Considering the termination of a high school teacher who underwent hip surgery and the refusal of a hospital to allow a nursing student’s service dog, the U.S. Court of Appeals, First and Sixth Circuits, both affirmed dismissal of the Americans with Disabilities Act (ADA) cases.
In 1996, Nancy Der Sarkisian began working at Austin Prep as a teacher. In 2019, she was assigned to teach ninth grade English that fall, but in August she notified the school that she needed hip surgery and would be out of school for four weeks.
Der Sarkisian was granted leave, but more than five weeks later she emailed the school to inform them that a complication from her initial surgery required a second surgery.
Der Sarkisian’s leave was extended into January 2020, but she needed a third surgery that would have extended her leave for another six months. Her doctor submitted paperwork that Der Sarkisian was substantially limited in her ability to perform several major life activities.
Austin Prep terminated Der Sarkisian, and she sued alleging violations of the ADA. A Massachusetts federal court granted the employer’s motion for summary judgment and the federal appellate panel affirmed.
Der Sarkisian’s claims failed at the first step of the McDonnell Douglas three-step burden-shifting framework, the First Circuit said, because she failed “to demonstrate at least a genuine issue of material fact that she is a qualified individual” under the statute.
In order to be a qualified individual under the ADA, Der Sarkisian needed to show that she possessed the requisite skill, experience, education and other job-related requirements for the position and that she was able to perform the essential function of the position with or without reasonable accommodation.
While Der Sarkisian told the court that a further extension of her leave of absence would have allowed her to perform the essential function of regular, in-person attendance, the court disagreed.
“Der Sarkisian does not develop any argument for why her request for a further extension of her leave was facially reasonable that considers the school’s need to provide continuity and adequacy of instruction in all five of her English classes,” the court wrote. “Nor does she argue that the school faced no risk from the possibility that the substitute teacher who had filled her teaching role would not continue on a per diem basis and the crisis that would result if he left. Nor does she address the school’s legitimate concern with its inability to guarantee its ninth-grade English students high-quality education from a full-time, permanent instructor during the 2019-2020 school year as a result of her leave.”
Her proposal that other faculty—who were already teaching full course loads and subjects other than English—should take on her teaching responsibilities was unreasonable on its face, the court added.
The First Circuit affirmed summary judgment in favor of the employer.
In the Sixth Circuit, nursing student Mia Bennett requested that her service dog, Pistol, be permitted to accompany her while completing a clinical rotation at Hurley Medical Center. Pistol recognizes the symptoms Bennett exhibits before a panic attack and alerts her so that she can take medication.
Hurley agreed to the accommodation. But the first day Bennett brought Pistol to the hospital, one staff member and one patient reported allergic reactions.
The hospital revoked permission for Pistol to accompany Bennett at all times but offered other options, such as providing space for a crate for him on another floor. Hurley also considered other options, but moving nurses with allergies was a challenge because the nurses are union members and their collective bargaining agreement imposes additional requirements when adjusting schedules.
In addition, relocating staff was onerous because the hospital was short-staffed during the COVID-19 pandemic, and certain nurses were assigned to floors where they could provide medical care for the patients on those floors that other nurses could not, so moving nurses impacted patient care.
Bennett sued, alleging violations of the ADA. A district court granted summary judgment in favor of Hurley and the Sixth Circuit affirmed, finding insufficient evidence in the record to show that the hospital’s actions were motivated by her disability.
“[T]he record evidence clearly shows that the decision was motivated by staff and patient complaints of allergic reactions,” the court wrote. “[T]hese concerns are all related to Pistol, rather than [to Bennett’s] panic disorder. A Hurley staff member involved in the decision to exclude Pistol even testified that she did not know what specific medical condition [Bennett] had.”
Reviewing the DOJ’s regulations on how service animals should be accommodated by public entities under the ADA, the court noted that service animals need not be accommodated under every circumstance, including if the entity can show that an individual’s participation in the activities poses a “direct threat to the health or safety of others.”
Hurley reasonably determined that Pistol posed such a threat, the appellate panel found.
“It is undisputed that Pistol caused two allergic reactions on his first day in the hospital, establishing that Pistol created an actual risk of future allergic reactions in staff members and patients who were allergic to dogs,” the court wrote. “The serious allergic reaction of the unit clerk … shows that, in some individuals, this risk could be severe. Moreover, without separating allergic patients and staff from Pistol during [Bennett’s] time in the hospital, these allergic reactions were likely to recur.”
Bennett’s suggestions that Hurley could have moved her to a different floor ignored the fact that she needed to have a faculty member to supervise her and that the hospital did not screen patients for dog allergies, meaning that Hurley did not know which patients would be at risk for an allergic reaction.
“Hurley did not exclude Pistol pursuant to a blanket policy; indeed, it initially permitted him to accompany [Bennett] on her rotations,” the court pointed out. “However, once he caused two allergic reactions on just his first day, the hospital reasonably determined that it could not sufficiently protect allergic patients or staff members from the threat he posed. It specifically assessed whether, based on this actual risk, it would be able to move allergic patients or staff members away from the dog.”
The hospital did not fail to provide Bennett with a reasonable accommodation, the Sixth Circuit said. It also did not fail to engage in the interactive process, as it proposed counter accommodations, precluding the plaintiff’s claim that Hurley failed to participate in the interactive process in good faith.
“To the contrary, Hurley repeatedly engaged with [Bennett’s] suggested accommodations, consulted with medical experts to determine whether they would be feasible and communicated to [Bennett] its concerns with Pistol’s continued presence,” the court wrote.
To read the opinion in Der Sarkisian v. Austin Preparatory School, click here.
To read the opinion in Bennett v. Hurley Medical Center, click here.
Why it matters
The pair of cases from the First and Sixth Circuits provide examples of employers that complied with the ADA’s requirements and were able to end litigation at the early stages as a result.