On March 16, 2011, Mr. Andrew Adams submitted a Complaint to Federal District Court in Connecticut against Festival Fun Parks, LLC (more commonly known as Lake Compounce) stating that while working for them, because of his disability, i.e. the fact that he'd been diagnosed as mentally retarded, he was subjected to sexual harassment by his co-workers including one named Justin Walters. The Complaint was brought under the Americans With Disabilities Act of 1990 and under the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991.
Immediately, I was alerted to a problem because I wondered whether Mr. Andrew Adams' attorney James V. Sabatini of Sabatini and Associates had any idea of the Americans With Disabilities Amendments Act of 2008 which considerably altered several aspects of the ADA of 1990 and should have been referenced in the Complaint. The ADAAA of 2008 broadened the definition of those deemed to be eligible for the protections of the ADA. It is now 2014, six years after the ADAAA was passed and yet so many people in the legal profession are unaware of the legislation, to the point where it is quite striking.
Is this occurring because of the judicial nullification of Federal ADA law in Courts across the United States today, including the State of Connecticut? The examination of two cases: Andrew Adams v. Festival Fun Parks, LLC and Elizabeth A. Richter v. The Connecticut Judicial Branch, et. al. could provide some insight into the answer to that question.
Is this occurring because of the judicial nullification of Federal ADA law in Courts across the United States today, including the State of Connecticut? The examination of two cases: Andrew Adams v. Festival Fun Parks, LLC and Elizabeth A. Richter v. The Connecticut Judicial Branch, et. al. could provide some insight into the answer to that question.
In the case against Festival Fun Parks (or Lake Compounce) in regard to Andrew Adam's disability, Item #7 of his Complaint stated that he "suffers from mental retardation."
Now, as a long time advocate, I of course flinched at the word "suffers"--shall we all get over the idea that folks with disabilities must be suffering and afflicted! Nonetheless, upon reading the court materials I could see very clearly that Mr. Adams had been identified as being intellectually disabled very early in life and on up to the present.
According to the allegations in his Complaint, a co-worker, identified as Justin Walters, called Mr. Adams stupid, and told him he didn't know what he was doing. This employee wrote the word "sucks" next to Mr. Adam's name on his blow torch. On another day, Justin Walters threw an apple at Mr. Adam's truck.
Further, Walters also told Andrew Adams that "being on his knees was [Adams] best position and that he liked being on his knees because he liked guys so much." Apparently, Walters would make comments like that when Andrew Adams was required to get on his knees to perform his job duties. Justin Walter also told the plaintiff that he "had" plaintiff's mother last night and that she was good.
When the Andrew Adams spoke to his immediate supervisor, John Fitch, about the harassment, Adams was told he would have to deal with it if he wanted to work in the department. John Fitch did nothing to stop the harassment. Then Mr. Adams spoke to Fitch's supervisor, Mario Abela, about the harassment and was told to give Walters a chance and that he was not so bad. Finally, Andrew Adams spoke to the general manager, Jerry Brick, and asked if he could transfer to the painting department, so he wouldn't have to deal with the harassment, but Mr. Brick stated there were no openings available. Eventually, Andrew Adams either resigned or was fired on October 31, 2009. Attorney Sabatini, Andrew Adams attorney, argued that Mr. Adams was put in a position where the environment was so hostile that he had no other choice but to resign.
Fast forward to the Judge Janet Bond's March 12, 2013 ruling to dismiss the case in response to Lake Compounce's Motion For Summary Judgment. Judge Bond ruled against Andrew Adams because she stated that Adams documentation which he used to prove that he had a disability, an evaluation by Dr. Cynthia K. Niedbala, at Newington Children's Hospital, was hearsay, and that his own testimony to that effect at deposition, or the statements he had made to his employers to that effect would be considered self serving and therefore not reliable. How ridiculous is that?
Here is what I don't understand about the March 12, 2013 ruling. Summary judgment should not be granted when there are genuine issues of material fact that exist, for example, the issue as to whether a person is disabled. So how could Judge Bond go ahead and rule on a motion for summary judgment when the facts of the case were still under dispute and could only be resolved through a proper trial including the submission of further documentary evidence and testimony?
Be that as it may, this case went on appeal with the Court of Appeals for the Second Circuit. In response, several disability organizations: the National Employment Lawyers Association, The Arc of the United States, the National Disability Rights Network, the Office of Protection and Advocacy for Persons With Disabilities, and Disability Rights Vermont filed an Amicus Brief urging the 2nd Circuit Court to reverse the District Court's decision denying that Andrew Adams had a disability. In making their case, these organizations pointed out that according to the broader and more liberal definition of disability provided by the ADAAA of 2008, Andrew Adams was covered by the ADA, and it also stated that in quoting case law the District Court had relied upon rulings that were pre-ADAAA of 2008.
The ADAAA of 2008 is very specific that it did not want litigants to be put through the wringer when it came to determining whether they had a disability or not. As Chai R. Goldblum, an ADAAA expert stated, "Congress passed the ADAAA because it wanted to stop the "mini-trials' on whether a person had a disability and to force attention on the merits of the case." Furthermore, Goldblum stated, "The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not on whether the individual meets the definition of disability." He also quoted the ADAAA, C.F.R. Sec. 16301.4, in stating, "The question of whether an individual meets the definition of disability under this part should not demand extensive analysis." In other words, disability coverage under the ADAAA of 2008 is broad and extensive.
The ADAAA of 2008 is very specific that it did not want litigants to be put through the wringer when it came to determining whether they had a disability or not. As Chai R. Goldblum, an ADAAA expert stated, "Congress passed the ADAAA because it wanted to stop the "mini-trials' on whether a person had a disability and to force attention on the merits of the case." Furthermore, Goldblum stated, "The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not on whether the individual meets the definition of disability." He also quoted the ADAAA, C.F.R. Sec. 16301.4, in stating, "The question of whether an individual meets the definition of disability under this part should not demand extensive analysis." In other words, disability coverage under the ADAAA of 2008 is broad and extensive.
Very reluctantly, and cautiously, in its decision in this case dated March 21, 2014, the 2nd Circuit Court did state that "we are skeptical that the district court applied the correct standard in assessing whether Adams was disabled" but it continued on to state that it did not intend to rule on that matter "we do not reach the issue of whether Adams has shown that he is disabled for purposes of the statute." So the Circuit Court knew that the District Court determination in regard to Andrew Adam's disability was incorrect, but it wasn't going to accord Adams the benefit of acknowledging it formally in a way that could advantage his case.
Essentially, what we are left with is the understanding that Andrew Adams was identified as mentally retarded in early childhood, that he did have a report confirming his diagnosis written by a medical expert which needed to be presented to the court in obedience to court rules (even though it hadn't been up to that point), that he had self reported himself as having this diagnosis, and also he had told his employers that he had that diagnosis. Still, the District Court refused to acknowledge his disability.
There is something absurd where the law declares a situation where an object walks like a duck, quacks like a duck, has DNA like a duck, looks like a duck to everyone who runs into it, but is not a duck according to the legal definition of the court. Andrew Adams had been identified as having mental retardation very early in his life and spent his life with this understanding, as did everyone who knew him, but somehow for this court, it wasn't true!
It is also important to note that in the Richter case, same time frame, same kind of ADA claim of disability, the Federal District Court based its decision entirely upon the statements she made in her Complaint. The Court never made the demand that she provide documentation from an expert medical report or an expert witness to prove her disability as was required in the Andrew Adams case. There is no explanation for the shifting of standards from one case to the other, i.e. expectation documentation from one litigant and not for another, except for what I've heard many people say--the Court simply makes up the law as it goes along.
It is also important to note that in the Richter case, same time frame, same kind of ADA claim of disability, the Federal District Court based its decision entirely upon the statements she made in her Complaint. The Court never made the demand that she provide documentation from an expert medical report or an expert witness to prove her disability as was required in the Andrew Adams case. There is no explanation for the shifting of standards from one case to the other, i.e. expectation documentation from one litigant and not for another, except for what I've heard many people say--the Court simply makes up the law as it goes along.
As an absurd finish to this case, representatives of Lake Compounce stated, "Lake Compounce cares deeply about its employees and guests, and does not condone or allow discrimination of any kind,...Lake Compounce firmly believes that [Adams] was extremely well treated throughout his many years of employment at the park, which is precisely why he wanted to be rehired." (See Law360).
They really ought to wake up to the fact that allowing sexual harassment of an employee with a disability does not add up to caring. Caring takes place when you make sure discrimination does not occur through your company policies and through the actions of your managers and supervisors who strictly prohibit such behavior on the part of their employees.
A very similar situation occurred in the case Elizabeth A. Richter vs. the Connecticut Judicial Branch, et. al. submitted in November 15, 2012. In this case, Elizabeth Richter stated that she had an anxiety disorder on and off for many years. She also reported in her Complaint that she had submitted a document from a medical doctor indicating that she had acute stress disorder, and again at a later time in her complaint she reported submitting information indicating that she had legal abuse syndrome, a form of PTSD. She stated that on the basis of these diagnoses that she was entitled to protection under the ADA during her family court case at the Connecticut Judicial Branch in Hartford. However, from 2006 until December 2012, she was told that she was not eligible under the ADA and even though she was occasionally provided with accommodations, this was not done so in an effective and consistent manner.
Similar to the Adams case, when Sandra Lugo-Gines at the Connecticut Judicial Branch denied Elizabeth Richter's requests for ADA accommodation, Lugo-Gines made repeated statements to the effect that the judicial branch will provide reasonable accommodations to persons with disabilities when clearly it has not done so for Elizabeth Richter, and continues not to provide accommodations for the majority of litigants who apply for them.
Elizabeth A. Richter also stated that from October 2010 until around April 2011, she had a temporary physical disability for which she required major surgery and that when she asked for accommodations based on that disability, the Connecticut Judicial Branch failed to provide them. Also, she stated that in order to cover up their tracks, family court at 90 Washington Street and also the Appellate Court concealed the documents related to her physical disability and then ruled against her citing the fact that the concealed documents weren't there as the basis for their ruling.
The Federal District Court ruling in the Richter case was dated March 28, 2014, not long after the 2nd Circuit Court decision came out in the Andrew Adams case casting doubt on the District Court's pre-ADAAA decision in regard to whether Adams had a disability. In its ruling, Judge Janet Bond Arterton stated that she acknowledged that Elizabeth Richter had a disability according to ADA law, but stated that she was still not considered eligible under the ADA because her disability was only "a temporary result of the anxiety caused by the judicial proceedings, and not an ailment that would continue permanently even after those proceedings were completed." The District court in its decision, in the same way as in Andrew Adams case, cited a considerable amount of case law that was pre-ADAAA of 2008
However, since the legal proceedings had continued on for eight years, Elizabeth Richter's anxiety under that definition was well within the ADAAA of 2008 definition of temporary disabilities which are covered under Federal ADA law.
So again, the Federal District Court simply blew off the requirements of ADA law for its own purposes.
It did so even though it must have had sufficient knowledge through the Andrew Adams case that the Courts are required to consider the guidelines promulgated in the ADAAA of 2008. Judges of Federal District Court are not dumb--they are well aware of the ADAAA of 2008. Could it be that these judges simply refuse to acknowledge the obvious disabilities of plaintiffs because they simply cannot stand the ADA and they cannot bear the thought of according equal rights and opportunities to a group of citizens that they feel are inferior and should know their place?
Doesn't the denial of ADA eligibility which took place in the Adams and Richter cases essentially add up to the judicial nullification of the federal ADA law as a whole?
For those who are skeptical of this, I would point out the fact that Congress had to return to the ADA and write a whole additional set of Amendments in 2008 because the Federal Courts were disregarding the Will of Congress and interpreting eligibility standards far more narrowly than they were ever intended to be interpreted--see Sutton v. United Airlines and Toyota Motor Mfg. v. Williams.
Will it take another Act of Congress before the judicial system in this country finally realizes that equal rights extends to the disabled as well as to other racial, ethnic, and gender groups? I think so.
As an advocate who has worked for reform in the judicial system for many years, it is very clear to me that there is nothing judges and attorneys hate more than the ADA and the concept that they cannot use disability to deny citizens their civil and constitutional rights. This means that unless they are forced to do otherwise, judges will continue to judicially nullify the ADA and attorneys will continue to act as though it doesn't exist, unless, of course, their own interests are involved.
