July 22, 2017

Archives for July 5, 2017

Tenth Circuit: Case Law Does Not Support EEOC’s Request for Broad Subpoena

The Tenth Circuit Court of Appeals issued its opinion in Equal Employment Opportunity Commission v. TriCore Reference Laboratories on February 27, 2017.

The Equal Employment Opportunity Commission (EEOC) is empowered to investigate charges of discrimination and enforce both Title VII, which prohibits employers from discriminating based on sex, including pregnancy, and the Americans with Disabilities Act of 1990 (ADA) which prohibits employers from discriminating against employees on the basis of their disability and requires employers to make “reasonable accommodations” to qualified individuals. When investigating charges of discrimination, the EEOC may obtain evidence that relates to unlawful employment practices covered by Title VII and is relevant to the charge under investigation. If the employer refuses to comply, the EEOC may issue a subpoena compelling production. If the employer does not respond to the subpoena, the EEOC may apply to a federal district court for an order compelling the employer to comply.

Kellie Guadiana worked for TriCore Reference Laboratories as a phlebotomist, which is someone who draws blood. She requested accommodations due to her rheumatoid arthritis, which was exacerbated by her pregnancy. TriCore’s human resource department determined Ms. Guadiana could not perform the essential functions of her position safely. The HR department offered her the opportunity to apply to other positions within the company. When Ms. Guadiana did not apply to a new position, TriCore terminated her.

Ms. Guadiana filed a charge of discrimination with the EEOC alleging that TriCore discriminated against her due to her disability (rheumatoid arthritis) and sex (pregnancy). TriCore explained to the EEOC that it had provided reasonable accommodations by offering her the chance to apply to a new position within the company. EEOC explained that this was a violation of the ADA because the ADA required TriCore to reassign Ms. Guadiana rather than merely provide her with the opportunity to apply to a new position. TriCore statement led the EEOC to suspect that TriCore had a company policy or practice of refusing to provide reassignment as a reasonable accommodation. Due to this, the EEOC informed TriCore in a letter that it was expanding the scope of its investigation to include the failure to accommodate persons with disabilities and failure to accommodate women with disabilities due to pregnancy.

The EEOC sent TriCore another letter requesting a complete list of TriCore employees who had requested an accommodation for disability and a complete list of TriCore employees who had been pregnant while at TriCore and whether they sought or were granted accommodations. TriCore refused to comply. The EEOC subpoenaed the information. When TriCore refused to comply, the EEOC submitted an application to the US District Court for the District of New Mexico requesting an order to show cause why the subpoena should not be enforced. The district court denied the EEOC’s application noting that the EEOC’s real intent in requesting the information was difficult to pin down.

The issue on appeal was whether the district court erred in declining to enforce the EEOC’s subpoena. The Tenth Circuit reviewed the district court’s decision for abuse of discretion. The Tenth Circuit held that the district court did not abuse its discretion in denying the enforcement of either the disability request, which the EEOC asserted was relevant to its investigation into whether TriCore had a policy of discrimination (i.e., pattern-or-practice evidence), or the pregnancy request, which EEOC asserted was relevant to the investigation whether TriCore treated Ms. Guadiana less favorably than similarly situated employees (i.e., comparator evidence).

Under U.S.C. §2000e, the EEOC is empowered to investigate charges of discrimination. But the EEOC has the burden to demonstrate the relevancy of the information sought in a subpoena. The Tenth Circuit referenced the Supreme Court’s decision in University of Pennsylvania v. EEOC, when stating the law that the EEOC does not need to provide a “specific reason” for requesting the information. However, the Tenth Circuit further cites that case for the law that the EEOC still bears the burden of showing the relevancy of the subpoenaed information. To do so, the Tenth Circuit held that the EEOC must show that it has a realistic expectation that the information requested would advance the investigation. The EEOC must also establish a link between the EEOC’s investigatory power and the charges of discrimination.

The Tenth Circuit held that the EEOC’s intent was difficult to pin down. With regard to the pattern-or-practice evidence, the Tenth Circuit held that the district court did not abuse its discretion in denying the EEOC’s request. The Tenth Circuit held that TriCore’s admission that it did not reassign Ms. Guadiana did not justify the EEOC’s expanded investigation beyond its initial investigation into Ms. Guadiana’s individual case. The Tenth Circuit held that the EEOC’s letter informing TriCore of its expanded investigation did not constitute a “charge” of discrimination, which is required under §2000e-8 for the EEOC to seek information about alleged discrimination. The EEOC had not alleged anything suggesting a pattern or practice of discrimination by TriCore. Therefore, the Tenth Circuit held that the district court did not abuse its discretion in finding TriCore’s alleged violation of the ADA, without more, was insufficient to warrant the EEOC’s expanded investigation. The EEOC did not satisfy its burden to justify its expanded investigation.

Next, the Tenth Circuit held that the EEOC waived the disability request part of its comparator-evidence argument on appeal. This was due to the fact that the EEOC limited its comparator-evidence argument on appeal to the pregnancy request. Therefore, the Tenth Circuit considered only the pregnancy request.

The Tenth Circuit held that the EEOC’s pregnancy request could seek information that was potentially relevant to Ms. Guadiana’s charge, which could tend to prove she was denied an accommodation on the basis of her disability. However, the EEOC did not present those relevance arguments in district court. Therefore, the Tenth Circuit held that the EEOC failed to meet its burden of explaining how the pregnancy request would offer information relevant to Ms. Guadiana’s charge. The Tenth Circuit held that the district court did not abuse its discretion.

The Tenth Circuit affirmed the district court’s holding.

Tenth Circuit: Brand Inspection Division is Entitled to Eleventh Amendment Immunity

The Tenth Circuit Court of Appeals issued its opinion in Colby v. Herrick on March 1, 2017.

This case stemmed from a battle between Ms. Colby and her mother over the ownership of a horse. The mother complained to the Colorado Department of Agriculture, which sent someone from the Brand Inspection Division (Division) to investigate the situation. After investigating, the inspector seized the horse. Ms. Colby and her mother settled the ownership dispute in court and after three years, Ms. Colby prevailed and received the horse back. Ms. Colby and her husband then sued the Division and two of its officers. The district court dismissed the action.

The Tenth Circuit first addressed the Division as a defendant in the suit. It held that the Division was entitled to Eleventh Amendment immunity as an arm of the state and therefore could not be sued in federal court. Further, the Tenth Circuit held that because the Division was an arm of the state entitled to Eleventh Amendment immunity, the Colbys could not sue the two officers in their official capacity.

The Tenth Circuit reviewed the Eleventh Amendment immunity issue de novo. The Eleventh Amendment extends to governmental entities that are considered arms of the state. When determining if the Division was an arm of the state, the Tenth Circuit laid out five factors that it considered: (1) how the Division is characterized under Colorado law; (2) how much guidance and control the state of Colorado exercises over the Division; (3) how much funding the Division receives from the State; (4) whether the Division enjoys the ability to issue bonds and levy taxes; and (5) whether the state of Colorado bears legal liability to pay judgments against the Division.

The Tenth Circuit held that the first factor weighed in favor of regarding the Division as an arm of the state. This was due to the fact that Colorado law treats the Division as part of the state government. Additionally, the Division participates in state government as a state agency and the agency’s inspectors are Colorado law enforcement officers with the power to make arrests for violations of state law.

The Tenth Circuit held that the second factor also weighed in favor of regarding the Division as an arm of the state. This was because the Division is considered part of the state Department of Agriculture and is therefore subject to control by state officials.

With regard to the third factor, the Division is entirely self-funded. Additionally, with regard to the fourth factor, the State Board of Stock Commissioners is entitled to issue bonds worth up to $10 million to pay the Division’s expenses. The Tenth Circuit held that these two factors by themselves would cut against Eleventh Amendment immunity. However, the Tenth Circuit held that because the Division is entitled to participate in the Colorado risk management fund, which obtains money from state appropriations, that use of state money supports consideration of the Division as an arm of the state.

The Tenth Circuit held that it was unclear whether the State bears legal liability to pay a judgment of the Division.

Therefore, because the first and second factors clearly support characterization as an arm of the state, and the third and fourth could go both ways, the Tenth Circuit held that the balancing of all of the factors led it to regard the Division as an arm of the state. Therefore, the Division was entitled to Eleventh Amendment immunity. The Tenth Circuit held that the district court did not err in dismissing the claims against the division. However, it did hold that the dismissal with prejudice was a mistake. Because Eleventh Amendment immunity is jurisdictional, the Tenth Circuit held that the dismissal should have been without prejudice.

The Tenth Circuit next addressed the Eleventh Amendment immunity issue with regards to the Divisions’ two officers on the official-capacity claims for damages. The Tenth Circuit held that the officers were entitled to immunity in their official capacitates on behalf of the Division being an arm of the state. Therefore, The Tenth Circuit held that the officers were entitled to dismissal on the official-capacity claims for damages. However, just as with the Divisions Eleventh Amendment claim, because Eleventh Amendment immunity is jurisdictional, the district court should have dismissed the claim without prejudice.

The Tenth Circuit finally addressed the federal personal-capacity claims against the officers for damages. The district court had dismissed these claims based on timeliness. The Tenth Circuit stated that the Colbys claims had a two year statute of limitations. Further, the Tenth Circuit determined that the suffered damage accrued when the horse was seized on July 22, 2011. That action triggered the statute of limitations period. Because the Colbys did not sue until nearly three years later, the Tenth Circuit held that the claims were time-barred.

The Tenth Circuit addressed the Colbys’ argument that the statute of limitations should not have started until they were denied a timely post-deprivation hearing. The Tenth Circuit held that, even if this claim was accurate, that would only have moved the statute of limitations period six weeks in the future, which would still have resulted in the statute of limitations running out before the suit was filed.

Finally, the Tenth Circuit held that the continued violation doctrine did not apply to this case because the complaint does not base the claim on any acts taking place after July 22, 2011. Though the Colbys did not have their horse for three years, and therefore damages continued that entire period, the wrongful acts occurred only on July 22, 2011. Therefore, the Colbys’ claims against the officers in their individual capacity were time-barred.

In sum, the Tenth Circuit held that the Division and the officers in their official capacities were entitled to Eleventh Amendment immunity. However, because the district court dismissed these claims with prejudice, the Tenth Circuit remanded them for the limited purpose of directing the district court to make the dismissals without prejudice. Additionally, the remaining federal claims against the officers were properly dismissed based on the expiration of the statute of limitations.

Tenth Circuit: No Appellate Jurisdiction Where Qualified Immunity Denial Not Timely Appealed

The Tenth Circuit Court of Appeals issued its opinion in Powell v. Miller on March 7, 2017.

Powell was released from death row and sued the prosecutor responsible for his overturned conviction, Miller. Powell charged that Miller had suborned perjury from a key witness at his trial, Derrick Smith, and had hidden from the defense evidence of Miller’s agreement to help Smith with his own criminal charges. Miller filed a motion to dismiss. The district court granted the motion in part, but denied qualified immunity on certain claims. Miller did not appeal the ruling.

Three years later, Miller filed a motion to reconsider the denial of qualified immunity. The district court denied that motion because Miller did not present a substantive basis for the court to change its opinion. Miller appealed the denial of his motion to reconsider.

The Tenth Circuit held that a district court’s pretrial denial of a qualified immunity defense, to the extent it turns on an issue of law, is an appealable final decision. But here, the Tenth Circuit held that Miller did not appeal from the district court’s order denying his qualified immunity defense. Instead, Miller appealed from the district court’s order denying reconsideration of that ruling almost three years later. Therefore, the Tenth Circuit held that it lacked jurisdiction to consider the district court’s order denying Miller’s motion to reconsider. It held that Miller could not use his motion for reconsideration to resurrect his right to appeal the district court’s order denying him qualified immunity.

Therefore, the Tenth Circuit dismissed Miller’s appeal due to lack of jurisdiction.

Tenth Circuit: Unpublished Opinions, 7/3/2017

On Monday, July 3, 2017, the Tenth Circuit Court of Appeals issued four published opinions and two unpublished opinions.

United States v. Arnold

United States v. Fishman

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.