May 18, 2013

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Tenth Circuit: Summary Judgment for Defendants Affirmed in ADA Case

May 17, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Koessel v. Sublette County Sheriff’s Dep’t on Tuesday, May 14, 2013.

Kevin Koessel was terminated from his position as a deputy sheriff in Sublette County, Wyoming. In response, Koessel brought a suit in district court against the Sheriff and the County alleging they violated the Americans with Disabilities Act (ADA), breached his employment contract, and violated his substantive and procedural due process rights. The district court granted the defendants’ motion for summary judgment.

Koessel had a stroke in 2001 and was placed on administrative leave while he recovered. He eventually was cleared by his doctor for full-time work with a restriction of no overtime. He worked a desk job, although he was permitted to make traffic stops during his 40-mile commute. After his return to full-time work, some officers complained about Koessel to the Sheriff. One complaint was that he forgot a word during a traffic stop and became flustered. Others complained he lost his temper while on duty. In April 2009, the Sheriff placed Koessel on administrative leave and ordered him to undergo a medical examination by a neurologist, Dr. Moress. Dr. Moress found that “[s]trictly from a neurological standpoint he would be able to work, but there are potential problems to cognitive functioning that may have resulted from the stroke and should be investigated.”

At Moress’s recommendation, Koessel was seen by a psychologist, Dr. Enright, who gave him a standardized test. Koessel’s score was unchanged from when he had taken it pre-stroke. Dr. Enright recommended Koessel be placed in a position without high stress or regular contact with the public because his “‘mild to moderate fatigue, episodes of lightheadedness and episodes of emotional disinhibition (weeping)’ could interfere with the performance of some of his patrol officer duties.”

After returning to a different temporary job for a few weeks, Koessel was again placed on leave and then terminated. The termination letter stated the reason for termination was because Koessel was not medically cleared to perform any available position in the Sheriff’s office. The letter told Koessel he had five days to file a written request for a hearing, which he did not do.

On appeal, Koessel argued that the defendants fired him based on a perceived disability when he was not actually disabled. Despite the fact that this case was filed after the effective date of the ADAAA, the Tenth Circuit used the old definition of perceived as disabled. This ultimately made no difference in outcome because the court decided it need not address whether Koessel was disabled or perceived as disabled because he failed to show he could perform the essential functions of the job. The court also found Koessel failed to identify a vacant position he could have been reassigned to as a reasonable accommodation.

Koessel’s breach of contract claim was based on Wyoming law requiring cause to terminate a deputy sheriff related to ability and fitness to perform his or her duties. The court found that cause was present and he received the required notice and opportunity to be heard. The court rejected Koessel’s procedural due process claim for similar reasons. Finally the court rejected Koessel’s substantive due process claim and affirmed summary judgment on all claims.

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Colorado Businesses Beware – ADA Public Accommodation “Drive-By” Lawsuits On The Rise

October 18, 2012 by 1 Comment

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Known as “Drive-By Litigation,” Colorado is getting hit by a rash of lawsuits alleging that businesses are violating Title III of the Americans With Disabilities Act (ADA). Since April of this year, 20 lawsuits (and counting) have been filed against Denver area businesses by the same Plaintiff who is represented by the same two attorneys from Florida, for alleged violations of Title III of the ADA, including things like lack of ramps, narrow doorways, missing signage, doorknobs that can’t be opened by a closed fist, and misplaced soap dispensers and coat racks.

Most of the businesses are in well-to-do areas of Denver, such as The Highlands, LoDo, LoHi, and SoBo, and include everything from popular restaurants, hair salons, day spas, tobacco shops, muffler shops, delis, and donut shops, to even a motel and a tile and linoleum shop. Channel 7 News recently ran a news story that is worth viewing called “Colorado Businesses Claim Identical ADA Lawsuits Filed By Florida Attorney ‘Extortion.’”

What Is “Drive-By Litigation”?

Although premised on the altruistic goal of fighting disability discrimination, these suits have become a profit-driven, litigation machine of high volume, boilerplate complaints, filed with the ultimate goal of squeezing business owners so that the plaintiffs and their attorneys can profit quickly from cash settlements in the tens of thousands of dollars.

The problem with these cases is that the vast majority are not situations where a disabled individual truly felt discriminated against and sought out an attorney to help redress an injury due to a lack of accommodation. Instead, it is the lawyers who hire investigators to identify local businesses that are not in technical compliance with the ADA, and then recruit plaintiffs from disability advocacy groups to serve as the front person. The investigators take pictures and build the case while the plaintiffs merely “drive by” the establishment, without any honest intentions of ever servicing the establishment.

Once the boilerplate suit is filed, questionable litigation tactics are then employed, such as serving immediate discovery in violation of the rules, asking the courts to order the parties to a settlement conference to force a quick settlement, and refusing to accept agreements or assurances of ADA compliance without monetary payments, even though the ADA itself does not allow damages to be awarded to plaintiffs (the ADA allows only injunctive relief and attorneys’ fees).

Earlier this year, the New York Times reported that “[i]n the last year, 3,000 [accessibility] suits, including more than 300 in New York, were brought under the Americans With Disabilities Act, more than double the number five years ago.” Other states hit hard have been Ohio, Florida, California and North Carolina. This is an unfortunate and lucrative cottage industry in the legal profession, preying on small businesses who often times opt for settlement over litigation to avoid legal costs since they don’t have resources like Wal-Mart. But, in some cases, where business owners decide to fight back, courts have dismissed the suits, sanctioned the plaintiff’s attorneys for unscrupulous litigation tactics, and/or awarded attorneys’ fees to prevailing business owners.

What Can Businesses Do Before They Get Sued?

If you have not done an audit lately, or ever, it is a good idea to conduct an ADA accessibility audit. Self-audits can be done with good checklists, or by a professional. Also, it is important for business owners to review their insurance coverage to see if they have, or can obtain, insurance coverage for accessibility lawsuits.

What Can Businesses Do If They Get Sued?

You are not alone, so don’t go it alone. Engage competent counsel to protect your rights as a business owner. Legal arguments can be made to dismiss certain claims or to dismiss the entire case at the onset of litigation or after discovery, which can save thousands of dollars in legal fees.

Jennifer L. Gokenbach is the founder and principal attorney of Gokenbach Law, a boutique law firm that specializes in labor and employment matters. As a trial lawyer, Jennifer has successfully handled a wide variety of employment disputes, including discrimination, harassment, retaliation, disability, wage & hour, breach of contract, and other employment-related claims under both federal and state law. She also writes the Colorado Employer’s Law Blog, where this article originally appeared.
She also provides consulting services with respect to workplace investigations, fair pay and wage & hour audits, training, and drafting workplace policies. Prior to starting her own firm, Jennifer was a Shareholder with Ogletree, Deakins, Nash, Smoak & Stewart, P.C., one of the nation’s largest labor and employment firms.
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Tenth Circuit: Defenses Do Not Confer Federal Question Jurisdiction

October 10, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Firstenberg v. City of Santa Fe on Tuesday, October 9, 2012.

Arthur Firstenberg allegedly suffers from electromagnetic hypersensitivity (EHS), which requires him to avoid exposure to sources of electromagnetic radiation. One source is cell-phone towers, sometimes called “base stations,” which emit a form of energy known as radiofrequency (RF) radiation. After an AT&T Mobility Services, LLC upgrade to 3G increased the amount of RF radiation coming from its base stations, Firstenberg petitioned for a writ of mandamus in New Mexico state court, naming the City of Santa Fe and AT&T as defendants. AT&T did not apply for or obtain special exceptions from the City prior to initiating the upgrade. Mr. Firstenberg believed this was improper under § 14-3.6(B)(4)(b) of the City’s Land Development Code, which requires the City’s Board of Adjustment to approve an additional special exception if there is a “more intense use” of an existing structure.

In Firstenberg’s petition, he mentioned Title II of the Americans with Disabilities Act and the Fifth and Fourteenth Amendments of the Constitution under his argument section. He did not mention them in his cause of action or prayer for relief sections. The state court issued a writ of mandamus ordering the City to prohibit the 3G broadcasts unless and until special exceptions were granted or to show cause why it had not done so. AT&T and the City then removed the action to federal district court and each filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court concluded it had federal question jurisdiction and dismissed both claims, holding that the federal Telecommunications Act of 1996 (TCA) preempted the City’s authority to regulate AT&T’s upgrade.

Before oral argument in the Tenth Circuit, the court “asked the parties to file supplemental briefs addressing whether Mr. Firstenberg’s complaint was sufficiently ‘well-pleaded’ to satisfy the requirements for federal-question jurisdiction under 28 U.S.C. § 1331.” To arise under federal law, Firstenberg’s complaint  (his petition for mandamus) must have established that federal law created his cause of action or that his right to relief necessarily depended on resolution of a substantial question of federal law. The Tenth Circuit went through the federal laws mentioned in the complaint and held that all those issues were only mentioned as an anticipated defense (the TCA) or as responses to that defense. Because defenses, whether anticipated or asserted, are not enough to confer federal jurisdiction, the court reversed the dismissal and remanded the case to the district court to remand the case to state court.

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Tenth Circuit: Job Transfer for Purpose of Medical Treatment May be Reasonable Accommodation under the Rehabilitation Act

September 20, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Sanchez v. Vilsack on Wednesday, September 19, 2012.

Clarice Sanchez was a secretary for the U.S. Forest Service in Texas who had fallen down stairs at work, which resulted in a brain injury that impaired her vision. Her vision loss was permanent and uncorrectable. She sought a hardship transfer to Albuquerque, where she had family and friends who could assist her and where she could receive medical treatment that was unavailable in her Texas location. Sanchez was not given a permanent transfer to Albuquerque, despite two open positions with equivalent pay that she was qualified for. After experiencing a hostile work environment, Sanchez took a pay cut to take a lower level Forest Service job in Albuquerque.

Sanchez sued her employer for failure to accommodate and hostile work environment under the Rehabilitation Act. The district court granted summary judgment for the Forest Service on both claims, after deciding the plaintiff was not disabled. Whether a person is disabled under the Rehabilitation Act is analyzed under the same standards as the Americans with Disabilities Act (ADA). Because this was a pre-ADA Amendments Act case, the Tenth Circuit decided it under the former ADA. The court considered her hostile environment claim waived. The court rejected the district court’s focus on Sanchez’s ability to do many things non-visually impaired people can do. Summary judgment was reversed because “Sanchez has produced ample evidence that “the manner in which” she sees is substantially limited as compared to the average individual. 29 C.F.R. § 1630.2(j)(4)(i).”

The court also disagreed with the Forest Service’s contention that the district court did not have to accept as true Sanchez’s “self-serving” affidavit. “So long as an affidavit is ‘based upon personal knowledge and set[s] forth facts that would be admissible in evidence,’ Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991), it is legally competent to oppose summary judgment, irrespective of its self-serving nature.”

The Forest Service also argued that it was not required to transfer the plaintiff because “accommodations are required only if an employee cannot perform the essential functions of her job.” After noting EEOC regulations and several other circuits that have held that accommodations are not limited to situations where they are necessary to allow the individual to perform the essential functions of the job, the Tenth Circuit held “as a matter of law that transferring an employee for the purposes of treatment or therapy may be a reasonable accommodation under the Rehabilitation Act.”

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Tenth Circuit: Title II of ADA Does Not Permit Employment Discrimination Claim

September 13, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Elwell v. State of Oklahoma on Tuesday, September 11, 2012.

Everyone agrees Title I of the Americans with Disabilities Act (ADA) authorizes the disabled to bring employment discrimination claims. But can a party bring an employment discrimination claim under Title II as well? This question has remained open in the Tenth Circuit until this case.

Plaintiff Elwell sued the University of Oklahoma for refusing to provide her requested accommodations for her degenerative spinal disc condition.  The District Court dismissed plaintiff’s ADA Title II claim stating it did not provide a cause of action for employment discrimination. Elwell appealed.

The relevant portion of the statute states as follows:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132.

The first clause prevents qualified individuals with a disability from being excluded from participation in or being denied benefits of services, programs or activities of a public entity. The second prevents qualified individuals from being subjected to discrimination by the public entity.

Beginning with the first clause, the question is whether “employment” can be described as a service, program or activity. The Tenth Circuit concluded that employing people is not a service, program or activity, but is rather a means the university uses to provide services, programs and activities. Accordingly, the first clause did not permit an employment discrimination claim.

The second clause prohibits the University from engaging in other forms of discrimination against the same individuals. In plaintiff’s view, the second clause applies the ADA’s anti-discrimination mandate to any operation of a public entity, including employment.

In holding the second clause does not permit an employment discrimination claim, the court pointed out that the statute prohibits discrimination only against “qualified individuals.” Congress defined qualified individuals to include only those individuals with a disability who meet eligibility requirements for the receipt of “services” or the participation in “programs” or “activities” provided by a public entity. Virtually every court to face the question has interpreted the words “services, programs and activities” to mean an agency’s “outputs.” The university’s “outputs” are its services, programs, and activities such as courses. Employing people isn’t a service, program, or activity: it is a means or method the university uses to provide its services, programs, and activities.  As much as every court to have faced the question agreed, the Tenth Circuit held the plain language of the statute does not reach employment.

AFFIRMED.

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Tenth Circuit: Leave of Absence as ADA Reasonable Accommodation Has Limits

August 31, 2012 by Leave a Comment

The Tenth Circuit published its opinion in Robert v. Board of County Commissioners on August 29, 2012.

Catherine Robert was terminated from her offender supervision officer position after being out on FMLA leave for surgery. She sued the county, its commissioners, and her supervisor for FMLA leave retaliation, ADA discrimination, breach of contract, and violation of due process rights. Summary judgment was granted on all claims in favor of all defendants and the Tenth Circuit affirmed.

At the time of her termination, the plaintiff was unable to perform an essential function of her job: offender site visits. A few weeks after her FMLA leave expired, she was still unable to walk unassisted. The Tenth Circuit stated that a leave of absence can be a reasonable accommodation under the ADA, but an open-ended leave may not be reasonable. “The employee must provide the employer an estimated date when she can resume her essential duties.” A second limitation on leaves is duration. “A leave request must assure an employer that an employee can perform the essential functions of her position in the ‘near future.’” The court did not define a reasonable duration , but did reference an Eighth Circuit case that held six months to be unreasonable. The court mentioned the small size of the plaintiff’s department and the strain her inability to perform site visits and other duties put on her co-workers.

The Tenth Circuit held Robert’s prima facie FMLA retaliation claim had been overcome by the employer’s legitimate reason for her termination: she failed to return to work with a required release at the end of her FMLA leave. Robert’s other claims failed because public employees in Kansas are at-will.

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Tenth Circuit: Nationwide Recordkeeping Data Not Relevant to Charges of Individual Disability Discrimination

February 28, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in EEOC v. Burlington Northern Santa Fe RR on Monday, February 27, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioners filed ADA discrimination charges with the EEOC, alleging discrimination based on a perceived disability after not being hired by Respondent following a conditional offer of employment and a medical screening procedure. Respondent’”s position was that it rescinded the offers based on the medical requirements and safety concerns incident to the . . . position, that it did not view either applicant as “disabled,” and that both applicants were free to apply for other positions within BNSF for which they were qualified.” Later, EEOC enhanced the scope of the investigation and issued a subpoena to Respondent requesting nationwide computer files to search for pattern and practice discrimination. Respondent did not comply with the administrative subpoena, and Petitioner requested the district court enforce it, which it declined to do.

On appeal, the Court found that “[n]othing prevents the EEOC from investigating the charges filed by [Petitioners], and then—if it ascertains some violation warranting a broader investigation—expanding its search. Alternatively, nothing prevents the EEOC from aggregating the information it possesses in the form of a Commissioner’s Charge. . . . But nationwide recordkeeping data is not ‘relevant to’ charges of individual disability discrimination filed by two men who applied for the same type of job in the same state, and the district court did not abuse its discretion in reaching that conclusion.”

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Tenth Circuit: Eleventh Amendment Protects State from Suit for Money Damages under ADA when State Revoked Medical License for Public Safety

January 12, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Guttman v. Khalsa on Wednesday, January 11, 2012.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner is a physician with a history of depression and posttraumatic stress disorder. At the time he brought this case, he was practicing medicine in New Mexico. The Board of Medical Examiners summarily suspended Petitioner’s license after finding clear and convincing evidence that “[Petitioner]’s continuation in practice would constitute an imminent danger to public safety.” Later, “after recognizing an extensive pattern of disruptive and abusive behavior by [Petitioner] in dealing with patients and healthcare professionals, the Board revoked his license. The Board also found that further treatment of his mental health problems was unlikely to succeed, and that [Petitioner]’s inability to interact professionally with others posed a danger to his patients.”

Petitioner challenged the Board’s findings in state court, asserting for the first time that the Board’s actions violated Title II of the ADA. Because Petitioner had not raised an ADA claim before the Board, the state court refused to consider it and affirmed the revocation of his license. Petitioner also filed a pro se complaint in federal district court against New Mexico and two individuals: the Board’s administrative prosecutor and the Board’s hearing officer. The district court granted the Respondents’ motion for summary judgment after finding that the individual defendants were entitled to absolute immunity.

“The question presented in this appeal is whether the Eleventh Amendment protects New Mexico from a suit for money damages under Title II of the Americans With Disabilities Act (ADA).” The Court concluded that it does. “New Mexico has state sovereign immunity from a claim that it violated the ADA when it revoked the medical license of a physician whose practice the state claimed constituted an imminent danger to the public. As a result, [the Court] found the district court did not err by dismissing the ADA claim of [Petitioner] against the State of New Mexico for revoking his medical license. [The Court also concluded that] the state’s actions did not violate the United States Constitution.” However, Petitioner may still have extant claims for prospective injunctive relief.

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Tenth Circuit: Petitioner Established Issue of Material Fact Present in ADA Violation Claim; Summary Judgment Not Appropriate

November 4, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Carter v. Pathfinder Energy Services, Inc. on Thursday, November 3, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner began working as a directional driller for Respondent employer in 2004. Two years later, after his declining health had caused a reduction in his workload, Respondent fired Petitioner for “’gross misconduct’ based primarily on an altercation that he had had with a coworker and his language and attitude during a conversation with his supervisor.” Petitioner then sued Respondent, alleging that his employer had violated his rights under the Americans with Disabilities Act (ADA) and the Employee Retirement Income Security Act (ERISA). He also alleged that Respondent had breached his implied-in-fact employment contract. The district court granted summary judgment in favor of Respondent on all three claims.

The Court agreed with the district court’s grant of summary judgment on all issues except for the alleged ADA violation. For the ADA claim, Petitioner “must show that, at the time he was fired, (1) he was a disabled person as defined by the ADA; (2) he was qualified, with or without reasonable accommodation, to perform the essential functions of his job; and (3) he was fired because of his disability.” The Court was convinced that Petitioner has established that a genuine dispute of material fact exists as to all three elements to allow the claim to survive a motion for summary judgment.

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Amy Bellman: So Your Hotel Guest Is Permitted To Use Medical Marijuana . . .

August 5, 2011 by Leave a Comment

Medical marijuana has been legal in Colorado since voters passed Amendment 20 in 2000.  As of June 2011, the Colorado Department of Public Health and Environment (“CDPHE”) had issued over 125,000 ID cards under the Medical Marijuana Registry program.  CDPHE statistics indicate that those holding ID cards are primarily male, have an average age of 40, and are far more likely to suffer from muscle spasms (20%) or severare pain (94%) than from cancer (2%) or glaucoma (1%).

CDPHE statistics do not discuss the travel habits of those holding ID cards.  But presuming that the muscle spasms subside enough to allow for some rest and relaxation, a person holding a medical marijuana ID card may presume that he can smoke on hotel/timeshare resort property.  If the hotel or timeshare resort is in Colorado, here are a couple things for the operator to consider when faced with this scenario.

It Is Unlikely that the DOJ Would Pursue an Americans With Disabilities Claim if a Hotel/Timeshare Resort Prohibited a Guest from Smoking Medical Marijuana

Many hotels and timeshare resorts are concerned that they could be subject to ADA liability for prohibiting a guest from smoking medical marijuana.  Although this issue is not entirely free from doubt, the Department of Justice (“DOJ”) (the agency that enforces the ADA) has issued two memos (one in October 2009 and the other in June 2011) generally addressing medical marijuana laws.  In the 2009 memo, the DOJ took the position that although medically prescribed marijuana is still an illegal drug under federal law, it is not going to waste resources chasing small-time legitimate medical users in states where such use is permitted.  In the 2011 memo (issued only one month ago), the DOJ reiterates that it won’t pursue small-time legitimate users, but warns that it will prosecute large scale, commercial medical marijuana growers.  Based on these memos, we think it unlikely that the DOJ would pursue a course of action that would require hotels and timeshare resorts to accommodate this activity, absent special circumstances.

Under Colorado Law, Hotels & Timeshare Resorts Are Not Required to Accommodate a Guest’s Use of Medical Marijuana

The Colorado Clean Indoor Air Act, which prohibits smoking in certain public places and gives owners/managers the right to prohibit smoking in their facilities, does not distinguish the smoking of medical marijuana from the smoking of cigarettes, cigars, pipes or other tobacco products.  Accordingly, managers of hotels and timeshare properties should be free to prohibit the smoking of medical marijuana in the same way that they prohibit the smoking of tobacco products.

In addition, FAQs published on CDPHE’s website provide that a patient is only legally permitted to smoke medical marijuana in his or her home; it is illegal to smoke medical marijuana in plain view of, or in a place open to, the general public.  Presuming that the resort does maintain a public designated smoking area, the CDPHE policy would not permit guests to smoke medical marijuana in that area.

Amy Bellman is an associate at Baker Hostetler who focuses her practice on both real estate and hospitality law. She contributes to the firm’s Hospitality Lawg, where this post originally appeared on August 1, 2011.
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Tenth Circuit: Requesting Immediate Home/Family Time, with Only a Fleeting Mention of Need to See Doctor, Does Not Trigger Duty Under ADA to Accommodate HIV Positive Employee

May 4, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in EEOC v. C.R. England, Inc. on Tuesday, May 3, 2011.

The Tenth Circuit affirmed the district court’s grant of summary judgment for Respondents. Petitioner, who was diagnosed with HIV in 1999, was hired as a trucker for Respondents in 2002, at which time he disclosed his illness. He subsequently also pursued a training position with the company, and worked with management to create a form for trainees informing them of his condition, which was only presented to one person. Petitioner also requested several days of home time, but they were denied as vacation requests required two weeks of notice. On his first training assignment, after stressful turn of events, though not uncommon in the industry, he informed the company he was leaving immediately with his truck to his family home in Florida for two weeks, needed to see his doctor, and left his partner at a truck stop. He was fired from his training position, and was later fired from the company for not generating income during those two unscheduled weeks or making his lease payments on his truck. The EEOC and Petitioner brought an employment discrimination and retaliation suit against Respondents, claiming they had fired him because of his illness and therefore violated his rights under the ADA.

The Court, however, agreed with the district court and sided with Respondents. The Court found that Petitioner’s two requests for home time did not put Respondent on notice that that Petitioner was requesting reasonable accommodation due to his HIV status; Petitioner classified the requests as “family time,” rather than for his illness, besides his “after-the-fact, fleeing statement mentioning a need to see his doctor. . . . Therefore, his requests did not trigger the company’s duty under ADA § 102(b)(5).” As to his retaliation claim, the Court concluded that even if Petitioner could support a prima facie case, Respondents have proffered a legitimate, non-discriminatory reason for his firing: Petitioner had “just debt” for his truck that he “genuinely owed” under the lease agreement, which is why he was reported to a debt collection agency.

Petitioner also brought two state law claims that were dismissed. He claimed Intentional Infliction of Emotional Distress by Respondents creating the form disclosing his HIV status; the Court determined that the company’s “conduct in presenting [Petitioner]’s trainee with the acknowledgment form disclosing [his] HIV status may not be reasonably regarded as extreme or outrageous.” Additionally, his invasion of privacy claim fails because “the disclosure to one potential trainee and a handful of [Respondent's] employees does not constitute ‘public disclosure.’”

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State, Federal Employment Claims Checklist Available

September 22, 2010 by Leave a Comment

Earlier this year, we released the 2010 Supplement to the second edition of The Practitioner’s Guide to Colorado Employment Law.

Included in the supplement was this handy list of “Possible Legal Claims in Employment Cases,” including statutory claims at the state and federal levels, as well as state common law claims.

Checklist of Possible Legal Claims in Employment Cases

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