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An organization funded by the U.S. government to advocate for the rights of persons with disabilities is the defendant in a disability discrimination suit filed recently by one of its former employees. Dian Cox alleges in her complaint in Cox v. Advocacy Inc., filed on Nov. 17 in the U.S. District Court for the Western District in Austin, that the “threatening and harassing behavior” of Advocacy representatives and the organization’s “utter failure” to make a serious effort to accommodate her psychiatric disabilities forced her to leave her job with the organization in May 2000 — allegations that Advocacy denies. “This action by Advocacy Inc. illustrates the failure of this organization to protect its own employees with psychological disabilities from unfair employment practices and represents a failure of the group to carry out its own mission,” alleges Christopher J. McKinney, who represents Cox. Advocacy’s 2002 annual report shows that the bulk of the organization’s funding is provided by the federal government under the Developmental Disabilities Assistance and Bill of Rights Act, the Protection and Advocacy for Individuals With Mental Illness Act and other federal statutes. McKinney, a labor and employment shareholder in San Antonio’s McKinney & Webster, says he typically sues private employers for alleged discriminatory practices. This is the first time he has filed a suit against an organization that advocates for persons with disabilities, McKinney says. “I wish I hadn’t had to this time,” he says. Cox alleges in her original complaint that in 1998, after a decade on Advocacy’s staff, her psychiatric illness caused her to take an extended leave from her job assisting mental health consumers with their rights, self-advocacy skills and other training. She has been diagnosed over a period of time as suffering from major depression, bipolar disorder, obsessive-compulsive disorder and attention deficit hyperactivity disorder, according to her complaint. Cox further alleges in the complaint that when she returned to work in September 1999, Advocacy officials offered her a part-time position on a probationary basis, although her previous full-time position had not been filled, and removed her from various teams that made management and policy decisions for the organization. Advocacy officials told her that she could return to her full-time position in January 2000 if she performed adequately, Cox alleges in the complaint. In her complaint, Cox also alleges that Advocacy set a rigid start time for her, even though the organization’s practice had been to allow flexibility in the work schedules of its professional employees. As alleged in the complaint, requiring an exact time for them to arrive at work creates significant distress for persons with psychiatric illnesses because they experience difficulties in the morning due to their medication regimen and other factors. Cox alleges in the complaint that on May 31, 2000 — after many months of trying to set up a meeting with Advocacy officials to discuss reinstatement to her full-time position — then-executive director James Comstock-Galagan refused to reinstate her to the full-time position and offered her a choice between a contract position that would provide no health benefits or continuing as a part-time employee, which would result in the loss of her Social Security Disability Income payments. Cox also alleges that Comstock-Galagan “took this final opportunity to again threaten” her, stating that if she opted to stay on as a part-time employee, she would be subject to termination if she were even one minute late for work. McKinney contends that Advocacy constructively discharged Cox because she could not afford to continue working part time or accept a contract position that would not provide her with health insurance. TWO-HOUR WINDOW? Comstock-Galagan, now an attorney with the Southern Disability Law Center in Mississippi, issued a written statement in which he denies the allegations of discrimination raised in the suit. “I myself am a person with a disability. I’m also an attorney. I have spent my life and legal career understanding and fighting the injustice of discrimination against persons with disabilities,” Comstock-Galagan says in the statement. Mary Faithfull, Advocacy’s current executive director, contends that Cox was treated fairly during her employment with the organization and was provided a number of accommodations to help her perform her duties. “Based on the facts we know, [Advocacy] complied with the Americans With Disabilities Act and provided accommodations for Ms. Cox well above the requirements of the statute,” says Laura Merritt, Advocacy’s attorney. Merritt, an associate with Bracewell & Patterson in Austin, says to accommodate Cox, Advocacy established a two-hour window around Cox’s starting time — which was 10 a.m. — during which she was supposed to arrive for work. She says Advocacy will file a motion to dismiss the suit. The case was assigned to U.S. District Judge Sam Sparks, who previously in another case ordered the board of a mental health and mental retardation center to modify its meeting time to accommodate the needs of people with mental illnesses. In 1994, Sparks presided over Dees v. Austin Travis County Mental Health and Mental Retardation, in which Advocacy and a woman diagnosed with various mental illnesses successfully challenged the MHMR board’s 8 a.m. meeting time. Sparks found that moving the board meeting to 9 a.m. or later “is a reasonable accommodation, under the ADA, to avoid discrimination against individuals with mental disabilities. “ Cox has cleared the first hurdle in her case. On Aug. 22, the U.S. Equal Employment Opportunity Commission issued a determination that there is “reasonable cause” that Cox was discriminated against because of her disability, in that she was not granted a reasonable accommodation in her arrival time. The commission also said in the determination, signed by Pedro Esquivel, EEOC district director in San Antonio, that Cox was constructively discharged. Merritt says the Texas Commission on Human Rights found that Advocacy did not discriminate against Cox. But McKinney says the Commission on Human Rights made only a tentative determination. A spokesman for the Commission on Human Rights declines comment on Cox’s case. The commission cannot make determinations public. Cox alleges in the complaint in Cox v. Advocacy Inc. that Advocacy discriminated against her as an individual with a disability with regard to the terms of her employment, failed to make reasonable accommodations for her mental limitations and harassed her because of her disability. She is seeking an unspecified amount of actual and punitive damages. ESSENTIAL FUNCTIONS Prevailing in the suit may be difficult, say two legal scholars who teach labor and employment law. Jane Dolkart, an associate professor at Southern Methodist University Dedman School of Law, says Cox has to prove that she is a qualified individual with a disability who, with or without reasonable accommodations, can perform the essential functions of the job. “Over 90 percent of the disability cases lose on that ground,” says Dolkart, formerly an executive assistant and legal counsel to the chairman of the EEOC. Dolkart says an employer can challenge whether an individual can perform the essential functions of the job. Under 42 U.S.C. � 12111(8), consideration is given to what an employer says are the essential functions, and a written description of the job functions prepared prior to employing an individual can be presented as evidence, she says. Richard Carlson, a South Texas College of Law professor, says a key issue is whether an employer has violated its duty to provide reasonable accommodations. An employer can argue that the accommodations proposed by the employee are not reasonable or would be an undue burden on the employer, Carlson says. The case law is slim with regard to determining what constitutes an undue burden in providing flexible work scheduling for employees, he says. Dolkart says that to prevail on her discrimination claim, Cox must show she was qualified for the job but was treated differently than other employees, but the employer can argue that a nondiscriminatory reason accounts for the difference in treatment. The employee then must show that the nondiscriminatory reason is “a pretext for discrimination,” she says.

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