Kolbe v. Endocrine Services, P.C.

          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 ...