ADA case involving unleashed service dog will proceed to trial

Do service animals need to be kept on a leash? It all depends on whether their owners are capable of holding a leash. That was Judge Rice’s conclusion in a summary judgment order issued late last week.

Cheryl Olson came to the AARP Foundation in Spokane for help finding a job. She arrived with her service dog, Boomer, whom she relied on for mobility assistance. The Foundation welcomed Ms. Olson and Boomer with open arms.

For months, everything went fine. Ms. Olson made regular visits to the Foundation’s office with Boomer by her side. She met with her job coach, received training, and submitted job applications. Boomer waited, lying patiently on the floor.

(This is not Boomer. But the visual is spot-on.)

But Boomer lying on the floor proved to be controversial. Some of the Foundation’s staff complained that Boomer posed a tripping hazard in the Foundation’s cramped quarters. The Foundation responded by asking Ms. Olson to keep Boomer on a leash at all times.

In theory, the Foundation was on solid footing in requesting that Boomer be kept on a leash. Title III of the Americans With Disabilities Act requires that service animals be kept “under the control” of their handler. The applicable regulation expressly references the use of a leash:

A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).

28 C.F.R. 36.302(c)(4).

The problem was that Ms. Olson suffered from degenerative disc disease and rheumatoid arthritis that made it difficult for her to hold Boomer on a leash. She explained that problem to the Foundation, but the Foundation held firm. It refused to allow Ms. Olson to visit its offices unless Boomer was leashed at all times.

Ms. Olson brought claims for failure to accommodate under Title III of the ADA, Section 404 of the Rehabilitation Act, and the Washington Law Against Discrimination (WLAD). Both parties moved for summary judgment.

In an order issued last week, Judge Rice unleashed the case for trial. He ruled that Ms. Olson’s claims were viable to the extent she required an accommodation for her “inability to hold the leash of her service dog.” Judge Rice ruled that a factfinder would need to decide whether Ms. Olson had properly requested such an accommodation — and, if so, whether the Foundation could have reasonably accommodated her.

Ms. Olson’s attorney, Paul Stewart, said his client was pleased with the decision. “The Court’s ruling showcased its thoughtful consideration of the issues,” Stewart said. “Ms. Olson had hoped the Court might rule that the leash policy violated the ADA and WLAD as a matter of law, but it stopped short of doing so.  Nonetheless, her liability case remains strong.  We look forward to taking the case to trial.”

The case is Olson v. AARP, Inc., et al., Case No. 17-CV-0426-TOR. Olson is represented by Paul Stewart and Alex Wilson of Paine Hamblen, both of whom are serving as appointed pro bono counsel through the Eastern District of Washington’s Pro Bono Program. To join the panel of attorneys who are invited to accept pro bono appointments, contact Kammi Mencke Smith, President of the EDWA Federal Bar Association, at kms@winstoncashatt.com.