State of West Virginia ex rel. K.M. et al v. West Virginia Division of Health and Human Resources, No. 020165 (Supreme Court of Appeals of West Virginia) (Petition for Writ of Mandamus, March 19, 2002).

            This petition for a writ of mandamus is brought on behalf of a class of West Virginia families who have been or will shortly be terminated from TANF cash assistance under the West Virginia Works program because of the 60-month time limit on benefits. The petition alleges that the 60- month limit violates provisions of the state constitution requiring state-provided subsistence necessary for survival and basic well-being; that since such subsistence is an indispensable condition for the petitioner children to realize their fundamental right to an adequate education guaranteed by the state constitution, the termination of aid violates petitioners’ constitutional rights to adequate education; that terminating petitioners’ cash assistance violates their right to equal protection; that termination without adequate notice and opportunity to be heard violates their due process rights; and that even if a time limit is permissible, the policies providing for a one-time extension of up to 6 months are invalid in various respects either on their face or as applied. The petition seeks an order to show cause and a temporary stay. On April 17, 2002 the Court voted 4-1 to order the state to show cause and referred the matter to a special master. A fact-finding hearing is expected in May. A number of amicus briefs were submitted on behalf of the petitioners, including one submitted by the Welfare Law Center on behalf of the Southern Appalachian Labor School. In addition, the West Virginia Attorney General submitted an amicus brief with background on the West Virginia Constitution and the Court’s jurisprudence which it described as evidencing “a firm commitment to the rights, protections and welfare of children.”

Petitioners’ attorney: Larry Harless, Route #2, Box 186C, Cottageville, WV 25239. For information contact Marc Cohan, Rebecca Scharf or Gina Mannix at the Welfare Law Center.

Colon v. City of New York, et al., 01 Civil 8787 (LTS) (District Court of the Southern District of New York) (Decision on Defendant’s Motion to Dismiss, March 11, 2002).

            In this case the District Court for the Southern District of New York held that workfare workers are not entitled to protection against workplace discrimination under Title VII of the Civil Rights Act because they are not “employees” for purposes of the Act. The plaintiff, a workfare participant in New York City, had been subjected to a hostile work environment and quid pro quo sexual harassment by her supervisor at her workfare assignment. In September 2001 she filed a complaint under Title VII against the City of New York, the Commissioner of the Human Resources Administration and the individual supervisor. In January 2002, her case was consolidated with a Title VII action filed by the U.S. Attorney’s office on behalf of five workfare participants who had likewise faced workplace discrimination.

            The court rejected plaintiffs’ claim that they were covered employees for two reasons. First, the court held that the plaintiffs “fail[ed] to make allowances for the prerequisite to the application of the common law agency test, which is whether the working individual was actually hired by the defendant.” Specifically, the court found that the fact that the plaintiffs were assigned to their worksites rather than hired by the supervising agencies was fatal to their Title VII claims.

            Second, the court held that a worker is a covered employee only if she receives direct or indirect remuneration from the alleged employer. Because the court found that the plaintiffs did not receive wages or employment benefits such as such as health insurance, sick leave, disability pension, survivors’ benefits or group life insurance, they did not receive any economic remuneration by the Defendants. Rather, the court found that every benefit the plaintiffs received resulted from their status as welfare recipients.

            Plaintiff’s counsel have filed a notice of appeal to the Second Circuit Court of Appeals.

Plaintiff’s attorneys: Martha Davis, Yolanda Wu, Timothy Casey, Liz Gonchar Hempstead, NOW Legal Defense and Education Fund, 395 Hudson Street, New York, NY 10014, (212) 925-6637; Marc Cohan, Anne Pearson, Welfare Law Center 275 7th Ave., #1205, New York, NY 10001, (212) 633-6967.

ADA Complaint against Oregon Dept. of Human Services filed by Legal Services of Oregon with HHS Office of Civil Rights (October, 2001).

            Legal Aid Services of Oregon has filed a complaint with the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services against the Oregon Department of Human Services under the Americans with Disabilities Act. The complaint was filed on behalf of eight applicants or participants of Oregon’s TANF program, all of whom have physical or mental disabilities.

            The complaint alleges that each complainant requested a reasonable modification of his or her employment plan on the basis of disability, that these reasonable modifications were denied, and the complainants were improperly disqualified from benefits as a result. The complaint also alleges that complainants felt threatened, harassed and experienced retaliation on the basis of their disabilities.

            The complaint seeks ADA compliance by the Oregon welfare agency so that reasonable modifications are provided in employment plans, and mechanisms to ensure future ADA compliance, including: notice to clients of their right to reasonable modifications in employment plans; a formal procedure for requesting these modifications; staff training on the ADA and Section 504; reasonable modifications in the welfare work program; staffing or partnering welfare offices with nurses and mental health therapists with expertise in vocational rehabilitation; independent review of reasonable modification requests by staff or contractors skilled in disabilities and vocational rehabilitation; written notice of denials of reasonable modification requests and the right to a hearing to appeal the decision at a hearing and to file a complaint with OCR; oversight mechanisms; and a full assessment of all clients who have been disqualified from benefits to determine whether they were denied reasonable modifications. Complainants also seek an order that the Oregon welfare agency cease discriminating against complainants, grant reasonable modification requests and remove any inappropriate disqualifications from the TANF program, and reimbursement for costs.

            A copy of the complaint, with the facts of the individual complainants redacted, will be posted on the Welfare Law Center web site (www.welfarelaw.org). For further information, contact Paul Alig at Legal Aid Services of Oregon, paul.alig@lasoregon.org.

Complainants’ attorneys: Paul Alig, Julia Greenfield, Legal Aid Services of Oregon, 700 SW Taylor, Suite 300, Portland, OR 97205, (503) 471-1134; Lorey Freeman, Oregon Law Center, Portland Office, 813 SW Alder St., Suite 500, Portland Oregon, 97205, (503) 295-2760; Linda Ziskin, Legal Aid Services of Oregon, 230 NE 2nd Avenue, Suite A, Hillsboro, Oregon, 97124-3001, (503) 648-7163; Kit Morgan, Legal Aid Services of Oregon, P.O. Box 1327, Pendleton, OR 97801-0260.

Complaint to HHS OCR by ACLU- Wisconsin Foundation and NAACP Milwaukee re Wisconsin Works, (Feb. 18, 2002).

            The ACLU of Wisconsin Foundation and the Milwaukee branch of the NAACP have filed a complaint with the Office for Civil Rights (“OCR”) of the U.S. Department of Health and Human Services under the Americans with Disabilities Act and Title VI of the Civil Rights Act. The complaint alleges that W-2, Wisconsin’s welfare-to-work program, discriminates against individuals with disabilities by failing to conduct adequate disability screening and assessment; failing to conduct a diagnostic review of its programs to determine the changes necessary to provide equal access to people with disabilities; using notices that people with learning and cognitive disabilities cannot understand; failing to accommodate people with disabilities at job assignments; sanctioning individuals who have not received adequate screening and assessment without any pre-sanction review; denying extensions of time limits to many individuals with disabilities; and numerous other ADA violations. The complaint also alleges that the tiered structure of the W-2 program is discriminatory because it provides lower levels of benefits to those in the tier to which most people with disabilities are assigned. The complaint alleges that the program is racially discriminatory because African American and Latino participants were granted extensions of benefits less often than Caucasian participants.

            Complainants seek a number of remedies, including: requiring agencies to offer disability screening before they are diverted; providing meaningful assessments; requiring mandatory reassessments; resetting the time clocks of individuals whose disabilities were not screened, assessed, or accommodated; requiring the State and local agencies to do a diagnostic review of their programs; revising notices and verification procedures; drafting assignments that are consistent with assessment results; and raising the benefit levels in the tier serving the majority of individuals with disabilities. The complaint also seeks a review of the cases of all racial minorities denied benefits extensions and a review of racial disparities in other aspects of the W-2 program. The complaint seeks other forms of relief, including a public outreach campaign, revised regulations and continuing oversight by OCR. The complaint is available on the WLC website.

Complainants’ attorneys: Karyn L. Rotker, Poverty, Race and Civil Liberties Project,

ACLU-WI, 207 E Buffalo, Suite 325, Milwaukee WI 53202 (414) 272-4032; and Jerry Ann Hamilton, Milwaukee Branch, NAACP, 3500 N. 26th Street, Milwaukee, WI 53202.

Legal Action of Wisconsin et. al. Discrimination Complaint filed with HHS OCR , (Feb. 2, 2002).

            This civil rights complaint was filed by Legal Action of Wisconsin against the Wisconsin Department of Workforce Development, which administers W-2, the Wisconsin TANF program, and four private contract agencies operating the program. The complaint was filed with the Office for Civil Rights of the U.S. Department of Health and Human Services, and raises claims under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, both of which prohibit discrimination against people with disabilities. Complainants are Legal Action of Wisconsin and several low-income families.

            The complaint alleges that respondents have failed to provide disability screening and assessment to program participants, failed to take disabilities into account in employability plans, failed to provide accommodations for participants with disabilities at W-2 assignments, sanctioned individuals with disabilities for non-compliance with program requirements when their disabilities were not assessed and accommodated by the program, sanctioned and denied benefit extensions to people with disabilities who did not comply with program requirements for reasons related to their disabilities, failed to provide individualized treatment to individuals with disabilities, and failed to provide extensions of benefits and reasonable modifications to individuals with disabilities who are unable to provide completed medical forms through no fault of their own. The complaint also alleges that respondents failed to provide reasonable modifications for program participants caring for family members with disabilities and requiring these individuals to work full-time, and failed to develop specialized education and training to individuals with mental impairments and learning disabilities, as well as several additional issues.

Complainants’ Attorneys: Patricia DeLessio, Legal Action of Wisconsin, Inc., 230 West Wells Street, Room 800, Milwaukee, Wisconsin, 53202; tel. (414) 278-7722; Anne DeLeo, 2401 North Mayfair Road, Suite 210, Milwaukee, Wisconsin, 53226; tel. (414) 476-1015.

Roberson v. Giuliani, 99 Civ. 10900 (DLC)(Feb. 2002).

            At issue was whether plaintiffs were prevailing parties under 42 U.S.C. §1988 based on the Court’s retention of jurisdiction over enforcement of the settlement agreement. The court denied fees, holding that plaintiffs were not prevailing parties under the 2001 Supreme Court decision in Buckhannon because its retention of jurisdiction was not sufficient judicial approval and oversight for such a finding.

            The parties had entered into a settlement agreement in this lawsuit challenging certain aspects of the Eligibility Verification Review (EVR) system for Food Stamps and public assistance under which the defendant agreed to take various undertakings and the plaintiffs agreed to the dismissal of all their outstanding claims. The court subsequently “so ordered” a Stipulation and Order of Discontinuance which acknowledged that the parties had entered into a settlement agreement and that the court would retain jurisdiction for enforcement purposes. Although the court was provided with a copy of the Agreement, the Agreement itself was neither filed with or “so ordered” by the court.

            The court applied Buckhannon Bd. & Care Home, Inc v. W. Va. Dep’t of Health & Human Res., 149 L.Ed. 2d 855, 121 S. Ct. 1835 (2001), where the Supreme Court rejected the “catalyst theory” as a basis of determining whether a party should be deemed a prevailing party for purposes of attorney’s fees. The Supreme Court held that settlement agreements enforced through a consent decree may serve as a the basis for an award of attorney’s fees even though they do not always include an admission of liability. The court-ordered consent decree creates the ‘material alteration of the legal relationship’ of the parties that is necessary to permit an award of attorney’s fees.

            The court in Roberson distinguished the circumstances in Buckhannon from those in this case where there was neither an enforceable judgment on the merits nor a court-ordered decree. It concluded that this case involved a private settlement agreement involving an agreement by the defendants to take certain actions and agreements by the parties and the court that the agreement can be enforced in court. The court contrasted the level of judicial supervision and oversight in this case with that in a case resolved through a consent decree which can be enforced through contempt. It concluded that simply retaining jurisdiction to enforce the Agreement does not constitute a judicial sanctioning of the alteration of the parties’ legal relationship that is necessary for plaintiffs to be a prevailing party under Buckhannon.

Plaintiffs’ attorneys: Randal S. Jeffrey, Constance P. Carden, Yisroel Schulman, of the New York Legal Assistance Group, 130 East 59th Street, New York, NY 10022, tel. 212-750-0800.

Avila v. Biedess, (Pima County Superior Court, Arizona, Feb. 2002) (Complaint).

            This lawsuit, filed on behalf of an immigrant couple who have been legally residing in Arizona since 1999, challenges the constitutionality of a state statute that prohibits the Arizona Health Care Cost Containment System (AHCCCS) from providing non-emergency health care benefits to otherwise eligible legal permanent residents who have not resided in the United States for at least five years. It alleges that AHCCCS’s exclusionary policy violates the equal protection of the law guaranteed to all persons, including legal permanent residents, under both the Arizona and Unites States Constitutions. The lawsuit also alleges that the state violated the plaintiffs’ right to due process under both Arizona and United States Constitutions for not providing plaintiffs with proper notice of its decision that it will stop paying for health care benefits. It also challenges a recent change in policy which provides that outpatient kidney dialysis and chemotherapy are no longer considered as “emergency medical services.” Plaintiffs seek declaratory and injunctive relief requiring the state to declare them eligible for full AHCCCS coverage and to restore their health care benefits under the appropriate AHCCCS program.

Plaintiffs’ Attorneys: Thomas Berning, William E. Morris Institute for Justice, 100 N.Stone Avenue, Ste 305, Tucson, AZ 85701, tel. 520-740-1207; Lydia Glasson, Southern Arizona Legal Aid, Inc., 64 E Broadway Blvd., Tucson, AZ 85701, tel. 520-623-9465.

In re C.S. (Ohio Department of Job and Family Services, October 22, 2001).

            The administrative appeal examiner held that the county’s proposed sanction against the appellant should be withdrawn because the county failed to amend the appellant’s self-sufficiency contract and plan to include the work activities with which the appellant was supposed to comply. The appellant’s self-sufficiency plan required her to undergo an assessment, which she did. The assessment results recommended that she attend mental health counseling. She refused to attend the counseling, and was then given an option of attending counseling or participating in the work experience program (WEP). Neither assignment was added to the appellant’s self-sufficiency plan or contract. The county proposed to sanction the appellant for noncompliance, but because neither assignment was added to her self-sufficiency plan or contract, the administrative appeal examiner held that the sanction must be withdrawn.

Appellant’s representative: Julie Honican, Legal Aid Society of Dayton.

In re L.F., (Department of Job and Family Services, September 4, 2001).

            The hearing officer held that the appellant’s failure to contact her caseworker for absences from her work assignment was insufficient to support a sanction because the county’s Ohio Works First good cause policy did not include any provisions regarding reporting absences from work assignments or verification of good cause. The appellant missed several days of her work assignment due to personal illness, and missed two additional days due to illness of her child and participation in a day care outing as a parent volunteer. The county proposed a sanction when it received the employer response form listing the appellant’s absences and had not received telephone calls on each of the days from the appellant. The appellant testified, however, that she informed her work assignment supervisor of each day’s absence. The appellant also presented evidence at the hearing of a recurring back injury, and the county responded that it needed a doctor’s statement for each day missed, which the appellant did not have. The hearing officer held that the sanction should be withdrawn because the appellant demonstrated good cause for each absence, and because the county’s good cause plan was “sufficiently vague” on specific reasons for good cause, verification requirements for good cause and time frames to report of establish good cause.

Appellant’s representative: Roger Lee, Western Ohio Legal Services Association-Xenia.

The two items above were reprinted from OSLSA Reports, Volume 24, No. 2, February 2002.