April 30, 2017

Tenth Circuit: Honest Belief Doctrine Allows Employee to Challenge Honesty of Employer’s Stated Reason for Termination

The Tenth Circuit Court of Appeals issued its opinion in Dewitt v. Southwestern Bell Telephone Company on Wednesday, January 18, 2017.

After her employment was terminated by Southwestern Bell Telephone Company (SWBTC) in 2010, Janna Dewitt filed a lawsuit against her former employer claiming unlawful discrimination and failure to accommodate her disability in violation of the American Disability Act, as well as a retaliation claim in violation of the Family Medical Leave Act (FMLA). The district court granted summary judgment in favor of SWBTC on all three claims, and Dewitt appealed.

Dewitt worked as a customer service representative in the call center of SWBTC. When Dewitt was hired she disclosed her diagnosis of Type I diabetes to her employer, who allowed her to take breaks as needed to eat and check her insulin levels. During Dewitt’s employment she took FMLA leave occasionally for health reasons, but generally avoided taking FMLA leave as it was looked upon unfavorably by SWBTC. After Dewitt violated SWBTC’s company policy for a second time by hanging up on two customers, SWBTC initiated a review and ultimately terminated Dewitt. Dewitt contends that she does not recall hanging up on the customers, as she was experiencing dangerously low blood sugar levels.

The court applied the burden-shifting framework first laid out in McDonnell-Douglas Corp. v. Green, which articulates a three-prong test for evaluating employment claims: (1) the claimant must show a prima facie case of retaliation or discrimination; (2) if the claimant presents a prima facie case, then if the employer can show a legitimate non-discriminatory reason for the action against the employee, the burden shifts back to the claimant to show that (3) there is a genuine issue of material fact as to if the employer’s reason for the action was merely pretext.

As to Dewitt’s first claim that SWBTC terminated her because of her disability, the court affirms the district court’s grant of summary judgment. The court looked to SWBTC’s process in evaluating the hang-ups, and stated that SWBTC’s termination was made based on their honest belief and in good faith due to Dewitt’s conduct, not because of her disability. Dewitt requests that the court decline to apply the honest belief doctrine, claiming that it “eviscerates the third prong of the McDonnell-Douglas test.” The court declines to do so, stating that the honest belief doctrine works to allow the employee to challenge the honesty of the employer’s stated reasoning for the action against the employee.

Next, Dewitt claims that SWBTC failed to accommodate her disability by not excusing the dropped phone calls. The court affirms the grant of summary judgment as to this claim as well, stating that an employer is not required to retroactively accommodate a disability where the employee has not previously requested an accommodation, and Dewitt never raised the concern prior to the incident with SWBTC that her diabetes could cause her to drop calls. The court added that the Equal Employment Opportunity Commission’s own guidance refutes Dewitt’s claim that her past conduct should be overlooked, as the guidance states “an employer is not required to excuse past misconduct even if it is the result of the individual’s disability.”

Finally, regarding Dewitt’s third claim of retaliation by SWBTC against her for taking FMLA leave, the court also affirms the district court’s grant of summary judgment in favor of SWBTC. The court held that because SWBTC offered a legitimate reason for terminating Dewitt, her hanging up on customers, Dewitt was required to show that this reason was mere pretext for firing her due to her disability. While Dewitt offered testimony that FMLA leave was discouraged and another supervisor disliked her, neither witness was involved in her actual termination. Therefore, the court determined that Dewitt’s evidence did not sufficiently establish a question as to if SWBTC’s stated reason for terminating her was merely pretext to terminate her employment due to her disability.

The court affirmed the district court’s grant of summary judgment on all three of Dewitt’s employment claims.

Tenth Circuit: A Reasonable Jury Could Credit Plaintiff’s Version of Events, So Summary Judgment Inappropriate

The Tenth Circuit Court of Appeals issued its opinion in Foster v. Mountain Coal Co., LLC on Tuesday, July 26, 2016.

Eugene Foster worked at Mountain Coal’s West Elk Mine in Colorado when he turned his head suddenly on February 5, 2008, and injured his neck. He sought treatment the following day at a local ER and received a return-to-work form from the ER doctor saying he could return on February 8. However, due to a previously scheduled hernia repair surgery, he did not return to work until March 31. Mountain Coal held a meeting with Foster on February 10 to discuss the injury where his managers rejected the ER doctor’s return to work form and instead told Foster that he needed to have a doctor complete Mountain Coal’s return to work form. Foster said he would try to have it completed during his hernia surgery.

Foster was unable to have a hospital doctor complete the Mountain Coal return to work form, so he dropped it off with his regular doctor. Foster testified in his deposition that sometime in early March, he delivered the form to the Mountain Coal offices, where he left it on the HR person’s desk. When she told Foster she did not receive the form, he obtained another form from his personal doctor and delivered it to Mountain Coal on March 18. Foster continued to receive care for his neck injury at Mountain Coal’s direction.

On March 31, Foster returned to work with a Mountain Coal return to work form completed by his hernia doctor. On April 3, the general manager of Mountain Coal held a meeting with Foster and an HR employee. During the meeting, the manager confronted Foster about not seeing his personal physician for the neck injury. Foster confirmed that he hadn’t seen his personal physician, and averred that he told the managers that but they continued to request that he have the personal physician complete the return to work form. Foster was supposed to have retraining the following day but requested at the April 3 meeting that it be rescheduled to accommodate his appointment with a doctor about scheduling surgery for his neck. Foster was suspended indefinitely during the meeting. According to his account, it was for not seeing the personal physician before receiving the return to work form. According to Mountain Coal, it was because Foster lied about delivering the earlier return to work form.

Foster saw the specialist on April 4, who opined that he would not recommend surgery because Foster’s work was aggravating the neck condition. On April 9, Foster saw his personal physician, who opined that Foster should not return to his regular work activities. Foster received a letter from his personal physician on April 11 memorializing the doctor’s conclusions that Foster was unable to return to work, and immediately called Mountain Coal to inform them of the letter. He spoke to his direct supervisor.

Two Mountain Coal managers testified that they had decided to terminate Foster on April 9 because he had lied about leaving a return to work form on the HR person’s desk, while a third testified that Foster had not provided a return to work form with the correct dates for his release “and stuff.” On April 14, Foster received a letter advising him of his termination. Although the letter was dated April 11, it stated that the termination was effective April 9. The letter advised that Foster was being terminated for false information regarding a return to work slip.

After Mountain Coal terminated his employment, Foster filed a charge of discrimination with the EEOC and Colorado Civil Rights Division. He received a right-to-sue letter from the EEOC, and filed a complaint in district court in December 2012, seeking relief under the ADA and Colorado law. The district court entered summary judgment for Mountain Coal, and Foster appealed.

The Tenth Circuit first concluded that genuine issues of material fact existed regarding whether Foster had proved his ADA retaliation claim. Foster claimed that his requests for accommodation on April 3 and April 11 were protected activity, and his termination was a retaliatory adverse employment action. The Tenth Circuit evaluated Foster’s claims of requests for accommodation and found them sufficient to apprise Mountain Coal of his needs. Although the district court held that Foster’s April 3 remarks were not sufficiently direct and specific to constitute a request for accommodation, the Tenth Circuit found that the remarks conveyed a need to meet with the doctor in order to schedule surgery, which was sufficiently specific to trigger accommodations. The Tenth Circuit noted that Foster’s deposition testimony could be clearer, but it was clear enough to survive summary judgment. The Tenth Circuit also found that Foster’s April 11 request was clear, and found Mountain Coal’s attempt to retroactively terminate Foster disingenuous. The Tenth Circuit noted the discrepancies between Mountain Coal’s stated reasons for suspending and terminating Foster, and found that the suspicious timing could lead a reasonable fact-finder to infer that Mountain Coal learned of Foster’s request for accommodation and terminated him because of it.

The Tenth Circuit reversed the district court’s grant of summary judgment to Mountain Coal.

HB 16-1426: Criminalizing Intentional Misrepresentation of a Service Animal

On March 30, 2016, Reps. Dianne Primavera & Yeulin Willett introduced HB 16-1426Concerning Intentional Misrepresentation of Entitlement to an Assistance Animal. The bill was assigned to the House Public Health Care & Human Services Committee, where it was amended and referred to the House Committee of the Whole for Second Reading.

Federal law requires that reasonable accommodations be provided under some circumstances to individuals with a disability, and that certain housing providers must allow an individual with a disability to reside with his or her assistance animal without charging any fees or imposing conditions that would otherwise apply if the animal were merely a pet. This bill defines “assistance animal” as an animal, other than a service animal – as defined by the Americans with Disabilities Act – that qualifies for a reasonable accommodation under the federal Fair Housing Act or the Rehabilitation Act of 1973.

The bill requires the following medical professionals, when approached by a patient seeking an assistance animal, to either make a written finding regarding whether the patient has a disability (and if so, whether the need for the animal is related to that disability), or make a written finding that there is insufficient evidence to make a disability determination: (1) physicians, physician assistants, and anesthesiologist assistants (pursuant to section 1 of the bill); (2) nurses (pursuant to section 2 of the bill); and (3) psychologists, social workers, clinical social workers, marriage and family therapists, licensed professional counselors, and addiction counselors (pursuant to section 3 of the bill). A medical professional shall not make a disability determination unless the medical professional: (1) meets with the patient in person or by telephone; (2) is sufficiently familiar with the patient and the disability; and (3) is legally and professionally qualified to make the determination.

The bill creates the class 1 petty offense of intentional misrepresentation of entitlement to an assistance animal, which is committed if (1) a person intentionally misrepresents an animal in his or her possession as an assistance animal for the purpose of obtaining any of the rights or privileges granted by law to persons with disabilities; and (2) the person knows that the animal is question is not a an assistance animal with regard to that person, or the person does not have a disability. A written disability determination made pursuant to the bill is an affirmative defense to the offense established by the bill, while a lack of such a finding is not proof that the offense occurred. If convicted, the defendant must pay: $350-$1,000 for a first offense; $600-$1,000 for a second offense; and $1,000-$5,000 plus community service for a third offense.

A district court may order the conviction record sealed if: (1) the defendant files a petition and pays the filing fee; (2) the defendant’s first offense was at least three years prior to filing the petition; and (3) the defendant has not had a subsequent conviction for the offense.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: No Fourth Amendment Violation When Officer Arrested 11-Year-Old Special Education Student

The Tenth Circuit Court of Appeals issued its opinion in J.H. v. Bernalillo County on Friday, November 27, 2015.

J.P. was an 11-year-old special needs student in a special education classroom when a school resource officer, Deputy Sharkey, saw her kick her teacher. Deputy Sharkey arrested J.P. and handcuffed her, then transported her to a juvenile detention facility. J.P.’s mom, J.H., sued Deputy Sharkey and the Bernalillo County Sheriff’s Office under 42 U.S.C. § 1983, alleging violations of the Fourth Amendment, the Fourteenth Amendment’s Due Process Clause, and the Americans with Disabilities Act. The district court dismissed the due process claims and granted summary judgment to Deputy Sharkey and the county on the Fourth Amendment and ADA claims. J.H. appealed.

On appeal, J.H. contended the district court erred in granting summary judgment because Deputy Sharkey lacked probable cause and used excessive force in arresting J.P. The Tenth Circuit disagreed, noting that J.P. assaulted her teacher by kicking her and that provided probable cause for the arrest. The Tenth Circuit noted that J.H.’s argument was invalid because Deputy Sharkey could lawfully arrest J.P. after observing her commit the crime of kicking her teacher. J.H. argued the crime could not constitute a felony because J.P. was a minor at the time, but did not deny that the kick was unlawful. The Tenth Circuit found this fatal to J.H.’s arguments.

J.H. also contended that Deputy Sharkey used excessive force by handcuffing J.P., but the Tenth Circuit again disagreed, finding nothing excessive about the use of handcuffs. The Tenth Circuit noted that once he made the arrest, Deputy Sharkey was free to protect himself by restricting J.P.’s freedom of movement. The Tenth Circuit similarly rejected J.H.’s ADA claims, finding that J.P. never requested an accommodation so Deputy Sharkey could not have erred in failing to provide one. The Circuit likewise found no error in taking J.P. to the juvenile detention center instead of waiting for her mother to arrive at the school.

The Tenth Circuit next addressed J.H.’s Fourteenth Amendment Due Process claims, which were premised on the same arguments as the Fourth Amendment claims. The Tenth Circuit found that the district court properly dismissed the Fourteenth Amendment claims because J.H.’s factual allegations did not implicate the Fourteenth Amendment.

Finally, the Tenth Circuit affirmed the district court’s grant of summary judgment on J.H.’s ADA claims. J.H. alleged that Deputy Sharkey discriminated against J.P. by making the arrest based on manifestations of her disability and failing to make reasonable accommodations during the arrest. The Tenth Circuit denied that Deputy Sharkey had reason to be aware of J.P.’s disability and reasoned that since J.P. did not request an accommodation, Deputy Sharkey did not err in failing to provide one.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: Ample Record Evidence Supported Finding that Job Function Not Essential

The Colorado Court of Appeals issued its opinion in Department of Human Services v. State Personnel Board on Thursday, March 10, 2016.

Essential Functions of a Job—Offset for Disability Benefits.

Brown served as an admissions psychiatric liaison at the Colorado Mental Health Institute at Pueblo (CMHIP). In June 2011, Brown began to experience health problems related to a work-related injury sustained at CMHIP. Her treating physician assigned work restrictions, which included not participating in physical intervention techniques (CTI and CPR). CTI and CPR were about 10% of her work duties, but were rarely used. In January 2012 she was assigned additional work restrictions.

Her modified duty ended on February 29, 2012 and she was denied her application for short-term disability benefits. She submitted to the Department of Human Services, Colorado Mental Health Institute (DHS) a request for reasonable accommodation under the Americans with Disabilities Act (ADA), which included an exemption from CMHIP’s requirement that she be prepared to use CTI and CPR. This request was also denied. In June 2012 she was discharged.

Brown sought review of her administrative separation and the administrative law judge (ALJ) affirmed the decision, finding that it was not arbitrary, capricious, or contrary to rule or law. Brown appealed, and the State Personnel Board (Board) adopted the findings of fact but reversed the legal conclusion that DHS’s action was not arbitrary, capricious, or contrary to rule or law. The Board found that CTI and CPR were not essential functions of her position, and ordered her reinstated and awarded back pay and benefits. On remand, the ALJ awarded back pay and benefits from the date of separation to the date of the Board’s reversal, but also concluded that her Public Employees’ Retirement Association (PERA) disability retirement and unemployment benefits must be offset from back pay and benefits.

On appeal, the Board affirmed the award of back pay and benefits but reversed the offset to the award for Brown’s PERA and disability retirement benefits, finding that disability benefits under PERA are collateral and cannot be offset.

On appeal, DHS argued that the Board erred in reversing the ALJ’s legal conclusion that DHS’s employment decision was not arbitrary, capricious, or contrary to rule or law. The Court of Appeals found no error. There was no dispute that Brown was disabled under the ADA, so the only question was whether she could perform the essential functions of her job with or without a reasonable accommodation. The Court found there was no error in the Board’s determination based on the evidentiary record that CTI and CPR were not essential functions of her position.

DHS then argued that it was error for the Board to reverse the ALJ’s conclusion regarding the PERA offsets. The Court found no error.

CRS § 13-21-111.6 allows full recovery for an employee when she has received compensation from a collateral source “as a result of a contract entered into and paid for by or on behalf of such person.” In an issue of first impression, the Court found that PERA disability benefits constitute such a collateral source not required to be offset from a damage award.

The Board’s orders were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: State Does Not Waive Sovereign Immunity Under ADA by Accepting Federal Funds

The Tenth Circuit Court of Appeals issued its opinion in Levy v. Kansas Department of Social and Rehabilitation Services on Tuesday, June 16, 2015.

Paul Levy was a rehabilitation counselor for the Kansas Department of Social and Rehabilitation Services (SRS). In December 2008, he agreed to serve as a counselor for a blind co-worker, Tina Bruce, who was concerned she was not being properly accommodated. He ordered an assessment from a contractor, Brenda Umholtz, who had done extensive work for both Levy and Bruce at SRS. Umholtz’s report stated that Bruce was not receiving adequate accommodations and could not compete on a level playing field with her co-workers. In February 2009, Levy’s supervisor, Michael Donnelly, sent Levy a letter proposing Levy’s termination due to a violation of SRS’s conflict of interest policy based on Umholtz’s report. The letter provided Levy an opportunity to appear in person and respond to the allegations on February 24, 2009. Levy reported in his interrogatories that he met with Donnelly prior to receiving the termination letter, and in that meeting he told Donnelly that other counselors in the division had served as counselors for co-workers without being punished. He also stated that he informed his supervisor about Bruce’s case in January 2009 and transferred the case to his supervisor immediately when asked to do so. Levy tendered his resignation on February 25, 2009, noting that it became clear to him in the February 24 meeting that Donnelly intended to terminate him regardless of the outcome of the meeting.

Umholtz filed suit against SRS on February 11, 2011. Levy joined the suit on March 2, 2011, and Bruce joined shortly after. In the Second Amended Complaint, Levy alleged SRS retaliated against him in violation of the ADA and requested reinstatement, compensatory damages, attorney fees, and other litigation expenses. Plaintiffs subsequently amended their complaint to include Rehabilitation Act claims for Bruce and Levy, and SRS agreed not to oppose the amendment in exchange for plaintiffs’ agreement that SRS had not waived sovereign immunity. SRS filed for summary judgment on all Levy’s claims on March 23, 2012, arguing Levy’s ADA claim was barred by the Eleventh Amendment and his Rehabilitation Act claim was barred by Kansas’ two-year statute of limitations for personal injury claims. Levy countered that SRS waived its Eleventh Amendment sovereign immunity claim by accepting federal funds and the Rehabilitation Act claims were more appropriately characterized as statutorily created rights subject to Kansas’ three-year statute of limitations. The district court granted summary judgment to SRS on the ADA claim based on sovereign immunity and on the Rehabilitation Act claims due to the expiration of the statute of limitations. Levy appealed.

The Tenth Circuit found Levy’s arguments that the state waived sovereign immunity by accepting federal funds cogent, but ultimately disagreed. Levy contended the waiver provisions of the Rehabilitation Act similarly apply to the ADA because the two acts are closely linked. The Tenth Circuit agreed that the two acts were closely linked, but instead found it appropriate to apply a stringent test to determine whether the state waived its sovereign immunity. The Tenth Circuit decided that, since “Congress does not hide elephants in mouseholes,” the waiver of sovereign immunity under the ADA must be explicitly stated and not “hidden in another statute and only applied to the ADA by implication.” Particularly because the ADA was passed after the Rehabilitation Act’s waiver provisions, the Tenth Circuit found merit in its determination.

Turning next to the statute of limitations issue, the Tenth Circuit agreed that Kansas’ two-year statute of limitations for personal injury actions applied to the analogous Rehabilitation Act claims. Levy argued that the case on which the district court relied was confusing because it made several references to a Kansas statute detailing when a three-year statute of limitations applies, and argued Kansas case law supported the determination that Rehabilitation Act claims should be subject to the three-year statute of limitations because they involved statutorily created rights. The Tenth Circuit found that although the case incorrectly cited the wrong statute twice, the holding of the case was clear that the personal injury analogy should apply to Rehabilitation Act claims. The Tenth Circuit found Levy’s second argument more persuasive, since Kansas courts expressly characterized employment discrimination claims as statutorily based and subject to the three-year statute of limitations. However, the Tenth Circuit was not bound by the Kansas Supreme Court decisions, and chose to uphold its own precedent in finding Rehabilitation Act claims analogous to personal injury claims. The Tenth Circuit determined Levy’s Rehabilitation Act claims were time-barred.

The judgment of the district court was affirmed.

Tenth Circuit: Jury Improperly Instructed on Direct Threat in Employment Discrimination Case

The Tenth Circuit Court of Appeals issued its opinion in Equal Employment Opportunity Commission v. Beverage Distributors Company, LLC on Monday, March 16, 2015.

Michael Sungaila, who is legally blind, worked for Beverage Distributors until his position was eliminated, at which time he obtained a higher paying job in the company’s warehouse that required him to pass a physical. He passed the physical, but the doctor said Mr. Sungaila would require accommodations for his impaired vision. Beverage Distributors declined to make the accommodations, concluding instead that Mr. Sungaila’s condition created a significant risk of harm to himself or others, and rescinded its job offer. Mr. Sungaila subsequently received a lower-paying position with a different company. The EEOC brought suit on his behalf under the ADA.

At trial, Beverage Distributors asserted two defenses: (1) Mr. Sungaila’s limited vision created a direct threat of harm to himself or others and no reasonable accommodations could mitigate the risk, and (2) should he prevail, Mr. Sungaila’s award should be reduced because of his failure to mitigate damages. The jury found that Beverage Distributors was liable for discrimination and Mr. Sungaila was not a direct threat, but also found he had failed to mitigate his damages. The jury reduced his back-pay award for failure to mitigate. The EEOC filed two post-trial motions, first invoking F.R.C.P. 50(a) and arguing Beverage Distributors had not proved failure to mitigate as a matter of law, and also seeking a tax-penalty offset for the lump sum award. The district court granted both motions. Beverage Distributors appealed.

The Tenth Circuit first addressed Beverage Distributors’ claim that the jury was erroneously instructed on direct threat and this constituted reversible error. The Tenth Circuit evaluated the instruction and found it inaccurately conveyed the direct threat standard. The instruction stated that Beverage Distributors must prove that Mr. Sungaila’s employment posed a direct risk of harm, while the actual standard is simply that Beverage Distributors reasonably believed there was a direct risk. Because the jury instruction conveyed the wrong standard for the direct threat defense, and because the jury likely relied on this instruction in determining liability, the Tenth Circuit reversed.

Next, Beverage Distributors argued the district court improperly granted the EEOC’s Rule 50(a) motion, but the Tenth Circuit declined to reach the issue, finding that the evidence for the fact-intensive issue might be different on remand.

Finally, the Tenth Circuit found that the tax penalty offset was properly awarded. If the issue arises again on remand, it is properly before the court to decide whether to award a tax penalty offset, and there is no impropriety in such an award.

The Tenth Circuit reversed and remanded on the direct threat instruction and found the tax penalty offset was proper.

Tenth Circuit: Questions of Fact Existed Regarding ADA Violations; Summary Judgment Inappropriate

The Tenth Circuit Court of Appeals issued its opinion in Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co. on Tuesday, September 2, 2014.

Abercrombie & Fitch Co., parent company of J.M. Hollister, LLC, d/b/a Hollister Co., has two designs for its stores in shopping malls. One design features a raised “porch” entrance, where the porch is raised by two steps and there is no ramp. The Orchard Park Town Center and Park Meadows Mall Hollister stores have the “porch” design. Anita Hansen, a member of The Colorado Cross-Disability Coalition (CCDC) who uses a wheelchair, tried to enter the Hollister store at Orchard Park and could not access the store via the “porch.” She was told by a store employee to use a side entrance, but it was locked. When an employee opened the door, there was no room for Hansen to maneuver her wheelchair into the store. She had a similar experience at the Park Meadows store. The experiences were humiliating for Hansen.

CCDC notified Abercrombie and Hollister that these stores violated the ADA. Attempts to settle failed, and CCDC brought suit in federal district court. CCDC added class complaints challenging the “porch” design at Hollister stores throughout the United States. Abercrombie corrected some of the barriers by lowering sales counters, rearranging merchandise so wheelchair-bound customers could access the store, and ensuring the side door remained unlocked. However, it kept the “porch” design.

After plaintiff filed a third amended complaint, Abercrombie moved to dismiss, arguing plaintiffs lacked Article III standing. However, the district court disagreed, finding a “real and immediate threat” of future harm if the ADA violations were not remedied. The plaintiffs filed a motion for partial summary judgment, asking for judgment as a matter of law on whether the porch at the Park Meadows Hollister violated Title III of the ADA. This motion was granted. Thereafter, some plaintiffs withdrew and another wheelchair-bound plaintiff, Ms. Farrar, was added. The parties filed cross-motions for summary judgment, plaintiffs seeking summary judgment that all Hollister stores with the porch-like entrance violated Title III of the ADA and defendants seeking summary judgment on standing, arguing that the plaintiffs failed to prove a concrete injury in fact. The district court granted plaintiffs’ motion in full and denied Abercrombie’s. The court held that plaintiffs proved standing, Abercrombie’s changes to the Park Meadows Hollister did not moot the claim against the porch entrance, and it entered a permanent injunction ordering Abercrombie to bring all stores into compliance with Title III of the ADA within three years. Abercrombie appealed.

The Tenth Circuit first addressed standing, finding that just because Farrar and Hansen were ADA testers, that did not deprive them of Title III standing. Further, because Ms. Farrar has standing, she has standing as the representative of a nationwide class. The Tenth Circuit declined to overturn the district court’s class certification, finding that the numerosity element of Rule 23 was met and that it would be impracticable to join all potential class members. Next, the Tenth Circuit turned to the ADA claims. The district court found that Abercrombie violated the ADA in three ways: (1) the raised porch design violated the broad statutory requirements of the ADA by providing “different or separate” accommodation that was not in the most integrated setting; (2) the porch was a “space” as defined by the Design Standards, and Abercrombie must comply with regulations regarding circulation routes and accessibility; and (3) because the porch was an “entrance,” it violated the Design Standards’ mandate that the entrance used by the majority of people be accessible. The Tenth Circuit disagreed that Abercrombie’s use of the porch design violated the ADA, holding instead that the design itself was what violated the ADA and the accessibility must be evaluated by the Design Standards. The Tenth Circuit held that each of the district court’s grounds for awarding Plaintiffs summary judgment was untenable.

The Tenth Circuit affirmed the district court’s denial of summary judgment to Abercrombie, affirmed the class certification, but reversed the grant of summary judgment to plaintiffs. The case was remanded for further determination of the issues. The dissent would not have certified the class.

Tenth Circuit: Summary Judgment for Defendants Affirmed in ADA Case

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.

Expect More FMLA Requests for Leave to Care for an Adult Child as a Result of New DOL Guidance

Wiletsky_MarkBy Mark B. Wiletsky

Employers will likely face additional requests by employees seeking leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is unable to care for themselves. The Department of Labor (DOL) recently issued an Administrator’s Interpretation (AI), No. 2013-1, clarifying the definition of “son or daughter” under the FMLA as it relates to covered leave for an adult child with a serious health condition. The AI also clarified FMLA leave to care for an adult child injured during military service. Let’s take a look at what employers need to know.

FMLA Leave for Care of a Son or Daughter

The FMLA provides an eligible employee with up to 12 weeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. If the child is age 17 or younger, the employee requesting leave need only show that the child has a serious health condition and the employee is needed to care for the child. However, if the child is age 18 or older, leave is available only if the child has a mental or physical disability and is incapable of self-care because of that disability.

Four-part Test to Determine FMLA Leave for an Adult Child with a Disability

To determine whether a parent is entitled to take FMLA leave to care for their adult (age 18 or older) child, four criteria must be met. The adult son or daughter must:

1)     have a disability as defined by the Americans with Disabilities Act (ADA);

2)     be incapable of self-care due to that disability;

3)     have a serious health condition; and

4)     be in need of care due to the serious health condition.

Disability Determination. Because the FMLA regulations rely on the definition of disability found in the ADA, the first criteria will be met if the adult child has a physical or mental impairment that substantially limits one or more of their major life activities. Because the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) expanded the definition of major life activities that lead to a disability determination, the issue of disability is not likely to require an extensive analysis.

Incapable of Self-Care. The second criteria specifies that the adult child must require active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” or “instrumental activities of daily living.” In essence, this means that the individual needs help with daily activities such as bathing, grooming, dressing, eating, cooking, cleaning, shopping, maintaining their home, using a telephone, etc. Determining whether an adult child is incapable of self-care due to their disability is a fact-specific analysis that must be made based on their condition at the time of the requested leave.

FMLA Serious Health Condition. If the adult child meets the first two criteria in the test, the analysis turns to whether the child has a serious health condition, as defined by the FMLA. This means the individual has an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. In many cases, the impairments that meet the definition of disability under the ADAAA will also meet the definition of serious health condition under the FMLA. However, it is important to note that the serious health condition does not have to be associated with the individual’s disability (e.g., a broken leg may be the serious health condition for an individual whose disability is cancer).

Care Needed. Finally, the parent requesting leave must be needed to care for the adult child with a serious health condition. This threshold is relatively low as the term “needed to care” can include providing transportation for doctor appointments, preparing food and offering psychological comfort and reassurance.

Age at Onset of Disability Doesn’t Matter

An important clarification made by the DOL is that the disability of the child does not have to have occurred or been diagnosed before the child turned 18 years old. For purposes of FMLA leave, it does not matter when the disability commenced. The DOL believes this interpretation is consistent with the legislative history and purpose of the FMLA.

Caring for Adult Children Injured During Military Service

Under the FMLA military caregiver provision, the parent of a covered servicemember who incurred a serious injury or illness during military service may take up to 26 weeks of FMLA leave in a single 12-month period. Recognizing that the impact of the injury may extend beyond a single 12-month period, the DOL clarified that the servicemember’s parent may take FMLA leave to care for a son or daughter in subsequent years due to the adult child’s serious health condition, provided all other FMLA requirements are met.

What Do I Do Now?

With the potential influx of new FMLA leave requests related to the care of an adult child, review your FMLA policies and procedures now to ensure that they are consistent with the new DOL guidance. Train your human resource professionals and any supervisors who handle leave requests to recognize the issues associated with leave for the care of an adult child. And finally, given the complexities involved in this four-part test, consult with your legal counsel when faced with a leave request to care for an adult child.

Mark B. Wiletsky is Of Counsel at Holland & Hart. He has experience representing public and private entities in all aspects of employment law, including defense of claims at the administrative, trial, and appellate levels under Title VII, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Employee Retirement Income Security Act, Section 1981 and 1983, and First Amendment retaliation claims. He also has experience with a variety of state law claims, including wrongful discharge in violation of public policy, Colorado’s Wage Claim Act and defamation, and he has handled traditional labor issues and arbitrations as well. Mr. Wiletsky blogs at www.coloradoemploymentlawblog.com, where this post originally appeared.

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.

A Different Perspective on “Drive-By” Lawsuits

I write to offer a very different perspective in response to “Colorado Businesses Beware – ADA Public Accommodation ‘Drive-By’ Lawsuits On The Rise.” It accuses two Florida lawyers of drumming up fake ADA lawsuits by investigating businesses, drafting boilerplate complaints, and soliciting Kristin McIntosh, a paraplegic who uses a wheelchair. Their claimed scheme: to extort fast, large sums of money from hapless business owners without changing accessibility for those who use wheelchairs. I write to counter the message that all accessibility lawsuits are “Drive-by’s.”

STOP! Full disclosure: Read my bio*. Colorado Cross-Disability Coalition’s (“CCDC”) Legal Program once represented Kristin McIntosh in a 2000 case alleging violations of the ADA. Also, I have used a motorized wheelchair for 26 years because of a spinal cord injury.

I am not writing to vouch for McIntosh or her lawyers. CCDC’s position is if the article and news story are correct, there are multiple ways they can and should be stopped because they do everyone a huge disservice. If they can’t prove their claims – not an easy feat in access cases – they lose; judges can – and have – sanctioned lawyers for bad conduct in access cases.

Before we tie every ADA lawsuit to so-called “Drive-By” lawyers, we need to understand there are multiple, real violations out there. The ADA was passed in 1990. Still, numerous businesses are out of compliance. CCDC has 2 current access cases: a 2009 case against Hollister Co. stores, and a 2010 case against El Diablo restaurant. Both owners refuse to admit they have violated the ADA, despite judges’ rulings in the Hollister and El Diablo cases that the owners created accessibility barriers that violate the ADA. They keep paying defense lawyers to fight, rather than fix, the barriers.

Here’s how access cases usually work: A person who uses a wheelchair runs into an access barrier at her grocery store. After talking to the store owner who does nothing, she contacts lawyers, all of whom charge $300 per hour to talk, which she can’t afford. Under the ADA’s public accommodations law, only injunctive relief is available, no money damages. Attorney fees are available, if the plaintiff wins. So she finds one lawyer willing to front the costs of a long, expensive legal battles with only the hope of a win and (maybe) fees 2 or 3 years later, but her current case load is too big to take it on. Many violations go unchecked.

Violations exist everywhere because businesses make the ‘business decision’ to wait to be sued before making changes. Many build things and don’t bother to comply. In my experience, demand letters do not work.

I find it troubling that settlement agreements reached are confidential, so we can’t know what happened. CCDC’s settlement agreements are available online. But one part of this story is overlooked: The business owner interviewed by Channel 7 entered an agreement and made her business accessible.

We don’t know the defense lawyer in that case, but he said, “These companies want to get into compliance. They want to make their properties accessible for handicapped individuals, but what they don’t want is to have extortion.” Suing and demanding money settlements in exchange for not having to comply is wrong and must be stopped. But why is any business not in compliance 22 years later? What are they waiting for?

We agree with the blogger on one thing: If a business really “wants to come into compliance” now, it should conduct an ADA-accessibility audit. There are many great tools available free on the Department of Justice’s ADA Home Page.

Kevin Williams is the Legal Program Director for the Colorado Cross-Disability Coalition (“CCDC”), a non-profit, disability rights membership organization. CCDC advocates for social justice for people with all types of disabilities. CCDC’s Legal Program practice consists almost exclusively of representing plaintiffs in ADA and other civil rights cases. On CCDC’s website, past case and current case information is available.

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.