There Oughta’ Be a Law:
The Bob Brunner Story
A comprehensive law like the ADA was sorely needed even though a milestone disability civil rights law, Section 504 of the Rehabilitation Act, had been enacted in 1973. This section illustrates the shortcomings of prior law by looking at what happened to a different Bob B. – Bob Brunner – whom I first met near the end of 1977.
Part 1: When the Music Stopped
Bob Brunner styled himself a “hepcat.” In the late 1960s and early 1970s, he was a young trumpeter who wholeheartedly embraced the image and trappings of the prototypical jazz musician, with a heavy dose of fifties’ Beat-culture flavor. He usually dressed in black clothes topped off by a black beret. He called women “chicks,” and men “cats” or occasionally “Daddy-O.” When he understood something, he said “I dig,” and when he liked something he said “I dig it” or “cool.” He lived in his “pad” in Baltimore. And when it was time to leave you, he “split” or “cut out.” Bob knew exactly what he liked most, and that was to jam – playing his trumpet with other jazz hipsters. He “made that scene” as often as he could and earned money from his musicianship whenever the opportunity arose. He had a cool pad, a “boss doll” (nice girlfriend), and his music – life was good!
The pursuit of his chosen lifestyle hit a big bump during his mid-twenties when Bob started to have manual dexterity problems and was diagnosed with multiple sclerosis (MS), an autoimmune disease that affects the central nervous system. MS is unpredictable and idiosyncratic, with effects and progression that vary from individual to individual and even at different intervals for a single individual. At the time, there was no treatment to ameliorate or delay the progression of the disease. In Bob’s case, one of the initial effects involved problems with the use of his hands, including a persistent tremor, excessive tightness (spasticity), and a loss of coordination (ataxia), that prevented him from playing the trumpet properly. He had to face the jarring reality that his days as a performing horn player were coming to an end.
Bob was not just a one-trick pony and, like many musicians who do not hit the big time, he decided he had to find a decent day job. The daytime gig Bob chose was counseling. He enrolled in a master’s program in rehabilitation counseling at the University of Northern Colorado. As part of the program, he served as a correctional counselor trainee for ten weeks at the California State Prison at San Quentin. He was awarded a master’s degree in counseling with emphasis on corrections in 1975. After graduation, Bob set his sights on becoming a parole and probation officer for the State of Maryland. The first step in getting such a position was to take a competitive state examination for professional and skilled services jobs. Unfortunately, Bob’s MS was interfering not only with his trumpet-playing skills, but also his handwriting, which had progressively become slower and more difficult to read. These problems proved to be major obstacles to Bob’s performance when he took the state examination and did not score well enough to make the job eligibility list.
Again demonstrating perseverance and resourcefulness, Bob soon took steps to address both his immediate need for a paycheck and to continue pursuing his longer-term career goals. He managed to get himself a job with Goodwill Industries in Baltimore, where he was employed for a year and was named “Worker of the Year.” He also contacted Maryland’s vocational rehabilitation agency for vocational assistance, and was advised not to give up on his ambitions to work in the parole and probation field. After interviewing Bob and reviewing his medical records, background, and credentials, a rehabilitation counselor determined that Bob’s medical problems had interfered with his performance on the state examination, but that his obtaining a master’s degree and “his excellent performance in school” indicated that, despite his being what she termed “a severely handicapped individual who has multiple sclerosis,” he was fully capable of carrying out the duties of a parole and probation agent. Accordingly, the Division of Vocational Rehabilitation placed Bob on a “Special Optional Eligible List” for applicants with disabilities, and certified him as eligible for a position as a parole and probation agent.
Shortly thereafter, management personnel at the Maryland Division of Parole and Probation contacted Bob about interviewing for a position with the Division. At the job interview, he and an Assistant Director of the Division discussed his MS and his resulting inability to handwrite legibly, and agreed that his reports and other written work would need to be dictated and transcribed. On July 28, 1976, Bob was hired as a “Parole and Probation Agent I.” Before starting work, he was required to undergo examination by a doctor designated by the agency who medically approved him for employment.
In a burst of excitement and gratification over the new job, Bob used his own money to buy dictation equipment for tape recording his work reports. Later on, when his equipment was stolen, he bought another tape recorder. Shortly after he was hired, however, he learned that the secretaries, who routinely typed the reports and other written work of the parole and probation agents from their handwritten pages, did not want to type his recorded documents, because it was not in their job descriptions, they had not had to do it for other agents, and it involved slightly different equipment and methods. So he badgered the coordinator of volunteers into arranging for a volunteer to type his reports from a dictation machine. This worked well, but only for a few weeks and then the volunteer left. After that, the Division did not reassign to anyone the task of transcribing Bob’s reports. He tried to talk the secretaries into typing his work, but his pleading and pestering did no good.
Again trying his best to make this job opportunity work out, Bob made his own arrangements to find and compensate a person to transcribe his reports. Bob’s resourcefulness and resiliency paid off well for the first half-year of his employment, and he received good work evaluation ratings from his supervisors, including comments that “his inability to write appears to have caused no major problems,” that he “possesses a more than sufficient knowledge in counseling techniques,” and that “[h]e is professional in his relationships with his clients.” In January 1977, however, his case load was tripled (from 67 clients to 202), and he was assigned a different supervisor who expressed dissatisfaction that, despite Bob’s efforts in recording his paperwork and facilitating getting it typed, the transcription of his reports sometimes fell behind schedule.
By midsummer 1977, the Division’s stance toward Bob’s disability had hardened considerably, despite its recognition that “[h]is work attitude and habits are good, routinely.” Like many other categories of State employees, parole and probation agents were required to complete a probationary year during which they could be dismissed without having any right to a hearing to challenge the dismissal. On July 12, the Division of Parole and Probation notified Bob that it was recommending that he be separated from his job. The recommendation was accompanied by a document titled “Explanation for Unsatisfactory Report,” which stated: “This rejection on probation is because of employee’s physical disability only. He has multiple sclerosis and is unable to write. Written reports are an essential part of the duties of a Parole and Probation Agent.” These documents were transmitted to Bob along with a letter that declared: “As you are aware, this rejection on probation is primarily due to your inability to write which, of course, is occasioned by your physical disability.” On July 26, 1977, two days before the end of his one-year probationary period, Bob was officially terminated from his job.
The officials who dismissed Bob apparently did not want to appear completely callous and indifferent; the termination notification letter included a final paragraph that declared “The agency is indeed sorry that it had to take this action but under the circumstances [we] feel that we had no other choice. May [we] take this opportunity to wish you success in your future endeavors.” Potentially more constructive than these dubious platitudes was a suggestion in the letter that Bob contact the Division of Vocational Rehabilitation regarding possible placement with some other State agency. Though shocked and angry at his harsh rejection by his parole and probation superiors, Bob badly needed a job, so he soon followed up with the vocational rehabilitation office. Unfortunately, nothing came of it, and no available positions were found for him. In the end, despite his fervent, determined efforts to be an enthusiastic public servant of the State as a competent and responsible parole and probation agent, Bob Brunner was thrown out on his ear – all because the agency officials failed to have a secretary type his dictated work products.
Part 2: Suing the Bastards
Rather than going down without a fight after being booted out, Bob decided that maybe he should consider “suing the bastards” who had discharged him. He contacted a prominent, public-spirited lawyer and member of the Maryland state legislature named Howard Needle, and related the story of his aborted employment. Much to his credit, Needle decided that Bob’s situation was a wrong that needed righting, agreed to take the case, and set about crafting a lawsuit. By the end of October, he had drawn up a complaint alleging that Bob’s termination violated federal and state law. Named as defendants were the State of Maryland and several state parole and probation, correctional services, and personnel officials. The gist of the claims against the defendants was that they had discriminated against Bob in violation of (1) Section 504 of the Rehabilitation Act of 1973, a federal law that prohibited subjecting persons with disabilities to discrimination in any program that received federal financial assistance; and (2) a Maryland law that prohibited the Department of Personnel from disqualifying or discriminating against any person on account of a “physical defect or impairment” that did not interfere with the performance of job duties. For a person who had did not have a lot of experience with disability nondiscrimination law, Needle did a very good job in identifying two of the most credible legal theories for Bob’s case.
I first learned of the lawsuit in early November 1977 through an article about its filing in Baltimore’s Evening Sun newspaper. A few days later we received a phone call from Howard Needle. He had graduated some years earlier from the University of Maryland School of Law, where I was working at the Developmental Disabilities Law Project, and he had heard about our project and inquired whether we could assist him with the Brunner case. We arranged an appointment, and a few days later Howard and Bob made their way up the extensive wooden accessibility ramp that led to the entrance to the double trailer in which our offices were located.
And so I met this uniquely colorful character, Bob Brunner. My impression was that he was eminently likeable – congenial and articulate, but, at the same time, to me he was eccentric, quite unlike anyone I had met before. The hip lingo took a while to get used to, and at first I thought maybe he was just putting me on. His mode of dress and expression put me in mind of the character Maynard G. Krebs, the silly beatnik played by Bob Denver in the old (1959–1963) T.V. show Dobie Gillis, and early on I had to restrain myself from laughing when Bob used his beat idioms. Anyone old enough to remember the Dobie Gillis program will know that Maynard G. Krebs was both lazy (whenever anyone said the word “work,” he repeated the word in a panicked, high-pitched yap) and humorously stupid. As Bob told the story of his multiple sclerosis and the efforts he had made to pursue his education and a career as a parole and probation agent, I quickly learned that he was neither lazy nor unintelligent. He was smart, engaged, determined, and indignant (I thought appropriately) at how his employer had treated him. I was aghast (but also elated from a litigation standpoint) when I looked at the documents in which his supervisors had written, in so many words, that they were discharging him specifically and solely because of his disability.
I found Howard Needle to be an amiable, capable, and zealous attorney who had done a fine job in conceptualizing and initiating the lawsuit. I thought that I could help him, and help Bob, with some additional disability rights expertise, and by the end of the meeting I had agreed to become co-counsel in the case. Howard and I soon set out to prepare an amended complaint, and tightened up a few allegations and legal claims in the original complaint. My principal contribution to the amended complaint was the addition of two additional legal theories. The first was that by treating Bob differently from other employees without any adequate justification, the defendants had violated his right to equal protection under the U.S. Constitution. The second ground, upon which we had obtained a successful decision in the Fourth Circuit Court of Appeals earlier that year in a case brought by a blind public school teacher, was referred to as “irrebuttable presumption.” The idea was that when a state authority acts upon a presumption, which is not universally true in fact, in denying employment to a class of citizens, such as those with a particular disability, then the state violates the affected employee’s due process rights if it does not give the employee the chance to rebut the presumption in regard to her or his particular circumstances. The application of these theories in Bob’s case would turn out to be more complex than this simple sketch of them suggests, but we thought they were tenable claims well worth trying.
We expected that the chances of this lawsuit having a favorable outcome were pretty high. A number of factors seemed to work in our favor: the documents in which the defendants indicated that Bob had been discharged because of his disability; the fact that he was hired with full knowledge of his disability; the embarrassment for the state agencies that we anticipated resulting from publicity about the case (the newspaper coverage of the filing of the lawsuit seemed very plaintiff-friendly); the blatant harshness of dismissing an employee two days before his probationary period ended; and the overall iniquity of kicking a plucky fellow with an incurable degenerative illness when he’s down. I confess that I hoped that the addition of our Law Project’s expertise and resources to Howard’s advocacy when we joined the case would give the attorneys for the defendants pause about wanting to litigate this case to the hilt, and would make it easier to get a favorable settlement for Bob.
Any expectations of a quick favorable resolution were soon dashed. Like other lawyers representing plaintiffs in lawsuits against state officials, I often wish that government attorneys would have more regard for their obligations relating to fair treatment of citizens by state agencies than of just their obligation to represent the state and its officials vigorously, but my experience is that in our adversarial justice system lawyers for the state too often take highly combative, antagonistic stances in such cases. In Brunner v. Maryland, the attorneys for the defendants put their legal skills to work to contest nearly every element of our case. And we sought to counter them, legal maneuver for legal maneuver, argument for argument, legal document for legal document.
The two sides fought over the need for a preliminary injunction (an immediate judicial order of relief pending trial), the scope of discovery (the information which each side can obtain from the other), and Bob’s right to proceed in forma pauperis (without having to pay fees and court costs because of indigence). In support of a motion to dismiss the lawsuit, the defendants argued that the State of Maryland could not be sued, both because it was immune from suit under the 11th Amendment to the Constitution and because it is not a “person”; that claims for damages against the state officials for actions taken in their official capacity should be dismissed because the suit was actually a suit against the state; and that the officials could not be sued in their personal capacities because their actions toward Bob were taken in their official roles.
One unusual skirmish in the case occurred not long after the case was filed, before I had become involved, when Bob testified at a hearing about the need for expedited relief (preliminary injunction) based in part upon the financial squeeze he was under, and in detailing his financial situation he mentioned that he had taken a personal loan from a local bank on which he owed an outstanding balance of about $150. This led to a bench conference of the judge with the lawyers, during which the judge told them that his wife owned stock in the bank. After considerable discussion, during which one of the lawyers for the defendants raised questions about whether this situation constituted a conflict of interest for the judge, the judge disqualified himself from the case. When a new judge was appointed to the case, the state’s lawyer wrote him a letter informing him that he had learned that a relative of the judge was involved in civic project with a state employee supervised by the state official who had fired Bob. The second judge, Frank A. Kaufman, did not remove himself, but these odd incidents caught the attention of columnist Lou Panos who wrote a piece about them for the Evening Sun. He questioned whether every judge whose relatives own part of a business should have to disqualify himself from any case involving customers of the business, and whether judges should keep their relatives from getting involved in community projects or else disqualify themselves from cases involving someone who works in or is helped by one of the projects. And he asked whether, if judges did remove themselves in such circumstances, “would any case ever be tried?”
The title of Panos’s commentary was “Justice May Triumph but there Might Be a Delay or Two,” and he noted that for Bob “delay is more costly than to most seekers of justice in the courts.” Part of the costliness of delay for Bob was that after being thrown out of his job he had very little money to live on. He was receiving unemployment compensation, but that was about to expire. Bob’s MS, however, was even more of a reason that delay in resolving the case would cause, in legal terms, “irreparable harm.” The disease was progressing rapidly with symptoms getting steadily worse. What started as a slight tremor in one hand became a serious tremor in both hands, accompanied by spasticity. Later the disease came to interfere with his coordination and balance, and he began to have problems walking normally. With MS, stress is a particular trigger to worsening of symptoms, referred to as “exacerbations.” The stress of the litigation and financial worries were accelerating the downhill path of his physical and mental health. He was also stressed about where he would get the money to pay for medical treatment of his symptoms and flare-ups. Psychologically, he needed, like most of us, to feel needed, to have something constructive to fill his time. Ultimately, he very much needed a decent job and, ideally, compensation for work-time he had missed by having been terminated. He needed those things soon and he was counting on the lawsuit to get them for him.
Part 3: Obstacles and Delays
Unfortunately, the lawsuit dragged on, as often they do. It gradually became clear that of the four legal bases we were relying on – Section 504 of the Rehabilitation Act, the Maryland nondiscrimination statute, Equal Protection, and “irrebuttable presumption” – the first had the best chance of success in the circumstances of the case. The Maryland provision only prohibited disqualification or discrimination because of a condition that would not interfere with of the duties of the job position at issue; Bob’s MS obviously interfered with his ability to write his reports, which the defendants would argue was a job duty for the Parole and Probation Agent position. The constitutional claims we had made were credible ones, and we continued to advocate vigorously for them, along with Section 504 and the state law claim; I contributed numerous pages of legal analysis in support of them in a lengthy memorandum to the court opposing the defendants’ motion to dismiss the action and supporting our claim for a preliminary injunction. As we read the tea leaves, however, we came to believe that Section 504 was our best bet.
Enacted in 1973, Section 504 was the first significant federal law prohibiting discrimination against people with disabilities. One sentence long, it was essentially a Thou-shalt-not prohibition of disability discrimination. It was hailed by disability advocates as momentous legislation, and provided the basis for many successful court actions to challenge discrimination on the basis of disability. It was the only federal statute that offered possible recourse in a case like Bob’s. And yet Section 504 had a number of limitations and flaws, some of which proved to be consequential in the Brunner case. One limitation of the Act is that it applied only to programs and activities that receive federal financial assistance – basically it covered federal grantees. This narrow scope meant that it did not apply at all to private sector activities nor even to state and local government activities unless they receive federal funding. A person complaining of discrimination had to allege and prove that the discriminating entity received federal financial assistance. At the time of the Brunner case, this meant that you had to prove that the particular office, section, or specified program was receiving federal funds. Victims of discrimination were forced to heed the “Deep Throat” directive from the Watergate investigation – “Follow the money.” In some instances, as where a federal grant is targeted to a particular office, it may not be difficult to make this showing. But where federal funding is awarded to a large organization or entity, such as a state, it may be very hard to track the funds to particular sections, subdivisions, or program offices within it, particularly if the entity commingles the money into broad funding accounts and then disperses it around its operations without designating its source. Such was the challenge raised in our case: could we track the sources of funds in the Division of Parole and Probation and prove that they originated in federal grant monies? Indeed, did we need to prove that the position Bob had occupied was funded at least partially by grant dollars? At the very least, this undertaking called for retrieving a daunting amount of financial information and applying considerable budgetary expertise to make sense of it, all of which would take time.
A second problem with Section 504 is that, in its succinct one-sentence form, it makes no attempt to say what discrimination on the basis of disability is and how a covered person or entity avoids engaging in it. Such a format generally is adequate when dealing with other traditional forms of discrimination; to comply, one needs only to treat everyone the same, not drawing any distinctions based on race, ethnicity, religion, and so on. Disability discrimination does not always work that way. Avoiding or ending discrimination against people with disabilities may require making reasonable adjustments to facilities or practices to enable a particular person with a disability to participate on a fair and equal basis. The statutory language of Section 504 does not mention such a requirement but the people charged with writing the initial federal regulations for its enforcement found it to be essential and included a “reasonable accommodation” mandate in the regulations. Having tape-recorded reports transcribed for an employee whose disability prevents him from writing them by hand is a prime example of such a reasonable accommodation. Unfortunately, Section 504 regulations applicable to the federally funded programs in Bob’s case had not been issued when the lawsuit was filed and was being contested in court. Since reasonable accommodation was not in the language of the statute itself, we had to argue that it was an implicit element of not discriminating. While I believed and continue to believe that this contention was correct, it was not an easy sell and provided another disputed issue.
An additional thorny question in the case concerned the scope of medical and psychiatric records that Bob was required to provide to the defendants as part of the discovery phase of the litigation. Because of a quirk in the drafting of Section 504, not found in other laws prohibiting various types of discrimination, such as race, religion, gender, or national origin, plaintiffs in Section 504 cases have to prove, up front, that they have a physical or mental condition that is substantial enough to meet the definition of disability. We argued that the express written declarations by the defendants in the termination documents that Bob was being dismissed because of the disability of multiple sclerosis eliminated any need for the defendants to go fishing through all of Bob’s medical and psychiatric records. The defendants’ position was that Bob’s medical condition was a critical element of his legal claims and that the complaint had asked for monetary compensation for “accelerated deterioration of his physical condition resulting from his termination,” both of which entitled them to scrutinize his medical records.
For his part, Bob was strongly opposed to permitting the defendants to have access to his medical files. Most people would be averse to having others go through their medical records – that is why they are generally confidential and today are covered by privacy provisions of the federal Health Insurance Portability and Accountability Act (HIPAA). Bob had some particular concerns about information in his medical history, including understandable reluctance to having the personal details of his MS manifestations disclosed and perhaps become part of the public record in the legal proceedings, but also other issues unrelated to MS that he was sensitive about, perhaps even including use of illegal substances (although it would indeed be shocking if a young jazz musician were to have ever used illegal drugs). He was completely at a loss as to how any of this information was relevant to the claims in the case. The Federal Rules of Civil Procedure, however, are quite liberal in regard to what can be obtained through discovery in a lawsuit. On Bob’s behalf, we filed a motion to limit discovery to protect his medical records. The judge subsequently indicated that there had to be an initial exchange of medical records and then he would consider whether additional medical and psychiatric examinations would be required.
Part 4: Bob’s Emotional Make-Up and My Attempts to Help
While the legal issues and various procedural machinations kept the wheels of justice turning exceedingly slowly in the lawsuit, I had the opportunity to spend time with Bob and got to know him better. We had long talks (he could tell great stories), and we shared some meals, including one nice dinner he prepared at his “pad.” I was intrigued with his bohemian, hipster lifestyle, but found, ironically, that he also had a strong work ethic. He was no longer a kid, and he wanted to earn his way and live a grown-up lifestyle. Not having a job really grated on him, and as time went on he became more and more worried about money, although he was too proud to accept charity. I gradually took on the task of trying to find him a job, and made calls to various people I knew who were involved in trying to improve employment opportunities for people with disabilities. This proved to be tough sledding, but eventually I linked him up with the Maryland Governor's Committee on Employment of the Handicapped, and was delighted when they offered him a position at the state headquarters of the agency. With a sigh of relief, we prepared to notify the court and opposing counsel that Bob would now have a job and income, and that, accordingly, immediate judicial relief in the form of a preliminary injunction was not so critical. This would give us more time to try to track the federal financial assistance to the parole and probation office to which Bob had been assigned, and otherwise to get our ducks in a row, and perhaps to enter into some serious negotiations toward a favorable settlement.
Such optimism was short-lived. I was shocked to learn that the job the Committee had hired Bob to do was stuffing envelopes for the agency’s mass mailings. You could hardly find a worse job for a guy with shaking hands, poor coordination, and spasticity than stuffing envelopes all day, day after day. The repetitive, fine motor drudgery was difficult, painful, and stressful for him, and completely disregarded his intellectual and vocational talents. Bob tried to make the best of it for a while, but after some weeks he reached his physical and mental limits and had to call it quits. I continued to try to find other employment options for him, but had no immediate luck.
During this period Bob and I would periodically “hang out” with one another. At some point, the conversation would usually turn to how he was doing. Most of the time, he remained pretty positive in the if-life-gives-you-lemons-make-lemonade vein. At one point he told me that his experiences with MS, plus his counseling training, work at Goodwill, and experience with alcoholic clients in the Parole and Probation Division, had given him a sensitivity toward the needs and problems of people with disabilities, and that he would like to figure out a way to use this understanding as an asset to help change attitudes toward disability and increase dignity and opportunities for individuals with such conditions. Whatever images of narcissistic escapism and sensuous indulgence jazz and beat lifestyles sometimes evoke, Bob certainly had an idealistic humanistic streak.
At other times, though, his moods took a darker turn. Bit by bit, his physical condition grew progressively worse and, at that time, medical science did not have much to offer in the way of treatment for MS. His ability to use his hands and arms became more difficult as his tremors and spasticity increased. He came to be less steady on his feet, which initially caused him to walk more slowly and with greater care, and eventually necessitated that he use a cane. His physical deterioration weighed heavily on him. He told me that he was having a hard time handling the decline in his abilities and that he thought, if his condition became bad enough, he would just “do himself in.” I was not sure whether he was serious or just being dramatic in expressing how terribly hard it was to accept the lessening of his capacities, but I spent a lot of time talking it through with him, and trying to get him to see that he still had a lot to live for. He was particularly fearful of having to use a wheelchair. I talked to him about the various people whom I knew who used wheelchairs but were leading very good lives, including John Lancaster, a Vietnam veteran whom I met in law school and who, after being paralyzed from a battle wound, had gotten his law degree, gotten married, and was forging a fine career as a disability advocate. Bob seemed to take in what I was saying but I could not be totally sure he was convinced by it. He recognized, accurately, that the relatively rapid progression of his disease meant that he could not be sure how much limitation he would ultimately have, which made his situation different from people whose conditions were more stable. At the time, the medical profession had not yet found any treatments that could reverse or slow down the progression of the disease. He had to deal with the known limitations that had already manifested themselves, plus the unknown ones that might occur in the future, and the precariousness of this uncertain future ate at him. I kept suggesting that he focus on his life in the present and not torture himself about what might or might not happen later. At some level, he was surely thinking, “Easy for you to say.”
Bob, Howard, and I all were counting on a positive outcome in the lawsuit to improve Bob’s vocational and financial situation, and give a boost to his emotional state. While both sides continued to prepare for trial, the attorneys entered into discussions exploring the possibility of working out a settlement to the case, centered on the defendants reinstating Bob in a government job. Negotiations disclosed, however, that the positions of the parties remained pretty far apart. A number of stumbling blocks to a voluntary resolution arose. We disagreed, for example, over: whether, if the case were settled, the defendants would be required to offer Bob a permanent position or a probationary one; whether such a position would be at the grade-level Bob would have been at if he had not been discharged; whether Bob would have to accept any employment position the defendants offered regardless of whether or not he found it appropriate or satisfactory; whether the terms of the settlement would have to be kept secret; whether all of the defendants would be granted access to all of Bob’s medical records; and whether Bob would have to pay for any medical records the defendants needed to identify an employment position for him. If the case was not resolved by settlement and proceeded to trial, on the other hand, additional legal issues (apart from the central ones concerning whether Bob’s termination violated his statutory and constitutional rights) would have to be fought out, such as whether Bob was entitled to a jury trial, whether he could recover monetary damages from the individual defendants, and whether he could be required to waive a privilege under Maryland law against disclosing psychiatric communications.
With various hearings and conferences addressing the dual tracks, aimed either at arriving at a settlement or proceeding to trial, the case dragged on. During this period, I continued to meet with Bob from time to time and talked with him about how he was holding up. His unemployment compensation had run out, intensifying his financial worries. He was frustrated by the lack of progress in our lawsuit. He had been very wounded emotionally by the State’s rejection of him as an employee, and felt that people just wanted to discard him as worthless. His physical condition, especially his ability to walk, had continued to worsen. During one of our conversations, he again told me that, in addition to everything else, he was freaked out about the prospect of having to use a wheelchair. I responded by elaborating on the ways in which people who used wheelchairs could lead very productive and satisfying lives. He heard me out, and then said, with a lot of feeling, “I remember when I could walk and run. I don’t think that I can handle knowing that I’ll never be able to again.” I tried to convince him that there were a lot of things other than walking and running to enjoy and make life worthwhile. I told him that he was a wonderful person who still had a lot more to give and lot more joy to experience.
A few weeks later, I got a phone call telling me that Bob had been admitted to the (Henry) Phipps Psychiatric Clinic at Johns Hopkins University as suicidal. This distressing news made it clear that his desperation had reached a critical level, and that my pep talks were far from adequate to mollify it. I was actually relieved that professional therapeutic expertise was now being focused on Bob’s distress. The treatment/crisis intervention was successful in averting the immediate crisis, and he returned home after a short stay. Once this crisis had passed, I resolved to redouble my efforts to push the lawsuit forward, and enlisted the help of my colleagues at our Law Project to assist my work on the case.
I interrupted my work only for a brief holiday visit to my family in Indiana. During that visit, I received a phone call from a member of our staff, who told me that Bob’s girlfriend had called with the devastating news that Bob had committed suicide. He had taken an overdose of pills. He left a suicide note, saying, in essence, “I can’t take it any more.” Ironically, because he could not hand write his suicide note, he recorded it on the same tape recorder on which he had previously recorded his parole and probation reports.
Part 5: Lessons from the Tragedy
Upon hearing of Bob’s death, I was overwhelmed with feelings of grief and guilt. The pain and anguish of having someone I knew well and cared about take his life was bad enough, but I was haunted by feelings that if I had done more, or said the right things, maybe this tragedy could have been averted. Had I anticipated that suicide was really a conceivable outcome for Bob, I would have done anything possible to prevent it. But Bob seemed so full of life and so resilient that I could not believe he would actually cut short his life. Even when he was admitted to Phipps, I took it more as a cry for help on his part, rather than evidence of a real threat that he would carry through on suicide. In retrospect, I should have grasped that he was seriously considering killing himself.
In addition to blaming myself, at times I wanted to blame Bob. When I was growing up, my mother often said that “suicide is a coward’s way out” – that a person who killed himself just left a load of grief and problems behind for those who were close to him, and I certainly felt some anger toward Bob for taking himself out of my life and leaving me with terrible sorrow. As time passed, however, I came to understand that while my mother’s sentiment had some truth to it and serves as a strong prophylactic measure – an admonition to put any thoughts of suicide out of your mind as just selfish – it imposes an overly harsh condemnation on people who carry out a decision to end their lives. No one really knows the depths of other individuals’ inner pain and demons well enough to stand in harsh judgment over them. Certainly, I did not know enough about Bob’s ghosts, internal turmoil, and physical pain to blame him for taking the way out that he did. I do know that, after being diagnosed with an incurable, degenerative disease that was progressing rapidly, he suffered a series of serious injustices, disappointments, setbacks, and delays. And that, after his having bravely resisted for a while, the combination of adverse circumstances finally wore him down. Many years later, I read the following lines written by American poet Dean Young:
“You start with a darkness to move through
but sometimes the darkness moves through you.”
I think that Bob tried his best to move through the darkness he encountered, but in the end the darkness overwhelmed him.
It took a long time for me to come to terms with the tragedy of Bob’s death and to get a broader perspective on why it happened. Obviously, I wish fervently that Bob had found a way to cope with the troubles and suffering he was experiencing. And I wish that I had done more for Bob, either in taking more seriously his references to doing himself in and somehow guiding him through them; or finding better therapeutic help for him, given that I was not trained or qualified to do suicide counseling; or by doing a better job in representing his legal claims. I can wish that the State had not played so much legal “hard ball” in reacting to his discrimination claims. But in the greater analysis, neither Bob himself, my shortcomings, nor the approach of our opposing attorneys was ultimately what went awry in this situation. Something bigger, more systemic went wrong – it was the law and our society that failed Bob.
After he was diagnosed with MS and lost his ability to continue to engage in his chosen, beloved pursuit as a jazz trumpeter, Bob did his part to adjust constructively to his changed circumstances. He got additional education and earned a master’s degree in counseling tailored toward a realistic job field in corrections counseling. He managed to get himself declared eligible for a good government job as a parole and probation counselor. After discussing his disability and resulting limitations at his job interview, he succeeded in getting hired. He purchased dictation equipment on his own dollar to enable him to record his reports. He did his job responsibly and competently, and was found to have performed successfully in all respects other than writing his parole and probation reports by hand. Bob made laudable efforts to cope with his situation. And what did he get in return? He got secretaries who refused to type his recorded reports and supervisors who refused to direct them to do so. He got written notice, two days before his probationary year ended, that he was being discharged specifically because of his disability, multiple sclerosis. He also received the State agency’s unconvincing assurances that it was sorry that it had to discharge him and that it wished him success in his future endeavors. He was given the further advice to contact the State Vocational Rehabilitation division regarding a position in some other state agency – advice that when Bob followed it led nowhere. After all his efforts to succeed in the job he had been hired for, Bob was tossed out like a broken guitar string.
Yet, even then, he refused to go quietly into the night. Recognizing that his employer had done him an extreme injustice, he set out to challenge the unfairness of the treatment he had received, through the American judicial system. He believed that he was in the right and that justice would prevail in the legal system. In many ways, he had had good reason to think so. He had a written admission from his employer that he was terminated only because of his disability, and there was a federal law that prohibited covered entities from excluding people because of disability. Had an employee received a written notice that she or he was being discharged because of race, color, religion, nationality, or gender, that document alone would be almost all the evidence needed to win a discrimination lawsuit, probably by summary judgment. Anticipating such a result, many defendant employers would be amenable to settling the case on terms favorable to the discharged employee. Yet, as Bob learned much to his disillusionment and consternation, the federal law addressing disability discrimination did not work that way.
Disability nondiscrimination law at the time was flawed and inadequate. One deficiency was that the scope of coverage was very narrow. Under the federal statute, no employers were covered by the nondiscrimination requirement unless they were federal grant recipients. Accordingly, people who alleged they had been subjected to discrimination because of disability had, as mentioned above, to track the flow of federal money and prove that some of it went to the discriminating office or program. This was often, as in the Brunner case, difficult to do. For other forms of discrimination (race, gender, etc.), the Civil Rights Act covered all employers of a certain size, whether or not they received federal funding. People with disabilities had no comparable protection from employment discrimination.
Not only was the disability nondiscrimination statute far too narrow, it was also inartfully drafted. For one thing, it did not say anything about what did and did not constitute discrimination on the basis of disability. This led to questions about whether employers had to make any changes in their workplaces and standard operating procedures to accommodate workers with disabilities, e.g., by having recorded reports transcribed. Other flaws in the language led to people complaining of discrimination having to prove the severity of their conditions prior to and independent of the showing that they had been discriminated against on the basis of disability – something not required under other types of nondiscrimination laws. And the standard that they were held to in proving the severity of their impairment was very high: that they were substantially limited in a major life activity. Thus, a person such as Bob, who had manifestly been treated unequally because of his disability, was required to provide extensive proof of the nature and extent of his condition, and show how it kept him from performing a major activity in his life – a showing that Bob and most people with disabilities are very disinclined to want to make. This approach also put a premium on medical analysis of the plaintiff’s condition and its effects, thereby medicalizing a discrimination case. And this focus on the medical parsing of disability led inevitably to making medical records of the plaintiff relevant and thus subject to being acquired by the opposing parties as part of the discovery process.
These shortcomings of the law at the time of Bob’s lawsuit made disability nondiscrimination actions onerous, unpleasant, harsh, and difficult-to-win for many people alleging such discrimination. For Bob, who, with good reason, believed himself to be in the right and his termination to have been outrageously unfair, he brought his case with the expectation that his rights would be surely and quickly vindicated. It was quite a jolt for him to find his lawsuit plagued by obstacles, by serious uncertainty about the ultimate outcome, and by numerous delays. The old legal maxim has it that "Justice delayed is justice denied." For Bob, the delays and uncertainty proved to be unbearable, truly “a bitter pill to swallow.”
Bob’s story is ultimately a story of waste – unnecessary waste of a precious human life. Bob tried his utmost to play the cards he was dealt, and made countless efforts to get his life, which was rerouted by MS, back on track. He failed, in part because our society has too often treated any deviation from normal ways of doing things to accommodate a person with a disability as too much trouble, and because people with disabilities are looked upon as disposable objects who can just be cast out if others do not want them around. Critically, Bob’s life was also unnecessarily and unfairly cut short because we did not have a law that prohibited discrimination on the basis of disability broadly and with a clear delineation of what kinds of conduct are prohibited and what people and agencies must do to avoid and eliminate such discrimination.
As I have continued later in my life to advocate for disability rights and to work toward the enactment of what came to be the Americans with Disabilities Act, I have tried to keep in mind the goal of providing legal protection for all the subsequent Bob Brunners – to make sure that they have the benefit of a clear and broad federal law prohibiting discrimination that Bob did not have. Along the way, I sometimes imagine Bob looking over my shoulder and wonder whether he would be satisfied with what we have done, and whether he would forgive us for not having done it earlier.
 Horace Ayres, “Handicapped Ex-Officer Files Bias Suit in Firing,” The Evening Sun, November 2, 1977, p. E5.
 Lou Panos, “Justice May Triumph But There Might Be a Delay or Two,” The Evening Sun, December 2, 1977, p. A11.
 Dean Young, “Bright Window” in Skid (University of Pittsburgh Press, 2002).