Rocky Mountain Appellate Blog

Health Care Providers Dodge Bullet on Powers of Attorney

In a decision issued earlier this week, providers who serve persons who are incapacitated or seriously disabled avoided what could have been a significant problem. In Moffett v. Life Care Centers of America, the Colorado Supreme Court upheld the exercise of powers of attorney for persons who are incapacitated or disabled. The decision is a win for all providers who provide services to such persons.

The case involved an attempt by a relative to avoid an agreement he signed for his mother agreeing to arbitration of any medical malpractice claims. The son (who possessed a power of attorney for the mother) signed the arbitration agreement right after he placed his mother in a health care facility. The mother soon passed away and the son and his sister sued for wrongful death. The trial court denied the provider’s attempt to enforce the arbitration agreement, essentially holding (among other things) that a person with a power of attorney did not have the power to enter into an arbitration agreement. The provider appealed and the Court of Appeals reversed, upholding the arbitration agreement and the son’s exercise of the power of attorney on behalf of his mother.

When the Colorado Supreme Court granted certiorari, many providers became alarmed. One of the questions upon which certiorari was granted stated whether “mere powers of attorney” have the authority to execute arbitration agreements. Reversal of the Court of Appeals on this point would have potentially called into question all powers of attorneys exercised on behalf of persons who are incapacitated or seriously disabled. Numerous amicus briefs were filed, and the Court, doing the right thing in my view, upheld the arbitration agreement and the son’s power to enter into that agreement based upon the power of attorney.

This decision, combined with the General Assembly’s recent adoption of the Uniform Power of Attorney Act, House Bill 09-1198, provide additional certainty in this area and reinforce providers’ ability to rely upon powers of attorney in general.

Supreme Court’s to Address First Title VII Timeliness Case in the post-Ledbetter Era

Early last month, the U.S. Supreme Court began hearing oral arguments in its 2009-2010 term.  Currently pending on the docket are five cases that may directly impact employers in employment and labor related issues.  One of the most notable of these, and the lone employment discrimination case on the docket, addresses a key procedural question concerning disparate impact claims arising from allegedly discriminatory hiring tests in the Chicago fire department.  That’s right, in the wake of last term’s holding in Ricci v. DiStefano, the Court will hear another case involving hiring tests for firefighters. 

 

Lewis et al. v. City of Chicago (08-974) raises the issue of whether a plaintiff’s time to file a charge of discrimination with the U.S. Equal Employment Opportunity Commission begins to run as soon as the employer announces a hiring policy that has a disparate impact on a protected class, or wither the time to file only begins to run once the employer has implemented or applied the policy.  As can be imagined, the Circuits are split on the question, with the Seventh, Third and Sixth Circuits holding that the time to file begins to run as soon as the policy is announced, and the Second, Fifth and Ninth Circuits holding that the clock restarts every time the employer actually makes an employment decision based on the challenged policy. 

 

This issue bears striking similarity to that which was raised in the Court’s 2007 decision in Ledbetter v. Goodyear Tire, regarding the timeliness of Equal Pay Act claims.  In fact, the Seventh Circuit’s opinion largely tracked the reasoning of the Court’s Ledbetter decision, which, of course, led to the passage of the Ledbetter Fair Pay Act of 2009. 

 

 

As this represents the first case under the new legislation, the Court will have an opportunity to answer an important question about the Act, namely how far the broadly written law will apply in the Title VII arena.  Assuming the Court follows a conservative path and renders an employer-friendly ruling along the lines of the Ledbetter decision, it wouldn’t be all that surprising if Congress steps in with new legislation, just as it did after the Ledbetter decision.  The Court is expected to hear argument in the case in the early part of next year.

Groucho Marx and Good English Grammar

The Tenth Circuit's decision in Payless Shoesources v. Travelers Cos., issued yesterday, contains a discussion of grammar in the context of contract interpretation that is sure to be quoted many times over in future briefs and opinions. 

After settling a class action brought against it for California state wage act violations, Payless sued Travelers to recoup the settlement costs and costs of defending. The district court entered summary judgment for Travelers, holding that Travelers' policy excluded losses for violations of the Fair Labor Standards Act and, as the exclusion states, "other similar provisions of any federal, state, or local statutory or common law."

Payless appealed, arguing that the district court misread the policy and that "good English grammar" mandates that the modifier "other similar provisions" applied only to the immediately preceding clause, which dealt only with workers compensation.

In rejecting Payless's argument, Judge Gorsuch's opinion contains an interesting discourse on how grammatical rules should (and, as in this case, should not) guide a court's contract interpretation:

[W]hile the rules of English grammar often afford a valuable starting point to understanding a speaker’s meaning, they are violated so often by so many of us that they can hardly be safely relied upon as the end point of any analysis of the parties’ plain meaning. So it is that Groucho Marx could joke in Animal Crackers, “One morning I shot an elephant in my pajamas. How he got into my pajamas I’ll never know,” leaving his audience at once amused by the image of a pachyderm stealing into his night clothes and yet certain that Marx meant something very different. In the more mundane task of contract interpretation, we must be no less entitled to acknowledge the parties’ plain meaning without being straight-jacketed by a grammatical rule into reaching a patently unintended result.

Colorado Supreme Court to Opine on Cost Statutes

The Colorado Supreme Court today granted certiorari in a seemingly obscure case involving recovery of costs. One could look at this grant as potentially signaling a broader review by the Court of what are and what are not recoverable costs.

The case, Catlin v. Tormley Bewley Corp., involves labor and employment law. One of two woman plaintiffs suing their employer recovered under the Equal Pay Act. She recovered a modest sum under the Act and an award of attorney’s fees. Three items of costs were denied by the trial court and the Court of Appeals: (1) interest on loans taken out to finance the litigation; (2) certain expert witness costs after the trial court held that the expert’s testimony was inadmissible; and (3) money paid to lay witnesses to reimburse them for wages lost due to appearing to testify at trial.

A review of the Court of Appeals’ opinion suggests nothing cert-worthy. The fact that the Colorado Supreme Court granted review to determine whether any of the three cost items listed above is recoverable may be a signal that the Court is looking for a vehicle for opining more expansively on what costs are recoverable. The case may well be worth keeping an eye on and perhaps weighing in as an amicus.

Justice Thomas on the Court's "Northeastern Mentality"

In an interesting two-minute excerpt of a recent CSPAN interview (available here), Justice Thomas says that "we [i.e., the Court] tend to be very heavily Northeastern in our mentality."  He attributes this to the fact that eight of the nine justices are products of Ivy League law schools (Justice Stevens, a Northwestern grad, being the sole exception).  This past summer an interesting article on this subject appeared in the New York Times.  It's hard to argue with this point in certain respects -- although in fairness, Justice Kennedy, who graduated from Harvard, spent his entire career in California prior to his nomination to the Court.

Implementation of New Safety Policies Does Not Violate ADA

The Tenth Circuit recently affirmed an employer’s creation and enforcement of potentially discriminatory employment polices on the grounds that the policies in question were sufficiently job related and business necessary.  This ruling demonstrates the importance of well crafted and reasoned employment policies and the importance of engaging in a good faith attempt to identify reasonable accommodations when an employee complains of the effect of a new policy or revisions to existing policies.

Summary:  In Hennagir v. Utah Department of Corrections, No. 08-4087 (10th Cir. Sept. 10, 2009), the Tenth Circuit affirmed summary judgment for the employer of an Americans with Disabilities Act lawsuit filed by a physician’s assistant who claimed the enforcement of a newly created employment policy discriminated against her.  The Court held that a job function that is rarely required in the normal course of an employee’s duties may nonetheless be an essential job function under the ADA when the potential consequences of employing an individual who is unable to perform the function are sufficiently severe.

Background: Barbara Hennagir worked as a physician’s assistant at the Utah Department of Corrections (“DOC”) facility located in Gunnison, Utah from April 1997 through August 2005.  In 2001, the DOC required all medical staff that interacted with the inmate population to be trained and certified through the Police Officers Standards and Training program (“POST”), due in large part to the assault of a medical employee by an inmate.  Because Hennagir’s position required daily contact with prison inmates, she reported to POST training.  However, Hennagir, who suffers from several autoimmune disorders including fibromyalgia and lupus, did not take the physical test and was not POST certified as a result. 

In 2003, the DOC notified Hennagir that she could not remain in her position because she was not certified.  The DOC offered to allow her to transfer to a mental health facility in Draper, Utah where POST certification was not required.  As the Draper facility was 80 miles from her home, Hennagir refused the transfer and requested an exception to the certification rule, claiming that such an exception would be a reasonable accommodation of her disabilities.  After considering the request, the DOC refused to grant an exception to the certification requirement and Hennagir commenced grievance procedures internally and with the EEOC. 

Analysis: 

The Court based its ruling on the second prong of a plaintiff’s burden of proof to succeed on an ADA claim, namely a showing that she is qualified to perform the essential functions of the job with or without reasonable accommodations.  Kellogg v. Energy Safety Servs., Inc., 544 F.3d 1121, 1124 (10th Cir. 2008).  As Hennagir could not perform one essential function of her job -- POST certification, the DOC’s decision to terminate her employment was ultimately proper. 

The Court highlighted the fact that an employer has the authority to define what functions are required to perform a job, and a particular standard set by an employer will not be deemed to discriminate against disabled persons so long as it is job related and consistent with business necessity.  Among those considerations when determining whether a job duty constitutes an essential function, the Court relied heavily on the employer’s judgment as to which functions are essential and the consequences of not requiring the employee to perform the function in question.  Hennagir at 9 (citing 29 C.F.R. § 1630.2(n)(3)). 

Further, the ADA does not limit an employer’s ability to establish or change the essential functions of a job.  Here, the Court determined that the DOC had every right to change its policies to require its medical staff to be POST certified.  “[T]he risks involved in direct inmate contact strike at the heart of another factor used to determine whether a job function is essential: the consequences of not requiring an employee to perform the function.  Hennagir at 11 (citing 29 C.F.R. § 1630.2(n)(3)(iv).  

Given the severe risks involved, the Court found that POST certification was an essential function of the physician assistant position, rejecting Hennagir’s argument that the threat of an inmate attack was so remote as to render certification a non-essential duty. 

The Court went on to discuss the availability of a reasonable accommodation that would allow Hennagir to remain employed by the DOC.  Notably, the Court ruled that the DOC was not required to waive the POST certification requirement as a reasonable accommodation for Hennagir.  The idea of a reasonable accommodation is to find a way that the employee can do all of the essential duties of the job.  Id. at 15.  “[A]n employer is not required to accommodate a disabled worker by modifying or eliminating an essential function of the job.  Id. (citing Mathews v. Denver Post, 263 F.3d 1164, 1168 (10th Cir. 2001).  A key factor was Hennagir’s rejection of several accommodations offered by the DOC.  Her refusal to accept proffered accommodations and insistence on wavier of the certification requirement undermined her claims that the DOC failed to engage in a good faith discussion of what accommodations might be available. 

Conclusion:

Hennagir underscores how important it is for employers to be able to articulate a legitimate basis for their job descriptions and employee duties.  The fact that an employee may not fulfill a particular duty on a regular basis does not automatically render that duty non-essential as long as the employer can articulate business necessity demonstrating the essential nature of the duty.  This case also demonstrates the value of negotiating in good faith with employees who request reasonable accommodations.  Even though the employer here did not grant the particular accommodation the employee requested, by offering several of its own instead, the employer was able to close the door on the employee’s claims based on failure to accommodate.

More 10th Circuit Heller Jurisprudence

In United States v. Gieswein (No. 08-6113) the Tenth Circuit held again that the federal felon dispossession statute (18 U.S.C. § 922(g)(1)) was not unconstitutional under Heller.  The defendant in Gieswin had prior felony convictions for, among other things, placing a pipe bomb in a parked car.  Applying United States v. McCane, the court held that § 922 violates neither the Second Amendment or the Commerce Clause.  The court noted that the Fourth, Fifth, Sixth, Eighth, Ninth and Eleventh Circuits had all also rejected post-Helller Second Amendment challenges to § 922.  Notably, the court included a footnote indicating that it shared “the concern, expressed in the McCane concurrence [by Judge Tymkovich], that the Heller dictum [regarding the constitutionality of dispossession laws] may be in tension with the basis for its own holding, as felon dispossession laws may not have the longstanding historical basis ascribed to them by the Court.”

Justice Stevens to Retire?

In a wire article posted this morning, the AP reports that Justice Stevens has hired only one clerk for the term that begins in October 2010, prompting speculation that he may retire at the end of the upcoming 2009-2010 term.  Former law clerks to Justice Stevens say that he usually hires all four of his clerks at the same time, usually in June or July of the preceding year.  The article mentions two considerations that might keep him on the Court past 2010 -- the possibility that Justice Ginsburg's health might deteriorate, and the fact that he would become the longest-serving justice in Supreme Court history if he stays on until 2012.  If he were to stay on until mid-2012, that would be unfortunate timing for President Obama.  My guess is that Justice Stevens would not place his personal desire to achieve that record above giving President Obama the opportunity to nominate his replacement.  The AP article is here.

An Extensive Review on Qualified Immunity but Do We Have a Standard?

On August 7, 2009, the Tenth Circuit handed down its opinion in Green v. Post.  The case deals with a substantive due process claim against a Pueblo deputy sheriff under 42 U.S.C. § 1983 for a death arising from a car crash at an intersection where the deputy was pursuing another car but did not have his lights or siren on at the time of the accident. The district court denied the officer qualified immunity but the Tenth Circuit reversed. The case is a necessary read for lawyers dealing with substantive due process claims given its detailed survey of the law in this area, but a reader may find him-or-herself asking just exactly what standard applies in this circuit in the wake of Green.

As noted in Green, the United States Supreme Court established in Sacramento v. Lewis, 523 U.S. 833 (1998), that cases with “high-speed-chase” facts are properly analyzed under substantive due process. Lewis opined that the “shock the conscience” test was applicable. As noted by the Tenth Circuit in Green, post-Lewis, the cases are pretty consistent that if a plaintiff could establish a deliberate intent to harm, that could qualify as “conscience shocking.” The tougher question arises if the official conduct is not intentional but akin to gross negligence. As noted in Green, some circuits have refused to allow their conscience to be shocked with anything less than intentional conduct. One reads Green as tippy-toeing up to the edge but, in the end, refusing to follow those circuits.

Instead, it is still theoretically possible post-Green to make out a substantive due process claim with something less than intentional-conduct facts.  Per the Green court, the question on what kind of conduct is conscience-shocking hinges on the degree to which the officer in question had time to deliberate –- the more time for deliberation before engaging in the conduct, the greater the likelihood that a plaintiff can make out a prima facie case of conscience-shocking if the plaintiff is injured by the officer’s gross negligence. It’s a hard standard to meet, but it’s easier than some circuits require.

The Camel's Nose: Sotomayor's Swearing-in to Be Televised

In a surprise announcement on Friday afternoon, the U.S. Supreme Court indicated that Justice Sotomayor's swearing-in at the Supreme Court Building will be televised.  Other oaths have been televised recently, but only those held at the White House.  This will be the first time that a swearing-in at the Supreme Court Building has been televised.  Tony Mauro at the National Law Journal has more background here.  As he notes, more camera access to the Supreme Court is unlikely to happen anytime soon, but Friday's announcement is a rare step in that direction.