As we’ve been noting for a long time (Mar. 24, 2006, etc.), it’s increasingly common for parents of kids with disability diagnoses, after deciding that the public schools are not doing a good job of educating their kids, to enroll the kids in private school programs and stick public school taxpayers with the resulting high bill, citing federal disabled-ed law. (Parents of non-disabled offspring, needless to say, do not enjoy legal options of this sort if they believe the public schools are failing their kids.) Now the Supreme Court has accepted for review a case in which, according to the New York Times’s account, a former chief executive of Viacom did not even give a public school program a try before enrolling his son in a private school and demanding that New York City pick up much of the resulting bill. The New York Times’s account is distinctly unsympathetic toward the parent, and quotes Julie Wright Halbert, legislative counsel for the Council of the Great City Schools, as saying: “Many wealthy, well-educated people are gaming the system in New York City and around the country.” (Joseph Berger, “Fighting Over When Public Should Pay Private Tuition for Disabled”, Mar. 21; Amity Shlaes, “After Viacom, Freston Makes Case for Special Ed”, Bloomberg, Mar. 16; Mary Ellen Egan, “A Costly Education”, Forbes, Apr. 9 (sub)).
Posts Tagged ‘disabled rights’
“It’s ‘my policy to follow the ethical rules'”
Last week, Ted posted a court decision about a lawyer/client team who have turned the Americans with Disabilities Act — in theory, a law designed to protect actual consumers — into a full-time career, patronizing businesses for the specific purpose of being able to sue them. Not all such lawyer/client teams bother to even take the step of patronizing the businesses, however; some just skip the damages and go right to the extortion, hoping the defendants will pay rather than spend the money to defend themselves.
Many times, their business model works, but occasionally, it backfires, as it did last week on serial ADA litigant Theodore Pinnock. (Technically, Pinnock is the attorney, not the plaintiff. But why split hairs? The plaintiffs, Delores Jackson and the imaginary organization she “represents,” the Association of Women with Disabilities Advocating Access, are just fronts for Pinnock.) On Friday, a federal judge in San Diego sanctioned Pinnock, ordering him to take an ethics class and pay $15,000 in attorneys fees to Marcos Mout, a defendant he had sued last October. Mout owned a convenience store, and was sued because the store was allegedly inaccessible to the disabled. Well, not quite:
Jackson, who uses a walker, said she had “researched” the store and had photographic evidence of numerous violations. In the complaint, she said she had intended to patronize the store but would have been thwarted by problems with signage, the entrance door, interior paths, counter height, parking and the restroom, among many things.
The businessman’s attorney countered that the convenience store wasn’t even open to the public at the time Jackson was allegedly denied access, having been seriously damaged in December 2004 by a flood.
Mitch Wallis, attorney for convenience store owner Marcos Mouet, also told the court that the small store, which remains shuttered, didn’t even have a public restroom. Jackson’s lawsuit also alleged that interior pathways weren’t wide enough, but Mouet’s attorney noted that the shelves had been pushed against the wall to fix the flood damage.
Yes, but aside from those issues…
Incidentally, the Bizarro-Overlawyered crowd will tell you that frivolous suits are easily, quickly, and cheaply disposed of by the courts; this case illustrates yet again how badly they misunderstand the nature of the legal system. Because the suit against Mout’s convenience store made superficially legitimate allegations, it cost Mout at least $15,000 to defend the suit. (He actually claimed legal costs of $38,000 in making his motion for sanctions, but the court found that $15,000 was a more reasonable figure.) And that was for a suit that lasted “only” five months.
Previous coverage of Pinnock: Apr. 2006
Give me a break. Or not.
Ted posts an entry on the Americans with Disabilities Act below; that’s a common topic on this site. Why? Because it’s a completely standardless law; while there are a few guidelines provided by various regulatory agencies, the law as written requires “reasonable accommodations” — a standard which is inherently subjective and which can only be determined after the fact. A field day for trial lawyers.
Case in point: I’m sure many people can imagine a person with a “severe and painful degenerative arthritic condition” suing because his employer forces him to work without breaks for rest or meals. An employee needs a short break, isn’t given it by his slavedriving employer, so he files a lawsuit. Understandable. But how many people would have thought that they could be sued for being too nice to an employee?
Well, under the ADA, it can happen. Last week, a Florida postal worker sued the Postal Service for giving him lunch breaks. He claims his arthritis is exacerbated by not moving around, and therefore it amounts to discrimination under the ADA not to let him work through lunch. (No word on why he can’t keep active on his own during lunch.)
Ninth Circuit defends ADA filing mill, resuscitates Molski suit
We’ve had many stories on frequent filer Jared Molski, the vexatious litigant who has filed hundreds of ADA actions in the last five years, and his lawyer Thomas Frankovich, briefly suspended for related ethical violations. Today the Ninth Circuit came down with an opinion in the case of Molski v. M.J. Cable:
Molski, who is paraplegic, sued Cable’s for violations of the
Americans with Disabilities Act (“ADA”) and California’s
Unruh Civil Rights Act (“Unruh Act”), alleging that Cable’s
failed to accommodate the disabled. Although Molski provided
uncontradicted evidence that Cable’s did not identify
and remove architectural barriers, the jury returned a verdict
for the restaurant. The District Court denied Molski’s motion
for a new trial, speculating that the jury could have reasonably
concluded that because of Molski’s record of litigiousness, he
was a “business” and not an “individual” entitled to the
ADA’s protections. We reverse.[…]
On cross examination, Molski acknowledged that: he did not complain
to any of Cable’s employees about his access problems; he
had filed 374 similar ADA lawsuits as of October 8, 2004;
Frankovich had filed 232 of the 374 lawsuits; even more lawsuits
had been filed since that date; Molski and Frankovich
averaged $4,000 for each case that settled; Molski did not pay
any fees to Frankovich; Molski maintained no employment
besides prosecuting ADA cases, despite his possession of a
law degree; Molski’s projected annual income from settlements
was $800,000; Molski executed blank verification
forms for Frankovich to submit with responses to interrogatories;
they had also filed lawsuits against two other restaurants
owned by Cable’s; they had filed a lawsuit against a nearby
restaurant; and Sarantschin obtained up to 95% of his income
from Frankovich’s firm for performing investigations for
ADA lawsuits.
The court acknowledges Molski’s notorious history as a vexatious litigant, but effectively holds that the ADA permits such strategies. That legal holding appears correct (the ability of professional litigants to extort small businesses is a statutory problem with the ADA and the Unruh Act that needs to be solved by the legislature, rather than by courts). But the jury could have chosen to disbelieve Molski’s testimony, given that Molski had the burden of proof and had substantial pecuniary motivation. The Ninth Circuit simply refuses to acknowledge this possibility in reversing the jury’s verdict. (It’s unclear whether testimony the restaurant vice president provided on cross-examination provides sufficient admissions to justify the appellate court’s decision; it is possible that this is the case.) Worse, in dicta in footnote 3, the Ninth Circuit suggests that it may have been improper for the defendants to have cross-examined Molski on his full-time litigation career because such evidence would have been “irrelevant.” (Via Bashman.)
Update: The On Point blog (sadly still missing permalinks, though now with an RSS feed) posts the trial court decision denying a new trial, which is less than absolutely persuasive.
Protest a group home, get investigated for housing bias
They’re doing it again in California: “State and federal authorities have opened an investigation into a Norco housewife, alleging that her vitriolic protests against a high-risk group home in her neighborhood may constitute housing discrimination.” Federal officials asked state fair housing regulators to investigate Julie Waltz, 61, who had protested plans to open a group house next to her home for developmentally disabled residents; among those eligible to reside there under state law would be persons deemed not competent to stand trial on sex crime charges. In 2000, the Ninth Circuit ruled that three Berkeley, Calif. neighbors’ rights had been violated by an “extraordinarily intrusive and chilling” investigation of whether their protests had been contrary to housing discrimination law. In that episode, as in the latest one, housing advocates had set the investigation in motion by filing complaints against the neighbors.
A spokesman for the federal Department of Housing and Urban Development acknowledged that in order to recommend the inquiry, it had to push aside internal guidelines that prohibit such an investigation because it infringes on the 1st Amendment.
The rules require that complaints of housing discrimination be investigated only in cases in which the alleged victim’s safety has been threatened.
No such allegation has been made against Waltz, but HUD opened an investigation into her and state investigators ordered her to respond to the complaint in detail because a preliminary review showed that someone else in the neighborhood may have made a violent threat, said HUD spokesman Larry Bush.
(Garrett Therolf, “Protester of group home is targeted”, Los Angeles Times, Mar. 20).
How much is that doggie in the window?
So, a Long Island school provides John Cave Jr., a hearing-impaired ninth grader, with a sign-language interpreter and student note taker for each of his classes and a daily, one-on-one lesson with a hearing instructor. Cave’s teachers are also given radio transmitters that amplify their voices. And he gets extra time to take exams. All to make sure that his partial deafness (he has 69%-70% hearing, thanks to cochlear implants) do not negatively affect his education. The school’s reward for this accommodating behavior?
A $150 million (!) lawsuit. (Relax. Cave is only claiming to be damaged to the tune of $50 million. The $100 million balance is for punitive damages.)
Why? Because the school drew the line at allowing Cave to bring his “service dog” (Simba, in case you were wondering) to school. Although the suit alleges that Simba assists Cave by alerting him to “cars, fire alarms, and bell rings” (Incidentally, I am not an expert on cochlear implants, but wouldn’t 60% hearing be sufficient for really loud sounds such as fire alarms?), the student’s primary complaint does not seem to be that he cannot hear these things at school. Rather, he complains that spending the school day away from Simba impairs their bonding and Simba’s effectiveness.
Fortunately for taxpayers, the federal judge handling the case declined last week to grant an injunction ordering the school to admit Simba, on the grounds that “John Jr. is well served by the East Meadow School District” and also on the grounds that the family seemed more interested in suing than resolving the situation:
But Spatt in his decision faulted the teen’s parents for rebuffing offers to attend a district hearing on the matter and ultimately failing to “exhaust” all the administrative processes of local and state educational agencies.
“Instead, they proceeded with this lawsuit,” Spatt said, noting that Nancy Cave invited a news crew to show up with her and her son on Jan. 4 as they tried unsuccessfully to get a principal to let Simba inside the building with his owner.
The family, of course, plans to appeal. (Newsday; Daily News)
Jury blames hit-run death on wheelchair curb cut
In 2001, when a CVS pharmacy opened on North Middletown Road in Pearl River, N.Y., Rockland County administrators approved a curb cut on the nearby sidewalk to facilitate wheelchair access from the road to the sidewalk. Three years later Stacey Gersten, 48, who had a “mild developmental disability”, tried to cross the road on foot at that point and was struck and killed by a hit-run driver, Duane Boos. In December a jury agreed to assign 65 percent of the blame for Gersten’s death to the county; it assigned 35 percent of the blame to Boos and none to Gersten. James Lynch, a Paramus, N.J. lawyer who represented the Gersten family, “said the jury agreed that the curb cut at the sidewalk outside the CVS was an ‘invitation’ for pedestrians to cross at a ‘dangerous spot’,” one with no crosswalk and no curb cut at the opposite side.
In short, it would seem that the county is liable because in its effort to help wheelchair users, it provided an inordinate temptation to jaywalkers. And as disabled advocates regularly point out, wheelchair users are not the only group that benefits from curb cuts. Bicyclists and scooter users, parents with strollers, the elderly with walkers, people using a dolly or cart to manage a load of goods — all may legitimately desire midblock access to a road without intending to cross to its other side.
Without visiting the actual site of the accident it’s hard to draw definitive conclusions. It would be a shame, however, if liability-averse road authorities drew the lesson that from now on it is going to be legally risky for them to install curb cuts anywhere other than at crosswalks. (Khurram Saeed, “Rockland hit-and-run victim’s family wins $1 million lawsuit”, White Plains (N.Y.) Journal-News, Dec. 22).
Update: Pacenza v. IBM–Lawsuit alleges Internet sex chat addiction is entitled to ADA protection
James Pacenza’s $5 million lawsuit against his employer for firing him for seeking cybersex at work is still pending today after being filed in 2004. It first got coverage in Business Week and Overlawyered in December, was picked up in News of the Weird a few weeks ago, and then covered by the AP today (h/t W.F.). Pacenza blames his sex- and Internet-addiction on his Vietnam War service and triggers from the Gulf War; as evidence that he should be rehired, he cites to his obscene phone calls to strangers and visits of prostitutes. We have the major filings:
- Complaint
- IBM motion for summary judgment (part 1)
- IBM motion for summary judgment (part 2)
- Pacenza opposition to summary judgment
I’m inclined to be mildly sympathetic to Pacenza’s situation (as opposed to his lawsuit); a chat-room is hardly more disruptive to productivity than an Ebay visit, and Pacenza’s largely automated job had a lot of waiting time. But the employment-discrimination laws are not a civil-service review of whether a firing was a good management decision: IBM’s rationale for firing Pacenza was in response to employees complaining that the chat-room was sexually offensive after Pacenza had been previously warned about visiting pornographic sites; IBM was in a damned-if-you-do, damned-if-you-don’t situation because of the risk of a sexual harassment lawsuit, and failure to act against Pacenza might’ve been used against it in other litigation as evidence of a “pattern or practice” of condoning sexually offensive activity at work.
(Updated to note earlier Overlawyered post.)
Update: disabled-access impresario Ted Omholt
Readers who follow the phenomenon of ADA filing mills (Dec. 7, etc.) may recall the case of West Coast attorney Theodore Omholt, who has filed hundreds of legal complaints against businesses for violations (trivial or otherwise) of disabled-access laws, which he then settles for cash. In Honolulu, according to one news report, Omholt filed 574 lawsuits. (Carolyn Said, “Controversial disability rights lawyer”, San Francisco Chronicle, Apr. 21, 2002.) Omholt then refocused his practice on California where he sent out the following letter, quoted in my article three years ago in City Journal:
I am the attorney (age 48) who for the past three years has had the privilege to represent a small action group of six wonderful individuals who use wheelchairs age 37 to 66. . . . Their shopping at inaccessible stores in San Francisco and then filing lawsuits as clients of mine against those inaccessible stores nets them each an income which makes them financially independent. For each of them, the lack of funds which used to limit them to life’s bare necessities and which plagues so many disabled individuals today has become only an unpleasant memory from the past. As a reward for implementing the law and making stores more accessible for other disabled shoppers, group members now use their stream of income to eat out at good restaurants when they want to, buy new clothes and computers and televisions and gifts for family members, travel and take vacations wherever and whenever they want to go, and live a lifestyle they could only imagine prior to joining the group. . . . The group has room for a small number of additional members. Once that small number of additional members has been selected, the group will again close to new members.
Alas, even the most thoughtfully devised business plans sometimes meet with a hitch. Reader W.R. alerts us to this copy of Supreme Court minutes (PDF) from San Francisco, dated May 10 of last year, which at page 51 reports the following:
S143253 OMHOLT ON RESIGNATION — The voluntary resignation of TED OMHOLT, State Bar No. 92979, as a member of the State Bar of California is accepted without prejudice to further proceedings in any disciplinary proceeding pending against respondent should he hereafter seek reinstatement. It is ordered that he comply with rule 955 of the California Rules of Court and that he perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 days, respectively, after the date this order is filed.* Costs are awarded to the State Bar. *(See Bus. and Prof. Code, §6126, subd. (c).)
It’s too bad the minutes aren’t more informative about the circumstances surrounding Mr. Omholt’s voluntary resignation from the California bar. Readers familiar with the details are welcome to illuminate matters.
UPDATE: Omholt writes to dispute the accuracy of certain details in the Honolulu account; seeing no reason to doubt his word, we have revised the post to omit those details.
Slow typist sues law school, cont’d
The Ann Arbor News covers Adrian Zachariasewycz’s complaint against the University of Michigan Law School (see Jan. 27), and quotes me along the way:
In addition to seeking unspecified monetary damages, Zachariasewycz wants the law school to study his scores and provide a letter or make a verbal statement to prospective employers saying that his typing was a factor in his exams.
“I paid a lot of money to go to law school,” Zachariasewycz said. “I interrupted my career. I worked very hard. And I got a big zero out of it.”
Walter Olson, a senior fellow at the Manhattan Institute, a conservative think tank in New York City, is founder of overlawyered.com, which posted a comment about the case and other lawsuits Olson believes have “eyebrow-raising potential.”
“It’s hard to figure out what’s been done to him that’s unlawful,” Olson said.
Olson said he thought it first had something to do with rights of the disabled.
“But it looks like he’s just an ordinary bad typist like a lot of the rest of us.”
(Jo Collins Mathis, “U-M law school sued over grad’s poor typing skills”, Ann Arbor News, Feb. 2).