May 19, 2019

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: Waiver of 11th Amendment Immunity Applies to All Divisions of State Department of Labor

The Tenth Circuit Court of Appeals issued its opinion in Arbogast v. State of Kansas Department of Labor on Friday, June 19, 2015.

Kathleen Arbogast worked for the Kansas Department of Labor (KDOL) in the Workers’ Compensation Division and suffers from asthma. She complained that her co-workers’ perfumes were triggering asthma attacks, so the Division moved her to an office in the basement in September 2010, but she continued to have asthma attacks when co-workers would visit her office. In August 2011, Ms. Arbogast was terminated by her supervisor, Karin Brownlee. Ms. Arbogast filed suit in January 2013, asserting claims of discrimination and retaliation in violation of the Rehabilitation Act, and named as defendants KDOL and Brownlee in her individual capacity. KDOL sought to dismiss the Rehabilitation Act claims, arguing KDOL lacks the capacity to sue or be sued and Kansas has not waived its judicial immunity under the Eleventh Amendment. The district court denied KDOL’s motion to dismiss and KDOL brought an interlocutory appeal.

The Tenth Circuit first examined its appellate jurisdiction to consider KDOL’s claim that it lacked capacity to be sued. KDOL argued that under state law, as a mere agency of the state, it lacked capacity to sue or be sued, and the collateral order doctrine conferred immediate jurisdiction on the Tenth Circuit to hear the issue. However, at oral argument, KDOL’s counsel conceded that the collateral order doctrine may not permit interlocutory review of the capacity argument. The Tenth Circuit agreed with the concession. Citing three requirements to invoke jurisdiction under the collateral order doctrine, i.e., (1) the district court’s order conclusively resolved the disputed issue, (2) the order resolved an issue separate from the merits of the case, and (3) the order is effectively unreviewable on order from final judgment, the Tenth Circuit found KDOL’s argument failed at the first prong because the district court did not conclusively determine KDOL’s capacity to sue or be sued. The Tenth Circuit dismissed the issue on appeal.

Next, the Tenth Circuit evaluated whether KDOL waived Eleventh Amendment immunity by accepting funds for the Unemployment Insurance Division housed within the Department of Labor. KDOL contended that because Ms. Arbogast worked for the Workers’ Compensation Division, not the Unemployment Insurance Division, there was no waiver of immunity. Looking at the Rehabilitation Act, the Tenth Circuit found the plain language included in the waiver of immunity “all the operations of . . . a department . . . of a State.” Since the Workers’ Compensation Division and Unemployment Insurance Division were both housed in the Kansas Department of Labor, the acceptance of funds for the Unemployment Insurance Division constituted a waiver of Eleventh Amendment immunity for the entire Department of Labor. Kansas argued that extending the waiver of immunity to the Workers’ Compensation Division when it received no federal funds would violate the Spending Clause of the U.S. Constitution. The Tenth Circuit found the first Dole factor was satisfied because allowing those who suffer discrimination to bring private causes of action is “reasonably calculated” to achieve Congress’s goal of combating discrimination. KDOL also argued it did not have notice of its waiver, but the Tenth Circuit disagreed, finding the plain language of the Rehabilitation Act provided sufficient notice that the waiver extended to all the operations of the department. KDOL also argued that the waiver of immunity is unrelated to the federal interest justifying expenditure of the funds, but the Tenth Circuit again disagreed, finding that Congress’s intent to eliminate discrimination based on disability was reasonably related to its distribution of federal funds.

The Tenth Circuit dismissed due to lack of jurisdiction KDOL’s argument that it lacked capacity to be sued. The Tenth Circuit affirmed the district court’s finding of a waiver of Eleventh Amendment immunity.

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: 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.”