News: In the News

Agency Waited Too Long to Contest Worker’s Bias Theory

Katherine Witherspoon Fry Quoted in Bloomberg Law

As Published in Bloomberg Law


A Delaware community action agency must pay a former employee $22,501 for disability discrimination even though she prevailed on an outdated legal theory, the Third Circuit ruled April 4.

Tamra Robinson convinced a jury in December 2016 that First State Community Action Agency, an anti- poverty organization, regarded her as having dyslexia and failed to accommodate her. The jury awarded her no compensatory damages, $1 in nominal damages, and $22,500 in punitive damages.

But Congress made clear when it amended the Americans with Disabilities Act in 2008 that only workers who are actually disabled are entitled to an accommodation to help them do a job, the U.S. Court of Appeals for the Third Circuit in Philadelphia said. Workers who are improperly perceived to be, or ‘‘regarded as,’’ disabled may sue for bias, but they aren’t entitled to a job accommodation because they aren’t disabled. They also can’t sue if they are denied a requested accommodation, the court said.

First State, however, waited too long to raise the flaw in Robinson’s theory of recovery and thus waived its right to do so, Judge Julio M. Fuentes said. Robinson only changed her theory of the case from actual to regarded-as bias in response to First State’s summary judgment motion, which argued she couldn’t prove an actual disability.

First State failed to point out that Robinson’s failure- to-accommodate claim was no longer viable in immediate response to her new regarded-as theory, Fuentes said. The agency also failed to raise the issue in response to a magistrate’s report and recommendation on the agency’s summary judgment motion, during a pair of conferences regarding how to instruct the jury on Robinson’s regarded-as claim, and again when it sought a new trial after the jury found for Robinson, he said.

Jury Instructions Not Updated

The ruling is an advisory that trial lawyers ‘‘cannot rely on Third Circuit model jury instructions,’’ said Katherine Witherspoon Fry of Offit Kurman, one of the attorneys who represented Robinson.

The Third Circuit’s model jury instructions weren’t updated to reflect the 2008 change in law effectively prohibiting regarded-as plaintiffs from pursuing failure- to-accommodate claims. But that isn’t an excuse for First State’s waiver, the court said. Model jury instructions are advisory and don’t have the force of law. Courts and parties therefore have no excuse if they rely on model instructions that contain legal errors, the Third Circuit said.

The court went out of its way to make this point, Witherspoon Fry said.

Representatives of First State didn’t immediately respond to a request for a comment.

‘Regarded-as’ in Third Circuit

The Third Circuit used to be the place where employees would bring regarded-as disabled claims before 2008, University of Michigan Law School professor Samuel Bagenstos said. Workers would bring those claims to counter what was then a narrowed definition of what conditions counted as a disability, and who could bring claims against an employer.

The 2008 amendment dashed the ‘‘regarded as’’ legal theory, but also widened who can claim they actually have a disability and have a right to accommodation.

‘‘It’s hard to tell what exactly the group is, but there aren’t a lot of people who lost their right to accommodation with the 2008 amendment,’’ Bagenstos said.

Other federal appeals courts have recently weighed in on the issue of post-2008, regarded-as claims. The Ninth Circuit in San Francisco, for example, resurrected an employee’s claim against a Hawaii-based food distribution company last September. The court said workers have the right to sue based on discrimination from a perceived disability, even if a ‘‘major life activity’’ isn’t limited in the eyes of the employer.

Judges Cheryl Ann Krause and Robert E. Cowen joined the opinion.

Offit Kurman represents Robinson. Fuqua Willard Stevens & Schab represents First State.

The case is Robinson v. First State Cmty. Action Agency, 3d Cir., No. 17-03141, 4/1/19.


Reproduced with permission. Published April 1, 2019. Copyright 2019 by The Bureau of National Affairs, Inc. (800-372-1033) <



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.








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