135 F.Supp.2d 1137 (D.Colo. 2000), Civ. A. 99-K-1287, Werner v. Colorado State University

Docket NºCIV. A. 99-K-1287.
Citation135 F.Supp.2d 1137
Party NameChandra J. WERNER, Plaintiff, v. COLORADO STATE UNIVERSITY and the State Board Of Agriculture of the State Of Colorado, Defendants.
Case DateDecember 20, 2000
CourtUnited States District Courts, 10th Circuit, District of Colorado

Page 1137

135 F.Supp.2d 1137 (D.Colo. 2000)

Chandra J. WERNER, Plaintiff,

v.

COLORADO STATE UNIVERSITY and the State Board Of Agriculture of the State Of Colorado, Defendants.

No. CIV. A. 99-K-1287.

United States District Court, D. Colorado.

Dec. 20, 2000

Page 1138

Dale A. Gaar, Dale A. Gaar, PC, Denver, CO, for Plaintiff.

Jay Beebe Simonson, Friedrick C. Haines, Elizabeth Ann Weishaupl, Attorney General's Office Tort Litigation Section, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER ON CROSS MOTIONS

KANE, Senior District Judge.

This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment, filed January 10, 2000, and Defendants' Cross Motion to Dismiss, filed February 7, 2000. For the reasons stated below, I deny Defendants' motion and grant Plaintiff's motion in part and deny it in part.

In this action, Plaintiff Chandra Werner asserts claims against Defendants Colorado State University and the State Board of Agriculture of the State of Colorado (collectively "CSU") pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213 (1994), and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994 & Supp. IV 1998). Werner is substantially hearing-impaired. At the time this action commenced, she was a student in CSU's veterinary medicine program. Werner alleges that CSU violated the ADA and the Rehabilitation Act by, among other things, failing to provide her with adequate auxiliary aids to allow her effective access to the veterinary medicine program.

In her Motion for Partial Summary Judgment, Werner requests that the Court strike CSU's Second and Tenth Defenses, which are, respectively: (1) that Plaintiff's claims are barred by the Eleventh Amendment of the U.S. Constitution; and (2) that CSU complied with the ADA and Rehabilitation Act because the accommodations sought by Werner would impose an undue burden on CSU or cause a fundamental alteration in CSU's veterinary medicine program. In its response and cross motion, CSU seeks dismissal of this action for lack of subject matter jurisdiction based on its alleged immunity to this suit under the Eleventh Amendment, or, alternatively, that this action be stayed in anticipation of a decision by the United States Supreme Court on this issue.

I. Stay of Proceedings

As is evident from the parties' cross motions, one of the key initial issues in this action is whether the Eleventh Amendment bars claims under the ADA and Rehabilitation Act against instrumentalities of the States. On February 17, 2000, I granted the parties' joint motion to stay this action pending the Supreme Court's decision on this issue in Florida Dept. of Corrections v. Dickson, 139 F.3d 1426 (11th Cir.1998), cert. granted, 528 U.S. 1132, 120 S.Ct. 976, 145 L.Ed.2d 926 (Jan. 21, 2000)(No. 98-829). Shortly thereafter the parties in Dickson settled and the Supreme Court dismissed the writ of certiorari in that case. Id., 528 U.S. 1184, 120 S.Ct. 1236, 145 L.Ed.2d 1131 (Feb. 23, 2000). Consequently, on June 16, 2000 I lifted the stay in this action.

Page 1139

CSU now submits the stay should be reinstated because the Supreme Court has granted certiorari in another case, Garrett v. University of Alabama at Birmingham Board of Trustees, 193 F.3d 1214 (11th Cir.1999), cert. granted in part, 529 U.S. 1065, 120 S.Ct. 1669, 146 L.Ed.2d 479 (Apr. 17, 2000)(No. 99-1240), to address the question of the States' alleged Eleventh Amendment immunity from suit for violations of the ADA. The Supreme Court heard argument in Garrett on October 11, 2000.

I deny CSU's request to reinstate the stay. On September 11, 2000, the Tenth Circuit ruled on the ADA issue presented by these motions...

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