Petition for Writ of Certiorari — Nicholas Conlan, Petitioner v. Costco Wholesale Corporation

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No.

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Sn tlje Supreme Court of tfje fHniteb States

FILED

DEC 2 4 2022

Nicholas Conlan v. Costco Wholesale

OFFICE OF THE CLERK

SUPREME COURT. U.S.

On Petition for Writ of Certiorari to

The United States Court of Appeals for the 9th Circuit

Petition for Writ of Certiorari

Nicholas Conlan

323 West Daly Street

Walkerville, MT 39701

406-750-1288

Page 1 of 33

Questions Presented

Did Costco violate the Americans with Disabilities Amendment Act by

terminating the interactive process with ambiguities they had and not

directly engaging in the interactive process with Conlan?

Was Costco’s proffered reason for firing him—that Conlan violated Costco’s

leave of absence policy—was pretextual, and that the true reason was

Conlan’s disability and request for an accommodation of a service dog?

Does Title I of the ADA allow the accommodation of an emotional support

animal or does the animal have to be a service animal?

Was Conlan denied a Jury Trial, when he requested one in his Second

Amended Complaint?

Page 2 of 33

Contents

Questions Presented

2

PETITION FOR WRIT OF CERTIORARI

6

Opinions Below

6

Jurisdiction

7

STATUTORY PROVISIONS INVOLVED

7

STATEMENT OF THE CASE

8

Introduction

8

Did Costco violate the Americans with Disabilities Amendment Act, by

terminating the interactive process (and Conlan) with ambiguities they

had regarding Conlan’s medical information?

12

Was Costco’s proffered reason for firing him—that Conlan violated

Costco’s leave of absence policy—was pretextual, and that the true reason

was Conlan’s disability and request for an accommodation of a service

dog?

25

Does Title I of the ADA allow the accommodation of an emotional support

animal or does the animal have to be a service animal?

26

Page 3 of 33

Was Conlan denied a Jury Trial, when he requested one in his Second

Amended Complaint?

28

REASONS FOR GRANTING THE PETITION

28

CONCLUSION AND PRAYER FOR RELIEF

30

Page 4 of 33

Cases

Barnett v. U.S. Air, Inc., 228 F.^d 1105,1114 -1115 (gth Cir. 2000)

17, 21

Keith v. County of Oakland, 2013 U.S. App, LEXIS 39

20

Mercer v. Arbor E &T, LLC, 2013 WL164107 (S.D. Tex. Jan. 13, 2013)

22

Reeves v. Dairy Queen, Inc., 1998 MT13, •[ 13, 287 Mont. 196, 953 P.2d 703... 14,

20

U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 416 (2002)

13

Statutes

29 C.F.R. pt. 1630 app. § 1630.2(0)

13

42 U.S.C. § 12112 (b)(5)(A)

13

42 USC §12102(4) (D)

22

Other Authorities

Sharan E. Brown, Legal Brief: Service Animals and Individuals With

Disabilities Under the Americans With Disabilities Act (ADA), ADA

Knowledge Translation Center (2019) p. 2

26

Rules

ARM Rule 24.9.606(8)

13

Page 5 of 33

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

Opinions Below

For cases from the Federal Courts:

The opinion of the United States Court of Appeals is unpublished.

The opinion of the United States District Court is unpublished.

Page 6 of 33

Jurisdiction

For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was August 26, 2022.

An extension of time to file the petition for a writ of certiorari was

granted to and including December 24, 2022 on December 6, 2022 in

Application No. 22A495.

The jurisdiction of this Court is invoked under 28 U.S.S. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Americans With Disabilities Act (ADA) 42 U.S.C. §§12101 and on the

Montana Human Rights Act (MHRA), Mont. Code Ann. §§49-2-101.

Page 7 of 33

STATEMENT OF THE CASE

Introduction

This is a case between Nicholas Conlan (Conlan) and his employer

Costco Wholesale Corporation (Costco). Conlan’s job title was an Outside

Marketer. This position required Conlan to travel the State of Montana,

sometimes for days at a time.1 This caused Conlan to experience severe

anxiety and panic attacks that stemmed from a car wreck that he continued

to suffer from, in 2006.2

Conlan requested and was approved for an alternative position in the

Optical Department as an accommodation to alleviate the medical episodes

that Conlan experienced, in March of 2017.3 Conlan did not get the chance

to work in this department, not one shift.

Conlan requested other accommodations such as extra office time to

complete paperwork and respond to emails, use of cell phones to

demonstrate Costco products as well as to report to management while

1 Document 145 Findings of Fact, Conclusions of Law and Order Page 2 *[ 5

2 Document 145 Findings of Fact, Conclusions of Law and Order Page 3 *[ 8

3 Document 121 Trial Transcript, Volume I Page 180 Lines 20-25

Page 8 of 33

traveling the State of Montana, and extra time on breaks to help deal with

the pain Conlan suffered from his workman’s compensation injury (October

1, 2016). These were only some of the accommodations that Conlan

requested and were all denied prior to applying to the Optical Department.

The last accommodation request Conlan requested, was to have his service

animal while traveling.

Conlan brought his service dog “Teddy” to the warehouse on March 11,

2017. This is the “Tire Shop Incident.” Conlan was a customer getting tires

to prepare to get on the road for work, the following day. Conlan established

to his direct Manager “Miller” that “Teddy” was a service animal. Miller

allowed Conlan into the warehouse to purchase tires. After Conlan had

purchased tires and they were being installed, an emotional tyranny ensued

with the tire shop manager and Conlan was ultimately requested to remove

the dog from the warehouse.4

Conlan brought this incident up to the Warehouse General Manager

“Arnold”, on March 24, 2017, (a day after he communicated elevated anxiety

and the benefits of “Teddy” to assistant warehouse manager Dave Preston,

4 Document 145 Findings of Fact, Conclusions of Law and Order Page 4 *111- Page 5 *[ 12 & Document 29

Plaintiff Conlan’s Preliminary Pretrial Statement Page 5-7

Page 9 of 33

“Preston”).5 Arnold brushed off the issue and in fact didn’t follow-up with

Conlan with any investigation regarding the tire shop incident nor the

accommodation request of a service animal.

On April 4, 2017 Conlan followed up with his request to Arnold

regarding having “Teddy” as an accommodation while Conlan was traveling

(since he wasn’t allowed to work in the Optical department). Arnold told

Conlan that he would get back to him after the corporate human resource

walk, they had the next day. He then proceeded to inform Conlan that the

request wasn’t going to be approved, but that he get a doctor’s note. Conlan

went directly to Zimmerman to get the requested document.7 This was the

second request of an accommodation of a service animal to Arnold and

Costco directly.

On April 13, 2017, Conlan was inside of Arnold’s office for two hours

discussing Conlan’s request of a service animal. Costco sent Conlan home,

without a reason as to why Conlan’s request was denied. Conlan was packed

5 Document 23 Defendant Costco Wholesale corporation’s Preliminary Pretrial Statement Page 4- Page 5 &

Document 145 Findings of Fact, Conclusions of Law and Order Page 18 *[ 57

6 Document 145 Findings of Fact, Conclusions of Law and Order Page 5 •[ 14- Page 6 *[ 14

7 Document 54-3 Exhibits; Plaintiff Brief in Opposition to Summary Judgment Page 15 & Document 145

Findings of Fact, Conclusions of Law and Order Page 6 *[ 16

8 Document 145 Findings of Fact, Conclusions of Law and Order Page 6 *[ 15

Page 10 of 33

up ready to leave on a two-day trip, he just had to clock-in and pick-up the

business itinerary for the days he would have been gone. After that, “Teddy”

wouldn’t have been in the warehouse.9 Costco to this day has not provided

an explanation as to why Conlan’s request was denied, nor have they offered

an alternative accommodation to alleviate the anxiety the driving caused

Conlan.

Conlan traveled over sixty miles (each roundtrip) to go to the doctor’s

office numerous times to get a total of 6 diverse doctor’s notes that

articulated the need of a service animal. The notes invited Costco to contact

Conlan’s medical provider, Melissa Zimmerman (formerly Bentley)

(“Zimmerman”), if they had any questions or concerns. Conlan again,

invited Costco to contact him; as an alternative option. Costco did not reach

out, in any fashion, with ambiguities they admittedly had.10 Costco denied

each of these requests without explanation or alternative options.

Costco granted and placed Conlan an unwanted leave of absence, “to

support his request for a service animal.”11 Arnold demanded that

9 Document 145 Findings of Fact, Conclusions of Law and Order Page 8 f 21- Page 9 *[ 24

10 Document 44 Affidavit of Allen Arnold

11 Document 23 Defendant Costco Wholesale Corporation’s Preliminary Pretrial Statement Page 4

Page 11 of 33

Zimmerman sign off on this unwanted leave of absence that Conlan didn’t

want nor ask for. Zimmerman could not sign off on this document as she

was not the one to place Conlan on the leave of absence, Costco was the

party to place Conlan on this leave of absence. (This caused significant

ambiguity that Conlan received a voicemail from Costco’s Disability

department that stated, “They (Costco) aren’t doctor’s they can’t put you on

disability...” Conlan was not allowed to submit this voicemail at trial for an

unknown reason, as it clearly was sent to Conlan in an attempt to clarify

ambiguity that Costco created in placing Conlan on a leave of absence.)

Costco then fired Conlan for the alleged unauthorized leave of absence.

Did Costco violate the Americans with Disabilities Amendment Act, by terminating the

interactive process (and Conlan) with ambiguities they had regarding Conlan's medical

information?

After Conlan requested an accommodation of a service animal to

Arnold, Conlan met with assistant warehouse manager Daniel Manibusan

(Manibusan). It was during the conversation on April 12, 2017 that Conlan

described the panic attacks that were triggered by driving. This conversation

from what Manibusan thought, caused ambiguity, assuming Conlan suffered

Page 12 of 33

from a seizure on February 14, 2017.12 Conlan articulated that his panic

attacks look like seizures, and he had a panic attack while driving home on

Valentine’s Day.13 Costco consequently denied the accommodation request

using the “direct-threat” defense. This defense was abandoned after the

administrative proceedings with the Montana Human Rights Bureau.

Though the direct-threat was never there, Conlan continued to engage in the

interactive process by providing a note from Zimmerman dated April 26,

2017, even though the process had already been abandoned by Costco.14 It

reads:

Work restrictions for Nicholas’ mental health are not limited,

however, he benefits from a companion/psychiatric animal. This

animal helps decrease anxiety and helps manage panic attacks

when they arise, and should be available for full contact at all

times as a service animal. Nicholas has not had a seizure for

four years, and this animal is not for that purpose. The service

animal is a benefit to Nicholas’ mental health disorder, anxiety,

management, and for coping with panic attacks. Please call if

you have any questions. -See Zimmerman (Bentley) Affidavit,

*f 5; Conlan Affidavit, *f 28

Costco formulated multiple approaches why they admittedly

terminated the interactive process. Each approach fails to demonstrate how

12 Document 23 Defendant Costco Wholesale Corporation’s Preliminary Pretrial Statement Page 2

13 Document 29 Plaintiff Conlan Preliminary Pretrial Statement Page 9-10 & Document 121 Trial Transcript,

Volume I Page 105 Line 22- Page 106 Line 12 & Document 54-2 Affidavit of Nicholas Conlan Page 7 *[ 26

14 Document 54-3 Exhibits; Plaintiff Brief in Opposition to Summary Judgment Page 12

Page 13 of 33

approving the accommodation would have caused undue hardship.

Regardless of the approach, Costco failed to engage in the interactive

process, in good faith.

When Costco received the Work Restrictions paperwork, dated April

18, 2017, that stated Conlan had no work restrictions, they omitted the

accommodation request in another scheme. In that same work restrictions

document, under additional comments Zimmerman stated15:

No restrictions. Work accommodations of service animal

requested.

The provider included her contact information for Costco to contact

her with any concerns. Costco refused to reach out to clarify this ambiguity

they perceived.

An “accommodation” is not synonymous with a “restriction”.

“A ‘reasonable accommodation is a change in the work

environment that allows an individual with a disability to have

an equal opportunity to apply for a job, perform a jobs essential

functions, or enjoy equal benefits and privileges of

employment.”— 29 C.F.R. pt. 1630 app. § 1630.2(0); see also U.S.

Airways, Inc. v. Barnett, 533 U.S. 391, 416 (2002) (citing the

Appendix).

15 Document 145 Findings of Fact, Conclusions of Law and Order Page 12 *[ 34

Page 14 of 33

A “restriction” is a word counsel usually sees in personal injury

physicians reports denoting some limitation in physical or mental

performance. The ADA is concerned with needs for reasonable

accommodations, not restrictions. One can have a need for an

accommodation, under the definition of that word, without having a

“restriction”. More to the point, this provider simply stated that Conlan

needed the service dog at work and that the service dog remedied Conlan’s

mental health problems so that he would have no restrictions when he

returned to work.

In the Montana Supreme Court Case, Reeves v. Dairy Queen, Inc., 1998

MT 13, *f 13, 287 Mont. 196, 933 P.2d 703, the decision illuminates on the

effect of a termination of an employee with a disability without the employer

personally investigating the employee’s circumstances. In Reeves the district

court had granted summary judgment for the employer on the basis that,

although the employer had failed to provide an accommodation, an

accommodation “isn’t merely an undue hardship upon employer, it is a

physical impossibility.” 1998 MT 13 at *f 41. The Montana Supreme Court

reversed the district court’s grant of summary judgment by holding:

Page 15 of 33

However, Reeves argues that Dairy Queen never seriously

contemplated any accommodation and that Dairy Queen could,

in fact, have accommodated her. Reeves argues further that if

Dairy Queen believed that accommodation could not be made

without undue hardship or danger, it had a duty to investigate.

We agree. Montana regulations provide:

[independent assessment of the risk of substantial harm is

evaluation by the employer of the probability and severity of

potential injury in the circumstances, taking into account all

relevant information regarding the work and the medical

history of the person with the disability before taking the

adverse employment action in question.

Rule 24.9.606(8), ARM. Dairy Queen never spoke with Reeves or

her physician about her condition or what could be done to

ensure her safety. In fact, Reeves doctor testified that when

controlled with proper medication, Reeves condition posed no

threat at all. Further, in his deposition Barber [Dairy Queen’s

General Manager] testified to the following:

Q: So it [Reeve’s high blood pressure] wouldn’t have been any

problem if she would have taken her medication?

A: No, it would not have been a problem.

Q: Did you offer that opportunity? Did you sit down with her

and say Donna, I need you to take your medication or else

you’re going to get terminated?

A: No....

Clearly this testimony presents an issue offact as to whether a

reasonable accommodation was available. 1998 MT13 at J 42.

Conlan has previously stated in his Post-Trial Facts and Conclusions of

Law (Doc 132 page 39) that Costco has never shown that allowance of an

accommodation in the form of a service dog would cause undue hardship.

This is required under the ADA. See, 42 U.S.C. § 12112 (b)(3)(A).

Page 16 of 33

Conlan was engaged in protected activities when he requested a work

accommodation and when he refused to allow the “third-party

accommodation consultant” to receive information relating to his request

from his health care provider.16 He stimulated direct communication with

his employers, as the law suggests and requires.

Costco was aware that Conlan wasn’t required to sign the document

allowing multiple third-parties access to his medical information. Costco

still used this motive as another reason to deny Conlan an accommodation.

The authorization form was rather worded, “If you would like to use this

service, please sign the enclosed authorization form.”17 This wording implied

that there were other options available, but not provided to Conlan to

complete the interactive process.

Costco stresses the word option numerous times throughout this case,

of using WorkCare to review employees medical files, during the interactive

process.18 The term option implies that there was an alternative to utilizing

the undesirable third-party consultant. However, Costco failed to offer an

'6 Document 145 Findings of Fact, Conclusions of Law and Order Page 13 f 37

17 Document 54-3 Exhibits; Plaintiff Brief in Opposition to Summary Judgment Page 17

18 Document 119 Trial Transcript, Volume II Page 93 Lines 14-20

Page 17 of 33

alternative because they prematurely terminated the interactive process.

That choice should be inferenced as being direct communication between

employer and employee19, as suggested below:

“The interactive process requires communication and good-faith

exploration ofpossible accommodations between employers and

individual employees.”Barnett v. U.S. Air, Inc., 228 F.3d 1103,

1114 -1115 (9th Cir. 2000).

In Barnett it was also held:

The interactive process required by the ADA to be conducted

between employer and employee is well defined, the interactive

process is a mandatory rather than a permissive obligation on

the part of employers under the ADA and that this obligation is

triggered by an employee or an employee's representative giving

notice of the employee's disability and the desire for

accommodation. -Barnett v. U.S. Air, Inc., 228 F.3d 1103,1114

(9th Cir. 2000).

Costco failed to make meaningful inquiries of either Conlan or his

medical provider to establish that it had engaged in the interactive process.

Conlan has previously discussed the proof presented to establish that it was

Costco, and not Conlan, who failed to engage in good faith with the

interactive process. Conlan’s Proposed Findings of Fact and Conclusions of

Law (Doc 132), page 32 and pages 39 - 41, 43 - 44, 49. Conlan’s Post Trial

19 Document 121 Trial Transcript, Volume I Page 172 Lines 12-25 & Page 177 Line 15-25

Page 18 of 33

Brief (Doc. 134), Pages 2-4. Those arguments and authorities will not be

dwelled upon herein, but rather cited to establish roots.

Conlan suffered adverse employment actions as a result of his exercise

of these protected activities. As to the refusal to authorize the release of

information to a third party20, Costco admitted that after the refusal the

interactive process to reach consensus on the need for accommodation

“stopped”. It was “stopped” by Costco as Conlan continued to offer to allow

Costco to directly receive information, but Costco never made a direct

request. As to the request for an accommodation, Costco refused to directly

investigate the need for the accommodation, knowing ambiguities existed,

refused Conlan the ability to come to work with his service dog absent

undue hardship, forced him on a leave of absence and then terminated him

for the leave of absence that they placed him on.

Additionally, the manager of the Costco warehouse in Helena, Allen

Arnold, filed an Affidavit, Doc. 44, at page 4, paragraph 12, states as follows:

Because Conlan would not allow WorkCare to speak with

Conlan’s medical provider, Costco was not able to obtain any

information from a medical provider on the nature and extent

of Conlan’s work restrictions, if any. Without information on

20 Document 54-3 Exhibits; Plaintiff Brief in Opposition to Summary Judgment Page 27-28

Page 19 of 33

Conlan’s work restrictions, Costco could not further consider

Conlan’s request for an accommodation.

Conlan had every right to refuse third parties’ access to his medical

provider and records. That did not prevent Costco itself from requesting the

information needed or even having Conlan contact his provider for Costco to

clarify the perceived ambiguity. Costco was required by law to articulate any

perceived ambiguities to fulfill the good-faith aspect of the interactive

process. Communicating “directly” would preclude the unwanted

intervention of a “third-party accommodation consultant.” Costco cannot

excuse its failure to follow through the process by a “policy” not to contact

medical providers where appropriate. Costco, again, shifts explanation why

they abandoned the process.

Costco attempted to validate its abandonment of the interactive

process in another method claiming it had a policy not to directly contact

medical providers on ADA claims.21

It was admitted that Conlan offered to allow Costco to directly speak

with his provider, but they refused to further engage in the interactive

21 Document 121 Trial Transcript, Volume I Page 173 Lines 4-11 & Document 119 Trial Transcript, Volume II

Page 354 Line 1- Page 355 Line 4

Page 20 of 33

process, after Conlan refused to waive his privacy rights. The trial testimony

was as follows22:

Q. And you'll agree that you never attempted to contact either

Conlan or his healthcare provider, Ms. Bentley Zimmerman, to

clarify any information? You would agree to that? Costco did

not directly seek clarification from Nicholas or the healthcare

provider?

A. We asked for clarification in the letter that we provided.

Q. To Ms. Bentley?

A. No, because we don't — we don't speak directly to — we don't

speak directly to providers.

Q. Okay. Nicholas offered to allow you to talk to Ms. Bentley,

did he not?

A. Yes.

First, direct involvement by the parties to the employment relation,

and not third-party surrogates, is required. See Keith v. County of Oakland,

2013 U.S. App, LEXIS 39; Reeves v. Dairy Queen, Inc. 1998 MT 13, 282 Mont

196, 933 P.2d 708.

A key point to consider is that that Costco admits that it failed to

engage in the process any further after Conlan rightfully refused to authorize

the “third-party accommodation consultant” to enter the interactive process.

22 Document 119 Trial Transcript, Volume II Page 358 Line 19- Page 339 Line 5

Page 21 of 33

Costco hoists itself on its own petard when it makes the admission as to why

the interactive process broke down: on page 10 of its Brief in Support of

Partial Summary Judgment:

When Costco asked to have a third-party accommodation

consultant directly contact Bentley to clarify the contradictory

statements, Conlan refused to sign the authorization form. That

stopped the process. (Emphasis added).

In Barnett:

The interactive process requires communication and good-faith

exploration ofpossible accommodations between employers and

individual employees. The shared goal is to identify an

accommodation that allows the employee to perform the job

effectively. Both sides must communicate directly, exchange

essential information and neither side can delay or obstruct the

process.

Communicating “directly” would preclude the unwanted intervention

of a “third-party accommodation consultant.”

Costco’s “no restrictions, no disabilities” analysis follows that of the

pre-ADAAA authorities. The ADAAA substantially overturns these

authorities, depriving Costco’s argument of any veracity.

Page 22 of 33

The ADAAA overrode the prior rules concerning disabilities that were

episodic or subject to periods of remission. To that end, the ADAAA contains

the provision that:

“an impairment that is episodic or in remission is a disability if

it would substantially limit a major life activity when active. ”42

USC §i2io2(4)(D).

Since the enactment of the ADAAA, courts have used the changes in

the law in a manner that treats returns to work without restrictions as not

meaning that the disability ceases to exist. Thus, in Mercer v. Arbor E&T,

LLC, 2013 WL 164107 (S.D. Tex. Jan. 13, 2013) it was stated:

“Mercer’s ability to return to work does not establish that she

no longer suffered from a disability. The very existence of the

ADA recognizes that a disability and gainful employment are

not mutually exclusive. ”

At trial Conlan’s attorney asked Ms. Fincher, Costco’s (former)

Integrated Leave and Accommodation Specialist 3, about the circumstances

of an amputee needing the accommodation of a prosthetic leg. Ms. Fincher

agreed that if he had a prosthesis and could do the job, he would have no

restriction. He, of course, would still be disabled and needing this

Page 23 of 33

accommodation.23 The same holds true for Conlan. Conlan should be able to

enjoy “equal” aids to assist him in having a positive employment.

Conlan proffered a detailed reply to Costco’s no work restrictions

ambiguity that Arnold admittedly found ambiguous.

Conlan provided the last note titled ORDERS in May of 2017.24 In this

note, Zimmerman elaborated that the service dog “Teddy” aided as an

anxiolysis and ameliorative measure to control Conlan’s anxiety and panic

disorders. Further, Conlan’s panic attacks were “episodic” or “in remission”.

Thus, although he could return to work “without restriction”, in the sense he

could, with the ameliorative assistance of a service dog, perform the

functions of his position, he might have episodic panic attacks or his panic

attacks could emerge from remission and the dog was needed to help Conlan

through the attacks, Thus, Zimmerman’s statements that Conlan needed

Teddy as an accommodation and that he could return to work cannot be

considered as meaning that Conlan was not disabled under the new ADAAA

23 Document 121 Trial Transcript, Volume I Page 170 Lines 13- Page 172 Line 11

24 Document 54-3 Exhibits; Plaintiff Brief in Opposition to Summary Judgment Page 32 & Document 145

Findings of Fact, Conclusions of Law and Order Page 14 f 41

Page 24 of 33

rules. Costco failed to consider these new rules before denying the requested

accommodation.25

Was Costco's proffered reason for firing him—that Conlan violated Costco's leave of

absence policy—was pretextual, and that the true reason was Conlan's disability and

request for an accommodation of a service dog?

Throughout the entire “interactive process” Conlan complied with

Costco’s requests to provide more and more notes. Going as far as returning

to Zimmerman’s office for six different notes that provided documentation

that Conlan was suffering from disabilities and needed an accommodation to

assist Conlan. There was no question that Conlan truly wanted to return to

work, as testified in Trial.26

It was testified at Trial that Costco was the party that placed Conlan on

a leave of absence, the leave of absence that Conlan was ultimately

terminated for.27

Costco continued to bury itself by testifying that they refused to

inquire about ambiguities they had with Conlan, couldn’t provide a reason to

25 Document 119 Trial Transcript, Volume II Page 99 Lines 6- Page 102 Line 3

26 Document 121 Trial Transcript, Volume I Page 215 Lines 13-25 & Document 121 Trial Transcript, Volume I

Page 111 Lines 8-17 & Document 119 Trial Transcript, Volume II Page 107 Lines 12-25

27 Document 119 Trial Transcript, Volume II Page 61 Lines 5- Page 63 Line 17 & Document 119 Trial

Transcript, Volume II Page 75 Lines 22- Page 78 Line 16

Page 25 of 33

denying Conlan’s accommodation request, admitted that they received

medical information that Conlan should have his service animal at all times

but denying the request, admitted that once an employee does not sign the

authorization form for third-party consultants they are supposed to ask the

employee to get the information for Costco from their healthcare provider

(Costco denies attempting to ask Conlan), admits to Conlan offering to

allow Costco to talk to his provider, and instead placed him on a leave of

absence and then terminated him for the leave of absence that they placed

him on.28

Does Title I of the ADA allow the accommodation of an emotional support animal or does

the animal have to be a service animal?

The District Court failed to determine whether Teddy was a service

dog protected by Montana and Federal Law, or merely a comfort dog.29

Although the court erred in the date at which “Teddy” began training, the

court was demonstrated what task “Teddy” performed firsthand in the

courtroom.30

28 Document 119 Trial Transcript, Volume II Page 103 Lines 13- Page 118 Line 6

29 Document 145 Findings of Fact, Conclusions of Law and Order Page 39 •[ 59

30 Document 145 Findings of Fact, Conclusions of Law and Order Page 3 *[ 10

Page 26 of 33

Title I of the ADA, which concerns itself with employment, does not

mention animals at all. This opens the universe of possible accommodations

in employment discrimination cases to include service dogs as well as

emotional support animals. See, Sharan E. Brown, Legal Brief: Service

Animals and Individuals With Disabilities Under the Americans With

Disabilities Act (ADA), ADA Knowledge Translation Center (2019) p. 2.

In Doc. 124 p. 23, footnote 3, Costco admits that “if barking and

alerting people around Conlan when he is having a panic attack qualifies

Teddy as a service dog, then he is protected by Montana Law.” Conlan

asserts that Teddy has proven to the Court that he is a true service dog.

Conlan feigned a panic attack while testifying at trial and Teddy barked at a

very high pitch.31

There was no need for Teddy to even be considered a service dog for

Conlan’s Title I employment claim to succeed. The fact that he did serve a

function and provide a valuable service in managing Conlan’s disabilities

satisfies the requirements under Title III of the ADA pertaining to

discrimination in public accommodations.

31 Document 119 Trial Transcript, Volume II Page 417 Lines 3-16

Page 27 of 33

The question remains, what does the court rule regarding Title I of the

ADA when referring to a reasonable accommodation, since the Title omits

the discussion of service animals.

Was Conlan denied a Jury Trial, when he requested one in his Second Amended

Complaint?

In Conlan’s Second Amended Complaint and Demand for Jury Trial

Doc. 31, it was stated:

The PlaintiffNicholas Conlan hereby demands a trial by jury of

all issues so triable pursuant to Rule 38 of the Federal Rules of

Civil Procedure.

Costco makes no response in their answer to plaintiff s second

amended complaint (Doc. 33).

REASONS FOR GRANTING THE PETITION

The Supreme Court of the United States of America should grant this

petition because it will set precedent in future service animal cases relating

to Title I of the ADA.

Clarification in Title I of the ADA on what a reasonable

accommodation is and whether a service animal or emotional support

animal qualify as a reasonable accommodation (or both) qualify as

Page 28 of 33

reasonable. The court can also settle disputes in what the employers

obligations are in the interactive process. This would most definitely include

engaging in the interactive process directly with the employee, or if an

employer can force an employee to use a third-party. The Court can decide

when the employer crosses the line in violating the Americans with

Disabilities Act when an employee requests an accommodation.

The Supreme Court can lay down the law on what medical

documentation is sufficient in granting or denying a reasonable

accommodation. In denying an accommodation request should the

employer disclose the reason the request was denied and offer an alternative

accommodation. Can the employer cause undue burden on the employee by

requesting excessive documentation from an employee, the Supreme Court

can make that distinction.

When navigating the interactive process, the Supreme Court can

clarify if restrictions should be considered in episodic and/or ameliorative

conditions, or whether restrictions should be considered at all in the

interactive process. When Conlan suggested the prosthetic leg example

where the employee had no restrictions as long as he had his prosthetic leg,

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would that be sufficient in allowing an accommodation (in this case Conlan’s

service animal)?

When exploring the accommodation requests in the interactive

process, the Supreme Court can make clear—does an employer have to grant

an accommodation absent undue hardship. Other than financial, what

would undue hardship look like to an employer.

Lastly, can an employer force an employee to take a leave of absence

that (1) the employee didn’t want nor request (2) the employee’s medical

provider didn’t request and felt the employee was released to work with the

accommodation request of a service animal.

CONCLUSION AND PRAYER FOR RELIEF

Lower Courts from around the nation need guidance as to what Title I

of the ADA says for the interactive process and the growing service animal

requests in both employment and public accommodation requests.

Conlan would like to mention that he has been fighting for justice in

his case for five years now. In these five years, Conlan continues to

extensively research key topics presented in this Writ of Certiorari. Conlan

just finished this last semester with a 4.0 GPA. Conlan enrolled and has

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continued to excel in Human Resource college courses that deliberated

subjects argued in this very case. Semester after semester Conlan has

searched for a case that argues a case submitted to the Supreme Court that

deals with service animal requests regarding Title I of the ADA that were at

least similar to Conlan’s case. Conlan has yet to find a case that elaborates

the subject matter.

Interestingly in Conlan’s studies, he discovered and exceled in Business

Ethics. Prior to enrolling in this course, Conlan had no idea what ethics

were as they were never taught or discussed around Conlan. This is an

interesting topic because ethically speaking Costco without a doubt should

have reached out to Conlan and Conlan’s medical provider directly and

worked out the ambiguities they had to resolve the accommodation request

Conlan presented. Costco is a multi-billion dollar corporation that employs

people with college degrees that taught them about these dilemmas and how

to not only legally handle accommodation requests, but how to handle them

ethically speaking.

Conlan has no college degree and has been in special education dating

back to the first grade. With Conlan applying for an accommodation, it

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should have been not only perceived but also apparent that Conlan had

some sort of disabilities and Costco should have investigated. Why would an

employer attempt ruin an employee’s life by denying an accommodation

without good-faith exploration?

Conlan has suffered severe consequences due to Costco’s negligence.

As Costco continues to change its defenses, Conlan has maintained the same

storyline the past five years. Not once has Conlan paved an alternative

course for the lower courts to be misguided on. Costco has varying facts that

conflict each other from the Human Rights Bureau investigation, through

testimony in trial, even through the 9th Circuit.

In engaging in the interactive process in college and previous

employment, Conlan has only been engaged with good-faith exploration in

exploring equal enjoyment opportunities in school and in previous

employment. Only while employed at Costco has Conlan encountered

rigorous policies and practices that hindered Conlan from equal employment

opportunities.

Not once did Costco suggest that they were even considering

approving Conlan’s accommodation request, as they admittedly have denied

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all employees accommodation requests that requested to have a service

animal in the workplace. Conlan only wanted the service animal when he

traveled, hence why he applied for a lateral position change as a last resort to

finally requesting the accommodation of a service animal.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Nicholas Conlan

Plaintiff Pro Se

DATED this 24th day of December 2022.

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