Page added on March 19, 2009

Email This Post Printable version

Judicial Nominee’s Troublesome Disability Rights Record

Please help protect disability rights by contacting Senator Barbara A. Mikulski, Senator Benjamin L. Cardin and the White House regarding the following:

Maryland Sens. Mikulski and Cardin have confirmed that they recommended Maryland U.S. District Court Judge Andre M. Davis for an open position on the 4th Circuit Court of Appeals.The 4th Circuit is the court of last resort for most cases from Maryland, Virginia, West Virginia and North and South Carolina. It has historically been a difficult forum for people with disabilities. (See references below.)

ADA Watch, a project of the National Coalition for Disability Rights (NCDR), has a long history of engaging the disability rights grassroots in the judicial nominations selection process and supports judges who are respectful of the civil rights of people with disabilities. We are concerned that Judge Davis, as evidenced by his record, does not meet this basic threshold.

We respectfully call on Sens. Mikulski and Cardin to reconsider their support for Judge Davis and ask that the Obama Administration meet with representatives of the disability community before deciding on the nomination of Judge Davis.

Judge Davis’s record (see references below) raises serious concerns about whether the civil rights of people with disabilities will be adequately protected:

– He has repeatedly imposed inappropriately stringent standards that have prevented individuals from enforcing rights under federal anti-discrimination laws, particularly in the area of employment. In nearly 14 years on the bench, Judge Davis has only once ruled in favor of a plaintiff on the substance of an ADA employment discrimination claim.

– Judge Davis 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. This narrow interpretation of the ADA’s definition of disability constitutes just what the disability community worked so hard to address with the recent passage of the ADA Amendments Act.

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

– Judge Davis has applied cramped interpretations of law to reject the discrimination claims of workers with disabilities.

Please contact Sens. Mikulski and Cardin, as well as the White House, and explain that while we appreciate their desire to select judicial nominees who are not only talented but fair and respectful of civil rights, that fairness and respect should extend to the rights of people with disabilities, Judge Davis’s record, in fact, raises serious concerns about whether these rights will be adequately protected.

The Honorable Barbara Mikulski
United States Senate
503 Hart Senate Office Building
Washington, D.C. 20510
Web Email: http://mikulski.senate.gov/mailform.html
Telephone: 202-224-4654
FAX: 202-224-8858

The Honorable Benjamin Cardin
United States Senate
509 Hart Senate Office Building
Washington, D.C. 20510
Web Email: http://cardin.senate.gov/contact/email.cfm
Telephone: 202-224-4524
FAX: 202-224-4524

The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500
Web Email: http://www.whitehouse.gov/contact/
Telephone: 202-456-1414
FAX: 202-456-2461

Background References on Judge Andre Davis and the 4th Circuit Court of Appeals

By Jennifer Mathis, Staff Attorney
Bazelon Center for Mental Health Law

As advocates in Maryland have reported, as a district court judge in Maryland Judge Davis has a record of highly problematic rulings in disability rights cases. He 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. Indeed, we were able to find only one published decision, in nearly 14 years on the bench, in which Judge Davis ruled in favor of a plaintiff on the substance of an ADA employment discrimination claim. In some cases, his rulings are inconsistent with the plain language of the ADA.

Judge Davis 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. See, e.g., Rose v. Home Depot U.S.A., Inc., 186 F. Supp.2d 595 (D. Md. 2002) (despite fact that nothing in the ADA requires that a person with a disability have a treatment plan to obtain ADA protections, holding that plaintiff whose vasomotor rhinitis affected his breathing, sleeping, and working did not have a disability because he did not have a treatment plan in place for his rhinitis); Martell v. Sparrows Point Scrap Processing, LLC, 214 F. Supp.2d 527 (D. Md. 2002) (employer did not regard a job applicant as disabled, even though the employer did not hire the applicant as a crane operator precisely because of his “abnormal” hearing).

He has incorrectly imposed procedural hurdles on ADA plaintiffs that are contrary to the ADA’s requirements. See Campbell v. Federal Express Corp., 918 F. Supp. 912 (D. Md. 1996) (dismissing employment discrimination claim for failure to exhaust administrative remedies because the plaintiff, who was denied a job as a courier due to his limited hand mobility, did not challenge Federal Express’s refusal to hire him with the federal Department of Transportation; the ADA has never required plaintiffs in employment discrimination cases to exhaust with any federal agency except the EEOC).

He has applied cramped interpretations of law to reject the discrimination claims of workers with disabilities. See, e.g., Fitch v. Solipsys Corp., 94 F. Supp.2d 670 (D. Md. 2000) (granting summary judgment to employer on disability discrimination and harassment claims, finding that employee who was repeatedly denied accommodations for a heart condition and lifting restriction did not have a disability and was not regarded as disabled even though employer and employer’s son called him a “cripple” on different occasions, and that this conduct was not harassment); Walton v. Guidant Sales Corp., 417 F. Supp.2d 719 (D. Md. 2006) (dismissing disability discrimination claim of pro se plaintiff for failure to timely file a charge with EEOC despite the EEOC’s own determination that plaintiff’s charge was timely filed, and refusing to apply equitable tolling even though plaintiff had contacted EEOC on numerous occasions to inquire about the status of his administrative charge, was initially sent the wrong form by EEOC, alleged that he timely filed the corrected form that he was sent after informing EEOC of their mistake, and was helped by EEOC to complete another charge after the deadline because they had experienced problems with their data management system and could not find his charge form).

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. 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 are very concerned that Judge Davis’s elevation to the Fourth Circuit, which has historically been a difficult forum for people with disabilities, 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 process of recommending candidates for judicial selection.

The Fourth Circuit: Disability Rights Hang in the Balance

In its waning months, the Bush administration has continued to push controversial judicial nominees for the United States Court of Appeals for the Fourth Circuit, one of the most important federal appeals courts, through the Senate confirmation process. The Fourth Circuit was for many years extremely hostile to disability and other civil rights. Due to the departure of a number of conservative judges, however, the court is now closely divided on issues important to people with disabilities.

For many years, the Fourth Circuit, which hears federal appeals from Maryland, Virginia, North Carolina, and South Carolina, was considered extremely hostile to disability rights. A 2001 study revealed that it had the lowest rate of decisions in favor of ADA employment discrimination plaintiffs among all the federal appeals courts, finding for plaintiffs in only 0.3 percent of cases, as compared to the 6 percent average amongst the other appeals courts. [1] In one infamous case, the Fourth Circuit ruled that the Equal Employment Opportunity Commission (EEOC) could not enforce the Americans with Disabilities Act (ADA) in a case where an employee with a disability had signed an agreement to arbitrate employment disputes. EEOC v. Waffle House, Inc., 193 F.3d 805 (4th Cir. 1999). This decision was later overruled by the Supreme Court, which held that the EEOC has the power to enforce the ADA regardless of any arbitration agreement between an employer and an employee facing discrimination.

Over a number of years, the Fourth Circuit consistently held that Congress had no power to enact key portions of the ADA. See Shepard v. Irving, 77 Fed. Appx. 615, 618 (4th Cir. 2003) (Congress exceeded its Fourteenth Amendment authority in authorizing claims under Title II of the ADA); Wessel v. Glendening, 306 F.3d 203, 208-15 (4th Cir. 2002) (same); Brown v. North Carolina Division of Motor Vehicles, 166 F.3d 698, 700-08 (4th Cir. 1999), cert. denied, 531 U.S. 1190 (2001) (no Fourteenth Amendment authority for ADA regulation barring the imposition of surcharges on people with disabilities for measures taken to provide program access). [2]

More recently, however, as conservative judges have left the bench, the Fourth Circuit has been closely divided on disability rights issues. The court’s recent decisions concerning Congress’s power to enact the ADA reflect this division. Compare Constantine v. Rectors & Visitors of George Mason University, 411 F.3d 474, 490 (2008) (Congress had authority under the Fourteenth Amendment to authorize ADA Title II claims concerning public higher education) with Spencer v. Earley, 2008 WL 2076429 (4th Cir. May 16, 2008) (Congress lacked authority under the Fourteenth Amendment to authorize ADA Title II claims concerning prisons unless they involve conduct that would also violate the Constitution).

Many recent Fourth Circuit cases involving significant disability rights issues have been decided by divided panels. Plaintiffs have prevailed at an increasing rate as the court has grown more moderate. Compare, e.g., Wilson v. Phoenix Specialty Manf’g Co., 513 F.3d 378 (4th Cir. 2008) (2-1 decision holding that employee with Parkinson’s Disease was protected by the ADA because employer regarded him as having a disability under the ADA) and Doe v. Kidd, 501 F.3d 348 (4th Cir. 2007) (2-1 decision holding that Medicaid recipients can privately enforce their right to obtain Medicaid services with reasonable promptness) with Rohan v. Networks Presentations, L.L.C., 375 F.3d 266 (4th Cir. 2004) (2-1 decision holding that employee with severe and chronic depression and post traumatic stress disorder was not protected by the ADA because she did not have a disability) and Laird v. Redwood Trust, L.L.C., 392 F.3d 661 (4th Cir. 2004) (2-1 decision holding that the ADA did not require a restaurant and lounge to make accessible a level of the building that had an open space in the floor and was therefore a “mezzanine” rather than a “story;” dissent noted that majority’s decision would enable covered entities to avoid providing access simply by drilling a hole in the floor).

[1] Ruth Colker, Winning and Losing Under the Americans with Disabilities Act, 62 Ohio State L. J. 239, 275 (2001).

[1] The one exception was Amos v. Maryland Dep’t. of Pub. Safety and Correctional Servs., 178 F.3d 212 (4th Cir. 1999), in which a divided panel upheld Congress’s Fourteenth Amendment authority to enact the ADA. That decision was subsequently vacated, however, and set for en banc reconsideration. The case was ultimately dismissed as part of a settlement. Amos, 205 F.3d 687 (4^th Cir. 2000).

One Comment on "Judicial Nominee’s Troublesome Disability Rights Record"

reba dickstein on Sun, 22nd Mar 2009 3:00 pm

I respectfully call on Sens. Mikulski and Cardin to reconsider their support for Judge Davis and ask that the Obama Administration meet with representatives of the disability community before deciding on the nomination of Judge Davis.

DISABILITY RESOURCES

NCDR
Official Site of the National Coalition for Disability Rights

Wired on Wheels
Rate America for Accessibility

Road To Freedom
Bus Tour and Disability Rights History Exhibit

Judicial Nominee’s Troublesome Disability Rights Record

National Coalition for Disability Rights (NCDR) © 2008-2009