and Idaho statutory law; and violation of the Fourth and Fourteenth Amendments.

While the complaint maintains the anonymity of the child at the center of the dispute, some reports claim to identify the child.
 

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A diabetic school district employee transferred from Director of Pre-K and Student Services to Dean of Students at a district middle school lacks a claim under the Americans with Disabilities Act (“ADA”), a federal district court ruled on July 2, 2010.

In Williams v. Brunswick County Board of Education, plaintiff Lorne Williams alleged that upon requesting 6-month medical leave due to “diabetic levels” in 2007, the Board transferred her to the position of Dean of Students at Shallotte Middle School, violating the ADA. To set forth a claim for ADA discrimination, Williams had to demonstrate, among other things, that she was “disabled” within the meaning of the ADA, and that the Board took an “adverse employment action” against her because of that disability. On the Board’s motion for summary judgment, the U.S. District Court for the Eastern District of North Carolina rejected Williams’ ADA discrimination claim for two primary reasons.

First, applying the pre-January 1, 2009 definition of “disabled,” the court found Williams’ diabetes did not give rise to protected status under the ADA. Notably, under the new definition of “disability” established by the ADA Amendments Acts of 2008, Williams may have qualified as a disabled individual. For more information, see our prior blogpost on the ADA Amendments Act of 2008.

Second, the court rejected Williams’ contention that the transfer from Director of Pre-K and Student Services to Dean of Students at Shallotte Middle School constituted an “adverse employment action” for purposes of her discrimination claim. The court determined that because the transfer came with no change in pay, benefits, or seniority, the move could not rise to the level of an “adverse employment action.” The court expressly rejected Williams’ argument that the broader definition of “adverse employment action” established in the U.S. Supreme Court decision Burlington Northern v. White applied. In Burlington, the Court held that in Title VII retaliation claims, an employment action is “adverse” if it “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” However, the district court in Williams v. Brunswick County Board of Education found that broader definition to be limited to the context of retaliation claims, and therefore inapplicable to Williams’ ADA discrimination claim.

In a more cursory fashion, the court also rejected Williams’ ADA retaliation claim, finding no evidence of adverse action even under the more lenient Burlington Northern v. White standard, largely because the Board actually granted Williams her requested 6-month medical leave.
 

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On June 29, 2010, the Department of Justice and Department of Education issued a joint warning letter regarding the use of “dedicated electronic readers” in colleges and universities. The term “dedicated electronic readers” encompasses a number of new handheld devices which allow students to download and read books, such as Amazon’s Kindle, Sony’s Reader Daily Edition, and Barnes & Nobles’ Nook.

The DOJ and DOE’s concern with electronic readers is that most are not accessible to students who are blind or have limited vision because they lack “an accessible text-to-speech function.” As a result, according to the DOJ and DOE, use of such devices may violate the Americans with Disabilities Act (“ADA”): 

Requiring use of an emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilities – individuals with visual disabilities – is discrimination prohibited by the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner.

The ADA requires that places of public accommodation—which under 28 C.F.R. 36.104(10) expressly includes private educational institutions—must provide full and equal access to disabled individuals as detailed in 28 C.F.R. 36.201-204. 

The warning from the DOJ and DOE comes on the heels of the DOJ’s January 2010 settlement with Case Western Reserve University, Pace University, and Reed College, resolving the DOJ’s claims against those institutions arising out of their use of Amazon’s Kindle DX. Under the terms of that settlement, the institutions agreed not to “purchase, recommend or promote” the use of electronic book readers “unless the devices are fully accessible to students who are blind and have low vision.”

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On June 21, 2010, the Eighth Circuit Court of Appeals rejected an employee’ s Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”) claims against The College of St. Scholastica.

Plaintiff Michael Kobus worked as a painter for The College of St. Scholastica in Duluth, Minnesota from August 1997-January 2007. After a series of family tragedies in 2005, physicians diagnosed Kobus with depression and prescribed him Paxil, an antidepressant.

While Kobus informed his supervisor that his life was causing him stress and anxiety, Kobus never revealed his medical diagnosis and never indicated he was receiving medical treatment for his condition. When Kobus requested information regarding a potential leave, Kobus’ supervisor provided him with an FMLA request form. Kobus declined to take FMLA leave.

Thereafter, Kobus, who had no vacation or sick leave left, suffered a string of unexcused absences. When confronted by his supervisor, Kobus again requested leave, and his supervisor once again indicated that FMLA leave was available, but that there were no options for non-FMLA leave. Kobus again declined, and instead voluntarily resigned.

Kobus filed suit against St. Scholastica, alleging interference with his FMLA rights, as well as discrimination in violation of the ADA and Minnesota Human Rights Act. After the trial court dismissed Kobus’ claims, Kobus appealed.

On appeal, the Eighth Circuit found St. Scholastica had complied with its obligations under the FMLA by virtue of the supervisor’s repeated offer of FMLA leave to Kobus. An employer’s obligation to offer FMLA leave is triggered when an employee provides sufficient information to put the employer on notice of a potential need for medical leave. However, the Eighth Circuit explained, “[w]hen an employee is made aware of the procedures necessary to obtain FMLA leave and chooses not to seek FMLA protection, the employer does not violate the FMLA by terminating the employee for excessive absenteeism.” The court also rejected Kobus’ claim that St. Scholastica’s policy on FMLA leave was ambiguous, citing the school’s clear FMLA Leave Request Form and Employee Handbook.

The Eighth Circuit also affirmed dismissal of Kobus’ discrimination claims under the ADA and MHRA. It is the “responsibility of the individual with a disability to inform the employer that an accommodation is needed.” Kobus never informed St. Scholastica of the need for an accommodation, and in fact never revealed the existence of any medical condition. Therefore, St. Scholastica’s duty to offer accommodation was never triggered.
 

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On March 9, 2010, the Sixth Circuit Court of Appeals held that a former teacher at a religious school was not a “ministerial employee” for purposes of the Americans with Disabilities Act of 1990. Thus, the court held that the EEOC and the teacher could pursue claims for disability discrimination and retaliation against the employer under the ADA and the Persons with Disabilities Civil Rights Act, a Michigan state law that is substantively similar to the ADA.

As a starting point, the ADA prohibits an employer with fifteen or more employees from discriminating against a qualified individual with a disability on the basis of that disability with respect to conditions of employment. The ADA also contains an anti-retaliation provision, which prohibits an employer from discriminating against an individual because that individual opposed an act or practice made unlawful by the ADA or asserted a claim under the ADA.

However, the ADA’s coverage is not absolute, and there are some gaps in the protection it affords. One such gap in protection is the “ministerial exception,” which allows religious entities to give preference in employment to individuals of a particular religion and to require all employees to conform to the religious tenants of the organization. Thus, an individual’s discrimination or retaliation claim will be barred under the ministerial exception if (1) the employer is a religious institution, and (2) the employee is a ministerial employee.

In this case, Cheryl Perich was a “called teacher” at Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”). Called teachers were one of two types of teachers employed at the school, the other type being contract teachers. Called teachers differed from contract teachers in that called teachers had completed certain classes in the Christian faith, were admitted to the teaching ministry, and were hired on an open-ended basis rather than on a one-year renewable term. Putting the classification aside, Perich’s duties as a called teacher were identical to the duties she had previously performed as a contract teacher at the school.

The parties did not dispute that Hosanna-Tabor was a “religious institution,” so the key issue on appeal was whether Perich was a “ministerial employee” for purposes of the ADA. On appeal, the Sixth Circuit reversed the district court and held that Perich was not a ministerial employee.

In reaching its decision, the Sixth Circuit noted that whether an employee is ministerial is determined by looking at the employee’s primary duties.  Here, the court found that Perich’s primary duties were not religious in nature–she spent only 45 minutes of the seven hour school day devoted to religion. She taught secular subjects and rarely introduced religion into secular discussions, and her duties as a called teacher were identical to those she had performed as a contract teacher. Thus, the court held that excluding Perich from coverage under the ADA would be both “illogical and contrary to the intention behind the exception.”

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Todd Sorensen gave a great webinar over the lunch hour today detailing recent changes in the ADA. His power point slides from the presentation can be accessed here. Feel free to email Todd at tsorensen@williamskastner.com if you have any questions or would like additional information.

Stay tuned for Williams Kastner's next webinar, "How Have the FERPA Amendments Been Received and Will They Withstand Legal Scrutiny?" on September 16. Lisa C. Williams will cover the January 2009 amendments to FERPA and review how the courts have interpreted the amendments. Any schools maintaining student records will benefit from this webinar.

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All educational institutions bear an obligation to comply with the Americans with Disabilities Act ("ADA"). On January 1, 2009, the most comprehensive changes to the ADA since its inception nearly 20 years ago came into effect in the form of the ADA Amendments Act ("ADAAA"). The ADAAA dramatically broadens the definition of the term "disability" under the ADA.

Join Williams Kastner attorney Todd Sorensen on July 29, 2009 for a complete review of private colleges' duties under the ADA, with particular emphasis on the changes set forth in the ADAAA. Developments in the law will come to life through recent case studies, as well as real-time questions from the audience received electronically during the presentation.

Presenter:
Todd Sorensen

Date:
July 29, 2009

Time:
12:00 - 1: 00 p.m.

RSVP:
To RSVP, please e-mail seminars@williamskastner.com. An online meeting confirmation complete with instructions on how to join the webinar will be sent to all registrants.

Click here to view the HMTL version of this invite.

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On June 4, 2009, at the Northwest Career College Federation’s annual conference, Williams Kastner provided an update on recent developments in the Americans with Disabilities Act. The presentation included a careful analysis of the ADA Amendments Act of 2008. To view the powerpoint slides from the presentation, click here.