Garrett Back, Briefly; Everyone "Missed Something Big"

In an amazing opinion that should be required reading for a number of reasons, the district court on remand from Garrett v. Board of Trustees, 531 U.S. 356 (2001), has concluded that the Supreme Court appeal was a “horrible waste of time.”

The district court and everyone else along the way “missed something big”: the defendant “received a superabundance of federal dollars” to which it, like the rest of America, was “fatally addicted,” and thus the University admittedly waived its sovereign immunity under section 504 of the Rehabilitation Act. Garrett v. Board of Trustees, ---F.Supp.2d---, 2005 WL 281226 (N.D. Ala. Jan. 13, 2005). The Supreme Court’s dismissal of the claims under the Americans with Disabilities Act was therefore irrelevant, as the 504 claims were identical.

Nevertheless, Garrett’s resurrection was short-lived, as the court granted summary judgment against her on the facts, which she had “overstated.” The legal issues in the opinion are less interesting than the court’s ruminations on the course of the litigation and the judge’s own personal struggles with cancer.

New Version of the Facts

The “story” of Garrett is that she was demoted to a lower-paying, less-prestigious position because she took time off work to have chemotherapy for her breast cancer. The district court has now revised those facts. The court found it was undisputed that the defendant responded “favorably to every request for accommodation, including a provision for sick leave.” When she indicated that she was fatigued, the University suggested but did not insist that she transfer to a less stressful position without any reduction in pay. Instead, it was purely Garrett’s idea that she transfer to a different, lower-paying position.

Legal Issues

On the legal issues, the court concluded that (1) Garrett was not a “qualified person with a disability,” (2) the University’s agreement to her transfer request was not an adverse employment action, and (3) there was no evidence of retaliation, because Garrett did not identify any protected conduct, had no direct evidence of retaliatory motive, and could not rely on temporal proximity as a substitute because there was none. The court also questioned whether it should recognize the concept of “constructive transfer,” and whether working is a “major life activity,” but the decision did not turn on those issues.

Great Quotables

Although the judge does not avoid the mea culpa on missing the section 504 issue, he expresses understandable frustration with the parties’, the Eleventh Circuit’s, and the Supreme Court’s failure to notice the issue “year after year after year.” When it was finally raised on remand to the Eleventh Circuit, the University “responded with a classic example of lame, insipid non-advocacy, in which UAB, in effect, confessed that a horrible waste of time had taken place.” All the time and effort of taking the case over seven years to the Supreme Court and back was “an academic exercise,” that may have provided “excitement” for the public, but was “meaningless for this case.”

The judge also acknowledged that he has had cancer and had his prostate gland removed. “Either this judge should recuse himself because of a life experience similar to Garrett’s or he cannot avoid bringing his life experience into the decision making process.” Like Garrett, the judge recovered. “This judge is sure that there are lawyers who thought, or even hoped, that this judge would not come back to the bench. The perception that someone with cancer is ‘on the way out’ may be pervasive, but in today’s world it is fallacious…. During treatment, a cancer patient may or may not be able to function at full capacity, but neither does a person with a bad cold function at full capacity.”

The judge concluded that based on the undisputed facts, “including overstated physical and mental shortcomings of a recovering cancer patient,” summary judgment should be granted.