May 19, 2019

Tenth Circuit: After Employee Proposes ADA Accommodations, Burden Shifts to Employer to Show Undue Hardship

The Tenth Circuit Court of Appeals issued its opinion in Osborne v. Baxter Healthcare Corp. on Monday, August 24, 2015.

Kelly Osborne, who is deaf, applied for a job as a plasma center technician (PCT) at BioLife Plasma Services. After two interviews, she was conditionally offered the job pending final tests and paperwork. BioLife’s human resources division reviewed her paperwork and determined she could not perform essential functions of the PCT job because she was deaf and would not be able to hear the alarm on the plasmaphoresis machine or hear clients calling for help. When Ms. Osborne showed up for work on her first day, Joe Elder, the manager, told her BioLife had rescinded her offer of employment. Ms. Osborne filed suit, arguing that BioLife’s revocation of the job offer violated the Americans with Disabilities Act. The district court granted summary judgment to BioLife and ordered each side to pay its own fees and costs. Both parties appealed.

The Tenth Circuit found material disputes of fact as to whether the accommodations Ms. Osborne proposed would be reasonable for BioLife and concluded summary judgment was inappropriate. The Tenth Circuit evaluated the three factors to present a prima facie case of discrimination under the ADA: (1) whether the employee is disabled within the meaning of the ADA, (2) whether the employee is qualified, with or without reasonable accommodation, to perform the essential functions of the job, and (3) whether the employee was discriminated against because of his or her disability. Because there was no dispute that Ms. Osborne met the first and third factors, the Tenth Circuit evaluated only the second—whether she would be able to perform essential functions of the job with or without reasonable accommodation. Ms. Osborne proposed adding lights to the plasmaphoresis machine in addition to the alarm sound and giving clients call buttons. Ms. Osborne argued her proposed accommodations were reasonable on their face and the burden should have shifted to BioLife to show that it was unable to provide the accommodations without undue hardship. The Tenth Circuit agreed, finding that summary judgment was precluded because genuine issues of material fact existed regarding whether BioLife could provide the accommodations. Because the Tenth Circuit found that summary judgment was inappropriate, BioLife’s appeal of the cost determination was moot.

The Tenth Circuit reversed the district court’s grant of summary judgment and remanded for further proceedings.

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.

Colorado Court of Appeals: ADA Not Defense to Termination of Parental Rights

The Colorado Court of Appeals issued its opinion in People in Interest of C.Z. on Thursday, June 18, 2015.

Dependency and Neglect—Termination of Parent–Child Legal Relationship—Americans with Disabilities Act.

The Weld County Department of Human Services (Department) filed a dependency and neglect petition after mother was unwilling to follow through with treatment to address her multiple mental health diagnoses. The Department also asserted father had been diagnosed with severe depression. The court granted the Department custody of the child.

The court then adjudicated the child dependent and neglected and approved a treatment plan for the parents. After receiving the psychological and parent–child interactional evaluations, the Department moved to terminate the parents’ parental rights, asserting that no appropriate treatment plan could be devised to address their unfitness. Following a contested hearing, the court terminated the parent–child legal relationship.

On appeal, mother and father argued that CRS § 19-3-604(1)(b)(I) conflicts with the Americans with Disabilities Act (ADA) because it allows the court to terminate parental rights of disabled parents without requiring the Department to provide them the rehabilitative services that other parents receive. The Court first addressed the Department’s assertion that the parents’ contention should be summarily rejected because the ADA is not a defense to termination of parental rights. Title II of the ADA does not limit the court’s authority to terminate a disabled parent’s rights when the parent is unable to meet his or her child’s needs. However, it does apply to the provision of assessments, treatment, and other services that a department provides to parents through a dependency and neglect proceeding before a termination hearing. Accordingly, the issue in this case is whether CRS § 19-3-604(1)(b)(I) is preempted by the ADA.

The type of preemption at issue here was conflict preemption, which voids a state statute that conflicts with a valid federal law. A conflict is found when compliance with both federal and state regulations is a physical impossibility or when the state law stands as an obstacle to the accomplishment and full execution of the purposes and objectives of federal law.

CRS § 19-3-604(1)(b)(I) permits termination of parental rights of mentally impaired parents without requiring the Department to provide them treatment plans. However, the Court held this does not conflict with the ADA’s requirement that a public entity make reasonable accommodations for qualified individuals with disabilities. If rehabilitative services can be offered to address a parent’s mental impairment so that he or she can meet the child’s needs within a reasonable time, then termination is not authorized under CRS § 19-3-604(1)(b)(I). A finding that no treatment plan can be devised to address a parent’s unfitness caused by mental impairment is the equivalent of a determination that no reasonable accommodations can be made to account for the parent’s disability under the ADA.

In determining whether reasonable accommodations can be made to address the parent’s disability under the ADA, the court’s paramount concern is the child’s health and safety. The ADA does not protect an individual who poses a safety risk to others. The Court concluded that the trial court’s findings here satisfy the ADA requirement that no reasonable accommodations could be made to enable mother and father to participate in an appropriate treatment plan and rehabilitative services.

Father also argued the termination of his parental rights solely on the basis of his mental disability violated his right to equal protection under the Fourteenth Amendment. The Court disagreed. Parents who are unable to meet their children’s needs within a reasonable time, whether because of mental impairment or another statutorily enumerated reason, are not similarly situated to parents who have the ability to become fit within a reasonable time. The judgment was affirmed.

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

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: Employee Must Be Able to Perform Essential Job Duties to Make Claim Under ADA and Title VII

The Tenth Circuit Court of Appeals issued its opinion in Myers v. Knight Protective Service, Inc. on Monday, December 22, 2014.

Alphonso Myers suffered a workplace injury, and was granted Social Security disability benefits on the ground he was unable to work. He then applied for and was selected for a position as a security guard for Knight Protective Service. During the interview process, he was asked repeatedly if he had any physical disabilities, and answered no each time. However, at work, his supervisor noticed he seemed to be in pain, and Myers confessed to having undergone several back and neck surgeries. The supervisor sent him home and told him he could not return to work unless he passed a physical examination. Several months passed, during which Myers waited for Knight to contact him to schedule the exam, but it did not happen, so Myers considered himself effectively terminated and sued Knight for race and disability discrimination, alleging several torts. The district court dismissed some of Myers’ claims and granted summary judgment to Knight on the rest. Myers appealed.

The Tenth Circuit affirmed the district court. In order to make a claim under the ADA and Title VII, the employee must show he was qualified to perform the essential functions of the job. Myers could not show qualification; in his application with Knight, he acknowledged he would be required to “engage in frequent and prolonged walking, standing, and sitting; to react quickly to dangerous situations; to subdue violent individuals; and to lift heavy weights.” He could do none of those activities.

The Tenth Circuit also rejected Myers’ assertion of disparate treatment based on race, finding no support for his allegations. The Tenth Circuit likewise rejected Myers’ complaint that the district court failed to address his “cat’s paw” argument as to his supervisor, since he failed to establish a prima facie case of discrimination by anyone. Myers’ tortious interference claims also failed for lack of evidence.

The Tenth Circuit affirmed the district court’s dismissal and summary judgment and granted the motion to seal certain medical records.

Tenth Circuit: Summary Judgment for Employer Reversed on FMLA and ADA Claims

The Tenth Circuit Court of Appeals published its opinion in Smothers v. Solvay Chemicals, Inc. on Tuesday, January 21, 2014.

Steven Smothers worked for Solvay Chemical, Inc. (“Solvay”) for 18 years until Solvay fired him, ostensibly because of a first-time safety violation and a dispute with a coworker. He sued Solvay, claiming the company’s true motivations were retaliation for taking medical leave from work, in violation of the Family Medical Leave Act (“FMLA”), and discrimination on the basis of his medical disability, in violation of the Americans with Disabilities Act (“ADA”). He also brought a state law claim for breach of implied contract. The district court granted summary judgment for Solvay on his FMLA and ADA claims and on his state law claim for breach of implied contract.

Smothers sought and was granted FMLA leave from Solvay for intermittent absences caused by severe neck and back pain. Solvay considered him an excellent, reliable mechanic with strong job knowledge, but managers and coworkers complained about his FMLA-protected absences.

The Tenth Circuit held that Smothers met his prima facie burden on his FMLA and ADA claims and presented a genuine dispute of material fact as to whether Solvay’s stated purpose for firing him was pretextual. After viewing the evidence in Smothers’ favor, it showed that: (1) Solvay treated Smothers differently from similarly situated employees who committed comparable safety violations; (2) Solvay’s investigation into Smothers’ quarrel with Mahaffey was inadequate; and (3) Solvay managers previously took negative action against Smothers because of his FMLA-protected absences. Together these grounds create a triable issue of fact as to whether Mr. Smothers’ FMLA leave was a substantial motivation in Solvay’s decision to fire him.

The court rejected Solvay’s argument that the group of decision makers who fired Smothers was different from groups that disciplined other employees. The court held that requiring absolute congruence of decision maker members “would too easily enable employers to evade liability for violation of federal employment laws. The district court erroneously rejected Mr. Smothers’ pretext argument by insisting that the composition of the decision maker groups be precisely the same in every relevant disciplinary decision. We disagree because there is more than enough overlap to conclude the employees identified here were similarly situated to Mr. Smothers.”

The court also rejected Solvay’s argument that evidence of previous negative comments and actions about Smother’s FMLA leave were irrelevant to support his FMLA claims as they did not qualify as adverse employment actions. These incidents were relevant to a pretext inquiry, even if they could not be used to directly support a retaliation claim.

The court reversed the grant of summary judgment to Solvay on the FMLA and ADA claims, and affirmed on the state law claim of breach of contract as Smothers failed to show how the decision to discharge him violated the terms of Solvay’s handbook.

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.

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

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.

Tenth Circuit: Defenses Do Not Confer Federal Question Jurisdiction

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.

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

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.”

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.

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

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.