Good day ladies and gentlemen, and welcome to the ADA Case Law Update conference. At this time all participants are in a listen only mode. Later, we will conduct several questions and answers session and instructions will follow at that time. If you require assistance during the call, please press star then 0 on your touchtone telephone. As a reminder this conference is being recorded. I would now like to turn the conference over to our host of todays conference Ms. Robin Jones. Ms. Jones, you may begin.
Thank you and welcome everyone to this today''s session. I am glad everyone was able to join us. I think you will find that this topic today and the materials that will be presented by our speakers will be very useful for you and the work that you do and give you some good insight into what is happening in the case law arena on a national basis. This program is the first of the new year for us under our project and that is the 2008/2009 year which starts in October of 2008 and will end in September of 2009. Today''s session is being brought to you by the regional network of ADA centers of which the Great Lakes ADA Center is your host today. But this program is a collaborative of all ten centers across the country. If you are not familiar with the ADA centers across the country, you should go to our centralized website of www.adata.org and by there you will be able to locate the center that serves your geographic area. We also share an 800 number nationally, and if you call 800-949-4232 both voice and TTY, you will also be able to connect to the center that serves your particular geographic area. This session is being recorded today. We also have individuals who are connecting to us via real-time captioning. So we have a multiple means of which people are getting the information. I hope everyone was able to get access to the materials for today''s session. We do apologize that they were posted a little later than normal, but sometimes there are things do get in a way and preclude us from being able to have them as early as we might want them and hopefully you were able to get them before the session. If not, they are posted to the website and you should be able to go into and log into your account and be able to draw down those materials at this time or at the conclusion of this session. A recording of this session as well as a written transcript of this session will also be posted to the ada-audio.org website in the future. If you missed something and you would like to review it or go back to it. So without further ado I am going to go ahead and introduce our speakers. We have two speakers today who are joining us. I will be introducing them and I will then be turning over the session to them. As you heard from the Operator there will be more than one opportunity today to ask questions. So we invite you as it is indicated that is time to ask questions about the specific issues or topics that our speakers are covering that you take an opportunity to have a dialogue with our speakers at that time and listen to the instructions that are provided by the Operator. So I will go ahead and start here and I am going to first introduce William Myhill. He has over 18 years of professional experience in law and education. He is with the Burton Blatt Institute at Syracuse University. He also has collaborated with a number of service providers with a diverse population of disabilities as well as cultural and linguistic differences throughout both research, teaching and advocacy in the United States as well as abroad. He has a lifetime of personal experience with family disability and is a board member of the Onondaga Community Living, a service agency providing individual vocational and residential support for persons with intellectual disabilities. Formerly he served for 12 years as a special education teacher, collaborating within multidisciplinary teams to facilitate and implement individualized education programs for children having a diverse special needs in the education arena. As a Research Associate, he overseas disability law and policy research initiatives and collaborate on numerous grants and projects. He is a Project Director for grants from the National Institute for Disability and Rehabilitation Research within the Department of Ed. IT Works which is a project in its final year identifying barriers and facilitators and testing strategies to improve hiring, retention, advancement, and wages of individuals with disabilities using IT in media, technical support and business careers. And the Demand-side Employment Placement Models project utilizing scientifically rigorous and evidence-based methods to develop, identify and evaluate employment demand-side modules. He is also an Adjunct Professor of Law and he oversees Burton Blatt Institute Law research assistants and supervises law students research on independent study and writing credits projects. So he also directs legal analysis of ADA cases and develops consumer friendly briefs to support educational initiatives one of our counterparts the Southeast Disability and Business Technical Assistance Center. He has also done his own personal research in the ADA implementation, special ed, accessible IT and telecommunications, distance education, youth-to-work transition and invisible disabilities and universal design. So very vast and broad background and experience. Phoebe Ball is joining us today from a little bit different part of the country. She is down in Florida at the present time however she has worked in many different areas of the country. She is an attorney licensed in Massachusetts, Iowa, and Florida. So she is flexible, she can move around in that regard. Currently, she works as a staff attorney with the Self-Determination Team at the Advocacy Center for Persons with Disabilities, Inc which is Floridas designated protection and advocacy agency. The Self-Determination Team that she works with seeks to expand opportunities for person-centered planning, economic self-empowerment, expanding access to alternatives to guardianship, reducing occurrences of abuse and neglect and exploitation in the community, and expanding access to voting rights. She has been with Advocacy Center since the spring of 2007. Before then she worked with the Law, Health Policy and Disability Center at the University of Iowa on a number of grant funded projects that were geared towards advancing the economic, social, and civic empowerment of people with disabilities. And prior to that experience, she was active in the Independent Living Movement as a center for independent living employee and later as a board member. She graduated from Northeastern University School of Law in 2003. So I think that you will see by the background of both William and Phoebe that we got some people here that have been working in this arena, have had firsthand experience assisting people and exercising their rights as well as conducting research and tracking what is happening nationally as well as in the local areas where they both come from. So I am pleased that we are able to have them join us today for this particular session. And I am going to go ahead and turn over the telephone to both Phoebe and William at this time. So, go right ahead Phoebe and William.
Thank you very much Robin. It is a pleasure for me to be able to participate in this particular discussion today. And thank you to the whole national network of DBTACs and the listeners today on this particular call. As mentioned, I work at the Burton Blatt Institute at Syracuse University. And Burton Blatt was a professor here of special education and he is best known for, through his working in a sense sneaking into institutions here in this part of the country during the ''50s and ''60s with a conspirator Fred Kaplan who wore what was at the time apparently some kind of a secret camera on his belt, into the back wards of these large institutions like Willowbrook in New York and took photographs of the deplorable conditions which ultimately led to the closing of these large institutions in the North East and I think spurn it across the country. Let me pass this to Phoebe.
Hi, everyone this is Phoebe Ball and thank you Robin for that great introduction. As Robin noted I worked for the protection advocacy agency for Florida the Advocacy Center for Persons with Disabilities, as a staff attorney on the Self-Determination Team. William and I actually used to work together long ago back in Iowa, so I am honored that he invited me to join on this call to talk about the latest case development in the ADA. As far as the protection advocacy organizations for those of you who are not familiar, there is a protection and advocacy organization in every state that use its ability to advancing the quality of life in the equality and self-determination in freedom of choice for persons with disabilities. And that is part of our mission statement here at the Advocacy Center. If you would like to find out more about the P and A in your state, you can call our national organization which is the National Disability Rights Network and their number is 202-408-9514. And of course folks here is Florida are welcome to call the Advocacy Center if they feel that we might be of any service to them.
Alright, to get started today, this is William again. We thought it would be useful to quickly just summarize the developments that will be taking place due to the fact that the President has recently signed the ADA Amendment Act of 2008. We will not go into any great detail with regards to this because we understand that Andy Imparato recently did a web conference for this network but we think it is going to be important in presenting what we are going to discuss today. So there are, we look at there being six major shifts that are going to take place under this new amendment. The first one is the fact that the Congress has rejected the holding in the Supreme Court cases of the Sutton case and the Toyota case. So we are talking about here rejecting the idea that mitigation should be considered in terms of determining whether someone is substantially limited in a major life activity. Mitigation is out. For Toyota, Toyota held that the term substantially in terms of identifying disability was a standard that needs to be interpreted strictly to create a demanding standard for qualifying as disabled. That has also been rejected by this new amendment. So this is the beginning of opening up to more broadly construing this understanding a disability. Phoebe, you want to add to that?
Yes, actually I would like to William. Tom Harkin who is a Senator from Iowa who was the sponsor, key sponsor of the original ADA and also the Amendments Act in the Senate had a great quote about what the ADA Amendments Act is supposed to do and I just thought I will share that with everyone. Harkin said, This Bill better defines who Congress intends to meet the definition of disabled, it clarifies that mitigating measures such as medication may not be taken into account. It provides guidances what is a major life activities and most critically it lowers the threshold for how limiting a condition must be and insist that courts interpret the ADA broadly. For all these reasons, this Bill returns the focus of the ADA to where it was meant to be and whether a person with a disability is being discriminated against. In other words, a lot of the cases up to this point before the passage of the ADA Amendments Act for those of you that are familiar with the case laws, a lot of cases don''t even get off the ground because the courts find that the individual does not have a disability under the standard. And so this Bill, I think, will make it so that folks can at least get pass that threshold question of whether or not they have a disability and courts can begin to address the question of whether or not the individuals have been discriminated against as persons with disabilities.
Well, I would add that to the Amendment, specifically states with this regard that Congress sees that the primary objective of attention in cases should be whether entities covered under the ADA have complied with their obligations rather than focusing on as Phoebe pointed out, the construction of who has a disability. Another thing that we would like to point out is with regard to regarded as claims, when a person is making the claim that they are being regarded rightly or wrongly by an employer as to whether they have a disability, that also has to encompass the requirement that the person is regarded as being substantially limited in a major life activity. The Amendments get rid of that language. So whether or not a person gets substantially limited that is no longer something to be considered, it is no longer an element to determine whether someone is regarded as disabled.
Right and that kind of eliminates what would seems to be a bit of a paradox, which is that you were only seen to be regarded as having a disability if the employer who had you know allegedly discriminated against you also had assumed that you were limited, substantially limited in a major life activity. So in other words, they didnt just have to perceive you as having X impairment or this or that disability, they also had to have some idea of how that limited you in a major life activity which obviously was a pretty high burden of proof.
Another point that we wanted to make here is that the language as regards to how the discrimination may take place is being changed from discrimination because of a disability to discrimination on the basis of disability. And Phoebe and I were discussing this just today, we see this as trying to account in part for the idea that under the Rehabilitation Act previously and it has been interpreted in this particular way by some courts under the ADA that disability must be the sole reason for the discrimination. And this particular language seems to be shifting that focus to merely looking at disability as a motivating factor and discrimination and not the sole reason. Another thing to point is with regards to major life activities. Last year at this time, Barry Taylor did a great job of reviewing a lot of the different cases that were finding and identifying different types of major life activities that were not originally articulated in the statute. The statute provided a list of suggested major life activities and specifically stated that it was not a complete list, that there would be other ones. So over the course of time since the original ADA was passed, the courts have added to that list but not necessarily in a consistent manner. So you might have one Circuit adding sleep and another Circuit adding learning and not necessarily consistency. So with regards to the ADA Amendments, we see a number of these things that were not previously in the ADA that have been added as major life activities. Ones that I noticed are caring for one''s self, eating, sleeping, walking, standing, concentrating. And a focus upon things like bodily functions like bowel and bladder functions and circulatory functions which I think will speak to the need for protecting persons who have heart disease and other types of diseases that specifically impact those bodily functions. Anything you would add, Phoebe?
No, I think that is absolutely right and I think that one thing to point out is that, that in some ways limited which cases we are going to be addressing today because obviously with this major change in the law, cases and there were a lot of them, there are always a lot of these kind of cases they go into a really specific examination of what is a major life activity, whether or not the person has a disability. Disability again that threshold question, we will not really going to address a lot of those today simply because it is going to be a whole new ball game with the passage of the ADA Amendments Act. And so I think it will be very interesting to see how the courts deal with these questions next year but a lot of that is sort of unanswered questions it just has been passed and wont be in effect until January.
The last item I like to point out with regards to the Amendments are that it does specifically point out that there would be no accommodations necessary for persons who are regarded as having a disability. That is a clarification for the Circuits which have begun to split on this particular issue. I think it is an interesting change and I am not sure it is exactly the right change but it is an understandable way to end the confusion. What I wonder about and maybe you have a better sense of this than me Phoebe, is the idea that a person who is not necessarily disabled but regarded as having a disability might be discriminated against based upon those misconceptions and fears and stigma associated with regarded as disability such that the types of accommodations that might be appropriate could be changes in policy in an employment situation that would affect the rest of the work place towards people who have certain types of conditions. Your thoughts Phoebe?
Well, I think that is right. I think again this being such a new Bill or new law rather, it is very hard to say how is that going to come out. The Amendments Act does clarify at least to my understanding, that if a person is making an allegation under the regarded as prong, that they dont, that they are not entitled to an accommodation because they do not actually have a disability. On the other hand, if you point out if someone is regarded as having a disability that may lead to differences in treatment by their co-workers, different things like that. And so I think that, that may require some kind of a response on the part of an employer, whether or not that response would be defined specifically as an accommodation or not or if it would fall under some other category I think is very difficult to ascertain at this point. And again, I think it will be an interesting discussion next year once we see how courts have addressed that.
Great, so we are moving along here and if you are looking at the power point slides that were provided, you might want to turn to the 2nd one, where we list out the major topics for discussion today. In particular one, the first is retaliation, we are then go to pretext, and the third major area is reasonable accommodations and interactive process. And if you want to add to your list there a fourth bullet, we are going to try to get some of the issues of web accessibility under Title III. Since this time last year Barry Taylor was talking about the developments in the certification of the class in the NFB v. Target case and there have been some significant changes over the last year that maybe worth talking about. So, to go ahead and get started, if you are looking at the power point again, you turn to the 3rd one. Generally in terms of retaliation, the principle generally is that employers cannot fire or demote or suspend, deny benefit to an employee in retaliation for the employee engaging in some type of protected activity. This might be making a workers compensation claim, it might be requesting medical leave or reasonable accommodation. It could be advocating on behalf of a co-worker who has a disability. This particular provision stems from where it was originally in the Civil Rights Act under Title VII in protecting people of race, color, ethnicity, national origin, gender and so forth against retaliation. Turning to the 4th slide, the general analysis that is used in retaliation claims is that originally the employee has to prove their prima facie case of retaliation. If they do so, then it shifts to the employer to have to prove that their decision to impact the employee with that adverse action which could have been, like I said, it could have been some kind of firing or demotion or change in job status. They have to show that they had a legitimate nondiscriminatory reason for doing so. And if that is the case, then it falls back to the employee to show that the employer is just making that reason up. We call that pretext for discrimination. There is a slightly different framework that is sometimes used which originated under Title VII. And this is referring to the Price Waterhouse case. In this particular case, it was a gender discrimination issue. And rather than the burden shifting to the employer once the original case of discrimination was laid out, for them to articulate some type of legitimate reason for their decision, under the Price Waterhouse analysis the defendant can avoid liability at that stage by proving by quadrants of the evidence that it would have made the same decision even if it had not taken the plaintiffs gender into account. This particular analysis seems specific to Title VII and gender discrimination cases. It is something we watch because it is something that could potentially bleed over into ADA cases. If we move on to the next slide, the general construction of making out that prima facie case of retaliation, the direct way is first of all to establish that the employee engaged in some type of protected activity. Again, this could be, it could be filing a complaint with the EEOC, it could be requesting an accommodation. The next step is for them to show that the employer subjected them to some type of adverse employment action. And finally the plaintiff must show that there is a connection, causal connection between the protected activity and the adverse action. What is interesting about retaliation claims as it is articulated here, is the idea that you don''t have to be a person with disability to bring a retaliation claim. So in some sense it is particularly useful for perhaps an employee who by association with a co-worker who has a disability who may speak out or on behalf of that employee in some type of manner if that employee is being discriminated against that it would allow them potentially to have a retaliation claim if the employer took that advocacy out upon the person without disability.
I think one other thing William is to just point out that the idea of a material adverse action in the employment context is not a simple question. There is a couple of cases that I will be dealing with later that directly deal with the question of whether or not something that an employer does is considered as materially adverse against the employee. Obviously things like firing the individual, demoting the individual, reducing their wages, reducing their hours, all of those things are pretty obviously materially adverse however you can get into things like reducing the essential functions, the number of things the individual does. Changing them from one position to another in a way that doesnt change the wage but maybe changes the amount of prestige associated with the position. Different things like that may or may not be considered materially adverse. So that is just something to kind of bear in mind, that it is not always, it sounds like it would be easy to say whether or not the employer did something to the employee that was adverse but it is not always a simple question.
I am glad you point that out Phoebe. That is really helpful because there has been a lot of uncertainty about how to determine as you pointed out what is an adverse action. Some things are more crystal clear. Quickly, termination is an adverse action, it is very little, very little differences about that in terms of how courts look at that. But since 2006, there was a case before the Supreme Court that really brought this to our attention, it was Burlington Northern and Santa Fe Railway versus White. And they specifically pointed out as Phoebe does that in determining this adverse, what is an adverse employment action, there is a materiality requirement and an objective standard that have to be applied here. And I find it interesting and I am glad you are going to talk about this a little bit further on Phoebe, that when we look at that, that slightly different or heightened standard for determining whether something is adverse, and that Supreme Court decision was two years ago, I am not seeing a lot of courts adopt that particular analysis. Now one reason may be because that White case, that Supreme Court case was once again a Title VII action in regards to an employee who was being discriminated against on the basis of gender. But there is so little difference between the protections for retaliation under Title VII and under ADA Title I that things like this cannot carry over. Any thoughts, Phoebe?
I guess the one thought that I have is that a lot of these, all of these employment cases are so fact driven that I think that is a big part of it, sort of use the vernacular I think a lot of courts are still using the sniff test rather than using the test that as you said was laid out by the Supreme Court. And I think that is hard to avoid given that these case law are so fact driven. And also with retaliation you have the issue of whether or not the action taken by the employer was likely to discourage employees from taking, I am sorry, from taking actions that were protected from exercising their rights. If the action by the employer is like to do that, then I think it is likely to meet that standard of being materially adverse. And that again, gets into you know even though the test maybe supposed to be more standardized and I think that gets very subjective.
Great. That is helpful, thank you, Phoebe. Still looking at this at the prima facie case of direct retaliation. A case that I would like to point out or at least make some mention of is the recent, it was November of last year that the 11th Circuit finally brought an end to the what was about a 12 year saga for Patricia Garrett. Pat Garrett was a supervising nurse at one of the University of Alabama hospitals. She was diagnosed with breast cancer. She had time off for treatment, chemotherapy, returned to work full-time. She had ongoing treatments and still needed some intermittent medical leave over the course of about a year. She was able to complete her job duties fairly regularly but did need some frequent breaks because of fatigue, radiation burns from the chemotherapy caused her to need some assistance with lifting and she had difficulty in this respect doing ordinary household tasks like cleaning, laundry. It took twice as long for her to do self-care tasks, etc. After an infection set in about a year later she had to take full medical leave and when she returned to work she was transferred to a lower paying job which was looked at as being an adverse employment action. For a variety of reasons this case went up and down in the courts, all the way to the Supreme Court back down to the district court, back up to the 11th Circuit, back down to the district and it really came to an end just last year. As far as the retaliation goes, the court found that there wasnt in their eyes, that causal connection between her request for leave and transfer, the final one and when she was actually demoted or moved to a lower paying job. The court found that the time in between those two events which was a period of about four months was too distant. It did not have that element of time proximity or temporal proximity that was necessary for them to be considered a link. And so she lost on the retaliation claim. Unfortunately she also lost on just the element of her original prima facie case for disability discrimination because they determined she was not a person with disability. In that particular sense, what the court found was that she did not have the substantial limitation at the time that she was moved to a lower paying job. Phoebe, do you want to add something?
I guess just for those that are not aware that this case was, some of you might be familiar with it because the Supreme Court held a number of years ago in the Garrett case that the ADA did not apply to the states because of sovereign immunity. And so she had gone forward with this case just under the Rehab Act.
That is right and that has kind of have shaped the way we looked at things especially claims against state entities. When the Supreme Court originally shot down her original claim saying that Congress had not validly aggregated the sovereign immunity of states under the ADA, then essentially what we thought at the time was that you could no longer bring a suit at least for damages against a state entity. Since that time and Garrett is a good example of this, Garrett, the 11th Circuit most recently and almost all of the other Circuits across the country have found that when a state receives federal funding that they open themselves up under Section 504 of the Rehabilitation Act to suits against them. It is that, it is acceptance of federal funding which expressly waives their state sovereignty. So in place of Title II against state entities, plaintiffs are now turning more and more to using the Rehabilitation Act and Section 504. Okay, let''s see, if we move on to slide 6, I just wanted to briefly mention the Proctor case as an example here. Proctor versus United Postal Service, in this case the plaintiff was a package driver who had work related back and wrist injuries and he was terminated and then filed a charge with the EEOC. Again the same issue came up. Was there the right kind of connection between the adverse employment action and the particular exercise of his civil rights? Which in this case was filing that particular complaint with the EEOC. And like the Garrett case, the court thought that there was too much time between those two events. What we seemed to be learning from this is that I have seen cases where three months was too much attenuation between those two events that it seems to be important, not necessarily in all cases to have fairly close proximity in time between when that adverse action happened and following when that person has exercised some types of civil rights.
Then again, I think that goes back to the issue of whether or not the action is likely to discourage employees from exercising their civil rights. And so I think that fits in with the standards but it is really a good sort of marker to look for in reviewing cases and that kind of things. If there is a real long time between when the employee took the action, file the EEOC complaint, etc, etc, the longer the time between that and the supposedly materiality adverse action, the less likely that is going to be a winning claim.
I suppose if the adverse action is not so clearly an adverse action to a reasonable employee then there is going to be less likelihood that they are going to necessary connect that with an exercise of civil rights. Do you think that is an element in this Phoebe?
Absolutely, I think both time and whether or not the action is seen by a reasonable employee as being materially adverse, I think those are really the two key point.
Okay, alright. So if we kind of skip along a little bit there is an alternative way to make a retaliation claim sometimes referred to as the indirect retaliation claim. On slide 8, it adds an element in here. So again, there has to be a protected activity and there has to be an adverse employment action. Here we are adding this idea that the employee must be performing their jobs satisfactory and also there has to be a showing that that employee who engaged in that particular protected activity was treated differently than a person who was similarly situated and who did not engaged in that protected activity. In other words, the person who did not engaged in the protected activity was treated more favorably than our person here who did engaged in that activity. Lets see.
Well, on this, I am going to be discussing Bellino, the Bellino case a little bit in depth on other points later but the issue here was that Mr. Bellino had filed a complaint with the EEOC and had asked for an accommodation essentially and was not, he alleged given that accommodation. Whereas someone else the court found that another individual had also asked for an accommodation which was to be moved to administrative duties rather than the duties she had been performing. And in spite of the fact she had also filed an EEOC claim, she was granted that accommodation. So essentially the court found that given that you had two similarly situated employees both of whom who had engaged in protected activities, one had faced an adverse employment action, the other had not, that you could not say that the adverse employment action was in retaliation for the protected activity.
Okay. If we look on to slide 9, here we have this holding from again the White court case we mentioned earlier, the Supreme Court case in Burlington versus White. The other part of this in addition to adding the materially adverse elements and the objective standards, to determining what is an adverse employment action, the White court, bear in mind again, this is a Title VII case, this determined that the adverse action did not have to take place specifically in the workplace. I think the court was imagining here that an employer or a co-worker could in some manner discriminate against or bring about an adverse action upon an employee in some context outside of the workplace, that would be none the less as adverse. What do you think, Phoebe?
I think that that is absolutely right and I think in some ways that is almost the classic, almost cinema vision that we have of what retaliation is going to be like. I think we are all familiar with movies where people have tried to break a glass ceiling or some other barrier to employment and had their co-workers treating them badly and that sort of thing partly because of the employers encouragement that their co-workers do so. And so I think that is the kind of a situation that we try to address but it is not necessary the employer taking an action directly against the employee but it can be things that happen sort of around the culture of work in addition to being things that happen in the workplace.
Great. That is a really good elaboration, thank you. If we turn now, we just finished with 9, okay, so we are moving on to 10. We are moving into this Crawford case and this is a case that is right now being decided by the Supreme Court. In the Crawford case in particular, the employee was a 30-year employee with the Metropolitan Government of Nashville and she was fired in 2003. This was following there being some complaints made to the employer by the Metro Legal Department that someone in the government offices was sexually harassing various employees. And the original complaint from the Metro Legal Department went directly to a man name Dr. Hughes who was the very person responsible for investigating discrimination complaints. Fortunately the Government of Nashville passed this on to Dr. Garcia who was the Director of Schools who then passed it to his assistant who would handle this to avoid that conflict of interest. And in an internal investigation took place. In the internal investigation, Ms. Crawford, our plaintiff was one of the employees interviewed at that point in time she had indicated that she had been a person who had been sexually harassed by this Dr. Hughes. She herself never had made a claim or complaint to the company or a claim to the EEOC for harassment. Apparently several other employees also raised these issues that they had been sexually harassed by this particular employee. Soon after that, our plaintiff, Ms. Crawford, was fired and she was cited as having inappropriate unprofessional behavior. And similarly, she was also accused of embezzling money and drug use on the job. There were three other employees also were charged with similar types of accusations. And they were all fired. It turns out that these accusations were all false. And the case went on to look at whether or not Ms. Crawford''s participation in the internal investigation that was being led by the department itself by the City of Nashville was the type of participation that is protected from retaliation. The idea here is that if someone participates in an investigation of discrimination, we don''t want them to just be fired because they were a participant. We want to protect them, in other words to encourage them to being honest, coming forth and providing the right type of testimony. This is not what happened in this particular case. But the statute in regard to this retaliation of this idea of participation says that the participation in the investigation is in regard to an investigation brought by the EEOC. And so the issue that came down for ultimately the Supreme Court to decide was one, whether or not her participation in the internal investigation was protected from retaliation like it would be if she was participating in an investigation by the EEOC. Just a couple weeks ago this went before the Supreme Court and there were arguments on this particular issue. I am kind of scooting through a few things here but I will just point out with slides 11 and 12. It is important, I seems like I am probably talking about Title VII more so than Title I of the ADA, but it is really important to understand as it is pointed out in slide 11 and 12 that the way these particular statutes were created and drafted and how the regulations implement them is almost identical. And so it is largely considered, they are largely considered equal. Especially regards to how the EEOC looks at discrimination and its particular procedures it uses in doing investigations. So with this type of thing in mind we are looking at Crawford as being a case that could directly impact how we interpret protecting people for participating in an internal investigation from retaliation. I don''t want to get too technical but I wanted to just point out that when I reviewed the oral arguments before the Supreme Court which took place on October 6, turning to slide 13, the majority of the Justices, their questions and comments were seemed to be much less interested in determining whether this internal investigation is covered under the Act. And they seemed more interested in determining types and boundaries of expressed opposition that would be protected and whether the participation and opposition provisions overlapped. The idea here is that you would be protected from retaliation for participating in something like an internal investigation or in an investigation but you are also protected if you express opposition to some type of company discrimination. The majority of the discussion in Supreme Court couple of weeks ago was focused upon these latter issues and very little attention in comparison given to this idea of the internal investigation. On slide 14, I tried to break that down a little bit. When they did discussed the internal investigation, one Justice, only one out of those who discussed it, Justice Scalia specifically mentioned that he believed that this internal investigation did not count as the type of investigation for which Ms. Crawford would be protected if she participated. My general sense is that and I cannot predict what Supreme Court is going to do, but my general sense is that there is a level of comfort among the Justices with the idea of the investigation, internal, external, not being really any different. And as a matter of policy we want to protect people who participate in good faith in any type of investigation of discrimination. Now I may be reading too much into that but I will be looking forward, we will all be looking forward to the outcome when they actually make their decision and we will see what happens in this particular respect. I will go ahead and stop here. We are sort of after slide 14, Operator, this would be a good time for us to take some questions.
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I guess I was just wondering about how it looks like actually all of this case law that you are discussing is actually pre the new Restoration Act, the new Amendment. So we don''t, I am just wondering a little about how the new statute interact with the new case law. Is there anything that the new statute, if the case law came before that, is there anything that has been changed again? You mentioned some things in the beginning but?
Right, and this is a Phoebe, let me try and address that a little bit. We were very mindful of that as we were looking at the cases for this year. And as I noted at the beginning, a lot of the Amendments Act what it changed was the issue the threshold question of whether or not the individual had a disability. So for the most part we will not going to be talking about cases that they go into long discussions of that or that was the central holding of the case. Because frankly that is all going to change after January 2009 when this law takes effect. So we didnt think that it was a good use of our time, our limited amount of time here to discuss those things extensively. So the cases that we are discussing, at least William and I feel will generally be unaffected or the effect of the ADA Amendment Act will be minimal on these discussions.
And then the other thing that I was wondering about was the going back to the state sovereignty issue, in states receiving federal funds. Does the entity that you are suing have to be receiving federal funds? Or is the, the fact that all states to some extent use federal funds, a general waiver or?
That, that is a very technical difficult question. My understanding is that it does have to be the actual entity that is receiving funds. So in other words, if you are suing a state, lets say a state college, the fact that students that go to that college receive financial aid is enough to sue under Section 504, because that constitute receipt of federal funds by that institution. On the other hand you know it gets very complicated when you are talking about individual state units and whether or not the receipt of federal funds by the state generally is enough to open that door. Do you have any more information on that, William?
No, I agree with you, Phoebe. I think you can start thinking about I mean your example of where it would apply in a state college I think is spot on. When it comes to units within offices, within departments, within agencies in the state government, it might be fair to say that the smallest units, if the discrimination took place in the smallest units, it may not be necessary for that smallest unit which might be an office of 5 people, to directly receive federal funding. But it might be the office in which they work or might be the department in which they work or possibly it could be the agency which they work. And I dont have a clear sense of what that is. But some where, I would say above that sort of that smallest tier, that smallest sort of unit, there would be a need for federal funding moving down into that particular agency.
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Okay, can you hear me? That is good. I was trying to determine or see if they have determined what a good time frame between the original action and the consequence I guess you would say, the protected action and the materially adverse, right. Did you understand that all right?
Yes, yes. Phoebe pointed out that these cases are so facts specific and that is something that we always have to keep in mind. Looking at various cases, as I mentioned earlier, when we have attenuation, we have distance between these two events, the protected activity and the adverse action, that is three months or longer, courts tend to see this as too spread out in time to be a connection.
So, would you say, generally then that it is pretty safe ground if you did it, say if it happened less than three months?
I could not, I could not say generally safe ground. I think that it is more likely that you are going to have a causal connection. But depending upon the particular types of exercises of protected activity and the particular type of adverse employment action, it is possible that it could require a connection that is less than a week or maybe three months. It is just so fact specific, it is very hard to.
So, it would be determined more by the facts in the case.
Yes, it really would have to be.
Okay, thank you sir.
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If we don''t have any questions at this time, why dont we go ahead and have you keep going? Mindful of our time here at 2 oclock or only half hour, 30 minutes left here.
Alright, we are going to pick up the pace here a little bit. The next section is pretext. I am going to run through this fairly quickly and make sure that we have plenty of times for the reasonable accommodation discussion. The general idea here is, in that third element of this analysis of retaliation, again you know, there has been this exercise with protected activity then there has been some type of adverse employment action. When we start analyzing this, once the employer, even though the employee has made out the original case of discrimination, if the employer comes back and articulates a legitimate business reason for making that decision, it falls back on the plaintiff to come up with an explanation how that particular reason is perhaps completely false, knowingly false to the employer or in another sense it is pretext. It is an excuse. The idea then is, the way it has been articulated in recent 10th Circuit cases which is using language specifically from the Supreme Court is the idea that the pretext can be shown by weaknesses, implausibilities, inconsistencies, incoherencies, and contradictions in the employers reasons, legitimate reasons for its actions that a reasonable fact finder could find, could rationally find those reasons not worthy of credence and then from that infer that the employer did not act for those particular reasons but rather for discriminatory reasons. The standard that applies in pretext is that there must be, that the plaintiff must show that by preponderance of the evidence that the reasons offered are not the true reasons. It is important to know if you turn to slide 17, that the inquiry that is made, it is not whether the employers reasons were wise or fair or even correct. They could be incorrect based upon incorrect assumptions. It is whether the employer honestly believes those reasons and acted in good faith upon those reasons. So in this sense, even a mistaken belief by the employer can be a legitimate non-discriminatory reason and thereby not be pretextual. I wanted to go quickly through this but I do want to turn to a case that is interesting and provides a nice example of what this pretext looks like. I am talking about the Wilson versus Phoenix case which we start to mention slide 20. The Wilson case, in this case the plaintiff, Jimmy Wilson, he worked as a shipping supervisor at Phoenix Specialty Manufacturing. He had a panic attack on the job and was referred to a company neurologist, who I think also happened to be his neurologist. And he had already been previously diagnosed with Parkinson''s disease. And because of that he had some anxiety and loss of motor control in his right-hand. The doctor adjusted his medication and he went back to work essentially. But shortly after that Mr. Wilson began experiencing different treatment by his supervisors and by his co-workers. He did ask for an accommodation of a 21-inch computer screen instead of the 17-inch he had. Shortly after that the company installed a new computer system. And the senior management made some assumptions in particular they made these assumptions without giving Mr. Wilson the opportunity to train and learn how to use the new system. They just assumed that he was going to be unable to accurately input data into the computer because of his disability. They thought he would make errors. And based upon those assumptions they prohibited him from using the new computer systems. Shortly after that the company stated that it was downsizing and his job was eliminated. He brought a complaint with EEOC and the case went to district court. And the court saw right up front that there had been some form of retaliation. The court actually provided Mr. Wilson with back-pay for the time that he was out of work between when he lost his job up until the time of the actual EEOC, no that is not correct, I am sorry, wait figure out at the end, let me look at that one second. But basically for his back-pay he got $137,000 in back-pay which is very substantial, $10,000 in compensatory damages based upon the depression and humiliation he faced at work and they also gave him $10,000 in punitive damages based upon the findings that the company fired him with reckless indifference to his rights under the ADA. This went on appeal and the defendant, the employer argued that the reason they proffered for firing him were legitimate, not discriminatory and that they were not pretextual. The case went on and at the appellate level there was a really nice articulation of what all the different types of pretexts were. I think this is informative to look at what pretext can mean in different situations. They found pretext in these 6 situations, those are on page slide 20. First of all, the workforce reduction. Phoenix the employer claimed that it engaged in a workforce reduction but apparently there were only two employees involved which in comparison to the full number of employees on staff was not considered an actual workforce reduction. The company claimed that it had financial difficulties and that was the reason for a workforce reduction, but in the same year as Mr. Wilson was fired, the company paid bonuses to most of its employees. The third reason regarding essential job functions, the company argued that they had to eliminate Mr. Wilsons position because he was delegating his responsibilities to other employees and he refused to master the new computer system. We know that that was not the case. He was not allowed to learn the computer system and generally his co-workers considered to be a very fair boss and co-workers. He asked shortly after he was fired if he could have an hourly position. It turns out that the other person who was fired, was given an hourly position, and he was not permitted to have an hourly position. So really the layoff was just one person if you look at it that way. The court disagreed with Phoenix which said that Wilson could not have received an hourly position because there were no openings what the employer argued, and that he was not a good coworker that ruled with a heavy hand. The court found rather that the company did need this shipping clerk position that he had filled previously. He had applied for that and did not, was not given a response to his application. And one of his former subordinates, indeed testified that he was a fair supervisor. Back on to this shipping supervisor position, the next letter, letter e, the court rejected the employers claims that the new shipping foreman position replaced Wilson''s former position as shipping supervisor. In particular the court found that Phoenix did not really eliminate his position but rather simply change the name of the position and promoted a new employee with much less experience to fill that position. Finally the court rejected the employers claim that on the final day of employment Mr. Wilson ordered ten years worth of packing supplies, and essentially Mr. Wilson ordered enough supplies to get the company through that transition period of his departure. Apparently someone had overridden the order to make it look like he had ordered an excessive amount of supplies. These are some pretty clear cut examples of just bad faith on the part of the employer in regard to their claims reasons that they were firing Mr. Wilson. So that brings us really to the end of the pretext section. Let me just stop for a moment if there is a particular question about this pretext issue. I tell you what, maybe it is better if we just straight on into the reasonable accommodations. I think we want to make sure that we have plenty of time for that. Is that reasonable Phoebe?
Yes, lets do that and then anyone who has questions about pretext or any of those issues can hopefully have time to ask at the end.
Okay, the reasonable accommodations and interactive process, right now we are on slide number 22. And essentially the description is the employee must show that they are a qualified individual with a disability and as I discussed earlier that is going to change quite a bit based on the Amendments Act. We are not going to address that extensively here. They also have to show that the employer knew of the disability and the employer did not make a good-faith effort to accommodate the disability. And also and this gets to be a little bit questionable depending upon the Circuit but that an accommodation existed. And the reason that gets a little bit questionable is whether or not the employee that is on the employees proof that an accommodation existed. Generally the employee does have to show that a reasonable accommodation would have enabled them to perform the job. The first case in this area is Buboltz versus Residential Advantages Incorporated. This is a legally blind employee who has worked for residential services providing services for people with disabilities for five years without any incident. But then her employer hired someone to oversee everyones work sort of quality control and as a result of that she was prohibited from working alone with clients and from dispensing medications due to concerns that the licensing organization would take issue with her performing these functions even though there was virtually no evidence that she had acted inappropriately with clients. There was sort of very scant evidence regarding that and also no evidence that she had ever dispensed the wrong medication or anything of that nature. The issues in this case were whether them taking away her the necessity of her working alone with clients and dispensing medication constituted a materially adverse employment action and also, whether or not the employer failed to accommodate her disability. The court found that removal of some job function was not in and of itself an adverse employment action. The court specifically found that with regard to working alone with clients that the residential services had a policy of always triple staffing their homes and so there were always more than one employee. So essentially that was a non-issue from what the court saw. And also that dispensing medications constitute something like 5% of the time that she spent at work and so that was not considered a significant change. And also with regard to whether or not they had failed to accommodate her, essentially when she was told that she would no longer be able to work alone with clients and that she would no longer be able to dispense medication, she protested that she had in spite of her being legally blind that there were a number of devices that she had access to that would help her to do those things. And so essentially that she did not think that those job functions should be removed. So essentially not only did, according to the court, not only did she not ask for accommodation, she essentially told the employer that she did not need one. And the court found significantly that after the request by an employee, an employer is not required to provide an accommodation. That is different than some other Circuits, and specifically it is different than the next case that I am going to discuss here. The interactive process, a little bit on that because that was part of the issue in Buboltz, was that the employer failed to accommodate, failed to engage in the interactive process. I am not going to go through this, I am not going to go through this slide in detail, because it is pretty extensive but this is the EEOC''s interpretive guidance on the interactive process and what the employer is required to do. Essentially the interactive process, usually begins when the employee asks for an accommodation and the employer engages in an interactive process with the employee to determine what sort of accommodation is needed. The issue is whether or not the employee specifically has to ask for an accommodation or if as many Circuits say it is enough that the employer knows that the individual has a disability and that their disability is causing difficulty at work and that an accommodation might be called for, that raises in many jurisdiction the requirements the employer start interactive process. When the interactive process breaks down, this is some guidance, the responsibility lies with whichever party failed to participate in good faith or make reasonable efforts to help the other party determine what specific accommodations are necessary. In Buboltz it was, as the court determined it was the employee who actually said I dont need an accommodation and therefore that stopped the interactive process. In contrast, Brady versus Wal-Mart Stores, this involved a 19-year old with cerebral palsy who has worked for two years dispensing prescription drugs at a local pharmacy, he applied for and got a similar job at the Wal-Mart pharmacy. The supervisor immediately decided that he was not capable of doing the job and basically transferred him to a job at the parking lot. And there is really compelling testimony and compelling facts in this case. She testified at the district level that she immediately felt that he was too slow, that he was not capable of doing the job. She refused to put him on the schedule, refused to even talk to him when he wanted to ask her about that, sent him over to personnel where they basically shipped him out to the parking lot to move shopping carts around. Which he also not only did he find that demeaning, he also felt that with his disability which made it difficult for him to walk and things like that, that that was not an appropriate job for him to be doing. And then when he went to talk, his father actually went to talk to another supervisor about it, they transferred him to yet another job, did not provide him any training and he subsequently quit. The question here is did the employer have the duty to accommodate the disability when he never asked for any kind of accommodation but it was obvious that he had a disability. Everyone could tell that he had difficulty with walking and his speech was a little bit difficult and things like that. There was no question that it was obvious he had a disability. The court said that that did raise the obligation of the employer to actually engage in interactive process. They also determined that the transfer to the parking lot did in this case constitute a materially adverse employment action. Even though the wages did not change and things like that, the level of prestige was drastically different and also the fact that you know he found it difficult to actually to do that job because of his disability. It was seen as an adverse employment action. The district court had also admitted a consent decree requiring wherein basically Wal-Mart had agreed not to violate the ADA based on a previous case it was a settlement consent decree in a previous case. The Wal-Mart had essentially tried to say that that was prejudicial to bring that in basically to show the jury that they had previously been found to be violating the ADA and had to sign on to a consent decree. The appellate court found that there was no problem with bringing that consent decree in because basically all it showed was that Wal-Mart was aware of its obligation. And that actually served as the underpinning for the punitive damages award because that one of the requirements of punitive damages is the reckless disregard of the likelihood of violating federal law. And you will see that explained a little further on slide 30. The duty to engage in the interactive process this next slide, slide 31 shows the split in the Circuits, which Circuits have determine that there is requirement that the employer engage in the interactive process, the 10th and 11th Circuits actually find that the duty to engage in the interactive process is not a separate, it is not a separate requirement. They still are required to provide reasonable accommodation but there is no separate duty to engage in the interactive process. And then the 1st and 8th Circuits take it on a case-by-case basis to determine whether a party can be liable for failing to engage in the interactive process as opposed to the requirement that they provide a reasonable accommodation. EEOC versus Federal Express is the next case. And this again is a case with some very compelling facts and this one actually points out the Supreme Court recently refused to hear this case. It is a 4th Circuit case. It is a deaf package handler who was never provided with any interpreters or other accommodations when he was at meetings including this has happened very shortly after September 11th. And so there were a lot of safety issues that were coming up at that time with the package handlers with Federal Express Company. And so he basically couldnt understand some very important safety information. And there was an award of punitive damages again in this case. The issue where were punitive damages justified by the evidence? And one of the main issues was that there was a 12.5 to 1 ratio between the compensatory damages that he has been awarded and the punitive damages. And there is a proportionality requirement that the Supreme Court has laid out for the award of punitive damages. The question here was, was that just too big a ratio to say that you can justify this punitive damages? The court held that the evidence was sufficient. The manager had perceived the risk of an ADA violation, failed to implement Federal Express'' own ADA compliance policy and that the employers highest officials had acted reprehensibly in this case. They also held that the reasonable relationship requirements between punitive and compensatory damages award is only one factor in determining constitutionality. So there were enough other reasons to award punitive damages here that that ratio did not bother the court too much. The next case in the section is Bellino which we just discussed a little bit in terms of his retaliation claims. This is an air-traffic controller who injured his knee at work. Basically his job required him to sort of run around the tower to watch as planes came in, not only do they have to watch on radar but they also had to physically watch the planes come in and guide them in. He actually had asked -- there was another job that he had before which was less physically strenuous which just involved watching the radar, had the same salary and benefits but a lower annual bonus. This got a little bit strange because he was actually offered a transfer to that less strenuous job but then there was some dispute as to whether he actually turned it down or whether they, right after they offer, made that offer they revoked it. So essentially the most important holding that I thought in this case was the expressed in dicta which means it was not relevant to this case because he did not argue on appeal. But basically the court decided that the lower bonus did not change the fact that moving to this other job with the same wages, same hours all that but with a lower bonus was still a reasonable accommodation. The next case is Dargis versus Sheahan, and now we are on slide 37. This is a corrections officer who has been working for many, many years. He had a stroke and was told by the doctor that he had to avoid all inmates contact. The question was, could he still perform the essential functions of being a corrections officer if he had to avoid all contact with inmates? There was a lot of evidence in this case that other folks had been transferred to positions where they would have less inmates contact but none of them, according to the court had that requirement they have absolutely no inmate contact. So the court essentially decided that the employer had legitimate reasons for the requirement that all the officers be able to rotate through all positions for reasons of safety and inmate control. And the fact that he was prohibited from having any contact with inmates made it impossible for him to perform the essential functions required of a corrections officer. The next case, we are on slide 40, we are looking right through these as we are running short on time. Filar versus Board of Education, this is a substitute teacher who was displaced from what was essentially a full-time position in one school to roving status where she was required to by the collective bargaining agreement, she was required to take basically any job that was offered her. She asked as a reasonable accommodation she only be required to take those jobs which were at schools near bus stops. The court said that the collective bargaining agreement did not allow the school board to force a teacher on a principal. So the principal basically at one of the four schools that she has had identified as being close to bus stops could essentially turn her down. And so that was not a decision and an accommodation that the school board can make. They also determined that the burden of researching which schools were close to the bus stops beyond the four that she had mentioned was overly burdensome, so they did not have a requirement to make that accommodation. The next page is Garg versus Potter, and this is the postal service case. This postal worker basically worked sorting the mail and she started having allergy trouble. And so she has been working the night shift which was very dusty, it was sort of the busiest shift and there was a lot of paper fibers in the air that kind of thing. She did get an accommodation for some seven months to a less busy and less dusty day shift which was actually granted in violation of collective bargaining agreement. She was returned to the night shift. And two emergency room visits later, a doctor contracted with the Postal Service determined that she was unfit to return to work until she underwent allergy testing. She did not ever undergo that testing, essentially refused to and was eventually fired. The court found that by refusing to undergo allergy testing as required by the Postal Service or to response to the options letter which led to a final termination, she had failed to perform the essential functions of her job. And that is all the cases that I was going to talk about today. I am sorry I had to sort of speed through those. We ran a little bit long today. I would like to see if there are any questions in the few minutes we have remaining?
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We had some questions that were submitted to us online. So while we are waiting for people to dial in, let me see if I can introduce those as well. One of the questions is from someone who says that they have a number of supervisors that are afraid to engage in the interactive process for the fear of labeling somebody as being referred to as a disability or being regarded as having a disability. Does simply meeting with an employee who may or may not have some physical limitations prevent them, that prevents them from performing some parts of their job duties place them in the category as being regarded as? Would you say that the case law would support that or not? Or have any comments on that yourself?
I think that is a very complicated question. I think it depends very much on the fact, I would say that it is possible that, possible that an employer would be foreclosed from making the argument that they did not know that the person had a disability if they had sort of had those discussions. That said, you know I think the guidance that I have read and seen certainly indicates that engaging in the interactive process, is always the best practice. Because you are not going to be able to find an accommodation for an employee with a disability if you don''t engage in that process.
So your recommendation would be that you know employers if they have an employee who brings an issue forward to them, that they should engage in the interactive process. That it is not necessarily but probably it is a Catch-22 that you would say that there is a problem if you ignore or avoid the person and don''t engage in the process if you are fearful that you are going to be held to a ''regarded as'' you know argument after the fact, but if you know you don''t engage with the person and go through the process, you are still going to have a problem.
I absolutely and I guess that would be you know it gets into a very case-by-case inquiry and I would hate to give sort of generic legal advice like that, ill advice on my part. On the other hand as an advocate I would say that it is always better to engage in the interactive process because as I said that is the only way that you are going to come up with an accommodation that will help keep that person in their job.
Right, okay. Great. Are there any questions from the audience?
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Go ahead now. How can you tell if an employer is going to discriminate against you?
I am sorry, I did not understand the question.
How can you tell if your employer is going to discriminate against you?
How can you tell if someone is going to, an employer is discriminating against you?
I mean, again, that is so fact based, I think you know as a person with a disability myself, I guess I would say that you know the old adage is, you know it when you see it.
So if you feel that if an employer had asked you questions that they should not have asked maybe about your disability or about you know some aspect of your condition or disability obviously that would probably be something that might be a little bit of a red flag that there is to be concerned about. I think that if you seek questions on applications, things of that nature that are legal questions that you know.
And I would recommend I mean you know they may or may not, you know your local P & A, protection and advocacy organization may or may not deal with these kind of issues but that is always a good place to start. In terms of asking those questions if you feel that your employer or anyone else may have discriminated against you. A lot of times, they can at least provide you with some information and referral to try and answer the question of whether or not you have been discriminated against.
Right, and I think it is always important to make the distinction that not every action that maybe adverse is necessary a discrimination. I mean you know you can go into a store or an organization or an agency and just have poor customer service and that is just the nature of you know unfortunately the experience that you are having does not necessary mean that you know that was discrimination because you just happened to be somebody who is part of a protected class.
You know that is a big problem that we sometimes see in calls that we get, well you know they didnt wait on me. Well, you know it could be an issue that you know they just have lousy customer service and has nothing necessary to do with your specific disability. So, not everything necessary that occurs negatively may be to due to the disability. But if you do feel that you are discriminated against upon the basis of your disability, you should pursue your rights you know and be mindful of the time frames and things that are in placed for those exercising of your rights whether it is a state law or a federal law.
And that is where I think your you know, referral to your local P & A or other disability rights organization to get some information or some referral or some, to talk it through might be useful and recommend it to anybody.
Right, and a lot of us centers for independent living and I am sure you are aware, have you know peer networks and different things like that where you can actually talk with other folks with disabilities and just get their take on it because I think like I said, I am a person of disability myself. And you know sometimes you sort of know it when you see it when you have been discriminated against. On the other hand it is always good to have those peers to discuss those things with, maybe even before you take it to the next level of talking to an attorney. But again, always talk to a P & A or other civil rights attorney, is always a good way to see if there may be issues there.
Definitely. Okay. Very full day and I know that both you and William, Phoebe had a lot to talk about and there is a lot of issues as the case laws getting I think one of the things that we looked at is things are getting more complicated, they are getting more complex. It is not as you know as simple as just saying this happened and that was the result. I mean I think that you know evidence by your discussion today there is you know a lot out there and something that we all have to keep kind of keep on top of. We are at the bottom of our hour here today, so unfortunately we are out of time. And I apologize to those of you that did not get a chance to ask questions today but we are out of time. I don''t know if our speakers would be willing to take additional questions off line or anything but I leave that up to them here in a minute if they want to give any contact information or any referral for that particular issue. Remember that you can also contact your regional Disability and Business Technical Assistance Center or your regional ADA center. Again, 800-949-4232 both voice and TTY and again if you are not familiar with the center that serves your area www.adata.org will help you to locate that. Our next session is November 18 and it is titled the session is Everything you need to know about enforcement of the ADA and was afraid to ask. We will be working on and looking at the issues of the various ways that kind of filtering through the various ways of filing a complaint and what are the various enforcement options that somebody has, what is the alternative dispute resolution and all of those different kinds of things. Helping people unravel those things even though it has been 18 years, we do find sometimes that people need to be reminded and kind of revisit some of these particular issues. So we invite you to join us November 18 for that session and more information on this session is available at www.ada-audio.org. And I will let Phoebe and William say anything at the end here if they like to before we sign off.
Thanks everyone for participating and I for one would be happy to give Robin my contact information if anyone has any further questions.
Great, we will make that available through the online transcripts and other information. So, that is great.
And thank you also from William. I appreciate the opportunity to work with you folks today. I will also be happy to response to any questions if you want to contact me after this event.
Great. Well, thank you very much everybody and everyone have a great afternoon or beginning of your afternoon depending on what area of the country you are from in joining us. And at this point we will just sign off and say goodbye.
Ladies and gentlemen, thank you for your participation in today''s conference. This concludes the program, you may all disconnect. Everyone have a great day.