Jottings By An Employer's Lawyer

Thursday, October 07, 2010

A SAD Story In So Many Very Different Ways

Commenting on lawsuits based on newspaper stories is risky business. I do it frequently and I probably should remind myself and those who read this blog of the dangers more often. It is not because newspaper reporters are incompetent or that they are not trying to do a good job, it is just that reporting a lawsuit is a very complicated piece of work that requires far more time than is available or really necessary to get some of the high points, which is about the best one can reasonably hope for. So the real question is whether or not the lack of depth which is almost inevitable, prevents even a glimpse of the why something happened, as opposed to just the results.

I say all of this based purely on my own experience. In the relatively few cases I have had which have been the subject of much publicity, I can accurately say that the stories often were less than adequate in portraying reality. The most obvious was a six week trial in a smaller Texas city which at the time had two newspapers. In most common terms, one "was for the plaintiff" and one "was for the defendant." Each day for most of the six weeks and even leading up to it, the story was the front page headline on both papers and was quite detailed, frequently running over to multiple inside pages. A neutral observer might fairly have wondered if they were even reporting on the same case. And although I was certainly not neutral, I did know what was going on and would have to admit that neither was very close to really expressing it.

Which brings me, long way round so to speak, to the report in Eau Claire Leader Telegram of Tuesday's verdict in a Madison, Wisconsin trial of a teacher's disability claim. Former Somerset teacher wins $2 million lawsuit.

If the newspaper report is accurate (see above) then all it would have taken to accommodate Renae Ekstrand's disability, depression caused by Seasonal Affective Disorder, would have been allowing her to switch classrooms to one with a window. An accommodation that another teacher would have been willing to make.

The fact that such a simple thing didn't happen, makes me think there is much more to this story.

In fact, we know there is because this case had an appellate history before going to trial. First, a district court granted summary judgment for the school district. That was partially reversed by the 7th Circuit, which rejected Ekstrand's constructive discharge claim, but sent the failure to accommodate claim back for trial, presciently holding that "we disagree with the district court that no reasonable jury could find in favor of Ekstrand's failure-to-accommodate claim."

But even in sending that claim back to trial, Judge Bauer, who authored the court's opinion offered this:
From the sparse record in this case I assume that the School District of Somerset has high standards.   Its Web site proclaims its motto:  Learning Today to Succeed Tomorrow.   In a district like this, parents quite naturally take an interest in who is teaching their children.   And I can't imagine that many parents would be too pleased to have their first-graders in a classroom taught by a teacher who, to quote the court's opinion, suffered from “fatigue, anxiety, hypervigilance, tearfulness, racing thoughts, and trouble organizing tasks” plus “inability to concentrate ․ retrieve words, make decisions ․ focus on the needs of her students ․ hypersomnia ․ panic attacks, uncontrollable crying, inability to eat, and thoughts of suicide” in the fall of 2005.   While I can imagine that an employer like UPS might be able to accommodate a delivery person with these kind of issues, I have a hard time understanding how a school district could do the same for a first-grade teacher.   This makes me wonder if Ms. Ekstrand, in the context of teaching, could ever establish that she was a “qualified individual with a disability” under the ADA in the fall of 2005 or that an accommodation that would be necessary to ameliorate her condition would be “reasonable.”   This issue deserves, I suggest, a close look on remand.
Ekstrand v. School District of Somerset(7th Cir. 10/6/09).

So it is easy to see why this case went to trial.

Still, the bottom line result is the same. A jury didn't like what the school district did and let it know with its $2 million plus verdict. The reporter did catch, which many don't, the distinction between verdict and ultimate recovery noting that under the ADA it would be greatly reduced by the statutory damage caps.

When I started this post,  I had intended to offer my thoughts on why it is that so many MDV's involve public sector defendants, but having rambled on about the difficulties of newspaper reporting, that subject is best saved for another day.

Unfortunately, I doubt that I shall have to wait long for the opportunity.


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