Ekstrand v. school District of Somerset, No. 09-1853 (7th Cir. Oct. 6, 2009); Loeffler v. Staten Island University Hospital, No. 07-1404 (2d Cir. Oct. 6, 2009)

| Oct 5, 2009 | Daily Developments in EEO Law |

The Seventh Circuit reverses summary judgment in an ADA reasonable accommodation case involving a school teacher with seasonal affective disorder, but with a disquieting concurring opinion. The Second Circuit, in a public accommodations case brought under the Rehabilitation Act, state and New York City law, embraces a recent amendment to the municipal ordinance that safeguards greater rights for plaintiffs.

Ekstrand v. school District of Somerset, No. 09-1853 (7th Cir. Oct. 6, 2009):  A public school teacher of the first grade, suffering from seasonal affective disorder (a form of depression), requested placement in a room exposed to natural light. The employee raised the issue with the school early and often, and two appropriate rooms were admittedly available, but the school never responded to that request (although it took steps to improve lighting, air circulation and noise in her current room).

As the year progressed, the teacher began experiencing symptoms of the disorder: “fatigue, anxiety, hypervigilance, tearfulness, racing thoughts, and trouble organizing tasks. Her anxiety and depression worsened and she began experiencing new symptoms about which she informed the school district.” By October 17, 2005, she took medical leave. The panel summarizes:

“Ekstrand suffered from significant inability to concentrate, organize her thoughts, retrieve words, make decisions, and focus on the needs of her students. She also experienced hypersomnia, racing thoughts, panic attacks, uncontrollable crying, inability to eat, and thoughts of suicide.”

Even during leave, the teacher requested placement in a different room.  By November 28, 2008, she supplied a letter through her psychologist that natural light was the key to her recovery. Eventually, the depression worsened, she began to suffer post-traumatic stress symptoms and by January 3, 2006 she was declared unable to return to work.  She moved to South Dakotand took a teaching position at a state university.

Although the district court granted summary judgment on the plaintiff’s ADA reasonable accommodation claim, the panel reverses (though it affirms summary judgment on the constructive discharge claim). It finds that the plaintiff was a qualified individual (even while she was on leave) because she could have performed the job with the accommodation of being moved to another, brighter classroom: “Ekstrand presented evidence that she ceased being a qualified individual with a disability no earlier than between November 30, 2005 and January 3, 2006, not on November 14, 2005, as the district court found. Moreover, Ekstrand may have remained a qualified individual later still because Ekstrand presented evidence that the school district was
responsible for aggravating her disability.”

The court also holds that, despite her repeated requests for a transfer, the record reflects that the school failed to respond.  The panel nicely summarizes:

“Little hardship would have been imposed in providing Ekstrand an available classroom. Had the school district accommodated Ekstrand with Jacquet’s room, it would have experienced costs associated with switching the items in the two rooms and with performing any necessary readjustments specific to the teachers’ respective curricula. Or had the school district accommodated Ekstrand with the empty room, it would have experienced the costs of moving Ekstrand’s items, plus the costs of switching and readjustment due to the room being needed for a new third-grade section reduced by the probability that creation of the third-grade section
would not occur. We think these admittedly nonzero costs are modest and that Ekstrand presented sufficient evidence for a jury to find them required under the ADA’s reasonableness standard beginning November 28, 2005, when the school district knew that a room with natural
light was necessary to accommodate her. We therefore disagree with the district court that no reasonable jury could find in favor of Ekstrand’s failure-to-accommodate claim.”

A concurring opinion by Judge Evans sounds an off-note:

“From the sparse record in this case I assume that the school District of Somerset has high standards. Its Web site proclaims its motto: Learning Today to Succeed Tomorrow. In a district like this, parents quite naturally take an interest in who is teaching their children. And I can’t imagine that many parents would be too pleased to have their first-graders in a classroom taught by a teacher who, to quote the court’s opinion, suffered from ‘fatigue, anxiety, hypervigilance, tearfulness, racing thoughts, and trouble organizing tasks’ plus ‘inability to concentrate . . . retrieve words, make decisions . . . focus on the needs of her students . . . hypersomnia . . . panic attacks, uncontrollable crying, inability to eat, and thoughts of suicide’ in the fall of 2005. While I can imagine that an employer like UPS might be able to
accommodate a delivery person with these kind of issues, I have a hard time understanding how a school district could do the same for a first-grade teacher. This makes me wonder if Ms. Ekstrand, in the context of teaching, could ever establish that she was a ‘qualified individual with a disability’ under the ADA in the fall of 2005 or that an accommodation that would be necessary to ameliorate her condition would be ‘reasonable.’ This issue deserves, I suggest, a close look on remand.”

I do not understand this separate opinion.  The reason that Ms. Ekstrand suffered these symptoms in the first place (so far as we know, giving all inferences to the plaintiff) was the school’s seemingly unreasoned failure to put her in a sun-lit classroom.  Now admittedly, this may not be the only possibility, and the cause of the plaintiff’s ailments might have originated elsewhere.  Nor need we pile blame on the school, which (the record suggests) was making efforts to accommodate the teacher in other ways. Yet an appellate judge is not a psychiatric or educational specialist, but a reader of records, and the majority (at least) believed that the record bore the inferences suggested above; Judge Evans does not say why he disagrees.  (The suggestion that teachers with depression shouldn’t teach is even harder to understand.  This is the very stereotyping that the ADA forbids in employers, and it is worse yet expressed in a judicial opinion.)

Loeffler v. Staten Island University Hospital, No. 07-1404 (2d Cir. Oct. 6, 2009): The reader is referred to this comprehensive examination of a hospital’s alleged failure to provide signers for two deaf parents.  I point out only that the panel took special note, under the New York City Human Rights Law, that the New York City Council adopted the Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85 (2005), to prevent courts from adopting federal anti-discrimination standards lockstep under the city’s law. Though the panel notes that, in previous cases, the Second Circuit had assumed that the national and local statutes ran in parallel, the amended act upset that precedent:  

“The Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85 (2005) (the ‘Restoration Act’) amended the City HRL in a variety of ways, including by confirming the legislative intent to abolish ‘parallelism’ between the City HRL and federal and state anti-discrimination law:

“The provisions of this [] title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil
and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.

“Restoration Act § 7. There is now a one-way ratchet: ‘Interpretations of New York state or federal statutes with similar wording may be used to aid in interpretation of New York City Human Rights Law, viewing similarly worded provisions of federal and state civil rights laws as a floor below which the City’s Human Rights law cannot fall.’ Id. § 1 (emphasis added).”

The panel quoted and cited Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 66-69, 872 N.Y.S.2d 27, 31 (1st Dep’t 2009) to the same effect.  As this Act tends to be used often in favor of employees in discrimination cases in New York City, it is helpful to know that the Second Circuit has finally embraced it.

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