NCIL is going on the record in opposition the nomination of Judge Andre Davis to Maryland’s Fourth Circuit Court of Appeals.  While NCIL does recognize and appreciate Judge Davis’ efforts on civil rights for other marginalized groups of people, NCIL cannot and will not support a nominee to the bench with as bad a record on Disability Employment decisions as Judge Davis.

Your Help is Needed!  Look at the table below to see if your U.S. Senator is on the Judiciary Committee.  The voice of the disability community needs to be heard loud and clear that we need judges who respect the laws of the land, including the ADA and the ADA Amendments Act.  By calling your US Senator who is on the Judiciary Committee, you will make that voice heard.

Senators on the Judiciary Committee:

•          Patrick Leahy, Chair (D-VT)

•          Herb Kohl (D-WI)

•          Diane Feinstein (D-CA)

•          Russ Feingold (D-WI)

•          Charles Schumer (D-NY)

•          Richard Durbin (D-IL)

•          Ben Cardin (D-MD)

•          Sheldon Whitehouse (D-RI)

•          Ron Wyden (D-OR)

•          Amy Klobuchar (D-MN)

•          Ted Kaufman (D-DE)

•          Arlen Specter (no longer ranking member) (D-PA)

•          Orin Hatch (R-UT)

•          Charles Grassley (R-IA)

•          Jon Kyl (R-AZ)

•          Jeff Sessions (R-AL)

•          Lindsey Graham (R-SC)

•          John Cornyn (R-TX)

•          Tom Coburn (R-OK)

The Message: Here is a sample of a statement you can make to your Senator when calling or e-mailing them to oppose the Nomination of Judge Davis to Maryland’s Fourth Circuit Court of Appeals.  If you have questions about this issue, or the message, please call Jason Beloungy at NCIL.  He can be reached by phone at 1-877-525-3400, ext. 1008 or by e-mail at: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

I am calling/writing today to ask Senator ______ to oppose the nomination of Judge Andre Davis to Maryland’s Fourth Circuit Court of Appeals, and ask that Senator _____ vote NO to recommend his confirmation to the Senate.  I appreciate that Judge Davis has reached decisions favorable to the plaintiffs in cases involving issues such as physical access to courthouses and housing developments, and effective communications with medical providers.  These cases do not, however, lessen my concerns about Judge Davis’s record in the area of employment discrimination, in which people with disabilities fare particularly poorly.

The selection of judicial nominees is extraordinarily important to the disability community given the serious obstacles that individuals with disabilities have faced in trying to enforce their rights in the courts, particularly in the context of workplace discrimination.  The Fourth Circuit is of concern, since that court has decided many significant disability rights decisions by divided panels. 

Advocates in Maryland have reported that as a district court judge in Maryland, Judge Davis has a record of highly problematic rulings in disability rights cases.  He has repeatedly imposed inappropriately stringent standards that have prevented individuals with disabilities from enforcing rights under federal antidiscrimination laws, particularly in the area of employment.  Disability Organizations have been able to find only one published decision, in nearly 14 years on the bench, in which Judge Davis ruled in favor of a plaintiff on the substance of an ADA employment discrimination claim.  In some cases, his rulings are inconsistent with the plain language of the ADA.

Although these cases are fact intensive, and so perhaps subject to differing interpretations, the trend is disturbing: Judge Davis simply appears unsympathetic to the efforts of persons with disabilities to obtain and maintain employment, as a means of becoming independent, fully-participating members of their communities.

The ADA’s protections are critical to the efforts of people with disabilities to obtain and maintain employment and to become independent and fully participating members of their communities.  I am very concerned that Judge Davis’s elevation to the Fourth Circuit will do little to ensure that their rights are protected.  I hope that Senator _____ will recognize that and will take seriously the concerns of people with disabilities in the Judiciary Committee’s consideration of Judge Davis’s nomination.  Thank You.

More Facts to support your argument:

 Judge Davis has made it exceedingly difficult for people to show that they are individuals with disabilities entitled to the protections that Congress provided in the ADA.  See, e.g., Rose v. Home Depot U.S.A., Inc., 186 F. Supp.2d 595 (D. Md. 2002); Martell v. Sparrows Point Scrap Processing, LLC, 214 F. Supp.2d 527 (D. Md. 2002)

He has incorrectly imposed procedural hurdles on ADA plaintiffs that are contrary to the ADA’s requirements.  See Campbell v. Federal Express Corp., 918 F. Supp. 912 (D. Md. 1996).

He has applied cramped interpretations of law to reject the discrimination claims of workers with disabilities.  See, e.g., Fitch v. Solipsys Corp., 94 F. Supp.2d 670 (D. Md. 2000); Walton v. Guidant Sales Corp., 417 F. Supp.2d 719 (D. Md. 2006)

Judge Davis also appears to maintain a too-demanding standard for what constitutes disability-based discrimination.  In Fitch v. Solipsys Corp., 94 F. Supp.2d 670 (D. Md. 2000), Judge Davis granted summary judgment to the employer on the disabled plaintiff’s discrimination and harassment claims, even though one of the company’s owners and another owner’s son referred to the plaintiff in his presence, on different occasions, as a “cripple,” and he was repeatedly denied requested accommodations for his heart condition and lifting restriction.

Judge Davis has incorrectly imposed procedural hurdles on ADA plaintiffs that are contrary to the ADA’s requirements.  See Campbell v. Federal Express Corp., 918 F. Supp. 912 (D. Md. 1996).

Finally, Judge Davis requires even pro se ADA litigants to overcome significant hurdles in exhausting their claims before filing.  See Walton v. Guidant Sales Corp., 417 F. Supp.2d 719 (D. Md. 2006).

Rose v. Home Depot U.S.A., Inc., 186 F. Supp.2d 595 (D. Md. 2002)

Despite fact that nothing in the ADA requires that a person with a disability have a treatment plan to obtain ADA protections, Davis held that a plaintiff whose vasomotor rhinitis affected his breathing, sleeping, and working did not have a disability because he did not have a treatment plan in place for his rhinitis.

Martell v. Sparrows Point Scrap Processing, LLC, 214 F. Supp.2d 527 (D. Md. 2002)

Davis held that the employer did not regard a job applicant as disabled, even though the employer did not hire the applicant as a crane operator precisely because of his “abnormal” hearing.

Campbell v. Federal Express Corp., 918 F. Supp. 912 (D. Md. 1996)

Davis dismissed this employment discrimination claim for failure to exhaust administrative remedies because the plaintiff, who was denied a job as a courier due to his limited hand mobility, did not challenge Federal Express’s refusal to hire him with the federal Department of Transportation; the ADA has never required plaintiffs in employment discrimination cases to exhaust remedies with any federal agency except the EEOC.

Fitch v. Solipsys Corp., 94 F. Supp.2d 670 (D. Md. 2000)

Davis granted summary judgment to the employer on disability discrimination and harassment claims, finding that employee who was repeatedly denied accommodations for a heart condition and lifting restriction did not have a disability and was not regarded as disabled even though employer and employer’s son called him a “cripple” on different occasions, and that this conduct was not harassment

Walton v. Guidant Sales Corp., 417 F. Supp.2d 719 (D. Md. 2006)

Davis dismissed disability the discrimination claim of pro se plaintiff for failure to timely file a charge with EEOC, despite the EEOC’s own determination that plaintiff’s charge was timely filed, and refused to apply equitable tolling even though the plaintiff had contacted EEOC on numerous occasions to inquire about the status of his administrative charge, was initially sent the wrong form by EEOC, alleged that he timely filed the corrected form that he was sent after informing EEOC of their mistake, and was helped by EEOC to complete another charge after the deadline because they had experienced problems with their data management system and could not find his charge form.