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Berardelli v. Allied Services Institute of Rehabilitation Medicine

United States Court of Appeals, Third Circuit

August 14, 2018

TRACI BERARDELLI; JOSEPH BERARDELLI, on behalf of their daughter M.B., a minor, and individually on their own behalf, Appellants

          Argued: November 14, 2017

          On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. No. 3-14-cv-00691) District Judge: Hon. Malachy E. Mannion

          Leah S. Batchis Arleigh P. Helfer, III Nancy Winkelman Schnader Harrison Segal & Lewis Nicole M. Reimann, Esq. Batchis Nestle & Reimann Counsel for Appellants

          Edwin A. Abrahamsen, Jr. James J. Conaboy Abrahamsen Conaboy & Abrahamsen Counsel for Appellee

          Amanda L. Nelson Cozen O'Connor Counsel for Amicus Curiae The Public Interest Law Center of Philadelphia

          Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges.


          KRAUSE, Circuit Judge.

         For decades, the Rehabilitation Act (RA) and its progeny, the Americans with Disabilities Act (ADA), have served as twin pillars of federal disability discrimination law. Both statutes secure the rights of individuals with disabilities to independence and full inclusion in American society and, unsurprisingly, have been constant companions in our case law as it has developed to effect those rights. The RA assures "meaningful access" to federally funded programs, Alexander v. Choate, 469 U.S. 287, 301 (1985), on the one hand, and the ADA provides for "full and equal enjoyment" of public accommodations, 42 U.S.C § 12182(a), on the other, to people with disabilities. When necessary to realize that access and enjoyment, the statutes require "reasonable accommodations," Choate, 469 U.S. at 301, or "reasonable modifications," 42 U.S.C. § 12182(b)(2)(A)(ii), to be made by actors within the statutes' reach.

         The Department of Justice (DOJ) has promulgated regulations interpreting the ADA's "reasonable modification" requirement to mean that covered actors generally must "modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability," 28 C.F.R. § 36.302(c)(1); see also id. § 35.136(a), and must "permit[] [such individuals] to be accompanied by their service animals in all areas of [the covered actor's facilities] where . . . program participants . . . are allowed to go," id. § 36.302(c)(7); see also id. § 35.136(g). The question presented by this case is one of first impression in the Courts of Appeals: whether, in the absence of a similar regulation specifically interpreting the RA, its mandate of "reasonable accommodations," consistent with the mandate of "reasonable modifications" under the ADA, generally requires that individuals with disabilities be permitted to be accompanied by their service animals and, thus, renders such requested accommodations per se reasonable in the ordinary course.

         For the reasons set forth below, we hold that it does and that the District Court's contrary jury instructions constitute reversible error. Accordingly, we will vacate the judgment and remand for further proceedings consistent with this opinion.

         I. Factual Background

         This case centers on an elementary school student with dyslexia and epilepsy, M.B., and her rebuffed attempts to be accompanied by her service dog to school. When M.B. was a young child, her mother had to monitor her constantly and care for her during epileptic seizures, the onset of which could be subtle or sudden. As M.B. grew older and became more independent, though, her pediatric neurologist recommended that she obtain a service dog to take over this function.[1] M.B.'s mother therefore arranged to acquire a service dog, which accompanied M.B. to school during second grade and helped her cope with her epilepsy by alerting during a seizure and providing safety and comfort until the seizure had passed.

         In third grade, M.B. switched to the dePaul School, [2]which had a specialized program for dyslexic students. Before enrolling M.B. there, M.B.'s mother met with the principal and explained that, in addition to dyslexia, M.B. also had epilepsy and that the service dog, who had recently died, had accompanied M.B. to her previous school. M.B.'s mother also explained that M.B. was on the waiting list for a new service dog that likewise would need to accompany her to school. After receiving assurances from the principal that M.B. was a "very good fit" for the School, M.B.'s mother enrolled her that fall as a third grader. JA 501.

         That winter, M.B. came off the waiting list and was paired with a new service dog, Buddy. But when M.B.'s mother asked the principal for permission to send Buddy to school with M.B., the principal refused, asserting for the first time that Buddy would be "too much of a distraction" to other children. JA 673. Because Buddy was not allowed to accompany her, M.B. missed the next two weeks of school to be with Buddy 24 hours a day for an initial intensive bonding period. And after M.B. returned to school, because the principal continued to deny permission for Buddy to accompany her throughout the remainder of third grade, Buddy was not available to alert school staff during seizure activity or to support her recovery. As a result, M.B.'s mother kept M.B. home when her seizures were more severe.

         In an effort to avoid these interruptions to M.B.'s education, M.B.'s mother met with the principal again before fourth grade to request that Buddy be permitted to accompany M.B. in the new school year. By that time, Buddy not only could alert during M.B.'s seizures, but also could predict and alert to them minutes before they even began. But the principal still refused, once more asserting that Buddy might distract other students. Yet again, M.B. attempted to attend without Buddy, but that year she missed 65 days of school-more than one-third of the school year-with seizure activity accounting for about half of her absences.

         A devoted advocate, M.B.'s mother sought permission again on the eve of fifth grade for Buddy to accompany M.B. to school, pointing out that M.B.'s seizures were increasing in frequency, which exacerbated the concerns about her attending without Buddy's assistance. But again the principal refused, citing possible distraction, and so once more M.B. started the school year unaccompanied by Buddy. Without her service animal, however, M.B. became anxious and distracted at school, afraid of enduring the increased seizure activity. Her mother therefore met again with the principal to renew her request for Buddy to accompany M.B. to school and to advise the principal that M.B.'s pediatric neurologist had recommended that Buddy "should be at school with her." JA 530. The principal promised to "look into" the request. JA 531.

         Unsatisfied with that answer, M.B.'s mother simply began bringing Buddy to school with M.B. in the morning. Each day she did so, however, the principal stopped them at the entrance of the School and refused to allow Buddy to enter. The principal also offered a new explanation: Instead of pointing to the possibility of distraction, the principal said she had discovered that another student in the School was allergic to dogs.

         At that point, given M.B.'s growing anxiety and distraction and the medical risks associated with attending school without Buddy, M.B. stayed home from school for more than two months while her mother continued her efforts to obtain an accommodation from the School. Those efforts included leaving telephone messages, having her attorney send letters, and forwarding a note she obtained from M.B.'s pediatrician that explained that, because M.B.'s "seizure activity has escalated and is not always obvious, it is medically necessary for 'Buddy,' [her] trained seizure dog, to be with her 24 hours [a day] / 7 days a week." JA 1396. A teacher at the School also provided the principal with an informational article about seizure alert dogs that detailed how they are able to predict and alert to seizures and give their owners time to move to a safe place, take medication, call for help, and notify others about the impending seizure for later monitoring. And the parents of the student who was allergic to dogs, for their part, informed the principal that they had arranged for allergy treatments for their son and did not want M.B. to be excluded from the School on his behalf.

         After weeks of back-and-forth effort, the principal finally agreed that M.B. could return with Buddy, but only on the condition that Buddy at all times wear a special therapeutic shirt designed to decrease allergens. Thus, in January of fifth grade, M.B. finally returned to school, this time with Buddy. But her return was short-lived. The special hypo-allergenic shirt made Buddy overheated, causing him to pant and to fail to alert or respond when M.B. had seizures. After two weeks of these conditions, M.B.'s mother learned that M.B had slept on the floor of the principal's office for hours after seizing without Buddy's intervention. The next day, she withdrew M.B. from the School permanently.

         Eventually, M.B. was enrolled in the local public school, which allowed Buddy to accompany her. By that point, however, M.B.'s testing showed that she had fallen too far behind to resume or even to repeat fifth grade. Instead, she was required to enter as a fourth grader.

         II. Procedural Background

         M.B.'s parents sued the School, asserting that it had failed to accommodate M.B. in violation of § 504 of the Rehabilitation Act (RA), Title III of the Americans with Disabilities Act (ADA), and the Pennsylvania Human Relations Act (PHRA).[3] After discovery, the School moved for summary judgment on all claims, and the District Court granted that motion as to the ADA and PHRA claims.

         Regarding the ADA claim, the Court noted that M.B.'s parents only sought damages and explained that damages are not an available form of relief under Title III of the ADA. As for the PHRA claim, the District Court summarily stated, "the analysis of an ADA claim applies equally to a PHRA claim," JA 23, and dismissed it on that basis.

         The District Court then turned to the RA claim. Observing that the substantive standard of liability to prove discrimination under § 504 of the RA was "materially identical" to the standard under the ADA, JA 27 (citation omitted), the Court looked for guidance to the DOJ's regulations implementing the ADA, which require that "reasonable modifications" be made when necessary to avoid disability discrimination, 28 C.F.R. §§ 35.130(b)(7)(i), 36.302(a). It identified two particular ADA regulations pertaining to service animals-one applicable to public entities, id. § 35.136, and one applicable to public accommodations, id. § 36.302.[4] In both, the DOJ interprets "reasonable modifications" to mean that covered actors "shall modify [their] policies, practices, or procedures to permit the use of a service animal by an individual with a disability." Id. §§ 35.136(a), 36.302(c)(1). Determining that the DOJ's interpretation of the ADA was equally applicable to the RA and was therefore "enforceable against [the School] in deciding whether it violated federal law," JA 29, the District Court concluded that there were genuine disputes of material fact as to whether the School failed to accommodate M.B. under the RA and denied its summary judgment motion as to that claim. The parties then proceeded to a jury trial, with the District Court continuing to indicate that the ADA service animal regulations were controlling by, for example, excluding testimony from Buddy's trainer about whether it was reasonable for Buddy to wear the hypo-allergenic shirt on the ground that "[r]easonableness has already been determined by D.O.J. regulations." JA 262.

         Three days later, however, the District Court sharply reversed course. First, it disallowed deposition testimony about the service animal regulations on the ground that "the A.D.A. is not in this case." JA 810. And second, when it came time for jury instructions and M.B.'s counsel proposed an instruction that mirrored the regulations that the District Court had found enforceable at the summary judgment phase, [5] the Court rejected it, asserting that, at trial, "the standard is different."[6] JA 984.

         Instead, the District Court instructed the jury that, to prevail on a claim for failure to accommodate, plaintiffs were required to "prov[e] by a preponderance of the evidence that the requested accommodations" were "reasonable," and further defined that term as meaning "necessary to avoid discrimination on the basis of a disability," or, "[i]n other words . . . necessary to permit [M.B.] meaningful participation." JA 1007. Only if the plaintiffs proved the accommodations were "necessary to avoid discrimination . . . on the basis of [M.B.]'s disability," the Court advised, would "the burden shift[] to [the School] to prove by a preponderance of the evidence that the requested accommodations were unreasonable." JA 1008.

         Apparently confused as to how these instructions related to the need to accommodate service animals, the jury sent the Court a question the same day requesting "up to date specific information re: service dogs pertaining to act #504/ADA." JA 1998. At that point, M.B.'s counsel again urged the Court to instruct the jury on the ADA service animal regulations, but the Court again declined, stating that it had already "g[iven] them the law that relates to this case" and would not "go look for some new law to tell them about or some different law or something that's not been already submitted or given to them." JA 1089. The jury then returned a verdict for the School.

         M.B.'s parents timely appealed, seeking reversal of the dismissal of their PHRA claim as well as a new trial on their RA claim on the ground that the District Court did not properly instruct the jury on the applicable law.

         III. Jurisdiction and Standard of Review

         The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, and we have jurisdiction under 28 U.S.C. § 1291. We review de novo the District Court's decision to grant summary judgment, which "is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir. 2008). Whether jury instructions state the proper legal standard is a legal question over which we exercise plenary review. United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995).

         IV. ...

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