May 19, 2019

Archives for September 13, 2012

Tenth Circuit: Petition for Rehearing Denied in Capital Murder Case Due to Harmless Error

The Tenth Circuit Court of Appeals published its opinion in DeRosa v. Workman on Tuesday, September 11, 2012.

Although the Constitution prohibits the sentencing jury in a capital murder case from hearing testimony from the victim’s family, the Court held this was harmless error and denied petitioner’s Petition for Rehearing.

It is worth noting the strong dissent of Judges Lucero, who objects to what he describes as a clearly established pattern in Oklahoma state courts in allowing the sentencing jury in a capital case to hear testimony from the victim’s family in violation of the Constitution.

Tenth Circuit: Employees Constituted Management and Therefore Did Not Consent to Arbitration Under the Collective Bargaining Agreement, Which Was Aimed at Non-Management Employees

The Tenth Circuit Court of Appeals published its opinion in Communication Workers of America v. Avaya on Tuesday, September 11, 2012.

In March 2010, Communication Workers of America (CWA) commenced a union organizing drive aimed at Avaya “backbone engineers.” Avaya objected to the drive. A Neutrality Agreement (appended to the parties Collective Bargaining Agreement), governed union organizing efforts aimed at “non-management employees.” Avaya argued its backbone engineers were management, and refused arbitration. CWA filed a complaint in District Court to compel arbitration. After cross-motions for summary judgment, the District Court granted CWA’s motion to compel arbitration. Avaya appealed.

The Tenth Circuit stated the case required reconciliation of two competing principles: (1) courts must evaluate the threshold question of whether the parties consented to arbitration; versus (2) courts making this determination are not to rule on the merits of the underlying claims. The Tenth Circuit concluded that the Court’s duty to determine whether the parties intended the dispute to be arbitrable trumps its duty to avoid reaching the merits.

Without a judicial determination of arbitrability, the scope of the arbitration clause was determined by the pleadings. The Tenth Circuit concluded the record was clear that Avaya employees constituted management. Accordingly the record showed the parties never consented to submit the dispute of the backbone engineers to arbitration. REVERSED and REMANDED.

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

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.