# Petition for Writ of Certiorari — Delson v. Cino (No. 06-184)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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No. OO- as 8 fist 1. iy la wi: RK

IN THE

Supreme Court of the United States

ROBERTA A. DELSON, PH.D,
Petitioner,
\:
MARIA CINO,
Acting Secretary of the Department of Transportation,
an executive agency of the federal government,
————- - : Respondent.
ON PeTirion FOR A Writ of CERTIORARI TO THE

UNITED STATES COURT OF APPEALS
FOR THE NiIntTiH Cincuir

PETITION FOR A WRIT OF CERTIORARI

Roy J. KARLIN

SHapiro, Bemy, ROSENBERG,

Levy, ARoNowiTz & Fox, LLP
225 Broadway, 13" Floor
New York, New York 10007
(212) 267-9020

Attorneys for Petitioner

i
QUESTIONS PRESENTED

The Second Circuit in Delson v. Mineta, 2005 WL 1712856
(2d Cir. 2005), overlooks the clear language of the ADA and
its legislative history, disregards EEOC’s published
guidelines, and conflicts with the Seventh, Eighth, Ninth
and Tenth Circuit Courts of Appeal that recognize-a cause
of action under'the ADA for the unauthorized breach of an
employee's medical privacy by unlawful inquiries outside
strict exceptions. Delson presents this conflict although the
Second Circuit had recognized a cause of action for medical
privacy in Conroy v. New York State Department of Correctional
Services, 333 F.3d 88 (2d Cir. 2003) before Delson.

The conflict presented by Delson promotes confusion
and disharmony among the federal courts charged with
administering the remedies available to individuals with
disabilities. By exercising jurisdiction in this case, this Court
can eliminate the conflict presented by the Second Circuit

regarding the limits imposed on access to confidential
medical data, as well as provide rationality, certainty and
uniformity to this area of medical inquiries. Review should
also be granted because this case involves questions of
exceptional importance that impact on the nation’s goals to
assure individuals with disabilities self-reliance, economic
self-sufficiency, and equal opportunity to participate in and
contribute to society.

Seven questions are presented:

1. Does the ADA recognize a private cause of action
against an employer for an unlawful medical inquiry
outside strict exceptions?

2. May an employee hold back medical information
where the employer refuses to treat the information as
confidential medical records consistent with the ADA?

li

3. Is an employee’s failure to respond to a request for
medical information excused by unlawful inquiries
requiring disclosure that is too broad or more intrusive than
necessary?

4. Isanemployer’s refusal to consider accommodations
that are obvious for the employee’s known disability and
the employer's reliance on impermissible inquiries to justify
this decision an unlawful discriminatory practice?

5. Once a finding on the issue of unlawful inquiry has
been made, is the question of reasonable accommodation a
separate one that should be considered and resolved in the
assessment of damages?

6. Once a finding on the issue of unlawful inquiry has
been made, must the employer bear the cost of its “lost
opportunity” to determine whether, with reasonable
accommodations, the employee could have remained
otherwise qualified for the position?

7. Or, in the alternative, once a finding on the issue of
unlawful inquiry has been made, does the burden shift to
the employer to plead and prove that no reasonable
accommodation exists that would render the employee an
otherwise qualified individual for the position?

il
LIST OF INTERESTED PARTIES

The following persons were parties below and have an
interest in the outcome of this case.

Roberta A. Delson, Ph.D

Maria Cino, Acting Secretary of the Department of
Transportation, has succeeded Norman Mineta, former
Secretary of the Department of Transportation, an executive
agency of the federal government

iv

TABLE OF CONTENTS

Questions Presented

We Oe Trees FPO noe ono os ec ew ee eke cee

Table of Contents

Table of Appendices

Opinion Below

Statement of Jurisdiction

Statutory Provisions Involved

Statement of the Case

Reasons for Granting the Petition

A.

Delson permits exactly the kind of compelled
disclosure of disability-related medical data
that Congress intended tocurb. ..........

The questions asked are unrelated to the
disability of MS-related fatigue for which Dr.
Delson requested accommodation, and, as
such, the scope of the inquiries exceeds the
legitimate needs of the Academy.

Requiring further information about the
ADA disability and the need for an
accommodation that already were known
and obvious served no _ legitimate
ne Eg ar er ee

15

Contents .

Absent conflicting expert testimony, the
sufficiency of documentation Dr. Kamin
provided was not placed in doubt.

Prohibited inquiry claims have their own
specialized legal standards.

The Academy must bear the cost of its “lost
opportunity” to determine whether, with
reasonable accommodations, Dr. Delson
could have remained an “otherwise” qualified
individual with a disability.

The Academy by its own admission concedes
that Dr. Delson is an “otherwise qualified”
individual with a disability.

The expert medical testimony established
without contradiction that accommodating
Dr. Delson would not pose an undue hardship.

Promotion standards for the senior rank of
Full Professor are not relevant.

The record does not reflect that accommodat-
ing Dr. Delson requires significant difficulty
. or expense.

The unpaid leave of absence did not pose an
undue hardship First Term.

L.

Contents

The record does not reflect the impact on the
Academy that would be caused by a three
day teaching schedule comprised of three
courses that each meet twice a week for a
total of six class hours and end no later than
2:00 p.m., Friday, Second Term. ..........

The record does not reflect the specific
impact of a three-day teaching schedule
comprised of three courses that each meet
twice a week (for a total of six class hours)
and end no later than 2:00 p.m. Friday after
Second Term.

The record does not reflect the impact on the
Academy that would be caused by a three-

day teaching schedule comprised of three
courses that each meet three days a week and
end no later than 2:40 p.m. Thursday. .....

The record does not reflect the specific
impact on the Academy that would be
caused in the event Dr. Delson were given
further unpaid leave of absence. ..........

The record does not reflect the specific
impact on the Academy that would be
caused if Dr. Delson were assigned no
courses that met four days a week during
PE IU nbsp oa ee Gis we wees oe ee eee

Contents

Page

The record does not reflect the specific
impact on the Academy that would be
caused in the event the Academy afforded
Dr. Delson the same favorable treatment
given non-disabled employees, similarly
situated.

Conclusion

vill
TAB: . +#FCITED AUTHORITIES

Case Law

Alexander v. Choate,
469 U.S. 287, 105 S. Ct. 712, 83 L. Ed. 2d 661
(1985)

Bennett v. Henderson,
15 F. Supp. 2d 1097, aff'd, 172 F.3d 62
(10th Cir. 1999) 18, 19, 21, 26

Borkowski v. Valley Central School District,
63 F.3d 131 (2d Cir. 1995) 20, 21, 22, 25, 26

Cehrs v. Northeast Ohio Alzheimer’s Research Ctr.,
155 F.3d 775 (6th Cir. 1998)

Connors v. University Associates In Obstetrics
and Gynecology, Inc.,
4 F.3d 123 (2d Cir. 1993)

Conroy v. New York State Department of
Correctic» | Services,
333 F.3d 88 (2d Cir. 2003)

Cosgrove v. Sears, Roebuck & Co.,
9 F.3d 1033 (2d Cir. 1993)

Cossette v. Minn. Power & Light,
188 F.3d 964 (8th Cir. 1999)

Criado v. IBM Corp.,
145 F.3d 437 (1st Cir. 1998)

Cripe v. City of San Jose,
261 F.3d 877 (9th Cir. 2001)

Cited Authorities

Detwiler v. Bristol-Myers Squibb Co.,
884 F. Supp. 117 (S.D.N.Y. 1995)

Doe v. Kohn Nast & Graf, P.C.,
866 F. Supp. 190 (E.D. Pa. 1994)

Detroit Edison v. N.L.R.B.,
440 U.S. 301, 99S. Ct. 1123, 59 L. Ed. 2d 333
(1979)

Durrant v. Chemical/Chase Bank,
81 F. Supp. 2d 518 (S.D.N.Y. 2000)

Fredenburg v. Contra Costa County Department of
Health Services,
172 F.3d 1176 (9th Cir. 1999)

Gonzales v. Sandoval County,
2 F. Supp. 2d 1442 (D. N.M. 1998)

Griffin v. Steeltek, Inc.,
160 F.3d 591 (10th Cir. 1998), cert. denied,
526 U.S. 1065, 119 S. Ct. 1455, 143 L. Ed. 2d 542
(1999)

Haschmann v. Time Warner Entertainment ce...
151 F.3d 591 (7th Cir. 1998)

Hegger v. Green,
646 F.2d 22 (2d Cir. 1981)

Humphrey v. Memorial Hospitals Association,
239 F.3d 1128 (9th Cir. 2001)

Cited Authorities

Israel-British Bank (London, Ltd. v. Federal
Deposit Ins.,
PO Fede POE UO Gs BITOD cnet ccesivavisiewes 7

Kimbro v. Atlantic Richfield Co.,
889 F.2d 869 (9th Cir. 1989),
cert. den., 498 U.S. 814, 111S. Ct. 53,
BEd tes CE. SE. vo kaw Vive ee eec es de aude 29

McDermott v. Manhattan Eye, Ear and Throat Hospital,
15 N.Y.2d 20, 255 N.Y.S.2d 65,
Bee TE NT ERP Kibccce kwh eee ayaseeewes' 17

Morgan v. State of New York,
40 A.D.2d 891, 337 N.Y.S.2d 536 (3rd Dept. 1972),
aff’'d,34 N.Y.2d 709, 356 N.Y.S.2d 860,
SAS FC Rime OOO TAPED 6 ck nck iw whveteneraeuhen 23, 24

Morton v. UPS, Inc.,

272 F.3d 1249 (9th Cir. 2001), cert. denied,

535 U.S. 1054, 122 S. Ct. 1910,

See Mas Sc EE CO 65 ho So bas veces. 10, 11
Murdock v. Wash.

193 F.3d 510 (7th Cir. 1999), cert. den.,

529 U.S. 1134, 120 S. Ct. 2015,

SOD 1. TAG; BG Pe CRE cho Hoe sea kd Wes ees 21

Nathanson v. Medical College of Pennsylvania,
926 F 20 13GB Cee Cis. TID) on vcccivee sires 18

Nunes v. Wal-Mart Stores, Inc.,
164 F.3d 1243, 1247 (9th Cir.1999) ............. 28

Nussle v. Willette,
ROT oe te Ce CH oes Ski ee 7

xi

Cited Authorities
Page

Parker v. Columbia Pictures Industries,

204 F.3d 326 (2d Cir. 2000) . 5... wee ee. 19, 20, 21
Parker v. Sony Pictures Entertainment, Inc.,

em € 3a 100 Gd Cir. 2001)... foc s 4,18
Powers v. Polygram Holding, Inc.,

40 F. Supp. 2d 195 (S.D.N.Y. 1999) ............ 28
Rascon v. U.S. West Communications, Inc.,

143 F.3d 1324 (10th Cir. 1990) ........:.¢..... 22, 29
Rodgers v. New York University,

250 F. Supp. 2d 310 (S.D.N.Y. 2002) ........... 28
Roe v. Cheyenne Mountain Conference Resort,

920 F. Supp. 1153 (D. Colo. 1996)

aff'd in pertinent part,

124 F.3d 1221 (10th Cir. 1997) ............. 10, 19, 20
Signal Capital Corp. v. Eastern Maine

Management, Inc.,

899 F. Supp. 1167 (S.D.N.Y. 1995) ............. 7
Sutton v. United Air Lines, Inc.,

927 U.S. 471, 1119S. Ct. 2139,

BOW Gn ee GOA i ooo veh doe kc ee 11

Transport Workers Union of America, Local 100,
AFL-CIO v. New York City Transit Authority,
341 F. Supp. 2d 432 (S.D.N.Y. 2004) ........... 6

X11

Cited Authorities
Page F
US Airways, Inc. v. Barnett,
535 U.S, 391, 122 S. Ct. 1536,
FOR GME GUT LMR oi cee b eee ei ee ea biadene a0
Woodman v. Runyon,
ERE Fa AST CAG, FPF iene ccs nbere care 19, 26
Statutes
The Americans with Disabilities Act of 1990
42 U.S.C.A. § 12111 et seq.
CUTE TSR TD bdikxs'e kre Roden ne eaes 3
NU EUR AEOD 0 po cil nce cvs ecce bak epee eee 21, 22
ANI FOE BAUR ok hess bees ocd eeae ewes 25
OCONEE T RICE) be Seis cc iecane eas ees af 7,6, 19
SOC TZIF OD 65 6 bce ke wie rdccnnees passim
OCI TEE LAUD) 6 05 6s siccccecneeavars 7,8
SENN TATE 6 is Cc ca dc cccdavav eds passim
CUO RET RAUETCGIOD oo ens a eased on ue’ 6, 7, 8, 10, 20
OTIS BALA MUNPORM). bce 3 choo n S408 ie ws passim

The Rehabilitation Act, 29 U.S.C. § 791, et seq.

y
Secon 2 EER ee SEE aren eS Meer ae PAC

aa a sc, 4

xiii
Cited Authorities

Regulations

Federal Sector Equal Employment Opportunity,
29 C.F.R. § 1613, et seq.

29 C.F.R. § 1614.203(a)
29 C.F.R. § 1614.203(b)

Regulations to Implement the Equal Employment
Provisions of the American With Disabilities Act, 29
C.F.R. § 1630, et seq.

29 C.F.R. § 1630.1(c)

29 C.F.R. § 1630.14(c)(1)(i)
29 C.F.R. § 1630 app. § 1630.2(0)

EEOC - Enforcement Guidance

Enforcement Guidance: Disability-Related Inquiries
and Medical Examinations of Employees Under
the Americans With Disabilities Act, 8 FEP (BNA)
405:7701, et seq. 6, 9, 10, 11, 15, 16

EEOC Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the
Americans with Disabilities Act, 8 FEP (BNA)
405:7601, et seq. 9,10, 11, 15, 16

xiv

TABLE OF APPENDICES

Appendix A — Summary Order Of The United
States Court Of Appeals For The Second Circuit
Dated And Filed July 22, 2005

Appendix B — Memorandum, Decision And Order
After Bench Trial Of The United States District
Court Eastern District Of New York Dated June

Appendix C — Order Of The United States Court
Of Appeals For The Second Circuit Denying
Petition For Rehearing Dated And Filed May 5,

1

OPINION BELOW

The summary order of the United States Court of the
Second Circuit is reported at 2005 WL 1712856. The Second
Circuit affirmed the June 9, 2004 Memorandum, Decision and
Order of the United States District Court for the Eastern District
of New York, that is unreported. See Appendices A and B.

STATEMENT OF JURISDICTION

Petitioner seeks review of the Second Circuit's summary
order that was rendered on July 22, 2005. The Petition for Panel
Rehearing with Suggestion for Rehearing En Banc was denied
on May 5, 2006. See Appendix C. This Court's jurisdiction is
invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The Americans with Disabilities Act of 1990, 42 U.S.C.A.
§ 12111 et seq.

Title 42 United States Code, Section 12112(d)(1)

Medical Examinations and Inquiries

The prohibition against discrimination as referred to in
subsection (a) of this section shall include medical
examinations and inquiries.

The provisions of 29 U.S.C. § 791(g); 42 U.S.C. §§ 12112(d)
(2), (A) (3) (B), (d)(3)(B) (i), (d)(4)(A), (d)(4)(B) and (d)(4)(C); 42
U.S.C. § 12116; 29 C.F.R. § 1614.203; 29 C.F.R. §§ 1630.14(c)(1)
and (c)(1)(i), are lengthy and, therefore, set out in Appendix
D, pursuant to Supreme Court Rule 14.1(f).

STATEMENT OF THE CASE

Roberta M. Delson, Ph.D., a former full time tenured
Associate Professor at the United States Merchant Marine
Academy (hereinafter the “ Academy”) suffers fatigue due to
multiple sclerosis (“MS”), a covered disability within the
meaning of the Rehabilitation Act of 1973, as amended
(hereinafter the “Act”). 29 U.S.C.A. § 701, et seg. As an
employee with MS-related-fatigue, Dr. Delson was, and still
is, able to perform a full time job when given a schedule that
requires her to be at the workplace no more than three daysa
week, and permits her to work from home the remaining two
days. She would have been able to perform the duties of her
position, without a modified schedule, were it not for fatigue.

2

First Term AY98-99, Dr. Delson was assigned courses that
each met four-days a week, in disregard of a longstanding
accommodation of a three-day teaching schedule established
five years earlier. Without a modified schedule, she had to
request an unpaid leave of absence for the term. The trial court
found that the leave was a reasonable accommodation. Thus,
Dr. Delson was an individual with a disability “otherwise”
qualified, since she could perform the essential functions of
the job when she returned from leave for the second term.
Her schedule called for courses that each met twice a week.

However, Warren Mazek, the Dean of Academic Affairs
(hereinafter the “Dean”), refused to grant the First Term leave
unless Dr. Delson disclosed her complete medical record in
response to unnecessarily intrusive and overbroad medical
inquiries, dated May 15, 1998. The Dean also insisted that Dr.
Delson authorize the disclosure of this confidential
information to the Dean himself, as well as to other supervisors
and managers. The Dean told Dr. Delson that no
accommodation would be considered unless she complied.

The inquiries, dated May 15, 1998, are far-ranging and
ask for unnecessarily intrusive details about Dr. Delson’s
physical and mental health and medical history in general,
such as:

Current and complete medical evaluation outlining

her present health, including, but not limited to, her

present neurological status (multiple sclerosis) and

its effect on her entire physical and mental health in

general

Clinical findings from the most recent medical

evaluation, including the results of a complete

neurological examination, laboratory tests, x-rays,

MRIs, and other special evaluations or diagnostic

procedures

History of her medical condition, including

references to findings from previous medical

examinations, treatments and responses to
treatments

Prognosis and plans for futuretreatment in general

3

Medications Dr. Delson used for any medical
condition and her history of and compliance with
taking these drugs

Any drug side effects, drug reactions, drug-to-drug

interactions, or any other drug related medical

complications, if any, that may have an impact on
safe, efficient and effective job performance

The inquiry on its face, and in its application, constitutes
an impermissible medical inquiry prohibited by the Act. Dr.
Delson, nevertheless, complied in good faith with the
Dean's request, in that her neurologist, Stephen S. Kamin,
Associate Director, Bernard W. Gimbel Multiple Sclerosis
Comprehensive Care Center, Holy Name Hospital, Teaneck,
New Jersey, provided further documentation and reaffirmed
his recommendations and findings stated in four previous
reports with sufficiently reasonable detail to identify Dr.
Delson’s functional limitation and the accommodation she
needed.

Moreover, Dr. Delson in good faith also agreed to produce
her complete medical record as long as it was kept confidential
and used only by a qualified medical expert designated by
the Academy to evaluate and inform the Dean and other
relevant supervisors and managers, such as the Head of the
Humanities Department, who may need to know, only about
the “necessary restrictions on the duties of the position” and
the “necessary accommodations.” Dr. Delson was not required
to respond to disability related-inquiries under which she
would be compelled to waive her right of privacy guaranteed
under the Act. The Dean, however, rejected her request and
refused to treat the medical records as confidential.

At trial, the Dean testified:

THE COURT: Whether it’s necessary or not, is it

your position that your letters require Professor

Delson to sign an authorization that would allow you

to look at the medical records?

THE WITNESS: It would allow me to but I don’t

think it was necessary. * * * What I’d need to know is

in our physician’s judgment she was capable of doing

and how we might accommodate that.

4

On September 4, 1998, the Dean revoked the leave,
retroactively, because Dr. Delson would not waive her right
of privacy and held back the confidential medical information.
The Dean suspended Dr. Delson for the Second Term, and
she was fired on January 15, 1999, because of her
noncompliance with the inquiries and her absence First Term.
Dr. Delson was unable to return to work because the Academy
failed to restore a modified schedule once leave was revoked,
retroactively, two months before she was due to return for
Second Term on November 9, 1998.

The Academy’s assertion that it fired Dr. Delson based
on her noncompliance with the inquiries, and her absence First
Term, amounts to discharge solely because of her disability.
Refusing to consider accommodations that were obvious for
her known disability and relying on impermissible inquiries
to justify this decision is disability discrimination. Thus, the
Academy must bear the cost of its “lost opportunity” to
determine whether, with reasonable accommodations that
existed, Dr. Delson could have remained “otherwise” qualified
for the position of employment.

REASONS FOR GRANTING THE PETITION
A. Delson permits exactly the kind of compelled disclosure
of disability-related medical data that Congress
intended to curb.

One purpose of the Act! is to ensure that truly disabled,
but genuinely capable individuals will not face discrimination
because of stereotypes about the insurmountability of their
disabilities. Parker v. Sony Pictures Entertainment, Inc., 260 F.3d
100, 113 (2d Cir. 2001). Too often, unnecessary information
about employee disabilities comes into the hands of employers
and may create:

Barriers which prevent qualified ind viduals with
disabilities from enjoying the same employment
opportunities that are available to persons without
disabilities.

'Dr. Delson invoked section 501 of the Re! «vilitation Act, 29 U.S.C. §
791, in her complaint. The standards for determining whether there has
been a violation of section 501 are the same as those applied under Title |
of the Americans with Disabilities Act (“ADA”). 29 U.S.C. § 791(g); 42
U.S.C.A. § 12111 et seq., 29 C.F.R. § 1630.1(c).

5

EEOC Interpretive Guidance on Qualifications, Standards,
Tests, Other Selection Criteria, 29 C.F.R., App. § 1630.10.

Legislative “Findings” at the outset of the ADA stress the
adverse impact of stereotypes on opportunities for persons
with disabilities:

individuals with disabilities ... have been faced with

restrictions and limitations, subjected to a history of

purposeful unequal treatment, and relegated to a

position of political powerlessness in our society,

based on characteristics that are beyond the control

of such individuals and resulting from stereotypic

assumptions not truly indicative of the individual

ability of such individuals to participate in, and

contribute to society . . . 42 U.S.C. § 12101(a)(7).

As with every question of statutory interpretation, we start
with the language of the statute. The preventive approach to
combating discrimination is embedded in various provisions
of the ADA that impose strict limits on access to employee
medical data to prevent its potential harm as a basis for -
workplace discrimination. 42 U.S.C.A. §§ 12101(d)(1),
12112(d)(3)(B) and (d)(4)(C).

The ADA prohibition against discrimination specifically
includes medical inquiries and examinations. ADA, 42 U.S.C.
12112(d)(1). Subsection (d)(1) states that medical inquiries may
not be used to discriminate and directs courts to treat medical
examinations and inquiries as unlawful employment
discrimination.

The ADA creates limited exceptions to the general
prohibition on medical inquiries. One exception of the ADA
provides:

A[n employer] shall not require a medical

examination and shall not make inquiries of an

employee as to whether such employee is an
individual with a disability or as to the nature or
severity of the disability, unless such examination

or inquiry. is shown to be job-related and consistent

with business necessity. 42 U.S.C. § 12112(d)(4)(A).

Thus, an employee's failure to respond to a request for
medical information is excused by unlawful medical inquiries

6

requiring disclosure that is too broad or more intrusive than
necessary. 42 U.S.C. § 12112 (d) (4) (A) and (d) (4) (B).
Employers cannot require employees to respond to medical
inquiries unless the inquiries are shown to be “job-related and
justified by business necessity.” 42 U.S.C. § 12112 (d) (4) (A)
and (d) (4) (B); E.E.O.C. Guidance: Disability-Related Inquiries
and Medical Examinations of Employees Under the Americans
with Disabilities Act (ADA), 8 FEP (BNA) 405:7701 and 7703,
n. 14, citing S. Rep. No. 101-116 at 39-40 (1989); H.R. Rep. No.
101-485, pt. 2, at 75 (1990) [EEOC Enforcement Guidance on
Disability Related Inquiries].2 The ADA “entitles employees
(of covered institutions) to maintain a special zone of privacy
from their employers concerning their health and medical
conditions.” Transport Workers Union of America, Local 100, AFL-
CIO v. New York City Transit Authority, 341 F.Supp.2d 432, 437
(S.D.N.Y. 2004).

In addition, the ADA requires that medical information
obtained from medical inquires and examinations must be
treated as confidential. 42 U.S.C. §§12112(d)(3)(B) and
(d)(4)(C); 29 C.F.R. §1630.14(b)-(d). This restriction is of key
importance to people with disabilities. Employees in
responding to requests for medical information outside strict
exceptions are not obligated to waive or bargain away their
right of privacy. 42 U.S.C. § 12112 (d)(3)(B), (d)(4)(B) and
(d)(4}(C). The employee with a disability may hold back
medical information where the employer refuses to treat it as
confidential medical records consistent with the ADA. 42
U.S.C. §§12112(d) (1), (d) (3) (B) and (d)(4)(C); 29 C.F.R.
§1630.14(c).

Every employer must comply with the strict regulations
that protect the confidentiality of medical records under the
ADA. See, 42 U.S.C. § 12112(d)(3)(B) and d(4)(C) and 29 C.F.R.

1630.14(c); they must collect and maintain information

* Both houses of Congress that crafted the ADA determined that: “An
inquiry or medical examination that is not job-related serves no legitimate
employer purpose, but simply serves to stigmatize the person with a
disability.” H.R. Rep. 101-485 (II) at 75 (1990), reprinted in 1990 U.S.C.C.A.N.
303, 358; H.R. Rep. 101-485 (IIT) at 44 (1990), reprinted in 1990 U.S.C.C.A.N.
445, 467; S. Rep. 101-116, at 40 (1989) cited in Disability-Related Inquiries,
supra, 8 FEP (BNA) 405:7703, n. 14.

7

regarding the medical condition or history of the employee
on separate forms and in separate medical files and treat them
as a confidential medical record. 42 U.S.C.A. §§1 2112(d)(3)(B)
and (d)(4)(C); 29 C.F.R. §1630.14(b)-(d).

The ADA specifically prohibits the disclosure of medical
information collected, except in certain limited situations. 42
U.S.C.A. 12112(d)(3)(B), (d)(4)(B) and (d)(4)(C). The ADA is
remedial legislation and should therefore be given a liberal
interpretation; but for the same reason exceptions from its
sweep should be construed narrowly and limited so that the
major policy underlying the general rule is not defeated. Israel-
British Bank (London, Ltd. v. Federal Deposit Ins., 536 F.2d 509,
513 (2d Cir. 1976); Nussle v. Willette, 224 F.3d 95, 99 (2nd Cir.
2000); Signal Capital Corp. v. Eastern Marine Management, Inc.,
899 F.Supp. 1169, 1170 (S.D.N.Y. 1995).

Supervisors and managers involved in the
accommodation process who need to know may be informed
only of “the necessary restriction on the work or duties of the
employee and of necessary accommodations.” 42 U.S.C.A.
12112(d)(3)(B)(i), (d)(4)(B) and (d)(4)(C); 29 C.F.R. §
1630.14(c)(i). The ADA makes no exception that would require
Dr. Delson to disclose the complete medical record of her
health and medical history in general to a supervisor or
manager. Where a general rule is established by statute with
exceptions, the court will not curtail the former nor add to the
latter by implication, and it is the general rule that an express
exception excludes all others. Israel-British Bank (London, Ltd.
v. Federal Deposit Ins., supra, 536 F.2d at 513; Signal Capital Corp.
v. Eastern Maine Management, Inc., supra, 899 F.Supp. at 1170.

Dr. Delson reasonably expected that the documentation
about her health and medical history in general would be kept
confidential and only viewed by the Academy’s medical expert
for evaluation. 42 U.S.C. § 12112 (d) (1), (d) (3) (B), (d) (4) (A),
(d) (4) (B) and (d) (4) (C); 29 C.F.R. § 1630.14(c)(i). A disabled
employee may not have the same expectations of medical
privacy as others once she or he requests reasonable
accommodation. But even an employee with a disability is
not required to respond to disability related inquiries under
which the employee would waive her or his right of privacy

8

guaranteed under the ADA. 42 U.S.C. § 12112 (d) (1), (d) (3)
(B), (d) (4) (A), (d) (4) (B) and (d) (4) (C); 29 C_F.R. § 1630.14(c)(i).
Dr. Delson in good faith engaged in an interactive process.

She agreed to produce her complete medical record as long as

it was kept confidential and was used only by a qualified

medical expert designated by the Academy. The expert would
evaluate, and, then, inform the Dean and other relevant
supervisors and managers who need to know only of the
necessary restrictions on the work or duties of the position
and of the accommodations needed consistent with the ADA

(A. 1606-1607 and 1610-1611). 42 U.S.C. 12112(d)(3)(B)(i) and

(d)(4)(C); 29 C.F.R. 1630.14(c)(1)(i).

The Dean denied Dr. Delson’s request. He continued to
insist that she release her complete medical record and
authorize its disclosure to the Dean and other supervisors and
managers. The Dean refused to budge and derailed the
interactive process.

The Academy’s asserted interest easily could have been
served by requiring medical documentation for inspection by
a health care provider with expertise to evaluate and render
an opinion. Requiring employees to provide confidential
information about their health and medical history in general
to non-medical personnel provides no assurance that these
employees are trained to make determinations based on that
documentation. Quite the contrary, providing a medical record
to a supervisor or manager is more likely to have the effect of
coloring judgment based on stereotypes or misconceptions,
the very harm the ADA was enacted to prevent.

B. The questions asked are unrelated to the disability of
MS-related fatigue for which Dr. Delson requested
accommodation, and, as such, the scope of the inquiries
exceeds the legitimate needs of the Academy.

Delson fails to make an individualized assessment of the
inquiries asked and allows the employer to rely on superficial
assertions of business need without having to explore effective,
less intrusive alternatives, thereby exposing the employee to
discrimination. The inquiries asked were triggered to aid in
the reasonable accommodation process. The leave request was

9

not an invitation for far-ranging inquiries outside strict
statutory exceptions.

[I]n most situations an employer cannot request a

person’s complete medical records because they are

likely to contain information unrelated to the

disability at issue and the need for accommodation.
EEOC Enforcement Guideline on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities
Act, 8 FEP (BNA) 405:7608. [Hereinafter EEOC Enforcement
Guidance on Reasonable Accommodation]. See, also, EEOC
Guidance on Disability-Related Inquiries, supra, 8 FEP
405:7715.

It is both the likelihood that the inquiries require
disclosure of disabilities or perceived disabilities unrelated to
the accommodation requested and the absolute lack of a
legitimate need for such information that renders the inquiries
in violation of the ADA. E.E.O.C. Guidance: Disability-Related
Inquiries, supra, 8 FEP (BNA) 405:7701 and 7703, n. 14. The
ADA requires that employers use methods that serve
legitimate operational business needs without trammeling the
rights of workers. Delson; however, creates a safe harbor foi
employers who neglect to explore effective; less intrusive
alternatives, and thereby risk causing widespread
discrimination.

Dr. Delson did not affirmatively place her general physical
or mental health or medical history in issue when she
requested an unpaid leave. The scope of her request for an
accommodation was based on fatigue, precisely the disabling
source of her admitted functional limitation. This does not
permit wholesale discovery of information regarding
unrelated diagnoses, illnesses, disabilities, tests, treatments,
medications,’ medical history or her current physical and

* The Academy’s operational business needs are not served by
questions about every prescription drug medication Dr. Delson takes.
Requiring an employee to disclose all prescription drug medication she or
he was taking is a prohibited inquiry unless safety is a genuine business
necessity. Enforcement Guidance: Disability-Related Inquiries, supra, 8 FEP
(BNA) 405:7712-16; Enforcement Guidance: Disability-Related Inquiries,
supra, 8 FEP (BNA) 405:7712-13: Roe v. Cheyenne Mountain Conference Resort,
124 F.3d 1221, 1229 (10th Cir. 1997),

10

mental health in general. Although Dr. Delson may have other
neurological signs and symptoms these have not caused a
significant disability. She would still be able to perform all
the duties of her position without a modified schedule, were
it not for fatigue. Requiring disclosure of her complete medical
record would likely elicit disclosure of disabilities or perceived
disabilities unrelated to the accommodation needed, but serve
no legitimate purpose of the Academy.

A disability-related inquiry is lawful only if it is shown
to be “job-related and consistent with business necessity.”
U.S.C. §12112(d) (4) (A) and (d) (4) (B); 29 C.F.R. §1630.14(c).
This is an affirmative defense as to which the employer has
the burden to plead and prove that its asserted business
interest is served by the intrusion into the employee's privacy.
Conroy v. New York State Department of Correctional Services,
333 F.3d 88, 97-98 (2d Cir. 2003).

The employer is required to make a two-part showing.
First, the business necessity must be vital to the business.
Second, the inquiry must genuinely serve the asserted business
necessity and it must be shown to be no broader or more
intrusive than necessary. Conroy, supra, 333 F.3d at 97-98 and
101 citing Cripe v. City of San Jose, 261 F.3d 877, 890 (9" Cir.
2001); Morton v.. UPS, Inc., 272 F.3d 1249, 1257 and 1260 (9"
Cir. 2001), cert. denied, 535 U.S. 1054, 122S. Ct. 1910, 152 L.Ed.2d
821 (2002) (referring to “the stringent elements” of the business
necessity defense).

The Academy has proven neither a specific business need
to demand Dr. Delson’s complete medical record, nor a lack
of less intrusive alternatives. An “[e]mployer” can request
information pertaining only to the disability that requires a
reasonable accommodation.” EEOC Enforcement Guideline
on Reasonable Accommodation supra, 8 FEP 405:7608-7609;
[EEOC Enforcement Guideline: Disability-Related Inquiries,
supra, 8 FEP (BNA) 405:7713, n. 53. “The employer, in response
to a request for reasonable accommodation, cannot ask for
documentation that is unrelated to determining the existence

11

of a disability and the necessity for an accommodation.” EEOC
Enforcement Guideline on Reasonable Accommodation, supra,
8 FEP (BNA) 405:7608-7709. “If an individual has more than
one disability, an employer can request information pertaining
only to the disability for which the employee is requesting an
accommodation.” EEOC Enforcement Guideline: Disability-
Related Inquiries, supra, 8 FEP 405:7713, n. 53. See, also, EEOC
Enforcement Guideline on Reasonable Accommodation supra,
8 FEP 405:7608-7609.

“The business necessity standard is quite high, and is not
[to be] confused with mere expediency.” Conroy v. New York
State Department of Correctional Services, supra, 333 F.3d at 97-
98 and 101 citing Cripe v. City of San Jose, supra, 261 F.3d at 890
(9"" Cir. 2001); Morton v. UPS, Inc., supra, 272 F.3d 1249, 1257
and 1260. Interpretation of the “business necessity” standard
such that the employer has the burden of proving less intrusive
means are unavailable or too difficult to implement, is central
to preventing disability discrimination before it takes place.
Conroy v. New-York State Department of Correctional Services,
supra, 333 F.3d at 97-98 and 101 citing Cripe v. City of San Jose
261 F.3d 877, 890 (9 Cir. 2001); Morton v. UPS, Inc., 272 F.3d
1249, 1257 and 1260 (9" Cir. 2001 ), cert. denied, 122S. Ct. 1910
(2002).

Congress enacted the ADA because ““society’s
accumulated myths and fears about disability and disease are
as handicapping as are the physical limitations that flow from
actual impairments.” Sutton v. United Air Lines, Inc., 527 US.
471, 489, 119S.Ct. 2139, 144 L.Ed.2d 450 (1999) (quoting School
Bd. Of Nassau County v. Arline, 480 U.S. 273, 284 (1987)). Only
by strictly limiting employer access to information about
employee disabilities to data truly necessary to permit safe
and efficient employer operations can the anti-discrimination
goals of the ADA be realized. Guidance: Disability-Related
Inquiries, supra, 8 FEP (BNA) 405:7701 and 7703, n. 14, citing
S. Rep. No. 101-116 at 39-40 (1989); H.R. Rep. No. 101-485, pt.
2, at 75 (1990), It would seem that these observations apply
here.

12

Since 1993, when Dr. Delson first requested an
accommodation, copies of the medical information collected
were incorrectly distributed and held by both of her
supervisors - i.e., the Dean and Jane Brickman, Head of the
Humanities Department (hereinafter “Dr. Brickman”). The
content was discussed and examined by each of them. As a
result, Dr. Delson was repeatedly subjected to their ridicule
and repeated inquiries based on stereotypic assumptions.*

The trial court simply characterized the conduct of Dr.
Brickman, Dr. Delson’s immediate supervisor, as being
“insensitive to [Dr. Delson’s] condition..” At trial, Dr. Brickman
answered YES, in response to the question: Do you believe
that Dr. Delson is in remission and appears to be in good
health?

Dr. Brickman testified:

Q. What was the basis of that belief that she was

possibly in remission?

A. Well, she appeared very strong and vigorous.

x**k*

Q. What period of time was this?

A. I guess this was for most of the time that she and

I were together in that department.

Dr. Delson’s condition is precisely the type of case that
led the United States Supreme Court to find a right of
confidentiality of private sector employees in their employer-
held medical records in the case of Detroit Edison v. N.L.R.B.,
440 U.S. 301, 318, 99 S.Ct. 1123, 1133, 59 L.Ed.2d 333 (1979). In
upholding the utility’s refusal to disclose to their union
psychological test results without first receiving the

‘From the outset, Dr. Delson was subjected to intrusive inquiries that
were not job related and without business necessity: Dr. Brickman, made
specific reference to detailed medical information regarding a particular
medication listed in Dr. Kamin’s report of September 8, 1993. Dr. Brickman
told Dr.Delson that she understood Dr. Delson was taking a stimulant that
she believed had changed Dr. Delson’s personality. Dr. Brickman also
questioned why Dr. Delson was not taking Betaseron. In another instance,
Dr. Brickman was skeptical about Dr. Delson’s handicap driver’s permit
and claimed that doctors freely supply them to patients just for the asking
without cause. Dr. Brickman also asked whether Dr. Delslon wore slacks
because her legs were a = shied .

13

employee’s written authorization, the Court stated: “The
sensitivity of any human being to disclosure of information
that may be taken to bear on her or his basic competence is
sufficiently well known to be an appropriate subject of judicial
notice.” Id. at 318-19, 99 S.Ct. at 1133. Dr. Delson’s also is the
type of case that led Congress to codify the right of
confidentiality in the ADA.

The Academy initially received two reports from Dr.
Delson’s neurologist, Stephen S. Kamin, dated May 26, 1993,
and September 8, 1993, respectively, asking for an
accommodation of a modified schedule. The Dean treated Dr.
Kamin’s submission as reasonable medical documentation that
was sufficiently detailed to substantiate an ADA disability,
the restriction it imposed on the duties of the position, and
the necessity of a modified schedule that required Dr. Delson’s
presence at the Academy no more than three days a week and
permitted her to work from home with no assignments that
required her to be on campus the remaining two days. There
was no indication that the accommodation was denied or the
medical submission lacked sufficient detail.

Dr. Kamin reported that Dr. Delson has MS and her major
symptom is overwhelming fatigue and a decrease in stamina.
Dr. Kamin explained that if she overextends herself, fatigue
would exacerbate her symptoms and place her health and
safety at risk. Dr. Kamin pointed out that Dr. Delson required
rest periods and should schedule activities of the day when
her energy level is highest, so that tasks may be completed
and destinations reached safely.

Dr. Kamin also specifically confirmed Dr. Delson’s need
for an accommodation that required Dr. Delson’s presence no
more than three days a week at the Academy, stating:

*** [I]t is clear that Dr. Delson’s severe fatigue does
impose limitations on the scheduling of her activities.
Because of her reduced stamina, a schedule of three
days a week of teaching is medically warranted. ***

From this time on, the Academy assigned Dr. Delson a
modified schedule that conformed to the accommodation
requested until First Term AY98-99. She was excused from
committees, which would have required her presence at the

14

Academy more than three days a week, and she was
consistently given a three day teaching schedule, with classes
between 10:00 a.m. and 3:00 p.m., and no classes after 2:00
p.m. on Fridays. Dr. Delson worked from home and was not
required to be on campus at all on the two days she was not
scheduled to teach. :

In 1996, Dr. Brickman for the first time told Dr. Delson
that she believed Dr. Delson’s condition was “not serious.”
Dr. Brickman asserted, “So what if you are a little spastic and
you have a little problem with your gait.” Dr. Brickman also
specifically referred to the medical report by Dr. Kamin, dated
September 8, 1993, and claimed the report was only sufficient
for an accommodation of a three-day teaching schedule and
not a schedule permitting Dr. Delson to work from home on
the two days free of classes. As a result, the Dean, with the
consent of Dr, Delson, spoke to Dr. Kamin directly, and asked
Dr. Kamin for further information about the need for an
accommodation that did not require Dr. Delson’s presence on
campus on the two non-teaching days.

In December of 1996, Dr. Kamin again wrote to the Dean
and reaffirmed that Dr. Delson should have no more than a
three-day presence on campus:

Dr. Delson’s condition is permanent. There is no
likelihood of recovery from this condition or of
amelioration of her disability. However, she is fully
capable of discharging the duties of her position with
the limitation that she spend no more than three days
a week on campus, and that her duties be scheduled
to avoid late afternoon responsibilities. These are the
same recommendations for an accommodation
which I made in 1993. At that time, I had stated these
limitations as a “schedule of three days a week of
teaching”. However, it is clear that I meant this to
encompass all other duties of her position as well,
and I am making it explicit that a limitation of three
days a week on campus refers to any and all of the
duties of her position.

In May 1997, the Dean again asked for more information.
This time he insisted that Dr. Delson sign a general release,
effective for one year, that would authorize the disclosure of her

15

complete medical record to any “Academy official.” The

release form contained no limitations. Dr. Delson informed

the Dean that the Civil Rights Officer of the Department of

Transportation “advised [her] not to sign the release form.”°

C. Requiring further information about the ADA disability
and the need for an accommodation that already were
known and obvious served no legitimate operational
purpose.

EEOC Enforcement Guidance delineates when an
employer cannot ask for further documentation:

An employer cannot ask for documentation when:

(1) both the disability and the need for reasonable

accommodation are obvious, or (2) the individual has

already provided the employer with sufficient
information to substantiate that s/he has an ADA
disability and needs the reasonable accommodation
requested.
EEOC Enforcement Guideline on Reasonable Accommodation,
8 FEP (BNA) 405:7607-08. See, also, EEOC Guidance on
Disability-Related Inquiries, supra, 8 FEP (BNA) 405:7713, n.
54, citing EEOC Guidance on Reasonable Accommodation,
supra, note 6, at 14-15, 16-17, 8 FEP at 405:7609.

No vital need existed for the Dean to ask for additional
documentation. Dr. Delson required an unpaid leave for the
same reason she requested a modified schedule five years
earlier. Both the nature and severity of the MS-related fatigue
and need for a modified schedule or, in the alternative, a leave
of absence were known and obvious. There was no need to
ask for more medical documentation. The Dean knew that she
has a covered disability for which her need for an
accommodation was obvious. He also realized that Dr. Delson

> The Dean did not question the sufficiency of the medical
documentation submitted previously to substantiate an ADA disability and
the need for an accommodation of a three day teaching schedule established
four years earlier in 1993. The Dean claimed that he sought this
authorization in order to further evaluate the need for an accommodation
that did not require her to be on campus on non-teaching days. He gave no
reason explaining why he considered Dr. Kamin’s reports sufficient for a
three-day teaching schedule but not a schedule that permitted Dr. Delson
to work from home on the two days free of classes. :

16

requested a leave for the same reason she first requested an
accommodation five years earlier.

EEOC Enforcement Guidance delineates further when an
employer cannot ask for more documentation in examples
substantially identical to the circumstances of the instant case:

Example B: One year ago, an employer learned that
an employee had bipolar disorder after he requested
a reasonable accommodation. The documentation
provided at that time from the employee's
psychiatrist indicated that this was a permanent
condition which would always involve periods in
which the disability would remit and then intensify.
The psychiatrist’s letter explained that during
periods when the condition flared up, the person’s
manic moods or depressive episodes could be severe
enough to create serious problems for the individual
in caring for himself or working, and that medication
controlled the frequency and severity of these
episodes.
Now, one year later, the employee again requests a
reasonable accommodation related to his bipolar
disorder. Under these facts, the employer may ask
for reasonable documentation on the need for the
accommodation (if the need is not obvious), but it
cannot ask for documentation that the person has an
ADA disability. The medical information provided
one year ago established the existence of a long-term
impairment that substantially limits a major life
activity.
Enforcement Guidance: Reasonable Accommodation, supra, 8
FEP at 405:7610. See, also, Enforcement Guidance: Reasonable
Accommodation supra, 8 FEP (BNA) 405:7609-10; Enforcement
Guidance: Disability-Related Inquiries, supra, 8 FEP 405:7713,
n. 54, citing Reasonable Accommodation, supra, 8 FEP at
405:7607-09.

Here, requiring more documentation was not founded on
an interest adequate to satisfy the business necessity standard
but simply would expose Dr. Delson to blatant and subtle

17

stigma. She already provided medical information, which the

Academy itself treated as sufficiently detailed to substantiate

an ADA disability, the restriction it imposed, and the necessity

of a modified schedule.

Nevertheless, Dr. Delson in good faith sought to cooperate
and asked Dr. Kamin to update the medical reports already
provided to the Academy. On July 22, 1998, Dr. Kamin, wrote
his most recent update to the Academy, stating that no
additional accommodation was required, and reaffirmed his
findings and recommendations stated in his four previous
reports, dated May 26, 1993, September 8, 1993, December 17,
1996, and February 13, 1997, that Dr. Delson suffers from MS-
related fatigue, a permanent condition, and she is capable of
fulfilling the duties of her position on campus and at home,
with the limitation that she spend no more than three daysa
week on campus, and the balance of the week working from
home.

D. Absent conflicting expert testimony, the sufficiency of
documentation Dr. Kamin provided was not placed in
doubt.

The difficulty of proof that medical inquiries must be
shown by the employer to be no broader or more intrusive
than necessary rests upon the technical nature of the subject
matter involved. The disability and the necessity of
accommodations are ordinarily not matters of ordinary lay
knowledge, but require special scientific training to elucidate.
Connors v. University Associates In Obstetrics and Gynecology,
Inc., 4 F.3d 123, 127 (2d Cir. 1993); McDermott v. Manhattan
Eye, Ear and Throat Hospital, 15 N.Y.2d 20, 24, 255 N.Y.S.2d
65,69, 203 N.E.2d 469, 471-472 (1964).

At trial, the Academy did not present expert testimony in
this regard identifying any insufficiency in the medical
documentation submitted to substantiate an ADA disability
and the need for the accommodations requested. Without the
essential medical expert testimony establishing the necessity
for the medical data requested, all suggestions of such a
genuine need are purely conjectural and unreliable. The

18

sufficiency of medical data already provided was not placed

in doubt.’

E. Prohibited inquiry claims have their own specialized
legal standards.

The protocol for evaluating Dr. Delson’s claims is not
subject to the analysis necessary for evaluating a reasonable
accommodation claim or a general discrimination claim.®
Merely showing that the Dean required Dr. Delson to respond
to the inquiries but refused to treat the medical information
requested as a confidential medical record is sufficient to assert
a cause of action for unlawful inquiry under the Act.’ 42
U.S.C.A. §§12112(d)(3)(B) and (d)(4)(C); 29 C.F.R. §1630.14(b)-

(d).

A separate and distinct cause of action predicated on an
inquiry that lacks a legitimate business purpose also has its
own specialized legal standards. Conroy v. New York State
Department of Correctional Services, supra. The first issue that
must be addressed is whether the employer's question is a
disability-related inquiry. The second issue is whether the

® The trial court erroneously relied on an alleged out of court statement
of a health care professional who did not testify at the trial. The statement,
over Dr. Delson’s objection, was admitted as an exception to the hearsay
rule to show the alleged good faith of the Academy, and not to verify that
it lacked less intrusive alternatives or that the medical documentation
provided was insufficient. See, Parker v. Sony Pictures Entertainment, 260
F.3d 100, 113 (2d Cir. 2001) (employer’s good faith belief in the legality of
its practices is a factor relevant only to the scope of relief, not the existence
of liability). In any event, the Dean withheld from the health care provider
a copy of Dr. Kamin’s most recent update, dated July 22, 1998. “

’ Dr. Delson need not establish that there has been an intention to
discriminate in order to prevail in this case. Alexander v. Choate, 469 U.S.
287, 295-97, 105 S.Ct. 712, 717-18, 83 L.Ed.2d 661 (1985); Parker v. Sony
Pictures Entertainment, supra, 260 F.3d at 113; Nathanson v. Medical College of
Pennsylvania, 926 F.2d 1368 (3"% Cir. 1990). “[T]he Rehabilitation Act was
directed particularly at unintentional conduct because “[d]Jiscrimination
against the handicapped was perceived by Congress to,be most often the
product, not of invidious animus, but rather of thoughtlessness and
indifference — of benign neglect.” Bennett v. Henderson, supra, 15 F.‘Supp.2d
at 1107, quoting Alexander v. Choate, supra, 469 U.S. 287, 295, 105 S.Ct. 712.

* Even if a finding on the issue of business necessity has been made, a
claim challenging an employer's refusal to treat information requested as
a confidential medical record is a separate one that still would have to be
considered and resolved. 42 U.S.C.A. §§12112(d)(3)(B) and (d)(4)(C).

19

person is an employee. If the person is an employee, the final
question is whether the inquiry is job-related and consistent
with business necessity.

Under section 12112(d)(4)(a), a “disability related inquiry”
in and of itself will be enough to assert a cause of action. Merely
showing questions were asked is sufficient to prove
discrimination. 42 U.S.C. § 12112 (d)(1), (d)(4)(A); Conroy v.
New York State Department of Correctional Services, supra, 333
F.3d at 96 (requesting a general diagnosis from an employee
returning from a one-day absence is sufficient to trigger the
protection of the ADA prohibition forbidding disability-
related inquiries); Roe v. Cheyenne Mountain Conference Resort,
920 F.Supp. 1153, 1154-1155 (D. Colo. 1996) aff'd in pertinent
part, 124 F.3d 1221 (10" Cir. 1997) (requiring employees to
disclose their prescription drug medication is a prohibited
inquiry because such a disclosure would likely force
employees to reveal disabilities or perceived disabilities); Doe
v. Kohn Nast & Graf, P.C., 866 F. Supp. 190 (E.D. Pa. 1994)
(employer conducted an unlawful medical inquiry when it
searched the office of an employee to confirm its suspicions
about the employee’s medical condition, and discovered a
letter indicating the employee had AIDS).

F. The Academy must bear the cost of its “lost opportunity”
to determine whether, with reasonable accommodations,

Dr. Delson could have remained an “otherwise”

qualified individual with a disability.

“Once a plaintiff demonstrates that a discriminatory factor
‘play[ed] a motivating part in an employment decision,’
defendant must demonstrate that it would have made the same
decision based upon the legitimate factor alone.” Cosgrove v.
Sears, Roebuck & Co., 9 F.3d 1033, 1039-1040 (2d Cir. 1993).”

* The mixed-motive analysis available in the Title VII context applies
equally to cases brought under the ADA. Parker v. Columbia Pictures
Industries, 204 F.3d 326, 336-337 (2d Cir. 2000). The Academy may not prevail
by offering a reason for its decision if that reason did not motivate it at the
time of the decision.’ Cosgrove, supra, 9 F.3d at 1039-1040 citing Price
Waterhouse v. Hopkins, 490 U.S, 228, 252, 109 S.Ct. 1775, 1791, 104 L.Ed.2d
268 (1989). Bennett v. Henderson, supra, 15 F.Supp.2d at 1103 citing Woodman
v. Runyon, 132 F.3d 1330 (10% Cir. 1997) (“[C]ourts should be wary of

(Cont'd)

20

The Academy’s assertion that it fired Dr. Delson based on her
noncompliance with the inquiries and her absence First Term,
amounts to discharge solely because of her disability. By
refusing to consider accommodations that were obvious for
Dr. Delson’s known disability and by relying on impermissible
inquiries to justify this decision, requires a finding that she
was, in fact, otherwise qualified for the position, and was
terminated because of her disability.’° Thus, the Academy must
bear the cost of its “lost opportunity” to determine whether,
with reasonable accommodations, Dr. Delson could have
remained otherwise qualified for the position of employment.
Cosgrove v. Sears, Roebuck & Co., supra, 9 F.3d 1033, 1040.

Dr. Delson herself need not establish that she is an
“otherwise” qualified individual with a disability, in order to
state a claim challenging an unlawful inquiry. 42 U.S.C. §
12112(d). Conroy v. New York State Department of Correctional
Services, 333 F.3d 88, 94-95 bias Cir. 2003)."' Once a finding on

(Cont'd)

applying cases interpreting federal grantees’ duties of reasonable
accommodation under section 504 to cases brought under section 501,”
due to the ‘heightened duties of ‘reasonable accommodation’ and
affirmative action placed upon federal employers under section 501, not
applicable to federal grantees and under 504, or private employers under
the ADA”).

" Terminating a disabled employee based on absenteeism where the
absence was the reasonable accommodation requested is disability
discrimination. Parker v. Columbia Pictures Industries, supra, 204 F.3d 326
(2d Cir. 2000) citing Borkowski v. Valley Cent. Sch. Dist., supra, 63 F.3d 131,
143 (2d Cir. 1995).

"' The statutory. guage does not refer to qualified individuals with
disabilities, but instead merely to “employees.” 42 U.S.C. § 12112(d)(3)(B),
(d)(4)(A), (d)(4)(B) and (d)(4)(C). The statutory language makes clear that
the ADA’s restrictions on inquiries and examinations apply to al!
employees, not just those with disabilities. Conroy v. New York State
Department of Correctional Services, supra, at 95, citing Enforcement Guidance
on Disability-Related Inquiries. See, also, Roe v. Cheyenne Mountain
Conference Resort, inc., supra, at 1229; Griffin v. Steeltek ,Inc., 160 F.3d 591,
595 (10" Cir. 1998), cert. denied, 526 U.S. 1065, 119 S.Ct. 1455 (1999){a job
applicant without a disability can sue under the ADA regarding medical
history questions); Fredenburg v. Contra Costa County Department of Health

(Cont'd)

21

the issue of unlawful inquiry has been made, the question of
reasonable accommodation is a separate one that should be
considered and resolved in the assessment of damages. The
Academy cannot simply invoke the disability of Dr. Delson
for the purpose of reducing the damages for which it is liable.
The burden shifts to the Academy to affirmatively plead and
prove that Dr. Delson is no longer an individual “otherwise”
qualified to perform the duties of the position of Associate
Professor. If an accommodation is needed, the Academy must
show that no effective reasonable accommodation exists that
would render Dr. Delson “otherwise” qualified for the
position.” If the Academy cannot show that the

(Cont'd)

Services, 172 F.3d 1176, 1182 (9" Cir. 1999) (requiring plaintiffs to prove
that they are persons with disabilities to challenge a medical examination
would render §12112(d)(4)(A) of the ADA “nugatory” ; thus, plaintiffs need
not prove that they are qualified individuals witha disability to bring claims
challenging the scope of medical examinations under the ADA); Cossette v.
Minn. Power & Light, 188 F.3d 964, 969 (8" Cir. 1999) (“We are persuaded
by the holdings of the Ninth and Tenth Circuits that a plaintiff need not be
disabled to state a claim for the unauthorized gathering or disclosure of
confidential medical information”); accord Murdock v. Wash. 193 F.3d 510,
512 (7 Cir. 1999), cert. denied, 529 U.S. 1134 (2000) (the ADA “does not
require that an individual be disabled to state a claim” for unlawful
employer inquiries); Gonzales v. Sandoval County, 2 F.Supp. 2d 1442, 1445,
(D. N.M. 1998) (plaintiff need not establish disability to state a claim for a
prohibited inquiry under the ADA).

The applicable regulations provide that the federal government
“shall become a model employer of individuals with handicaps.” 29 C.F.R.
§ 1614.203(b). Federal employers “must play a considerable role in ensuring
that every reasonable effort” is made to find suitable jobs for disabled
employees. Bennett v. Henderson, supra, 15 F.Supp.2d at 1107-1109. An
employer, to meet its burden may not merely speculate that a suggested
accommodation is not feasible.” In Bennett v. Henderson, supra, 15 F.Supp.2d
at 1107-1109. The duty to make reasonable accommodations at the very
least triggers a responsibility on the employer's part to investigate a request
for accommodation and determine its feasibility. Parker v. Columbia Pictures
Industries, supra, citing Borkowski v. Valley Cent. Sch. Dist., supra, 63 F.3d at
143. The employer also must engage with the employee in an interactive
process to determine the appropriate accommodation under the
circumstances. 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(0)(3); Part 1630; Part
1630 App., § 1630.9; Haschmann v. Time Warner Entertainment Company, 151
F.3d 591 (7" Cir. 1998).

22

accommodation needed poses an undue hardship, then she is

otherwise qualified for the job in question and there is no

reason to deny her the accommodation to enable her to perform

the essential functions of the job. 42 U.S.C. § 12111(8) and (9);

Borkowski v. Valley Central School District, 63 F.3d supra, at 134

and 139; Rascon v. U.S. West Communications, Inc., 143 F.3d 1324,

1330 (10" Cir. 1990).

G. The Academy by its own admission concedes that Dr.
Delson is an “otherwise qualified” individual with a
disability.

The Academy affirmatively pleaded and admitted that
until Dr. Delson went on leave she maintained a good record
of employment without cause for dismissal. The facts are not
in controversy.’? The Dean and Dr. Brickman, in her capacity
as Department Head, made this assessment based on
standards of performance applicable to the position of
Associate Professor. The facts are not in controversy.

H. The expert medical testimony established without
contradiction that accommodating Dr. Delson would not
pose an undue hardship.

In published reports, Dr. Delson’s neurologist opined that
with the reasonable accommodation of a modified schedule
she was fully capable of fulfilling the duties of her position on
campus and at home, with the limitation that she spend no
more than three days a week on campus.

'. In paragraph “17” of its amended answer, the Academy “admits
that [Dr. Delson] had, prior to-June 1998, been rated Fully Successful in her
position...” Under the Academy’s Performance Management Appraisal
System, Dr. Delson received an “Exceptional” evaluation each year from
AY89-90 until AY96-97, when the rating levels were revised - i.e.,
“Exceptional” was eliminated and “Fully Successful” was renamed
“Proficient.” Thereafter, Dr. Delson’s work was consistently rated as Fully
Successful, with no need for improvement. The medical expert testimony
supports this conclusion without material conflict. The Academy never
made an assessment that Dr. Delson’s standard of performance was below
minimum standards applicable to the position of Associate Professor.

23

The concurring trial testimony of the Academy’s medical
expert shows:

A. [felt that based upon her objective neurological

findings, and my knowledge of her work

requirements as an associate professor, that there was

no reason why she could not teach a 40-hour

workweek.

Expert testimony in this regard was essential to support
the conclusion of the trial court that Dr. Delson was unable to
perform any function of the position except between the hours
of 10:00 a.m. and 3 p.m., Monday and Wednesday, and
between 10 a.m. and 2:00 p.m. on Friday. Connors v. University
Associates In Obstetrics and Gynecology, Inc., supra, 4 F.3d at 127:
Hegger v. Green, 646 F.2d 22, 28 (2d Cir. 1981); Detwiler v. Bristol-
Myers Squibb Co., 884 F.Supp. 117, 122 (S.D.N.Y. 1995) Morgan
v. State of New York, 40 A.D.2d 891, 337 N.Y.S.2d 536 (3'¢ Dept.
1972) aff'd 34 N.Y.2d 709, 356 N.Y.S.2d 860, 313 N.E.2d 340
(1974). The expert testimony unanimously supports the
opposite conclusion without any material conflict.

Dr. Delson never required an accommodation that
compressed every essential function of the job within the block
of time she was scheduled to teach. Rather, she requested a
teaching schedule within a block of time when her energy level
is highest between 10:00 a.m. and 3:00 p.m., and no later than
2:00 p.m. Friday. And she was available to teach any three-
business days (Monday through Friday). Applying this
request, Dr. Delson was available to teach at least 14 class
periods per week, not eight periods a week. "4

“ Dr. Delson requested a class scheduled no earlier 10:00 a.m..
Granting this request eliminates periods one and two as potential
scheduling times. She also requested no classes after 3:00 p.m. and not
later than 2:00 p.m. Friday. Granting this request eliminates period six
Monday through Thursday and periods five and six on Fridays. This means
that Dr. Delson is available to teach, a minimum of three class hours a day
(periods three, four and five) Monday through Thursday, and two class
hours (periods three and four) on Friday, for a total of 14 periods a week,
with the restriction that she spend no more than three days a week on
campus. She did not request a teaching schedule limited to Monday,
Wednesday and Friday for only eight class periods a week.

24

Expert medical testimony also established without
contradiction that Dr. Delson with reasonable accommodation
was capable of working eight hours daily to fulfill all the duties
of her position on campus and at home, with the limitation
that she spend no more than three days a week on campus,
and work at home the balance of the week. Under the
circumstances of the present case, where the ultimate
accommodation required could have been determined only
in light of highly specialized medical knowledge, expert
medical testimony is essential for the Academy to establish
that Dr. Delson could not, if granted the reasonable
accommodation requested, fulfill the essential functions of the
position. Connors v. University Associates In Obstetrics and
Gynecology, Inc., supra, 4 F.3d at 127; Hegger v. Green, supra, 646
F.2d at 28; Detwiler v. Bristol-Myers Squibb Co., supra, 884
F.Supp. at 122; Morgan v. State of New York, supra.

I. Promotion standards for the senior rank of Full Professor
are not relevant.

At trial, Dr. Brickman, Department Head, answered YES,
in response to the question: Do the standards for promotion
to the senior rank of Full Professor require a higher level of
achievement than the standards of performance Dr. Delson
was expected to maintain to be “Fully Successful” in her
position as an Associate Professor?" The trial court by relying

'S Before Dr. Delson went on leave, Dr. Brickman, as Head of the
Humanities Department, wrote in a promotion review on May 7, 1998,
that Dr. Delson is a “dynamic lecturer,” “effective teacher” and “well
regarded historian” who presents a “fine record of publications” and
“regularly receives high evaluations.” In December of 1997, Dr. Brickman
also judged Dr. Delson’s institutional service (i.e., Faculty Advisor to the
Debate Team and Chair of the Faculty Forum’s Library Committee) of the
standard necessary to merit promotion to the rank of Full Professor. Five
months later, Dr. Brickman raised the bar. She wrote on May 7, 1998, that
Dr. Delson’s institutional service has “improved this year” but because
she lacked membership on an “institutional governance committee,” her
level of service was not sufficiently distinctive to merit promotion from
Associate Professor to the senior rank of Full Professor. Five months earlier,
Dr. Brickman did not believe Dr. Delson required membership on “a
governance committee” in order to distinguish herself to merit promotion.

25

on a standard for promotion to Full Professor erroneously

required Dr. Delson to demonstrate a greater level of

performance than an Associate Professor is expected to
maintain.

J. The record does not reflect that accommodating Dr.
Delson requires significant difficulty or expense.
Although the record contains no estimates of the costs

involved in making the accommodation, the cost would clearly

not exceed the benefit to be derived in view of the fact that
evidence indicates that the requested accommodations would
permit Dr. Delson to perform the essential functions of an

Associate Professor.'° Under the ADA, “undue hardship”

means “an action requiring significant difficulty or expense”

when considered in light of various factors. 42 U.S.C. § 12111

(10)(A).” The record before the trial court does not reflect that

'* “By definition any special ‘accommodation’ requires the employer

to treat an employee with a disability differently, i-e., preferentially. And
the fact that the difference in treatment violates an employer's disability-
neutral rule cannot by itself place the accommodation beyond the [ADA’s]
potential reach.” US Airways, Inc. v. Barnett, 535 U.S. 391, 397, 122 S.Ct.
1516, 152 L.Ed2d 589 (2002). “ * * * The simple fact that an accommodation
would provide a ‘preference’ - in the sense that it would permit the worker
with a disability to violate a rule that others must obey - cannot, in and or
itself, automatically show that the accommodation is not ‘reasonable’. “ Id.
“(T]he requirement of reasonable accommodation anticipates that it
may cost more to cbtain that level of performance from an employee with
a disability than it would to obtain the same level of performance from a
non-disabled employee. See id. And Congress fully expected that the duty
of reasonable accommodation would require employers to assume more
than a de minimis cost. See id., pt. 2, at 68, reprinted in 1990 US.C.C.A.N. at
350; id., pt. 3, at 40, reprinted in 1990 US.C.C.A.N. at 463.” Borkowski v.
Valley Central School District, supra, 63 F.3d at 138, n. 3.
’’ When considering undue hardship, the ADA requires the courts to

consider the following factors:

(i) the nature and cost of the accommodation needed under

this chapter;

(ii) the overall financial resources of the facility or facilities

involved in the provision of the reasonable accommodation;

the number of persons employed at such facility; the effect

(Cont'd)

26

the impact on the Academy of accommodating Dr. Delson
would reach that point. Moreover, “[i]n view of the affirmative
goal of the federal government to be a model employer for
those with disabilities ... am accommodation which would be
unreasonable for a private employer could be found to be a
reasonable undertaking for the federal government. See
Woodman, 132 F.3d at 1344 n. 14.” Bennett v. Henderson, 15
F.Supp.2d 1097, 1112 aff'd 172 F.3d 62 (10" Cir. 1999)."*®

K. The unpaid leave of absence did not pose an undue

hardship First Term.

Thé trial court found that the leave First Term AY98-99
was a reasonable accommodation, and, thus, Dr. Delson was
an “ otherwise qualified” individual with a disability since she
could perform the essential functions of the job upon
completion of the leave. The trial court’s finding that the
accommodation was reasonable prevents the Academy from

(Cont'd)
on expenses and resources, or the impact otherwise of such
accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the
overall size of the business of a covered entity with respect to
the number of its employees; the number, type, and location
of its facilities; and

(iv) the type of operation or operations of the covered entity,
including the composition, structure, and functions of the
workforce of such entity. 42 U.S.C. § 12111(10)(B).

“Tt is well established both by the statutory language and Supreme
Court decisions interpreting the [Rehabilitation] Act that federal employers
have greater duties to accommodate disabled workers under section 501
than the duties owed by federal grantees under section 504 or those owed
by employers under the ADA.” Woodman v. Runyon, supra, 132 F.3d at 1343;
Bennett v. Henderson, supra, 15 F.Supp.2d at 1104-1105. “There is little to
stop the federal government from expending considerable money and effort
to become a model employer of handicapped individuals, when that is its
chosen policy,” (quoting Lex K. Larson, Employment Discrimination §
T106.44(a) (2d ed.1977).” Bennett v. Henderson, supra, 15 F.Supp.2d at 1112.
Borkowski v. Valley Central School District, supra, 63 F.3d at 142-143, n.5 (“..
. Section 501 requires federal employers to take affirmative steps (above
and beyond reasonable accommodation) . . . Federal employers therefore
may be required to do more under Section 501 than recipients of federal
funds under Section 504.”).

27

asserting the unpaid leave of absence First Term posed an

undue hardship requiring significant difficulty or expense.

L. The record does not reflect the impact on the Academy
that would be caused by a three day teaching schedule
comprised of three courses that each meet twice a week
for a total of six class hours and end no later than 2:00
p-m., Friday, Second Term.

Dr. Delson’s assignment Second Term called for three
courses that each met twice a week for a total of six class hours
a week upon her return from leave. The facts are not in
controversy.” Although the record contains no estimates of
the costs involved in making the accommodation requested,
the cost would clearly not exceed the benefit to be derived
in view of the fact that evidence indicates that this
accommodations would permit Dr. Delson to perform all
essential functions of her position as associate professor.

M. The record does not reflect the specific impact of a three-
day teaching schedule comprised of three courses that
each meet twice a week (for a total of six class hours)
and end no later than 2:00 p.m. Friday after Second Term.
First Term AY98-99 the Academy commenced a three-year

transition to a trimester calendar from a quarter system. The

Academy introduced an ample number of courses that met

for one hour twice a week for a total of two hours a week

during the transition to the new trimester system. Although
the record contains no estimates of the costs involved in
affording Dr. Delson a three-day teaching schedule comprised
of three courses that each meet twice a week for a total Six
hours and end no later than 2:00 p-m. on Friday as an
accommodation, the cost would clearly not exceed the benefit
to be derived in view of the fact that evidence indicates that
the requested accommodations would permit Dr. De’son to

Tn paragraph “17” of its amended answer, the Academy

affirmatively pleads and admits: “. . . that Dr. Delson was scheduled for

the Winter Term 1998 to work twice a week, for a total of six classes a

week.”. The facts are not in controversy. The trial court concluded, with no

foundation in the record, that a three-day teaching schedule Second Term
would pose an undue hardship based on the mistaken assumption that

Dr. Delson was assigned three classes that each met three times a week

(for a total of nine hours) on Monday, Wednesday and Friday. This finding,
contrary to «ae undisputed facts, is definitely mistaken.

28

perform all essential functions of her position as associate

professor.

N. The record does not reflect the impact on the Academy
that would be caused by a three-day teaching schedule
comprised of three courses that each meet three days a week
and end no later than 2:40 p.m. on Thursday.

Under the quarter system, the Academy routinely assigned
three day schedules comprised of three courses that each met
three times a week through the Fourth Quarter AY97-98. During
the transition, the Academy still scheduled classes for the most
part that met for one hour three days a week for a total of three
hours a week. Dr. Delson was available any three-business days
(Monday through Friday). Further, classes are assigned that meet
no more than three days a week and end no later than 2:40 p.m.
on Thursday. Although the record contains no estimate of the
costs involved in affording Dr. Delson a three-day teaching
schedule comprised of three courses that each meet three times.a
week for a total of nine hours and no later than 2:40 p.m., on
Thursday, the cost would clearly not exceed the benefit to be
derived in view of the fact that evidence indicates that the
requested accommodations would permit Dr. Delson to perform
all essential functions of her position as associate professor.

O. The record does not reflect the specific impact on the
Academy that would be caused in the event Dr. Delson
were given further unpaid leave of absence.

Allowing Dr. Delson an unpaid leave of absence did not
absolve the Academy of its duty to ensure that every reasonable
effort is made to find a suitable accommodation. The Academy’s
liberal leave policy permits instructors to routinely take extended
leaves of absence with “no limitation” on the amount of time
that a leave without pay (LWOP) may be granted.” A further

* See 29 C.F.R. 1630 app. § 1630.2(0), Rodgers v. New York University,

143 F.Supp.2d 310 (S.D.N.Y. 2002); Durant v. Chemical/Chase Bank, 81 F.
Supp.2d 518, 522 (S.D.N.Y. 2000); Powers v. Polygram Holding, Inc., 40
F.Supp.2d 195, 202 (S.D.N.Y. 1999); Criado v. IBM Corp., 145 F.3d 437 (1*
Cir. 1998); Celirs v. Northeast Olno Alzheimer’s Research Ctr., 155 F.3d 775 (6™
Cir. 1998); Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7%
Cir. 1998); Humphrey v. Memorial Hospitals Association, 239 F.3d 1128, 1136
(9" Cir. 2001), citing Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th
(Cont'd)

29

leave would be less accommodating than the federal employer's
own policies required. The fact that Dr. Delson’s duties continued
to be covered by co-workers and adjunct faculty after she went
on leave does not establish that granting her an accommodation
would have caused the Academy undue hardship during the
transition. This prevents the Academy from asserting that a
further leave would produce an undue burden on its operations.
Thus, the Academy failed to carry its burden of demonstrating
that the accommodation requested would cause undue hardship.
P. The record does not reflect the specific impact on the

Academy that would be caused if Dr. Delson were assigned

no courses that met four days a week during the transition.

Classes that met four days a week as “slash” courses also
were introduced for the transition to a trimester calendar. After
the three-year transition, slash courses were eliminated and all
courses again are taught no more than three days a week.
Moreover, courses that had been designated slash courses were
“unslashed” and rescheduled to meet no more than three daysa
week.

First Term AY98-99 the Academy assigned Dr. Delson
“slash” courses, thereby requiring her to be on campus
four days a week. The Dean refused to consider any
accommodation unless she complied with the medical inquiry.
In addition, members of the Academy Faculty Committee,
including the Dean and Dr. Brickman, who were responsible for
switching Dr. Delson’s assignment, testified that continuation of
three day teaching schedule as an accommodation of a modified
schedule was not given any consideration, the decision to assign
a four-day teaching schedule was” purely arbitrary,” “it was not
‘essential’ to slash the courses [Dr. Delson] taught” and, as such,
four-day schedule may not be considered an essential job function.
Although the record centains no estimate of the costs involved
in affording Dr. Delson a three-day teaching schedule that ended
no later than 1:10 p.m. on Friday, with no “slash” classes, the cost

“uld clearly not exceed the benefit to be derived in view of the
fact that evidence indicates that the requested accommodations
(Cont'd)

Cir.1999); Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9 Cir. 1989) cert.

den. 498 U.S. 814, 111 S.Ct. 53, 112 L.Ed.2d 28 (1990); Rascon v. U.S. West
Communications, Inc., 143 F.3d 1324 (10" Cir. 1998).

30

would permit Dr. Delson to perform all essential functions of her

position as associate professor.

Q. The record does not reflect the specific impact on the
Academy that would be caused in the event the Academy
afforded Dr. Delson the same favorable treatment given
non-disabled employees, similarly situated.
Nondisabled employees, similarly situated were given

modified schedules which, if given Dr. Delson, would have

afforded her a three day assignment of no “slash” courses at all,

or, in the alternative, “slash” courses that met for extended 90

minute periods some days or simply cut one class hour a week.”

Although the record contains no estimate of the costs involved

in affording Dr. Delson the same favorable treatment given non-

disabled employees, similarly situated, the cost would clearly
not exceed the benefit to be derived in view of the fact that
evidence indicates that the requested accommodations would
permit Dr. Delson to perform all essential functions of her position
as associate professor,

CONCLUSION

For all the foregoing reasons, petitioner respectfully requests
that the Supreme Court grant review of this matter.

*! Daily attendance at the Academy is not an essential job duty. The
Academy has a liberal policy that allows instructors to work from home
and not be on campus every day. The Academy adopted this policy based
on the recognition that faculty members are professional scholars and the
nature of their responsibilities makes it necessary and desirable that they
have maximum freedom and flexibility in the performance of their duties.
The Academy, moreover, invites instructors to request teaching assignments
in conformance with their own individual scheduling preferences, which
the Academy has almost always been able to arrange.

The Academy routinely fashions schedules to conform to scheduling
preferences of instructors and to resolve scheduling conflicts, which, if given
Dr. Delson, would have afforded her no more than a three-day schedule
(e.g., Classes meet less frequently for extended periods; classes meet less
frequently and fewer hours than the standard schedule; classes are
approved for lunch hour sandwiched between the third period and fourth
period in conformance with the instructor's for a two day teaching schedule;
students carry an extra course in order that the course schedule conforms
with the instructor's preterence for no more than two class meetings a week;
and, independent studies allow students to complete a required course
but attend fewer meetings than the number of class sessions assigned for
the same course on the regular teaching schedule.

Respectfully submitted,

Roy J. KARLIN

SHAPIRO, BEILLY, ROSENBERG,
Levy, Aronowitz & Fox, LLP
225 Broadway, 13" Floor
New York, New York 10007
(212) 267-9020

Attorneys for Petitioner

APPENDIX

la

APPENDIX A— SUMMARY ORDER OFTHE UNITED
STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT DATED AND FILED JULY 22, 2005

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Docket No. 04-4118
- ROBERTA M. DELSON,
Plaintiff-Appellant,
nae

NORMAN MINETA, in his capacity as Secretary of the
United States Department of Transportation,

Defendant-Appellee.

July 22, 2005

Present: WESLEY, HALL, Circuit Judges, and SCULLIN,
District Judge. '

SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court be AFFIRMED.

1. The Honorable Frederick J. Scullin, Chief Judge of the United
States District Court for the Northern District of New York. sitting
by designation.

2a

Appendix A

Plaintiff-appellant Delson appeals from a Memorandum,
Decision, and Order of the United States District Court for
the Eastern District of New York (Seybert, J.), issued after
an eight-day bench trial, finding in favor of defendant on all
of plaintiff's claims and dismissing the action. Familiarity
by the parties is assumed as to the facts, the procedural
context, and the specification of appellate issues.

“{U]nder . . . the Rehabilitation Act, a plaintiff can state
a claim for discrimination based upon her empluyer’s failure
to accommodate her handicap by alleging facts showing (1)
that the employer is subject to the statute under which the
claim 1s brought, (2) that she is an individual with a disability
within the meaning of the statute in question, (3) that, with
or without reasonable accommodation, she could perform
the essential functions of the job, and (4) that the employer
had notice of the plaintiff's disability and failed to provide
such accommodation.” Lyons v. Legal Aid Soc., 68 F.3d 1512,
1515 (2d Cir. 1995). Substantially for the reasons stated in
the district court’s opinion, we agree that plaintiff failed to
show the defendant denied her a reasonable accommodation.
We agree with the district court’s assessment that it was
plaintiff's refusal to provide the defendant with any specific
medical documentation and her refusal to compromise on
any of her scheduling demands, that precipitated the failure
of the “interactive process” between employer and employee
that the ADA envisions. See generally Jackan v. New York
State Dep t of Labor, 205 F.3d 562, 566 (2d Cir. 2000).

We similarly reject plaintiff's claim that the defendant’s
medical inquiries were unlawful. In seeking to determine the
extent and types of accommodation that were truly necessary

3a

Appendix A

for plaintiff, the defendant’s inquiries were “job-related and
consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A).
See Conroy v. N.Y. State Dept of Corr. Servs., 333 F.3d 88,
97-98 (2d Cir. 2003) (explaining that “business necessities
may include ensuring that the workplace is safe and secure
or cutting down on egregious absenteeism”). We have
considered all of plaintiff's remaining arguments and find
them to be without merit.

Accordingly, for the reasons set forth above, the
judgment of the district court is hereby AFFIRMED.

For the Court
Roseann B. MacKechnie, Clerk

s/ Lucille Carr
By:

4a
APPENDIX B — MEMORANDUM, DECISION AND
ORDER AFTER BENCH TRIAL OF THE UNITED
STATES DISTRICT COURT EASTERN DISTRICT OF
NEW YORK DATED JUNE 9, 2004

UNITED STATES DISTRICT COURT EASTERN
DISTRICT OF NEW YORK

99-CV-4723 (JS)
ROBERTA M. DELSON,
Plaintiff,

- against -

NORMAN MINETA, in his capacity as
SECRETARY OF THE UNITED STATES
DEPARTMENT OF TRANSPORTATION |,

Defendant.

MEMORANDUM, DeCISION
AND ORDER AFTER BLNCH TRIAL

|. The United States Secretary of Transportation is the
appropriate Defendant in this action, in that the Academy is a federal
service academy and part of the Maritime Administration of the U.S.
Department of Transportation. The originally named Defendant,
Rodney Slater, is the former United States Secretary of Transportation,
he was replaced in 2001 by Norman Mineta. Pursuant to Federal
Rule of Civil Procedure 25, Secretary Mineta is hereby substituted
as the Defendant in this action.

Sa
Appendix B
SEYBERT, District Judge:

INTRODUCTION

Plaintiff, Roberta Delson (“Plaintiff”), commenced the
instant action on August 16, 1999. Plaintiff alleges that
Defendant violated the Rehabilitation Act of 1973, 29 U.S.C.
§ 701, et seq., by discriminating against her in her employ-
ment, by reason of her disability.

BACKGROUND

The Court presided over an eight-day bench trial
beginning on May 12, 2003. Based upon the evidence and
arguments presented, the Court makes the following findings
of fact and conclusions of law pursuant to Rule 52(a) of the
Federal Rules of Civil Procedure. To the extent that any of
the findings of fact may be deemed conclusions of law, they
also shall be considered conclusions. Likewise, to the extent
that any of the conclusions of law may be deemed findings
of fact, they shall be considered findings. See Miller v.
Fenton, 474 U.S. 104, 113-14, 106 S. Ct. 445, 451-52, 88 L.
Ed. 2d 405, 413-14 (1985) (noting the difficulty, at times, of
distinguishing findings of fact from conclusions of law).

FINDINGS OF FACT

Plaintiff, a published scholar and seasoned history
teacher on a college level, was hired by the United States
Merchant Marine Academy (the “Academy”) as an adjunct
professor of history in the Humanities Department in 1987.
In 1989, she was hired as a full-time associate professor.

6a
Appendix B

Tr. 847-48. She remained in the position of associate
professor until her termination in January 1999. Pl. Ex. 135.

The Academy is a federal service academy and is part of
the Maritime Administration of the U.S. Department of
Transportation. It is a four-year academic college located in
Kings Point, New York. Tr. 726, 984. The mission of the
Academy is to train and educate people who will serve as
officers on U.S. flagships, as naval reservists, and to train
leaders of the maritime industry. Tr. 726. The curriculum at
the Academy is particularly rigorous, most classes taken by
students are assigned to them; there are few electives. Tr.
747. As a result of the Academy’s rigorous academic
curriculum, class schedules are driven by the needs and

requirements of students, unlike most institutions of higher
learning where class schedules are driven by the preferences
of professors. It is the registrar at the Academy who makes
the final decisions regarding teachers’ schedules each term.
Tr. 746-47, 323-24.

Professors at the Academy are permitted to state
preferences as to their teaching schedules, but because of
the complexities of scheduling, the registrar cannot always
provide the preferred schedules. Tr. 324-33. Where possible,
the Academy had a history of accommodating professors
scheduling preferences. For example, instructor Alan Arnold
was given modified schedules which conformed with his
request for no classes after 2:00 p.m. Tr. 168; Pl. Ex. 6, 120A.
Instructor Rosanne Wasserman was granted a schedule
according to her preference that classes not begin earlier than
9:00 a.m., and end no later than 2:00 p.m., because of child
care. Tr. 166-67; PI. Ex. 6, 1201. Instructor Laury Magnus

Ta

Appendix B

was given a modified schedule that conformed with her
request for classes that met no later than 2:00 p.m. Tr. 164-
66; Pl. Ex. 6, 120G.

However, in many instances during Plaintiff’s time at
the Academy, professors other than the Plaintiff were not
granted their stated preferences. Tr. 324-333, 494-495: Def.
Ex. 234, 251. Further, the Plaintiff was granted a number of
her stated preferences. Tr. 623, 640-42, 757-58, 760-61; PI.
Ex. 36, 163. In addition to teaching, professors are expected
to work with students, to meet with them through regular
office hours, to perform “institutional service” by serving
on both Academy-wide and Department-wide committees,
and to contribute to efforts for change within their

departments. Tr. 338-39, 750, 810.

Daily attendance at the Academy is not an essential job
duty. The Academy has a liberal policy that allows instructors
to work from home and not be on campus every day. The
Academy adopted this policy based on the recognition that
faculty members are professional scholars and the nature of
their responsibilities makes it necessary and desirable that
they have maximum freedom and flexibility in the
performance of their duties. Pl. Ex. 3.

Plaintiff's Multiple Sclerosis

Plaintiff was diagnosed with Multiple Sclerosis (“MS”)
in or about 1986, before she started working at the Academy.
Tr. 981. MS is a neurological disorder which can cause
different symptoms in different individuals afflicted with
the illness and which can have different degrees of severity.

8a

Appendix B

Tr. 1057-1058. When she started at the Academy, Plaintiff
filled out a form in which she identified herself as
handicapped, due to blindness in one eye and partial paralysis.
Tr. 981. She did not disclose her MS in the form, nor did she
identify herself as having disabling fatigue. Tr. 982.

The most prominent symptom of Plaintiff's MS at
present is fatigue. Tr. 1062. The fatigue associated with
Plaintiff's MS occurs every day. Rest does not eliminate it.
The nature of the fatigue is not related to what the Plaintiff
does or does not do. Tr. 987.

Plaintiff first saw her treating physician, Dr. Stephen
Kamin, in 1991. Tr. 1083. At that time, her major complaints
were pain on the right side of her head, some urinary
frequency, and some fatigue. Tr. 1083. Her fatigue became
prominent in July 1992. Tr. 1063. At that time, Plaintiff began
to take Cylert, a medication which helps control her fatigue.
Tr. 988-989, 1063, 1066-67.

Scheduling Accommodations

In or about or February 1993, Plaintiff learned that she
would receive tenure. Tr. 989-90. Shortly thereafter, in April
1993, Plaintiff asked to be relieved from service on the
Outcomes Assessment Committee, an Academy-wide
committee she had served on for approximately four terms.
Tr. 751, 990-91. Dean Warren Mazek (“Mazek” or the
“Dean”) wrote to Plaintiff on or about April 10, 1993,
and informed Plaintiff that he would not excuse her from
serving on the Outcomes Assessment Committee. Tr. 752;
Def. Ex. 9. In response, Plaintiff explained that she was

9a

Appendix B

asking to be excused because she had research to complete
and because she was tired. Tr. 752, 991-92: Def. Ex. 10.
Again, on April 29, 1993, the Dean wrote to the Plaintiff
and reiterated that she was not being excused from the
committee. Def. Ex. 11. Having received the Dean’s letter,
in early May 1993, Plaintiff told Dr. Arthur Donovan
(“Donovan”), the head of her department and her direct first-
line supervisor, that she had MS and that it caused her to be
fatigued. She told Donovan that this was the reason she
sought to be retieved from the Outcomes Assessment
Committee. Tr. 576-77, 992-93. She also told Donovan that
because of her MS, she desired certain adjustments in her
teaching schedule. Specifically, she told Donovan that she
needed a three-day schedule, no classes before 10 a.m., no
classes after 3 p.m.,.2 p.m. on Fridays, teaching back to back
days, and no teaching day of more than 5 hours. PI. Ex. 29.

In May 1993, Dr. Stephen Kamin (“Kamin”), Plaintiff's
treating physician, wrote a letter to Donovan, as department
head, stating that Plaintiff had MS and describing the
condition generally. Tr. 578-80, 993-94: PI. Ex. 30. Kamin
reported that the Plaintiff has MS and her major symptom is
overwhelming fatigue and a decrease in stamina. Kamin
explained that if Plaintiff overextends herself, fatigue will
exacerbate her symptoms and place her health and safety at
risk. Kamin further pointed out that Plaintiff required rest
periods and shoutd-sehedtle activities of the day when her
energy level is highest, so that tasks may be completed and
destinations reached safely. Pl. Ex. 30. On or about June 9,
1993, Donovan wrote to the Academy Registrar, Dr. Janet
Palmer (“Palmer”), who was responsible for preparing the
students’ and teachers’ class schedules, requesting that

10a

Appendix B

Plaintiff's schedule, which had already been established for
the following quarter, be modified because Plaintiff recently
had identified a medical problem. Tr. 583-85; Pl. Ex. 29.
Ultimately, with input from Mazek, Palmer provided the
Plaintiff with a three-day teaching schedule. Tr. 592, 626-
27, 757; Pl. Ex. 36. Mazek also arranged for Plaintiff to have
no class earlier than 10 a.m. or later than 3 p.m., 2 p.m. on
Fridays, for that term. Tr. 642-43.

In July 1993, with Plaintiff's consent, Mazek wrote to
Kamin to obtain further information about Plaintiff's medical
condition, and about her need for scheduling
accommodations in the future. Tr. 759, 996; PI. Ex. 37. Kamin
responded to Mazek’s request with a letter dated September
8, 1993. In his letter, he described Plaintiff's condition and
its effects on Plaintiff. He indicated that a three-day teaching
schedule was “medically warranted,” that she should avoid
late afternoon classes, and should be provided with an
air-conditioned classroom. Tr. 760; Pl. Ex. 38. Thereafter,
until the summer of 1998, the Academy granted Plaintiff
an accommodation of a three-day teaching schedule, and
tried to give her no classes after 3 p.m., 2 p.m. on Fridays.
Tr. 760-61, 1003. Although Kamin’s letter said nothing about
early morning classes, the Academy also granted Plaintiff's
stated preference that she not be required to teach before
10 a.m. Tr. 761; Def. Ex. 126; Pl. Ex. 163. The evidence
established that there was a fundamental misunderstanding
between the parties, in that the Plaintiff believed that she
had been granted a firm accommodation incorporating all of
her scheduling preferences while the officials at the Academy
viewed the scheduling preferences as having been granted
more as a courtesy than as an official accommodation.

lla

Appendix B

Further, it seems there was a misunderstanding between
the parties, in that the Plaintiff understood that she had been
granted a three-day on campus schedule while the Academy
officials believed that she had been granted a three-day
teaching schedule and could be expected to attend to other
~ responsibilities on campus on the other two days. Tr. 357-58,
760-61, 1010-14, 1017; Def. Ex. 55, 56: PI. Ex. 110, 163.

Other Accommodations

The Plaintiff was granted a variety of non-scheduling
related accommodations throughout the course of her
employment. For example, during AY 1993-94, the Academy
established handicapped parking close to the building in
which she taught. Tr. 1003. The Academy also provided
Plaintiff elevator access to the second floor of the Humanities

Building, where her office and classroom were located.
Tr. 1001-02. Plaintiff also received an air-conditioned
classroom. Tr. 1001. Finally, Plaintiff received permission
to wear comfortable, non-regulation shoes. Tr. 1003.

Conflicts Regarding Scheduling

A 1995 Committee Meeting

In September 1995, Dr. Jane Brickman (“Brickman”),
who had become the head of the Humanities Department
in 1994, assembled an ad hoc committee made up of several
members of the Humanities Department to try to develop
a new History curriculum. Tr. 339-40. On or about
February 2, 1996, Dr. Robert Gardella (“Gardella”), one of
the members of the Curriculum Committee, requested that

12a

Appendix B

the committee meet on Thursday, February 15, 1996, for two
hours. Def. Ex. 53. Curriculum committee meetings were
generally held on Mondays, Wednesdays, or Fridays, the days
that Plaintiff was scheduled to teach. Tr. 344. Plaintiff
objected to the scheduling of the meeting because she did
not teach on Thursdays. Tr. 355, 1008-09. After Plaintiff
objected to the scheduling of the meeting, Brickman spoke
with Gardella to satisfy herself that it was necessary to hold
the meeting on a Thursday. Tr. 356-57. In fact, it was
necessary because several lengthy proposals needed to be
presented, which required more time than was normally
available during the one-hour Wednesday meetings. Tr. 355-
57. The Thursday afternoon period was the only time that all
six members of the committee were available for two
consecutive hours. Tr. 355.

Brickman directed Plaintiff to attend the meeting because
it was important that Plaintiff participate in the development
of the new curriculum. Tr. 358, 1009. Plaintiff asserted that
being required to attend the meeting violated her
accommodation; she asserted that the Academy had granted
her a “three-day work schedule.” Tr. 1010-11; Def. Ex. 55;
P]. Ex. 110. Brickman demurred; to the best of her knowledge,
as Plaintiff's direct supervisor, the meeting did not run afoul
of her accommodation. As Brickman understood it, the
Academy had granted plaintiff only a three-day teaching
schedule, and that Plaintiff could be required to be on campus
for meetings and other official business on a fourth day.
Tr. 357-58; Def. Ex. 56. Brickman referred to the language
of Kamin’s letter dated September 8, 1993. Pl. Ex. 38.

13a

Appendix B
B Academic Schedule: First Quarter 1993-94

[n the first quarter of AY 1993-94, Plaintiff was assigned
a schedule which required her to teach four days per week.
Pl. Ex. 31. The Plaintiff objected to this schedule and asserted
that it was “prejudicial to [her] handicapped status.” Pl]. Ex.
34. The Plaintiff also registered a complaint regarding the
schedule with the Superintendent in charge of the Academy,
Thomas T. Matteson. Thereafter, Plaintiff's schedule for the
term was changed to a three day per week schedule-Tr. 623-
24, 863-66; Pl. Ex. 36.

C Academic Schedule: Fourth Quarter 1997-98

In the fourth quarter of AY 1997-98, Plaintiff was
assigned a schedule which required her to teach a class from
2-3 p.m. on Fridays. Tr. 429. Plaintiff objected to this
schedule, claiming that it violated her accommodation.
Tr. 429, 786. The Academy denied that the schedule violated
her accommodation, as set forth in Mazek’s October 3, 1997
letter. Tr. 786. Nonetheless, Mazek offered to move the class
to 8 a.m. on Fridays. Tr. 787. Plaintiff rejected this offer,
claiming that an 8 a.m. class also was a violation of her
accommodation. Tr. 432-33, 1037.

Plaintiff requested that the Academy reschedule the class
to 9 a.m. Tr. 433, 438. Plaintiff taught the class once at
9 a.m. Tr. 434. However, she never asked the Academy to
make this change permanent. Rather, she proposed combining
her 2-3 p.m. class on Fridays with her 10 a.m. class on
Fridays. The Academy rejected Plaintiff's suggestion that her
class from 2-3 p.m. be combined with her 10 a.m. Class

14a

Appendix B

because the Academy had a policy against doubling up of
classes. Tr. 435-37; Def. Ex. 150.

Plaintiff also proposed moving her 2 pm. class on
Fridays to | p.m. on Fridays. Tr. 786-88. The Academy also
rejected moving the class to | p.m. because not all of the
students assigned to Plaintiff's 2-3 p.m. class were available
at those times. Tr. 786-88. Ultimately, Plaintiff taught her
Friday afternoon classes from 2-3 p.m. throughout the rest
of the term. Tr. 441.

The Oversized Class

In March 1997, Plaintiff was assigned to teach three
classes, three days per week. Due to the complexities of
scheduling classes at the Academy, the Registrar designated
one of Plaintiff's classes to have more than 30 students.
Tr. 377. The size of the one larger class did not increase the
total number of students Plaintiff was assigned to teach
during the term as compared to the same term the previous
year. Tr. 389. When she learned that she would be assigned a
class of more than 30 students, Plaintiff objected. She
asserted that her voice and larynx would be damaged by
having to teach a class so large. Tr. 377. Prior to March 1997,
Plaintiff had never asked for an accommodation related to
the size of the class she was assigned to teach. Tr. 1030.
Plaintiff accused the Academy of discriminating and
retaliating against her by “penalizing” her with an “oversized”
class. Tr. 1032-33.

lSa

Appendix B

Brickman offered Plaintiff a microphone to ameliorate
any problems caused by the oversized class. Tr. 381. Plaintiff
declined this offer. Tr. 381. On or about March 21, 1997, ten
days before the beginning of the term, Plaintiff told Brickman
that she would not teach that term because teaching a class
~ of more than 30 students would be hazardous to her health.
Tr. 389-90. Brickman informed Plaintiff that she could apply
for leave without pay for the term. However, she told Plaintiff
that because she was requesting leave so shortly before the
term commenced, she would only approve Plaintiff's
application for leave if Plaintiff provided medical
documentation. Tr. 393, 395-96.

Plaintiff applied for leave without pay and agreed to
provide the requested medical documentation. Tr. 394. Based
upon Plaintiff's agreement to provide medical justification
for her request for leave, Brickman granted Plaintiff two
weeks’ leave without pay, in order for Plaintiff to obtain the
necessary medical documentation. Tr. 396; Def. Ex. 103. Dr.
Brickman also arranged for Beth Vihlen, an adjunct professor,
to teach Plaintiff's courses for the term. Tr. 396-97. Plaintiff
did not provide the required medical information to support
her request for leave without pay. Tr. 394.

On or about April 9, 1997, when it became clear to
Brickman that Plaintiff would not provide the requested
medical documentation, Brickman informed Plaintiff that she
would not approve Plaintiff's application for leave for the
rest of the term. Tr. 398: Def. Ex. 103. Accordingly, Plaintiff
returned to the Academy on or about April 16, 1997, and
taught the classes assigned her for the term, including a class
with approximately 34 students. Tr. 412, 418.

l6a

Appendix B

Relationship With Brickman

The evidence established that there was a level of tension
between the Plaintiff and Brickman, the Department Head.
The Plaintiff asserts that Brickman subjected her to a number
of insensitive comments and intrusive questions. For
example, the Plaintiff alleges that Brickman questioned why
Plaintiff was not taking Betaseron and asked whether the
medication was unaffordable on her income. Tr. 905. Plaintiff
further alleges that Brickman questioned Plaintiff about bee
sting therapy, asked whether she wore slacks because her
legs were atrophied, and inquired whether she was injecting
Botox, a medication that reduces spacticity in MS patients,
to reduce wrinkles. Tr. 903-06. In another instance, Plaintiff
alleges that Brickman was skeptical about her handicap
driver’s permit and claimed that doctors freely supply them
to patients just for the asking without cause. Tr. 905. Having
reviewed the testimony and having observed the demeanor
of both Brickman and the Plaintiff on the stand, the Court
concludes that the Plaintiff could not prove, by a preponderance
of the evidence, that Brickman in fact subjected her to
inappropriate or harassing treatment. The Court does find
that the Plaintiff established that there was tension between
the two women and the Court finds it likely that Brickman
was, at times, insensitive to the Plaintiff's condition.

Attempts to Obtain Medical Records

Following her dispute with Brickman regarding the
Thursday committee meeting in 1996, Plaintiff asserted that
it was a breach of her privacy rights for Brickman to have a
copy of Kamin’s letter. Tr. 1015-16. Brickman had obtained

17a
Appendix B

Kamin’s letter from the Department Head personnel file
maintained in the Department Head’s office, in a filing
cabinet kept locked at all times. Tr. 367-68.

On or about May 7, 1996, Mazek wrote to Plaintiff to
request that Plaintiff provide further information from Kamin
to justify her request for, what Academy officials believed
to be a new accommodation, a three-day on campus schedule.
Tr. 655, 769-70; Pl. Ex. 97, 98. Plaintiff did not provide the
requested medical information in May 1996. Tr 770, 772.
As a result, in or about June 1996, Mazek wrote to Plaintiff
again, reiterating the Academy’s request for additional
medical information. Tr. 772. He wrote to her again on
September 18, 1996. Tr. 772: Def. Ex. 70.

On or about December 17, 1996, Kamin wrote to Mazek
in response to Mazek’s requests for additional medical
information in June and September. Kamin largely reiterated
the contents of his September 8, 1993 letter, but also clarified
that he intended to recommend that Plaintiff receive a
schedule of three days per week on campus. Tr. 775-77.
He aise stated that Plaintiff's condition had worsened.
Pl. Ex. 99.

Mazek found this response to be inadequate. Tr. 776-77.
As a result, in February 1997, with Plaintiff's permission,
Mazek spoke to Kamin for clarification of the December 7,
1996 letter; among other things, he wished to learn if Plaintiff
was capable of working at home on days she did not teach
Tr. 777. Kamin only reiterated his prior general statements
regarding Plaintiff's condition. Tr. 777: Pl. Ex. 96.

18a

Appendix B

Later in February 1997, Dr. Mazek telephoned Plaintiff
and asked her to provide him with a list of technologies and
approaches that might assist her in performing her duties.
Tr. 777-78. Plaintiff agreed to get back to Mazek in one week
with a list of requests. Tr. 778; Def. Ex. 89. She never
provided such a list. Tr. 779; Def. Ex. 93.

On or about May |, 1997, Mazek wrote to Plaintiff and
again requested that Plaintiff provide the Academy with
access to her doctor and to her medical records. Along with
his letter, Dr. Mazek included a medical release form for
Plaintiff to sign. Tr. 678; Pl. Ex 165. The medical release
form provided for Plaintiff's medical records to be released
to Academy officials on an “as needed basis,” as well as to
an Academy-designated physician. Tr. 679. The officials who
were to have access to the records were Mazek, the Academy
personnel director, the Maritime Administration personnel
director and maritime attorneys. Tr. 679.

Plaintiff refused to sign the medical release form. Instead,
she complained to the Office of Civil Rights of the Maritime
Administration about the request. On or about August 18,
1997, she wrote to Mazek and told him that she was advised
by the Office of Civil Rights of the Department of
Transportation not to sign the authorization. Tr. 680-81;
Pl. Ex. 166.

On October 3, 1997, Mazek wrote to Plaintiff to advise
her in writing of the precise terms of the scheduling
accommodation the Academy would provide her. Tr. 784;
Def. Ex. 126. Specifically, he wrote that the Academy would
provide Plaintiff with a three-day teaching schedule, and no
classes earlier than 10 a.m. or later than 3 p.m. Tr. 784.

19a

Appendix B

Plaintiff's Performance Ratings and Efforts to Be Promoted

At the time that the Academy awarded Plaintiff tenure,
her evaluation described her “great professional competence”
and “welcome personal attributes.” PI. Ex. 15, 16. In the
professional judgment of her supervisors and colleagues,
Plaintiff was a “first rate” teacher with an “established” record
of scholarship, and “an active, intelligent and constructive
member of the faculty.” Tr. 560-77; Pl. Ex. 15, 16, 19, 23,
25, 26, 28. Immediately following the grant of tenure, the
Plaintiff continued to receive positive performance
appraisals. The Dean and Brickman, then Department Head,
rated Plaintiff’s performance with accommodation
“Exceptional” in AY’s 1993-94, 1994-95 and 1995-96.
Pl. Ex. 54, 56, 58, 62, 63, 64, 65, 66. Further, Plaintiffs
teaching and scholarship were rated at the highest performance
level of “Outstanding” for some years. Pl. Ex. 53, 57.
However, as time progressed, the Plaintiff's performance
appraisals became less positive and the Plaintiff was unable
to proceed successfully to promotion.

During her tenure at the Academy, Plaintiff repeatedly
sought promotion to Full Professor. Applications for
promotion are initially reviewed by the Faculty Promotion
Committee. Tr. 445. After the committee considers an
applicant’s documents, it interviews the candidate, and makes
4 recommendation to the Academic Dean. Tr. 445, 119-20.
The committee considers five criteria or factors in evaluating
a candidate — professional competence, scholarship,
teaching, institutional service and personal attributes
(“collegiality”). Tr. 120; Def. Ex. 37.

20a

Appendix B

Plaintiff first applied to be a Full Professor in 1993,
a few months after she had received tenure. Tr. 607; Def.
Ex. 19. In order to be promoted to Full Professor, a tenured
professor at the Academy ordinarily is required to have taught
at the Academy for six full years. Tr. 607, 731. At the
time she applied for promotion to Full Professor in 1993,
Plaintiff did not satisfy this requirement, having taught at
the Academy for five and three-quarter years. Tr. 607-08,
731-32; Def. Ex. 19. Plaintiff applied for a waiver of the
six-year requirement. Tr. 607-08, 732 The sole criterion for
granting a waiver is that failure to grant the waiver would
act to the disadvantage to the Academy. Tr. 608, 732. Plaintiff
asserted that she should receive the waiver in recognition of
her superior performance and to recognize the importance of
the Americans with Disabilities Act. Tr. 733; Def. Ex. 20.
Donovan and Mazek recommended against granting the
waiver because denying Plaintiff the waiver did not act to
the disadvantage of the Academy. Tr. 734; Def. Ex. 23.

The next year, 1994, Plaintiff insisted that she was
eligible for promotion to Full Professor without having to
reapply. Tr. 738-39; Def. Ex. 38. This was inaccurate.
Tr. 738-39.

Beginning in 1994, the head of the department, Brickman,
prepared a “Progress Towards Promotion” memorandum for
each professor eligible for promotion in a given academic
year. Tr. 441-42. She also prepared an evaluation form called
a “Bingo Sheet.” Tr. 447-48. See also e.g., Pl. Ex. 53.’

2. The bingo sheet contained five ranking categories:
Outstanding, Exceptional, Fully Successful, Partially Successful and,

(Cont'd)

21a
Appendix B

In 1994, Plaintiff's progress towards promotion
was good. Brickman wrote that Plaintiffs service records
had been good based on her coaching of the debate team.
However, she noted that, because the debate team was in
decline, Plaintiff needed to find other sources of service.
Tr. 447-48; Def. Ex. 75.

in 1995, Brickman noted that Plaintiff was a strong
teacher, but remained weak in performing service. Tr. 451.
This was in large part because Plaintiff made substantial
misrepresentations in her draft report for the Academy’s
Middle States committee. Tr. 451-55; Def. Ex. 75. Plaintiff
also was rated less than exceptional for her collegiality, due
to her attempts to monopolize the floor at Faculty Forum
meetings. Tr. 460-61.

in 1996, Brickinan rated Plaintiff's service to be inadequate
in her Progress Toward Promotion memorandum. Tr. 462:
Pl. Ex. 100. She did so due to Plaintiff's poor participation
in the department’s ad hoc curriculum committee and her
minimal service outside of the Department. Tr. 464. Plaintiff
was rated only fully successful for her service and collegiality
that year on the Bingo Sheet, due to the tensions which
existed in the ad hoc curriculum committee. Tr. 464, 467:
Pl. Ex. $7.

(Cont'd)

finally, Unsuccessful. Although the Plaintiff received many ratings
in the Exceptional and even Outstanding categories she also reccived
many and, as time progressed, increasing numbers, of rankings in
the lower category Fully Successful.

22a

Appendix B

In AY 1996-97, Brickman rated Plaintiff only fully
successful for service and collegiality. Pl. Ex. 59. Plaintiff
had been on leave for three terms, and returned to significant
conflict in March 1997, regarding the size of her assigned
class. Tr. 470-71. Moreover, Plaintiff was not maintaining
proper office hours. Tr. 474.

Plaintiff again applied for promotion in the fall of 1997.
Brickman assessed Plainti’f as less than qualified for
promotion in the areas of service and personal attributes. Tr.
472-73. She rated Plaintiff's service as low because, as head
of the Library Committee, Plaintiff had a chance to make a
“splash.” Instead, Pla.atiff did nothing — the committee
never even met. Tr. 473. Moreover, Plaintiff had excessive

absences and continued to fail to maintain proper office
hours. Tr. 474.

However, on December 5, 1997, Brickman wrote to the
head of the Faculty Personnel Committee and asked for
additional time to prepare a full assessment of Plaintiff's
work. Brickman explained that she had observed Plaintiff
for only a limited number of weeks during the prior period
because the Plaintiff had been on leave and/or sabbatical for
the prior three terms. Brickman wrote that if Plaintiff
maintained her level of service and improved her collegiality,
she would be in a position to recommend Plaintiff for
promotion; otherwise, she would have to recommend against
promotion. The extension was granted. Tr. 477-78, 743-44;
Def. Ex. 128. Defendant objected, asserting that Brickman
was delaying her promotion. Tr. 944.

23a

Appendix B

In 1998, the Faculty Personne! Committee rejected
Plaintiff's application for promotion, Stating that it was
“unimpressed with Delson’s record of institutional service”
and because “she is not collegial, is excessively guided by
self-interest and at times is disruptive to the good order of
the Humanities Department and the Academy at large.” Def.
Ex. 171.

Conflicts in 1998-99 Culminating in Termination

A The New Schedule and the Creation of Slash Courses

As of July 1998, the Academy reformulated its entire
academic structure. The Academy's academic year was

broken into three thirteen week trimesters, rather than four
ten week quarters. Class periods were changed to 60 minutes
instead of 50 minutes. In addition, incoming first-year
(freshman) students’ schedules and curricula would be
different than those for existing students. Tr. 112-13, 806.
This reformulation was the end result of a process which
began in 1996. That year, Middle States, the accrediting body
for colleges in the region, recommended calendar reform to
reduce the hectic pace of classes at the Academy. Tr. 109-10.
As a result, the Academy’s Superintendent formed the
Academic Calendar Action Group to investigate possible
restructuring of the Academy’s curriculum and calendar.
Tr. 109. The chair of the committee was Charles Weber, a
mathematics professor. Tr. 109. That committee recommended
the transition to a trimester system. Tr. 111-12.

24a
Appendix B

The Superintendent then formed two committees in AY
1997-98 to determine how to implement the change to a
trimester system. Tr. 52-53, 686. Among the committees’
tasks was to create new curriculum matrices. Curriculum
matrices specify which courses incoming students in the
various majors would be assigned each term under the new
calendar. Tr. 55-56. In addition, “transition matrices” had to
be created, setting forth the classes each term that existing
students (who entered the Academy before July 1998) would
take under the trimester system while taking old “quarter”
courses. Tr. 56; Pl. Ex. 70A-E, 71.

Because there was one term less per year, upperclass
midshipmen who had started under the quarter system were
required to take more classes each term, compressing into
three terms courses that had been spread over four quarters.
Tr. 113-14. Rather than require upperclass students to take
additional courses simultaneously, the Academy created
“slash” courses. Slash courses were full term courses taught
over half a term. Thus, rather than assigning students two
additional classes two times per week for the entire trimester,
slash courses met four times per week for half the term. After
approximately seven weeks, students would complete one
of the two classes, and then commence the other. Tr. 114,
687. Each “slash course” compressed a standard 13 week
course syllabus into 6.5 weeks so that professors would have
to convey the same required information and give the same
exams and papers in a shorter interval of time. The “pace”
of “slash” courses was “faster” for this reason, and also “more
intense.” Tr. 131-32. It was Dr. Weber who decided which
classes would be slashed. Tr. 115. He slashed those courses
it made sense to put together — courses with similar subjects.
Tr. 115-16.

25a

Appendix B

In the first term of AY 1998-99, in the Humanities
Department, the two Comparative Culture classes and H istory
| and History 2 were among the classes designated to be
Slashed. Tr. 116. Plaintiff generally taught Comparative
Culture and both History | and 2 at various times.
Accordingly, in the first term of AY 1998-99, Plaintiff was
projected to teach two slash courses for eight hours per week,
in the first trimester. Tr. 281, 687-88. Plaintiff objected to
her assignment, asserting that it gave her an unfairly large
credit load to teach. Tr. 486. She also objected because the
assignment required her to teach four days per week. Tr. 1045,
486. Upon realizing that her schedule would not be modified,
the Plaintiff requested a leave of absence for the term.
Tr. 688.

The following Academic Year, AY 1999-2000, first term,
some, but not all, courses which had been designated slash
courses, including Comparative Culture, were “unslashed.”
Tr. 118. This was done in large part because of complaints
received from the students regarding the slash courses. Tr.
118. Students had concerns about when papers were due and
complained that there should have been better coordination
between the teachers of slash courses and teachers of other
Classes. Tr. 94.

B Request for Medical Documents

In response to Plaintiff’s objections, the Academy
informed Plaintiff that it would provide her with leave
without pay for the first trimester if she provided the Academy
with the long sought-after medical records. Tr. 688-89, 701.
Mazek wrote to Plaintiff on May 15, 1998, to request again

26a

Appendix B

that Plaintiff produce her medical records in June 1998.
Plaintiff did not meet that deadline. Tr. 790. On June 9, 1998,
Mazek wrote to Plaintiff again, reiterating his request for
medical documentation. Tr. 791.

Plaintiff provided the Academy with an additional letter
from Kamin dated July 22, 1998. Tr. 689; Pl. Ex. 142.
However, the Academy did not consider this letter adequate
because it simply reiterated the information already related
in Kamin’s previous letters. Tr. 1085-87. Dr. Delson refused
to provide the Academy, or its designated medical evaluator,
with medical information to supplement Kamin’s letters.
Tr. 689.

In July 1998, the Academy sent Kamin’s September 8,
1993 and December 17, 1996 letters to Dr. Neil Presant, an
occupational specialist with the United States Public Health
Service (“Presant”). Tr. 796; Pl. Ex>38 and 99. On or about
August 18, 1998, Presant wrote to the Academy p

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1283%3A1. Public record. Not legal advice.