Berardelli v. Allied Servs. Inst. of Rehab. Med.

Citation900 F.3d 104
Decision Date14 August 2018
Docket NumberNo. 17-1469,17-1469
Parties Traci BERARDELLI; Joseph Berardelli, on behalf of their daughter M.B., a minor, and individually on their own behalf, Appellants v. ALLIED SERVICES INSTITUTE OF REHABILITATION MEDICINE
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Leah S. Batchis, Arleigh P. Helfer, III, [Argued], Nancy Winkelman, Schnader Harrison Segal & Lewis, 1600 Market Street, Suite 3600, Philadelphia, PA 19103, Nicole M. Reimann, Esq., Batchis Nestle & Reimann, 116 Bala Avenue, Bala Cynwyd, PA 19004, Counsel for Appellants.

Edwin A. Abrahamsen, Jr., James J. Conaboy [Argued], Abrahamsen Conaboy & Abrahamsen, 1006 Pittston Avenue, Scranton, PA 18505, Counsel for Appellee.

Amanda L. Nelson, Cozen O’Connor, 45 Broadway, 16th Floor, New York, NY 10006, Counsel for Amicus Curiae The Public Interest Law Center of Philadelphia.

Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges.


KRAUSE, Circuit Judge.

For decades, the Rehabilitation Act (RA) and its progeny, the Americans with Disabilities Act (ADA), have served as twin pillars of federal disability discrimination law. Both statutes secure the rights of individuals with disabilities to independence and full inclusion in American society and, unsurprisingly, have been constant companions in our case law as it has developed to effect those rights. The RA assures "meaningful access" to federally funded programs, Alexander v. Choate , 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), on the one hand, and the ADA provides for "full and equal enjoyment" of public accommodations, 42 U.S.C § 12182(a), on the other, to people with disabilities. When necessary to realize that access and enjoyment, the statutes require "reasonable accommodations," Choate , 469 U.S. at 301, 105 S.Ct. 712, or "reasonable modifications," 42 U.S.C. § 12182(b)(2)(A)(ii), to be made by actors within the statutes’ reach.

The Department of Justice (DOJ) has promulgated regulations interpreting the ADA’s "reasonable modification" requirement to mean that covered actors generally must "modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability," 28 C.F.R. § 36.302(c)(1) ; see also id. § 35.136(a), and must "permit[ ] [such individuals] to be accompanied by their service animals in all areas of [the covered actor’s facilities] where ... program participants ... are allowed to go," id. § 36.302(c)(7) ; see also id. § 35.136(g). The question presented by this case is one of first impression in the Courts of Appeals: whether, in the absence of a similar regulation specifically interpreting the RA, its mandate of "reasonable accommodations," consistent with the mandate of "reasonable modifications" under the ADA, generally requires that individuals with disabilities be permitted to be accompanied by their service animals and, thus, renders such requested accommodations per se reasonable in the ordinary course.

For the reasons set forth below, we hold that it does and that the District Court’s contrary jury instructions constitute reversible error. Accordingly, we will vacate the judgment and remand for further proceedings consistent with this opinion.

I. Factual Background

This case centers on an elementary school student with dyslexia

and epilepsy, M.B., and her rebuffed attempts to be accompanied by her service dog to school. When M.B. was a young child, her mother had to monitor her constantly and care for her during epileptic seizures, the onset of which could be subtle or sudden. As M.B. grew older and became more independent, though, her pediatric neurologist recommended that she obtain a service dog to take over this function.1 M.B.’s mother therefore arranged to acquire a service dog, which accompanied M.B. to school during second grade and helped her cope with her epilepsy by alerting during a seizure and providing safety and comfort until the seizure had passed.

In third grade, M.B. switched to the dePaul School,2 which had a specialized program for dyslexic students. Before enrolling M.B. there, M.B.’s mother met with the principal and explained that, in addition to dyslexia

, M.B. also had epilepsy and that the service dog, who had recently died, had accompanied M.B. to her previous school. M.B.’s mother also explained that M.B. was on the waiting list for a new service dog that likewise would need to accompany her to school. After receiving assurances from the principal that M.B. was a "very good fit" for the School, M.B.’s mother enrolled her that fall as a third grader. JA 501.

That winter, M.B. came off the waiting list and was paired with a new service dog, Buddy. But when M.B.’s mother asked the principal for permission to send Buddy to school with M.B., the principal refused, asserting for the first time that Buddy would be "too much of a distraction" to other children. JA 673. Because Buddy was not allowed to accompany her, M.B. missed the next two weeks of school to be with Buddy 24 hours a day for an initial intensive bonding period. And after M.B. returned to school, because the principal continued to deny permission for Buddy to accompany her throughout the remainder of third grade, Buddy was not available to alert school staff during seizure activity or to support her recovery. As a result, M.B.’s mother kept M.B. home when her seizures were more severe.

In an effort to avoid these interruptions to M.B.’s education, M.B.’s mother met with the principal again before fourth grade to request that Buddy be permitted to accompany M.B. in the new school year. By that time, Buddy not only could alert during M.B.’s seizures, but also could predict and alert to them minutes before they even began. But the principal still refused, once more asserting that Buddy might distract other students. Yet again, M.B. attempted to attend without Buddy, but that year she missed 65 days of school—more than one-third of the school year—with seizure activity accounting for about half of her absences.

A devoted advocate, M.B.’s mother sought permission again on the eve of fifth grade for Buddy to accompany M.B. to school, pointing out that M.B.’s seizures were increasing in frequency, which exacerbated the concerns about her attending without Buddy’s assistance. But again the principal refused, citing possible distraction, and so once more M.B. started the school year unaccompanied by Buddy. Without her service animal, however, M.B. became anxious and distracted at school, afraid of enduring the increased seizure activity. Her mother therefore met again with the principal to renew her request for Buddy to accompany M.B. to school and to advise the principal that M.B.’s pediatric neurologist had recommended that Buddy "should be at school with her." JA 530. The principal promised to "look into" the request. JA 531.

Unsatisfied with that answer, M.B.’s mother simply began bringing Buddy to school with M.B. in the morning. Each day she did so, however, the principal stopped them at the entrance of the School and refused to allow Buddy to enter. The principal also offered a new explanation: Instead of pointing to the possibility of distraction, the principal said she had discovered that another student in the School was allergic to dogs.

At that point, given M.B.’s growing anxiety and distraction and the medical risks associated with attending school without Buddy, M.B. stayed home from school for more than two months while her mother continued her efforts to obtain an accommodation from the School. Those efforts included leaving telephone messages, having her attorney send letters, and forwarding a note she obtained from M.B.’s pediatrician that explained that, because M.B.’s "seizure activity has escalated and is not always obvious, it is medically necessary for ‘Buddy,’ [her] trained seizure dog, to be with her 24 hours [a day] / 7 days a week." JA 1396. A teacher at the School also provided the principal with an informational article about seizure alert dogs that detailed how they are able to predict and alert to seizures and give their owners time to move to a safe place, take medication, call for help, and notify others about the impending seizure for later monitoring. And the parents of the student who was allergic to dogs, for their part, informed the principal that they had arranged for allergy treatments

for their son and did not want M.B. to be excluded from the School on his behalf.

After weeks of back-and-forth effort, the principal finally agreed that M.B. could return with Buddy, but only on the condition that Buddy at all times wear a special therapeutic shirt designed to decrease allergens. Thus, in January of fifth grade, M.B. finally returned to school, this time with Buddy. But her return was short-lived. The special hypo-allergenic shirt made Buddy overheated, causing him to pant and to fail to alert or respond when M.B. had seizures. After two weeks of these conditions, M.B.’s mother learned that M.B. had slept on the floor of the principal’s office for hours after seizing without Buddy’s intervention. The next day, she withdrew M.B. from the School permanently.

Eventually, M.B. was enrolled in the local public school, which allowed Buddy to accompany her. By that point, however, M.B.’s testing showed that she had fallen too far behind to resume or even to repeat fifth grade. Instead, she was required to enter as a fourth grader.

II. Procedural Background

M.B.’s parents sued the School, asserting that it had failed to accommodate M.B. in violation of § 504 of the Rehabilitation Act (RA), Title III of the Americans with Disabilities Act (ADA), and the Pennsylvania Human Relations Act (PHRA).3 After discovery, the School moved for summary judgment on all claims, and the District Court granted that motion as to the ADA and PHRA claims.

Regarding the ADA claim, the Court noted that M.B.’s parents only sought damages and explained that damages are not an available form of relief...

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