[Missouri-l] Fw: Obama Judicial Nominee Draws Disability Opposition

[Chip Hailey]

----- Original Message ----- 
From: "ADA Watch/NCDR" <info at ncdr.org>
To: <chiphailey at cableone.net>
Sent: Wednesday, April 29, 2009 3:39 PM
Subject: Obama Judicial Nominee Draws Disability Opposition


> News Release:
>
> Obama Judicial Nominee Draws Opposition From Disability Community
>
> Judge Andre Davis' Record Reveals Bias Against Workers with Disabilities
>
> April 29, 2009
>
> Contact: Jim Ward, President
> ADA Watch/National Coalition for Disability Rights (NCDR)
> Washington, DC
> www.adawatch.org
>
> A national nonpartisan coalition of disability, civil rights and social 
> justice organizations today announced their opposition to the confirmation 
> of Judge Andre Davis, President Obama's pick for a lifetime seat on the 
> United States Court of Appeals for the Fourth Circuit.
>
> ADA Watch and the National Coalition for Disability Rights (NCDR) are 
> opposing Davis because his record as a district court judge in Maryland 
> reveals a bias against workers with disabilities. The group stated that 
> the Americans with Disabilities Act (ADA) is critical to the efforts of 
> people with disabilities to obtain and maintain employment and to become 
> fully participating members of their communities.
>
> The organization's president, Jim Ward joined other leaders at the White 
> House last week and informed the Administration of their opposition. Ward 
> stated today, "The current leadership in Congress and the White House have 
> promised to select judicial nominees who understand the challenges facing 
> working Americans and who are committed to core value of equal justice. We 
> believe that in the area of disability rights this nominee's record does 
> not meet these baseline criteria and, therefore, we are opposed to Judge 
> Davis's elevation to the Fourth Circuit and will mobilize our membership 
> in this regard."
>
> ·   Judge Davis has repeatedly imposed inappropriately stringent standards 
> that have prevented individuals with disabilities from enforcing rights 
> under federal antidiscrimination laws, particularly in the area of 
> employment.
>
> ·   He has made it exceedingly difficult for people to show that they are 
> individuals with disabilities entitled to the protections that Congress 
> provided in the ADA.
>
> ·   He has incorrectly imposed procedural hurdles on ADA plaintiffs that 
> are contrary to the ADA's requirements.
>
> ·   He has applied cramped interpretations of law to reject the 
> discrimination claims of workers with disabilities.
>
> ADA Watch is a national, cross-disability coalition of hundreds of 
> disability, civil rights and social justice organizations united to defend 
> and advance the civil rights of people with disabilities. The National 
> Coalition for Disability Rights (NCDR) is the national association of 
> state disability coalitions. For nearly a decade, ADA Watch/NCDR's 
> Campaign for Fair Judges has informed the disability community and the 
> general public regarding judicial nominees that pose a threat, based on 
> their public records, to civil rights protections under the Americans with 
> Disabilities Act (ADA) and other disability rights laws. While not all of 
> our national and state coalition partners take positions on judicial 
> nominees or share this position, a majority of our Board of Directors has 
> voted to formally oppose the confirmation of Judge Davis.
>
> Excerpts from letter to White House with legal research and analysis by 
> the Bazelon Center for Mental Health Law:
>
> The White House has asserted that Judge Davis has a very balanced track 
> record in disability cases.  We appreciate that Judge Davis has reached 
> decisions favorable to the plaintiffs in cases involving issues such as 
> physical access to courthouses and housing developments, and effective 
> communications with medical providers. These cases do not, however, 
> assuage our concerns about Judge Davis's record in the area of employment 
> discrimination, in which people with disabilities fare particularly 
> poorly.[1]  It is in that context that the vast majority of disability 
> discrimination cases are brought.  As such, it is in that context that we 
> are particularly concerned with ensuring that our judges respect the civil 
> rights of individuals with disabilities.
>
>     We could find only one published decision, in nearly 14 years on the 
> bench, in which Judge Davis ruled in favor of the plaintiff on the 
> substance of an Americans with Disabilities Act (ADA) employment 
> discrimination claim.[2]  A number of the decisions in which he ruled for 
> the employer are deeply troubling in ways that relate to core disability 
> community concerns:
>
> In Rose v. Home Depot U.S.A., Inc., 186 F. Supp.2d 595 (D. Md. 2002), 
> Judge Davis set out extraordinary hurdles for a person to demonstrate that 
> he had a disability.  The judge refused to recognize Gary Rose's 
> disability because he "did not follow the proper protocol in determining 
> whether he had vasomotor rhinitis" and "did not receive a proper treatment 
> plan for his impairment."  Nothing in the ADA requires a person to have a 
> proper diagnosis or a treatment plan in place for his disability in order 
> to receive protection from discrimination.  Judge Davis, however, found 
> that Rose should have followed up with a different doctor, undergone a CT 
> scan to rule out the possibility of a different diagnosis, and 
> "consistently followed a treatment regime" in order to establish his 
> disability. This type of analysis is particularly problematic for 
> individuals with disabilities that are challenging to diagnose accurately 
> and treat effectively, including many individuals with
> psychiatric disabilities.  The notion that individuals should be denied 
> protection under the ADA until they have spent months or years trying to 
> obtain effective treatment to control the effects of their disabilities is 
> a perversion of the ADA, and is certainly not suggested by the decisions 
> of either the Supreme Court or the Fourth Circuit.[3]
>
> In Fitch v. Solipsys Corp., 94 F. Supp.2d 670 (D. Md. 2000), Judge Davis 
> held that the ADA's "regarded as" prong did not protect someone who is 
> repeatedly referred to as a "cripple" by his employer. Keith Fitch 
> presented evidence that he was referred to by his employer as a "cripple" 
> on multiple occasions due to a heart condition that limited him from 
> lifting more than forty pounds.  Judge Davis concluded that this was not 
> sufficient to show that he was regarded as disabled in the context of a 
> work environment where "employees regularly used derogatory nicknames for 
> each other."
> ·   In Martell v. Sparrow's Point Scrap Processing, LLC, 214 F. Supp.2d 
> 527 (D. Md. 2002), Judge Davis held that the "regarded as" prong did not 
> protect someone who is denied a job, even though the employer did not hire 
> the applicant precisely because of his "abnormal hearing."  Robert Martell 
> presented evidence that he was regarded as substantially limited in 
> hearing and working when an employer withdrew a job offer after learning 
> that he had a hearing impairment, even though his hearing aids allowed him 
> to recover "virtually all of his auditory capacity."  In a holding not 
> required by Fourth Circuit authority, Judge Davis found that Martell was 
> not regarded as substantially limited in either hearing or working, even 
> though the employer explicitly admitted that it refused to hire Martell 
> because it believed that his "abnormal hearing" would create a danger in a 
> noisy industrial setting.
>
> ·   In Campbell v. Federal Express Corp., 918 F. Supp. 912 (D. Md. 1996), 
> the plaintiff, an applicant for a courier position whose left hand had 
> been injured and lacked flexion, did not challenge Federal Express's 
> refusal to hire him with the federal Department of Transportation. Judge 
> Davis held that the ADA requires a person bringing an employment claim 
> under the ADA to exhaust an administrative review process with another 
> agency, in this case the DOT, in addition to the Equal Employment 
> Opportunity Commission (EEOC) where an employer relies on that agency's 
> regulations to support its defense.  There is no requirement in the ADA or 
> its regulations that plaintiffs in employment discrimination cases do so, 
> only that they first seek relief from the EEOC before filing in federal 
> court.
>
> ·   Finally, Judge Davis requires even pro se ADA litigants to overcome 
> significant hurdles in exhausting their claims before filing. In Walton v. 
> Guidant Sales Corp., 417 F. Supp.2d 719 (D. Md. 2006), Judge Davis 
> dismissed the disability employment discrimination claim of a pro se 
> plaintiff for failure to exhaust administrative remedies.  Judge Davis 
> ruled that, even though the EEOC itself considered the plaintiff to have 
> filed a sufficient administrative charge within the statute of 
> limitations, he had not.  Judge Davis also ruled that equitable tolling 
> should not apply.  Equitable tolling applies when a pro se plaintiff 
> misses a charge filing deadline due to reliance on misleading or incorrect 
> information from the EEOC.  Judge Davis held that the plaintiff here had 
> not met this standard even though the plaintiff had contacted the EEOC on 
> numerous occasions to inquire about the status of his administrative 
> charge, was initially sent the wrong form by the EEOC,
> alleged that he timely filed the corrected form that he was sent after 
> informing the EEOC of their mistake, and was helped by the EEOC to 
> complete another charge after the deadline because they could not find his 
> earlier form and had experienced problems with their data management 
> system during the relevant time period.
>
> These holdings demonstrate a troubling misunderstanding of Congress's 
> intent that the ADA offer significant protections from discrimination to 
> millions of workers with disabilities.  Our concern is not diminished by 
> the enactment last year of the ADAAA, which restored the ADA's definition 
> of disability to the broad scope intended by Congress and wrongfully 
> restricted by decisions such as Judge Davis's. These decisions, 
> erroneously decided as they are, leave us fearful that Judge Davis may 
> similarly misinterpret last year's amendments.
>
> The selection of judicial nominees is extraordinarily important to our 
> community given the serious obstacles that individuals with disabilities 
> have faced in trying to enforce their rights in the courts, particularly 
> in the context of workplace discrimination.  The Fourth Circuit is of 
> foremost concern to us, since that court is now closely split and in 
> recent years has decided many significant disability rights decisions by 
> divided panels.  More than any other circuit, the Fourth Circuit has the 
> potential to undergo significant balance-shifting when its vacant seats 
> are filled.
>
> The ADA's protections are critical to the efforts of people with 
> disabilities to obtain and maintain employment and to become independent 
> and fully participating members of their communities.  We are very 
> concerned that Judge Davis's elevation to the Fourth Circuit will do 
> little to ensure that their rights are protected.  We hope that you will 
> recognize that and will take seriously the concerns of people with 
> disabilities in the Judiciary Committee's consideration of Judge Davis's 
> nomination.
> --------------------------------------------------------------------------------
>
> [1] See, e.g., Ruth Colker, Winning and Losing Under the Americans with 
> Disabilities Act, 62 Ohio State L.J. 239 (2001) (documenting pro-defendant 
> trial court outcomes in 94% of ADA employment discrimination cases, and 
> appellate court reversals of pro-defendant outcomes in only 12% of these 
> cases as compared with reversals of pro-plaintiff decisions in 42% of 
> cases and reduction of damage awards in an additional 17.5% of cases).
>
> [2] Additionally, we have identified two unpublished decisions in which 
> Judge Davis ruled in part for a plaintiff and in part for an employer in 
> cases involving disability-based employment discrimination claims.
>
> [3] In Rose, Judge Davis relied on a summary affirmance in Tangires v. The 
> Johns Hopkins Hospital, 79 F. Supp.2d 587, aff'd, 230 F.3d 1354 (4th Cir. 
> 2000), in which the court found that a woman with asthma was not disabled 
> because she had failed to take steroid medication recommended by her 
> doctor.  A summary affirmance affirms only the judgment and not the 
> reasoning by which any particular aspect of the decision was reached. 
> Mandel v. Bradley, 432 US 173, 176 (1977).  Additionally the type of 
> reasoning employed by Judge Davis in Rose, and by the court in Tangires, 
> has been the subject of much criticism by courts and commentators.  See, 
> e.g., Nawrot v. CPC Int'l, 277 F.3d 896, 907 (7th Cir. 2002) (courts 
> should not "meander in 'would, could, or should-have' land" and should 
> "consider only the [mitigating] measures actually taken and consequences 
> that actually follow").
>
>
>
>
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