Umholtz v. Kansas Department of Social and Rehabilitation Services

Filing 71

MEMORANDUM AND ORDER granting in part and denying in part 38 Motion for Summary Judgment; denying 31 Motion for Partial Summary Judgment; granting in part and denying in part 34 Motion for Summary Judgment; granting 36 Motion for Summary Judgment. SEE ORDER FOR DETAILS. Signed by District Judge Richard D. Rogers on 2/20/2013. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRENDA UMHOLTZ, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
STATE OF KANSAS, DEPARTMENT OF
)
SOCIAL AND REHABILITATION SERVICES )
)
Defendant.
)
_

Case No. 11-4018-RDR

MEMORANDUM AND ORDER
There are three plaintiffs in this case:
Paul

Levy

and

Tina

Bruce.

Plaintiff

Brenda Umholtz,

Umholtz

plaintiff when this case was originally filed.
was

added

in

an

amended

complaint

filed

March

was

the

sole

Plaintiff Levy
2,

2011

and

plaintiff Bruce was added in an amended complaint filed April 6,
2011.

All three plaintiffs bring claims under the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and
the Rehabilitation Act of 1971, 29 U.S.C. § 794.

This case is

before the court upon motions for summary judgment by defendant
State of Kansas Department of Social and Rehabilitation Services
against the claims of each plaintiff and a motion for partial
summary judgment filed by plaintiff Bruce.
I.

Standards for summary judgment
Summary judgment is proper if the moving party demonstrates

that there is no genuine dispute as to any material fact and

that the moving party is entitled to judgment as a matter of
law.

FED.R.CIV.P. 56(c).

light

most

favorable

to

The court views the evidence in a
the

nonmoving

party.

Spaulding

United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002).

v.

A fact

issue is material if its resolution is essential to the proper
disposition of a claim.

Wright ex rel. Trust Co. of Kan. V.

Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001).

A

factual dispute is “genuine” if “there is sufficient evidence on
each side so that a rational trier of fact could resolve the
issue either way.”

Adler v. Wal-Mart Stores, Inc., 144 F.3d

664, 670 (10th Cir. 1998).

“While we view the record in the

light most favorable to the non-moving party, that party must
still identify sufficient evidence requiring submission to the
jury to survive summary judgment.”
1192, 1197 (10th Cir. 2007).

Piercy v. Maketa, 480 F.3d

In other words, the court may

consider evidence produced by the moving party as well as the
absence of admissible evidence in favor of an essential element
of the non-moving party’s claim.

Adams v. Am. Guar. & Liab.

Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).
II.
The summary judgment motion against plaintiff Bruce shall
be granted in part and denied in part.
A.

Plaintiff Bruce’s claims and factual background

Plaintiff

Bruce

is

blind.

She

was

employed

as

a

Rehabilitation Counselor II by defendant beginning November 18,

2

2001.

Her job title changed to Human Services Counselor in

2003.

She was dismissed from employment effective September 29,

2009 for alleged inefficiency or incompetence.

She appealed

this dismissal to the Kansas Civil Service Board (“KCSB”).

On

December 30, 2010, the KCSB issued a final order which directed
that plaintiff Bruce be reinstated with backpay and benefits as
a Human Services Counselor with SRS and “be provided assistive
technology

that

functioning.”
to

the

is

consistently

available

and

fully

The decision of the KCSB was upheld after appeal

Shawnee

County

District

Court

on

December

5,

2011.

Plaintiff Bruce was reinstated to her position with defendant
effective

January

22,

2012

and

received

her

backpay.

Eventually, plaintiff was also given credit for her accumulated
annual leave and sick leave, although plaintiff alleges that
this did not happen until August 3, 2012 and that the delay
caused her emotional distress.
Plaintiff alleges that she has not been given the duties of
a Human Services Counselor and has been relegated to handling
solely intake duties as opposed to providing services to clients
from the time of their applications through the closure of their
cases, as she did prior to her termination.
alleges

that

technology

as

she

is

she

being
used

forced

before

exception of a PacMate note taker.
3

to
her

use

the

Plaintiff also
same

termination,

outdated
with

the

B.

Defendant is immune from ADA liability.

Plaintiff
discrimination

Bruce
and

has

brought

claims

retaliation.

under

Plaintiff

the

Bruce

ADA

for

added

the

Rehabilitation Act as a basis for discrimination and retaliation
claims

in

the

pretrial

order.

The

State

of

Kansas

enjoys

immunity under the Eleventh Amendment from being sued in federal
court by its own citizens, regardless of whether a plaintiff
seeks

declaratory

or

injunctive

relief,

or

money

damages.

Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252
(10th Cir. 2007).

Defendant is an agency of the State of Kansas

and may allege Eleventh Amendment immunity from liability.

ANR

Pipeline Co. v. Lafaver, 150 F.3d 1178, 1187 (10th Cir. 1998)
cert. denied, 525 U.S. 1122 (1999).
judgment,

defendant

has

In its motion for summary

asserted

this

defense

against

plaintiff’s ADA claims.
There are three exceptions to the general rule of Eleventh
Amendment immunity:
immunity;

2)

1) States may consent to suit, waiving

Congress

may

abrogate

the

States’

Eleventh

Amendment immunity when it both unequivocally intends to do so
and acts pursuant to a valid grant of constitutional authority;
and,

3)

under

Ex

Parte

Young,

prospective

injunctive

relief

against ongoing violations of federal law may be obtained by
bringing suit against state officials in federal court.

4

Chaffin

v.

Kansas

State

Fair

Board,

348

F.3d

850,

(10th

866

Cir.

2003)(internal citations and quotations omitted).
Here,
immunity

plaintiff’s

is

an

argument

amalgam

of

the

against
first

Eleventh

and

second

Amendment
exceptions.

Plaintiff relies upon a statutory provision passed as part of
the Rehabilitation Act Amendments of 1986, four years before the
ADA

was

enacted.

This

statute,

42

U.S.C.

§

2000d-7(a)(1),

states:
A State shall not be immune under the Eleventh
Amendment of the Constitution of the United States
from suit in Federal Court for a violation of section
504 of the Rehabilitation Act, title IX of the
Education Amendments of 1972, the Age Discrimination
Act of 1975, title VI of the Civil Rights Act of 1964,
or the provisions of any other Federal statute
prohibiting discrimination by recipients of Federal
financial assistance.
Plaintiff

contends

that

financial

assistance,

it

because
has

defendant

waived

its

receives
Eleventh

federal
Amendment

immunity against any claim under a statute such as the ADA which
prohibits discrimination.
Plaintiff’s

employment

under Title I of the ADA.

discrimination

claim

is

brought

Many courts have held that the

Eleventh Amendment bars Title I claims against States or state
agencies.

See Okwu v. McKim, 682 F.3d 841, 845 (9th Cir. 2012);

Kirby v. Brown, 2013 WL 324280 *2 (E.D.Cal. 1/28/2013); Rowe v.
New York State Div. of the Budget, 2012 WL 4092856 *3 (N.D.N.Y.
9/17/2012); Davis v. Dept. of Corrections, 868 F.Supp.2d 313,
5

322

(D.Vt.

2012);

Williams

v.

Recovery

School

District,

859

F.Supp.2d 824, 832 (E.D.La. 2012); Goodnow v. Oklahoma Dept. of
Human
Elwell

Services,
v.

2011

Oklahoma,

WL

4830183

2011

WL

*1-2

560455

(N.D.Okla.

*3

10/12/2011);

(W.D.Okla.

2/8/2011);

Scherman v. New York State Banking Dept., 2010 WL 997378 *6
(S.D.N.Y.

3/19/2010)

aff’d,

443

Fed.Appx.

600

(2nd

Cir.

10/20/2011); Tarver v. Oklahoma, 2010 WL 944205 *2 (N.D.Okla.
3/11/2010);

Briggs

v.

New

York

State

Dept.

of

Transp.,

233

F.Supp.2d 367, 372-73 (N.D.N.Y. 2002); Gary v. Georgia Dept. of
Human

Resources,

323

F.Supp.2d

1368,

1372

(M.D.Ga.

2004).

Plaintiff’s retaliation claim is brought under Title V of the
ADA.

The same Eleventh Amendment analysis is often applied to

Title V claims, particularly when the alleged retaliation is
tied to a Title I claim.

See Demshki v. Monteith, 255 F.3d 986,

988-89 (9th Cir. 2001); Rowe, supra; Johnson v. New York State
Dept. of Correctional Services and Community Supervision, 2012
WL 4033485 *3 (W.D.N.Y. 9/12/12); Collazo-Rosado v. University
of Puerto Rico, 775 F.Supp.2d 376, 384-85 (D.P.R. 2011); Davis,
868 F.Supp.2d at 322; Emmons v. City Univ. of New York, 715
F.Supp.2d 394, 408 (E.D.N.Y. 2010); McCollum v. Owensboro Comm.
& Technical College, 2010 WL 5393852 *3 (W.D.Ky. 12/22/2010);
Padilla v. New York State Dept. of Labor, 2010 WL 3835182 *4-5
(S.D.N.Y.

9/13/2010);

Warren

v.

6

Goord,

2006

WL

1582385

*17

(W.D.N.Y. 5/26/2006); Cisneros v. Colorado, 2005 WL 1719755 *6
(D.Colo. 7/22/2005).
Many of the above-cited opinions make reference to Board of
Trustees v. Garrett, 531 U.S. 356 (2001), where the Court held
that

Congress

abrogate

did

Eleventh

not

have

Amendment

the

constitutional

immunity

damages under Title I of the ADA.

from

authority

suits

for

to

money

Most of these cases do not

make reference to the provision cited by plaintiff, § 2000d7(a)(1), which is the source of plaintiff’s waiver argument.
The

Supreme

determining
“stringent

whether
one.”

Court
a

has

remarked

State

Sossamon

has
v.

that

waived

Texas,

the

its

131

test

immunity

S.Ct.

for
is

1651,

a

1658

(2011).

“Waiver may not be implied . . . . [and] will be

strictly

construed,

sovereign.”

in

terms

of

its

scope,

in

Id. (interior quotations omitted).

favor

of

the

Thus, “where a

statute is susceptible of multiple plausible interpretations,
including one preserving immunity, [courts should] not consider
a State to have waived its sovereign immunity.”

Id. at 1659.

Quoting the Supreme Court’s opinion in Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 239-40 (1985), the Tenth Circuit has
observed

that

“[a]

state

may

waive

its

Eleventh

Amendment

immunity ‘only where stated by the most express language or by
such

overwhelming

implication

from

the

text

[of

a

state

statutory or constitutional provision] as [will] leave no room
7

for any other reasonable construction.’”

V-1 Oil Co. v. Utah

State Dept. of Public Safety, 131 F.3d 1415, 1421 (10th Cir.
1997).
The court does not believe that the phrase in § 2000d7(a)(1)

-

-

“any

other

Federal

statute

prohibiting

discrimination by recipients of Federal financial assistance” - unequivocally waives the Eleventh Amendment immunity against
ADA

claims

by

assistance.

state

agencies

who

receive

federal

financial

See Sanders ex rel. Rayl v. Kansas Dept. of SRS,

317 F.Supp.2d 1233, 1242 n.2 (D.Kan. 2004)(§ 2000d-7 does not
apply to ADA claims); Gary, 323 F.Supp.2d at 1373 n.16 (States
do

not

consent

to

suit

on

Title

I

ADA

claims

by

accepting

federal funds); Johnson v. State of Louisiana, 2002 WL 83645 *5
n.

14

(E.D.La.

unambiguously
scope).

1/18/2002)(§

and

2000d-7

unequivocally

does

include

the

not
ADA

clearly,

within

its

The statute does not expressly refer to the ADA.

The

ADA, unlike the statutes specifically listed in § 2000d-7, does
not

explicitly

refer

to

“recipients

of

federal

financial

assistance” or to discrimination by entities “receiving federal
financial assistance.”

Finally, the ADA did not exist when §

2000d-7 was enacted.
Furthermore,
considered

to

Eleventh

apply

to

Amendment

other

statutes

immunity
which

is

still

directly

or

indirectly address discrimination such as 42 U.S.C. §§ 1981 and
8

1983, in spite of the provisions of § 2000d-7.

See Kaimowitz v.

Bd. Of Trustees, 951 F.2d 765, (7th Cir. 1991)(§ 2000d-7 does not
apply

to

§

1983);

Miraki

v.

Chicago

State

University,

259

F.Supp.2d 727, 731 (N.D.Ill. 2003)(§ 1981 does not fall within
catch-all provision of § 2000d-7); McCreery v. North Carolina,
2002 WL 32334399 *1 (E.D.N.C. 5/4/2002) aff’d, 48 Fed.Appx. 76
(4th Cir. 10/16/2002)(§ 2000d-7 does not apply to § 1983 or §
1985); Clemes v. Del Norte County Unified School Dist., 843
F.Supp. 583, 594 (N.D.Cal. 1994)(§ 2000d-7 does not apply to §
1983).
For

the

above-stated

reasons,

the

court

finds

that

plaintiff Bruce’s ADA claims are barred by Eleventh Amendment
immunity.
C. The court shall deny summary judgment against plaintiff
Bruce’s Rehabilitation Act claims.
1.
The
court
had
jurisdiction
to
add
the
Rehabilitation Act claims to this case and the claims relate
back to April 6, 2011, the date of the amended complaint where
plaintiff Bruce was added as a party.
Plaintiff Bruce was added as a party in this case on April
6,

2011

when

discrimination
behalf.

an
and

amended

complaint

retaliation

Plaintiff

Bruce

claims

did

not

was
under

allege

filed
the

asserting

ADA

claims

on

her

under

the

Rehabilitation Act until the pretrial conference conducted on
February 8, 2012.

A pretrial order reflecting the events of the

pretrial conference was filed on February 21, 2012.
9

According

to

the

pretrial

order,

defendant

agreed

not

to

oppose

the

requested amendment to add the claims under the Rehabilitation
Act and, in exchange, plaintiffs agreed that defendant had not
waived the defense of sovereign immunity.

The pretrial order

noted that it was “the court’s understanding that defendant may
raise the defense of sovereign immunity as to the ADA claims and
statute of limitations as to the Rehabilitation Act claims.”
Doc. No. 28 at p. 2 n.1 (emphasis supplied).
Defendant argues that plaintiff’s Rehabilitation Act claims
must be dismissed because the court did not have subject matter
jurisdiction over any claims raised by plaintiff Bruce at the
time of the pretrial conference (because of defendant’s Eleventh
Amendment immunity against the ADA claims) and therefore the
court

lacked

the

power

Rehabilitation Act claims.

to

permit

plaintiff

to

add

the

We reject this argument.

Although there are many, many cases which seem to equate an
Eleventh Amendment immunity defense with the lack of subject
matter jurisdiction, the equation is more of an approximation.
See Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998)(recognizing
that Eleventh Amendment “is not coextensive with the limitations
on judicial power in Article III”).

Unlike the defense of lack

of subject matter jurisdiction, Eleventh Amendment immunity may
be waived (as discussed above) and courts may choose not to
raise it sua sponte.

Wisconsin Dept. of Corrections v. Schacht,
10

524 U.S. 381, 389 (1998); see also, Steadfast Ins. Co., 507 F.3d
at 1252 (the Eleventh Amendment does not automatically destroy a
federal court’s jurisdiction to decide lawsuits brought against
a

state).

The

Tenth

Circuit

has

stated

that:

“[o]nce

effectively raised, the Eleventh Amendment becomes a limitation
on our subject-matter jurisdiction.”

Harris v. Owens, 264 F.3d

1282, 1288 (10th Cir. 2001)(emphasis supplied).
Here,

defendant

did

not

“effectively

raise”

Eleventh

Amendment immunity as a defense until it filed its motion for
summary judgment, which was sometime after the court conducted
the

pretrial

conference

and

permitted

claims under the Rehabilitation Act.

plaintiff

to

add

the

We find that the court had

the authority to add those claims because the Eleventh Amendment
had not been effectively raised as a defense at that time.

The

Rehabilitation Act claims related back to the second amended
complaint pursuant to FED.R.CIV.P. 15(c)(1)(B).

Accordingly,

the statute of limitations issues raised by defendant are not a
complete defense warranting summary judgment.
2.

Plaintiff Bruce’s Rehabilitation Act claims are not

moot.
Defendant contends that plaintiff Bruce’s claims should be
considered moot because she has already received full relief by
virtue of the KCSB order.

According to the pretrial order,

plaintiff Bruce is requesting, among other relief, damages for

11

non-economic loss in the amount of $300,000.00.

Defendant’s

argument regarding its compliance with the KCSB order does not
address this part of plaintiff Bruce’s damages claim.

Moreover,

plaintiff Bruce contends that defendant has not fully complied
with the KCSB order.
fact

as

to

this

point

There appears to be a genuine issue of
as

plaintiff

has

filed

a

declaration

stating that that she has not been reinstated to the full duties
of a Human Resources Counselor and that she has not been given
assistive technology that is consistently available and fully
functioning.
judgment

Therefore,

against

the

plaintiff

court

Bruce’s

shall

not

claims

on

grant
the

summary

basis

of

defendant’s mootness argument.1
3.
Summary judgment shall be granted against
plaintiff Bruce’s claims for compensatory damages as part of her
retaliation claim under the Rehabilitation Act.
Defendant’s

final

argument

for

summary

judgment

against

plaintiff Bruce’s claims is that compensatory damages are not
recoverable for a claim of retaliation under the Rehabilitation
1

The court is not purporting to find that the relief ordered
by the KCSB is congruent with the relief to which plaintiff may
be entitled under the Rehabilitation Act. The order of the KCSB
does not indicate that it is adjudicating a Rehabilitation Act
claim.
Therefore, although the pretrial order states that
plaintiff is seeking (as “non-monetary relief”) an order
enjoining defendant to comply with the KCSB order, such relief
is not necessarily what is authorized by the Rehabilitation Act.
Plaintiff
is
entitled
to
bring
an
action
under
the
Rehabilitation Act and to obtain the relief to which she is
entitled under the Act. But, the enforcement of KSCB orders is
a matter for state agencies and courts – not federal court.
12

Act.

The Rehabilitation Act, 29 U.S.C. § 794(a), prohibits

discrimination
assistance.

in

programs

receiving

Federal

financial

The standards used to determine what constitutes

discrimination

are

set

forth

in

§

794(d)

and

reference

the

provisions of the ADA which prohibit retaliation against persons
who have opposed any act or practice made unlawful by [the ADA]
“or because such individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding,
or hearing under [the ADA].”

42 U.S.C. § 12203(a).

There are two published circuit court cases holding that
there is no right to compensatory damages for retaliation claims
brought pursuant to the ADA.

Alvarado v. Cajun Operating Co.,

588 F.3d 1261, 1264-70 (9th Cir. 2009); Kramer v. Banc of America
Securities, LLC, 355 F.3d 961, 964-66 (3rd Cir.) cert. denied,
542 U.S. 932 (2004).2

These cases have ruled that relief under

the ADA originally did not provide for compensatory or punitive
damages.

With the passage of the 1991 Civil Rights Act, 42

U.S.C. § 1981a, the possible remedies for some ADA violations
were expanded to include compensatory and punitive damages but
actions for retaliation under § 12203(a) were not mentioned.
Since

retaliation

claims

were

not

listed

by

Congress

for

expanded relief under § 1981a, the courts in Kramer and Alvarado
held

that

compensatory

and

punitive

2

damages

could

not

The Fourth Circuit followed the holding in Kramer in Rhoads v. FDIC, 94
Fed.Appx. 187, 188 (4th Cir.) cert. denied, 543 U.S. 927 (2004).

13

be

recovered for such actions.

Two cases from the District of

Kansas, which predate Kramer and Alvarado, have applied similar
reasoning.

Sink v. Wal-Mart Stores, Inc., 147 F.Supp.2d 1085,

1100-01 (D.Kan. 2001); Boe v. Allied Signal, Inc., 131 F.Supp.2d
1197, 1202-03 (D.Kan. 2001); see also Brown v. U.S.D. No. 500,
338 F.Supp.2d 1229, 1232 (D.Kan. 2004)(following Boe).

This has

been characterized as the majority rule, at least among district
courts.

Arredondo

v.

S2

Yachts,

496

F.Supp.2d

831,

836

(W.D.Mich. 2007); see also, Kozempel v. Grand View Hosp., 2011
WL 1196851 *3 n.3 (E.D.Pa. 3/30/2011)(listing numerous cases);
N.T.

ex

rel.

Trujillo

v.

Espanola

Public

Schools,

2005

WL

6168483 *13 (D.N.M. 6/21/2005)(applying analysis to retaliation
claims under Rehabilitation Act).
the

Tenth

Circuit

(as

well

as

The court acknowledges that
other

circuit

courts)

have

affirmed jury verdicts where punitive damages were awarded in
ADA retaliation claims, but the Tenth Circuit did not address
the threshold question of whether the law permitted a plaintiff
to recover such damages, only whether the evidence supported
such an award.
1246

(10th

Cir.

EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241,
1999).

The

court

also

acknowledges

commentary which is critical of the Kramer holding.

legal

Katie M.

Mueting, Note, A Case for Allowing Victims of ADA Retaliation
and Coercion in Employment to Recover Legal Damages, 92 IOWA L.
REV.

1493

(May

2007);

Brian

M.
14

Saxe,

Comment,

When

a

Rigid

Textualism Fails:

Damages for ADA Employment Retaliation, 2006

MICH. ST. LAW REV. 555 (Summer 2006).
Given the circuit court authority and the cases from the
District of Kansas and other courts which side with defendant,
and the absence of contrary holdings directly addressing the
question from the Tenth Circuit or other circuits, the court
shall find that the plaintiff Bruce may not recover compensatory
or

punitive

damages

upon

her

retaliation

claim

under

for

summary

the

Rehabilitation Act.
III.
Plaintiff
shall be denied.

Bruce’s

motion

partial

judgment

Plaintiff Tina Bruce has filed a motion for partial summary
judgment which contends that, under the doctrine of collateral
estoppel, she is entitled to summary judgment upon her claim of
discrimination and failure to accommodate in violation of the
Rehabilitation Act since she prevailed before the KCSB and its
decision was affirmed by the Kansas District Court for Shawnee
County, Kansas.
In

its

order

the

Kansas

Civil

Service

Board

made

the

following conclusions:
After considering all of the evidence, The Board finds that
the decision of Mr. Donnelly to dismiss Ms. Bruce was
unreasonable.
[F]or the most part, the assistive technology given to Ms.
Bruce was inadequate, outdated and/or unreliable.
While Ms.
Bruce made very specific requests for adequate assistive
technology, SRS never acted on her requests.
15

SRS never requested a technology assessment of Ms. Bruce
prior to her dismissal to determine if the technology she was
using was adequate for her to perform her job or if additional
technology could be provided to assist her.
The assessment
ordered by the Board detailed several issues with regard to the
adequacy of the technology provided to Ms. Bruce.
The Board finds that it is highly likely that Ms. Bruce’s
ability to perform her duties was hindered by the lack of
adequate assistive technology; to what extent, however, is
unclear.
In any event, the Board finds that Ms. Bruce has
established that the decision of Mr. Donnelly to dismiss her was
unreasonable.
“Federal courts give state agency determinations the same
preclusive effect that the forum state’s courts would afford
them.”
Issue

Guttman v. Khalsa, 669 F.3d 1101, 1109 (10th Cir. 2012).
preclusion

may

following is shown:

be

invoked

in

Kansas

courts

when

the

1) a prior judgment on the merits which

determined the rights and liabilities of the parties on the
issue based upon ultimate facts as disclosed by the pleadings
and judgment; 2) the parties are the same or in privity, and 3)
the issue litigated must have been determined and necessary to
support the judgment.

Jackson Trak Group Inc. v. Mid States

Port Authority, 751 P.2d 122, 128 (Kan. 1988).
Kansas

applies

the

doctrine

of

collateral

estoppel

to

unreviewed decisions of administrative agencies and political
subdivisions of the State acting in a judicial or quasi-judicial
capacity.

See Zimmerman v. Sloss Equip., Inc., 72 F.3d 822, 826

(10th Cir. 1995).

“The party asserting collateral estoppel must
16

establish that ‘the requirements of the doctrine [were] met and
the

proceeding

[in

front

of

the

administrative

agency

was]

judicial in nature,’ which in turn depends on whether there were
‘sufficient due process protections.’”

Id. (quoting, Murphy v.

Silver Creek Oil & Gas, Inc., 837 P.2d 1319, 1321 (Kan.App.
1992)).
by

the

These elements are consistent with concerns expressed
United

States

Supreme

Court

that

“an

administrative

decision . . . satisfy three fairness requirements:

1) the

agency must have been acting in a judicial capacity; 2) it must
be resolving issues that are properly before it; and 3) the
parties

must

have

an

adequate

issues before the agency.”
Services,

342

F.3d

1159,

opportunity

to

litigate

those

Brockman v. Wyoming Dept. of Family
1166

(10th

Cir.

2003)(citing

United

States v. Utah Const. & Mining Co., 384 U.S. 394, 422 (1966)).
There appears to be no dispute here that in considering the
appeal of plaintiff Bruce, the KCSB acted in a quasi-judicial
capacity, resolved issues properly before it, and provided the
fundamental elements of due process through its procedures.
Plaintiff Bruce argues that the KCSB made a finding as to
discrimination which should be given issue preclusion effect for
the purposes of plaintiff Bruce’s Rehabilitation Act claim.

The

KCSB, however, did not explicitly discuss or make findings as to
a claim under the Rehabilitation Act or the ADA; nor did it make
of finding of discrimination, intentional or otherwise.
17

Its

task was to determine whether plaintiff Bruce’s discharge was
reasonable.

See

K.S.A.

75-2949(f)(“Any

permanent

employee

finally dismissed . . . may request a hearing from the [KCSB] to
determine the reasonableness of such action.”)

A finding of

intentional discrimination is necessary to plaintiff’s claim for
compensatory damages under the Rehabilitation Act.

Powers v.

MJB Acquisition Corp., 184 F.3d 1147, 1152-53 (10th Cir. 1999).
While there might be an issue as to liability for nonintentional

discrimination

which

is

tied

up

with

whether

defendant has complied with the KCSB’s order of non-compensatory
relief, this issue is also linked with the mootness question.
Consequently,

it

does

not

appear

necessary

or

particularly

efficient to determine at this point whether the KCSB’s order
decided in effect that defendant discriminated against plaintiff
Bruce in violation of the Rehabilitation Act so as to warrant
non-compensatory relief, when it is possible that such relief
has already been supplied.

If defendant has not complied with

the KCSB’s order and its non-compliance is a violation of the
Rehabilitation Act, then the court will order appropriate noncompensatory relief.
Plaintiff Bruce also argues that the KCSB made a finding
that defendant failed to properly accommodate plaintiff Bruce
and that this finding should be given issue preclusion effect
for

the

purposes

of

plaintiff
18

Bruce’s

claims

under

the

Rehabilitation

Act.

“To

prevail

on

a

claim a plaintiff must demonstrate that:

failure-to-accommodate
1) she is disabled; 2)

she is ‘otherwise qualified’; and 3) she requested a plausibly
reasonable accommodation.”
1177 (10th Cir. 2012).

Sanchez v. Vilsack, 695 F.3d 1174,

A “reasonable accommodation” is defined

in federal regulations as:
(i) Modifications or adjustments to a job application
process that enable a qualified applicant with a
disability to be considered for the position such
qualified applicant desires; or
(ii)
Modifications
or
adjustments
to
the
work
environment, or to the manner or circumstances under
which the position held or desired is customarily
performed, that enable an individual with a disability
who is qualified to perform the essential functions of
that position; or
(iii) Modifications or adjustments that enable a
covered entity's employee with a disability to enjoy
equal benefits and privileges of employment as are
enjoyed by its other similarly situated employees
without disabilities.
29

C.F.R.

§

1630.2(o).

The

regulations

do

not

mandate

a

reasonable accommodation which requires “undue hardship” after a
consideration of cost, financial resources, and the operation of
the entity.

29 C.F.R. § 1630.2(p).

These regulations apply to

the ADA, but ADA standards are applied to Rehabilitation Act
claims. Wilkerson v. Shinseki, 606 F.3d 1256, 1262 (10th Cir.
2010).
To be “qualified,” a person must be able to perform the
“essential

functions”

accommodation.

of

the

job

with

or

without

See Brockman, 342 F.3d at 1168.
19

reasonable

The KCSB order

found that there were several issues with regard to the adequacy
of the technology provided to plaintiff Bruce; that for the most
part the technology given to Ms. Bruce was inadequate, outdated
and/or

unreliable;

requests
highly

for

adequate

likely

duties

that

was

that

plaintiff

assistive

plaintiff

“hindered

by

Bruce

made

technology;

Bruce’s

the

lack

and

ability
of

very

specific

that

to

it

was

perform

her

adequate

assistive

technology [ - - ] to what extent however, is unclear.”

The

KCSB also ordered a technology assessment which suggested steps
which

“may

effectively

have
in

her

helped

[plaintiff

position,”

but

Bruce]

which

function

also

observed

more
that

plaintiff Bruce “was able to carry out the tasks required [in
her job] using a combination of the assistive technology and
assistance” which defendant had provided.
5.

Doc. No. 46, Exhibit

Given the KCSB’s statement that the extent of hindrance was

“unclear,” the ambiguity in the technology evaluation, as well
as the KCSB’s statement upon reconsideration that it would have
reached the same decision without the technology evaluation, the
court concludes that plaintiff Bruce has not demonstrated that
the KCSB’s order decided the issue of whether defendant failed
to

accommodate

as

required

to

permit

her

to

perform

the

shall

deny

essential tasks of her job.
For

the

above-stated

reasons,

the

court

plaintiff Bruce’s motion for partial summary judgment.
20

IV.
The summary judgment motion against plaintiff Umholtz’s
claims shall be granted in part and denied in part.
Plaintiff Brenda Umholtz claims that defendant violated the
Rehabilitation Act by cancelling a contract plaintiff Umholtz
had with the Wichita Area Office of defendant in retaliation for
her

remarks

in

a

vocational

plaintiff Tina Bruce.

assessment

she

performed

for

Defendant has asked for summary judgment

against all or part of this action.
A.

Uncontroverted facts

The
December

following
2008,

facts

plaintiff

rehabilitation

counselor

defendant.

About

rehabilitation

appear

counselor

be

Umholtz

who

that

to

had

a

time,
for

uncontroverted.
was

a

provider

defendant,

professional
agreement

plaintiff

In

Paul

selected

with

Levy,

a

plaintiff

Umholtz to do a vocational assessment of plaintiff Bruce, who,
of course, was also an employee of defendant.
2009,

plaintiff

Rehabilitation

Levy

wrote

Service

an

Program

email

to

Administrator

In early January
Paul
for

Meals,
the

the

Wichita

Regional Office of defendant, informing him that plaintiff Bruce
had applied to Levy for vocational rehabilitation services to
look

into

retain

workplace

employment.

accommodations
He

further

that

told

might

Meals

plaintiff Umholtz to conduct the evaluation.
copy

of

the

email

to

Mr.

Michael

21

assist

that

Levy

her

to

wanted

Meals forwarded a

Donnelly,

Director

of

Rehabilitation
supervisor

who

Services

for

ultimately

defendant.
made

the

Donnelly

decision

was

to

the

terminate

plaintiff Umholtz’s provider agreement.

Meals and Donnelly did

not

Levy

immediately

voice

an

objection

to

asking

plaintiff

Umholtz to do the vocational evaluation of Bruce.

Plaintiff

Umholtz met with Meals on January 21, 2009 and discussed what
she needed to complete the assessment.
an

email

to

Donnelly

informing

The next day, Meals sent

him

that

the

vocational

assessment was being done by plaintiff Umholtz and that it would
be a possible source of information and professional guidance
related to accommodation needs.
Plaintiff Umholtz completed the vocational assessment on
January 22, 2009, the day after she talked to Meals.

In the

assessment, plaintiff Umholtz wrote:
[I]t is my professional assessment and opinion that
Ms. Bruce is not being fairly represented according to
her own peers nationally.
It is difficult to fully
assess Mrs. Bruce’s performance if her caseload is
significantly greater, almost three times greater for
those handling specialized caseloads, than her peers
on a national scale.
It is my professional opinion
that she cannot be fairly evaluated at this time by
this vocational consultant. It is also my opinion that
Mrs. Bruce would have difficulty meeting Federal
expectations if her peers are handling a caseload of
an average (some higher and some lower), of 50 persons
with visual impairments [when Ms. Bruce has a much
larger caseload].
She also wrote:
Additionally, it does not appear, in my professional
opinion that her accommodations, as required by law,
22

are enabling her to be on an “equal-playing field” as
her V.R. Counselor counterparts even within her office
. . . . Until she has full accommodations in every
area, any evaluation regarding performance cannot be
adequately conducted.
Mrs. Bruce is protected by
A.D.A. laws regarding accommodations that dictate that
she
cannot
be
fairly
evaluated
until
such
accommodations are consistently available, in working
order during her entire work hours, and are current
and fully-functioning.
Plaintiff

Umholtz

delivered

her

assessment

to

Meals

on

January 26, 2009, and Meals sent the assessment to Donnelly on
January 29, 2009.

Donnelly reacted that he was “pretty livid”

after reading it.

On February 12, 2009, Donnelly sent a letter

to

plaintiff

Donnelly

terminating

her

In

defendant.

Umholtz

deposition

taken

his

commented

that

plaintiff

provider
for

Umholtz

agreement

this
had

with

litigation,
taken

legal

positions or advocacy positions that were inappropriate for a
vocational assessment and that there was a conflict of interest
because Bruce and Levy were responsible for referring vocational
assessment business to plaintiff Umholtz.

However, the letter

terminating the provider agreement did not elaborate upon any
reason

for

the

action.

It

simply

terminated

the

agreement

without explanation.
B.
The court shall grant defendant summary judgment
against plaintiff Umholtz’s ADA claims on the basis of Eleventh
Amendment immunity.
To

the

extent

that

plaintiff

is

bringing

a

retaliation

claim under the ADA (as mentioned in the pretrial order, Doc.

23

No. 28, p. 13) the court shall grant summary judgment against
this claim on the basis of Eleventh Amendment immunity.

U.S. ex

rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008)(a
court may raise, but is not obliged to raise, Eleventh Amendment
immunity

sua

sponte).

The

court

shall

proceed

to

consider

plaintiff Umholtz’s retaliation claim under the Rehabilitation
Act.
C.
The court finds there is a genuine issue of material
fact as to whether plaintiff Umholtz engaged in “protected
activity” for the purposes of a retaliation claim.
Defendant’s

first

argument

for

summary

judgment

is

that

plaintiff cannot show that she participated in some protected
activity opposing an unlawful employment practice.

As mentioned

earlier in this order, the Rehabilitation Act incorporates the
ADA provisions against retaliation in the “standards used in
determining [a] violation” of the Act.

29 U.S.C. § 794(d).

The

anti-retaliation provisions of the ADA, 42 U.S.C. § 12203(a),
state

that:

individual
practice

“No

because
made

person
such

unlawful

shall

individual
by

this

discriminate
has

opposed

chapter

or

against
any

act

because

any
or
such

individual made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing under
this chapter.”
a

plaintiff

activity;

2)

To sustain a retaliation claim under § 12203(a),

must
she

show
was

that:

1)

subjected
24

she
to

engaged
a

in

materially

protected
adverse

employment action after the protected activity; and 3) a causal
connection

existed

adverse action.

between

the

protected

activity

and

the

See Haynes v. Level 3 Communications, 456 F.3d

1215, 1228 (10th Cir. 2006) cert. denied, 549 U.S. 1252 (2007).
Here, it appears to the court that there is a material
issue

of

protected

fact

as

to

activity.

whether
It

is

plaintiff

well-accepted

accommodation is protected activity.
F.3d 1176, 1194 (10th Cir. 2007).
vocational

assessment

in

which

Umholtz
that

engaged

in

requesting

an

Jones v. U.P.S., Inc., 502

Plaintiff Umholtz completed a
she

made

statements

which

a

reasonable jury could construe as supporting an accommodation
for Tina Bruce and opposing the failure to make accommodations
to which Tina Bruce was entitled under the Rehabilitation Act.
Thus, plaintiff Umholtz has made a viable claim of protected
activity.

Defendant argues that plaintiff Bruce did not sign a

release so that her employer would see the evaluation.3

This

does not appear to matter as long as a causal connection can be
established
action.

between

the

protected

activity

and

the

adverse

Defendant also broadly claims that plaintiff Umholtz

did not have an objective good faith belief that some practice
of defendant violated the law.

Defendant, however, fails to

adequately support this claim with evidence and argument in the
summary judgment record before the court.
3

Nevertheless, persons responsible for the adverse actions allegedly taken
against the plaintiffs in this case did see the evaluation.

25

D.
A genuine issue of material fact exists as to whether
there is a causal connection between plaintiff Umholtz’s alleged
protected activity and the alleged retaliatory action.
Defendant’s second argument for summary judgment is that
plaintiff

cannot

show

a

causal

connection

between

plaintiff

Umholtz’s alleged protected activity and the retaliatory action.
The court has reviewed the materials placed in the record and
concludes that a reasonable jury could find from the course of
the events that there was a causal connection in this matter.
It appears that Mr. Donnelly was aware of the circumstances of
the vocational assessment but did not object until he examined
its

contents.

point,

his

objection to the substance of the assessment was strong.

In

approximately

There

two

is

evidence

weeks,

agreement occurred.

the

that,

at

termination

that

of

the

provider

This temporal proximity is further grounds

to find a causal connection.

See Barlow v. C.R. England, Inc.,

703 F.3d 497, 509 (10th Cir. 2012); Meiners v. Univ. of Kansas,
359 F.3d 1222, 1231 (10th

Cir. 2004).

Therefore, the court

rejects defendant’s second argument for summary judgment.
E.
Plaintiff Umholtz is not entitled to compensatory
damages upon her Rehabilitation Act retaliation claim.
For the reasons explained above in relation to plaintiff
Bruce’s Rehabilitation Act retaliation claim, the court shall
grant

summary

judgment

against

compensatory damages.

26

plaintiff

Umholtz’s

claim

for

V.
Summary judgment shall be granted against plaintiff Levy’s
claims because they are either barred by the Eleventh Amendment
or untimely filed.
A. Plaintiff Levy’s claims under the ADA are barred by the
Eleventh Amendment.
Defendant

makes

the

same

Eleventh

Amendment

immunity

argument against plaintiff Levy’s ADA claims as defendant made
against plaintiff Bruce’s claims.

We adopt the same analysis

and hold that defendant has not waived its sovereign immunity.
So, plaintiff Levy’s ADA claims must be dismissed.
B.
Plaintiff Levy’s claims under the Rehabilitation Act
are untimely.
Plaintiff Levy claims that he was constructively discharged
on February 25, 2009 in retaliation for activity protected under
the

Rehabilitation

Levy’s

Act.

Rehabilitation

Act

Defendant
claims

contends

are

barred

that
by

statute of limitations borrowed from K.S.A. 60-513.

plaintiff
a

two-year
Plaintiff

responds that a three-year limitations period borrowed from 60512(2) should be applied.

The Tenth Circuit has held that the

statute

period

of

limitations

for

a

claim

under

the

Rehabilitation Act is the two-year period borrowed from K.S.A.
60-513.

Baker v. Board of Regents, 991 F.2d 628, 631-32 (10th

Cir. 1993); see also, EEOC v. W.H. Braum, Inc., 347 F.3d 1192,
(10th Cir. 2003)(citing Baker); Peoples v. Finney County Board of
Commissioners, 1995 WL 326131 (10th Cir. 6/1/1995)(refusing to
reconsider holding in Baker as to the limitations period for §
27

1983 actions despite Kansas Supreme Court’s holding in Wagher v.
Guy’s

Foods,

three-year

Inc.,

885

P.2d

limitations

discrimination

period

claims

Discrimination).

1197

(Kan.

1994)

K.S.A.

the

under

in

which

Kansas

applied

60-512(2)
Act

to

Against

The court believes we are bound to follow the

Baker decision.
Contrary to the situation with plaintiff Bruce’s claims,
plaintiff Levy’s claims are barred by the two-year statute of
limitations even if his Rehabilitation Act claims relate back to
the

date

when

plaintiff

Levy

first

filed

his

ADA

claims.

Plaintiff Levy first entered this case when a first amended
complaint was filed on March 2, 2011.

Doc. No. 3.

This was

more than two years after plaintiff was allegedly constructively
discharged by defendant.
This

holding

makes

it

unnecessary

to

decide

the

other

arguments raised in defendant’s summary judgment motion.
VI.

Conclusion
To sum up, summary judgment is granted against plaintiffs’

ADA claims and plaintiffs’ claims for compensatory or punitive
damages stemming from a retaliation action and all claims raised
by

plaintiff

Rehabilitation

Levy
Act

(because
claims

they

of

are

plaintiff

untimely).
Bruce

and

Umholtz may continue consistent with this order.
motions

for

summary

judgment
28

against

plaintiff

The

plaintiff
Thus, the
Bruce

and

plaintiff Umholtz (Doc. Nos. 38 and 34) are granted in part and
denied

in

part

and

the

motion

for

summary

judgment

plaintiff Levy (Doc. No. 36) is granted in full.

against

The motion for

partial summary judgment filed by plaintiff Bruce (Doc. No. 31)
is denied.
IT IS SO ORDERED.
Dated this 20th day of February, 2013 at Topeka, Kansas.

s/Richard D. Rogers
United States District Judge

29