Edge-centric

The material below is from a mass email sent out by ADAWatch on Monday, which I mentioned in my blog entry that day. I have been waiting for some disabliity groups to put on their websites (or release in a press release) some analysis of Judge Alito's disability rights record. People For the American Way put out an analysis last week that incuded 3 disability rulings -- in PDF format. PDF is inaccessible to most blind folks, so here's the PFAW analysis in accessible format.

No disability group has posted anything, I'm posting the ADAWatch email info so folks can get at it.

I'm the first to admit I don't really have the skill to interpret it. My sense is that Alito is not all bad on disability rights. My sense is that like most judges he really doesn't see disability rights as any kind of a whole. As far as I can tell, Sam Alito never met a corporation that he didn't rule in favor of. And that's truly bad news for disability rights.

On other stuff? The thing about "disability rights" is that it is so chopped up and so generally misunderstood by the public (and judges are part of the public, although they like to project the aura that they're above all the public debate) that it's quite possible -- indeed, probable -- that a judge would rule in a way that would betray a contradictory approach to disabiilty rights, if one could call it an 'approach' at all.

My feeling about it is this: on other issues -- the right to privacy, gay rights, environmental rights -- groups are out there analyzing stuff. I want to see some of that same analysis from disability rights groups about Alito.

But lacking that, I still think the information below should be public. So here it is. This analysis was done, said the ADA Watch email, by Claudia Center. Claudia Center is an attorney with the Employment Law Center in San Francisco.

Highlights of Alito's Disability Rights Record

by Claudia Center 

Definition of "Disability":

In Fiscus v. Wal-Mart Stores, 385 F.3d 378 (3d Cir. 204), Judge Alito joined a unanimous and widely publicized opinion following Bragdon and holding that cleansing blood and eliminating bodily waste is a major life activity. "A major life activity need not constitute volitional or public behavior; it need not be an activity that is performed regularly or frequently; but it does have to have importance to human life comparable to that of activities listed in the regulatory examples. We also read the Supreme Court to hold that a substantial limitation of a major life activity does not mean impossibility or even great physical difficulty; rather, substantial limitation is weighed in a broad, practical sense, and may include non-physical factors."

In Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d Cir. 1998), Judge Alito wrote a thoughtful and unanimous opinion reversing the district court's opinion, which held that the plaintiff failed to present a triable issue regarding whether he was substantially limited in working. The court ruled that a supermarket meat cutter with limited education, training, and skills created triable issue of fact on the question of whether he was substantially limited in working due to his back injury. The Third Circuit rejected the District Court's analysis, which excluded consideration of the plaintiff's education and skills.

In Kelly v. Drexel Univ., 94 F.3d 102 (3d Cir. 1996), Judge Alito joined a unanimous opinion affirming summary judgment against an employee who had moderate difficulty walking and climbing stairs due to hip injury. "While we are not unfeeling with respect to Kelly's condition, still we simply cannot regard it as a disability under the ADA as it does not substantially limit him in the relevant major life activity, walking."

In a unanimous unpublished opinion written by Judge Alito, Polini v. Lucent Technologies, No. 03-2285, 100 Fed.Appx. 112, 2004 WL 1292554 (3d Cir. June 10, 2004, unpublished), the Third Circuit held that a recalled worker rejected based on health exam finding her functionally monocular created a triable issue of fact that she was "regarded as" disabled.

An unpublished case called Katekovich v. Team Rent-a-Car, No. 00-2389, 36 Fed.Appx. 688, 2002 WL 1288766 (3d Cir. Apr. 19, 2002, unpublished), is perhaps the worst disability rights decision associated with Judge Alito. In an unpublished opinion written by Judge Barry and joined by Judge Alito, the Third Circuit upheld a grant of summary judgment in favor of the employer, finding that the plaintiff had no substantial limitations. The plaintiff's FMLA claim is also unfairly dismissed, in a passage that directly misstates the burden of proof. The underlying decision and its affirmance appear to be grossly unfair to the employee. The employee had sleep disorders and depression, informed her supervisors, and entered the hospital. Three weeks after she began her leave of absence, and one week after her release from the hospital, the plaintiff was terminated.

Discrimination:

In Smith v. Davis, 248 F.3d 249 (3d Cir. 2001), Judge Alito joined a panel opinion reinstating a case brought by an African-American employee with alcoholism. The court found that the plaintiff created triable issues of fact under the ADA and Title VII.

In Deane v. Pocono Medical Center, 142 F.3d 138 (3d Cir. 1998), Judge Alito joined an en banc opinion written by Chief Judge Becker concluding than a "regarded as" plaintiff had created triable issues of fact on her discrimination claim. The court declined to determine whether a "regarded as" plaintiff is entitled to reasonable accommodation.

In Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998), Judge Alito concurred in panel decision affirming the dismissal of a complaint challenging a two-year cap in long-term disability benefits. In concurring, Alito relied solely on the ADA's "safe harbor" provision as construed by Betts, and expressly distanced himself from the majority's reasoning regarding inter-disability discrimination.

Reasonable Accommodation:

In Shapiro v. Township of Lakewood, 292 F.3d 356 (3d Cir. 2002), Judge Alito wrote a unanimous opinion holding that an internal transfer policy was no bar to a worker's claim for failure to provide a reasonable accommodation transfer, citing Barnett.

In Dewyer v. Temple University, Case No. 03-1495, 89 F3d.Appx. 811, 2004 WL 503839 (3d Cir. Mar. 15, 2004, unpublished), Alito joined an unpublished per curium opinion affirming the district court's refusal to submit failure to accommodate and failure to engage claims to the jury. One judge dissented, stating: "I think for quite some time Temple and Ms. Blanton treated Ms. DeWyer very shabbily and that a reasonable jury could have found that during that period of time DeWyer was categorically denied the accommodation of a handicapped parking space which could easily have been made available to her."

Interactive Process:

In Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997), Judge Alito joined an opinion announcing for the first time the Third Circuit's rule on the interactive process. With respect to a plaintiff seeking a reasonable accommodation transfer, the court held that the employer "had the duty to make reasonable efforts to assist [the plaintiff], to communicate with him in good faith, and to not impede his investigation." However, because the plaintiff failed to identify an appropriate vacancy during litigation, summary judgment was affirmed.

Direct Threat:

In Doe v. County of Centre, Penn., 242 F.3d 437 (3d Cir. 2001), Jude Alito joined a lengthy and important panel opinion overturning a county foster care policy which excluded the placement of foster children with a family that included a severely physically disabled HIV-positive adopted son.

Judicial Estoppel:

In Motley v. New Jersey State Police, 196 F.3d 160 (3d Cir. 1999), Judge Alito joined an opinion clarifying the much-criticized McNemar decision in light of Cleveland. However, two of the three judges, including Alito, concluded that the plaintiff failed to provide a reasonable explanation for his inconsistent statements.

Appropriate Public Education:

In Ridgewood Board of Educ. v. N.E., 172 F.3d 238 (3d Cir. 1999), Judge Alito joined a lengthy and fact-intensive opinion overturning a lower court's decision in favor of a school board. The opinion held that: the IDEA imposes a higher standard than "more than a trivial educational standard"; compensatory damages under the IDEA do not require bad faith or egregious circumstances; and evidence of failure to identify disabled child and to provide appropriate public education created triable issue on the Rehabilitation Act claim.

In C.M. & R.M. v. Board of Education of the Union County Regional High School Dist., No. 04-1407, 2005 WL 8999927 (3d Cir. Apr. 19, 2005, unpublished), Judge Alito joined a per curium unpublished decision which reinstated certain IDEA claims, finding that they were not moot despite the child's graduation from high school. However, two judges including Alito upheld the dismissal of the damages claims, concluding that the procedural shortcomings alleged did not cause the type of educational harm required.

Stadium Accessibility:

In Caruso v. Blockbuster-Sony Music Entertainment Centre, 193 F.3d 730 (3d Cir. 1999), in an opinion written by Judge Alito, the Third Circuit ruled that DOJ Standard 4.33.3, requiring "comparable" lines of sight, does not require sightlines for wheelchair users over standing spectators. Because the court concluded that the original standard was not intended to reach the issue of whether sightlines over standing spectators are required, the DOJ was not permitted to resolve that issue through sub-regulatory guidance without notice and comment. However, the Third Circuit definitively rejected the stadium's argument that the "equivalent facilitation" provision could excuse its failure to provide wheelchair access to the lawn area.

Flagged Scores on Standardized Testing:

In Doe v. National Board of Medical Examiners, 199 F.3d 146 (3d Cir. 1999), Judge Alito joined a troubling decision written by Judge Becker vacating a district court's injunction blocking the reporting of Medical Board scores "flagged" for disability accommodations. Vacating a preliminary injunction, the Third Circuit reasoned that the provision in Title III explicitly addressing examiners, 42 U.S.C. ? 12189, and the related regulation, 28 C.F.R. ? 36.309(b)(1)(i), do not bar flagging. The panel disregarded Title III's main provision barring discrimination, 42 U.S.C. ? 12182, under the principle that the specific governs the general. Further, even if the general antidiscrimination provision applied, the panel held that there was no reasonable likelihood that flagging violates that provision.

Obligations of State Education Department:

In Beth V. v. Carroll, 87 F.3d 80 (1996), Judge Alito joined a unanimous opinion written by Judge Sloviter holding that an express right of action exists under the IDEA to challenge a state education department's failure to promptly investigate and resolve complaints.

Obligations of Federal Agency:

In ADAPT v. U.S. Dep't of Hous'g and Urban Dev't, 170 F.3d 381 (1999), Judge Alito joined a unanimous three-judge panel decision written by Judge Nygaard holding that the alleged failure of HUD to enforce FHAA and related regulations is not subject to judicial review, given the presumption against judicial review of agency decisions regarding investigations and enforcement actions.

Disability Class Actions:

In Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999), Judge Alito wrote a unanimous opinion vacating determinations by the District Court and imposing problematic standards for a class of diabetic prisoners. The court held that individualized assessments were required to determine Eighth Amendment violations and the rejected qualified immunity defense, requiring remand.

Zoning Determinations:

In Lapid-Laurel v. Zoning Board of Adjustment, 284 F.3d 442 (3d Cir. 2002), Judge Alito joined an opinion affirming the district court's grant of summary judgment against a real estate developer who sought unsuccessfully to gain approval for a 95-bed senior facility. The court ruled that: an "interactive process" is not required between the zoning board and the petitioner; and judicial review is limited to the administrative record.