I don’t have time to write my own post now but the following is urgent – write to you elected officials in Congress NOW. Obama has just nominated an enemy of those with disabilities to serve on the United States Court of Appeals for the Fourth District. There are already TOO MANY EVIL and MORONIC judges in our Federal Courts now who ignore the needs of those with disabilities, we don’t need any more.

The following is a news release I just received. Read it and then contact your elected officials.

News Release:

Obama Judicial Nominee Draws Opposition From Disability Community

Judge Andre Davis’ Record Reveals Bias Against Workers with Disabilities

April 29, 2009

Contact: Jim Ward, President
ADA Watch/National Coalition for Disability Rights (NCDR) Washington, DC

A national nonpartisan coalition of disability, civil rights and social justice organizations today announced their opposition to the confirmation of Judge Andre Davis, President Obama’s pick for a lifetime seat on the United States Court of Appeals for the Fourth Circuit.

ADA Watch and the National Coalition for Disability Rights (NCDR) are opposing Davis because his record as a district court judge in Maryland reveals a bias against workers with disabilities. The group stated that the Americans with Disabilities Act (ADA) is critical to the efforts of people with disabilities to obtain and maintain employment and to become fully participating members of their communities.

The organization’s president, Jim Ward joined other leaders at the White House last week and informed the Administration of their opposition. Ward stated today, “The current leadership in Congress and the White House have promised to select judicial nominees who understand the challenges facing working Americans and who are committed to core value of equal justice. We believe that in the area of disability rights this nominee’s record does not meet these baseline criteria and, therefore, we are opposed to Judge Davis’s elevation to the Fourth Circuit and will mobilize our membership in this regard.”

·Judge Davis has repeatedly imposed inappropriately stringent standards that have prevented individuals with disabilities from enforcing rights under federal antidiscrimination laws, particularly in the area of employment.

·He has made it exceedingly difficult for people to show that they are individuals with disabilities entitled to the protections that Congress provided in the ADA.

·He has incorrectly imposed procedural hurdles on ADA plaintiffs that are contrary to the ADA’s requirements.

·He has applied cramped interpretations of law to reject the discrimination claims of workers with disabilities.

ADA Watch is a national, cross-disability coalition of hundreds of disability, civil rights and social justice organizations united to defend and advance the civil rights of people with disabilities. The National Coalition for Disability Rights (NCDR) is the national association of state disability coalitions. For nearly a decade, ADA Watch/NCDR’s Campaign for Fair Judges has informed the disability community and the general public regarding judicial nominees that pose a threat, based on their public records, to civil rights protections under the Americans with Disabilities Act (ADA) and other disability rights laws. While not all of our national and state coalition partners take positions on judicial nominees or share this position, a majority of our Board of Directors has voted to formally oppose the confirmation of Judge Davis.

Excerpts from letter to White House with legal research and analysis by the Bazelon Center for Mental Health Law:

The White House has asserted that Judge Davis has a very balanced track record in disability cases.We appreciate that Judge Davis has reached decisions favorable to the plaintiffs in cases involving issues such as physical access to courthouses and housing developments, and effective communications with medical providers. These cases do not, however, assuage our concerns about Judge Davis’s record in the area of employment discrimination, in which people with disabilities fare particularly poorly.[1]It is in that context that the vast majority of disability discrimination cases are brought.As such, it is in that context that we are particularly concerned with ensuring that our judges respect the civil rights of individuals with disabilities.

We could find only one published decision, in nearly 14 years on the bench, in which Judge Davis ruled in favor of the plaintiff on the substance of an Americans with Disabilities Act (ADA) employment discrimination claim.[2]A number of the decisions in which he ruled for the employer are deeply troubling in ways that relate to core disability community concerns:

In Rose v. Home Depot U.S.A., Inc., 186 F. Supp.2d 595 (D. Md. 2002), Judge Davis set out extraordinary hurdles for a person to demonstrate that he had a disability.The judge refused to recognize Gary Rose’s disability because he “did not follow the proper protocol in determining whether he had vasomotor rhinitis” and “did not receive a proper treatment plan for his impairment.”Nothing in the ADA requires a person to have a proper diagnosis or a treatment plan in place for his disability in order to receive protection from discrimination.Judge Davis, however, found that Rose should have followed up with a different doctor, undergone a CT scan to rule out the possibility of a different diagnosis, and “consistently followed a treatment regime” in order to establish his disability. This type of analysis is particularly problematic for individuals with disabilities that are challenging to diagnose accurately and treat effectively, including many individuals with psychiatric disabilities.The notion that individuals should be denied protection under the ADA until they have spent months or years trying to obtain effective treatment to control the effects of their disabilities is a perversion of the ADA, and is certainly not suggested by the decisions of either the Supreme Court or the Fourth Circuit.[3]

In Fitch v. Solipsys Corp., 94 F. Supp.2d 670 (D. Md. 2000), Judge Davis held that the ADA’s “regarded as” prong did not protect someone who is repeatedly referred to as a “cripple” by his employer.Keith Fitch presented evidence that he was referred to by his employer as a “cripple” on multiple occasions due to a heart condition that limited him from lifting more than forty pounds.Judge Davis concluded that this was not sufficient to show that he was regarded as disabled in the context of a work environment where “employees regularly used derogatory nicknames for each other.”

·In Martell v. Sparrow’s Point Scrap Processing, LLC, 214 F. Supp.2d 527 (D. Md. 2002), Judge Davis held that the “regarded as” prong did not protect someone who is denied a job, even though the employer did not hire the applicant precisely because of his “abnormal hearing.”Robert Martell presented evidence that he was regarded as substantially limited in hearing and working when an employer withdrew a job offer after learning that he had a hearing impairment, even though his hearing aids allowed him to recover “virtually all of his auditory capacity.”In a holding not required by Fourth Circuit authority, Judge Davis found that Martell was not regarded as substantially limited in either hearing or working, even though the employer explicitly admitted that it refused to hire Martell because it believed that his “abnormal hearing” would create a danger in a noisy industrial setting.

·In Campbell v. Federal Express Corp., 918 F. Supp. 912 (D. Md. 1996), the plaintiff, an applicant for a courier position whose left hand had been injured and lacked flexion, did not challenge Federal Express’s refusal to hire him with the federal Department of Transportation.Judge Davis held that the ADA requires a person bringing an employment claim under the ADA to exhaust an administrative review process with another agency, in this case the DOT, in addition to the Equal Employment Opportunity Commission (EEOC) where an employer relies on that agency’s regulations to support its defense.There is no requirement in the ADA or its regulations that plaintiffs in employment discrimination cases do so, only that they first seek relief from the EEOC before filing in federal court.

·Finally, Judge Davis requires even pro se ADA litigants to overcome significant hurdles in exhausting their claims before filing. In Walton v. Guidant Sales Corp., 417 F. Supp.2d 719 (D. Md. 2006), Judge Davis dismissed the disability employment discrimination claim of a pro se plaintiff for failure to exhaust administrative remedies.Judge Davis ruled that, even though the EEOC itself considered the plaintiff to have filed a sufficient administrative charge within the statute of limitations, he had not.Judge Davis also ruled that equitable tolling should not apply.Equitable tolling applies when a pro se plaintiff misses a charge filing deadline due to reliance on misleading or incorrect information from the EEOC.Judge Davis held that the plaintiff here had not met this standard even though the plaintiff had contacted the EEOC on numerous occasions to inquire about the status of his administrative charge, was initially sent the wrong form by the EEOC, alleged that he timely filed the corrected form that he was sent after informing the EEOC of their mistake, and was helped by the EEOC to complete another charge after the deadline because they could not find his earlier form and had experienced problems with their data management system during the relevant time period.

These holdings demonstrate a troubling misunderstanding of Congress’s intent that the ADA offer significant protections from discrimination to millions of workers with disabilities.Our concern is not diminished by the enactment last year of the ADAAA, which restored the ADA’s definition of disability to the broad scope intended by Congress and wrongfully restricted by decisions such as Judge Davis’s.These decisions, erroneously decided as they are, leave us fearful that Judge Davis may similarly misinterpret last year’s amendments.

The selection of judicial nominees is extraordinarily important to our community given the serious obstacles that individuals with disabilities have faced in trying to enforce their rights in the courts, particularly in the context of workplace discrimination.The Fourth Circuit is of foremost concern to us, since that court is now closely split and in recent years has decided many significant disability rights decisions by divided panels.More than any other circuit, the Fourth Circuit has the potential to undergo significant balance-shifting when its vacant seats are filled.

The ADA’s protections are critical to the efforts of people with disabilities to obtain and maintain employment and to become independent and fully participating members of their communities.We are very concerned that Judge Davis’s elevation to the Fourth Circuit will do little to ensure that their rights are protected.We hope that you will recognize that and will take seriously the concerns of people with disabilities in the Judiciary Committee’s consideration of Judge Davis’s nomination.

[1] See, e.g., Ruth Colker, Winning and Losing Under the Americans with Disabilities Act, 62 Ohio State L.J. 239 (2001) (documenting pro-defendant trial court outcomes in 94% of ADA employment discrimination cases, and appellate court reversals of pro-defendant outcomes in only 12% of these cases as compared with reversals of pro-plaintiff decisions in 42% of cases and reduction of damage awards in an additional 17.5% of cases).

[2] Additionally, we have identified two unpublished decisions in which Judge Davis ruled in part for a plaintiff and in part for an employer in cases involving disability-based employment discrimination claims.

[3] In Rose, Judge Davis relied on a summary affirmance in Tangires v. The Johns Hopkins Hospital, 79 F. Supp.2d 587, aff’d, 230 F.3d 1354 (4th Cir. 2000), in which the court found that a woman with asthma was not disabled because she had failed to take steroid medication recommended by her doctor.A summary affirmance affirms only the judgment and not the reasoning by which any particular aspect of the decision was reached.Mandel v. Bradley, 432 US 173, 176 (1977).Additionally the type of reasoning employed by Judge Davis in Rose, and by the court in Tangires, has been the subject of much criticism by courts and commentators.See, e.g., Nawrot v. CPC Int’l, 277 F.3d 896, 907 (7th Cir. 2002) (courts should not “meander in ‘would, could, or should-have’ land” and should “consider only the [mitigating] measures actually taken and consequences that actually follow”).