Gorsuch’s Record Reveals Ruthless and Cruel Decisions

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Hwang v. Kansas State University

This article deserves credit for posting links to its sources--that takes integrity. I followed the link to the Hwang v. Kansas State University case, and was surprised. From my perspective as a lawyer, the case seemed pretty clear cut and simple. The way the case is described here in Progressive.org's article is a gross missrepresentation of the case. It's sad because so many people will read Progressive's article, never check the sources, and have no clue as to the level of misrepresentation it propagates (at least with the Hwang v. KSU case). For example, the article here states, "[b]efore evidence could be presented in the case" judge Gorsuch ruled Hwang's request was unreasonable, and dismissed the case. That statment exploits the layperson's lack of understanding of the appellate court process and the concept of "judgments as a matter of law." Moreover, the Hwang case never even uses the word "evidence," and the admission of evidence isn't even an issue in the case. And, if it were, it would be an issue of whether to overrule a district court's decision to reject or admit certain evidence, which the appellate court would determine as a pure question of law (not fact). This whole article makes it seem like it would be appropriate for a judge to rule based on its emotions rather than the law. I did not check any other case, so I cannot speak for the entire article, but I can say with confidance, Progressive.org's representation of the Hwang case could be construed as sophisticated propaganda--cherry picking just enough information, and presenting it in just the right light, to push an agenda. I don't know why any publication would want to risk that. Again, I did not cite check the entire article, so I can't judge its representations of the other cases. However, its Hwang representation is enough to discredit the integrity of the entire website as a whole if not corrected. Progressive.org's next integrity test is whether they post this comment. Their rule states that comments will be posted if they're "on-topic and not abusive." I'm definitely on topic, and have attempted to maintain a standard tone of intellectual discourse. If what I've written here is considered abusive in our society, then our society has a sickness we must diagnose and cure.

Pat Smith 22 days ago

ACLU lawyer Claudia Center replies

ACLU lawyer Claudia Center replies The case *was* pretty clear cut and simple. Ms. Hwang worked for a huge employer. The leave extension she needed was finite – only until the end of the flu epidemic. There was no basis for deeming the leave she needed as categorically unreasonable or as imposing an undue hardship. And as I explained in the blog, a string of circuit courts *except* this panel that considered this precise question ruled the other way. In other words, there is extensive appellate authority with holdings that are the opposite to the Hwang case. These courts ruled on motions for summary judgment – after the opportunity for discovery and presentation of evidence – that leaves of absence for significantly longer periods of time than that needed by Ms. Hwang may be a form of reasonable accommodation under Title I of the ADA. This is all detailed in the amicus brief that is linked in the blog. See, e.g., Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000); Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171-72 (1st Cir.1998); Cehrs v. Northeast Ohio Alzheimer's Research Ctr., 155 F.3d 775, 782 (6th Cir.1998); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999); Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 601 (7th Cir. 1998).
The Hwang case was an outrageous outlier from the ordinary ADA employment case in general (which is typically fact-intensive, and not decided on the pleadings), and from ADA leave cases in particular. In other words, it is an outlier because it dismissed the case on the pleadings, without permitting discovery or evidence for consideration during a motion for summary judgment. Extremely unusual. And it is an outlier because it dismissed the case on the basis of a leave extension that was shorter than those blessed by other appellate courts.

Progressive.org 18 days ago

In response to the Hwang case

From an article titled "Supreme Court Nominee Neil Gorsuch Has a Troubling History When Ruling on Disability Rights Cases" written by Claudia Center, Senior Staff Attorney for the ACLU:

"Two cases stand out during Judge Gorsuch’s time at Tenth Circuit Court of Appeals.

Assistant Professor Grace Hwang worked at Kansas State University – with great success – for 15 years. After a cancer diagnosis, she requested and received a six-month leave of absence covering the fall 2009 semester while she recovered from a bone marrow transplant. As she was preparing to return to teaching in January, the campus erupted in a flu epidemic. Because a flu infection would have been dangerous, given her compromised immune system, Professor Hwang asked for further short leave, during which she could have worked from home.

The university denied her request, and Hwang sued.

Under established disability rights laws, a request for leave due to a disability must be evaluated on a case-by-case basis to decide whether the request would present an undue hardship to the employer. This is a factual determination. Yet, before any evidence could be presented in the case on whether such an accommodation might present a problem for KSU — a federally funded, multi-million-dollar employer — Judge Gorsuch ruled that Professor Grace Hwang’s request for an additional leave of absence was simply unreasonable.

In his ruling, Judge Gorsuch asserted that “showing up” was an essential job function and opined that the Rehabilitation Act should not “turn employers into safety net providers for those who cannot work.” But this was an error of both fact and law. Of course, it is important that an individual report to work. But Grace Hwang had demonstrated her ability to “show up” for 15 years, and she was even able to telecommute during the flu epidemic. There was no question that she could report to work on campus and that she would be able to do so again. What was at issue was whether the university should allow her a short additional leave as a reasonable accommodation to enable her to return to her full duties.

Judge Gorsuch’s ruling contravened Equal Employment Opportunity Commission guidance, every other circuit decision on the issue, and reasoning from the Supreme Court in U.S. Airways, Inc v Barnett. In Barnett, the U.S. Supreme Court held that a reasonable accommodation may require the modification of a neutral employer rule, even if this functioned as a “preference” for the disabled employee. If Gorsuch followed Barnett’s reasoning in Hwang, the only thing required of the university would have been allowing the professor to work from home for a limited time.

A safety net it is not."

I am not an attorney and use information from trusted sources to evaluate judicial decisions.

It seems in this case, it might be of value for you to take this up with the ACLU.

In the meantime, I will contact ACLU's Senior Staff Attorney who wrote the article for an explanation.

Dora Taylor

Progressive.org 18 days ago

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