In a recent decision, the U.S. Court of Appeals for the Second Circuit upheld a grant of summary judgment in favor of a public nursing home where there were no reasonable accommodations that the facility could have made for an autistic adult volunteer who had allegedly sexually harassed several employees. McElwee v. Cnty. of Orange, No. 11-4366-CV, 2012 WL 5519354 (2d Cir. Nov. 15, 2012)


In 1996, James McElwee (McElwee) began participating in a volunteer program at Valley View Center for Nursing Care and Rehabilitation (Valley View), a federally funded entity operated by Orange County, New York (the County). McElwee had been diagnosed with neurodevelopmental disorder formally classified as Pervasive Developmental Disorder – Not Otherwise Specified and informally called an autism spectrum disorder. He has an IQ in the bottom 8% of intellectual capacity, lives with his mother, and has never held a paying job.

At Valley View, McElwee performed janitorial and housekeeping duties and transported nursing home residents to religious and social events. Both parties agreed that McElwee competently performed his assigned tasks and that the volunteer program improved his self-esteem because it allowed him to associate with people in the community and provide a service to the elderly.

In November 2009, a staff member at Valley View complained to her supervisor that on multiple occasions, McElwee had waited for her and followed her in the hallways, staring at her rear end. The staff member told her supervisor that there were at least two other women at Valley View who had complained about McElwee following them in the same manner.

Four days later, the supervisor met with McElwee to inform him that an employee had complained about his behavior and to discuss the allegations with him. When she asked McElwee if he knew who the complainant might be, McElwee replied that it might be a social worker named Lindsay because he “look(s) at her and talk(s) to her.” When the supervisor told McElwee that it was not Lindsay, he took another guess saying “I talk to her too, and look at her.” McElwee then told the supervisor that God was trying to punish him because of his “history,” and explained that when he was in high school he “made a mean phone call to a girl, saying nasty/dirty things.” McElwee also said “there needs to be punishment and now,” and made a gesture simulating slitting his throat.

The supervisor asked McElwee what he meant by “punishment” and he replied that he “deserve(d) to be punished when [he does] bad things.” McElwee then made an angry face and said, “just when I think someone is going to pat me on the back someone stabs me,” and made a stabbing gesture repeatedly. When the supervisor revealed the identity of the employee who had made the complaints, McElwee responded: “Oh, I should have known. I had a feeling she was going to turn me in.”

After this meeting, the supervisor spoke with Valley View’s Facility Administrator, who told her to conduct a further investigation regarding McElwee’s behavior if she was considering terminating his volunteer services. The next day, the supervisor informed McElwee that she was going to conduct an investigation and that he should not return to Valley View until the investigation was complete. McElwee began to cry and told the supervisor that she was a conduit of God. He said that God was telling him not to do these things anymore, and was punishing him for what he had done in the past.

During the supervisor’s investigation, five women reported that McElwee had behaved inappropriately toward them, and a security guard reported that he had seen McElwee bothering nursing students and visitors. Specifically, some of the women’s stories regarding McElwee’s behavior included: watching women and following them on their breaks; carrying around a stuffed dolphin that he asked one woman to pet, in a manner perceived as sexually suggestive; inquiring about dating an employee’s daughter in a way that made her feel uncomfortable; asking a female employee how he would look in a Speedo; and asking an employee “(d)o you realize what I could do to you?” in what she felt was a threatening way. Additionally, a security guard at Valley View observed McElwee leering at and acting inappropriately around female nursing students and visitors.

Based on these allegations, Valley View determined that McElwee should be terminated from his volunteer position. Upon learning this news, McElwee’s mother called Valley View and told the supervisor that McElwee “is not like everyone else” and that he should not be discriminated against because he has a disability and because he was looking at people. She asked the supervisor to call McElwee’s therapist, who could better explain why he acted the way that he did. The supervisor did not reach out to the therapist. Thereafter, Valley View sent McElwee a termination notice, excluding McElwee from volunteering and from the property.

The Lawsuit

On January 8, 2010, McElwee filed a lawsuit in the Southern District of New York, alleging that the County had violated the ADA and the Rehabilitation Act by dismissing him from the volunteer program and subsequently excluding him from the property without providing a reasonable accommodation for his autism. The County moved for summary judgment, which the District Court granted, finding that McElwee was not “substantially limited in the major life activity of interacting with others” and therefore was not “disabled” under the ADA or the Rehabilitation Act. McElwee v. Cnty. of Orange, No. 10 Civ. 00138 (KTD), 2011 U.S. Dist. LEXIS 114663, at *20 (S.D.N.Y. Sept. 29, 2011). Specifically, the court held, “while Plaintiff may suffer from a diagnosed disorder . . . Plaintiff has not demonstrated that his mental impairment substantially impairs his ability ‘to connect with others, i.e., to initiate contact with other people and respond to them, or to go among other people – at the most basic level of these activities.’” Thus, because the trial court found that McElwee did not meet the definition of disabled under the ADA and Rehabilitation Act, his case could not proceed.

The Appeal to the Second Circuit

On appeal, the Second Circuit affirmed the dismissal, albeit on different grounds. As a threshold issue, the court explained that to assert a claim under Title II of the ADA or section 504 of the Rehabilitation Act, a plaintiff must demonstrate that: (1) he is a qualified individual with a disability; (2) the defendant is subject to one of the Acts; and (3) he was denied the opportunity to participate in or benefit from the defendant’s services, programs, or activities, or was otherwise discriminated against by the defendant because of his disability. Under these statutes, a “disability” is defined as “a physical or mental impairment that substantially limits one or more major life activities.” A defendant discriminates when it fails to make a reasonable accommodation that would permit a qualified disabled individual “to have access to and take a meaningful part in public services.”

The parties disputed whether the first and third elements of the test were satisfied, i.e., whether McElwee is a qualified individual with a disability and whether the County discriminated against him by denying him a reasonable accommodation. As to the first issue, the Second Circuit declined to rule on whether the District Court erred in its holding that McElwee was not disabled. While recognizing that there was merit to McElwee’s argument that he did have a disability, the court declined to rule because the court affirmed on other grounds.

The court then addressed the second issue: whether McElwee’s dismissal from Valley View’s volunteer program was unlawful discrimination because he was not provided a reasonable accommodation for his disability. McElwee argued that Valley View should have: (1) worked with him and his therapist to help him behave more appropriately in the workplace; and (2) worked with the Valley View employees who complained about him to educate them about McElwee’s disability so that they would be more tolerant of his behavior.

The Court rejected McElwee’s argument for two reasons. First, it noted that McElwee’s claim was as much a request to excuse his past misconduct as it was a request for future accommodation. Specifically, McElwee did not dispute that he followed and stared at female employees or that his conduct was reasonably perceived by others as inappropriate. It was also undisputed that when the supervisor asked him about this behavior, he engaged in perseveration and made disturbing statements and gestures. The court held that this inappropriate behavior was indisputably a legitimate non-discriminatory reason for dismissing McElwee from the volunteer program, even if the behavior resulted from his disability.

Second, the court held that even if Valley View should have proactively accommodated McElwee’s disability, McElwee’s requests for accommodations were unreasonable on their face. The first accommodation McElwee proposed was that Valley View should have spoken to his therapist or “encourage(d) him to obtain particularized therapy to help him behave more appropriately in the workplace and . . . better interact with colleagues.” The court found that nothing in the record indicated that further therapy or speaking with his therapist would have helped McElwee conduct himself appropriately in the workplace.

Next, the court held that the second requested accommodation, for Valley View to work with the women who complained about his behavior “to educate [them] about plaintiff’s disability or to [help them] better understand the nature of [their] concerns about plaintiff,” was unreasonable as a matter of law. The court reasoned: “(t)his proposed accommodation does not even purport to address McElwee’s inappropriate behavior; instead, it simply demands that others be more tolerant. Requiring others to tolerate misconduct, however, is not the kind of accommodation contemplated by the ADA.”

Thus, because McElwee had failed to demonstrate how Valley View could have reasonably accommodated him, the court held that the grant of summary judgment in favor of the County was appropriate.


Although McElwee technically is not an employment case because it involved a volunteer program operated by a public entity, the reasoning applies equally to the employment setting and demonstrates that there are important limits on the obligation of a public program or employer to reasonably accommodate a participant or employee who engages in inappropriate conduct, even if it is arguably related to an underlying disability.