IAADP
International Association of
Assistance Dog Partners


JURY AWARDS $400,000 IN WORKPLACE ACCESS CASE

by Joan Froling

Dr. Chris Branson, MD, has been battling her employer, Lakeside VA hospital, for access rights in the workplace with her service dog, Nolan, for over four years.

As reported in our last issue, Judge Nolan granted Chris a summary judgement on the first part of her case on May 7,1999. The first part concerned whether or not she was entitled to access rights with a service dog as a reasonable accommodation of her disability, a spinal cord injury and complications thereof. The federal district judge believed the case for granting Branson's request for access in the workplace was so strong in this particular situation, there was no need to go to trial on that legal issue.

The judge's decision was hailed as quite a victory and deserves to be celebrated. However, that was not the end of the case. To decide the matter of whether or not Chris Branson was entitled to any monetary damages, a jury would have to be impaneled. The judge set a date of July 13th for a jury trial on the monetary issues.

After several days of testimony and deliberation in July, the jury came back with a verdict in favor of Chris Branson, awarding her $400,000 in monetary damages!

Because there is a federal statutory limit of $300,000 on an award of damages against the U.S. government, Chris Branson will only be able to collect the maximum of $300,000.

Money has never been the issue. It will not erase the effects of four years of excessive wear and tear on her upper body that could have been avoided if Nolan was permitted to pull Chris's wheelchair, open heavy commercial doors, retrieve dropped objects and assist with transfers as he was trained to do. It can't make up for the pain and fatigue Chris suffered at the end of each day because she didn't have Nolan there to help her conserve precious energy and minimize muscle strain. It won't obliterate the emotional stress and professional hardships that she endured year after year while locked in this bitter civil rights struggle with her employer. Nevertheless, it is gratifying to learn that the men and women on the jury shared our indignation when they heard of the way Lakeside VA had treated a disabled employee who hoped to extend her working life and maintain her independence through partnership with an assistance dog. We rejoice in the amount of their award.

It seems nothing is ever simple when it comes to the American legal system. Even though Chris won her Motion for a Summary Judgement, on May 7, 1999, affirming she is entitled to access in the workplace as a reasonable accommodation of her disability, she does not yet have Nolan's assistance on the job.

The pace of the judicial system is sometimes frustratingly slow, but the process is complicated and required careful attention to detail by Chris and her counsel as well as the judge.

Taking advantage of its legal options, attorneys for Lakeside VA began by filing a Motion for Reconsideration, asking the judge to set aside her decision. The judge denied the Motion in June.

At that point, Chris's lawyers filed a motion for a preliminary injunction so she could take Nolan to work with her.

Attorneys for the federal government filed a response objecting to Branson's request for the injunction. In support of its objection, an affidavit from the Chief of Staff of Lakeside VA was filed, introducing new grounds for denying Chris and Nolan access to the workplace.

He tells the judge that Lakeside VA Hospital is a highrise hospital and that to permit a service dog would be (quote) "a logistical nightmare in terms of elevator usage and could undermine the functioning of the hospital in a significant way." He goes on to say, "Space problems are also an issue as to Dr. Branson's office, and to the hospital's exam rooms.

These space and logistical concerns combined with the fact the hospital's primary mission involves caring for veterans, many of whom are seriously ill and frail, and some of whom have psychological difficulties, phobias and allergies, lead me to the conclusion that the prudent course of action is to minimize access to animals to the degree reasonably necessary. While I maintain an open mind on Dr. Branson's request, she has been unwilling to discuss alternative accommodations with me and I find it difficult to believe that some alternative accommodation cannot be found. Until and unless it appears no other accommodation can meet Dr. Branson's needs, I believe the prudent course of action is the one the hospital has followed."

The argument the hospital isn't large enough to accommodate a service dog without jeopardizing its ability to properly care for its patients and meet the needs of other staff members seems ridiculous to us.

In July, the judge had both sides present testimony on the motion for a preliminary injunction. She heard the testimony in conjunction with the jury trial on monetary damages, but without the jury present. The Chief of Staff came with the hospital's Chief Engineer to testify how disruptive a service dog would be. Mike Sapp, founder of Paws With a Cause, traveled from Michigan to Illinois to testify on behalf of the graduate from his program. He detailed the program's many years of experience, their extensive temperament testing protocol for service dogs, the months of schooling each dog receives, with at least 80 hours of it taking place in public settings. He described the client matching process, the intensive team training a student goes through and the video taped certification test that proves a team like Chris and Nolan is well prepared for access rights in public places and the workplace.

Following the testimony, both sides submitted written arguments, something called "proposed findings of facts and conclusions in law." The judge must weigh each of the many points advanced by both sides in support of their respective positions and render a written opinion on them in determining whether or not she will grant the request for injunctive relief. Her final decision is expected before our next issue goes to press. The injunction would compel Lakeside VA Hospital to:

#1 permit Chris to use a service dog in the workplace

#2. Implement a policy which permits all persons accompanied by an assistance animal full access to Lakeside

#3 Develop a precise list of areas of the facility from which assistance animals will be excluded based on the significant health risk such animals would pose, identify the health risks the animals would pose in the areas of exclusion, and state why the identified health risks would not be present with humans.

Chris is confident she will ultimately prevail. We can't help but be impatient with this long drawn out process. At the same time, we think it is instructive to report these twists and turns.

In July, a puppy raiser contacted IAADP to ask if she could reprint the article about Chris Branson being granted a Summary Judgement on the issue of "reasonable accommodation." The puppy raiser let us know of two program graduates in her area who came home with their new service dogs only to discover their employers would not allow them to bring their service dogs into the workplace. In both cases, the assistance dog partners were forced to seek employment elsewhere. She believed the Branson victory would put a stop to this demoralizing intolerance for service dogs in the workplace by employers. I'm afraid it is not quite that simple. We've won a battle but that doesn't mean we've won the war.

The assistance dog movement is engaged in a costly and crucial civil rights struggle for workplace access. This is one we cannot afford to lose individually or collectively. It is not the black and white issue that we'd like to think it is under the Americans With Disabilities Act. From a minimum wage job at Mac Donalds to a postal clerk to a teacher to a psychologist at a prison facility to an attorney in a city prosecutor's office, workplace access rights are being challenged across the country. We know of cases that were settled, old cases still pending and it seems like new cases are coming along with alarming frequency.

What will you need to do to prove you are entitled to workplace access? What issues might arise? What arguments can you muster that will carry weight with a court and which ones will be dismissed as inapplicable or as a misinterpretation of ADA? What legal precedents could be useful? What options do you have?

We will explore these questions in a workshop on Workplace Access. We have invited Dr. Chris Branson, MD, to be a Guest Speaker on IAADP Conference Day, January 20, 2000. We're impressed with the tremendous amount of research she did to help her lawyers build a solid case and to educate the judge and jury She is familiar with issues that can arise when an employer disputes an employee's right to a reasonable accommodation for an assistance dog in the workplace. We've asked her to share her hard won knowledge about applicable laws and strategic precedents and "the system" to help assistance dog partners and providers be better prepared to avert trouble or to resolve an access problem if one arises.

Hopefully, our next issue will bring closure to this epic battle and the long awaited photo of Nolan assisting Chris inside Lakeside VA Hospital during working hours!

Reprinted from Partners Forum Volume 6 Number 2

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