How Judges Cheat — Part 5

I’ve been looking a bit lately at the Americans with Disabilities Act (ADA) and how it might apply to some barefooters. In the process, I’ve come across even more examples of how judges cheat, so I might as well add it to my “How Judges Cheat” series.

It also adds a different perspective to my thoughts on how the ADA might apply to barefooters.

When I first wrote The Americans with Disabilities Act and the Barefooted I was fairly optimistic about how the ADA might apply to barefooters who do fine without shoes but have various problems when shod. But I’ve started looking at the court cases that have arisen in the enforcement of the ADA, and, just as what happened in my lawsuits against libraries, I see that judges cheat as they thwart the intent and language of the law. (And that only emphasizes an old maxim: “The law means what judges say it means.”)

The original ADA was passed in 1990. It started almost immediately. When creating regulations to enforce the ADA, the Equal Employment Opportunity Commission defined the term “substantially limits” (as in a disability substantially limits one’s major life activities) to mean “significantly restricts”. Then, with a pair of decisions, Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court took a crabbed view of protecting people with disabilities and found that first, if the disability was somehow correctable (i.e., special glasses) it wasn’t a disability at all; and second, that the ADA should be strictly construed to create a demanding standard for deciding who was disabled, and that the major life activities that defined a disability had to be so major that they impacted taking basic care of oneself, like getting dressed.

In Sutton, they created the Catch-22 situation that persons who wanted to be commercial airline pilots but who had correctably poor vision were not disabled. But then, it was OK for the airline to exclude them because their uncorrected vision did not meet the airline’s standards. In Toyota, an employee with carpal tunnel syndrome was considered not to be disabled because she could still do things like brush her teeth. (She did perfectly OK on her original job, but Toyota suddenly decided that employees should be able to do a whole range of jobs, and the employee could not do all of them because of her condition.)

Under this crabbed standard, only 7% of those who brought claims under the ADA were successful when they sued.

In 2008 the ADA was amended (so it is now the Americans with Disabilities Act As Amended: ADAAA). Congress decided that the Supreme Court had totally misinterpreted the original ADA and went to correct that. They included examples of what “major life activities” were (to include walking, standing, lifting, and reading), and they provided guidance in how to interpret the Amended Act:

(A) The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.

(B) The term ‘substantially limits’ shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.

(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

(E)(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures . . .

They still didn’t define “substantially limits”, though. As you can see, all they said was that it should allow broad coverage. (Often, though, in legal terms, “substantial” doesn’t necessarily mean “a lot”, but means “having substance”. So it doesn’t have to be a lot, just an identifiable portion.)

And that means that judges can (and do) try to substantially limit claims of disability discrimination by substantially limiting what “substantially limits” means.

So, on to a case I found in which a judge clearly cheats in interpreting the ADAAA to next time.

The case is Swann v. US Foods, INC. from the Eastern District of Virginia in 2015. Eugene Swann was fired from his job as a truck driver with US Foods. Swann claimed that it was because he was disabled and complained about unfair treatment and was retaliated against by US Foods. US Foods claims that Swann violated their policy regarding workplace violence and that that is why they fired him.

The case was decided on summary judgment. Summary judgment applies when, even before any trial, all the supposed material facts are laid out. If those facts are in dispute, then a trial must be held. But if they are not in dispute, why go to trial? The case can be more quickly disposed of at that time by applying the law to those undisputed facts.

Now, the court acknowledged that there were material facts in dispute regarding what happened in the dispute between Swann and the other employee. So that would seem to preclude summary judgment.

But what if the case could be disposed of in a way that that dispute never came into play? The court ruled that Swann simply was not disabled, hence he could not have been retaliated against for being disabled.

Swann claimed two disabilities. For one, he had a noticeable limp from a previous injury, but he had to take three months off for surgery to that leg. For the other, while at work, he injured his hand and arm, which caused extreme pain, weakness, and numbness. As a result he missed work and required an accommodation regarding use of his arm.

Regarding why the leg issue was not a disability, the court opined:

Importantly, the record does not reflect that this injury substantially limits plaintiff’s ability to walk or work; instead, the record reflects only that the injury causes him to walk with a “noticeable limp.” Although walking is a major life activity,[3] courts have held that an injury that only moderately affects one’s ability to walk, absent additional evidence, is not a substantial limitation on the major life activity of walking.[4]

Here’s what the court had to say about why the arm injury was not a disability:

First, the record evidence does not show that his wrist injury “substantially limits” a major life activity. Although working is a major life activity,[5] courts uniformly hold that being placed on light duty work as a result of an injury is insufficient as a matter of law to establish that the injury substantially affects the major life activity of working.[6] The doctors who examined plaintiff after his wrist injury recommended that he be placed on light duty for two weeks with a twenty-five pound lifting restriction and did not believe he needed to cease work altogether. Accordingly, plaintiff’s June 2012 injury did not substantially limit any major life activity and thus was not a qualifying disability under the ADA.

I took a look at the lawsuit documents. While it is true that Swann only talked about his limp and did not specifically mention pain (though an orthopedist report noted that there had been “no sudden or severe increase in pain or swelling in his leg” (emphasis added), suggesting that his limp generally gives him some amount of pain.

But what was really telling (and which was the “cheat”, was the list of supported opinions that the judge cited regarding the leg (in footnote [4]), when saying “courts have held that an injury that only moderately affects one’s ability to walk, absent additional evidence, is not a substantial limitation on the major life activity of walking”. Here’s a representative sample. See if you can spot the “cheat”.

• Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 686 (8th Cir. 2003) (plaintiff’s ability to walk was not substantially limited where he could not walk longer than one-quarter of one mile without resting).
• Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir. 1999) (limping due to unequal length of legs did not substantially limit major life activity as “moderate difficulty experienced while walking does not rise to the level of a disability”).
• Penny v. United Parcel Serv., 128 F.3d 408, 414-17 (6th Cir. 1997) (finding that “moderate difficulty or pain experienced while walking does not rise to the level of a disability”).
• Stewart v. Weast, 228 F. Supp. 2d 660, 662 (D. Md. 2002) (“[A]n inability to walk long distances or climb stairs does not in itself substantially limit the persons [sic] ability to walk within the meaning of the ADA.”).

Every single case cited pre-dated the amendments to the ADA.

Don’t forget, this case was from 2015, long after the ADA was amended in 2008. The whole purpose of the amendments was to invalidate all of those previous court opinions. Yet the judge used them anyways.

And it wasn’t as if the judge was somehow ignorant. Swann’s attorneys carefully briefed the judge on it:

This portion of Defendant’s argument seems would have the Court wholly ignore the 2008 Amendments to the ADA, as far as what can qualify as a major life activity, and what qualifies as a substantial limitation. The law relied upon by Defendant is outdated. The non-exhaustive list of major life activities listed in Section 4(4)(A) of the Amended Act includes lifting as a major life activity, and major bodily functions under that law, also include neurological items. . . .

It should also be noted that the authorities cited by Defendant, and argument, are precisely the type of grudging application of the definition of disability under the ADA, that the amendments, as well as regulations pursuant to the amendments, were supposed to have explicitly rejected, in the text of the law itself.

Heck, the judge made sure in the opinion never to even mention that the ADA had been amended. That is world-championship cheating.

OK, but maybe Swann didn’t do a good job of explaining how his leg was disabled. What about his arm?

There was plenty of evidence that his arm caused a lot of pain and he really was limited in what he could do with it. From the Motion Opposing Summary Judgment:

The cervical spondylosis and compressed discs, and attendant nerve problems running down his right arm, and reducing by 17% (without further treatment, says Dr. Bruno) his use of his left arm are not transitory and minor conditions. These qualify as an actual disability under the ADA, as amended.

Yet, the judge said, “courts uniformly hold that being placed on light duty work as a result of an injury is insufficient as a matter of law to establish that the injury substantially affects the major life activity of working.[6]” Let’s look at a representative sample of those cases cited in footnote [6]:

• Williams v. Channel Master Satellite Sys., 101 F.3d 346, 349 (4th Cir. 1996) (per curiam) (citation omitted) (affirming summary judgment and holding “as a matter of law, that a twenty-five pound lifting limitation—particularly when compared to an average person’s abilities—does not constitute a significant restriction on one’s ability to lift, work, or perform any other major life activity”),
• Lyons v. Shinseki, 454 F. App’x 181, 183 (4th Cir. 2011) (unpublished) (affirming summary judgment on grounds that plaintiff did not have disability where “Lyons has failed to produce probative evidence that his inability to lift more than twenty-five pounds constitutes a substantial limitation”);
• Settle v. S.W. Rodgers Co., 182 F.3d 909, No. 98-2312, at *3 (4th Cir. 1999) (unpublished) (affirming summary judgment and holding that plaintiff was not disabled when he was placed on light duty four weeks after his surgery and returned to full duty several weeks later).

Hey, look! The judge cited a case from 2011, from after the amendments. Except. Except the events in Lyons v. Shinseki occurred before the Amended Act went into effect. From Lyons:

The ADA was amended effective January 1, 2009, after this suit was filed. See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. Congress did not expressly intend for these changes to apply retroactively, and so we must decide this appeal based on the law in place prior to the amendments.

So the judge, in ruling against Swann having a disability, did not cite a single case that actually applied.

Cheater.

This is the sort of cheating I fear if any barefooter were to try to use the ADAAA. We’ve seen before how judges seem to invoke what I call “the barefoot exception”. If they are opposed to bare feet (as so many are), they find a way.