Roe v. Cheyenne Mountain Conference Resort, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit

SEP 2 1997
PUBLISH
PATRICK FISHER
Clerk
IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JANE ROE, )
)
Plaintiff-Appellant, )
)
v. ) No. 96-1086
)
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. )

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 95-WY-2152-CB)

Craig M. Cornish (Melissa L. Phillips with him on the briefs), of Cornish & Dell'Olio,
Colorado Springs, Colorado, for Plaintiff-Appellant.
Glenn H. Schlabs (Raymond M. Deeny and Martha E. Cox with him on the brief), of
Sherman & Howard, Colorado Springs, Colorado, 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, D.C., for Amicus Equal Employment Opportunity Commission.

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

Brad Seligman and Mari Mayeda, Albany, California, and Arlene Mayerson and Linda D.
Kilb, Berkeley, California, 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.

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

*
Honorable Joseph F. Weis, Jr., United States Senior Circuit Judge for the Third
Circuit, sitting by designation.

2
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

3
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

1
The applicable provision states:

A covered entity shall not require a medical examination and shall not
make inquiries of an employee as to whether such employee is an individual
with a disability or as to the nature or severity of the disability, unless such
examination or inquiry is shown to be job-related and consistent with business
necessity.

4
that the prescription drug disclosure 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

42 U.S.C. § 12112(d)(4)(A).

5
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

6
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 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 that the EEOC shall issue a

right to sue letter if within 180 days from the filing of the charge the EEOC has not either

7
dismissed the charge, entered into a conciliation agreement, or filed a civil action itself. 42

U.S.C. § 2000e-5(f)(1).2 As we have recited above, here the plaintiff did not file a charge

with the EEOC until after having filed suit. When she did file her EEOC charge she also

requested issuance of a right to sue letter immediately, a request which the agency promptly

granted.3 By regulation, the Commission has provided that a district director may issue a

right to sue letter before 180 days have elapsed upon a determination that it is probable that

the agency will be unable to complete its administrative processing of the charge within the

180 day period. 29 C.F.R. § 1601.28(a)(2) (1996).

Defendant argues that this regulation is invalid, being inimical to the intent of

Congress, which defendant asserts was to foster conciliation by establishing an absolute bar

to suit within 180 days after filing the EEOC charge. The authorities are not in accord on the

validity of the regulation. Two circuits have upheld the regulation. Sims v. Trus Joist

MacMillan, 22 F.3d 1059 (11th Cir. 1994); Bryant v. California Brewers Ass’n, 585 F.2d

421, 424 (9th Cir. 1978), vacated on other grounds, 444 U.S. 598 (1980).4 A few district

2
The procedures of Title VII apply under the ADA. 42 U.S.C. § 12117(a).

Defendant raises no issue regarding the fact that plaintiff filed her suit before filing
3

her EEOC charge. In analogous circumstances other courts have held that jurisdictional
prerequisites may be satisfied after commencement of the action. See, e.g., Matthews v.
Diaz, 426 U.S. 67, 75 (1976). Therefore, we believe that the filing of this action before
having filed with the EEOC no longer presents a jurisdictional problem.

The Ninth Circuit adhered to its holding in Bryant in two later cases, Brown v. Puget
4

Sound Elec., 732 F.2d 726, 729 (9th Cir. 1984), and Saulsbury v. Wismer and Becker, Inc.,
644 F.2d 1251, 1257 (9th Cir. 1980).

8
courts have held the regulation invalid. See Pearce v. Barry Sable Diamonds, 912 F. Supp.

149 (E.D. Pa. 1996) (questioning validity of the regulation and collecting cases).

Because the EEOC did issue a right to sue letter, we conclude that defendant’s

challenge does not go to the jurisdiction of the district court. We have previously referred

to the requirement of exhaustion of EEOC procedures in private employment cases as

jurisdictional. Jones v. Runyon, 91 F.3d 1398, 1399-1400 & n.1 (10th Cir. 1996),

cert. denied, 117 S. Ct. 1243 (1997). Following the holding of the Supreme Court in Zipes

v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982), however, we have regarded

Title VII’s timeliness requirements as being in the nature of statutes of limitations and thus

subject to waiver or forfeiture, rather than being jurisdictional. Biester v. Midwest Health

Services, Inc., 77 F.3d 1264, 1267 (10th Cir. 1996).

In accord with that view, we believe that the allegedly premature issuance of the right

to sue letter in this case is, at most, an affirmative defense which the defendant has waived

by failing to take a cross-appeal. Accordingly, we do not reach the issue of the validity of

the regulation under which the agency issued the right to sue letter before the expiration of

180 days.

B

Defendant also contends that federal jurisdiction is lacking because Roe has no

standing to pursue an ADA claim. This is so, defendant argues, because Roe has not shown

that she is a person with a “disability” as that term is defined in the Act. This argument has

9
no merit. The argument is miscast because it actually does not go to plaintiff’s standing, and

the particular challenge plaintiff has brought does not require her to meet the statutory

definition of a person with a disability.

First, whether a plaintiff suing under the ADA comes within the definition of a person

with a disability is simply not a question of standing but of whether an essential element of

the claim can be established. Standing concerns whether the plaintiff “is entitled to have the

court decide the merits of the dispute or of particular issues.” United States v. Colorado

Supreme Court, 87 F.3d 1161, 1164 (10th Cir. 1996) (quoting Warth v. Seldin, 422 U.S. 490,

498 (1975)). In other words, “[t]he standing inquiry focuses on whether the plaintiff is the

proper party to bring this suit,” which requires that the plaintiff show that she has a personal

stake in the litigation. Raines v. Byrd, 117 S.Ct. 2312, 2317 (1997). Thus,

[a] plaintiff has standing when (1) she has suffered an injury in fact, (2) there
is a causal connection between the injury and the conduct complained of, and
(3) it is likely that the injury will be redressed by a favorable decision.”

Colorado Supreme Court, 87 F.3d at 1164. Plaintiff has sufficiently alleged each of these

elements.

Second, plaintiff’s ability to maintain the particular ADA claim she has alleged does

not require her to prove that she is an individual with a disability. As the district judge aptly

observed, adopting defendant’s position would defeat the very purpose of prohibiting

disability related inquiries: “It makes little sense to require an employee to demonstrate that

he has a disability to prevent his employer from inquiring as to whether or not he has a

10
disability.” Aplt. App. at 205. We also agree with the district court’s reasoning that this

common sense rejection of defendant’s argument is consistent with the statutory language:

The ADA explicitly prohibits employers from making disability-related
inquiries of employees, unless the inquiry is job-related or consistent with
business necessity. 42 U.S.C. § 12112(d)(4)(A). This provision applies to all
employees. Unlike suits based on a failure to provide a reasonable
accommodation, this provision is not limited to qualified individuals with
disabilities. Cf. 42 U.S.C. § 12112(b)(5)(A).

Id.5

Defendant further argues that plaintiff lacks standing because she faced no real or

immediate threat of injury due to the fact that defendant suspended enforcement of the policy

pending the district court’s determination of the controversy. This argument does indeed

address one of the elements of standing, but we believe that plaintiff has at all times been

threatened with injury in fact. We note that this argument is essentially the same as

defendant’s third purportedly jurisdictional argument, which is that jurisdiction is lacking

because the controversy is moot. We reject both of these arguments. It is well settled that

voluntary cessation of illegal conduct by itself does not make the case moot. United States

v. W.T. Grant Co., 345 U.S. 629, 632 (1953). As will be made clear in discussing the issues

raised by the plaintiff-appellant in this appeal, we believe that under the particular

5
We need not and do not decide whether the ADA provides a cause of action to an
unsuccessful job applicant who has been subjected to a prohibited inquiry. See Griffin v.
Steeltek, Inc., 964 F. Supp. 317 (N.D. Okla. 1997) (holding that the ADA does not provide
a right of action for an unsuccessful job applicant subjected to a prohibited inquiry). We hold
only that a present employee may sue for injunctive relief from such a prohibited inquiry, as
is the case here.

11
circumstances presented here, the controversy was not mooted. Defendant’s voluntary

suspension of its unlawful policy did not completely remove the threat of injury;

consequently plaintiff’s standing is unaffected by defendant’s suspension of the Policy.

In sum, the arguments made by defendant do not show a lack of jurisdiction in the

district court.

IV

Plaintiff contends that the district court abused its discretion in denying her request

for injunctive relief. In granting summary judgment for plaintiff and holding that the

prescription drug disclosure requirements of defendant's Policy violated the ADA (to which

no challenge was made by a cross-appeal), the district court made no reference to plaintiff’s

prayer for an injunction. On plaintiff’s motion to amend the judgment, the district judge

responded to the injunction request but declined to enjoin the defendant, remarking that he

was “confident” that the defendant would amend the Policy to conform to his ruling that it

violated the ADA.

The power to use injunctive relief to enforce the provisions of the ADA is granted by

section 107 of the Act, 42 U.S.C. § 12117(a), which provides that the “powers, remedies, and

procedures” of Title VII of the Civil Rights Act of 1964 apply under the Act. Injunctive

relief in Title VII cases is authorized when the court finds that the defendant “has

intentionally engaged in or is intentionally engaging in an unlawful employment

practice . . . .” 42 U.S.C. § 2000e-5(g). Thus, we must first decide if the defendant

12
“intentionally engaged in” an unlawful employment practice within the meaning of this

statute.

Congress’ decision to incorporate in the ADA the remedies and procedures of

Title VII cases is a clear indication, we think, that the statutory intent requirement for

injunctive relief should be applied in harmony in cases under the two acts. Under Title VII,

the intent which must be shown as a basis for injunctive relief is merely the intent to do the

act which has discriminatory effect; it is not necessary for the plaintiff to show that the

defendant intended to discriminate. It is enough to show that “the practice was followed

deliberately, not accidentally.” Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 250

(10th Cir. 1970); accord Meyer v. Brown & Root Const. Co., 661 F.2d 369, 374 n.7 (5th Cir.

1981); see also 5 Lex K. Larson, Employment Discrimination § 90.01 at pp. 90-05-90-06 &

n.14 (2d ed. 1997) (collecting similar holdings of other circuits). We think it clear that this

intent requirement is satisfied here. Defendant’s argument that the violation was not

intentional fails to address the applicable definition of intent; instead, defendant argues as

if intent to violate the law were required. This argument is unavailing. Thus we conclude

that the district court was clearly given discretionary power to issue an injunction. Hence we

will consider whether the court abused its discretion in denying injunctive relief.

We review a denial of injunctive relief for abuse of discretion. Prows v. Federal

Bureau of Prisons, 981 F.2d 466, 468 (10th Cir. 1992). The discretionary decision is “not

left to a Court’s