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3rd Circ. Says Outdated ADA Reading Can't Spur New Trial

Offit Kurman Wilmington, DE Attorneys Featured in Law360

By Matthew Santoni, Law360

Offit Kurman’s Wilmington employment team successfully defended a Third Circuit Court of Appeals challenge of a jury verdict in their client’s favor in an Americans with Disabilities Act case. The Third Circuit ruled in a published opinion that the employer failed to object to a jury instruction based upon a theory of the case and therefore waived this basis for appeal.  The Offit Kurman team, consisting of Kevin Fasic, Katherine Witherspoon Fry, and Anthony Delcollo, had argued that regardless of the fact that the jury was wrongly instructed, using the Third Circuit model jury instructions for civil trials, the resulting verdict in their client’s favor was appropriate because employers have a duty to engage in the interactive process to determine whether employees have disabilities, if so requested by employees. Although the Court failed to answer this question, Offit Kurman’s team believes this is best practice and counsels employers always to discuss possible disability issues with employees.

Law360 (April 1, 2019, 8:08 PM EDT) -- A Delaware nonprofit can't get a new trial over an ex-employee's claim that it refused to accommodate her dyslexia, even though she had originally won based on the parties' outdated interpretation of the Americans with Disabilities Act, the Third Circuit ruled Monday.

In a published opinion, a Third Circuit panel said that even though a 2008 amendment to the act had removed the obligation to accommodate people who were "regarded as" disabled without demonstrating that they actually were, Tamara Robinson's employer First State Community Action Agency never raised the issue until the case came to the Third Circuit.

"Both parties proceeded under the 'regarded as' case theory throughout litigation, trial and post-trial briefing. Only now does First State seek to unring the bell and overturn the jury's verdict because the jury was instructed that the 'regarded as' case theory was valid," Judge Julio M. Fuentes wrote for panel. "We hold that First State has waived this argument because of its continued acquiescence to Robinson's case theory, its encouragement of the adoption of the very jury instruction to which it now objects, and its failure to include this error in its post-trial briefing."

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Ms. Fry has 22 years of litigation experience in every Delaware court, the U.S. Court for the District of Delaware, and the U.S. Court of Appeals for the Third Circuit. She has also represented clients in proceedings before the Delaware Department of Labor, the Equal Employment Opportunity Commission, the Merit Employee Relations Board, and the Delaware State Board of Education. Her employment practice focuses on discrimination; employment termination; unemployment compensation appeals; Fair Labor Standards Act issues; creation and review of employee handbooks and policies; severance agreements; and labor relations.




ABOUT G. KEVIN FASIC  |  302.351.0901

Mr. Fasic has practiced employment and construction law for over 20 years. His practice is primarily management-based, and includes discrimination claims, wage and hour issues, Davis Bacon/Prevailing Wage claims, employment agreements (including restrictive covenant issues and severance agreements), hiring and firing guidance, unemployment claims, and legislative affairs. He appears frequently before various administrative boards and agencies, as well as private dispute resolution forums.  He has experience practicing before all of Delaware’s state and federal trial and appellate courts and has experience with trial and appellate matters in the state and federal courts of New Jersey and Pennsylvania. Mr. Fasic is certified by the Delaware Superior Court as both a Mediator and as an Arbitrator, and can serve in either capacity for labor/employment and construction law disputes.


Mr. Delcollo practices in the areas of employment law, commercial law, construction litigation, government regulations, professional licensing, and provides clients advice regarding the right to keep and bear arms. He has represented clients before various administrative boards and Delaware courts. Although his practice focuses on courtroom litigation, Mr. Delcollo regularly consults with clients respecting construction contract formation, contract drafting, contractual interpretation, non-compete contracts, severance agreements, and employment contracts/executive compensation.


Offit Kurman is one of the fastest-growing, full-service law firms in the mid-Atlantic region. With over 185 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well positioned to meet the needs of dynamic businesses and the people who own and operate them. Our twelve offices serve individual and corporate clients along the I95 corridor in the Virginia, Washington, DC, Maryland, Delaware, Pennsylvania, New Jersey, and New York City regions. At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we consistently maintain our clients’ confidence by remaining focused on furthering their objectives and achieving their goals in an efficient manner. Trust, knowledge, confidence—in a partner, that’s perfect.

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