Sometimes it's the relatively small victories that are the most satisfying. The ones that go unnoticed by the wider world but which make a tangible, enriching difference in the life of a disabled person.Leigh Law Group recently had one such victory for a young man with autism that serves to reinforce why we do what we do. J.S. is a young man diagnosed with moderate to severe autism. He has extreme difficulty in social settings and in doing pretty much anything that a typical high school student takes for granted. However, one thing that J.S. can do well is run. For the past 5 years, J.S. has participated on his school's cross country and track and field teams with the help of a Section 504 Rehabilitation Act accommodation which provided J.S. with a running assistant. This assistant would accompany J.S. during practices -- in order to translate the instruction of the coaches and to accompany J.S. on distance runs through the town. This is the only way J.S. could access the athletic program in a manner equal to other students or in a meaningful way. Through this participation, J.S. was able to experience the social comradery and personal challenge that athletics provides. It was also one area where he was as good as his peers. Through athletics, J.S. gained confidence and pride in his accomplishments. His teammates also benefited from seeing J.S. battle through his disabling condition and run just as fast as they did. They looked at J.S. in a new light.As we said initially, this worked well for five years until, just prior to J.S.'s senior year, the school district took away the accommodation for the running assistant. The school district offered only to have an aide sit in a chair and observe J.S. run -- J.S. was required to remain in visual distance of the seated aide. As you have likely gathered, this changed "accommodation" rendered J.S. unable to run in cross country since the very definition of cross country is long distance runs that would almost immediately take J.S. out of the visual perception of the aide. J.S.'s parent pleaded with the district to no avail. The district would not relent and J.S. lost the ability to participate in cross country. J.S. had previously ran a 7:20/mile pace.J.S. also needs this accommodation for track and field as there are distance runs throughout the town and because J.S. simply cannot process the coaches' instructions in the manner his typical peers can -- he needs more individualized instruction.J.S.'s parent decided that for the fast approaching track and field season she had no other option but to challenge the district legally. After hiring the Leigh Law Group we put all hands on deck to file a complaint in federal court in San Francisco and to prepare an application for a temporary restraining order requiring the district to implement the longstanding accommodation which allowed J.S. to participate in track and field. The Court, based on our filings, immediately required the district to respond as to why J.S. should not receive the accommodation. After the district's response, we filed a reply the next day and the Court entered a temporary restraining order requiring the accommodation and requiring further response from the school district. J.S. was immediately able to participate in track and field as his parent had identified a qualified assistant to run with J.S.The school district then offered to immediately settle the matter and to provide J.S. with the reasonable accommodation that allows him to meaningfully participate in track and field. Case closed.So, will history mark this moment? Hardly. Very few will notice or care about the result. But as we look back on our professional accomplishments and forward to those to come, we will have an indelible image of J.S. running alongside his peers, running through the streets of his town, running because he is just as good as anyone else at it. And that image will drive us to be better in all that we do too; to strive when the odds are against us; to realize that small victories for vulnerable members of our society can outweigh more traditional measures of success. To never stop running.Leigh Law Group is an education law, employment law and civil rights law firm based in California with offices in San Francisco, Marin County, the East Bay and Los Angeles. Leigh Law Group
In Daubert v. Lindsay Unified School District (9th Cir. - July 25, 2014) 1:09-cv-1463 GSA, the Ninth Circuit Court of Appeals affirmed the granting of the school district’s motion for summary judgment. Plaintiff claimed that the school football field public bleacher seating’s lack of wheelchair accessibility violated Title II of the Americans with Disabilities Act. In that instance, the bleachers were accessible only by stairs and the other viewing locations were not on the field.On appeal, the court held that the District did not have to structurally alter the bleachers to provide access. Since the bleachers were constructed before the ADA’s January 26, 1992 enactment date and was never reconstructed or altered, it constituted an “existing facility” under the ADA. As such, the District need only provide program access by “operating each service, program, or activity so that (. . .) when viewed in its entirety, (it) is readily accessible to and usable by individuals with disabilities.” (emphasis added)Importantly, the court interprets Title II as making a clear distinction between “facilities accessibility” and “program accessibility.” The District need only provide access to the program. Here, the public “program” being offered by the District is only the football game, which the bleachers are just part of the “facility” in which the program takes place.In Daubert, the District had three other specific locations from which persons using wheelchairs are able to watch the games. Daubert, however, challenged that the alternative locations relegated him to an “inferior view” of the field and denied him a particular social experience.The court, however, reiterated that the program offered is the football game, to which, the social experience is merely incidental to this program. Additionally, in this matter, it was undisputed that the views were unobstructed in at least three of the alternative locations.Citing the Supreme Court ruling in Tennessee v. Lane, 541 U.S. 509, 532 (2004), the court explained that “[i]n the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with Title II by adopting a variety of less costly measures . . ..” Structural changes in existing facilities are not required where other methods are effective in achieving compliance. [citing 28 C.F.R. Sec. 35.150(b)(1).] The Leigh Law Group is a law firm located in San Francisco and Marin County focused on education law, special education law, civil rights, employment law and business law.
Leigh Law Group, with co-counsel, files class action for refinery workers
Violations Alleged on Behalf of Thousands of EmployeesSan Francisco, California, September 10, 2014: A class action lawsuit filed on Wednesday accuses Timec Company, Inc. dba Transfield Services (“Timec”) of failing to pay basic minimum wages to workers who work as general laborers on refinery maintenance crews. The case was filed in the Northern District Court in San Francisco. The plaintiffs are Joseph Vierra and Kevin Woodruff, and the case is Joseph Vierra and Kevin Woodruff v. Timec Company, Inc. dba Transfield Services, Case Number: 4:14-cv-04105-KAW.The lawsuit alleges that Timec’s non-skilled “Field Employees” are sub-contracted out to various oil and gas refineries throughout the state of California, where they work alongside skilled maintenance workers as Safety Attendants, Laborers or General Helpers. The lawsuit further alleges that the Plaintiffs are required to “badge in” at their assigned refinery up to one hour before their shift “sign in” time in order to take internal transportation to the refinery location where they would be working, change into their safety gear, and, in some cases, participate in “safety talks” --- all of which activities took place before their shift “sign in” time and all of which were uncompensated.The proposed class includes thousands of current or former Timec Field Employees working in oil and gas refineries throughout the state of California.“Timec’s Field Employees work long hours in often uncomfortable and dangerous conditions. They deserve to be properly compensated for all their hours of work,” said John T. Mullan, a partner at Rudy, Exelrod, Zieff & Lowe, LLP, who is representing the Timec Field Employees with Jay Jambeck, of the Leigh Law Group. “The Field Employees often work twelve-hour shifts supporting the skilled refinery maintenance workers,” according to Jambeck. “It’s outrageous that Timec expects them to provide it with free labor on top of that.Vierra, 41, commented, “We all felt Timec’s practice of making us work off the clock was wrong. We hope that by finally standing up and fighting back, Timec will pay us what we think they owe us and we can put a stop to this once and for all.”The Plaintiffs are seeking unpaid minimum and overtime wages and other compensation on behalf of current and former Timec Field Employees throughout the state.Press Contacts
The Leigh Law Group is a San Francisco, California-based law firm with a commitment to helping employees protect their rights in the workplace. The Leigh Law Group has successfully litigated complaints nationwide and has extensive experience handling complex cases in state and federal court litigation.Rudy, Exelrod, Zieff & Lowe, LLP is a leading law firm in the field of wage and hour class actions and won the largest overtime verdict in United States history in Bell v. Farmers Insurance Exchange. The firm specializes in representing employees in individual and class action litigation.To obtain the Complaint, call Leah Wahlberg at (415) 434-9800.Timec/Transfield employees or former employees who would like to learn more about the case should visit www.rezlaw.com and click on “Class Actions” or contact John Mullan at (415) 394-5597, [email protected], or Jay Jambeck at (415) 399-9155, [email protected].
| Jay T. JambeckLEIGH LAW GROUP (https://www.leighlawgroup.com)870 Market Street, Suite 1157San Francisco, CA 94102Telephone: 415.399.9155John T. MullanRUDY, EXELROD, ZIEFF & LOWE, L.L.P.351 California Street, Suite 700San Francisco, CA 94104Telephone: 415.394.5597 |
Important things to know when hiring a special education attorney
We at the Leigh Law Group know hiring a special education attorney can be (wait,... is) daunting. You have to face trusting your child, that precious gift that changed your life more than any one single thing, to someone you only barely know. Here are some things you should know:1. Some attorneys have never taken a case to due process. They will talk tough at an IEP, or maybe take the case to mediation, but they will never take that extra step to convince districts who truly do not want to comply with the law that you are willing to fight.2. Some attorneys have never taken a case to the appeal process. Parent success before the California Office of Administrative Hearings is notoriously elusive (we are being nice here). The appeal from a due process proceeding is taking a case to federal or state court.3. Some attorneys have never taken a case to the Ninth Circuit Court of Appeals. Judges in state and federal court, the vast majority of which are well meaning, are both overburdened and lacking in specific training under the IDEA. Appealing to appeals court, or having an attorney who has done so, gives your case credibility in the trial courts and before the administrative hearing office.Leigh Law Group, special education, education and civil rights attorneys in the San Francisco Bay Area, have successfully taken special education cases to all of the above levels. We have prevailed in due process proceedings. We have settled cases in federal court obtaining substantial services for our clients' children even in the face of a loss at the due process level. We have argued and received favorable ruling from the Ninth Circuit Court of Appeals on cases which have made law for all families in California, even in the face of federal trial court judges telling our clients they had no case.Because we have taken cases to every level of the court systems (short of the Supreme Court of the United States), school districts know that we are in the case for the long haul, for the families we represent. We don't pass a case off when the going gets tough. We get tougher. We zealously advocate our clients' meritorious cases as long as our clients desire us to do so and as long as it is in our clients' interest to do so.We did an informal count recently, and realized that we have represented no less than eight other families of attorneys' children who have needed special education or education assistance. Those attorneys have uniformly recognized that our expertise and skill is unmatched. We also looked at how long some of our clients have been with us and found that some of our clients have been with us for 8 years or more - using our assistance when necessary to guide their children through their school career. We've seen students go from fourth or fifth grade through high school -- graduating when no one thought they would.Our experience allows us to work reasonably with school districts to obtain services to which your child is entitled. We have our own kids and care about kids. Let us guide you and your family through this difficult process and toward a result that your child deserves. One of dignity in a society that sometimes has to be reminded that the smallest, quietest, shyest, and most awkward can grow into a shining example of humanity.Leigh Law Group is a special education, education, civil rights, disabilities rights and business law firm in San Francisco and Marin Counties. We were established in 2004 by a daughter who is a former school teacher turned lawyer who aspires to be a singer/songwriter and teachers' son (mother and father) who aspires to do well by doing good.
Leigh Law Group partner Mandy Leigh argues case before 9th Circuit Court of Appeals
Leigh Law Group founder and partner Mandy Leigh recently argued before the United States Ninth Circuit Court of Appeals in a longstanding special education case raising issues of first impression in the Ninth Circuit.
Leigh Law Group notches win for federal employee
The Leigh Law Group, with offices in Marin and San Francisco, recently prevailed on a motion to adjudicate a Title VII race discrimination claim before the United States Equal Employment Opportunity Commission (EEOC). The case thereafter settled with a promotion for the affected employee along with compensation for leave hours utilized, back pay and attorneys' fees.The Leigh Law Group represents individuals, businesses and educational entities in the San Francisco Bay Area in the areas of employment, education, business and civil rights matters (including race, national origin, gender and disability discrimination).
Audio Taping the IEP: Know Your Rights
Preschool Children with Disabilities
On February 29, 2012 OSEP issued a guidance letter confirming that preschool aged children who qualify for special education under the the Individuals with Disabilities Education Act (IDEA) are entitled to placement in the Least Restrictive Environment (LRE).Preschool aged children are defined as 3 to 5 years old. Eligible preschool aged children are entitled to all the rights and protections guaranteed under the IDEA. These rights include but are not limited to placement in a preschool setting with typically developing peers. The IEP, a written document governed by the IDEA and most state special education laws, must be developed (in writing) and include an explanation to the extent, if any, to which the child will not participate with nondisabled children in the regular class.Before a child with a disability can be placed in a more restrictive environment outside of the general education classroom setting, the IEP team must consider whether supplementary aides and services could be provided that would enable the child to benefit form a general educational setting with non disabled peers.If a public school program is available, the local educational agency (LEA) may choose to offer appropriate placement and services in that program. However, if the LEA (usually the school district or some other public agency) does not offer a public preschool program, the LEA must explore all "alternative methods to ensure that the LRE requirements are met for that child". Some of these methods can include:1. Enrolling children in preschool programs operated by other public agencies2. Enrolling preschool children in private preschool programs with non disabled peers3. Providing for home based servicesThese services should be provided at no cost to the parents.The first step in determining eligibility is to notify your LEA in writing requesting an assessment for special education eligibility because you believe your child has a qualifying disability.This is not intended as legal advice. If you believe you require assistance in obtaining special education services, please contact the Leigh Law Group at 415-399-9155 or [email protected] to set up a free intake.
The Up's and Down's of an Employment Discrimination Case
The Second California Appellate District sitting in Los Angeles issued an opinion yesterday which discusses a host of issues in connection with an employment discrimination and retaliation case, not all of which will be touched upon here.In McCoy v. Pacific Maritime Association, the plaintiff, McCoy had worked for many years as a clerk at a port facility when she along with other co-workers filed a federal lawsuit for discrimination. That lawsuit was settled and as a result McCoy was promoted.In her new position, however, McCoy complained of retaliation due to the filing of the previous lawsuit, sexual harassment and related tort claims. She filed suit and prior to trial, the Defendants moved for summary judgment/adjudication, which is an attempt to resolve a case against a plaintiff prior to trial The Court granted summary adjudication as to all of McCoy's claims except for her retaliation claim based on the previous federal lawsuit. So at that point McCoy experienced the down slope of an adverse decision by a trial judge. But, she is left with her retaliation claim, so the case moves to trial.Prior to trial, the Defendants filed what are called motions in limine - motions that seek to categorically exclude certain items from being introduced into evidence. The Defendants won on all three motions and excluded evidence of racially derogatory remarks of a supervisor as evidence of retaliation; evidence that other employees had also been retaliated against as a result of the previous federal lawsuit; and evidence as to the claims which the court had summarily adjudicated. Again, McCoy's case is trending downward.Her attorney, likely frustrated with the adverse rulings, decided to push the envelope at trial by referencing matters which were excluded by the trial judge and by showing the jury an inflammatory photograph which had not been previously listed as evidence or shown to counsel for the Defendants.The attorney's aggressive gamble worked - at least fleetingly. The jury returned a verdict for McCoy of $660,000 in economic damages and $540,000 in emotional distress damages.After that decided upswing, the Plaintiff's celebration was short lived. The Defendants filed post-trial motions - another chance for a trial judge to apply the law to a case. The judge granted motions which allowed one of the defendants off the hook entirely, found that plaintiff had not presented sufficient evidence to prove her retaliation case and, for good measure, granted a new trial in the event an appellate court found sufficient evidence of retaliation. McCoy's $1 million+ award is erased with a pen stroke, and she is about as low as one can go in a case.McCoy then appeals and receives a mixed opinion from the appellate court. It breathes new life into her case by finding sufficient evidence of retaliation was presented but finds her attorney's "misconduct" in referring to excluded evidence and making other improper arguments justified a new trial.So, McCoy's remedy is to go through trial, again, with the same judge (most likely unless that judge retired or was reassigned), but without the inflammatory evidence presented in the first trial. Will the next jury be so moved to award her a large verdict? Time will tell.The lessons to be learned from McCoy's ups and downs are not that a person who has been discriminated against or retaliated against should refrain from proceeding to court if necessary to vindicate his or her rights. The lesson is proceed with realistic expectations of the justice system which involves the interplay between laws which are intended to be predictably applied and discretion of a judge and a jury which are subject to the human condition of varied opinion and judgment which can lead to unpredictability. An attorney's role is to navigate that zone of uncertainty and to convince the judge and the jury of the merit of the client's cause.The Leigh Law Group is a law firm, based out of San Francisco and Marin County, comprised of attorneys striving to litigate cases in the education law (higher education, special education and general education), employment law, civil rights and business litigation arenas in a way that does does justice to a client's cause and does not subject clients to unwarranted uncertainty. That method requires attention to the client's individual circumstances but also to the realities - to the strengths and weaknesses - of our judicial system. Contact:Leigh Law Group870 Market StreetSuite 1157San Francisco, CA 94102415-399-9155
Ninth Circuit Clarifies Title IX Gender-Related Retaliation Framework
In Emeldi v. University of Oregon, 2012 U.S. App. LEXIS 5864 (9th Cir. 2012), the Ninth Circuit Court of Appeals issued a decision which applies the analytical framework from retaliation claims under Title VII to gender-related retaliation under Title IX. Full text of the opinion can be found here: http://www.ca9.uscourts.gov/datastore/opinions/2012/03/21/10-35551.pdfEmeldi was a doctoral student in the University of Oregon's College of Education, Department of Special Education. While a student at UO, Emeldi complained of gender-based discrimination in the form of insufficient support for female students and a lack of female role models in the Special Education department.In addition, Emeldi submitted evidence that her dissertation chair treated her less favorably than male students. As a result, Emeldi's relationship with her dissertation chair soured and she eventually complained to a pair of UO administrators about the disparate treatment she suffered. After making the complaint, Emeldi's dissertation chair resigned, and according to Emeldi, recommended that Emeldi not be allowed to complete the Ph.D. program but instead complete a less-prestigious Ed.D. program.Emeldi then sought a new dissertation chair, but presented evidence that she was unable to find a replacement. Emeldi eventually abandoned pursuit of her Ph.D., effectively withdrawing from the program.On review of a grant of summary judgment to UO, the Ninth Circuit acknowledged that Title IX bars gender-based discrimination from federally funded educational institutions and that retaliation against a person who has complained of sex discrimination is a form of gender-based discrimination prohibited by Title IX.The Court then went on to set forth the standard, for the first time in the Ninth Circuit, that a plaintiff must prove in order to prevail under a Title IX retaliation claim. The Court joined its "sister circuits" - the First and Second Circuits - in holding that the framework of Title VII retaliation analysis is applicable to Title IX gender retaliation claims.In order for a plaintiff to prevail under this analysis, a plaintiff must first make out a prima facie case (Latin term lawyers like to use meaning "at first blush" or "at first appearance") of gender retaliation by showing: (a) that he or she was engaged in protected activity, (b) that he or she suffered an adverse action, and (c) that there was a causal link between the two. This initial burden on the plaintiff is minimal and need not "even rise to the level of preponderance of the evidence."If plaintiff carries the minimal burden of establishing a prima facie case, then the defendant must articulate a legitimate, non-retaliatory reason for the challenged action.Plaintiff then must submit evidence to establish that the legitimate, non-retaliatory reason set forth by the defendant is pretextual - in other words - that a discriminatory reason more likely motivated the defendant rather than the nondiscriminatory reason set forth by the defendant. The Court acknowledged that oftentimes substantial overlap will exist between the evidence presented to establish a prima facie case of discrimination and the showing required for establishing pretext.The Court then analyzed whether Emeldi satisfied her burden of establishing a prima facie case. The Court found, viewing the evidence in a light most favorable to Emeldi as required for ruling on a motion for summary judgment, that "Title IX empowers a woman student to complain, without fear of retaliation, that the educational establishment treats women unequally." Emeldi presented evidence of making such complaints and therefore she had engaged in protected conduct - the first prong of a prima facie case.Next, the Court found that Emeldi suffered adverse action, the second prong, because under the circumstances of this case she justifiably withdrew from the program when she was unable to secure a replacement dissertation chair.As for the third prong, a causal link between the adverse action and the protected act, the Court found that, at the prima facie stage, the causal requirement is construed broadly so that a plaintiff must show that the protected activity and the adverse action are not "completely unrelated." Emeldi was able to show causal connection in three ways: (1) establishing temporal connection between her complaint and her dissertation chair's resignation; (2) showing that her dissertation chair had in fact been informed of her complaints of gender discrimination; (3) submitting evidence that her dissertation chair had exhibited gender-based animus in other contexts.UO then submitted evidence to establish that Emeldi was unwilling to follow the research advice of her dissertation chair leading to his resignation.Emeldi responded with evidence of pretext. The Court found that the same evidence which established the prima facie case of discrimination, when considered in its totality, also served to establish evidence of pretext.As a result, the Court reversed the decision of the trial court granting UO summary judgment. It should be noted that the Court acknowledged that UO presented substantial evidence which could lead a reasonable jury to find against Emeldi at trial, including various accounts that contradicted her version of events, but that for purposes of summary judgment, Emeldi had set forth genuine issues of material fact preventing entry of summary judgment before trial.The Emeldi case is helpful in clarifying the analysis under which gender-based retaliation claims in the Title IX context are to be decided in courts subject to the Ninth Circuit's jurisdiction.
