Disability Rights Objection to Washington Nationals' Face Mask Mandate Can Go Forward

So holds a district court, allowing a damages claim under D.C. law for the Nationals' refusing to exempt from the mandate a man who alleged "that he had a medical condition and, because of it, could not wear a mask."

From Valentine v. Washington Nationals Baseball Club, LLC, decided today by Judge Timothy Kelly (D.D.C.), the plaintiff's allegations:

On May 5, 2021, Valentine visited the [Washington Nationals stadium] to attend a game. At that time, to comply with District of Columbia Mayor's Order 2020-080 related to COVID-19, Defendants enforced a mask mandate on all attendees. One exemption in the Mayor's Order, however, provides: "Wearing a mask is not required when … [a] person is unable to wear a mask due to a medical condition or disability."

Valentine did not wear a mask at the game because, he alleges, he "is a person with a disability within the meaning of the ADA [Americans with Disabilities Act] and DCHRA [D.C. Human Rights Act]" and is "unable to wear a mask due to his disability." But Nationals Park personnel allegedly "demanded" he wear one several times. During each confrontation, he responded that he had a medical condition and, because of it, could not wear a mask. Valentine declined to disclose the nature of his medical condition when asked. The Nationals' Vice President of Safety and Security eventually told Valentine that, unless he wore a face mask or face shield, he would be ejected. Valentine alleges the Vice President "did not offer any reasonable accommodation."

Ultimately, Defendants ejected Valentine.

Valentine alleges that afterward, he felt "embarrassment and humiliation" for being "treated like a criminal and kicked out of a baseball game because of his disability." He tried to resolve his grievances without resorting to a lawsuit. Defendants responded by inviting Valentine to come back to Nationals Park for "a game of [his] choosing" at "any time" during the 2021 regular season and assured him that his experience on May was "a one-time occurrence." Valentine also alleges that "there is currently no mask mandate in place at Nationals Park."

Evidently, the Nationals' proposed resolution proved unsatisfactory and so Valentine, representing himself, sued Defendants for three counts under the ADA and one under the DCHRA.

The court dismissed the ADA suit, because the remedies under the ADA "do not include money damages," and injunctive or declaratory relief would be unavailable because he "[n]either suffered an 'ongoing injury' [n]or faced an 'immediate threat of injury," given that "Defendants [have] ended the challenged mask mandate policy." But it allowed the DCHRA claim to go forward, because Valentine had adequately alleged, in his court papers, "the nature of his alleged disability and why that disability prevents him from wearing face masks" and even "face shield[s]." (The exact details of the alleged disability were filed under seal, and are thus currently available only to the court and the parties, but the court found them to be adequately alleged.)

Comments

[Jett's Pop]

Interesting, but the court never explains why it is exercising supplemental jurisdiction over the DCHRA claim which, given that the federal claim is being dismissed at the outset, seems unusual.

[Dr. Ed 2]

Isn't DC a Federal District? Hence what other court would have jurisdiction over the DCHRA -- or ANY DC ordinance or law?

[Calliope]

DC has courts.

[Dr. Ed 2]

"(The exact details of the alleged disability were filed under seal, and are thus currently available only to the court and the parties, but the court found them to be adequately alleged.)"

This is a big -- and growing -- issue in higher education where IHEs increasingly are demanding extensive personal medical records (not just documentation of the disability but medical files) and it's being done to discourage ADA compliance.

I like the idea of "under seal" -- what a lot of people don't realize is that HIPPA does not apply to students at an academic institution, and once the disability office gets access to a file, they can then forward it to damn near anyone they want to. And often do.

[Ken Arromdee]

I think, though, that it's going to be hard for a venue to decide that someone should be given extra consideration because of their disability, if the person with the disability doesn't tell them what it is. (and if there's no such thing as an official disability card.) Otherwise you'll get people claiming fake disabilities with no way to prove they're faking.

[David Nieporent]

what a lot of people don’t realize is that HIPPA does not apply to students at an academic institution,

What a lot of people don't realize is that HIPPA doesn't exist.

[Life of Brian]

Boy howdy, you FOUND A TYPO.

Take the weekend off -- you deserve it.

[Michael P]

I take that kind of criticism as a concession that there are no more significant errors in, or quibbles with, the original comment.

[David Nieporent]

The rest is made up and/or too vague to even respond to — how on earth a janitor would know what a "big — and growing — issue" is with respect to how universities evaluate requests for accommodations? Or what "a lot of people" don't realize?

The rest of what he wrote is more wrong than right. HIPAA protects students at an academic institution just as it does everyone else in the country; what HIPAA doesn't apply to is the academic institution itself. HIPAA applies only to medical providers (and insurance companies), not to any other entity. So, e.g., despite what one often saw on social media during the pandemic, a business or private individual can ask if someone is vaccinated without running afoul of HIPAA.

But if the school had medical records provided for the purpose of seeking an academic accommodation, those records would be protected by FERPA. And since Dr. Ed routinely cites FERPA (regardless of its applicability — I still haven't stopped laughing about his idea that it forbids windows in classrooms), it's pretty weird that he ignored it now.

[Dr. Ed 2]

First and foremost, if I actually had been a "janitor", I'd have been in the union and paid a whole lot more than I was -- although you seem somehow fixated on that.

Second, see: https://www.hhs.gov/hipaa/for-professionals/faq/519/does-ferpa-or-hipaa-apply-to-records-on-students-at-a-university-hospital/index.html

"However, in a situation where a hospital does run the student health clinic on behalf of a university, the clinic records on students would be subject to FERPA, either as “education records” or “treatment records,” and not subject to the HIPAA Privacy Rule. [emphasis added]

[Dr. Ed 2]

HIPAA protects students at an academic institution just as it does everyone else in the country

Bullbleep

"the health or medical records that are maintained by a university as part of its provision of health care to a student who is also an employee of a university are covered by FERPA and not the HIPAA Privacy Rule."

https://www.hhs.gov/hipaa/for-professionals/faq/521/are-health-records-of-student-employees-subject-to-ferpa-or-hipaa/index.html

[David Nieporent]

So out of the roughly 5 million people on the Internet who get this wrong weekly in exactly this way, Dr. Ed happens to be the 1-in-5 million who did so because it was a typo rather than because he doesn't know what the law is? Okay, if you say so.

[AtR]

By the way, the same thing is true for most of the COVID testing that was being done in academic institutions.

None of it has under HIPAA and much of it was and is being used in medical research right now, and God knows what else, without the consent of the coerced testees.

[Tom for equal rights]

Curious if anyone still thinks masking reduced the spread of covid -

[Rev. Arthur L. Kirkland]

Among the Volokh Conspiracy's carefully cultivated collection of commenters? Roughly as many as have been persuaded that former Pres. Obama was born in the United States or that former Pres. Trump lost the most recent presidential election.

[Life of Brian]

Cute diversion, Artie, but let's refocus: do you yourself still hold the anti-science, superstitious belief that a facemask (of any material you like, but must allow passage of air for hopefully obvious reasons!) will meaningfully impede the passage of aerosolized virus particles, in either direction?

[Rev. Arthur L. Kirkland]

I figure the Mayo Clinic, the Centers for Disease Control, and researches at leading mainstream universities are more reliable indicators than are America's vestigial disaffected, antisocial, half-educated right-wing misfits. I have relied on masks.

Do you wish to provide a different perspective?

[Joe_dallas]

perhaps you noticed all the seriously flawed studies the CDC continues to list on their website including, but not limited to the borderline academic fraud studies such as the Kansas mask study or the Arizona school mask study. Issues well known by those actually familiar with the subject matter

[Life of Brian]

I figure the Mayo Clinic, the Centers for Disease Control, and researches at leading mainstream universities are more reliable indicators

Ah, our good friend credentialism is here to save the day yet again and save us from that pesky inconvenience of critically thinking. Nonetheless: What did they say, Artie? When did they say it? What assumptions did they make? Are those assumptions still valid? What vested interests did they have in what they said?

Put differently, please recite more clearly and specifically the articles of your faith.

[Rev. Arthur L. Kirkland]

I recall that you have claimed to be a lawyer, Life of Brian, or that others have described you as a lawyer.

It is more likely that you are Bugs Bunny, Elmer Fudd, the Virgin Mary, or Douglas Neidermeyer. Not even South Texas College of Law Houston would explain your comments.

[Dr. Ed 2]

And you want to be taken seriously?

[Life of Brian]

Another desperate, arm-pumping distraction, Artie? Now why in the world would you need to do THAT?

Does it feel that uncomfortable realizing you've become a blind adherent to the sort of irrational dogmatic liturgy you've spent so many years and keystrokes excoriating?

[Rev. Arthur L. Kirkland]

I rely on mainstream, credentialed, educated, and/or accomplished professionals in many respects -- piloting aircraft, treating illness, conducting transactions, delivering babies, handling plumbing and electrical problems, performing dentistry, inspecting properties, managing investments, reporting news.

My barber, luthier, fishmonger, bakers, tailor, automobile mechanic, brewers, plumber, and electrician are without exception licensed, experienced, mainstream professionals. I pay for quality and reliability and am loyal. I have had three barbers in 48 years (two retired), the same tailor, mechanic, and luthier for a quarter-century.

I recognize not everyone favors my approach. There are disaffected contrarians, delusional half-wits, antisocial cranks, unhinged conspiracy theorists, paranoid losers, and other misfits who disdain credentials, the professional mainstream, education, and "the elite." People who look to renegades, faith healers, "magic breakthrough" peddlers, fringe-inhabiting kooks, demagogues, online "influencers," back alley providers, and QAnon accounts for services and advice, including pandemic management pointers.

I believe disaffected dumbasses are entitled to believe as they wish but that they should be neither appeased nor respected.

[Life of Brian]

My barber, luthier, fishmonger, bakers, tailor, automobile mechanic, brewers, plumber, and electrician are without exception licensed, experienced, mainstream professionals. I pay for quality and reliability and am loyal. I have had three barbers in 48 years (two retired), the same tailor, mechanic, and luthier for a quarter-century.

Cool story, bro. But I strongly suspect that in those contexts you allow yourself to have your own independent standards for "quality and reliability" and don't simply let the tradesmen inform you that of course they did a good job because they're educated/licensed/unionized/whatever -- and if they don't meet your standards, you push back and/or move on. Nor do I believe for a minute that you just went to the first board-certified physician you found in the phone book, or went to the largest practice you could find and saw whoever happened to be available, and reverently and unquestioningly followed every last thing they told you to do.

So this doesn't strike me as a particularly good analogy for why you find comfort in blindly believing whatever words come out of someone's mouth on the efficacy of catching airborne aerosolized virus particles with a piece of cloth strapped to your face, as long as they string enough impressive-sounding letters after their names, organize themselves into sufficiently large impressive-sounding groups, and speak with confidence.

People who look to renegades, faith healers, “magic breakthrough” peddlers

It's just (amusingly) sad you truly think you're on the correct side of that line after admitting that, rather than relying on or even seeking to understand the broad, crystal-clear picture painted by the last ~3 years of worldwide data, you're instead blindly trusting the alluring teachings of the high priests of the Branch Covidians that wearing the functional equivalent of a lucky rabbit's foot really does make bad things stop happening. (Well, eventually, usually, and if not, somebody somewhere just didn't do it fervently enough.)

[Rev. Arthur L. Kirkland]

Do you claim to be a lawyer?

[Currentsitguy]

No one with even a scintilla of medical or material science knowledge ever bought that shuck and jive.

[Rev. Arthur L. Kirkland]

No one with even a scintilla of medical or material science knowledge ever bought that shuck and jive.

That's right-wingerspeak for 'I overheard it at the Cracker Barrel off the interstate in Venango County' coupled with 'my pastor confirmed it right after Saturday's rattlesnake-juggling concluded.'

[gallinalg85]

Coming from the guy who thinks that a man can cut off his dick and become a woman, that's funny.

[Stephen Lathrop]

Curious if anyone still thinks masking reduced the spread of covid—

It prevented it from spreading to me, along with every other kind of respiratory-related illness since March of 2020. My normal quota previously had been about 4 colds (three winter and one summer) and one severe bronchitis (with or without pneumonia) per year. Nothing like this disease-free period has ever occurred previously during my 76-year life.

It may be worth noting that for years I have received monthly infusions to suppress a cranky immune system. Also worth noting, the masks in question have been 3M N95 masks.

[gallinalg85]

Were you also separating from other people? I suspect you were.

[AtR]

Even if this were true, it would not necessarily be good! Your immune system needs a constant maintenance challenge in order to function properly.

Staying away from germs and diseases for an extended time just queues you up for more grief should ever reemerge to the public.

[Stephen Lathrop]

AtR, not sure why this would surprise anyone, but medical care in some regions is better than it is in others, so who knows? Before you go on a lifetime program to use monthly infusions to suppress your immune system, you ought already to be suffering grievous auto-immune damage, with no medical reason to suppose it will ever relent on its own.

Equally obvious, immune suppression should not happen unless you are under continuous care from an immune system expert such as a board certified rheumatologist. In my case, every infusion is accompanied by an extensive battery of blood tests, to monitor the effects of the infusion, and stay alert for any other medical changes which would contra-indicate the medication.

I get that that is not what you were talking about. You just wanted a an all-purpose talking point which might suggest that even during a deadly pandemic a mask that works is bad for you. For their sakes, I hope the folks around you find you as unconvincing as I do. Not that I don’t also understand and accept the evidence which backs your outlandishly distorted sense of medical priorities.

[AtR]

cf. China post lockdown

[Don Nico]

"It prevented it from spreading to me, along with every other kind of respiratory-related illness since March of 2020. "
Very simply, you DO NOT KNOW that.
I'd say that you were lucky.

[Joe_dallas]

Lathrop - if so, you are one of 10% or so that remains covid naive. I suspect you spent a substantially less time interacting with the others - maintaining as much social distancing as possible.

[gallinalg85]

Masking prevents COVID the same way that driving a Tesla affects the climate and the same way that Rev. Kirkland engages in a "marital" act when he sodomizes his "husband."

[Rev. Arthur L. Kirkland]

These commenters are your desired audience, Volokh Conspirators.

And the reason your deans wish you would expand your employment horizons.

Well, not Blackman. His dean obviously doesn't care who is part of that faculty.

[Ben_]

"Curious if anyone still thinks masking reduced the spread of covid"

There’s a lot of superstitious people who believe a variety of ritualistic behavior protects them. They're all welcome to their beliefs as long as they agree to leave the rest of us out of it.

[Rev. Arthur L. Kirkland]

The exact details of the alleged disability were filed under seal, and are thus currently available only to the court and the parties,

No objections to this litigant's sealed record?

Clingers gonna cling.

Until replacement.

[Jerry B.]

“Clingers”

Drink!

[John F. Carr]

The plaintiff is pro se, so no attorney's fees. The only remedy available after the judge's order is monetary damages under DCHRA. Defendants ought to make a settlement offer of a refund of ticket price.

[cjcoats]

plus parking.
plus mileage
plus plaintiff's time at his normal billed rate
plus punitive damages at least adequate to cover all his costs in the suit.

[Dr. Ed 2]

I noticed that -- seems petty to let him attend another game instead of just giving him his money back.

Forget lawyers, how much do you think it has cost them so far in just employee time? I can see the Walmart attitude of defending all liability suits so as to discourage fraudulent ones, but one ticket?

[Rev. Arthur L. Kirkland]

This blog has some strange obsessions. A mix of teenage on-the-spectrum incel and disaffected, cranky old culture war casualty.

[Dave_A]

Typical COVID ‘resister’. 10/10 he was lying about the disability (or that his media-bubble lead to sincere belief he had one that doesn't exist - eg as made-up as the idea that there are products-of-abortion in mRNA vaccines) to try and duck the mask mandate.

[Rev. Arthur L. Kirkland]

The claimant seems to be a 20-something Republican Convention delegate who rants about virtue signaling and all of this damnable progress.

The Nationals should have put him to his proof on the 'no mask or shield' disability claim, if only to provide an example.

[Michael Ejercito]

COVID resisters are the heroes of the present day.

[Stephen Lathrop]

The standard for heroism in the present day lags notably the heroism of days gone by.

[Rev. Arthur L. Kirkland]

Also on Michael Ejercito's list of heroes:

Confederate soldiers

KKK members

Marjorie Taylor Greene, Matt Gaetz, Paul Gosar, Scott Perry, Lauren Boebert

George Santos

David Duke

Madison Cawthorn

Donald Trump

Donald Trump Jr.

the Volokh Conspirators

Eric Rudolph

Robert Bowers

Tucker Carlson

Steve Bannon

Pepe

Q

[Joe_dallas]

Face shields have zero chance of reducing the spread of covid. At least faces masks in the laboratory have some theoritical chance of working (though not in practice for any extended period of time )

[Dr. Ed 2]

You realize, of course, that this could be a psych disability....

[Stephen Lathrop]

The headline of the OP requires an edit. There was no disability rights objection. At the time of the incident the complainant refused to state a reason for his objection, but characterized his refusal as disability related. Reporting on how the court came to trust such a cockamamie excuse is lacking. That needs work too.

[David Nieporent]

Reporting on how the court came to trust such a cockamamie excuse is lacking.

Did you bother to read? "The exact details of the alleged disability were filed under seal, and are thus currently available only to the court and the parties, but the court found them to be adequately alleged"

[Stephen Lathrop]

Nieporent, as I read it, testimony to support the allegation came only after the incident, as secret court testimony:

Valentine declined to disclose the nature of his medical condition when asked.

I am having difficulty imagining any legitimate medical disability which a face shield would challenge. Motorcycle helmets incorporate face shields. I have worn those for thousands of hours without trace of impediment to respiration. I have never heard of anyone who said face shields compromised respiration.

But leave that aside. When the guy got thrown out he apparently refused to provide that information. This case looks like a political objection to masking masquerading as disability, and finding support in a politically motivated court.

[Michael P]

Lathrop is too busy writing incoherent, rambling retreads of his past comments to bother reading. If pressed, he will admit his imagination only extends to pretending that motorcycle helmets protect against Covid.

[Stephen Lathrop]

What medical disability did the complainant say a face shield challenged?

[David Nieporent]

We don't know. It was under seal. But the judge saw it.

[Stephen Lathrop]

And the folks who threw the guy out of the Nationals game did not see it, because he refused to tell them. As a factual matter, his conduct at the time was indistinguishable from groundless anti-masking defiance. Seems relevant when he is suing the Nationals for throwing him out, but you are the lawyer. Please, help me understand this.

[Don Nico]

"Please, help me understand this."
You show repeatedly that David would be "wasting his breath" as you are the self-proclaimed expert of all.

[tkamenick]

Why did the court allow that information to be filed under seal? Terrible decision. It's the most important part of the entire claim and if the plaintiff wants to use the courts to get money from another entity, we should all get to know why.

[Gasman]

Best way to view the Nationals in 2021 was with mask pulled up over eyes. They lost that day, May 5, as they did most of the season, going 65-97 for the year.

[Voize]

They were even more consistent last year at 55-107, tied for the worst season since their first as the Expos in 1969.

[Ben_]

Covidian types think they're above the law and above everything and everyone else. Of course they didn’t even try to accommodate a disability.

[Stephen Lathrop]

He did not describe any disability to accommodate. Then he sued, and said something which is being kept secret.

[AtR]

I hope they go after the medical establishment next! I have a friend who hasn't been able to get medical care (even in an emergency!) due to unilateral mask mandates in all medical facilities of her state.

While the law may allow exemptions for medical disability, the medical community does not.

[David Nieporent]

That's because there are no bona fide disabilities preventing people from wearing masks.

[AtR]

You are mistaken ... as a simple Google search would have revealed (e.g., https://jamanetwork.com/journals/jama-health-forum/fullarticle/2768376)

[Stephen Lathrop]

AtR ought to read his own links.

Here, from the linked article, is the entire gamut of potentially relevant disability-related objections which the article mentions:

Facial deformities that are incompatible with masking are an additional category of exemption.

The article goes on to say:

Clinicians reasonably should question new and unsubstantiated claims of disability that emerge solely in the context of a contested masking requirement . . . .

How Should Clinicians Proceed?
In evaluating an individual patient, clinicians should seek to balance appropriate accommodations with public health. It is crucial that individuals with disabilities be integrated in public spheres, a right that could be curtailed by withholding appropriate exemptions. But for many individuals seeking exemption, the risk of participating in public spheres during a pandemic may be high. For those with underlying pulmonary disease, if masking cannot be tolerated, sheltering in place is a reasonable and safe medical recommendation. Public health experts have cautioned that masking cannot replace social distancing, and avoidance of indoor spaces should remain our medical recommendation, particularly for individuals who cannot tolerate a mask or do not desire to wear one for any reason.

[AtR]

I read it … did you?

The point of the article is that there *are* legitimate reasons why some people cannot wear masks, but they need to be balanced with the risks to the community.

If there were *any* convincing evidence that communal masking is effective, this could be a legitimate reason to deny mask exemptions.

However, the existing evidence repeatedly fails to demonstrate such effectiveness, which means that we are torturing these people simply to satisfy our own superstitious fears … apparently, very little about human nature has changed since 1692.

[Alpheus W Drinkwater]

The authors of the article write a couple times that legitimate medical exemptions exist, but they are suspiciously cagey about exactly what these restrictions are. The only examples they give are facial deformities, and a Washington Post article about a child with autism. This is a weird deficiency in an article on that exact subject.

I also note that while you use these authors as authority that exemptions exist, you disregard their opinion that masking is an effective way to slow or stop the spread of the virus.

[AtR]

For what it's worth, I don't see the authors or the journal as authoritative. I'm simply trying to point out that there are voices within the medical mainstream that acknowledge the potential for masking exemptions.

I agree with you that the authors' caginess on specifics is strange.

[Joe_dallas]

Alpheus W Drinkwater 2 hours ago
Flag Comment Mute User

"I also note that while you use these authors as authority that exemptions exist, you disregard their opinion that masking is an effective way to slow or stop the spread of the virus."

Actual real world empircal evidence shows masking is quite ineffective.

See the great barrington declaration - numerous experts with real world experience. Even if masks actually worked to reduce the spread, they were an impediment to any long term solution.

[Dr. Ed 2]

I can think of several mental illnesses that would....

[Joe_dallas]

David Nieporent 17 hours ago
Flag Comment Mute User
"That’s because there are no bona fide disabilities preventing people from wearing masks."

Another covidian displaying complete lack of basic medical knowledge - where did you develop any qualifications to opine on medical issues

A few bona fide disabilities include asthma, lung cancer, emphysema, just to name a few.

[Don Nico]

Not to mention that it is difficult for masks to be effective for people with facial hair.

[Joe_dallas]

The Kansas mask study
A - the excel spreadsheet with the authors of the study provided to me with the raw data
B- the knowledge that the authors of the study knew the results were not valid from the period from aug 27, 2020 through the date the study was published on nov 20, 2020. The authors of the study cut the study period short specifically to hide the negative results.

Arizona school mask study
The authors knowingly using non comparable school attendance periods which artificially made the results positive.

You might develop those basic math and analytical skills to catch what is obvious.

[Don Nico]

QA,
You may be surprised to learn that people can learn a great deal by self-study.

[Michael Ejercito]

Experts discredited themselves.

[David Nieporent]

The careful reader will note the conspicuous absence of a response from Joe_dallas.

[Joe_dallas]

Basic math knowledge and basic science which most people acquire by the time they graduate from high school is more than sufficient to recognize the substandard level of analysis in the study along with the deception in the study.

Basic knowledge that you show no indication of having obtained.

[Joe_dallas]

Michael Ejercito 2 days ago
Flag Comment Mute User
Experts discredited themselves.

Michael - one clarification - many of those "experts" werent actually experts. Far too many erroneous conclusions in the covid studies, especially the mask effectiveness studies. Far too many times the study periods were cut short to hide the ineffectiveness and/or the negative results - common with the both the masking studies and the vaccine effectiveness studies.

[Joe_dallas]

following up on Michaels valid comment regarding the experts

Here is a study by the "experts testing the effectiveness of bivalent vax
they used a study period of ONE Month to claim it was effective -

https://www.nejm.org/doi/full/10.1056/NEJMoa2213082?query=TOC&cid=NEJM%20eToc,%20January%2019,%202023%20DM1905150_NEJM_Non_Subscriber&bid=1365043672

[Don Nico]

Joe,
In the face of a rapidly spreading infectious disease, it is reasonable to do and publish initial examinations of the results. While they are far from definitive (and that was not claimed in the NEJM paper), they are useful to individuals trying to evaluate what risks they are willing to take,