ADA and Employers - Nurse in psychiatric ward using cane for arthritis denied job reassignment

In a departure from circuit courts throughout the United States, a nurse who suffers from arthritis and uses a cane was denied transferring to another position in the psychiatric hospital. This article is relevant for health care managers and human resource professionals. For more read the case analysis here:

ADA and Employment - Does the ADA protect a dissatisfied customer service worker? 9th Circuit says NO

This just in... from the law firm of Ogletree Deakins...

USA November 10 2016 The Ninth Circuit Court of Appeals recently ruled against a failure-to accommodate claim brought by a customer service employee who was fired for poor performance. According to the court, the former employee, who suffered from endometriosis and headaches, was not able to show that she was qualified to perform the essential functions of a customer service job. Kelley v., Inc., No. 13-36114, United State Court of Appeals for the Ninth Circuit.

Factual Background

As a customer service associate employed by AMZN WACS, Inc. (which is a subsidiary of, Inc.), Jodie Kelley was responsible for fielding questions from customers and resolving complaints. While employed by Amazon, Kelley who suffered from endometriosis and migraine headaches, took medical leaves on an intermittent basis. In 2010, her job performance began to decline as evidenced by her “Expressed Dissatisfaction Rate (EDR), which was derived from customer surveys.” After attempting, unsuccessfully, to remedy Kelley’s deficiencies, Amazon fired her.

The definition of the term “qualified individual with a disability” reflects this remedial purpose. Accordingly, the definition 1) requires an individualized assessment of a particular individual’s capabilities; 2) focuses on the essential functions of a particular position; 3) looks at particular positions, not work in general; and 4) considers whether a person can work with reasonable accommodations.

Kelley filed suit against Amazon alleging violations of the Americans with Disabilities Act (ADA), the Washington Law Against Discrimination, and the Family and Medical Leave Act (FMLA). The U.S. District Court in the Eastern District of Washington ruled in favor of the employer, and Kelley appealed.

The Ninth Circuit’s Decision

Kelley argued that Amazon failed to accommodate her disability. The court found that Kelley’s failure-to-accommodate claim failed because there was an issue as to whether she was qualified to perform the essential functions of her job with or without a reasonable accommodation. According to the court, “customer service is the reason for the existence” of Kelley’s position. Moreover, the court found, “[o]ver the course of at least eight months, she regularly failed to meet the EDR standard required for her team even after repeated attempts by Amazon personnel to improve her performance.” Thus, the court concluded that Kelley had failed to create a jury issue regarding whether she could “deliver adequate customer service with or without a reasonable accommodation.”

With regard to Kelley’s suggested accommodations—including a transfer to another customer service position and a medical leave of absence—the court found that “[a] reasonable trier of fact has no basis to conclude that any of the accommodations . . . are reasonable.” With regard to a transfer, the court found that there was no record that positions for which Kelley was qualified were available. With regard to a leave, the court found that Kelley had not produced any evidence that her impairments were treatable or that her “tone of voice”—which Kelley had claimed was responsible for her performance deficiencies—“could be remedied through medical treatment that would require a leave of absence.”

Finally, the court rejected Kelley’s argument that Amazon failed to accommodate her by failing to consult with her doctor. The court ruled that while consulting with an employee’s doctor “is a potential method of discovering a reasonable accommodation, it is not a reasonable accommodation in and of itself.” Thus, the court affirmed the district court’s granting of summary judgment in Amazon’s favor.

Key Takeaways

With the amendments to the Americans with Disabilities Act in 2008, and the follow-up regulations that the Equal Employment Opportunity Commission passed in 2011 implementing the amendments, it is clear that the overall message for employers is to prohibit discrimination against qualified individuals with disabilities who want to work and who are qualified to work. Since that time, it often seems that employers are having to and/or are assuming that employees who raise a concern of a medical condition must immediately jump into the discussion about the need for an accommodation.

This case is a good reminder that in defining who is a “qualified individual,” the ADA looks at whether an individual with a disability is qualified for the specific position at issue, not at whether he or she is qualified for work in general. The Ninth Circuit confirmed that Jodie Kelley was not qualified to perform her customer service job because of her performance record. Thus, the accommodation was unnecessary.

While this decision is a good outcome for the employer, caution should be used to examine whether employees are able to perform their jobs and are therefore “qualified individuals” as more often than not the scope of the ADA is broad. A qualified individual with a disability is an “individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and who, with or without reasonable accommodation, can perform the essential function of such position”. The definition of the term “qualified individual with a disability” reflects this remedial purpose. Accordingly, the definition 1) requires an individualized assessment of a particular individual’s capabilities; 2) focuses on the essential functions of a particular position; 3) looks at particular positions, not work in general; and 4) considers whether a person can work with reasonable accommodations.

Employers in a similar position to the one in this case should consider whether there is a written job description of the essential functions of the job. After you have confirmed that the employee is qualified despite the medical restrictions, engage in the interactive process. Finally, do not forget to document your findings!

Summertime is ADA Accommodation Time for Schools

As an adjunct professor, and ADA Advocate, I work in post secondary schools and have seen a a trend in colleges and universities working with students with invisible disabilities. The process is different than high school. There is more responsibility on you as the student to self-identify and seek accommodations from your school's ADA Coordinator. Negotiating for your invisible disabilities is new territory for many schools, but remember, you have the power of the Americans with Disabilities Act behind you! KNOW YOUR RIGHTS!

Here is an excellent article to start published by:
U.S. Department of Education, Office for Civil Rights, Students With Disabilities Preparing for Postsecondary Education: Know Your Rights and Responsibilities, Washington, D.C., 2011.

LiftingUp Westchester Board of Directors @ April 14 GALA

Congratulations to LiftingUp Westchester... Where Hope Takes Flight... Oasis of Hope Gala

The Oasis of Hope Annual Gala was April 14, 2016. One of the many programs the fundraiser supports is:

"Rainbow Outreach" which offers a safe environment and therapeutic weekly activities for 50 developmentally disabled adults and referral services for these individuals and their parents.

Pictured are the Board of Directors
fron left to right first row:
Michael Heffner, Alan Goldman, Donna Drumm, Carol Schiro Greenwald, Linda Gallo
Second row: Walter Simon, Helen Hamlyn (President), Rev. Richard Kunz (Chair), Paul Anderson-Winchell (Executive Director) and PJ Louis
Not pictured: E. Barbara Wiggins
Lifting Up Westchester is a non profit organization.
Learn more about LiftingUp Westchester here

Recent ADA Accommodation News by Donna Drumm Certified ADA Advocate

Recent ADA accommodations work

Workplace accommodations - working with client on obtaining work place accommodations for visible and invisible disabilities.

Warrant accommodations - worked with client to receive accommodation to appear by telephone.

Divorce - work with client to receive accommodations for hearing on child custody matters.

Presentations - On April 20th at Mercy College I will be presenting: "Accessibility in the Workplace" to graduating students and staff. This is being sponsored by the Office of ACCESSibility, an innovative service offered to students with disabilities.

The focus of the presentatiion is to empower students to advocate for ADA Accomodations in the work place during interviews and the initial hiring process.

The presentation will be held Wednesday, April 20th from 2:30-3:30 PM at the Dobbs Ferry campus.

Interviews - Greenwich radio station WGBH interviewed Paul Anderson Winchell, Executive Director of LiftingUp Westcheseter and me about LUW's upcoming Gala, volunteerism and our mission.

Dr. Karin Huffer, my mentor and founder of Equal Access Advocates, interviewed me for her ADA Advocacy class at John Jay College in Manhattan. The interview will be part of the class work beginning in Sept. 2016.

Volunteer "Judge" for Pace Law School's Moot Court Competition - I joined attorneys and professional judges in observing first year law students present arguments on jurisdiction. It's hard to be a judge when the finalists are all so excellent. Nicely done students!!!

Donna Drumm interviewed on WGCH radio...

Donna Drumm interviewed on WGCH radio...

Great to meet with Tony Savino at NewsTalk AM 1490 Radio the voice of Fairfield & Westchester Counties.  I was interviewed with Paul Anderson Winchell, Executive Director of LiftingUp Westchester about LUW's work supporting Westchester's homeless, hungry and disabled, one person at a time.  Here's a link to the interview

Read More

Right to Counsel for the indigent .... Many of my clients ask if they qualify

... to get a pubic defender or 18-b lawyer appointed by the court for their case. Throughout the nation court's dockets are burgeoning with more and more people who cannot afford lawyers yet need to have legal represenation for the most important aspects of their lives.

I follow this issue and wanted to share a recent post from NCRCC - National Coalition for a Right to Civil Counsel.


DOJ: State Courts Imposing Fees and Fines Must Appoint Counsel in “Appropriate” Cases

The U.S. Department of Justice has sent a “Dear Colleague” letter to state chief justices and court administrators in order to "provide greater clarity to state and local courts regarding their legal obligations with respect to the enforcement of court fines and fees.” Among other things, the letter reminded court personnel that the Sixth Amendment guarantees counsel for any criminal proceedings resulting in imprisonment and that "Under the Fourteenth Amendment, defendants likewise may be entitled to counsel in civil contempt proceedings for failure to pay fines or fees."

If you would like to learn more here is the link for the "Dear Colleague" letter:

Thank you!

Catch my radio interview on AM 1490 Wed. 3/23@ 8A

Tony Savino of The News Center with Tony Savino will be interviewing Paul Anderson-Winchell, Executive Director of LiftingUp Westchester and me about volunteerism, corporate giving and Peter X. Kelly, renowned Top Chef of restaurants: X20, Bully Boy, Restaurant X and others! To listen 8AM Wed. 3/23 go to AM 1490 WGCH on your radio dial or on the internet

Pregnant Workers Can Seek Accommodations in NY

As of Jan. 19, 2016 NYS Legalizes Pregnancy Accommodations in Workplace

The Bill amends the New York State Human Rights Law’s definition of reasonable accommodation, which is currently limited in its application to individuals with disabilities, to include actions taken by an employer to permit a person with “a pregnancy-related condition” to perform the job. [Cite:] Report on Legislation by the Committee on Sex and Law, New York City Bar Association

What does this mean for pregnant workers in NY? "Conditions related to childbirth and pregnancy can result in impairment requiring accommodation. Some pregnant workers require modest adjust ments on the job for conditions related to pregnancy and childbirth in order to stay healthy and keep working. Employees may require a stool to sit on, extra restroom breaks, transfer away from hazardous duties, a temporary reprieve from heavy lifting, or a reasonable time for childbirth recovery." Cite

Thanks to Karen Winner, Esq. for alerting me to this news!

Update on Joey Watley

As reported here in October, Joey Watley is fighting the Connecticut Department of Children & Families (DCF). DCF took both of his sons away claiming disabilities of the children's mother and Joey. They are now adopted by their foster parents.

Joey has been fighting for the custody of his children for years. The main point is that the DCF workers should have offered the children's mother and Joey accommodations under the ADA if they thought the parents had mental impairments, rather than keeping the children in the system away from their parents.

He brought his suit to federal court in the Southern District of New York. After two weeks the court dismissed the complaint, and did not allow for him to be eligible for assigned counsel (pro bono).

He then brought the case to the Court of Appeals in the Second Circuit. They allowed him to receive legal services for free (pro bono). The lawyer's name is Andrew O' Toole.

Attorney O'Toole wrote a terrific brief and argued before the Second Circuit in New York City in January. I am told one of the judges, after the argument, from the bench, thanked Mr. O'Toole for his advocacy,

Within ONE WEEK the Court of Appeals vacated the judgment in the Southern District, and ordered a pro bono attorney be assigned to Joey. ( Watley v. Keller, Dkt No. 14-3862 (2d Cir.)).

The fight isn't over yet - but change can happen in the courts. Thanks Joey for keeping up the fight and Thanks to Attorney O'Toole for being one of the good guys!

Congratulations to Joey Watley, fighting for the rights of Disabled parents

As reported in the Oct. 5 Hartford Courant by Josh Kovner

Connecticut couple files federal appeal after two children are taken from them at birth A Connecticut couple whose children were taken from them at birth after the parents were deemed mentally unsound by child-protection officials have filed a federal appeal, claiming that they were denied rights under the Americans With Disabilities Act.

It has been a grueling struggle for Joseph Watley, 61, who is staying with his ailing mother in Thomaston, and Karin Hasemann, 47, who lives with her mother and father in Watertown.

They lost the boys — Joe Jr. was born in July 2005, and Danny came along in July 2006 — under the doctrine of "predictive neglect." The Department of Children and Families argued that it was more likely than not that Hasemann and Watley would neglect the children if they remained with their parents. So the state took them away.

"How do you defend against that?" said Watley. He's worked a number of factory and machine-shop jobs and now receives disability payments for a back injury suffered in a car accident.

When Hasemann was 16, she had a benign brain tumor surgically removed. Since then, she has been diagnosed with narcolepsy. The couple fought against the removal of their children at three trials in state Superior Court in Middletown. They lost all three, although they won state appeals and had the case sent back for further hearings. They ultimately lost every trial. A lawsuit against DCF was dismissed in federal court.

In the couple's federal appeal, lawyer Andrew O'Toole of Hartford asserts Hasemann has received a series of "inconsistent and conflicting" psychological evaluations that were ordered by DCF. Her diagnoses include attention deficit and hyperactivity disorder; personality disorder – major depression; chronic functional impairments; cognitive defects; and other "unspecified" psychological difficulties," O'Toole stated in the appeal brief. For his part, Watley was diagnosed with "personality disorder – unspecified."

"That's the 'common cold' of mental health," said Watley. "We were branded with negative, stigmatizing labels that we will never be able to shake. What DCF is saying is, 'You're inferior because of your disability, or what they perceive as our disabilities, so you don't have the right to get your kids."

The boys live with foster parents in Watertown. Watley and Hasemann have not seen them since 2008. They lost parental rights in state court and have no visitation rights.

Even if the appeal is successful and they were to prevail at a new trial in federal court, the couple wouldn't get the boys back. A win would mean money damages, and possibly a ruling that says that even parents who've been deemed unfit by DCF deserve access to services and support under the ADA before a child is removed.

The final appeal papers were filed Sept. 24 and contain references to a federal enforcement action in Massachusetts that has emboldened Watley. The Department of Justice in January ordered the Massachusetts DCF to return to 21-year-old Sara Gordon the now almost 3-year-old child the state had removed on the basis of Gordon's developmental disability.

The Massachusetts DCF "acted … based on … discriminatory assumptions and stereotypes about her disability, without [considering] family-based support services" routinely available to other parents who risk losing a child, the U.S. Department of Justice and the Department of Health and Human Services Office for Civil Rights wrote in the order to the Massachusetts DCF.

The department also "failed to … modify its practices … to accommodate Ms. Gordon's disability," and "denied her the opportunity to receive meaningful assistance from her mother and other service providers," they wrote. Watley says that in 2005 and 2006, when the boys were born, "family members from both sides were ready and willing to help us raise the children — we never got the chance."

In the Massachusetts case, the justice department and the U.S. Department of Health and Human Services said the ADA applies to all services and activities performed by a state child-protection agency — even during the process to terminate parental rights.

The Connecticut DCF argues in its court papers that the accommodations and access to services required by the ADA don't apply to termination proceedings.

"Any parents who find themselves in our situation should immediately file a disability-rights complaint with the Justice Department and HHS — that's my advice," said Watley.

O'Toole's brief is technical, asserting that the federal trial judge made procedural errors when he dismissed the case without ever hearing from the couple. The couple "have never fully and fairly litigated their [ADA claims] alleging intentional discrimination based on their disability, perceived disability, or and/or with an individual with a disability," O'Toole wrote. "Accordingly, the district court erred in finding that their ADA and Rehabilitation Act claims" had been properly barred from the state court proceedings.

Watley and Hasemann's principle argument hasn't changed in a decade — that the state stole their children. "Like a thief in the night," said Watley, "but with this thief, you know damn well who did it, but you still can't get your children back. "I've experienced death in my life," Watley went on. "I lost my father. I lost my brother. My mother is sick now — but you know you will lose family members. What happened to us — that is unnatural. It is the worst possible experience a father and mother could have. Your children are alive, you know where they are, but you can't see them."

Americans with Disabilities Act Arbitration and Mediation Strategies

Found this article from the Georgia State Bar Association. It is focused on the decision to use a mediator or arbitration when the claim is about ADA discrimination in the context of a job claim (Title III) ; it also speaks about requesting accommodations during the mediation and arbitration. 

Courtrooms, mediation and arbitration offices fall under Title II of the ADA.  Before you go to court, get an ADA Advocate …. Before you go to mediation or arbitration get your accommodations. 

It’s all about protecting your rights and making sure you have the time you need to make the right decision for you, your family and your life.

“When it comes to reasonable accommodations/modifications, creativity is the key and the key question is going to be what accommodation out there allows the person with a disability to reach the same starting line without it fundamentally altering the essential functions of the job, the nature of the program, the activity, or the nature of the business.”  Follows the same for the courtroom.

Donna Drumm completes Guardian Training

On Wed. July 21 Donna Drumm, Esq. attended the Westchester County Bar Association's 7 credit Continuing Legal Education training on: Article 81 Training for Guardians, Court Evaluators and Attorneys of alleged incapacitated persons. Upon approval of her application, Ms. Drumm will be able to be appointed as a legal guardian, court evaluator and engage in defense of alleged incapacitated persons.

This certification will expand the protection of people with invisible disabilities from being deemed incapacitated by the courts and the removal of fundamental rights to conduct their lives.


DRUMM Notes is the blog site for ADA Advocates.

Celebrate the 25th anniversary of the Americans with Disabilities Act! July 26, 2015

FAQs on the ADA click here to

The ADA in a Nutshell:

Q: What is the Americans with Disabilities Act (ADA)?

A: The ADA is the first comprehensive civil rights law that protects people with disabilities from discrimination on the basis of disability. It was passed almost unanimously by Congress and signed into law by President George H.W. Bush on July 26, 1990. The ADA protects people with disabilities from discrimination in all aspects of employment, in access to public services such as transportation and state and local government programs and services, and access the goods and services provided by businesses such as restaurants, stores, hotels and other types of businesses such as law offices and medical facilities. (Source: ADA Network)

Q: Are courthouses covered under the ADA?
A: YES. The ADA consists of five sections or Titles. Title II covers all activities of state and local governments. Title II requires that state and local governments give people with disabilities an equal opportunity to benefit from all of their programs, services and activities. (Source: ADA Network) Examples of these are courthouses (with more than 50 employees).

Q: I have an invisible disability, PTSD, can I request accomodations for my upcoming court appearance? A: YES. Under the ADA "Public entities are required to make reasonable modifications to policies, practices, and procedures where necessary to avoid discrimination, until doing so would fundamentally alter the nature of the service, program or activity provided."

Q: How do I qualify my disability?
A: The courts want to make sure that people who have disabilities are protected from discrimination. Accomodations for physical disabilities, like wheel chair ramps, and parking places designated for the handicapped are commonplace. The same law that required public entities to install these accomodations for persons with physcal disabilities apply to those with invisible disabilities. Your ADA Advocate can help identify your disability, assess if it is covered under the ADA and seek accomodations.

To learn more about the ADA, visit the ADA National Network
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Thank you!