United States District Court, D. Colorado
WENDY KOLBE, and COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit organization, Plaintiffs,
v.
ENDOCRINE SERVICES, P.C., a Colorado Corporation, Defendant.
ORDER
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE.
At
issue in this case is whether Defendant violated Title III of
the American with Disabilities Act (“ADA”),
Section 504 of the Rehabilitation Act of 1973 (“Section
504”), and the Colorado Anti-Discrimination Act
(“CADA”). Plaintiffs contend Defendant did so
when Dr. Agha B. Khan, the only treating physician employed
by Defendant, refused to allow Plaintiff Wendy Kolbe
(“Ms. Kolbe”) to have her alleged service dog
Bandit to accompany her at her office visit. Plaintiffs have
moved for summary judgment on the issue of liability (the
“Motion”) (ECF No. 28) but only as to the ADA and
Section 504 (collectively, the “Federal Disability
Acts”) claims. Defendant has filed a Response, to which
Plaintiffs have filed a Reply (ECF Nos. 32, 37). For the
reasons stated herein, the Motion is DENIED.
I.
BACKGROUND [1]
On or
about May 12, 2016, Ms. Kolbe's primary care provider
referred her to Defendant's practice for endocrine
services. (ECF No. 42, pp. 2-3.) Dr. Khan is the only
treating physician employed by Defendant and his practice is
to obtain laboratory data on new patients before his initial
consultation with them. On June 7, 2016, Dr. Khan's staff
printed a Laboratory Data Report on Ms. Kolbe. That report is
stated to be ordered on April 26, 2016, and indicates a
Hemoglobin A1c result of 5.6, which is in the non-diabetic
range. (ECF No. 37-1, p. 1; No. 37-21, p. 1.) Dr. Khan
reviewed the report prior to Ms. Kolbe's appointment on
June 8, 2016.
On June
8, 2016, Ms. Kolbe appeared at her appointment with her dog
Bandit and was filling out her paperwork in the waiting room
when she was approached by Dr. Khan. Ms. Kolbe mentioned that
Bandit was her service dog, but Dr. Khan asked her to take
Bandit to her vehicle. The parties dispute exactly what was
said but, needless to say, Ms. Kolbe was not seen by Dr. Khan
that day.
Defendant
has a policy in place that requires individuals with service
dogs to: (1) identify the animal as a service animal, and (2)
provide “reasons for the presence of [the] pet during
medical office visit[s.]” In addition, Defendant's
policy provides that “[i]f there is no obviously
visible impairment/disability to the patient and the patient
does not provide the reason/necessity for the presence of pet
at the time of visit to the medical office, patient is
requested to have the pet taken to their vehicle or have it
taken out for a walk by patient's companion if
present.” (ECF No. 28, p. 2; No. 37, p. 1.)
Based
on Dr. Khan's actions, Plaintiffs filed this action
alleging three claims for relief. Plaintiffs' Motion
asserts that, based on the undisputed material facts, as a
matter of law Defendant is liable under the Federal
Disability Acts.
II.
LEGAL STANDARD
Summary
judgment is appropriate only if there is no genuine dispute
of material fact and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Gutteridge v.
Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018). Whether
there is a genuine dispute as to a material fact depends upon
whether the evidence presents a sufficient disagreement to
require submission to a jury or is so one-sided that one
party must prevail as a matter of law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251- 52 (1986);
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136
(10th Cir. 2000); Carey v. United States Postal
Serv., 812 F.2d 621, 623 (10th Cir. 1987). Once the
moving party meets its initial burden of demonstrating an
absence of a genuine dispute of material fact, the burden
then shifts to the nonmoving party to demonstrate the
existence of a genuine dispute of material fact to be
resolved at trial. See 1-800-Contacts, Inc. v. Lens.com,
Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation
omitted). There is no genuine issue of material fact
“unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.” Anderson, 477 U.S. at 249.
The
Court is “not obligated to comb the record in order to
make [a party's arguments], ” Mitchell v. City
of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000),
or to conduct a “fishing expedition” of any
record evidence, Coleman v. Blue Cross Blue Shield of
Kansas, Inc., 287 Fed.Appx. 631, 635 (10th Cir. 2008)
(approving district court's statement concerning
nonmovant's failure on summary judgment, citation
omitted). And, the facts must be considered in the light most
favorable to the nonmoving party. Cillo v. City of
Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013)
(citations omitted).
III.
ANALYSIS
A.
Disability
Section
504 of the Rehabilitation Act provides, in relevant part,
that “No otherwise qualified individual with a
disability in the United States…shall, solely by
reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving
Federal financial assistance.” 29 U.S.C. § 794(a).
Generally, to prevail on a claim under Section 504, a
plaintiff must prove: “(1) that [she] is a
‘handicapped individual' under the Act, (2) that
[she] is ‘otherwise qualified' for the benefit
sought, (3) that [she] was discriminated against solely by
reason of [her] handicap, and (4) that the program or
activity in question receives federal financial
assistance.'” Cohon ex rel. Bass v. New Mex.
Dep't of Health, 646 F.3d 717, 725 (10th Cir. 2011)
(internal alterations omitted, brackets added) (quoting
Johnson by Johnson v. Thompson, 971 F.2d 1487, 1492
(10th Cir. 1992)).
Title
III of the ADA provides that “[n]o individual shall be
discriminated against on the basis of disability in the full
and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of
public accommodation by any person who owns, leases (or
leases to), or operates a place of public
accommodation.” 42 U.S.C. § 12182(a). As relevant
here, to prevail on a claim under this provision, a plaintiff
must show that she is a disabled person as defined by the ADA
and the defendant owns or operates a public place of public
accommodation. See Zwygart v. Board of County Comm'rs
of Jefferson County, Kansas, 483 F.3d 1086, 1090 (10th
Cir. 2007) (setting forth requirements for prima facie ...