Exterior of the Denver capitol building

Kolbe v. Endocrine Services, 17-cv-1871-RM-SKC

Kolbe v. Endocrine Services, 17-cv-1871-RM-SKC

Exterior of the Denver capitol building

Issues

On August 2, 2017, Plaintiffs Wendy Kolbe and the Colorado Cross-Disability Coalition filed suit against a clinic in Pueblo, Colorado, Endocrine Services,  P.C., for discriminating against individuals with disabilities who use service animals. In this case, Wendy Kolbe alleges she is an individual with a disability (diabetes that substantially limits several major life activities) and her service animal, a dog named Bandit, has been trained specially for the purpose of detecting and alerting Ms. Kolbe as to when she has highs and lows in her blood sugar levels.

Defendant claimed that based on a single A1c reading provided with a referral for services to Defendant’s office, Ms. Kolbe did not prevent sufficient evidence of her disability and told her she must remove her service animal from his medical office entirely in order to receive the consultation. The argument that follows is because the doctor allegedly did not have sufficient evidence of disability, Ms. Kolbe was not entitled to a service animal.

This case was brought pursuant to Title III of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act and the Colorado Anti-Discrimination Act. Under the ADA, the Department of Justice regulations and guidance are very clear on what places of public accommodation can and cannot do with respect to individuals with service animals. The professional offices of a medical services provider are covered as places of public accommodation. First, even medical providers are not permitted to investigate, rely on or make inquiries into the details of the disability of an individual with a disability before allowing the service and into the medical office. In addition, service animals are entitled to accompany their owner into all places that the public is allowed to go including a doctor’s office for a consultation. The only exceptions are limited to things like operating rooms and other places where extreme sterile techniques are used. Also, a place of public accommodation can exclude a service animal if it is not housebroken or if the owner does not have control over the animal and it is misbehaving. Defendant, in this case, admitted that Bandit, Ms. Kolbe’s service dog, did not appear to misbehave in any way. The sole reason for excluding Bandit was the doctor’s mistaken belief that the single A1c reading (upon which she wasn’t supposed to rely in order to allow the service animal into the consultation) did not provide sufficient evidence of diabetes, a disability if it substantially limits a major life activity. Often, it does, because it substantially limits the endocrine system. This is so, even though it can be controlled at times with appropriate medications, lifestyle changes and treatment.

Much of the information regarding what places of public accommodation, including medical offices, can and cannot do with respect to individuals with service animals is set forth in the DOJ regulations and guidance provided specifically pertaining to service animals. Places of public accommodation are allowed to ask to and only two questions of the individual with the service animal: (1) is that a dog used because of a disability); and (2) what services does the dog perform for you? In this case, the doctor nor anyone else from the medical facility asked these two questions. The doctor simply believed he could use a single reading of Ms. Kolbe’s A1c levels sent with the referral prior to her visit from her primary care doctor for a consultation for more specific services related to her diabetes. Again, relying on this evidence was met permitted, and even if one A1c test taken at or around the time the referral was made shows that it was within the normal range, that does not mean a person does not have diabetes. Despite the fact that the doctor in this case and ample evidence prior to trial that Ms. Kolbe had diabetes as the jury determined before awarding its verdict, he still insisted that he had insufficient evidence and chose to take the case all the way to trial.

All of this information is readily available to the general public on the United States DOJ website regarding the ADA, ADA.gov. Anyone can look up the regulations and specific service animal guidance there. Most of the information is also available in the documents provided with this case below.

For example, 28 C.F. R. § 36.302(c) addresses the need of a place of public accommodation to modify its policies, practices and procedures to ensure that service animals are permitted to accompany their owners in all places of public accommodation where everyone else is permitted to go.

Frequently Asked Questions about Service Animals and the ADA

ADA Business BRIEF: Service Animals

On March 16, 2022, the jury returned a verdict in favor of Wendy Kolbe under the ADA and the state law. The Court took additional testimony from the Executive Director of CCDC who provided sufficient testimony to convince the Court to rule in favor of both Plaintiffs Wendy Kolbe and CCDC. On March 31, 2021, the Court entered its order incorporating the jury verdict in the amount of $20,000 to be paid to Wendy Kolbe as well as awarding an injunction under the ADA, Section 504 of the Rehabilitation Act and the Colorado Anti-Discrimination Act. The injunction requires Defendant to modify its policies, practices and procedures regarding service animals to bring them in compliance with the law and ensure that it provides that information to all of its staff. The court will retain jurisdiction of the case for two years to ensure that any violations of the Court order may be brought directly to the Court. After that, an entirely new lawsuit would need to be filed. The Court ordered Defendant to pay Plaintiffs’ attorneys their reasonable attorneys’ fees and costs. The motion is due on April 29, 2022. Lastly, the attorneys representing Plaintiffs, the CCDC Civil Rights Legal Program. Lead counsel throughout the case ended trial was CCDC Attorney, Andrew Montoya. The entire Civil Rights Legal Program team participated in all aspects of this case. The case was tried before the Honorable Raymond P. Moore of the United States District Court for the District of Colorado. The documents below are a sample of all of the documents that were filed prior to the trial of this case. Also provided are media releases and references to media coverage in the case.

A story ran in the Pueblo Chieftain newspaper on October 22, 2017. The link to the article “Pueblo medical office accused of discrimination over service dog” by Robert BoczkiewIcz at the email address of REB1den@aol.com, expired at the time of this update. We recommend contacting the Pueblo Chieftain if you are interested in access to that article.

Relevant pleadings and Orders are set forth below.

Status

Judge Raymond Moore is the presiding Judge. Magistrate Judge S. Kato Crews was also assigned to this case.

The trial was held from March 14-March 17, 2020. The jury returned a verdict on March 16 in favor of Plaintiff Wendy Kolbe and against Defendant Endocrine Services, P.C. Additional evidence was taken on behalf of Plaintiff CCDC on March 17, 2022. On March 31, 2022, the Court entered its Findings of Fact, Conclusions of Law, Order of Judgment and Injunction, and its Final Judgment. Plaintiffs were successful on all claims against Defendant.

Pending before the Court currently is Plaintiffs’ motion seeking attorneys’ fees as permitted under the statutes at issue in the case. Plaintiffs filed that motion on April 29, 2022.  Briefing was completed on that motion on June 7, 2022.

In addition, on April 29, 2022, Plaintiffs submitted their stipulated Bill of Costs.

As of September 2, 2022, Defendant has not paid jury verdict award incorporated in the Court’s Final Judgment. Defendant also has not paid the stipulated Bill of Costs.

Available Documents

Media Coverage