The Americans With Disabilities Act—Recent Court Decisions

By David A. Warshaw

Attorney at Law

Several recent decisions and settlements illustrate how plaintiffs’ Americans with Disabilities Act (ADA) claims perform in the courts.

One case, in the employment area, resolved late last year. In this case, a University of Michigan professor with a history of back impairments that restricted her mobility settled a disability discrimination claim out of court. The professor, Emily Cloyd, asked the university for some accommodations, including a teaching assistant. In a common scenario, the employer provided the accommodations, but when Professor Cloyd left the campus for England for a research leave, a new department chairman was appointed as her supervisor. Cloyd did not report to work a number of days. Some, but not all, of her absences were due to her disability. The new chairman placed Cloyd on leave, and required her to submit to a medical and a psychological examination before being considered for reinstatement.

Professor Cloyd sued the university for requiring her to undergo the medical examination as a pre-requisite to returning to work, and for not permitting her to discuss her removal before she was placed on leave. The ADA provides that employers can ask employees to submit to medical examinations only when they are consistent with legitimate business purposes, and when they are job-related. In this case, the examination was not job-related. The university agreed to provide Cloyd with a teaching assistant, and it sent her a written apology and paid her $100,000.00.

Another case shows how juries do not tolerate abuse directed toward disabled employees. Joseph Mondzelewski suffered two back injuries when he worked as a meat cutter for Pathmark Stores, a Delaware company. Mondzelewski filed a worker’s compensation claim after his doctor gave him some lifting restrictions. He also asked for reasonable accommodations. Pathmark retaliated against Mondzelewski by placing him on a "punishment shift" (9:30 a.m. to 6:00 p.m.) for four straight months, whereas other employees were assigned to it only occasionally. Mondzelewski also alleged that he was harassed at work. The district court dismissed his suit, but that decision was reversed on appeal. The jury awarded Mondzelewski $250,000 in compensatory damages for his ADA claims, $400,000 for his retaliation claim, and $200,000 for his Delaware law claim of retaliation. The employer is appealing the awards, however.

In January of this year, two deaf men, Jeremy Fass and William Darnell, settled their lawsuit, filed in 1997, against Wal-Mart. They had applied for jobs at a Wal-Mart store in Tucson, Arizona. Wal-Mart declined to hire them. Fass and Darnell alleged that Wal-Mart refused to hire them because of their disability and their request for accommodations. In a settlement agreement, Wal-Mart agreed to pay $66,250 each to Fass and Darnell. It also agreed to provide them with pagers that can deliver messages that are typically provided over the store’s public address system. There will also be a two-week training program that will include a certified sign-language interpreter who will be able to translate training videos and computer-based training programs. Wal-Mart agreed to provide interpreters for Fass and Darnell for staff meetings and any meetings to discuss job performance, and at other times as Fass and Darnell request. Wal-Mart also agreed to provide ADA training for employees responsible for hiring.

In a case involving access to public accommodations, Kornel Botosan sued Menally Realty in San Diego, because he was unable to access the real estate office parking lot. Menally Realty offered to settle the suit for $1,500, but failed to tell Botosan that it was reconstructing its parking lot to make it accessible to persons with disabilities. Botosan rejected the offer because it did not include any repairs to the parking lot. Menally Realty decided to fight Botosan in court. The federal court awarded Botosan $1,000 for the ADA violation, and $27,000 in attorney’s fees. Had Menally Realty settled the case earlier, with a promise to re-design the parking lot, Botosan would have accepted only $2,800 for attorney fees.