Before the

Commission on Human Rights

State of Missouri

Missouri State Seal

 

 

STATE OF MISSOURI ex rel. K.B., o/b/o            )

A.B.,[1]                                                                     )

                                                                              )

                                    Petitioner,                           )

                                                                              )

and                                                                         )

                                                                              )

K.B., o/b/o A.B.,                                                   )

                                                                              )

                                    Intervenor,                          )

                                                                              )

            vs.                                                              )                 No. 04-0026 HRC

                                                                              )

BSDS, INC., d/b/a BROOKSIDE DAY                )

SCHOOL, INC. and BROOKSIDE                      )

CHARTER SCHOOL,                                          )

                                                                              )

                                    Respondent.                       )

 

 

RECOMMENDED DECISION

 

            The Hearing Examiner recommends that the Missouri Commission on Human Rights (“MCHR”) order BSDS, Inc., d/b/a Brookside Day School, Inc. and Brookside Charter School (“Brookside”), to: 

·        pay K.B., o/b/o A.B., $2,000 in damages for deprivation of civil rights and $8,000 for humiliation and emotional distress because Brookside discriminated against A.B. on the basis of disability; and

 

·        cease and desist from further discriminatory practices. 


 

 

 

Introduction

 

            K.B., o/b/o A.B., filed a complaint with MCHR on October 31, 2003, asserting that Brookside discriminated against A.B., who had been a student at Brookside, on the basis of disability.  On September 8, 2004, MCHR appointed the Administrative Hearing Commission as Hearing Examiner.  On January 14, 2005, the Hearing Examiner issued an order granting the complainant’s motion to intervene as a party.  MCHR filed an amended complaint on February 14, 2005. 

            The parties filed a stipulation of facts on September 12, 2005, agreeing to some of the facts at issue in this case.  The Hearing Examiner convened a hearing on September 13 and 14, 2005.  Assistant Attorney General Matthew Briesacher represented MCHR.  Sandra L. Schermerhorn, with The Schermerhorn Law Firm, represented K.B.  Richard R. Fritz and Judy Yi, with Polsinelli Shalton Welte Suelthaus PC, represented Brookside.

Evidentiary Ruling

            During the hearing, Brookside raised a hearsay objection to K.B.’s testimony as to conversations with A.B. regarding problems with socializing due to her condition.  (Tr. at 110-14.)  The Hearing Examiner took the objection with the case.  In State v. Bell, 62 S.W.3d 84, 89 (Mo. App., W.D. 2001), the court defined hearsay as follows:

“Hearsay is defined as ‘in-court testimony of an extrajudicial statement offered to prove the truth of the matters asserted therein, resting for its value upon the credibility of the out-of-court declarant.’”

 

When objected to, hearsay evidence is not competent evidence in a contested case before an administrative tribunal.  State ex rel. De Weese v. Morris, 221 S.W.2d 206, 209 (Mo. 1949).  MCHR has raised no applicable exception to the hearsay rule.  The Hearing Examiner agrees that

 

 

 

this testimony is hearsay.  The objection is sustained, and this testimony is disregarded in issuing this recommended decision. 

Findings of Fact

A.B. and Her Family

1.            A.B. is the minor female child of K.B. (her father) and C.B. (her mother).  A.B. also has one younger sister.  A.B. was 14 years old at the time of the hearing.

2.            K.B. is a physician who practices as a primary care physician in the Kansas City area.  At various relevant times, K.B. was A.B.’s primary care and treating physician.

Brookside

3.            During the 2001-2002 school year, Brookside was a private elementary school in Kansas City, Missouri. 

4.            In 2002, Brookside’s board of directors decided to apply to the Kansas City, Missouri, Public School District to become a charter school.  Brookside arranged for the University of Missouri-Kansas City (“UMKC”) Department of Education, and Professor Jerry Cooper, to sponsor Brookside as a charter school.  Brookside was approved for charter school status and became a charter school in August 2002 (the beginning of the 2002-2003 school year).  When Brookside became a charter school, the parents did not have to pay tuition. 

5.            Millie Krna has been Brookside’s principal and executive director since 2000.  As the principal and executive director, Krna is the chief administrative official at Brookside.

A.B.’s Attendance at Brookside

6.            A.B. attended summer school at Brookside in 1997 and 1998. 

7.            A.B. attended fifth grade at Brookside for the 2001-2002 school year, when Brookside was a private school, and sixth grade at Brookside for the 2002-2003 school year,

 

 

 

after Brookside had become a charter school.  A.B. attended summer school at Brookside in 2002, between her fifth and sixth grade school years.[2] 

8.            At the time A.B. attended Brookside, the school was located at 30 West 51st Street in Kansas City, Missouri.

9.            Kindergarten through sixth grade classes were held, for the most part, on the main level of the building.  The main level consisted of eight classrooms, numbered 1 through 8. 

10.        During the 2001-2002 and 2002-2003 school years, A.B.’s homeroom was classroom number 1, which was located in the front hall of the building. 

11.        Virtually all of A.B.’s class activities took place in classroom number 1.  Roger Hodapp was A.B.’s homeroom teacher for fifth and sixth grade.  Hodapp taught the majority of A.B.’s curriculum during those years.  Periodically, other teachers, such as music and art teachers, would teach A.B.’s class in classroom number 1.  The students would leave the classroom to attend physical education class, recess, field trips, and lunch. 

12.        During the 2001-2002 school year, Brookside’s elementary school enrollment was approximately 85 students, and during the 2002-2003 school year, Brookside’s elementary school enrollment was approximately 136 students. 

13.        A.B. graduated from Brookside after completing sixth grade in June 2003, and thus no longer attended Brookside after that time. 

A.B.’s Condition

14.        A.B. had a condition called “bladder insufficiency syndrome” or detrussor instability.  This condition may affect anyone, but is more common among young girls.  Persons with this condition have a delayed response that their bladder is full, and have spasms that are


 

 

their initial warning.  This can result in “accidents” (urinating on themselves).  The condition causes an urgent need to go to the restroom.  The urges are not painful, but feel like cramping.  A.B. was diagnosed with this condition when she was three years old and still has the condition.  This is a chronic condition that can be managed, but not cured.  At the time of the hearing in this case, the condition was less severe than during A.B.’s fifth and sixth grade years at Brookside. 

15.        Due to A.B.’s condition, she needed to have a restroom nearby at all times if possible, and she needed to use the restroom frequently.  She could not be in a place such as a park for very long unless a restroom was nearby. 

16.        A.B. took medication for her condition.

17.        Due to her condition, A.B. had to be aware of the location of available restrooms when she was away from home. 

18.        A.B. was cautious as to what she drank, but still had the condition. 

19.        A.B. wore “Poise” pads to absorb the urine when she had accidents. 

20.        When A.B. left the house, she carried a backpack in case she had an accident.  The backpack contained extra clothes and extra pads for when she had accidents.  She kept a bag in her backpack to put her wet clothes in. 

21.        Most of the time, A.B.’s need to urinate was so urgent that she would have to go into a “tuck” position to hold the urine in.  A “tuck” is a squat where A.B. presses her heel against her bladder to hold the urine in.  When the feeling would subside, she had to walk to the bathroom in a swaying, criss-cross fashion with her legs pressed tightly together. 

22.        To manage her condition, A.B. tried to use the restroom even when she did not feel the need to urinate. 

23.        When she was younger (kindergarten through second grade), A.B. had a watch with a timer so that she would go to the restroom at least every hour to empty her bladder. 

 

 

A.B.’s Activities

24.        A.B.’s parents chose not to enroll A.B. in activities such as baseball, soccer, or basketball because her condition did not allow her to participate in such activities.  A.B. was involved in ballroom dancing because the activity was structured in such a way that A.B. could use the restroom when necessary. 

25.        A.B. participated in ballroom dancing classes, performances, and competitions.  It was difficult for her to participate in these activities due to her need to go to the restroom.  A.B. would miss part of the classes and then the class would have to go back and review it, which would prevent them from making much progress.  A.B. learned dances such as the samba, cha-cha, waltz, and rumba.  A.B. participated in two competitions and received blue ribbons because she did well.  One of her showcase performances was held up because A.B. was in the restroom.

26.        A.B. took piano lessons at her piano teacher’s house.  A.B. had to get up a couple of times during each lesson to use the restroom.  A.B. participated in piano recitals. 

27.        A.B. performed household chores such as laundry and doing the dishes. 

28.        A.B. attended Shakespeare camp, which was a two-week day camp during the summer.  The children put on a performance at the end of the camp.

29.        A.B. participated in Girl Scouts, but if she was camping, she had to have the tent closest to the restroom. 

The Restrooms at Brookside

30.        Brookside had restrooms for the children on the lower level of the building (the preschool level) and the main level (the elementary school level). 

31.        The girls’ restroom on the main floor of Brookside was geared toward small children.  The toilet seats were low, and the stalls were close together.  The bathroom was so small that it was difficult for a slender woman 5’ 3” to use. 

 

 

32.        The office restroom was referred to as “the office restroom,” “the staff restroom,” or “Ms. Krna’s bathroom.” 

33.        When Brookside converted to a charter school, it received federal grant money to make a restroom ADA[3] compliant.  The office restroom was chosen to be ADA compliant because it had enough space available.  The remodeling began at the beginning of the 2002-2003 school year, but problems with the contractor delayed the remodeling.  By November it was not complete.  A parent volunteered to complete the project, and the project was finished in December 2002 or January 2003. 

34.        The office restroom was used: 

·        by school office employees,

·        by teachers who chose to use it,

·        by students who were in the office because they were sick or had scrapes or cuts,[4]

·        by students who were in the office for discipline,

·        occasionally by visitors to the school, and

·        for dispensing medications to students with parental permission. 

 

35.        The office restroom was the closest restroom to A.B.’s homeroom.[5]  From classroom 1, one would turn left and go down the hall to get to the office.  Prior to the renovation, one would turn right at the office and go approximately 20 feet to get to the office restroom. 

36.        The girls’ restroom was at the other end of the building from A.B.’s homeroom.  A.B. had to pass several classrooms in order to get to the girls’ restroom.  To get to the girls’ restroom from classroom 1, one would turn right, go down the hall past several other classrooms, turn right, and go down another hallway to the girls’ restroom. 


 

 

37.        Before and after the renovation, if a student tried to use the office restroom, they would be asked by somebody in the office why they were trying to use that restroom, and if it was not an emergency or they were not sick, they would be sent to the other restroom or back to their teacher. 

A.B.’s Condition and Her Attendance at Brookside

38.        A.B. attended summer school at Brookside in 1997, after completing kindergarten.  C.B. informed the school that A.B. would go into tucks without warning and that she had to get to the closest restroom the minute she got up from the tuck.  Krna was not the administrator at that time. 

39.        C.B. informed Brookside of A.B.’s condition many times. 

40.        A.B. attended summer school at Brookside in 1998.  K.B. completed a “Child Health Report” form[6] as follows: 

List any chronic health conditions such as asthma, heart problems, orthopedic problems, seizures, etc., or any other health conditions.

 

Bladder Insufficiency

 

Are there any special instructions of which we should be aware?  [AB.] is to go to the restroom every hour.  If she squats (to maintain continence), then she needs to go to the restroom & change her panty-liner. 

 

41.        When A.B. began attending summer school at Brookside, C.B. did not request that A.B. be allowed to use any particular restroom because she was not aware of any restrooms other than the ones on the preschool level and the ones at the end of the hall on the elementary level.  C.B. felt that A.B.’s condition was accommodated.  Wherever A.B. was, whether on the playground or in class, she went to the restroom when she needed to go. 


 

 

42.        During fifth and sixth grade, A.B. started a new regimen of medications, and K.B. hoped that A.B.’s condition would improve and that she would have more success with continence during the day.

43.        On July 23, 2001, K.B. completed a “Child Health Report” form[7] for the 2001-2002 school year as follows: 

List any chronic health conditions such as asthma, heart problems, orthopedic problems, seizures, etc., or any other health conditions.

 

Overactive Bladder- Taking medication 2x/day (at home)

 

Are there any special instructions of which we should be aware?  She should go to the restroom every hour. 

 

44.        When A.B. was starting fifth grade, her parents informed Krna and Hodapp that A.B. had a bladder problem that might make her squat, and that she had to go to the restroom as soon as possible or else she would wet on herself.  Krna responded that she understood the condition.  K.B. informed Hodapp that A.B. had a bladder condition that required her to go to the restroom on a regular basis and that she should not be put in a position of having to wait like other kids because she could not do that. 

45.        K.B. also relayed the same information on at least one occasion to Mr. Mendenhall, a physical education instructor. 

46.        When A.B. began fifth grade, her parents did not make a request that she be allowed to use a particular restroom because they were not aware of any distinction between the restrooms. 

47.        When A.B. began fifth grade, Hodapp showed her the location of  the girls’ restroom on the main floor. 


 

 

48.        On May 12, 2002, K.B. completed a “Child Health Report” form[8] for the 2002-2003 school year as follows, and C.B. signed it: 

List any chronic health conditions such as asthma, heart problems, orthopedic problems, seizures, etc., or any other health conditions.

 

Irritable Bladder Syndrome

 

Are there any special instructions of which we should be aware?  She may squat when she urgently needs to go to the bathroom. 

 

49.        Krna never informed the office staff of A.B.’s condition because she assumed that they read the Child Health Reports.  However, no one on the office staff was assigned to read the reports. 

50.        Neither Krna nor any other teacher or staff member of Brookside ever told A.B. that she could use the office restroom if the need arose. 

51.        At school, when A.B. needed to use the restroom, she would quietly raise her hand and ask to go to the restroom.  Hodapp allowed her to use the restroom when she needed to, and would allow her to go without the hall pass if someone else was using it. 

52.        K.B. also communicated with Hodapp at scheduled meetings, at PTO meetings, and when picking up his daughters at school.  At those times, K.B. reiterated that A.B. should be allowed to use the restroom whenever she needed to, and Hodapp indicated that this would not be a problem.  K.B. did not discuss with Hodapp which restroom A.B. should use. 

53.        A.B. had to leave class to use the restroom once or twice during each three-hour time period at school. 

54.        C.B. periodically talked to Hodapp about A.B.’s condition because A.B. had to leave class, and Hodapp had questions about skin lesions he observed on A.B. 

55.        If there was a line at the restroom, A.B. would be more likely to have an accident.


 

 

56.        No one ever told A.B. specifically that she could not use the office restroom.  However, A.B. never asked to use the office restroom because she thought she would get in trouble for asking. 

57.        A.B. only used the office restroom one time, when she was in the office because she felt sick to her stomach, and not due to her bladder condition. 

58.        The teachers most often chose to take their classes to the girls’ and boys’ restrooms before and after lunch and before and after recess.  There were frequently lines outside the girls’ restroom because teachers would take their entire class at one time, and the students had to wait to use the restroom because there were only three stalls in the girls’ restroom. 

59.        A.B. had to change her panty liner every day during school because she had accidents.  This took about five minutes.  She had two to five accidents per year where she had to change her clothes as well as her underwear.  It took her five to ten minutes to use the restroom and change her clothes.

60.        Many times when A.B. had to go to the restroom at Brookside, she had to wait because there was a line of younger children.  Sometimes this caused her to have accidents, so she had to take her backpack with her every time she went to the restroom in case she had an accident.  While she was waiting to use the restroom, sometimes she had to go into the tuck position to hold in the urine.  Sometimes she had to wait a long time to use the restroom.  When she got in the restroom, she had to stand on the toilet seat in order to change her clothes because the stalls were too small otherwise. 

61.        A.B. felt anxious before she had an accident.

62.        A.B. sometimes had more than one accident when she was away from home, and she had to ask an adult for a phone so she could call her mother and ask her mother to bring extra


 

 

clothing.  This happened at Brookside and on school field trips.  A.B. informed Hodapp, one of the other teachers, or a chaperone when she needed to have her mother bring extra clothes. 

63.        A.B. was often upset about her condition.  When she had an accident, she did not want anyone to talk to her or be near her.  She did not want them to make fun of her because she smelled or because her pants were wet.  She was embarrassed and was reluctant even to tell her parents that she had accidents at school. 

64.        A.B.’s condition sometimes made it hard for her to pay attention in class.  If she missed something in class because she was in the restroom, Hodapp explained it to her or made sure that she understood it.  Sometimes she missed note taking because she was in the restroom, and Hodapp gave her the slides that he was using and let her take them home to copy them.  Hodapp sometimes gave her extensions because she was behind in her work. 

65.        A.B.’s condition made it difficult to do her homework, but her homework was never late because of it.  

66.        A.B. made A’s and B’s while at Brookside.  Other students sometimes asked A.B. to help them with assignments, and she helped them. 

67.        When C.B. picked A.B. up from school, she noticed that A.B. smelled of urine a couple of times per week. 

68.        A.B. wet her bed every night and would sometimes wake up as a result.  If she woke up, she changed her sheets, changed her pajamas, and went back to sleep.  She sometimes had more than one accident during the night.  A.B.’s skin broke out in lesions, which were probably related to the fact that she was lying on a wet bed.  A.B. sometimes fell asleep in class due to lack of sleep. 

69.        A.B. had a hard time making friends when she was at Brookside.  She had three friends, which for her was a lot of friends. 

 

 

70.        A.B. often sat on the playground and read during recess.  At other times, she “hung out” with her friends during recess.  

71.        A boy in A.B.’s class found out about A.B.’s condition and got a card from the office that said, “Stop Bed Wetting.”  Every time he talked to A.B. he held up the card and laughed at her. 

72.        Other students sometimes talked to Hodapp about A.B.’s condition, and he contacted her parents about it. 

73.        The sixth grade class at Brookside took an overnight train trip to St. Louis every year.  C.B. was a chaperone for the trip.  The kids fought because they did not want to room with A.B.  When C.B. stated that they would get room service and eat all night, the kids then fought to be in the same room with her, but the girls did not want to be in the same bed as A.B. 

74.        Outside of school, A.B. and her friends would go to movies, hang out at each other’s homes, and watch TV. 

75.        A.B. was invited to only one slumber party in the sixth grade and none in the fifth grade.  During A.B.’s sixth grade year, one of the mothers sent an invitation for the girls in A.B.’s class to have their nails done and ride in a limousine for a sleepover at the Weston.  A.B. was excited to receive a social invitation.  However, the girl whose family hosted the party told A.B. that she wasn’t invited and shouldn’t come to the party.  This rejection continued even after C.B. took A.B. to the party, and A.B. cried.  All the other girls were invited to the party. 

The Family’s Request for Accommodation

76.        Krna realized that urgency to urinate was an issue for A.B., but she never offered use of the office restroom to A.B. or instructed her staff that A.B. could use it. 

77.        C.B. became aware of the office restroom the summer before A.B.’s sixth grade year when Krna informed her that the school had a grant that included money for the bathroom. 

 

 

Krna initiated the call and informed C.B. that the office restroom would be made available to A.B. when it was ready. 

78.        Krna promised A.B.’s father that the new ADA-compliant restroom would be available for A.B. to use.  (Tr. at 122.)  The school was converting to a charter school for A.B.’s sixth grade year, and one of the reasons the family returned is because an ADA-compliant restroom would be available for A.B.

79.        In August or September 2002, at the beginning of A.B.’s sixth grade year, Krna e-mailed C.B. to inform her that the office restroom was nearly ready. 

80.        After beginning sixth grade, A.B. still went home with accidents or different clothes and stated that she was trying to make it to the girls’ restroom.  C.B. asked her why she wasn’t using the office restroom, and A.B. said that she wasn’t allowed to use it. 

81.        Prior to November 2002, C.B. approached Krna about using the office restroom.  Krna said that this was a staff restroom only and that A.B. could not use it because she had to use the girls’ restroom like every other student. 

82.        C.B. resigned her position on the parent communication committee because she was told that the purpose of the committee was no longer to bring parents’ issues to the board, and that any complaints about the school had to be addressed to Krna. 

83.        Once the office restroom renovation was completed, Brookside posted the standard blue and white signs with a wheelchair motif on the door of the restroom, indicating that it was accessible for the handicapped.  Krna posted a men’s sign and a women’s sign because she could not find a sign for a unisex restroom. 

84.        The office restroom was the only ADA-accessible restroom in the building.  Krna wanted the office restroom to be available for use by persons with wheelchairs. 

 

 

 

85.        In January 2003, K.B. requested that A.B. be allowed to use the newly renovated office restroom.  Krna replied that this was an issue to be brought up at a different time or place.  Brookside did not answer the request and thus did not say that A.B. could or could not use the office restroom. 

86.        A.B.’s parents did not bring up the issue of accommodation before the PTO because her condition was a private issue for A.B.  

87.        C.B. and K.B. went to a school board meeting to raise their concern that A.B. should be allowed to use the office restroom.  During a previous year, the board president had allowed C.B. to raise her hand and ask a question during a board meeting even though Krna had tried to block C.B. from speaking.  This time, however, every time C.B. and K.B. raised their hands, Krna reminded them that they were guests and merely observers, and were not to talk under any circumstances. 

88.        C.B. consulted with Brookside’s sponsor from UMKC, Dr. Cooper, who suggested that she write a letter asking to address the Brookside board of directors with her numerous concerns.  Cooper suggested that she ask the board to set up a forum where there would be more time to talk about issues. 

89.        Sometime in approximately February 2003, Krna called C.B.’s cell phone number and stated that she would be available to meet with C.B.  At that time, C.B. was boarding an airplane and was unavailable to meet.  

90.        On February 24, 2003, K.B. and C.B. filed a formal request to address the Brookside board of directors at its next meeting, scheduled for March 24, 2003.  They raised numerous issues in their request, but did not specifically address access to the office restroom.  C.B. and K.B. also requested a number of documents, such as a copy of the school’s articles of incorporation. 

 

 

91.        C.B. also wrote a letter to Krna on February 24, 2003,[9] thanking her for offering to meet, but stating that she felt an organized public forum between parents and administration, and hopefully including Dr. Cooper, would be the best means to address their concerns.  C.B. stated: 

I am somewhat concerned that your interest in meeting with me came only after learning of my conversation with Dr. Cooper.  My prior attempts to bring issues to your attention, both as a member of the Parent Communication Committee, as a member of PTO and privately as both a friend and parent have been rebuffed or dismissed.  Parents with whom I have spoken have suggested a similar pattern. 

 

92.        On February 27, 2003, Krna sent a letter[10] to C.B. and K.B. in reply, stating in part: 

It is not the case that the administrative staff and I are not willing to communicate with you or the other parents.  The doors of communication are open to all parents; in fact, Brookside has a Parent Communication Committee to facilitate positive communication and share information proactively within the school community (families and staff) about important issues for the children’s education.  You resigned from that committee on November 8 advising in an e-mail that you needed more time to finish the middle grade novel that you were writing.  You stated in the e-mail sent to all members of the committee, “I’ve enjoyed working with you all.  Should you need any ‘temporary’ help, let me know.”  You can understand why your statement in your letter that your ideas were “rebuffed” comes as a surprise.

 

In addition, members of the administration and a board member attend the PTO meetings.  As stated in the PTO by-laws and monthly newsletter, these meetings are designed to build community and provide positive support for the school.  Issues/concerns dealing with the operations of the school are not within the scope of PTO.  The administration and the board member report about PTO activities to the full board. 

 

The administration is always willing to meet with parents to listen to their concerns and work to resolve issues.  Parents have also had two opportunities to meet with the administrative team during the meetings we call, “A time with the A-Team.”  These sessions were publicized as opportunities for individuals or groups to bring issues and concerns relating to the operations of the school.  Parents were

 

 

 

given the opportunity to meet with the administrative team during the 2 ½ hour sessions held on November 5 and on February 25, the day after the date of your letter.  The administrative staff was present and available to meet with you during those periods to discuss any concerns or issues you might have had as well as to address the concerns of all parents. 

 

Since your resignation from the Parent Communications Committee in November, you have not approached me to discuss issues relating to providing the best possible setting and resources for our children.  I contacted you and offered to meet with you because I had heard you had questions and suggestions you might want addressed.  I did not hear back from you until your faxed letter.  You acknowledge in your letter that you have chosen not to meet to discuss issues and concerns.

 

As a public school, the documents that you requested are and always have been available to the public.  Your letter dated February 24, 2003, is the first request that Brookside has received from you for these documents. 

 

Your request is quite extensive.  Thank you for offering to make the copies, however, Brookside will make the copies for you.  This will require a few hours of staff time and use of the photocopier to complete.  Since this is beyond the scope of work planned for the next several days, a staff member will be required to work after hours to process and copy this information.  The documentation that you have requested will be several hundred to a thousand pages.  Brookside will charge you at the rate of $.03 per page and the hourly rate (time and a half for overtime) for the staff member who retrieves and copies these documents.  We hope to have the copies available for you by Tuesday, March 4. 

 

93.        On March 3, 2003, Krna wrote another letter[11] to C.B. and K.B., stating: 

Brookside has a system for operating the school that includes appropriate means for addressing concerns and functions of the various aspects of the school.  Everyone; students, staff, board, and families including yours; involved with Brookside will follow the policies as noted in the Parent/Guardian Handbook 2002-2003. 

 

You do not have the authority or permission to hand out flyers or communiqués at school that are not approved by the school.  The three-page flyer that you handed out on Friday was inappropriate and unauthorized.  For example, your notes from the February

 

 

 

board meeting are merely your notes and not the minutes of the board meeting, and you will not be allowed to hand them out at the school. 

 

As I stated to you in my February 27 letter, “as a public school, the documents that you requested are and always have been available to the public.”  Public institutions, including Brookside, also have procedures that do not interfere with the daily operations of the organization for producing and making documents available to the public.  The documents that you requested will be available for you to purchase this afternoon at 5:00 pm.  An invoice for the copies and retrieval time will be prepared for you at that time.  If you only wish to view to [sic] documents, then you will follow the procedures of viewing them at the office, taking none of the pages, and making no copies on Brookside’s photocopier. 

 

94.        C.B. and K.B. were told they would be allowed three minutes to speak at the end of the next board meeting.  K.B. was unable to be there at the beginning of the meeting.  When the meeting began, Krna decided to move them to the beginning of the meeting and stated that if K.B. was not there, he forfeited his time.  C.B. produced a letter signed by K.B. allowing another parent to speak on his behalf, but Krna replied that this was not allowed because they did not have four copies of the letter and it was not submitted 30 days in advance.  Upon C.B.’s protest, the board finally allowed the other parent to speak.  The board set an egg timer for three minutes for C.B. to speak, but this was not an adequate amount of time for her to raise her concerns.  When the time was up, C.B. was told to be quiet and sit down.  The board president denied her request for more time.  The board also denied her request to set up a forum to talk about issues.  When K.B. arrived, the building was locked, and he had to call C.B. on his cell phone in order to get into the building. 

95.        At some unspecified point in time, Krna put a tape recorder under a piece of paper and told C.B. that she would have a meeting with her.  C.B. replied that Krna had been unresponsive and C.B. would encourage UMKC to work with the board. 

 

 

 

96.        On one occasion in spring 2003, C.B. was leaving the school building with her younger daughter, O.B., who needed to go to the restroom.  O.B. knocked on the door.  Krna was on the other side of the door and would not open it for her.  O.B. informed her mother that Krna would not allow her back in the building without a parent.  C.B. went in with O.B. and told her to use the office restroom because it was closer.  The person at the desk said that O.B. could not use that restroom because it was for staff only.  C.B. told her to use that restroom.  Krna stated that C.B. was technically in violation of school policy and that she could ask C.B. to leave the building and have C.B.’s children dismissed from the school.  C.B. again told O.B. to use the office restroom, and she did.  

97.        Brookside distributed flyers inviting parents to attend a parent/community forum on May 13, 2003.  The flyer stated:[12] 

Purpose:  The Parent/Community Forum will foster a spirit of community and trust through effective communication, allowing for exchange of ideas and concerns, building on strengths and beginning the process of identifying solutions to issues. 

 

The flyer stated that the facilitator would be an assistant professor of educational administration at CMSU who had expertise in leading forums.  C.B. attended the forum and found that, multiple times, the facilitator discouraged parents from raising issues and concerns.  When parents discussed concerns about the school, the facilitator told them that they should call them wishes or create a positive comment, or else the concerns would not be considered.  C.B. did not raise the issue of restroom access because she did not feel that it was an appropriate subject for a public forum. 


 

 

98.        C.B. attended the next board meeting.  A poster of the “pluses” was posted, and the board stated that they did not even want to look at the list of “wishes,” so the “wishes” were not discussed. 

99.        C.B. submitted a “Request for changes in policy and procedure within Brookside Charter School and governing Board of Directors.”[13]  The request contained 14 items.  Item 14 stated:  “The Board will advertise to all current an [sic] incoming students the availability of the ADA compliant bathroom to any child or parent requesting it’ [sic] use.  ADA requirements and laws shall be posted in a clearly visible place in the lobby.”  C.B. gave this document to the board at a board meeting in summer 2003.  A.B. had graduated by that time; thus, C.B. did not make a request during that meeting that A.B. be allowed to use the office restroom. 

100.    Sometime after the renovation, one student had leg surgery and was in a wheelchair for an extended period of time.  The child’s parent came in and discussed use of the office restroom with Krna.  The child was allowed to use the office restroom.  Krna informed Hodapp that this child should be allowed to use the office restroom, even though he was not in Hodapp’s class.  Krna never told Hodapp that A.B. could use the office restroom. 

K.B.’s Complaint with MCHR

101.    On October 31, 2003, K.B. filed a complaint with MCHR.   

Conclusions of Law

            The parties agree that Brookside is a place of public accommodation within the State of Missouri.  Section 213.065.[14] 


 

 

I.  Timely Filing of Complaint

            Section 213.075 requires that a claimant file a complaint with MCHR within 180 days of the alleged act of discrimination.  Brookside argues that the complaint was not filed within 180 days after K.B.’s alleged request and denial of an accommodation to use the front restroom in January 2003.  In Roberts v. Panhandle Eastern Pipeline Co., 763 F. Supp. 1043, 1049-50 (W.D. Mo. 1991), the court distinguished between a continuing violation and a continuing impact:

Where . . . discrimination is not limited to isolated incidents but pervades a series or pattern of events which continue to within [180] days of the filing of the charge . . . , the filing is timely . . . regardless of when the first discriminatory incident occurred.

 

Id. at 1049 (quoting Satz v. ITT Fin. Corp., 619 F.2d 738, 744 (8th Cir. 1980).  In Roberts, the defendant announced its plans to close its Kansas City office, but on or about August 20, 1987, offered some employees the opportunity to transfer to Houston, Texas.  Roberts was offered a job in Houston as a grade 68 Gas Supply Representative, and five male employees were offered jobs in Houston as Senior Representatives.  The employees were given until December 1, 1987, to accept or reject the offers.  Roberts rejected the offer and filed a complaint with MCHR on May 3, 1988, asserting disparate treatment based on sex.  The defendant offered another Senior Representative position to a male in late spring or early summer 1988.  Roberts’ employment terminated when the Kansas City office closed on August 19, 1988.  She filed an amended complaint with MCHR in November 1988 asserting that the most recent act of discrimination occurred “Aug. 19, 1988/continues.”  The defendant argued that the alleged discriminatory act occurred on August 20, 1987, when the defendant made the offers, and that Roberts’ claim was therefore untimely.  The court stated:

Plaintiff has presented facts that show defendant’s alleged discrimination was not limited to isolated events but pervaded a

 

 

series of events occurring within 180 days of the date plaintiff filed her MCHR complaint.  The continuing violation was the continued application of defendant’s allegedly discriminatory selection process.  Plaintiff has shown that defendant continued to use its discriminatory selection process and continued to make discriminatory job offers until late spring of 1988, which was within 180 days of plaintiff’s May 3, 1988, complaint.  Therefore, plaintiff’s sex discrimination claim is not time-barred by § 213.075. 

Id. at 1050.

            Similarly, in the present case, the act of discrimination alleged in the complaint continued throughout the 2002-2003 school year.  A.B. graduated from Brookside in June 2003.  The act of discrimination did not occur only when Brookside denied the family’s request to use the office restroom, but throughout the period of time that Brookside refused to allow her to use it.  The discrimination continued through June 2003.  Therefore, K.B.’s complaint, filed on October 31, 2003, was filed within 180 days of the act of discrimination and was timely. 

II.  Credibility

            In Bean v. Missouri Comm’n on Human Rights, 913 S.W.2d 419, 423 (Mo. App., E.D. 1996), the court stated:  “The hearing examiner is not the final arbiter of credibility.  That function is reposed in the Commission [on Human Rights].” 

A.  Inconsistencies Between Hearing

Testimony and Deposition Testimony

            MCHR’s Regulation 8 CSR 60-2.100(1) provides that MCHR shall follow MCHR’s rules and the Missouri Supreme Court rules of civil procedure as to prehearing discovery.  Discovery allows a party to gain information from someone else prior to the hearing.  As part of the discovery process, Brookside took depositions of A.B., C.B., and K.B.  The depositions consisted of questioning these individuals by Brookside’s attorney, with an opportunity for attorneys for the other parties to cross-examine them. 

 

 

 

            Brookside argues that answers given by A.B., C.B., and K.B. at their depositions are inconsistent with their testimony at the hearing.  Brookside points to no particulars, except it argues that A.B., C.B., and K.B. all testified at their depositions that A.B. no longer had problems with urinary frequency, which Brookside asserts is inconsistent with their hearing testimony.  MCHR’s Regulation 8 CSR 60-2.100(2) provides that no part of a deposition shall constitute part of the record in a proceeding unless received as evidence by the presiding officer.  The term “presiding officer” includes the hearing examiner appointed by MCHR.  Regulation 8 CSR 60-2.015(1)(K).  C.B. and K.B.’s depositions were not offered or admitted into evidence at the hearing.  Only select portions of A.B.’s two depositions were admitted into evidence.  However, the depositions were attached as exhibits to Brookside’s motion for summary determination, filed on July 6, 2005.  On July 28, 2005, the Hearing Examiner issued an order denying the motion for summary determination on grounds that MCHR does not have the statutory authority to decide a case without a hearing pursuant to a motion for summary determination.  Because the motion was denied on grounds that MCHR did not have the authority to entertain it, the exhibits to that motion should not be regarded as part of the record in this case.  However, the Hearing Examiner has reviewed the depositions of C.B. and K.B., and the complete depositions of A.B., for the limited purpose of addressing Brookside’s claim that they are inconsistent with the hearing testimony. 

            Brookside argues that C.B., K.B., and A.B. all stated in their depositions that A.B. no longer has the condition, which is inconsistent with their testimony at the hearing.  (C.B. Depo. at 44-45; K.B. Depo. at 22; A.B. Depo. I at 19-20; A.B. Depo. II at 34-35.)  C.B. actually stated that is was “hard to say,” and continued:  “I believe it’s mostly if not all resolved.”  (C.B. Depo. at 44-45.)  At her first deposition, A.B. stated that she no longer had the condition.  (A.B. Depo. I at 19-20.)  At her second deposition, A.B. at first stated that she didn’t have it as much as she did

 

 

in the past (A.B. Depo. II at 5) and later stated that she did not still have the condition.  (A.B. Depo. II at 34-35.)  The severity and duration of the condition are relevant factors in determining whether a condition qualifies as a disability.  However, whether A.B. still has the condition at this time is not material because the issue in this case is whether she had a disability at that time and whether the school failed to accommodate it.  At the time that A.B. attended Brookside, she had suffered from the condition for years and had no improvement in sight. 

            Brookside argues that A.B.’s credibility is compromised because some of her hearing testimony was inconsistent with her previous testimony at her depositions.  A.B. testified that she was embarrassed to talk about her condition when having her deposition taken.  (Tr. at 38.)  It is understandable that a child with A.B.’s condition would be nervous about discussing it in front of strangers.  She testified at the hearing and swore under oath that her hearing testimony was accurate, after having had the opportunity to discuss her deposition answers with her parents to recall the events accurately.  Therefore, the Hearing Examiner has given greater weight to her hearing testimony than to her deposition testimony, and has recommended findings of fact accordingly.  The Hearing Examiner recommends that the MCHR hearing panel adopt the Hearing Examiner’s proposed findings of fact, which give greater weight to A.B.’s hearing testimony than to her deposition testimony, and are based on C.B. and K.B.’s hearing testimony rather than their deposition testimony.  

            Brookside argues that Petitioner failed to supplement responses given during the depositions of A.B., K.B., and C.B.  In Gassen v. Woy, 785 S.W.2d 601, 603 (Mo. App., W.D. 1990), the court stated that even though the Missouri Supreme Court’s rules do not expressly impose an obligation to supplement answers to deposition questions when the answers cease to be correct, the case law and the rules suggest that such a duty is “implied as a component of the discovery process.”  Brookside argues that sanctions should be imposed, such as striking the

 

 

conflicting testimony provided at the hearing, because the deposition responses were not supplemented.  MCHR’s Regulation 8 CSR 60-2.100(7) provides:  “The panel or hearing examiner shall have the authority to impose sanctions in the same manner as set forth in the rules of civil procedure, except that they shall not have the authority to issue an order treating as a contempt of court the failure to obey.”  Whether or not sanctions are imposed is a matter of discretion.  Gassen, 785 S.W.2d at 603. 

            This is not a case where new information was discovered that made the previous answers inaccurate.  Instead, this is a situation where the hearing testimony is different from the previous deposition testimony.  The hearing testimony is the evidence in this case, and the depositions are not in evidence, other than the limited portions of A.B.’s depositions that were offered into evidence.  Any conflicts may be resolved by giving greater weight to the hearing testimony.  Therefore, Petitioner should not be subjected to sanctions, such as striking the hearing testimony. 

B.  Conflicts Between MCHR’s

Evidence and Brookside’s Evidence

            C.B. and K.B. maintain that they requested that A.B. be allowed to use the office restroom because it was closer to her classroom.  They testified that this was discussed before the renovation of the office restroom began and that specific requests were made upon completion of the renovation project, beginning in January 2003.  C.B. and K.B. testified as to their repeated requests that A.B. be allowed to use the office restroom.  This was not an issue prior to the renovation of the office restroom because C.B. was not aware that there was a restroom in the office at that time.  Krna testified that the family never made a request that A.B. be allowed to use the office restroom.  (Tr. at 308-09.) 

            All of the witnesses testified at a hearing in September 2005 regarding events that occurred more than two years earlier.  Their recollection of the events would have been less than

 

 

perfect by that time.  However, C.B. and K.B. had an intense interest in these events and zealously pursued the course of action that they felt best for their daughter.  The Hearing Examiner has found credible their testimony that they made requests that A.B. be allowed to use the office restroom, and has made recommended findings of fact accordingly.  The Hearing Examiner recognizes that MCHR is the final arbiter of witness credibility.  Bean, 913 S.W.2d at 423.  However, the Hearing Examiner has an opportunity to observe the demeanor and conduct of the witnesses.  Citizens for Rural Preservation, Inc. v. Robinett, 648 S.W.2d 117, 127 (Mo. App., W.D. 1983).  The Hearing Examiner observed the testimony of A.B., C.B., and K.B., and found them forthright.  Due to their intense personal interest in the events that took place, they are more likely to recall the details accurately than the school employees or officials.  The Hearing Examiner recommends that MCHR find the testimony of A.B., C.B., and K.B. credible, and adopt the recommended findings of fact accordingly. 

          In particular, A.B.’s testimony sharply contrasted from Hodapp’s in one important aspect.  Hodapp testified that other students left the classroom to go to the restroom more frequently than A.B., that he did not observe her leaving the room frequently, and that he did not notice her ever having changed her clothes or appearing soiled.  A.B., in contrast, testified that she had to change her panty liner every day during school because she had accidents, she had other major accidents where she had to change her clothes as well as her underwear, and she even had some occasions where she had more than one accident and had to call her mother to bring more clothes.  A.B.’s condition was difficult and embarrassing for her, and she was thus in a better position than Hodapp to remember these events accurately.  Once again, the Hearing Examiner recommends that MCHR find A.B. credible and adopt the recommended findings of fact accordingly. 


 

 

III.  Freedom from Discrimination

in Places of Accommodation

            The Missouri Human Rights Act (“MHRA”), §§ 213.010 to 213.137, contains specific provisions pertaining to discrimination in housing, employment, and places of public accommodation.  Section 213.065, pertaining to places of public accommodation, provides: 

            1.  All persons within the jurisdiction of the state of Missouri are free and equal and shall be entitled to the full and equal use and enjoyment within this state of any place of public accommodation, as hereinafter defined, without discrimination or segregation on the grounds of . . . disability.

 

            2.  It is an unlawful discriminatory practice for any person, directly or indirectly, to refuse, withhold from or deny any other person, or to attempt to refuse, withhold from or deny any other person, any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation, as defined in section 213.010 and this section, or to segregate or discriminate against any such person in the use thereof on the grounds of . . . disability. 

 

Missouri courts have established guidelines for construing the MHRA: 

 

In determining legislative intent, this court must bear in mind that “[r]emedial statutes should be construed liberally to include those cases which are within the spirit of the law and all reasonable doubts should be construed in favor of applicability to the case.”  State ex rel. Ford v. Wenskay, 824 S.W.2d 99, 100 (Mo.App.1992).  See also Perez v. Missouri State Bd. of Registration for Healing Arts, 803 S.W.2d 160, 165 (Mo.App.1991).  Section 213.065 of the MHRA was enacted to provide “[a]ll persons within the jurisdiction of the state of Missouri ... the full and equal use and enjoyment within this state of any place of public accommodation....”  Section 213.065.1.  This mandate that all persons be treated equally in public accommodations was enacted “in the interest of public welfare,” Hagan v. Director of Revenue, 968 S.W.2d 704, 706 (Mo. banc 1998), and “ ‘introduce[s] some new regulation conducive to the public good[ ... ].’ ”  Ford, 824 S.W.2d at 100 (quoting City of St. Louis v. Carpenter, 341 S.W.2d 786, 788 (Mo.1961)).  Therefore, the statute is . . . remedial and we must afford it a broad interpretation “in order to accomplish the greatest public good.”  Hagan, 968 S.W.2d at 706; Ford, 824 S.W.2d at 100.

 


 

 

Missouri Comm'n on Human Rights v. Red Dragon Restaurant, 991 S.W.2d 161, 166-67 (Mo. App., W.D. 1999). 

A disability discrimination claim under the MHRA is analyzed in the same manner as a claim under the ADA.  Darby v. Bratch, 287 F.3d 673, 682 (8th Cir. 2002).[15]  The ADA is designed “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”  42 U.S.C. § 12101(b)(1).  The ADA forbids discrimination against persons with disabilities in three major areas of public life:  Title I covers employment; Title II covers public services, programs, and activities; and Title III covers places of public accommodation.  Title III, which is similar to § 213.065, provides: 

(a) No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 

 

(b) Construction

 

      (1) General prohibition

            (A) Activities

                  (i) Denial of participation  It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 

 

42 U.S.C. § 12182. 


 

 

 

“Places of public accommodation” are: 

 

all places or businesses offering or holding out to the general public, goods, services, privileges, facilities, advantages or accommodations for the peace, comfort, health, welfare and safety of the general public or such public places providing food, shelter, recreation and amusement, including, but not limited to: 

 

*   *   *

 

(e) Any public facility owned, operated, or managed by or on behalf of this state or any agency or subdivision thereof, or any public corporation; and any such facility supported in whole or in part by public funds[.]

 

Section 213.010(15)(e). 

            Though the language of 42 U.S.C. § 12182 is similar to § 213.065, Title III of the ADA is construed to apply to private entities that own, lease or operate a place of public accommodation.  Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004).  Due to the definition of “places of public accommodation” in § 213.010(15)(e), § 213.065 applies to discrimination in government-owned facilities as well as privately-owned facilities. 

                 Title II of the ADA contains specific provisions prohibiting discrimination in the provision or operation of public services, programs, or activities.  42 U.S.C. § 12132 provides: 

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

 

A public school district is a public entity.  Fort Zumwalt School District v. Clynes, 119 F.3d 607 (8th Cir. 1997). 

The parties do not dispute that Brookside, as a charter school, was a place of public accommodation.  In its amended complaint, MCHR asserts that Brookside discriminated against


 

 

A.B. on the basis of disability by denying her request that she be allowed access to the nearest restroom facility when her condition so demanded.[16]  

IV.  Disability

A.  Definition

The parties dispute whether A.B. had a disability.  Section 213.010(4) defines “disability” as: 

a physical or mental impairment which substantially limits one or more of a person’s major life activities, being regarded as having such an impairment, or a record of having such an impairment, which with or without reasonable accommodation does not interfere with performing the job, utilizing the place of public accommodation, or occupying the dwelling in question. 

 

This differs slightly from the definition of disability under the ADA, which provides: 

The term “disability” means, with respect to an individual—

 

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

 

(B) a record of such an impairment; or

 

(C) being regarded as having such an impairment.

 

42 U.S.C. § 12102(2).

 

Both statutes provide that a disability is a physical or mental impairment that substantially limits one or more of the major life activities of an individual.  The MHRA, however, adds that if one cannot perform the job, utilize the place of public accommodation, or occupy the dwelling, with a reasonable accommodation, then the person does not fit within the


 

 

definition and cannot bring a claim.  In Medley v. Valentine Radford Communications, 173 S.W.3d 315, 320 (Mo. App., W.D. 2005), the court explained that difference in the context of employment discrimination: 

So in order to be disabled under the MHRA, a person must have an impairment that limits a major life activity and with or without reasonable accommodation that impairment must not interfere with performing a job.  This is the main difference between the MHRA and the ADA, which prohibits discrimination against a qualified individual with a disability.  42 U.S.C. § 12112(a) (1995).  The MHRA makes the question of whether the job can be performed with or without reasonable accommodation a part of the test to determine whether an employee is disabled; not making reasonable accommodations is a type of discrimination under the ADA.  Nonetheless, the definitions are similar enough that federal cases are instructive whenever Missouri cases do not answer a question.

 

(Citations omitted.)  See also Devor v. Blue Cross & Blue Shield of Kansas City, 943 S.W.2d 662 (Mo. App., W.D. 1997).  There is no question that A.B. was capable of utilizing Brookside’s services with a reasonable accommodation.  

B.  Impairment

“[W]hether a person has a disability under the ADA is an individualized inquiry.”  Sutton v. United Air Lines, Inc., 119 S.Ct. 2139 (1999).  The ADA regulations define “impairment” to include:

[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:  neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine[.]

 

29 CFR § 1630.2(h)(1) (emphasis added).[17]  A.B.’s condition is a physiological disorder affecting the genitourinary system and thus meets the definition of an impairment. 


 

 

C.  Substantial Limitation on a Major Life Activity

1.  Definitions

The ADA regulations governing substantial limitation provide: 

(1) The term substantially limits means: 

 

(i) Unable to perform a major life activity that the average person in the general population can perform; or

 

(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 

 

(2) The following factors should be considered in determining whether an individual is substantially limited in a major life activity: 

 

(i) The nature and severity of the impairment;

 

(ii) The duration or expected duration of the impairment; and

 

(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

 

29 CFR § 1630.2(j). 

 

            29 CFR § 1630.2(i) defines “major life activities”:[18]

 

Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 

 

The courts have added further depth to the definition of “major life activities”:

 

“Major life activities” are “activities that are ‘of central importance to daily life.’ ”  Carroll, 294 F.3d at 238 (quoting Toyota Motor Mfg. v. Williams, 534 U.S. 184, 197, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002)).  The courts have recognized various “major life

 

 

activities,” including the performance of manual tasks, Toyota Motor Mfg., 534 U.S. at 198, 122 S.Ct. 681; lifting, Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 21 (1st Cir.2002); and sleeping, Calero-Cerezo v. DOJ, 355 F.3d 6, 21 (1st Cir. 2004) (citing Criado v. IBM Corp., 145 F.3d 437, 442-43 (1st Cir. 1998)).  In addition, the Supreme Court and this court have assumed, without deciding, that working may be considered a major life activity.  See id. (citing Sutton v. United Airlines, Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)).  We also have noted that concentrating “may be reasonably subsumed within the broader context of working and learning.” Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, 258 F.3d 30, 33 (1st Cir.2001).

 

Davila-Rivera v. Caribbean Refrescos, Inc., 150 Fed. Appx. 3, 6  (C.A.1 Puerto Rico 2005) (emphasis added). 

Major life activities under the ADA are basic activities that the average person can perform with little or no difficulty, including “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i).  The “ability to perform cognitive functions on the level of an average person” constitutes a major life activity.  Brown v. Lester E. Cox Med. Ctrs., 286 F.3d 1040, 1045 (8th Cir.2002).  See also Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir.1999). Accordingly, thinking and concentrating qualify as “major life activities” under the ADA.

 

Battle v. United Parcel Service, 438 F.3d 856, 861 (C.A.8 Ark. 2006) (emphasis added). 

 

For purposes of this recommended decision, because this case arises in the context of education, the activities of thinking and concentrating are considered to be subsumed within the major life activity of learning. 

2.  Elimination of Waste

a.  Court Decisions

                Brookside cites a number of cases in which the courts held that incontinence or the need to be near a restroom is not a disability.  Swain v. Hillsborough County School Bd., 146 F.3d 855, 858 (11th Cir. 1998); Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2nd Cir. 1998); Sacay v. Research Foundation of City Univ. of New York, 193 F. Supp.2d 611, 629 (E.D. N.Y. 2002);   

 

 

Martin v. AT&T Corp., 331 F. Supp.2d 1274 (D. Colo. 2004); Sepulveda v. Glickman, 167

F. Supp.2d 186, 191 (D. P.R. 2001); Williams v. H.N.S. Mgmt. Co., 56 F. Supp.2d 215, 221

(D. Conn. 1999); Clark v. Dallas Independent School District, 1996 WL 706866 (N.D. Texas 1996).  MCHR has not argued that the elimination of waste is a major life activity.  However, a number of courts have recognized that the need to eliminate waste from the body is a major life activity.  Mazza v. Bratton, 108 F. Supp.2d 167 (E.D. N.Y.); EEOC v. Browning-Ferris, Inc., 262 F. Supp.2d 577, 584 (D. Md. 2002); Erjavac v. Holy Family Health Plus, 13 F. Supp.2d 737 (N.D. Ill. 1998); Ryan, 135 F.3d 867; Sacay, 193 F. Supp.2d at 629.  Other courts have assumed that the need to eliminate waste is a major life activity.  Teachout v. New York City Dep’t of Education, 2006 WL 452022 (S.D.N.Y. 2006); Hodge v. Henry County Medical Center, 341 F. Supp.2d 968, 973 (W.D. Tenn. 2003); In Teachout, 2006 WL 452022 n.8, the court stated that elimination of waste is “basic to any person’s daily regimen, [and] is also a daily activity that the average person can accomplish with little effort.”  The key has been whether the plaintiff’s condition substantially limits the major life activity. 

            In Erjavac, 13 F. Supp.2d 737, the plaintiff suffered from diabetes and needed to urinate frequently, thus requiring ready access to a restroom.  The court held that waste elimination is essential to remaining alive and is therefore even more significant than working or learning, which are specifically listed as major life activities in the EEOC’s regulations, even though they are not essential to sustain life.  The court also held that the plaintiff’s diabetes substantially limited this major life activity:  “the average adult does not need such frequent access to the bathroom that they soil themselves while waiting to use it, nor is quick and flexible bathroom access essential to most persons’ well-being at work.”  Id. at 747.

            In Mazza, 108 F. Supp. 2d 167, the plaintiff suffered from severe ulcerative colitis, which created an urgent need to have bowel movements.  The court concluded that he described severe

 

 

limitations upon his ability to control elimination of wastes and to work, and medical evidence substantiated the severity of his condition.  Therefore, the trier of fact could reasonably find that he was disabled.  However, in that case the plaintiff failed to show that he made a request for accommodation. 

            In Browning-Ferris, 262 F. Supp.2d at 584-85, the plaintiff suffered from Crohn’s Disease, which caused chronic severe diarrhea.  She sometimes soiled herself, had to be close to a restroom, and carried a change of clothes in case she needed it.  The court found that a reasonable jury could conclude that she was substantially limited in the major life activity of eliminating waste. 

            In Hodge, 341 F. Supp. 2d 968 at 973-74, the plaintiff suffered from Crohn’s disease, which required him to use the restroom frequently and sometimes have diarrhea.  As in Browning-Ferris, the court found that a reasonable jury could conclude that he was substantially limited in the major life activity of eliminating waste. 

            In another case, Workman v. Frito-Lay, Inc., 165 F.3d 460 (6th Cir. 1999), the plaintiff, who suffered from a spastic colon and needed to use the restroom frequently, won a jury verdict on her ADA claim.  The court upheld the verdict and found that the jury could have decided that controlling one’s bowels is a major life activity and that her condition was a disability, if the jury considered the evidence that she needed to be free to go the restroom whenever she felt the urge. 

            In other cases, the courts found that the plaintiffs failed to show that their condition substantially limited the major life activity of eliminating waste.  In Ryan, 135 F.3d at 871, the court found that because the plaintiff’s colitis could be asymptomatic for long periods of time and could vary in its intensity, it did not substantially limit her major life activity.  In Sacay,

193 F. Supp. 2d at 629, though the plaintiff suffered from colitis and needed to be near a restroom, she did not prove: 

 

 

 

her symptoms and how severe they are; how long the colitis will last; whether she is in pain and if so the frequency and severity of the pain; or how much control she has over her bowel movements, whether she has ever soiled herself, or how many times a day she must use the bathroom. 

 

Therefore, the plaintiff in that case failed to establish a substantial limitation on her major life activity.  In Teachout, the plaintiff argued that his diabetes caused incontinence, but the court found that he failed to raise a triable issue of fact as to whether his diabetes substantially limited his ability to eliminate waste.  He had admitted that he only suffered from incontinence “occasionally.” 

b.  Application of the Criteria to This Case

            In order to determine whether or not a particular person is substantially limited in a major life activity, it is necessary to make an individual assessment of the impact of that person’s impairment.  Sutton v. United Air Lines, 119 S.Ct. 2139 (1999). 

Considering the factors set forth in 29 CFR § 1630.2(j)(2), A.B. had a severe condition of bladder insufficiency that caused involuntary spasms and frequent, embarrassing accidents.  She had suffered from this condition since she was three years old.  The condition was chronic and incurable.  The condition has thus had a permanent and long-term impact.  A.B. continues to suffer from it, and it is a condition that must be managed and cannot be cured.

A.B. was significantly restricted as to the condition, manner or duration under which she could eliminate waste, as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity.  A.B. suffered from a medically diagnosed physiological condition.  Due to her condition, she had inadequate warning when she needed to urinate, and an urgent need to go to the restroom.  She needed to have a restroom nearby at all times and needed to use the restroom frequently.  She had to wear pads because she had frequent accidents.  Most of the time, she had to go into a tuck position to hold

 

 

in the urine and then had to walk to the restroom in a criss-cross fashion with her legs pressed tightly together.  She had to change her panty liner every day during school because she had accidents.  She had two to five accidents per year where she had to change her clothes as well as her underwear.  This case is very similar to Erjavac, 13 F. Supp.2d 737, and Browning-Ferris, 262 F. Supp.2d at 584-85.  As the court indicated in Erjavac, 13 F. Supp.2d 737, the average person does not have such difficulties in going to the restroom.  The present case can be distinguished from those in which the proof was insufficient to show a disability.  The evidence in this case establishes that A.B.’s condition was a disability because it substantially limited the major life activity of eliminating waste. 

2.  Learning

            All of the cases that Brookside cites, in support of its proposition that incontinence or the need to be near a restroom is not a disability,[19] arose in the context of employment.  Therefore, these cases do not address a substantial limitation in the major life activity of learning. 

In this case, we are dealing with a child and her education, which are vastly different from an adult in the employment context.  Brookside points to A.B.’s outstanding academic performance in arguing that her learning was not substantially impaired.  However, A.B.’s academic performance was more a testimony to her intelligence and ability than an indication that the condition was not a substantial impairment.  The record shows that A.B. had to leave class to use the restroom once or twice during each three-hour time period at school.  She had to take time to change her panty liner every day while she was at school.  This would take about five minutes.  Two to five times per year, she had accidents so severe that she had to change her clothes as well as her underwear, which took five to ten minutes.  At other times, she had more


 

 

 

than one accident and had to call her mother to bring extra clothing.  Her condition made it difficult for her to pay attention in class.  Sometimes she missed note taking because she was in the restroom, and she had to get extensions because she was behind in her work.  She sometimes fell asleep in class due to lack of sleep from her condition. 

As previously noted in the discussion of elimination of waste, considering the factors set forth in 29 CFR § 1630.2(j)(2), A.B. had a severe condition of bladder insufficiency that caused involuntary spasms and frequent, embarrassing accidents.  She had suffered from this condition since she was three years old.  The condition was chronic and incurable.  The condition has thus had a permanent and long-term impact.  A.B. continues to suffer from it, and it is a condition that must be managed and cannot be cured.  

We conclude that A.B.’s condition substantially limited the major life activity of learning because it significantly restricted the condition, manner, and duration with which she could participate in classroom learning, as compared to the condition, manner and duration with which other students could perform the same activity.  She had suffered from this condition throughout her preschool and elementary school years and continued to suffer from the condition and its impact on her education during the years in question in this case.  Brookside points to cases wherein the claimant failed to prove a disability in the area of learning.[20]  In the present case, in contrast, A.B. suffered from a physiological impairment that substantially limited the major life activity of learning. 

The United States Court of Appeals for the Eighth Circuit has held that interacting with others is an activity that “feed[s] into the major life activities of learning and working.”  Moysis v. DTG Datanet, 278 F.3d 819, 825 (8th Cir. 2002).  In Heisler v. Metropolitan Council,


 

 

339 F.3d 622 (8th Cir. 2003), the court held that regardless of whether interacting with others was treated as a separate major life activity or a subset of the broader activities of learning or working, the plaintiff in that case failed to prove that her major depressive disorder substantially limited her ability to interact with others. 

In Privette v. SPX Corp., 2004 WL 2066834 (D. Minn. 2004), the court noted that the Eighth Circuit had assumed in Heisler that interaction with others is a major life activity, but had not determined whether this was a separate major life activity or a subset of the broader activities of learning and working.  The court noted, however, that the extent to which an individual must be affected in order to rise to the level of a substantial limitation in a major life activity “appears quite high.”  The court assumed, without deciding, that the plaintiff was disabled due to social phobia, but found that she was not transferred to another job because of disability.  The courts have also held that mere embarrassment over a condition does not rise to the level of a disability.  Weiler v. Household Finance Corp., 101 F.3d 519 (7th Cir. 1996). 

The cited cases arose in the context of employment discrimination claims.  The present case highlights the importance of social interaction as it impacts the life activity of learning.  Schooling is not only a matter of academic instruction, but also of socialization and learning to interact with others.  The school day includes not only academic instruction, but recess, lunch, and activities.  Brookside points to evidence that A.B. had friends, tutored other students, and took a leadership role in her class.  This ignores the evidence that A.B. had a hard time making friends; had only three friends, which was a lot of friends for her; and suffered ridicule and ostracism in school and related activities.  When she had an accident, she did not want anyone to talk to her or be near her.  She did not want anyone to make fun of her because she smelled or because her pants were wet.  A.B. often sat on the playground and read during recess.  Regardless of whether we take social interaction as a major life activity or as a subset of the

 

 

major life activity of learning, A.B.’s condition substantially limited both her social interaction and her learning because it significantly restricted the condition, manner, and duration with which she could participate in social interaction and learning, as compared to the condition, manner and duration with which other students could participate in the same activity. 

3.  Sleeping

             MCHR also argues that A.B.’s condition affected the major life activity of sleeping.  A.B. wet her bed every night and would sometimes wake up as a result.  Her skin broke out in lesions, probably because she was lying on a wet bed.  In Swanson v. University of Cincinnati, 268 F.3d 307, 316 (6th Cir. 2001), the court stated:  “While less than five hours sleep is not optimal, it is not significantly restricted in comparison to the average person in the general population.”  In Boerst v. General Mills Operations, Inc., 25 Fed. Appx. 403, 407 (6th Cir. 2002), the court stated:  “Getting between two and four hours of sleep a night, while inconvenient, simply lacks the kind of severity we require of an ailment before we will say that the ailment qualifies as a substantial limitation under the ADA.”  Similarly, in Martin, 331 F. Supp.2d at 1299, the court stated:  “Four hours of sleep a night, plus some napping time during the day, is not enough to be a substantial limitation under the ADA.” 

We agree that A.B.’s condition affected her sleep and that this was problematic for a young girl in school.  However, we find the evidence insufficient to conclude that A.B. was “significantly restricted” as to the condition, manner and duration with which she could sleep, as opposed to the condition, manner and duration with which the average person in the general population can perform that activity.  The general population has a problem with sleeping.  See Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2d Cir. 1988).  The evidence shows that A.B. sometimes woke up, but does not show a substantial limitation on the life activity of sleeping.   

 

 

D.  Conclusion as to Disability

            A.B.’s condition substantially limited the major life activities of eliminating waste and learning, but not of sleeping.  Due to the substantial limitation on the major life activities of eliminating waste and learning, her condition was a disability. 

V.  Discrimination

A.  Definition and Statutory Provisions

The Missouri Court of Appeals, Western District, has summarized the broad remedial purpose of § 213.065 as follows: 

The plain meaning of the words of . . . § 213.065 indicate that the general purpose of the act is to prevent anyone in the state of Missouri from being refused public accommodations because of discriminatory attitudes toward persons with disabilities.

 

Missouri Comm'n on Human Rights v. Red Dragon Restaurant, Inc., 991 S.W.2d 161, 167 (Mo. App., W.D. 1999). 

Section 213.010(5) defines “discrimination” as: 

any unfair treatment based on race, color, religion, national origin, ancestry, sex, age as it relates to employment, disability, or familial status as it relates to housing[.]

 

42 U.S.C. § 12182(b), which is part of Title III of the ADA, provides: 

(2) Specific prohibitions

 

      (A) Discrimination

 

      For purposes of subsection (a) of this section, discrimination includes—

 

*   *   *

 

            (ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would

 

 

fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations[.]

 

As one court has stated: 

The ADA was enacted to eliminate discrimination against persons with disabilities, thereby fostering their full inclusion into the mainstream of American life.  The ADA mandates fresh attitudes towards, and genuine changes in, long-accepted employment practices, methods of providing governmental services, public accommodations, transportation, and telecommunications. 

 

Small v. Dellis, 1997 WL 853515 at 3 (D. Md. 1997) (emphasis added). 

                 To establish a violation of Title II of the ADA, plaintiffs must show that: 

1.  they are “qualified individuals with a disability”;

 

2.  they are being excluded from participation in or denied the benefits of some service, program, or activity by reason of their disability, or subjected to discrimination by reason of their disability; and

 

3.  the entity which provides the service, program or activity is a public entity.

 

First Step, Inc. v. City of New London, 247 F. Supp.2d 135, 149 (D. Conn. 2003).[21]  

            To establish a prima facie case under Title III of the ADA, a plaintiff must show that: 

 

1.  he or she is disabled;

 

2.  the defendant is a place of public accommodation; and

 

3.  the plaintiff was denied full and equal treatment because of his or her disability.

 

Hubbard v. Twin Oaks Health and Rehabilitation Center, 408 F.Supp.2d 923, 929 (E.D. Cal. 2004). 


 

 

The degree of proof required in an MHRA case is a preponderance of the evidence.  Midstate Oil Co. v. Missouri Comm'n on Human Rights, 679 S.W.2d 842, 845 (Mo. banc 1984), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).  

B.  Reasonable Accommodations

Plaintiffs who allege violation of the ADA may prove discrimination under any or all of three theories:  intentional discrimination, disparate impact, and failure to make reasonable accommodation.  First Step, 247 F. Supp. 2d at 149.  A.B.’s family alleges failure to make a reasonable accommodation. 

28 C.F.R. § 35.130, which interprets Title II, provides: 

(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability—

 

      (i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

 

      (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

 

      (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

 

*   *   *

 

      (vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

 

*   *   *

 

(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: 

 

      (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;

 

 

 

      (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities;

 

*   *   *

 

(7) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

 

Reasonable accommodations are also required under Title III.  Hartnett v. Fielding Graduate Institute, 400 F. Supp.2d 570, 576 (S.D.N.Y. 2005).  The courts use the terms “reasonable accommodation” and “reasonable modification” interchangeably.  Enriching, Inc., 151 Fed. Appx. at 524 n.1.  The question whether a proposed accommodation is reasonable is fact specific and must be evaluated on a case-by-case basis.  Harnett, 400 F. Supp.2d at 577.  “A ‘reasonable accommodation’ is one that gives the otherwise qualified plaintiff with disabilities ‘meaningful access’ to the program or services sought.”  Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2nd Cir. 2003).  A modification or accommodation is reasonable if it neither imposes undue financial and administrative burdens nor requires a fundamental alteration in the nature of the program.  First Step, 247 F. Supp.2d at 154.[22] 

The United States Court of Appeals, First Circuit, has stated that “unique considerations come into play” when a student and an academic institution are involved.  Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791 (1st Cir. 1992), cert. denied, 113 S.Ct. 1845 (1993).  The court stated:

If the institution submits undisputed facts demonstrating that the relevant officials within the institution considered alternative means, their feasibility, cost and effect on the academic program, and came to a rationally justifiable conclusion that the available

 

 

 

alternatives would result in lowering academic standards or requiring substantial program alteration, the court could rule as a matter of law that the institution met its duty of seeking reasonable accommodation . . . Only if essential facts were genuinely disputed or if there were significantly probative evidence of bad faith or pretext would further fact finding be necessary. 

 

Id.  Educational institutions are not required to “lower or effect substantial modifications of standards to accommodate a handicapped person.”  Maczaczyj v. State of New York, 956 F. Supp. 403, 408 (W.D.N.Y. 1997) (quoting McGregor v. Louisiana State University Board of Supervisors, 3 F.3d 850, 858 (5th Cir. 1993), cert. denied, 114 S.Ct. 1103).  Educational institutions are not required to make fundamental or substantial accommodations.  Maczaczyj, 956 F. Supp. at 408 (citing Southeastern Community College v. Davis, 99 S.Ct. 2361, 2370-71 (1979)). 

A defendant is not required to adopt an accommodation that would cause it to “suffer an undue hardship:” 

[T]he undue hardship inquiry requires not simply an assessment of the cost of the accommodation in relation to the recipient’s overall budget, but a case-by-case analysis weighing factors that include:  (1) [t]he overall size of the recipient’s program with respect to number of employees, number and type of facilities, and size of budget; (2) [t]he type of the recipient’s operation, including the composition and structure of the recipient’s workforce; and (3) [t]he nature and cost of the accommodation needed.

 

Henrietta D. v. Bloomberg, 331 F.3d at 281.

            The plaintiffs’ prima facie burden to show that their request for accommodation is reasonable is not a heavy one.  Id. at 280.  “It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits[.]”  Id.  “Once the plaintiff has done this, she has made out a prima facie showing that a reasonable accommodation is available, and the risk of nonpersuasion falls on the defendant.”  Id


 

 

29 CFR § 1630.2(o)(3) provides: 

To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation.  This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 

 

The courts have applied the interactive process requirement in Title II and Title III cases.  Enriching, Inc. v. City of Fountain Valley, 151 Fed. Appx. 523, 524 (9th Cir. 2005).  Once the need for a reasonable accommodation is established, the parties must engage in an interactive process to determine the appropriate accommodation.  Id

In Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285-87 (7th Cir. 1996), the court described the interactive process, in the context of employment, as follows:

An employee’s request for reasonable accommodation requires a great deal of communication between the employee and employer. . . .  [B]oth parties bear responsibility for determining what accommodation is necessary. . . .  No hard and fast rule will suffice, because neither party should be able to use a breakdown in the process for the purpose of either avoiding or inflicting liability.  Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to help the other party determine what specific accommodations are necessary.  A party that obstructs or delays the interactive process is not acting in good faith.  A party that fails to communicate, by way of initiation or response, may also be acting in bad faith.  In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility. . . .

 

But properly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that he or she must specifically say “I want a reasonable accommodation” . . . .  The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn't know how to ask for it, the employer should do what it can to help.

 

            In this case, a reasonable accommodation would have been very simple:  A.B. could have been allowed to use the office restroom.  Brookside argues that A.B.’s family never made a

 

 

request that she be allowed to use the office restroom.  As mentioned in our discussion of credibility, we believe the testimony of C.B. and K.B. that they made such a request repeatedly, and we have made findings of fact accordingly.  In addition, there is no dispute that A.B.’s family informed the school that her condition created an urgent need to use the restroom.  The school, upon being informed of this urgency, could have allowed her to use the nearest restroom. 

            Brookside argues that it met its burden to show that it had legitimate, nondiscriminatory reasons to refuse A.B. the use of the office restroom.  Brookside argues that the office restroom had to be kept available for emergency use and dispensing medication, and that A.B. would have been even more likely to have an accident if she found the office restroom occupied and had to backtrack to go to the girls’ restroom.  However, the school has not made any showing that it ever took A.B.’s needs into consideration when it refused her the use of the office restroom.  Brookside further contends that use of the office restroom was restricted because visitors and delivery personnel came into the office, which was near the front entrance, and students were encouraged to use the other restrooms so that they would be safe.  Brookside asserts that the restroom had to be kept open in case a handicapped person needed it.  Brookside’s arguments slip into the realm of pretext, as the obvious purpose of the restroom renovation was to have an ADA accessible facility.   A student in a wheelchair was in fact allowed to use the office restroom, but A.B. was denied access. 

Brookside failed to make a reasonable modification in its policy so that A.B. would be allowed to use the office restroom.  Brookside has made no showing that such a modification would have caused undue hardship, Henrietta D., 331 F.3d at 281, or would have fundamentally altered the nature of its services, facilities, or accommodations.  42 U.S.C. § 12182(2)(A)(ii);

28 C.F.R. § 35.130(b)(7).  The alteration in the nature of Brookside’s services, in fact, would have been minimal.  It would have required no financial cost, no changes to the academic

 

 

program, and no structural changes to the facility at all, but merely use of the newly constructed restroom facility that, paradoxically, was supposed to be handicapped accessible.  Although A.B.’s condition did not require the use of ADA equipment in the restroom, such as handrails, the office restroom was the closest to her classroom, and its use would have been a reasonable accommodation for her disability.  Even if, as Brookside claims, use of the office restroom might not have been a satisfactory solution because the restroom might have been in use at times when A.B. sought to use it, the school made no showing that it considered alternative means, Wynne, 976 F.2d 791, or even took A.B.’s best interests into consideration.  The family merely requested the option to use the office restroom as a reasonable accommodation.  If that had proved to be unsatisfactory, the school and the family could have engaged in further discussions to best accommodate A.B.’s disability. 

The record also contains ample evidence of a failure on the part of the school to participate in an interactive process to effect an accommodation.  C.B. found that her requests to meet with Krna to discuss the situation were “rebuffed.”  She also found that Krna’s offers to meet with her were not genuine or came at inopportune times, such as when she was leaving on a plane or when Krna hid a tape recorder under a piece of paper and offered to have a meeting.  Even the parents’ efforts to address the school board were stonewalled.  It is understandable that C.B. and K.B. would not wish to discuss A.B.’s condition in certain public forums, which would cause embarrassment to A.B., and they should not be expected to do so.  A public educational institution, rather than building walls to block communication and accommodation of disabilities, should be at the forefront in making its facilities and academic program available to all who qualify. 

            Brookside discriminated against A.B. by failing to make a reasonable accommodation for her disability. 

 

 

D.   Showing of Gross Misjudgment or Bad Faith

In the context of education, the United States Court of Appeals for the Eight Circuit has held that more is required to make a claim of discrimination under the ADA on the basis of disability.  The court has held that in order to succeed on an ADA claim in the context of educational services for disabled children, a showing of gross misjudgment or bad faith on the part of school officials is required.  Hoekstra v. Independent School District, No. 283, 103 F.3d 624, 627 (8th Cir. 1996).  Missouri is part of the Eighth Circuit.  The court relied on Monahan v. State of Nebraska, 687 F.2d 1164 (8th Cir. 1982), where the court stated: 

We think . . . bad faith or gross misjudgment should be shown before a . . . violation can be made out, at least in the context of education of handicapped children. . . .  The standard of liability we suggest here . . . reflects what we believe to be a proper balance between the rights of handicapped children, the responsibilities of state educational officials, and the competence of courts to make judgments in technical fields.  So long as the state officials involved have exercised professional judgment, in such a way as not to depart grossly from accepted standards among educational professionals, we cannot believe that Congress intended to create liability[.]

 

Although Monahan was decided under Section 504 of the Rehabilitation Act of 1973, the court in Hoekstra, 103 F.3d at 627, held that the same standard applies to ADA claims in the context of educational services for disabled children. 

            This case contains no evidence of professional standards among educational professionals.  However, we do not need expert testimony to understand that a child with a condition requiring urgent use of a restroom should be allowed to use the nearest restroom available, especially when her parents have repeatedly made that request.  MCHR has made the required showing of bad faith or gross misjudgment.  


 

 

E.  Conclusion

Brookside has discriminated against A.B. on the basis of disability by failing to make a reasonable accommodation for her disability.  Therefore, Brookside has violated § 213.065.2. 

VI.  Damages

Section 213.075.13 provides that the Hearing Examiner may recommend any of the relief available under § 213.075.11, which provides:

[I]f, upon all the evidence at the hearing, the [hearing] panel finds:

 

(1) That a respondent has engaged in an unlawful discriminatory practice as defined in this chapter, [MCHR] shall issue and cause to be served on the respondent an order requiring the respondent to cease and desist from the unlawful discriminatory practice.  The order shall require the respondent to take such affirmative action, as in [MCHR]’s judgment will implement the purposes of this chapter, including, but not limited to . . . payment of actual damages[.]

 

(Emphasis added.)  Thus, MCHR may issue a cease and desist order and order payment of monetary damages.

            In this case, A.B. has already graduated from Brookside.  Therefore, a cease and desist order would have no practical effect as to A.B.  However, the Hearing Examiner recommends that MCHR issue a cease and desist order so that current and future students do not suffer from the same discriminatory practices. 

Actual damages in a Missouri civil rights case may include amounts for the deprivation of civil rights, humiliation, and emotional distress.  Conway v. Missouri Comm'n on Human Rights, 7 S.W.3d 571, 575 (Mo. App., E.D. 1999).  In Conway, MCHR awarded $1,000 for the deprivation of civil rights and $3,000 for humiliation and emotional distress.  In van den Berk v. Missouri Comm’n on Human Rights, 26 S.W.3d 406 (Mo. App., E.D. 2000), the court awarded two married complainants a total of $8,000:  $5,000 for emotional distress and humiliation and

 

 

$1,000 for deprivation of civil rights to one; and $1,000 for emotional distress and humiliation and $1,000 for deprivation of civil rights to the other.  In that case, a St. Louis landlord discriminated against a married couple wishing to rent an apartment on the basis of race.  As a result, the couple experienced stress and depression and eventually separated, with one moving away from St. Louis. 

A.B. was humiliated and embarrassed by her experience at Brookside.  Brookside’s failure to accommodate her condition exacerbated it and caused embarrassing accidents, for which she was ridiculed by her peers.  A.B. was deprived of her civil rights, and she suffered actual damages for humiliation and emotional distress. 

A.B.’s humiliation and emotional distress were even greater than those of the complainants in van den Berk.  A.B. was a child, and the school was in a position to offer support instead of exacerbating an embarrassing condition.  The impact of this experience on a child is devastating.  Therefore, the Hearing Examiner recommends that MCHR award $2,000 for deprivation of civil rights and $8,000 for humiliation and emotional distress. 

In its answer to the amended complaint, Brookside argues that the complainant failed to mitigate damages and that the claims should therefore be limited.  This argument is not supported by the record, as A.B. and her family actively sought medical treatment for her condition and took whatever measures were possible, including medication, to treat it.  K.B., o/b/o A.B., should be fully compensated for deprivation of civil rights, humiliation, and emotional distress caused by Brookside’s discriminatory conduct. 

Summary

            The Hearing Examiner recommends that MCHR order Brookside to: 

 

 

 

 

            1.  compensate K.B., o/b/o A.B., $2,000 in damages for deprivation of civil rights and $8,000 for humiliation and emotional distress; and

            2.  cease and desist from further discriminatory practices. 

            SO RECOMMENDED on September 13, 2006.

 

                                                                              ________________________________

                                                                              JUNE STRIEGEL DOUGHTY

                                                                              Hearing Examiner

Scanned Document Image for Hearing Order Panel 04-0026 HRC

Scanned Document Image for Hearing Order Panel 04-0026 HRC

 



                [1]On January 14, 2005, the Hearing Examiner issued a protective order stating that the minor and her family members involved in this case would be referenced by their initials in order to protect medical and other information about the minor.   

                [2]All findings of fact pertain to the 2001-2002 through 2002-2003 school years, unless specifically noted otherwise. 

                [3]Americans with Disabilities Act.

                [4]The school did not have a nurse. 

                [5]Even Krna admitted that the office restroom was about 10 feet closer. 

                [6]Ex. 1.

                [7]Ex. 6.

                [8]Ex. 10.

                [9]Ex. 14.

                [10]Ex. 17.

                [11]Ex. 18.

                [12]Ex. 24.

                [13]Ex. 28.

            [14]Statutory references are to the 2000 Revised Statutes of Missouri, unless otherwise noted. 

[15]The Individuals with Disabilities in Education Act (“IDEA”) specifically applies to education.  That law was enacted to ensure access to a “free appropriate public education” for all disabled children.  20 U.S.C.

§ 1400(d)(1)(A).  The MHRA is similar to the ADA, and the courts have recognized that ADA principles apply to “fill in the gaps” when analyzing the MHRA.  The courts have not applied the IDEA to the MHRA.  However, in Strawn v. Missouri State Bd. of Education, 210 F.3d 954 (8th Cir. 2000), the court applied the two-year statute of limitations for civil court actions under the MHRA, § 213.111.1, in the context of an IDEA claim.  The Hearing Examiner, like the federal courts, has relied on the ADA and accompanying regulations as an aid in resolving issues under the MHRA. 

                [16]K.B.’s original complaint filed with MCHR asserted that A.B. was not accommodated in that she was not allowed to go to the restroom when she needed to, but the amended complaint claims only that she was denied access to the nearest restroom.  Neither party disputes that A.B. was allowed to leave class and use the restroom immediately when she needed to. 

                [17]MCHR’s regulations contain an identical definition that applies in employment discrimination cases. 

8 CSR 60-3.060(1)(A)1.  MCHR’s regulations do not define “impairment” in the context of discrimination on the basis of disability in places of public accommodation. 

                [18]MCHR’s regulations contain a specific definition of “major life activities” in employment discrimination cases, and that definition encompasses only “those life activities which affect employability.”  8 CSR 60-3.060(1)(C).  That definition does not apply in this case, which involves discrimination in a place of public accommodation in violation of § 213.065(2). 

                [19]Swain, 146 F.3d 855; Ryan, 135 F.3d 867; Martin, 331 F. Supp.2d 1274; Sacay, 193 F. Supp.2d at 629; Sepulveda, 167 F. Supp.2d at 191; Williams, 56 F. Supp.2d at 221; Clark, 1996 WL 706866. 

                [20]Costello v. Mitchell Public School District 79, 266 F.3d 916 (8th Cir. 2001); Leisen v. City of Shelbyville, 153 F.3d 805 (7th Cir. 1998); Summers v. Middleton & Reutlinger, P.S.C., 214 F. Supp. 751 (W.D. Ky. 2002).   

                [21]A “qualified individual” for purposes of Title II is one who “with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”  42 U.S.C. § 12131(2).  The MHRA differs from Title II in that it does not require that an individual be a “qualified individual.”  It requires only that the individual have a disability as defined by the MHRA. 

                [22]MCHR’s regulations define “reasonable accommodation” in the context of employment discrimination cases, 8 CSR 60-3.060(1)(G), but not as to places of public accommodation.