COA slashes disability damages, voids state code, gives bench slaps

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Portions of the Indiana Administrative Code were voided by an Indiana Court of Appeals decision in a disability discrimination suit in which the appeals court also substantially reduced a damages award to a fired worker and criticized counsel for incivility and citing outdated regulations.

The Court of Appeals’ 40-page ruling in Knox County Association for Retarded Citizens, Inc. v. Melissa (Cope) Davis, 93A02-1701-EX-141, found that Melissa (Cope) Davis had been discriminated against on the basis of disability, but that an award by the Indiana Civil Rights Commission was excessive. The COA also ruled that portions of the IAC were in conflict with the federal Americans with Disabilities Act and the Code of Federal Regulations and were therefore void.

Davis was fired from her position as a direct support professional at KCARC in 2012 after she had previously left work for an unknown medical issue and was diagnosed as having a loss of consciousness or “syncopal episode.” She later was released to work with restrictions including only light duties and jobs that required mostly sitting. She was fired after KCARC staff said there were no positions that met the work restrictions.

Davis then filed a discrimination complaint with the ICRC, and in 2016, she was awarded back damages of more than $25,800, plus prejudgment interest for a total award of more than $35,100.

The COA affirmed the ICRC’s discrimination finding in its opinion but reversed the damages award based on Davis’ failure to mitigate her losses through her subsequent employment. The COA said she proved damages of $6,202.28, and the panel remanded for a determination of prejudgment interest to be added to that sum.

But the panel also found that state regulators’ code was outdated and void. Citing 910 IAC § 3-2-15(b) (2013), Judge Melissa May wrote for the panel that “the definitions for determining disability under the IAC have not been modified to account for the changes produced by enactment” of the ADA.

“Because Indiana Code section 22-9-5-27 requires the portions of the IAC dealing with employment discrimination against disabled people not conflict with the ADA, the current version of the IAC is invalid and we cannot rely on it,” May wrote.

“We conclude the portions of the IAC that do not comport with the language of the ADA and the CFR are invalid,” she said.

The panel then applied the ADA to affirm the determination that Davis had a qualifying disability. The panel also affirmed the finding that KCARC did not engage in the requisite interactive process with Davis of determining whether a reasonable accommodation was available.

Meanwhile, the panel called out the incivility of counsel and the outdated administrative code both sides relied on in this case.

“(W)e would like to note the lack of civility between the parties in this case, both in their briefs and during oral argument,” May wrote in a footnote. “Unnecessarily argumentative and snide comments such as, ‘Of course, the fact that Davis can’t seem to consistently state the nature of her alleged disability is because she doesn’t suffer from one[,]’ … and ‘had the Commission actually bothered to read the case they cited in support of their conclusion that Davis is disabled, they would have discovered that it actually stands for the exact opposite of their assertion,’ … as well as conduct during the oral argument, degrade the parties’ arguments by showcasing the incivility between the parties.

“We remind counsel of sections 1 and 9 of the Preamble to the Indiana Rules of Professional Conduct, which state: ‘Whether or not engaging in the practice of law, lawyers should conduct themselves honorably[;]’ and ‘[The principles of the Rules of Professional Responsibility] include the lawyer’s obligation to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system,’” May continued.

In a separate footnote, the court wrote, “We find it unsettling that neither party recognized this difference between the current version of the (Code of Federal Regulations) and the current version of the IAC, which do not comport. Further, Davis, who is represented by ICRC, cited the 2007 version of the CFR, which has been invalid for a decade. … In addition to this inexplicable error, Davis’ brief is replete with citations that seem to be to the record, but do not indicate whether the material is from the appendices or transcripts. This failure to properly cite the record has greatly hindered our review of this very complex record."

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