Leigh Law Group obtains temporary restraining order for a young autistic man to run track

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

 

 

Leigh Law Group opens East Bay office in Walnut Creek

Leigh Law Group, P.C. is pleased to announce that we have opened an office in the East Bay – 1020 Oakland Avenue, Suite 350, Walnut Creek 94596 in order to better serve our East Bay clients.  The office will be primarily staffed with an advocate but clients located in the East Bay may arrange to meet with any of the Leigh Law Group’s attorneys at the Walnut Creek office.  We look forward to meeting clients at this convenient East Bay location.

 

Leigh Law Group, P.C. is a special education, general education, employment and civil rights law firm located in the San Francisco Bay Area, with offices in San Francisco, Sausalito, and Walnut Creek (Los Angeles office opening soon).

http://www.leighlawgroup.com/

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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 Employees

San 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        

Jay T. Jambeck LEIGH LAW GROUP (http://www.leighlawgroup.com) 870 Market Street, Suite 1157 San Francisco, CA 94102 Telephone:       415.399.9155 John T. Mullan RUDY, EXELROD, ZIEFF & LOWE, L.L.P. 351 California Street, Suite 700 San Francisco, CA 94104 Telephone: 415.394.5597

  

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, jtm@rezlaw.com, or Jay Jambeck at (415) 399-9155, jjambeck@leighlawgroup.com.

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.

Any appearance before a Ninth Circuit panel is of course a privilege but more so in this case due to the participation of the United States Department of Justice who argued in favor of an interpretation of the Individuals with Disabilities in Education Act (IDEA) urged by Ms. Leigh.

The issue of first impression revolved around the interpretation of whether an auditory processing disorder constituted an “other health impairment” for purposes of IDEA eligibility.  Leigh Law Group consistently argued that point in district court proceeding in the case stretching over 8 years.  The history of the case is well articulated by a previous Ninth Circuit opinion in the case here.

The United States Department of Education, the agency charged with interpretation of the IDEA regulations regarding categories of eligibility, concurred and its interpretation of the regulations is entitled to “Chevron” deference, a standard derived from the United States Supreme Court case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 ( 1984).  Chevron deference means that the agency’s interpretation will be deferred to so long as it is a permissible one.  Here, the interpretation that an auditory processing disorder may constitute an other health impairment appears to be a permissible interpretation of the IDEA.

Ms. Leigh then zealously advocated for her client’s eligibility at the time in question, due to his chronic auditory processing disorder which adversely impacted his education, in response to questioning from the panel of judges.  Regardless of the ultimate result, this case will help define the contours of the IDEA for educators, parents, the judiciary and administrative bodies and legal representatives in the States of California, Washington, Oregon, Idaho, Montana,  Nevada, Arizona and Hawaii and Alaska.

Leigh Law Group considers it an honor to participate in the shaping of law and the process of resolving disputes.  Only from fidelity to legal precepts and principles can an orderly society maintain. Leigh Law Group is a California law firm located in San Francisco and Marin counties practicing in the areas of special education law, education law, higher education law, employment law, business litigation and civil rights litigation.

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

Audio Record the IEP Meeting.

While the IDEA, the federal laws protecting special education rights, doesn’t specifically mention audio recording, California law does allow audio recording of an IEP.  Each state may have its own laws related to IEP audio recording.

Know that in California at least, you can audio record an IEP if you give the school district advance notice (at least 24 hours notice in writing).  This can be helpful if you are nervous about getting accurate notes of the meeting and if you want to create a record of what was actually said.  It also can be helpful later on if you get into a dispute with the district.  If you audio record the IEP, the District can also audio record.

Audio recording is allowed in California.

California Education Code §56341.1.(g) states:

(1) Notwithstanding Section 632 of the Penal Code, the parent or guardian or local educational agency shall have the right to record electronically the proceedings of individualized education program team meetings on an audiotape recorder. The parent or guardian or local educational agency shall notify the members of the individualized education program team of his, her, or its intent to record a meeting at least 24 hours prior to the meeting. If the local educational agency initiates the notice of intent to audiotape record a meeting and the parent or guardian objects or refuses to attend the meeting because it will be tape recorded, the meeting shall not be recorded on an audiotape recorder.

The audio recording provisions of the Education Code incorporation provisions of federal law. The code  protects the audio recordings under the Family Educational Rights and Privacy Act specifically incorporating confidentiality provisions from the Act. Any recording of an IEP that is maintained by the school as an education record requires the school district to apply the protections of the Family Educational Right to Privacy Act.

Additionally, pursuant to the Family Education Rights And Privacy Act, the Education Code states that with respect to the audio recording of the IEP meetings, parents have the following rights:

   (i) Inspect and review the audio recordings.

   (ii) Request that the audio recordings be amended if the parent or guardian believes that they contain information that is inaccurate, misleading, or in violation of the rights of privacy or other rights of the individual with exceptional needs.

 

Moreover, to the extent that a school district has a policy about audio recording the IEP, that policy may not be more restrictive than the rights to audio record pursuant to state law and that policy must provide for exceptions to the extent that the audio recording is necessary to comply with the parents right to understand the IEP and make informed decision about the IEP and the IEP process.

 

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 agencies

2. Enrolling preschool children in private preschool programs with non disabled peers

3. Providing for home based services

These 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 help@leighlawgroup.com 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 Group

870 Market Street

Suite 1157

San Francisco, CA 94102

415-399-9155