124 F.3d 1221 (10th Cir. 1997), 96-1086, Roe v. Cheyenne Mountain Conference Resort, Inc.

Docket Nº:96-1086.
Citation:124 F.3d 1221
Party Name:97 CJ C.A.R. 1767 Jane ROE, Plaintiff-Appellant, v. CHEYENNE MOUNTAIN CONFERENCE RESORT, INC., Defendant-Appellee. National Employment Lawyers' Association, Disability Rights Education And Defense Fund, Employment Law Center, New York Lawyers For The Public Interest, The Impact Fund, Equal Employment Opportunity Commission, Amici Curiae.
Case Date:September 02, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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124 F.3d 1221 (10th Cir. 1997)

97 CJ C.A.R. 1767

Jane ROE, Plaintiff-Appellant,

v.

CHEYENNE MOUNTAIN CONFERENCE RESORT, INC., Defendant-Appellee.

National Employment Lawyers' Association, Disability Rights

Education And Defense Fund, Employment Law Center, New York

Lawyers For The Public Interest, The Impact Fund, Equal

Employment Opportunity Commission, Amici Curiae.

No. 96-1086.

United States Court of Appeals, Tenth Circuit

September 2, 1997

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Craig M. Cornish (Melissa L. Phillips with him on the briefs), of Cornish & Dell'Olio, Colorado Springs, CO, for Plaintiff-Appellant.

Glenn H. Schlabs (Raymond M. Deeny and Martha E. Cox with him on the brief), of Sherman & Howard, Colorado Springs, CO, for Defendant-Appellee.

Paul D. Ramshaw (C. Gregory Stewart, General Counsel, Gwendolyn Young Reams, Associate General Counsel, and Vincent J. Blackwood, Assistant General Counsel, with him on the brief), Washington, DC, for Amicus Equal Employment Opportunity Commission.

Douglas A. Hedin, Minneapolis, MN, on the brief for Amicus National Employment Lawyers' Association.

Brad Seligman and Mari Mayeda, Albany, Cal., and Arlene Mayerson and Linda D. Kilb, Berkeley, CA, on the brief for Amici Disability Rights Education and Defense Fund, Employment Law Center, New York Lawyers for the Public Interest, and The Impact Fund.

Before KELLY, HOLLOWAY, and WEIS, [*] Circuit Judges.

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HOLLOWAY, Circuit Judge.

I

Plaintiff-appellant Jane Roe (a pseudonym used for purposes of privacy) is an accounts manager for the defendant-appellee Cheyenne Mountain Conference Resort (hereinafter CMCR or simply defendant). CMCR employs approximately 500 people and, according to plaintiff, is used extensively by major corporations. In the summer of 1995, CMCR adopted a new Drug and Alcohol Testing Policy (the Policy). On July 7, 1995, CMCR's employees, including plaintiff, were given copies of the Policy and told that their written consent to the Policy and their adherence to its requirements were mandatory for their continued employment.

Preceding its provisions on drug and alcohol testing, the Policy contained these provisions:

The following rules on alcohol, drugs and illegal substances are the policy of CMCR. Adherence to these rules is a condition of employment:

  1. Employees are strictly prohibited from possessing, consuming, or being under the influence of alcohol during work hours or on company property.

  2. Employees are strictly prohibited from possessing, consuming, or being under the influence of any illegal drugs, controlled substance, any prescribed or over the counter drug or medication that has been illegally obtained or is being used in an improper manner.

  3. Employees must report without qualification, all drugs present within their body system [sic]. Further, they must remain free of drugs while on the job. They must not use, possess, conceal, manufacture, distribute, dispense, transport, or sell drugs while on the job, in CMCR vehicles or on CMCR property or to the property to which they have been assigned in the course of their employment. Additionally, prescribed drugs may be used only to the extent that they have been reported and approved by an employee supervisor and that they can be taken by the employee without risk of sensory impairment and/or injury to any person or employee.

I.R. 22 (emphasis added). (For ease of reference in the remainder of this opinion we will refer to the provisions in paragraph 3, above, as the "prescription drug disclosure provisions," even though the provisions require disclosure of all drugs, not just prescription drugs.)

The Policy provided further for drug and alcohol testing of employees in various situations. Several of these do not concern us. Provisions for testing on reasonable cause to suspect an employee was under the influence of alcohol or drugs, for testing employees involved in accidents on the job, and for employees involved in "motorized vehicle incidents" have not been challenged. As it pertains to this lawsuit, the only significant aspect of the drug and alcohol testing under the Policy is a provision for random testing to which any employee might be subjected. The Policy does not state whether blood or urine testing is contemplated, nor how samples will be taken.

Plaintiff refused to sign the consent form. Alleging that some of the requirements of the Policy were so unreasonable and intrusive as to violate her legal rights, she instead initiated this action to enjoin its implementation in the District Court of El Paso County, Colorado on July 14, 1995. Plaintiff set out three claims in her initial pleading, which have remained essentially the same after later amendment. First, plaintiff alleged that the prescription drug disclosure provisions violated section 102 of the Americans With Disabilities Act (the ADA or the Act), 42 U.S.C. § 12112(d)(4), which prohibits a medical examination or inquiries as to whether an employee is an individual with a disability, unless shown to be job-related and consistent with business necessity. 1 Second, plaintiff alleged that the prescription drug disclosure

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provisions and the requirement of submitting to random drug testing violated her right to privacy under state law. Third, she alleged that those same provisions of the Policy violated the state's public policy.

Informal discussions between counsel for the parties began almost immediately after suit was filed. These discussions were ultimately unsuccessful because the defendant rejected plaintiff's demand for attorney fees. Meanwhile, plaintiff had deferred pursuing immediate equitable relief since defendant had agreed to suspend implementation of the Policy pending the outcome of the litigation. So far as the record reveals, the Policy still has not been implemented. As the parties approached impasse in their discussions, defendant removed the action to the United States District Court for the District of Colorado.

Plaintiff had not filed a charge with the EEOC prior to commencing the instant suit in the District Court of El Paso County, Colorado on July 14, 1995. On August 21, 1995, defendant CMCR filed a notice of removal of this action to the United States District Court for the District of Colorado. Aplt.App. at 11. On August 30, 1995, CMCR moved to dismiss the complaint alleging, inter alia, failure to exhaust administrative remedies in the EEOC. Plaintiff then filed an EEOC charge and requested an immediate right to sue letter. The letter was issued three weeks later. Plaintiff then filed a motion for leave to amend the complaint to allege satisfaction of the EEOC requirements, which was granted over the defendant's objection. Plaintiff's First Amended and Supplemental Complaint was filed on November 6, 1995 in the Colorado federal court. The parties filed cross-motions for summary judgment there.

II

In resolving the cross-motions for summary judgment, the district court held that the prescription drug disclosure provisions violated the ADA because they constituted "disability-related inquiries." Roe v. Cheyenne Mountain Conference Resort, 920 F.Supp. 1153, 1154-55 (D.Colo.1996). The judge said that defendant had not shown that the Policy is job-related and consistent with business necessity. He announced that he was granting summary judgment for plaintiff on the ADA claim, and denied defendant CMCR's motion for summary judgment on that first claim. Id. at 1156. He granted defendant's motion for summary judgment on the state law claims, relying principally on the opinion of our court in Mares v. ConAgra Poultry Co., 971 F.2d 492 (10th Cir.1992). Plaintiff had requested that the court certify the state claims to the Colorado Supreme Court or decline to exercise supplemental jurisdiction over them.

In post-judgment motions, both sides sought modification of the judgment and both asked for costs and fees. Plaintiff specifically asked for an injunction against enforcement of the prescription drug disclosure provisions. The judge refused to enjoin defendant, saying he was "confident" that CMCR would amend its Policy to conform to the court's summary judgment order. Order on Motions at 4, Aplt.App. at 204. This was in spite of the fact that plaintiff's second motion to amend the judgment had shown not only that defendant had failed to amend the Policy some forty days after the judgment, but also that in response to an inquiry from plaintiff's counsel, defendant's counsel stated that the order did not require compliance. The district judge denied plaintiff's request for attorney fees, stating that an award was clearly discretionary under the ADA, and that he refused to award fees because he did not believe the violation was intentional since the issue was "novel," as Roe's attorney stated, and because plaintiff had increased the cost of the litigation by pursuing "additional and unnecessary" claims. Aplt. App. at 203.

III

We will first address three arguments raised by defendant CMCR which it contends are jurisdictional in nature. Defendant has not taken a cross-appeal from the district court's judgment. Therefore, arguments which would lead to the vacation of the judgment below and the partial relief awarded to the plaintiff may not be heard, Housing Authority of the Kaw Tribe v. City of Ponca

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City, 952 F.2d 1183, 1195 (10th Cir.1991), unless they are jurisdictional, Pytlik v. Professional Resources, Ltd., 887 F.2d 1371, 1380 (10th Cir.1989). We conclude that none of the arguments presented by defendant demonstrates a lack of jurisdiction in the district court.

A

First, defendant contends that the district court lacked jurisdiction because the EEOC issued its right to sue letter prematurely. The statute provides...

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